Q & A ON SUCCESSION

Law 311 (4 units)

By: Atty. Angelito B. Eder

Faculty, College of Law
University of Northern Philippines

(Based on Civil Code of the Philippines Annotated, by Edgardo L. Paras, Rex Book Store:
Manila, Philippines, 1999 edition; Notes and Cases on Succession, Based on Lectures given by
Prof. Ruben Balane and Prof. Araceli Baviera, Compiled and Edited by Rodell A. Molina, UP
Law Batch 1996; and SUCCESSION THE AWESOME NOTES, prepared by: Sonia Ablan, AAA –
BASTE/ATB)

Assignment No. 1

Q. WHAT IS DONATION MORTIS CAUSA?

A. Donation mortis causa is s a mode of acquisition by virtue of which property, rights and
obligations to the extent of the value of the inheritance of a person are transmitted
through his death to another or others either by his will or by operation of law. (Article
774, New Civil Code)

Q. WHAT ARE THE ELEMENTS OF SUCCESSION MORTIS CAUSA?

A. The elements of succession/donation mortis causa are:

1. it is a mode of acquisition of ownership

2. it is a transfer of property, rights, and obligations to the extent of the value of the
inheritance or a person (called grantor or transferor, decedent, testator or
intestate)
3. transmission thru or upon death (not during the life)
4. there is transmission to another (called grantee, or transferee, heir, legatee, or
devisee)
5. transmission is by will (testamentary succession) or by operation of law (intestate of
legal succession)

Q. DIFFERENTIATE SUCCESSION FROM INHERITANCE.

A. Inheritance is the property, right, or obligation of, acquired from, a deceased person
which are not extinguished by his death; while succession is the manner by virtue of
which the property or right is acquired.

Q. IS TRADITIO/DELIVERY REQUIRED FOR OWNERSHIP TO TRANSFER?

A. No. Tradition or delivery is not required for ownership to transfer because ownership is
transferred upon death.
Q. WHAT IS THE ETYMOLOGY OF THE WORD “SUCCESSION”?

A. The etymology of the word “succession” are the Latin words:

Sub, which means under; and

Cedere, which means to pass or give.

Therefore, it means passing under. Under roman law, a personality occupies

space, that is, a legal personality is permanent. A permanent fixture but the occupant will
go away. And it is the succession who will occupy the space left vacant. Personality is
always there but there has always to be an occupant.

Q. WHAT ARE REQUIRED FOR TRANSMISSION OF RIGHTS AND/OR OBLIGATIONS

BY SUCCESSION?

A. The requirements for transmission of rights and/or obligations by succession are:

1. There is death (either actual or presumed) of the grantor, transferor, decedent, or

testator)
2. There exists a property, right, and/or obligation are indeed transmissible
3. The transferee is alive the moment the grantor, transferor, decedent, or testator dies
4. The transferee accepts or must not repudiate the inheritance
5. The transferee must be capacitated to inherit.

Q. WHAT DOES INHERITANCE INCLUDE?

A. Inheritance include the following:

1. property;
2. rights not extinguished by death
3. obligations not extinguished by death (to the extent of the value of the inheritance)

Q. WHAT IS/ARE THE BASIS/BASES OF THE LAW ON SUCCESSION?

A. The bases of the law on succession are:

1. The bases of the law on succession are: Natural law which obliges a person to
provide for those he would leave behind (this is a consequence of family relations; a
recognition of the natural law of consanguinity, or of blood, and the natural affection of a
person toward those nearest him in relationship. (Heny v Thomas, 20 N.E. 519, 118 Ind.
23.)

2. The socio – economic postulate which would prevent wealth from becoming
inactive or stagnant. This is essential from an economic standpoint to enable social
economy to be firm (4 Castan 148)

3. The implicit attributes of ownership which would be imperfect if a person is

not allowed to dispose of his property, such disposal to take effect when he is already
dead. This is a consequence of rights to property (6 Manresa 297 – 298, Guevara v
Guevara, et al., L – 5405, Jan. 31, 1956)
Q. WHAT ARE THE RIGHTS EXTINGUISHED BY DEATH?

A. The rights extinguished by death are:

1. intransmissible personal rights (arising from family, marital, filial relations,

partnership, agency, life annuity)
2. right to claim acknowledgment or recognition as an illegitimate child (Conde v.
Abaya, 13 Phil. 240)
3. right to hold public office or job (Ho Niu vs Collector of Customs 36 Phil. 433

Q. WHAT ARE THE RIGHTS NOT EXTINGUISHED BY DEATH?

A. The rights not extinguished by death are:

1. right to bring an action for forcible entry or unlawful detainer

2. right to compel execution of a document necessary for convenience, provided
the contract is valid and enforceable under the Statute of Frauds
3. right to continue a lease contract, as a lessor or lessee, unless otherwise
provided for in the contract itself. Rent comes from the inheritance. If rent comes from
the personal money of the heir, the obligation to pay the rent already belong to the heir
and no longer the decedent
4. property right in an insurance policy like the interest of a beneficiary in a life
insurance policy is a vested interest, provided the designation of the beneficiary is
irrevocable, unless the policy itself provides otherwise.

Q. WHAT ARE REQUIRED SO THAT AN HEIR CAN SUCCEED TESTAMENTARY?

A. The following are required so that an heir can succeed in testate succession are:

1. The testator must be alive at the time of the making of the will
2. The testator must be capacitated to make a will, that is 18 years of age or over
and must possess soundness of mind at the time the will is made
3. The transferee must likewise be capacitated (must have legal personality)
4. The will must be either a valid notarial or holographic will
5. There must be a valid institution of heir or proper substitution
6. The heir must not be disinherited
7. The heir must not repudiate the inheritance
8. The transferee must be alive at the time the testator dies, that is, no pre
decease
9. There must be a net estate, that is, which is transmissible;
10. The will must be duly probated.

Q. WHAT ARE THE DIFFERENT KINDS OF WILL?

A. The different kinds of will are:

1. Holographic will. It is a will which is entirely written, dated, and signed by the
testator.
2. Notarial will. It is a will signed/attested before three competent witnesses, who in turn
likewise sign the same in the presence of one another, and acknowledged and signed by a Notary
Public.
Q. WHAT DOES INHERITANCE INCLUDE?

A. Inheritance includes the following:

1. property
2. transmissible rights
3. transmissible obligations

Q. HOW IS IT DIFFERENT FROM AFTER – ACQUIRED PROPERTIES?

A. Inheritance is different from after – acquired properties in that what is given by the testator in the
will is inheritance but properties which the testator may acquire or own after the making of the
will but before his death is not given or disposed of the in the testator provides otherwise in his
will.

Properties which may belong to the testator after his death cannot be the object of a will nor can
the testator dispose of the same in the will. Such property will be subject to intestate succession.

Q. WHO IS AN HEIR?

A. An heir is one who succeeds to the whole or a portion or fraction of the inheritance or the net
estate, either by will or by operation of law.

Q. WHO IS A DEVISEE AND LEGATEE?

A. A devisee is a person to whom gifts of real property is given by will

A legatee is a person to whom gifts of personal property is given by will

Q. WHO ARE THE TRANSFEREES IN TESTAMENTARY SUCCESSION?

A. The transferees in testamentary succession are:

1. a compulsory heir, who succeeds to the legitime;

2. a devisee;
3. a legatee;

Q. WHO ARE THE TRANSFEREES IN LEGAL SUCCESSION?

A. The transferees in legal succession are:

1. Descendants
2. Ascendants
3. Collateral relatives up to the 6th civil degree of consanguinity.

Q. IS THE LAW ON SUCCESSION A LAW OF PERSONS OR LAW OF PROPERTY?

The law on succession is

Assignment No. 2 (Library Computer)

Q. WHAT ARE THE CHARACTERISTICS OR ESSENTIAL ELEMENTS OF A WILL?

A. The characteristics of essential elements of a will are as follows:

1. The making of a will is a statutory, not a natural, right. The right to make a will is
granted by civil law, thus, may be taken away. Public policy and interest can
override the making of a will. Although it is a statutory right, it is not a
constitutional right.

This also means that the formalities are governed by statutes.

2. It is a unilateral act. While the testator is alive, any acceptance by the heir is useless. It
does not involve an exchange of values or depend on simultaneous offer and
acceptance

3. It is a solemn . This means that a will must be made or executed in accordance with
the formalities provided for by law.

4. It is formally executed. As a formal act, if the form of the will is defective, it is void. It
cannot be cured.

5. There must be animus testandi (intent to make a will. This means an intent to dispose
mortis causa the property of the testator, There must be a real intent to make a
will or a disposition to take effect upon death of the testator. The intent must appear
from the words of the will

6. It is a personal act. This means that is its non – delegable. Personal participation of
the testator is required

The mechanical act of drafting of a notarial will could be delegated. What is non –
delegable is the manner of disposition, that is, what property should be given to whom,
and the conditions therefor, if any

7. It is effective mortis cause. It takes effect only upon the death of the testator.

8. It is essentially revocable or ambulatory. A will is not fixed. It can be taken back. It is

revocable at will. It only becomes irrevocable upon the death of the testator.

9. It is free from vitiated consent or a free act. It means that its execution must be
without fraud, violence, deceit, duress, or intimidation.

10. It is an individual act.

11. It disposes of the estate, either totally or partially. If it does dispose of property it is
useless, unless:

a. it recognizes an illegitimate child

b. the will disinherits a compulsory heir
c. the will appoints an executor.
 12. Testamentary capacity of the testator.

Q. WHAT MAKES THE MAKING OF A WILL A PERSONAL ACT?

A. The act of drafting may be delegated as long as the disposition expresses the desires of
the testator. The disposition 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.

Q. WHAT ARE THE DIFFERENT KINDS OF AMBIGUITY IN A WILL?

A. The different kinds of ambiguity in a will are:

1. Latent, Intrinsic, or Hidden Ambiguity. The ambiguity does not appear on the face of
the will. It is discovered only by extrinsic evidence. The ambiguity is
determined only when the will is probated.

Example. A testator disposes of in his will a land that does not belong to him.

This may arise when:

a. there is an imperfect description of the property;

b. there is an imperfect description of the heir
c. there is only one recipient designated but it turns out that two or more
persons fit the designation or description of the recipient

2. Patent, Extrinsic, or Apparent Ambiguity. This appears on the fact of the will itself by
examining the will.

Example. I give one – half of my estate to one of my two brothers.

Q. WHAT ARE THE DIFFERENT KINDS OF VALIDITY OF A WILL?

A. The different kinds of validity of a will are:

1. Extrinsic Validity. This refers to the form and solemnities required by law, from the
viewpoint of:

a. time: what must be observed is the law in force at the time the will is made
b. place
- if the testator is a Filipino, he can observe Philippine laws or laws of the
country where he may be at the time he executes the will.
- if the testator is an alien, law of his domicile, nationality, or where he is
- if the testator is an alien in the Philippines, he must follow the law of his
nationality, or laws of the Philippines since he executes his will
in the Philippines

Example. Number of witnesses to a notarial will. If there is only 2 witnesses, the will is
invalid.
 2. Intrinsic Ambiguity. This refers to the legality of the provisions of the will from the
viewpoint of:

a. the disposition: whether or not a disposition impairs the legitime

b. time of death: successional rights are governed by the law in force at the time
of death of the testator
c. place: testamentary dispositions are governed by the national law of the
decedent or the laws of the country of which he is a citizen of, regardless
of the place of execution

Q. HOW TO INTERPRET A WILL OR WHAT ARE THE RULES IN THE

INTERPRETATION OF A WILL?

A. The rules in the interpretation of a will are:

1. Words are to be taken in their ordinary and grammatical sense.

Exception: There is a clear intention to use them in another sense which can be
ascertained.

2. Technical words are to be taken in their technical sense.

Exceptions: 1. There is a contrary understanding by the testator which can also be

ascertained in the will. This understanding prevails.
2. It satisfactorily appears that the will was drawn solely by the
testator, and that he was unacquainted with such technical
sense. In this case, the interpretation given to the will must
conform to his intentions as determined from the will

3. The will must be interpreted as a whole which will give every expression some effect
rather than rendering it inoperative.

4. That interpretation which favors testacy rather than intestacy is favoured. This is so in
order to give effect to the wishes of the testator.

5. Invalidity of one of several dispositions does not invalidate other dispositions.

Exception. It is to be presumed that the testator would not have made such other
dispositions if the first invalid disposition had not been made.

Q. WHAT ARE THE RULES ON AFTER – ACQUIRED PROPERTIES?

A. The rules on after – acquired properties are:

1. What are given by the will are only those already possessed and owned by the testator
at the time of the making of the will.
 Exceptions: (After – acquired properties, that is, properties acquired after the
making of the will, are also given to the persons designation in
the will.

1. If it expressly appears in the will that it was the intention to give such after –
acquired properties.

2. If the will is republication or modified by a subsequent will or codicil. The

properties owned at the time of the republication, or time of making of
the codicil, shall be given

3. If at the time the testator made the will he errosneously thought that he owned
certain properties, the gift of said properties will not be valid, unless
after making the will, said properties will belong to the testator.

4. Legacies of credit or remission are effective only as regards that part of the
credit or debt existing at the time of the death of the testator, not from
the time of the making of the will.

Q. WHAT ARE THE RULES ON WHAT INTEREST MAY BE DISPOSED OF BY WILL?

A. The rules on what may be disposed of by will are:

1. The entire interest of the testator in the property given, no more, no less.

Exceptions: (What is given may be more, or less, than the testator’s interest in the
property given)

a. He can convey a lesser intent if such intent clearly appears in the will. (Art.
794)

b. He can convey a greater interest, thus, the law provides “if the testator . . .
owns only a part of, or an interest in the thing bequeathed, the legacy or
devise shall be understood limited to such part or interest, UNLESS the
testator expressly declares that he gives the thing in its entirety.” (Art.
929)

This can be done thru purchase by the testator (while still alive) his executor or
administrator (if already dead) of the extra interest or by giving its equivalent value to
the legatee or devisee. (Art. 931)

c. Give property which he very well know does not belong to him (Arts. 930 and
931) provided that it does not belong to the legatee or devisee. (Art.
937)

If the testator thought that the property is his own but in reality is not, the legacy
or devise is void, unless the property subsequently becomes his.

Q. DISTINGUISH BETWEEN TESTAMENTARY POWER AND TESTAMENTARY

CAPACITY?
A. Testamentary power and testamentary capacity are distinguished as follows:

1. Testamentary power is the statutory right to dispose of property by acts effective

mortis cause.

Testamentary capacity is the right to make a will provided certain conditions are
complied with; namely:

a. that the testator is not prohibited by law to make a will (Art. 796);
b. that the testator is at least 18 years of age (Art. 797); and
c. that the testator be of sound mind at the time of the execution of the will. (Art.
798)

Soundness of mind means that the testator knows the:

a. nature of the estate;

b. proper objects of his bounty (the person/s who is/are to receive the estate by
will); and
c. character of the testamentary act (knows that it is effective upon his death)

2. Testamentary capacity may be classified as:

a. active testamentary capacity, which is the capacity to make a will or codicil,

and is often referred to as testamentary power
b. passive testamentary capacity, which is the capacity to receive by virtue of a
will, and is often referred to as testamentary capacity.

3. Testamentary capacity is the ability to make a will; while testamentary power is the
privilege granted by law to someone to make a will.

Q. WHO CAN MAKE WILLS?

A. The following persons can make wills:

1. Those who possess these qualifications:

a. those who are 18 years old or over

b. who has soundness of mind at the time the will is made

Q. WHAT IS MEANT BY “SOUNDNESS OFMIND” IN ITS NEGATIVE AND POSITIVE

FORMS?

A. Soundness of mind in its negative form means that 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, 1st par.)

In its positive form it means that he knows the nature of the estate, objects of his
bounty, and the character of the testamentary act.
Q. DIFFERENTIATE THE PRESUMPTION OF SANITY AND PTESUMPTION OF
INSANITY?

A. Sanity is the presumption. The exception is insanity. He who alleges insanity must prove
the same.

Two instances where there is presumption of insanity:

1. The testator, one month or less before the making of the will, was publicly known to be
insane. The proponent must prove that the will was made during a lucid interval. (Art.
800, 2nd par)

2. The testator made the will after he had been judicially declared insane, and before
such judicial order had been set aside.

There is no presumption of insanity from:

1. Presence of delirium
2. Intoxication
3. Insanity of the parents or children of the testator

a. Formulate rules on sanity and insanity

Q. HOW DO YOU PROVE SOUNDNESS OF MIND?

A. Soundness of mind is proven by the testimony of the attesting or subscribing witnesses

as to the mental condition of the testator. It can also be proven by the testimony of a
physical who was near the testator, and if he actually saw the testator on the date of the
execution

Q. AT WHAT POINT IN TIME SHOULD WE CONSIDER THE SANITY OR INSANITY OF

THE TESTATOR?

A. The sanity or insanity of the testator is considered at the time of the execution of the will.
However, supervening capacity or incapacity does not produce effect, that is, validate an
invalid will or invalidate a valid will

Q. WHAT MAY A MARRIED WOMAN DISPOSE OF BY WILL?

A. A married woman can dispose of her share in the conjugal partnership or in the absolute
community of property even without the consent of the husband nor the approval or
authority by the Court.

Q. WHAT ARE THE DIFFERENT FORMS OF WILLS ALLOWED IN THE PHILIPPINES?

DESCRIBE EACH

A. The form of will allowed in the Philippines are:

 1. Holographic will or one that is entirely written, dated, and signed by the testator
2. Notarial will or one which is duly notarized and witnessed by at least 3 attesting
witnesses who must all attest that they and the testator signed the will in the
presence of one another

Q. WHAT ARE THE REQUIREMENTS OF A NOTARIAL WILL?

A. The requirements of a notarial will are:

1. It must be in writing
2. Must be executed in language or dialect known to the testator
3. It must be subscribed or signed at the end by the testator himself or by the testator’s
name written by another person in his presence and by his express direction
4. It must be attested and subscribed to by three or more credible witnesses in the
presence of the testator and one another
5. The testator or the person requested to write the testator’s name, and the three
instrumental witnesses shall sign each and every page of the will on the left
margin, except the last page
6. All pages must be numbered correlatively in letters placed on the upper part of each
page
7. The attestation clause shall state:
a. the number of pages used
b. that the testator signed (or expressly caused another to sign) the will on each
and every page thereof in the presence of the instrumental witnesses
c. the instrumental witnesses witnessed and signed the will and all the pages
thereof in the presence of the testator and of one another
‘
Q. DRAFT AN ATTESTATION CLAUSE

A.

Q. WHAT ARE THE RULES ON WHEN THE TESTATOR IS DEAF OR DEAF - MUTE?

A. The rules when the testator is deaf or deaf – mute are:

1. If the testator is illiterate, or cannot read, the will or its contents must be
communicated to him by two persons
2. These two persons may not be the attesting witnesses
3. The foregoing must be proved in the probate proceedings

Q. WHAT ARE THE RULES WHEN THE TESTATOR IS BLIND?

A. The rules when the testator is blind are:

1. The contents of the will must be read to the testator twice or done by two persons
2. The reading shall be done by one of the subscribing witnesses, and the notary public

A deaf – mute and blind cannot make a will.

 Substantial compliance. Its requisites are:

1. There must be no bad faith, forgery or fraud, or undue and improper pressure and
influence
2. There must be defects and imperfections in the attestation clause
3. The defects and imperfections are in:
a. the form of the attestation or
b. in the language used theren
4. There must be proof that the will was in fact executed and attested in substantial
compliance with all the requirements of article 805

Q. WHAT ARE THE GROUNDS FOR INVALIDATING A WILL?

A. The grounds for invalidating a will are:

1. That the will was not executed in accordance with the required form of holographic
wills or notarial wills
2. That the testator lacks the capacity to make a will.

Q. WHAT ARE THE REQUISITES/FORMALITIES OF A HOLOGRAPHIC WILL?

A. The requisites/formalities of a holographic will are:

1. The language of the will must be known to the testator (Art. 804)
2. It must be entirely written in the hand of the testator himself. The law requires
personal distinctiveness
3, It must be dated. The date must be definite. The reason being that in case of revision,
that of the later date should be preferred

Erasures, insertions, cancellation, or alterations must be authenticated by the full

signature of the testator (Art. 814)

4. The will must be signed by the testator himself. Full or customary signature is
required. The signature must appear at the end of the will because additional
dispositions can be written below his signature. (Art. 812)
5. There must be animus testandi. This is intent to leave a will.
6. It must be executed at a time holographic will are allowed by law and not before. Time
of death is immaterial

Q. WHAT MUST BE PROVEN FOR A NOTARIAL WILL TO BE PROBATED?

A. For a notarial will to be probated, it must be proven that:

1. the will was executed. The will itself must be exhibited as proof of its execution and
authenticity
2. the will was signed by the testator or his agent in his presence and by his express
direction at the end and in the presence of the witnesses
3. the will was attested to and signed by at least three (3) credible witnesses in the
testator’s presence and of one another
4. the testator or agent must sign every page except the last on the left margin
5. witnesses signed each and every page, except the last, on the left margin
 6. all pages must be numbered in letters on the upper part of the page
7. there must be an attestation clause
Q. WHAT MUST BE PROVEN FOR A HOLOGRAPHIC WILL TO BE PROBATED?

A. For a holographic will to be probated, it must be proven that:

1. The documentary requirements, which are:

a. the will itself must be exhibited, as proof of its execution and authenticity

Exception: If there is an existing copy or duplicate, photocopy or xerox

2. Testimonial requirements, which are:

a. where the will is uncontested, the testimony of at least one (1) witness on the
identification of the signature and handwriting of the testator
b. where the will is contested, the testimony of three (3) witnesses on the
identification of the signature and handwriting of the testator (merely
directory)

Q. WHAT ARE THE RULES FOR CURING DEFECTS IN A HOLOGRAPHIC WILL?

A The rules for curing defects in a holographic will are:

1. If the last disposition is signed and dated by the testator:

a. preceding dispositions which are signed but not dated are validated
b. preceding dispositions which are not signed but dated are void
c. preceding dispositions which are not signed and not dated are void, unless
written on the same date and occasion as the latter disposition
2. If last disposition is signed and dated by another without the testator’s consent, the
preceding dispositions are not affected. They remain void, if in themselves are
void, or remain valid, if in themselves are valid
3. If the last disposition is signed and dated by another with the consent of the testator, it
has the same effect as in no. 2 for this is not a holographic will

Q. WHAT ARE THE FORMALITIES OF WILL EXECUTED BY FILIPINOS ABROAD?

A. The formalities of will executed by Filipinos abroad are:

1. Filipinos can execute a will abroad in accordance with the forms required by the laws
of:
a. the place where he executes the will
b. the Philippines. This is permitted even if Philippine forms is not recognized in
the place of the execution of the will

Q. WHAT ARE THE FORMALITIES OF WILL EXECUTED BY ALIENS ABROAD?

A. The formalities of will executed by aliens abroad are:

1. An alien abroad can make a will in accordance with the formalities required by the law
of
a. the place of residence or domicile
b. the law of his own country or nationality
 c. the Philippines
d. the law of the place of execution
Q. WHAT ARE THE FORMALITIES OF WILL EXECUTED BY ALIENS IN THE
PHILIPPINES?

