Civil Code of the Philippines
WILLS AND SUCCESSION
These notes are meant to be a mere supplement to
your study of Succession, and it is not meant to be a
substitute for any law book. These were compiled
for review purposes only, and this may serve as a
guide as to how you can study Succession should
you have the good fortune of studying this subject
under Dean Aligada.
This reviewer is based largely on the books of
Justice Eduardo Caguioa and Atty. Ruben Balane,
and the lectures and comments of Dean Aligada
himself.
May this reviewer be of help to you in your exams
in law school and even in the Bar Exams. Feel free to
share this material to others if you wish. May the
Force be with you!
Special thanks to our friends in 3B and 3AA for
helping in producing this work.
JG + KM
3rd Year, 2017-2018
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SUCCESSION
GENERAL PROVISIONS
Art. 774. Succession is a mode of
acquisition by virtue of which the property, rights,
and obligations to the extent of the value of the
inheritance, of a person are transmitted through his
death to another or other either by will or by
operation of law.
Succession; Definition and Concept.–
Under the definition, the law refers to succession as a
mode of acquisition. However, it is not always correct
to say that it is such. It is a mode of acquisition
depending on whose standpoint succession is viewed.
If it is from the standpoint of the heir, then it
is a mode of acquisition. On the other hand, if it is
from the standpoint of the decedent, it is not a mode of
acquisition, but a mode of transmission.
This is because succession has a dual
juridical nature. It is both a mode of acquisition and a
mode of transmission.1 It would depend always on
the parties’ standpoint.
“Extent of the value of the inheritance”.–
Under Art. 1311 of the law on Obligations and
Contracts, the law says that an heir is not liable
beyond the value of the property he received from the
decedent. Art. 1311 is intended to emphasize the
definition of succession.
An heir cannot be made liable beyond the
value of the inheritance. This is because the heir is
1 3 Caguioa 4-5, citing 4 Castan 148
MEESEEKS NOTES ON SUCCESSION
merely entitled to the residual portion of the estate.
He will only get what remains of the estate after the
payment of debts.
Before inheritance is transmitted, all
obligations and debts must be paid first. It means that
the heir cannot be held liable for the debts of the
deceased because the estate will be answerable to all
debts of the deceased.
Can creditors of a debtor-heir participate in the settlement
of the estate of the deceased?
The answer must be qualified.
If the decedent left debts, the creditor cannot
participate. The heirs cannot enter into the inheritance
before the settlement of the estate. Debts must all be
paid before the heirs can enter into the inheritance.
This is to prevent a situation wherein there will be
nothing left for the heir to inherit. (Litonjua v. Montilla,
G.R. L-4170, January 31, 1952)
If, however, the decedent left no debts, the
heirs can immediately enter into the inheritance.
Here, creditors can intervene. They may attach or ask
for the sale of the share of the debtor-heir. (Heirs of
Reganon v. Imperial, G.R. No. L-24434, January 17,
1968; Testate Estate of De Borja v. Vda. De Borja, G.R.
No. L-28040, August 18, 1972)
CASES:
1. Litonjua v. Montilla, G.R. L-4170 (January 31,
1952)
2. Heirs of Reganon v. Imperial, G.R. No. L-24434
(January 17, 1968)
3. Testate Estate of De Borja v. Vda. De Borja, G.R.
No. L-28040 (August 18, 1972)
4. Uson v. Del Rosario, et. al, 92 Phil. 530, G. R.
No. L-4963 (January 29, 1953)
5. Bonilla v. Barcena, G.R. No. L-41715 (June 18,
1976)
Art. 775. In this Title, “decedent” is the
general term applied to the person whose property
is transmitted through succession, whether or not he
left a will. If he left a will, he is also called the
testator.
Parties in Succession.– To know the parties
to succession, one must make a distinction between
testate and intestate succession.
In testate succession, the parties are:
1. Testator; and
2. Heirs, Legatees and/or devisees.
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NOTE: Legatees and devisees can exist only in testate
succession, because under the law a legacy or devise
can only be given through a will.
In intestate succession, the parties are:
1. Decedent; and
2. Heirs.
Definition of Terms.– The testator is a
person who dies in testate succession. He left a will.
The heir is a person who succeeds by
universal title, either by will or by law.
The decedent is a person whose property is
transmitted through succession, whether he left a will
or not.
Legatee or devisee is a person who succeeds
by particular title.
Can a person be an heir, legatee or devisee at the same
time?
YES, he can be. However, it is only possible
in testate succession because, remember, legatees and
devisees only exist in testate succession, never
intestate succession.
Art. 776. The inheritance includes all the
property, rights, and obligations of a person which
are not extinguished by death.
Art. 777. The rights of the succession are
transmitted from the moment of the death of the
decedent.
Inheritance; Concept.– Inheritance is the
bulk of the property which is transmitted to the
successor.2 It is defined by law as all the property,
rights, and obligations of a person which are not
extinguished by death.
It is not the same as patrimony.
Inheritance; Extent of Patrimony.–
Patrimony is the sum total or aggregate of all the
juridical relations of a person susceptible to economic
valuation, whereas inheritance is limited to that
portion of the patrimony of a person which is not
extinguished by death.3
Not all patrimonial properties and relations
of the deceased constitute inheritance. Inheritance
involves only a portion of the patrimony because it
involves those property, rights, and obligations of the
decedent not extinguished by his death.
Patrimony is a broader concept, while
inheritance is more limited.
2 3 Caguioa 9
3 Ibid.
MEESEEKS NOTES ON SUCCESSION
Art. 778. Succession may be:
(1) Testamentary;
(2) Legal or intestate; or
(3) Mixed.
Art. 779. Testamentary succession is that
which results from the designation of an heir, made
in a will executed in the form prescribed by law.
Art. 780. Mixed succession is that effected
partly by will and partly by operation of law.
Art. 781. The inheritance of a person includes
not only the property and the transmissible rights
and obligations existing at the time of his death, but
also those which have accrued thereto since the
opening of the succession.
Definitions of Inheritance.– Under the law,
there are two (2) provisions which define inheritance:
one under Art. 776, and another under Art. 781.
Some authors say that there are two
definitions of inheritance, while some contend that
there is only one. Some say Art. 781 provides for a
broader definition, while some say that Art. 781 does
not define inheritance like Art. 776.
DEAN ALIGADA’S VIEW: Art. 776 is the true
definition of inheritance because it tells us what
inheritance is. Art. 781 merely speaks of accretion,
what accrues to the inheritance after the opening of
succession. Art. 781 is an elaboration of Art. 776.
What is included under Art. 781 cannot even
be considered inheritance, according to Justice Paras.
Accretion under Art. 781 is secured or added to the
inheritance after succession has already taken place.
Inheritance then must not be limited to
property, rights, and obligations not extinguished by
the death of the decedent, but must also include those
that have accrued thereto.
Opening of succession.– Succession is
opened by death. It begins at the exact moment of
death. Death closes the door on life, but opens up
succession.
The moment of death is the determining
point when the heirs acquire the right to the
inheritance whether such rights be pure, conditional,,
or with a term.4 However, this does not mean to say
that the heirs can now enter into succession. The
estate must be settled first.
4 3 Caguioa 17
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WILLS AND SUCCESSION
Death, Concept. – The law contemplates two
(2) kinds of death:
1. Actual death; and
2. Presumptive death.
Art. 390 of the NCC provides that when a
person has been absent for 7 years, the absentee shall
be presumed for all legal purposes as dead, except for
the purposes of succession.
The absentee shall not be presumed dead for
the purpose of opening his succession till after an
absence of ten (10) years. If he disappeared after the
age of 75 years, an absence of five (5) years shall be
sufficient in order that his succession may be opened.
Note: The law merely provides for a presumption of
death, but no presumption as to the time when death
shall have taken place.5
TESTAMENTARY SUCCESSION
WILLS IN GENERAL
Art. 783. A will is an act whereby a person
is permitted, with the formalities prescribed by law,
to control to a certain degree the disposition of this
estate, to take effect after his death.
Will; Definition.– Under Art. 783, a will is
defined as “an act whereby a person is permitted,
with the formalities prescribed by law, to control to a
certain degree the disposition of this estate, to take
effect after his death.”
A will must be in writing. It must be borne
in mind that the right to make a will is a statutory
right and must be subordinate to law and public
policy. (Herreros v. Gil Vda. de Murciano, G.R. L-3362,
March 1, 1951)
Disposition of Property.– A will, to be
considered as such, must contain a disposition of
property or to be more precise, a will to come under
the requirement of a probate must contain a
disposition of property. (Montinola v. Herbosa, 3 C.A.
377)
This disposition of property may be made
directly or indirectly. (Merza v. Porras, 93 Phil. 142)
Art. 784. The making of a will is a strictly
personal act; it cannot be left in whole or in part to
the discretion of a third person, or accomplished
through the instrumentality of an agent or attorney.
5 3 Tolentino 21-22
MEESEEKS NOTES ON SUCCESSION
Characteristics of Wills.– Art. 784 states one
of the characteristics of a will, and that it is a personal
act. However, other characteristics may be found in
the Civil Code, to wit:
1. It is a juridical act mortis causa;
2. Individual, being executed by a single
person;
3. Personal;
4. Free, in that it must not be vitiated by
any vice of consent;
5. Formal, because it must comply with the
formalities prescribed by law; and
6. Revocable.
Note: Characteristics merely refer to form or are mere
descriptions of what a will is. They are not requisites,
since they do not pertain to matters essential to its
validity.
Statutory right.– The right to dispose of
property by will is not natural but statutory, and
statutory requirements should be satisfied. The
formalities which the legislature has prescribed for
the execution of a will are essential to its validity, and
cannot be disregarded. (Herreros v. Gil Vda. de
Murciano supra.)
Meaning of purely personal.– As Art. 784
provides, a will is a strictly personal act and cannot be
left in whole or in part to the discretion of third
persons or through the instrumentality of an agent.
Does this mean that making a will must always be done by
the testator alone?
No.
So does this mean now that the execution of a will can be
delegated?
A distinction must be made. What the law
refers to is the disposition of property, and not to the
mechanical act of writing or drafting of the document.
Thus, execution can be delegated, while the
disposition of property can never be delegated. As to
who does the mechanical act of writing is a matter of
indifference. (Castañeda v. Alemany, 3 Phil. 426)
Note: This applies only to ordinary or notarial wills,
and not to holographic wills. This is because Art. 810
specifically provides that a holographic will be
written, dated, and signed by the testator himself.
Art. 785. The duration or efficacy of the
designation of heirs, devisees or legatees, or the
determination of the portions which they are to take,
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WILLS AND SUCCESSION
when referred to by name, cannot be left to the
discretion of a third person.
Art. 786. The testator may entrust to a third
person the distribution of specific property or sums
of money that he may leave in general to specified
classes or causes, and also the designation of the
persons, institutions or establishments to which
such property or sums are to be given or applied.
Art. 787. The testator may not make a
testamentary disposition in such manner that
another person has to determine whether or not it is
to be operative.
Testamentary Act.– What are the things a
testator cannot do?
The following cannot be left to the discretion
of third persons:
1. The duration of the designation of heirs,
devisees or legatees;
2. The efficacy of the designation;
3. The determination of the portions which
they are to take when referred to by
name.
These three acts are in the substance of the
making of a will as distinguished from a mechanical
act. The testator cannot substitute the mind or will of
another for his own. He should make use of his own
will and this power is not subject to delegation.
What are the things a testator can do?
1. Delegate the mechanical act of writing a
will, in case of ordinary or notarial wills;
and
2. The simple act of delivery of the
testamentary property, but not the
designation as to who is to receive it.
Art. 788. If a testamentary disposition
admits of different interpretations, in case of doubt,
that interpretation by which the disposition is to be
operative shall be preferred.
Art. 789. When there is an imperfect
description, or when no person or property exactly
answers the description, mistakes and omissions
must be corrected, if the error appears from the
context of the will or from extrinsic evidence,
