I.
CONCEPT OF SUCCESSION
1. Definition and Concept
ARTICLE 774. Succession is a mode of acquisition by virtue
of which the property, rights and obligations to the extent of
the value of the inheritance, of a person are transmitted
through his death to another or others either by his will or by
operation of law.
PARAS: Art 774 speaks of succession mortis causa
ARTICLE 712. Ownership is acquired by occupation and by
intellectual creation.
Ownership and other real rights over property are acquired
and transmitted by law, by donation, by testate and
intestate succession, and in consequence of certain
contracts, by tradition.
They may also be acquired by means of prescription.
SUCCESSION → mode of acquiring ownership
ARTICLE 776. The inheritance includes all the property,
rights and obligations of a person which are not extinguished
by his death.
BALANE: Article 774 should be: Succession is a mode of
acquisition by virtue of which the inheritance of a person is
transmitted through his death to another or others either by his
will or by operation of law.
2. Elements of Succession
a. Mode of acquisition
b. Transfer of property, rights and
obligations to the extent of the value
of the inheritance of a person
ARTICLE 776. The inheritance includes all the property,
rights and obligations of a person which are not extinguished
by his death.
ARTICLE 781. The inheritance of a person includes not only
the property and the transmissible rights and obligations
existing at the time of his death, but also those which have
accrued thereto since the opening of the succession.
BALANE: ART 781 is best deleted. Whatever accrues thereto
after the decedent’s death (which is when the succession
opens) belongs to the heir, not by virtue of succession, but by
virtue of ownership.
c. Transmission through death
ARTICLE 777. The rights to the succession are transmitted
from the moment of the death of the decedent.
d. Transmission to another
IN PH JURISDICTION:
Can only be transferred to natural or juridical persons only
e. By will or by operation of law
TESTATE: By will
INTESTATE: By operation of law
3. Kinds of Succession
ARTICLE 778. Succession may be:
(1) Testamentary;
(2) Legal or intestate; or
(3) Mixed.
COMPULSORY SUCCESSION → succession to the legitime by
operation of law
SIR BOBBIE: Strictly speaking, this does not fall under
intestate succession
a. Testamentary
ARTICLE 779. Testamentary succession is that which
results from the designation of an heir, made in a will
executed in the form prescribed by law.
b. Intestate
ARTICLE 960. Legal or intestate succession takes place:
(1) If a person dies without a will, or with a void will, or one
which has subsequently lost its validity;
(2) When the will does not institute an heir to, or dis- pose
of all the property belonging to the testator. In such
case, legal succession shall take place only with
respect to the property of which the testator has not
disposed;
(3) If the suspensive condition attached to the insti- tution
of heir does not happen or is not fulfilled, or if the heir
dies before the testator, or repudiates the inheritance,
there being no substitution, and no right of accretion
takes place;
(4) When the heir instituted is incapable of succeed- ing,
except in cases provided in this Code.
c. Mixed
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 ARTICLE 780. Mixed succession is that effected partly by
will and partly by operation of law.
d. Compulsory Succession
e. Contractual
ARTICLE 130 (Old CC). The future spouses may give each
other in their marriage settlements as much as one- fifth of
their present property, and with respect to their future
property, only in the event of death, to the extent laid down
by the provisions of this Code referring to testamentary
succession.”
DONATIONS PROPTER NUPTIAS → of future property, made
by one of the future spouses to the other, took effect mortis cause,
and had only to be done in the marriage settlements, which
were governed only by the Statute of Frauds (ART 122)
This special kind of succession has been eliminated by
the Family Code (ART 84 par 2)
ARTICLE 1347. All things which are not outside the
commerce of men, including future things, may be the object
of a contract. All rights which are not intransmissible may
also be the object of contracts.
No contract may be entered into upon future inheritance
except in cases expressly authorized by law.
All services which are not contrary to law, morals, good
customs, public order or public policy may likewise be the
object of a contract.
ARTICLE 752. The provisions of Article 750
notwithstanding, no person may give or receive, by way of
donation, more than he may give or receive by will.
The donation shall be inofficious in all that it may exceed this
limitation.
ARTICLE 1080. Should a person make partition of his
estate by an act inter vivos, or by will, such partition shall be
respected, insofar as it does not prejudice the legitime of the
compulsory heirs.
A parent who, in the interest of his or her family, desires to
keep any agricultural, industrial, or manufacturing enterprise
intact, may avail himself of the right granted him in this
article, by ordering that the legitime of the other children to
whom the property is not assigned, be paid in cash.
ARTICLE 84 FC. If the future spouses agree upon a regime
other than the absolute community of property, they cannot
donate to each other in their marriage settlements more than
one-fifth of their present property. Any excess shall be
considered void.
Donations of future property shall be governed by the
provisions on testamentary succession and the formalities of
wills.
ARTICLE 86 FC. A donation by reason of marriage may be
revoked by the donor in the following cases:
(1) If the marriage is not celebrated or judicially declared
void ab initio except donations made in the marriage
settlements, which shall be governed by Article 81;
(2) When the marriage takes place without the consent of
the parents or guardian, as required by law;
(3) When the marriage is annulled, and the donee acted in
bad faith;
(4) Upon legal separation, the donee being the guilty
spouse;
(5) If it is with a resolutory condition and the condition is
complied with;
(6) When the donee has committed an act of ingratitude as
specified by the provisions of the Civil Code on
donations in general.
4. Parties
a. Decedent - Testator or Intestate
ARTICLE 775. In this Title, “decedent” is the general term
applied to the person whose property is transmitted through
succession, whether or not he left a will. If he left a will, he is
also called the testator
DECEDENT: Person whose estate is to be distributed
● TESTATOR - if he left a will
● INTESTATE - if he left no will
b. Heirs - Compulsory, Voluntary,
Intestate
ARTICLE 782. An heir is a person called to the succession
either by the provision of a will or by operation of law.
Devisees and legatees are persons to whom gifts of real and
personal property are respectively given by virtue of a will.
HEIR → one who succeeds to the whole or an aliquot part of the
inheritance
DEVISEE/LEGATEE → those who succeed to definite, specific,
and individual properties
LEGATEE - personal property
DEVISEE - real property
Distinction is only important only in case of preterition:
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ART 854. In cases of preterition the institution of heir is
annulled, while the institution of legatees and devisees is
effective to the extent that the legitimes are not impaired. II. GENERAL PROVISIONS
5. Basis for Succession 1. Transfer of Property, Rights and
a. Natural affection for relatives Obligations

b. Preventing wealth from being ARTICLE 774. Succession is a mode of acquisition by virtue
of which the property, rights and obligations to the extent of
stagnant 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.
c. Attribute of ownership
ARTICLE 776. The inheritance includes all the property,
rights and obligations of a person which are not extinguished
by his death.

INHERITANCE VS SUCCESSION
INHERITANCE → property or right acquired
SUCCESSION → manner by virtue of which the property or right is
acquired

In American law, succession is also referred to as “descent”

● “Title by descent” → title by which one person on the death of
another, acquires the estate of the latter as his heir at law

ADMINISTRATION VS SUCCESSION
ADMINISTRATION → dealing with a deceased person’s property
according to law
SUCCESSION → transferring to it beneficially

ARTICLE 728. Donations which are to take effect upon the

death of the donor partake of the nature of testamentary
provisions, and shall be governed by the rules established in
the Title on Succession.

WHAT ARE TRANSMITTED?

Only transmissible rights and obligations pass by succession
● GENERAL RULE: If the right or obligation is strictly
personal (intuitu personae), it is intransmissible; otherwise,
it is transmissible
● HOW TO DETERMINE:
(1) Nature
(2) Stipulation
(3) Law

PARAS: WHAT INHERITANCE INCLUDES:

(a) Property
(b) Rights not extinguished by death
(c) Obligations not extinguished by death (to the extent of the
value of the inheritance)

PROPERTIES
These include real as well as personal properties

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● Transferee will also own accessions to the property
accruing thereto, from the moment of death to the time of
actual receipt by said transferee
NOTE: Personal rights (intuitu personae) vs Patrimonial rights
RIGHTS
Some rights are extinguished by death; some are not
● Example of rights extinguished by death (and not part of
the estate):
1) Intransmissible personal rights because of their
nature
● Such as those appertaining to family rights,
marital and parental authority, support, action for
legal separation, partnership, agency, life annuity
2) Right to claim acknowledgement or recognition as a
natural child
3) Right to hold public or private office or job
● Example of rights NOT extinguished by death (and are
part of the estate):
1) Right to bring or continue an action for forcible entry
or unlawful detainer
2) Right to compel the execution of a document
necessary for convenience, provided that the contract
is valid and enforceable under the Statute of Frauds
3) Right to continue a lease contract either as a lessor or
lessee, unless otherwise provided in the contract
● PARAS: Here it is understood that if the lessee-
heir continues as lessee, he should still pay the
rents as they fall due from time to time, even if
the inheritance has already disappeared - the
obligations being his, and no longer the
decedent’s
4) Property right in an insurance policy (the interest of a
beneficiary in a life insurance policy is a vested
interest (provided, the designation of the beneficiary
is irrevocable)
UNION BANK V. SANTIBANEZ
DOCTRINE: The filing of a money claim against the
decedent’s estate in the probate court is mandatory. Even
money debts are transmitted to and paid for by the heirs ,but
this would be by indirection merely.
● Only the payment of money debts has been affected by
the Rules of Court. The transmission of other
obligations not by nature purely personal follows the
rule laid down in Article 774.
ESTATE OF HEMADY V. LUZON SURETY
DOCTRINE: While in our successional system the
responsibility of the heirs for the debts of their decedent
cannot exceed the value of the inheritance they receive from
him, the principle remains intact that these heirs succeed not
only to the rights of the deceased but also to his obligations.
● GENERAL RULE: A party’s contractual rights and
obligations are transmissible to the successors.
● EXCEPTIONS:
(1) Nature of the obligation of the surety or guarantor
does not warrant the conclusion that his peculiar
individual qualities are contemplated as a principal
inducement for the contract
(2) Intransmissibility by stipulation of the parties
(3) Not transmissible by operation of law
BUTTE V. MANUEL UY AND SONS
DOCTRINE: Butte had the right to legal redemption as a
testamentary heir, because she became a co-owner from
the moment of the death of her predecessor. The
redemption right vested in the heirs originally in their
individual capacity; they did not acquire it from their
decedent, because when Ramirez died none of the co-
owners had yet sold their undivided share to the property.
MAGLASANG V. CABATINGAN
DOCTRINE: In determining whether a donation is one of
mortis causa, the following characteristics must be taken
into account:
(1) It conveys no title or ownership to the transferee before
the death of the transferor; or what amounts to the
same thing, that the transferor should retain the
ownership (full or naked) and control of the property
while alive;
(2) That before his death, the transfer should be revocable
by the transferor at will, ad nutum; but revocability may
be provided for indirectly by means of a reserved power
in the donor to dispose of the properties conveyed; and
(3) That the transfer should be void if the transferor should
survive the transferee.
LEE V. RTC OF QC BRANCH 85
DOCTRINE: An heir may only sell his ideal share or
undivided share in the estate, not any specific property
therein. In this case, the wife and son sold specific
properties of the estate in favor of third persons. They could
not lawfully do so pending the final adjudication of the estate
by intestate court because of the undue prejudice it would
cause the other claimants to the estate. Prior court approval
was necessary.
(1) Any disposition of estate property by an administrator or
prospective heir pending final adjudication requires
court approval.
(2) Any unauthorized disposition of estate property can be
annulled by the probate court, there being no need for a
separate action to annul the unauthorized disposition.
2. Obligations Limited to Value of
Inheritance
ARTICLE 774. Succession is a mode of acquisition by virtue
of which the property, rights and obligations to the extent of
the value of the inheritance, of a person are transmitted
through his death to another or others either by his will or by
operation of law.
ALVAREZ V. IAC
DOCTRINE: Being the heirs of the decedent, they cannot
escape the legal consequences of the decedent’s
transaction. HOWEVER, the heirs are liable only to the
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extent of the value of their inheritance.
Q: Deed of Sale: “I will sell this land to A”. A already paid the
purchase price. The seller died. Does A have any action
against the estate or heirs?
A: Deed of Sale - contract. If a party dies, whatever rights or
obligation that may be derived from the contract, it would be
transmitted to the estate or the heirs.
LEDESMA V. MCLACHLIN
DOCTRINE: Ledesma cannot recover from the McLachlins
because the debt must only be recoverable from the
creditor’s properties. In this case, the McLachlins received
inheritance only from Eusebio, and not from Lorenzo who
was the creditor.
PER STIRPES - inherited by line
PER CAPITA - inherited per head; heirs inherit in their own
capcity
GENATO V. BAYHON, ET AL
DOCTRINE: As a general rule under Art. 1311, obligations
derived from a contract are transmissible. While RESP
Bayhon may no longer be compelled to pay the loan
because he already died, the debt subsists against his
estate. No property may be transmitted to the heirs unless
the debt has first been satisfied. The remedy of PET Genato
is to file a claim against the estate of deceased RESP
Bayhon, pursuant to Rule 3, Sec. 20 of the Rules of Civil
Procedure.
● REM and dacion en pago are NULL and VOID. These
documents are simulated and fictitious because
Genato’s wife was already dead when it was allegedly
signed by them.
3. Rights and Obligations not
Extinguished by Death
RIGHTS
Some rights are extinguished by death; some are not
● Example of rights extinguished by death (and not part of
the estate):
1) Intransmissible personal rights because of their
nature
● Such as those appertaining to family rights,
marital and parental authority, support, action for
legal separation, partnership, agency, life annuity
2) Right to claim acknowledgement or recognition as a
natural child
3) Right to hold public or private office or job
● Example of rights NOT extinguished by death (and are
part of the estate):
1) Right to bring or continue an action for forcible entry
or unlawful detainer
2) Right to compel the execution of a document
necessary for convenience, provided that the contract
is valid and enforceable under the Statute of Frauds
3) Right to continue a lease contract either as a lessor or
lessee, unless otherwise provided in the contract
● PARAS: Here it is understood that if the lessee-
heir continues as lessee, he should still pay the
rents as they fall due from time to time, even if
the inheritance has already disappeared - the
obligations being his, and no longer the
decedent’s
4) Property right in an insurance policy (the interest of a
beneficiary in a life insurance policy is a vested
interest (provided, the designation of the beneficiary
is irrevocable)
OBLIGATIONS NOT EXTINGUISHED BY DEATH
GENERAL RULE: All obligations are transmissible unless
purely personal (like obligation to support) or non-transferable
by law or contract
PECUNIARY OBLIGATIONS
Money obligations → would pass to the heirs, to the extent that
they inherit from him
● ROC - It is only after the debts are paid that the residue of
the estate is distributed among the successors
● THEREFORE, IN OUR SYSTEM, money debts are not
transmitted to the heirs nor paid by them. The estate
pays them; it is only what is left after the debts are paid
that are transmitted to the heirs.
WHEN JUDICIAL ADMINISTRATION IS NOT ESSENTIAL
Judicial administration is not essential when the deceased left
not pending obligations
● Decedent’s liabilities, if not monetary, can be threshed out
in an ordinary action despite the lapse of the estate
proceedings
The heirs have the right to be substituted for the deceased
as party in an action that survives
BONILLA V. BARCENA
DOCTRINE: The question as to WON an action survives
depends on the nature of the action and the damage sued
for. The claim of the deceased plaintiff which is an action to
quiet title over the parcels of land in litigation affects
primarily and principally the property and property rights.
CONDE V. ABAYA
DOCTRINE: An action for acknowledgement as a natural
child can only be exercised by him. It cannot be transmitted
to his descendants, or his ascendants.
CRUZ V. CRUZ
DOCTRINE: An action for acknowledgement as a natural
child can only be exercised by him. It cannot be transmitted
to his descendants, or his ascendants.
NHA V. ALMEIDA
DOCTRINE: The NHA gave due course to the application
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made by Francisca Herrera without considering that the
initial applicant's death would transfer all her property, rights
and obligations to the estate including whatever interest she
has or may have had over the disputed properties. To the
extent of the interest that the original owner had over the
property, the same should go to her estate. Her death did
not extinguish her interest over the property. Upon Margarita
Herrera's demise, this Contract to Sell was neither nullified
nor revoked. This Contract to Sell was an obligation on both
parties–Margarita Herrera and NHA. And Margarita
Herrera's obligation to pay became transmissible at the time
of her death either by will or by operation of law.
4. Opening of Succession
ARTICLE 777. The rights to the succession are transmitted
from the moment of the death of the decedent.
SUMMARY OF JURISPRUDENCE:
1. Ownership passes to the heirs from moment of decedent’s
death. Heirs become co-owners of hereditary estate
2. Money debts of the estate must first be paid in order to
determine the heirs’ specific distributive shares
3. Pending partition, each heir may sell or dispose of the
whole or a portion of his undivided interest in the
inheritance subject to the right of redemption of the other
co-heir or co-owner
4. Pending partition, co-heirs may enter into a compromise
agreement even if it will alter distribution of estate as
prescribed in the will of the testator
5. Court approval is required in any disposition of specific
property
6. In the case of shares of stock, the same must first be
distributed to the heirs and registered in the S&T Book.
Pending registration, heirs are only equitable owners while
executor or administrator has legal title.
BALANE: Right to the succession is not transmitted; it
becomes vested.
● To say that it is transmitted upon death implies that before
the decedent’s death, the right to the succession was
possessed by the decedent (which is absurd).
● To say it vests upon death implies that before the
decedent’s death the right is merely inchoate.
This article specifies the time of vesting of the
successional right
It presumes that the person succeeding:
(1) Has a right to succeed by legitime (compulsory
succession), by will (testamentary succession), or by law
(intestate succession)
(2) Has the legal capacity to succeed
(3) Accepts the successional portion
CONDITIONS FOR THE TRANSMISSION OF
SUCCESSIONAL RIGHTS
Death transfers the rights to the succession - but only if the
following conditions are present:
(a) That indeed there has been a death (either actual or
presumed)
(b) That the rights or properties are indeed transmissible or
descendible
(c) That the transferee is still alive (no predecease), willing
(no repudiation), is capacitated to inherit
ACTUAL DEATH
The effects of an acceptance (of the inheritance) retroacts to
the moment of death (Art 1042)
● If, instead of acceptance, there is repudiation, it is as if the
heir never owned, never possessed the property, also
because of the retroactive effect of a repudiation (Art
1042)
● If there is no heir, the State inherits the property, and the
same will be considered patrimonial
PRESUMED DEATH
Two kinds: ordinary presumption (caused by an ordinary
absence) and an extraordinary presumption (caused by an
extraordinary or qualified absence)
a. ORDINARY presumption because of ORDINARY absence
● Art 390 CC - An absentee (who disappears under
normal conditions, there being no danger or idea of
death) shall be presumed dead for the purpose of
opening his succession - at the end of 10 years (at
the end of 5 years in case he disappeared after the
age of 75)
● The death is presumed to have occurred at the end of
the 10-year or 5-year period as the case may be
b. EXTRAORDINARY presumption because of
EXTRAORDINARY or QUALIFIED absence
● Under Art 391 CC - qualified absence occurs
(qualified or extraordinary because of great probability
of death)
● The law says that 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.
● NOTE: In extraordinary absence, the person is presumed
to have died at the time of disappearance, that is, at the
time the calamity took place, and not at the end of 4 years
○ At the end of 4 years, the presumption will arise that
the death had occurred 4 years before
NOTE: In both ordinary or extraordinary absences, the
succession is only of provisional character, because there is
always a chance that the absentee may still be alive
● The presumption regarding the time of death are
rebuttable - proof may be presented as to when death
actually occurred
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EFFECT OF ABSNETEE’S RETURN OR APPEARANCE
If the absentee appears, or without appearing his existence of
proved, he shall recover his property in the condition in which it
may be found, and the price of any property that may have
been alienated or the property acquired therwith BUT, he
cannot claim either fruits or rents
● The recovery may not be made anymore, however, if the
heir, devisee, or legatee has acquired the property through
prescription (extraordinary prescription in view of the lack
of a just title, there being no true succession)
The law in force at the time of the decedent’s death will
determine who the heirs should be
USON V. DEL ROSARIO
DOCTRINE: The claim of RESPs that Uson relinquished her
right There is no dispute that USON is the lawful wife of
Faustino Nebreda, former owner of the five parcels of lands
litigated in the present case. There is likewise no dispute
that DEL ROSARIO was merely a common-law wife of the
late Faustino Nebreda with whom she had four illegitimate
children, her now co- defendants. It likewise appears that
Faustino Nebreda died in 1945 much prior to the effectivity
of the new Civil Code. With this background, it is evident that
when Faustino Nebreda died in 1945, the five parcels of
land he was seized of at the time passed from the moment
of his death to his only heir, his widow USON.
Ownership passes to the heir at the very moment of death,
who therefore, from the moment acquires the right to
dispose of his share
DE BORJA V. VDA. DE BORJA
DOCTRINE: Since 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 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. Of course, the effect of such alienation is to be
deemed limited to what is ultimately adjudicated to the
vendor heir.
Q: If an heir sold his share and he was paid but ended up not
being entitled to get anything from the estate, what is the
status of the sale?
A: Still valid - doctrine of buyer’s beware applies. Buyer
assumes the risk regarding the undivided share.
LORENZO V. POSADAS
DOCTRINE: Sec 1536 of the Admin Code imposes tax upon
“every transmission by virtue of inheritance, devise, bequest,
gift mortis causa...” And under Article 657 (now 777), the
right to succession is transmitted from the moment of death
of the decedent.
● However, the fact that Thomas Hanley died on May 27,
1922, does not follow that the obligation to pay the tax
arose as of the date. Under Article 1544(b), the tax
should have been paid before the delivery of the
properties in question to Moore as trustee on March 10,
1924. Moreover, delivery to the trustee of the estate is
in esse delivery of the same to the beneficiary, which is
covered by the same subsection.
RIOFERIO V. CA
DOCTRINE:
GR: Heirs have no legal standing to sue for the recovery of
property of the estate during the pendency of administration
proceedings.
EXCEPTIONS:
(1) The executor or administrator is unwilling or refuses to
bring suit
(2) When the administrator is alleged to have participated
in the act complained of AND he is made a party
defendant
(3) When there is no appointed administrator
PASCO V. HEIRS OF DE GUZMAN
DOCTRINE: Crecencia was authorized to enter into a
COMPAG. The SPA necessarily included the power to enter
into a compromise agreement.
● While Filomena’s estate has a different juridical
personality than the heirs, nonetheless, her heirs
certainly have an interest in the preservation of the
estate and recovery of its properties. At the moment of
Filomena’s death, the heirs started to own the property
subject to decedent’s liabilities.
● However, proceeds of the loan should only be released
to her heirs only upon settlement of the estate. To allow
the release of the funds directly to the heirs would
amount to a distribution of the estate; which distribution
and delivery should be made only after, not before, the
payment of all debts, charges, expenses, and taxes of
the estate have been paid.
● Cresencia should deposit the amounts received from
the petitioners with the MTC of Bocaue, Bulacan. In
turn, the MTC of Bocaue, Bulacan should hold in
abeyance the release of the amounts to Filomena's
heirs until after a showing that the proper procedure for
the settlement of Filomena's estate has been followed
and after all charges of the estate have been fully
satisfied.
BALUS V. BALUS
DOCTRINE: While the rights to a person’s succession are
transmitted from the moment of his death, the inheritance
only covers the property and transmissible rights and
obligations existing at the time of his death.
CORONEL V. CA
DOCTRINE: Coronels, being the sons and daughters of the
decedent Constancio P . Coronel are compulsory heirs who
were called to succession by operation of law. Thus, at the
point their father drew his last breath (before the sale),
petitioners stepped into his shoes insofar as the subject
property is concerned, such that any rights or obligations
pertaining thereto became binding and enforceable upon
them.
PROBLEM ON TRANSITIONAL PROVISIONS
7
OLD CIVIL CODE → spurious children were not entitled to inherit
even if their filiation had been judicially decreed or declared
NEW CIVIL CODE → said children if recognized voluntarily or by
III. TESTAMENTARY
judicial decree are entitled to inherit SUCCESSION
1. Wills