A. The formalities of will executed by aliens in the Philippines are:

1. An alien in the Philippines can make a will in accordance with the formalities required
by the law of
a. the place where he is a citizen or nationality of
b. the Philippines, where he makes the will

Q. WHAT IS A JOINT WILL? GIVE REASONS FOR ITS EXCLUSION IN THE

PHILIPPINES?

A. A joint will is one which contain in one instrument the will or dispositions of two or more
persons who jointly sign it.
They are not allowed in the Philippines because:

a. The making of a will is purely a personal act in order to allow as much as

possible secrecy
b. Prevent undue influence by more aggressive testator on the other
c. Probate would be harder in case the testators die on different times and dates
d. It militates against the right of the testator to revoke his will at any time
e. There is a temptation to kill the co – testator especially in case of husband and
wife

Q. WHAT ARE THE OTHER FEATURES OF A HOLOGRAPHIC WILL?

A. The other features of a holographic will are:

1. No witnesses are required

2. No marginal signatures on the pages are required
3. No acknowledgment is required
4. May be made by Filipinos in or out of the Philippines
5. May even be made by a blind testator
ASSIGNMENT NO. 3

Q. WHAT IS/ARE THE EFFECT/S OF JOINT WILLS EXECUTED BY FILIPINOS

ABROAD?

A. Joint wills executed by Filipinos abroad shall not be valid in the Philippines even though
valid or authorized in the place where it was executed. This is an exception to the rule on
lex loci celebrationis. (Art. 819)

Q. WHAT IS/ARE THE EFFECT/S OF JOINT WILL EXECUTED BY ALIENS ABROAD?

A. Joint will executed by aliens abroad is valid in the Philippines if it is valid in the place
where it is executed, or invalid in the Philippines if it is invalid in the place where it is
executed. We follow the law of the place of execution, or lex loci celebrationis.

Q. WHAT ARE THE QUALIFICATIONS OF A WITNESS TO A NOTARIAL WILL?

A. The qualifications of a witness to a notarial will are:

a. he must be of sound mind (Art. 820)

b. be at least 18 years of age (Art. 820)
c. he must be able to read and write (Art. 820)
d. he must not be blind, deaf, or dumb (Art. 820)
e. he must be domiciled in the Philippines (Art. 821)
f. he must not have been convicted by final judgment of falsification of a document,
perjury, or false testimony (Art. 821)

These qualifications must be present at the time of witnessing the will.

Subsequent incapacity will not prevent the allowance of the will (Art. 822)

Q. WHO ARE DISQUALIFIED FROM BECOMING WITNESSES TO A NOTARIAL WILL?

A. Those disqualified from becoming witnesses to a no0tarial will are:

1. A person not domiciled in the Philippines

2. Those who have been convicted of falsification of a document, perjury or false
testimony
3. Those who are not qualified under the preceding question.

Q. CAN A DEVISEE OR LEGATEE BE A WITNESS TO A NOTARIAL WILL? WHY?

A. A legatee or a devisee can be a witness to a notarial will because what is made void by
Article 832 is the devise or legacy.

Aside from the legatees and devisees, the following can also not be witnesses to a
notarial will:

1. legatee or devisee is a spouse of the witness. There must be a valid marriage

and not a common – law relationship
 2. legatee or devisee is a parent of the witness. The devisee or legatee may either
be a legitimate or illegitimate child of the witness. If illegitimate, there
must be a valid recognition.
3. the legatee or devisee is a child, whether legitimate or illegitimate but
acknowledged, of the legatee or devisee
The effect should these persons become witnesses is that:

1. the devise or legacy is void. This will result to intestacy with respect to the void
devise or legacy. Other legacies or devises are considered valid.
2. the act of witnessing is valid

Q. WHAT IS A CODICIL?

A. A codicil is a supplement or addition to a will, made after the execution of a will and
annexed to be taken as a part thereof, by which any disposition made in the original will
is explained, added to, or altered. (Art. 825)

The elements are:

1. it is made after the execution of a will

2. it is annexed to the will to be taken as part thereof
3. it has reference to the will by explaining, adding to, or altering, the will

Q. WHAT ARE THE ELEMENTS OF INCORPORATION BY REFERENCE?

A. The elements of incorporation by reference are:

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
numbers of pages thereof
3. It must be identified by clear and satisfactory proof as the document or paper referred
to therein. Parol evidence is needed
4. It must be signed by the testator and same instrumental witnesses on each and every
page, except in case of voluminous books of account or inventories

Q. WHO AND WHEN CAN A WILL BE REVOKED?

A. A will can be revoked by the testator at any time before his death. Any waiver or
renunciation of this right is void. (Art. 828)

Q. WHAT ARE THE CONFLICT OF RULES FOR REVOCATION OF WILLS?

A. The conflict of rules for the revocation of will are:

1. Revocation outside the Philippines

a. not domiciled in the Philippines
1) law of the place where will was made
2) law of the place of domicile of the testator
b. domiciled in the Philippines
1) law of the Philippines (because he is domiciled here)
 2) law of the place where revocation was made
2. Revocation is done in the Philippines, follow Philippine law as it is the law where
revocation is made, whether or not domiciled in the Philippines

Q. HOW MAY A WILL BE REVOKED?

A. A will may be revoked by:

a. Implication of law. This is by operation of law when certain acts or events take place
after a will has been made, rendering void or useless either the whole will or
certain testamentary dispositions therein.

Revocation of a legacy does not operate to revoke the entire will. Only total and
absolute revocation of the entire will present the probate of the revoked testament.

Reason: There may be certain changes in the family or domestic relations or in

the status of his property, such that the law presumes a change of mind on the part of the
testator

Example

1. when the testator sells or donates the legacy or devise (Art. 957)
2. the spouse of the testator has given cause for legal separation (Art. 106, par. 4)
3. when the legatee or devisee has committed acts of unworthiness under Art.
1032

The following are incapable of succeeding by reason of unworthiness

a) Parents, who have:

1) abandoned their children
2) induced their daughters to lead a corrupt or immoral life, or
3) attempted against their virtue
Rationale: immoral perversity
b) Any person, who has been convicted (before the death of the testator)
of an attempt against the life of the testator, his or her spouse,
descendants, or ascendants
Rationale: ungratefulness
c) Any person, who has accused the testator of a crime for which the law
prescribes imprisonment for six years or more, if the accusation
has been found groundless
There must be a definite acquittal not merely based on reasonable
doubt
d) Any heir of full age, who, having knowledge of the violent death of the
testator, should fail to report it to an officer of the law within a
month, unless the authorities have already taken action; this
prohibition shall not apply to cases wherein, according to law,
there is no obligation to make an accusation
Rationale: unworthiness
Requirements
1) the heir (legatee of devisee) is of full age (21)
 2) he must have knowledge of the violent death (caused by a
crime) of the testator
3) he fails to report such death within a month, unless authorities
have already taken action (already investigating the
death)
4) there is an obligation to make the accusation (This no longer
applies in the Philippines as no one really is obliged to
make any accusation unless it be state officials concerned
e) Any person, convicted of adultery or concubinage with the spouse of
the testator
The spouse himself or herself is not incapacitated by
reason of this Article 1032, although may be incapacitated
under the Family Code or Art. 106 of the old Civil Code)
f) Any person who by fraud, violence, intimidation, or undue influence
should cause the testator to make a will or to change one already
made
g) Any person, who by the same means prevents another from making a
will, or from revoking one already made, or who supplants, or
alters the latter’s will
4. when a credit given as a legacy has been judicially demanded by the testator
(Art. 936)
5. when one, some or all of the compulsory heirs have been preterited or omitted,
the institution of heir is void (Art. 854)

Remedy of testator to remove the revocation by implication of law

Execute a new will or codicil restating the revoked disposition.

b. Revocation by an overt act (There is total revocation)

Requisites:

1. There must be an over act specified by the law (by burning, tearing,
cancelling, or obliterating the will)
2. There must be a completion, at least of the subjective phase of the overt act
3. There must be animus revocandi or intent to revoke
4. The testator at the time of revoking must have capacity to make a will
5. The revocation must be done by:
a) the testator himself
b) some other person in his presence and by his express direction.
Ratification of an unauthorized revocation is permitted as long
as there is sufficient proof of ratification

OVERT ACT OF BURNING. It is enough that a part of the will is burned although
the writing is left unscorched
OVERT ACT OF TEARING. It is also enough that even a slight tear on the will is
made by the testator. The greater the tear,
the greater is the evidence of animus revocandi
Acts not constituting tearing even if there is animus revocandi
 a) crumpling because it is not an overt act stated in the law (Roxas v
Roxas allowed it, provided there is animus revocandi
b) removal of faster binding the pages of the will
OVERT ACT OF OBLITERATING OR CANCELLING, TOTALLY OR PARTIALLY.
Obliteration renders the word illegible.
Cancellation is the drawing of lines across a
test, but the word remains legible.
Cancellation or obliteration of the signature is total because this goes into
the very heart of the existence of the will

c. Revocation by the execution of another will or codicil, express or implied

Implied. When there is complete inconsistency between the two wills.

Some Notes

1. Conditional revocation is allowed (dependent relative revocation)

2. Lost or destroyed without intent to revoke, notarial will may still be probated,
and its contents may be proved by:
a. oral or parole evidence
b. carbon copies

Q. WHAT ARE NOT AFFECTED BY THE REVOCATION OF A WILL?

A. What are not affected by the revocation of a will is/are provision/s stand can stand alone.
These are not affected because in this case there is merely a partial revocation.

Examples

a. Recognition of an illegitimate child (not affected by revocation even if revocation is

total because recognition can stand alone) if the recognizing will is
extrinsically valid (meet the formal requirements under the law)
b. Revocation of a particular legacy or devise. Other legacy or legacies, devise or devisees
nor revoked remain effective

Q. WHAT IS REPUBLICATION?

A. Republication is the process of re - establishing a will, which has become useless because
it was void, or had been revoked

Q. HOW IS IT MADE?

A. It is made by:

a. re – execution of the original will by copying the original provisions

b. execution of a codicil (implied republication (Art. 836)

Q. WHAT ARE THE REQUISITES AND LIMITATIONS OF REPUBLICATION?

A. The requisites and limitations of republication are:

 1. to republish a will void as to its form (reproduce or copy the void will into the new
will).
2. to republish a will valid as to its form but already revoked, execution of a codicil which
makes reference to the revoked will. There is no necessity of reproducing all
the previous dispositions. But there is nothing wrong with re – execution.

Q. WHAT ARE THE EFFECTS OF REPUBLICATION BY VIRTUE OF A CODICIL?

A. The effects of republication by virtue of a codicil are:

1. The codicil revives the previous will

2. The old will is republished as of the date of the codicil
3. A will republished by a codicil is governed by a statute enacted subsequent to the
execution of the will, but which was operative when the codicil was executed

Q. DIFFERENTIATE REPUBLICATION FROM REVIVAL?

A. Republication is an act of the testator

Revival takes place by operation of law. It is the restoration or reestablishment of
revoked will or revoked provisions thereof, to effectiveness, by virtue of legal provisions

Examples of revival

1. Omission of a compulsory heir in the institution of heirs annuls the institution. If

the omitted heir dies ahead of the testator, the institution is revived, without
prejudice to the right of representation
2. If after making a will, the testator makes a second will impliedly revoking the first, the
revocation of the second will revive the first will (Art. 837)

EXPRESS REVOCATION – Principle of INSTANTER

The express revocatory clause of the second will took effect immediately or at the
instant the revoking will was made (Art. 837). It does not give effect to a revival

Example: A made 3 wills. Will No. 2 expressly revoked will no. 1. Will no. 3
revoked will no. 2. Will no. 1 is not revived because the revocation is express.

IMPLIED REVOCATION

Example. A made 3 wills. Will no. 2 is completely inconsistent (implied

revocation) with will no. 1. Later, will no. 3 revokes will no. 2. Will no. 1 is revived. Art.
837 does not apply because it speaks of express revocation, not implied revocation

Q. WHAT IS PROBATE?

A. Probate is the act of proving before a competent court the due execution of a will by a
person possessed of testamentary capacity, as well as approval thereof by said court.

Kinds of Probate
 1. Probate during the lifetime of the testator. This does not prevent the testator from
revoking the probated will or from making another one
2. Probate after the tesstator’s death
Contents of the petition for probate

1, The fact that the testator is dead, place, and time of death
2. The fact that the testator left a will, copy of which shall be attached to the petition
3. The fact that the will was executed in accordance with the legal requirements
4. Names, ages, addresses of the executor and all interested parties, or heirs
5. The probate value and character of the estate
6. Name of the individual whose appointment as executor is being asked for
7. If the will has not been delivered to the court, the name of the person who is supposed
to have the will in his custody

Parts of Post – Mortem Probate

1. The probate proper (deals with the extrinsic validity

2. The inquiry into intrinsic validity and the distribution itself of the property.

Q. WHO CAN HAVE THE WILL PROBATED BY THE COURT?

A. The following can have the will probated:

1. Executor
2. Devisee
3. Legatee
4. Other interested persons like creditors

Effect of Probate Proper (Extrinsic Validity)

As long as there has been final judgment by a court of competent jurisdiction and
the period for filing a petition for relief has expired without such petition having been
submitted:

a. the probate proper (or allowance) of the will is binding upon the whole world
(proceeding in rem) in so far as testamentary capacity and due
execution (including all formalities and absence of any ground for
disallowance) are concerned

Notes

a. Order allowing probate of the will is not interlocutory and is, therefore,
immediately appealable.
b. In no case shall the judgment be conclusive on matters such as ownership of
property.
c. Only persons having interest like heirs, legatees or devisees can question the
validity of the order of distribution that has long become final
Q. DISTINGUISH THE PROBATE PROPER DEALING WITH THE EXTRINSIC VALIDITY
AND THE INQUIRY INTO THE INTRINSIC VALIDITY AND DISTRIBUTION OF THE
PROPERTY?

A. 1. Probate proper dealing with extrinsic validity refers to the determination by the court
of:

a. the testamentary capacity of the testator (age and being of sound mind)
b. the due execution of the will (formalities and absence of any ground for
disallowance)

2. Proceedings dealing with intrinsic validity refers to:

a. the exclusion of widow from inheritance

b. disinheritance of a daughter
c. impairment of the legitime
d. declaring a certain woman to be the true wife of the testator
e. partitioning of conjugal property
f. right of the widow to the inheritance
g. titles to property and annulment of fraudulent sales

If these matters are passed upon in the probate proper, they do not give rise to
res judicata.

3. Distribution of the property follows

Q. WHAT ARE THE GROUNDS FOR THE DISALLOWANCE OF A WILL?

A. The grounds for the disallowance of a will are:

1. If the formalities required by law have not been complied with

2. If the testator was insane, or otherwise incapable of making a will, at the time of its
execution
3. If it was executed through force or undue duress, or the influence of fear, or threats

Notes

a. Making a mistress, or illegitimate child of the testator, heirs of the entire

free portion is not undue influence as long as it is voluntary
b. Undue influence is present when the testator does something because of
fear, or a desire for peace, or from any other feeling which he is unable
to resist
c. There is undue influence when a person takes improper advantage of his power
over the will of another, depriving the latter of a reasonable freedom of choice

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
 Notes

a. Fraud is the use of insidious machinations to convince a person to do what

ordinarily he would not have done. There must be intent to defraud
b. Fraud and undue influence are mutually repugnant and exclude each other.
Their joining as grounds for opposing probate shows the absence of
definite evidence against the validity of the will

Revocation Disallowance

1. voluntary act of the testator - by judicial order

2. with or without cause - always be for a legal cause
3. partial or total - always total, except if it affects only a part

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

Q. WHAT IS THE REASON FOR THE NON – NECESSITY OF INSTITUTION OF AN

HEIR?

A. The reasons for the non – necessity of institution of an heir are:

1. A will, unless otherwise defective, is valid, even if:

a. there is no institution of heir

b. the instituted heir is given only a portion of the estate. Mixed succession is
allowed
c. the heir instituted should repudiate or be incapacitated to inherit.

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

Requisites of valid institution

1. The will must be extrinsically valid

2. The institution must be intrinsically valid (Legitime must not be impaired, heir must
be certain or ascertainable, there should be no preterition)
3. The institution must be effective (no pre decease, no repudiation by the heir, no
incapacity of the heir)

Q. WHAT IS A LAWFUL LIMITATION ON THE RIGHT OF DISPOSITION BY THE

TESTATOR?

A. A lawful limitation on the right of disposition by the testator is that the legitime of
compulsory heirs must not be prejudiced.

Q. DIFFERENTIATE INSTITUTION FROM DESIGNATION

A. Institution is the giving of legacy or devise the legatee or devisee or heir from the free
portion not the legitime.

Rules Relevant to Disposition or Institution

1. Disposition or institution of unknown person/persons (one who cannot be identified

from the will) is void
2. If the identity becomes certain by some event or circumstance, the disposition is valid
3. Disposition in favor of a definite class or group of persons shall be valid
4. In the institution of descendants or relatives of a legatee, all the descendants and
relatives will inherit per stirpes.
5. Heirs instituted without designation of shares shall inherit in equal parts

Designation is the act of the testator in naming the legatee or devisee or heir

Q. WHAT ARE THE RULES IN THE DESIGNATION OF AN HEIR?

A. The rules in the designation of an heir are as follows:

1. Designation is by name and surname

2. Two persons having the same name, indicate some circumstance by which the
instituted heir may be known
3. Names may be omitted as long as the testator designate the heir in such a manner that
there can be no doubt as to who has been instituted
4. In case of doubt, after applying the foregoing rules, no one inherits

Effect of error in the designation

1. does not vitiate the designation as long as the intent is clear and there is positive
identification

Q. WHAT IS THE SHARE OF INSTITUTED BROTHERS AND SISTERS?

A. The share of instituted brothers and sisters is equal sharing.

Q. WHAT IS THE SHARE OF INSTITUTED HALF BROTHERS AND HALF SISTERS?

A. The share of instituted half brothers and half sisters are:

1. In intestate succession. Brother of the full blood and brother of the half - blood gets the
same share unless a different intention appears
2. In intestate succession. Brother of the full blood gets double the share of the brother of
the full blood

Q. DIFFERENTIATE SIMULTANEOUS INSTITUTION FROM SUCCESSIVE

INSTITUTION?

A. In simultaneous institution, all of the instituted heirs inherit. This is presumed unless
otherwise provided by the testator in the will itself.
 Example: I institute A and his children. All of them inherit at the same time.

In successive institution, the succession is in the order provided by the testator. The
second in order only inherits where the first one instituted dies. This is not presumed
from the will but must be expressly provided by the testator in his will.

Example. I institute A to my estate of P 50,000.00. In the event that he cannot, I

institute his children to the same estate.

Q. WHAT IS/ARE THE EFFECT/S OF A STATEMENT OF A FALSE CAUSE IN THE

INSTITUTION?

A. The effect/s of a statement of a false cause is:

1. it (false cause) shall be considered as not written

2. if it appears from the will that the testator would not have made such institution if he
had known the falsity of such case, the institution is ineffective.

Q. WHAT IS THE EFFECT OF A STATEMENT OF AN ILLEGAL CAUSE FOR

INSTITUTION?

A. The effects of a statement of an illegal cause for institution are:

1. If the real motive is illegal, the institution is void

2. If the real motive is the liberality or generosity of the testator, or affection, and the
illegal cause is only incidental, the institution should be given effect.

Q. WHAT IS MEANY BY AN ALIQUOT PART?

A. An aliquot part means a portion, but not the entire, of the inheritance or estate

Q. WHEN CAN THERE BE A PROPORTIONATE INCREASE OF THE ALIQUOT PART

GIVEN TO INSTITUTED HEIRS?

A. There can be a proportionate increase of the aliquot part given to an instituted heir if it is
the intention of the testator that the instituted heirs should become sole heirs to the
whole estate, or the whole free portion.

Example. I hereby institute as my only heirs A and B each one to get 1/3 of my estate.
The 1/3 undistributed should clerly be divided proportionately or equally between A and
B.

Q. WHEN CAN THERE BE A PROPORTIONATE DECREASE OF THE ALIQUOT PART

GIVEN TO INSTITUTED HEIRS?

A. There can be a proportionate decrease of the aliquot part given to instituted heirs where
each of the aliquot parts given to instituted heirs exceed the whole inheritance or estate,
or the whole free portion.
 Example. I hereby institute as my only heirs, in equal shares, to the whole of my estate
valued at P 500,00. If the estate is only P 400,000.00, their individual shares of P
250,000.00 shall be reduced proportionately, that is P 50,000.00 each

Q. WHAT IS PRETERITION?

A. Preterition is the omission, whether intentional or not, of a compulsory heir in the

inheritance

Q. WHAT ARE ITS REQUISITES?

A. The requisites of preterition are:

1. The omission is total not partial

Some pointers to remember

a. if a compulsory heir is named in the will, but he is not given any share,
although there is no express disinheritance, there is preterition
b. if a compulsory heir is given a share in the inheritance no matter how small,
there is no preterition
Under Article 906, he is entitled to the completion of his legitime
c. if a compulsory heir is not given anything in the will, but he received a
donation from the testator, there is no preterition for after all, a
donation to a compulsory heir is considered as an advance of his legitime
d. if a compulsory heir is given less than the legitime, this does not invalidate the
institution of a stranger as an heir, since this is not preterition. Follow
letter b above
2. The one omitted must be a compulsory heir

Rules

a. There is no preterition where the testator institutes his children and omits his
parents because the latter are not compulsory heirs by virtue of the
presence of the former
b. There is preterition where the testator omits his parents in the institution of
heirs especially where he/she instituted his/her brothers or sisters,
where he has no children because the parents become compulsory heirs
in the absence of the children

3. The compulsory heir omitted must be in the direct line

Pointers to remember:

a. There is no preterition of the surviving spouse because although the spouse is a

compulsory heir, he/she is not in the direct line
ASSIGNMENT NO. 4

Q. WHAT ARE ITS EFFECTS?

A. The effects of preterition are:

1. The institution of heirs is annulled automatically without any need of a court action
2. The legacies and devises shall remain valid in so far as they are inofficious (if the
legitime is impaired, they can be reduced to the extent of the impairment)
3. The preterited heir gets his share not only of the legitime but also of the free portion
4. Although the institution of heirs is indeed annulled, the legacies and devises shall
remain valid insofar as they are not inofficious
5. Even if a compulsory heir has not received anything by virtue of a donation, or by
virtue of the will, still if anything is left of the inheritance which he may get by
intestacy, there is no preterition.

