San Beda College of Law

Wills and Succession

inherit in their own right and judicially declared to be so. However,

(2) those who inherit by right he cannot compel the administrator to
of representation. deliver to him his respective portion
a. Devisees – persons to whom without order of the court. (Ibid)
gifts of real property are given by  After the death of the decedent,
virtue of a will anyone of the heirs may enter into a
b. Legatees - persons to whom gifts contract with respect to his share in
of personal property are given by the inheritance even before partition
virtue of a will has been effected.
 Conversely, before the death of the
Note: The successors must: decedent, the heirs have only a mere
1. Survive the decedent; hope or expectancy, absolutely
2. Willing to accept the inheritance; and inchoate in character, to their share in
3. Capacitated to inherit the inheritance. This is confirmed by
Art. 1347, CC, which declares that no
Distinction of Heirs and Devisees or contract may be entered into upon
Legatees future inheritance except in cases
Heirs Devisees Or Legatees expressly authorized by law, which
Succeed to an
Succeed to Individual
are:
indeterminate or 1. Donations propter nuptias by the
items of property
aliquot portion future spouses to each other of
Universal title Particular title future property (Art. 130, CC)
Succeed by means of 2. Partitions inter vivos made by a
Succeed by means of a
a will or by operation of
will person of his estate among his
law
heirs (Art. 1080)
Note: The distinction between heirs and
legatees are significant in these cases:  Art. 777 also applies not only to actual
1. Preterition death but even to presumptive death.
2. Imperfect disinheritance  A person may be “presumed” dead for
3. After– acquired properties the purpose of opening his succession
(see rules on presumptive death Art.
390 and 391). In this case, succession
Distinction of Voluntary Heirs and
is only of provisional character
Devisees or Legatees because there is always the chance
Voluntary Heirs Devisees/Legatees
that the absentee may still be alive.
Succeed to an
indeterminate or
Succeed to individual  Determination of the time of death in
items of property case of presumptive death:
aliquot portion
Universal title Particular title
Succeed by means of a will General Rule: The time when the
Shares are chargeable against the disposable free absentee died must be proved in
portion of the testator’s estate accordance with the ordinary rules of
evidence.
B. Causal Element (Art. 777): Death of the
Decedent Exceptions:
 The rights to the succession are 1. If the death cannot be proved by
transmitted from the moment of the ordinary rules of evidence, the
death of the decedent. absentee is deemed to have died
 Once the heir accepts his inheritance at the time of the expiration of the
and takes possession thereof, his right period designated by law.
thereto is deemed to retroact to the 2. If the absentee disappeared under
moment of the decedent's death. extraordinary circumstances as
(Jurado, p. 12) provided in Art. 391, CC, he is
 The fact that the hereditary estate is deemed to have died at or about
placed under administration will not the time when he disappeared.
affect the application of Art. 777. (Jurado, p. 12)
(Jurado, p. 13)
 Even before there has been a judicial
declaration of heirship, an heir has a
right to assert a cause of action as an
heir, although he has not been

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 San Beda College of Law
Wills and Succession
C. Objective Element: Inheritance
Succession and Inheritance Distinguished
Succession Inheritance
Refers to the legal Refers to
mode by which universality or entirety of
inheritance is the property, rights and
transmitted to the obligations of a person
persons entitled to it who died
Inheritance includes:
1. All properties existing at the time of the
decedent's death (Art. 776): Refer to
properties which are available for
distribution among the persons called to
the inheritance after settlement or
liquidation (Jurado, p.17).
 The mortal remains of the decedent
form part of the inheritance as gleaned
from R.A. 349, as amended by R.A.
1056, where a person may validly
grant to a licensed physician, surgeon,
scientist or any medical or scientific
institution, authority to detach at any
time after the grantor's death any
organ of his body, after complying with
the following requirements pertaining
to the grant or authorization which
must:
a. Be in writing;
b. Specify the person to whom or the
institution to which the grant is
given;
c. Specify the organ to be detached;
d. Specify the use of the organ to be
employed; and
e. Be signed by the grantor and two
disinterested witnesses.
2. All transmissible rights and obligations
existing at the time of decedent's death
(Art. 776)
General rules on rights and obligations
extinguished by his death:
a. Rights which are purely personal are
by their nature and purpose
intransmissible for they are
extinguished by death
b. Rights which are patrimonial or
relating to property are generally part
of inheritance as they are not
extinguished by death.
c. Obligations are by nature
transmissible and may constitute part
of inheritance both with respect to the
rights of the creditor and as regards to
the obligations of the debtor.
Exceptions:
a. Obligations which are purely personal
b. Made intransmissible by express
the agreement or will of the testator
c. Made intransmissible by express
provision of law, e.g .life pensions
given under contract
Monetary Obligations are excluded in the
Inheritance (based on the provisions of the
Rules of Court and Jurisprudence, which
has its basis on the then Code of Civil
Procedure, Act No. 190, as cited in
Jurado, see pp. 21-22)
 Said obligations can only be charged
against the estate of the decedent and
not against his heirs (Pavia v. De La
Rosa, G.R. No. L-3083, March 18,
1907).
 The obligations referred to under this
rule are those contracted by the
decedent during his lifetime and not
those contracted by his heirs. (Jurado,
p. 21)
3. All of the property and rights which have
accrued to the hereditary estate since the
opening of the succession (Art. 781)
After–Acquired Property (Art. 793)
General Rule: Property acquired during
the period between the execution of the
will and the death of the testator is NOT
included among the property disposed of.
Exception: When a contrary intention
expressly appears in the will
Note: This rule applies only to legacies
and devises and not to institution of heirs.
TESTAMENTARY SUCCESSION
CONCEPT
Will
An act whereby a person is permitted, with the
formalities prescribed by law, to control to a
certain degree the disposition of his estate to
take effect after his death (Art. 783)
Kinds:
1. Notarial or Ordinary
2. Holographic
Characteristics:
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2010 Centralized Bar Operations
1. Unilateral – does not need the approval of
any other person.
2. Strictly personal act – the disposition of
property is solely dependent upon the
testator.
Acts which may NOT be left to the
discretion of a third person (Arts. 785,
787):
a. Duration of the designation of heirs,
devisees or legatees;
b. Efficacy of the designation of heirs,
devisees or legatees;
c. Determination of the portions which
they are to take, when referred to by
name; and
d. Determination of whether or not the
testamentary disposition is to be
operative.
Acts which MAY be entrusted to a third
person (Art. 786):
a. Distribution of specific property or
sums of money that he may leave in
general to specified classes or causes
b. Designation of the persons,
institutions or establishments to which
such property or sums are to be given
or applied.
3. Free and voluntary act – any vice
affecting the testamentary freedom can
cause the disallowance of the will.
4. Formal and solemn act – the formalities
are essential for the validity of the will.
5. Act mortis causa – takes effect only after
the death of the testator
6. Ambulatory and revocable during the
testator’s lifetime
7. Individual act – Two or more persons
cannot make a single joint will, either for
their reciprocal benefit or for another
person. However, separate or individually
executed wills, although containing
reciprocal provisions (mutual wills), are not
prohibited, subject to the rule on
disposicion captatoria.
INTERPRETATION OF WILLS
All rules of construction are designed to
ascertain and give effect to the intention of the
testator. It is only when the intention of the
testator is contrary to law, morals, or public
policy that it cannot be given effect.
In case of doubt, that interpretation by which
the disposition is to be operative or will sustain
and uphold the will in all its parts shall be
adopted, provided that it can be done
consistently with the established rules of law.
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Reason: Testamentary succession is preferred
to intestacy
Kinds of Ambiguities (Art. 789):
1. Latent or Intrinsic Ambiguities – those
which do not appear on the face of the will
and is discovered only by extrinsic
evidence
2. Patent or Extrinsic Ambiguities – those
which appear on the face of the will itself
 There is no distinction between patent and
latent ambiguities, in so far as the
admissibility of parol or extrinsic evidence
to aid testamentary disposition is
concerned.
General Rule: Intrinsic or extrinsic evidence
may be used to ascertain the intention of the
testator.
Exception: The oral declarations of the
testator as to his intentions must be excluded.
The validity of a will as to its form depends
upon the observance of the law in force at the
time it is made (Art. 795).
TESTAMENTARY CAPACITY
The ability as well as the power to make a will
 Must be present at the time of the
EXECUTION of the will
 Supervening incapacity does not invalidate
an effective will, nor is the will of an
incapable validated by a supervening of
capacity (Art. 801)
REQUISITES:
1. At least 18 years of age; and
2. Of sound mind (Art. 799)
 It is not necessary that the testator be
in full possession of all his reasoning
faculties, or that his mind be wholly
unbroken, unimpaired, or unshattered
by disease, injury or other cause. It
shall be sufficient if he knows: (NOA)
a. The nature of the estate to be
disposed of
b. The proper objects of his bounty
c. The character of the testamentary
act
 The law presumes that the testator is
of sound mind UNLESS: (PI–G)
a. The testator, one month or less,
before making his will, was
publicly known to be insane; or
b. He was under guardianship at the
time of making his will (Torres and
 San Beda College of Law
Wills and Succession
Lopez de Bueno v. Lopez, GR No.
24569, February 26, 1926).
Note: In both cases, the burden of
proving sanity is cast upon the
proponents of the will.
EFFECT OF CERTAIN INFIRMITIES:
1. Old age
 Mere senility or infirmity of old age
does not necessarily imply that a
person lacks testamentary capacity
 Senile dementia (peculiar decay of the
mental faculties whereby the person
afflicted is reduced to second
childhood), not senility, is the one
which produces testamentary
incapacity.
2. Infirmity or Disease
 Physical infirmity or disease is not
inconsistent with testamentary
capacity
3. Mental Disease or Insanity
 There may be mental incapacity to
make a will without actual insanity.
 Persons suffering from idiocy (those
congenitally deficient in intellect), and
imbecility (those who are mentally
deficient as a result of disease) do not
possess the necessary mental
capacity to make a will
4. Mental delusion
 An insane delusion which will render
one incapable of making a will may be
defined as a belief in things which do
not exist, and which no rational mind
would believe to exist.
 To justify the setting aside of a will, it
must be shown that the will was the
product or offspring of the delusion, or
at least, that it was influenced by the
delusion.
5. Belief in Supernatural
 A will executed by one under such an
extraordinary belief in spiritualism that
he follows blindly and implicitly
supposed directions of spirits in
constructing the will is not admissible
to probate.
6. Drunkenness
General Rule: The admission of a will to
probate will not be denied merely on proof
that the testator was addicted to the
excessive use of alcoholic liquors or
drugs.
Exception: If at the time of the making of
the will, the testator was so much under
the influence of the intoxicants or drugs as
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to be unable to bring to the business at
hand the calm judgment which the law
requires of a testator.
7. Deaf-mute and blind person can make a
will (Art. 807-808)
FORMALITIES OF WILLS
Extrinsic Validity
The validity of a will as to its form depends
upon the observance of law in force at the time
it is made (Art. 795).
OBJECTS OF FORMALITIES
The objects of the solemnities surrounding the
execution of wills are:
1. To close the door against bad faith and
fraud;
2. To avoid substitution of wills and
testaments;
3. To guarantee their truth and authenticity.
COMMON FORMALITIES (Art. 804)
1. Every will must be in writing; and
2. Executed in a language or dialect known
to the testator
 Testator’s knowledge or understanding
of the language/dialect need not be
expressly stated either in the body of
the will or in the attestation clause.
SPECIAL FORMALITIES
Notarial or ordinary will (Art. 805): (SAM-
PAA)
A. Subscription: The manual act by the
testator and his instrumental witnesses of
affixing their signature to the instrument.
Purposes:
1. Identify the testator; and
2. Authenticate the document
How Subscribed
Forms:
1. Subscription by Testator
Manner of Signing: The use of initials,
first name, assumed name or any
signature, marks or design intended
by the testator to authenticate renders
the will sufficiently signed by him.
A complete signature is not essential
to the validity of a will, provided the
part of the name written was affixed to
the instrument with intent to execute it
as a will.
Signature by Mark
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2010 Centralized Bar Operations
 Sufficient even if at the time of
placing it, the testator knew how to
write and is able to do so.
 It is a valid signature if it is the
testator’s usual signature or at
least one of the ways by which he
had signed his name before.
2. Signature by Another
Requisites:
a. It is the testator’s name that must
have been written by the third
person;
b. The testator’s name must have
been written in his presence;
c. The third person must have
affixed the testator’s name at his
express direction;
d. This fact should be stated in the
attestation clause; and
e. It should take place in the
presence of the instrumental
witnesses.
Place of Signature (either by the testator
or by another): end of the will, otherwise
VOID.
End of Will
1st View: Refers to the physical end of the
writing, or the point which is farthest
removed from the beginning in point of
space.
2nd View: Refers to the logical end, which
is the point where the testamentary
dispositions terminate. The end of the will
can be determined from the unmistakable
sequence which the testator intended to
give to the writing as revealed on the face
of the instrument itself. (Tolentino, p. 70)
 End of will means the logical end, not
the physical end of the will. Thus if a
will starts on the 1st page, continues
on the 3rd page, but is concluded on
the 2nd page, the latter is the logical
end. (Paras, p. 85)
Purposes:
1. to show that the testamentary purpose
therein expressed is completed;
2. to prevent any opportunity for fraud or
interpolations between the written
matter and signature; and
3. the position of the signature is an
internal evidence of finality or
completion of intent
B. Attestation and subscription
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Attestation: The act of three or more
credible witnesses of witnessing the
execution of the will in the presence of the
testator and of one another in order to see
and take note mentally that such will has
been executed in accordance with the
requirements prescribed by law (Jurado,
p. 60). Strictly speaking, it is the act of the
witnesses and not that of the testator.
Purposes of Requiring Witness to
Attest and to Subscribe to a Will: (IPA)
1. Identification of the instrument;
2. Protection of the testator from fraud
and deception; and
3. The ascertainment of the testamentary
capacity of the testator
Note: If the required numbers of attesting
witness are competent, the fact that an
additional witness, who was incompetent
also attested to the will, cannot impair the
validity.
Attestation and Subscription Distinguished
Attestation Subscription
An act of the senses An act of the hand
Mental act Mechanical act
Purpose is to render
available proof during
probate of will, not only of
Purpose is identification
the authenticity of the will,
but also of its due
execution
Meaning of “In the Presence”
 Does not necessarily require actually
seeing, but possibility of seeing
without any physical obstruction
(Jaboneta vs. Gustilo G.R. No. 1641
January 19, 1906)
 When a person merely has his back
turned, the signing is done in his
presence since he could have cast his
eyes in the proper direction. (Ibid)
 In a case a testator is blind, the
presence may be complied with if the
signing or action is within the range of
the other senses like hearing, touch,
etc., of the testator. (Paras, p. 89)
Test of Presence
 Not whether they actually saw each
other sign, but whether they might
have seen each other sign had they
chosen to do so considering their
mental and physical condition and
position with relation to each other at
the moment of inscription of each
 San Beda College of Law
Wills and Succession
signature. (Neyra vs. Neyra, GR No
8075, March 25, 1946)
C. Marginal signatures
General Rule: The testator or the person
requested by him to write his name and
the instrumental witnesses must affix their
signature on the left margin of each and
every page of the will.
Note: The requirement of affixing marginal
signatures is MANDATORY.
Exceptions:
1. In the last page, when the will consists
of two or more pages
2. When the will consists of only one
page
3. When the will consists of two pages,
the first of which contains all the
testamentary dispositions and is
signed at the bottom by the testator
and the witnesses and the second
contains only the attestation clause
duly signed at the bottom by the
witnesses (Jurado, pp. 72-73).
 The inadvertent failure of one witness
to affix his signature to one page of a
testament, due to the simultaneous
lifting of two pages in the course of
signing, is not per se sufficient to
justify denial of probate (Icasiano v.
Icasiano, GR No. L-18979 June 30,
1964).
 The location of the marginal
signatures is NOT mandatory in
character, provided, of course, that
such signatures are present in every
page of the will, except the last. (Ibid)
 The words “left margin” is merely
directory.
D. Page numberings
Written correlatively in letters placed on
the upper part of each page.
 This is not necessary when the will is
written on one sheet only.
 The requirement that the pages of the
will shall be numbered is the one
MANDATORY and not the requirement
that it should “numbered correlatively
by letters”.
 Substantial compliance with the
statutory requirement is sufficient,
thus, the pages need not be
numbered correlatively in letters such
as “one”, “two” or “three” but may be
numbered by mere alphabetical
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letters, or by Arabic Numerals, or by
any form of identification.
Purpose:
 to forestall any attempt to suppress or
substitute any of the pages of the will
E. Attestation Clause (AC)
Memorandum or record of facts wherein
the witnesses certify that the will has been
executed before them, and that it has
been executed in accordance with the
formalities prescribed by law.
Note: It must be signed by the witnesses,
not by the testator.
Purpose: In case of failure of memory of
the witnesses or in case such witnesses
are no longer available, such parts may
still be proved.
Contents:
1. The number of pages used
 Even if the number of pages is
omitted in the AC, as long as there
is an acknowledgment clause
which states the number of pages
or the will itself mentioned such
number of pages, it may still be
considered as valid (Taboada v.
Rosal, GR No. L-36033
November 5, 1982)
 The failure to state the number of
pages of the will in the attestation
clause is a fatal flaw. The number
of pages used in the will is not
stated in any part of the will
hence, Taboada v. Rosal is not
applicable. The will does not even
contain any notarial
acknowledgment wherein the
number of pages of the will should
be stated. (Azuela v. CA, et al, GR
No. 122880 April 12, 2006 )
2. The fact that the testator signed the
will and every page thereof, or caused
some other person to write his name,
under his express direction, in the
presence of the instrumental
witnesses;
3. That the witnesses witnessed and
signed the will and all the pages
thereof in the presence of the testator
and of one another.
Note: Absence of this clause will
render the will a nullity.
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 The AC need not be written in a
language or dialect known to the
testator nor to the attesting witnesses
since it does not form part of the
testamentary disposition.
 The law refers to page and not to
sheet or leaf or folio, so every page
used in the will should be signed on
the left margin.
 An AC need be signed ONLY by the
witnesses and not by the testator, as it
is a declaration made by the
witnesses.
Effects of Defects or Imperfections in
the Attestation Clause:
General Rule: The will shall be invalidated
if the defect of the attestation clause:
1. Goes into the very essence of the
clause itself
2. Consists in the omission of one, some,
or all of the essential facts, which
cannot be cured by an examination of
the will itself
3. Is substantial in character
Exception: Doctrine of Liberal
Interpretation (Art. 809)
For the doctrine to apply, there must be
concurrence of three essential pre-
requisites:
1. Defects and imperfections must be in
the form of the attestation or in the
language used therein;
2. There must be no bad faith, forgery,
fraud, or undue and improper pressure
and influence, in the execution of the
attestation clause, and
3. It must proved that the will was in fact
executed and attested in substantial
compliance with all the requirements
of Art. 805 (formal requirements).
F. Acknowledgment
Done before a notary public by the testator
and the instrumental witnesses.
 The notary public before whom the will
was acknowledged cannot be
considered as the third instrumental
witness since he cannot acknowledge
before himself his having signed the
will. To allow such would have the
effect of having only two attesting
witnesses to the will which would be in
contravention of Arts. 805 and 806
(Cruz v. Villasor, GR No. L-32213 Nov.
26, 1973).
 An acknowledgement taken outside
the territorial limits of the officer’s
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jurisdiction is void as if the person
taking it were wholly without official
character (Guerrero v. Bihis, GR No.
174144 April 17, 2007)
POINTERS:
Date of will
1. Ordinary will: not an essential part;
Reason: It would still be dated in its
notarial acknowledgment
Conflict between the dates appearing on
the will does not invalidate the document
because the law does not even require
that a notarial will be executed and
acknowledged on the same occasion
(Ortega v. Valmonte, GR No. 157451
Dec.16, 2005)
2. Holographic will: an essential part.
Reason: The testator may make more
than one will that it may happen that the
testator was incapacitated during the
execution of the first will and capacitated
during the execution of the second will.
 Failure or error to state the place of
execution will not invalidate the will.
 Signing of a will by the testator and
witnesses and acknowledgment
before a notary public, need not be a
single act.
 Testamentary capacity must also exist
at the time of acknowledgment.
Additional Requirements for Special Cases
1. Deaf or deaf–mute testator (Art. 807):
a. Personal reading of the will, if able to
do so; or
b. If not possible, designation of 2
persons to read the will and
communicate to him, in some
practicable manner, the contents
thereof.
 In a case where the testator did not
read the final draft of the will, but the
lawyer who drafted the document read
the same aloud in the presence of the
testator, 3 witnesses, and notary
public, the Court held that the formal
imperfections should be brushed aside
when the spirit behind the law was
served though the letter was not
(Alvarado v. Gaviola, GR No. 74695
September. 14, 1993).
2. Blind testator (Art. 808):
Double–reading requirement:
a. First, by one of the subscribing
witnesses; and
b. Second, by the notary public before
whom the will is acknowledged.
 San Beda College of Law
Wills and Succession
 Art. 808 applies not only to blind
testators but also to those who, for one
reason or another are incapable of
reading their wills (e.g. poor, defective or
blurred vision).
Witness to Notarial Wills (Arts. 820 & 821)
Requirements:
1. Of sound mind;
2. Able to read and write;
3. Not blind, deaf or dumb;
4. At least 18 years of age;
5. Domiciled in the Philippines; and
6. Has not been convicted of falsification of a
document, perjury, or false testimony
Note: A witness need not know the contents of
the will, and need not be shown to have had a
good standing in the community where he
lives.
The testator’s creditors can be competent
witnesses to his will (Art. 824).
Interested Witness – One who is
incapacitated from succeeding from the
testator by reason of a devise/legacy or other
testamentary disposition therein in his favor, or
in favor of his spouse, parent, or child.
Effects:
a. His competence as a witness shall subsist;
but
b. The devise or legacy in his favor or in
favor of his spouse, parent or child shall
be void.
Exception: When there are three other
competent witnesses to such will (Art. 823)
Effect of Subsequent Incompetency: If the
witnesses attesting the execution of a will are
competent at the time of attesting, their
becoming subsequently incompetent shall not
prevent the allowance of the will (Art. 822).
The competency of a witness to a will is to be
determined as of the time of the execution of
the instrument, and not as of the time when
the will is presented for probate. (Jurado, p.
112)
HOLOGRAPHIC WILL (Art. 810)
1. Entirely written by the hand of the testator
2. Entirely dated by the hand of the testator
3. Entirely signed by the hand of the testator
 Art. 810 does not require that the
testator must sign the will with his full
signature.
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4. Executed in a language or dialect known
to the testator
Purposes:
1. To safeguard the authenticity of the will
2. Deter or prevent any possible insertion or
interpolation by others or any possible
forgery (Ibid, p. 92)
Note: The law exacts literal compliance with
these requirements. The doctrines of liberal
interpretation and substantial compliance as
applied to ordinary or notarial wills cannot be
applied to holographic wills. (Ibid)
 As a general rule, the “date” in a
holographic will should include the day,
month, and year of its execution.
However, when there is no appearance of
fraud, bad faith, undue influence and
pressure and the authenticity of the will is
established and the only issue is whether
or not the date “FEB. 1961” appearing on
the will is a valid compliance with Art. 810,
probate of the holographic will should be
allowed under the principle of substantial
compliance (In the matter of Intestate
Estate of Andres de Jesus and Bibiana
Roxas de Jesus, GR No. L-38338,
January 28, 1985).
Rule in Case of Insertion, Cancellation,
Erasure or Alteration: Testator must
authenticate the same by his FULL
SIGNATURE (Art. 814).
Effects of Insertions or Interpolations by
3rd Persons:
1. If the insertion was made after the
execution of the will, but without the
consent of the testator, such insertion is
considered as not written because the
validity of the will cannot be defeated by
the malice or caprice of third persons.
2. If the insertion after the execution of the
will was with the consent of the testator
but was not authenticated by his signature
the will remains valid but the insertion is
void.
 HOWEVER, in the case of Kalaw v.
Relova, G.R. No. L-40207, September
28, 1984, the holographic will in
dispute had only one substantial
provision, which was altered by
substituting the original heir with
another, but which alteration did not
carry the requisite of full authentication
by the full signature of the testator.
The effect must be that the entire will
is voided or revoked for the simple
 San Beda College of Law
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reason that nothing remains in the will
after that which could remain valid.
3. If the insertion made by a third person
after the execution is validated by the
testator by his signature thereon, then the
insertion becomes part of the will, and the
entire will becomes void, because of
failure to comply with the requirement that
it must be wholly written by the testator.
4. If the insertion made by a third person is
made contemporaneous to the execution
of the will, then the will is void because it is
not written entirely by the testator.
Rules in Case of Subsequent Dispositions:
1. Several dispositions were signed but not
dated and the last disposition has a
signature and date – VALID
 the date on the last disposition
validates the dispositions preceding,
whatever be the time of prior
dispositions. This gives rise to the
presumption that all the dispositions
were made simultaneously. (Art. 813)
2. Not signed but dated – VOID
 The presence of the date renders the
will void on separate dates and not in
its entirety. Only the last disposition is
valid.
3. Signed but not dated – VOID, BUT does
not affect the validity of the other
dispositions or the will itself.
Probate of Holographic Will (Art. 811):
1. If UNCONTESTED, requires that at least 1
witness who knows the handwriting and
signature of the testator explicitly declare
that the will and signature are in the
handwriting of the testator; if none, expert
testimony may be resorted to.
 The Supreme Court held that Art. 811
is mandatory. The word “shall”
connotes a mandatory order (Codoy
vs. Calugay, G.R. No. 123486, August
12, 1999). The production of the
witnesses is necessary.
2. If CONTESTED, requires at least 3 of
such credible witnesses, if none, resort to
the testimony of an expert witness.
 A photostatic or xerox copy of a lost or
destroyed holographic will may be
admitted because the authenticity of
the handwriting of the deceased can
be determined by the probate court,
as comparison can be made with the
standard writings of the testator
(Rodelas v. Aranza, GR No. L-58509,
December 7, 1982).
GOVERNING LAW ON FORMALITIES:
1. As to time:
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a. The validity of a will as to its form
depends upon the observance of the
law in force at the time it is made.
b. Its intrinsic validity, however, is judged
at the time of the decedent’s death by
the law of his nationality.
2. As to place (Arts. 815 – 817):
 General Rule: The formal validity of a
will shall be governed by the law of the
country in which it was executed. The
forms and solemnities of contracts,
wills and other public instruments shall
be governed by the laws of the
country in which they are executed.
(Art. 17)
 Filipino testator
a. Executing a will in the Philippines:
Philippine law
b. Executing a will outside of the
Philippines: either
i. The law of the country in
which it is executed; or
ii. The law of the Philippines.
 Alien Testator
a. Executing a will in the Philippines:
either
i. The law of the Philippines; or
ii. The law of the country of
which he is a citizen or
subject.
b. Executing a will outside of the
Philippines: either
i. The law of the place where it
is executed; or
ii. The law of the place in which
he resides; or
iii. The law of his country; or
iv. The law of the Philippines.
Aspects of the Will Governed by National
Law of the Decedent (Arts. 1039 and 16):
1. Order of succession
2. Capacity to succeed
3. Amount of successional rights
4. Intrinsic validity
JOINT WILLS
A single testamentary instrument which
contains the wills of two or more persons,
jointly executed by them, either for their
reciprocal benefit or for the benefit of a third
person.
Kinds:
1. Mutual wills – executed pursuant to an
agreement between two or more persons
to dispose of their property in a particular
manner, each in consideration of the other
separate wills of two persons, which are
reciprocal in their provisions.
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2. Reciprocal wills – the testators name each  All the pages shall
other as beneficiaries under similar be numbered
testamentary plans correlatively in
letters placed on
Note: the upper part of
each page
 Mutual or reciprocal wills are not  Contains an
prohibited provided they are contained in attestation clause;
separate instruments. and
 The prohibition under Art. 818 is the  Acknowledged
execution of a joint will or a will contained before the notary
in the same instrument, either for public by the
reciprocal benefit or for the benefit of a testator and the
third person. witnesses.

