Civil Law
Steps in applying the rules in preference and
concurrence of credit
1. Categorize the credits accordingly.
2. Determine or make an inventory of the assets or
properties of the insolvent.
3. Segregate specific immovables and/or movables
mentioned under Arts. 2241 and 2242 of the NCC,
respectively.
4. Sell movables and determine if the proceeds are
sufficient to cover the special preferred credit in Art.
2241 of the NCC; exclude all other credits to the
extent of the value of the movable to which
preference refers. Pay No.1 credit in Art. 2241 of the
NCC; and if 2 or more credits in Art. 2241 of NCC
concur, apply proceeds of sale pro rata to the credits
applying Arts. 2246 and 2247 of NCC.
For immovables and real rights – sell immovable and
real right and determine the proceeds of sale if
sufficient to cover the special preferred credits in Art.
2242 of NCC. Exclude all other credits to the extent of
the value of the immovables and real rights to which
preference refers. Pay No. 1 in Art. 2242 of NCC; if 2
or more credits mentioned in Art. 2242 of NCC
concur, apply proceeds pro rata to the credits
applying Arts. 2248 and 2249 of the NCC.
5. If proceeds of sale from specific movable and
immovable are insufficient, the balance of said special
preferred credits become common credits under Art.
2245 of the NCC.
If proceeds of sale from specific movable and
immovables exceed the total special preferred credits,
such excess becomes part of free property of the
debtor to be added to other assets in order to satisfy
the ordinary preferred credits under Art. 2250 of the
NCC and then the common credits under Art. 2245 of
the NCC
6. With the excess cash sale of assets covered in Art.
2241 and 2242 of the NCC, if any, sell other assets of
debtor and satisfy the ordinary preferred credits by
applying proceeds of sale in accordance with the
order of preference of credits established in Art.
2244 of NCC. Rule on Preference applies.
7. After applying the proceeds of sale of all properties
under Step 6, Apply balance of the proceeds of the
sale to common credits in accordance with the rule
provided in Art. 2251 of the NCC. Rule on
concurrence applies, they are paid pro rata
regardless of dates (NCC, Art. 2251).
SUCCESSION
GENERAL PROVISIONS
Succession is a mode of acquisition by virtue of which the
property, rights and obligations to the extent of the value
of the inheritance of a person, are transmitted through his
death to another or others either by his will or by
operation of law (NCC, Art. 774).
412
Requisites of succession (DATE)
1. Death of decedent;
2. Acceptance of the inheritance by the successor;
3. Transmissible estate; and
4. Existence and capacity of successor, designated by
decedent or law.
A decedent is a person whose property is transmitted
through succession whether or not he left a will. If the
decedent left a will, he is also called a testator (NCC, Art.
775).
Inheritance includes all the property, rights and
obligations of a person which are not extinguished by his
death (NCC, Art. 776).
The inheritance of a person includes not only the property
and the transmissible rights and obligations existing at
the time of his death, but also those which have accrued
thereto since the opening of the succession (NCC, Art.
781).
Purely personal rights are extinguished by death. Hence,
they are not transmitted to the heirs.
The heirs succeed not only to the rights of the deceased
but also to his obligations.
GR: Rights and obligations arising from contracts are
binding upon the heirs.
XPNs: When the rights and obligations arising are not
transmissible by:
1. Their nature
2. Stipulation
3. Provision of law. (NCC, Art. 1311)
Inheritance Succession
It is the objective element
It is the legal mode by
of succession, to the mass
which inheritance is
or totality of the estate of a
transmitted.
deceased person.
Rules on properties acquired after the execution of a
will
GR: Property acquired during the period between the
execution of the will and the death of the testator will not
pass under the provisions of the will but by the rules on
legal succession. Otherwise stated, the property will NOT
form part of the estate of the testator that will pass on to
his instituted heirs.
XPNs:
1. When a contrary intention expressly appears in the
will (NCC, Art. 793), in which case the property will
be included in that portion of the estate that will pass
to the instituted heirs by way of testamentary
succession; and
2. If the after-acquired property is one which the
testator has disposed of under his will as a legacy or
device, i.e., the property did not belong to the testator
 Succession
at the time he disposed of it as a device or as a legacy
and he only acquired the same after making his will
(NCC, Art. 930). In this case, the legacy or device will
be given effect even if the will is silent with regard to
such an intention on the part of the testator.
NOTE: Property acquired after the death of the testator in
the form of accession, accruals, earnings and the like
pertain to the heirs as owners of the estate in their own
right. But for purposes of defining the extent of the heirs’
liability for the obligations left behind by the decedent,
the properties after death should be treated as part of the
heirs’ inheritance (NCC, Art. 781 in relation to NCC, Art.
777).
Liability of the heirs for the obligations of the
decedent
The heirs CANNOT be held personally liable with their
own individual properties for the debts or obligations left
by the decedent. The responsibility of the heirs for the
debts of their decedent cannot exceed the value of the
inheritance they receive from him. (Estate of K.H. Hemady
v. Luzon Surety Co., G.R. No. L-8437, November 28, 1956) It
is only after the debts are paid that the residue of the
estate is distributed among the successors.
---
Q: Before his death, A borrowed from X P1, 000 as
evidenced by a promissory note. A died without
paying the debt. A left no property but he is survived
by his son, B, who is making good in the buy and sell
business. Subsequently, X brought an action against B
for the collection of P1,000 plus legal interest thereon
on the ground that, since B is the only heir of A, he
inherited from the latter not only the latter’s
property, but also all his rights and obligations. Will
the action prosper? Reason.
A: NO. The heirs are not personally liable with their own
individual properties for the monetary obligations/debts
left by the decedent. An heir’s liability for his
predecessor’s obligations is limited by the amount of
inheritance he receives. B cannot be made liable for A’s
unpaid obligation because B did not inherit anything from
A.
---
A contract of guaranty is NOT extinguished by death
It is not extinguished by death because a contract of
guaranty is not one of the exceptions under Art. 1311 of
NCC (Relativity of Contracts). A guarantor’s obligation is
basically to pay the creditor if the principal debtor cannot
pay. Payment does not require any personal
qualifications. The personal qualifications become
relevant only at the time the obligation is incurred but not
so at the time of discharge or fulfillment of the obligation
(Estate of K.H. Hemady v. Luzon Surety Co., Inc., G.R. No. L-
8437, November 28, 1956).
---
Q: The wife died while the action for legal separation
was pending. Her children, however, wanted to
continue the action. They ask that they be allowed to
substitute their deceased mother, arguing that the
action should be allowed to continue. Decide.
413
A: The children cannot be substituted in an action for legal
separation upon the death of their mother who filed the
case. An action for legal separation which involves
nothing more than bed-and-board separation of the
spouses is purely personal. Being personal in character, it
follows that the death of one party to the action causes the
death of the action itself — actio personalis moritur cum
persona (Lapuz v. Eufemio, G.R. No. L-30977. January 31,
1972).
---
Q: Fortunata died while her action for quieting of title
of parcels of land was pending. Does her death result
in the extinguishment of the action or may her heirs
substitute her in the case?
A: Her heirs may substitute her because the action is not
extinguished by her death. Since the rights to the
succession are transmitted from the moment of the
deathof the decedent, the heirs become the absolute
owners of his property, subject to the rights and
obligations of the decedent, and they cannot be deprived
of their rights thereto except by the methods provided for
by law. The right of the heirs to the property of the deceased
vests in them upon such death even before judicial
declaration of their being heirs in the testate or intestate
proceedings.
When she died, her claim or right to the parcels of land in
litigation was not extinguished by her death but was
transmitted to her heirs upon her death. Her heirs have
thus acquired interest in the properties in litigation and
became parties in interest in the case (Bonilla v. Barcena,
et al., G.R. No. L-41715, June 18, 1976).
---
Q: Can the heir enter into a contract of sale,
conveyance or any disposition pertaining to his
interest in the inheritance even pending the
settlement of the estate?
A: YES, because his hereditary share/interest in the
decedent’s estate is transmitted or vested immediately
from the moment of decedent’s death. This is, however,
subject to the outcome of the settlement proceedings.
---
Q: What is the nature of the transaction entered into
by the heir pertaining to his hereditary share in the
estate pending the settlement of the estate?
A: The effect of such transaction is to be deemed limited
to what is ultimately adjudicated to the heir. However,
this aleatory character of the contract does not affect the
validity of the transaction.
An heir can sell his undivided share of the inheritance but
not any particular part of the estate. (Flora v. Prado, G.R.
No. 156879, January 20, 2004) An heir can validly convey
a property of the estate only in so far as his individual
share in the co-ownership is concerned (Aguirre v. CA, G.R.
No. 122249, January 29, 2004).
---
Future inheritance
GR: No contract may be entered into upon future
inheritance [NCC, Art. 1347, (2)].
 Civil Law
XPNs:
1. Partition inter vivos (NCC, Art. 1080)
2. Donations propter nuptias by future spouses to each
other of future property
Requisites for the contract to be classified as one
upon future inheritance:
1. The succession has not yet been opened.
2. The object of the contract forms part of the
inheritance.
3. The promissory has an expectancy of a right which is
purely hereditary in nature with respect to the
object.
An heir CANNOT enter into a compromise agreement to
renounce his rights over a future inheritance.
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 (NCC, Art. 905).
A future legitime is merely an expectancy, and the heir
does not acquire any right over the same until the death
of the testator. Hence, juridically, there is nothing on
which to compromise. Furthermore, Art. 1347 of NCC
expressly provides that, “no contract may be entered into
upon future inheritance except in cases expressly
authorized by law.”
Actual delivery is NOT necessary for an heir to
acquire ownership over an inherited property
The possession of hereditary property is deemed
transmitted to the heir without interruption and from the
moment of the death of the decedent, in case the
inheritance is transmitted.
Pending a proceeding determining the rightful heirs, the
prospective heirs can demand delivery of their supposed
inheritance because ownership passes to the heir at the
very moment of death. This is the basis of the heirs’ rights
to the fruits is the Right of Accession.
SUCCESSION OCCURS AT THE MOMENT OF DEATH
The rights to the succession are transmitted from the
moment of the death of the decedent (NCC, Art. 777).
(2000 BAR)
The moment of death is the determining point when the
heirs acquire a definite right to the inheritance, whether
such right is pure or conditional. The possession of
hereditary property is therefore deemed transmitted to
the heir without interruption and from the moment of
death of the decedent.
The interest of the heir over the inheritance prior to the
death of the decedent is merely inchoate or a mere
expectancy.
414
The right of the heirs to the property of the deceased vests
in them even before judicial declaration of their being
heirs in the estate or intestate proceedings.
It is immaterial whether a short or long period of time
elapses between the death of the predecessor and the
entry in the possession of the properties of the
inheritance, because the right is always deemed to
retroact to the moment of death.
The law in force at the time of the decedent’s death will
determine who the heirs should be (Uson v. Del Rosario,
G.R. No. L-4963, January 29, 1953).
Presumptive Death
The absentee shall not be presumed dead for the purpose
of opening his succession till after an absence of ten
years. If he disappeared after the age of seventy-five
years, an absence of five years shall be sufficient in order
that his succession may be opened (NCC, Art. 390).
The following shall be presumed dead for all purposes,
including the division of the estate among the heirs:
1. A person on board a vessel lost during a sea voyage,
or an aeroplane which is missing, who has not been
heard of for four years since the loss of the vessel or
aeroplane;
2. A person in the armed forces who has taken part in
war, and has been missing for four years;
3. A person who has been in danger of death under
other circumstances and his existence has not been
known for four years (NCC, Art. 391).
NOTE: If there is a doubt, as between two or more persons
who are called to succeed each other, as to which of them
died first, whoever alleges the death of one prior to the
other, shall prove the same; in the absence of proof, it is
presumed that they died at the same time and there shall
be no transmission of rights from one to the other (NCC,
Art. 43).
KINDS OF SUCCESSION AND SUCCESSORS
Kinds of succession
a. Testamentary Succession - that which results from
the designation of an heir, made in a will executed in
the form prescribed by law (NCC, Art. 779).
b. Legal or Intestate Succession - that which takes
place if a person dies without a will, or with a void
will, or one which has subsequently lost its validity.
c. Mixed Succession - that effected partly by will and
partly by operation of law (NCC, Art. 780).
Kinds of Heirs
1. Voluntary or Testamentary Heirs – called to succeed
by virtue of the will of the testator:
a. Devisee - persons to whom gifts of real property
are given by virtue of a will
b. Legatee - persons to whom gifts of personal
property are given by virtue of a will
 Succession
NOTE: An heir is one who succeeds to the whole
(universal) or aliquot part of the estate. Devisee or A: It depends on the manner of his designation in the will.
legatee is one who succeeds to definite, specific, and Here, because he is called to inherit the entire estate, he is
individualized properties. an heir.
---
2. Compulsory Heir – called by law to succeed to a portion Instances where the distinctions between heirs and
of the testator’s estate known as legitime. Those who devisees/legatees become significant
succeed by force of law to some portion of the inheritance,
in an amount predetermined by law, of which they cannot 1. Preterition (NCC, Art. 854)
be deprived by the testator, except by a valid
disinheritance. The effect is:
a. to annul entirely the institution of heirs, but
3. Legal or Intestate Heir – those who succeed by b. the legacies and devises shall be valid insofar
operation of law through intestate succession. Those who as they are not inofficious.
succeed to the estate of the decedent who dies without a
valid will, or to the portion of such estate not disposed of 2. Imperfect/defective disinheritance (NCC, Art. 918)
by will.
The effect is:
Distinctions between heirs and legatees/devisees a. to annul the institution of heirs insofar as it
may prejudice the person disinherited, but
DEVISEES OR b. the devises and legacies and other testamentary
BASIS HEIRS dispositions shall be valid to such extent as
LEGATEES
will not impair the legitime.
Represent the
juridical
As to Never represent TESTAMENTARY SUCCESSION
personality of
representation of the deceased the personality
deceased’s of the deceased A will is an act whereby a person is permitted, with the
and acquire
juridical person their rights, no matter how formalities prescribed by law, to control to a certain
big the legacy or degree the disposition of his estate, to take effect after his
with certain
the devise is. death (NCC, Art. 783).
exceptions to
his obligations.
A will has been defined as “a personal, solemn, revocable
and free act by which a capacitated person disposes of his
Inherit an
property and rights and declares or complies with duties
undetermi-ned
to take effect after his death” (Vitug v. Court of Appeals,
quantity whose
G.R. No. 82027, March 29, 1990).
Determinationof exact amount Are always given
amount of cannot be a determinate
Characteristics of a Will
inheritance known and thing or a fixed
which cannot be amount
1. Statutory right – The making of a will is only a
fixed until the
statutory not a natural right. A will should be
inheritance is
subordinated to both the law and public policy.
liquidated.
2. Unilateral act – No acceptance by the transferees is
Succeed to the needed during the lifetime of the testator.
remainder of 3. Strictly personal act – The disposition of property is
Only succeed to solely dependent upon the testator.
Extent of the properties
the determinate 4. Ambulatory – A will is essentially revocable during
successional after all the
thing or quantity the lifetime of the testator. The testator can alter,
right debts and all the
which is revise, or revoke it at any time before his death.
legacies and
mentioned in the 5. Free from vices of consent – It must be executed
devices have
legacy or devise freely, knowingly and voluntarily, otherwise, it will
been paid or
given be disallowed.
6. Individual act – A will must be executed only by one
Can exist person. A joint will executed by Filipinos even abroad
As to when they whether the Only in is not allowed in the Philippines.
exist succession be testamentary
testate or succession NOTE: Mutual wills – Separate wills although
intestate containing reciprocal provisions are not prohibited,
subject to the rule on disposicion captatoria.
---
7. Solemn or formal act – A will is executed in
Q: Suppose a person is named to succeed to an entire
accordance with formalities prescribed by law.
estate. The estate, however, consists of only one
8. Dispositive of property – disposition of the
parcel of land. Is he an heir or a devisee?
testator’s estate mortis causa.

415
 Civil Law
---
Q: The document, a holographic one, contained only a
clause of disinheritance of one of the testator’s son.
Does the document meet the definition of the will
under Art. 783 of NCC although it does not contain any
disposition of the estate of the deceased?
A: The document, although it may initially come across as
mere disinheritance instrument, conforms to the
formalities of holographic will. The disinheritance results
in the disposition of the property of the testator in favor
of those who would succeed in the absence of the
disinherited heir (Seangio v. Reyes, G.R. Nos. 140371–72,
November 27, 2006).
---
PERSONAL ACT;
NON-DELEGABILITY OF WILL-MAKING
The making of a will is a strictly personal act; it cannot
be left in whole or in part to the discretion of a third
person, or accomplished through the instrumentality of
an agent or attorney (NCC, Art. 784).
Rule on non-delegability of will-making
The exercise of the disposing power is the act that cannot
be delegated. But the mere mechanical act of drafting the
will may be done by a third person as it does not
constitute a delegation of the will or disposition.
Doctrine of Prohibited Designation
The following cannot be left to the discretion of a third
person:
1. Duration or efficacy of designation of heirs, legatees,
or devisees.
2. Determination of the portions which the heirs,
legatees or devisees are to receive when referred to
by name.
3. Determination as to whether or not a disposition is
to be operative (NCC, Art. 785 and 787).
NOTE: It is not only the delegation which is void; the
testamentary disposition whose effectivity will depend
upon the determination of the third person is the one that
cannot be made. Hence, the disposition itself is void.
The following, however may be entrusted to a third
person:
1. Distribution of specific property or sums of money
that the testator may leave in general to specified
classes or causes.
2. Designation of the persons, institutions or
establishments to which such property or sums are
to be given or applied (NCC, Art. 786).
NOTE: Should the testator dispose of the whole or part of
his property for prayers and pious works for the benefit
of his soul, in general terms and without specifying its
application, the executor, with the court's approval shall
deliver one-half thereof or its proceeds to the church or
denomination to which the testator may belong, to be
used for such prayers and pious works, and the other half
416
to the State, for the purposes mentioned in article 1013
(NCC, Art. 1029).
Testamentary provisions in favor of the poor in general,
without designation of particular persons or of any
community, shall be deemed limited to the poor living in
the domicile of the testator at the time of his death, unless
it should clearly appear that his intention was otherwise
(NCC, Art. 1030).
Construction of a Will’s Provision
If a testamentary disposition admits of different
interpretations, in case of doubt, that interpretation by
which the disposition is to be operative shall be preferred
(NCC, Art. 788).
Construing the provisions of a will, substance rather than
form must be regarded, and the instrument should
receive the most favorable construction to accomplish the
purpose intended by the testator.
The words of a will are to receive an interpretation which
will give to every expression some effect, rather than one
which will render any of the expressions inoperative; and
of two modes of interpreting a will, that is to be preferred
which will prevent intestacy (NCC, Art. 791).
Reason: Testacy is preferred over intestacy because
testacy is the express will of the decedent whereas
intestacy is only his implied will.
The invalidity of one of several dispositions contained in
a will does not result in the invalidity of the other
dispositions unless it is to be presumed that the testator
would not have made such other dispositions if the first
invalid disposition had not been made (NCC, Art. 792).
Every devise or legacy shall cover all the interest which
the testator could devise or bequeath in the property
disposed of, unless it clearly appears from the will that he
intended to convey a less interest (NCC, Art. 794).
Parol Evidence Rule in the interpretation of wills
1. When there is an imperfect description, or when no
person or property exactly answers the description –
mistakes and omissions must be corrected.
2. If the error appears from the context of the will or from
extrinsic evidence, excluding the oral declarations of the
testator as to his intention; and when an uncertainty arises
upon the face of the will, as to the application of any of its
provisions – the testator's intention is to be ascertained
from the words of the will, taking into consideration the
circumstances under which it was made, excluding such
oral declarations (NCC, Art.789).
Kinds of Ambiguities in a Will
5. Latent (Intrinsic) – Ambiguities which are not
apparent on the face of a will but to circumstances
outside the will at the time the will was made. E.g. If
it contains an imperfect description of person or
property; No person or property exactly answers the
description.
 Succession

Example: Testator gives a legacy “to my cousin Anna”
and it will turn out that the testator has three cousins
named “Anna”
6. Patent (Extrinsic) – when an uncertainty arises
upon the face of the will as to the application of any
of its provisions (NCC, Art. 789).
Example: Testator gives a devise “to some of the
eleven children of my only brother"
Steps in Resolving Ambiguities
1. Examine the will itself;
2. Refer to extrinsic evidence or the surrounding
circumstances, (except oral declarations of the
testator as to his intention); and
3. In the case of patent ambiguities, the extrinsic
evidence acceptable is limited to those
pertaining to the circumstances under which the
will was executed.
Law governing the validity of wills
1. As to Extrinsic validity - refers to the forms and
solemnities required by law. It is governed by:
a. As to time - the law in force at the time of the
making of the will.
b. As to place - the will can be executed in
accordance to the formalities of the testator’s
nationality, domicile, residence or the place
where the will was executed depending on the
place where it is executed and the nationality of
the testator.
2. As to Intrinsic validity - refers to the legality of
provisions in the will. It is governed by:
a. As to time - the law in force at the time of the
decedent’s death.
b. As to place - the national law of the testator governs
the intrinsic validity of the will regardless of the place
of execution.
In American law, testamentary capacity is concerned with
the ability of the testator while the testamentary power
involves a privilege under the law. Hence, although a
person may have testamentary capacity, it does not
necessarily follow that he has testamentary power.
In the Philippines, such distinction is lost altogether.
The term testamentary power is sometimes understood
to refer to the power of the testator to designate the
person or persons who are to succeed him in his property
and transmissible rights and obligations.
Requisites of Testamentary Capacity
1. All persons not expressly prohibited by law (NCC, Art.
796)
2. At least 18 years of age; (NCC, Art. 797) and
3. Of sound mind (NCC, Art. 798)
NOTE: The ability as well as the power to make a
will must be present at the time of the execution of
the will.
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.
To be of sound mind, it shall be sufficient if the
testator was able at the time of making the will to
know the:
a. nature of the estate to be disposed of;
b. proper objects of his bounty; and
c. character of the testamentary act (NCC, Art.
799)
The requirement that the testator be of sound mind
is essential only at the time of the making of the will
(or execution).
If he is not of sound mind at that time, the will is
invalid regardless of the state of mind before or after
such execution.