If what is left for him by intestacy is less than his legitime, he is entitled to its completion
to be satisfied from the free portion, and if not sufficient from legacies and devises to the
extent of prejudice to the legitime

Q. HOW SHOULD THE SHARE OF THE PRETERITED HEIR BE SATISFIED?

A. The share of the preterited heir should be satisfied in the following order:

1. that part of the estate not disposed of by will

2. if still insufficient, the deficiency is taken from the shares of the other compulsory
heirs

Q. WHAT IS PREDECEASE?

A. Predecease means that an heir dies ahead of the testator or decedent.

Q. WHAT IS/ARE ITS EFFECT/S?

A. The effects of predecease are:

1. A voluntary heir who predeceases the testator transmits nothing to his heirs. He
cannot be represented.

2. A compulsory heir who dies ahead of the testator, or who is incapacitated to succeed,
or who renounces the inheritance, likewise transmits no right to his own heirs

Exceptions:

Q. WHAT IS SUBSTITUTION OF HEIRS?

A. Substitution or conditional institution of heirs is the appointment of another heir so that
he may enter into the inheritance in default of the heir originally instituted

Q. WHAT IS/ARE THE PURPOSE/S OF SUBSTITUTION?

A. The purposes of substitution are:

1. to prevent the property from falling into the ownership of people not desired by the
testator
2. to prevent the effects of intestate succession
3. to allow the testator greater freedom to help or reward those who by reason of services
rendered the testator are more worthy of his affection and deserving of his bounty
than intestate heirs

Q. WHAT ARE THE KINDS OF SUBSTITUTION?

A. The kinds of substitution are:

1. Simple or common: This happens when the testator designates one or more persons
to substitute the heir or heirs instituted in case such heir or heirs should
a. die before him
b. repudiate the inheritance
c. he be incapacitated

The substitute enters the inheritance as an heir of the testator not of the
first instituted heir

2. Brief or compendious. This happens when two or more persons are substituted for
one; or one person for two or more heirs

3. Reciprocal. This happens when an heir (the substitute) shall acquire the share of the
heir who:
a. dies
b. renounces
c. is incapacitated

Rules to Remember

1) If there is a contrary intention of the testator, there is no reciprocal

substitution
2) If there are more than one substitute, they shall have the same share in
the substitution as in the institution.

The phrase “same share” has been interpreted to mean “same

proportionate share”

4. Fideicommissary or indirect. This happens when the testator institutes a first heir, and
charges him to preserve and transmit the whole or part of the inheritance later on to a
second heir
 Difference with simple substitution

a. In fideicommissary substitution, both heirs inherit; while in simple

substitution, only one of the heirs inherit and that is the second
heir/substitute

Things to Remember

a. The first heir is called fiduciary, heredero, fuduciaro, or trustee

b. The second heir is called fideicommissary or fideicomisario, beneficiary, or
cestui que trust
c. The testator is also called decedent, or fideicomitente
d. The purpose is to maintain the tradition and social standing of the family.

Q. DIFFERENTIATE ONE FROM THE OTHER?

A. Refer above

Q. WHAT MAY BE THE GROUNDS FOR SIMPLE SUBSTITUTION?

A. The grounds for simple substitution are:

1. predecease
2. renunciation or repudiation
3. incapacity

Q. WHAT ARE THE GROUNDS FOR EXTINGUISHING A SUBSTITUTION?

A. The grounds for extinguishing a substitution are:

1. when the substitute:

a. predeceases the testator
b. is incapacitated
c. renounces the inheritance
2. when the institution of heir is annulled by say preterition
3. when the institution or the substitution is revoked by the testator
4. when a will is void or disallowed or revoked

Q. EXPLAIN THE CONCEPT OF CHARGES AND CONDITIONS IMPOSED ON THE

INSTITUTION OF HEIRS.

A. Charges and conditions imposed on the institution of heirs are those imposed by the
testator upon the heir instituted and the substitute. Both of them must comply with the
conditions in order for them to both inherit

The Rules are:

1. If the substitute inherits, he must fulfil the conditions imposed on the original heir,
except:
a. if the testator expressly provided the contrary which must appear on
discernible from the will
 b. if the charges or conditions are personally applicable only to the heir instituted,
like personal qualifications of the original heir had been considered by the
testator in designating the original heir

Q. DEFINE FIDEICOMMISSARY SUBSTITUTION?

A. Refer to above notes

Q. DISTINGUISH IT FROM SIMPLE SUBSTITUTION?

A. Refer to notes above

Q. WHAT IS ITS (SUBSTITUTION IN GENERAL) PURPOSE?

A. Refer to notes above

Q. WHAT ARE THE 7 LIMITATIONS? Discuss each.

A. The limitations of fideicommissary substitution are:

1. There must be a first heir called primarily or preferentially to the enjoyment of the
property

Things to Remember

a. The first heir must be capacitated and accept the inheritance

b, He is not a mere trustee for while he also administers, he carries out not
another’s wishes, but his own, insofar as management is concerned
c. He enjoys the use and fruits of what is given, unlike a trustee.
d. It should not be confused with the Anglo – Saxon trust.
e. He is not a mere agent or delivery boy who is obliged to do nothing but deliver
the property
f. He is indeed almost like a usufructuary with the right to enjoy the property.
Like a usufructuary, he cannot alienate the property and is duty bound
to make an inventory to know what properties he must preserve and transmit
g. Unlike a usufructuary, he is not required to furnish a bond and id entitled to a
refund of useful improvements, at least in so far as the increase in
value of the property is concerned

2. There must be an obligation clearly imposed upon him to:

a. preserve; and
b. transmit
to a third person the whole or part of the inheritance

Things to Remember

a. The obligation to preserve and transmit must be given clearly and expressly
either by:
1) giving the substitution this name of “fideicommissary substitution”; or
 2) by imposing upon the first heir the absolute obligation to deliver the
property to a second heir
b. The nullity of the fideicommissary substitution does not prejudice the validity
of the institution of the heirs first designated, the fideicommissary
substitution clause shall simply be considered as not written
c. If the obligation is conditional, there is no fideicommissary substitution
3. There must be a second heir

Things to Remember

a. He is known as fideicommissary and is sort of a naked owner

b. Upon transmission of the property to him, full ownership is consolidated in
him
c. The second heir inherits not from the first heir but from the testator
d. The second heir must be capacitated to succeed the testator

4. The first and second heirs must be only one degree apart (Art. 863)

Meaning of “one degree apart”

Different Opinions

a. Justice J.B.L. Reyes’ and Spanish Supreme Court’s opinion: this means one
transfer, one transmission, or one substitution, the purpose being to
prevent successive entailments, regardless of relationship
b. Manresa’s, Senators Arturo Tolentino and Ambrosio Padilla’s, and Sanchez
Roman’s opinion: this means one generation because the word degree
as used in the Civil Code on intestate succession refers to generation.
Thus, the substitute may be the parent or child of the first heir.
Relationship is always counted from the first heir, not from others

Notes: Should the second heir be a juridical person, there is nothing wrong in
interpreting one degree as one transfer, one transmission, or one substitution

5. Both heirs must be alive (or at least conceived) at the time of the testator’s death (Art.
863)

Reasons

a. to reduce as much as possible the number of years the property will have to be
entailed. For if the second heir were still not even conceived at the time
of the testator’s deat, a long time may elapse
b. the second heir himself inherits from the testator, and one cannot inherit
unless he be alive or at least conceived
c. a non – conceived child has no juridical capacity, and cannot therefore be given
any legal right

6. It must be made in an express manner (Art. 867, par. 1)

 7. It must not burden the legitime (Articles 864, 872, 904). This is true for all kinds of
substitution, for after all, the compulsory heirs are entitled to the legitime as a
matter of right

Q. DISTINGUISH SUBSTITUTION FROM INSTITUTION.

A. In substitution, two or more persons are involved but in institution only one heir may be
involved
In substitution, only one of the named persons inherits but in institution all of the
named heirs inherit

Q. DISTINGUISH FIDEICOMISO, FROM FIDEICOMISORIA FROM MAYORAZCO.

A. A fidecomiso is some sort of a middle man or agent between the testator and the heir to
intervene only in order that the incapacitated person (the heir) could succeed from the
testator. There is only one heir, not two

In fideicomisoria, there are two heirs not merely one. This is Article 863.

Mayorazco is simply a form of the fideicommissary substitution with a feature that the
property or the greater portion of it was handed down from generation to generation
through the eldest child (similar to the custom of primo geniture. This has already been
abolished

Q. WHICH ASSUMES MORE IMPORTANCE, LEGITIME OR FIDEICOMMISSARY

SUBSTITUTION? Why?

A. The legitime assumes more importance than fideicommissary substitution because the
legitime is expressly reserved by law for the compulsory heirs

Q. WHAT ARE ALLOWED TO BE DEDUCTED FROM THE INHERITANCE?

A. The following are allowed to be deducted from the inheritance:

1. legitimate expenses
2. credits and improvements

Q. WHAT IS THE EFFECT IF THE SECOND HEIR PREDECEASE THE FIDUCIARY?

Discuss each.

A. If the second heir predecease the fiduciary, the second heir still acquire a right to the
succession from the time of the testator’s death. This is so as long as the second heir (as
well as the first heir) is alive at the time of the testator’s death because the second heir
inherits not from the second heir but from the testator.

Rules
 1. The second heir inherits, not from the first heir, but from the testator
2. All the requisites for fideicommissary substitution must be present (both must not
predecease the testator).
3. The second heir may predecease the first heir
4. Neither of the first and second heirs must predecease the testator.

Things to Remember: The following shall not take effect:

1. Fideicommissary substitution not made in an express manner either by:

a. giving the substitution this name (fideicommissary)

b. imposing upon the the fiduciary the absolute obligation to preserve and deliver
the property to a second heir

2. Prohibition to alienate beyond “one degree”

Things to Remember

a. In case there is a fideicommissary substitution, the prohibition to alienate

imposed on the fiduciary is allowed even if more than 20 years have
elapsed. The reason is that if this is not allowed, the fiduciary is forced to
alienate, and there may be nothing to deliver in case he/she alienates, thus
the purpose of the substitution is frustrated

b. In case there is no fideicommissary substitution, the testator can prohibit the

heir and all those who may inherit from the latter, for a total period of
twenty years, provided that same prohibition will not go beyond the limits
imposed by Art. 863 (not go beyond oned degree)

3. Those imposing a charge upon the heir of paying various persons successively
beyond “one degree”
4. Those leaving to a person the whole or part of the hereditary property in order that he
may apply or invest the same according to secret instructions communicated
to him by the testator

Q. WHAT IS THE EFFECT OF THE GRANT BY THE TESTATOR OF THE RIGHT OF

USUFRUCT TO A PERSON OR PERSONS OTHER THAN THE HEIR?

A. The grant by the testator of the right of usufruct to person or persons other than the heir
is valid.

The reason for this is that naked ownership and use of the fruits of a thing are distinct
from one another and are severable

Q. DISCUSS THE PROHIBITION IMPOSED ON THE TESTATOR TO ALIENATE

A. Prohibition to alienate for more than 20 years is void.

Reason for the Prohibition

 The prohibition seeks to give more impetus to the socialization of the ownership of
property, and to prevent the perpetuation of large landholdings which give rise to
agrarian troubles

Rules to Remember

1, The prohibition does not apply to the legitime. Thus, it applies only to the free portion
2. The prohibition does not apply where there is a fideicommissary substitution
3. The prohibition applies if the prohibition to alienate has no period The prohibition is
good only for twenty years
4. The prohibition applies if the prohibition is forever. The prohibition is good only for
twenty years

Q. WHAT ARE THE DIFFERENT KINDS OF INSTITUTION? Differentiate one from the
other.

A. The different kinds of institution are:

1. Institution with a condition

Rules to Remember

a. The testator cannot impose any charge, condition, or substitution upon the
legitime. Should he do so, the same shall be considered as not imposed
(Art. 872)
1) The only prohibition that can be imposed upon the legitime is the
prohibition to partition. The prohibition is only valid for 20
years (Art. 1083)
b. Impossible conditions and those contrary to laws or good customs shall be
considered as not imposed and shall in no manner prejudice the heir,
even if the testator should otherwise provide (Art. 873)
1) The time to be considered in finding out whether a condition is
impossible or illegal is the time when the condition is supposed
to be fulfilled
c. An absolute condition not to contract a first (no exception as being void and
contrary to good customs, morality, and public policy) or subsequent
marriage shall be considered as not written unless such condition has
been imposed by the:
1) widow or
2) widower, or
3) latter’s (deceased spouse) ascendants or descendants

Kinds of prohibition re marriage

a) absolute prohibition to contract a first marriage is void with no

exceptions
b) absolute prohibition to contract a re – marriage
Gen. Rule: void
 Exceptions: If imposed by:
11) surviving spouse
12) deceased ascendants
13) deceased descendants

c) relative prohibition (not to marry a particular individual

Gen Rule: valid
Exception: when the prohibition becomes so onerous or so
burdensome that the prohibition really
amounts to an absolute one
(Art. 874)
d. Any disposition made upon the condition that the heir shall make some
provision in his will in favour of the testator or of any other person
shall be void (Disposition Captatoria, Art. 875). The disposition, and
not the condition, is void
Reason: This makes the making of the will a contractual one
e. Any potestative condition imposed upon an heir must be fulfilled by him as
soon as he learns of the testator’s death (Art. 876)
Testator gives his car to A if he marries B. If B refuses, does A inherit?
f. 1. If the condition is casual or missed, it shall be sufficient if it happened or be
fulfilled at any time before or after the death of the testator, unless he
has provided otherwise
2. Should it have existed or should have been fulfilled at the time the will was
executed and the testator was unaware thereof, it shall be deemed as
complied with
3. 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 (Art. 877)
A casual condition is one which depends upon chance and/or
upon the will of a third person
A mixed condition is one which is dependent on the will of the heir
and that of a third person
g. Effect of substantial or constructive compliance (Art. 883)
a. it is sufficient for potestative conditions
b. it is sufficient for mixed conditions when non – fulfilment is
cause by a person interested in the non – fulfilment
thereof
h. The rules under obligations and contract on conditional obligations are
suppletory in application (Art. 884)
i. Predeceasing a suspensive condition. Does the heir inherit and transmit the
same to his heirs? No, because he never inherits. This is so, even if the
condition later on is fulfilled
j. 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
Example. A gives B a legacy of a monthly allowance of P10,000
with the stipulation that his allowance should continue as long as
B would not smoke, and that the moment B smokes, the allowance would
stop. If B smokes, he loses his right to the future allwance but does not have
to return whatever he has already received. No security is required.

2. Institution with a term

A suspensive term is one that merely suspends the demandability of a right

because it is sure to happen; while a suspensive condition suspends not merely the
demandability but even the acquisition itself of the right

Things to Remember

a. A disposition with a suspensive term does not prevent the instituted heir from
acquiring rights and transmitting them to his heirs even before the
arrival of the term (Art. 878). Reason: term is sure to happen, but not to
conditions
b. 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 (Art. 880)
c. 1. The designation of the day or time when the effects of the institution of an
heir shall commence (suspensive) or cease (resolutyory) shall be
valid
2. In both cases (suspensive and resolutory), the legal heir shall be considered
as called to the succession until the arrival (suspensive) of the period
or its expiration (resolutory).
3. When it is suspensive, he shall not enter into possession of the property until
after having given sufficient security, with the intervention of the
instituted heir

Forms of institutions with a term

a. suspensive term or ex die – effects begin from a certain day

b. resolutory tem or in diem – effects cease on a certain day
c. ex die in diem – from a certain day to a certain day

3. Institution for a certain purpose or cause (modal institutions)

Things to Remember

a. The institution of an heir may be made x x x for a certain purpose or cause (Art.
871)
b. 1. 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 be
considered as a condition unless it appears that such was his
intention
2. 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 (Art. 882)
 Difference between modal institution and institution with a suspensive condition

In modal institution, the inheritance can be immediately demanded provided

that security is given

In institution with a suspensive condition, even if the heir gives a security, he will
not be allowed to get the inheritance pending the happening of the
condition

Note: But then when the condition is resolutory, there essentially is no difference
between the two

c. When in doubt whether there is a condition or merely a mode, consider the

same as a mode
d. When in doubt whether there is a mode or merely a suggestion, consider the
same as a suggestion
e. The condition suspends but does not obligate, the mode obligates but does not
suspend (for he who inherits with a mode is already an heir, and one
who inherits conditionally is not yet an heir)

Q. WHAT CANNOT BE SUBJECT TO ANY CHARGE, CONDITION, OR SUBSTITUTION?

WHAT IS THE EFFECT ON THE INSTITUTION?

A. It is the legitime which cannot be subject to any charge, condition, or substitution

because the legitime is preserved or intended by the law for the compulsory heirs

Q. WHAT ARE THE RULES ON THE CONDITION NOT TO MARRY, BORTH A FIRST
MARRIAGE AND RE – MARRY?

Q. WHAT IS DISPOSITION CAPTATORIA?

Q. WHAT IS A POTESTATIVE CONDITION?

Q. DEFINE CASUAL CONDITION?

Q. WHAT ARE THE EFFECTS ON THE RIGHT OF AN HEIR TO INHERIT SHOULD THE
CASUAL CONDITION BE FULFILLED?

Q. WHAT IS A SUSPENSIVE TERM? GIVE AN EXAMPLE.

Q. WHAT IS CAUCION MUCIANA?

Q. PENDING THE HAPPENING OF THE SUSPENSIVE CONDITION, WHAT ARE THE

OPTIONS OF THE TESTATOR?

A. All refer to notes above

Q. DIFFERENTIATE EXECUTOR FROM ADMINISTRATOR FROM ADMINISTRATOR

WITH A WILL ANNEX FROM SPECIAL ADMINISTRATOR
A. An executor is one who is appointed in a will to take charge in carrying out the wishes of
the testator

An administrator is one who is appointed by the court where there is no will. He will be
given by the court letters of administration

A special administrator is one who is appointed temporarily as administrator pending

the qualification of an executor or the appointment of an administrator to meet the
urgent needs of the estate

Q. WHAT ARE THE QUALIFICATIONS OF EXECUTOR OR ADMINISTRATOR?

A. The qualifications on an executor or administrator are: No person is competent to serve

as executor or administrator who:

1. is aq minor
2. is a non - resident of the Philippines
3. in the opinion of the court is unfit to execute the duties of the trust by reason of:
a. drunkenness
b. improvidence
c. want of understanding or integrity, or
d. conviction of an offense involving moral turpitude

Q. WHAT IS MODAL INSTITUTION?

A. Refer to notes above

Q. IN WHAT INSTANCE MAY THERE BE MODAL INSTITUTION?

A. Modal institution arises when:

1. there is a statement of the object/purpose of the institution

Example. I institute A as my heir to give him enough money to obtain a legal
education
2. there is a statement as to the application of the property left by the testator
Example. I institute B as my heir. He will devote the properties of my estate to
the erection of a chapel in our barangay
3. there is a charge imposed by the testator
Example. I institute C as my heir. He will devote 5% of the annual income from
my buildings for the establishment of a foundation for the
elderly in our barangay

Q. DISTINGUISH MODAL INSTITUTION FROM CONDITIONAL INSTITUTION

A. Refer to notes above

Q. WHAT IS ANALOGOUS OR SUBSTANTIAL COMPLIANCE?

A. Refer to notes above

Q. IN WHAT INSTANCES DOES THE LAW IMPOSES UPON THE HEIR AN OBLIGATION TO
POST A BOND?

A. Refer to notes above

ASSIGNMENT NO. 5

Q. WHAT IS LEGITIME?

A. Legitime is that part of the testator’s property which he cannot dispose of because the
law has reserved it for certain heirs who are, therefore, called compulsory heirs (Art.
886, Civil Code)

Notes to Remember

1, The purpose of the legitime is to protect the children and the surviving spouse from
the unjustified anger of thoughtlessness of the other spouse
2. Where there are no compulsory heirs, there is no legitime and the entire estate is a
free portion
3. Legitime may be received from two aspects:
a. as a right; and
b. as the property itself
4. The testator cannot deprive his compulsory heirs of their legitime, except in cases
expressly provided for by law (like disinheritance, Art. 915, Civil Code)
5. The testator cannot impose upon the legitime any burden, encumbrance, condition, or
substitution of any whatsoever (Art. 904) except the condition that the
property will not be divided for a period not exceeding 20 years.
6. The preterition or omission of one, some, or all of the compulsory heirs in the direct
line, whether living at the time of the execution of the will or born after the
death of the testator, shall annul the institution of heir, but the devises and
legacies shall be valid insofar as they are not inofficious. (Art. 854)
7. If the omitted compulsory heirs should die before the testator, the institution shall be
effectual without prejudice to the right of representation (Art. 854)
8. Disinheritance must comply with these requisites for a compulsory heir to be deprived
of his legitime:
a. It should be for causes expressly stated by law
b. It should be effected through a will
c. The cause must be specifically stated in the will
9. Donations intervivos are to be reduced should it be found to be inofficious (it exceeds
the free portion, thus prejudicing the legitime) because no person may give by
way of donation more than that he can give by way of a will
10. The right to a legitime is a vested right once a person attains legal personality.
 11. Legitime as a property consists of an undivided share in the estate and becomes
definite upon its delivery to the heir.
12. The decision as to and in what form may the legitime be satisfied belongs to the
testator

Q. WHAT IS THE FREE PORTION? WHAT IS ITS EXTENT?

A. The free portion is that part of the estate which a testator can freely dispose of by will
without any lawful restrictions. The extent is dependent on who are the compulsory heirs
at the time of the death of the testator. Please refer to notes below

Q. WHAT ARE THE THREE SYSTEMS AFFECTING THE LEGITIME?

A. The three systems affecting the legitime are:

1. System of the legitime (partial reservation). A part is for the legitime, a part is for the
free portion
2. System of total reservation. Everything goes to the compulsory heirs, as long as there
is at least one. When there is no compulsory heir, there is freedom to dispose
3. System of total freedom of disposition. There is no legitime. Everything is at the free
disposal

Q. WHO ARE THE COMPULSORY HEIRS?

A. The compulsory heirs are:

1. Legitimate children and descendants, with respect to their legitimate parents and
ascendants
2. In default of the foregoing, legitimate parents and ascendants, with respect to their
legitimate children and descendants
3. The widow or widower
4. Acknowledged natural children, and natural children by legal fiction
5. Other illegitimate children referred to in article 287 (Art. 887, Civil Code)

Q. DIFFERENTIATE BETWEEN PRIMARY COMPULSORY HEIRS FROM SECONDARY

COMPULSORY HEIRS?