excluding the oral declarations of the testator as to
his intention; and when an uncertainty arises upon
the face of the will, as to the application of any of its
provisions, the testator's intention is to be
ascertained from the words of the will, taking into
MEESEEKS NOTES ON SUCCESSION
consideration the circumstances under which it was
made, excluding such oral declarations.
Art. 790. The words of a will are to be taken
in their ordinary and grammatical sense, unless a
clear intention to use them in another sense can be
gathered, and that other can be ascertained.
Technical words in a will are to be taken in
their technical sense, unless the context clearly
indicates a contrary intention, or unless it
satisfactorily appears that the will was drawn solely
by the testator, and that he was unacquainted with
such technical sense.
Art. 791. The words of a will are to receive
an interpretation which will give to every
expression some effect, rather than one which will
render any of the expressions inoperative; and of
two modes of interpreting a will, that is to be
preferred which will prevent intestacy.
Art. 792. The invalidity of one of several
dispositions contained in a will does not result in
the invalidity of the other dispositions, unless it is
to be presumed that the testator would not have
made such other dispositions if the first invalid
disposition had not been made.
Note: Dean Aligada no longer discussed these
Articles as they were self-explanatory.
Art. 793. Property acquired after the making
of a will shall only pass thereby, as if the testator
had possessed it at the time of making the will,
should it expressly appear by the will that such was
his intention.
Art. 794. Every devise or legacy shall cover
all the interest which the testator could device or
bequeath in the property disposed of, unless it
clearly appears from the will that he intended to
convey a less interest.
Amount of interest which is deemed
conveyed.– A devise is a disposition by will of real
property; while a legacy is a disposition by will of
personal property.
A devise or legacy shall include all the
interest which the testator could devise or bequeath in
the property disposed of by will, the presumption
being that the testator wills the whole interest unless
it clearly appears another interest is conveyed in the
will itself.6
Art. 795. The validity of a will as to its form
depends upon the observance of the law in force at
the time it is made.
6 3 Caguioa 36
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WILLS AND SUCCESSION
Extrinsic validity of a will.– The extrinsic
validity of a will concerns itself with the forms and
solemnities which the law prescribes.
Intrinsic validity of a will.– Intrinsic
validity of a will concerns itself with the following:
1. The order of succession;
2. Amount of successional rights; and
3. Validity of testamentary provisions.
Validity; Governing laws.–
What law will govern the validity of wills?
The answer must be qualified. One must first
make a distinction between extrinsic validity and
intrinsic validity.
If it is extrinsic, the law in effect at the time
of the execution of will shall govern (Art. 795;
Enriquez v. Abadia, 95 Phil. 627).
If it is intrinsic, the law in effect at the time of
the death of the testator will govern.
The subsequent enactment of a law
invalidating an otherwise validly executed will before
such enactment cannot affect the validity of that will.
The same is true for the opposite. A subsequent
enactment of law validating an otherwise invalid will
cannot validate that will.
Rule as to intention.– The rule which states
that the intention of the testator governs the validity
of the will applies only to interpretation, not to the
form of the will because what governs the form is the
law itself.
Note: Always distinguish between an ordinary will
and a notarial will. Ordinary wills are those executed
during the effectivity of the Code of Civil Procedure.
TESTAMENTARY CAPACITY AND INTENT
Art. 796. All persons who are not expressly
prohibited by law may make a will. (662)
Testamentary capacity and Testamentary
power; Definition.– Testamentary capacity is the
power of the testator to execute a will provided he
complies with the formalities prescribed by the law.
Testamentary power is the power of the
testator to dispose of his property by acts mortis causa.
When does testamentary capacity apply?
It applies when one makes a will.
When does testamentary power apply?
It applies upon the death of the person who
made a will.
MEESEEKS NOTES ON SUCCESSION
Art. 797. Persons of either sex under
eighteen years of age cannot make a will. (n)
Art. 798. In order to make a will it is
essential that the testator be of sound mind at the
time of its execution. (n)
Art. 799. To be of sound mind, 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 the testator was able
at the time of making the will to know the nature of
the estate to be disposed of, the proper objects of his
bounty, and the character of the testamentary act. (n)
Qualifications of a testator.– Articles 796-
799 provide for the qualifications of a testator, to wit:
1. Must not have been expressly
disqualified by law (Art. 796);
2. Must not be under 18 years of age (Art.
797);
3. Must be of sound mind (Art. 798);
4. Must be know the nature of the estate to
be disposed of, the proper objects of his
bounty, and the character of the
testamentary act (Art. 799); and
5. Must be a natural person.
Testator; natural person.– A testator must be
a natural person in order to be able to make a will,
because juridical persons do not possess soundness of
mind. However, juridical persons may be designated
as legatees or devisees, but never as heirs.7
Age requirement.– The law expressly
provides that persons below the age of 18 cannot
make a will.
Does this mean that a minor cannot make a will?
The answer must be qualified.
If the will was made during the time when
the age of majority was 21 years old, then yes, a minor
may make a will so long as he is at least 18 years of
age.
Presently, minors cannot be allowed to make
a will because the age of majority is now 18 years of
age by virtue of R.A. 6809, or what Dean Aligada
refers to as the “Lina Law.”
Art. 800. The law presumes that every
person is of sound mind, in the absence of proof to
the contrary.
7 3 Tolentino 46
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The burden of proof that the testator was
not of sound mind at the time of making his
dispositions is on the person who opposes the
probate of the will; but if the testator, one month, or
less, before making his will was publicly known to
be insane, the person who maintains the validity of
the will must prove that the testator made it during a
lucid interval. (n)
Art. 801. Supervening incapacity does not
invalidate an effective will, nor is the will of an
incapable validated by the supervening of capacity.
Art. 802. A married woman may make a will
without the consent of her husband, and without the
authority of the court. (n)
Sound mind; definition.– When we speak of
soundness of the mind, 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. (Art. 799, par. 1)
Soundness of the mind comprehends 3
things:
1. The testator must know the nature of the
estate to be disposed of;
2. The proper objects of his bounty; and
3. The character of the testamentary act.
If the above elements are present, the testator
is of sound mind.
Art. 800 makes a rebuttable presumption in
favour of a sound mind. This presumption begins
from the birth of a person.
Presumption of unsoundness of the mind.–
While Art. 800 generally presumes soundness of the
mind, it also presumes unsoundness of the mind.
(Art. 800, par. 2)
When is unsoundness of mind presumed by law?
Unsoundness of the mind is presumed in 2 instances:
1. If the testator, one month, or less, before
making his will was publicly known to
be insane (Art. 800, par. 2); and
2. Whenever a will has been executed by a
person under guardianship for insanity
(Torres v. Lopez, 48 Phil. 772).
Note: Mere guardianship does not give rise to this
presumption. The reason for the guardianship must
be insanity for this presumption to take effect.
Supervening incapacity or capacity.–
Although Art. 801 says that supervening incapacity
does not affect the validity of a will, a further
qualification must be made with respect to this topic.
MEESEEKS NOTES ON SUCCESSION
If the supervening incapacity is temporary in
character, then it will have no effect on the validity of
the will.
If the supervening incapacity is permanent,
then, in this instance, it will affect the validity of the
will.
Art. 803. A married woman may dispose by
will of all her separate property as well as her share
of the conjugal partnership or absolute community
property.
FORMS OF WILLS
ORDINARY OR NOTARIAL WILLS
Art. 804. Every will must be in writing and
executed in a language or dialect known to the
testator.
Art. 805. Every will, other than a
holographic will, must be subscribed at the end
thereof by the testator himself or by the testator's
name written by some other person in his presence,
and by his express direction, and attested and
subscribed by three or more credible witnesses in
the presence of the testator and of one another.
The testator or the person requested by him
to write his name and the instrumental witnesses of
the will, shall also sign, as aforesaid, each and every
page thereof, except the last, on the left margin, and
all the pages shall be numbered correlatively in
letters placed on the upper part of each page.
The attestation shall state the number of
pages used upon which the will is written, and 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, and that the latter
witnessed and signed the will and all the pages
thereof in the presence of the testator and of one
another.
If the attestation clause is in a language not
known to the witnesses, it shall be interpreted to
them.
Art. 806. Every will must be acknowledged
before a notary public by the testator and the
witnesses. The notary public shall not be required to
retain a copy of the will, or file another with the
office of the Clerk of Court.
Form.– A will must be:
1. In writing; and
2. In a language or dialect known to the
testator. (Art. 804)
These requirements apply to both ordinary
or notarial wills and holographic wills.
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This means that there can be no oral will,
and that it cannot be in a language or dialect
unknown to the testator.
Note: Art. 805 must be memorized. If any of the
requirements are missing, the will becomes null and
void. Even a slight departure from Art. 805 could
mean the disallowance of the will. (See Abangan v.
Abangan, 40 Phil. 476, 1919)
Language or dialect known to the testator.–
Is a will translated from a language or dialect unknown to
the testator be considered valid?
No, because the law does not allow the
translation of the will. Translations are only allowed
in Attestation Clauses. (Art. 805, par. 4)
The act of translating and/or interpreting the
will for the testator will not cure the defect so as to
make the will valid.
Therefore, the answer must be qualified:
Insofar as the translating of the body of the
will is concerned, Art. 804 will apply. It will be void.
Insofar as the attestation clause is concerned,
Art. 805, par. 4 will apply. It will validate the will. The
testator has nothing to do with the attestation clause.8
Requisites of a valid will.– To know the
requisites of a valid will, one must first make a
distinction. It must be ascertained whether it is an
ordinary or notarial will or a holographic will.
Distinguish first because the requisites are
not the same for both kinds of wills.
Ordinary or Notarial Wills; Requisites.–
The requisites are as follows:
1. It must be in writing; (Art. 804)
2. It must be in a language or dialect known to
the testator; (Art. 804)
3. Subscribed at the end by the testator himself
or by the testator's name written by some
other person in his presence, and by his
express direction; (Art. 805, par. 1)
4. Attested and subscribed by three or more
credible witnesses in the presence of the
testator and of one another; (Art. 805, par. 1)
5. The testator or the person requested by him
to write his name and the instrumental
witnesses of the will shall sign each and
every page thereof, except the last, on the left
margin; (Art. 805, par. 2)
8 3 Caguioa 76
MEESEEKS NOTES ON SUCCESSION
6. Numbered correlatively in letters placed on
the upper part of each page; (Art. 805, par. 2)
7. Must contain an attestation clause (Art. 805,
par. 3); and
8. Acknowledged before a notary public by the
testator and the attesting witnesses. (Art.
806)
Distinction between ordinary and notarial
wills.– What sets an ordinary will apart from a
notarial will is the absence of acknowledgment.
An ordinary will does not require
acknowledgment before a notary public, and is
governed by the Code of Civil Procedure.
A notarial will requires acknowledgment
before a notary public, and is governed by the Civil
Code.
Holographic Wills; Requisites.– It must be
written, dated, and signed by the testator himself.
(Art. 810)
It needs no further formalities.
Subscription and Attestation.– When a
testator subscribes his will, he should sign it in his
usual way of signing, provided that he knows how to
write.
If the testator knows how to write, and he
signs it with a mark which is not the usual way he
signs, the will is considered invalid. (Matias v. Salud,
104 Phil. 1046, G.R. No. L-10751, June 23, 1958; Garcia
v. La Cuesta, 90 Phil. 489, G.R. No. L-4067, November
29, 1951)
If he does not know how to write, he may either:
1. Sign by any mark; or
2. Ask a third person under his express
direction to sign for him in his presence
and in the presence of the witnesses.
Is the signature of the third person who signed for the
testator necessary for the will to be valid?