PLACE OF APPLICABLE LAW(as to NOTE: If the testator was of sound mind at the time
BASIS of the making of the will, the will is valid even if the
EXECUTION form)
testator should later on become insane and die in
Philippines NCC that condition. Supervening incapacity does not
Testator invalidate an effective will, nor is the will of an
is a 1. Law of the place of incapable validated by the supervening capacity
Foreign (NCC, Art. 801).
Filipino execution
country
2. NCC
GR: The law presumes that every person is of sound
1. NCC; or mind, in the absence of proof to the contrary (NCC,
Philippines
2. National law Art. 800, par. 1).
Testator 1. National law; XPNs: If the testator was:
is an alien Foreign 2. Law of the place of 1. Publicly known to be insane, one month or
country residence; less, before making his will; (NCC, Art. 800,
3. NCC par. 2)
2. Under guardianship at the time of the
TESTAMENTARY CAPACITY AND INTENT making of the will (Torres v. Lopez, G.R. No.
L-25966, November 1, 1926).
Testamentary capacity refers to the ability as well as the
power to make a will (2008 BAR).

417
 Civil Law
NOTE: Mere weakness of mind or partial imbecility
from disease of body or from age does not
necessarily render a person incapable of making a
will.
A person suffering from civil interdiction is qualified
to make a will. He is deprived of the power to dispose of
his properties through acts inter vivos but not through
acts mortis causa (RPC, Art. 34).
The burden of proving that the testator acted in lucid
interval lies on the person who maintains the validity of
the will (NCC, Art. 800, par. 2).
Married woman
A married woman may make a will without the consent of
her husband, and without the authority of the court (NCC,
Art 802).
A married woman may dispose by will all her separate
property as well as her share of the conjugal partnership
or absolute community property (NCC, Art 803).
FORMAL VALIDITY OF WILLS
Kinds of Wills allowed under the NCC:
(1) Ordinary or Notarial will - requires an attestation
clause, an acknowledgement before a notary public;
(2) Holographic will - must be entirely written, dated
and signed in the handwriting of the testator.
It is the law of the country where the will was executed
that governs the form and solemnities of wills [NCC, Art.
17(1)]. When a Filipino is in a foreign country, he is
authorized to make a will in any of the forms established
by the law of the country in which he may be. Such will
may be probated in the Philippines (NCC, Art. 815)
Time criterion - law at the time of execution; subsequent
laws cannot apply retroactively.
Place criterion - Under Art 815-817 of NCC, five (5)
choices are available to the testator; the law of:
1. The testator's citizenship
2. Testator's domicile
3. Place of execution
4. Testator's residence
5. Philippines (Balane, 1996)
The will of an alien who is abroad produces effect in the
Philippines if:
a. made with the formalities prescribed by the law of
the place in which he resides, or
b. b. according to the formalities observed in his
country, or
c. in conformity with those which the Civil Code
prescribes (NCC, Art. 816). (1990, 1998, 2009
BAR)
A will made in the Philippines by a citizen or subject of
another country, which is executed in accordance with
the law of the country of which he is a citizen or subject,
and which might be proved and allowed by the law of his
418
own country, shall have the same effect as if executed
according to the laws of the Philippines (NCC, Art. 817).
(2002 BAR)
A joint will executed by Filipinos in a foreign country
shall not be valid in the Philippines, even though
authorized by the laws of the country where they may
have been executed (NCC, Art. 819). A joint will is against
the public policy of the Philippines.
GOVERNING LAW AS TO SUBSTANTIVE VALIDITY
Laws relating to family rights and duties, or to the status,
condition and legal capacity of persons are binding upon
citizens of the Philippines even though living abroad (NCC,
Art. 15).
Matters pertaining to intestate and testamentary
successions which are regulated by the national law
of the deceased:
1. Order of succession
2. Amount of successional rights
3. Intrinsic validity of testamentary provisions
4. Capacity to succeed (NCC, Art. 16; NCC, Art. 1039).
Formal requirements common to both Notarial and
Holographic wills (2008 BAR)
3. Law governing extrinsic validity of wills;
4. In writing;
Noncupative wills are oral wills declared or dictated
by the testator and dependent merely on oral
testimony. Philippine laws do not recognize the
validity of “noncupative wills.”
5. In a language or dialect known to the testator.
The object of the solemnities surrounding the
execution of a will:
1. to close the door against bad faith and fraud,
2. to avoid substitution of wills and testaments and
3. to guarantee their truth and authenticity.
NOTARIAL WILLS (1994, 2007, 2008 BAR)
Formalities in the Execution of a Notarial Will (LaW-
SPA2N2)
1. In Writing;
Executed in a language or dialect known to the
testator;
This rule is mandatory. Otherwise, the will is void
(Suroza v. Honrado, Adm. Matter No. 2026-CFI,
December 19, 1981). It is also applicable even if the
provisions of the will are interpreted or explained to
the testator.
The fact that the will was executed in a language
known to the testator NEED NOT be stated in the
attestation clause. This fact can be established by
 Succession
extrinsic evidence or evidence aliunde (Lopez v.
Liboro, G.R. No. L-1787, August 27, 1948).
This rule does NOT apply to witnesses in a notarial or
attested will because the witnesses do not need to
know the contents of the will. The attestation clause,
on the other hand, must be understood by the
witnesses even if it is in a language not known to
them. (Art. 805 of NCC states that the attestation
clause need not be in a language known to the
witnesses).
Presumption that the testator knew the language
in which the will was written is present when:
a. the will must be in a language or dialect
generally spoken in the place of execution
b. the testator must be a native or resident of said
locality (Abangan v. Abangan, G.R. No. 13431,
Nov. 12, 1919).
3. Subscribed at the end thereof by the testator himself or
by the testator’s name written by some other person in
his presence, and by his express direction;
The signature of the testator of the will must be at the
end of the will, which may be at the logical end (last
testamentary disposition) or physical end (non
dispositive provisions).
NOTE: In notarial wills, subscription by fingerprint is
allowed as long as it is voluntarily made (Matias v.
Salud, G.R. No. L-10751) but not in holographic wills
given the explicit requirement for a holographic will
to be entirely written, dated and signed with the
handwriting of the testator.
Cross as signature
GR: A cross is not a sufficient signature
XPNs: The cross appearing on the will is:
a. the customary, habitual signature of the testator
or
b. one of the ways the testator signs his signature.
The one who alleges that it is the customary, habitual
or one of the ways he sign his signature has the
burden of proof (Garcia v. Lacuesta, G.R. No. L-4067,
November 29, 1951).
Signing by an Agent of the testator
a. must sign in testator’s presence, and
b. by the testator’s express direction
The important thing is that it should clearly appear
that the name of the testator was signed at his
express direction, in the presence of three witnesses,
and in the presence of the testator and of each other
(Barut v. Cabacungan, G.R. No. 6285, February 15,
1912).
419
4. Attested and subscribed by three or more credible
witnesses in the presence of the testator and of one
another;
Two Requirements:
a. Attesting – an act of witnessing
b. Subscribing–an act of signing their names in the
proper places of the will
Test for the Determination of the Presence of
Witnesses
The true test of presence of the testator and the
witnesses in the execution of a will is not whether
they actually saw each other sign, but whether they
might have seen each other sign had they chosen to
do so considering their mental and physical
condition and position with relation to each other at
the moment of inscription of each signature.
The question whether the testator and the
subscribing witnesses to an alleged will sign the
instrument in the presence of each other does not
depend upon proof of the fact that their eyes were
actually cast upon the paper at the moment of its
subscription by each of them, but whether at that
moment existing conditions and the position of the
parties, with relation to each other, were such that by
merely casting their eyes in the proper direction they
could have seen each other sign (Nera v. Rimando,
G.R. No. L-5971, February 27, 1911).
Actual seeing is not required, but the ability to see
each other by merely casting their eyes in the proper
direction and without any physical obstruction to
prevent his doing so (Jaboneta v. Gustilo, G.R. No.
1641, January 19, 1906).
An attestation must state all the details the third
paragraph of Article 805 of NCC requires. In the
absence of the required avowal by the witnesses
themselves, no attestation clause can be deemed
embodied in the Acknowledgement of the Deed of
Donation Mortis Causa (Echavez v. Dozen Cons, G.R.
No. 192916, October 11, 2010).
The law is clear that the attestation must state the
number of pages used upon which the will is written.
The purpose of the law is to safeguard against
possible interpolation or omission of one or some of
its pages and prevent any increase or decrease in the
pages (Lopez v. Lopez, G.R. No. 189984, November 12,
2012).
---
Q: Clara, thinking of her mortality, drafted a will
and asked Roberta, Hannah, Luisa and Benjamin
to be witnesses. During the day of the signing of
the will, Clara fell down the stairs and broke both
her arms. Coming from the hospital, Clara,
insisted on signing her will by thumbmark. Later
Clara was run over by a drunk driver while
crossing the street in Greenbelt. May the will of
Clara be admitted to probate? Give your reason
briefly. (2007 BAR)
 Civil Law
A: YES. Clara’s thumbmark in this case has all the
hallmarks of a valid signature. Clara clearly intended
to use her thumbmark as her signature and the
circumstances justified her use of her thumbmark
(Garcia v. La Cuesta, G.R. No. L-4067, November 29,
1951).
---
5. The testator or the person requested by him to write
his name must also sign every page, except the last, on
the left margin in the presence of the witnesses;
PURPOSE: to prevent the disappearance of the
pages.
a. Mandatory – the signing on every page in the
witnesses’ presence
b. Directory – the place of the signing (on the left
margin). The signature can be affixed anywhere
on the page (Balane, 2010).
If the entire document consists only of two sheets,
the first containing the will and the second, the
attestation clause, there need not be any marginal
signatures at all (Abangan v. Abangan, G.R. No. 13431,
November 12, 1919).
A will was declared void which contained the
necessary signatures on the margin of each leaf
(folio), but not in the margin of each page
containing written matter (In the Matter of the
Estate of Saguinsin. In the Matter of the Estate of
Saguinsin., G.R. No. L-15025, March 15, 1920).
8.
The signatures on the left-hand corner of every
page signify, among others, that the witnesses are
aware that the page they are signing forms part of the
will. On the other hand, the signatures to the
attestation clause establish that the witnesses are
referring to the statements contained in the
attestation clause itself (Azuela v. CA, G.R. No. 122880,
April 12, 2006).
6. All the pages shall be Numbered correlatively in letters
on the upper part of each page;
a. Mandatory – pagination by means of a
conventional system purpose of which is to
prevent insertion or removal of pages.
b. Directory – pagination in letters on the upper
part of each page (Balane, 2010).
7. Must contain an Attestation clause which expressly
states the following:
a. The number of pages used upon which the will is
written;
b. The fact that the testator signed the will and
every page thereof, or caused some other person
to write his name, under his express direction, in
the presence of the instrumental witnesses;
c. The fact that the witnesses witnessed and signed
the will and all the pages thereof in the presence
of the testator and of one another (NCC, Art. 805,
par. 3).
The signature of the witnesses must be at the bottom
of the attestation clause. An unsigned attestation
420
clause cannot be considered as an act of the
witnesses, since the omission of their signatures at
the bottom thereof negatives their participation
(Cagro v. Cagro, G.R. No. L-5826, April 29, 1953).
Inasmuch as the signatures of the three witnesses to
the will do not appear at the bottom of the
attestation clause, although the page containing the
same is signed by the witnesses on the left hand
margin, the will is fatally defective. The attestation
clause is "a memorandum of the facts attending the
execution of the will" required by law to be made by
the attesting witnesses, and it must necessarily bear
their signatures.
The petitioner and appellee contends that signatures
of the three witnesses on the left hand margin
conform substantially to the law and may be deemed
as their signatures to the attestation clause. This is
untenable, because said signatures are in compliance
with the legal mandate that the will be signed on the
left hand margin of all its pages. If an attestation
clause not signed by the three witnesses at the
bottom thereof, be admitted as sufficient, it
would be easy to add such clause to a will on a
subsequent occasion and in the absence of the
testator and any or all of the witnesses (Cargo vs.
Cargo, et al., GR. No. L-5826 April 29, 1953).
NOTE: An attested will need not be dated, but a
holographic will must be dated (NCC, Art. 810).
Must be acknowledged before a Notary public by the
testator and the witnesses (NCC, Art. 806). (2008
BAR)
The certification of acknowledgement need not be
signed by the notary public in the presence of the
testator and the witnesses (Javellana v. Ledesma, G.R.
No. L-7179, June 30, 1955).
A jurat is insufficient as the law requires an
acknowledgment executed by the party before a
notary public, not a declaration of the notary public.
The notary public before whom the will was
acknowledged cannot be considered as the third
instrumental witness since he cannot acknowledge
before himself having signed the will. He cannot split
his personality into two so that one will appear
before the other to acknowledge his participation in
the making of the will. To permit such a situation to
obtain would be sanctioning a sheer absurdity (Cruz
v. Villasor, G.R. No. L-32213, November 26, 1973).
An acknowledgment is the act of one who has
executed a deed in going before some competent
officer or court and declaring it to be his act or deed.
It involves an extra step undertaken whereby the
signatory actually declares to the notary public that
the same is his or her own free act and deed. The
acknowledgment in a notarial will has a two-fold
purpose: (1) to safeguard the testator’s wishes long
after his demise and (2) to assure that his estate is
administered in the manner that he intends it to be
 Succession
done (Lee v. Tambago, A.C. No. 5281, 12 February
2008).
The issue in this case is whether or not the will
“acknowledged” by the testatrix and the
instrumental witnesses before a notary public acting
outside the place of his commission satisfies the
requirement under Article 806 of the NCC. Outside
the place of his commission, he is bereft of power to
perform any notarial act; he is not notary public. Any
notarial act outside the limits of his jurisdiction has
no force and effect (Guerrero v. Bihis, G.R. No. 174144,
April 17, 2007).
The absence of the documentary stamp does not affect the
validity of the will. It merely prevent it from being
presented as evidence (Gabucan v. Manta, G.R. No. L-
51546, January 28, 1980).
SPECIAL RULES FOR HANDICAPPED TESTATORS
Rules if the Testator is Deaf or Mute
i. If the testator is able to read, he must personally read
the will; or
j. If the testator is unable to read, he must designate
two persons to read it and communicate to him, in
some practicable manner, the contents thereof (NCC,
Art. 807).
Rules if the testator is blind
The will shall be read to him twice, once by one of the
subscribing witnesses, and another time by the notary
public before whom the will is acknowledged (NCC, Art.
808). (2008 BAR)
Purpose: The reading is mandatory for the purpose of
making known to the testator the provision of the will so
that he may object if it is not in accordance with his
wishes.
Art. 808 of the NCC applies not only to blind testators but
also to those who, for one reason or another, are incapable
of reading their wills, either because of poor or defective
eye sight or because of illiteracy.
SUBSTANTIAL COMPLIANCE
A will is not rendered invalid by reason of defects or
imperfections in the form of attestation or in the
language used therein. In the absence of bad faith,
forgery, or fraud, or undue and improper pressure and
influence, defects and imperfections in the form of
attestation or in the language used therein shall not
render the will invalid if it is proved that the will was in
fact executed and attested in substantial compliance with
all the requirements of Article 805 (NCC, Art 809).
In cases of omissions in the will, if it can be supplied by an
examination of the will itself, without the need of
resorting to extrinsic evidence. It will not be fatal and,
correspondingly, would not obstruct the allowance to
probate of the will being assailed.
421
However, evidence aliunde are not allowed to fill a void in
any part of the document or supply missing details that
should appear in the will itself. Those omissions which
cannot be supplied except by evidence aliunde would
result in the invalidation of the will itself (Cañeda v. CA,
G.R. No. 103554, May 28, 1993).
WITNESSES
Qualifications of witnesses (S18-ABCD) (2008 BAR)
1. Of Sound mind.
2. At least 18 years of age.
3. Able to read and write
4. Not Blind, deaf or dumb
NOTE: While a blind or deaf may not be a witness, he
could be a testator in a notarial will
5. Not have been Convicted by final judgment of
falsification of a document, perjury or false
testimony.
6. Domiciled in the Philippines – his habitual residence
must be in the Philippines (NCC, Art. 50).
Determination of qualifications of witnesses
The presence of the qualifications of witnesses is
determined at the time of the attestation of the will. If the
witnesses attesting the execution of a will are competent
at the time of attesting, their becoming subsequently
incompetent shall not prevent the allowance of the will.
Instrumental witness as beneficiary in a will
The fact that a person acts as a witness to a will does not
disqualify him to be a beneficiary. However, it renders
void any legacy or device given under said will to such
person or to his spouse, or parent or child, unless there
are three other competent witnesses to the will (NCC,
Art 823) (2010 BAR). Such person so attesting shall be
admitted as a witness as if such devise or legacy had not
been made or given.
---
Q: Stevie was born blind. He went to school for the
blind, and learned to read in Braille language. He
speaks English fluently. Can he:
a. Make a will?
b. Act as a witness to a will?
c. In either of the instances, must the will be read to
him? (2008 BAR)
A:
a. YES. Stevie may make a notarial will. A blind man is
not expressly prohibited from executing a will. In
fact, Art. 808 of NCC provides for an additional
formality when the testator is blind. Stevie however,
may not make a holographic will in Braille because
the writing in Braille is not handwriting. A
holographic will to be valid must be entirely written,
signed and dated by the testator in his own
handwriting.
b. NO. A blind man is disqualified by law to be a witness
to a notarial will.
 Civil Law
c. In case Stevie executes a notarial will, it has to be
read to him twice. First by one of the instrumental
witnesses and second by the notary public before
whom the will was acknowledged (NCC, Art. 808).
---
The person signing the testator’s name must NOT be one
of the 3 instrumental witnesses because he must sign in
the presence of the testator and of three other
instrumental witnesses.
substituting the original heir with another, and the
same did not carry the requisite full signature of the
testator, the entirety of the will is voided or revoked.
Reason: What was cancelled here was the very
essence of the will; it amounted to the revocation of
the will. Therefore, neither the altered text nor the
original unaltered text can be given effect (Kalaw v.
Relova, G.R. No. L-40207, Sept. 28, 1984).

It is an established rule that “a testament may not be
disallowed just because the attesting witness declare
against its due execution; neither does it have to be
necessarily allowed just because all the attesting witness
declare in favor of its legalisation; what is decisive is that
the court is convinced by evidence before it, not
necessarily from the attesting witnesses, although they
must testify, that the will was or was not duly executed in
the manner required by law” (Baltazar v. Laxa, G.R. No.
174489, April 11, 2012).
This Court has held in a number of occasions that
substantial compliance is acceptable where the purpose
of the law has been satisfied, the reason being that the
solemnities surrounding the execution of a will are
intended to protect the testator from all kinds of fraud and
trickery but are never intended to be so rigid and
inflexible as to destroy the testamentary privilege
(Alvarado v. Gaviola, Jr., G.R. No. 74695, September 14,
1993).
HOLOGRAPHIC WILLS
Thus, unless the unauthenticated alterations,
cancellations, or insertions were made on the date of
the holographic will or on testator’s signature, their
presence does not invalidate the will itself. The lack
of authentication will only result in disallowance of
such changes (Ajero v. CA, G.R. No. 106720, September
15, 1994).
b. Where the alteration affects the date of the will
or the signature of the testator, the whole will is
void.
c. If the words written by a 3rd person were
contemporaneous with the execution of the will,
even though authenticated by the testator, the
entire will is void for violation of the requisite
that the holographic will must be entirely in the
testator’s handwriting.
2. Dated
GR: The "date" in a holographic will should include
the day, month, and year of its execution.

A holographic will is one entirely written, dated, and
signed by the hand of the testator himself. It is subject to
no other form, and may be made in or out of the
Philippines, and need not be witnessed (NCC, Art. 810)
Formalities Required in the Execution of Holographic
Wills: (EDS)
1. Entirely handwritten by the testator
XPN: When there is no appearance of fraud, bad faith,
undue influence and pressure and the authenticity of
the will is established and the only issue is whether
or not the date appearing eg. “FEB. ‘61” on the
holographic will is a valid compliance with Art. 810
of NCC, probate of the holographic will should be
allowed under the principle of substantial
compliance (Roxas v. De Jesus, G.R. No. L-38338,
January 28, 1985).