Note: Special
Reasons: safeguards/solemni
1. A will is a purely personal and unilateral ties prescribed by
act the Civil Code in
2. Contrary to the revocable character of a case the testator is
will deaf, or a deaf-
3. May expose the testator to undue mute, or blind, must
influence, and may even induce one of the also be complied
testators to kill the other. with (Arts. 807 and
808).
 This prohibition is applicable only in joint
wills executed by Filipinos in a foreign CODICIL AND INCORPORATION BY
country; it does NOT APPLY to joint wills REFERENCE
executed by aliens. (Art. 819)
Codicil
Summary of Formalities (Common and A supplement or addition to a will, made after
Special) Required for: the execution of a will and annexed to be
Ordinary Will Holographic Will taken as a part thereof, by which any
 In writing;  Entirely written by disposition made in the original will is
 Written in a the hand of the explained, added to, or altered (Art. 825).
language or dialect testator himself;
 It always refers to the original will. If there
known to the  Entirely dated by
testator; the hand of the
is entirely no reference at all, then it is
 Subscribed at the testator; considered as the new will.
end thereof by the  Entirely signed by  To be effective, it should follow the
testator himself or the hand of the formalities of a notarial or holographic will.
by the testator’s testator; and  Its execution has the effect of republishing
name written by  Executed in the will as modified.
some other person language or dialect
in his presence and known to the INCORPORATION BY REFERENCE (Art.
by his express testator. 827)
direction;
 Attested and  Contemplates only lists of properties,
subscribed by three books of accounts, voluminous documents
or more credible or inventories.
witnesses in the  Provisions which are in the nature of
presence of the testamentary dispositions must be
testator and of one contained in the will itself.
another;  Parole evidence may be admitted to prove
 The testator or the
the identity of the document as
person requested
by him to write his incorporated.
name and the  In case of a Holographic Will, there can be
instrumental no incorporation by reference IF NOT
witnesses of the will entirely written, dated and signed by the
shall also sign each testator.
and every page
thereof on the left
margin, except the
last page;