ARTICLE 783. A will is an act whereby a person is

permitted, with the formalities prescribed by law, to control to
a certain degree the disposition of this estate, to take effect
after his death.

ACT
BALANE: Definition of a will as act is too broad
● Should have been more clearly delimited with a more
specific term such as instrument or document in view of
Art 804 -- “every will must be in writing”
● Spanish Code was accurate because under the Spanish
Code, a will was not always written e.g. in certain cases, a
military will could be oral
● It is a unilateral act - No acceptance by the transferees is
needed while the testator is still alive; any acceptance
made prematurely is useless

PERMITTED
Will-making is purely statutory - not a natural right

FORMALITIES PRESCRIBED BY LAW

The requirement of form prescribed respectively for attested
and holographic wills

CONTROL TO A CERTAIN DEGREE

Testator’s power of testamentary disposition is limited by the
rules on legitimes

AFTER HIS DEATH

Testamentary succession, like all other kinds of succession, is
mortis causa

WILL
A species of conveyance whereby a person is permitted, with
the formalities prescribed by law, to control to a certain degree
the disposition of his estate after his death. (CANEDA V CA)
● A will MUST dispose of properties; if it merely states his
desired funeral rites or it merely recognizes an illegitimate
child, it is not a will

ANIMUS TESTANDI
Intent to make a will

TWO TYPES OF DISPOSITION

1. DIRECT - There is an actual provision in the will wherein
the person identifies a certain piece of property and gives
it to a specific individual
2. INDIRECT - When the will disposes of a property by
inference of implication i.e. disinheritance

8
LAST WILL VS TESTAMENT
NOW: No difference
UNDER ANGLO-AMERICAN LAW: testament (disposes of
personal property) vs will (disposes of real property)
ARTICLE 784. The making of a will is a strictly personal act;
it cannot be left in whole or in part of the discretion of a third
person, or accomplished through the instrumentality of an
agent or attorney.
PURELY PERSONAL CHARACTER
NON-DELEGABILITY OF WILL MAKING
● It is in the exercise of the disposing power that cannot be
delegated. Mechanical aspects (i.e. typing) do not fall
within the prohibition
ARTICLE 785. The duration or efficacy of the designation of
heirs, devisees or legatees, or the determination of the
portions which they are to take, when referred to by name,
cannot be left to the discretion of a third person.
ESSENCE OF WILL-MAKING OR EXERCISE OF THE
DISPOSING POWER, THUS NON-DELEGABLE:
1. Designation of heirs, devisees, or legatees
2. Duration or efficacy of such designation (including such
things as conditions, terms, substitutions)
3. Determination of the portions they are to receive
ARTICLE 786. The testator may entrust to a third person the
distribution of specific property or sums of money that he
may leave in general to specified classes or causes, and
also the designation of the persons, institutions or
establishments to which such property or sums are to be
given or applied.
EXCEPTION TO THE RULE ON NON-DELEGABILITY OF
WILL MAKING
● Without this provision, things allowed to be delegated here
would be non-delegable
THINGS TO BE DETERMINED BY TESTATOR
1. The property or amount of money to be given
2. The class or cause to be benefited
THINGS THAT MAY BE DELEGATED BY THE TESTATOR
1. The designation of persons, institutions, or establishments
within the class or cause
2. The manner of distribution
Q: Suppose the testator specified the recipients (by specific
designation) but left to the third person the determination of the
sharing, e.g. “I leave P500.000 for the PNRC, the SPCA, and
the Tala Leprosarium, to be distributed among these
institutions in such proportions as my executor may
determine.” Is this valid?
A: Art 785 seems to prohibit this because the recipients are
referred to by name and therefore the portions they are to take
must be determined by the testator. Art 786 applies only where
the testator merely specifies the class or the cause but not the
specific recipients.
ALTERNATIVE A: This actually involves a lesser discretion for
the third person than the instances allowed by Article 786 and
should be allowed.
ARTICLE 787. The testator may not make a testamentary
disposition in such manner that another person has to
determine whether or not it is to be operative.
This rule is consistent with, and reinforces the purely personal
character of a will (Art 784)
What this article prohibits is the delegation to a third person
of the power to decide whether a disposition should take effect
or not
● EXAMPLE: “I leave ⅛ of my estate to A, and I authorize B
to decide whether this disposition should be given effect or
not” [PROHIBITED - A is free to accept or renounce the
testamentary benefit]
RABADILLA V CA
DOCTRINE: A will is a personal, solemn, revocable, and
free act by which a person disposes of his property, to take
effect after his death.
● Since the will expresses the manner in which a person
intends how his properties be disposed, the wishes and
de- sires of the testator must be strictly followed. Thus,
a will cannot be the subject of a compromise agreement
which would thereby defeat the very purpose of making
a will.
● A "mode" imposes an obligation upon the heir or
legatee but it does not affect the efficacy of his rights to
the succession. On the other hand, in a conditional
testamentary disposition, the condition must happen or
be fulfilled in order for the heir to be entitled to succeed
the testator. The condition suspends but does not
obligate; and the mode obligates but does not suspend.
To some extent, it is similar to a resolutory condition.
HERREROS V GIL
DOCTRINE: The making of a will should be considered
subordinated to both the law and public policy.
● A correction by inference cannot be made. For courts to
supply alleged deficiencies would be against the evident
policy of the law.
MONTINOLA V HERBOSA
DOCTRINE: Rizal’s Mi Ultimo Adios is a literary piece of
work and was not a will. It lacks “animus testandi” or the
intent to bequeath his property to certain persons.
VITUG V CA
DOCTRINE: The conveyance is not one of mortis causa,
which should be embodied in a will.
● A will has been defined as “a personal, solemn,
revocable and free act by which a capacitated person
9
 disposes of his property and rights and declares or
complies with duties to take effect after his death.”
● The bequest or devise must pertain to the testator
● ITC, the monies subject of savings account were in the
nature of conjugal funds. There is no showing that the
funds exclusively belonged to one party, and hence it
must be presumed conjugal having been acquired
during the existence of the marital relations.
● Neither is the survivorship agreement a donation inter
vivos because it was to take effect after the death of
one party. It is not a donation between the spouses
because it involved no conveyance of a spouse’s own
properties to the other.
SURVIVORSHIP AGREEMENT
2 owners, if 1 dies the amount becomes the sole ownership of
the surviving owner - VALID
2. Characteristics of Wills
CHARACTERISTICS OF WILL
1. Purely personal (Art 784-785; 787)
2. Free and intelligent (Art 839)
3. Solemn and formal (Art 804-814; 820-821)
4. Revocable or ambulatory (Article 828)
5. Mortis causa (Art 783)
6. Individual (Art 818)
7. Executed with animus testandi (Art 783)
8. Executed with testamentary capacity (Art 796-803)
9. Unilateral (Art 783)
10. Dispositive of property (Art 783)
11. Statutory (Art 783)
a. Unilateral
ARTICLE 841. A will shall be valid even though it should not
contain an institution of an heir, or such institution should not
comprise the entire estate, and even though the person so
instituted should not accept the inheritance or should be
incapacitated to succeed.
In such cases the testamentary dispositions made in
accordance with law shall be complied with and the
remainder of the estate shall pass to the legal heirs.
Even if the will does not contain any testamentary disposition,
it will be formally valid provided it complies with all the formal
requisites
ARTICLE 1041. The acceptance or repudiation of the
inheritance is an act which is purely voluntary and free.
ARTICLE 1042. The effects of the acceptance or
repudiation shall always retroact to the moment of the death
of the decedent.
ARTICLE 1043. No person may accept or repudiate an
inheritance unless he is certain of the death of the person
from whom he is to inherit, and of his right to the inheritance.
ARTICLE 1044. Any person having the free disposal of his
property may accept or repudiate an inheritance.
Any inheritance left to minors or incapacitated persons may
be accepted by their parents or guardians. Parents or
guardians may repudiate the inheritance left to their wards
only by judicial authorization.
The right to accept an inheritance left to the poor shall
belong to the persons designated by the testator to
determine the beneficiaries and distribute the property, or in
their default, to those mentioned in Article 1030.
ARTICLE 1045. The lawful representatives of corporations,
associations, institutions and entities qualified to acquire
property may accept any inheritance left to the latter, but in
order to repudiate it, the approval of the court shall be
necessary.
ARTICLE 1046. Public official establishments can neither
accept nor repudiate an inheritance without the approval of
the government.
ARTICLE 1047. A married woman of age may repudiate an
inheritance without the consent of her husband.
ARTICLE 1048. Deaf-mutes who can read and write may
accept or repudiate the inheritance personally or through an
agent. Should they not be able to read and write, the
inheritance shall be accepted by their guardians. These
guardians may repudiate the same with judicial approval.
ARTICLE 1049. Acceptance may be express or tacit.
An express acceptance must be made in a public or private
document.
A tacit acceptance is one resulting from acts by which the
intention to accept is necessarily implied, or which one
would have no right to do except in the capacity of an heir.
Acts of mere preservation or provisional administration do
not imply an acceptance of the inheritance if, through such
acts, the title or capacity of an heir has not been assumed.
ARTICLE 1050. An inheritance is deemed accepted:
(1) If the heirs sells, donates, or assigns his right to a
stranger, or to his co-heirs, or to any of them;
(2) If the heir renounces the same, even though
gratuitously, for the benefit of one or more of his co-
heirs;
(3) If he renounces it for a price in favor of all his co-heirs
indiscriminately; but if this renunciation should be
gratuitous, and the co-heirs in whose favor it is made
are those upon whom the portion renounced should
devolve by virtue of accretion, the inheritance shall not
be deemed as accepted.
ARTICLE 1051. The repudiation of an inheritance shall be
made in a public or authentic instrument, or by petition
presented to the court having jurisdiction over the
testamentary or intestate proceedings.
ARTICLE 1052. If the heir repudiates the inheritance to the
prejudice of his own creditors, the latter may petition the
10