An illiterate cannot make a holographic will because it
is required to be in writing by the testator. However, he
can make an ordinary or notarial will because the law
allows a notarial will to be written by someone else and
in certain cases, for the will to be read by someone else
not the testator.
3.
Effects of Insertions or Interpolations
GR: When a number of erasures, corrections,
cancellation, or insertions are made by the testator in
the will but the same have not been noted or
authenticated with his full signature, only the particular
words erased, corrected, altered will be invalidated, not
the entirety of the will.
XPNs:
a. Where the change affects the essence of the will
of the testator;
NOTE: When the holographic will had only one
substantial provision, which was altered by
The law does not specify a particular location where
the date should be placed in the will. The only
requirements are the date be in the will itself and
executed in the hand of the testator (Labrador v. CA,
G.R. Nos. 83843-44, April 5, 1990).
Signed by the hand of the testator himself
In a holographic will, the signature must be at the end
of the will. This can be inferred from Art. 812 of the
NCC by the reference to dispositions “written below
his signature.” This phrase implies that the signature
is at the end of the will, and any disposition below it
must further be signed and dated.
In a holographic will, the dispositions of the testator
written below his signature must be dated and
signed by him in order to make them valid as
testamentary dispositions (NCC, Art. 812). If one
disposition below the signature of the testator is not
dated, even if signed, that particular disposition is

422
 Succession
void, without affecting the validity of the others or of
the will itself.
When a number of dispositions appearing in a
holographic will are signed without being dated, and
the last disposition has a signature and a date, such
date validates the dispositions preceding it,
whatever be the time of prior dispositions (NCC, Art.
813).
NOTE: It is not required that the will be executed on
a single day, at one time and in the same ink. The
unity of the act is not required in holographic wills.
Rules for the Probate of Holographic Wills
In the post mortem probate of holographic wills, the
following rules are to be observed as to the number of
witnesses to be presented:
a. If the will is not contested, it shall be necessary that
at least one witness who knows the handwriting and
signature of the testator explicitly declares that the
will and the signature are in the handwriting of the
testator.
b. If the will is contested, at least three of such
witnesses shall be required to explicitly declare that
the signature in the will is the genuine signature of
the testator.
c. In the absence of any competent witness and if the
court deems it necessary, expert testimony may be
resorted to (NCC, Art. 811).
Presentation of the will is necessary
The contents and due execution of a lost holographic
will CANNOT be established merely through oral
testimonies of witness who allegedly seen the same. It
may not be proved by the bare testimony of witnesses
who have seen or read such will. The will itself must be
presented; otherwise, it shall produce no effect (Gan v.
Yap, G.R. No. L-12190, August 30, 1958).
By its very nature, a holographic will can only be proven
authentic by establishing that the handwriting in which it
is written belongs to the testator himself and this can only
be done through an examination of the will.
A holographic will which was lost or could not be
found can be proved by means of a photostatic copy
(photocopy).
A photostatic copy or xerox copy of the holographic will
may be allowed because comparison can be made with
the standard writings of the testator (Rodelas v. Aranza,
G.R. No. L-58509, December 7, 1982).
REQUIREMENTS IN CASE OF ALTERATIONS
In case of insertion, cancellation, erasure or alteration in
a holographic will, the testator must authenticate the
same by his full signature (NCC, Art. 814).
Full signature refers to the testator’s habitual, usual and
customary signature.
423
GR: If not authenticated with the testator’s full
signature, it is considered as not made, but the will is not
invalidated. It does not affect the validity of the will itself.
The will is not thereby invalidated as a whole, but at most
only as regards the particular words erased, corrected or
inserted (Kalaw v. Relova, G.R. No. L-40207, September 28,
1984citing Velasco v. Lopez, G.R. No. 905, February 12,
1903).
XPN: Unless the portion involved is an essential part of
the will, such as the date.
Crossing-out of name of heir
Where the testator himself crossed out the name of the
original heir, and substituted the name of another,
without proper authentication, it was held that this did
not result in making the person whose name was crossed
as heir. The cancellation should not have also been given
effect. The Supreme Court, however, ruled that neither the
original heir nor the substituted heir can receive the
estate on the ground that it could not ignore what
appeared to be a change of heart on the part of the
testator. One way to justify the ruling of the Supreme
Court is to consider the cancellation as tantamount to a
revocation of the will. It amounts to a revocation even
though the cancellation only pertained to the name of the
original heir because without the said name, there
remains no other disposition in the will (Kalaw v. Relova,
G.R. No. L-40207, Sept. 28, 1984).
JOINT WILLS (2000, 2008 BAR)
Joint wills are NOT allowed in the Philippines.
Two or more persons cannot make a will jointly, or in the
same instrument, either for their reciprocal benefit or for
the benefit of a third person (NCC, Art. 818).
Wills, prohibited by Art. 818 of the NCC, executed by
Filipinos in a foreign country shall not be valid in the
Philippines, even though authorized by the laws of the
country where they may have been executed (NCC, Art.
819) (2000 BAR).
Reason: Whether in the Philippines or in foreign country,
Filipino citizens are prohibited from executing joint wills
because it is a matter against public policy. There is
danger of undue influence and of one testator killing the
other (Dacanay v. Florendo 87 Phil 324).
NOTE: Mutual wills – Separate wills although containing
reciprocal provisions are not prohibited, subject to the
rule on disposition captatoria.
What the law expressly prohibits is the making of joint
wills either for the testator’s reciprocal benefit or for the
benefit of a third person (NCC, Art. 818). In the case at
bench, the Cunanan spouses executed separate wills.
Since the two wills contain essentially the same
provisions and pertain to properties which in all
probability are conjugal in nature, practical
considerations dictate their joint probate (Vda. de Perez v.
Tolete, G.R. No. 76714, June 2, 1994).
---
 Civil Law
Q: John and Paula, British citizens at birth, acquired executed in accordance with the law of the place
Philippine citizenship by naturalization after their where they reside, or the law of the country of which
marriage. During their marriage the couple acquired they are citizens or even in accordance with the Civil
substantial landholdings in London and in Makati. Code, a will executed by an alien is considered valid
Paula bore John three children, Peter, Paul and Mary. in the Philippines (NCC, Art. 816).
In one of their trips to London, the couple executed a
joint will appointing each other as their heirs and b) YES, the joint will of Alden and Stela can take effect
providing that upon the death of the survivor even with respect to the properties located in the
between them the entire estate would go to Peter and Philippines because what governs the distribution of
Paul only but the two could not dispose of nor divide their estate is no longer Philippine law but their
the London estate as long as they live. John and Paula national law at the time of their demise. Hence, the
died tragically in the London Subway terrorist attack joint will produces legal effect even with respect to
in 2005. Peter and Paul filed a petition for probate of the properties situated in the Philippines.
their parents’ will before a Makati Regional Trial
Court. c) NO, because depecage is a process of applying rules
a. Should the will be admitted to probate? of different states on the basis of the precise issue
b. Are the testamentary dispositions valid? involved. It is a conflict of laws where different
c. Is the testamentary prohibition against the issues within a case may be governed by the laws of
division of the London estate valid? (2008 BAR) different states. In this case, no conflict of laws will
A: arise because Alden and Stela are no longer Filipino
a. NO, the will cannot be admitted to probate. Joint wills citizens at the time of the execution of their joint will
are void under the Art. 818 of NCC. Even if the joint and the place of execution is not the Philippines.
will executed by Filipinos abroad were valid where it ---
was executed, the joint will is still not valid in the CODICILS
Philippines. executed (NCC, Art. 819).
b. If a will is void, all testamentary dispositions A codicil is a supplement or addition to a will, made after
contained therein are also void. Hence, all the execution of a will and annexed to be taken as part
testamentary provisions contained in the void joint thereof, by which any disposition made in the original will
will are also void. is explained, added to, or altered (NCC, Art. 825).
c. NO, the testamentary prohibition against the
division by Peter and Paul of the London estate for as The formalities which are required in the execution of the
long as they live, is not valid. Art. 494 of NCC provides codicil are the same as those required in the execution of
that a donor or testator may prohibit partition for a the will.
period which shall not exceed twenty (20) years.
--- CODICIL SUBSEQUENT WILL
Q: Alden and Stela were both former Filipino citizens.
They were married in the Philippines but they later
Forms a part of the It is a new or a separate
migrated to the United States where they were
original will. will.
naturalized as American citizens. In their union they
were able to accumulate several real properties both
in the US and in the Philippines. Unfortunately, they Supplements the original Makes dispositions without
were not blessed with children. In the US, they will, explaining, adding reference to and
executed a joint will instituting as their common heirs to, or altering any of its independent of the original
to divide their combined estate in equal shares, the dispositions. will.
five siblingsof Alden and the seven siblings of Stela.
If it provides for a full
Alden passed away in 2013 and a year later, Stela also
disposition of the testator’s
died. The siblings of Alden who were all citizens of the Does not, as a rule,
estate, may revoke the
US instituted probate proceedings in a US court revoke entirely the prior
whole prior will by
impleading the siblings of Stela who were all in the will.
substituting a new and last
Philippines.
disposition for the same.
a. Was the joint will executed by Alden and Stela
who were both former Filipinos valid? Explain
A prior will and a
with legal basis. A will and a codicil, being
subsequent will, being two
b. Can the joint will produce legal effect in the regarded as a single
separate wills, may be
Philippines with respect to the properties and of instrument are to be
construed independently of
Alden Stela found here? If so, how? construed together.
each other.
c. Is the situation presented an example of
depecage? (2015 BAR)
If the former will is a notarial will, it is not required that
A: the codicil be notarial in form as well. The law only
a) YES, the joint will of Alden and Stela is considered requires that a codicil be in the form of a will. It does not
valid. Being no longer Filipino citizens at the time require that it be of the same kind as the will it is
they executed their joint will, the prohibition under supplementing.
our Civil Code on joint wills will no longer apply to
Alden and Stela. For as long as their will was INCORPORATION BY REFERENCE

424
 Succession
Incorporation by reference is the incorporation of an
extrinsic document or paper into a will by reference so as
to become a part thereof.
Requisites of Incorporation by Reference (EDIS)
1. The document or paper referred to in the will must
be in Existence at the time of the execution of the will;
2. The will must clearly Describe and identify the same,
stating among other things the number of pages
thereof;
3. It must be Identified by clear and satisfactory proof
as the document or paper referred to therein; and
4. It must be Signed by the testator and the witnesses
on each and every page, except in case of voluminous
books of account or inventories.
(NCC, Art. 827)
The documents or papers incorporated in a will be
considered part of the will even though the same are not
executed in the form of a will. The doctrine of
incorporation by reference is not applicable in a
holographic will unless, of course, the testator executes a
holographic will and, superfluously, had it witnessed
(Balane, 2010).
REVOCATION OF WILLS (1997, 2003 BAR)
A will may be revoked by the testator at any time before
his death. Any waiver or restriction of this right is void
(NCC, Art. 828).
The testator’s right to revoke during his lifetime is
absolute because a will is ambulatory. It can neither be
waived nor restricted. As a matter of fact, even if the will
has already been admitted to probate during the
testator’s lifetime, it may still be revoked. This necessarily
follows from the principle that “a testament is of force
after men are dead; otherwise it is of no strength at all
while the testator lives.”
Governing Law in case of Revocation
1. If the revocation takes place in the Philippines,
whether the testator is domiciled in the Philippines
or in some other country – Philippine laws
2. If the revocation takes place outside the Philippines:
a. by a testator who is domiciled in the Philippines –
Philippine laws
b. by a testator who is not domiciled in this country:
i. Laws of the place where the will was made, or
ii. Laws of the place in which the testator had his
domicile at the time of revocation (NCC, Art.
829).
Revocation based on a false or illegal cause is null and
void.
Requisites:
6. The cause must be concrete, factual and not purely
subjective.
7. It must be false.
8. The testator must not know of its falsity.
425
9. It must appear from the will that the testator is
revoking because of the cause which is false.
If the revocation is based on a false or illegal cause, it is
null and void (NCC, Art. 833).
Institution of heir based on false cause as a general rule
does not affect the validity or efficacy of the institution
and shall be considered as not written, unless it appears
from the will that the testator would not have made such
institution if he had known the falsity of such cause (NCC,
Art. 850).
Modes of Revoking a Will
1. By implication of law;
2. By some will, codicil, or other writing executed as
provided in case of wills; or
3. By physical destruction through burning, cancelation
or obliteration (NCC, Art. 830).
Revocation by Implication of law
It takes place when certain acts or events take place
subsequent to the making of a will, which nullify or render
inoperative either the will itself or some testamentary
disposition therein.
Instances when revocation by implication of law
takes place
1. Upon the termination of the subsequent marriage in
Article 41 of the FC through the filing of the affidavit
of reappearance, the spouse who contracted the
marriage in bad faith shall be disqualified to inherit
from the innocent spouse by testate and intestate
succession. Hence, any testamentary disposition in
the will of the innocent spouse in favor of the guilty
spouse shall be revoked by implication of law (FC,
Art. 43, par. 5).
2. If both spouses of the subsequent marriage referred
in Art. 41 of the FC acted in bad faith, testamentary
dispositions by one in favor of the other are revoked
by operation of law (FC, Art. 44).
3. In case of annulment, the spouse who contracted the
marriage in bad faith shall be disqualified to inherit
from the innocent spouse by testate and intestate
succession. Hence, any disposition in the will of the
innocent spouse in favor of the guilty spouse shall be
revoked by operation of law [FC, Art. 50 in relation to
Art. 43(5)].
4. Upon issuance of the decree of legal separation,
provisions in favor of the offending spouse made in
the will of the innocent spouse shall be revoked by
operation of law [FC, Art. 63 (4)].
5. In case of preterition of 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. In
such case, the preterition shall annul the institution
of heir; but the devises and legacies shall be valid
insofar as they are not inofficious (NCC, Art. 854).
6. When the heir, devisee or legatee commits any of the
acts of unworthiness which by express provision of
law will incapacitate him to succeed. In such case, any
 Civil Law
testamentary disposition in favor of such heir,
devisee or legatee is revoked (NCC, Art. 1032).
7. When in the testator’s will there is a legacy of a credit
against a third person or of the remission of a debt of
the legatee, and subsequently, after the execution of
the will, the testator brings an action against the
debtor for the payment of his debt. In such case, the
legacy is revoked (NCC, Art. 935 and 936).
8. When the testator (a) transforms the thing
bequeathed in such a manner that it does not retain
either the form or denomination it had, or (b) when
he alienates by any title or for any cause the thing
bequeathed or any part thereof, or (c) when the thing
bequeathed is totally lost during the testator’s
lifetime or after his death without the heir’s fault. In
such cases, the legacy is revoked (NCC, Art. 957;
Rabuya, 2009).
Requisites of Revocation by Subsequent will or codicil
1. The subsequent instrument must comply with the
formal requirements of a will;
2. The testator must possess testamentary capacity;
3. The subsequent instrument must either contain a
revocatory clause or be incompatible with the prior
will (totally or partially); and
4. The revoking will must be admitted to probate.
Ways of Making a Revocation by a Subsequent Will
1. Express - by providing for a revocatory clause;
2. Implied - provisions are completely inconsistent with
previous will.
The will containing the revocatory clause must itself be
valid, and admitted to probate, otherwise, there is no
revocation.
Principle of Instanter
1. The express revocation of the 1st will renders it void
because the revocatory clause of the 2nd will, not being
testamentary in character, operates to revoke the 1st will
instantly upon the execution of the will containing it.
2. In implied revocation, the first will is not instantly
revoked by the second will because the inconsistent
testamentary dispositions of the latter do not take effect
immediately but only after the death of the testator.
The fact that the subsequent will is posterior and
incompatible with the first does not mean that the first is
entirely revoked because the revocation may be total or
partial. Therefore it is possible for a prior will to subsist
with a subsequent will even if they are incompatible.
NOTE: In case of inconsistent wills, the subsequent will
prevails over the prior will because it is the latest
expression of testamentary intent of the testator.
A revocation made in a subsequent will shall take effect
even if the new will should become inoperative by reason
of the incapacity of the heirs, devisees or legatees
designated therein, or by their renunciation (NCC, Art.
832).
426
Ways of Revocation by Physically Destroying a Will
(BTCO)
1. Burning
2. Tearing
3. Cancelling
4. Obliterating
Requisites of Revocation by Physical Act of
Destruction (OTAP)
1. Overt act of physical destruction;
2. Testamentary capacity of the testator at the time of
performing the act of revocation;
3. Animus Revocandi - intention to revoke;
4. Performed by testator himself or other person in the
presence and express direction of the testator.
NOTE: It is not necessary that the will be totally
destroyed. It is sufficient if on the face of the will, there is
shown some sign of the physical act of destruction.
(Maloto v. CA, G.R. No. 76464, February 29, 1988).
Revocation by physical destruction must be coupled
with animus revocandi.
The physical act of destruction of a will, like burning, does
not per se constitute an effective revocation, unless the
destruction is coupled with animus revocandi on the part
of the testator (Maloto v. CA, G.R. No. 76464, February 29,
1988).
The physical destruction NEED NOT be done by the
testator himself.
It may be performed by another person under his express
direction and in his presence. If the destruction done by a
person other than the testator is made not in his presence
or not upon his express direction, there is no revocation.
---
Q: In 1919, Miguel executed a will. In the post mortem
probate, there was a testimony to the effect that the
will was in the testator’s possession in 1919, but it can
no longer be found. Is the will revoked?
A: YES, the Doctrine of Presumed Revocation applies.
Where a will which cannot be found, is shown to have
been in the possession of the testator when last seen, the
presumption is, in the absence of other competent
evidence, that the same was cancelled or destroyed. The
same presumption arises where it is shown that the
testator had ready access to the will and it cannot be
found after his death (Gago v. Mamuyac G.R. No. 26317,
January 29, 1927).
---
NOTE: The presumption is not conclusive and anyone
may prove the contrary to rebut the presumption.
Doctrine of Dependent Relative Revocation
Where the testator’s act of destruction is connected with
the making of another will, so as fairly to raise the
inference that the testator meant the revocation of the old
to depend upon the efficacy of the new disposition, the
revocation will be conditional and dependent upon the
 Succession
efficacy of the new disposition; and if, for any reason, the
new will intended to be made as a substitute is
inoperative, the revocation fails and the original will
remains in full force.
But a mere intent to make at some time a will in place of
that which is destroyed will not render the destruction
conditional. It must appear that the revocation is
dependent upon the valid execution of a new will.
The theory on which this principle is predicated is that the
testator did not intend to die intestate. And this intention
is clearly manifest when he executed two wills on two
different occasions and instituted his wife as his universal
heir. There can therefore be no mistake as to his intention
of dying testate (Molo v. Molo, G.R. No. L-2538, September
21, 1951).
NOTE: Failure of the new testamentary disposition upon
whose validity the revocation depends is equivalent to the
non-fulfillment of a suspensive condition and thus
prevents the revocation of the original will.
Q: Mr. Reyes executed a will completely valid as to
form. A week later, however, he executed another will
which expressly revoked his first will, upon which he
tore his first will to pieces. Upon the death of Mr.
Reyes, his second will was presented for probate by
his heirs, but it was denied due to formal defects.
Assuming that a copy of the first will is available, may
it now be admitted to probate and given effect? Why?
(2003 BAR)
A: YES, the first will may be admitted to probate and given
effect because the will that was supposed to revoke the
same was never admitted to probate on account of formal
defects. Admission to probate of the subsequent revoking
will is one of the requisites for express revocation to take
place.
REPUBLICATION AND REVIVAL OF WILLS
Republication of wills is the re-execution or the re-
establishment by a testator of a will which is void or a will
which the testator had once revoked.
Two ways of Republishing Wills
1. By Reproduction - the contents of a previous will are
reproduced in a subsequent will (NCC, Art. 835)
2. By Execution of a Codicil - such codicil referring to
the previous will to be republished (NCC, Art. 836)
NOTE: There can be NO republication by execution of a
codicil if the previous will is void as to its form. If the
previous will is void as to its form, it can only be
republished by reproducing the provisions thereof in a
subsequent will.
Revival of Wills is the process of renewing the operative
force of a will which had once been revoked by the
testator.
Rule on revival of wills
427
1. If there is an EXPRESS REVOCATION - If after making
a will, the testator makes a second will expressly
revoking the first, the revocation of the second
will does not revive the first will, which can be
revived only by another will or codicil (NCC, Art. 837).
2. If there is an IMPLIED REVOCATION - The
revocation of the second will which impliedly
revoked the first will revives the latter.
ALLOWANCE AND DISALLOWANCE OF WILLS
PROBATE REQUIREMENT
Probate is a special proceeding mandatorily required for
the purpose of establishing the validity of a will.
No will shall pass either real or personal property unless
it is proved and allowed in accordance with the Rules of
Court (NCC, Art. 838).
The presentation of the will for probate is mandatory,
and is a matter of public policy.
Probate deals with the will’s extrinsic validity. The court
merely inquires into its due execution. It does not
determine the validity of each and every disposition made
in it.
In testate succession, there can be no valid partition
among the heirs, until after the will has been probated.
Waiver of probate proceeding
The parties CANNOT agree to waive the probate
proceedings. It is a mandatory requirement. Until
admitted to probate, no right can be claimed under the
will.
Principle of estoppel IS NOT applicable in probate
proceedings
These proceedings involve public interest and the
application therein of the principle of estoppel would
seem inimical to public policy when it will block the
ascertainment of truth surrounding the execution of a
testament.
Imprescriptibility of probate
Prescription (statute of limitations) DOES NOT apply to
probate of wills.
Rationale: Probate proceedings are not established in the
interest of the surviving heirs, but primarily for the
protection of the expressed wishes of the testator.
Different kinds of probate
a. Ante-mortem – testator himself petitions the court
for the probate of his own will during his lifetime.
b. Post-mortem – another person applies for probate of
the will after the testator’s death.
Questions that can be determined by a probate court
 Civil Law
GR: Probate courts cannot inquire into the intrinsic
validity of a will. The questions that can be determined by
a probate court are the following:
a) Due execution
b) Testamentary capacity
c) Identity of the will
XPNs:
a) When the defect of the will is apparent on the face
and the probate of the will may become a useless
ceremony if it is intrinsically invalid;
b) For practical considerations as when there is
preterition of heirs, or testamentary provisions are
of doubtful legality;
c) Estoppel on the part of the parties if they put the
intrinsic validity of the will in issue.
Q: The testator devised a part of his estate to his
concubine, which fact of concubinage was stated in
his will. On probate, the court ruled that the will was
validly executed but the devise in favor of the
concubine is null and void. Can the probate court pass
upon the intrinsic validity of the testamentary
provision stated in the will?
A: YES. While as a general rule, in probate proceedings,
the court’s area of inquiry is limited to an examination and
resolution of the extrinsic validity of the will, given
exceptional circumstances, the probate court is not
powerless to do what the situation constrains it to do and
pass upon certain provisions of the will, as in this case.
The prohibition in Article 739 of the NCC is against the
making of a donation between persons who are living in
adultery or concubinag (Nepomuceno v. CA, G.R. No. 62952,
October 9, 1985).
Probate court on Questions of Ownership
GR: A probate court has no jurisdiction to decide
questions of ownership.
XPNs:
1. When the parties voluntarily submit the issue of
ownership to the court;
2. When provisionally, the ownership is passed upon to
determine whether or not the property involved is
part of the estate ; and
3. The question of ownership is an extraneous matter
which the probate court cannot resolve with finality;
The probate court is authorized to determine the issue of
ownership of properties for purposes of their inclusion or
exclusion from the inventory to be submitted by the
administrator, but its determination shall only be
provisional unless:
a. the interested parties are all heirs of the decedent,
or
b. the question is one of collation or advancement, or
c. the parties consent the assumption of jurisdiction
by the probate court and the rights of third parties
are not impaired.
d. Probate court’s jurisdiction extends to matters
incidental or to the settlement and distribution of
the estate, such as the determination of the status
of each heir and whether property included in the
428
inventory is the conjugal or exclusive property of
the deceased spouse (Thelma Aranas v. Mercao, et.
al., G.R. No. 156407, January 15, 2014).
---
Q: When Vic died, he was survived by his legitimate
son, Ernesto, and natural daughter, Rosario. Rosario,
who had Vic’s will in her custody, did not present the
will for probate. She instituted an action against
Ernesto to claim her legitime on the theory that Vic
died intestate because of the absence of probate. To
support her claim, she presented Vic’s will, not for its
probate, but for proving that Vic acknowledged her. Is
the procedure adopted by Rosario allowed?
A: NO. It is in violation of procedural law and an attempt
to circumvent and disregard the last will and testament of
the decedent. The presentation of a will to the court for
probate is mandatory and its allowance by the court is
essential and indispensable to its efficacy (Guevara v.
Guevara, G.R. No. 48840, December 29, 1943).
---
Q: To put an end to the numerous litigations involving
decedent Francisco’s estate, his heirs entered into a
compromise agreement whereby they agreed to pay
Tasiana, Francisco’s surviving spouse, P800,000 as
her full share in the hereditary estate.
When submitted to the court for approval, Tasiana
attacked its validity on the ground that the heirs
cannot enter into a compromise agreement without
first probating Francisco’s will. Tasiana relied on
Guevara v. Guevara (G.R. No. 48840, December 29,
1943) where the court held that the presentation of a
will for probate is mandatory and that the settlement
and distribution of an estate on the basis of intestacy
when the decedent left a will, is against the law and
public policy. Decide.
A: The Guevara ruling is not applicable in this case. Here,
there was no attempt to settle or distribute the estate
among the heirs before the probate of the will. The clear
object of the contract was merely Tasiana’s conveyance of
any and all her individual share and interest, actual or
eventual in the estate. There is no stipulation as to any
other claimant, creditor or legatee.
As a hereditary share in a decedent's estate is transmitted
or vested immediately from the moment of the death of
such predecessor in interest, there is no legal bar to a
successor (with requisite contracting capacity) disposing
of her or his hereditary share immediately after such
death, even if the actual extent of such share is not
determined until the subsequent liquidation of the estate.
Also, as Francisco’s surviving spouse, Tasiana was his
compulsory heir. Barring unworthiness or valid
disinheritance, her successional interest existed
independent of Francisco's last will and testament and
would exist even if such will were not probated at all.
Thus, the prerequisite of a previous probate of the will, as
established in the Guevara and analogous cases, can not
apply to the case.
---
Scope of a Final Decree of Probate
 Succession
A final decree of probate is conclusive as to the due
execution and extrinsic or formal validity only. That
means that the testator was of sound and disposing mind
at the time when he executed the will and was not acting
under duress, menace, fraud or undue influence; that the
will was signed by him in the presence of the required
number of witnesses and, that the will is genuine and not
a forgery (Gallanosa v. Arcangel, G.R. No. L-29300, June 21,
1978).
Due execution of the will
It includes a determination of whether:
1. the testator was of sound and disposing mind at the
time of its execution;
2. the testator freely executed the will and was not
acting under duress, fraud, menace or undue
influence ;
3. the will is genuine and not a forgery ;
4. the testator was of proper testamentary age ; and
5. the testator is not expressly prohibited by law from
making a will.
---
Q: After an ante mortem proceeding, the will was
allowed. Later on, during the post mortem settlement
of estate proceedings, one of the heirs filed a criminal
case alleging falsification in the execution of the will.
Will the action prosper?
A: NO. Pursuant to Sec. 1, Rule 75 of the Rules of Court, the
probate court inquires into the due execution of the will.
Regardless of whether it is ante mortem or post mortem,
once an issue of due execution has already been passed
upon by the probate court, it would constitute res judicata
if such issue be raised again. In the present scenario, the
issue on due execution was already passed upon and
therefore, allegations of whatever ground assailing the
due execution of the will, will be barred by res judicata.
---
After the finality of the allowance of a will, the issue as to
the voluntariness of its due execution cannot be raised
anymore (Gallanosa v. Arcangel, G.R. No. L-29300, June 21,
1978).
It is anomalous that the estate of a person who died
testate should be settled in an intestate proceeding.
Therefore, the intestate case should be consolidated with
the testate proceeding and the judge assigned to the
testate proceeding should hear the two cases (Roberts v.
Leonidas, G.R. No. L-55509, April 27, 1984).
GROUNDS FOR DENYING PROBATE
Grounds for Disallowance of a Will (IF2 SUM)
1. The Formalities required by law have not been
complied with;
2. The testator was Insane or otherwise mentally
incapable of making a will, at the time of its
execution;
3. The will was executed through Force or under
duress, or influence of fear or threats;
4. The will was procured by Undue and improper
pressure and influence, on the part of the
beneficiary or some other person;
429
5. The Signature of testator was procured by fraud.
6. 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 (NCC,
Art. 839)
If the grounds for disallowance is proved, the will in such
case shall be set aside as VOID.
The person who intervenes must have an interest in the
estate or in the will, or in the property to be affected by it,
either as executor or claimant of the estate.
INSTITUTION OF HEIRS
Institution of heirs 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 (NCC, Art. 840).
Institution of heirs cannot be allowed to affect the
legitimes of the compulsory heirs.
There can be an instituted heir only in testamentary
succession.
There can be a valid will even if it contains only a
provision for disinheritance or if only legacies and devises
are contained in the will even though it does not contain
an institution of heir, or such institution should not
comprise the entire estate, and even though the person so
instituted should not accept the inheritance or should be
incapacitated to succeed (NCC, Art. 841).
Requisites of a Valid Institution
1. The will must be extrinsically valid;
NOTE: The testator must have the testamentary
capacity to make the institution.
2. The institution must be intrinsically valid; and
NOTE: The legitime must not be impaired, the person
instituted must be identified or identifiable, and
there is no preterition.
3. The institution must be effective.
NOTE: No repudiation by the heir; testator is not
predeceased by the heir.
Three Principles in the Institution of Heirs
1. Equality – heirs who are instituted without a
designation of shares inherit in equal parts.
NOTE: Applies only when the heirs are of the same
class or same juridical condition and involves only
the free portion.
As between a compulsory heir and a voluntary heir
and they are instituted without any designation of
shares, the legitime must first be respected and the
 Civil Law
free portion shall then be equally divided between however, that the event or circumstance must appear
them. in the will itself; it cannot be shown by extrinsic
evidence, either oral or documentary.
2. Individuality – heirs collectively instituted are 2. A disposition in favor of a definite class or group of
deemed individually instituted unless contrary persons shall be valid.
intent is proven.
Evidence aliunde CANNOT be presented to identify the
NOTE: Art. 847 of the NCC provides that when the unknown person. The determinate event or circumstance,
testator institutes some heirs individually and others sufficient to indicate with certainty the person whom the
collectively as when he says, “I designate my heirs A testator wants to favor, must appear in the will itself; it
and B, and the children or C,” those collectively cannot be shown by extrinsic evidence, either oral or
designated shall be considered as individually documentary.
instituted, unless it clearly appears that the intention
of the testator was otherwise. If there is merely a latent ambiguity as to the identity of
the heir, extrinsic evidence other than the oral declaration
3. Simultaneity – when several heirs are instituted, of the testator may be used, but if his identity is unknown,
they are instituted simultaneously and not extrinsic evidence is not allowed.
successively, unless the contrary is proved.
Effect if the institution of heir is based on a false cause
Designation of Heir
GR: The institution of heir is valid. The false cause shall be
Generally, an heir must be designated by his name and considered simply as not written.
surname. This rule, however, is not mandatory. Even
when the name of the heir has been omitted but the XPN: If from the will itself, it appears that the testator
testator has designated the heir in such a manner that would not have made the institution if he had known the
there can be no doubt as to who has been instituted, the falsity of the cause, the institution shall be void.
institution is valid.
NOTE: The rule is, if the revocation is based on a false or
If two or more persons have the same names, the testator illegal cause, it is null and void (NCC, Art. 833) while
must indicate some circumstance by which the instituted institution of heir based on false cause as a general rule
heir may be known. does not affect the validity or efficacy of the institution
(NCC, Art. 850).
If the testator fails to mention any circumstance regarding
the heir instituted and there appears to be several Kinds of institution
persons bearing the same name, there is latent ambiguity
and extrinsic evidence other than the oral declaration of 1. With a condition
the testator as to his intention is admissible to resolve the 2. With a term
ambiguity. 3. For a certain purpose or cause (modal
Institution)
A conceived child may be instituted, provided the
conditions in Arts. 40 and 41 of NCC are present. Conditional Institution of heirs
(Conceptus pro nato habetur)
Condition is a future or uncertain event or a past event
NOTE: A conceived child, although as yet unborn, has a unknown to the parties, upon which the performance of
limited and provisional personality (Quimiguing v. Icao, an obligation depends.
G.R. No. 26795, July 31, 1970). Its personality is essentially
limited because it is only for purposes favorable to the Conditions, terms and modes are not presumed, they
child (NCC, Art. 40). Its personality is provisional because must be clearly expressed in the will. The condition must
it depends upon the child being born alive later under the fairly appear from the language of the will. Otherwise, it
following conditions: shall be considered pure.
1. The child must be alive for at least 24 hours from
complete delivery, if it had an intra-uterine life Kinds of Condition
of less than 7 months.
2. If the child had an intra-uterine life of at least 7
RESOLUTORY CONDITION SUSPENSIVE CONDITION
months, it is enough that the child is alive upon
delivery (NCC, Art. 41).
The disposition becomes
The effectivity of the
Disposition in favor of an Unknown Person effective upon the death of
disposition is suspended
the testator but is
until the fulfillment of the
GR: Every disposition in favor of an unknown person shall extinguished upon the
condition.
be void. happening of the condition.