89
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Requisites for a Valid Incorporation by
Reference (Art. 827): (SIDE)
1. The document or paper referred to in the
will must be in existence at the time of the
execution of the will;
2. The will must clearly describe and identify
the same, stating among other things the
number of pages thereof;
3. It must be identified by clear and
satisfactory proof as the document or
paper referred to therein;
4. It must be signed by the testator and the
witnesses on each and every page, except
in case of voluminous books of account or
inventories.
Note: When in a will, reference is made to an
inventory of the properties of the testator,
which has thus been made part a part of the
will, if the will has an attestation clause that
meets the requirements of the law, no
attestation clause is necessary for the said
inventory anymore (Unson v. Abella., G.R. No.
17857, June 12, 1922).
REVOCATION OF WILLS AND
TESTAMENTARY DISPOSITIONS
Revocation
An act of the mind, terminating the potential
capacity of the will to operate at the death of
the testator, manifested by some outward or
visible act or sign, symbolic thereof.
 A will maybe revoked by the testator at
any time before his death.
 Any waiver or restriction of this right is void
(Art. 828).
 Upon revocation, the will or testamentary
disposition intended to be revoked ceases
to exist, and is inoperative as if it has
never been written.
LAWS WHICH GOVERN REVOCATION (Art.
829):
1. If the revocation takes place in the
Philippines, whether the testator is
domiciled in the Philippines or in some
other country, it is valid when it is in
accordance with the laws of the
Philippines.
2. If the revocation takes place outside the
Philippines, by a testator who is domiciled
in the Philippines, it is valid when it is in
accordance with the laws of the
Philippines. (Art. 829)
3. Revocation done outside the Philippines,
by a testator who does not have his
domicile in this country, is valid when it is
done according to the:
90
a. laws of the place where the will was
made, or
b. laws of the place in which the testator
had his domicile at the time of
revocation (Art. 829)
MODES OF REVOCATION (Art. 830):
1. By implication of law (PUJ-BALA)
a. Preterition revokes the institution of
heir (Art. 854);
b. Act of unworthiness by an heir,
devisee/legatee revokes testamentary
provisions in his favor;
c. Judicial action for recovery of debt
revokes a legacy of credit/remission of
debt (Art. 936);
d. If both spouses of the subsequent
marriage acted in bad faith, said
marriage shall be void ab initio and
testamentary dispositions made by
one in favor of the other are revoked
by operation of law (Art. 44, Family
Code);
e. Alienation, transformation, or loss of
bequeathed property revokes a legacy
of such property (Art. 957);
f. Legal separation revokes
testamentary provisions in favor of the
offending spouse (Art. 63 [4]);
g. Annulled or void ab initio marriages
revoke testamentary dispositions
made by one spouse in favor of the
other (Art. 50, Family Code).
2. By Subsequent Instrument (will, codicil,
or other writing, executed as provided in
the case of wills) which may either be:
a. Express – when there is a revocatory
clause expressly revoking the
previous will or a part thereof
i. Subsequent will
ii. Codicil
 If the revocation is partial, it
will have the effect of
republishing the will as of the
date of the codicil with respect
to all parts not revoked.
 If the revocation is total, there
is no republication.
iii. Non–testamentary writing
executed as in case of wills
 In all of the three ways of express
revocation, the revocatory clause must
clearly and unmistakably manifest the
intention of the testator to revoke the
previous will.
 To revoke a previous will, it is
necessary that the subsequent
instrument be valid and executed with
 San Beda College of Law
Wills and Succession
the formalities required for the making
of wills.
b. Implied – when the provisions thereof
are partially or absolutely inconsistent
with those of the previous wills
i. Subsequent will
ii. Codicil
 Subsequent wills which do not
revoke the previous ones in
an express manner, annul
only such dispositions in the
prior wills as are inconsistent
with or contrary to those
contained in the later wills
(Art. 831).
 Two or more wills, each
purporting to be a will, may be
admitted to probate if they are
not inconsistent with each
other. (Jurado, p. 121)
3. By Destruction of the Will (burning,
tearing, cancelling, or obliterating the will)
(CAT-TI)
Requisites:
a. Completion of the subjective phase;
Note: the act is still deemed to be in
the subjective phase if the testator
intends to do a further act
b. Actual physical act of destruction;
c. Testamentary capacity at the time of
performing the act of destruction;
d. Performed by the testator himself or
by some other person in his presence
and express direction;
e. Intent to revoke (animus revocandi)
Note: Revocation is a personal act of the
testator. He cannot delegate to an agent
the authority to do the act for him. Another
person, however, may be selected by him
as an instrument and directed to do the
revocatory acts in his presence. A intends to revoke
destruction not accomplished in the
testator’s presence is an ineffective
revocation of the will.
Burning
 There must be at least a burning of a
part of the paper on which the will is
written, although a very slight burn will
suffice.
 If the document itself is not burned,
even partially, but only the envelope in
which it was placed was burned, there
is no revocation of the will. But where
91
the maker of the will, threw it upon the
fire with the intent to revoke, and it
was burned through in three places,
this was considered a revocation,
although the writing remained intact,
and although it was rescued and
preserved without the knowledge of
the testator. (III Tolentino, 1992,
p.135)
Tearing
 A slight act of tearing is generally held
sufficient, although the greater the
degree of tearing the stronger the
presumption that the instrument was
torn animo revocandi.(Jurado, p.125)
 It is enough that the paper is torn,
though it may still be together and all
legible, it will still be considered
revoked.
 The act of tearing must be a complete
act. Otherwise, if the testator desists
voluntarily or through the persuasion
of others before the act of destruction
could be consummated, the act of
revocation has not also been
consummated. Hence, it produces no
effect.)
Cancelling
 Effected by diagonal or horizontal
lines, or criss-crosses, or the word
“cancelled”, written upon the face of
the will or upon any part thereof
 Marks made upon a will by the testator
are effective as a revocation by
cancellation, regardless of their depth,
faintness, or other characteristics, if
they were placed there for the purpose
of canceling the will.
 The cancellation need not render the
will illegible.
Obliterating
 Effected by erasing or scraping off any
word or disposition which the testator
 Obliteration renders the will illegible.
Note: Revocation by Cancellation or
Obliteration may be partial or total as
opposed to Revocation by Burning or
Tearing which is always total.
 The revocation is partial if it is directed
against a nonessential part of the will
and total if it is directed against an
essential part thereof.
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Doctrine of Presumed Revocation
In the absence of other evidence, it shall be
presumed that the testator destroyed the will
animo revocandi:
1. Where the will cannot be found following
the death of the testator and it is shown
that it was in the testator’s possession
when last seen;
2. Where the will cannot be found following
the death of the testator and it is shown
that the testator had ready access to it;
3. Where it is shown that the will was in the
custody of the testator after its execution,
and subsequently, it was found among the
testator’s effects after his death in such
state of mutilation, cancellation or
obliteration as represents a sufficient act
of revocation within the meaning of the
applicable statute.
Doctrine of Dependent Relative Revocation
(Art. 832)
 If a testator revokes a will with a present
intention of making a new one immediately
and as a substitute, and the new will is not
made, or if made, fails of effect of any
reason, it will be presumed that the
testator preferred the old will to intestacy,
and the old one will be admitted to probate
in the absence of evidence overcoming
the presumption, provided its contents can
be ascertained.
 Being merely a presumed intention, it does
NOT prevail as against actual evidence of
the testator’s intention.
Note: Where the act of destruction is
connected with the making of another will so
as to fairly raise the inference that the testator
meant the revocation of the old to depend
upon the efficacy of the new disposition
intended to be substituted, the revocation will
be conditional and dependent upon the
efficacy of the new disposition; and if for any
reason, the new will intended to be made as a
substitute is inoperative, the revocation fails
and the original will remains in full force (Vda.
De Molo v. Molo, GR No. L-2538, September
21, 1951).
REVOCATION BY MISTAKE
 A revocation of a will based on a false
cause or an illegal cause is null and void
(Art. 833).
 The false or illegal cause must appear
upon the face of the will.
 However, where the facts alleged by the
testator were peculiarly within his
knowledge, or the testator must have
known the truth of the facts alleged by
92
him, it does not matter whether they are
true or not; the revocation is absolute (III
Tolentino, 1992, p. 142).
REPUBLICATION AND REVIVAL OF
WILLS
Republication
Act of the testator whereby he reproduces in a
subsequent will the dispositions contained in a
previous will which is void as to its form or
executes a codicil to his will.
KINDS:
1. Express or republication by re-
execution (Art. 835) – if the testator
reproduces in a subsequent will
dispositions contained in a previous one
which is void as to its form. The purpose of
republication is to cure the will of its formal
defects.
2. Constructive or republication by
reference (Art. 836) – if the testator for
some reason or another executes a codicil
to his will.
 Art.836 must be considered as the general
rule, and Art. 835 as the exception.
Reproduction in the codicil is required only
when the original will is void as to its form;
in all other cases, reference to the original
will suffices to republish it through the
codicil. Thus, a codicil may republish and
validate a will which was originally void for
want of testamentary capacity or on
account of undue influence upon the
testator. (Tolentino, 1992, p.144)
EFFECTS OF REPUBLICATION BY VIRTUE
OF A CODICIL:
1. Codicil revives the previous will
2. The old will is republished as of the date of
the codicil — makes it effective as it were,
from the new and later date.
3. A will republished by a codicil is governed
by a statute enacted to the execution of
the will, but which was operative when the
codicil was executed.
REVIVAL
Restoration to validity of a previously revoked
will by operation of law.
Republication and Revival Distinguished
Republication Revival
Takes place by an act of Takes place by
the testator operation of law.
Corrects extrinsic and
Restores a revoked will
intrinsic defects.
 San Beda College of Law
Wills and Succession
Principle of Instanter: The express
revocation of the first will renders it void
because the revocatory clause of the second
will, not being testamentary in character,
operates to revoke the previous will instantly
upon the execution of the will containing it.
Kinds:
1. Express revocation of the first will
 If after making a will, the testator
makes a second will expressly
revoking the first, the revocation of the
second will DOES NOT revive the first
will, which can be revived only by
another will or codicil (Art. 837).
2. Implied revocation of the first will
 Where there is merely an
inconsistency between two wills, but
there is no revocatory clause, upon
destruction of the second will, the first
is AUTOMATICALLY REVIVED,
regardless of the intention of the
testator provided that the first will has
been preserved undestroyed.
Note: In an instance where the testator
executed three wills – the first in 1968, the
second in 1969, and the third a codicil in 1970,
the dispositions found in the second will are
absolutely inconsistent with those found in the
first. The codicil, on the other hand, contains
nothing but a revocatory clause expressly
revoking the will of 1969. From the foregoing,
the will in 1968 will remain. It will remain not
because of revival since it has never been
revoked in the first place. Further, consistent
with the doctrine of dependent relative
revocation, it will be presumed that the testator
preferred the old will to intestacy. (Jurado, p.
132)
ALLOWANCE AND DISALLOWANCE OF
WILLS
Probate
A special proceeding mandatorily required for
the purpose of establishing the validity of a
will.
 No will shall pass either real or personal
property unless it is proved and allowed in
accordance with the Rules of Court (Art.
838).
Kinds:
1. Ante Mortem – during the lifetime
2. Post Mortem – after the testator’s death
93
 The statute of limitations is not applicable
to probate of wills. (Imprescriptibility of
Probate)
Rationale: Probate proceedings are not
established in the interest of the surviving
heirs, but primarily for the protection of the
expressed wishes of the testator.
 It is true that the rights of the parties
should not be left hanging in uncertainty
for periods in excess of the maximum
period of ten years allowed by law, but the
remedy is for the other interested person
either:
1. To petition for the production of the will
and for its probate;
2. To inflict upon the guilty party the
penalties prescribed by Rule 75 of the
Rules of Court; or
3. To declare the unworthiness of the
heir under Art. 1032 of the Civil Code
for concealing or suppressing the will.
(Guevara v. Guevara, G.R. No. L-
5405, January 31, 1956)
EFFECT OF ALLOWANCE OF WILL
A judgment or decree of a court with
jurisdiction to probate a will is:
1. Conclusive as to the validity of the will
2. Not subject to collateral attack, but stands
as final, if not modified, set aside, or
revoked by a direct proceeding, or
reversed on appeal to a higher court
3. Conclusive to the whole world.
INSTANCES WHEN ALLOWANCE MAY BE
SET ASIDE
General Rule: Since a proceeding for the
probate of a will is essentially one in rem a
judgment allowing a will shall be conclusive as
to its due execution.
Exceptions:
1. By means of an appeal
2. By means of a petition for relief from
judgment by reason of fraud, accident,
mistake, or excusable negligence
3. By means of a petition to set aside the
judgment by reason of lack of jurisdiction
or lack of procedural due process
4. By means of an action to annul judgment
by reason of extrinsic or collateral fraud
(Jurado, 143)
QUESTIONS DETERMINABLE BY
PROBATE COURT
General Rule: In probate proceedings, the
probate court cannot inquire into the intrinsic
validity of testamentary provisions. The only
questions that may be determined by the
probate court are the following: (ICE)
 San Beda College of Law
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1. Identity of the will (whether the will
presented is the last will and testament of
the testator)
2. Testamentary capacity of the testator at
the time of the execution of the will; and
3. Due execution of the will (whether there
was compliance with the requisites and
solemnities prescribed by law)
Exception: For practical considerations:
 In Nuguid v. Nuguid (GR No. L-23445
June 23, 1966), the Supreme Court held
that, if the case were to be remanded for
probate of the will, nothing will be gained.
On the contrary, this litigation would be
protracted. And for aught that appears in
the record, in the event of probate or if the
court rejects the will, probability exists that
the case will come up once again before
us on the same issue of the intrinsic
validity or nullity of the will. RESULT:
waste of time, effort, expense, plus added
anxiety.
 In Nepomuceno v. CA (GR No. L-62952
October 9, 1985), the Court ruled that “the
court can inquire as to the intrinsic validity
of the will because there was an express
statement that the beneficiary was a
mistress.
Note: Criminal action will not lie against the
forger of a will which had been duly admitted
to probate by a court of competent jurisdiction
(Mercado v. Santos, GR No. 45629,
September 22, 1938).
 The fact that the will has been allowed
without opposition and the order allowing
the same has become final and executory
is not a bar to the presentation of a codicil
provided it complies with all the formalities
for executing a will. It is not necessary
that the will and codicil be probated
together as the codicil may be concealed
by an interested party. They may be
probated one after the other (Macam v.
Gatmaitan, GR No. 40445. August 17,
1934).
 When a will is declared void because it
has not been executed in accordance with
the formalities required by law, but one of
the intestate heirs, after the settlement of
the debts of the deceased, pays a legacy
in compliance with a clause in the
defective will, the payment is effective and
irrevocable (Article 1430, NCC; Natural
Obligations).
94
GROUNDS FOR DISALLOWANCE OF A
WILL (Art. 839) (FIFU SM)
1. Formalities required by law have not been
complied with;
2. Testator was insane, or otherwise
incapable of making a will, at the time of
its execution;
3. Will was executed through force or under
duress, or the influence of fear, or threats;
4. Will was procured by undue and improper
pressure and influence, on the part of the
beneficiary or of some other person;
5. Signature of the testator was procured by
fraud;
6. Testator acted by mistake or did not intend
that the instrument he signed should be
his will at the time of affixing his signature
thereto.
Note: List is EXCLUSIVE.
Violence – when in order to compel the
testator to execute the will, serious or
irresistible force is employed
Intimidation – when the testator is compelled
by a reasonable and well-grounded fear of an
imminent and grave evil upon his person or
property, or upon the person or property of his
spouse, descendants or ascendants, to
execute the will. (Art. 1335, CC)
Undue Influence – when a person takes
improper advantage of his power over the will
of another, depriving the latter of a reasonable
freedom of choice; substituting the wishes of
another for those of the testator.
Fraud – if by misrepresentation and deception
the testator is led into making a will different
from that he would have made but for the
misrepresentation and deception.
Mistake – pertains to “Mistakes of Execution”
which may either be:
1. A mistake as to identity or character of the
instrument which he signed, or
2. A mistake as to the contents of the will
itself. (Jurado, p. 157)
RATIFICATION
 With respect to a will which is void
because of non-compliance with the
formalities prescribed by law, ratification is
NOT possible.
 With respect to a will which was executed
through violence, intimidation, undue
influence, fraud or mistake, ratification is
possible. (Ibid, p. 158)
 San Beda College of Law
Wills and Succession
Note: Fair arguments, persuasion, appeal to
emotions, and entreaties which, without fraud
or deceit or actual coercion, compulsion or
restraint do not constitute undue influence
sufficient to invalidate a will (Barreto v. Reyes,
GR No. L-5830 January 31, 1956).
The burden is on the person challenging the
will to show that such influence was exerted at
the time of its execution.
To make a case of UNDUE INFLUENCE, the
free agency of the testator must be shown to
have been destroyed; but to establish a
ground of contest based on FRAUD, free
agency of the testator need not be shown to
have been destroyed.
Allegations of fraud and undue influence
cannot co–exist because they are mutually
opposed and exclude each other that their
joining as grounds for opposing probate shows
absence of definite evidence against the
validity of the will (Icasiano v. Icasiano, GR
No. L-18979 June 30, 1964).
Revocation and Disallowance
Revocation Disallowance
Voluntary act of the
Given by judicial decree
testator
Must always be for a
With or without cause
legal cause
Always total except:
when the ground of
fraud or influence for
May be partial or total
example affects only
certain portions of the
will
INSTITUTION OF HEIRS
INSTITUTION
An act by virtue of which a testator designates
in his will the person or persons who are to
succeed him in his property and transmissible
rights and obligations (Art 840)
 The institution is valid if it is possible to
ascertain with finality the identity of the
instituted heir by intrinsic or extrinsic
evidence.
ORDER OF PREFERENCE:
1. Institution of heir (Art. 840)
2. Substitution of heir (Art. 857)
3. Right of representation (Art. 970)
4. Right of accretion (Art. 1015)
5. Intestacy (Art. 960)
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REQUISITES FOR A VALID INSTITUTION:
1. The will must be extrinsically valid
2. The institution must be intrinsically valid
3. The institution must be effective
EFFECT OF LACK OF INSTITUTION (Art.
841)
A will otherwise defective is valid, even if:
1. There is no institution of heir
2. The instituted heir is given only a portion
of the estate
3. The heir instituted should repudiate or be
incapacitated to inherit
The testamentary dispositions made in
accordance with the law shall be complied with
and the remainder of the estate shall pass to
the legal heirs.
FREEDOM OF DISPOSITION:
1. If the testator has no compulsory heirs, his
freedom of disposition is absolute in
character. The whole estate is disposable.
2. If the testator has compulsory heirs, his
freedom of disposition shall extend only to
the disposable free portion of his estate,
but not to the legal portion or legitime.
(Jurado, pp. 160-161)
RESTRICTIONS ON DISPOSITION:
1. the estate of the testator shall be liable for
the latter’s obligations
2. the testator cannot dispose of or
encumber the legitime of the compulsory
heirs
FORMS OF INSTITUTIONS (Arts. 843–845):
 The testator shall designate the heir by his
name and surname. This form is not
mandatory.
 The designation may be made in any other
form, as long as there will be no doubt as
to the identity of the heir/s instituted.
 Dispositions in favor of an unknown
person shall be void, unless by some
event or circumstances his identity
becomes certain.
 A disposition in favor of a definite class or
group of persons shall be valid.
TEST TO DETERMINE THE VALIDITY OF
INSTITUTION
 The proper test in order to determine the
validity of an institution of heir is the
possibility of finally ascertaining the
identity of the instituted heir either by
intrinsic or extrinsic evidence. (Ibid, p.
163)
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PRESUMPTIONS: cause (Austria v. Reyes, GR No. L-23079,