court to authorize them to accept it in the name of the heir.
The acceptance shall benefit the creditors only to an extent
sufficient to cover the amount of their credits. The excess,
should there be any, shall in no case pertain to the
renouncer, but shall be adjudicated to the persons to whom,
in accordance with the rules established in this Code, it may
belong.
ARTICLE 1053. If the heir should die without having
accepted or repudiated the inheritance his right shall be
transmitted to his heirs.
ARTICLE 1054. Should there be several heirs called to the
inheritance, some of them may accept and the others may
repudiate it.
ARTICLE 1055. If a person, who is called to the same
inheritance as an heir by will and ab intestato, repudiates the
inheritance in his capacity as a testamentary heir, he is
understood to have repudiated it in both capacities.
Should he repudiate it as an intestate heir, without
knowledge of his being a testamentary heir, he may still
accept it in the latter capacity.
ARTICLE 1056. The acceptance or repudiation of an
inheritance, once made, is irrevocable, and cannot be
impugned, except when it was made through any of the
causes that vitiate consent, or when an unknown will
appears.
UNILATERAL
Only the act of the testator, not dependent upon the existence
of the heir
Q: Example of a will that does not involve the disposition of
property in favor of the heirs
A: Disinheritance
NO HEIR
1. Heir predeceased the testator
2. Heir is incapacitated to receive the inheritance
3. Heir repudiates his inheritance
b. Mortis Causa
ARTICLE 783. A will is an act whereby a person is
permitted, with the formalities prescribed by law, to control to
a certain degree the disposition of this estate, to take effect
after his death.
AFTER HIS DEATH
Testamentary succession, like all other kinds of succession, is
mortis causa
WILL
A species of conveyance whereby a person is permitted, with
the formalities prescribed by law, to control to a certain degree
the disposition of his estate after his death. (CANEDA V CA)
● A will MUST dispose of properties; if it merely states his
desired funeral rites or it merely recognizes an illegitimate
child, it is not a will
TWO TYPES OF DISPOSITION
3. DIRECT - There is an actual provision in the will wherein
the person identifies a certain piece of property and gives
it to a specific individual
4. INDIRECT - When the will disposes of a property by
inference of implication i.e. disinheritance
LAST WILL VS TESTAMENT
NOW: No difference
UNDER ANGLO-AMERICAN LAW: testament (disposes of
personal property) vs will (disposes of real property)
ARTICLE 838. No will shall pass either real or personal
property unless it is proved and allowed in accordance with
the Rules of Court.
The testator himself may, during his lifetime, petition the
court having jurisdiction for the allowance of his will. In such
case, the pertinent provisions of the Rules of Court for the
allowance of wills after the testator's a death shall govern.
The Supreme Court shall formulate such additional Rules of
Court as may be necessary for the allowance of wills on
petition of the testator.
Subject to the right of appeal, the allowance of the will,
either during the lifetime of the testator or after his death,
shall be conclusive as to its due execution.
PROBATE OF A WILL IS MANDATORY (RULE 76 ROC)
TWO KINDS OF PROBATE
1. Post-mortem - after the testator’s death
2. Ante-mortem - during his lifetime
FINALITY OF A PROBATE DECREE
Once a decree of probate becomes final in accordance with
the rule of procedure, it is res judicata
SCOPE OF A FINAL DECREE OF PROBATE
CONCLUSIVE as to the due execution of the will (i.e. as to
the will’s extrinsic or formal validity only)
FORMAL VALIDITY CONCLUSIVELY SETTLED BY A FINAL
DECREE OF PROBATE (GALLANOSA case)
1. That the testator was of sound and disposing mind
2. That his consent was not vitiated
3. That the will was signed by him in the presence of the
required number of witnesses
4. That the will is genuine
WHAT FORMAL VALIDITY ENCOMPASSES: (DOROTEHO
V CA)
11
a. Whether the will submitted is indeed the decedent’s last
will and testament
b. Compliance with the prescribed formalities for the
execution of wills
c. Testamentary capacity
d. Due execution of the will
DUE EXECUTION:
1. The testator’s sound and disposing mind
2. Freedom from vitiating factors (duress, menace, undue
influence)
3. Will genuine, not forgery
4. Proper testamentary age
5. The testator is not expressly prohibited by law from
making a will
GENERAL RULE: A decree of probate, does not concern itself
with the question of intrinsic validity and the probate court
should not pass upon that issue
EXCEPTION: The probate of a will might become an idle
ceremony if on its face it appears to be intrinsically void.
● Where practical considerations demand that the intrinsic
validity of the will be passed upon, even before it is
probated, the court should meet the issue
(NEPOMUCENO V CA)
● Save in an extreme case where the will on its face is
intrinsically void, it is the probate court’s duty to pass first
upon the formal validity of the will (BALANAY V
MARTINEZ)
ARTICLE 1080. Should a person make partition of his
estate by an act inter vivos, or by will, such partition shall be
respected, insofar as it does not prejudice the legitime of the
compulsory heirs.
A parent who, in the interest of his or her family, desires to
keep any agricultural, industrial, or manufacturing enterprise
intact, may avail himself of the right granted him in this
article, by ordering that the legitime of the other children to
whom the property is not assigned, be paid in cash.
PARTITION BY THE CAUSANTE (decedent)
The causante (decedent) can himself effect the partition of his
estate
NATURE OF PARTITION BY CAUSANTE
A partition made by the causante has the following
characteristics:
(a) It takes effect only upon death
(b) It is revocable as long as the causante is alive; hence the
causante can change or modify it, or even rescind it during
his lifetime
These characteristics stem from the fact that the partition is
based on succession as the mode of transfer, and succession
is necessarily mortis causa
● Succession, in our law, cannot take place during the
causante's lifetime; that would be a donation inter vivos,
not succession.
● In no case can the legitimes be impaired
HOW CAUSANTE MAY MAKE THE PARTITION
(a) By will
(b) By act inter vivos
● A partition inter vivos should be in writing and in a
public instrument (FAJARDO V FAJARDO), however,
the obiter in CHAVEZ V IAC that even an oral
partition is valid
● A mere partition inter vi- vos which does not observe
the formalities of a will cannot, by itself, make
testamentary dispositions, because that would
circumvent the requirement of law that dispositions
mortis causa can be made only by means of a will
● A person cannot, in the guise of making a
partition, make disposition of property to take
effect upon his death.
LIMITATION ON PARTITION BY CAUSANTE
The legitimes of the causante’s compulsory heirs cannot be
impaired by partition made by him, whether in a will or by an
act inter vivos.
PARTITION TO KEEP AN ENTERPRISE INTACT:
1. It seems only a parent is allowed the privilege of this
paragraph.
2. It is understood that this privilege (to make the partition in
such a way as to keep the enterprise intact) can be
exercised only if enough cash or other property is
available to satisfy the legitimes of the other children.
Under no circumstances should the legitimes be impaired.
c. Personal
ARTICLE 784. The making of a will is a strictly personal act;
it cannot be left in whole or in part of the discretion of a third
person, or accomplished through the instrumentality of an
agent or attorney.
PURELY PERSONAL CHARACTER
NON-DELEGABILITY OF WILL MAKING
● It is in the exercise of the disposing power that cannot be
delegated. Mechanical aspects (i.e. typing) do not fall
within the prohibition
ARTICLE 785. The duration or efficacy of the designation of
heirs, devisees or legatees, or the determination of the
portions which they are to take, when referred to by name,
cannot be left to the discretion of a third person.
ESSENCE OF WILL-MAKING OR EXERCISE OF THE
DISPOSING POWER, THUS NON-DELEGABLE:
4. Designation of heirs, devisees, or legatees
5. Duration or efficacy of such designation (including such
things as conditions, terms, substitutions)
6. Determination of the portions they are to receive
12
 ARTICLE 786. The testator may entrust to a third person the
distribution of specific property or sums of money that he
may leave in general to specified classes or causes, and
also the designation of the persons, institutions or
establishments to which such property or sums are to be
given or applied.
EXCEPTION TO THE RULE ON NON-DELEGABILITY OF
WILL MAKING
● Without this provision, things allowed to be delegated here
would be non-delegable
THINGS TO BE DETERMINED BY TESTATOR
3. The property or amount of money to be given
4. The class or cause to be benefited
THINGS THAT MAY BE DELEGATED BY THE TESTATOR
3. The designation of persons, institutions, or establishments
within the class or cause
4. The manner of distribution
ARTICLE 787. The testator may not make a testamentary
disposition in such manner that another person has to
determine whether or not it is to be operative.
This rule is consistent with, and reinforces the purely personal
character of a will (Art 784)
What this article prohibits is the delegation to a third person
of the power to decide whether a disposition should take effect
or not
● EXAMPLE: “I leave ⅛ of my estate to A, and I authorize B
to decide whether this disposition should be given effect or
not” [PROHIBITED - A is free to accept or renounce the
testamentary benefit]
d. Individual
ARTICLE 818. Two or more persons cannot make a will
jointly, or in the same instrument, either for their reciprocal
benefit or for the benefit of a third person.
JOINT WILLS [VOID]
ONE DOCUMENT which constitutes the wills of 2 or more
individuals
● If there are separate documents, each serving as one
independent will (even if they are written on the same
sheet), they are not joint wills prohibited by the article
REASONS FOR DECLARED PUBLIC POLICY AGAINST
JOINT WILLS
e. The limitation on the modes of revocation (i.e., one of
the testators would not be able to destroy the
document without also revoking it as the will of the
other testator, or in any event, as to the latter, the
problem of unauthorized destruction would come in);
f. the diminution of testamentary secrecy;
g. the danger of undue influence;
h. the danger of one testator killing the other.
SIR: A will is so personal, so confidential - like a diary; it is a
violation of privacy or confidentiality if another person is
allowed to see or execute a will for another
ARTICLE 819. Wills, prohibited by the preceding article,
executed by Filipinos in a foreign country shall not be valid
in the Philippines, even though authorized by the laws of the
country where they may have been executed.
OUTLINE ON JOINT WILLS
1. Executed by Filipinos in the PH (Art 818) - VOID
2. Executed by Filipinos abroad (Art 819) - VOID, even if
authorized by the law of the place of execution (an
exception to the permissive provisions of Art 17 and 815)
3. Executed by aliens abroad - ART 816
4. Executed by aliens in PH - controverted: one view (VOID)
because of public policy; other view (ART 817)
5. Executed by a Filipino and an alien - as to the Filipino
(VOID); as to alien (#3 or 4)
ARTICLE 875. Any disposition made upon the condition that
the heir shall make some provision in his will in favor of the
testator or of any other person shall be void.
SCRIPTURA CAPTATORIA
“Captatoriae scripturae neque in hereditatibus, neque in legatis
valent." (Legacy-hunting dispositions, whether to heirs or
legatees, arevoid.)
REASONS FOR PROHIBITION
1. The captatoria converts testamentary grants into
contractual transactions
2. It deprives the heir of testamentary freedom
3. It gives the testator the power to dispose mortis causa not
only of his property but also of his heir’s
WHAT IS DECLARED VOID
It is not merely the condition that is declared void but the
testamentary disposition itself which contains the condition
i. Revocable
ARTICLE 828. A will may be revoked by the testator at any
time before his death. Any waiver or restriction of this right is
void.
WILL → REVOCABLE or AMBULATORY
● This characteristic cannot be waived even by the testator.
● A will is revocable at the testator’s pleasure during his
lifetime.
13
 j. Free expression of testator’s animus
testandi
ARTICLE 829. A revocation done outside the Philippines, by
a person who does not have his domicile in this country, is
valid when it is done according to the law of the place where
the will was made, or according to the law of the place in
which the testator had his domicile at the time; and if the
revocation takes place in this country, when it is in
accordance with the provisions of this Code.
RULES FOR REVOCATION
A. Revocation made inside PH - PH law
B. Revocation made outside PH
1. Testator not domiciled in PH
a. Law of place where the will was made
b. Law of place where testator was domiciled at the
time of the revocation
2. Testator domiciled in PH (not governed by Art 829)
a. PH law (domiciliary principle in ART 829)
b. Law of the place of revocation (principle of lex
loci celebrationis in ART 17)
c. Law of place where will was made (by analogy
with rules on revocation where testator is a non
PH domiciliary)
k. Solemn Act
ART 804 - COMMON REQUIREMENTS
ART 805 - 808 - SPECIAL REQUIREMENTS FOR ATTESTED
WILLS
ART 810 - 8014 - SPECIAL REQUIREMENTS FOR
HOLOGRAPHIC WILLS
ARTICLE 804. Every will must be in writing and executed in
a language or dialect known to the testator.
COMMON REQUIREMENTS (apply to the 2 kinds of wills
recognized by the code: attested and holographic)
(1) In writing
(2) In a language or dialect known to the testator
NOTE: Neither will nor attestation clause need state
compliance with this requirement. This can be proven by
extrinsic evidence.
PRESUMPTION OF COMPLIANCE
It may sometimes be presumed that the testator knew the
language in which the will was written
ORAL WILLS → not recognized in the Code (allowed under the
code of Muslim Personal Laws of PH)
ARTICLE 805. Every will, other than a holographic will, must
be subscribed at the end thereof by the testator himself or
by the testator's name written by some other person in his
presence, and by his express direction, and attested and
subscribed by three or more credible witnesses in the
presence of the testator and of one another.
The testator or the person requested by him to write his
name and the instrumental witnesses of the will, shall also
sign, as aforesaid, each and every page thereof, except the
last, on the left margin, and all the pages shall be numbered
correlatively in letters placed on the upper part of each page.
The attestation shall state the number of pages used upon
which the will is written, and the fact that the testator signed
the will and every page thereof, or caused some other
person to write his name, under his express direction, in the
presence of the instrumental witnesses, and that the latter
witnessed and signed the will and all the pages thereof in
the presence of the testator and of one another.
If the attestation clause is in a language not known to the
witnesses, it shall be interpreted to them.
ARTICLE 806. Every will must be acknowledged before a
notary public by the testator and the witnesses. The notary
public shall not be required to retain a copy of the will, or file
another with the Office of the Clerk of Court.
SAID ARTICLES LAY DOWN SPECIAL REQUIREMENTS
FOR ATTESTED (ORDINARY OR NOTARIAL) WILLS:
(1) Subscribed by the testator or his agent in his presence by
his express direction at the end thereof, in the presence of
the witnesses
(2) Attested and subscribed by at least 3 credible witnesses in
the presence of the testator and of one another
(3) The testator, or his agent, must sign every page, except
the last, on the left margin in the presence of the witness
(4) The witnesses must sign every page, except the last, on
the left margin in the presence of the testator and of one
another
(5) All pages numbered correlatively in letters on the upper
part of each page
(6) Attestation clause, stating:
a) The number of pages of the will
b) The fact that the testator or his agent under his
express direction signed the will and every page
thereof, in the presence of the witnesses
c) The fact that the witnesses witnessed and signed the
will and every page thereof in the presence of the
testator and one another
(7) Acknowledgement before a notary public
SUBSCRIBED BY THE TESTATOR OR HIS AGENT IN HIS
PRESENCE AND BY HIS EXPRESS DIRECTION AT THE
END THEREOF, IN THE PRESENCE OF THE WITNESS
SUBSCRIBED BY THE TESTATOR
SUBSCRIBE → denotes writing, more precisely, to write under
SIGN → to place a distinguishing mark
● EXAMPLE: Thumb mark as signature, cross is not a
signature unless it is the testator’s usual manner of
signature or one of his usual styles of signing (GARCIA
case)
14