XPNs: Effect of Impossible Condition on the Testamentary

1. If the identity can become certain by some event or Disposition
circumstance, the disposition is valid. It is important,

430
 Succession
Impossible conditions and those contrary to law or good
customs shall be considered as not imposed and shall in
no manner prejudice the heir, even if the testator should
otherwise provide (NCC, Art. 873).
GR: The testator CANNOT impose any charge, condition
or substitution whatsoever upon the legitimes. If a charge
condition or substitution is imposed, it shall be
considered as not imposed.
XPN: Testator can validly impose a prohibition against
the partition of the legitimes for a period not exceeding 20
years.
NOTE: The legitime passes by strict operation of law,
independently of the testator’s will. As such, any
condition, burden, or substitution upon the same is
merely considered by law as not imposed (NCC, Art. 872).
Conditions on the Prohibition to Marry
GR: An absolute condition not to contract a first or
subsequent marriage is not a valid condition and shall be
considered as not written (NCC, Art. 874). However, the
validity of the disposition itself shall not be affected.
XPN: If such condition was imposed on the widow or
widower by the deceased spouse or by the latter’s
ascendants or descendants, in which case, the condition is
valid (NCC, Art. 874).
If the prohibition is relative with respect to persons, time
or place, such conditions is valid and must be complied
with unless the testator renders it impossible for the heir
to marry at all.
Disposition Captatoria is any disposition made upon the
condition that the heir shall make some provision in his
will in favor of the testator or of any other person shall be
void (NCC, Art. 875). Here, both the condition and the
disposition are void but the validity of the other
provisions, including the will itself, shall not be affected.
Reason for the prohibition: Disposition captatoria is
incompatible with good faith and with the nature of
testaments; it is immoral and contrary to the freedom to
make wills.
Effect of a Suspensive Condition
1. Heir, Devisee, or legatee acquires no rights until the
condition is fulfilled.
2. If he dies before the condition is fulfilled, he
transmits no rights to his heirs, even though he
survived the testator.
3. Once the condition is fulfilled, its effects retroact to
the moment of the death of the testator.
Reason: Capacity to succeed by the conditional heir
must be determined both at the time of the death of
the testator and at the time of the fulfillment of the
condition.
4. If the suspensive condition is not fulfilled, the estate
will be placed under administration until:
431
a. The condition is fulfilled, in which case the
estate should be given to the instituted heir;
b. It becomes obvious that it cannot be fulfilled, in
which case, the estate should be given to the
intestate heirs.
Negative potestative condition consists in the non-
performance of an act or not giving something and he
shall comply by giving a security that he will not do or give
that which has been prohibited by the testator (NCC, Art.
879). In this case, the heir instituted has a right to receive
his share in the inheritance upon the death of the testator
and loses his right only when he violates the condition.
Institution of heir with a term
A term is any future and certain event upon the arrival of
which the validity or efficacy of a testamentary
disposition subject to it depends.
A disposition with a suspensive term does not prevent
the instituted heir from acquiring his rights and
transmitting them to his heirs even before the arrival of
the term.
Reason: The right of the heir instituted subject to a term
is vested at the time of the testator's death - he will just
wait for the term to expire.
If the heir dies after the testator but before the term
expires, he transmits his rights to his own heirs because
of the vested right.
SUSPENSIVE TERM SUSPENSIVE CONDITION
The instituted heir does not
The right of the heir acquire any successional
instituted subject to a term right upon the death of the
is vested at the time of the testator as long as the
testator’s death. Hence, if condition is not yet
he dies after the testator fulfilled. Hence, upon the
but before the term expires, death of the instituted heir,
he can transmit his rights to prior to the fulfillment of
his own heirs. the condition, no right is
transmitted to his heirs.
Q: When the disposition is subject to a term, what
should be done by the instituted heirs or legal heirs
so that they can enjoy possession of the property?
A: If the disposition is subject to a:
1. Suspensive term - The legal heirs can enjoy
possession of the property until the expiration of the
period but they must put up a bond (caucion
muciana) in order to protect the right of the
instituted heir.
2. Resolutory term - The legal heirs can enjoy
possession of the property but when the term
arrives, he must give it to the legal heirs. The
instituted heir does not have to file a bond.
A “Caucion Muciana” is a security or bond required from
the conditional heir in order to secure the rights of those
 Civil Law
who would succeed to the property upon violation of the
condition.
Instances when caucion muciana is needed
1. Suspensive term - the legal heir shall be considered as
called to the succession until the arrival of the period.
But he shall not enter into possession of the property
until after having given sufficient security, with the
intervention of the instituted heir [NCC, Art. 885 (2)].
2. Negative potestative condition - 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 (NCC, Art.
879)
NOTE: If the heirs do not post the required bond in case
of a suspensive term or a negative potestative
condition, the estate shall be placed under
administration (NCC, Art. 880).
3. Mode - 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 (NCC, Art. 882). (2002
BAR)
Modal Institution of heirs
A mode is an obligation imposed upon the heir to do or to
give something
Modal institution – statement of:
1. Object of the institution,
2. Application of the property left by the testator,
3. Charge imposed by him.
Modal disposition
A “mode” imposes an obligation upon the heir, devisee or
legatee, but it does not affect the efficacy of his rights to
the succession. The mode obligates but does not suspend.
Mode distinguished from a Condition
MODE CONDITION
Imposes an obligation The condition must
upon the heir, devisee or happen or be fulfilled in
legatee, but it does not order for the heir to be
affect the efficacy of his entitled to succeed the
rights to the succession. testator.
Obligates but does not Suspends but does not
suspend obligate
In case of doubt, the institution should be considered
as modal not conditional.
432
---
Q: The testatrix devised a parcel of land to Dr.
Rabadilla. It was provided that Dr. Rabadilla will
acquire the property subject to the obligation, until
he dies, to give Maria 100 piculs of sugar, and in the
event of non-fulfillment, the property will pass to the
nearest descendants of the testatrix.
When Dr. Rabadilla died, Maria filed a complaint to
reconvey the land alleging that the heirs of Dr.
Rabadilla violated the condition. Is the institution of
Dr. Rabadilla, a modal institution?
A: YES, because it imposes a charge upon the instituted
heir without, however, affecting the efficacy of such
institution.
In a modal institution, the testator states the object of the
institution, the purpose or application of the property left
by the testator, or the charge imposed by the testator
upon the heir. A mode imposes an obligation upon the
heir or legatee but it does not affect the efficacy of his
rights to the succession. The condition suspends but does
not obligate; and the mode obligates but does not suspend
(Rabadilla v. CA, G.R. No. 113725, June 29, 2000).
---
PRETERITION
Preterition is the omission in testator’s will of one, some
or all of the compulsory heirs in the direct line, whether
living at the time of execution of the will or born after the
death of the testator (NCC, Art. 854). (1999, 2000, 2001,
2008 BAR)
Meaning of “born after the death of the testator”
It simply means that the omitted heir must have already
been conceived at the time of death of the testator, but
was born only after the death of the testator.
Requisites of Preterition
2. There is a total omission in the inheritance;
3. The person omitted is a compulsory heir in the direct
line;
4. The omitted compulsory heir must survive the
testator, or in case the compulsory heir predeceased
the testator, there is a right of representation;
5. Nothing must have been received by the heir by
gratuitous title.
A spouse CANNOT be preterited. While a spouse is a
compulsory heir, he/she is not in the direct line
(ascending or descending).
NOTE: The surviving spouse shall only be entitled to
recover his legitime but the institution of heirs shall not
be annulled.
There is Total Omission when the heir:
6. Receives nothing under the will whether as heir,
legatee, or devisee;
 Succession
NOTE: If a compulsory heir is given a share in the
inheritance, no matter how small, there is no
preterition.
However, if a compulsory heir gets less than his
legitime, while this is not a case of preterition, he is
entitled to a completion of his legitime under Art. 906
of the NCC.
7. Has received nothing by way of donation inter vivos
or propter nuptias; and
NOTE: If a compulsory heir has already received a
donation from the testator, there is no preterition.
Reason: A donation to a compulsory heir is
considered an advance of the inheritance.
8. The heir will receive nothing by way of intestate
succession. (e.g. if the heir is not mentioned in the
will nor a recipient of a donation inter vivos and all of
the estate is disposed by will)
To constitute preterition, the omission must be total
and complete, such that nothing must be given to the
compulsory heir (Aznar v. Duncan, G.R. No. L-24365, June
30, 1966).
Effects of Preterition
1. Preterition annuls the institution of heirs;
2. Devices and legacies are valid insofar as they are not
inofficious;
3. If the omitted compulsory heir dies before the
testator, the institution shall be effectual, without
prejudice to the right of representation.
Example: X has two legitimate children: A and B. X
makes a will which results in the preterition of A. A
predeceases X but leaves a legitimate child A-1, who
is himself completely omitted from the inheritance
(A-1 being entitled to succeed X by representation).
There is preterition, not because A was preterited
but because A-1 was preterited (Balane, 2010). In
such case, the descendant of A, A-1, can now file an
action to annul the institution of heirs.
Preterition annuls the institution of an heir and
annulment throws open to intestate succession the entire
inheritance. The only provisions which do not result in
intestacy are the legacies and devises made in the will for
they should stand valid and respected, except insofar as
the legitimes are concerned (Acain v. IAC, G.R. No. 72706,
October 27, 1987).
Omission of an illegitimate child in a will amounts to
preterition
Art. 854 of the NCC do not distinguish. It is immaterial
whether the heir omitted in the testator’s will is legitimate
or illegitimate provided that he is a compulsory heir in the
direct line.
Omission of an adopted child in a will also amount to
preterition
433
An adopted child is by legal fiction considered a
compulsory heir in the direct line. An adopted person is
given the same rights and duties as if he is a legitimate
child of the adopter and makes the adopted person a legal
heir of the adopter (Acain v. IAC, G.R. No. 72706, October
27, 1987).
Compulsory Heirs in the Direct Line
1. Legitimate children and descendants with respect to
their legitimate parents or ascendants;
2. Legitimate parents of ascendants, with respect to
their legitimate children and descendants;
3. Illegitimate children;
4. The father or mother of illegitimate children.
Where the deceased left no descendants, legitimate or
illegitimate, but she left forced heirs in the direct
ascending line— her parents, and her holographic
will does not explicitly disinherit them but simply
omits their names altogether, the case is one of
preterition of the parents, not a case of ineffective
disinheritance (Nuguid vs. Nuguid, et al., GR No. L-23445
June 23, 1966).
---
Exclusion of an Heir in the Extrajudicial Settlement of
Estate
Q: Virginia P. Viado died intestate in 1982. Her part in
the conjugal property was transmitted to her heirs—
her husband Julian and their children Nilo Viado,
Rebecca Viado, Leah Viado and Delia Viado. The
inheritance, which vested from the moment of death
of the decedent, remained under a co-ownership
regime among the heirs until partition. The heirs
later on executed a deed of extrajudicial settlement to
the exclusion of Delia Viado, alleged to be a retardate.
Can Delia Viado rescind the extrajudicial settlement
among other heirs?
A: No. The exclusion of petitioner Delia Viado from the
deed of extrajudicial settlement verily has the effect of
preterition. This kind of preterition, however, in the
absence of proof of fraud and bad faith, does not
justify a collateral attack on Transfer Certificate of
Title. The relief instead rests on Article 1104 of the NCC
to the effect that where the preterition is not attended by
bad faith and fraud, the partition shall not be rescinded
but the preterited heir shall be paid the value of the
share pertaining to her. (Non vs. Court of Appeals, G.R.
No. 137287 February 15, 2000)
---
Preterition and Defective Disinheritance
DEFECTIVE
PRETERITION
DISINHERITANCE
Distinctions
A testamentary
disposition depriving any Omission in the testator’s
compulsory heir of his will of the forced heirs or
share in the legitime for a any of them.
cause authorized by law.
 Civil Law
his own heirs. Death prevents him from acquiring any
The institution remains The institution of heirs is rights.
valid, but must be reduced completely annulled.
insofar as the legitime has Hence, the annulment is in NOTE: The rule is absolute with respect to a voluntary
been impaired. Such toto, unless there are in heir and a devisee or legatee.
nullity of institution is addition, testamentary
limited only to that dispositions in the form of Effect if the Heir Repudiated or Renounced his
portion of which, the legacies and devices which Inheritance
disinherited heir has been shall remain valid so long
unlawfully deprived of. as they are not inofficious. An heir who renounced his inheritance, whether as
compulsory or as voluntary heir, does not transmit any
The omission is right to his own heirs.
By mere mistake or
intentional in which case
inadvertence resulting in
the institution of heir is NOTE: An heir who repudiated his inheritance, may
the fact that the
not wholly void but only in represent the person whose inheritance he has
compulsory heir receives
so far as it prejudices the renounced (NCC, Art. 976). The reason for this is found
nothing at all. There is
legitime of the person under Art. 971 of the NCC: “the representative does not
total deprivation.
disinherited. succeed the person represented but the one whom the
person represented would have succeeded. “
Similarities
RIGHT OF REPRESENTATION
In both cases, the omitted heir and the imperfectly
disinherited heir get at least their legitimes. Right of representation is the right created by fiction of
law, by virtue of which, the representative is raised to the
Both legacies and devises remain valid insofar as the place and degree of the person represented, and acquires
legitime has not been impaired. the rights which the latter would have if he were living or
if he could have inherited (NCC, Art. 970).
The mere fact that an heir was omitted in a will, does
NOT automatically equate to preterition. The representative thereby steps into the shoes of the
person he represents and succeeds, not from the latter,
One must distinguish whether the omission of a forced but from the person whose estate the person represented
heir in the will of the testator is by mistake or in would have succeeded.
advertence or voluntary or intentional:
a) If by mistake or inadvertence, there is true The right of representation is allowed in compulsory
preterition and total intestacy results. succession with respect to the legitime, in case the
b) If the omission is intentional, the effect would be compulsory heir in the descending line dies before the
a defective disinheritance covered by Art. 918 of testator or becomes incapacitated to succeed.
the NCC in which case the institution of heir is not
wholly void but only in so far as it prejudices the Heirs who repudiated their share MAY NOT be
legitime of the person disinherited. represented. A voluntary heir MAY NOT also be
represented.
Effect of Preterition on the Will Itself
Rules in case of representation
GR: The effect of annulling the institution of heirs will be,
necessarily, the opening of a total intestacy except that It shall take place in cases of:
proper legacies and devises must be respected. Here, the a. Death
will is not abrogated. b. Incapacity
c. Disinheritance
XPN: If the will contains a universal institution of heirs to
the entire inheritance of the testator, the will is totally Representation applies only to those acquired by virtue of
abrogated. the law (legitime, intestate share, in case of reserva
troncal).
Reason: The nullification of such institution of the
universal heirs without any other testamentary No representation in cases of repudiation.
disposition in the will amounts to a declaration that
nothing at all was written. Representation only occurs in the direct descending line
and never in the ascending.
PREDECEASE, INCAPACITY
& REPUDIATION In the direct collateral line, the right of representation
only takes place in favor of children of brothers or sisters,
Effect if the Heir Predeceases the Testator whether full or half-blood.