A. Primary compulsory heirs are:

1. Legitimate and their legitimate descendants (Art. 992(

2. Surviving spouse (legitimate)
3. Illegitimate children and their descendants (legitimate or illegitimate) (Art. 902)

Secondary compulsory heirs are:

4. legitimate parents and ascendants (legitimate) (they inherit in default of no. 1)

5. illegitimate parents (no other ascendants (they inherit in default of nos. 1 and 3)
Q. WHAT IS THE LEGITIME OF?

A. The legitime of compulsory heirs are:

1. Legitimate children alone - ½ of the estate divided by the

number of legitimate children
- other ½ is the free portion

2. One legitimate child with - ½ of the estate (from legitime)

Surviving spouse - ¼ of the estate (from the free
portion)
- ¼ remaining is the free
portion

3. Surviving spouse alone - ½ of the estate

- other ½ is the free portion
- 1/3 if the marriage is in articulo
mortis (Art. 900), and the
following exist
a. the testator dies in 3 months from
celebration of marriage
b. the decedent is the party in danger
of death
c. cause of death is the same
sickness, illness or injury
existing at the time of the
marriage
Exception. Surviving spouse gets 1/2
When the spouses, although
married in articulo mortis,
had been living together as
husband and wife for 5 years or
more prior to the marriage (Art.
900)

4. Illegitimate children alone - ½ of the estate divided by the

number of illegitimate children
- other ½ is the free portion

5. Illegitimate children with - 1/3 of the estate divided by the

number of illegitimate children
Surviving spouse 1/3 of the estate
1/3 remaining is the free
portion

6. Two or more legitimate children - ½ of the estate divided by the

number of legitimate children
Surviving spouse - same as the share of 1 legitimate c
- this comes from the other ½
which is the free
portion
 Illegitimate children - ½ of the share of a legitimate c
- this comes from the other ½
which is the free portion

7. Legitimate parents alone - ½ of the estate divided by the

number (1 to 2) of surviving
parents
- other ½ is the free portion

8. Legitimate parents - ½ of the estate divided by the

number (1 to 2) of surviving
parents
Surviving spouse - ¼ of the state divided by the
number (1 to 2) of surviving
parents
- remaining ¼ is the free
portion
9. Legitimate parents - ½ of the estate divided by the
number (1 to 2) of surviving
parents
Surviving spouse - 1/8 of the estate
Illegitimate children - ¼ of the estate divided by the
number of illegitimate children
10. Illegitimate parents alone - ½ of the estate divided by the
number (1 to 2) of surviving
parents
- other ½ is the free portion

11. Illegitimate parents - ¼ of the estate divided by the

number (1 to 2) of surviving
illegitimate parents
Surviving spouse - ¼ of the estate
- remaining ½ is the free
portion

12. Illegitimate children - ¼ of the estate divided by the

number of illegitimate children
Legitimate parents - ½ of the estate divided by the
number (1 to 2) of legitimate
parents

Note Well: If the testator leaves neither father nor mother, but is survived by
ascendants of equal degree of the paternal and maternal lines, the legitime shall be divided
equally between both lines. If the ascendants should be of different degrees, it shall pertain
entirely to the ones nearest in degree of either line (Art. 890, Civil Code)

Q. WHAT IS RESERVA TRONCAL?

A. Reserva troncal is a reservation and an obligation made by law for properties to be kept
within the line from which the property came from
 When does it arise?

Reserva troncal or the obligation to reserve arises when an ascendant inherits

from his descendant any property which the latter may have acquired by gratuitous title
from another ascendant, or from a brother or sister

What is the obligation involved?

The obligation is to reserve such property as he may have acquired by operation

of law for the benefit of relatives who are within the third degree and who belong to the
line from which the property came

Q. WHAT ARE ITS REQUISITES?

A. The requisites of reserve troncal are:

1. A person inherits by gratuitous title a property from his/her ascendant or brother

or sister
2. Such person dies without any issue/child/descendant
3. Another ascendant of such person survives the decedent (descendant)
4. Such ascendant inherits by operation of law

Q. WHO ARE THE PERSONS INVOLVED IN A RESERVA TRONCAL?

A. The persons involved in a reserve troncal are:

1. The Origin
a. He/she is either:
1) an ascendant or
2) brother or sister
of the decedent, called propositus
b. Must be a legitimate relative because reserve troncal exists only in the
legitimate family
c. The origin dies
d. The transmission from the origin must be by gratuitous title like through:
1) succession (testate or intestate) or
2) donation inter vivos
2. Propositus
a. He/she is either:
1) the descendant or
2) brother or sister
of the origin
b. Must be a legitimate descendant or legitimate half – brother or half – sister of
the origin of the property
c. The propositus dies
 d. The transmission from the propositus to an ascendant or brother or sister must
be by operation of law
e. He/she has full ownership over the property without any condition. Thus,
he/she may dispose of the same, and once disposed there is no longer
any reserva
3. Reservor or Reservista
a. He/she is the ascendant of the propositus
b. He/she inherits from the propositus
c. The inheritance is by operation of law (intestate succession)
d. It is he/she who has the obligation to reserve
e. What must be reserved is the property inherited from the propositus
f. The reservor is a full owner of the property
g. Ownership is subject to a resolutory condition
h. The resolutory condition is that:
1) upon his death there are relatives of the propositus within the 3td
degree who are still alive; and
2) these relatives belong to the line from which the property came
i. Once the resolutory conditions are fulfilled, the property no longer forms part
of the estate of the reservor
j. He/she has the power to alienate or encumber the reservable real property but
subject to the reserve
k. Subject to the reserve means that the reservees or reservatarios can get the
reserved property from the transferee from the time the reservor or
reservista dies
l. If the property is registered as without any lien or encumbrance or reservas,
and it is sold, an innocent purchaser for value is preferred over the
reservees or reservatarios. In this case, the reservor or reservista is liable to the
reserves for the value of the reserved property.
m. On the other hand, if the purchaser knows of the reservation, the sale is
subject to the reserve. This means that the reservees or the
reservatarios can get the property from the purchaser. In this case, the
reservor or reservista is liable to the transferee for the value of the
reserved property
4. Reservees or Reservatarios
a. They are the relatives within the 3rd degree from the propositus, and who come
from the same line from which the property came from
b. They become full owners of the property the moment the reservoir dies
c. The requisites for the passing of the title from the reservoir to the reservatarios
are:
1) death of the reservista; and
2) the fact that the reservatarios survived the reservista
d. They inherit the property from the propositus not from the reservor
e. The reservatarios receive the property as a conditional heir of the propositus
f. The reserve must be a legitimate relative of the origin and the propositus
g. If the reservor has no cash when he dies, and the reservable property is money,
the reservees or reservatarios can either
1) select equivalent property from the estate of the reservor or reservista,
or
2) demand from the reservor or reservista sale of sufficient property so
that cash may be obtained
 h. Even when the reservor or reservista is still alive, the reservees or reservatarios
may sell the property reserved to strangers subject to the condition that the
reservees or reservatarios are still alive at the time the reservor or
reservista dies
i. The relatives within the 3rd degree from the propositus and belonging to the line
from which the property originally came are:
1) 1st degree - parents of the propositus
2) 2nd degree - grandparents
- full and half brother (legitimate)
- full and half sisters (legitimate)
3) 3rd degree - uncles and aunts by blood
- great grandparents
- nephews and nieces (children of full and half legitimate
brothers or sisters
j. The reservation is subject to:
1) rules of preference of the direct line to the collateral line
2) rule that the nearer excludes the further

Q. DIFFERENTIATE ONE FROM THE OTHER.

A. Refer to above notes

Q. WHEN IS RESERVA TRONCAL EXTINGUISHED?

A. Reserva troncal is extinguished by:

1. Death of the reservor or reservista

2. Death of all reservees or reservatarios ahead of the reservor or reservista
3. Loss of the reservable property, provided the reservor or reservista had no fault or
negligence. Loss must be accidental
4. Prescription as when the reservor or reservista, or a stranger holds the property
adversely against the reservees or reservatarios as free from the reserve troncal
for 30 years for real property, or 8 years for personal property, because of his bad
faith
5. Registration of the reserved property under the Torrens system as free from the
reservation (without prejudice to the liability of the reservor or reservista in
favour of the reservees or reservatarios
6. Renunciation or waiver by all reservees or reservatarios after the death of the reservor
or reservista

Q. MAY THE LEGITIME BE RENOUNCED OR THE SUBJECT OF A COMPROMISE?

A. Every renunciation or compromise as regards a future legitime between the person

owing it and his compulsory heirs is void, and the latter may claim the same upon the
death of the former; but they must bring to collation whatever they may have received by
virtue of the renunciation or compromise

Q. HOW DOES ONE COMPUTE THE NET HEREDITARY ESTATE?

A. The net hereditary estate is computed as follows:

 1. Get the value of the estate at the time of death of the testator
2. Deduct therefrom all debts and charges (don’t include those imposed by will)
3. Add to the net value, value of all donations made by the testator (at the time he made
them) which are subject to collation

Q. HOW DOES ONE DETERMINE THE VALUE OF THE ESTATE?

A. The value of the estate is determined as follows:

1. If there are judicial proceedings where the estate is settled, the administrator must
determine the value of the estate
2. If there are no judicial proceedings, the assessed value, unless there is evidence to the
contrary

Q. WHAT IS COLLATION?

A. Collation can be understood in two senses which are:

1. Computing or adding certain values to the estate, and charging the same to the
legitime
2. Computing or adding certain values to the estate, and charging the same to the free
portion

Collation is applicable to both testamentary and legal succession.

Q. WHAT CAN BE COLLATED?

A. The following can be collated:

1. Donations given to children shall be charged to their legitime (Art. 909)

2. Donations made to strangers shall be charged to that part of the estate of which the
testator could have disposed by his last will (Art 909)

Q. HOW DO THESE DONATIONS BECOME INOFFICIOUS?

A. These donations become inofficious should:

1. Donations to children (legitimate or illegitimate) exceed their legitime

2. donation to strangers exceed the free portion

Q. WHAT IS THE ORDER OF PREFERENCE IN THE HEREDITARY ESTATE?

A. The order of preference in the hereditary estate is:

1. Give the legitime

 2. Account for donations inter vivos
3. Account for preferred legacies and devises
4. Account for all other devises and legacies pro rata (in case the estate is not sufficient)
(Art. 911)

Q. SHOULD THERE BE INOFFICIOUSNESS, WHAT IS THE ORDER OF PREFERENCE

IN THE REDUCTION?

A. Should there be inofficiousness, the order of preference in the reduction is to reduce:

1. Other devises and legacies not preferred

2. Preferred devises and legacies
3. Donations inter vivos (from the latest to the earliest should there be 2 or more)
4. Legitime (Art. 911)

Q. IF THE ESTATE SHOULD NOT BE SUFFICIENT TO COVER ALL LEGACIES OR

DEVISES, WHAT IS THE ORDER OF THEIR PAYMENT?

A. If the estate should not be sufficient to cover all legacies or devises, the order of their
payment shall be:

1. Remuneratory legacies or devises

2. Legacies or devises declared by the testator to be preferential
3. Legacies for support
4. Legacies for education
5. Legacies or devises of a specific, determinate thing which forms part of the estate
6. all others pro rata

Q. HOW CAN ARTICLES 911 AND 950 BE RECONCILED?

A. Articles 911 and 950 can be reconciled as follows:

1. Article 911 applies when:

a. aside from the various legacies and devises, there are legitimes to be preserved
(whether impaired or not by the testamentary provisions) or
b. there are donations inter vivos which should be respected as much as possible
2. Article 960 applies only when:
a. there are no compulsory heirs
b. there are no inofficious donations inter vivos or
c. if the reduction concerns itself merely with the legacies or devises

Q. WHAT IS THE RULE IF THE DEVISE OR LEGACY CONSISTS OF A USUFRUCT OR

LIFE ANNUITY WHOSE VALUE IS GREATER THAN THE DISPOSABLE PORTION?

A. Should the legacy or devise consists of a usufruct or life annuity whose value is greater
than the disposable portion, the compulsory heirs may choose between:
 1. complying with the testamentary provision and
2. delivering to the devisee or lagatee the part of the inheritance which the testator could
freely dispose

Q. HOW DO INOFFICIOUS DEVISES BE REDUCED?

A. Inofficious devises are reduced:

1. If the devise subject of the reduction is a real property which cannot be conveniently
divided:
a. it shall go to the devisee if the reduction does not absorb ½ of its value
b. otherwise, it shall go to the compulsory heirs.
Obligations arising therefrom
The devisee and the compulsory heirs shall reimburse each other in cash for what
respectively belongs to them
Example: A building worth P 5,000.00.00 was devised by T to X. Because it is
excessive, it has to be reduced by P 2,000,000.00. Since the reduction does not absorb
½ of its value, the building goes to X but has to pay the compulsory heirs the amount of
P 2,000.000.00.
If the reduction would be P 3,000,000.00, the compulsory heirs get the house,
but they have to give to X P 2,000,000.00 (the difference between the value of the house
and extent of inofficiousness)
If neither one of them exercise their right, the property shall be sold at public
auction at the instance of any one of the interested parties, and the proceeds will be
divided accordingly.
If the building is sold at P 5,000,000.00 in the example given, X gets P
2,000,000.00. The P 3,000,000.00 will be used to satisfy the legitime
If the building is sold at P 3,000.000.00, the whole amount should be used to
satisfy the legitime. Nothing goes to the devisee, otherwise, the legitime is impaired
contrary to law

Q. WHAT ARE THE STEPS IN DETERMINING LEGITIMES, INOFFICIOUS DONATIONS

AND EXCESSIVE LEGACIES AND DEVISES?

A. The steps in determining legitimes, inofficious donations and excessive legacies and
devises are:

1. From the value of the property left by the testator upon his death, subtract:
a. debts
b. charges (excluding legacies and devises)
2. Add:
a. value of all collationable donations inter vivos
b. remissions, if any
c. donations to strangers, if any
3. Amount computed is the net estate
4. Compute for the legitime based from the above notes
5. Charge or impute donations to compulsory heirs as their legitime
6. Any excess is imputed to the free disposal/portion
7. A donation to strangers are imputed to the free portion
8. If the donation to strangers is excessive, then reduce it (Refer to notes of the preceding
question
 9. Add:
a. donations (imputed to the free portion) to legacies and devises
10. If total exceeds free portion, reduce legacies and devises. This means legitime is
impaired, apply Art 911 not 950
11. Donations are preferred over legacies and devises

Q. CAN LEGITIME BE GIVEN IN INSTALLMENTS? If so, in what instance?

A. Legitime can be given in instalment only where there is an advance in the legitime which
is collatable or chargeable to the legitime of a compulsory heir

Q. WHAT IS THE REMEDY OF THE HEIR WHOSE LEGITIME IS IMPAIRED?

A. An heir whose legitime is impaired has the remedy of filing a suit for declaration of
nullity of the contract/donation impairing the legitime, to the extent of the impairment
or inofficiousness

Q. HOW DO YOU DETERMINE THE VALUE OF THE ESTATE?

A. Refer to above notes

Q. WHAT ARE THE THINGS THAT SHOULD BE DEDUCTED FROM THE ESTATE?

A. Refer to above notes

Q. HHOW DO YOU DETERMINE THE LEGITIME?

A. You can determine the legitime by knowing who are the compulsory heirs at the time of
the death of the testator.

Q. WHAT ARE THE THINGS THAT SHOULD BE INCLUDED IN, OR CHARGED TO, THE
LEGITIME?

A. Refer to above notes

Q. WHAT IS THE ORDER OF PREFERENCE IN THE HEREDITARY ESTATE?

A. Refer to above notes

Q. WHAT IS THE ORDER OF PREFERENCE AMONG DONATIONS?

A. Refer to above notes

Q. WHAT IS/ARE THE REASON/S BEHIND THESE PREFERENCES IN THE

HEREDITARY ESTATE?

A. Donations inter vivos are preferred over donations mortis cause because:
 1. They were made first, showing generosity of the testator
2. They are bilateral act, thus acceptance by the done is required; while donations mortis
cause are in essence unilateral or it does not need acceptance
3. donations are generally irrevocable.

Q. WHAT IS THE ORDER OF PREFERENDE IN THE PAYMENT OF LEGACIES AND

DEVISES?

A. Refer to above notes

Q. WHAT IS THE RULE WITH RESPECT TO USURUCT OF LIFE ANNUITY?

A. Refer to above notes

Q. WHAT ARE THE RULES SHOULD THE DEVISE SUBJECT TO REDUCTION CONSIST
OF A REALPROPERTY?

A. Refer to above notes

Q. WHAT IS DISINHERITANCE?

A. Disinheritance is the process or act, thru a testamentary disposition of depriving in a will

any compulsory heir of his legitime for true and lawful cause.

Q. WHAT ARE THE GROUNDS FOR A VALID DISINHERITANCE OF:

a. children and descendants;
b. parents and ascendants; and
c. spouse.
Give a brief discussion of each ground.

A. The grounds for a valid disinheritance of:

1. children and descendants, are:

a. when the child or descendant has been found guilty of an attempt against the
life of the testator, his or her spouse, descendants, or ascendants
Notes to remember
1) there must be a final judgment of conviction
2) the attempt may happen before or execution of the will
3) there must be an intent to kill the testator
4) spouse, descendants, or ascendants refer to those of the testator
5) the disinherited heir may only be an accomplish or an accessory
6) pardon does not affect the disinheritance, unless the pardon is based
on innocence
7) reckless imprudence resulting to homicide is not a ground for
disinheritance because of the lack of intention to kill
b. When a child or descendant has accused the testator of a crime for which the
law prescribes imprisonment for 6 years or more, if the accusation has
been found groundless
Notes to remember
1) the crime may be committed by the testator against:
a) the child himself or
 b) against anybody
2) acquittal of the testator on the ground of lack of proof beyond
reasonable doubt does not necessarily mean that the accusation
is groundless, thus, the testator does not have any right to
disinherit his child
Elements
1) act of accusing
2) the fact that the accusation has been found groundless
3) the offense carries a penalty of at least 6 years
c. When a child or descendant has been convicted of adultery or concubinage
with the spouse of the testator
Notes to remember
1) Step – parent is included
2) There must be a final judgment
3) The child may not be disinherited by the parents he/she commits
adultery or concubinage with

4) Causes for disinheritance must be strictly construed and should not

cover causes not clearly governed by law. The reason is that
disinheritance limits the conveyance of property and
this is contrary to public policy that conveyance or transfer is
favored for a livelier trade and commerce
d. When a child or descendant by fraud, violence, intimidation, or undue
influence causes the testator to make a will or to change one already
made

Notes to remember
1) two will must be made
2) the testator was forced to make the first one or change one already
made
3) it is in the second will where the child is disinherited
e. a refusal without justifiable cause to support the parent or ascendant who
disinherits such child or descendant
Notes to remember
1) for this ground to apply, there must be no valid reason for the son to
refuse giving support to a parent or ascendant. Thus, if the son
is justified in refusing to give support, the parent or ascendant
cannot disinherit the child or descendant
2) no judicial demand is required
3) if the support is given because of a judicial compulsion, there would
still be a valid ground for disinheritance
f. Maltreatment of the testator by word or deed, by the child or descendant
Notes to remember
1) maltreatment covers:
a) by word (slanderous or offensive language)
b) by deed
2) judgment of conviction is not required
3) maltreatment must be intentional and not thru imprudence
4) acts of violence is included in maltreatment, and does not necessarily
result in physical injury
 5) Maltreatment is repugnant to natural law
g. When a child or descendant leads a dishonourable or disgraceful life
Notes to remember
1) judgment of conviction is not required
2) a single act is not necessarily sufficient to constitute “leading a life” for
this implies continuity
h. Conviction of a crime which carries with it a penalty of civil interdiction
Notes to remember
1) there must be a final judgment of conviction
2) civil interdiction is given as an accessory penalty to:
a) death (if commuted)
b) reclusion perpetua
c) reclusion temporal
3) if the Indeterminate Sentence Law is applied, it is the maximum
penalty that should be applied and not the minimum