Signing has a broader meaning than subscribing; not every
signature is necessary a subscription; not every distinguishing
mark is writing
SIGNING BY AN AGENT OF THE TESTATOR
Two requisites for singing by the agent:
1. Must sign in testator’s presence
2. By his express direction
What agent must write:
The essential thing, for validity, is that the agent write the
testator’s name, nothing more. (BARUT case)
● It would be a good thing, but not required, for the agent to
indi- cate the fact of agency or authority
● EXAMPLE: For the testator Juan dela Cruz by Jose
Santos
SIGNING AT THE END
If the will contains only dispositive provisions, there will be no
ambiguity as to where the end of the will is
HOWEVER, If the will contains non-dispositive paragraphs
after the testamentary dispositions, one can refer to 2 kinds of
end:
(1) The physical end - where the writing stops; or
(2) The logical end - where the last testamentary disposition
ends
Signing at the physical end is always permissible; but equally
permissible is signing at the logical end
● The non-dispositive portion are not essential parts of the
will
Signing before the end invalidates not only the dispositions that
come after, but the entire will because then one of the statutory
requirements would not have been complied with
SIGNING IN THE PRESENCE OF WITNESSES
Actual seeing is not required, but the ability to see each other
(i.e. the testator and the witnesses) by merely casting their
eyes in the proper direction (NERA case)
ATTESTED AND SUBSCRIBED BY AT LEAST THREE
CREDIBLE WITNESSES IN THE PRESENCE OF THE
TESTATOR AND OF ONE ANOTHER
Two distinct things are required of the witnesses:
1. Attesting - which is the act of witnessing
2. Subscribing - which is the act of signing their names in the
proper places of the will
NOTE: Both must be done
DOES ART 805 REQUIRE THE WITNESSES TO SIGN AT
THE END OF THE WILL?
TABOADA V ROSAL: Involves a will signed at the end by the
testator. The witnesses’ signatures were not found at the end
but on the left hand margin of that page
● RULING: The will fully satisfied the statutory requirement.
While perfection in the drafting of a will may be desirable,
unsubstantial department from the usual forms should be
ignored, especially where the authenticity of the will is not
assailed.
● IMPLICATION: Literally and ideally, the witnesses should
sign at the end of the will, though failure in this regard may
be overlooked.
SIGNING IN THE PRESENCE OF THE TESTATOR AND OF
ONE ANOTHER
NERA ruling on the meaning of presence applies here.
THE TESTATOR, OR HIS AGENT, MUST SIGN EVERY
PAGE EXCEPT THE LAST, ON THE LEFT MARGIN IN THE
PRESENCE OF THE WITNESSES
The last page need not be signed by the testator on the margin
because, being the page where the end of the will is, it already
contains the testator’s signature
There is a mandatory and a directory part to this
requirement:
1. The mandatory part - the signing on every page in the
witnesses’ presence
2. The directory part - the place of the signing, Le. the left
margin; the signature can be affixed anywhere on the
page
If the entire document consists of only two sheets, the first
containing the will and the second, the attestation clause, there
need not be any marginal signatures at all
THE WITNESSES MUST SIGN EVERY PAGE, EXCEPT THE
LAST, ON THE LEFT MARGIN IN THE PRESENCE OF THE
TESTATOR AND OF ONE ANOTHER
ORDER OF SIGNING
Order of signing is immaterial, provided everything is done in a
single transaction
● If the affixation of the signatures is done in several
transactions, then it is required for validity that the testator
affix his signature ahead of the witnesses
ALL PAGES NUMBERED CORRELATIVELY IN LETTER ON
THE UPPER PART OF EACH PAGE
There is a mandatory and directory part to this
requirement:
1. The mandatory part - pagination by means of a
conventional system. The obvious purpose of this is to
prevent insertion or removal of pages
2. The directory part - the pagination in letters on the upper
part of each page
15
ATTESTATION CLAUSE, STATING:
1. THE NUMBER OF PAGES OF THE WILL
2. THE FACT THAT THE TESTATOR OR HIS AGENT
UNDER HIS EXPRESS DIRECTION SIGNED THE WILL
AND EVERY PAGE THEREOF IN THE PRESENCE OF
THE WITNESSES
3. THE FACT THAT THE WITNESSES WITNESSED AND
SIGNED THE WILL AND EVERY PAGE THEREOF IN
THE PRESENCE OF THE TESTATOR AND OF ONE
ANOTHER
ATTESTATION CLAUSE
The affair of the witnesses therefore it need not be signed by
the testator
● The signatures of the witnesses must be at the bottom of
the attestation clause
● The fact that the attestation clause was written on a
separate page has been held to be a matter of “minor
importance” and apparently will not affect the validity of
the will
ACKNOWLEDGEMENT BEFORE A NOTARY PUBLIC
JAVELLANA case: The certification of acknowledgement need
not be signed by the notary in the presence of the testator and
the witnesses
The notary public cannot be counted as one of the
attesting witness
Affixing of documentary stamp is not required for validity
BALANE: If the acknowledgment is done by the testator and
the witnesses separately, all of them must retain their
respective capacities until the last one has acknowledged.
ARTICLE 807. If the testator be deaf, or a deaf-mute, he
must personally read the will, if able to do so; otherwise, he
shall designate two persons to read it and communicate to
him, in some practicable manner, the contents thereof.
ARTICLE 808. If the testator is blind, the will shall be read to
him twice; once, by one of the subscribing witnesses, and
again, by the notary public before whom the will is
acknowledged.
SPECIAL REQUIREMENTS FOR HANDICAPPED
TESTATORS
*ART 808 - mandatory
For deaf/deaf-mutes testator:
a. If able to read - he must read the will personally
b. If unable to read - he must designate 2 persons to read
the will and communicate to him, in some practical manner
its contents
For blind testator
Will to be read to him twice, once by one of the subscribing
witnesses, and another time by the notary
For illiterate testator
An illiterate testator, because of his incapacity to read the will
is not unlike a blid testator. Art 808 should apply (GARCIA and
ALVARADO case)
If Art 808 is mandatory, by evident analogy Art 807 would also
be mandatory. Failure to comply with either would result in
nullity and denial of probate.
ARTICLE 809. In the absence of bad faith, forgery, or fraud,
or undue and improper pressure and influence, defects and
imperfections in the form of attestation or in the language
used therein shall not render the will invalid if it is proved
that the will was in fact executed and attested in substantial
compliance with all the requirements of Article 805.
JUSTICE JBL REYES:
(1) A failure by the attestation clause to state that the testator
signed every page can be liberally construed, since every
page can be liberally construed, since that fact can be
checked by a visual examination
(2) A failure by the attestation clause to state that the
witnesses signed in one another’s presence should be
considered a more serious, indeed a fatal, since the
attestation clause is the only textual guarantee of
compliance
ARTICLE 810. A person may execute a holographic will
which must be entirely written, dated, and signed by the
hand of the testator himself. It is subject to no other form,
and may be made in or out of the Philippines, and need not
be witnessed.
REQUIREMENTS OF HOLOGRAPHIC WILLS
(1) Completely handwritten by the testator
● If testator executes only part of the will in his
handwriting, and other parts of the will are not so
written, the entire will is void, because then the article
would be violated
(2) Dated by him
● Date → specification or mention, in a written instrument,
of the time (day, month, year) when it was made
(executed)
● GR: The date in a holographic will should include the
day, month, and year of its execution
(3) Signed by him
● Art 812 - signature must be at will’s end
● Testator cannot sign by means of a thumb print
(“entirely written, dated and signed by hand of the
testator himself)
ADVANTAGE: Simplicity, secrecy, inexpensiveness, brevity
DISADVANTAGE: Danger of forgery, the greater difficulty of
determining testamentary capacity, the increased risk of
duress
16
 ARTICLE 811. In the probate of a holographic will, it shall be
necessary that at least one witness who knows the
handwriting and signature of the testator explicitly declare
that the will and the signature are in the handwriting of the
testator. If the will is contested, at least three of such
witnesses shall be required.
In the absence of any competent witness referred to in the
preceding paragraph, and if the court deem it necessary,
expert testimony may be resorted to.
APPLIES ONLY TO POST MORTEM PROBATES
It does not apply to ante mortem probates since in such cases
the testator himself files the petition and will identify the
document itself
GENUINENESS OF A HANDWRITING MAY BE PROVED
BY:
1. A witness who actually saw the person writing the
instrument
2. A witness familiar with such handwriting and who can give
his opinion thereon, such opinion being an exception to
the opinion rule
3. A comparison by the court of the questioned handwriting
and admitted genuine specimen thereof
4. Expert evidence
(DOMINGO V DOMINGO; RULE 132 SEC 22 ROC)
The 3-witness provision in case of contested holographic
wills is directly, not mandatory.
In the probate of a holographic will, the document itself
must be produced. A lost holographic will cannot be
probated.
ARTICLE 812. In holographic wills, the dispositions of the
testator written below his signature must be dated and
signed by him in order to make them valid as testamentary
dispositions.
ARTICLE 813. When a number of dispositions appearing in
a holographic will are signed without being dated, and the
last disposition has a signature and a date, such date
validates the dispositions preceding it, whatever be the time
of prior dispositions.
FORMAL REQUIREMENT FOR ADDITIONAL
DISPOSITIONS IN A HOLOGRAPHIC WILL
1. Signature
2. Date
WHEN THERE ARE SEVERAL ADDITIONAL DISPOSITIONS
a. Signature and date
b. Each additional disposition signed and undated, but the
last disposition signed and dated
If, in the case of several additional dispositions the additional
ones before the last are dated but not signed, only the last
will be valid, provided the last is signed and dated
ARTICLE 814. In case of any insertion, cancellation,
erasure or alteration in a holographic will, the testator must
authenticate the same by his full signature.
FULL SIGNATURE
Does not necessarily mean the testator’s full name; it rather
means his usual and customary signature
EFFECT OF NON-COMPLIANCE WITH THE ARTICLE
The change (insertion, cancellation, etc) is simply considered
not made
● The will is not thereby invalidated as a whole, but at most
only as regards the particular words erased, corrected or
inserted
ARTICLE 839. The will shall be disallowed in any of the
following cases:
(1) If the formalities required by law have not been
complied with;
(2) If the testator was insane, or otherwise mentally
incapable of making a will, at the time of its execution;
(3) If it was executed through force or under duress, or the
influence of fear, or threats;
(4) If it was procured by undue and improper pressure and
influence, on the part of the beneficiary or of some other
person;
(5) If the signature of the testator was procured by fraud;
(6) If the testator acted by mistake or did not intend that the
instrument he signed should be his will at the time of
affixing his signature thereto.
NOTE: Exclusive enumeration of the causes for disallowance
of a will
● If any of these grounds for disallowance is proved, the will
shall be set aside as void
A will is either valid or void
● If none of the defects enumerated in this article are
present, it is valid
● If any one of these defects is present, the will is void
● The issue of formal validity or nullity is precisely what the
probate proceeding will determine
There is no such thing as a voidable will
RE: (1) Formalities referred to are those laid down in Art 804-
814, 818-819, and 820-821
RE: (2) CF Art 798 - 801
RE: (3) DEFINITIONS
Force or violence, duress or intimidation (Art 1335)
RE: (4) DEFINITION
Undue or improper pressure or influence (Art 1337)
RE: (5) DEFINITION
Fraud (Art. 1338)
17
RE: (6) DEFINITION a. Latent as to person - I institute to 1/44 of my estate
Mistake (Art 1331) my first cousin Jose (and the testator has more than
one first cousin named Jose)
b. Latent as to property - I devise to my cousin Pacifico
3. Interpretation of Wills
my fishpond in Roxas City (and the testator has more
than 1 fishpond in Roxas City)
RULES OF INTERPRETATION (SIR BOBBIE)
1. Testacy is preferred to intestacy → adopt interpretation that will
In neither case does there appear to be ambiguity on
uphold the validity of the will
the face of the will; the ambiguity is latent (latere - to
2. Latent or patent ambiguity must be resolved, as far as
be hidden; to be concealed)
possible, to give effect to testamentary disposition. Any
admissible and relevant evidence may be used to resolve
2. Patent - obvious on the face of the will; when an
such ambiguity except oral declarations of testator as to
uncertainty arises upon the face of the will, as to the
his intention.
application of any of its provisions
3. Words are to be given ordinary meaning while technical
a. Patent as to person - I institute to ¼ of my estate
words to be taken in their technical sense, unless contrary
some of my first cousins
to intention or context justifies otherwise.
b. Patent as to property - I bequeath to my cousin
4. Interpretation should as far as possible give effect to the
Pacifico some of my cars
will as a whole.
5. Severability principle should be observed.
In both cases, the ambiguity is evident from a reading
6. Property acquired after the will was executed are not
of the testamentary provisions themselves; the
included in the testamentary disposition. Express inclusion
ambiguity is patent (patere - to be exposed)
is necessary.
7. In legacy or devise, testator gives his entire interest in the
HOW TO DEAL WITH AMBIGUITIES
thing, unless intention to convey a less interest is clear.
A. Provision does not make a distinction in the solution of the
problem of ambiguities - whether latent or patent
a. Interpretation should favor validity ● Distinction between the 2 kinds of ambiguity is but
theoretical
B. The ambiguity as far as possible be cleared up or
ARTICLE 788. If a testamentary disposition admits of
different interpretations, in case of doubt, that interpretation resolved, in order to give effect to the testamentary
by which the disposition is to be operative shall be preferred. disposition
C. Method of resolving ambiguity, whether latent or patent:
any evidence admissible and relevant, excluding in
PRINCIPLE: Testacy is preferred to intestacy, because the
either case oral declarations of testator as to his intention
former is the express will of the decedent whereas the latter is
only his implied will
WHY ORAL DECLARATIONS OF TESTATOR ARE NOT
● CF: Art 1373
ALLOWED
Prone to fraud - testator cannot confirm or deny such
In statutory construction, the canon is worded thus: “Ut res
statements
magis valeat quam pereat.”—That the thing may rather be
effective than be without effect.
c. Interpretation of words
b. In case of ambiguities
ARTICLE 790. The words of a will are to be taken in their
ordinary and grammatical sense, unless a clear intention to
ARTICLE 789. When there is an imperfect description, or use them in another sense can be gathered, and that other
when no person or property exactly answers the description, can be ascertained.
mistakes and omissions must be corrected, if the error
appears from the context of the will or from extrinsic Technical words in a will are to be taken in their technical
evidence, excluding the oral declarations of the testator as sense, unless the context clearly indicates a contrary
to his intention; and when an uncertainty arises upon the intention, or unless it satisfactorily appears that he was
face of the will, as to the application of any of its provisions, unacquainted with such technical sense.
the testator’s intention is to be ascertained from the words of
the will, taking into consideration the circum- stances under
which it was made, excluding such oral declarations. SIMILAR TO RULE 130 SEC 10 & 14 ROC; ART 1370 PAR 1
CC
TWO KINDS OF AMBIGUITY
1. Latent - Not obvious on the face of the will d. Interpretation as a whole