If the heir who predeceases the testator is a voluntary The representation obtains degree by degree, and no
heir, a devisee or a legatee, he shall transmit no right to jump is made.

434
 Succession
Outline of Rules (Balane, 2010) The substitute who dies ahead of the testator prevents
him from acquiring any rights, since there is no
Disinherita substitution to speak of.
Death Incapacity Renunciation
nce
Kinds of substitution
Compulsory Heir
1. Simple/common (2002 BAR) – takes place when the
1. TN 1. TN 1. TN 1. TN heir instituted:
2. R 2. R 2. No R 2. R a. Predeceases the testator;
b. repudiates the inheritance; or
Voluntary Heir c. is incapacitated to succeed
1. TN 1. TN 1. TN Not
NOTE: Simple substitution without a statement of
2. No R 2. No R 2. No R applicable
the causes, to which it refers, shall comprise the 3
Legal Heir above mentioned situations unless the testator has
provided otherwise.
1. TN 1. TN 1. TN Not
2. R 2. R 2. No R applicable 2. Brief/compendious – when two or more persons are
substituted for one; and one person for two or more
heirs.
 TN = Transmit Nothing
 R = Representation 3. Reciprocal – one heir is designated as a substitute for
an instituted heir while the latter is simultaneously
COMPLETION OF THE LEGITIME
instituted as a substitute for the former.
Any compulsory heir to whom the testator has left by any
GR: The substitute shall be subject to the same
title less than the legitime belonging to him may demand
charges and conditions imposed upon the instituted
that the same be fully satisfied (NCC, Art. 906). (2001,
heir.
2010 BAR)
XPNs:
NOTE: Testamentary dispositions that impair or diminish
1. If the testator has expressly provided the
the legitime of the compulsory heirs shall be reduced on
contrary
petition of the same, insofar as they may be inofficious or
2. If the charges or conditions are personally
excessive (NCC, Art. 907).
applicable only to the heir instituted (NCC,
Art 862).
If the testator has instituted only one heir, and the
institution is limited to an aliquot part of the inheritance -
4. Fideicommissary Substitution (Indirect
legal succession takes place with respect to the remainder
Substitution)– It is a substitution by virtue of which
of the estate (NCC, Art. 851).
the fiduciary or first heir instituted is entrusted with
the obligation to preserve and to transmit to a second
If the testator instituted several heirs as sole heirs but
heir the whole or part of the inheritance. It shall be
allotted only an aliquot part of the inheritance and
valid provided such substitution does not go beyond
together they do not cover the whole inheritance, or the
one degree from the heir originally instituted, and
whole free portion - each part shall be increased
provided further, that the fiduciary or first heir and
proportionately (NCC, Art. 852).
the second heir are living at the time of the death of
the testator (NCC, Art. 863). (2002, 2008 BAR)
If each of the instituted heirs has been given an aliquot
part of the inheritance and the parts together exceed the
Parties to a Fideicommissary Substitution and their
whole inheritance, or the whole free portion, as the case
Obligations
may be - each part shall be reduced proportionately (NCC,
Art. 853).
PARTIES OBLIGATIONS
SUBSTITUTION OF HEIRS
First heir or He has the obligation to preserve
Substitution is the appointment of another heir so that fiduciary and transmit the inheritance.
he may enter into the inheritance in default of the heir
Second heir or He eventually receives the
originally instituted (NCC, Art 857). (2002 BAR)
fideicommissary property from the fiduciary.
The concept of substitution applies in cases if the heir or
heirs instituted should die before the testator or should Elements of Fideicommissary Substitution
not wish, or should be incapacitated to accept the
inheritance. 1. There must be a first heir or fiduciary who takes the
property upon the testator’s death;
If the Substitute Dies Ahead of the Testator 2. An absolute obligation is imposed upon the
fiduciary to preserve and to transmit to a second
heir the property at a given time;

435
 Civil Law
3. There is a second heir who takes the property Fiduciary’s Tenure
subsequently from the fiduciary and must be one
degree from the first heir; and 1. Primary rule – the period indicated by the testator
4. The first and second heir must both be living and 2. Secondary rule – if the testator did not indicate a
qualified at the time of the death of the testator. period, then the fiduciary’s lifetime

NOTE: It should be imposed on the free portion and not
on the legitime. Fideicommissary substitution can
never burden the legitime (NCC, Art. 864).
Meaning of "One degree"
Delivery of the property to the fideicommissary heir
GR: The fiduciary should deliver the property intact and
undiminished to the fideicommissary heir upon
arrival of the period.

It refers to the degree of relationship; it means “one XPN: The only deductions allowed, in the absence of a
generation”. As such, the fideicommissary can only be contrary provision in the will are:
either a parent or child of the first heir (Palacios v. 1. Legitimate expenses
Ramirez, G.R. No. L-27952, February 15, 1982). 2. Credits
3. Improvements
The relationship is always counted from the first heir.
However, fideicommissary substitutions are also limited The coverage of legitimate expenses and improvements
to one transmission. There can only be one are limited to necessary and usefulexpenses, but not to
fideicommissary transmission such that after the first, ornamental expenses.
there can be no second fideicommissary substitution.
Distinctions between a fiduciary in fideicommissary
Both the first and second heir must be living and substitution and a trustee in a trust
qualified at the time of the death of the testator
FIDUCIARY TRUSTEE
The fideicommissary inherits not from the first heir but
from the testator, thus, the requirement that the May be designated either
fideicommissary be alive or at least conceived at the time Can only be designated expressly by acts inter
of the testator’s death. expressly by means of a vivos or mortis causa or
will impliedly by operation of
Effect if the fideicommissary predeceases the law
fiduciary
Has no usufructuary right
Entitled to all of the rights
If the fideicommissary predeceases the fiduciary, but over the property which
of a usufructuary
survives the testator, his rights pass to his own heirs. he holds in trust

NOTE: The first heir receives property, either upon the May alienate his right of
death of the testator or upon the fulfillment of any usufruct but always
suspensive condition imposed by the will. subject to his obligation Cannot alienate anything
of preserving and whatsoever
The first heir is almost like a usufructuary with right to transmitting the object to
enjoy the property. Thus, like a usufructuary, he cannot a second heir
alienate the property. The first heir is also obliged to make
an inventory but he is not required to furnish a bond. Fiduciary carries out not
another’s wishes but his
Alienation of the property subject to the own and he enjoys the Obligation is broader
fideicommissary substitution by the first heir use and the fruits unlike a because it extends not
trustee (he is like a only to the properties but
Alienation of the property subject to the fideicommissary usufructuary) (Perez v. also to the fruits
substitution by the first heir is not valid. The fiduciary Gachitorena, G.R. No. L-
cannot alienate the property either by an act inter vivos or 31703, 1930).
mortis causa. He is bound to preserve the property and
transmit it to the second heir or fideicommissary.
Express obligation to preserve and transmit the
property
NOTE:
a. If the fiduciary registers the property in his name
The obligation to preserve and transmit must be given
without the fideicommissary substitution, innocent
clearly and expressly:
parties are protected. However, if the property is
1. by giving it a name “fideicommissary substitution” or
unregistered, the buyer acquires only the seller’s
2. by imposing upon the first heir the absolute
right; i.e., subject to the fideicommissary substitution
obligation to preserve and deliver the property to the
b. The fideicommissary is a sort of naked owner;
second heir.
ownership is consolidated in him upon transmission
of the property to him.
Remedy of the fideicommissary to protect himself
against alienation to an innocent third person

436
 Succession
If the first heir was able to register the property in his
name, the fideicommissary should annotate his claim on
the land on the title to protect himself against any
alienation in favor of innocent third parties.
When the property passes to the fideicommissary, there
is no more prohibition to alienate.
If the testator gives the usufruct to different persons
successively, the provisions on fideicommissary
substitution also apply.
Different dispositions related or analogous to
fideicommissary substitutions which the law
considers as void (NCC, Art. 867)
1. Fideicommissary substitutions which are not made
in an express manner, either by giving them this
name, or imposing upon the fiduciary the absolute
obligation to deliver the property to a second heir.
2. Provisions which contain a perpetual prohibition to
alienate and even a temporary one, beyond the limit
fixed in Art. 863 of the NCC (20 years) (NCC, Art.
1083).
3. Those which impose upon the heir the charge of
paying to various persons successively, beyond the
limit prescribed in Art. 863 of the NCC, a certain
income or pension.
4. Those which leave to a person the whole or part of
the hereditary property in order that he may apply or
invest the same according to secret instructions
communicated to him by the testator.
The nullity of the fideicommissary substitution DOES NOT
prejudice the validity of the institution of the heirs first
designated; the fideicommissary clause shall simply be
considered as not written (NCC, Art. 868).
---
Q: Raymond, single, named his sister Ruffa in his will
as a devisee of a parcel of land which he owned. The
will imposed upon Ruffa the obligation of preserving
the land and transferring it, upon her death, to her
illegitimate daughter Scarlet who was then only one
year old. Raymond later died, leaving behind his
widowed mother, Ruffa and Scarlet.
a. Is the condition imposed upon Ruffa to preserve
the property and to transmit it upon her death to
Scarlet, valid?
b. If Scarlet predeceases Ruffa, who inherits the
property?
c. If Ruffa predeceases Raymond, can Scarlet inherit
the property directly from Raymond? (2008 BAR)
A:
a.) When an obligation to preserve and transmit the
property to Scarlet was imposed on Ruffa, the
testator Raymond intended to create a
fideicommissary substitution where Ruffa is the
fiduciary and Scarlet is the fideicommissary. Having
complied with the requirements of Art. 863 and 869
of the NCC, the fideicommissary substitution is
valid.
437
b.) If Scarlet predeceases Ruffa, the latter as the
former’s heir, will be entitled to the property. But
since it is also Ruffa’s death which will trigger the
fideicommissary substitution, the practical effect of
her death would be to allow her (Ruffa’s) mother to
inherit the property as Ruffa’s heir. The transfer of
the property from Scarlet to Ruffa (as Scarlet’s heir)
is what allows Ruffa’s mother to inherit the
property which she would otherwise be disqualified
to inherit under Article 992 of the NCC.
c.) One requirement of a valid fideicommissary
substitution is that both heirs should be alive at the
time of the testator’s death. Ruffa predeceasing
Raymond means that the fideicommissary
substitution is no longer valid. In this regard, the
only way by which Scarlet can inherit the property
directly from Raymond is by legal succession. Her
right to do so, however, is negated by (1) the
presence of Raymond and Ruffa’s mother who
necessarily excludes her; and (2) the provisions of
Art. 992 of the NCC.
---
LEGITIME
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.
(NCC, Art. 886). (2003 BAR)
It is mandatory on the part of the testator to reserve that
part of the estate to the legitime.
Determination of the Legitime
To determine the legitime, the value of the property left at
the death of the testator shall be considered, deducting all
debts and charges, which shall not include those imposed
in the will.
Donations given to children shall be charged to the
legitime (NCC, Art. 908).
Kinds of Legitime
1. Fixed – If the amount (fractional part) does not vary
or change regardless of whether there are
concurring compulsory heirs or not.
a. legitimate children and descendants (legitimate
children’s legitime is always ½) (2003, 2005, 2010
BAR)
b. legitimate parents and ascendants (When there
are no legitimate children and descendants [NCC,
Art. 887 (1)].
2. Variable – If the amount changes or varies in
accordance with whom the compulsory heir concur.
After the legitime has been determined in accordance
with Articles 908 to 910 of the NCC, the reduction
shall be made as follows:
1. Donations shall be respected as long as the legitime
can be covered, reducing or annulling, if necessary,
 Civil Law
the devises or legacies made in the will; (NCC, Art.
911 par. 2)
2. The reduction of the devises or legacies shall be pro
rata, without any distinction whatever (NCC, Art.
911 par. 3).
If the testator has directed that a certain devise or
legacy be paid in preference to others, it shall not
suffer any reduction until the latter have been
applied in full to the payment of the legitime (NCC,
Art. 911 par. 4).
3. If the devise or legacy consists of a usufruct or life
annuity, whose value may be considered greater than
that of the disposable portion, the compulsory heirs
may choose between complying with the
testamentary provision and delivering to the devisee
or legatee the part of the inheritance of which the
testator could freely dispose (NCC, Art. 911 par. 5).
4. If the devise subject to reduction should consist of
real property, which cannot be conveniently divided,
it shall go to the devisee if the reduction does not
absorb one-half of its value; and in a contrary case, to
the compulsory heirs; but the former and the latter
shall reimburse each other in cash for what
respectively belongs to them (NCC, Art. 912 par. 1).
The devisee entitled to a legitime may retain the
entire property, provided its value does not exceed
that of the disposable portion and of the share
pertaining to him as legitime (NCC, Art. 912 par. 2)
NOTE: If the heirs or devisees do not choose to avail
themselves of the right granted by the preceding
article, any heir or devisee who did not have such
right may exercise it; should the latter not make use
of it, the property shall be sold at public auction at the
instance of any one of the interested parties (NCC,
Art. 913).
The testator may devise and bequeath the free
portion as he may deem fit (NCC, Art. 914).
RULES ON LEGITIME
The compulsory heirs are not obliged to accept their
legitimes. There is no obligation on the compulsory heirs
to accept.
GR: The testator cannot deprive the compulsory heirs of
their legitimes.
XPN:
1. When the testator validly disinherited his heir. (NCC,
Art. 915)
2. When the partition of the hereditary estate for a
period not exceeding twenty (20) years is expressly
forbidden by the testator (NCC, Art. 1083).
NOTE: Only the legitime is reserved. The free portion may
be disposed of by will.
---
Q: Crispin died testate and was survived by Alex and
Josine, his children from his first wife; Rene and Ruby,
438
his children from his second wife; and Allan, Bea, and
Cheska, his children from his third wife.
One important provision in his will reads as follows:
"Ang lupa at bahay-sa-Lungsod ng Maynila ay ililipat
at ilalagay sa pangalan nila Alex at Rene hindi bilang
pamana ko sa kanila kundi upang pamahalaan at
pangalagaan lamang nila at nang ang sinuman sa
aking mga anak, sampung apo at kaapuapuhan ko sa
habang panahon, ay may tutuluyan kung magnanais
na mag-aral sa Maynila o sa kalapit na mga lungsod."
Is the provision valid? (2008, 2014 BAR)
A: NO, the provision is not valid. At first glance, the
provision may appear valid as it provides for the transfer
of title in favor of Alex and Rene over the parcel of land. A
legacy or devise is to be construed as a donation effective
mortis causa, and it is intended to transfer ownership to
the legatee or devisee. Since the ownership is legally
transferred to the Alex and Rene, they cannot be
prohibited by the testator from alienating or partitioning
the same perpetually. The dispositions of the testator
declaring all or part of the estate inalienable for more than
twenty years are void (NCC, Art. 870).
---
Rules governing succession in the direct descending
line
1. Rule on preference between lines– descending line is
preferred over the ascending line
2. Rule on proximity– the nearer excludes the more
remote
3. Right on representation, in case of predecease,
incapacity and disinheritance
4. If all the legitimate children repudiate their legitimes,
the next generation of legitimate descendants,
succeed in their own right.
Rules governing succession in the ascending line
1. Rule of proximity– the nearer excludes the more
remote
2. Division by line
3. Equal division within the line
Limitations on the Testator’s Rights of Ownership
The testator CANNOT make donations inter vivos which
impinge upon the legitime or which are inofficious.
NOTE: The prohibition does not cover an onerous
disposition (sale) because this involves an exchange of
values.
Rules on the donations made by the testator in favor
of his children, legitimate and illegitimate, and
strangers and those which are inofficious:
1. Donations given to children shall be charged to their
legitimes (NCC, Art. 909 par. 1).
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 (NCC, Art. 909 par. 2).
 Succession
3. Insofar as they may be inofficious or may exceed the
disposable portion, they shall be reduced according
to the rules established by this Code (NCC, Art. 909
par. 3).
4. Donations which an illegitimate child may have
received during the lifetime of his father or mother
shall be charged to his legitime.
Should they exceed the portion that can be freely
disposed of, they shall be reduced in the manner
prescribed by this Code (NCC, Art. 910).
Remedies of a compulsory heir whose legitime has
been impaired
1. In case of preterition – annulment of institution of
heir and reduction of devises and legacies
2. In case of partial impairment – completion of legitime
3. In case of inofficious donation – collation
The renunciation or compromise of future legitime is
prohibited and considered null and void.
Effect of Donations to the Inheritance of an Heir
Donations given to children shall be charged to their
legitimes (NCC, Art. 909). (2000 BAR)
Reason: Donations to the compulsory heirs are advances
to the legitimes.
NOTE: Donations inter vivos to strangers shall be charged
to the free portion.
COLLATION
Collation is the process of adding the value of the thing
donated to the net value of hereditary estate. (2001,
2010 BAR)
To collate is to bring back or return to the hereditary
mass, in fact or fiction, property which came from the
estate of the decedent, during his lifetime, but which the
law considers as an advance from the inheritance.
Collation is applicable to both donations to compulsory
heirs and donations to strangers.
GR: Compulsory heirs are obliged to collate.
XPNs:
1. When testator should have so expressly provided;
2. When compulsory heir repudiates his inheritance
Properties that are to be collated
1. Any property/right received by gratuitous title
during testator’s lifetime.
2. All that may have been received from decedent
during his lifetime.
3. All that their parents have brought to collation if
alive.
Properties not subject to collation
439
1. Absolutely no collation – expenses for support,
education (elementary and secondary only),
medical attendance, even in extra-ordinary illness,
apprenticeship, ordinary equipment or customary
gifts.
2. Generally not imputed to legitime:
a. Expenses incurred by parents in giving their
children professional, vocational, or other
career unless the parents so provide, or unless
they impair the legitimes.
b. Wedding gifts by parents and ascendants
consisting of jewelry, clothing and outfit except
when they exceed 1/10 of the sum disposable by
will.
NOTE: Only the value of the thing donated shall be
brought to collation. This value must be the value of the
thing at the time of the donation.
Property left by will (like a legacy or devise) is not
deemed subject to collation if the testator has not
otherwise provided, but the legitime shall in any case
remain unimpaired. The legacy or devise should be
imputed to the free portion, not to the legitime.
Steps in Determining the Legitime of Compulsory
Heirs
1. Determination of the gross value of the estate at the
time of the death of the testator.
2. Deduct all the debts and charges which are
chargeable against the estate.
3. Collate or add the value of all donations inter vivos to
arrive at the net hereditary estate which will serve as
the basis of determining the legitime.
4. Impute all the value of donations inter vivos made to
compulsory heirs against their legitime and of the
value of all donations inter vivos made to strangers
against the disposable free portion.
5. If the legitime is impaired, the following reductions
shall be made:
a. First, reduce pro rata non-preferred legacies
and devices, and the testamentary dispositions.
b. Second, reduce pro rata the preferred legacies
and devises.
c. Third, reduce the donations inter vivos
according to the inverse order of their dates.
Order of preference in reducing
testamentary dispositions and donations
1. Reduce pro rata the non-preferred legacies
and devises (NCC, Art.911, par.2), and the
testamentary dispositions that impairs or
diminish the legitime of the compolsury heirs
(NCC, Art. 907). Among these legacies, devises,
and testamentary dispositions, there is no
preference.
NOTE: Preferred legacies and devisees are those
directed by testator to be preferred than the
others.
2. Reduce pro rata the preferred legacies and
devises (NCC, Art. 911, last par.).
 Civil Law

Legitimate child = ½ of the

3. Reduce the donations inter vivos according to hereditary estate (if
the inverse order of their dates (i.e., the oldest is there are several,
the most preferred) (NCC, Art. 773). they shall divide the
½ share in equal
NOTE: These reductions shall be to the extent portions)
required to complete the legitimes, even if in the
process the disposition is reduced to nothing. One
Illegitimate children = ½ of the share of
legitimate
each legitimate child
6. If there are remaining portion of the estate, it shall be child and
(if the free portion is
distributed to the devisees and legatees, if there are illegitimate
insufficient, the
any, and according to the provisions of the will. children
illegitimate children
shall divide the free
TABLE OF LEGITIMES
portion equally
among themselves)
WHEN SURVIVING SPOUSE ALONE
Free portion = whatever
½ of the hereditary estate (Free portion = ½) remains

Surviving spouse where the Legitimate child = ½ of the

marriage was solemnized under hereditary estate
articulo mortis and the deceased died
within 3 months from the time of 1/3 of the Surviving spouse = ¼ of the
marriage. hereditary hereditary
estate (Free estate
NOTE: The deceased was the spouse portion =2/3)
One
who was at the point of death at the Illegitimate children = ½ of the share of
legitimate
time of marriage (Tolentino, Civil each legitimate
child, the
Code, 1992 ed.) child
surviving
Surviving spouse where the spouse, and
Free portion = whatever
marriage was solemnized under illegitimate
remains
articulo mortis and the deceased died ½ of the children
within 3 months from the time of hereditary NOTE: The share of the surviving
marriage but the parties have been estate (Free spouse shall have preference over those
living as husband and wife for portion = ½) of the illegitimate children whose share
more than 5 years prior to the may suffer reduction pro rata because
marriage. there is no preference as among
themselves.
PRIMARY HEIRS CONCUR WITH CONCURRING Legitimate children = ½ of the
COMPULSORY HEIRS (2005, 2010 BAR) hereditary
estate in equal
Legitimate child = ½ of the portions
hereditary estate Surviving spouse = a share equal to that
One
legitimate of each legitimate
Surviving spouse = ¼ of the child
child and the
hereditary Illegitimate children = ½ of the share
surviving
estate of
spouse Two or more
each legitimate
Free portion =¼ legitimate
child
children,
Legitimate children = ½ of the surviving
Free portion = whatever
hereditary spouse and
Two or more remains
estatein illegitimate
legitimate
equal portions children
children and NOTE: The share of the surviving
the spouse shall have preference over those
Surviving spouse = a share equal to
surviving of the illegitimate children whose share
that of each child
spouse may suffer reduction pro rata because
there is no preference as among
Free portion = whatever remains
themselves.