No, it is not. Only the signature of the
testator is necessary. (Barut v. Cabacungan, 21 Phil. 461,
1912)
Can a witness sign for the testator?
Yes, a witness can be made to sign for the
testator provided that there are 3 other remaining
witnesses to the will.
Signing every page.– The law requires that
the will be signed by the testator or the person
requested by him to write his name and the
instrumental witnesses of the will each and every
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 Civil Code of the Philippines
WILLS AND SUCCESSION
page thereof, except the last, on the left margin. It
must be complied with.
However, where one page of the original of
the will was not signed by the testatrix and the
duplicate copy contains such signature, it may be
allowed. (Icasiano v. Icasiano, 11 SCRA 422, G.R. No. L-
18979, June 30, 1964)
Witnesses.– The law requires at least three
(3) credible witnesses. A witness’ credibility depends
on the appreciation of his testimony and arises from
the belief and conclusion of the Court that said
witness is telling the truth. (Gonzales v. Court of
Appeals, 90 SCRA 183, May 25, 1979) Simply put, a
credible witness is one who is capable of being
believed.
Witnesses; Credible and Competent.– A
credible witness is not the same as a competent
witness. The credibility of a witness depends on the
appreciation of his testimony and arises from the
belief and conclusion of the Court that said witness is
telling the truth, whereas his competency to be an
instrumental witness is determined by the statute,
Art. 820 and 821. (Ibid.)
A credible witness is one who is capable of
being believed by the court, while a competent
witness is one who possesses the qualifications
required by law.
Being a competent witness does not
automatically make one a credible witness, because it
is still up to the court whether or not to believe his
testimony.
Attestation Clause.– By the attestation
clause it is meant that clause wherein the witnesses
certify that the instrument has been executed before
them, and the manner of execution of the same.
This is a mandatory requirement of the law.
Lack of it will invalidate the will.
Purpose of the Attestation Clause.– It is
made to preserve in permanent form a record of facts
attending the execution of the will, so that in case of
failure of the memory of the subscribing witnesses or
other casualty, they may still be proved.
Where must the attestation clause be placed?
It can be placed anywhere in the will. So
long as the will has an attestation clause, the place
where it is put is immaterial. The attestation clause
may even be placed on a separate instrument,
provided that it is attached to the will.
MEESEEKS NOTES ON SUCCESSION
The reason for this is that the testator is not a
party to the attestation clause.
Requirements of the Attestation Clause.–
The attestation clause must state the following:
1. The number of pages upon which the
will is written;
2. The fact that the will and every page
thereof was signed by the testator, or
caused some other person to write his
name under his express direction, in the
present of the instrumental witnesses;
3. The instrumental witnesses witnessed
and signed the will and all the pages
thereof in the presence of the testator
and of one another.
It must be signed by the witnesses at the end
of the attestation clause. Failure on the part of the
witnesses to sign at the bottom of the attestation
clause is a fatal defect, which will cause the
disallowance of the will. (Cagro v. Cagro, 92 Phil. 1032)
DEAN ALIGADA’S VIEW: There is more wisdom in
the dissenting opinion of the Court in Cagro than in
the majority decision.
The dissenting opinion in Cagro submits that
nowhere in the Civil Code is it stated that the
witnesses must sign at the bottom or end of the
attestation clause. In fact, the law does not say where
the witnesses should sign the attestation clause. So it
is not correct to say that the witnesses’ act of signing
the attestation clause on the left margin is not good.
Language of the Attestation Clause.– It need
not be in a language or dialect known to the testator
because, as mentioned before, the testator has nothing
to do with the attestation clause since that is a
statement of the witnesses.
It is also submitted that it need not be in the
same language or dialect of the will itself because the
law does not impose such a requirement.9
It also need not be in a language or dialect
known to the attesting witnesses because the law
allows its translation.
Acknowledgement before a notary public.–
The law requires that ordinary or notarial wills be
acknowledged before a notary public. There is no
such requirement for holographic wills.
Who must acknowledge the will before a notary public?
1. The testator;
9 3 Caguioa 76
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 Civil Code of the Philippines
WILLS AND SUCCESSION
2. The person requested by the testator to
sign for him in his presence and by his
express direction (if any); and
3. The witnesses.
Acknowledgement before a notary public is a
mandatory requirement and must be complied with, or
else the will shall be disallowed. Where no one made
the acknowledgement, the will is invalid. (In Re: Testate
Estate of Vicente G. Alberto, G.R. L-11948, 1959)
The acknowledgement cannot be made by the
testator alone. He must be accompanied by the
instrumental witnesses. (Garcia v. Gatchalian, 21 SCRA
1056)
A notary cannot be a witness to a will where
he was the notary before whom the acknowledgement
was made, because he cannot acknowledge himself.
(Cruz v. Villasor, 54 SCRA 33)
Art. 807. If the testator be deaf, or a deaf-
mute, he must personally read the will, if able to do
so; otherwise, he shall designate two persons to read
it and communicate to him, in some practicable
manner, the contents thereof. (n)
Art. 808. If the testator is blind, the will
shall be read to him twice; once, by one of the
subscribing witnesses, and again, by the notary
public before whom the will is acknowledged. (n)
Reading of the Will.– As a general rule, the
witnesses to a will need not read the will, however
they must know that what they are signing is in fact a
will.
This rule admits 2 exceptions, namely Art.
807 and 808. These are the only instances where
witnesses are required to read the will. It must also be
done in compliance with the abovementioned
Articles.
Art. 809. In the absence of bad faith,
forgery, or fraud, or undue and improper pressure
and influence, defects and imperfections in the form
of attestation or in the language used therein shall
not render the will invalid if it is proved that the
will was in fact executed and attested in substantial
compliance with all the requirements of Art. 805. (n)
HOLOGRAPHIC WILLS
Art. 810. A person may execute a
holographic will which must be entirely written,
dated, and signed by the hand of the testator
himself. It is subject to no other form, and may be
made in or out of the Philippines, and need not be
witnessed.
MEESEEKS NOTES ON SUCCESSION
Holographic Wills; Requisites.– It must be
written, dated, and signed by the hand of the testator
himself. (Art. 810)
It needs no further formalities and it may be
made within or without of the Philippines.
While Art. 810 speaks of the requisites of a
holographic will, it must be correlated with Art. 804,
which imposes an additional requirement – that it is
written in a language or dialect known to the testator.
Notice that Art. 804 does not make a distinction
between an ordinary or notarial will and a
holographic will. It only speaks of a will.
Writing of a holographic will.– It must be
written by the testator himself. In holographic wills,
even the mechanical act of writing cannot be delegate
by the testator to a third person.
Dating of a holographic will.– The date of a
holographic will can be placed anywhere in the will.
It must be noticed that dating is a
requirement of holographic wills and not of ordinary
or notarial wills. The reason for this is that
holographic wills are not witnessed, so the date
placed in the instrument would be material in
determining whether or not the testator possesses
testamentary capacity at the time the holographic will
was made.
No such requirement exists in ordinary or
notarial wills because witnesses who can testify as to
the testator’s testamentary capacity are available.
Must a holographic will be completed in one sitting?
No, it need not be. However, it must be
dated and signed on the same day in order to be in
compliance with Art. 810.
What is the status of a holographic will where the date was
placed before the disposition?
It is VOID. The dating and the signing must
be made on the same day.
What if the testamentary disposition was written down but
the date was put in the will later?
It will validate the will because of the
express provision of Art. 813.
All requisites must concur for the will to be
valid. Absent one of these the will is not valid yet.
How should it be dated.– As a general rule,
the date in a holographic will should include the date,
month, and year (dd/mm/yy) of the execution.
However, the exception applies when there
is absence of appearance of fraud, bad faith, undue
influence, and pressure and the authenticity of the
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WILLS AND SUCCESSION
will is established and the only issue is compliance
with Art. 810. Here, the will should be allowed under
the principle of substantial compliance. (Roxas v. De
Jesus, 134 SCRA 245, 1985) The court here will be
liberal to prevent intestacy.
Note: The exception laid down in Roxas applies only
when the will is not contested. Remember, the object
of solemnities surrounding the execution of wills is to
close the door on bad faith and fraud.
Art. 811. In the probate of a holographic
will, it shall be necessary that at least one witness
who knows the handwriting and signature of the
testator explicitly declare that the will and the
signature are in the handwriting of the testator. If
the will is contested, at least three of such witnesses
shall be required.
In the absence of any competent witness
referred to in the preceding paragraph, and if the
court deem it necessary, expert testimony may be
resorted to. (619a)
Probate of a holographic will.– To probate a
will means to prove that the instrument offered is the
last will and testament of a deceased person who
testamentary capacity it is alleged to be and (a) that it
has been executed in accordance with law and (b) that
the testator was of sound and disposing mind.10
It is concerned with the allowance or
disallowance of a will. It settles once and for all the
capacity of the testator and the compliance with the
requisites of law.
Suppose there was no evidence presented as to the
soundness of the testator’s mind. Should the will be
admitted for probate?
Yes, because there need not be any evidence
as to the soundness of the mind of the testator. The
law presumes soundness of the mind. (Art. 800)
Would the answer be the same if it was the due execution of
the will which was not proven?
No, because noncompliance with the
requirements of law on the formalities of a will shall
result in its disallowance.
Probate of a lost holographic will.–
Can a lost or destroyed holographic will be admitted for
probate, where only testimonial evidence was offered?
No. If no will is presented and only
testimonies of those who have seen or read the said
will are presented, then it cannot be admitted for
probate. The execution and contents of a lost or
destroyed holographic will may not be proved by the
10 3 Caguioa 125
MEESEEKS NOTES ON SUCCESSION
bare testimony of the witnesses who have seen
and/or read it. The law regards the document itself as
material proof of authenticity. (Gan v. Yap, 104 Phil.
509, 1958)
Note: In Gan, attention must be directed to Footnote 8
of the Decision.
What if a xerox copy of the holographic will was submitted?
Will it be admitted for probate?
Yes. The photostatic or xerox copy of a lost
or destroyed holographic will may be admitted
because then the authenticity of the handwriting of
the deceased can be determined by the probate court.
(Rodelas v. Aranza, 119 SCRA 16, 1982)
Note: The basis of the Court’s decision in Rodelas was
based on footnote 8 of Gan. However, it does not
mean to say that this doctrine was laid down in Gan
since the footnote is not part of the decision. It was
only in Rodelas that this doctrine was laid down by the
Supreme Court.
Witnesses required.– They are as follows:
If the holographic will is uncontested, at least
one (1) witness is required. (Art. 811, par. 1)
If the holographic will is contested, at least
three (3) witnesses are required. (Art. 811, par. 1)
In the absences of any competent witness,
expert testimony may be resorted to. (Art. 811, par. 2)
Number of witnesses; mandatory.– In the
case of Azaola v. Singson (109 Phil. 102, 1960), the
Supreme Court, speaking through Justice J.B.L. Reyes,
said that Art. 811 is merely permissive if absurd
results are to be avoided.
This ruling was reversed in Codoy v. Calugay
(312 SCRA 333, 1999). Here, the Supreme Court,
speaking through Justice Pardo, said that Art. 811 is
mandatory because it uses the word “shall,” may the
holographic will be contested or uncontested.
Art. 812. In holographic wills, the
dispositions of the testator written below his
signature must be dated and signed by him in order
to make them valid as testamentary dispositions. (n)
Art. 813. When a number of dispositions
appearing in a holographic will are signed without
being dated, and the last disposition has a signature
and a date, such date validates the dispositions
preceding it, whatever be the time of prior
dispositions. (n)
Refer to the discussion under Art. 810.
Art. 814. In case of any insertion,
cancellation, erasure or alteration in a holographic
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WILLS AND SUCCESSION