18
 ARTICLE 791. The words of a will are to receive an
interpretation which will give to every expression some
effect, rather than one which will render any of the
expressions inoperative; and of two modes of interpreting a
will, that is to be preferred which will prevent intestacy.
SIMILAR TO RULE 130 SEC 11 ROC; ART 1373 & 1374 CC
e. Severability of invalid provisions
ARTICLE 792. The invalidity of one of several dispositions
contained in a will does not result in the invalidity of the
other dispositions, unless it is to be presumed that the
testator would not have made such other dispositions if the
first invalid disposition had not been made.
This article makes applicable to wills the severability or
separability principle in statutory construction frequently
expressly provided in a separability clause.
Q: Example where the severability cannot be applied - where
entire will is void
A: In the case of holographic will, if the date is considered
invalid - will merely mentioned the month without mentioning
the year. Cannot declare only the date void because it is a
required formality of the will
f. After-acquired property
ARTICLE 793. Property acquired after the making of a will
shall only pass thereby, as if the testator had possessed it at
the time of making the will, should it expressly appear by the
will that such was his intention.
This article makes the will speak as of the time it is made,
rather than at the time of the decedent’s death (which is more
logical because that is when the will takes effect [Art. 777]).
● Present article departs from the codal philosophy of Art
774 and 776 and constitutes an exception to the concept
of succession as linked to death and rendered legally
effective by death
BALANE: Rule should be: property acquired after the making
of a will passes thereby unless the contrary clearly appears
from the words or the context of the will
ARTICLE 930. The legacy or devise of a thing belonging to
another person is void, if the testator erroneously believed
that the thing pertained to him. But if the thing bequeathed,
though not belonging to the testator when he made the will,
afterwards becomes his, by whatever title, the disposition
shall take effect.
g. Extent of interest covered
ARTICLE 794. Every devise or legacy shall cover all the
interest which the testator could device or bequeath in the
property disposed of, unless it clearly appears from the will
that he intended to convey a less interest.
SHOULD BE READ TOGETHER WITH ART 929
GENERAL RULE: In a legacy or devise the testator gives
exactly the interest he has in the thing
EXCEPTION: He can give a less interest (Article 794) or a
greater interest (Article 929) than he has.
● In the latter case, if the person owning the interest to be
acquired does not wish to part with it, the solution in Article
931 can be applied; i.e. the legatee or devisee shall be
entitled only to the just value of the interest that should
have been acquired.
PARISH PRIEST V RIGOR
DOCTRINE: (AMBIGUITY) The will of the testator is the first
and principal law in the matter of testaments. When his
intention is clearly and precisely expressed, any
interpretation must be in accord with the plain and literal
meaning of his words, except when it may clearly appear
that his intention was different from that literally expressed.
The testator’s intention is to be ascertained from the words
of the will, taking into consideration the circumstances under
which it was made.
YAMBAO V GONZALES
DOCTRINE: The Court held that the trial court did not
properly interpret the clear import of Maria Gonzalez’s wish,
and ruled that the will contain a clear directive to employ
Yambao as may be seen from the words preceding the word
"pahihintulutan".
● The words 'dapat TUNGKULIN O GANGPANAN" mean
to do or to carry out as a mandate or directive, and
having reference to the word "pahihintulutan", can
convey no other meaning than to impose a duty upon
appellees.
VDA. DE VILLANUEVA V JUICO
DOCTRINE: Speculation as to the motives of the testator in
imposing the conditions contained in clause 7th of his
testament should not be allowed to obscure the clear and
unambiguous meaning of his plain words, which are over the
primary source in ascertaining his intent.
● The wishes of the testator, when clearly expressed in
his will, constitute the fixed law of the intention and
interpretation, and all questions raised at the trial,
relative to its execution and fulfillment, must be settled
in accordance therewith, following the plain and literal
meaning of the testator's words, unless it clearly
appears that his intention was otherwise.
4. Governing Law
a. Form
19
ASPECTS OF VALIDITY OF WILLS
and those which have, for their object, public order, public
A. EXTRINSIC - requirement of form (formal validity) policy and good customs shall not be rendered ineffective by
1. Governing law as to time: laws or judgments promulgated, or by determinations or
a. For Filipinos conventions agreed upon in a foreign country.
● The law in force when the will was executed
b. For Foreigners
ARTICLE 815. When a Filipino is in a foreign country, he is
● SAME (NOTE: Assumption here is that the
authorized to make a will in any of the forms established by
will is being probated here) the law of the country in which he may be. Such will may be
2. Governing law as to place probated in the Philippines.
a. For Filipinos
i. Law of citizenship ARTICLE 816. The will of an alien who is abroad produces
ii. Law of domicile effect in the Philippines if made with the formalities
iii. Law of residence prescribed by the law of the place in which he resides, or
according to the formalities observed in his country, or in
iv. Law of place of execution
conformity with those which this Code prescribes.
v. Philippine law
b. For Foreigners ARTICLE 817. A will made in the Philippines by a citizen or
i. Law of citizenship subject of another country, which is executed in accordance
ii. Law of domicile with the law of the country of which he is a citizen or subject,
iii. Law of residence and which might be proved and allowed by the law of his
iv. Law of place of execution own country, shall have the same effect as if executed
according to the laws of the Philippines.
v. Philippine law
B. INTRINSIC substance of the provision (substantive
GOVERNS FORMAL VALIDITY IN FOLLOWING
validity)
INSTANCES
1. Governing law as to time:
1. Filipino abroad - ART 815
a. For Filipinos
2. Alien abroad - ART 816
● The law as of the time of death (ART 2263)
3. Alien in the Philippines - ART 817
b. For Foreigners
● Depends on their personal law (ART 16 PAR
NOTE: Not covered is a situation of a Filipino executing a will
2; ART 1039)
in the PH
2. Governing law as to place:
a. For Filipinos
APPLYING ART 15 AND 17, RULES FOR FILIPINOS AND
● Philippine law (ART 16 PAR 2; ART 1039)
ALIENS ARE AS FOLLOWS:
b. For Foreigners
● Their national law (ART 16 PAR 2; ART
Every testator, whether Filipino or alien, wherever he may
1039)
be, has 5 choices as to what law to follow for the form of
his will:
Q: What about dual citizens?
1. The law of his citizenship (ART 816-817 for aliens;
A: Adopt an interpretation in such a way that you will be able to
applying to Filipinos by analogy, ART 15)
uphold the validity of the will.
2. The law of the place of execution (ART 17)
3. The law of his domicile (ART 816 for aliens abroad;
i. As to time of execution applying to aliens in PH and to Filipinos by analogy)
4. The law of his residence (same as #3)
ARTICLE 795. The validity of a will as to its form depends 5. PH law (ART 816-817 for aliens; ART 15, applying to
upon the observance of the law in force at the time it is Filipinos by analogy)
made.
ARTICLE 810. A person may execute a holographic will
ii. As to place of execution which must be entirely written, dated, and signed by the
hand of the testator himself. It is subject to no other form,
and may be made in or out of the Philippines, and need not
ARTICLE 17. The forms and solemnities of contracts, wills, be witnessed.
and other public instruments shall be governed by the laws
of the country in which they are executed.
REQUIREMENTS OF HOLOGRAPHIC WILLS
When the acts referred to are executed before the (1) Completely handwritten by the testator
diplomatic or consular officials of the Republic of the ● If testator executes only part of the will in his
Philippines in a foreign country, the solemnities established handwriting, and other parts of the will are not so
by Philippine laws shall be observed in their execution. written, the entire will is void, because then the article
would be violated
Prohibitive laws concerning persons, their acts or property,
(2) Dated by him

20
 ● Date → specification or mention, in a written instrument,
of the time (day, month, year) when it was made
(executed)
● GR: The date in a holographic will should include the
day, month, and year of its execution
(3) Signed by him
● Art 812 - signature must be at will’s end
● Testator cannot sign by means of a thumb print
(“entirely written, dated and signed by hand of the
testator himself)
ADVANTAGE: Simplicity, secrecy, inexpensiveness, brevity
DISADVANTAGE: Danger of forgery, the greater difficulty of
determining testamentary capacity, the increased risk of
duress
ARTICLE 818. Two or more persons cannot make a will
jointly, or in the same instrument, either for their reciprocal
benefit or for the benefit of a third person.
JOINT WILLS [VOID]
ONE DOCUMENT which constitutes the wills of 2 or more
individuals
● If there are separate documents, each serving as one
independent will (even if they are written on the same
sheet), they are not joint wills prohibited by the article
REASONS FOR DECLARED PUBLIC POLICY AGAINST
JOINT WILLS
(1) The limitation on the modes of revocation (i.e., one of the
testators would not be able to destroy the document
without also revoking it as the will of the other testator, or
in any event, as to the latter, the problem of unauthorized
destruction would come in);
(2) the diminution of testamentary secrecy;
(3) the danger of undue influence;
(4) the danger of one testator killing the other.
ARTICLE 819. Wills, prohibited by the preceding article,
executed by Filipinos in a foreign country shall not be valid
in the Philippines, even though authorized by the laws of the
country where they may have been executed.
OUTLINE ON JOINT WILLS
1. Executed by Filipinos in the PH (Art 818) - VOID
2. Executed by Filipinos abroad (Art 819) - VOID, even if
authorized by the law of the place of execution (an
exception to the permissive provisions of Art 17 and 815)
3. Executed by aliens abroad - ART 816
4. Executed by aliens in PH - controverted: one view (VOID)
because of public policy; other view (ART 817)
5. Executed by a Filipino and an alien - as to the Filipino
(VOID); as to alien (#3 or 4)
b. Content
i. As to time of execution
ARTICLE 2263. Rights to the inheritance of a person who
died, with or without a will, before the effectivity of this Code,
shall be governed by the Civil Code of 1889, by other
previous laws, and by the Rules of Court. The inheritance of
those who, with or without a will, die after the beginning of
the effectivity of this Code, shall be adjudicated and
distributed in accordance with this new body of laws and by
the Rules of Court; but the testamentary provisions shall be
carried out insofar as they may be permitted by this Code.
Therefore, legitimes, betterments, legacies and bequests
shall be respected; however, their amount shall be reduced
if in no other manner can every compulsory heir be given his
full share according to this Code.
ii. As to succession rights and intrinsic
validity of testamentary provisions
ARTICLE 16. Real property as well as personal property is
subject to the law of the country where it is stipulated.
However, intestate and testamentary successions, both with
respect to the order of succession and to the amount of
successional rights and to the intrinsic validity of
testamentary provisions, shall be regulated by the national
law of the person whose succession is under consideration,
whatever may be the nature of the property and regardless
of the country wherein said property may be found.
IN RE WILL OF REV. ABADIA
DOCTRINE: The validity rests not at the time of the
testator’s death or when the will is presented in probate
court, but when the instrument was executed. A will which
was invalid when it was executed cannot be cured or
validated by a subsequent law.
MICIANO V BRIMO
DOCTRINE: Generally, the intrinsic validity of a will should
follow the national laws of the testator.
● But the fact is that the oppositor did not prove that said
testimentary dispositions are not in accordance with the
Turkish laws, inasmuch as he did not present any
evidence showing what the Turkish laws are on the
matter, and in the absence of evidence on such laws,
they are presumed to be the same as those of the
Philippines.
IN RE ESTATE OF CHRISTENSEN
DOCTRINE: The law that governs his testamentary
dispositions is Art. 16 of the NCC. The application of this
article requires the determination of the meaning of the term
“national law” as used therein.
● The laws of California have prescribed 2 sets of laws for
its citizens, one for residents therein and another for
those domiciled in other jurisdictions. Reason demands
that we should enforce California internal law for its
citizens residing therein, and enforce the conflict of laws
rules for the citizens domiciled abroad.
● The renvoi doctrine provides that the court must take
into account the whole law of the other jurisdiction
21
 (including the Conflict of Laws provisions), and not only
its internal laws (just the succession provisions).
● The court of the domicile can not and should not refer
the case back to California; such action would leave the
issue incapable of determination because the case will
then be like a football, tossed back and forth between
the two states.
IN RE ESTATE OF BELLIS
DOCTRINE: It is evident that whatever public policy or good
customs may be involved in our system of legitimes,
Congress has not intended to extend the same to the
succession of foreign nationals. For it has specifically
chosen to leave, inter alia, the amount of successional
rights, to the decedent's national law. Specific provisions
must prevail over general ones.
IN RE ESTATE OF SUNTAY
DOCTRINE: For the will to be allowed, filed, and recorded
by a PH court, the ff. must be proved: (1) the fact that the
municipal district of Amoy is a probate court, (2) law of
China on procedure in probate or allowance of wills, (3) legal
requirements for the execution of a valid will in China at the
time. In this case, heirs failed to prove them.
LLORETE V CA
DOCTRINE: Whether the will is intrinsically valid and who
shall inherit from Lorenzo are issues best proved by law in
w/c he is a national. Whether the will was executed in
accordance with the formalities required is answered by
referring to Philippine law.
● Granting that a will was duly executed and that it was in
existence at the time of, and not revoked before, the
death of the testator, still the provisions of the lost will
must be clearly and distinctly proved by at least two
credible witnesses. "Credible witnesses" mean
competent witnesses and not those who testify to facts
from or upon hearsay.
● The probate of a will is a proceeding in rem where
notice to all interested parties is essential for its validity.
● Wills proved and allowed in a foreign country, according
to the laws of such country, may be allowed, filed, and
recorded by the proper court in the Philippines. For this
purpose, proof must be presented regarding (1) the
status of the court as a probate court (2) the applicable
foreign laws on procedure in probate or allowance of
wills (3) the legal requirements for the execution of a
valid will abroad.
PALAGANAS V PALAGANAS
DOCTRINE: Our laws do not prohibit the probate of wills
executed by foreigners abroad although the same have not
as yet been probated and allowed in the countries of their
execution. A foreign will can be given legal effects in our
jurisdiction. Article 816 of the Civil Code states that the will
of an alien who is abroad produces effect in the Philippines if
made in accordance with the formalities prescribed by the
law of the place where he resides, or according to the
formalities observed in his country.
● From the foregoing, the rules do not require proof that
the foreign will has already been allowed and probated
in the country of its execution.
● Petitioners Manuel and Benjamin obviously have in
mind the procedure for the reprobate of will before
admitting it here. But, reprobate or re- authentication of
a will already probated and allowed in a foreign country
is different from that probate where the will is presented
for the first time before a competent court. Reprobate is
specifically governed by Rule 77.
5. Testamentary Capacity and
Intent
ARTICLE 796. All persons who are not expressly prohibited
by law may make a will.
ARTICLE 797. Persons of either sex under eighteen years
of age cannot make a will.
ARTICLE 798. In order to make a will it is essential that the
testator be of sound mind at the time of its execution
ARTICLE 799. To be of sound mind, it is not necessary that
the testator be in full possession of all his reasoning
faculties, or that his mind be wholly unbroken, unimpaired,
or unshattered by disease, injury or other cause.
It shall be sufficient if the testator was able at the time of
making the will to know the nature of the estate to be
disposed of, the proper objects of his bounty, and the
character of the testamentary act.
ARTICLE 800. The law presumes that every person is of
sound mind, in the absence of proof to the contrary.
The burden of proof that the testator was not of sound mind
at the time of making his dispositions is on the person who
opposes the probate of the will; but if the testator, one
month, or less, before making his will was publicly known to
be insane, the person who maintains the validity of the will
must prove that the testator made it during a lucid interval.
ARTICLE 801. Supervening incapacity does not invalidate
an effective will, nor is the will of an incapable validated by
the supervening of capacity.
ART 796 - 801 RULES ON TESTAMENTARY CAPACITY
TESTAMENTARY CAPACITY (testamentifactio;
testamentifacion activa)
The legal capacity to make a will
WHO HAS TESTAMENTARY CAPACITY
All natural persons, unless disqualified law
● Juridical persons are not granted testamentary capacity
DISQUALIFIED PERSONS:
1. Those under 18 years of age (ART 797)
● EO 292 (Admin Code) - years are now reckoned
according to the Gregorian calendar
● Year → 12 calendar months; Months → 30 days, unless it
refers to a specific calendar month in which case it shall be
22
 computed according to the number of days the specific
month contains; Days → to a day of 24 hours; Night from
sunset to sunrise
2. Those of unsound mind (ART 798)
a. Unsoundness of mind (insanity)
● Absence of the qualifies of soundness of mind
● Defined by the Code only by indirection because
only soundness of mind is defined
b. Soundness of mind (sanity)
Negatively
● Not necessary that testator be in full possession
of his reasoning faculties
● Not necessary that testator’s mind be wholly
unbroken, unimpaired, unshattered by disease,
injury or other cause
Positively: Ability to know three things:
(1) Nature of estate to be disposed of
(2) Proper objects of one’s bounty
(3) Character of testamentary act
NOTES:
1. Testator should have a fairly accurate knowledge of what
he knows
● “Accurate” → the more one owns, the less accurate is one’s
knowledge of his estate expected to be
2. Testator should know, under ordinary circumstances, his
relatives in the most proximate degrees, his knowledge
expectedly decreasing as the degree becomes more
remote
3. It is not required, in order for this requisite to be present,
that the testator know the legal nature of a will with the
erudition of a civilist
● All that he need know is that the document he is
rexecuting is one that disposes of his property upon
death
LEGAL IMPORTANCE AND IMPLICATION OF MENTAL
CAPACITY
The law is interested in the legal consequences of the
testator’s mental capacity or incapacity, not in the medical
aspects of mental disease
● The testator could be mentally ab- errant medically but
testamentarily capable or, vice versa, mentally competent
medically but testamentarily incompetent.
● As long as the testator, at the time he made the will, was
capable of perceiving the three things mentioned above,
he has testamentary capacity, whatever else he may be
medically. Otherwise, he has no testamentary capacity, no
matter what else he may be medically.
PRESUMPTION
GENERAL RULE: Rebuttable presumption of sanity (ART 800)
EXCEPTIONS: Two instances of rebuttable presumption of
insanity:
a. When the testator, one month or less, before the
execution of the will was publicly known to be insane (ART
800)
b. When the testator executed the will after being placed
under guardianship or order committed, in either case, for
insanity (under Rule 93 and 101 ROC) and before said
order has been limited
TIME FOR DETERMINING MENTAL CAPACITY
Time of execution of will; no other temporal criterion is to be
applied (ART 801)
ARTICLE 802. A married woman may make a will without
the consent of her husband, and without the authority of the
court.
BALANE: SEXIST PROVISION - contains erroneous and
unintended suggestion that a married man does not have the
same privilege
● SUGGESTED REWORDING: A married person may
make a will without his or her spouse’s consent.
ARTICLE 803. A married woman may dispose by will of all
her separate property as well as her share of the conjugal
partnership or absolute community property.
SAME AS ART 802
● ART 97 FC → supersedes this in part:
ARTICLE 97. Either spouse may dispose by will of his or her
interest in the community property
WHO MAY MAKE A WILL
(1) All persons not expressly prohibited by law
(2) Persons of legal age (not under 18)
(3) Testator must be of sound mound (compos mentis) at the
time of execution of will
BAGTAS V PAGUIO
DOCTRINE: There can be no doubt that the testator's
infirmities were of a very serious character, and it is quite
evident that his mind was not as active as it had been in the
earlier years of his life. However, we cannot include from
this that he wanting in the necessary mental capacity to
dispose of his property by will.
● There is a presumption of mental soundness, and the
testator in the case at bar never having been adjudged
insane by a court of competent jurisdiction, this
presumption continues, and it is therefore incumbent
upon the opponents to overcome this legal presumption
by proper evidence, which they failed.
● Mere weakness of mind and body, induced by age and
disease do not render a person incapable of making a
will.
● The law does not require that a person shall continue in
the full enjoyment and use of his pristine physical and
mental powers in order to execute a valid will. If such
were the legal standard, few indeed would be the
number of wills that could meet such exacting
requirements.
● The authorities, are universal in statement that the
question of mental capacity is one of degree, and that
there are many gradations from the highest degree of
mental soundness to the lowest conditions of diseased
mentality which are denominated as insanity and idiocy.
23
 sign, is sufficient to invalidate his will.
TORRES V LOPEZ
DOCTRINE: Counsel for the appellee make capital of the
testator being under guardianship at the time he made his SAMSON V CORRALES
will. DOCTRINE: all the witnesses presented by the petitioner, 5
● Citing section 306 of the Code of Civil Procedure and in number, testify that the deceased was conscious, could
certain authorities, they insist that the effect of the hear and understand what was said to him and was able to
judgment is conclusive with respect to the condition of indicate his desires.
the person. ● 4 of these witnesses state that he could speak distinctly;
● To this statement we cannot write down our conformity. the 5th, Velhagen, says that the deceased only moved
The provisions of the cited section were taken from his head in answer to questions.
California, and there the Supreme Court has never held ● That the deceased was in an exceedingly feeble
what is now urged upon us by the appellee. condition at the time the will was executed is evident,
● The rule announced that in some states, by force of but if the witnesses presented in support of the petition
statute, the finding of insanity is conclusive as to the told the truth, there can be no doubt that he was of
existence of insanity during the continuance of sound mind and capable of making his will.
adjudication, is found to rest on local statutes, of which
no counterpart is found in the Philippines.
● Even where the question of insanity is put in issue in the
ORTEGA V VALMONTE
guardianship proceedings, the most that can be said for
DOCTRINE: Between the highest degree of soundness of
the finding is that it raises a presumption of incapacity to
mind and memory which unquestionably carries with it full
make a will but does not invalidate the testament if
testamentary capacity, and that degree of mental aberration
competency can be shown. The burden of proving
generally known as insanity or idiocy, there are numberless
sanity in such case is cast upon the proponents.
degrees of mental capacity or incapacity and while on one
● Accretion takes place in a testamentary succession in
hand it has been held that mere weakness of mind, or partial
the ff:
imbecility from disease of body, or from age, will not render
(1) When the two or more persons are called to the
a person incapable of making a will: a weak or feebleminded
same inheritance or the same portion thereof
person may make a valid will, provided he has
without special designation of shares,
understanding and memory sufficient to enable him to know
(2) When one of the persons so called dies before the
what he is about to do and how or to whom he is disposing
testator or renounces the inheritance or is
of his property.
disqualified to receive it.
● To constitute a sound and disposing mind, it is not
necessary that the mind be unbroken or unimpaired or
unshattered by disease or otherwise. It has been held
SANCHO V ABELLA that testamentary inca- pacity does not necessarily
DOCTRINE: Neither senile debility, nor blindness, nor require that a person shall actually be insane or of
deafness, nor poor memory, is by itself sufficient to unsound mind
incapacitate a person for making his will. The mere fact that
in her will Matea Abella disposed of properties, which she
had already donated to other persons at a prior date, is not
an indication of mental insanity. At most it constitutes
6. Solemnities of Wills
forgetfulness or a change of mind, due to ignorance of the
irrevocability of certain donations. a. Formal Requirements Common to
● It is insinuated that the testatrix has been unduly
influenced in the execution of her will. There is nothing Notarial and Holographic Wills
in the records establishing such claim either directly or
indirectly. The fact of her having stopped at the
● convent of the parish church of San Fernando, La ARTICLE 804. Every will must be in writing and executed in
Union, is not unusual in the Philippines where, due to a language or dialect known to the testator
lack of hotels, the town convents are usually given
preference by strangers because they are given better COMMON REQUIREMENTS (apply to the 2 kinds of wills
accommodations and allowed more freedom.
recognized by the code: attested and holographic)
● The fact that Matea Abella stopped at a convent and
enjoyed the hospitality of a priest who gave her (1) In writing
accommodations therein, nor the fact that the will was (2) In a language or dialect known to the testator
executed in the convent in question in the presence of
the parish priest and witnessed by another priest, could NOTE: Neither will nor attestation clause need state
certainly not be considered as an influence which compliance with this requirement. This can be proven by
placed her under the obligation to bequeath of her extrinsic evidence.
property to the bishop of said diocese.
PRESUMPTION OF COMPLIANCE
It may sometimes be presumed that the testator knew the
NEYRA V NEYRA
DOCTRINE: Where the mind of the testator is in perfectly language in which the will was written
sound condition, neither old age, nor ill health, nor the fact
that somebody had to guide his hand in order that he might