2. parents or ascendants
a. When the parents have abandoned their children or induced their daughters to
live a corrupt or immoral life or attempted against their virtue
Notes to remember
1) inducing to live a corrupt or immoral life refers to daughter and sons,
and even grandchildren
2) abandonment includes not merely the exposure of the child or
descendant to danger but also the failure to give it due care or
attention
3) abandonment is indeed physical, moral, social or educational; hence, it
does not have the technical signification of “abandonment”
under the Revised Penal Code
4) whether intentional or not, the negligent and careless failure to
perform the duties of parenthood is a significant element of
abandonment
5) the word “daughters” includes other descendants
6) when a mother helps a stranger to commit rape on her daughter, said
daughter can disinherit the mother
7) “corrupt or immoral life” does not necessarily mean prostitution. It can
be a life full of deceit or unlawful acts
8) “attempt against virtue” need not be in a final judgment
b. When the parent or ascendant has been convicted of an attempt against the life
of the testator, his or her spouse, descendants or ascendants
Notes to remember
1) there must be a final judgment of conviction
2) the attempt may happen before or execution of the will
3) there must be an intent to kill the testator
4) spouse, descendants, or ascendants refer to those of the testator
5) the disinherited heir may only be an accomplish or an accessory
6) pardon does not affect the disinheritance, unless the pardon is based
on innocence
 7) reckless imprudence resulting to homicide is not a ground for
disinheritance because of the lack of intention to kill
c. When the parent or ascendant has accused the testator of a crime which the
law prescribes imprisonment for 6 years or more, if the accusation has
been found to be false
Notes to remember
1) Should the accusation be proven true, there will not be a valid ground
for disinheritance
d. When the parent or ascendant has been convicted of adultery or concubinage
with the spouse of the testator
Notes to remember
1) Step – parent is included
2) There must be a final judgment
3) The parent may not be disinherited by the spouse of the testator he/she
commits adultery or concubinage with
4) Causes for disinheritance must be strictly construed and should not
cover causes not clearly governed by law. The reason is that
disinheritance limits the conveyance of property and
this is contrary to public policy that conveyance or transfer is
favored for a livelier trade and commerce

e. 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
Notes to remember
1) two will must be made
2) the testator was forced to make the first one or change one already
made
3) it is in the second will where the child is disinherited
f. The loss of parental authority for causes specified in this Code
Notes to remember
1) “loss of parental authority” does not include:
a) emancipation
b) death of the parent
c) adoption of the child
d) appointment of a general guardian
e) upon judicial declaration of abandonment of the child in a case
filed for the purpose
2) “loss of parental authority” includes:
a) Art. 230. Parental authority is suspended upon conviction of the
parent or the person exercising the same of a crime which
carries with it the penalty of civil interdiction. The
authority is automatically reinstated upon service of the
penalty or upon pardon or amnesty of the offender. (330a)
b) Art. 231. The court in an action filed for the purpose in a related
case may also suspend parental authority if the parent or the
person exercising the same:
(1) Treats the child with excessive harshness or cruelty;
(2) Gives the child corrupting orders, counsel or example;
(3) Compels the child to beg; or
 (4) Subjects the child or allows him to be subjected to acts
of lasciviousness.
The grounds enumerated above are deemed to include
cases which have resulted from culpable negligence of the
parent or the person exercising parental authority.
If the degree of seriousness so warrants, or the welfare of
the child so demands, the court shall deprive the guilty
party of parental authority or adopt such other measures as
may be proper under the circumstances.
The suspension or deprivation may be revoked and the
parental authority revived in a case filed for the purpose or
in the same proceeding if the court finds that the cause therefor
has ceased and will not be repeated
c) Art. 328. The mother who contracts a subsequent marriage
loses the parental authority over her children, unless the
deceased husband, father of the latter, has
expressly provided in his will that his widow might marry again,
and has ordered that in such case she should keep and exercise
parental authority over their children.
The court may also appoint a guardian of the child's
property in case the father should contract a subsequent
marriage. (168a)
d) Art. 332. The courts may deprive the parents of their authority
or suspend the exercise of the same if they should treat
their children with excessive harshness or should give them
corrupting orders, counsels, or examples, or
should make them beg or abandon them. In these cases, the courts
may also deprive the parents in whole or in part, of the
usufruct over the child's property, or adopt such measures
as they may deem advisable in the interest of the child.
(171a)
3) Loss of parental authority is a ground for disinheritance if there is fault
on the part of the heir such as in Arts. 330 and 332 of the Civil
Code, and not when there is no such fault
4) Suppose parental authority lost is recovered later on while the child –
testator is still alive, would the disinheritance made be invalid?
There are two schools of thought
a) Disinheritance continues to be valid because according to
Sanchez Roman, it is sufficient if at one time the parents
have been deprived of such authority. In other words,
disinheritance is made not so much because of loss of
parental authority but because there had been a
commission of an act resulting to such loss of authority
b) Disinheritance becomes ineffective and invalid according to
Manresa and Scaevola because what is important is the
fact that upon the death of the child – testator, parental authority
had been regained and therefore, there can exist no just
cause for the disinheritance. Also, disinheritance being a
deprivation of a right to the legitime must be strictly
construed. Paras is of this view
g. The refusal to support the children or descendants without justifiable cause
 Notes to remember
1) for this ground to apply, there must be no valid reason for the parent or
ascendant to refuse giving support to a child or descendant. Thus, if the
parent is justified in refusing to give support, the son or descendant
cannot disinherit the child or descendant
2) no judicial demand is required
3) if the support is given because of a judicial compulsion, there would
still be a valid ground for disinheritance
h. An attempt by one of the parents against the life of the other, unless there has
been a reconciliation between them
Notes to remember
1) This does not require conviction by final judgment nor the filing of a
case
2) The attempt is against the other parent, not other ascendant of the
testator
3) Reconciliation implies mutual restoration of feelings to the status quo,
that is, to the relationship existing prior to the commission of
the act which strained said relationship. It is indeed the resumption of
friendly relations
4) Reconciliation after the disinheritance renders the disinheritance
ineffectual (Art. 922)

5) Characteristics of reconciliation
a). Reconciliation needs to special form. It may be express or
implied (like when the parties live again in the same
house)
6) No reconciliation in the following:
a) general pardon
b) a pardon not accepted by the disinherited heir
c) pardon given in the same will where disinheritance is made
3. spouse
a. when the spouse has been convicted of an attempt against the life of the
testator, his or her descendants, or ascendants
b. when the spouse has accused the testator of a crime for which the law
prescribes imprisonment for 6 years or more, and the accusation has
been found to be false
c. when the spouse by fraud, violence, intimidation, or undue influence causes the
testator to make a will or to change one already made
d. when the spouse has given cause for legal separation
Notes to remember
1) a decree of legal separation is not required
2) final judgment in a criminal case is not required
3) if there is a decree of legal separation, disinheritance is superfluous for
this in effect would be denying the guilty spouse of a right not
possessed
e. when the spouse has given grounds for the loss of parental authority
f. unjustifiable refusal to support the children or the other spouse

Notes to remember in disinheritance

 1. There is no disinheritance in intestate or legal succession
2. Only compulsory heirs can be disinherited for they alone are entitled to the legitime
3. Courts may properly inquire into the validity of the disinheritance
3. Disinheritance excludes a compulsory heir not only from the legitime but also the free
portion
4. The other causes of depriving a compulsory heir of the legitime are:
a. predecease and incapacity, without prejudice to the right of representation
b. repudiation
c. where liabilities of the estate equals or exceeds its assets, thus, there is no
hereditary estate and no legitime

Q. WHAT ARE THE REQUISITES OR ELEMENTS OF A VALID DISINHERITANCE?

A. The requisites of a valid disinheritance are:

1. It must be made in a will (Art. 916)

2. It must be made expressly (Art. 918). It is not presumed
3. It must be for a legal cause. Even if the ground is graver than those set by law, but the
ground is not one of the grounds set by law, there is no disinheritance

4. It must be a true cause (Art. 917 and 918)

Notes to remember
a. 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
(Art. 917)
b. 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 an extent as will not impair
the legitime (Art. 918)
c. Instances where the disinheritance is considered invalid or ineffective or illegal
1) without giving a cause (no cause)
2) a cause denied by the heir concerned and not proved by the instituted
heir (not true cause)
3) a cause not given in the law (not legal cause)
4) subsequent reconciliation (Art. 922)
d. The effects of ineffective disinheritance are:
1) the institution of heirs is annulled but only in so far as it may prejudice
the person disinherited, that is, insofar as the legitime of said
heir is impaired
2) devises, legacies, and other testamentary dispositions shall be valid to
such an extent as will not impair the legitime
3) if the legitime is impaired, the devises, legacies, and other testamentary
dispositions may be considered inofficious, thus may be reduced

Q. DISTINGUISH PRETERITION FROM DISINHERITANCE.

A. Preterition and disinheritance are distinguished as follows:

1. In preterition, the omission may be either intentional or unintentional (thus, it is an

implied deprivation); while in disinheritance, is it always intentional (thus, it
is an express deprivation)
2. Preterition may be with cause or without cause; while disinheritance must always be
with cause which is stated in the will; must be true and legal
3. Preterition annuls the institution of heirs, thus, the omitted heir inherits; while the
disinherited heir inherits nothing (by way of legitime, or by way of the free
protion or intestacy)
4. Preterition may exist with or without a will (as when everything has been given to only
one of the compulsory heirs by way of donation inter vivos)
5. In preterition, the institution is always void, except when the preterited heir
predeceases the testator; while in disinheritance, the institution may be valid
when all the requirements of the law on disinheritance are followed

Q. WHAT IS INEFFECTIVE DISINHERITANCE?

A. Refer to above notes

Q. WHEN MAY IT ARISE?

A. Refer to above notes

Q. WHAT ARE THE EFFECTS OF AN INEFFECTIVE DISINHERITANCE?

A. Refer to above notes

Q. WHAT ARE THE SIMILARITES BETWEEN PRETERITION AND INEFFECTIVE OR

IMPERFECT DISINHERITANCE?

A. The similarities between preterition and imperfect of ineffective disinheritance are:

1. In both cases, the omitted heir and the imperfectly disinherited heir get at least their
legitime
2. In both cases, the legacies and devises remain valid insofar as the legitime has not
been impaired
3. Both refer to compulsory heirs

Q. WHAT IS RECONCILIATION?

A. Refer to above notes

Q. WHAT ARE ITS CHARACTERISTICS?

A. Refer to above notes

Q. WHAT ARE ITS EFFECTS?

A. Refer to above notes

Q. WHAT ARE THE RULES IN CASE CAUSE OF DISINHERITANCE IS LIKEWISE A

CAUSE OF UNWORTHINESS?

A. The rules when the cause of disinheritance is likewise a cause of unworthiness are:

1. If the cause of unworthiness was made a ground for disinheritance and there is a
reconciliation, Art. 922 will govern, and not Art. 1033. In other words, the
mere fact of reconciliation extinguishes the unworthiness and no written document is
needed for a condonation
Notes to remember
a. A person is rendered unworthy to succeed only because the law presumes this
to be the will of the testator. This presumed intent certainly cannot
prevail over the express will of a person shown by his act of
reconciliation
2. If the cause for unworthiness was not made the ground for disinheritance, or there has
been no disinheritance at all, Art. 1033 will apply, which provides:
“The causes of unworthiness shall be without effect if the testator had
knowledge thereof at the time he made the will, or if having known of
them subsequently, he should condone them in writing.”

Q. HOW MAY DISINHERITANCE BE REVOKED?

A. Disinheritance may be revoked by:

1. subsequent reconciliation
2. making a new will making the disinherited heir an instituted heir

Q. WHAT IS THE EFFECT ON THE DISINHERITANCE SHOULD THE WILL

CONTAINING THE DISINHERITANCE IS DENIED PROBATE?

A. The denial for probate of the will containing the disinheritance cannot revoke the
disinheritance for there was never a valid disinheritance. There is really nothing to
revoke

Q. WHO TAKES THE PLACE OF THE DISINHERITED HEIR?

A. The children and descendants of the person disinherited (refers to disinherited child or
disinherited descendant, but not to disinherited spouse or disinherited parent of
disinherited ascendant because there is ro representation in the ascending line – See Art.
1035 and 972) take the place of the disinherited heir but only in so far as the legitime of
said disinherited heir is concerned, and not to the free portion (Art. 923)

Q. SHOULD THE DISINHERITED HEIR NOT HAVE ANY HEIR, WHAT HAPPENS TO
THE LEGITIME OF THE DISINHERITED HEIR?
A. The share/legitime of the disinherited heir, should he/she not have any heir, shall be
given to the other heirs, legatees, or devisees by accretion if proper, and if accretion is
not proper, then the same goes to the legal heirs by intestacy minus the disinherited heir

Q. MAY THE DISINHERITED HEIR HAVE THE USUFRUCT OR ADMINISTRATION OF

THE PROPERTY CONSTITUTING THE LEGITIME?

A. No. The disinherited heir shall not have the usufruct or administration of the property
which constitutes the legitime
Notes to remember
1. This is an axception to the rule that a parent has the administration and usufruct of the
property of a child who is under parental custody

Q. WHO SHOULD BE THE DISINHERITED HEIR?

A. The disinherited heir should be a compulsory heir as understood under testate

succession.
Take note that compulsory heirs under testate succession can inherit together but
not in intestate or legal succession where children and descendants excludes parents and
ascendant and who in turn excludes brothers and sisters

Q. WHAT IS A LEGACY?

A. It is a gift of personal property given in a will

Q. WHAT IS A DEVISE?

A. It is a gift of real property given in a will

Q. WHAT ARE THEIR PURPOSES?

A. The purposes of legacies and devises are:

1. compliance by the testator of social duties

2. distinguish the giving of these gifts from the institution of heir
3. his rewarding of the love and devotion of friends and relatives
4. his giving of funds for beneficent and charitable institutions

Q. WHAT ARE THE 3 KINDS OF LEGACIES AND DEVISES?

A. The 3 kinds of legacy or devise are:

1. Legacy proper. The estate has the duty to give the legacy
2. Pre – legacy. The duty to give the legacy is given to the estate but the gift is given to a
specific heir or legatee
3. Sub – legacies or sub – devises. The duty is on the:
a. heir
Example. I hereby institute my only child C as heir. However, he must
give a car worth P 100,000.00 to X. The legacy of the car is called sub -
legacy
 b. legatee or devisee
Example. I hereby give my car to X (ordinary legacy) but I want X to give
P 10,000.00 to Y (sub – legacy)
Notes to remember
1) the legatee bound to give a sub – legacy is liable only to the extent of
the legacy given to him
In the example given above, what is given to the sub –
legatee must be lesser in value than that given in the
ordinary legacy
2) A compulsory heir is bound to give a sub – legacy only insofar as his
legitime has not been impaired (par. Art. 925)

Q. SHOULD THERE BE TWO OR MORE HEIRS, WHAT IS THE EXTENT OF THEIR

CONTRIBUTION SHOULD THE TESTATOR CHARGE BOTH LEGATEE OR
DEVISEE?

A. The extent of the contribution of two or more heirs should the testator charge both
legatee or devisee is in proportion not to how much each actually inherits, but only in
proportion to their institution to the free disposal

Q. WHAT IS THE NATURE OF THE LIABILITY OF TWO OR MORE HEIRS FOR THE
LOSS OR DESTRUCTION OF A THING DEVISED OR BEQUEATHED?

A. The nature of the liability of two or more heirs for the loss or destruction of a thing
devised or bequeathed is solidary should they have taken possession thereof even though
only one of them is negligent.

The loss or destruction must happen while the two or more heirs are in possession of the
thing devised or bequeathed

Q. WHEN DOES AN HEIR BE LIABLE FOR EVICTION?

A. An heir is liable for eviction if the thing is:

1. undelivered and
2. is indicated only by its kind
Notes to remember
a. If the legacy or devise to be given by the heir is a specific car, the heir cannot be
held liable for eviction since he has no choice

b. If the legacy or devise is a burden not on the heir but on the estate itself, there
is no warranty against eviction, whether the legacy be specific or
generic, if there were court proceedings which ordered the giving of such
legacy or deivse because there was court approval
c. If the legacy or devise is generic, there is also a warranty against hidden defects
and hidden encumbrances
ASSIGNMENT NO. 6

Q. TO WHAT EXTENT SHOULD A CO – OWNER DEVISE OR BEQUEATH THE THING

OWNED IN COMMON?

A. If the testator, heir, or legatee owns only a part of, or an interest in the thing bequeathed,
the legacy or devise shall be understood limited to such part or interest, unless the
testator expressly declares that he gives the thing in its entirety.
General Rule
Only that part owned by the testator is given whether or not the testator knew
that somebody else partly owned the property.
Exception
The testator expressly declares otherwise – that he gives the thing in its entirety.
This means that the whole is being given despite the testator’s knowledge that he does
not own the thing in its entirety
Notes to remember
1. Knowledge by the testator that he owns only a part of the thing must be proved
2. Proof must either come from the contents of the will or evidence aliunde
3. Burden of proof is on the recipient of the gift

Q. DOES IT MAKE A DIFFERENCE IF THE TESTATOR DOES NOT KNOW THAT THE
PROPERTY BELONGS TO ANOTHER?
A. Yes. It makes a difference because if the testator does not know that the property belongs
to another but rather erroneously believed that the thing belonged to him, the legacy of
devise of such thing is void

Q. HOW CAN THIS BE CURED?

A. This can be cured by the acquisition by the testator, by whatever title, of the ownership of
the thing. If such is the case, the disposition shall take effect.

Q. WHAT IS THE EFFECT OF ERROR IN OWNERSHIP?

A. Error in ownership makes the legacy or devise void if the testator erroneously believed
that the thing is his

Q. WHAT ARE THE RULES SHOULD THE TESTATOR ORDER THE ACQUISITION OF A
PROPERTY NOT BELONGING TO HIM SO THAT IT COULD BE BEQUEATHED OR
DEVISED?

A. The rules where the testator orders the acquisition of a property not belonging to him
so that it could be bequeathed or devised are:

1. the heir upon whom the obligation is imposed or the estate must acquire it and give
the same to the legatee or devisee
2. if the owner of the thing refuses to alienate the same, or demands an excessive price,
the heir or the estate shall only be obliged to give the just value of the thing

Notes to remember
a. the order to acquire may be express or implied because the law does not
distinguish
b. the mere fact that the testator gives the legacy of devise knowing that he/she
does not own it could be the basis of an inference that he/she desires
acquisition
c. If the testator knows that the thing does not belong to him, the gift is valid

Q. SHOULDE THE PROPERTY ALREADY BELONGS TO THE LEGATEE OR DEVISEE,

WHAT IS THE EFFECT ON THE LEGACY OR DEVISE?

A. Should the property already belongs to the legatee or devisee, the legacy or devise shall
be ineffective, even though another person may have some interest therein (Art. 932).

If the testator expressly orders that the thing be freed from such interest or
encumbrance, the legacy or devise shall be valid to that extent (Art. 932)

Q. IN WHAT INSTANCE MAY A LEGATEE OR DEVISEE CLAIM REIMBURSEMENT IN

CASE THERE IS ALIENATION OF THE THING BEQUEATHED OR DEVISED?

A. The legatee or devisee can claim reimbursement when he onerously acquire the legacy or
devise after the execution of the will
Q. AAT WHAT POINT IN TIME SHOULD THE LEGAQTEE OR DEVISEE ONEROUSLY
ACQUIRE THE LEGACY OR DEVISE SO THAT HE IS ENTITLED TO
REIMBURSEMENT?

A. The legatee or devisee must onerously acquire the legacy or devise after the
execution of the will

Q. WHAT TO REIMBURSE?

A. What should be reimbursed to the heir are:

1. if thru sale - the price paid therefor

2. if thru barter - value of the thing exchanged
3. if thru onerous donation - value of the burden imposed
4. if thru adjudicacion en pago - value of the credit, interests, and costs, if any
5. expenses for the above are to be reimbursed likewise

Q. WHO REIMBURSES”

A. Those who will reimburse are:

1. estate, if no one has been charged in particular

2. the heir, legatee, or devisee who has been charged

Q. What is the obligation of the estate should the thing bequeathed or devised was pledged
or mortgaged to secure a:
a. recoverable debt
b. performance of an obligation
Q. WHAT IS THE OBLIGATION OF THE ESTATE SHOULD THE THING BEQUEATHED
OR DEVISED IS BURDENED WITH EASEMENTS, USUFRUCTS, LEASE, OR RIGHT
OF WAY?

A. The obligation of the estate should the thing bequeathed or devised is burdened with
easements, usufructs, lease, or right of way is to:

1. Free the property given from:

a. pledges (may have been executed before or after the execution of the will)
b. mortgages (may have been executed before or after the execution of the will)
c. any other encumbrance or lien (like antichresis), if given to secure or guarantee a
reasonable debt
2. The estate need not free the property given from these must be respected by the
legatee or devisee:
a. easements
b. usufructs
c. leases which are real rights (those which are for over one year, or those which are
registered, whether the lease be for more than 1 year or not
d. any other charge, perpetual or temporary, with which the thing bequeathed or
devised is burdened (past lar. Art. 934)
Notes to Remember
1. The remedies of the mortagee are:
 a) abandon the mortgage, thus, prosecute the now unsecured claim before
the probate court. Creditor mortgagee can now share in the general
distribution of the estate to the various creditors
1) the creditor mortgagee and other creditors will first be satisfied
before the devisee san get the property unencumbered
2) creditor mortgagee losses preference and can claim only as
ordinary creditor
b) foreclose the mortgage or realize upon the security by an ordinary
action in court. Any deficiency judgment is proven before the
probate court against the estate of the deceased
c. rely on the mortgage alone and foreclose at any time within the statute
of limitations (10 years from the date of the maturity). In the
meantime he will not receive any share in the
distribution of the other assets of the estate

Q. WHAT IS A LEGACY OF CREDIT?

A. A legacy of credit is a novation of the credit in that the legatee is subrogated in favour of
the testator who is the original creditor. The executor or administrator may either:
1. assign the creditor’s actions to the legatee or
2. himself collect the credit and deliver the proceeds to the legatee or devisee
Notes to remember
a. If the executor or administrator assigns, there is no warranty that the credit
really exists or that it is legal because this is merely in compliance with
the testator’s wishes, thus, the rule on specific legacies apply
b. The legacy is effective only as regards that part still existing at the testator’s
death, together with all interests still due

c. it may be generic or specific

1) generic - if it refers to all credits appertaining to the testator
2) specific - if specified credits are mentioned
d. The legacy of credit may be revoked by implication of law as in the case under
Art. 926
e. All guarantees whether personal (like obligation of a guarantor or a surety) or
real (like a pledge of a mortgage) are deemed included

Q. WHAT ARE THE EFFECTS OF A LEGACY OF CREDIT?

A. The effects of a legacy of credit are:

1. it is in effect an assignment of the credit to the legatee;
2. there is a change in the creditors or a novation
3. it does not obliterate the credit or the obligation unlike in legacy of remission

Q. WHAT EXTINGUISHES A LEGACY OF CREDIT?

Q. DISTINGUISHE BETWEEN A GENERIC AND SPECIFIC LEGACY OF REMISSION.

A. It is a generic legacy of remission when no particular debt is mentioned, thus, it covers
all debts (whether pure, conditional, or with a term) of the testator. Only those existing
at the time the will is made is included. Subsequent credits are excluded

It is a specific legacy of remission when a particular debt is mentioned.

Q. EXPLAIN THE CONCEPT OF NON – APPLICATION OF LEGACY OF CREDIT?

A. The non – application of a legacy of credit is basically a gratuitous. This is in addition to

the obligation of the testator to the legatee. Thus, if the testator owes X P 20,000.00, and
the testator gives X a legacy of P 10,000.00, X will get a total of P 30,000.00 from the
testator, P 20,000.00 as his credit and P 10,000.00 as his legacy
Exception: When the testator expressly provides otherwise, the creditor shall
have the right to collect the excess, if any, of the credit or of the legacy or devise
Example. The testator owes X P 20,000.00. Y owes the testator P
30,000.00. If the testator gives his credit of P 10,000.00 to X, and
expressly declares that the legacy should be applied to X’s credit, there will
be payment of P 20,000.00 and a true legacy of P 20,000.00 for the balance

Q. WHAT IS THE EFFECT OF SOLUTION INDEBITI?

A. The effects of solution indebiti are:

1. the disposition shall be considered as not written

2. the excess, if any, is not due, unless contrary intention appears.

This effects are without prejudice to the fulfilment of natural obligations (like
when the testator still pays a debt that has prescribed because he recognizes his moral
duties), the payment done is valid and will be recognized

Q. WHO HAS THE RIGHT TO CHOOSE IN ALTERNATIVE LEGACIES OR DEVISE?

A. The right to choose in alternative legacies or devise belongs to (Art. 940):

1. if no legatee or devisee is named by the testator, it is presumed to be left to the heir
upon whom the obligation to give the legacy or devised is imposed by the
testator
2. if this heir dies, the right to choose shall pass to his heirs
3. if no particular heir is obliged by the testator, then the executor or administrator is so
obliged to choose
Notes to remember
a. Right to choose is given to others when the testator does not state who can
choose, the giver has the right to do so (Art. 940)
b. Art. 942 applies only when the right of choice is expressly given to one by the
testator himself
c. the legatee or devisee in this Article refers to the legatee or devisee favoured
(not the legatee or devisee charged, who may be given the choice in a
sub – legacy or sub - devisee)
d. thing selected need not be of medium quality
e. once the selection or choice is made, it is irreversible, except for the usual
causes vitiating consent
 f. the choice is made in any way which clearly reveals the conscious and
deliberate exercise of the right of choice

Q. WHAT ARE THE RULES ON:

a. the choice in alternative legacies or devises
b. legacy or devise of generic property
c. when choice is passed to recipient’s heirs
d. legacy for education and support
e. the giving of pensions
f. gift involving a usufruct
g. conditional gifts and gifts with a term
h. acquisition of ownership
i. generic gifts
j. order of preference for legacies and devises
k. accessions and accessories
l. delivery and request for delivery of the gift
m. partly onerous and partly gratuitous
n. indivisible
o. onerous and gratuitous gifts?