440
 Succession
Legitimate children = ½ of the Parents = excluded
hereditary
estate Children = ½ if legitimate
in equal and ½ of the
portions Parents and children share of each
Two or more
of the Illegitimate legitimate child
legitimate
Surviving spouse = a share equal to Decedent if illegitimate
children,
that of each children
surviving
legitimate child
spouse, and
Free portion = whatever
illegitimate
Illegitimate children = ½ of the share remains
children
of
each legitimate Parents = ¼ of the
child hereditary estate
Parents and surviving
spouse of the Surviving spouse = ¼ of the
Illegitimate Decedent hereditary estate

Free portion =½
CONCURRENCE AMONG CONCURRING COMPULSORY
HEIRS
Legitime of Illegitimate Children
Surviving spouse = 1/3 of the
Surviving hereditary The legitime of each illegitimate child shall consist of one-
spouse and estate half of the legitime of a legitimate child (FC, Art. 176, 2nd
illegitimate sentence).
children Illegitimate children = 1/3 of the
hereditary estate (Rabuya, 2009). The legitime of the illegitimate children shall be taken
from the portion of the estate at the free disposal of the
testator, provided:
1. the total legitime of the illegitimate children shall not
SECONDARY HEIRS CONCUR WITH COMPULSORY exceed the free portion.
HEIRS 2. the legitime of the surviving spouse must be first fully
satisfied (NCC, Art. 895)
Legitimate parents = ½ of the
hereditary
COMPULSORY HEIRS
estate
Legitimate parents
The following are Compulsory Heirs (2003, 2005,
and surviving spouse Surviving spouse = ¼ of the
2006, 2008 BAR)
(1999 BAR) hereditary
1. Legitimate children and descendants, with respect to
estate
their legitimate parents and ascendants;
2. In default of the foregoing, legitimate parents and
Free portion =¼
ascendants, with respect to their legitimate children
Legitimate parents = ½ of the and descendants;
3. The widow or widower;
hereditary 4. Acknowledged natural children, and natural children
Legitimate parents estate by legal fiction;
and illegitimate 5. Other illegitimate children referred to in Article 287.
children Illegitimate children = ¼ of the
hereditary estate in equal shares Compulsory heirs mentioned in Nos. 3, 4, and 5 are not
excluded by those in Nos. 1 and 2; neither do they exclude
Free portion =¼ one another.

Legitimate parents = ½ of the In all cases of illegitimate children, their filiation must be
hereditary estate duly proved.

Illegitimate children = ¼ of the The father or mother of illegitimate children of the three
Legitimate parents, hereditary estate classes mentioned shall inherit from them in the manner
surviving spouse, and in equal shares and to the extent established by this Code (NCC, Art. 887).
illegitimate children
Surviving spouse = 1/8 of the Classifications of Compulsory Heirs
hereditary estate
1. Primary – They are not excluded by the presence of
Free portion = 1/8 other compulsory heirs and have precedence over
and exclude other compulsory heirs. E.g. legitimate
children and / or descendants.

441
 Civil Law
2. Secondary – Those who succeed only in default of without need of any additional act on the part of either the
the primary compulsory heirs. E.g. legitimate child or the parents.
parents and/ or legitimate ascendants; illegitimate
parents. Children conceived and born outside of wedlock of
3. Concurring – Those who succeed together with the parents who, at the time of the conception of the former,
primary or secondary compulsory heirs. E.g. were not disqualified by any impediment to marry each
Surviving spouse and illegitimate children and other, or were so disqualified only because either or both
descendants. of them were below eighteen (18) years of age, may be
legitimated (FC, Art. 177 as amended by R.A. 9858). For
Table of Compulsory Heirs purposes of succession, the opening of succession must
happen after the effectivity of R.A. 9858; otherwise, the
PRIMARY COMPULSORY SECONDARY child will be considered as illegitimate.
HEIRS COMPULSORY HEIRS
(1) Legitimate and their (4) Legitimate parents NOTE: Under the Family Code, there is no more
descendants; and ascendants; NOTE: distinction between acknowledged natural children and
Inherit only in default of illegitimate children. They are all considered as
(2)Surviving No. (1); illegitimate.
Spouse(Legitimate);
(5) Illegitimate Parents Compulsory heirs of a person who is illegitimate:
(3)Illegitimate Children (no other descandants)
and their descendants; 1. Legitimate children and descendants;
NOTE: They inherit only 2. Illegitimate children and descendants;
in default of Nos. (1) and 3. In default of the foregoing, parents only;
(3) 4. Surviving spouse.

Compulsory Heirs Inherit Either:
1. in their own right; or
2. by right of representation
Adopted Child is a Compulsory Heir
Legitimate children include adopted children and
legitimated children.
Under R.A. 8552 or the Domestic Adoption Law,
adopted children have the same rights granted to the
legitimate children. Adopted children, for all intents and
purposes are considered as legitimate children. The
relationship, however, does not extend to other relatives
of the adopter, thus, disqualifying the adopted from
directly inheriting from the adopter’s ascendants.
Since the adopted child enjoys successional rights as a
legitimate child, then he excludes the adopter’s parents
and ascendants.
Formal or judicial adoption is necessary before the
adopted child can inherit from the adopter because
adoption is a juridical act, a proceeding in rem, which
creates between two persons a relationship similar to that
which results from legitimate paternity and filiation.
Without the benefit of formal (judicial) adoption, the
adopted child is neither a compulsory nor a legal heir.
Hence, he is not entitled to inherit.
Rule on Legitimated Children
Parents and ascendants are secondary compulsory heirs.
They inherit in default of legitimate children and
descendants.
GR: The presence of the illegitimate children of the
decedent DOES NOT exclude parents and
ascendants.Parents and ascendants concur with the
illegitimate children of the decedent.
XPN: If the decedent is illegitimate, his illegitimate
children exclude the illegitimate parents and
ascendants.
Common law spouse NOT a compulsory heir
A common law spouse CANNOT be a compulsory heir.
There must be a valid marriage between the decedent and
the surviving spouse. If the marriage is null and void, the
surviving spouse cannot inherit.
Surviving spouse NOT a compulsory heir of her
parent-in-law
Neither is a widow (surviving spouse) a compulsory heir
of her parent-in-law in accordance with the provisions of
Article 887 of the Civil Code.—The aforesaid provision of
law refers to the estate of the deceased spouse in which
case the surviving spouse (widow or widower) is a
compulsory heir. It does not apply to the estate of a parent
in law. Indeed, the surviving spouse is considered a third
person as regards the estate of the parent-in-law (Rosales
vs. Rosales Rosales vs. Rosales, GR No. L-40789 February 27,
1987).

Prior to the marriage of the parents of the child, he is an Q : Ramon Mayaman died intestate, leaving a net
illegitimate child since he is born outside a valid marriage. estate of P10, 000, 000.00. Determine how much each
heir will receive from the estate :
Legitimation takes place upon the marriage of the child’s
parents, the marriage being valid or at least voidable, the
child is automatically raised to the status of legitimacy,

442
 Succession
(a) If Ramon is survived by his wife, three full-blood
brothers, two half-brothers, and one nephew (the
son of a deceased full-blooad brother) ? Explain.
A : Having died intestate, the estate of Ramon shall be
inherited by his wife and his full and half blood siblings or
their respective representatives. In intestacy, if the wife
concurs with no one but the sibling of the husband, all of
them are the intestate heirs of the deceased husband. The
wife will receive half of the intestate estate, while the
siblings or their respective representatives, will inherit
the other half to be divided among them equally. If some
siblings are of the full-blood and the others of the half-
blood, a half blood sibling will receive half of the share of
a full-blood sibling.
1. The wife of Ramon will, therefore, receive one half of
the estate or the amount of P5, 000, 000.00;
2. The three (3) full-blood brothers, will, therefore,
receive P1, 000, 000.00 each;
3. The nephew will receive P1, 000, 000.00 by right of
representation;
4. The two (2) half-brothers will receive P500, 000.00
each.
(b) If Ramon is survived by his wife, a half-sister, and
three nephews (sons of a deceased full-blood
brother) ? Explain. (2009 BAR)
A : The wife will receive one half of the estate or P5, 000,
000.00. The other half shall be inherited by (1) the full-
blood brother, represented by his 3 children, and (2) the
half-sister. They will divide that other half between them
such that the share of the half-sister is just half of the
share of the full-blood brother. The share of the full-blood
brother shall in turn be inherited by the three (3)
nephews in equal shares by right of representation.
Therefore, the three (3) nephews will receive P1, 111,
111.10 each and the half-sister will receive the sum of P1,
666, 666.60 (UPLC pg. 39).
Q : Emil, the testator, has three legitimate children.
Tom, Henry and Warlito ; a wife named Adette ;
parents named Pepe and Pilar ; an illegitimate child,
Ramon ; brother, Mark ; and a sister, Nanette. Since
his wife Adette is well-off, he wants to leave to his
illegitimate child as much of his estate as he can
legally do. His estate has an aggregate net amount of
P1, 200, 000.00, and all the above-named relatives are
still living. Emil now comes to you for advice in
making a will. How will you distribute his estate
according to his wishes without violating the law on
testamentary succession ? (2005 BAR)
A : In his will, Emil should give his compulsory heirs just
their respective legitimes and give all of the free portion
to his illegitimate child in addition to the said child’s
legitime. He should divide his estate in his will as follows :
Tom – P200, 000 (legitime)
Henry – P200, 000 (legitime)
Warlito – P200, 000 (legitime)
Adette – P200, 000 (legitime)
Ramon – P400, 000 (P100, 000 as legitime and P300, 000
as free portion) (UPLC, pg. 139).
443
RESERVA TRONCAL
Reserva Troncal
The ascendant who inherits from his descendant any
property which the latter may have acquired by
gratuitous title from another ascendant, or a brother or
sister, is obliged to reserve such property 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 said property came (NCC, Art. 891).
Purposes:
1. To prevent persons who are outsiders to the family
from acquiring, by chance or accident, property
which otherwise would have remained with the said
family.
2. To put back the property to the line from which it
originally came.
3. To keep the property within the family to which such
property belongs (Velayo Bernardo v. Siojo, G.R. No. L-
36078, March 11, 1933).
Requisites that must exist in order that a property
may be impressed with a reservable character
1. That the property was acquired by a descendant
(called “praepositus” or propositus) from an
ascendant or from a brother or sister by gratuitous
title when the recipient does not give anything in
return;
2. That said descendant (praepositus) died without an
issue;
3. That the same property (called “reserva”) is inherited
by another ascendant (called “reservista”) by
operation of law (either through intestate or
compulsory succession) from the praepositus; and
4. That there are living relatives within the third degree
counted from the praepositus and belonging to the
same line from where the property originally came
(called “reservatarios”) (NCC, Art. 891; Chua v. CFI of
Negros Occidental, G.R. No. L-29901, August 31, 1977;
Rabuya, 2009).
Graphical Example of Art. 891 of NCC
Before his death in 1950, GF donated a parcel of land to
his grandson, P, the only child of his deceased son, F. P
died intestate in 1960 without any heir in the direct
descending line, as a consequence of which the land
passed to his mother, M, in accordance with the laws of
intestate succession. Is the property reservable? It is
evident that the property in this particular case is
reservable, because all of the requisites for reservation
are present. In the first place, M, who is the ascendant
 Civil Law
reservista, had acquired the property by operation of law
from her descendant, P; in the second place, P, who is the
descendant-propositus, had previously acquired the
property by gratuitous title from another ascendant, his
grandfather, GF, who is the origin of the said property;
and in the third place, the descendant had died without
any legitimate issue in the direct descending line who
could inherit from him. Consequently, from the time of the
death of the descendant-propositus, P, in 1960, the
ascendant, M, who acquired the property, is obliged to
reserve it for the benefit of relatives of the propositus who
are within the third degree and who belong to the line
from which the said property came. This reservable
character of the property will, as a rule, terminate upon
the death of the ascendant-reservista. Thus, if we extend
the example by presupposing that M died in 1977, A and
B, uncles of the propositus, P, in the paternal line, can claim
the property as their own in accordance with the
provision of Art. 891 of the Code (Jurado, 2009).
Reserva troncal DOES NOT exist in an illegitimate or
adoptive relationship. It only exists in the legitimate
family (Centeno v. Centeno, G.R. No. 28265, November 5,
1928; id, p. 635).
Causes for the extinguishment of the reserva (LD2R2
P)
1. Death of the reservista
2. Death of all the relatives within the third degree
prior to the death of the reservista
3. Accidental Loss of all the reservable properties
4. Renunciation or waiver by the reservatarios
5. Registration under Act 496 without the reservable
character being annotated if it falls into the hands of
a buyer in good faith for value
6. By Prescription – reservista seeks to acquire (30 years
– immovable; 8 years- movable)
Reserva Minima distinguished from Reserva Maxima
RESERVA MINIMA RESERVA MAXIMA
All of the properties which
the descendant had All of the properties which
previously acquired by the descendant had
gratuitous title from another previously acquired by
ascendant or from a brother gratuitous title from
or sister must be considered another ascendant or from
as passing to the ascendant- a brother or sister must be
reservista partly by included in the ascendants
operation of law and partly legitime insofar as such
by force of the descendant’s legitime can contain.
will.
Q: A son received from his mother P200,000 by virtue
of a will. The son had properties of his own amounting
to P400,000. When the son died without issue, he left
a will giving all his estate to his father. How much is
the reservable property?
A: Since the father’s legitime is only ½, he received the
P600,000 in two capacities: P300,000 as a compulsory
heir – and which was received therefore as a legitime or
by operation of law and P300,000 as a voluntary heir.
444
According to the theory of reserva minima, the reservable
property is only P 100,000on the theory that half of the
P200,000 received from the origin (mother in this case)
was given to the father as his legitime or by operation of
law. Therefore, the reservable property is only P100,000
(Paras, 2008).
NOTE: According to Manresa, in view of the silence of the
law on the matter, the principle of reserve minima should
be followed. This seems also the opinion of Scaevola
(Paras, 2008).
---
Q: Esteban and Martha had four (4) children: Rolando,
Jun, Mark, and Hector. Rolando had a daughter, Edith,
while Mark had a son, Philip. After the death of
Esteban and Martha, their three (3) parcels of land
were adjudicated to Jun. After the death of Jun, the
properties passed to his surviving spouse Anita, and
son Cesar. When Anita died, her share went to her son
Cesar. Ten (10) years after, Cesar died intestate
without any issue. Peachy, Anita’s sister, adjudicated
to herself the properties as the only surviving heir of
Anita and Cesar. Edith and Philip would like to
recover the properties claiming that they should have
been reserved by Peachy in their behalf and must now
revert back to them.
Is the contention of Edith and Philip valid? (2014
BAR)
A: NO, the contention is not valid. The property
adjudicated to Jun from the estate of his parents which he
in turn left to Anita and Cesar is not subject to reservation
in favor of Edith and Philip. In Mendoza et. al. v. Policarpio,
et. al. (G.R. NO. 176422, March 20, 2013) the court ruled
that lineal character of the reservable property is
reckoned from the ascendant from whom the propositus
received the property by gratuitous title. The ownership
should be reckoned only from Jun, as he is the ascendant
from where the first transmission occurred or from whom
Cesar inherited the properties. Moreover, Article 891
provides that the person obliged to reserve the property
should be an ascendant. Peachy is not Cesar’s ascendant
but a mere collateral relative. On the assumption that the
property is reservable, Edith and Philip being first cousins
of Cesar who is the propositus are disqualified to be
reservatarios as they are not third degree relatives of
Cesar.
---
Parties in Reserva Troncal
1. Origin
The origin of the property must be an ascendant,
brother or sister of the propositus. The transmission
from the origin to the propositus must be by
gratuitous title.
NOTE: The origin must be a legitimate relative
because reserva troncal exists only in the legitimate
family.
The origin can alienate the property. While the origin
owns the property, there is no reserva yet, and
therefore, he has the perfect right to dispose of it, in
 Succession
any way he wants, subject, however to the rule on
inofficious donations.
2. Propositus
The propositus must be a legitimate descendant or
half-brother/sister of the origin of the property.
NOTE: To give rise to reserva troncal, the propositus
must not have any legitimate child; otherwise, the
reservable property will be inherited by the latter.
The presence of illegitimate children of the
propositus will not prevent his legitimate parents or
ascendants from inheriting the reserved property.
The propositus is the descendant whose death gives
rise to the reserva troncal, and from whom therefore
the third degree is counted.
The propositus can alienate the property. While
propositus is still alive, there is no reserva yet,
therefore, he is the absolute owner of the property,
with full freedom to alienate or dispose or encumber.
NOTE: The propositus is referred to as the “arbiter of
the reserva.”
3. Reservista
The reservista is the ascendant who inherits from the
propositus by operation of law. He has the obligation
to reserve.
NOTE: The relationship between the reservista and
the propositus must be legitimate.
If he inherited the property from the propositus, not
by legal succession or by virtue of legitime, there is
no obligation to reserve.
The reservista owns the reservable property. The
reservista is an absolute or full owner, subject to a
resolutory condition. If the resolutory condition is
fulfilled, the reservista’s ownership of the property is
terminated.
Resolutory condition: If at the time of the
reservista’s death, there still exist relatives within
the third degree (reservatarios) of the propositus
and belonging to the line from which the property
came.
NOTE: The reservable property is not part of the
estate of the reservista.
The reservista can alienate the property. Unlike in
fideicommissary substitution where the fiduciary
heir cannot alienate the property because he is
merely considered a usufruct, the reservista can
alienate the property being the owner thereof but
subject to the reservation.
GR: The reservista is required to furnish a bond,
security or mortgage to guarantee the safe delivery
445
later on to the reservatarios of the properties
concerned, in the proper cases.
XPN: The bond, security or mortgage is not needed
when the property has been registered or annotated
in the certificate of title as subject to reserva troncal.
NOTE: Upon the reservista’s death the ownership of
the reserved properties is automatically vested to the
reservatarios who are alive. Hence, the reservista
cannot dispose the reserved property by will if there
are reservatarios existing at the time of his death.
4. Reservatario
The reservatarios are relatives within the third
degree of the propositus, who belong to the same line
from which the property originally came from who
will become the full owners of the property the
moment the reservista dies, because by such death,
the reserva is extinguished.
NOTE: It is further required that the reservatario
should be related by blood not only from the
propositus but also to the other descendant, or
brother, or sister, from whom the property came.
Only then can he be considered as belonging to the
“line from which the property came.”
Persons Qualified as Reservatarios
(1) First degree relatives — This can only refer to
the legitimate father or mother of the descendant-
propositus, since it is evident that when an ascendant
inherits from a descendant either as a compulsory
heir or as an intestate heir, it is because the
descendant has no legitimate descendants of his own,
or, if he has, they cannot inherit from him because of
disinheritance, incapacity or repudiation.
(2) Second degree relatives — This can only refer
to the grandparents as well as to the brothers and
sisters of the full or half blood of the descendant-
propositus belonging to the line from which the
reservable property came.
(3) Third degree relatives – This can only refer to
the greatgrandparents, uncles or aunts (brothers and
sisters of the full or half blood of the propositus’
father or mother), and nephews or nieces (children
of the propositus’ brothers or sisters of the full or half
blood) belonging to the line from which the
reservable property came (Jurado, 2009).
---
Q : Does the reserva mentioned in Art. 891 of the Civil
Code apply in favor of all the relatives within the 3rd
degree belonging to the line from which the property
came, whether they be legitimate or illegitimate ?
A : The reserva favors only the legitimate relatives (Nieva
v Alcala, G.R. No. L-13386 October 27, 1920) and even
then, preference is given to the direct line as against the
collateral lines and the rule of nearer excludes farther also
applies (Florentino v Florentino, G.R. No. L-
14856 November 15, 1919).
---
Relatives within the third degree from the propositus
 Civil Law
1. Parents;
2. Grandparents;
3. Full and half blood brothers and sisters;
4. Great grandparents,
5. Nephews and nieces.
---
Q: Placido and Dominga had four children: Antonio,
Exequiel, married to Leonor, Apolonio and Valentin.
Herein petitioners are children of Antonio, Apolonio
and Valentin. Petitioners alleged that the properties
in dispute were part of Placido and Dominga’s
properties that were subject of an oral partition and
subsequently adjudicated to Exequiel. After
Exequiel’s death, it passed on to his spouse Leonor
and only daughter, Gregoria. After Leonor’s death, her
share went to Gregoria. In 1992, Gregoria died
intestate and without issue. They claimed that after
Gregoria’s death, respondent Julia, who is Leonor’s
sister, adjudicated unto herself all these properties as
the sole surviving heir of Leonor and Gregoria. Hence,
petitioners claim that the properties should have
been reserved by respondent in their behalf and must
now revert back to them, applying Article 891 of the
Civil Code on reserva troncal. Decide.
A: The properties are not reservable in favour of the
petitioners. Reserva troncal does not apply in this case.
It should be pointed out that the ownership of the
properties should be reckoned only from Exequiel’s as he
is the ascendant from where the first transmission
occurred, or from whom Gregoria inherited the
properties in dispute. The law does not go farther than
such ascendant/brother/sister in determining the lineal
character of the property. Gregoria, on the other hand, is
the descendant who received the properties from
Exequiel by gratuitous title. It must further be
emphasized that Leonor, the mother of Gregoria,
predeceased the latter.
In reserve troncal, the reservista must be an ascendant.
In this case, the property in dispute was adjudicated to
Julia who is a collateral relative within the 3rd degree of
relationship from Gregoria.
Furthermore, even assuming that the properties are
reservable, it cannot be reserved in favour of the
petitioners because they are not qualified
reservatarios. Petitioners are not relatives within the
third degree of Gregoria from whom the properties
came. The person from whom the degree should be
reckoned is the descendant/prepositus — the one at the
end of the line from which the property came and upon
whom the property last revolved by descent. It is Gregoria
in this case. Petitioners are Gregoria’s fourth degree
relatives, being her first cousins. First cousins of the
prepositus are fourth degree relatives and are not
reservees or reservatarios (Mendoza vs. Delos Santos,
G.R. No. 176422 March 20, 2013)
---
Property Subject to Reservation
The reservation established in Art. 891of the NCC must be
the same property which the ascendant-reservista had
446
acquired by operation of law from the descendant-
propositus upon the death of the latter and which the
latter, in turn, had acquired by gratuitous title during his
lifetime from another ascendant or from a brother or
sister.
Consequently, the ascendant-reservista cannot substitute
another property for that which he is obliged by law to
reserve. This consequence is deducible not only from the
object and purpose of the reserva, but also from the
obligations imposed upon the reservista, such as the
obligation to make an inventory of all reservable property
and the obligation to annotate in the Registry of Property
the reservable character of all reservable immovable
property (Jurado, 2009).
XPN : There would have to be substitution of the
reservable property through unavoidable necessity, such
as when the property is consumable, or when it is lost or
destroyed through the fault of the reservista, or when it
has deteriorated through the same cause, or when it has
been alienated. In such cases, the remedy of the
reservatarios or persons entitled to the reservable
property would be to recover the value of the property or
to seek the ownership and return thereof depending upon
the circumstances of each particular case. These remedies
are available regardless of whether or not the required
inventory has been made and the mortgage has been
constituted, although undoubtedly, restitution or
recovery would be rendered much more difficult or even
impossible if these requirements are not complied with.
(Jurado, 2009)
NOTE: If the reservista has no cash when he dies, and the
reservable property is money the reserves can either:
1) select equivalent property from the estate; or
2) demand the sale of sufficient property so that cash may
be obtained (Paras, 2016).
Requisites for passing of title to the reservatarios
1. Death of the reservista; and
2. The fact that the reservatarios survived the
reservista.
The reservatario acquires the right over the reservable
propertyupon the death of the reservista. The
reservatario nearest the decedent propositus becomes,
automatically and by operation of law, the absolute owner
of the reservable property (Cano v. Director of Lands, G.R.
No. L-10701, January 16, 1959).
There is right of representation in reserva troncal but the
representative must also be within the third degree from
the propositus (Florentino v. Florentino, G.R. No. 14856,
November 15, 1919).
NOTE: The reservatarios inherit the property from the
propositus, not from the reservista.
Reserva troncal is governed by the following rules on
intestate succession: (Applicable when there are
concurring relatives within the third degree)
1. Proximity - “The nearer excludes the farther”
 Succession
2. “The direct line is preferred over the collateral line” b. When the heir by fraud, violence, intimidation,
3. “The descending line is preferred over the ascending or undue influence causes the testator to make a
line” will or to change one already made.
c. When the heir has accused the testator of a
DISINHERITANCE crime for which the law prescribes
imprisonment of six years or more, if the
Disinheritance is the process or act, thru a testamentary accusation has been found groundless.
disposition of depriving a compulsory heir of his legitime d. Refusal without justifiable cause to support the
for causes expressly stated by law (NCC, Art. 915). testator who disinherits such heir.