1. Presumption of Equality – When heirs February 27, 1970).
were instituted without designation of
shares they are deemed to inherit in equal INSTITUTIONS ON ALIQUOT PARTS:
parts (Art. 846). 1. Rule if the entire inheritance is NOT
 This applies only when all of the heirs covered
are of the same class or juridical a. No intention to become sole heir –
condition. mixed succession (Art. 851)
 Where there are compulsory heirs i.e., A= 2/5; B=1/5; C= 1/5
among the heirs instituted, it should be  The remainder of 1/5 shall pass to
applied only to the disposable free the legal heirs.
portion. b. Intention to become the sole heir –
2. Presumption of Individuality – When the increase proportionately (Art. 852)
testator institutes some heirs individually 2. Rule if more than inheritance is covered –
and others collectively, those collectively each part reduce proportionately (Art. 853)
designated shall be considered as
individually instituted, unless it clearly Art. 852 Art. 853
appears that the intention of the testator Net Estate = 120T Net Estate = 120T
was otherwise (Art. 847). A= ½ ; B= ¼ A= ½ ; B= ¾
3. Presumption of Simultaneity – when the
testator calls to the succession a person A= ½ of 120T is 60T A= ½ of 120T is 60T
and his children, they are all deemed to B= ¼ of 120T is 30T B= ¾ of 120T is 90T
90T 150T
have been instituted simultaneously and
NE(120T)–90T= 30T NE(120T)–150T= -30T
not successively (Art. 849).
30T shall be
 If there is doubt as to the institution of distributed 30T will be DEDUCTED
the heir, nobody will inherit and proportionately b/w A proportionately b/w A
intestate succession shall apply and B and B
A=(120Tx60T)/90T= A=(120Tx60)/150T=48T
INSTITUTION OF BROTHERS AND 80T B=(120Tx90)/150T=
SISTERS: B=(120Tx30T)/90T= 72T
Some of full blood and others of half blood 40T
OR OR
1. Testate Succession
their respective shares their respective shares
 The inheritance shall be distributed shall be increased shall be reduced
equally, unless a different intention proportionately in the proportionately in the
appears (Art. 848). ratio of 6:3/2:1: ratio of 6:9/2:3:
2. Intestate Succession A=2/3 x 30T= 20T A=2/5 x 30T = 12T
 Brothers and sisters of the full blood B=1/3 x 30T= 10T B=3/5 x 30T = 18T
shall be entitled to a share double that
of the brothers and sisters of the half Hence: A = 80T Hence: A = 48T
blood (Art. 1006) B = 40T B = 72T
total is 120T total is 120T
INSTITUTION BASED ON A FALSE CAUSE
PRETERITION (Art. 854)
(Art. 850):
Omission in the testator’s will of one, some, or
General Rule: The statement of a false cause
all of the compulsory heirs in the direct line,
for the institution of an heir shall be considered
whether living at the time of the execution of
as not written.
the will or born after the death of the testator.
Exception: If it appears from the face of the
Requisites:
will that the testator would not have made the
1. The heir omitted must be a compulsory
institution had he known the falsity of the
heir in the direct line;
cause.
2. The omission must be complete and total
in character; and
REQUISITES FOR THE ANNULMENT OF
3. The compulsory heir omitted must survive
INSTITUTION OF HEIRS:
the testator.
1. Cause of institution of the heirs must be
stated in will;
There is NO total omission when:
2. Cause must be shown to be false;
1. A devise/legacy has been given to the heir
3. It must appear from the face of the will that
by the testator
the testator would not have made the
institution had he known the falsity of the

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2. A donation inter vivos has been previously

given to the heir by the testator; or
3. Anything is left from the inheritance which EFFECT OF PREDECEASE
the heir may get by way of intestacy. 1. Voluntary Heir
 The remedy of the affected heir is  Transmits no right to his heirs
completion of legitime under Art. 906, 2. Compulsory Heir
in case the value of the property  Transmits to his representatives his
received is less than the value of the right to the legitime and not the free
legitime. portion

EFFECTS OF PRETERITION: EFFECT OF INCAPACITY

1. It annuls the institution of heir;  Has the same effect as predecease
2. The devises and legacies are valid insofar
as they are not inofficious; and EFFECT OF REPUDIATION
3. If the omitted compulsory heir should die  Whether voluntary or compulsory, the heir
before the testator, the institution shall be who repudiates his inheritance cannot
effectual, without prejudice to the right of transmit any right to his own heirs.
representation.  The rule is absolute.
4. Intestate succession ensues.
 Where a one–sentence will institutes Note: In case of predecease, incapacity or
the petitioner as the sole, universal repudiation, the vacancy is filled up either by
heir and preterits the parents of the substitution, representation, accretion or
testatrix, and it contains no specific intestate succession.
legacies or bequests, such universal
institution of petitioner, by itself, is void
(Nuguid v. Nuguid, GR No. L-23445 SUBSTITUTION OF HEIRS
June 23, 1966).
Substitution
Points to Consider: Appointment of another heir so that he may
 Preterition of the surviving spouse (SS) enter into the inheritance in default of or
does not entirely annul the institution of subsequent to the heir originally instituted.
the heir since SS is not a compulsory heir (Art. 857)
in the direct line. However, since Article
842 protects the legitime of the SS, the The act by which the testator designates the
institution is partially annulled by reducing person/s to take the place of the heir/s first
the rights of the instituted heir to the extent instituted.
necessary to cover the legitime of SS.
 In case of omission without preterition, the General Limitation
rule in Art. 855 should be followed.  If the heir for whom a substitute is
appointed is a compulsory heir, the rule is
Preterition and Disinheritance Distinguished that the substitute cannot affect the
Preterition Disinheritance legitime of such heir. (Jurado, p. 189)
Deprivation of a Deprivation of a
compulsory heir of his compulsory heir of his PURPOSES OF SUBSTITUTION:
legitime is tacit legitime is express 1. To avoid intestate succession
May be voluntary but 2. To prevent the descent of the estate to
the law presumes that it Always voluntary those persons to whom the testator does
is involuntary not want to succeed him in his property
Law presumes that 3. To give the testator greater freedom to
there has been merely
dispose of his property
an oversight or mistake Done with a legal cause
on the part of the
testator INSTANCES WHEN SUBSTITUTION TAKES
Omitted heir gets not PLACE:
only his legitime but also If disinheritance is not 1. Instituted heir predeceases the testator;
his share in the free lawful, compulsory heir 2. Incapacity of the instituted heir to succeed
portion not disposed of is merely restored to his from the testator; and
by way of legacies/ legitime 3. Repudiation of the inheritance
devises
EFFECT OF SUBSTITUTION (Art. 862)

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General Rule: The substitute shall not only
take over the share that would have passed to
the instituted heir, but he shall be subject to
the same charges and conditions imposed
upon such instituted heir.
Exceptions:
1. When the will provides to the contrary;
2. When the charges or conditions are
personally applicable only to the heir
instituted.
Kinds:
1. Simple or Common (Art. 859) – that
which takes place when the testator
designates one or more persons to
substitute the heirs/s instituted in case
such heir/s should die before him, or
should not wish, or should be
incapacitated to accept the inheritance
2. Brief or Compendious (Art. 860):
Brief – there are two or more persons
designated by the testator to substitute for
only one heir
Compendious – one heir is designated to
take the place of two or more heirs
3. Reciprocal (Art. 861)- when 2 or more
persons are not only instituted as heirs,
but are also designated mutually as
substitute for each other.
4. Fideicommissary (Arts. 863–865)- that
which takes place when the fiduciary or
first heir instituted is entrusted with the
obligation to preserve and transmit to a
second heir, the whole or part of the
inheritance, Limitations:
a. Substitution must not go beyond one
degree from the heir originally
instituted.
Meaning of “one degree”
1st View: One degree means one
generation.
2nd View: One degree means one
transfer.
 Art. 863 follows the 1st
interpretation. The second heir
must be related to and be one
generation from the first heir.
Hence, the fideicommissary can
only be either a child or a parent
of the first heir. (Tolentino, p. 214)
 A fideicommissary substitution is
void if the first heir is not related in
the 1st degree to the second heir
(Ramirez v. Vda. De Ramirez, GR
No. L-27952, February 15, 1982)
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b. Fiduciary and fideicommissary must
be living at the time of the death of the
testator.
c. Substitution must not burden the
legitime of compulsory heirs.
d. Substitution must be made expressly:
i. by giving it the name of a
fideicommisary substitution; or
ii. by imposing upon the fiduciary the
absolute obligation to preserve
and deliver the property to the
fideicommissary
Requisites of Fideicommisary
Substitution:
1. First heir (fiduciary) called to the
succession.
 Not a mere administrator of the
property
 He is recognized as an instituted
heir.
 Although there is no complete
identity between the fiduciary and
a usufructuary, he is commonly
considered as such because
although he can enjoy the
property, he cannot alienate it.
(Tolentino, p. 211)
2. An obligation clearly imposed by the
testator (fideicomitente) upon such
first heir to preserve the property and
to transmit it to the second heir.
 Without the obligation clearly
imposing upon the first heir the
preservation of the property and
its transmission to the second heir,
there is no fideicommissary
substitution (Rabadilla v. CA, GR
No. 113725 June 29, 2000)
3. Second heir (fideicommissary) to
whom the property is transmitted by
the first heir.
Requisites:
a. Must not go beyond one degree
from the heir originally instituted
b. Must be living at the time of the
death of the testator (Tolentino, p.
213)
 The second heir inherits not from
the first heir but from the testator.
VOID SUBSTITUTIONS (Art. 867): (EPIC)
1. Fideicommissary substitutions which are
not made in an express manner.
2. Provisions which contain perpetual
prohibition to alienate, and even a
temporary one.
 The prohibition to alienate is good only
for 20 years, beyond that it is VOID.
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Wills and Succession
3. Those which impose upon the heir the
charge of paying to various persons
successively, beyond the limit in Art. 863,
a certain income or pension.
4. Those which leave to a person the whole
or part of the hereditary property in order
that he may apply or invest the same
according to secret instructions
communicated to him by the testator. (also
called “tacid fideicomisum”)
 The nullity of the fideicommissary
substitution does not prejudice the
validity of the institution of the heirs
first designated; the fideicommissary
clause shall simply be considered as
NOT WRITTEN (Art. 868).
CONDITIONAL, MODAL TESTAMENTARY
DISPOSITIONS,
AND TESTAMENTARY DISPOSITIONS
WITH A TERM
General Rule: The institution of an heir may
be made:
1. Pure or simple
2. Conditionally
3. For a term
4. For a certain purpose or cause (modal).
Note: Conditions, terms, and modes are not
presumed; they must be clearly expressed in
the will. The condition must fairly appear from
the language of the will. Otherwise, It shall be
considered pure.
LIMITATIONS:
1. The testator cannot impose any charge,
burden, encumbrance, condition, or
substitution whatsoever upon the legitime
of the compulsory heirs EXCEPT when the
testator declares that the hereditary estate
shall not be partitioned for a period which
shall not exceed 20 yrs. (Art.870)
2. Sabinean Doctrine – Impossible conditions
and those contrary to law or good customs
are presumed to have been imposed
erroneously or through oversight, thus, are
considered as not imposed (Art. 873).
3. An absolute condition not to contract a first
marriage is always void and will be
considered as not written (Art. 874).
4. An absolute condition not to contract a
subsequent marriage is also void,
UNLESS imposed upon a widow or
widower by the deceased spouse or by the
latter’s ascendants or descendants (Art.
874). Even so, however, the legitime of the
surviving spouse cannot be impaired.
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 HOWEVER, the following relative
conditions regarding marriage have
been considered as valid and binding:
a. Generic condition to contract
marriage;
b. Specific condition to contract
marriage with a determinate
person; and
c. Specific condition not to contract
marriage with a determinate
person.
 An absolute condition not to contract
marriage when validly imposed is
resolutory in character.
5. Any disposition made upon the condition
that the heir shall make some provisions in
his will in favor of the testator or of any
other person shall be void (disposicion
captatoria).
6. Conditions imposed by the testator upon
the heirs shall be governed by the rules
established for conditional obligations in all
matters not provided for by the law on
succession.
CONDITION
Any future and uncertain fact or event the
happening of which a juridical act is made to
depend.
Kinds of Condition:
1. As to the manner of imposition
a. Express – when imposed clearly in the
will
b. Tacit – merely inferred from the will
2. As to the effectivity of dispositions
a. Suspensive - a condition upon the
fulfillment of which successional rights
are acquired
b. Resolutory - a condition upon the
fulfillment of which rights already
acquired are extinguished
3. As to the fulfillment of the conditions
a. Potestative - depends exclusively
upon the will of the heir, devisee, or
legatee, and must be performed by
him personally. It may either be:
i. positive – when it consists of the
doing or giving of something
ii. negative – when it consists of not
doing or giving anything
b. Casual - depends upon chance and/or
upon the will of a third person.
c. Mixed – depends jointly upon the will
of the heir, devisee, or legatee and
upon chance and/or will of a third
person
4. As to the effectiveness of the
conditions
a. Proper – when they may take effect
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b. Improper – when the law does not
allow these conditions to take effect
5. As to mode
a. Positive – consists of the performance
of an act or happening of an event
b. Negative- consists of the non-
performance of an act or non-
happening of an event
6. As to possibility of fulfillment
a. Possible- capable of fulfillment,
physically and legally
b. Impossible- not capable of fulfillment,
physically and legally
Kinds of Term (Art. 885):
1. Suspensive Term
 Rights are suspended until the arrival
of the date or time designated by the
testator.
2. Resolutory Term
 Rights are immediately demandable
but subject to extinguishment upon the
arrival of the date or time designated
by the testator.
Time of Fulfillment (Art. 876-877,879)
1. If the condition is purely potestative
a. For Positive Potestative Condition:
General Rule: the heir must fulfill it as
soon as he learns of the testator’s
death
Exception: when the condition is
already complied with and cannot be
fulfilled again
b. For Negative Potestative Condition:
 The right of the heir, devisee or
legatee does not have to be held
in suspense as in the case of
positive potestative condition.
 The heir, legatee or devisee
acquires his right as a matter of
course without any limitation
other that not doing or not giving
something.
 However, under Art. 879, in order
that such heir, legatee or devisee
shall not perform or give that
which is prohibited, he is required
to give a bond or security known
as “caucion muciana”
 The bond is constituted in favor of
those to whom the property would
pass in the event the testator's
mandate is not complied with.
(Jurado, p.225)
2. If the condition is casual or mixed
 It shall be sufficient if it happens or be
fulfilled at any time before or after the
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death of the testator, UNLESS he had
provided otherwise.
Modal Institution (Institucion Sub Modo)
(Art. 882)
Attachment by the testator to an institution of
heir, or to a devise or legacy, of a statement of
the:
1. Object of the institution;
2. Application of the property left by testator;
or
3. Charge imposed by him.
Note: When in doubt as to whether there is a
condition or merely a mode, consider the
same as a mode.
When in doubt as to whether there is a mode
or merely a suggestion, consider the same
only as a suggestion.
The ‘condition’ suspends but does not
obligate; the ‘mode’ obligates but does not
suspend (for he who inherits with a mode is
already an heir; one who inherits conditionally
is not yet an heir)
Doctrine of Constructive Fulfillment
When without the fault of the heir, an
institucion sub modo cannot take effect in the
exact manner stated by the testator; it shall be
complied with in a manner most analogous to
and in conformity with his wishes (Art. 883).
Note: If the condition is casual, the doctrine is
not applicable since the fulfillment of the event
which constitutes the condition is independent
of the will of the heir, devisee/legatee. If the
condition is potestative or mixed, the doctrine
is applicable.
LEGITIMES
LEGITIMES
LEGITIMESLEGITIMES
THREE PRINCIPAL SYSTEMS OF
DISTRIBUTION OF HEREDITARY
PROPERTY
1. The system of absolute freedom of
disposition
2. The system of total reservation
3. The system of partial reservation—the
inheritance is divided into the free part and
the legitime. The distribution may be
exclusively by law, or exclusively by the
will of the testator, or by law and will (III,
Tolentino, 1992, p.248).
The Civil Code adheres to the system of
Partial Reservation.
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In Default Of The
LEGITIME (Art. 886) Surviving Spouse (SS) Foregoing, Illegitimate
That part of the testator’s property which he Parents Only (IP)
cannot dispose of because the law has Illegitimate Children And
reserved it for certain heirs who are, therefore, Surviving Spouse (SS)
Descendants (ICD)
called compulsory heirs.
Note:
Purpose of Legitime:  The adopted shall be deemed to be a
To protect those heirs for whom the testator is legitimate child of the adopters (Art. 189,
presumed to have an obligation to reserve Family Code, in rel. to Secs. 17 & 18 of
certain portions of his estate from his unjust ire R.A. 8552 or the Domestic Adoption Act of
or weakness or thoughtlessness (III 1998).
Tolentino,1992 p. 250).
 Under the Family Code, there is no more
distinction between acknowledged natural
 The cause of action to enforce a legitime children and illegitimate children. They are
accrues upon the death of the donor– all considered as illegitimate. Thus, the 5:4
decedent since it is only then that the net ratio no longer applies.
estate may be ascertained and on which
basis, the legitime may be determined Rules:
(Imperial v. CA, GR No. 112483 October 1. Direct descending line
8, 1999). a. Rule of preference between lines
b. Rule of proximity
Kinds of Legitime: c. Right of representation ad infinitum in
1. Fixed – The aliquot part of the testator’s case of predecease, incapacity, or
estate to which a certain class of disinheritance (LC: LD only; IC: both
compulsory heirs is entitled by operation of LD and ID)
law is always the same whether they d. If all the LC repudiate their legitime,
survive alone or with other classes of the next generation of LD succeed in
compulsory heirs their own right
2. Variable – The aliquot part changes 2. Direct ascending line
depending upon whether they survive a. Rule of division by lines
alone or with other classes of compulsory b. Rule of equal division
heirs. (Jurado, p. 234) 3. Non–impairment of legitime