will, the testator must authenticate the same by his Will executed abroad; governing law.- To
full signature. (n) determine the law that must be followed in case of a
will executed abroad, first distinguish who executed
Changes in a holographic will.– If
it.
subsequent to the making of a holographic will, the
testator should make insertion, cancellation, If he is a Filipino:
alteration, or erasure in the will, the same is not valid
1. The law of the place where the will was
unless they are authenticated by the full signature of
the testator. executed; and

If insertions, cancellations, alterations, or erasures are not 2. Philippine Law

authenticated by the testator, does that make the will void?
It depends.
The will itself remains valid; what is void are
the unauthenticated insertions, cancellations,
erasures, or alterations.11
However, should the alterations or insertions
affect the essence of the will of the testator then the
whole will is void. Likewise, should it affect the date
or signature, the validity of the will is affected if the
same is not authenticated.12
Full signature.– Full signature does not
mean that the testator must sign his full name. What
is meant is customarily the full signature of the
testator even though the first name may only be
initial.
Full signature precludes signing of mere
initials. While a testatrix may have had a change of
heart, the will must be disallowed because the
alteration was not authenticated in accordance with
law because she did not sign in the usual way she
signs, instead she signed using mere initials. (Kalaw v.
Relova, 132 SCRA 237, 1984)
Art. 815. When a Filipino is in a foreign
country, he is authorized to make a will in any of the
forms established by the law of the country in which
he may be. Such will may be probated in the
Philippines. (n)
Art. 816. The will of an alien who is abroad
produces effect in the Philippines if made with the
formalities prescribed by the law of the place in
which he resides, or according to the formalities
observed in his country, or in conformity with those
which this Code prescribes. (n)
Art. 817. A will made in the Philippines by
a citizen or subject of another country, which is
executed in accordance with the law of the country
of which he is a citizen or subject, and which might
be proved and allowed by the law of his own
country, shall have the same effect as if executed
according to the laws of the Philippines. (n)
11 3 Caguioa 90
12 Ibid.
If he is an alien:
1. The law of the place where the will was
executed;
2. The law of the place where he resides;
3. The law of his nationality; and
4. If he is in the Philippines, in accordance
with Philippine Law
If a Filipino executed his ordinary will abroad, must he
comply with Philippine Law?
No, he need not to, provided he executed it
in accordance with the law of the place where it was
executed. Thus, he need not comply with the domicile
requirement of the 3 witnesses to his ordinary will.
However, if he executed it in accordance
with Philippine Laws, such law must be followed.
NOTE: These rules are applicable only to the extrinsic
or formal validity of a will.
Art. 818. Two or more persons cannot make
a will jointly, or in the same instrument, either for
their reciprocal benefit or for the benefit of a third
person. (669)
Art. 819. Wills, prohibited by the preceding
Article, executed by Filipinos in a foreign country
shall not be valid in the Philippines, even though
authorized by the laws of the country where they
may have been executed. (733a)
WITNESSES TO WILLS
Art. 820. Any person of sound mind and of
the age of eighteen years or more, and not blind,
deaf or dumb, and able to read and write, may be a
witness to the execution of a will mentioned in
article 805 of this Code. (n)
Art. 821. The following are disqualified
from being witnesses to a will:
(1) Any person not domiciled in the
Philippines;