The only way in which a compulsory heir can be deprived 2. Peculiar Causes for Disinheritance
of his legitime is through valid disinheritance. It can be
effected only through a will wherein the legal cause a. Children and Descendants:
therefor shall be specified (NCC, Art. 916). i. Conviction of a crime which carries with it a
penalty of civil interdiction
Disinheritance is not automatic ii. Maltreatment of the testator by word or deed by
the children or descendant
There must be evidence presented to substantiate the iii. When the children or descendant has been
disinheritance and must be for a valid and sound cause. convicted of adultery or concubinage with the
spouse of the testator
Burden of Proof iv. When the children or descendant leads a
dishonorable or disgraceful life
The burden of proving the truth of the cause for
disinheritance shall rest upon the other heirs of the b. Parents or Ascendants:
testator, if the disinherited heir should deny it (NCC, Art. i. When the parent or ascendant has been
917). convicted of adultery or concubinage with the
spouse of the testator
Effect of disinheritance ii. When the parents have abandoned their
children or induced their daughters to live a
Total exclusion to the inheritance, means loss of the corrupt or immoral life, or attempted against
legitime, right to intestate succession and of any their virtue
disposition in a prior will. iii. Loss of parental authority for causes specified in
the Code
Disinheritance, however, is without prejudice to the right iv. Attempt by one of the parents against the life of
of representation of the children and descendants of the the other, unless there has been reconciliation
person disinherited. between them

But the disinherited parent shall not have the usufruct or c. Spouse:
administration of the property which constitutes the i. When the spouse has given cause for legal
legitime. separation
ii. When the spouse has given grounds for the loss
NOTE: Parents no longer enjoy the right of usufruct over of parental authority
the properties of their children under the Family Code.
Reconciliation exists when two persons who are at odds
Requisites of a Valid Disinheritance decide to set aside their differences and to resume their
relations. They need not go back to their old relation.
1. Made in a valid will
2. Identity of the heir is clearly established In order to be effective, the testator must pardon the
3. For a legal cause disinherited heir. The pardon whether express or tacit,
4. Expressly made must refer specifically to the heir disinherited and to the
5. Cause stated in the will acts he has committed, and must be accepted by such heir.
6. Absolute or unconditional
7. Total In disinheritance, reconciliation need not be in writing.
8. Cause must be true and if challenged by the heir, it
must be proved to be true. Right of representation in case of disinheritance

Grounds for Disinheritance The causes of disinheritance are personal to the

1. Common causes for disinheritance of children or
descendants, parents or ascendants, and spouse:
a. When the heir has been found guilty of an
attempt against the life of the testator, his/her
descendants or ascendants, and spouse, in case
of children or parents.
disinherited heir. Hence, in case of valid disinheritance,
only the disinherited heir is deprived of his right to the
legitime. But the children or descendants of the
disinherited heir can take his place and preserve the
disinherited heir’s share to the legitime.
Effect of Disinheritance without cause

447
 Civil Law
Disinheritance without a specification of the cause, or for
a cause the truth of which, if contradicted, is not proved,
or which is not one of those set forth in this Code, shall
annul the institution of heirs insofar as it may prejudice
the person disinherited; but the devises and legacies and
other testamentary dispositions shall be valid to such
extent as will not impair the legitime (NCC, Art. 918).
LEGACIES AND DEVISES
A legacy of credit takes place when the testator
bequeaths to another a credit against a third person. In
effect, it is a novation of the credit by the subrogation of
the legatee in the place of the original creditor.
A legacy of remission is a testamentary disposition of a
debt in favor of the debtor. The legacy is valid only to the
extent of the amount of the credit existing at the time of
the testator's death. In effect, the debt is extinguished.

All things and rights which are within the commerce of A legacy or devise is NOT considered payment of a debt if
man may be bequeathed or devised (NCC, Art. 924). the testator has a standing indebtedness to the legatee or
devisee.Because if it is, then it would be a useless legacy
Testator can bequeath or devise a thing or property or devise since it will really be paid.
belonging to someone else
Order of Payment of Legacies and Devises
It occurs when:
1. The testator thought that he owned it 1. Remuneratory legacies or devises
2. Legacies or devises declared by testator to be
GR: A legacy or devise of a thing belonging to preferential
someone else when the testator thought that he 3. Legacies for support
owned it is a void legacy or devise because it is 4. Legacies for education
vitiated by mistake. 5. Legacies or devises of a specific determinate thing
which forms part of the estate
XPN: If the testator acquires it after making his will. 6. All others pro rata

2. The testator knows that he does not own but ordered NOTE: The order of preference abovementioned is
its acquisition applicable when:
1. There are no compulsory heirs and the entire estate
If the thing given as devise or legacy is not owned by is distributed by the testator as legacy/devise; or
the testator at the time he made the will but he orders 2. There are compulsory heirs but their legitimes have
his estate to acquire it, it is a valid legacy or devise. already been provided for by the testator and there
The testator knew that he did not own it. There is no are no donations inter vivos.
mistake.
Distinction between Art. 911 and Art. 950 of NCC
If the thing or property bequeathed or devised belonged
to the legatee or devisee at the time the will was executed,
ORDER OF
the legacy or devise is ineffective even if the legatee or ORDER OF PREFERENCE
PREFERENCE UNDER
devisee alienates the thing after the will is made. UNDER ART. 950
ART. 911
Suppose the legatee or devisee acquired the property 1. Remuneratory legacies
after the will has been executed LDPO: or devises;
1. Legitime of 2. Preferential legacies or
1. If he acquired it by gratuitous title, then the legacy or compulsory heirs; devises;
devise is void. 2. Donations inter 3. Legacy for support;
vivos; 4. Legacy for education;
Reason: The purpose of the testator that the 3. Preferential legacies 5. Legacies or devises of a
property would go to the devisee or legatee has or devises; specific, determinate
already been accomplished with no expense to the 4. All Other legacies or thing which forms a part
legatee or devisee. devises pro rata of the estate;
6. All others pro rata
2. If he acquired it by onerous title, the legacy or devise
is valid and the estate may be required to reimburse
the amount. NOTE: When the question of reduction is between and
among legatees and devisees themselves, Art. 950 of the
Suppose the property bequeathed or devised has NCC shall govern; but when there is a conflict between
been pledged or mortgaged compulsory heirs and legatees/devisees, Art. 911 of the
NCC shall govern.
GR: The pledge or mortgage must be paid by the estate.
Grounds for the revocation of legacy or devise
XPN: If the testator provides otherwise. However, any
other charge such as easements and usufruct, with 1. Transformation of the thing in such a manner that it
which the thing bequeathed is burdened, shall be does not retain either the form or the denomination
respected by the legatee or devisee. it had.

2. Alienation of the thing bequeathed.

448
 Succession
Rules on Exclusion and Concurrence in Intestate
GR: The alienation of the property revokes the legacy Succession
or devise notwithstanding the nullity of the
transaction. However, if the nullity is based on 1. Legitimate children
vitiated consent, the legacy or devise is not revoked a. Exclude parents, collaterals and State
because there was no intention to revoke (Fernandez b. Concur with surviving spouse and illegitimate
v. Dimagiba, G.R. No. L-23638, 1967). children
c. Excluded by no one
XPN: If the sale is pacto de retro and the testator
reacquired it during his lifetime. 2. Illegitimate children
a. Exclude illegitimate parents, collaterals and
3. Total loss of the thing bequeathed. State
b. Concur with surviving spouse, legitimate
The loss of the thing bequeathed must not be children, and legitimate parents
attributed to the heirs. c. Excluded by no one

4. If the legacy is a credit against a third person or the 3. Legitimate parents

remission of a debt, and the testator, subsequent to a. Exclude collaterals and the State
the making of the will, brings an action against the b. Concur with illegitimate children and surviving
debtor for payment. spouse
c. Excluded by legitimate children

LEGAL OR INTESTATE SUCCESSION 4. Illegitimate parents

a. Exclude collaterals and State
Legal or intestate succession is that which is effected by b. Concur with surviving spouse
operation of law in default of a will. c. Excluded by legitimate children and illegitimate
children
It is legal because it takes place by operation of law; it is
intestate because it takes place in the absence or in default 5. Surviving spouse
of a last will of the decedent. a. Excludes collaterals other than brothers, sister,
nephews and nieces, and State
Application of inheritance b. Concurs with legitimate children, illegitimate
children, legitimate parents, illegitimate
The following are applied successively (ISRAI): parents, brothers, sisters, nephews and nieces
1. Institution of an heir (Bequest, in case of legacies or c. Excluded by no one
devises)
2. Substitution, if proper 6. Brothers and Sister, nephews and nieces
3. Representation, if applicable a. Exclude all other collaterals and the State
4. Accretion, if applicable b. Concur with surviving spouse
5. Intestacy, if all of the above are not applicable c. Excluded by legitimate children, illegitimate
children, legitimate parents and illegitimate
Legal or Intestate succession takes place when: parents

1. There is no will; the will is void, or the will is revoked; 7. Other collaterals
2. The will does not dispose all the property of the a. Exclude collaterals in remoter degrees and the
testator (partial intestacy); State
3. The suspensive condition attached to the inheritance b. Concur with collaterals in the same degree
is not fulfilled; c. Excluded by legitimate children, illegitimate
4. The heir predeceased the testator or repudiates the children, legitimate parents, illegitimate
inheritance and no substitution and no right of parents, surviving spouse, brothers and sisters,
accretion take place. and nephews and nieces
5. The heir instituted is incapacitated to succeed.
8. State
NOTE: The enumeration is not exclusive; there are other a. Excludes no one
causes for intestacy which are not included in the b. Concurs with no one
enumeration. c. Excluded by everyone
Example: (Balane, 2010)
1. Preterition;
2. Arrival of the resolutory term or period; ORDER OF INTESTATE SUCCESSION
3. Fulfillment of a resolutory condition attached to the
inheritance; Order of Preference between lines in legal or
4. Non-compliance or impossibility of complying with intestate succession
the will of the testator.
FIRST, succession takes place in the direct descending line;
SECOND, in the direct ascending line; and

449
 Civil Law
FINALLY, in the collateral line. assets registered in their names as co-owners.
Unfortunately, Bert died of cardiac arrest, leaving no
Order of intestate succession to a legitimate child will. Bert was survived by his biological siblings, Joe,
and the boy.
In general, and without prejudice to the concurrent right
of other heirs in proper cases, the order of intestate Q: What are the successional rights of the boy Bert Joe
succession to a legitimate child is as follows: and raised as their son? (2015 BAR)
1. legitimate children and descendants;
2. legitimate parents and ascendants; A : Neither of the two will inherit from Bert. Joe cannot
3. illegitimate children; inherit because the law does not recognize the right of a
4. the surviving spouse; stranger to inherit from the decedent in the absence of a
5. collaterals up to the fifth degree; and will. Their cohabitation will not vest Joe with the right to
6. State (Rabuya, 2009) inherit from Bert. The child will likewise not inherit from
Bert because of the lack of formal adoption of the child. A
Order of intestate succession to an illegitimate child mere ward or “ampon” has no right to inherit from the
adopting parents (Manuel v. Ferrer, G.R. No. 117246,
1. The legitimate children and descendants of a person August 21, 1995).
who is an illegitimate child are preferred over other ---
intestate heirs, without prejudice to the right of TABLE OF INTESTATE SHARES
concurrence of illegitimate children and the
surviving spouse. Legitimate Children The whole estate divided
2. In the absence of legitimate children and
alone equally
descendants, the illegitimate children (of the
illegitimate child) and their descendants succeed to Legitimate children The whole estate, each
the entire estate, without prejudice to the concurrent and Illegitimate illegitimate child getting ½
right of the surviving spouse. children share of one legitimate child
3. In the absence of children and descendants, whether
legitimate or illegitimate, the third in the order of The whole estate, divided
succession to the estate of the illegitimate child is his Legitimate children equally (the surviving spouse
illegitimate parents. If both parents survive and are and surviving spouse counted as one legitimate
entitled to succeed, they divide the estate share and child)
share alike. Although the law is silent, if the surviving
spouse of the illegitimate child concurs with the The whole estate, the
illegitimate parents, the surviving spouse shall be surviving spouse being
Legitimate Children,
entitled to one-half of the estate while the illegitimate counted as one legitimate
surviving spouse and
parents get the other half. child and each illegitimate
illegitimate children
child getting ½ share of one
NOTE: In the ascending line, only the illegitimate legitimate child
parents are entitled to inherit from the illegitimate
child; the other illegitimate descendants are not so Legitimate parents The whole estate, divided
entitled. alone equally

Legitimate ascendants The whole estate, observing in

4. In default of children or descendants, legitimate or
(other than parents) proper cases, the rule of
illegitimate, and illegitimate parents, the surviving
alone division by line
spouse shall inherit the entire estate. But if the
surviving spouse should survive with brothers and Legitimate parents = ½ of the
sisters, nephews and nieces, the surviving spouse Legitimate parents
estate
shall inherit one-half of the estate, and the latter the and illegitimate
Illegitimate children = ½ of
other half. The brothers and sisters must be by children
the estate
illegitimate filiation; otherwise, the Iron Curtain Rule
shall apply. Legitimate parents = ½ of the
5. Although the law is silent, illegitimate brothers and Legitimate parents estate
sisters who survive alone shall get the entire and surviving spouse Surviving spouse = ½ of the
inheritance. The legitimate children of the estate
illegitimate parents are not entitled to inherit from
the illegitimate child by virtue of Article 992 of the Legitimate parents = ½ of the
NCC. estate
Legitimate parents,
6. The State. (id., pp. 691-692) Surviving spouse = ¼ of the
surviving spouse and
--- estate
illegitimate children
Q: Bert and Joe, both male and single, lived together Illegitimate children = ¼ of
as common law spouses and agreed to raise a son of the estate
Bert's living brother as their child without legally
adopting him. Bert worked while Joe took care of Illegitimate children The whole estate, divided
their home and the boy. In their 20 years of alone equally
cohabitation they were able to acquire real estate

450
 Succession
Illegitimate children = ½ of
Illegitimate children the estate
and surviving spouse Surviving spouse = ½ of the
estate
Surviving spouse
The whole estate
alone
No article governing, but Art.
997 may be applied by
analogy, thus:
Surviving spouse and
Surviving spouse = ½ of the
illegitimate parents
estate
Illegitimate parents = ½ of the
estate
Surviving spouse = ½ of the
estate
Surviving spouse and Legitimate brothers, sisters,
legitimate brothers nephews, nieces = ½ of the
and sisters, nephews estate (the nephews and
and nieces nieces inheriting by
representation in proper
cases)
Surviving spouse = ½ of the
estate
Illegitimate brothers, sisters,
nephews and nieces = ½ of
the estate (the nephews and
nieces inheriting by
representation in proper
cases)
Surviving spouse and
illegitimate brothers NOTE: When the law speaks
and sisters, nephews of brothers and sisters,
and nieces nephews and nieces as legal
heirs of an illegitimate child, it
refers to illegitimate brothers
and sisters as well as to the
children, whether legitimate
or illegitimate, of such
brothers and sisters. (Manuel
v. Ferrer, G.R. No. 117246,
August 21, 1995)
Illegitimate parents
The whole estate
alone
Illegitimate parents =excluded
Children
a. Child alone (legitimate or
Illegitimate parents
illegitimate) = whole estate
and children of any
b. Legitimate and illegitimate
kind
children = each illegitimate
gets ½ share of one legitimate
child
The whole estate, with a
brother/sister of the half-
Legitimate brothers
blood inheriting ½ the share
and sister alone
of a brother/sister of the full
blood
451
The whole estate, observing
the 2:1 proportion of full and
Legitimate brothers
half-blood fraternity and the
and sisters, nephews
nephews and nieces
and nieces
inheriting by representation
in the proper cases
Uncles and Aunts = excluded
Nephews and nieces = whole
Nephews and nieces
estate per capita, but
with Uncles and aunts
observing the 2:1 proportion
for the full and half blood
The whole estate, observing
Illegitimate brothers
the 2:1 proportion of full and
and sisters alone
half-blood fraternity
No article governing, but Arts.
Illegitimate brothers,
1005 and 1008 may be
sisters, nephews and
applied by analogy, hence,
nieces
they acquire the whole estate
The whole estate per capita,
Nephews and nieces but observing the 2:1
alone proportion for the full and
half blood
The whole estate, per capita,
Other collaterals the nearer in degree excluding
the more remote
The whole estate
Assignment and disposition
1. If decedent was a resident
of the Philippines at any time:
a. Personal property – to
municipality of last
residence
b. Real property – where
situated
2. If decedent was never a
resident of the Philippines
Personal and real property –
State where respectively situated
How property is to be used:
1. For the benefit of public
educational and charitable
institutions in the respective
municipalities/cities
2. Alternatively, at the
instance of an interested
party, or motu propio, court
may order creation of a
permanent trust for the
benefit of the institutions
concerned
RIGHT OF REPRESENTATION
 Civil Law
Representation is a right created by fiction of law, by
virtue of which the representative is raised to the place
and degree of the person represented, and acquires the
rights which the latter would have if he were living or
could have inherited (NCC, Art. 970).
In order that representation may take place, it is
necessary that the representative himself be capable of
succeeding the decedent (NCC, Art. 973).
Effect of Representation
Whenever there is succession by representation, the
division of the estate shall be made per stirpes, in such
manner that the representative or representatives shall
not inherit more than what the person they represent
would inherit, if he were living or could inherit (NCC, Art.
974).
NOTE: Per stirpes means inheritance by group, all those
within the group inheriting in equal shares.
Right of representation arise either because of:
1. Predecease
2. Incapacity
3. Disinheritance
When Right of Representation is NOT AVAILABLE:
1. As to compulsory heirs: In case of repudiation, the one
who repudiates his inheritance cannot be
represented. Their own heirs inherit in their own
right.
2. As to voluntary heirs: Voluntary heirs, legatees and
devisees who either:
a. Predecease the testator, or
b. Renounce the inheritance cannot be represented
by their own heirs, with respect to their supposed
inheritance.
In representation, the representative does NOT inherit
from the person represented but from the decedent.
The right of representation takes place in the direct
descending line, but never in the ascending.
In the collateral line, it takes place only in favor of the
children of brothers or sisters, whether they are full or
half blood (NCC, Art. 972).
NOTE: This rule applies only when the decedent does not
have descendants. Also, an illegitimate child can
represent his father, provided that the father was also
illegitimate.
An illegitimate sibling of the decedent can be represented.
An illegitimate brother or sister of the deceased can be
represented by his children, without prejudice to the
application of the Iron Curtain Rule (Tolentino, Civil Code,
1992 ed., p. 451)
The right of representation does NOT apply to adopted
children. The right of representation cannot be invoked
452
by adopted children because they cannot represent their
adopting parents to the inheritance of the latter’s parents.
Reason: The law does not create any relationship
between the adopted child and the relatives of the
adopting parents, not even to the biological or legitimate
children of the adopting parents.
NOTE: Under R.A. 8552 or the Domestic Adoption Law,
the adopted child and the adopting parents have
reciprocal successional rights.
Rule on Equal Division of Lines
GR: Intestate heirs equal in degree inherit in equal
shares.
XPNs:
a. In the ascending line, the rule of division by line is ½
to the maternal line and ½ to the paternal line, and
within each line, the division is per capita.
b. In the collateral line, the full-blood brothers/sisters
will get double that of the half-blood.
c. The division in representation, where division is per
stirpes – the representative divide only the share
pertaining to the person represented.
NOTE: Compulsory heirs shall, in no case, inherit ab
intestato less than their legitimes as provided in
testamentary succession.
When Children of One or More Brothers or Sisters of
the Deceased Survived
1. When children of one or more brothers or sisters of
the deceased survive, they shall inherit from the latter
by representation, if they survive with their uncles or
aunts.
2. But if they alone survive, they shall inherit in equal
portions (division not per stirpes) (NCC, Art. 975).
IRON CURTAIN RULE
An illegitimate child has no right to inherit ab intestato
from the legitimate children and relatives of his father or
mother; nor shall such children or relatives inherit in the
same manner from the illegitimate child (NCC, Art. 992)
RATIO: There is a barrier recognized by law between the
legitimate relatives and the illegitimate child so that one
cannot inherit from the other.
NOTE: The iron curtain rule only applies in intestate
succession.
Application of iron curtain rule and right of
representation distinguished
RIGHT OF
IRON CURTAIN RULE
REPRESENTATION
 Succession
Right created by fiction of NOTE: Iron curtain rule
Prohibits absolutely a
law where the imposes a limitation on
succession ab intestato
representative is raised to right of representation.
between the illegitimate
the place and degree of
child and the legitimate
the person represented,
children and relatives of
and acquires the rights
the father or mother of
which the latter would Applies only in intestate Applies to both intestate
said illegitimate child.
have if he were living or succession and testate succession
could have inherited.