A. The rules on:

1. the choice of alternative legacies or devises
a. the choice is presumed to be left to the heir upon whom the obligation to give
the legacy or devise may be imposed
b. if no heir is so obliged, the executor or administrator of the estate
c. if the heir, legatee or devisee given the choice dies before making it, the right
shall pass to his/her heirs
Notes to remember
a. when two or more things are given, and only one is possible, the legacy is
converted into a simple one
b. the choice must be communicated to the recipient, after which communication,
the alternative legacy becomes a simple one
c. in as much as a choice is involved, the rules relating to generic legacies may be
applied such as Articles 941, 942, and 943
2. legacy of devise or generic property
a. the right of choice belongs to the executor or administrator who shall comply
with the legacy by the delivery of a thing which is neither of inferior
nor of superior quality
Notes to remember
1. a legacy of generic personal property shall be valid even if there be no
things of the same kind in the estate
2. a devise of indeterminate real property shall be valid only if there be
immovable property of its kind in the estate.
Reason for the difference
The genus in personal property is determined by its nature; in the
case of real property, there is practically no genus because each
property has been practically individualized by the efforts of man
3. when the choice is passed on to recipient’s heirs
a. heirs here mean the heirs of the person allowed to make the selection, whether
they be heirs of the person burdened or of the person favoured except
in the case of an executor or administrator. Here the successor to the
executor or administrator must make the choice
b. the right to choose may be renounced, provided all the requisites of a valid
waiver of right are present
c. the choice may even be embodied in a will of a person entitled to make a
choice. When so made it is irrevocable, even if the will itself is
revocable
4. legacy for education and support
a. the legacy lasts until:
1) the legatee is of age or
2) beyond the age of majority in order that the legatee may finish some
a) professional
b) vocational
c) or general course
b. it may be for a shorter period than that given by law, despite the lack of an
express provision on the matter
c. diligence required in pursuing the course/education is a judicial question
d. both legacies for support and education are ordinarily personal, and cannot
therefore be transmitted unless of course the testator has ordered
otherwise.
In case the successor to the legatee or devisee is specified clearly
by the testator, the restrictions on the fideicommissary
substitution may be followed by analogy so as not to make the legacy
very burdensome
e. while the testator may fix the amount of the legacy, this should not exceed the
free portion
f. the value of the estate means either:
1) the residue after payment of all expenses and debts, and legitime if the
estate has been charged to provide it
2) the value of the property received by virtue of the inheritance, after
excluding the legitime, if any, has been received

5. the giving of pensions

a. the legatee may petition the court for the first instalment upon the death of the
testator
b. the debts must first be paid before the legacy is given, thus, the legatee should
first wait until an order for distribution is actually made or until
distribution is actually made (if there is no order for distribution
c. this is support in arrears (from the time of death) which should be given
d. apply the rules on interests and interests accrues only from the time of judicial
demand
6. gift involving a usufruct
a. the legatee or devisee shall respect the usufruct until it is legally extinguished
b. the gift is burdened by the presence of an existing and lawful usufruct or
easement
c. usufruct is terminated:
1. death of the usufructuary, unless contrary intention clearly appears
 2. expiration of the period for which it was constituted
3. fulfilment of any resolutory condition provided in the title creating the
usufruct
4. merger of the usufruct and ownership in the same person
5. renunciation of the usufructuary
6. total loss of the thing in usufruct
7. termination of the right of the person constituting the usufruct
8. prescription
7. conditional gifts and gifts with a term
a. the right to the legacy or devise vests from the moment of death of the testator
provided the condition is fulfilled
b. if the gift is subject to a suspensive term, the right also vests from the moment
of the testator’s death, although it does not become effective until after
the arrival of the suspensive term. This is so because a term always arrives
unlike in a condition where it may or it may not even happen at all. In such a
case, the right vests from the moment the condition is fulfilled (for
suspensive) or the right lasts (for resolutory) until the condition
happens
8. acquisition of ownership
a. if legacy is specific and determinate, ownership is transmitted upon the death
b. this includes fruits thereof
c. income due and unpaid before the testator’s death are in included
d. the legatee or devisee bear its loss or deterioration from the testator’s death,
without prejudice to the responsibility of the executor or administrator
e. the legatee or devisee is likewise benefitted by its increase or improvement
(without prejudice to the rights of third persons under Art. 948)
f. the following belongs to the grantee (legacy or devisee) from the testator’s
death, provided the grantee is capacitated and accepts the gift
1. devise or legacy
2. growing fruits
3. unborn offsprings of animals
4. uncollected income
9. generic gifts
a. fruits and interests from the time of death shall pertain to the estate and
not to the legatee or devisee, except:
1. when the testator expressly orders otherwise. There is a retroactive
effect
b. the legatee or devisee will only be entitled to the fruits and interests when the
choice is made for it is only at that time that the obligation to deliver
the gift to him arises
10. order of preference of legacies and devisees
a. when the reduction concerns the legacies and devisees, apply Art. 950; but
when the legitime is impaired or when there are donation inter vivos
chargeable to the free portion, apply Art. 911
b. if the estate (free portion) is not sufficient to cover all legacies and devisees,
their payment shall be made in this order
1. remuneratory legacies and devisees, which are those the testator gives
because he feels morally obliged to compensate certain persons
for services but which do not constitute recoverable debts
2. those declared by the testator to be preferential
3. legacy for support
 4. legacy for education
5. legacy or devise of a specific, determinate thing which forms a part of
the estate
6. all others pro rata
c. Art. 950 is applicable in order to find out which gift must be reduced in order
to accommodate all of them in the free disposal
11. accessions and accessories
a. they are to be delivered in the condition upon which they may be upon the
death of the testator
b. accessions may be natural, like alluvium, or industrial like adjudication
c. accessories are those dependent on a principal

12. delivery, and requests for delivery, of a gift

a. the obligation to deliver the gift itself rests on the heir charged with a legacy or
devise, or the executor, or administrator
b. the obligation cannot be discharged by paying its value
c. if the grantee accepts a thing other than that which was given, this is alright
d. legacies of money must be paid in cash even though the debtor (heir, etc) does
not have any
e. if legacy consists of money, and there is none in the estate, personal properties,
then real (if personal properties are not sufficient) properties may be sold
13. partly onerous and partly gratuitous
a. part or partial acceptance is not allowed
b. should the legatee or devisee die before acceptance of the gift, and he/she
leaves several heirs, right to acceptance is transmitted to his/her heirs
c. some of the heirs may accept and the others may repudiate, their share, thus,
the whole gift (gratuitous and onerous) shall pertain to the heirs who
accepted their share
d. those not accepted shall go back to the estate of the testator
14. indivisible gifts
a. should the burden on the onerous property be indivisible, the same must be
totally complied with by the heirs of the legatee or devisee (who died
after the testator but before he/she exercises a choice) who want to
accept

15. onerous and gratuitous gifts

a. legatee or devisee cannot renounce the onerous one and accept the gratuitous
one
b. the legatee or devisee can accept the onerous one and renounce the gratuitous
one for this is not prohibited by law
c. If both are onerous, he can accept both or either, or renounce both or either
d. if both are gratuitous, he can accept both or either, or renounce both or either
e. if the testator intended that the two be inseparable, the legatee or devisee may
either accept both or renounce both
f. a compulsory heir is also a legatee or a devisee, he/she may:
1) waive the inheritance (legitime) and accept the legacy or devise, or
2) renounce the latter and accept the former, or
3) waive both, or
 4) accepts both

Q. IN WHAT PERIOD OF TIME SHOULD THE EXISTENCE OF A PROPERTY BE

CONSIDERED?

A. The period of time to be considered in determining whether or not the property exist in
the estate is at the time of the testator’s death, not from the time of the execution of the
will

Q. WHO HAS THE RIGHT TO CHOOSE A GENERIC LEGACY OR DEVISE?

A. The right of choice in generic legacy or devise belongs to:

1. the estate through the executor or administrator subject to these restrictions:

a. the choice must be neither of inferior nor superior quality
b. in generic personal legacies, if there be some in the estate, the person charged
to select must select from them, and not from outside the estate; or
2. the person burdened with the obligation to deliver

Q. WHAT IS THE EFFECT OF INCAPACITY OR REPUDIATION OR INEFFECTIVE

LEGACY?

A. The effect of incapacity or repudiation or ineffective legacy, the legacy shall be merged in
the mass of the estate, except:
1. in cases of substitution and
2. there is a right of accretion
Notes to remember
a. accretion is a right by virtue of which, when two or more persons are called to
the same inheritance, devise, or legacy, the part assigned to the one
who renounces or cannot receive his/her share, or who died before the
testator, is added or incorporated to that of his co – heirs, co – devisees, or
co – legatees (Art. 1015)
b. the requisites for accretion to take place are:
1) that two or more persons be called to the same inheritance, or to the
same portion thereof, pro – indiviso; and
2) that one of the persons thus called die before the testator, or renounce
the inheritance, or be incapacitated to receive the inheritance
(Art. 1016)
Q. WHAT IS ISRAI?

A. ISRAI means:
I - nstitution
S - ubstitution
R - epresentation
A - ccretion
I - ntestacy
With respect to legacy or devise, instead of institution, bequest replaces institution

Q. WHEN IS A LEGACY OR DEVISE WITHOUT EFFECT?

T -ransforms
 A - lienates
L - ost

A. A legacy or devise is without any effect when:

1. if the thing is transformed by the testator in such a manner that it does not retain its
form or denomination it had
Notes to remember
a. form refers to the external or outward appearance of a thing
b. denomination refers to the name given to it by the public, according to its
essential elements, species, or genus
c. this refers to a legacy or devise of a generic thing.
d. the legacy or devise must be valid
2. if the thing or part thereof is alienated by the testator. The ineffective only applies to
that part alienated (if the thing is divisible)
Notes to remember
a. reversion of the thing to the testator, the legacy or devise remain ineffective
unless reacquisition by virtue of the exercise of the right of repurchase
because the alienation is not absolute, that is, it is subject to the
right to repurchase
b. if after the alienation, the thing should again belong to the testator because the
alienation previously done is void, the legacy or devise shall not
thereafter be valid nor revived
3. if the thing is totally lost during the lifetime of the testator, or after his death without
the heirs fault
Notes to remember
a. the person obliged to pay the legacy or devise shall be liable for eviction if the
thing bequeathed should not have been determinate as to its kind, in
accordance with article 928 (for failure to select a legacy or
devise which the heir could validly dispose of)
b. loss means either physical loss or juridical loss (as in expropriation
proceedings) but when the testator reacquires the property, the
disposition will remain valid because the alienation had not been voluntary

Q. WHAT IS THE EFFECT OF MISTAKE IN THE NAME OF THE THING?

A. A mistake in the name of the thing is of no consequence if it is possible to identify the

thing which the testator bequeathed or devised

Q. WHAT IS MEANY BY ‘TESTATOR’S RELATIVES’?

A. They are relatives of the testator within the fifth civil degree of consanguinity.

Q. WHAT ARE THE CLASSIFICATIONS OF LEGACIES AND DEVISES?

A. Legacies and devises are classified:

1. according to subject matter

a. of specific or generic property
b. of rights
2. person charged
a. payable by estate – legacy proper
 b. payable by heir or legatee – sub – legacy
3. ownership
a. totally belonging to testator
b. partially belonging to testator, and partially belonging to stranger
c. totally belonging to stranger
d. totally belonging to legatee
e. partially belonging to legatee
4. number, kind, and burden
a. pure distinguished from conditional
b. pure distinguished from with a term
c. simple distinguished from alternative
d. single distinguished from double or multiple
e. gratuitous distinguished from onerous
5. validity
a. valid
1) within man’s commerce
2) owned by testator
3) owned by stranger if there is an order, express or implied, to acquire it
4) given because of a moral obligation
5) given as a natural obligation
6) generic personal property, even if there be none in the estate. There is a
duty for the estate to acquire
b. ineffectual or inoperative
1) those revoked expressly
2) those revoked impliedly as when the same legacy is given to another in
a subsequent will
3) those revoked by implication of law
a) transformation
b) alienation, except when reacquired by repurchase or judicial
demand
4) destruction or loss thru fortuitous event
5) intentional destruction by testator
6) predecease, incapacity, or repudiation of legatee
7) disinheritance of legatee if compulsory heir
c. void ab initio
1) outside the commerce of man
2) owned by stranger but mistakenly believed by the testator to be his
(unless he later on owns it)
3) owned by legatee at the time the will was made, even if it is
subsequently alienated
4) legacy in a void will
5) generic real property if there be none of its kind in the estate
6) if totally inofficious

Q. WHAT IS LEGAL SUCCESSION?

A. Legal succession is that kind of succession prescribed by the law (and presumed by it to
be the desire of the deceased), which takes place when the expressed will of the decedent
has not been set down in a will

Q. WHEN DOES IT TAKE PLACE?

A. Legal succession takes place when there is no will of a decedent

Q. WHO INHERITS IN DEFAULT OF TESTAMENTARY HEIRS?

A. In default of testamentary heirs, these persons inherit:

1. legitimate and illegitimate relatives of the decedent
2. surviving spouse
3. State

Q. WHEN MAY INTESTATE HEIRS BE DISINHERITED?

A. Yes. Intestate heirs may be disinherited if they are compulsory heirs

No. Intestate heirs may not be disinherited if they are not compulsory heirs like brothers
and sisters. However, brothers and sisters may be excluded, expressly or impliedly, from
the inheritance

Q. WHAT ARE THE PRINCIPLES FOR THE EXCLUSION OF AN INTESTATE HEIR?

A. The principles for the exclusion of an intestate heir are:

1. the excluded heir must not be a compulsory heir
2. the State, as legal heir, must never be excluded expressly because if there is no relative
left, no one succeeds, and which must not be allowed to happen
3. when a person is excluded, it is he alone who is excluded and not his own descendant
or other heirs
4. express exclusion of one intestate heir makes the property go to the heirs of the same
degree, if any, if none, then to the heirs of the next one in degree

Q. WHAT ARE THE TWO BASIC PRINCIPLES OF INTESTATE SUCCESSION?

A. The two basic principles of intestate succession are:

1. Nearer excludes the farther relatives but without prejudice to:
a. right of representation
Notes to remember
1) it takes place only in the direct descending line
2) does not take place in the direct ascending line
3) in the collateral line, it takes place only in favour of nephews and nieces
whether of full or half - blood
b. preference to lines (descending first, ascending second, then collateral line)
Notes to remember
1) should there be more than one ascendant of equal degree belonging to
the same line, they shall divide the inheritance per capita,
should they be of different line but of equal degree, ½ goes to the
paternal side and ½ goes to the maternal side
2) in each line, the division shall be made per capita
3) the rule is equal division, except:
a) division in the ascending line
b) division between relatives of the full and half – blood (half –
blood gets ½ of the share of the full blood)

Q. WHAT IS A DEGREE?
A. A degree a one generation

Q. WHAT CONSTITUTES:
a. a direct line
b. a collateral line

A. A direct line may either be:

1. descending or
2. ascending

A collateral line is not ascending or descending.

Q. HOW TO COMPUTE FOR DEGREEES?

A. Degrees are counted as there are generations or persons excluding the progenitor.

In the direct line, ascent is made to a common ancestor.

In the collateral line, ascent is made to the common ancestor and then descent is made to
the person with whom the computation is to be made

Q. WHAT IS THE PRINCIPLE OF ACCRETION IN INTESTATE SUCCESSION?

A. If there are several relatives of the same degree and one or some of them are:
1. unwilling or
2. incapacitated to succeed,
his portion shall accrue to the others of the same degree except:
a. when right of representation takes place

Q. WHAT IS THE EFFECT OF REPUDIATION?

A. The effect of repudiation is that relatives next in degree inherits in their own right and
not by right of representation

Q. WHAT IS A RIGHT OF REPRESENTATION?

A. Right of representation is one created by fiction of law, and by virtue of which the
representative is raised to the place and the degree of the person represented, and
acquires the rights which the latter would have if he were living or could have inherited

Q. WHEN DOES IT EXISTS?

A. It exist in case of:

1. predecease (testate and intestate)
2. incapacity (testate and intestate)
3. disinheritance (only in testate)

Notes to remember
 1 In testate, the right of representation covers only the legitime
2. In intestate, the right of representation when proper covers all that the person being
represented would have inherited
3. An adopted child cannot represent and neither may an adopted child be represented

Q. WHAT ARE THE EFFECTS OF ADOPTION?

A. The effects of adoption are:

1

Q. WHEN DOES THE RIGHT OF REPRESENTATION TAKE PLACE?

A. The right of representation takes place:

1. in the direct ascending line
2. in the collateral linea

Q. WHAT DOES THE LAW REQUIRE ON THE CAPACITY OF THE REPRESENTATIVE?

A. In order that representation takes place, it is necessary that the representative himself be
capable of succeeding the decedent.

Capacity is governed by the law of the decedent and not from the national law of the
representative nor of the person represented (Art. 1039)

Q. WHAT IS INHERITANCE PER STIRPES?

A. Inheritance per stirpes mean inheritance by group such that all within the group inherit
in equal shares (or per capita)

Q. WHEN DOES THE RIGHT OF REPRESENTATION IN THE COLLATERAL LINE TAKE

PLACE?

A. The right of representation in the collateral line take place in favour of nephews and nieces

Q. EXPLAIN THE PRINCIPLE THAT A RENOUNCER MAY REPRESENT BUT MAY NOT
BE REPRESENTED.

A. A renouncer may not be represented because his act of repudiation, is voluntarily done,
and takes away his right to dispose of the property, and he may represent because the
exercise of such right is not dependent on him but dependent on an ascendant
ASSIGNMENT NO. 7

Q. WHAT IS THE ORDER OF INTESTATE SUCCESSION?

A. The order of intestate succession is:

1. descending direct line
a. legitimate (as well as legitimated) children and their descendants
1) without distinction as to sex or age
2) without distinction even if they should come from different marriages
Notes to remember
1) children of the deceased inherit from him in their own right dividing
the inheritance in equal shares (Art. 980)
 2) should children of the deceased and descendants of other children who
are dead, survive, the former shall inherit in their own right,
and the latter by right of representation (Art. 981)
3) the grandchildren and other descendants shall inherit by right of
representation, and if any one of them should have died,
leaving several heirs, the portion pertaining to him shall be
divided among the latter in equal shares (Art. 982)
4) if illegitimate children (1/2 of the share of legitimate child) survive with
legitimate children, the shares of the former shall be in the proportions
prescribed in Art. 895 (Art. 983), provided the legitime of the
legitimate children are not impaired
b. adopted child
1) should an adopted child die, his/her relatives by consanguinity, and not
by adoption, shall be his/her heirs
2. ascending direct line
a. parents and ascendants inherit to the exclusion of collateral relatives (Art. 985)
b. father and mother, if living, inherit in equal shares (Art. 986)
c. only one survives, he or she shall succeed to the entire estate of the child (Art.
986)
d. In default of the father and mother, the ascendants nearest in degree shall
inherit (Art. 987)
e. should there be more than one of equal degree belonging to the same line they
shall divide the inheritance per capita (Art. 987)
f. should they be of different lines but of equal degree, ½ shall go to the paternal
and the other half shall go to the maternal ascendants
g. in each line, the division shall be made per capita
3. illegitimate children
a. in the absence of legitimate descendants or ascendants, illegitimate children
shall succeed to the entire estate of the deceased (Art. 988)
b. if, together with illegitimate children, there should survive descendants of
other illegitimate child who is dead, the former shall inherit in their
own right, and the latter by right of representation (Art. 989). This is also
applicable to incapacity
c. the hereditary rights granted to illegitimate children shall be transmitted upon
their death to their descendants, who shall inherit by right of
representation from their deceased grandparent (Art. 990)
d. if legitimate ascendants are left, the illegitimate children shall divide the
inheritance with them, taking ½ of the estate, whatever be the number
of the ascendants or of the illegitimate children
e. an illegitimate child has no right to inherit intestate from the:
1) legitimate children
2) relatives of his father
3) relatives of his mother
4) nor shall the above inherit from the illegitimate child

Q. WHAT IS THE BARRIER BETWEEN THE LEGITIMATE AND THE ILLEGITIMATE

FAMILIES?

A. The barrier between the legitimate and the illegitimate families is the prohibition for the
illegitimate family to inherit from the legitimate family, and for the legitimate family too
to inherit from the illegitimate family
Q. MAY ILLEGITIMATE PARENTS INHERIT?

A. Yes. Illegitimate parents may inherit. If an illegitimate child die without issue, either
legitimate or illegitimate, his father or mother shall succeed to his entire estate; and if
the child’s filiation is duly proved as to both parents, who are both living, they shall
inherit from him share and share alike (Art. 993)

In default of the father or mother, an illegitimate child shall be succeeded by his or her
surviving spouse, who shall be entitled to the entire estate

If the widow or widower should survive with brothers and sisters, nephew and nieces,
she/he shall inherit ½, and the latter the other ½ (Art. 994)

Q. WHAT IS THE INTESTATE SHARE OF THE SURVIVING SPOUSE:

a. standing alone
b. concurring with children
c. concurring with legitimate parents or ascendants of deceased spouse
d concurring with illegitimate children
e. concurring with children or other descendants
f. concurring with legitimate ascendants and illegitimate children
g. concurring with brothers, sisters, nephews, and nieces?

A. The intestate share of the surviving spouse is:

1. standing alone - entire estate
2. surviving spouse - ½ of the estate
with brothers and sisters, nephews and nieces - ½ of the estate
3. surviving spouse - gets the share of 1 child
with children
4. surviving spouse - ½ of the estate
with legitimate parents or ascendants - ½ of the estate
5. surviving spouse - ½ of the estate
with illegitimate children or their descendants - ½ of the estate
6. surviving spouse - ½ of the estate
with brothers, sisters, nephews, and nieces - ½ of the estate

Q. WHAT IS THE RULE IN CASE OF LEGAL SEPARATION?

A. The rule in case of legal separation is that the guilty spouse (the one who has given cause
for the separation) shall not have any of the intestate share/rights granted by law

Q. WHAT IS THE INTESTATE SHARE OF BROTHERS AND SISTERS:

a. standing alone
b. concurring with nephews and nieces
c. in the full blood concurring with the half blood
d. concurring with half brothers and sisters from both sides?