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 Civil Code of the Philippines
WILLS AND SUCCESSION
(2) Those who have been convicted of
falsification of a document, perjury or false
testimony. (n)
Qualifications of witnesses.-
1. Must be at least 18 years of age;
2. Must be of sound mind;
3. Must be able to read and write;
4. Must not be blind, deaf or dumb;
Disqualifications of witnesses.-
5. Must not be convicted of falsification of
a document, perjury or false testimony;
and,
6. Must be domiciled in the Philippines.
NOTE: It is not enough that the witness possesses all
the qualifications. He must have none of the
disqualifications.
Can the testator execute an ordinary will abroad, despite
the requirement of domicile of his 3 witnesses?
He cannot do so because of that requirement
of domicile.
However, he can execute a holographic will
instead because it can be validly executed anywhere
in the world; and, it is not burdened by such
requirement.13
Is a competent witness the same as a credible witness?
No, they are not the same.
A competent witness is a witness that satisfies
all the qualifications and none of the disqualifications
set forth by law.
A credible witness, on the other hand, is a
witness capable of being believed.
To be more precise, the competency of a
person to be an instrumental witness to a will is
determined by the statute, that is Art. 820 and 821 of
the Civil Code, whereas his credibility depends on the
appreciation of his testimony and arises from the
belief and conclusion of the Court that said witness is
telling the truth. (Gonzales v. CA, 90 SCRA 183)
Art. 822. 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. (n)
Art. 823. If a person attests the execution of
a will, to whom or to whose spouse, or parent, or
child, a devise or legacy is given by such will, such
13 3 Caguioa 99
MEESEEKS NOTES ON SUCCESSION
devise or legacy shall, so far only as concerns such
person, or spouse, or parent, or child of such person,
or any one claiming under such person or spouse, or
parent, or child, be void, unless there are three other
competent witnesses to such will. However, such
person so attesting shall be admitted as a witness as
if such devise or legacy had not been made or given.
(n)
Witnesses as legatees or devisees.–
Can a legatee or devisee be a witness to a will?
Yes, but his legacy or device shall be void.
However, where such legatee or devisee is
accompanied by 3 other credible witnesses, the legacy
or devise shall be valid.
Nevertheless, the legacy or devise shall
remain void if one those 3 other witnesses is the
legatee’s or devisee’s spouse, parent, or child.
Therefore, the giving of a legacy to a witness
or to the spouse, or parent or child of such witness
does not disqualify the witness as such. What is only
nullified is the devise or legacy.14
NOTE: Remember:
Devise - it is a gift of real property
Legacy - it is a gift of personal property
Will the same rule apply if the legatee or devisee was
instituted as an heir?
The rule still applies, such heir is
disqualified from inheriting.
Although the law provides no provision for
such disqualification, the heir is nevertheless
disqualified because the law does not make any
distinction in the manner by which the one succeeds,
succeeding as an heir, legacy, or devisee.15
Art. 824. A mere charge on the estate of the
testator for the payment of debts due at the time of
the testator's death does not prevent his creditors
from being competent witnesses to his will. (n)
Creditor as heir.– The creditor in whose
favour such devise or legacy is made may still be a
competent witness to the will, and at the same time
entitled to the legacy or devise since in reality it is not
a legacy or devise but a mere payment of an
obligation.16
The law does not consider it a gift, but rather
it is payment.
14 3 Caguioa 101
15 3 Tolentino 112,cited in 3 Caguioa 100
16 3 Caguioa, supra. Note 12
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WILLS AND SUCCESSION
CODICILS AND INCORPORATION BY
REFERENCE
Art. 825. A codicil is supplement or addition
to a will, made after the execution of a will and
annexed to be taken as a part thereof, by which
disposition made in the original will is explained,
added to, or altered. (n)
Art. 826. In order that a codicil may be
effective, it shall be executed as in the case of a will.
Codicil; Concept.- It is a supplement or
addition to a will. It is some addition or qualification of
one’s last will and testament.
Is a codicil a will?
Yes, only if it is executed as in the case of a
will; otherwise, it is a mere supplement.
Must a codicil be submitted to a probate to pass property?
If it is executed as in the case of a will, it must
pass through a probate.
Art. 827. If a will, executed as required by
this Code, incorporates into itself by reference any
document or paper, such document or paper shall not
be considered a part of the will unless the following
requisites are present:
(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; and
(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.
(n)
Incorporation by reference.– The doctrine of
incorporation by reference means the incorporation of
an extrinsic document or paper into a will so as to
become a part thereof. This is an exception to the rule
that if an instrument is not executed with all the
formalities of a will it cannot be admitted to probate.17
It is an independent, separate instrument
made a part of the will or incorporated in the will.
17 3 Caguioa 102
MEESEEKS NOTES ON SUCCESSION
Requisites for Incorporation by reference.–
Four (4) requisites must be complied with:
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; and
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: These requisites may either appear on the face
of the will and some may be shown by extrinsic
evidence.
On the face of the will, it must appear:18
1. A distinct reference to the writing or
document incorporated;
2. A clear description and identification of
the writing or document; and
3. The will must state the number of pages
of the document or writing.
If through extrinsic evidence:19
1. That the document was in existence at the
time the will was made; and
2. That the document or writing
incorporated must be identified by clear
and satisfactory proof as the document or
paper referred to therein.
NOTE: It would seem that there can be no
incorporation by reference in the case of holographic
wills since it is required that each and every page of the
document be signed by the testator and the witnesses.
Such requirement are not necessary in holographic
wills.20
REVOCATIONS OF WILLS AND TESTAMENTARY
DISPOSITIONS
18 3 Caguioa 102-103
19 Ibid.
20 3 Caguioa 106
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Art. 828. A will may be revoked by the
testator at any time before his death. Any waiver or
restriction of this right is void. (737a)
Revocation of wills; concept.– It is an act of
the mind terminating the potential capacity of the will
to take effect after the death of the testator, manifested
by a visible and outward act or sign, symbolic thereof.
A will is entirely in operative and wholly
ineffective for any purpose during the lifetime of the
testator. This essentially makes the will revocable at any
time before the testator dies.
It has not taken effect yet. It is but a mere scrap
of paper.
NOTE: It is not the will which has been terminated, but
the potential capacity of the will to operate, because a
will has yet to take effect during the lifetime of the
testator.
Suppose X executed a will containing a provision
acknowledging Y as his child. Later on, the will was revoked
during X’s lifetime. Is the acknowledgment of Y as a child of
X likewise revoked?
No, it is not.
The act of acknowledgment immediately
produces effect, so much so that it is not included in the
revocation. It is not dependent upon the death of the
testator to take effect. (See Art. 834)
Art. 829. A revocation done outside the
Philippines, by a person who does not have his
domicile in this country, is valid when it is done
according to the law of the place where the will was
made, or according to the law of the place in which the
testator had his domicile at the time; and if the
revocation takes place in this country, when it is in
accordance with the provisions of this Code. (n)
Art. 830. No will shall be revoked except in
the following cases:
(1) By implication of law; or
(2) By some will, codicil, or other writing
executed as provided in case of wills; or
(3) By burning, tearing, cancelling, or
obliterating the will with the intention of
revoking it, by the testator himself, or by some
other person in his presence, and by his express
direction. If burned, torn, cancelled, or
obliterated by some other person, without the
express direction of the testator, the will may
MEESEEKS NOTES ON SUCCESSION
still be established, and the estate distributed in
accordance therewith, if its contents, and due
execution, and the fact of its unauthorized
destruction, cancellation, or obliteration are
established according to the Rules of Court. (n)
Ways of revoking a will.– The law provides for
only 3 ways to revoke a will, namely:
1. By implication of law;
Illustration: Legal Separation
There must be an issuance of a
decree of legal separation in its finality for
it to take effect.
Once there is finality, the guilty
spouse becomes disqualified to succeed
from the innocent spouse because of the
former’s loss of worthiness to succeed.
Should the innocent spouse condone the guilty
spouse, does it entitle the latter to succeed the
former again?
It depends.
If the loss of worthiness is based on
the law of succession, the guilty spouse
must be pardoned by the innocent spouse.
If the loss of worthiness is based on
the law of legal separation, the there must
be reconciliation21 between the spouses.
2. By a subsequent will or codicil; and,
3. By an act of physical destruction
coupled with the intention to revoke.
By jurisprudence, a will may be revoked by
crumpling (Vda. De Roxas v. Roxas, 87 Phil. 692)
Acts of Physical Destruction.– A will can b
revoked by doing any of the following acts:
1. Burning;
2. Tearing;
3. Canceling;
4. Obliterating; (Art. 830 [3]) and
5. Crumpling (Vda. De Roxas v. Roxas,
supra.)
Such acts must be coupled with the intention
to revoke (animus revocandi) in order to effectively
revoke a will. Such intention is only necessary in
these acts of destruction.
21Theresumption of marital relations. One act considered as
such resumption is enough to be considered as
reconciliation.
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Why is animus revocandi not necessary in the first two
cases?
The will of the testator is immaterial in the
first two (2) cases.
In the first case, the revocation takes place by
operation of law.
In the second case, the manifestation of
making another will constitutes animus revocandi.
How much of the will must be torn or burned in order for
the will to be considered as revoked?
The law does not say how much of the will
must be torn or burned. So long as it is done with the
intent to revoke, it does not matter how much is torn
or burned. It will still be revoked.
It need not be totally destroyed. It is
sufficient that on the face of the will or instrument,
there is shown some sign of the physical act of
destruction.
Suppose the will was revoked by the testator by writing the
word “cancelled” on the back of the will, is that a valid
revocation?
There is a difference in opinion.
Nevertheless, it is submitted that it can be
written in the back of the will and it must bear the
date and signature of the testator. Here, the
revocation can be considered revocation by
subsequent instrument, may it be a holographic will
or codicil.22
DEAN ALIGADA’S VIEW: There is no law saying
where the word “cancelled” must be written on the
will.
Who can destroy the will?
It may be the testator himself; or, any other
person, provided, the act of destruction is done in the
presence of the testator at his (testator’s) express
direction.
Art. 831. 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
latter wills. (n)
Art. 832. A revocation made in a subsequent
will shall take effect, even if the new will should
become inoperative by reason of the incapacity of the
heirs, devisees or legatees designated therein, or by
their renunciation. (740a)
22 3 Caguioa 114
MEESEEKS NOTES ON SUCCESSION
Doctrine of Dependent Relative
Revocation.– To put it simply, the revocation is
deemed conditional – its validity being conditioned on
the effectivity of the revoking will. The revocation is
subject to a suspensive condition.
Thus, if the revoking will turns out ineffective,
the revocation shall not take effect. If the new will is
inoperative, the original will remains in full force and
effect.
Revoking will.– The will that revokes
previously executed wills.
The execution of the revoking will serves as
proof that the testator had no intention of dying
intestate; thus, the revoked will must still be probated
despite the invalidity of the revoking will (Vda. De Molo
v. Molo 90 Phil. 37, 1951)
Revoked will.– The will that is revoked by a
revoking will.
If the testator executed a hundred wills which, among those,
must be submitted for probate?
It depends.
If there is an express revocation, only the
revoking will must be probated because all other will
previously executed are deemed revoked.
If there is an implied revocation, both the
revoking will and the revoked will must be submitted
because some dispositions in the latter might still be
effective.
Art. 833. A revocation of a will based on a
false cause or an illegal cause is null and void. (n)
Revocation based on a false or illegal
cause.– If the testator revokes a will on the basis of a
false or illegal cause, the revocation is not automatically
null and void.
A distinction must be made as to the method
of revocation used by the testator.
If the revocation is done through a physical act
of destruction, the revocation will be considered null
and void.
If the revocation was made through the
execution of a subsequent instrument, the reason relied
upon by the testator for revoking the will must appear
on the face of the will for the revocation to take effect.23
23 3 Caguioa 120, citing Am. Jur.
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Art. 834. The recognition of an illegitimate
child does not lose its legal effect, even though the
will wherein it was made should be revoked. (714)
See discussion under Art. 828.
REPUBLICATION AND REVIVAL OF WILLS
Art. 835. The testator cannot republish,
without reproducing in a subsequent will, the
dispositions contained in a previous one which is void
as to its form. (n)
Art. 836. The execution of a codicil referring
to a previous will has the effect of republishing the
will as modified by the codicil. (n)
Art. 837. 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. (739a)
ALLOWANCE AND DISALLOWANCE OF WILLS
Art. 838. No will shall pass either real or
personal property unless it is proved and allowed in
accordance with the Rules of Court.
The testator himself may, during his lifetime,
petition the court having jurisdiction for the
allowance of his will. In such case, the pertinent
provisions of the Rules of Court for the allowance of
wills after the testator's a death shall govern.
The Supreme Court shall formulate such
additional Rules of Court as may be necessary for the
allowance of wills on petition of the testator.
Subject to the right of appeal, the allowance
of the will, either during the lifetime of the testator or
after his death, shall be conclusive as to its due
execution. (n)
Inquiries made in a probate.- The probate
court must inquire on the following facts:
1. The extrinsic or formal validity of the
will; and,
2. The testamentary capacity of the testator
at the time he executed the will.
If the due execution of the will was not
proved, the will will be disallowed. On the other hand,
if the testamentary capacity of the testator is not proved,
the will will be allowed.
This is so because the law always presumes
soundness of the mind. (Art. 800)
MEESEEKS NOTES ON SUCCESSION
Can the probate court inquire on the intrinsic validity of the
will?
As a general rule, the intrinsic validity of a will
is touched by the court in a separate proceeding after its
allowance or probate (Palacios v. Palacios, 1959)
By way of exception, the probate court may
inquire the intrinsic validity of the will based on
practical considerations where no benefit would be
gained in remanding the case to the lower court and
such remanding would only result to waste of time,
effort, expense, and added anxiety (Nuguid v. Nuguid, 17
SCRA 449, 1966)
What kind of proceeding is a probate?
It is a proceeding in rem because the findings
thereof cannot be questioned by anyone; and,
publication thereof is required for it is binding against
the whole world.
What is the nature of probate?
Probate is a necessary proceeding for the law
expressly provides that no will shall pass any property,
except through probate. (Art. 838)
When must a probate of the will take place?
Under the old law, probate only takes place
after the testator’s death (post-mortem).
Under the new law, it may take place before
death (ante-mortem) or after death of the testator. In
this case, the testator has a right to initiate the
proceedings during his lifetime.
NOTE: Defects in the will can be corrected in ante-
mortem probate, however it is not so in the case of post-
mortem probate.
Probate of a holographic will.– Please refer to
the discussion under Art. 811.
Probate; Mandatory.– Even if the decedent
left no debts and nobody raises any question as to the
authenticity and due execution of the will, none of the
heirs may sue for the partition of the estate in
accordance with that will without first securing its
allowance of probate by the court, first, because the
law expressly provides that "no will shall pass either
real or personal estate unless it is proved and allowed
in the proper court"; and, second, because the probate
of a will, which is a proceeding in rem, cannot be
dispensed with and substituted by any other
proceeding, judicial or extrajudicial, without
offending against public policy designed to
effectuate the testator's right to dispose of his
property by will in accordance with law and to
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WILLS AND SUCCESSION
protect the rights of the heirs and legatees under the
will thru the means provided by law, among which
are the publication and the personal notices to each
and all of said heirs and legatees. (Guevara v. Guevara,
74 Phil. 479)
Because of this nature of probate, the statute
of limitations is not applicable to probate proceedings
(Guevara v. Guevara, 8 Phil. 249), because these are not
exclusively established for the interest of the
surviving heirs, but primarily for the protection of the
testator’s express wishes that are entitled to respect as
an effect of the ownership and right of disposition.
NOTE: There are two Guevara cases. The first speaks
of necessity of probate, while the second speaks of its
imprescriptibility.
Furthermore, the principle of estoppel
likewise does not apply to probate proceedings.
(Testate Estate of Obispo v. Obispo, 50 O.G. 614) It
would be non sequitur to allow public policy to be
evaded on the pretext of estoppel.
NOTE: Based on his discussion in 3B, Dean Aligada
seemed to have switched the two cases – Guevara
speaking of estoppel, while Obispo speaking of
prescription. It should be the other way around.
Probate of a revoked will.– To understand
this concept better, a distinction between an expressly
revoked will and an impliedly revoked will must first
be made.
An expressly revoked will cannot be
admitted to probate and its testamentary dispositions
become ineffective.
An implied revocation will not affect the will
itself but merely the particular devise or legacy.
Hence, it can be admitted for probate.
In other words, only total and absolute
revocation can preclude probate of a revoked will.24
Foreign will probated abroad.– A will
already probated abroad need not be probated in the
Philippines again. However, another proceeding is
still required for the purposes of establishing the fact
that such will has been admitted for probate and
allowed in the foreign country concerned.
Art. 839. The will shall be disallowed in any
of the following cases:
(1) If the formalities required by law have not
been complied with;
24 3 Caguioa 132
MEESEEKS NOTES ON SUCCESSION
(2) If the testator was insane, or otherwise
mentally incapable of making a will, at the time
of its execution;
(3) If it was executed through force or under
duress, or the influence of fear, or threats;
(4) If it was procured by undue and improper
pressure and influence, on the part of the
beneficiary or of some other person;
(5) If the signature of the testator was procured
by fraud;
(6) If the 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. (n)
Dean Aligada no longer discussed this part with us.
INSTITUTION OF HEIRS
Article 840. Institution of heir is 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. (n)
Article 841. A will shall be valid even though
it should not contain an institution of an heir, or such
institution should not comprise the entire estate, and
even though the person so instituted should not
accept the inheritance or should be incapacitated to
succeed.
In such cases the testamentary dispositions
made in accordance with law shall be complied with
and the remainder of the estate shall pass to the legal
heirs. (764)
Is it necessary that a will should contain an institution?
No, it is not necessary. A will can be valid
even though it contains no institution of an heir.
If a will is executed without an institution of an heir, how can
it pass property?
In case of absence of institution of an heir in a
will, the order of intestate succession shall be applied.
Article 842. One who has no compulsory
heirs may dispose by will of all his estate or any part
of it in favor of any person having capacity to succeed.
One who has compulsory heirs may dispose
of his estate provided he does not contravene the
provisions of this Code with regard to the legitime of
said heirs. (763a)
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Article 843. The testator shall designate the
heir by his name and surname, and when there are
two persons having the same names, he shall indicate
some circumstance by which the instituted heir may
be known.
Even though the testator may have omitted
the name of the heir, should he designate him in such
manner that there can be no doubt as to who has been
instituted, the institution shall be valid. (772)
How does one institute an heir?
To institute an heir, the testator must
designate him by his name and surname.
If he is identical with another, some
circumstance must be stated to make the designated
heir known.
Article 844. An error in the name, surname, or
circumstances of the heir shall not vitiate the
institution when it is possible, in any other manner, to
know with certainty the person instituted.
If among persons having the same names
and surnames, there is a similarity of circumstances in
such a way that, even with the use of other proof, the
person instituted cannot be identified, none of them
shall be an heir. (773a)
Can an unknown person be instituted as an heir?
GR: No, an unknown person cannot be
instituted as an heir.
XPN: If he can be identified by some other
circumstance, an unknown person can be instituted as
an heir.
NOTE: It is essential that he must be
identified; otherwise, he is an unknown heir incapable
of succeeding.
Article 845. Every disposition in favor of an
unknown person shall be void, unless by some event
or circumstance his identity becomes certain.
However, a disposition in favor of a definite class or
group of persons shall be valid. (750a)
Article 846. Heirs instituted without
designation of shares shall inherit in equal parts. (765)
In making an institution of an heir, is it enough that the
heir be identified without stating therein the amount of
disposition they should receive?
MEESEEKS NOTES ON SUCCESSION
Yes, in this case, the heirs are considered to
inherit in equal amounts.
NOTE: In order for the equal sharing to apply,
the instituted heirs must belong to the same class;
otherwise, they won’t be sharing anything.
Article 847. When the testator institutes some
heirs individually and others collectively as when he
says, "I designate as my heirs A and B, and the
children of C," those collectively designated shall be
considered as individually instituted, unless it clearly
appears that the intention of the testator was
otherwise. (769a)
Article 848. If the testator should institute his
brothers and sisters, and he has some of full blood
and others of half blood, the inheritance shall be
distributed equally unless a different intention
appears. (770a)
Article 849. When the testator calls to the
succession a person and his children they are all
deemed to have been instituted simultaneously and
not successively. (771)
Article 850. The statement of a false cause for
the institution of an heir shall be considered as not
written, unless it appears from the will that the
testator would not have made such institution if he
had known the falsity of such cause. (767a)
Article 851. If the testator has instituted only
one heir, and the institution is limited to an aliquot
part of the inheritance, legal succession takes place
with respect to the remainder of the estate.
The same rule applies if the testator has
instituted several heirs, each being limited to an
aliquot part, and all the parts do not cover the whole
inheritance. (n)
Article 852. If it was the intention of the
testator that the instituted heirs should become sole
heirs to the whole estate, or the whole free portion, as
the case may be, and each of them has been instituted
to an aliquot part of the inheritance and their aliquot
parts together do not cover the whole inheritance, or
the whole free portion, each part shall be increased
proportionally. (n)
Article 853. If each of the instituted heirs has
been given an aliquot part of the inheritance, and the
parts together exceed the whole inheritance, or the
whole free portion, as the case may be, each part shall
be reduced proportionally. (n)
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Article 854. The preterition or omission of The object of preterition may be a person (real
one, some, or all of the compulsory heirs in the direct compulsory heir) or a property.
line, whether living at the time of the execution of the
will or born after the death of the testator, shall annul What are the effects if a property is alienated?
the institution of heir; but the devises and legacies
If it is preterated in the will, the rules
shall be valid insofar as they are not inofficious.
governing intestate succession will aplly as to the
If the omitted compulsory heirs should die omitted parts.
before the testator, the institution shall be effectual,
If it is preterated in partition, the omitted parts
without prejudice to the right of representation. (814a)
will be subjected to a collation first and will be subjected
Preterition; definition - As a term, it means to a further division.
omission. The law defines it as the total omission of a
Can there be preterition in case of a real compulsory heir
compulsory heir in the direct line.
predeceasing the testator?
Real Compulsory Heir – A compulsory heir in
Yes, only if there is a right to representation.
the direct line.
Illustration:
NOTE: A mere omission of an heir does not
amount to a preterition. In order for preterition to exist,
the omitted heir must be a real compulsory heir. TESTATOR
Can an adopted child be preterated?