Right of Representation and Iron Curtain Rule

If the child to be represented is (D)† If the child to be represented is

If the child to be represented is LEGITIMATE
LEGITIMATE- only legitimate If ILLEGITIMATE- bothislegitimate
the child to be represented ILLEGITIMATE
– only legitimate children/ descendants can – both legitimate & illegitimate children/
children/
represent him descendants can & illegitimate children/
descendants can represent him
represent him descendants can represent him

Legit X† Illegit Y†
Predeceased D Predeceased D

legit illegit legit illegit

(X1) (X2) (Y2) (Y1)

Iron Curtain Rule applies

Since X and Y both predeceased D, only X1 can represent X. X2 cannot by virtue of the iron curtain rule. Both Y1
and Y2 can represent Y

The right of representation is not available to illegitimate b. where the illegitimate child had half brothers
descendants of legitimate children in the inheritance of a who were legitimate, the latter had no right to
legitimate grandparent. It may be argued, as done by the former’s inheritance;
petitioners, that the illegitimate descendant of a c. the legitimate collateral relatives of the mother
legitimate child is entitled to represent by virtue of the cannot succeed from her illegitimate child;
provisions of Article 982, which provides that “the grand d. a natural child cannot represent his natural
children and other descendants shall inherit by right of father in the succession to the estate of the
representation.” Such a conclusion is erroneous. It would legitimate grandparent;
allow intestate succession by an illegitimate child to the e. the natural daughter cannot succeed to the
legitimate parent of his father or mother, a situation estate of her deceased uncle who is a legitimate
which would set at naught the provisions of Article 992 of brother of her natural father; and
the NCC. Article 982 of the NCC is inapplicable to instant f. an illegitimate child has no right to inherit ab
case because Article 992 prohibits absolutely a succession intestato from the legitimate children and
ab intestato between the illegitimate child and the relatives of his father (Manuel vs. Ferrer, 247
legitimate children and relatives of the father or mother SCRA 476, G.R. No. 117246 August 21, 1995).
(Diaz vs. Intermediate Appellate Court, No. L-66574 June
17, 1987).
PROVISIONS COMMON TO TESTATE AND INTESTATE
Law on succession is animated by a uniform general SUCCESSION
intent, and no part should be rendered inoperative by, but _________________________________________________________________
must be construed in relation to, any other part as to
produce a harmonious whole.— The rule in Art. 992 of the RIGHT OF ACCRETION
NCC has consistently been applied by the Court in several
other cases. Thus, it has ruled that

453
 Civil Law
Accretion is a right by virtue of which, when two or more
persons are called to the same inheritance, devise or In testamentary succession, accretion takes place in
legacy, the part assigned to the one who renounces or case of:
cannot receive his share, or who died before the testator,
is added or incorporated to that of his co-heir, co- 1. Predecease ;
devisees, or co-legatees (NCC, Art. 1015). 2. Incapacity ;
3. Renunciation;
Basis: Accretion is a right based on the presumed will of 4. Non-fulfillment of the suspensive condition imposed
the deceased that he prefers to give certain properties to upon instituted heir ; and
certain individuals rather than to his legal heirs. Accretion 5. Ineffective testamentary disposition
is preferred over intestacy.
In intestate succession, accretion takes place in case
Requisites of Accretion of:

In order that the right of accretion may take place in a
testamentary succession, it shall be necessary:
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 it (NCC, Art. 1016).
1. Predecease of legal heir;
2. Incapacity of legal heir ; and
3. Repudiation by legal heir
NOTE: Accretion takes place only if there is no
representation. In renunciation, there is always accretion.
Reason: No representation in renunciation.

Substitution, representation and accretion in testate and intestate succession distinguished:

TESTAMENTARY SUCCESSION INTESTATE SUCCESSION

In case of predecease and incapacity

With respect to the legitime:

1. If the right of representation takes place, then the
1. If the right of representation takes place, then the
representative succeeds to the vacant portion.
representative succeeds to the vacant portion.
NOTE: Representation takes place in case of
2. If representation is not available, then the co-heirs
predecease and incapacity with respect to
of the same degree shall succeed to it in their own
inheritance conferred by law. Hence, it takes place in
right and not by accretion since there is no
legal or intestate succession.
accretion with respect to the legitime.
2. If representation is not available, then the vacant portion
3. In default of the above, the vacant portion shall go
shall go to the co-heirs in their own right.
to the other secondary and/or other compulsory
heirs.
3. In default thereof, then the vacant share shall go to the
heirs in the next order of intestacy.
NOTE: Substitution cannot take place with respect to
legitime.

In case of repudiation

With respect to the legitime:

1. The other co-heirs shall succeed to it in their own

The vacant portion shall go to the other co-heirs by right of
right and not by right of accretion since there is no
accretion. In legal succession, the share of the person who
accretion with respect to legitime.
repudiates the inheritance always accrues to his co-heirs.
2. In default thereof, the vacant portion shall go to the
In default thereof, the vacant share shall go to the heirs of next
other secondary and/or compulsory heirs.
degree in their own right.
NOTE: Representation does not take place in
In default thereof, it shall go to the heirs in the next order of
repudiation.
intestacy.
NOTE: Substitution cannot take place with respect to
legitime.

With respect to the FREE PORTION in case of predecease, incapacity or renunciation

454
 SUCCESSION
1. Substitution shall take place if provided for by the
testator
2. If no substitution is provided, the vacant share shall
go to the co-heir by right of accretion if the
requisites are present and the testator has not
provided the contrary
3. If the requisites of accretion are not present or
when the testator provides that no accretion shall
take place, the vacant portion shall pass to the legal
heirs if no substitute has been designated
NOTE: In testamentary succession, representation takes
place only with respect to the legitime; it does not take
place with respect to what is voluntarily given by will.
CAPACITY TO SUCCEED BY WILL OR INTESTACY
The provisions relating to incapacity by will are equally
applicable to intestate succession (NCC, Art. 1024).
In order to be capacitated to inherit, the heir, devisee or
legatee must be living at the moment the succession
opens, except in case of representation, when it is proper.
A child already conceived at the time of the death of the
decedent is capable of succeeding provided it be born
later under the conditions prescribed in Article 41 of the
NCC (NCC, Art. 1025). (2007 BAR)
PERSONS INCAPABLE OF SUCCEEDING
Absolute incapacity to succeed means that the person is
incapacitated to succeed in any form, whether by testate
or intestate succession.
Persons who are absolutely incapacitated to succeed:
1. Those not living at the time of death of the testator
2. Those who cannot be identified (NCC, Art. 845).
3. Those who are not permitted by law to inherit. (NCC,
Art. 1027)
Determination of the Capacity to Succeed
GR: In order to judge the capacity of the heir, devisee, or
legatee, his qualification at the time of the death of the
decedent shall be the criterion.
XPN: If the institution, devise or legacy should be
conditional (suspensive condition), the capacity is to be
determined not only at the time of the death of the
decedent but also at the time of the fulfillment of the
condition.
The governing law in determining the capacity to succeed
of the heir, devisee, legatee is the law of the nation of the
decedent. (1998, 2004 BAR)
RELATIVE INCAPACITY TO SUCCEED
455
Relative incapacity to succeed means the person is
incapacitated to succeed because of some special relation
to the testator.
Grounds for Relative Incapacity to Succeed (UMA)
1. Undue influence or interest (NCC, Art. 1027)
2. Morality or public policy (NCC, Art. 739)
3. Acts of unworthiness (NCC, Art. 1032)
The following are incapacitated to succeed based on
undue influence or interest (PRG-WPI)
1. The Priest who heard the confession of the testator
during his last illness, or the minister of the gospel
who extended spiritual aid to him during the same
period;
2. The Relatives of such priest or minister of the gospel
within the fourth degree, the church, order, chapter,
community, organization, or institution to which
such priest or minister may belong;
3. A Guardian with respect to testamentary
dispositions given by a ward in his favor before the
final accounts of the guardianship have been
approved, even if the testator should die after the
approval thereof; nevertheless, any provision made
by the ward in favor of the guardian when the latter
is his ascendants, descendant, brother, sister, or
spouse, shall be valid;
4. Any attesting Witness to the execution of a will, the
spouse, parents, or children, or any one claiming
under such witness, spouse, parents, or children;
NOTE: Numbers 1 to 4 do not apply to legitimes.
5. Any Physician, surgeon, nurse, health officer or
druggist who took care of the testator during his last
illness;
NOTE: Number 5 is an absolute disqualification.
6. Individuals, associations and corporations not
permitted by law to inherit (NCC, Art. 1027).
 Civil Law
Requisites for a priest to be disqualified from 1. Persons guilty of Adultery or concubinage with the
inheriting testator at the time of the making of the will
2. Persons guilty of the same Criminal offense, in
1. The will was made during the last illness of the consideration thereof
testator; 3. A publicofficer or his wife, descendants and
2. The spiritual ministration must have been extended ascendants, by reason of his Office (Art. 1028 in
during the last illness; relation to Art. 739 of NCC). (2000 BAR)
3. The will was executed during or after the spiritual
ministration. The following are incapacitated to succeed by reason
--- of unworthiness (P-CAV-AFP-F)
Q: If the confession was made before the will was
made, can the priest inherit upon the death of the sick 1. Parents who have abandoned their children or
person, if: induced their daughters to lead a corrupt or immoral
a. The priest is the son of the sick person? life, or attempted against their virtues
b. The priest was the sick person’s brother? 2. Persons Convicted of an attempt against the life of
the testator, his or her spouse, descendants or
A: ascendants
a. YES.He can get the legitime. 3. Persons who Accused the testator of a crime for
which the law prescribes imprisonment for six years
NOTE: A priest is incapacitated to succeed when the or more, if the accusation has been found to be
confession is made prior to or simultaneously with the groundless
making of a will. 4. Heir of full age who, having knowledge of the Violent
death of the testator, should fail to report it to an
The disqualification applies only to testamentary officer of the law within a month unless the
dispositions. authorities have already taken action.

b. YES. Hecan inherit by intestacy. NOTE: This prohibition shall not apply to cases
wherein, according to law, there is no obligation to
NOTE: Despite this apparent restriction to Christian make an accusation.
ministers, this applies to all spiritual ministers, e.g.,
Buddhist monks. 5. Person convicted of Adultery or concubinage with
the spouse of the testator
Reason: It is conclusively presumed that the spiritual 6. Person who by Fraud, violence, intimidation, or
minister used his moral influence to induce or undue influence should cause the testator to make a
influence the sick person to make a testamentary will or to change one already made
disposition in his favor. 7. Person who by the same means Prevents another
--- from making a will, or from revoking one already
Q: When is a guardian disqualified from inheriting by made, or who supplants, conceals, or alters the
testate succession? latter's will
8. Person who Falsifies or forges a supposed will of the
A: decedent (NCC, Art. 1032).
GR: The disqualification applies when the disposition is
made before the approval of final accounts or lifting of NOTE: Grounds 1, 2, 3, 5 and 6 are the same grounds as
guardianship. in disinheritance.Numbers 6, 7 and 8 cover six (6) acts
which relate to wills:
XPN: It does not apply even when the disposition is made
after the guardianship began or before it is terminated 1. Causing the testator to make a will
when the guardian is an: ADBS2 2. Causing the testator to change an existing will
1. Ascendant 3. Preventing the decedent from making a will
2. Descendant 4. Preventing the testator from revoking his will
3. Brother 5. Supplanting, concealing, or altering the
4. Sister testator's will.
5. Spouse 6. Falsifying or forging a supposed will of the
--- decedent.
Requisites for the disqualification of physician
UNWORTHINESS vs. DISINHERITANCE
1. The will was made during the last illness
2. The sick person must have been taken cared of during DISINHERITANC UNWORTHINES
his last illness E S
3. Medical attendance was made
4. The will was executed during or after he was being Exclusion from
cared of. Deprivation of a the entire
Effects on the
compulsory heir inheritance.
The following are incapacitated to succeed based on inheritance
of his legitime. However,
morality or public policy (ACO) donations inter

456
 SUCCESSION
vivos are not c. Acts of preservation or administration if,
affected. through such acts, the title or capacity of the heir
has been assumed
d. Under Art. 1057 of the NCC, failure to signify
acceptance or repudiation within 30 days after
Reconciliation an order of distribution by the probate court.
between the
offender and the Ways by which the repudiation of the inheritance,
If the testator legacy or devise may be made
offended party
pardons the act
deprives the
Effects of of unworthiness, 1. By means of a public instrument
latter of the right
pardon or the cause of
to disinherit and 2. By means of an authentic instrument
reconciliation unworthiness
renders 3. By means of a petition presented to the court having
shall be without
ineffectual any jurisdiction over the testamentary or intestate
effect.
disinheritance proceedings.
that may have
been made. Effect of repudiation if an heir is both a testate and
legal heir
Manner of
reconciliation Express or implied If an heir is both a testate and legal heir and he repudiated
or pardon the inheritance as a testate heir, he is understood to have
repudiated in both capacities. However, should he
There are grounds for disinheritance repudiate as a legal heir, without knowledge of being a
Grounds which are also causes for incapacity testate heir, he may still accept the inheritance as a testate
by reason of unworthiness. heir.

Effect of Remedy if the heir repudiates the inheritance to the

subsequent prejudice of his creditors
reconciliation
if If the heir repudiates the inheritance to the prejudice of
disinheritanc The moment the testator uses one of his own creditors, the latter may petition the court to
e has already the causes for unworthiness as a authorize them to accept it in the name of the heir.
been made on ground for disinheritance, he thereby
any of the submits it to the rule on Requisites:
grounds disinheritance (Rabuya, 2009).
which are 1. The heir who repudiated his inheritance must have
also causes been indebted at the time when the repudiation is
for made.
unworthiness 2. The heir-debtor must have repudiated his
inheritance according to the formalities prescribed
by law.
ACCEPTANCE AND REPUDIATION OF THE 3. Such act of repudiation must be prejudicial to the
INHERITANCE creditor or creditors.
4. There must be judicial authorization (NCC, Art. 1052).
The acceptance or repudiation of the inheritance is a
purely voluntary and free act (NCC, Art. 1041). PARTITION AND DISTRIBUTION OF ESTATE

Principal characteristics of acceptance and Partition, in general, is the separation, division and
repudiation assignment of a thing held in common among those to
whom it may belong. The thing itself may be divided or its
1. It is voluntary and free value (NCC, Art. 1079).
2. It is retroactive
3. Once made, it is irrevocable Every act which is intended to put an end to indivision
among co-heirs and legatees or devisees is deemed to be
Inheritance is deemed accepted a partition, although it should purport to be a sale, an
exchange, a compromise, or any other transaction (NCC,
1. When the heir sells, donates, or assigns his rights Art. 1082).
2. When the heir renounces it for the benefit of one or
more heirs The partition may be effected either
3. When renunciation is in favor of all heirs
indiscriminately for consideration 1. By the decedent himself during his lifetime by an act
4. Other tacit acts of acceptance: 2. inter vivos or by will
a. Heir demands partition of the inheritance 3. By a third person designated by the decedent or by the
b. Heir alienates some objects of the inheritance heirs themselves

457
 Civil Law
4. By a competent court in accordance with the New Rules
of Court
Partition may be demanded by:
1. Compulsory heir
2. Voluntary heir
3. Legatee or devisee
4. Person who has acquired an interest in the estate
Partition cannot be demanded when (PAPU)
1. Expressly Prohibited by testator for a period not more
than 20 years
2. Co-heirs Agreed that estate not be divided for period
not more than 10 years, renewable for another 10 years
3. Prohibited by law
4. To partition estate would render it Unserviceable for
use for which it was intended
An estate can be partitioned inter vivos. Such partition
shall be respected, insofar as it does not prejudice the
legitime of compulsory heirs. (See Art. 1080)
Effects of the Inclusion of an Intruder in Partition
1. Between a true heir and several mistaken heirs –
partition is void.
2. Between several true heirs and a mistaken heir –
transmission to mistaken heir is void.
3. Through the error or mistake; share of true heir is
allotted to mistaken heir – partition shall not be
rescinded unless there is bad faith or fraud on the
part of the other persons interested, but the latter
shall be proportionately obliged to pay the true heir
of his share.
In the partition of the estate, equality shall be observed as
far as possible, dividing the property into lots, or
assigning to each of the co-heirs things of the same nature,
quality and kind. (NCC, Art. 1085)
Indivisible thing
Should a thing be indivisible, or would be much impaired
by its being divided, it may be adjudicated to one of the
heirs, provided he shall pay the others the excess in case.
Nevertheless, if any of the heirs should demand that the
thing be sold at public auction and that strangers be
allowed to bid, this must be done (NCC, Art. 1086).
Heir selling his hereditary rights to a stranger
Should any of the heirs sell his hereditary rights to a
stranger before the partition, any or all of the co-heirs
may be subrogated to the rights of the purchaser by
reimbursing him for the price of the sale, provided they
do so within the period of one (1) month from the time
they were notified in writing of the sale by the vendor
(NCC, Art. 1088).
Rescission and Nullity of Partition
A partition may be rescinded or annulled for the same
causes as contracts (NCC, Art. 1097).
458
It may also be rescinded on account of lesion, when any
one of the co-heirs received things whose value is less, by
at least 1/4, than the share to which he is entitled,
considering the value of the things at the time they were
adjudicated (NCC, Art. 1098).
Prescriptive Period
The action for rescission on account of lesion shall
prescribe after 4 years from the time the partition was
made (NCC, Art.1100).
LAND TITLES AND DEEDS
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GENERAL PRINCIPLES
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REGALIAN DOCTRINE (jura regalia)
All lands of whatever classification and other natural
resources not otherwise appearing to be clearly within
private ownership are presumed to belong to the State
which is the source of any asserted right to ownership of
land (Republic v. Sin, GR No. 157485, March 26, 2014).
Jure Regalia means that the State is the original proprietor
of all lands and is the general source of all private titles.
All claims of private title to land, save those acquired from
native title, must be traced from some grant, whether
express or implied, from the state. Absent a clear showing
that the land had been into private ownership through the
State’s imprimatur, such land is presumed to belong to
State (Republic v. Santos, G.R. No. 180027, July 18, 2012).
NOTE: To prove that the subject property is alienable and
disposable land of the public domain, applicant must :
(1) Present a Community Environment and Natural
Resourtces Office Certificate (CENRO);
(2) Prove that the DENR Secretary had approved
the land classification and released the land of
the public domain as alienable and disposable ;
and
(3) That the land subject of the application for
registration falls within the approved area per
verification through survey by the PENRO or
CENRO. In addition, the applicant for land
registration must present a copy of the original
classification approved by the DENR Secretary
and certified as a true copy by the legal
custodian of the official records.
NOTE: The Regalian Doctrine does not negate native title
to lands held in private ownership since time immemorial
(Cruz v. Secretary of Environment and Natural Resources,
G.R. No. 135385, December 6, 2000).
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Q: On March 1980, Cornelio filed an application for
land registration involving a parcel of agricultural
land. During the trial, Cornelio claimed that he and his
predecessors-in-interest had been in open,
continuous, uninterrupted, public and adverse
possession and occupation of the land for more than
thirty (30) years. He likewise introduced in evidence