24
ORAL WILLS → not recognized in the Code (allowed under the
code of Muslim Personal Laws of PH)
ARTICLE 818. Two or more persons cannot make a will
jointly, or in the same instrument, either for their reciprocal
benefit or for the benefit of a third person.
JOINT WILLS [VOID]
ONE DOCUMENT which constitutes the wills of 2 or more
individuals
● If there are separate documents, each serving as one
independent will (even if they are written on the same
sheet), they are not joint wills prohibited by the article
REASONS FOR DECLARED PUBLIC POLICY AGAINST
JOINT WILLS
a. The limitation on the modes of revocation (i.e., one of the
testators would not be able to destroy the document
without also revoking it as the will of the other testator, or
in any event, as to the latter, the problem of unauthorized
destruction would come in);
b. the diminution of testamentary secrecy;
c. the danger of undue influence;
d. the danger of one testator killing the other.
i. In writing
ii. Executed in a language or dialect known
to testator
ESTATE OF ABADA V ABAJA
DOCTRINE: There is no statutory requirement to state in the
will itself that the testator knew the language or dialect used
in the will. This is a matter that a party may establish by
proof aliunde.
● Caponong-Noble further argues that Alipio, in his
testimony, has failed, among others, to show that
Abada knew or understood the contents of the will and
the Spanish language used in the will. However, Alipio
testified that Abada used to gather Spanish-speaking
people in their place. In these gatherings, Abada and
his companions would talk in the Spanish language.
This sufficiently proves that Abada speaks the Spanish
language.
LA CERNA V POTOT
DOCTRINE: CA correctly ruled that the final judgment
rendered on a petition for the probate of a will has
conclusive effect despite the fact that the Civil Code
declares the invalidity of joint wills. The contention that a
void will cannot be invalidated overlooks that the ultimate
decision on whether an act is valid or not rests with the
court, and here, they have spoken with finality when the will
was probated in 1939.
● HWVR, the probate decree in 1939 could only affect the
share of the husband. It could not include the
disposition of the wife’s share as she was still alive. It
follows that the validity of the joint will, insofar as the
estate of the wife was concerned, must be, on her
death, reexamined and adjudicated, since a joint will is
considered a separate will of each testator. The fact that
joint wills should be in common usage could not make
them valid when the Civil Code consistently invalidated
them, because laws are only repealed by other
subsequent laws, and no usage to the contrary may
prevail against their observance.
SUROZA V HONORADO
DOCTRINE: IN THIS CASE, respondent judge, on perusing
the will and noting that it was written in English and was
thumbmarked by an obviously illiterate testatrix, could have
readily perceived that the will is void.
● In the opening paragraph of the will, it was stated that
English was a language "understood and known" to the
testatrix. But in its concluding paragraph, it was stated
that the will was read to the testatrix "and translated into
Filipino language".
● The will was written in a language not known to the
illiterate testatrix and, therefore, it is void because of the
mandatory provision of article 804 of the Civil Code that
every will must be executed in a language or dialect
known to the testator.
● Thus, a will written in English, which was not known to
the Igorot testator, is void and was disallowed.
● The hasty preparation of the will is shown in the
attestation clause and notarial acknowledgment where
Marcelina Salvador Suroza is repeatedly referred to as
the "testator" instead of "testatrix".
● Had respondent judge been careful and observant, he
could have noted not only the anomaly as to the
language of the will but also that there was something
wrong in instituting the supposed granddaughter as sole
heiress and giving nothing at all to her supposed father
who was still alive.
b. Formalities for Notarial or Ordinary
Wills
ARTICLE 805. Every will, other than a holographic will, must
be subscribed at the end thereof by the testator himself or
by the testator's name written by some other person in his
presence, and by his express direction, and attested and
subscribed by three or more credible witnesses in the
presence of the testator and of one another.
The testator or the person requested by him to write his
name and the instrumental witnesses of the will, shall also
sign, as aforesaid, each and every page thereof, except the
last, on the left margin, and all the pages shall be numbered
correlatively in letters placed on the upper part of each page.
The attestation shall state the number of pages used upon
which the will is written, and the fact that the testator signed
the will and every page thereof, or caused some other
person to write his name, under his express direction, in the
presence of the instrumental witnesses, and that the latter
witnessed and signed the will and all the pages thereof in
the presence of the testator and of one another.
If the attestation clause is in a language not known to the
witnesses, it shall be interpreted to them.
25
 SIGNING AT THE END
ARTICLE 806. Every will must be acknowledged before a
If the will contains only dispositive provisions, there will be no
notary public by the testator and the witnesses. The notary
public shall not be required to retain a copy of the will, or file ambiguity as to where the end of the will is
another with the Office of the Clerk of Court.
HOWEVER, If the will contains non-dispositive paragraphs
after the testamentary dispositions, one can refer to 2 kinds of
SAID ARTICLES LAY DOWN SPECIAL REQUIREMENTS
end:
FOR ATTESTED (ORDINARY OR NOTARIAL) WILLS:
(1) The physical end - where the writing stops; or
(1) Subscribed by the testator or his agent in his presence by
(2) The logical end - where the last testamentary disposition
his express direction at the end thereof, in the presence of
ends
the witnesses
(2) Attested and subscribed by at least 3 credible witnesses in
Signing at the physical end is always permissible; but equally
the presence of the testator and of one another
permissible is signing at the logical end
(3) The testator, or his agent, must sign every page, except
● The non-dispositive portion are not essential parts of the
the last, on the left margin in the presence of the witness
will
(4) The witnesses must sign every page, except the last, on
the left margin in the presence of the testator and of one
Signing before the end invalidates not only the dispositions that
another
come after, but the entire will because then one of the statutory
(5) All pages numbered correlatively in letters on the upper
requirements would not have been complied with
part of each page
(6) Attestation clause, stating:
SIGNING IN THE PRESENCE OF WITNESSES
a) The number of pages of the will
Actual seeing is not required, but the ability to see each other
b) The fact that the testator or his agent under his
(i.e. the testator and the witnesses) by merely casting their
express direction signed the will and every page
eyes in the proper direction (NERA case)
thereof, in the presence of the witnesses
c) The fact that the witnesses witnessed and signed the
ATTESTED AND SUBSCRIBED BY AT LEAST THREE
will and every page thereof in the presence of the
CREDIBLE WITNESSES IN THE PRESENCE OF THE
testator and one another
TESTATOR AND OF ONE ANOTHER
(7) Acknowledgement before a notary public

Two distinct things are required of the witnesses:

SUBSCRIBED BY THE TESTATOR OR HIS AGENT IN HIS
1. Attesting - which is the act of witnessing
PRESENCE AND BY HIS EXPRESS DIRECTION AT THE
2. Subscribing - which is the act of signing their names in the
END THEREOF, IN THE PRESENCE OF THE WITNESS
proper places of the will
SUBSCRIBED BY THE TESTATOR
NOTE: Both must be done
SUBSCRIBE → denotes writing, more precisely, to write under
SIGN → to place a distinguishing mark
DOES ART 805 REQUIRE THE WITNESSES TO SIGN AT
● EXAMPLE: Thumb mark as signature, cross is not a
THE END OF THE WILL?
signature unless it is the testator’s usual manner of
signature or one of his usual styles of signing (GARCIA
TABOADA V ROSAL: Involves a will signed at the end by the
case)
testator. The witnesses’ signatures were not found at the end
but on the left hand margin of that page
Signing has a broader meaning than subscribing; not every
● RULING: The will fully satisfied the statutory requirement.
signature is necessary a subscription; not every distinguishing
While perfection in the drafting of a will may be desirable,
mark is writing
unsubstantial department from the usual forms should be
ignored, especially where the authenticity of the will is not
SIGNING BY AN AGENT OF THE TESTATOR
assailed.
Two requisites for singing by the agent:
● IMPLICATION: Literally and ideally, the witnesses should
1. Must sign in testator’s presence
sign at the end of the will, though failure in this regard may
2. By his express direction
be overlooked.
What agent must write:
SIGNING IN THE PRESENCE OF THE TESTATOR AND OF
The essential thing, for validity, is that the agent write the
ONE ANOTHER
testator’s name, nothing more. (BARUT case)
● It would be a good thing, but not required, for the agent to
NERA ruling on the meaning of presence applies here.
indi- cate the fact of agency or authority
● EXAMPLE: For the testator Juan dela Cruz by Jose
THE TESTATOR, OR HIS AGENT, MUST SIGN EVERY
Santos
PAGE EXCEPT THE LAST, ON THE LEFT MARGIN IN THE
PRESENCE OF THE WITNESSES
26
The last page need not be signed by the testator on the margin
because, being the page where the end of the will is, it already
contains the testator’s signature
There is a mandatory and a directory part to this
requirement:
1. The mandatory part - the signing on every page in the
witnesses’ presence
2. The directory part - the place of the signing, Le. the left
margin; the signature can be affixed anywhere on the
page
If the entire document consists of only two sheets, the first
containing the will and the second, the attestation clause, there
need not be any marginal signatures at all
THE WITNESSES MUST SIGN EVERY PAGE, EXCEPT THE
LAST, ON THE LEFT MARGIN IN THE PRESENCE OF THE
TESTATOR AND OF ONE ANOTHER
ORDER OF SIGNING
Order of signing is immaterial, provided everything is done in a
single transaction
● If the affixation of the signatures is done in several
transactions, then it is required for validity that the testator
affix his signature ahead of the witnesses
ALL PAGES NUMBERED CORRELATIVELY IN LETTER ON
THE UPPER PART OF EACH PAGE
There is a mandatory and directory part to this
requirement:
1. The mandatory part - pagination by means of a
conventional system. The obvious purpose of this is to
prevent insertion or removal of pages
2. The directory part - the pagination in letters on the upper
part of each page
ATTESTATION CLAUSE, STATING:
1. THE NUMBER OF PAGES OF THE WILL
2. THE FACT THAT THE TESTATOR OR HIS AGENT
UNDER HIS EXPRESS DIRECTION SIGNED THE WILL
AND EVERY PAGE THEREOF IN THE PRESENCE OF
THE WITNESSES
3. THE FACT THAT THE WITNESSES WITNESSED AND
SIGNED THE WILL AND EVERY PAGE THEREOF IN
THE PRESENCE OF THE TESTATOR AND OF ONE
ANOTHER
ATTESTATION CLAUSE
The affair of the witnesses therefore it need not be signed by
the testator
● The signatures of the witnesses must be at the bottom of
the attestation clause
● The fact that the attestation clause was written on a
separate page has been held to be a matter of “minor
importance” and apparently will not affect the validity of
the will
ACKNOWLEDGEMENT BEFORE A NOTARY PUBLIC
JAVELLANA case: The certification of acknowledgement need
not be signed by the notary in the presence of the testator and
the witnesses
The notary public cannot be counted as one of the
attesting witness
Affixing of documentary stamp is not required for validity
ARTICLE 807. If the testator be deaf, or a deaf-mute, he
must personally read the will, if able to do so; otherwise, he
shall designate two persons to read it and communicate to
him, in some practicable manner, the contents thereof.
ARTICLE 808. If the testator is blind, the will shall be read to
him twice; once, by one of the subscribing witnesses, and
again, by the notary public before whom the will is
acknowledged.
SPECIAL REQUIREMENTS FOR HANDICAPPED
TESTATORS
*ART 808 - mandatory
For deaf/deaf-mutes testator:
1. If able to read - he must read the will personally
2. If unable to read - he must designate 2 persons to read
the will and communicate to him, in some practical manner
its contents
For blind testator
Will to be read to him twice, once by one of the subscribing
witnesses, and another time by the notary
For illiterate testator
An illiterate testator, because of his incapacity to read the will
is not unlike a blid testator. Art 808 should apply (GARCIA and
ALVARADO case)
If Art 808 is mandatory, by evident analogy Art 807 would also
be mandatory. Failure to comply with either would result in
nullity and denial of probate.
ARTICLE 809. In the absence of bad faith, forgery, or fraud,
or undue and improper pressure and influence, defects and
imperfections in the form of attestation or in the language
used therein shall not render the will invalid if it is proved
that the will was in fact executed and attested in substantial
compliance with all the requirements of Article 805.
JUSTICE JBL REYES:
(1) A failure by the attestation clause to state that the testator
signed every page can be liberally construed, since every
page can be liberally construed, since that fact can be
checked by a visual examination
(2) A failure by the attestation clause to state that the
witnesses signed in one another’s presence should be
27
 considered a more serious, indeed a fatal, since the
attestation clause is the only textual guarantee of
compliance
ARTICLE 820. Any person of sound mind and of the age of
eighteen years or more, and not bind, deaf or dumb, and
able to read and write, may be a witness to the execution of
a will mentioned in Article 805 of this Code.
ARTICLE 821. The following are disqualified from being
witnesses to a will:
(1) Any person not domiciled in the Philippines;
(2) Those who have been convicted of falsification of a
document, perjury or false testimony.
6 QUALIFICATIONS OF WITNESSES:
1. Of sound mind
2. At least 18 years of age
3. Not blind, deaf or dumb
4. Able to read and write
5. Domiciled in the Philippines
6. Must not have been convicted of falsification of a
document, perjury or false testimony
COMPETENCE VS CREDIBILITY
COMPETENCE → determined by statute (Art 820 and 821)
CREDIBILITY → depends on the appreciation of his testimony and
arises from the belief and conclusion of the Court that said witness is
telling the truth
ARTICLE 822. If the witnesses attesting the execution of a
will are competent at the time of attesting, their becoming
subsequently incompetent shall not prevent the allowance of
the will.
As in the case of testamentary capacity, the time of the
execution of the will is the only relevant temporal criterion in
determination of the competence of the witnesses
ARTICLE 823. If a person attests the execution of a will, to
whom or to whose spouse, or parent, or child, a devise or
legacy is given by such will, such devise or legacy shall, so
far only as concerns such person, or spouse, or parent, or
child of such person, or any one claiming under such person
or spouse, or parent, or child, be void, unless there are three
other competent witnesses to such will. However, such
person so attesting shall be admitted as a witness as if such
devise or legacy had not been made or given.
BALANE: Article is misplaced - since this is concerned not with
capacity to be a witness, but with capacity to succeed
● Should be in Chapter 4 Sec 2 and should be correlated
with Article 1027(4)
DISQUALIFICATION → disqualification of a witness to succeed to
a legacy or devise when there are only 3 witnesses.
● The competence of the person as a witness is not
affected.
● Assuming all other requisites for formal validity being
present, the will is perfectly valid but the witness (or the
relatives specified in this article) cannot inherit
APPLICATION → not limited to devisees and legatees - extends to
heirs
● The intent of the law is to cover all testamentary
institutions
● Applies only to testamentary disposition made in favor of
the witnesses or the specified relatives - if the party is also
entitled to a legitime or intestate share, that portion is not
affected by the party’s witnessing the will
ARTICLE 824. A mere charge on the estate of the testator
for the payment of debts due at the time of the testator's
death does not prevent his creditors from being competent
witnesses to his will.
i. Subscription
ii. Attestation
iii. Marginal Signing
iv. Paging
v. Acknowledgement
ABANGAN V ABANGAN
DOCTRINE:
(1) In this case, it was not required that the partiessign on
the left margin because all the dispositions were already
made on the 1st page, which was duly signed at the bottom
by the parties. As to the AC, it was not required that the
testatrix sign because the attestation pertains only to the
witnesses.
The object of Act 2645, which requires that every sheet
should be signed on the left margin, is only to avoid the
substitution of any sheet, thereby changing the dispositions
of the testatrix. But when the dispositions are duly written
only on one sheet, and signed at the bottom by the testator
and the witnesses, the signatures on the left would be
purposeless.
(2) Object in requiring page number was to know whether
any sheet of the will has been removed. But when all the
dispositive parts of the will are written on one sheet only, as
in this case, the object of the law disappears the removal of
this single sheet, although unnumbered, cannot be hidden.
(3) The circumstance appearing on the will itself that it was
executed in Cebu City and in the dialect of the place where
the testarix is a resident is enough to presume that she
knew this dialect in the absence of any proof to the contrary.
For the presumption of knowledge of the language/dialect to
apply, the following must appear:
a. That the will must be in a language or dialect generally
spoken in the place of execution, and
b. That the testator must be a native or resident of the said
locality
28
The object of the solemnities surrounding the execution of
wills is to close the door against bad faith and fraud, to avoid
substitution of wills and testaments and to guaranty their
truth and authenticity. Therefore the laws on this subject
should be interpreted in such a way as to attain these
primordial ends. But, on the other hand, also one must not
lose sight of the fact that it is not the object of the law to
restrain and curtail the exercise of the right to make a will.
So when an interpretation already
PAYAD V TOLENTINO
DOCTRINE: It is NOT necessary that the attestation clause
should state that the testatrix requested Atty. Almario to sign
her name because the testatrix signed the will in accordance
with law. Atty. Almario did not sign for the testatrix. She
personally signed it by placing her thumb mark on each and
every page. In de Gala v. Gonzales and Ona, the Court said
that a statute requiring a will to be signed is satisfied if the
signature is made by the testator’s mark.
MATIAS V SALUD
DOCTRINE: The legal requisite that the will should be
signed by testator is satisfied by a thumbprint or other mark
affixed by him, and where such mark is affected by the
decedent, it is unnecessary to state in the attestation clause
that another person wrote the testator’s name at his request.
While in some cases, the signing by mark was described in
the will or in the attestation clause, it does not appear that
the Court ever held that the absence of such description us
a fatal defect.
● In the aforementioned case, there had been no showing
that the cross mark was the testator’s habitual
signature, nor was any explanation given why he should
use a cross when he knew how to sign.
● IN THE CASE AT BAR, it was shown that the herpes
zoster that afflicted the right arm and shoulder of the
testatrix made writing a difficult and painful act, to the
extent that after writing on signature on the second
page, she dropped the pen because of an attack of pain
that lasted many minutes, and evidently, discouraged
attempts to sign.
BARUT V CABACUNGAN
DOCTRINE: Thus, with respect to the validity of the will, it is
unimportant whether the person who writes the name of the
testatrix signs his own or not. What is important is that it
clearly appears that the name of the testatrix was signed at
her express direction in the presence of 3 witnesses and
that they attested and subscribed it in her presence and in
the presence of each other.
● While it is wise as a practical manner that the one who
signs the testator's name signs also his own so as to
enable one to demonstrate more readily the execution
by the principal, it is not essential to the validity of the
will.
● The main thing to be established in the execution of the
will is the signature of the testator. If that signature is
proved, whether it be written by himself or by another at
his request, it is none the less valid.
GARCIA V LACUESTA
DOCTRINE: The AC is fatally defective for failing to state
that Mercado caused Atty. Javier to write his name under his
express direction. Moreover, the cross cannot and does not
have the trustworthiness of a thumbmark.
● In order for it to be valid, it must be the customary
signature of the testator.
NERA V RIMANDO
DOCTRINE: Signing of the instrument 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 that at that moment existing conditions and their position
with relation to each other were such that by merely casting
the eyes in the proper direction they could have seen each
other sign.
ICASIANO V ICASIANO
DOCTRINE: The failure of witness Natividad to sign page 3
was entirely through pure oversight. This was shown by his
own testimony as well as by the duplicate copy of the will,
which bears a complete set of signatures in every page.
The text of the attestation clause and the acknowledgment
likewise evidence the fact that no one was aware of the
defect at the time. Also, the impossibility of substitution is
assured by the fact that the testatrix and the 2 other
witnesses signed the defective page.
● The inadvertent failure of one witness to affix his
signature to one page of a testament, due to the
simultaneous lifting of two pages in the course of
signing, is not per se sufficient to justify denial of
probate. The law should not be so strictly and literally
interpreted as to penalize the testatrix on account of the
inadvertence of a single witness over whose conduct
she had no control.
CAGRO V CAGRO
DOCTRINE: An unsigned attestation clause cannot be
considered as an act of the witnesses, since the omission of
their signatures at the bottom thereof negatives their
participation.
JAVELLANA V LEDESMA
DOCTRINE: Whether or not the notary signed the
certification of acknowledgment in the presence of the
testatrix and the witnesses, does not affect the validity of the
codicil.
● Unlike the Code of 1889 (Art. 699), the new Civil Code
does not require that the signing of the testator,
witnesses and notary should be accomplished in one
single act.
● A comparison of Articles 805 and 806 of the new Civil
Code reveals that while testator and witnesses sign in
the presence of each other, all that is thereafter
required is that "every will must be acknowledged
before a notary public by the testator and the witnesses"
(Art. 806); i.e., that the latter should avow to the
certifying officer the authenticity of their signatures and
the voluntariness of their actions in executing the
testamentary disposition.
● This was done in the case before us. The subsequent
signing and sealing by the notary of his certification that
29
 the testament was duly acknowledged by the
participants therein is no part of the acknowledgment
itself nor of the testamentary act. Hence their separate
execution out of the presence of the testatrix and her
witnesses can not be said to violate the rule that
testaments should be completed without interruption
● Article 806 of the new Civil Code does not contain
words requiring that the testator and the witnesses
should acknowledge the testament on the same day or
occasion that it was executed.
CRUZ V VILLASOR
DOCTRINE: An instrumental witness cannot be the notary
public to whom the will was acknowledged. The function of a
notary public is, among others, to guard against any illegal
or immoral arrangements. That function would be defeated if
the notary public were one of the attesting or instrumental
witnesses. For then, he would be interested in sustaining the
validity of the will as it directly involves himself and the
validity of his own act. It would place him in an inconsistent
position and the very purpose of the acknowledgement,
which is to minimize fraud, would be thwarted.
UNSON V ABELLA
DOCTRINE: The testimonies of the attesting witnesses are
sufficient to uphold validity of the will. The non- production of
the attesting witness, Pedro de Jesus, as accounted for by
the attorney for the proponent at the trial, does not render
void the decree of the court a quo, allowing the probate.
● The inventory may be probated despite the fact that it
has no attestation clause and its paging is made in
Arabic numerals and not letters, in view of the fact that
the inventory is referred to in the will as an integral of it.
JABONETA V GUSTILLO
DOCTRINE: The true test of vision is not whether the
testator actually saw the witness sign, but whether he might
have seen him sign, considering his mental and physical
condition and position at the time of the subscription.
● The purpose of a statutory requirement that the witness
sign in the presence of the testator is said to be that the
testator is said to be that the testator may have ocular
evidence of the identity of that instrument subscribed by
the witness and himself, and the generally accepted
tests of presence are vision and mental apprehension.
NOBLE V ABAJA
DOCTRINE: (1) The pages are numbered correlatively with
the letters ONE and TWO as can be gleaned from the
phrase las cuales estan paginadas correlativamente con las
letras UNO y DOS.
(2) The attestation clause clearly states that Abada signed
the will and its every page in the presence of the witnesses.
(3) While the attestation clause does not state the number of
witnesses, a close inspection of the will shows that three
witnesses signed it.
● An attestation clause is made for the purpose of
preserving, in permanent form, a record of the facts
attending the execution of the will, so that in case of
failure of the memory of the subscribing witnesses, or
other casualty, they may still be proved. A will,
therefore, should not be rejected where its attestation
clause serves the purpose of the law.
(4) Precision of language in the drafting of an attestation
clause is desirable. However, it is not imperative that a
parrot-like copy of the words of the statute be made. It is
sufficient if from the language employed it can reasonably
be deduced that the attestation clause fulfills what the law
expects of it.
● The last part of the attestation clause states en
testimonio de ello, cada uno de nosotros lo firmamos en
presencia de nosotros y del testador. In English, this
means in its witness, every one of us also signed in our
presence and of the testator. This clearly shows that the
attesting witnesses witnessed the signing of the will of
the testator, and that each witness signed the will in the
presence of one another and of the testator.
ESTATE OF BERMOY
DOCTRINE: The AC failed to mention that the testatrix
signed the will and each and every one of the pages thereof,
or she had caused her name to be signed by one of the
witnesses and affixed her thumbmark in the presence of
each and every one of the witnesses who signed the AC. It
also failed to mention that the witnesses signed the will and
all of the pages in the presence of the testatrix and of each
every one of them. Evidence aliunde cannot be taken into
consideration, relying on the doctrine that “evidence aliunde
should not be admitted to establish facts not appearing in
the AC and where such evidence has been admitted, it
should not be given the effect intended.
GARCIA V VASQUEZ
DOCTRINE: The rationale behind the requirement of
reading the will to the testator if he is blind or incapable of
reading the will himself (as when he is illiterate), is to make
the provisions thereof known to him, so that he may be able
to object if they are not in accordance with his wishes.
● That the aim of the law is to insure that the dispositions
of the will are properly communicated to and
understood by the handicapped testator, thus making
them truly reflective of his desire, is evidenced by the
requirement that the will should be read to the latter, not
only once but twice, by two different persons, and that
the witnesses have to act within the range of his (the
testator’s) other senses.
ALVARADO V GAVIOLA
DOCTRINE: There was substantial compliance with the law.
Lawyer read the will and codicil aloud to the testator once,
while the others followed with their own copies. Hence, it
can be safely concluded that the testator was reasonably
assured that what was read to him were the terms actually
appearing on the typewritten documents.
● Art. 808 applies not only to blind testators but also to
those who, for one reason or another, are "incapable" of
reading their wills. The rationale behind the requirement
of reading the will to the testator if he is blind or
incapable of reading the will himself is to make the
provisions thereof known to him, so that he may be able
object if they are not in accordance with his wishes.
Substantial compliance is acceptable where the
purpose of the law has been satisfied.
30