COMPULSORY HEIRS (CH) Table of Legitimes

Those for whom the legitime is reserved by
Survivor Legitime Notes
law, and who succeed whether the testator
likes it or not. They cannot be deprived by the
Divide by the # of LC,
testator of their legitime except by
LC ½ whether they survive alone
disinheritance properly effected. or with concurring CH.

Kinds of Compulsory Heirs:  The legitime of the SS

1. Primary – those who have precedence shall be taken only from
over and exclude other CH (e.g. LCD). the free portion (Art.
2. Secondary – those who succeed only in 892)
the absence of the primary CH (e.g. LPA 1 LC ½  In case of legal
or IP). SS ¼ separation, the
3. Concurring – those who succeed surviving spouse may
together with the primary or secondary CH inherit if it was the
(e.g. ICD and SS). deceased who had
given cause for the
same. (Art. 892)
If the Testator is a If the Testator is an
Legitimate Person Illegitimate Person
Legitimate Children And Legitimate Children And 2 or more ½ Divide by the # of LC
Descendants (LCD) Descendants (LCD) LC
In Default Of The
Foregoing, Legitimate Illegitimate Children And SS Same as The legitime of the SS shall
Parents And Ascendants Descendants (ICD) that of be taken from the free
(LPA) each LC portion (Art. 892)

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The legitime of the IC shall Only the parents of IC are

LC ½
be taken from the free IP ¼ included. Grandparents and
IC ½ of 1 LC
portion(Art. 888) SS ¼ other ascendants are
excluded.
 The legitime of the IC
shall be taken form the
free portion provided Legitime of Legitimate Descendants
the total legitime of  Consists of ½ of the hereditary estate of
such IC shall not their legitimate parents or ascendants,
exceed the free portion while the other half is at the latter’s free
LC ½ and that the legitime of disposal subject to the rights of the
SS ¼ the SS must first be illegitimate children and surviving spouse
fully satisfied (Art.
IC ½ of 1 LC (Art. 888).
895[3])
 If there are 2 or more
 Rule of proximity applies where the
LC, the legitime of the relative nearest in degree excludes the
SS is the same as that more distant ones, saving the right of
of each LC and it shall representation (i.e., grandchildren are
be taken form the free excluded by the presence of their parents
portion in the estate of their grandparents).
Whether they survive alone
or with other classes of CH. Legitime of Legitimate Ascendants
LPA ½ Rule applies in default of  Consists of ½ of the hereditary estate of
LCD of decedent, otherwise their children and descendants.
they are excluded.  Are excluded from the succession if they
 The ¼ to which IC is concur with legitimate children or
entitled is taken form descendants
LPA ½ the free portion (Art.
IC ¼ 896) Note: This rule applies even if the LC is an
 The ¼ shall be divided adopted child.
in equal shares among
several IC. Rules of Division (Art. 890):
LPA ½
The legitime of the SS shall 1. The legitime shall be divided between the
be taken from the free LPA equally.
SS ¼
portion 2. If one of the LPA dies, the whole shall
 The legitime of the SS pass to the survivor.
and IC shall be taken 3. If both LPA dies before the testator but:
LPA ½ from the free portion a. Survived by ascendants of equal
SS 1/8
IC ¼  The remaining 1/8 may degree, legitime shall be divided
be freely disposed of by equally between the paternal and
the testator (Art. 899) maternal lines.
Divide equally among the b. Survived by ascendants of different
IC ½ degrees, legitime shall pertain entirely
IC.
The remaining 1/3 shall be to the nearest degree.
SS 1/3
at the free disposal of the
IC 1/3 Legitime of Surviving Spouse
testator (Art. 894)
 Entitled to a legitime the amount of which
 1/3 if marriage is in
articulo mortis and is variable depending upon whether he or
deceased spouse dies she survives alone or concurrently with
within 3 mos. after the other compulsory heirs
SS ½
marriage.
 The remaining 1/2 shall Legitime of Illegitimate Descendants
be at the free disposal  The amount of their legitime is variable
of the testator depending upon whether they inherit alone
The remaining 1/2 shall be or as a class or concurrently with other
IP ½ at the free disposal of the classes of compulsory heirs.
testator
IP excluded Children inherit in the
amounts established in the
Any child it depends foregoing rules.

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The legitime of the surviving spouse and the
illegitimate child shall be taken from the free
portion of the estate. Provided, That:
1. In no case shall the legitime of the
illegitimate child exceed the free portion;
and
2. The legitime of the surviving spouse must
first be fully satisfied (Art. 895, par. 3)
RESERVA TRONCAL (OR RESERVA
EXTRAORDINARIA)
The reservation by virtue of which an
ascendant who inherits from his descendant
any property which the latter may have
acquired by gratuitous title from another
ascendant or a brother or sister, is obliged to
reserve such property for the benefit of
relatives who are within the 3rd degree and
who belong to the line from which such
property came. (Art. 891)
 It constitutes as an exception to both the
system of legitime and the order of
intestate succession.
Purposes:
1. To prevent persons who are strangers to
the family form acquiring, by some chance
or accident, property which otherwise
would have remained with the said family
2. To maintain a separation between the
paternal and maternal lines (III, Tolentino,
p. 270)
Nature:
 The reserva creates a double resolutory
condition to which the right of ownership of
the person obliged to reserve is subjected.
 The resolutory conditions are:
1. The death of the ascendant obliged to
reserve, and
2. Survival at the moment of relatives
within the third degree belonging to
the line from which the property came
(Ibid, p. 271)
Requisites:
1. The property should have been acquired
by operation of law by an ascendant from
his descendant upon the death of the
latter.
2. The property should have been previously
acquired by gratuitous title by the
descendant from another ascendant or
from a brother or sister.
3. The descendant should have died without
any legitimate issue in the direct
descending line who could inherit from
him.
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e.g. Before GF’s death in 1950, he
donated a parcel of land to his grandson,
P, the only child of his deceased son F. P
died in 1960 w/o any heir in the direct
descending line. As a consequence of
which, the land passed to his mother M in
accordance with intestate succession.
Personal Elements:
1. Originator – the ascendant, or brother or
sister from whom the propositus had
acquired the property by gratuitous title
(e.g. donation, remission, testate or
intestate succession);
2. Propositus – the descendant who died
and from whose death the reservista in
turn had acquired the property by
operation of law (e.g. by way of legitime or
intestate succession). The so–called
“arbiter of the fate of the reserva troncal.”
3. Reservista – the ascendant, not
belonging to the line from which the
property came (Justice Vitug) that is the
only compulsory heir and is obliged to
reserve the property.
 Dr. Tolentino is of the view that even if
the reservista and the originator
belong to the same line, there is still
an obligation to reserve.
4. Reservatarios – the relatives of the
propositus within the 3rd degree and who
belong to the line from which the property
came and for whose benefit the
reservation is constituted. They must be
related by blood not only to the propositus
but also to the originator.
 The NCC did not provide for the rules
on how the reservatarios would
succeed to the reservista. However,
the following rules on intestacy have
been consistently applied:
a. Rule of preference between lines
b. Rule of proximity
c. Right of representation
(PROVIDED that the
representative is a relative of the
descendant – propositus within
3rd degree, and that he belongs to
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the line from which the reservable
property came)
d. “Full blood/double share” rule in
Art. 1006
Property Subject to Reservation:
General Rule: Must be the same property
which the reservista had acquired by operation
of law from propositus upon the death of the
latter and which the latter in turn had acquired
by gratuitous title during his lifetime from
another ascendant, brother/sister.
Exception: Substitution of the reservable
property through unavoidable necessity:
(CLAD)
1. Property is consumable
2. Lost/destroyed through the fault of the
reservista
3. Deteriorated through the same cause
4. It has been alienated
Note: If the reservable property consists of a
sum of money and there is no ready cash in
the estate of the reservista when he dies, the
remedy available to the reservatarios is to ask
for the sale of the property belonging to the
estate of the reservista in accordance with our
laws on procedure (collection of a judgment
credit). (Jurado, p. 273)
Reserva Maxima and Minima
Reserva Maxima
 All of the properties which the descendant
had previously acquired by gratuitous title
from another ascendant or from a brother
or sister must be included in the
ascendant's legitime insofar as such
legitime can contain.
 Always followed in Intestate Succession
Reserva Minima (Proportional Reserva)
 All of the property which the descendant
had previously acquired by gratuitous title
from another ascendant or from a brother
or sister must be considered as passing to
the ascendant-reservista partly by
operation of law and partly by force of the
descendant's will.
 Applies in Testate Succession
Illustration: Descendant-propositus instituted
his mother as universal heir. One-half of the
hereditary estate of the descendant had been
previously acquired by gratuitous title from his
father:
1. Reserva maxima: all of the properties
acquired from the father are reservable
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because they can be contained in the
mother’s legitime
2. Reserva minima: one-half of said
properties shall be included in the legitime
of the mother which shall be considered as
reservable, while the other half shall be
included in the free portion. (Jurado, p.
262)
Obligations of Reservista: (SIRA)
1. To secure by mortgage:(a) restitution of
movables not alienated, (b) payment of
damages caused by his fault or
negligence, (c) return of price received for
movables alienated and (d) payment of
value of immovable alienated;
2. To make an inventory of all reservable
property;
3. To annotate in the Registry of Property the
reservable character of all reservable
immovable property; and
4. To appraise value of all reservable
movable property.
Note: A reservatario may dispose of his
expentancy to the reservable property during
pendency of the reserve in its uncertain and
conditional form. If he dies before the
reservista, he has not transmitted anything,
but if he survives such reservista, the
transmission shall become effective.
A will may prevent the constitution of a
reserva. In case of testate succession, only
the legitime passes by operation of law. The
propositus may, by will, opt to give the legitime
of his ascendant without giving to the latter
properties he had acquired by gratuitous title
from another ascendant, or brother or sister. In
such case, a reserva troncal is avoided.
HOWEVER, if the ascendant was not
disentitled in the will to receive such
properties, the reserva minima rule should be
followed.
Causes for Extinguishment of Reserva
Troncal: (P2WARL)
1. Prescription of the right of the
reservatarios, when the reservista holds
the property adversely against them in the
concept of an absolute owner (10 yrs from
the death of the propositus)
2. Death of all relatives of propositus within
the 3rd degree who belong to the line from
which the property came
3. Waiver or renunciation by the
reservatarios;
4. Death of ascendant reservista
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5. Registration by the reservista of the
property as free property under the Land
Registration Act
6. Loss of the reservable property for causes
not due to the fault or negligence of the
reservista.
TRANSMISSIBILITY OF RIGHTS
 The rights of illegitimate children are
transmitted upon their death to their
descendants, whether legitimate or
illegitimate (Art. 902).
But there is no such right in Intestate
Succession (Art. 992 or the Rule of Barrier
between the Legitimate and Illegitimate
Family/ “iron curtain”)
 In the case of legitimate children, the
person/s to whom the right is transmitted
must be legitmate descendants. (Jurado,
p. 302)
Thus:
1. Illegitimate children have no right of
representation with respect to their
legitimate parents.
2. Illegitimate children of illegitimate
parents can represent the latter in the
inheritance of their grandparents’
estate.
Principle of Untouchability of Legitime
The testator cannot deprive his compulsory
heirs of their legitime. Neither can he impose
any burden, encumbrance, condition, or
substitution of any kind whatsoever. (Art. 904)
Exceptions:
1. Valid disinheritance (Art. 915)
2. Reserva Troncal (Art. 891)
3. Family Home (Art. 159, FC)
4. When the testator expressly forbids the
division of the estate but not to exceed 20
years (Art. 1083)
Renunciation or compromise as regards
future legitime between the person owning
it and his compulsory heir is VOID (Art.
905).
1. The rights of the heirs are merely inchoate
because it is only perfected upon the
testator’s DEATH. Hence, there is still
nothing to renounce.
2. No contract maybe entered into w/ respect
to future inheritance except in cases
expressly authorized by law (Art. 1347,
par. 2)
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Effects of Incomplete Legitime (Art. 906)
Art. 906 Art. 854
(Incomplete Legitime) (Preterition)
Heir not entirely Total omission of the
forgotten heir
Less than the portion Total deprivation of
of the legitime legitime
Remedy is to demand Effect is the total
for completion of annulment of the
legitime institution of heirs
 If some heirs are genuinely interested in
that part of their late father’s property
which has been reserved for them in their
capacity as compulsory heirs, then they
should simply exercise their actio ad
supplendam legitimam, or their right of
completion of legitime. Such relief must be
sought during the distribution and partition
stage of a case for settlement of the estate
their father (Gala v. Ellice Agro-Industrial
Corp., GR No. 156819 December 11,
2003.)
Steps in Determining the Legitime of
Compulsory Heirs if there are donations
(Arts. 908–910):
1. Determination of the gross value of the
estate at the time of the death of the
testator;
2. Determination of all debts and charges
which are chargeable against the estate;
 Refers to the pre–existing obligations
of the testator during his lifetime, and
NOT to the charges or burdens which
are created by the testamentary
dispositions found in the will.
3. Determination of the net value of the
estate by deducting all the debts and
charges from the gross value of the estate;
4. Collation or addition of the value of all
donations inter vivos to the net value of
the estate;
5. Determination of the amount of the
legitime from the total thus found;
 Proceeds of an insurance policy
where the beneficiary is a third person
or even a compulsory heir belongs
exclusively to the beneficiary and NOT
to the estate of the insured. Hence,
NOT subject to collation.
6. Imputation of the value of all donations
inter vivos made to compulsory heirs
against their legitime and of the value of all
donations inter vivos made to strangers
against the disposable free portion and
restoration to the hereditary estate if the
donation is inofficious; and
7. Distribution of the residue of the estate in
accordance with the will of the testator
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COLLATION  15T = disposable free portion left out