Under the old law, an adopted child cannot be

preterated because preteration occurs only if a real
compulsory is totally omitted. A real compulsory heir is
related by blood to the testator; however, an adopted
A B C
child’s relationship with his adopter is only by fiction of (married) (married) (single)
law. (omitted)
Under the new law on adoption (Domestic
Adoption Act, RA 8552), an adopted child can be In this case, in the event that C predeceases the
Testator, there is no preterition because there is no right
pretreated. They can now be preterated because
of representation.
adopted children are now given the same rights as a
legitimate child without discrimination (Akain v. Illustration:
Diokson, 239 Phil 96).

NOTE: A surviving spouse cannot be TESTATOR

preterated although a compulsory heir because she is
not in the direct line (Akain v. Diokson, 239 Phil 96).

What is the remedy of the surviving spouse if omitted from

the will?

Their remedy lies in Art. 906, they may A B C

demand for the completion of their legitime. (married) (married) (married)
Rights of a surviving spouse (omitted)

Under the old law: rights of a usufructuary

Under the new law: rights of an absolute

owner. C1
What may be the object of preterition?

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In this case, in the event that C predeceases the VOLUNTARY HEIR COMPULSORY HEIR
Testator, there is preterition because there is a right of In case of predecease, In case of predecease,
representation on the part of C1. incapacity or repudiation, incapacity or repudiation,
he transmits nothing to his he also transmits nothing
NOTE: Right of representation is a right by
heirs. to his heir. However,
virtue of which the representative is raised to the place
when there is right of
and the degree of the person represented, and acquires
representation he may
the rights which the latter would have if he were living
transmit his rights to his
or if he could have inherited.
heirs.
It takes place in the direct descending line, and XPN: Right of
in the collateral line, it takes place only in favor of the representation does not
children of brothers or sisters, whether they be of the apply in the case of
full or half blood. repudiation.

Is preterition the same as disinheritance?

No, they are not the same.
PRETERITION
It is the total omission of
an heir in the will because
he is neither mentioned;
or, he is mentioned but he
is not instituted as an heir
nor is he disinherited.
It is always voluntary
because it is expressly
made.
It only applies to real
compulsory heirs.
DISINHERITANCE
It is the deprivation of a
legitime of a compulsory
heir by virtue of a just
cause provided by law.
It is presumed
involuntary but may be
voluntarily made.
It applies only to
compulsory heirs.
SUBSTITUTION OF HEIRS
Article 857. Substitution is the appointment
of another heir so that he may enter into the
inheritance in default of the heir originally instituted.
(n)
Article 858. Substitution of heirs may be:
(1) Simple or common;
(2) Brief or compendious;
(3) Reciprocal; or
(4) Fideicommissary. (n)
Substitution; ways of substitution – The law
provides for four ways, namely:

1. Simple or common (vulgar);

Article 855. The share of a child or 2. Brief or Compendious;
descendant omitted in a will must first be taken from 3. Reciprocal;
the part of the estate not disposed of by the will, if 4. Fideicommisary
any; if that is not sufficient, so much as may be
necessary must be taken proportionally from the NOTE: In reality, there are only two kinds of
shares of the other compulsory heirs. (1080a) substitution: simple (direct substitution) and
fideicommisary (indirect substitution). Reciprocal,
Article 856. A voluntary heir who dies before brief, and compendious are mere variations of simple
the testator transmits nothing to his heirs. substitution.

A compulsory heir who dies before the
testator, a person incapacitated to succeed, and one
who renounces the inheritance, shall transmit no right
to his own heirs except in cases expressly provided for
in this Code. (766a)
Rights of an heir – Such rights depend upon
the kind of heir involved, voluntary or compulsory.
What is the purpose of substitution?
It is to prevent intestacy.
NOTE: Substitution allows only the free
portion to be its subject because legitimes cannot be
subject to substitution (Art. 904).
Article 859. The testator may designate one or
more persons to substitute the heir or heirs instituted
in case such heir or heirs should die before him, or

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WILLS AND SUCCESSION
should not wish, or should be incapacitated to accept
the inheritance.
A simple substitution, without a statement of
the cases to which it refers, shall comprise the three
mentioned in the preceding paragraph, unless the
testator has otherwise provided. (774)
Simple Substitution – The designation of the
testator of a certain person or persons to substitute an
heir or heirs in case the latter:
(i) predeceases the testator (predecease),
(ii) repudiates the inheritance (repudiation), or
(iii) becomes incapacitated to succeed
(incapacity).
NOTE: The above mentioned are the causes
which allows substitution of heirs. Such grounds are not
exclusive.
Is it necessary for the testator to put the ground for
substitution?
As a rule, he must specify the ground for
substitution. However, if he fails to state the ground,
substitution can still take place on any of the
aforementioned causes.
Article 860. Two or more persons may be
substituted for one; and one person for two or more
heirs. (778)
Brief Substitution – a kind of substitution
where two or more persons are substituted in the place
of a single heir.
Compendious Substitution - a kind of
substitution where one person is substituted in the
place of two or more heirs.
Article 861. If heirs instituted in unequal
shares should be reciprocally substituted, the
substitute shall acquire the share of the heir who dies,
renounces, or is incapacitated, unless it clearly appears
that the intention of the testator was otherwise. If
there are more than one substitute, they shall have the
same share in the substitution as in the institution.
(779a)
Article 862. The substitute shall be subject to
the same charges and conditions imposed upon the
instituted heir, unless and testator has expressly
provided the contrary, or the charges or conditions are
personally applicable only to the heir instituted. (780)
MEESEEKS NOTES ON SUCCESSION
Reciprocal Substitution - a kind of
substitution where heirs are designated as substitutes of
one another.
Article 863. A fideicommissary substitution
by virtue of which the fiduciary or first heir instituted
is entrusted with the obligation to preserve and to
transmit to a second heir the whole or part of the
inheritance, shall be valid and shall take effect,
provided such substitution does not go beyond one
degree from the heir originally instituted, and
provided further, that the fiduciary or first heir and
the second heir are living at the time of the death of
the testator. (781a)
Fideicommissary Substitution - a kind of
substitution where the testator designates two heirs: the
first one called a fiduciary heir who is imposed with the
obligation to preserve the thing inherited and transmit
the same to the second heir called the fideicommissary
heir.
Illustration:
A
B C
First heir, Second heir,
son of A, son of B,
ordered to substitutes
preserve A’s B in the
property property.
and
transmit it
to C.
In the given illustration, if the estate amounts to 1,000,000
pesos, how much can the fideicommissary heir receive?
The fideicommissary heir can only 500,000
pesos because the substitution only applies to the free
portion. If there are compulsory heirs, remove the
legitimes first. B being a legitimate child of A, he is
entitled to ½ of A’s estate.
In what capacity does the first heir hold the inheritance?
He only holds it as a mere usufructuary
because he has the obligation to preserve the property
of the testator. In addition to this obligation, he is also
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prohibited to alienate such property because of his Article 864. A fideicommissary substitution
corollary duty to transmit it to the second heir. can never burden the legitime. (782a)

Is the capacity of a fiduciary heir the same as a reservor? Article 865. Every fideicommissary
substitution must be expressly made in order that it
FIDUCIARY HEIR RESERVOR may be valid.
He is created by the will of He is created by law.
the testator. The fiduciary shall be obliged to deliver the
inheritance to the second heir, without other
He enjoys the property as He enjoys the property as
deductions than those which arise from legitimate
a mere usufructuary. an owner. He may
expenses, credits and improvements, save in the case
alienate such property
where the testator has provided otherwise. (783)
subject to its reservable
nature. Article 866. The second heir shall acquire a
Why is the first heir called a fiduciary heir? right to the succession from the time of the testator's
death, even though he should die before the fiduciary.
He is called a fiduciary heir because he holds The right of the second heir shall pass to his heirs.
in trust or he is obligated to preserve the propertry (784)
inherited from the testator until that moment of
transmission. How long can a fiduciary hold the property?

The law provides that the second heir must not go beyond
“one degree from the first heir. What does “one degree”
mean?
In the case of Ramirez v. Ramirez, if the second
heir pertains to a natural person, it means one degree of
relationship. Consequently, only the parent or child of a
fiduciary heir can be made a fideicommissary heir.
However, if the second heir pertains to a
juridical person, it means one degree of transfer.
It depends.
If the testator gave a period or term, such must
be followed. Thus, the fiduciary holds the property up
until its expiration.
However, if there is no period or term given
by the testator, the fiduciary can hold the property
during his entire lifetime.
Is it essential that a period be given by the testator?