A. The intestate shares of brothers and sisters:

 1. standing alone - whole of the estate
a. of full blood - inherit in equal shares
2. brothers and sisters - per capita
with nephews and nieces - per stirpes
3. full blood - double the share of half blood
with half blood - ½ of share of full blood
4. half blood - in equal shares
5. children of brothers and sisters of the half blood - inherit per capita or per stirpes
half blood (both from father or mother side) - in equal shares

Q. WHAT IS THE INTESTATE SHARE OF CHILDREN OF BROTHERS AND SISTERS OF

THE HALF BLOOD?

A. The intestate share of children of brothers and sisters of the half blood is that they shall
succeed per capita or per stirpes in accordance with the rules laid down for brothers and
sisters of the full blood

Q. WHO ARE OTHER COLLATERAL RELATIVES?

A. Other collateral relatives are aunts, first cousins and their descendants, second cousins
and their descendants

Q. WHAT IS THE INTESTATE SHARE OF THE OTHER COLLATERAL RELATIVES?

A. Other collateral relatives shall succeed without distinction of lines or preference among
them by reason of relationship by the who blood
Notes to remember
1. decedent’s aunt may not inherit intestate as long as nephews and nieces of the
decedent survive, and are willing and qualified to succeed because although
they are of the same degree (3rd) the nephews and nieces are preferred over the
aunt in the order of intestate succession
2, children of first cousins are not entitled to represent. The first cousins excludes
children or descendants of other surviving first cousins

Q. WHO ARE THE RELATIVES IN THE FIFTH CIVIL DEGREE?

A. The relatives in the fifth civil degree are:

1. children of first cousins

Q. HOW DOES THE STATE INHERIT?

A. In default of relatives in the fifth civil degree, the State inherit the whole estate.

Q. HOW IS IT DISTRIBUTED TO THE STATE?

A. Should the State inherit, it inherits by observing the pertinent provisions of the Rules of
Court. Under the Rules of Court, the Republic of the Philippines, represented by the
solicitor General or his representatives may file a petition in the Regional Trial Court of
the province where the deceased last resided, setting forth the facts (that the decedent
died intestate, that he has no heirs up to the fifth civil degree of consanguinity, and that
 there are real and/or personal properties left by him/her) and praying that the entire
estate of the decedent be declared escheated.

The estate is distributed as follows:

1. Debts and charges (to include taxes) must first be paid)

2. Whatever is left:
a. personal property shall be assigned to the municipality or city where the
deceased last resided
b. if the deceased never resided in the Philippines, the whole estate shall be
assigned to the respective municipalities or cities where the same are
located. Of course, the same must be within the Philippines
c. real property shall be assigned to the municipalities or cities, respectively, in
which the same is/are situated
3. The estate shall be for the benefit of:
a. public schools
b. public charitable institutions and centers
4. The distribution shall be made by the court as the respective needs of the beneficiaries
warrant
5. The court, at the instance of an interested party, or on its own motion, may order the
establishment of a permanent trust, so that only the income from the property
shall be used by the beneficiaries

Q. WHAT ARE THE RULES IF LEGAL HEIRS FILE A CLAIM?

A. The rules if a legal heir filed a claim are:

1. the claim must be filed within 5 years
2. the 5 years is counted from the time the property is delivered to the State
3. the claim must be filed in court (the court to which the petition for escheat was filed)
4. if the municipality or city sold the property, it shall be accountable for the proceeds
5. the municipality or city must give to the heir what has not been lawfully spent from the
proceeds of the sale or alienation

Q. WHAT IS THE RIGHT OF ACCRETION IN SUCCESSION?

A. Accretion is a right by virtue of which, when two or more persons are called to the same
inheritance, devise or legacy, the part assigned to the one who renounces, or cannot
receive his share (incapacity), or who dies before (predecease) the testator, is added or
incorporated to that of his co – heirs, co – devisees, or co – legatees

Q. WHAT ARE ITS REQUISITES?

A. The requisites of accretion are:

1. unity of object (one inheritance)
2. plurality of subjects (two or more to inherit)
3. vacant portion by virtue of:
a. repudiation of the share of one subject
b. incapacity
4. acceptance by the heir to whom the property accrues
Q. WHAT ARE THE REQUISITES FOR ACCRETION TO TAKE PLACE IN
TESTAMENTARY SUCCESSION?

A. The requisites for accretion to take place in testamentary succession are:

1. unity of object
2. plurality of subjects
3. vacant position by virtue of:
a. predecease (Art. 1016)
b. incapacity (Art. 1016)
c. repudiation (Art. 1016)
d. suspensive condition is not fulfilled
e. failure to identify one particular heir, devise or legatee (ineffective institution)
but the others can be identified

Q. WHAT ARE THE RULES ON EARMARKING?

A. The rules on earmarking are:

1. if the property is earmarked, there is no accretion
2. if the property is not earmarked, there can be accretion
Notes to remember
a. Earmarking means making the same specific or determinate
b. A voluntary heir, devisee, or legatee who predeceases the testator cannot be
represented
c. One who renounces cannot be represented

Q. WHAT IS THE RIGHT OF ACCRETION IN INTESTATE SUCCESSION?

A. Refer to above notes

Q. HOW DO HEIRS SHARE IN THE PROPERTY RECEIVED BY ACCRETION?

A. The heirs to whom the portion goes by the right of accretion take it in the same
proportion that they inherit (Art. 1019)
Notes to remember
1. the heirs shall succeed to all the rights and obligation which the heir who
renounced or court not receive it would have had
Exceptions
a. when there is a contrary express provision in the will
b. when the rights and obligations referred to are personally applicable
only to the original heir, legatee, or devisee

Q. WHEN DOES ACCRETION TAKE PLACE AMONG COMPULSORY HEIRS?

A. Accretion takes place among compulsory heirs when:

1. when the free portion is left to:
a. two or more of them, or
b. to any one of them and to a stranger

Q. WHAT ARE THE RULES WHEN ACCRETION DOES NOT TAKE PLACE?

A. When accretion does not take place, the rules are:

 1. the vacant position of the instituted heirs, shall pertain to the substitute designated
2. if there is no substitute designated, it shall pertain to the legal heirs of the testator
3. whoever receives it (substitute or legal heirs) shall receive it with the same charges and
obligations present in the original heir

Q. DEFINE CAPACITY TO SUCCEED.

A. Capacity to succeed is the ability to inherit and retain property obtained mortis cause. It
is also termed passive testamentary capacity
Notes to remember
1. provisions relating to incapacity by will are applicable to intestate succession
except (only applicable to testamentary succession):
a. Art. 1027 (nos. 1 – 5) and
b. Art. 1028

Q. WHAT ARE THE KINDS OF INCAPACITY TO SUCCEED?

A. The kinds of incapacity to succeed are:

1. Absolute incapacity (cannot inherit from anybody regardless of circumstance) which
are:
a. individuals, associations, and corporation not permitted by law to inherit (Art.
1027, no. 6)
b. those who lack juridical personality (abortive infants, or who do not comply
with the requirements under Arts. 40 and 41)
2. Relative incapacity (cannot inherit only from certain persons or certain properties)
which are either:
a. because of possible undue influence (Art. 1027)
b. because of public policy and morality (Art. 1028 in relation to Art. 739)
c. because of unworthiness (Art. 1032)

Q. WHO HAS CAPACITY TO SUCCEED?

A. One who has capacity to succeed must be:

1. living, or
2. at least conceived the moment succession opens, that is death (Art. 41 must be
complied with)

Q. WHO ARE ABSOLUTELY INCAPACITATED?

Refer to above notes

Q. WHAT ARE THE REQUISITES FOR CAPACITY TO INHERIT?

A. The requisites for capacity to inherit are:

1. one must be living, or
2. at least conceived at the moment of death of the decedent
Q. WHAT ARE THE DIFFERENT CAUSES OF INCAPACITY?

A. The different causes of incapacity are:

1. undue influence (Art. 1027)
a. priest who heard the confession of the testator during his last illness
Notes to remember
1) incapacity is conclusively presumed by law
2) the will must have been made during the last illness, thus if made
before or after the last illness, there is no incapacity as there
could not have been undue influence
3) last illness means that of which the testator died, or immediately
preceding
4) the disqualification does not extend to:
a) the legitime
b) intestacy
c) dispositions which do not extend a testamentary benefit (like
appointment as executor)
5) priest who extended spiritual aid (like extreme unction) other than
confession is not incapacitated
b. minister of the gospel who extended spiritual aid to the testator during his last
illness
c. relatives within the 4th degree of consanguinity of such priest of minister
d. the church, order, chapter, community, organization, or institution to which
such priest or minister belong
e. guardian over the person or property of the ward for testamentary disposition
of the ward before the final accounts of the guardianship have been
approved by the court
Notes to remember
1) the guardian is not incapacitated:
a) if will is made after the approval of the final accounts of the
guardianship,
b) is the guardian is the relative (ascendant, descendant, brother,
sister, spouse) of the decedent
2) final accounts mean those that terminate the financial responsibility of
the guardian and are given to the court when the guardian is
removed, or resigns, or when there is no use for the guardianship
to continue
f. attesting witnesses
Notes to remember
1) an attesting witness is not incapacitated when there are 3 other
attesting witnesses
2) what incapacitates the attesting witness is that he/she is given
testamentary benefit, but a burden or obligation imposed on
the attesting witness, the same is valid and does not incapacitate
him/her

g. physician, surgeon, nurse, health officer or druggist who took care of the
testator during his last illness
Notes to remember
1) took care means continuing or regular caring, and not an isolated
service
 2) they are not disqualified or are not incapacitated to inherit by intestacy
because:
a) the law uses the term testator
b) intestacy takes place by operation of law
h. individuals (like abortive infants), associations, and corporations not
permitted by law to inherit
Notes to remember
1) they are absolutely incapacitated
2) prohibition to inherit is imposed by law (their charter)
2. by reason of public morality
a. the following donations shall be void:
1. made between persons who are guilty of adultery or concubinage at the
time of the donation
2. made between persons found guilty of the same criminal offense, in
consideration thereof
3. made to public officer or his wife, descendants and ascendants by
reason of his office
3. by reason of unworthiness
a. parents who have abandoned their children or induced their daughters to lead
a corrupt or immoral life, or attempted against their virtue
b. any person who has been convicted of an attempt against the life of the
testator, his or her spouse, descendants, or ascendants
Notes to remember
1. there must be a conviction by final judgment
2. acquittal on the basis of reasonable doubt does not result in incapacity
3. conviction need not be before testator’s or decedent’s death, it may
happen after his/her death, but the attempt must have been
made before the testator’s death
4. to determine the qualification of the heir, the rendition of the final
judgment must be awaited (Art. 1034, par. 2)
5. pardon by the Chief Executive is immaterial
6. if the heir dies before final judgment of conviction, the fact remains
that he is not convicted, hence he/she is capacitated (as long as
he/she did not predecease the testator)
7. if the heir made the attempt or even the killing himself after the death
of the testator (as when he attempted to kill or even killed the
testator’s father 1 day after the testator’s death) the heir
is still capacitated to inherit from the testator
c. any person who has accused the testator of a crime for which the law prescribes
imprisonment for 6 years or more, if the accusation has been found
groundless
d. any heir of full age who, having knowledge of the violent death of the testator,
should fail to report it to an officer of the law within a month, unless
the authorities have already taken action; this prohibition shall not apply
to cases wherein, according to law, there is no obligation to make an
accusation
e. any person convicted of adultery or concubinage with the spouse of the testator
Notes to remember
1. conviction by final judgment is required
2. the spouse who is guilty is not incapacitated under Art. 1032 but may
be incapacitated under Art. 106
 3. Art. 1032 applies to both testate and intestate succession
4. an heir incapacitated by reason of unworthiness, even if compulsory
heir, loses all rights to inherit from the deceased, including
from the legitime, and from the free portion, but without
prejudice to the right of representation when applicable
f. any person who by fraud, violence, intimidation, or undue influence should
cause the testator to make a will or to change one already made
g. any person who by the same means prevents another from making a will, or
from revoking one already made, or who supplants, conceals, or alters
the latter’s will
h. any person who falsifies or forges a supposed will of the decedent

Q. WHAT/WHO MAY BE THE BENEFICIARIES OF DISPOSITIONS?

A. The beneficiaries of dispositions may be:

1. dispositions for prayers and pious works, ½ of the property allocated for the purpose
shall be delivered by the executor, with the court’s approval, to the church or
denomination to which the testator may belong, and the other ½ to
the State for in accordance with Art. 1013
Notes to remember
a. 2. 1/1 is to ½ disposition applies in:
1. dispositions for prayers and pious works
2. disposition is in general terms
3. disposition does not specify its application
2. dispositions in favour of the poor
a. poor in general at the testator’s domicile at the time of death
b. poor of a definite locality
Notes to remember
1) the poor shall be designated by:
a) the person appointed by the testator for the purpose
b) If none:
11) the executor
22) mtc judge
33) mayor
44) municipal treasurer
2) their decision shall be subject to the approval of the court
3. dispositions in favour of disqualified persons, is void
Notes to remember
a. this could be made possible by:
1) dispositions under the guise of an onerous contract
2) fictitious debts are ordered paid
3) intermediary is interposed (for him later on to give to the incapacitated
person
b. disqualified person refers not to one incapacitated by reason of unworthiness
but:
1) one incapacitated either:
a) absolutely, or
b) by reason of possible undue influence Art. 1027), or
c) by reason of morality (Art. 1028)

Q. HOW TO JUDGE CAPACITY OF AN HEIR?

A. Judge the capacity of an heir by:
1. qualifications at the time of death of the decedent shall be the criterion
2. in nos. 2, 3, and 5 of art. 1032, wait for the final judgment
3. in no. 4 of art. 1032, at the expiration of 1 month allowed for the report of the violent
death
4. if the institution, devise or legacy is conditional, the criteria shall be:
a. the qualifications at the time of death of the testator, and
b. the qualifications at the time the condition is fulfilled

Q. MAY AN INCAPACITATED COMPULSORY HEIR BE REPRESENTED?

A. Yes. An incapacitated compulsory heir (living) may be represented by his heirs who
acquire his right to the legitime in case of:
1. incapacity (Art. 1035)
2. disinheritance (Art. 923

Q. WHAT IS/ARE THE EFFECT/S OF A JUDICIAL ORDER OF EXCLUSION ON

ALIENATIONS MADE?

A. The effect/s of a judicial order of exclusion of an heir on alienations already made are:
1. alienations and acts of administration are valid:
a. with respect to third persons
b. who acted in good faith
2. but co – heirs shall have the right to recover damages from the disqualified heir

Q. WHAT ARE THE INDEMNITIES TO BE REIMBURSED TO THE EXCLUDED HEIR?

A. The indemnities to be reimburse to the excluded heir are:

1. necessary expenses for preservation, regardless of good or bad faith
2. credit against the estate, if any

Q. WHAT ARE THE LIABILITIES OF AN INCAPACITATED HEIR WHO DISREGARDS

PROHIBITION?

A. The liabilities of an incapacitated heir who disregards prohibition are:

1. return the property together with its accession
2. liable for all fruits and rents he may have received or could have received through the
exercise of due diligence
3. damages should he/she fails, in bad faith, to comply with the foregoing obligations
imposed by law
Notes to remember
a. Improvements introduced as well as losses or deterioration of the property
shall be governed by the rules in possession where good and bad faith
must be considered

Q. WHAT DOES THE LAW OF THE DECEDENT GOVERN IN SUCCESSION?

A. The law of the decedent governs:

1. order of succession
2. amount of successional rights
 3. intrinsic validity of the provisions of the will
4. capacity to succeed

Q. WHAT IS THE PRESCRIPTIVE PERIOD FOR DECLARATION OF INCAPACITY AND

FOR RECOVERY OF THE INHERITANCE?

A. The prescriptive period of an action for:

1. declaration of incapacity
2. recovery of inheritance, devise or legacy
is 5 years from the time the disqualified person took possession of the property.

It may be brought by one who may an interest in the succession who is the person who
would inherit in place of the incapacitated heir

Q. WHAT ARE SOME NOTABLE RULES OF ACCEPTANCE AND REPUDIATION?

A. Some notable rules on acceptance and repudiation are:

1. They are free and voluntary, hence, the presence of vitiated consent gives rise to their
revocability
2. It is more usual to accept than repudiate, therefore, while acceptance may be
presumed, repudiation requires more formalities
3. There can be partial acceptance and partial repudiation, since the law does not
prohibit it
4. Even the legitime may be repudiated
5. No one can be compelled to accept the generosity of another
6. Acceptance or repudiation cannot be made during the lifetime of the testator or
decedent, except is so far as collationable donations inter vivos and remissions
7. Donations inter vivos and remission of debts are also purely voluntary and free, hence,
the presence of vitiated consent gives rise to their revocability
8. The effects of acceptance or repudiation always retroact to the moment of the death of
the decedent
9. The purpose of the retroactive effect is to prevent any stage where the property will be
without an owner and possessor
10. Acceptance or repudiation must be pure and absolute, that is, there must be no term
or condition otherwise the purpose referred to above is frustrated
11. No person may accept or repudiate an inheritance unless he is:
a. certain of the death of the person from whom he is to inherit, and
b. certain of his right to the inheritance
12. The presumption of death for purposes of opening succession is absence of ten years
13. If he disappeared at the age of 75 years, an absence of 5 years is sufficient
14, In addition, also presumed dead for all purposes including division of his estate
among his heirs are:
a. person on board a vessel lost during the sea voyage, or an aeroplace which is
missing, who has not been heard of for 4 years since the loss of the
vessel or aeroplace
b. a person in the armed forces who has taken part in war, and has been missing
for 4 years
c. a person who has been in danger of death under other circumstances and his
existence has not been known for 4 years
15. Should he reappear, or his existence proved he shall:
a. recover his property in the condition in which it may be found
 b. recover the price of the property that may have been alienated or the property
acquired therewith
c. not be entitled to the fruits and rents
16. Any person having free disposal of his property may accept or repudiate an
inheritance
17. An inheritance left to minors or incapacitated persons may be accepted by their
parents or guardians without court approval, but repudiation being an act of
alienation always need a court approval
18. The right to accept an inheritance left to the poor shall belong to the persons
designated by the testator to determine the beneficiaries and distribute the
property, and in their default:
a. mtc judge
b. mayor
c. municipal treasurer
19. Lawful representatives of corporations, associations, institutions and entities
qualified to acquire property may accept any inheritance left to the judicial
person, but in order to repudiate, court approval is needed
20. Public official establishments (those devoted to public purposes like charity,
education, and supported by public money like the University of the
Philippines) can neither accept nor repudiate an inheritance without the approval
of the government (proper executive head or department head)
21. Acceptance may be:
a. express, which must be made in a public (notarized) or private document
b. tacit (implied), one which results from acts by which the intention to accept is
necessarily implied, or one which would have no right to do except in
the capacity of an heir, like:
1) if the heir sells, donates, or assigns his rights to a stranger, or to his co
– heirs, or to any of them (he is only disposing what he
accepted)
2) if the heir renounces the same, even though gratuitously, for the benefit
of one or more of his co – heirs, he is giving advantage to others
3) renouncing gratuitously or for a consideration in favour of all his co -
heirs
Exception
If the renunciation is gratuitous and the heirs in whose favor it is
made are those upon whom the portion renounced should devolve
by virtue of accretion, the inheritance is not deemed accepted

Notes to remember
The following are covered by the word co heirs:
1) persons called to the inheritance by virtue of intestacy
2) substitutes
3) persons called to the inheritance by virtue of the right of accretion (but
if the renunciation is gratuitous, there is no implied acceptance
c. presumed, if within 30 days after the court has issued an order for the
distribution of the estate, the people concerned have not signified their
acceptance or repudiation (Art. 1057)
 22. Acts of mere preservation or provisional administration does not imply acceptance if
the title or capacity of an heir has not been assumed
23. Deaf and mutes who:
a. can read and write may accept and renounce an inheritance
b. cannot read and write can accept or renounce an inheritance through their
guardians
24. A married woman may repudiate an inheritance without the consent of the husband
because what she gets is her paraphernal property
25. Repudiation must be made expressly because
a. it is an act of disposition
b. it is unnatural and resultantly disturbs juridical relations
c. creditors of the renouncer should be more or less informed of it, hence, the
need for an express renouncing
26. Repudiation is made:
a. by a public instrument
b. by an authentic (genuine, not forged) instrument
c. by a petition to the court having jurisdiction over the testamentary of intestate
proceedings filed within 30 days from the order of the court for the
distribution of the estate, otherwise, there is a presumed
acceptance
27. One who repudiates is deemed never to have owned or possessed the inheritance
(Art. 522) without prejudice to the rights of creditors (Art. 1052)
28. One is not allowed to accept those without burdens or gratuitous, and repudiate
those with burdens or onerous
29. Creditors may accept if he is prejudiced by the renunciation by an heir
Notes to remember
a. Waiver or renunciation is not allowed where it is prejudicial to third persons
with a right recognized by law
b. Creditor do not accept in their own name but does so in the name of the heir
c. Acceptance by the creditor is only to the extent of what he has been prejudiced
of
d. Even if creditor accepts, the renouncing heir is still deemed not to have
accepted the inheritance, hence, cannot be represented
30. The right of an heir to renounce or accept an inheritance shall pass to his heirs
should he die without having accepted or repudiated the same
31. Should there be several heirs called to the inheritance, some may accept and some
may repudiate
32. Should an heir is called to inherit by will and intestate, repudiation of inheritance as
testamentary heir carries with it repudiation of the inheritance as an
intestate heir; but the repudiation of the inheritance as an intestate heir does not
carry with it repudiation of the inheritance as a testamentary heir; hence, the
inheritance as a testamentary heir may still be accepted or renounced

33. Acceptance or repudiation is irrevocable

Exceptions
a. when it is made by mistake (of substance or on the principal condition)
b. there is violence
c. there is intimidation
d. there is undue influence
e. there is fraud (Art. 1330)
f. when an unknown will appears which makes substantial changes
 34. If there are administration or settlement of the estate proceedings, the heir/s can no
longer repudiate the inheritance after the lapse of 30 days from the issuance
by the court of an order for the distribution of the estate

Q. WHO IS AN EXECUTOR?

A. An executor is one who is appointed in a will to take charge in carrying out the wishes of
the testator

Q. WHO IS AN ADMINISTRATOR?

An administrator is one who is appointed by the court where there is no will. He will be
given by the court letters of administration