1. Fictitious mathematical process of adding  10T = legacy to Y to be reduced
the value of the thing donated to the net  20T = total of all legacies in favor of Y
value of the hereditary estate (Art. 908 and Z
and Arts. 1061–1077).
2. Act of charging or imputing such value  = X= = = P7,500
against the legitime of the compulsory heir
to whom the thing was donated (Arts. 6. Hence, Y is entitled to 7,500. using the
1061–1077). same formula, Z is also entitled to 7,500
3. Actual act of restoring to the hereditary for a total of 15T. (Jurado, pp. 322-323)
estate that part of the donation which is
inofficious in order not to impair the DISINHERITANCE
legitime of compulsory heirs.
Act of the testator in depriving a compulsory
REDUCTION OF TESTAMENTARY
heir of his legitime for causes expressly stated
DISPOSITIONS AND DONATIONS (Art. 911)
by law.
The order of preference is as follows:
1. Legitime of compulsory heirs
REQUISITES: (C³UTIE)
2. Donations inter vivos
1. For a cause expressly stated by law;
3. Preferential legacies or devices
2. Cause must be stated in the will itself;
4. All other legacies and devises
3. Cause must be certain and true;
4. Unconditional;
 If after satisfying the legitime of
5. Total;
compulsory heirs, the disposable portion is
6. The heir disinherited must be designated
sufficient to cover donations inter vivos,
in such a manner that there can be no
but not the legacies and devises, the rule
doubt as to his identity; and
is that such legacies and devises will be
7. Effected only through a valid will.
reduced pro rata, after satisfying those
preferential ones.
EFFECTS OF DISINHERITANCE:
1. Deprivation of the compulsory heir who is
Formula for Pro Rata Reduction:
disinherited of any participation in the
Reduced legacy = legacy to be reduced
inheritance including the legitime and free
Disposable Portion total of all legacies
portion.
2. The children/descendants of the person
Application of Articles 908 – 911
disinherited shall take his or her place and
Facts:
shall preserve the rights of compulsory
The net value of the testator’s estate is 40T.
heirs with respect to the legitime.
During his lifetime, he donated to X 10T. In his
3. The disinherited parent shall not have the
will, he bequeathed 10T each to Y and Z. He
usufruct or administration of the property
has a son S. distribute his estate
which constitutes the legitime.
Answer:
IMPERFECT DISINHERITANCE (Art. 918)
1. Collate or add the donation in favor of X to
A disinheritance which does not have one or
the estate. [10T + 40T = 50T]
more of the essential requisites for its validity.
2. Determine the legitime of his compulsory
heir and subtract it to the net value. In this
Effects:
case, S as the son is entitled to ½ of the
1. If testator had made a disposition of the
estate. [50T x ½ = 25T]. Leaving a
entire estate: annulment of the
disposable free portion of 25T. [50T – 25T
testamentary dispositions only in so far as
(legitime) = 25T].
they prejudice the legitime of the person
3. Since, the 10T donation in favor of X can
disinherited; does not affect the
be imputed to the disposable free portion,
dispositions of the testator with respect to
it will not be reduced.
the free portion.
4. However, the amount left out of the
2. If testator did not dispose of the free
disposable portion will only be 15T which
portion: compulsory heir is given all that he
is less than the amount of legacies made
is entitled to receive as if the
in favor of Y and Z. Hence, pro rata
disinheritance has not been made, without
reduction is necessary.
prejudice to lawful dispositions made by
5. 5. Thus, to determine the legacy in favor
the testator in favor of others.
of Y Let X = reduced legacy

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3. Devises, legacies and other testamentary
dispositions shall be valid to such extent
as will not impair the legitime.
Imperfect Disinheritance and Preterition
Distinguished
Imperfect
Preterition
Disinheritance
The person disinherited The person omitted
may be any compulsory must be a compulsory
heir heir in the direct line
Always express Always implied
May be intentional or
Always intentional
unintentional
Effect: Partial annulment Effect: Total annulment
of institution of heirs of institution of heirs
Common Causes for Disinheritance of
Children or Descendants, Parents or
Ascendants, and Spouse: (AFAR)
1. When the heir has been found guilty of an
attempt against the life of the testator,
his/her descendants or ascendants, and
spouse in case of children and parents
Requisites:
a. The disinherited heir must have
committed either attempted or
frustrated parricide.
b. He must have been convicted for said
criminal offense.
Note: If the attempt is made by the
spouse, conviction is NOT necessary
(Jurado, p. 342). If there is no previous
criminal conviction, the attempt, if it is
made against the life of the testator, will
constitute a valid ground for disinheritance
under Art. 919(6); provided all the
requisites for said ground are present.
2. When the heir by fraud, violence,
intimidation, or undue influence causes the
testator to make a will or to change one
already made
3. When the heir has accused the testator of
a crime for which the law prescribes
imprisonment for 6 years or more, if the
accusation has been found groundless
 Accusation either in the capacity of a
complainant or a witness
4. Refusal without justifiable cause to support
the testator who disinherits such heir
Peculiar Causes for Disinheritance
1. Children/Descendants: (C-MAD)
a. Conviction of a crime which carries
with it a penalty of civil interdiction
b. Maltreatment of the testator by word
or deed by the child/descendant
 Must be intentional or voluntary
107
c.When the child/descendant has been
convicted of adultery or concubinage
with the spouse of the testator
 Final judgment of conviction is an
essential requisite.
d. When the child/descendant leads a
dishonorable or disgraceful life (it
includes both male and female
descendants)
2. Parents/Ascendants: (CALA)
a. When the parent/ascendant has been
convicted of adultery or concubinage
with the spouse of the testator
b. When the parents have abandoned
their children or induced their
daughters to live a corrupt or immoral
life, or attempted against their virtue;
c. Loss of parental authority for causes
specified in the Code
 There must be an actual loss.
d. Attempt by one of the parents against
the life of the other, unless there has
been reconciliation between them
3. Spouse:
a. When the spouse has given cause for
legal separation
 Criminal conviction is not a
condition sine qua non. (Jurado,
p. 341)
b. When the spouse has given grounds
for the loss of parental authority
Revocation of Disinheritance:
1. Reconciliation;
2. Subsequent institution of the disinherited
heir; and
3. Nullity of the will which contains the
disinheritance.
 Once disinheritance has been revoked or
rendered ineffectual, it cannot be renewed
except for causes subsequent to the
revocation or based on new grounds.
RECONCILIATION
It is the resumption of genuine cordial
relationship between the testator and the
disinherited heir, approximating that which
prevailed before the testator learned of the
cause for disinheritance, reciprocally
manifested by their actions subsequent to the
act of disinheritance.
 A subsequent reconciliation between the
offender and the offended person deprives
the latter of the right to disinherit and
renders ineffectual any disinheritance that
may have been made (Art. 922).
Note: Mere civility which may characterize
their relationship is not enough.
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In order to be effective, the testator must understood to be in favor of those nearest

pardon the disinherited heir. Such pardon must in degree (Art. 959)
specifically refer to the heir and to the acts  This rule also applies to institution of
causing the disinheritance. The heir must heirs (Jurado, p. 374)
accept the pardon.  The Rule of Proximity is the only rule
that shall be applied, thus, the other
No particular form is required. It may be made rules of intestate succession (e.g. right
expressly or tacitly. of representation, etc) are not
applicable
Where the cause for disinheritance is likewise  Where the testator stated in his will
a ground for unworthiness to succeed, what is that all of his properties not disposed
the effect of a subsequent reconciliation upon of in the will “shall be distributed in
the heir’s capacity to succeed? equal parts to all who are entitled
1. If disinheritance has been made: Rule on thereto”, it was held that Art. 959
reconciliation applies. The disinheritance cannot be applied. The testator, who
becomes ineffective. was a lawyer, by referring to “all who
2. If disinheritance has not been made: Rule are entitled thereto” instead of
on reconciliation does not apply. The heir relatives, clearly intends that the
continues to be incapacitated to succeed properties shall be given to those
unless pardoned by the testator under Art. entitled thereto in accordance with the
1033. The law effects the disinheritance. rules of intestate succession.
Therefore, not only the rule of
RIGHT OF REPRESENTATION IN proximity, but other rules of intestate
DISINHERITANCE succession must be applied (Vda. De
 The children and descendants of the Singson v. De Lim, G.R. No. 48627,
person disinherited shall take his or her February 19, 1943).
place and shall preserve the rights of
compulsory heirs with respect to the Effect on the
Status of Property Given by
legitime (Art. 923) Legacy/
Legacy/Devise
 The disinherited person can be Devise
Belonging to the testator at the
represented only if he is a child or
time of the execution of the will Effective
descendant (III Tolentino, p. 374). until his death
Belonging to the testator at the
LEGACIES AND DEVISEES time of the execution of the will but
Revoked
alienated in favor of a 3rd person
(Art. 957)
PERSONS CHARGED WITH LEGACIES No
AND DEVISES: Belonging to the testator at the revocation.
1. Compulsory heir; time of the execution of the will but There is a
2. Voluntary heir; alienated in favor of the clear intention
3. Legatee or devisee; legatee/devisee gratuitously (Art. to comply with
931). legacy or
4. Estate
devise.
Legatee/devis
If the will is silent as to who shall pay or deliver Belonging to the testator at the ee can
the legacy/devise, time of the execution of the will but demand
a. If there is an administration proceeding, it alienated in favor of the legatee or reimbursemen
constitutes a charge upon the ESTATE. devisee onerously t from the heir
b. If there are NO administration or estate
proceedings, it is a charge upon the heirs Not belonging to the testator at the
(Art. 926 2nd par). time the will is executed but he has
ordered that the thing be acquired Effective
in order that it be given to the
 The legatees/devisees shall be liable for legatee/devisee (Art. 931)
the charge to the extent of the value of the Not belonging to the testator at the
legacy/devise received. time the will is executed and the
 The compulsory heir shall NOT be liable testator erroneously believed that Void
for the charge beyond the disposable the thing pertained to him (Art.
portion given to him. It should not affect 930)
his legitime. Not belonging to the testator at the Effective
 A disposition made in GENERAL TERMS time the will is executed but
afterwards becomes his by
in favor of the testator's relatives shall be

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whatever title (Art. 930). 950 governs; but when there is a conflict
Already belonged to the between compulsory heirs and devisees and
legatee/devisee at the time of the legatees, Art. 911 applies.
execution of the will even though Ineffective
another person may have interest EFFECT OF INEFFECTIVE
therein (Art. 932)
LEGACIES/DEVISES
Already belonged to the legatee or
devisee at the time of the (Art. 956)
execution of the will even though it Ineffective In case of repudiation, revocation or incapacity
may have been subsequently of the legatee or devisee, the legacy/devise
alienated by him (Art. 933) shall be merged with the mass of the
Testator had knowledge that the hereditary estate, except in cases of
Legatee/devis
thing bequeathed belonged to a substitution or accretion.
ee can claim
third person and the
nothing by
legatee/devisee acquired the GROUNDS FOR REVOCATION OF
virtue of the
property gratuitously after the
legacy/devise LEGACIES AND DEVISES (Art. 957 in rel. to
execution of the will (Art. 933)
Art. 830 (1) Revocation by Implication of Law)
Legatee/devis
Testator had knowledge that the 1. Testator transforms the thing bequeathed
ee can
thing bequeathed belonged to a in such a manner that it does not retain
demand
third person and the either the form or the denomination it had.
reimbursemen
legatee/devisee acquired the
t from the heir 2. Testator by any title or for any cause
property by onerous title (Art. 933)
or estate alienates the thing bequeathed, or any
part thereof, it being understood that in the
Art. 911 Art. 950 latter case the legacy or devise shall be
Order of Order of preference: without effect only with respect to the part
preference: (LIPO) (RPSESO) alienated.
Remuneratory L/D 
Legitime of Preferential L/D  EXCEPT: When the thing should again
compulsory heirs; L for support belong to the testator after alienation.
Donations inter vivos L for education 
Preferential legacies L/D of a specific, 3. Thing bequeathed is totally lost during the
or devices determinate thing lifetime of the testator, or after his death
All other legacies or which forms a part of without the fault of the heir/s.
devices pro rata the estate 4. Other causes:
All others pro rata. a. Nullity of the will;
Application: b. Noncompliance with suspensive
1. When the 1. When there are conditions affecting the bequests;
reduction is no compulsory c. Sale of the thing to pay the debts of
necessary to heirs and the the deceased during the settlement of
preserve the entire estate is his estate.
legitime of distributed by the
compulsory heirs testator as Note: List is NOT exclusive.
from impairment legacies or
whether there devises; or LEGAL OR INTESTATE SUCCESSION
are donations 2. When there are
inter vivos or not; compulsory heirs
or but their legitime A mode of transmission mortis causa which
2. When, although, has already been takes place in the absence of the expressed
the legitime has provided for by will of the decedent embodied in a testament.
been preserved the testator and
by the testator there are no CHARACTERISTICS:
himself there are donations inter 1. Conferred by law
donations inter vivos. 2. Takes place only in the absence of the will
vivos. of man as expressed in a testament

Note: In case of reduction in the above cases, BASIS:

the inverse order of payment should be
followed.
When the question of reduction is exclusively
among legatees and devisees themselves, Art
The law has put itself in the place of the
deceased and made what it presumes he
would have done if he had been able to
express his will. It has made the presumed
will of the deceased the basis of intestate

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succession, taking into consideration human
affection or love and blood relationship. (III,
Tolentino, p. 431)
CAUSES OF INTESTACY (Art. 960):
(SWIPER P²AIR)
1. Non–fulfillment of suspensive condition
attached to the institution of heir;
2. If a person dies without a will, or with a
void will, or one which has subsequently
lost its validity;
3. Incapacity of instituted heir;
4. Predecease of the instituted heir;
5. Expiration of term or period of institution;
6. Repudiation by the instituted heir;
7. Partial institution of heir. In such case,
intestacy takes place as to the undisposed
portion (mixed succession);
8. Preterition. Intestacy may be total or
partial depending on whether or not there
are legacies/devises;
9. Absence of an institution of heir;
10. Non–compliance or impossibility of
compliance with the will.
11. Fulfillment of resolutory condition;
Note: In all cases where there has been an
institution of heirs, follow the I.S.R.A.I. order of
Justice Paras:
1. If the Institution fails, Substitution occurs.
2. If there is no substitute, the right of
Representation applies in the direct
descending line to the legitime if the
vacancy is caused by predecease,
incapacity, or disinheritance.
3. The right of Accretion applies to the free
portion when the requisites in Art. 1016
are present.
4. If there is no substitute, and the right of
Representation or Accretion does not
apply, the rules on Intestate succession
shall take over.
RULES:
1. Rule of Preference between lines –
Those in the direct descending line shall
exclude those in the direct ascending and
collateral lines, and those in the direct
ascending line shall, in turn, exclude those
in the collateral line.
2. Rule of Proximity – The relative nearest
in degree excludes the more distant ones,
saving the right of representation when it
properly takes place.
This rule is subject to the rule of
preference between lines.
110
E.g. Although the son and the father of the
decedent are both 1 degree removed from
the latter, the son shall exclude the father.
3. Rule of Representation – It modifies the
Rule of Proximity. The more distant
relatives belonging to the same class as
the person represented are raised to the
place and degree of such person and
acquire the rights which the latter would
have acquired if he were living or if he
could have inherited.
Superior to right of Accretion
4. Rule of Equal Division – Relatives in the
same degree shall inherit in equal shares.
Exceptions:
a. Division in the ascending line
(between paternal and maternal
grandparents);
b. Division among brothers and sisters,
some of whom are of the full and
others of half blood; and
c. Division in cases where the right of
representation takes place.
Note: This rule is subject to the rule of
preference between lines.
5. Rule of Barrier between the legitimate
family and the illegitimate family – The
illegitimate family cannot inherit by
intestate succession from the legitimate
family and vice–versa.
6. Rule of Double Share for full blood
collaterals – When full and half–blood
brothers or sisters, nephews or nieces,
survive, the full blood shall take a portion
in the inheritance double that of the half–
blood.
Note: In case of disposition made under
Art. 959 in general terms in favor of the
testator’s relatives, only rule of proximity
applies (E.g. “to all my relatives”).
RELATIONSHIP (Arts. 963 – 969):
1. Number of generations determines
proximity.
2. Each generation forms a degree.
3. A series of degrees forms a line.
4. A line may be direct or collateral.
a. Direct Line
 Constituted by the series of
degrees among ascendants and
descendants (ascending and
descending).
b. Collateral Line
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 Constituted by the series of  By virtue of this right, the relative nearest