How is one degree counted? No, it is not necessary. It is presumed that the
testator wanted the first heir to enjoy the property
Always start counting from the progenitor. during his lifetime.
From there, subtract one degree.
Article 867. The following shall not take
Illustration: effect:

(1) Fideicommissary substitutions which are

3 Grandfather minus 1 = 2 degrees
not made in an express manner, either by giving them
this name, or imposing upon the fiduciary the
absolute obligation to deliver the property to a second
heir;
2 Father minus 1 = 1 degree
(2) Provisions which contain a perpetual
prohibition to alienate, and even a temporary one,
beyond the limit fixed in article 863;

Child (3) Those which impose upon the heir the

1 (Progenitor)
charge of paying to various persons successively,
beyond the limit prescribed in article 863, a certain
income or pension;
In this case, the father is one degree from the
(4) Those which leave to a person the whole
child. The grandfather, on the other hand, is 2 degrees or part of the hereditary property in order that he may
from the child. apply or invest the same according to secret

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WILLS AND SUCCESSION
instructions communicated to him by the testator.
(785a)
Article 868. 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. (786)
Article 869. A provision whereby the testator
leaves to a person the whole or part of the inheritance,
and to another the usufruct, shall be valid. If he gives
the usufruct to various persons, not simultaneously,
but successively, the provisions of article 863 shall
apply. (787a)
Can a testator, with respect to the property he leaves, give it
(the ownership) to another and give the right to use (usufruct)
to another?
Yes, the law allows it under Art. 869.
In the case of usufruct, make a distinction
between: simultaneous usufruct and successive
usufruct.
In simultaneous usufruct, all the usufructuary
can enter in the enjoyment of the property at the same
time.
In successive usufruct, the “one degree” rule
will apply. Thus, the first usufructuary must not be
beyond one degree of the second usufructuary.
Article 870. The dispositions of the testator
declaring all or part of the estate inalienable for more
than twenty years are void. (n)
CONDITIONAL TESTAMENTARY DISPOSITIONS
AND TESTAMENTARY DISPOSITIONS WITH A
TERM
Art. 871. The institution of an heir may be
made conditionally, or for a certain purpose or
cause. (790a)
Conditional Dispositions; Dispositions with
a Term – Institution of heirs may be subject to a
condition, term, or a mode.
What are the kinds of conditions a testator may impose?
Any conditions may be imposed, such as:
1. Suspensive
2. Resolutory;
3. Potestative;
4. Casual
MEESEEKS NOTES ON SUCCESSION
5. Mixed
NOTE: It is only the free portion that can be
subjected to conditions for the legitime can never be
burdened.
By not complying with the conditions
imposed by the testator, the compulsory heir merely
loses his right to the legacy, devise or the free portion
never the right to the legitime (Broce v. Marcellana).
Art. 872. The testator cannot impose any
charge, condition, or substitution whatsoever upon
the legitimes prescribed in this Code. Should he do so,
the same shall be considered as not imposed. (813a)
Art. 873. Impossible conditions and those
contrary to law or good customs shall be considered as
not imposed and shall in no manner prejudice the
heir, even if the testator should otherwise
provide. (792a)
Art. 874. An absolute condition not to
contract a first or subsequent marriage shall be
considered as not written unless such condition has
been imposed on the widow or widower by the
deceased spouse, or by the latter's ascendants or
descendants.
Nevertheless, the right of usufruct, or an
allowance or some personal prestation may be devised
or bequeathed to any person for the time during
which he or she should remain unmarried or in
widowhood. (793a)
What is the rule on prohibitions to marry as a testamentary
condition?
If it is an absolute prohibition to marry, it
shall be deemed void and considered not written. The
institution or disposition remains valid. The reason for
its nullity is the violation of the right of an individual to
choose his own status.
However, as an exception, such absolute
prohibition to marry as a condition remains valid if
made by: (i) the testator; (ii) their descendants; or, (iii)
their ascendants, on the widow or widower.
If it is a relative prohibition to marry, relative
as to the person, time or place of marriage, it is
considered valid.
However, if such relative impositions would,
in effect, absolutely prohibit a person to marry (i.e. a
person residing in the rural area is prohibited from
marrying anyone from the rural area and is required to
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WILLS AND SUCCESSION
marry a person in the urban area, when such person has
no means to go to such a place), it will be considered as
an absolute prohibition to marry, thus deemed void.
If what is being bequeathed or devised is the
right of usufruct, or an allowance or some personal
prestation, regardless of an absolute or relative
prohibition to marry, such condition is still deemed
valid.
NOTE: The prohibition to marry partakes of a
nature of a resolutory condition.
What if the condition was to compel one to marry?
It remains valid because what the law
prohibits is the absolute prohibition to marry.
Art. 875. Any disposition made upon the
condition that the heir shall make some provision in
his will in favor of the testator or of any other person
shall be void. (794a)
Art. 876. Any purely potestative condition
imposed upon an heir must be fulfilled by him as
soon as he learns of the testator's death.
This rule shall not apply when the condition,
already complied with, cannot be fulfilled
again. (795a)
Art. 877. If the condition is casual or mixed, it
shall be sufficient if it happens or be fulfilled at any
time before or after the death of the testator, unless he
has provided otherwise.
Should it have existed or should it have been
fulfilled at the time the will was executed and the
testator was unaware thereof, it shall be deemed as
complied with.
If he had knowledge thereof, the condition
shall be considered fulfilled only when it is of such a
nature that it can no longer exist or be complied with
again. (796)
Art. 878. A disposition with a suspensive
term does not prevent the instituted heir from
acquiring his rights and transmitting them to his heirs
even before the arrival of the term. (799a)
Art. 879. If the potestative condition imposed
upon the heir is negative, or consists in not doing or
not giving something, he shall comply by giving a
security that he will not do or give that which has
been prohibited by the testator, and that in case of
contravention he will return whatever he may have
received, together with its fruits and interests. (800a)
MEESEEKS NOTES ON SUCCESSION
What is the difference between caucion muciana and caucion
juratoria?
CAUCION MUCIANA CAUCION JURATORIA
It is the security required It is the security given in
in lieu of a bond which lieu of a usufruct.
answers for the failure to
return the property
subject to the potestative
condition.
What is the effect of a potestative condition?
In the law on obligations, if such was imposed
on the debtor, the whole obligation will be void. If it
was, on the other hand, imposed on the creditor, the
obligation will remain valid.
In the law on succession, the institution or
disposition subject to such condition remains valid
because in succession, the testator cannot change the
condition since it is an act mortis cause.
Art. 880. If the heir be instituted under a
suspensive condition or term, the estate shall be
placed under administration until the condition is
fulfilled, or until it becomes certain that it cannot be
fulfilled, or until the arrival of the term.
The same shall be done if the heir does not
give the security required in the preceding
article. (801a)
When is the estate placed under administration?
1. During the pendency of fulfillment of a
suspensive condition;
2. If the heir does not give the required
security.
NOTE: If the disposition is subject to a
suspensive term, the legal heirs will enter into
the enjoyment of the estate upon giving
security and until the term has commenced
(Art. 885, par. 2)
Art. 881. The appointment of the
administrator of the estate mentioned in the preceding
article, as well as the manner of the administration
and the rights and obligations of the administrator
shall be governed by the Rules of Court. (804a)
Art. 882. The statement of the object of the
institution, or the application of the property left by
the testator, or the charge imposed by him, shall not
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WILLS AND SUCCESSION

be considered as a condition unless it appears that
such was his intention.
That which has been left in this manner may
be claimed at once provided that the instituted heir or
his heirs give security for compliance with the wishes
of the testator and for the return of anything he or
they may receive, together with its fruits and interests,
if he or they should disregard this obligation. (797a)
When does an institution become a modal institution?
Art. 885. The designation of the day or time
when the effects of the institution of an heir shall
commence or cease shall be valid.
In both cases, the legal heir shall be
considered as called to the succession until the arrival
of the period or its expiration. But in the first case he
shall not enter into possession of the property until
after having given sufficient security, with the
intervention of the instituted heir. (805)

It is considered a modal institution whenever

the testator states: LEGITIMES

(i) the object or purpose of the institution;

(ii) the application of the property left by the

testator;

(iii) a charge imposed by the testator.

Art. 883. When without the fault of the heir,

an institution referred to in the preceding article
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.

If the person interested in the condition

should prevent its fulfillment, without the fault of the
heir, the condition shall be deemed to have been
complied with. (798a)

Art. 884. 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 this Section. (791a)

COMBINATIONS OF LEGITIMES IN TESTATE SUCCESSION25

Legitimate children alone ½ of the estate divided equally

One legitimate child and Legitimate children = ½ of the estate

surviving spouse Surviving spouse = ¼ of the estate

Note: If there has been legal separation, DISTINGUISH:

a) If the deceased is the guilty spouse, the surviving spouse gets

his/her legitime;

b) If the deceased is the innocent spouse, the surviving spouse,

being the guilty spouse, is disqualified from inheriting;

c) If after final decree of legal separation, there was reconciliation

between the spouses, the reciprocal right to succeed is

25 Balane, 2016 ed., p. 346-348

MEESEEKS NOTES ON SUCCESSION 25


Legitimate children and
surviving spouse
One legitimate child and
surviving spouse
Legitimate children and
illegitimate children
Legitimate children, illegitimate
children, and surviving spouse
One legitimate child, illegitimate
children, and surviving spouse
Legitimate parents alone
Legitimate parents and
illegitimate children
Legitimate parents and surviving
spouse
Legitimate parents, illegitimate
children, and surviving spouse
Surviving spouse alone
Illegitimate children and
surviving spouse
Illegitimate parents and
surviving spouse
Illegitimate children alone
Illegitimate parents alone
26 Ibid., p. 357
27 Ibid., p. 358
MEESEEKS NOTES ON SUCCESSION
Civil Code of the Philippines
WILLS AND SUCCESSION
restored.26
In case an action for legal separation has been filed and either spouse
dies pendente lite, the surviving spouse inherits from the deceased
spouse. (Lapuz-Sy v. Eufemio, 43 SCRA 177, 1972)27
Legitimate children = ½ of the estate
Surviving spouse = a share equal to that of one child
Legitimate children = ½ of the estate
Surviving spouse = ¼ of the estate
Legitimate children = ½ of the estate
Illegitimate children = ½ of the share of one legitimate child
Legitimate children = ½ of the estate
Surviving spouse = a share equal to that of one child
Illegitimate children = ½ of the share of one legitimate child
Note: The share of the surviving spouse shall be preferred over those of the
illegitimate children, which can be reduced if necessary. The legitime of the
surviving spouse can never be reduced.
It is possible that the illegitimate child will not inherit anything by way of
legitime if it is necessary to complete the legitime of the surviving spouse.
Legitimate child = ½ of the estate
Surviving spouse = ¼ of the estate
Illegitimate children = ½ of the share of the legitimate child
½ of the estate
Legitimate parents = ½ of the estate
Illegitimate children = ¼ of the estate
Legitimate parents = ½ of the estate
Surviving spouse = ¼ of the estate
Legitimate parents = ½ of the estate
Illegitimate children = ¼ of the estate
Surviving spouse = 1/8 of the estate
½ of the estate OR
1/3 of the estate if the marriage was celebrated in articulo mortis
Surviving spouse = 1/3 of the estate
Illegitimate children = 1/3 of the estate
Surviving spouse = ¼ of the estate
Illegitimate children = ¼ of the estate
½ of the estate
½ of the estate
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WILLS AND SUCCESSION
DISINHERITANCE
Article 915. A compulsory heir may, in
consequence of disinheritance, be deprived of his
legitime, for causes expressly stated by law. (848a)
Article 916. Disinheritance can be effected
only through a will wherein the legal cause therefor
shall be specified. (849)
Disinheritance; Concept and Definition.–
Disinheritance is the act of the testator in depriving a
compulsory heir of his legitime.
This implies that there can be no
disinheritance in voluntary heirs, because they have
no legitime. Also, there can be no disinheritance in the
case of intestate succession because Art. 916 provides
that disinheritance can only be made through a will.
Thus, it only applies to testate succession.
Disinheritance has also been defined as the
testamentary disposition by virtue of which a
compulsory heir is deprived of his legitime for causes
expressly stated by law.28
It must be remembered that disposition of
property can be made directly or indirectly. (Merza v.
Porras, supra.) So, if a will contains no disposition of
property and only a provision on disinheritance, it
will still be valid.
Purpose of the law.– The objective of the
law on Disinheritance is to soften the impact
produced by the law on legitimes.
The law on legitimes is a restriction on the
property rights of a person. This is so because a
person cannot dispose of a portion of his property
which is reserved by law for the benefit of his
compulsory heirs.
Effects of disinheritance.– Disinheritance
produces the following effects:
1. It deprives a compulsory heir of his
legitime and is one of the cases where a
compulsory heir may not be entitled to
the legitime reserved to him by law;
2. It makes a compulsory heir lose all
legacies in his favour because the
grounds of disinheritance are also
grounds of unworthiness; and
3. It deprives the disinherited heir the
right to inherit by intestate succession.
28 3 Caguioa 293, citing Castan
MEESEEKS NOTES ON SUCCESSION
REASON: Intestate succession is merely
presumed by law, and the implied
cannot contradict the express will of the
testator that that heir cannot inherit.
Hence, disinheritance results in total
disqualification of the heir from receiving anything
from the testator.
Article 917. The burden of proving the truth
of the cause for disinheritance shall rest upon the
other heirs of the testator, if the disinherited heir
should deny it. (850)
Article 918. Disinheritance without a
specification of the cause, or for a cause the truth of
which, if contradicted, is not proved, or which is not
one of those set forth in this Code, shall annul the
institution of heirs insofar as it may prejudice the
person disinherited; but the devises and legacies
and other testamentary dispositions shall be valid to
such extent as will not impair the legitime. (851a)
Requisites of disinheritance.– The
following are the requisites:
1. It must be made in a will;
2. It must be based on a cause that is legal,
expressly stated in the will and certain
and true;
3. It must be total; and
4. It must be unconditional.
An additional requisite is that the
disinherited heir be identified or at least identifiable.29
How disinheritance is carried out.– It is
made by the testator in a will and he must state the
grounds or causes relied upon for disinheriting a
compulsory heir that is provided by law.
The causes must be one of those provided by
law because it cannot be left to the free will of the
testator, so that the purpose of the law would not be
rendered nugatory.
The testator need not prove the truthfulness
of the ground relied upon. It is sufficient for the
testator to mention merely the act constituting the
ground.
It need not be made in the same will where
the dispositions of the testator’s property are made. It
may be in a will or codicil whatsoever provided that it
is validly executed.
All the formal requisites must be complied
with.
29 3 Caguioa 296
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WILLS AND SUCCESSION