Q. WHAT ARE THE DIFFERENT KINDS OF ADMINISTRATOR?

A. The different kinds of administrator are:

1. administrator pendent lite, one who is appointed in the meantime to take charge of the
estate, where there is delay in the appointment of the regular executor or
administrator, delay occasioned by certain causes like an appeal from the
allowance or disallowance of a will
2. A special administrator is one who is appointed temporarily as administrator pending
the qualification of an executor or the appointment of an administrator to
meet the urgent needs of the estate
3. One appointed although there is already an appointed regular administrator, as when
the latter seeks to recover his own credit or claim against the estate
4. administrator durante minore aetate, or one who is appointed when the person who
has the right to become executor or administrator is still a minor. The
appointment continues until the end of minority. This administration has all the
rights of a regular executor or administrator
Notes to remember
a. order or preference in the appointment of a regular administrator:
1) person named in the will or the executors are:
aa) competent
bb) accepts the trust
cc) gives sufficient bond
and should the fail to do so:
2) the surviving spouse is given first preference provided he/she:
aa) capable (not a minor, not a non – resident)
bb) not hostile to those interested in the estate
cc) solvent (because a bond is needed)
dd) the legal spouse; or
3) the next of kin or both in the discretion of the court
4) such person whom the surviving spouse or next of kin requests to be
appointed, if competent and willing to serve
5) principal creditors, if competent and willing to serve:
aa) the foregoing be incompetent or unwilling
bb) the foregoing neglects for 30 days from the death of the
decedent to apply for administration or to request that
administration be granted to them
 6) such other person as the court may select should principal creditors not
exist or if they exist, he/she is incompetent, not willing to serve, or
does not give bond
b. joint or plural administrators may be appointed where the estate is large and
there are different interests represented
c. authority as administrator is terminated:
1) when the settlement is closed, testate and intestate proceedings
2) administrator dies, resigns, or is removed
d. duties of the administrator are:
1) determine what properties belong to the estate
2) recover properties belonging to the estate which are in the possession
of another
3) within 3 months after appointment, submit an inventory and appraisal
of the real and personal properties belonging to the estate
4) within 1 year from appointment, render proper accounting
5) cannot enter into any transaction regarding the estate with prior
approval from the court
e. should the estate be insufficient to cover debts and obligations of the estate, the
order and preference under articles 2239 to 2251 shall be observed
f. expenses referred to under article 2244, no. 8, shall pertain to those involved in
the administration of the decedent’s estate
g. trust companies can be an executor, administration or guardian of an estate
but not a guardian over the person of a ward

ASSIGNMENT NO. 8

Q. WHAT IS COLLATION?

A. Collation has 2 meanings

1. It means computing or adding values to the estate and charging the same to the
legitime (Arts. 1061, 1062, 1063, 1064
 2. It also means computing or adding values to the estate and charging the same to the
free portion (Arts. 1062 and 1063)
Notes to remember
a. the 2 kinds of collation are:
1) collation in value which is adding to the estate the value
2) collation in kind which happens when the donee has no money which
to reimburse in case the donation the found to be totally
inofficious
b. 2 kinds of donations referred to in collation are:
1) direct or ordinary donation
2) indirect donation such as:
aa) debts remitted
bb) renunciation of another inheritance by the deceased in favour
of the compulsory heirs
cc) sums paid by parents in satisfaction the debts of children
dd) election expenses
ee) fines (Art. 1069)

Q. WHO HAS THE OBLIGATION TO COLLATE?

A. Those who have the obligation to collate are:

1. compulsory heirs; and
2. strangers, should there be compulsory heirs

Q. WHAT CAN BE COLLATED BY COMPULSORY HEIRS?

A. Compulsory heirs (spouse, though compulsory heir, is not included because donations to
him/her is/are void, while moderate donations on family occasions are not collationable
to determine the value of the estate) should collate or bring into the mass of the estate:
1. any property or right which he may have received from the decedent, during the
lifetime of the decedent, by way of
a. donation
b. any other gratuitopus title

Q. WHEN DO COMPULSORY HEIRS NOT COLLATE?

A. Compulsory heirs do not collate:

1. if the donor has expressly provided so unless the donation be reduced because it is
inofficious
Notes to remember
a. what is given is not chargeable to the legitime but is chargeable to the free
portion
2. if the done repudiates the inheritance
Notes to remember
a. the donation repudiated should be charged to the free portion.
Q. WHAT IS THE RULE ON COLLATION OF TESTAMENTARY DISPOSITIONS?

A. The rule in the collation of testamentary dispositions is:

1. As a gen rule: testamentary dispositions are not subject but should be imputed to the
free portion
 2. Exception: when the testator provides otherwise (chargeable or imputed to the
legitime

Q. WHAT CAN BE COLLATED BY GRANDCHILDREN?

A. Granchildren surviving with their uncles, aunts, or cousins, inherit from their
grandparents in representation of their father or mother shall bring to the collation:
1. all that their parents, if alive, would have been obliged to bring, even though such
grandchildren have not inherited the property. This is an exception to the rule
that only donees should collate. This article also applies if the parent is
incapacitated or is disinherited
2. all that they may have received from the decedent during his lifetime, under the
testator has provided otherwise (provided the legitime of co – heirs are not
prejudiced)

Q. WHAT CANNOT BE COLLATED?

A. Things need not be collated are:

1. Parents are not obliged to collate the inheritance of their ascendants any property
which they may have been donated to their children
2. Donations to the spouse of the child (because the spouse is not a compulsory heir of
the parent, but it should be charged to the free portion), but if these are given
by the parent to the spouses jointly, the child shall be obliged to bring to collation ½
of the thing donated
3. Expenses for support
4. Expenses for education (up to high school)
5. Expenses for medical attendance
6. Expenses for apprenticeship
7. Expenses for ordinary equipment
8. Customary gifts
9. Expenses for a professional, vocational or other career
Except:
a. when the parent so provides for collation
b. when they impair the legitime
in which case the sum spent if the child lived in the house and company of his parents
shall be deducted (not subject to collation) therefrom
10. wedding gifts by parents and ascendants consisting of jewelry, clothing, and outfit
Except:
a. when they exceed 1/10 of the sum disposable by will
Notes to remember
1. According to Paras, money or cash or real property as wedding gifts are
included (not subject to collation)
2. Justice J.B.L. Reyes and Ricardo Puno sustain the contrary view, not included,
thus subject to collation

Q. WHAT SHOULD BE BROUGHT TO COLLATION?

A. Those brought to collation are:

1. Any sums paid by a parent in satisfaction of the debts (valid and enforceable) of his
children
 2. election expenses,
3. fines
4. similar expenses

Q. HOW SHOULD COLLATION (OF THE VALUE) BE DONE?

A. Collation of the value is done by:

1. determining their value at the time of the donation (which is a question of fact which
must be determined) even though their just value may not have been assessed
Notes to remember
a. increase in value, decrease in value, and total loss or destruction shall be for
the benefit or risk of the done
2. add such value to the value of the estate
3. determine the legitime
4. determine free portion
5. determine inofficious dispositions (to the legitime and to the free portion)
Notes to remember
a. donations by both parents, ½ shall pertain to the inheritance from the father;
while the other half shall pertain to the inheritance from the mother
b. donee’s share in the estate should be reduced by an amount equal to that
already received by him
c. his (donee) co – heirs shall receive an equivalent, as much as possible, in
property of the same nature, class and quality

Q. WHAT ARE THE ADDITIONAL WAYS OF EQUALIZATION?

A. The additional ways of equalization are:

1. real property is donated
a. get property of the same kind
b. if none, get cash or securities
c. if none, sell as much property to cover the cash value
2. if personal property is donated:
a. get property of same kind
b. if none, get equivalent (in value) personal property, with no right to demand
cash or demand sale to get cash
Notes to remember
1. fruits and interest of the property subject to collation shall pertain to
the estate from the death of the decedent (when succession
opens)
2. for purposes of ascertaining the amount, the fruits and interest of the
property of the estate of the same kind and quality as that
subject to collation shall be made the standard of assessment

Q. WHAT ARE THE RULES FOR RETURNING IN KIND?

A. The rules for returning in kind are:

 1. co heirs are bound to reimburse the done the necessary expenses for the preservation
of the property, though they may not have augmented its value
2. where the property is immovable, reimburse expenses for improvements which have
increased the value of the property, and which exist at the time the partition is
effected
3. where the works are for the mere pleasure of the done, there is no reimbursement but
he (donee) has the right to remove them if he can do so without injuring the
estate.
4. If there is injury to the estate in the removal, the donee has no right to remove them

Q. WHAT ARE THE RULES ON QUESTIONS ARISING FROM COLLATION?

A. The rules on questions arising from collation are:

1. Questions on collation do not interrupt distribution as long as security is given
2. Such questions may be threshed out during the administration proceedings
3. Just because more than 30 days have lapsed since the perfection of the donation, it
does not necessarily mean that collation is barred by prescription because
prescription runs from the time of death of the donor
4. Only properties received by gratuitous title may be the subject of collation. In
remunerative or onerous donations, what can be collated (charged to the free
portion) is what which exceed the value of the service or the charge
Notes to remember
The time to raise the question arising from collation is at the stage of determining
the extent of the estate

Q. WHAT IS PARTITION?

A. Partition is the segregation of the undivided shares of the co – heirs to a property

Q. WHAT ARE THE KINDS OF PARTITION?

A. The kinds of partition are:

1. provisional or temporary (Art. 1084)
This may arise when voluntary heirs upon whom some condition has been
imposed (who cannot demand partition), the other co – heirs may demand a
partition (provisional) by giving sufficient security for the rights which the
former may have in case the condition is not complied with, until it is known that
the condition is not fulfilled or can never be complied with
2. permanent (Art. 1084
3. partial
4. total
5. judicial
Notes to remember
a. this is done in the order of distribution made by the court, and based on a draft
or project of partition, which requires approval by the court in an:
1) administration proceedings or
2) ordinary action for partition
b. the court may compel the executor or administrator to submit a project of
partition failing in which he may be declared in contempt for failure to
obey a lawful order of the court
 c. partial or advance distribution of the estate may be ordered by the court
especially when the heirs need money, and when creditors are present,
a bond may be required to safeguard their interest
d. even after distribution, creditors can still demand recovery from the heirs
e. it is improper to file an action for partition when administration proceedings
are pending in the probate court
6. extra judicial
a. made by the testator
b. made by the decedent in an act inter vivos (Art. 1080)
Notes to remember
1) such partition is subject to the legitime
2) the testator may order that the legitime of other children be paid in
cash is case where:
aa) a parent, who in the interest of his or her family desires to keep
intact any:
11) agricultural
22) industrial
33) manufacturing enterprise
3) no formalities are required by Article 1080
4) the partition will only be effective upon the death of the
testator/decedent
5) it does not require the formalities of a will
6) it does not require the formalities of a donation since donation is not
the mode of acquiring ownership
7) the mode of acquiring ownership is by succession (intestate)
8) the partition is merely a physical determination of the part to be given
to each heir
c. made by the heirs themselves
d. made by a 3rd person entrusted by the testator or decedent, but who is not an
heir
Notes to remember
1) the 3rd person is not allowed to make disposition or distribution of the
property of the estate
2) the testator is not allowed to entrust the power to physically partition
the property to an executor who is also an heir
3) Articles 1080 and 1081 can be observed and followed even if one of the
heirs be a minor, provided:
aa) notification to co – heirs, creditors, legatees, and devisees be
made
bb) there is an inventory of the estate

Q. WHAT ARE THE RULES ON PARTITION BY THE TESTATOR?

A. Refer to the notes above

Q. WHEN IS PARTITION EFFECTED?

A. Partition is effected:
 1. when co – ownership ceases to exist or put to an end

Q. WHEN CAN PARTITION BE DEMANDED?

A. Partition can be demanded:

1. when the testator has not expressly forbidden partition. When he expressly prohibits
partition, the period of indivision shall not exceed 20 years. The prohibition
applies even to the legitime
2. despite the express prohibition by the testator to partition the property, co –
ownership is terminated:
a. under any one of the causes of dissolving a partnership or
b. when the court finds compelling reasons for division to be ordered upon the
petition of one of the heirs

Q. WHEN CAN VOLUNTARY HEIRS DEMAND PARTITION?

A. Voluntary heirs can demand partition:

1. when the condition, if any, has been fulfilled
2. other heirs can demand partition (provisional) by giving sufficient security for the
rights which the heir (whose inheritance is subject to a condition) may have
should the condition be complied with, and until it is known that the condition has
not been fulfilled or can never be complied with
3. pure heirs, or those who inherit without any condition

Q. WHEN CAN PURE HEIRS DEMAND PARTITION?

A. Pure heirs can demand partition anytime after the death of the testator but after paying
the debts, if any, of the testator

Q. WHAT IS PROVISIONAL PARTITION?

A. Refer to notes above

Q. EXPLAIN THE EQUALITY IN PARTITION.

A. Equality in partition means same share by

1. dividing the property into lots or
2. assigning to each of the co – heirs things of the same nature, quality and kind.
Notes to remember
a. The partition must proved to be reasonable, otherwise, the heirs may be said to
have been deprived of their property without due process of law
b. Should the property be indivisible or impaired if divided, it may be adjudicated
to one of the heirs provided he shall pay the others the excess in cash
c. nevertheless, if any one of the heirs should demand that the thing be sold at
public auction and that strangers be allowed to bid, this shall be done

Q. WHAT ARE THE RULES ON PARTITION:

A. OF AN INDIVISIBLE OBJECT?
A. Refer to notes above

B. REIMBURSEMENT BY CO – HEIRS?

A. Co – heirs shall reimburse one another for the:

1. income and fruits which each of them may have received from the property of the
estate
2. useful and necessary expenses made upon such property
3. any damage thereto through malice or neglect

C. LEGAL REDEMPTION OF CO – HEIRS?

A. For a co – heir be entitled to redeem, the requisites are:

1. there must be 2 or more heirs (include legatees and devisees)
2. one must sell his hereditary rights (undivided share)
Notes to remember
a. barter and onerous donation are included in the word sale
b. the sale must be actual not merely contemplated
c. sale may either be voluntary or involuntary
d. what is sold are hereditary rights, right to future inheritance are not hereditary
rights
3. the buyer must be a stranger (not a co – heir)
Notes to remember
a. stranger refers to all who are:
11) not heirs
22) heirs who do not succeed (like an incapacitated child)
33) legatees, devisees, creditors
4. the sale must be before partition
Notes to remember
a. if the sale is made after partition, and there are still properties owned in
common and the sale pertains to an aliquot shares therein, Article
1088 is not applicable, instead Article 1620 should be made to apply
b. also Article 1080 is not applicable where the sale is after the project of partition
is made even if the same be made before the approval by the court of the
partition, provided the would – be redemptioner is also a party to the
project of partition. This is because the approval retroacts to the date
when the project was made
5. at least 1 co – heir must demand the redemption
Notes to remember
a. one who has sold his undivided share or right cannot redeem unless he has
reacquired what he has sold by the exercise of the right of conventional
redemption
b. all who are entitled to redeem may redeem in proportion to their respective
shares in the inheritance, provided, of course, that redemption in favor
of one has not yet taken place
c. co – heirs heir can exercise his right to redeem in case of death of the co - heir
6. the demand must be made in 1 month from the time of notification in writing that
there has been an actual sale
Notes to remember
 a. 1 month may be counted from actual knowledge of the sale
b. the notification may even be oral
7. the redemptioner must reimburse the price of the sale
Notes to remember
a. Article 1088 speaks of legal redemption distinct from legal redemption under
Article 1620 and 1623

Q. WHAT ARE THE OBLIGATIONS ARISING FROM PARTITION?

A. The obligations arising from partition are:

1. deliver titles (document) of acquisition of ownership of such property
Notes to remember
a. title comprises 2 or more pieces of land assigned to 2 or more heirs or it covers
1 piece of land divided between 2 or more heirs, the title (document)
shall be delivered to the one having the largest interests, and authentic
copies thereof delivered to the other co – heirs at the expense of the estate
b. if they have the same interest, deliver to the oldest heir

Q. WHAT ARE THE EFFECTS OF PARTITION?

A. The effects of partition are:

1. confers up[on each heir the exclusive ownership of the property adjudicated to him
2. the co – heirs shall be reciprocally bound to warrant the title to, and the quality of,
each property adjudicated
Notes to remember
a. warranty of title (eviction). It is enough that there be a burden or encumbrance
that must be respected and there is no need for a final judgment of eviction
b. warranty of quality (hidden defects)

Q. WHAT IS RECIPROCAL AND PROPORTIONATE WARRANTY?

A. Reciprocal and proportionate warranty refers to the reciprocal warranty of the co – heirs
under Article 1092 which shall be proportionate to the respective hereditary shares of the
co – heirs
Notes to remember
1. if any one of the co – heirs be insolvent, the other co – heirs shall be liable for
his part in the same proportion, deducting the part corresponding to
the one who should be indemnified
2. those who pay for the insolvent heir shall have a right of action against him for
reimbursement, should his financial condition improve

Q. WHAT IS THE PRESCRIPTIVE PERIOD TO ENFORCE WARRANTY AMONG HEIRS?

A. The prescriptive period to enforce warranty among heirs is 10 years from the date the
right of action accrues

Q. WHAT ARE THE RULES ON WARRANTY OF DEBTS?

A. The rules on warranty of debts are:

 1. if a credit should be assigned as collectible, the co – heirs shall not be liable for the
subsequent insolvency of the debtor of the estate
2. the co – heirs above shall be liable if the insolvency happens at the time the partition is
made
3. the warranty of solvency of the debtor can only be enforced during the 5 years after
partition
4. co – heirs do not warrant bad debts if:
a. so known to the distributee
b. and accepted by the distribute
5. if such bad debts are not assigned to a co – heirs, and should be collected, in whole or
in part, the amount collected shall be distributed proportionately among the
heirs
6. there is no warranty for bad debts, so an heir accepts them at his own risk

Q. WHEN DOES WARRANTY CEASE?

A. Warranty ceases:
1. when the testator himself made the partition
Except:
a. when it appears or reasonably presumed that the intention of the testator is
otherwise (that there is still a warranty despite the partition). But the
legitime shall always remain unimpaired
b. when it has been expressly stipulated in the agreement of partition, unless
there has been bad faith
c. when the eviction is due to causes subsequent to the partition
d. when the eviction has been caused by the fault of the distribute of the property

Q. WHAT ARE SOME NOTABLE PRINCIPLES IN THE RESCISSION AND NULLTIY OF

PARTITION?

A. Some notable principles in the rescission and nullity of partition are:

1. a partition may be rescinded or annulled for the same causes as contracts
Notes to remember
a. the rescissible contracts are:
1) Those which are entered into by guardians whenever the wards whom
they represent suffer lesion by more than one-fourth of the
value of the things which are the object thereof;
2) Those agreed upon in representation of absentees, if the latter suffer
the lesion stated in the preceding number;
3) Those undertaken in fraud of creditors when the latter cannot in any
other manner collect the claims due them;
4) Those which refer to things under litigation if they have been entered
into by the defendant without the knowledge and approval of
the litigants or of competent judicial authority;
5) All other contracts specially declared by law to be subject to rescission
(Art. 1381)

b. Art. 1409. The following contracts are inexistent and void from the beginning:
 1) Those whose cause, object or purpose is contrary to law, morals, good
customs, public order or public policy;
2) Those which are absolutely simulated or fictitious;
3) Those whose cause or object did not exist at the time of the transaction;
4) Those whose object is outside the commerce of men;
5) Those which contemplate an impossible service;
6) Those where the intention of the parties relative to the principal object
of the contract cannot be ascertained;
7) Those expressly prohibited or declared void by law. rescission
presupposes an ordinary valid contract but there is an extrinsic
defect, like prejudice to creditors
c. annulment presupposes a contract with an intrinsic defect like vices of consent
d. fraud, excusable mistake, ir inadvertence makes a contract annullable
e. mere disregard of the provisions of a will, will not annul a partition, if
everybody concerned had freely given their consent, for all would be in
estoppel
2. an action for partition does not prescribe among heirs provided that one or
some of them do not hold the property in question under an adverse title
3. prescription operates once adverse possession has set in
4. in an extrajudicial deed of partition executed by some heirs, who as a
consequence obtained certificates of title, the excluded heirs have 4 years from
the registration of the deed to ask for annulment of the partition
5. a partition, judicial or extra – judicial, may also be rescinded on account of
lesion, when any one of the co – heirs received things whose value is less, by at
least ¼ than the share to which he is entitled considering the value of
the things at the time they were adjudicated (Art. 1098)
6. the partition made by the testator cannot be impugned on the ground of lesion
Except
a. when the legitime of the compulsory heirs is thereby prejudiced or
b. when it appears or may reasonably be presumed, that the intention of
the testator was otherwise (that is, if the intent of the testator is for his
partition to be rescinded should there be lesion)

Q. WHAT ARE THE GROUNDS FOR RESCISSION OF PARTITION?

A. The grounds for rescission of partition are:

1. lesion to the extent of at least ¼
2. grounds for rescinding ordinary contracts

Q. WHAT IS THE PRESCRIPTIVE PERIOD FOR RESCISSION ON ACCOUNT OF

LESION?

A. The prescriptive period to file an action for rescission on account of lesion is 4 years from
the time the partition was made

Q. WHAT ARE THE OPTIONS OF THE SUED HEIR?

A. The options of the sued heir are:
1. indemnifying the suing co – heir for the loss
Notes to remember
a. it may be made in cash
b. it may also be made by delivering a thing of the same kind and quality as that
awarded to the suing heir (one who is prejudiced by the partition)
2. consenting to a new partition
N0otes to remember
a. the new partition shall affect neither:
1) those who have not been prejudiced
2. nor those who have not received more than their just share

Q. WHEN CAN RESCISSION NOT PROSPER?

A. Rescission cannot prosper when an heir alienates the whole or a considerable part of the
real property adjudicated to him, but he shall have the right to be indemnified in cash
(Art. 1102)

Q. WHAT ARE THE EFFECTS OF PRETERITION OF OBJECTS IN THE PARTITION?

A. The effects of preterition of objects in the partition are:

1. it shall not cause rescission of the partition on the ground of lesion
2. the partition shall be completed by the distribution of the objects or securities which
have been omitted
3. this will give rise to mixed succession (that is, testate and intestate succession)

Q. WHAT ARE THE EFFECTS OF PRETERITION OF COMPULSORY HEIRS IN THE

PARTITION?

A. The effects of preterition of compulsory heirs in the partition are:

1. the partition shall not be rescinded
Except
a. it is proved that there was bad faith on the part of the other persons interested
b. it is proved that there was fraud on the part of the other persons interested
2. other persons interested shall be proportionately obliged to pay to the person omitted
the share which belongs to him

Q. WHAT IS THE EFFECT OF A STRANGER IN THE PARTITION?

A. The effect of a stranger in the partition is that the partition is void with respect only to
such person/stranger
Notes to remember
1. the stranger must return what he has received to the heir who is lawfully
entitled to receive the same