degrees among persons who are in degree does not exclude the more
not ascendants or descendants, remote ones. (Jurado, p. 388)
but who come from a common
ancestor. Characteristics:
5. Full blood 1. A right of subrogation
 same father and mother 2. Exception to the rule on proximity and
 equal division among relatives of the same
 Half blood class and degree
 only one of either parent is the same. 3. Representative is called to the succession
by the law and NOT by the person
6. In adoption, the legal filiation is personal represented
and exists only between the adopter and 4. Representative succeeds the decedent
the adopted. The adopted is deemed a NOT the person represented
legitimate child of the adopter (AP), but
still remains as an intestate heir of his Consequences:
natural parents and other blood relatives. a. Representative must be capable of
succeeding the decedent
INCAPACITY (Art. 968): b. Even if the representative is incapable
General Rule: The share or shares which are of succeeding the person represented,
rendered vacant shall pass to the co-heirs of he can still inherit by right of
the incapacitated heir or heirs by right of representation so long as as he is
accretion. capable of succeeding the decedent
c. Even if the representative had
Exception: If the incapacitated heir happens repudiated his inheritance coming
to be a child or descendant of the decedent from the person represented, he can
and he has children or descendants of his still inherit from the decedent by right
own, then the share which is rendered vacant of representation
by reason of incapacity shall pass to such
children or descendants by right of 5. Takes place when there is vacancy in the
representation. inheritance brought about by predecease,
or incapacity, or disinheritance
REPUDIATION (Art. 968-969): 6. As a general rule, exercised only by the
1. By one or some of the relatives (Art. 968) grandchildren of the decedent (Jurado, pp.
 The general rule as in case of 388-389)
incapacity shall apply.
 The right of representation cannot be Testamentary Intestate
applied, even assuming that the When it takes place
renouncer has children or Compulsory Heir:
Legal Heir:
descendants of his own. 1. Dies before the
testator 1. Dies before the
Reason: An heir who repudiates his testator
inheritance may not be represented. 2. Is unworthy to
succeed 2. Is unworthy to
2. By all of the relatives (Art. 969) succeed
 Those of the following degree shall 3. Is disinherited
inherit in their own right. Effects upon the division of estate
 The inheritance shall be distributed Acquires the right with
Acquires the right with
among them per capita. respect to the ENTIRE
respect to the LEGITIME
LEGAL PORTION
 The right of representation will not
Per stirpes Per stirpes
apply because of the principle that an
heir who repudiates his inheritance
Per stirpes
may not be represented.
Inheritance by group, all those within the group
inheriting in equal shares.
RIGHT OF REPRESENTATION (RR)
(Arts. 970–977):
Representation in Direct Descending Line
 A right created by fiction of law, by virtue of
(Art. 972)
which the representative is raised to the
 Takes place in the direct descending line,
place and degree of the person
but never in the ascending line.
represented, and acquires the rights which
the latter would have if he were living or if
he could have inherited.(At. 970)

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 Takes place in the following cases: 3. ICD and SS

1. children concur with grandchildren, the 4.
latter being the children of other 5.
children who died before the decedent 6.
or who are incapable of succeeding 7.
the decedent
2. all children are dead or are all
incapable of succeeding the decedent
and grandchildren concur with great-
grandchildren, the latter being the
children of other grandchildren who
died before the decedent or who are
incapable of succeeding the decedent
3. all children are dead or are all
incapable of succeeding the decedent
leaving children or descendants of the
same degree
SS and IP
BS/NN and SS
C5 (alone)
State (alone)
In order that the State may take
possession of the property of the
decedent, the procedure for Escheat (Rule
91, Rules of Court) must be observed.
Requisites:
a. The decedent died intestate;
b. He dies seized of real and/or personal
property located in the Philippines;
and
c. He leaves no heir or person entitled to
such real and personal property.

Representation in Collateral Line (Art. 972) Principle of Exclusion

Limitations: The heirs higher in the order of succession
1. The right can be exercised only by excluded those who were lower in that order of
nephews and nieces of the decedent. succession except that when the latter were
2. The right can be exercised by the compulsory heirs they preserved their rights to
nephews or nieces of the decedent if they legitime. (III Tolentino, p. 457)
will concur with at least one brother or
sister of the decedent. Note:
3. The right is possible only in intestate  The order of intestate succession is based
succession. (Jurado, pp. 391-392) both on the principle of exclusion and the
principle of concurrence.
INTESTATE OR LEGAL HEIRS  The principle of exclusion is still applied
Those who are called by law to the succession literally to the case of parents or
either in the absence of a will or of qualified ascendants, collateral relatives, and the
heirs, and who are deemed called based on State.
the presumed will of the decedent.  In the case of others, the principle of
concurrence applies. (Jurado, p. 402)
Regular Order of Succession (Decedent is
a legitimate person): Table of Intestate Shares
1. Legitimate children or descendants (LCD) Survivor Intestate Share
2. Legitimate parents or ascendants (LPA) Any class alone Entire estate
3. Illegitimate children or descendants (ICD) LC
Entire estate excluded
4. Surviving spouse (SS) LP
5. Brothers and sisters, nephews and nieces ½
(BS/NN) ½
1 LC
6. Other collateral relatives within the 5th (Arcenas v. Cinco, G.R.
SS
degree (C5) No. L-29288 November
29, 1976)
7. State
Consider SS as 1 LC,
2 or more LC
and then divide estate
Irregular Order of Succession (Decedent is SS
by total number.
an illegitimate person): LPA ½
1. Legitimate children or descendants (LCD) SS ½
2. Illegitimate children or descendants (ICD) LPA ½
3. Illegitimate parents (IP) SS ¼
4. Surviving spouse (SS) IC ¼
5. Brothers and sisters, nephews and nieces
(BS/NN) ½
IP
6. State ½
SS
(The law is silent. Apply
concurrence theory).
Order of Concurrence SS ½
1. LCD, ICD, and SS BS/NN ½
2. LPA, ICD, and SS 1 LC First, satisfy legitime. If

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estate would be 1. Art. 983 – If illegitimate children survive

insufficient reduction
must be made according
SS to the rules on legitime.
IC The legitimeof LCD and
2. Art. 999 – When the widow/widower
SS shall always be first
satisfied in preference to
the ICD.
First, satisfy legitime. In
case of excess in the
2 or more LC estate distribute such
SS excess in the proportion
IC 1:2:2, in accordance
with the concurrence
theory.
with legitimate children, the shares of the
former shall be in the proportions
prescribed under Art. 895.
survives with legitimate children or their
descendants and illegitimate children or
their descendants.
Reason: Estate is insufficient.
MIXED SUCCESSION OR PARTIAL
INTESTACY

Cardinal Principles of Intestate Succession
(Justice Paras)
1. Even if there is an order of intestate
succession, the Compulsory Heirs (CH)
are never excluded. Right of
Representation (RR) in the collateral line
occurs only in intestate succession; never
in testamentary succession because a
voluntary heir cannot be represented as
provided in Art. 856, par. 1.
2. The intestate shares are either equal to or
greater than the legitime.
3. General Rule: Grandchildren always
inherit by RR, provided representation is
proper.
 Exception: Whenever all the children
repudiate, the grandchildren inherit in their
own right because RR would not be
proper.
4. Nephews and nieces inherit either by RR
or in their Own Right (OR).
a. RR: when they concur with aunts and
uncles (provided that RR is proper)
b. OR: when they do not concur with
aunts and uncles
5. ICD of legitimates cannot represent
because of the barrier, but both the ICD
and LCD of illegitimates can.
6. There can be reserva troncal in intestate
succession.
7. A renouncer can represent, but cannot be
represented.
8. A person who cannot represent a near
relative cannot also represent a relative
farther in degree.
Succession that is effected partly by will and
partly by operation of law.
RULES:
1. The law of legitimes must be brought into
operation in partial intestacy, because the
testamentary dispositions can affect only
the disposable free portion but never the
legitimes.
2. If among the concurring intestate heirs
there are compulsory heirs, whose legal or
intestate portions exceed their respective
legitimes, then the amount of the
testamentary disposition must be
deducted from the disposable free portion,
to be borne by all the intestate heirs in the
proportions that they are entitled to receive
from such disposable free portion as
intestate heirs.
3. If the intestate share of a compulsory heir
is equal to his legitime, then the amount of
the testamentary disposition must be
deducted only from the intestate shares of
the others, in the proportions stated
above.
4. If the testamentary dispositions consume
the entire disposable free portion, then the
intestate heirs who are compulsory heirs
will get only their legitime, and those who
are not compulsory heirs will get nothing.
PROVISIONS COMMON TO
TESTAMENTARY AND INTESTATE
SUCCESSION

Note: RIGHT OF ACCRETION

Compulsory succession takes place in every
succession. Some intestate heirs are also
compulsory heirs.
Hence, there may be instances in legal or
intestate succession where it is necessary to
compute legitimes as provided under the rules
on testamentary succession, and these are:
(Arts. 1015-1023)
When two or more persons are called to the
same inheritance, devise or legacy, the part
assigned to the one who renounces or cannot
receive his share, or who died before testator,
is added or incorporated to that of his co–
heirs, co–devisees, or co–legatees.

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REQUISITES: portion is assigned shall divide it in the same

1. Two or more persons must have been portion that they inherit. (Jurado, p. 468)
called to the same inheritance, legacy or CAPACITY TO SUCCEED BY WILL OR
devise, or to the same portion thereof, pro BY INTESTACY (Arts. 1024-1040)
indiviso; and
2. There must be a vacancy in the
inheritance, legacy or devise (caused by REQUISITES:
predecease, incapacity, repudiation, 1. The heir, legatee/devisee must be living or
nonfulfillment of suspensive condition or in existence at the moment the succession
void or ineffective testamentary opens; and
dispositions). 2. He must not be incapacitated or
disqualified by law to succeed.
Effects of Predecease, Incapacity,
Disinheritance, or Repudiation in both Two Requisites for the Possession of
Testamentary and Intestate Succession Capacity to Succeed:
Testamentary a. General civil capacity of the person,
Intestate whether natural or artificial, according
Cause of Succession
Succession to law; and
Vacancy Legiti Free
(IS)
me Portion b. No incapacity or prohibition to
Predecease 1. RR 1. A 1. RR succeed expressly provided by law
2. IS 2. IS 2. IS
Incapacity 1. RR 1. A 1.RR Kinds of Incapacity to Succeed:
2. IS 2. IS 2.IS 1. Absolute incapacity – incapacitated to
Disinheritanc 1. RR _ _ succeed in any form
e 2. IS
a. Those not living at the time of
Repudiation IS A A
IS IS
death

SUMMARY
1. In testamentary succession:
a. Legitime:
 In case of predecease of an heir,
there is representation if there are
children or descendants; if none,
the others inherit in their own right.
 In case of incapacity, results are
the same as in predecease.
 In case of disinheritance, results
are the same as in predecease.
 In case of repudiation by an heir,
the others inherit in their own right.
b. Disposable free portion:
 Accretion takes place when
requisites are present; but if such
requisites are not present, the
others inherit in their own right.
2. In intestate succession:
 In case of predecease, there is
representation if there are children or
descendants; if none, the others
inherit in their own right.
 In case of incapacity, results are the
same as in predecease.
 In case of repudiation, there is always
accretion (Jurado, p. 470).
Note: Whether the succession is testamentary
or intestate, if the right of accretion takes
place, the heirs to whom the vacant share or
Exceptions:
 Testamentary disposition in favor
of associations for religious,
scientific, cultural, educational, or
charitable purposes (Art. 1026)
 Testamentary disposition in favor
of a church or denomination to
which the testator may belong for
prayers or pious works (Art. 1029)
 Testamentary disposition in favor
of the poor in general. (Art. 1030)
b. Those who cannot be identified –
uncertain persons (Persona
Incierta) (Art. 845)
c. Those who are not permitted by
law to inherit (Art. 1027 par. c)
2. Relative incapacity – by reason of
special relation
A. Based on Undue Influence or Interest:
(P²RAG)
1. Priest who heard the confession of the
testator during his last illness, or the
minister of the gospel who extended
spiritual aid to him during the same
period
 What is essential is that there
must be an imminent or impending
danger of the illness being the last
as far as the testator is concerned
at the time he executed the will.
 The basis of disqualification is the
presumption that at the threshold

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of death the testator becomes an
easy prey to the scheming priest
or minister. (Jurado, p. 484)
2. Physician, surgeon, nurse, health
officer or druggist who took care of the
testator during his last illness
 Not applicable if the one who took
care of the testator is his spouse,
ascendant or descendant
3. Relatives of such priest or minister of
the gospel within the 4th degree, the
church, order, chapter, community,
organization or institution to which
such priest or minister may belong;
4. Attesting witness to the execution of a
will, the spouse, parents or children, or
any one claiming under such witness,
spouse, parents or children
5. Guardian with respect to testamentary
dispositions given by a ward in his
favor before the final accounts of the
guardianship have been approved,
even if the testator should die after the
approval thereof; nevertheless, any
provision made by the ward in favor of
the guardian when the latter is his
ascendant, descendant, brother,
sister, or spouse, shall be valid;
Characteristics:
1. Possible only in testamentary
succession
2. Relative in character
3. Partial in the sense that if the heir who
is incapacitated or disqualified is a
compulsory heir, only the free portion
given to him is affected, but not his
legitime
B. Based on Morality or Public Policy
(Art. 739)
1. Those made in favor of a person with
whom the testator was guilty of
adultery or concubinage at the time of
the making of the will.
 Previous criminal conviction is
NOT NECESSARY.
2. Those made in consideration of a
crime of which both the testator and
the beneficiary have been found guilty.
 Previous criminal conviction is
NECESSARY.
3. Those made in favor of a public officer
or his spouse, descendants and
ascendants, by reason of his public
office
Characteristics:
1. Possible only in testamentary
succession
115
2. Relative in character
3. Partial in the sense that if the heir who
is incapacitated or disqualified is a
compulsory heir, only the free portion
given to him is affected, but not his
legitime
C. Based on Acts of Unworthiness (A4F3P)
1. Parents who have abandoned their
children or induced their daughters to
lead a corrupt or immoral life, or
attempted against their virtue;
2. Any person who has been convicted
of an attempt against the life of the
testator, his/her spouse, descendants
or ascendants;
3. Any person who has accused the
testator of a crime for which the law
prescribes imprisonment for 6 years or
more, if the accusation has been
found groundless;
4. Any person convicted of adultery or
concubinage with the spouse of the
testator;
 The spouse is NOT included. The
only time the guilty spouse shall
NOT inherit is when the offended
spouse act positively either by
securing a decree of legal
separation or by disinheriting him
or her.
5. Any heir of full age who, having
knowledge of the violent death of the
testator, should fail to report it to an
officer of the law within a month,
unless the authorities have already
taken action; this prohibition shall not
apply to cases wherein, according to
law, there is no obligation to make an
accusation;
 Under our law, deaths occasioned
by crime (violent deaths) are
prosecuted de oficio or at the
instance of the government, and
thus no one is required to make
any accusation. (III Tolentino, p.
529)
 In this jurisdiction, there is no
obligation imposed by the law to
make an accusation in such
cases. (Jurado, p. 491)
6. Any person who by fraud, violence,
intimidation, or undue influence should
cause the testator to make a will or to
change one already made;
7. Any person who falsifies or forges a
supposed will of the decedent; and
8. Any person who by the same means
prevents another from making a will,
or from revoking one already made, or
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who supplants, conceals, or alters the TIME TO DETERMINE THE CAPACITY

latter's will. General Rule: At the moment of the death of
the decedent.
Characteristics:
1. Based on offenses committed by the Exceptions:
disqualified person against the 1. Those disqualified under nos. (2), (3) and
decedent which render him unworthy (5) of Art. 1032 = necessary to wait until
to succeed the final judgment is rendered
2. Applicable BOTH in testamentary and 2. Those disqualified under no. (4) of Art.
legal succession. 1032 = necessary to wait for the
3. Relative in character expiration of the month allowed for the
4. Total in the sense that it extends not report
only to the free portion but also to the 3. If the institution of the heirs, legacy or
legitime devise is conditional = time of the
compliance with the condition shall be
D. By Operation of Law considered (Jurado, p. 495)
1. Incapacity of the guilty spouse to
inherit from the innocent spouse if  The action for a declaration of incapacity
there is a decree of legal separation and recovery of the inheritance, devise or
2. Incapacity of illegitimate children and legacy shall be 5 yrs. from the time the
legitimate relatives of the decedent to disqualified person took possession
inherit from each other (Jurado, p. thereof. (Art. 1040)
482)
EFFECT OF INCAPACITY UPON
PARDON OF ACTS OF UNWORTHINESS COMPULSORY HEIRS
 Reconciliation between the testator and 1. Incapacity Based on Undue Influence (Art.
the offender will render the disinheritance 1027) and Morality or Public Policy (Art.
ineffective, and the heir will be restored to 739)
his inheritance. But if the testator has not  Only the free portion given to the heir
made an express disinheritance, then the is affected, but not his legitime
laws on disinheritance cannot operate; the (Jurado, p. 496)
rules on unworthiness must apply, and the 2. Incapacity Based on Act of Unworthiness
capacity of the heir can be restored only (Art. 1032)
by the means of pardon. (III Tolentino, p.  Disqualifies a compulsory heir from
538) succeeding even to his legitime
 Only the decedent himself can erase the a. Testamentary Succession
effects of acts of unworthiness.  Children or descendants of
 Executive clemency, or pardon by the the unworthy child or
President does NOT erase the descendant shall acquire his
unworthiness or incapacity of the heir. (III right to the legitime.
Tolentino, p. 537) b. Intestate Succession
 Children or descendants of
Express and Implied Pardon Distinguished the unworthy child or
Express Implied descendant shall succeed to
Made by the execution Effected when testator the entire share which is
of a document or any makes a will instituting rendered vacant.
writing in which the the unworthy heir with
decedent condones the knowledge of the cause
cause of incapacity of incapacity Note: a and b applies only if the compulsory
Can take place in either Can take place only in heir is a child or descendant of the decedent.
testamentary or testamentary
intestate succession succession
Revoked when the ACCEPTANCE AND REPUDIATION OF
Cannot be revoked testator revokes the will INHERITANCE (Arts. 1041-1057)
or the institution
CHARACTERISTICS (Art. 1041): (VIR)
EFFECT OF PARDON 1. Voluntary and free
The heir is restored to full capacity to succeed 2. Irrevocable, except if there is vitiation of
the decedent, as if the cause of unworthiness consent or an unknown will appears
had never existed. 3. Retroactive