Total and unconditional.– There can be no however it is not reason for the
partial disinheritance or partial pardon. It must be proven, mentioned, omission.
total. There can be no middle ground. or allowed by law.
Disinheritance, likewise, cannot be Annuls the Annuls the entire
conditional. It cannot be made subject to a suspensive institution insofar institution,
condition because the law contemplates that the cause as it may prejudice producing total
for disinheritance has already been realized and is the disinherited heir intestacy or partial
known to the testator. It provides that the cause must intestacy
be certain and true.
Any compulsory Compulsory heir in
However, pardon by the testator may be heir though not in the direct line is
conditional provided that the condition is related to the direct line deprived
the cause for disinheritance and not merely because of
the whims of the testator. The defectively The preterited heir
disinherited heir may receive more
Hence, conditional pardon is allowed, but will only receive his than his legitime
never conditional disinheritance. legitime
Burden of proof.– All the disinherited heir
must do is to simply deny the statement of the cause
for his disinheritance. Article 919. The following shall be sufficient causes
for the disinheritance of children and descendants,
The other heirs have the burden of proving legitimate as well as illegitimate:
the truth behind the statement of the cause of
disinheritance. The ground must exist in reality so (1) When a child or descendant has been
that the other heirs may be able to prove it if denied. found guilty of an attempt against the life
of the testator, his or her spouse,
The reason for this rule is because the other descendants, or ascendants;
heirs are the ones who will benefit from the share of
the disinherited heir. (2) When a child or descendant has accused
the testator of a crime for which the law
The burden of proof shifts to the disinherited prescribes imprisonment for six years or
heir to prove the falsity of the cause in case the other more, if the accusation has been found
compulsory heirs succeed in proving the truth of the groundless;
cause.
(3) When a child or descendant has been
Defective disinheritance.– A disinheritance, convicted of adultery or concubinage with
which is made without a specification of the cause or the spouse of the testator;
with a cause, the truth of which if contradicted, is not
(4) When a child or descendant by fraud,
proven or which is not of those enumerated by the
violence, intimidation, or undue influence
law as a ground for disinheritance, is fatally defective.
causes the testator to make a will or to
The effect produced is the annulment of the change one already made;
institution of heirs insofar as it may prejudice the (5) A refusal without justifiable cause to
compulsory heir that is disinherited. However, the support the parent or ascendant who
devises and legacies and other testamentary disinherits such child or descendant;
dispositions that do not impair the legitime are not
affected and continue to be valid. (6) Maltreatment of the testator by word or
deed, by the child or descendant;
A defective disinheritance is not the same as
preterition, since it does not totally annul the (7) When a child or descendant leads a
institution of heirs. dishonorable or disgraceful life;

Defective disinheritance and preterition (8) Conviction of a crime which carries with
distinguished.– The following are the differences:30 it the penalty of civil interdiction. (756, 853,
674a)
Defective
Preterition Article 920. The following shall be sufficient causes
Disinheritance
for the disinheritance of parents or ascendants,
There is a reason, There is no cause or
whether legitimate or illegitimate:

30 Ibid., p. 162

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 Civil Code of the Philippines
WILLS AND SUCCESSION
(1) When the parents have abandoned their
children or induced their daughters to live
a corrupt or immoral life, or attempted
against their virtue;
(2) When the parent or ascendant has been
convicted of an attempt against the life of
the testator, his or her spouse, descendants,
or ascendants;
(3) When the parent or ascendant has
accused the testator of a crime for which the
law prescribes imprisonment for six years
or more, if the accusation has been found to
be false;
(4) When the parent or ascendant has been
convicted of adultery or concubinage with
the spouse of the testator;
(5) When the parent or ascendant by fraud,
violence, intimidation, or undue influence
causes the testator to make a will or to
change one already made;
(6) The loss of parental authority for causes
specified in this Code;
(7) The refusal to support the children or
descendants without justifiable cause;
(8) An attempt by one of the parents against
the life of the other, unless there has been a
reconciliation between them. (756, 854,
674a)
Article 921. The following shall be sufficient causes
for disinheriting a spouse:
(1) When the spouse has been convicted of
an attempt against the life of the testator,
his or her descendants, or ascendants;
(2) When the spouse has accused the
testator of a crime for which the law
prescribes imprisonment of six years or
more, and the accusation has been found to
be false;
(3) When the spouse by fraud, violence,
intimidation, or undue influence cause the
testator to make a will or to change one
already made;
(4) When the spouse has given cause for
legal separation;
(5) When the spouse has given grounds for
the loss of parental authority;
(6) Unjustifiable refusal to support the
children or the other spouse. (756, 855, 674a)
MEESEEKS NOTES ON SUCCESSION
Persons that can be disinherited.– The
following persons may be disinherited:
1. Children or descendents;
2. Parents or ascendants; and
3. Surviving spouse.
Exclusive enumeration.– Articles 919 to 921
enumerate the grounds on which disinheritance may
be based. This enumeration is exclusive. Aside from
these, no other grounds are available to the testator.
Common causes or grounds.– The common
grounds are the following:
1. An attempt against the life of the
testator, his or her spouse, descendants
or ascendants;
2. The person disinherited has accused the
testator of a crime for which the law
prescribes a penalty of 6 years or more if
the accusation has been found
groundless or false;
3. The person disinherited causes the
testator to make a will or to change one
already made by fraud, violence,
intimidation or undue influence; and
4. A refusal to give support the testator,
the children or descendants without just
cause.
Children or Descendants
The grounds for disinheriting children,
whether legitimate or illegitimate, are based on acts of
ingratitude and unworthiness.
Attempt against the life of the testator.–
This covers consummated, attempted, and frustrated
parricide, murder or homicide, but requires final
judgment or conviction
Accusation of a crime.– Two requirements
must concur here:
1. The crime charged is punishable by
imprisonment for 6 years or more; and
2. The accusation has been found
groundless.
“Groundless” means without any ground, or
malicious.
Conviction of adultery or concubinage with
the spouse of the testator.– A conviction of final
judgment is required for this ground.
Causing the testator to make or change a
will by unlawful means.– So long as the heir to be
29
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WILLS AND SUCCESSION
disinherited causes the testator to make a will or
change one already made by unlawful means, this
ground can be used as basis of disinheritance. The
change need not be in favour of the child or
descendant.31
Refusal without just cause to give support.–
The refusal must be unjustified. In order that the
refusal, being unjustified, may be a ground for
inheritance, it is not necessary that there be judicial
demand. Any refusal of a just demand for support is
sufficient.32
Maltreatment of testator by word or deed.–
No need of a conviction by a court. The maltreatment
by word or slander must be understood in its
ordinary sense. Ordinary insults are included.
Leading a dishonourable or disgraceful
life.– As explicitly and repeatedly stated by Dean
Aligada in his commentary, homosexuality is not in
itself tantamount to living a shameful or disgraceful
life. Hence, it cannot be made the basis of
disinheritance.
Civil interdiction.– There must be a
judgment condemning the heir to civil interdiction
before the disinheritance.
Parents or Ascendants
Abandonment of children.– What the law
contemplates here is total forgetfulness of duties as
parents. Mere failure to provide support is
insufficient.
Loss of parental authority.– There must be a
judgment depriving the parents of parental authority.
Mere existence of the ground is insufficient. There
must be actual deprivation or loss of parental
authority.
If parental authority is restored, the effect is
subject to debate. One view submits that it restores to
the parents the right to succeed and any
disinheritance already made shall be rendered void,
because the ground relied upon for disinheritance no
longer exists.33 Another view submits that the
disinheritance will remain in effect since the basis is
not the loss of parental authority but the offense
committed by the offender.34
Attempt by one parent against the life of
the other parent.– This covers consummated,
31 3 Caguioa 302
32 Ibid.
33 3 Jurado 339, citing Manresa; 3 Caguioa 306, citing
Manresa
34 3 Jurado 339, citing Sanchez Roman
MEESEEKS NOTES ON SUCCESSION
attempted or frustrated parricide. The intent to kill
must be present and there is no need of final
judgment of conviction for this to be a ground for
disinheritance.
Note: The ground, however, may be extinguished by
reconciliation of the parents. The pardon of the
spouse is presumed to be the pardon of the children
as well.
Surviving Spouse
Giving cause for legal separation or loss of
parental authority.– The mere existence of a ground
for either legal separation or loss of parental authority
is sufficient.
Article 922. 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. (856)
Effect of reconciliation.– If reconciliation
was made before the disinheritance it deprives the
testator of the right to disinherit. If it was made after
the disinheritance, it renders the disinheritance
ineffective.35
Reconciliation and pardon are not the same.
The former is bilateral because it requires the consent
and acceptance by the disinherited heir, while the
latter is unilateral.
Incapacity to succeed.– When the testator
makes a ground of unworthiness a cause of
disinheritance, he converts the former into the latter,
and it ceases to be a ground of unworthiness so that
once reconciliation occurs the disinheritance becomes
ineffectual. The heir will not inherit because he is
incapacitated to succeed, not because he has been
disinherited.36
Article 923. The children and descendants
of the person disinherited shall take his or her place
and shall preserve the rights of compulsory heirs
with respect to the legitime; but the disinherited
parent shall not have the usufruct or administration
of the property which constitutes the legitime. (857)
Applicability of the provision.– This applies
only where children or descendants are disinherited.
The right of representation exists in the descending
line and never in the ascending. The spouse has no
right of representation. Hence, it only applies to
children or descendants.
35 3 Caguioa 308
36 3 Caguioa 309
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LEGACIES AND DEVISES

LEGAL OR INTESTATE SUCCESSION

MEESEEKS NOTES ON SUCCESSION 31