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REQUISITES (Art. 1043): (DR) Tacit acceptance is presumed from certain

1. Certainty of the death of the decedent acts of the heir as:
2. Certainty of the right to the inheritance 1. When heir sells, donates, or assigns his
right.
Acceptance vs. Repudiation: 2. When heir renounces it for the benefit of
1. Acceptance involves the confirmation of one or more heirs.
transmission of successional rights, while 3. When renunciation is in favor of all heirs
Repudiation renders such transmission indiscriminately for consideration
ineffective. 4. Other acts of tacit acceptance:
2. Repudiation is equivalent to an act of a. heir demands partition of the
disposition and alienation. inheritance
3. The publicity required for repudiation is b. heir alienates some objects of the
necessary for the protection of other heirs inheritance
and also of creditors. (Jurado, p. 505) c. acts of preservation or administration
if, through such acts, the title or
Who May Accept or Repudiate capacity of heir has been assumed
Acceptance Repudiation d. Under Art. 1057, failure to signify
Any person acceptance or repudiation within 30
having the free days after an order of distribution by
In general Same
disposal of his the probate court. (Ibid)
property
Minors &
MANNER OF REPUDIATION
Incapacitated
Guardian or 1. Public Instrument (acknowledged before a
(e.g. deaf-
Guardian or legal notary public)
mute who
legal representative 2. Authentic Document (equivalent of an
cannot read
representative WITH judicial
and write, indubitable writing; or a writing whose
authorization
under civil authenticity is admitted or proved)
interdiction 3. By petition presented to the court having
Person jurisdiction over the testamentary or
designated by intestate proceeding. (Jurado, p. 505)
the testator to
Beneficiaries
determine the
If the
beneficiaries
themselves Reason for formality: Law considers that the
beneficiary is once they are act of repudiation is more solemn than the act
and to
the poor determined of acceptance and that repudiation produces
distribute the
(Art. 1044) more violent and disturbing consequences.
property.
In default, the
executor. Heir in two capacities – An heir who is such
If the by will and by law, and he repudiates the
beneficiary is Legal inheritance as a testamentary heir, will be
a corporation, Legal representative considered to have repudiated the inheritance
association, representative WITH judicial
in both capacities. But when an heir repudiates
institution, or authorization
entity as a legal heir, he may later on accept as a
With the With the testamentary heir. (Ibid, p. 507)
Public official
government’s government’s
establishment EFFECT OF ACCEPTANCE AND
approval approval
May accept May repudiate REPUDIATION
Married without her without her General Rule: Irrevocable
woman husband’s husband’s Exceptions:
consent consent 1. If made through any of the causes that
vitiates consent (mistake, violence,
MANNER OF ACCEPTANCE (Art. 1049) intimidation, undue influence and fraud)
1. Express Acceptance – one made in a 2. When an unknown heir will appear
public or private document.
2. Tacit Acceptance – one resulting from acts
by which the intention to accept is COLLATION (Arts. 1061-1077)
necessarily implied or which one would
have no right to do except in the capacity An act of returning or restoring to the common
of an heir mass of the estate, either actually or
fictitiously, any property which a person may
have received from the decedent during the

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latter’s lifetime, but which is understood for
legal purposes as an advance from the
inheritance.
 Every compulsory heir, who succeeds with
other compulsory heirs must bring into the
mass of the estate any property or right
which he may received from the decedent,
during the lifetime of the latter, by way of
donation, or any other gratuitous title, in
order that it may be computed in the
determination of the legitime of each heir,
and in the account of partition (Art. 1061).
OPERATIONS RELATED TO COLLATION:
1. Collation – adding to the mass of the
hereditary estate the value of the donation
or gratuitous disposition
2. Imputing or Charging – crediting the
donation as an advance on the legitime (if
the donee is a compulsory heir) or on the
free portion (if the donee is a stranger)
3. Reduction – determining to what extent
the donation will remain and to what extent
it is excessive or inofficious.
4. Restitution – return or payment of the
excess to the mass of hereditary estate.
PERSONS OBLIGED TO COLLATE:
1. General Rule: Compulsory heirs
Exceptions:
a. When the testator should have so
expressly provided; and
b. When the compulsory heir should
have repudiated his inheritance
 In these cases, the donation shall be
charged to the free portion and not to
the legitime.
2. Grandchildren who survive with their
uncles, aunts, or 1st cousins, and inherit
by right of representation.
Note: Grandchildren may inherit from
grandparent in their own right (i.e. heirs next in
degree) and not by right of representation if
their parent repudiates the inheritance of the
grandparent, as no living person can be
represented except in cases of disinheritance
and incapacity. (In such case grandchildren
are not obliged to bring to collation what their
parent has received gratuitously from their
grandparent)
PERSON NOT OBLIGED TO COLLATE:
Surviving Spouse
Reason: Donations during marriage between
spouses are prohibited; they are completely
void, and so the property donated must be
considered physically, and not only
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numerically, as part of the estate of the donor
spouse.
WHAT TO COLLATE:
1. Any property or right received by
gratuitous title during the testator’s lifetime
2. All that they may have received from the
decedent during his lifetime
3. All that their parents would have brought
to collation if alive
4. Any sums paid by a parent in satisfaction
of the debts of his children, election
expenses, fines, and similar expenses
(Art. 1069)
Note: Only the value of the thing donated shall
be brought to collation. This value must be the
value of the thing at the time of the donation,
even though its just value may not have been
assessed. (Jurado, p. 522)
PROPERTIES NOT SUBJECT TO
COLLATION (2ND CONCEPT):
1. Absolutely no collation (all concepts):
 Expenses for support, education
(elementary and secondary only),
medical attendance, even in
extraordinary illness, apprenticeship,
ordinary equipment, or customary gifts
(Art. 1067).
2. Generally not imputable to legitime:
 Expenses incurred by parents in
giving their children professional,
vocational or other career unless the
parents so provide, or unless they
impair the legitime.
 Wedding gifts by parents and
ascendants consisting of jewelry,
clothing, and outfit except when they
exceed 1/10 of the sum disposable by
will.
 These are imputable to the free
portion.
RULES FOR EQUALIZATION OF SHARES
(ARTS. 1073-1074)
General Rule: Co-heirs shall receive an
equivalent, as much as possible, in property of
the same nature, class and quality.
Exception: If it would be impracticable to give
the co-heirs an equivalent in property and:
1. The property donated was immovable
 Give the co-heirs its equivalent in cash
or securities at the rate of quotation;
and if impossible and impracticable,
sell at public auction as much of the
other property as may be necessary
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Wills and Succession
2. The property donated was movable
 Co-heirs shall only have a right to
select an equivalent of other personal
property of the inheritance at its just
price
PARTITON AND DISTRIBUTION OF
ESTATE (Arts. 1078-1105)
It is the separation, division and assignment of
a thing held in common among those to whom
it may belong. It includes every act which is
intended to put an end to indivision among co–
heirs, and legatees or devisees, although it
should purport to be a sale, exchange,
compromise, or any other transaction. It is not
subject to any form (Art. 1079 & 1082)
KINDS OF PARTITION UNDER THE RULES
OF COURT:
1. Extrajudicial Settlement (Sec. 1, Rule 74)
Requisites:
a. The property must belong to the
estate of the decedent;
b. Decedent died without a will;
c. Decedent has no creditors; and
d. Decedent's heirs are all of age or the
minors are represented by their
judicial or legal representatives
2. Ordinary Action for Partition (Rule 69)
3. Judicial Summary Settlement (Sec. 2,
Rule 74)
 Applies only when the gross value of
the estate does not exceed P10,000.
4. Administration Proceedings (Rules 79-91)
PROHIBITION TO PARTITION:
1. The prohibition to partition for a period not
exceeding 20 years can be imposed on
the legitime.
2. If the prohibition to partition is for more
than 20 years, the excess is void.
3. Even if a prohibition is imposed, the heirs
by mutual agreement can still make the
partition.
WHO MAY EFFECT PARTITION:
1. Decedent himself during his lifetime by an
act inter vivos or by will
2. 3rd person designated by the decedent
3. Heirs themselves
4. Competent court
Partition by Decedent (Art. 1080)
Two Ways:
1. By an act inter vivos (Partition Inter Vivos)
 The rules regarding ordinary
conveyance of personal and real
properties must be followed
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 Constitutes an exception to the rule
declared in the 2nd paragraph of Art.
1347 of the Code that no person can
enter into a contract with respect to
future inheritance.
Note: The testator may still revoke the
partition done by his own act inter vivos
because during such time, that is, before
his death, he is still the owner of the
property.
Rationale: Since succession is a mode of
acquiring ownership, it is only upon the
death of the testator, that the heirs may
acquire ownership of the property
E.g.: Estate of A consists of RTW factory
and cash. A has 3 compulsory heirs X, Y
and Z. A wants the factory to go to X. A
makes a partition "Factory to X. Y and Z
are to get their legitime in cash."
This is valid. Because legitimes are only
values and not specific properties. Also,
the legitimes are not impaired.
 Art. 1080 allows the person to make a
partition. If the partition is by will, it
must be with the formalities on wills. If
the partition is by an act inter vivos,
the partition may be oral or written,
and need not be in the form of a will,
provided the partition does not
prejudice the legitime of the
compulsory heirs.
2. By will (Jurado, p. 528)
 A partition agreement which was
executed pursuant to a will that was
not probated cannot be given effect.
Before any will can have any force or
validity it must be probated—this
cannot be dispensed with and is a
matter of public policy (Rodriguez v.
Rodriguez, GR No. 175720
September 11, 2007.)
Partition by Third Person
(Art. 1081)
What is intrusted or delegated is the power of
partition not the power to distribute the
hereditary estate. The mere power of partition
may be delegated either by an act inter vivos
or by an act mortis causa. (Ibid, p. 529)
Who Can Demand Partition:
1. Compulsory heir;
2. Voluntary heir;
3. Legatee or devisee;
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2010 Centralized Bar Operations
4. Any person who has acquired an interest
in the estate.
WHEN PARTITION CANNOT BE
DEMANDED: (PAPU)
1. When expressly prohibited by the testator
himself for a period not exceeding 20
years;
2. When the co–heirs agreed that the estate
shall not be divided for a period not
exceeding 10 years, renewable for another
10 years;
3. When prohibited by law;
4. When to partition the estate would render
it unserviceable for the use for which it is
intended.
Note: Partition is not itself a mode of acquiring
ownership, nor a title thereto. This partition,
being predicated on succession, necessitates
relationship to the decedent (in case of
intestacy) or a will duly probated (in case of
testacy). A partition inter vivos made in favor of
intestate heirs could be operative.
Dispositions, however, to non–intestate heirs
may suffer an impediment unless based on a
valid will, except perhaps when such
dispositions are intended to take effect during
the life of the testator and the formalities of
donations are properly complied with.
Provisional Partition (Art. 1084)
Requisites:
1. Voluntary heir upon whom some condition
has been imposed (this kind of heir cannot
demand partition until the condition has
been fulfilled);
2. Other co-heir/s demand partition; and
3. Other co-heir/s gave security sufficient to
cover the rights of the conditional/
suspensive heir in case the condition
should be complied with.
The partition will become permanent after:
1. The condition was fulfilled;
2. It is known that the condition has not been
fulfilled or can never be complied with.
Constructive Partition (Art. 1086)
Should a thing be indivisible, or would be
much impaired by its being divided, it may be
adjudicated to one of the heirs, provided he
shall pay the others in cash.
Legal Redemption in Favor of Co–Heirs
(Art. 1088)
Right of legal redemption predicated upon the
fact that the sale made by the co–heir is
effected before the partition of the estate but
after the death of the decedent
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 This pertains to the sale of not mere
specific property but hereditary or
successional rights (Art. 1630)
Requisites:
1. There must be several co–heirs
2. One of them sells his right to a stranger
3. The sale is made before the partition
4. The right of redemption must be exercised
by one or more of the co–heirs w/in 1
month from the time they were notified in
writing by the co–heir vendor
5. The vendee is reimbursed for the price of
the sale
Note: The redemption can be exercised only
by a co-heir (III Tolentino, p. 606).
EFFECTS OF PARTITION (Arts. 1091–1096):
 Confers upon each heir the exclusive
ownership of the property adjudicated.
 After the partition, the co–heirs shall be
reciprocally bound to warrant the title to
(warranty against eviction) and the quality
of (warranty against hidden deffects) each
property adjudicated.
 The obligation of warranty shall cease in
the following cases:
1. When the testator himself has made
the partition unless his intention was
otherwise, but the legitime shall
always remain unimpaired
2. When it has been expressly stipulated
in the agreement of partition, unless
there has been bad faith
3. When the eviction was due to a cause
subsequent to the partition, or has
been caused by the fault of the
distributee of the property
 An action to enforce warranty among co–
heirs must be brought within 10 years from
the date the right of action accrues.
WHEN A CREDIT IS ASSIGNED (Art. 1095)
 The co-heirs are only liable for the
debtor’s insolvency at the time of the
petition (aka warranty of the solvency of
the debtor)
 This warranty prescribes after 5 years
from the date of the partition.
 No warranty for bad debts if such is
known to the distributee.
EFFECTS OF INCLUSION OF INTRUDER IN
PARTITION
1. Between a true heir and several mistaken
heirs – partition is VOID.
2. Between several true heirs and a mistaken
heir – transmission to mistaken heir is
VOID.
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Wills and Succession

3. Through error or mistake, share of true

heir is allotted to mistaken heir – partition
shall not be rescinded unless there is bad
faith or fraud on the part of the other
persons interested, but the latter shall be
proportionately obliged to pay the true heir
of his share

Note: Partition with respect to the

mistaken heir is VOID.

A VOID WILL MAY BE A VALID PARTITION:

1. If the will was in fact a partition; and
2. If the beneficiaries in the void will were
legal heirs.

GROUNDS FOR RESCISSION AND

ANNULMENT OF PARTITION
Same as in contracts
 Rescission – Articles 1381 to 1382.
 Annulment – Art. 1390.
1. Party incapable of giving consent
2. Vitiated consent
a. Mistake
b. Violence
c. Intimidation
d. Undue influence
e. Fraud

Another Ground for Rescission:

Lesion – when anyone of the co-heirs received
a share which is ¼ less than that to which he
is entitled to.
 If the lesion is less than 1/4, rescission will
not lie; the proper action is one for
damages.
 The action for rescission on account of
lesion prescribes after 4 years from judicial
approval of the partition (Art. 1100;
Samson v. Araneta, GR No. 39697, April
5, 1934).

Options for the Sued Heir:

1. Indemnify the plaintiff; or
2. Consent to a new partition.

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