CANEDA V CA
DOCTRINE: Enunciated the substantial compliance rule:
Omission w/c can be supplied by an examination of the will
itself, without the need of resorting to extrinsic evidence, will
not be fatal and, correspondingly, would not obstruct the
allowance to probate of the will being assailed. HOWEVER,
those omissions w/c cannot be supplied except by evidence
aliunde would result in the invalidation of the attestation
clause and ultimately, of the will itself.
● Under Article 809, the defects or imperfections must
only be with respect to the FORM of the attestation or
the language or employed therein. This does not apply
where the attestation clause totally omits the fact that
the witnesses signed each and every page of the will in
the presence of the testator and of each other.
GIL V MURCIANO
DOCTRINE: The so-called liberal rule does not offer any
puzzle or difficulty, nor does it open the door to serious
consequences. The decisions we have cited to tell us when
and where to stop; the dividing line is drawn with precision.
They say "Halt" when and where evidence aliunde to fill a
void in any part of the document is attempted. They only
permit a probe, an exploration within the confines of the will,
to ascertain its meaning and to determine the existence or
absence of the formalities of law. They do not allow the
courts to go outside the will or to admit extrinsic evidence to
supply missing details that should appear in the will itself.
This clear, sharp limitation eliminates uncertainty and ought
to banish any fear of dire results.
CUEVAS V ACHACOSO
DOCTRINE: An instrumental witness, therefore, does not
merely attest to the signature of the testator but also to the
proper execution of the will.
● The fact that the three instrumental witnesses have
signed the will immediately under the signature of the
testator, shows that they have in fact attested not only
to the genuineness of his signature but also to the due
execution of the will as embodied in the attestation
clause.
MONTEMAYOR, J (dissenting): When the law requires that
the attesting witnesses make the attestation and formal
declaration, we should insist that they and not someone
else, even the testator, assume that role.
GONZALES V CA
DOCTRINE: Under the law, there is no mandatory
requirement that the witness testify initially or at any time
during the trial as to his good standing in the community, his
reputation for trustworthiness and reliability, his honesty and
uprightness in order that his testimony may be believed and
accepted by the trial court.
● It is enough that the qualifications enumerated in Article
820 of the Civil Code are complied with, such that the
soundness of his mind can be shown by or deduced
from his answers to the questions propounded to him,
that his age (18 years or more) is shown from his
appearance, testimony , or competently proved
otherwise, as well as the fact that he is not blind, deaf or
dumb and that he is able to read and write to the
satisfaction of the Court, and that he has none of the
disqualifications under Article 821 of the Civil Code.
LEE V TAMBAGO
DOCTRINE: Witnesses to a will need not prove good
standing in the community, reputation for trustworthiness
and reliableness, and honesty and uprightness, because
they are presumed to be competent/credible. Naturalization
Law does not apply in probate proceedings because the
witnesses in probate are not character witnesses since they
only attest to the fact of execution of the will and the
formalities attendant thereto.
● Instrumental witnesses are competent if they possess
all the qualifications under Art 820 and none of the
disqualifications under Art. 821. For their testimony to
be credible, (worthy of belief and entitled to credence), it
is not mandatory that the witnesses prove their good
standing in the community or that they are honest and
upright or reputed to be trustworthy and reliable, for a
person is presumed to be such unless the contrary is
established otherwise.
GUERRERO V BIHIS
DOCTRINE: In other words, a notarial will that is not
acknowledged before a notary public by the testator and the
instrumental witnesses is void and cannot be accepted for
probate.
● An acknowledgment taken outside the territorial limits of
the officer's jurisdiction is void as if the person taking it
ware wholly without official character, as per Section
240 of the Notarial Law
● IN THE CASE AT BAR, Since Atty. Directo was not a
commissioned notary public for and in Quezon City, he
lacked the authority to take the acknowledgment of the
testatrix and the instrumental witnesses. In the same
vein, the testatrix and her witnesses could not have
validly acknowledged the will before him.
AZUELA V CA
DOCTRINE: A will whose attestation clause does not
contain the number of pages on which the will is written is
fatally defective. A will whose attestation clause is not
signed by the instrumental witnesses is fatally defective. And
perhaps most importantly, a will which does not contain an
acknowledgment, but a mere jurat, is fatally defective. Any
one of these defects is sufficient to deny probate. A notarial
will with all three defects is just aching for judicial rejection.
c. Formalities for Holographic Wills
ARTICLE 810. A person may execute a holographic will
which must be entirely written, dated, and signed by the
hand of the testator himself. It is subject to no other form,
and may be made in or out of the Philippines, and need not
be witnessed.
REQUIREMENTS:
1. Completely handwritten by the testator
2. Dated by him
3. Signed by him
31
ADVANTAGES: Secrecy, inexpensiveness, brevity
DISADVANTAGES: Danger of forgery, the greater difficulty of
determining testamentary capacity, the increased risk of
duress
JBL REYES: Holographic wills are peculiarly dangerous In
case of persons who have written very little. The validity of
these wills depends exclusively on the authenticity of the
handwriting, and if writing standards are not procurable, or not
contemporaneous, the courts are left to the mercy of the
mendacity of witnesses
● Its simplicity is an invitation to forgery, specially since its
text may be extremely short: ‘All to X’ or ‘the free part to
X’, plus a date and signature.
● Such short documents can defy real experts in
handwriting, specially in the absence of contemporaneous
writing standards.
● If we want to permit the testator to keep his wishes secret,
in order to avoid importunity, it can be done on the basis of
the closed will (testamento cerrado) of Arts. 706 to 715 of
the Code of 1889 (called “mystic wills” in Louisiana).
REQUIREMENTS:
1. ENTIRELY HANDWRITTEN BY THE TESTATOR
● If the testator executes only part of the will in his
handwriting, and other parts of the will are not so
written, the entire will is void, because then the article
would be violated.
2. DATED BY THE TESTATOR
● ROXAS V DE JESUS - A complete date is required to
provide against such contingencies as that of 2
competing wills executed on the same day, or of a
testator becoming insane on the day on which a will
was executed. There is no contingency in this case.
○ GENERAL RULE: The “date” in a holographic
will should include the day, month, and year of its
execution
● DATE: specification or mention, in a written
instrument, of the time (day, month, and year) when it
was made (executed) [BLACK’S LAW DICTIONARY]
3. SIGNED BY THE TESTATOR
● Signature must be at the will’s end (logical end) - Art
812
● May the testator sign by means of a thumb- print?—
The article does not seem to permit this: “entirely
written, dated and signed by the hand of the testator
himself.”
ARTICLE 811. In the probate of a holographic will, it shall be
necessary that at least one witness who knows the
handwriting and signature of the testator explicitly declare
that the will and the signature are in the handwriting of the
testator. If the will is contested, at least three of such
witnesses shall be required.
In the absence of any competent witness referred to in the
preceding paragraph, and if the court deem it necessary,
expert testimony may be resorted to.
APPLICATION: Only to post mortem probates - it does not
apply to ante mortem probates since in such cases the testator
himself files the petition and will identify the document himself
SEC 22 RULE 132 ROC: Genuineness of a handwriting may
be proved by the following:
1. A witness who actually saw the person writing the
instrument
2. A witness familiar with such handwriting and who can give
his opinion thereon, such opinion being an exception to
the opinion rule
3. A comparison by the court of the questioned handwriting
and admitted genuine specimen thereof; and
4. Expert evidence
NOTE: 3-witness provision in case of contested holographic
wills is directory, not mandatory.
In the probate of a holographic will, the document itself must
be produced. THEREFORE, a lost holographic will cannot be
probated.
ARTICLE 812. In holographic wills, the dispositions of the
testator written below his signature must be dated and
signed by him in order to make them valid as testamentary
dispositions.
ARTICLE 813. When a number of dispositions appearing in
a holographic will are signed without being dated, and the
last disposition has a signature and a date, such date
validates the dispositions preceding it, whatever be the time
of prior dispositions.
FORMAL REQUIREMENT FOR ADDITIONAL
DISPOSITIONS IN A HOLOGRAPHIC WILL:
Signature and date
WHEN THERE ARE SEVERAL ADDITIONAL
DISPOSITIONS:
1. Signature and date, or
2. Each additional disposition signed and undated, but the
last disposition signed and dated
NOTE: If, in the case of several additional dispositions the
additional ones before the last are dated but not signed, only
the last will be valid, provided the last is signed and dated.
● Suppose there are several additional dispositions, and the
additional ones before the last are neither signed nor
dated, but the last is both signed and dated - a distinction
here will have to be made whether they were made on
one occasion (in which case the signature and date
under the last additional disposition validate all) OR on
different occasions (in which case the intermediate
additions are void)
ARTICLE 814. In case of any insertion, cancellation,
erasure or alteration in a holographic will, the testator must
32
 authenticate the same by his full signature.
FULL SIGNATURE
Does not necessarily mean the testator’s full name; it rather
means his usual and customary signature
EFFECT OF NON COMPLIANCE
The change (insertion, cancellation, etc) is simply considered
not made.
● The will is not thereby invalidated as a whole, but at most
only as regards the particular words erased, corrected or
inserted
○ UNLESS, the portion involved is an essential part of
the will, such as the date
i. Entirely written in the hand of the
testator
ii. Dated
iii. Signed by testator
ROXAS V DE JESUS
DOCTRINE: As in the case at bar, there is no appearance
of fraud, bad faith, undue influence and pressure and the
authenticity of the Will is established and the only issue is
whether or not the date “FEB/61” appearing on the
holographic Will is a valid compliance with Art.810, NCC,
probate of the holographic will should be allowed under the
principle of substantial compliance.
LABRADOR V CA
DOCTRINE: The law does not specify a particular location
where the date should be placed in the will. The only
requirements are that the date be in the will itself and
executed in the hand of the testator.
AZAOLA V SINGSON
DOCTRINE: Where the will is holographic, no witness need
be present, and the rule requiring production of three
witnesses must be deemed merely permissive if absurd
results are to be avoided.
● Also, reading the second paragraph of Article 811, the
Court held that the law foresees the possibility that no
qualified witness may be found (or that no competent
witness may be willing to testify), and provides for resort
to expert evidence to supply the deficiency.
● Because the law leaves it to the trial court if experts are
still needed, no unfavorable inference can be drawn
from a party's failure to offer expert evidence, until and
unless the court expresses dissatisfaction with the
testimony of the lay witnesses.
● Hence, the Court concluded that the rule of the first
paragraph of Article 811 of the Civil Code is merely
directory and is not mandatory.
CODOY V CALUGAY
DOCTRINE: We cannot eliminate the possibility of a false
document being adjudged as the will of the testator, which is
why if the holographic will is contested, that law REQUIRES
three witnesses to declare that the will was in the
handwriting of the deceased.
GAN V YAP
DOCTRINE: The execution and the contents of a lost or
destroyed holographic will may not be proved by the bare
testimony of witnesses who have seen and/or read such will.
● In the case of holographic wills, if oral testimony were
admissible only one man could engineer the fraud this
way: after making a clever or passable imitation of the
handwriting and signature of the deceased, he may
contrive to let three honest and credible witnesses see
and read the forgery;; and the latter, having no interest,
could easily fall for it, and in court they would in all good
faith affirm its genuineness and authenticity. The will
having been lost — the forger may have purposely
destroyed it in an "accident" — the oppositors have no
way to expose the trick and the error, because the
document itself is not at hand. And considering that the
holographic will may consist of two or three pages, and
only one of them need be signed, the substitution of the
unsigned pages, which may be the most important
ones, may go undetected.
RODELAS V ARANZA
DOCTRINE: The photostatic or xerox copy of the lost or
destroyed holographic will may be admitted because then
the authenticity of the handwriting of the deceased can be
determined by the probate court.
KALAW V RELOVA
DOCTRINE: GENERALLY: ONLY CHANGED PARTS ARE
VOID
● Ordinarily, when a number of erasures, corrections, and
interlineations made by the testator in a holographic Will
litem not been noted under his signature, the Will is not
thereby invalidated as a whole, but at most only as
respects the particular words erased, corrected or
interlined.
BUT IN THIS CASE: THE DESIGNATED HEIR CHANGED,
VOIDING ALL
● However, in this case, the holographic Will had only one
substantial provision, which was altered by substituting
the original heir with another, but which alteration did
not carry the requisite of full authentication by the full
signature of the testator, the effect must be that the
entire Will is voided or revoked for the simple reason
that nothing remains in the Will after that which could
remain valid.
AJERO V CA
DOCTRINE: In a petition to admit a holographic will to
probate, the only issues to be resolved are:
1. Whether the instrument submitted is, indeed, the
decedent’s last will and testament;
2. Whether said will was executed in accordance with the
formalities prescribed by law;
3. Whether the decedent had the necessary testamentary
33

capacity at the time the will was executed; and
4. Whether its signing was the voluntary act of the
decedent.
7. Codicils and Incorporation by
Reference
ARTICLE 825. A codicil is supplement or addition to a will,
made after the execution of a will and annexed to be taken
as a part thereof, by which disposition made in the original
will is explained, added to, or altered.
ARTICLE 826. In order that a codicil may be effective, it
shall be executed as in the case of a will.
CODICIL VS SUBSEQUENT WILL
CODICIL → “codex” (Latin) - little code or a little will
● PARAS: A codicil, since it refers to a will, cannot be made
before a will; it is always made after.
● In case of conflict between a will and a codicil, it is
understood that the latter should prevail, it being the later
expression of the testator’s wishes.
CODICIL SUBSEQUENT WILL
Explains, adds to, or alters a Makes independent and
disposition in a prior will distinct dispositions
BALANE: Distinction is purely academic because Art 826
requires the codicil to be in the form of will anyway
Q: Must the codicil conform to the form of the will to which it
refers?
A: The law does not require this. An attested will may have a
holographic codicil; a holographic will may have an attested
codicil.
Q: If the codicil is invalid, will the will be invalid as well?
A: No, a valid will can never be revoked, expressly or impliedly,
by an invalid codicil.
ARTICLE 827. If a will, executed as required by this Code,
incorporates into itself by reference any document or paper,
such document or paper shall not be considered a part of
the will unless the following requisites are present:
(1) The document or paper referred to in the will must be in
existence at the time of the execution of the will;
(2) The will must clearly describe and identify the same,
stating among other things the number of pages
thereof;
(3) It must be identified by clear and satisfactory proof as
the document or paper referred to therein; and
(4) It must be signed by the testator and the witnesses on
each and every page, except in case of voluminous
books of account or inventories.
APPLICATION: Refers only to such documents as inventories,
books of accounts, documents of title and papers of similar
nature; the documents should, under NO circumstances, make
testamentary dispositions, for then the formal requirements for
wills would be circumvented
PURPOSE: Testator is able to save time and energy
Q: Can holographic wills incorporate documents by reference?
A: The text of the article suggests a negative answer. Par 4
requires the signatures of the testator and the witnesses on
every page of the incorporated document
● It seems that only attested wills can incorporate
documents by reference, since only attested wills are
witnessed (unless the testator executes a holographic will
and superfluously had it witnessed)
8. Republication and Revival
ARTICLE 835. The testator cannot republish, without
reproducing in a subsequent will, the dispositions contained
in a previous one which is void as to its form.
ARTICLE 836. The execution of a codicil referring to a
previous will has the effect of republishing the will as
modified by the codicil.
If the testator wishes to republish a will that is void as to form,
the only way to republish it is to execute a subsequent will and
reproduce (i.e. copy out) the dispositions of the original will
● A will is void as to form if it does not comply with the
requirements of Art 804-808; 810-814; 818 and 819.
If the testator wishes to republish a will that is either:
(a) Void for a reason other than a formal defect
● Example: a will that institutes one of the three
attesting witnesses
(b) Previously revoked, the only thing necessary to republish
it is for the testator to execute a subsequent will or codicil
referring to the previous will.
There is no need to reproduce the provisions of the prior will in
the subsequent instrument.
BALANE: It seems arbitrary that the rules for republication
should be different in cases where the original will is void as to
form and those where it is not.
● The explanation is found in the fact that Article 835 is
derived from Argentine law and Article 836, from California
law. Our Code is a patchwork quilt.
ARTICLE 837. If after making a will, the testator makes a
second will expressly revoking the first, the revocation of the
second will does not revive the first will, which can be
revived only by another will or codicil.
ILLUSTRATION:
1985 - X executed Will 1
1987 - X executed Will 2, expressly revoking Will 1
34
1990 - X executed Will 3, revoking Will 2.
The revocation of Will 3 does not revive Will 1, unless Will 3
expressly revives Will 1.
BALANE: This article is based on the theory of instant
revocation; i.e. that the revocatory effect of the second will is
immediate. Such a theory is, however, inconsistent with the
principle that wills take effect mortis causa.
To be effective (for the purpose of revoking the first will) the
second will must be probated. But it has already been revoked
by the third will. A revoked will now has to be submitted to
probate?
If revocation of the first will implied
The terms of this article apply only where the revocation of the
first will by the second will is express. A sensu contrario, if
revocation is implied (i.e. by incompatible provisions), the
article will not apply - therefore in such a case, the revocation
of the second will by a third will revives the first will, unless the
third will is itself inconsistent with the first.
Exception to this article: The second will is holographic and it
is revoked by physical destruction, because then, the
possibility of its probate is foreclosed, unless a copy survives.
9. Revocation
ARTICLE 828. A will may be revoked by the testator at any
time before his death. Any waiver or restriction of this right is
void.
WILL → REVOCABLE or AMBULATORY
● This characteristic cannot be waived even by the testator.
● A will is revocable at the testator’s pleasure during his
lifetime.
ARTICLE 829. A revocation done outside the Philippines, by
a person who does not have his domicile in this country, is
valid when it is done according to the law of the place where
the will was made, or according to the law of the place in
which the testator had his domicile at the time; and if the
revocation takes place in this country, when it is in
accordance with the provisions of this Code
RULES FOR REVOCATION
A. Revocation made inside PH - PH law
B. Revocation made outside PH
1. Testator not domiciled in PH
a. Law of place where the will was made
b. Law of place where testator was domiciled at the
time of the revocation
2. Testator domiciled in PH (not governed by Art 829)
a. PH law (domiciliary principle in ART 829)
b. Law of the place of revocation (principle of lex
loci celebrationis in ART 17)
c. Law of place where will was made (by analogy
with rules on revocation where testator is a non
PH domiciliary)
ARTICLE 830. No will shall be revoked except in the
following cases:
(1) By implication of law; or
(2) By some will, codicil, or other writing executed as
provided in case of wills; or
(3) By burning, tearing, cancelling, or obliterating the will
with intention of revoking it, by the testator himself, or
by some other person in his presence, and by his
express direction. If burned, torn, cancelled, or
obliterated by some other person, without the express
direction of the testator, the will may still be established,
and the estate distributed in accordance therewith, if its
contents, and due execution, and the fact of its
unauthorized destruction, cancellation, or obliteration
are established according to the Rules of Court
Modes of revoking a will under Philippine law
1. By operation of law
2. By a subsequent will or codicil
3. By physical destruction
BY OPERATION OF LAW
The revocation may be total or partial
Examples of revocation by implication or operation of law:
1. Preterition (Article 854)
2. Legal separation (Art 63 par 4 FC)
3. Unworthiness to succeed (Art 1032)
4. Transformation, alienation, or loss of the object devised or
bequeathed (Art 957)
5. Judicial demand of a credit given as a legacy (Art 936)
BY A SUBSEQUENT WILL OR CODICIL
The revocation may also be total or partial.
Requisites for a valid revocation by a subsequent
instrument:
(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 an
express revocatory clause or be incompatible with the
prior will (art 831) (Revocation by a subsequent instrument
may be express or implied)
Like any other will, such wills must be probated in order to take
effect.
BY PHYSICAL DESTRUCTION
4 ways of destroying:
1. Burning
2. Tearing
3. Cancelling
4. Obliterating
35
The physical destruction may be done by the testator
personally or by another person acting in his presence and by
his express direction
BALANE: There is a discrepancy in par 3. The first clause
requires destruction by the agent in his presence and by his
express direction
● Destruction by the agent is unauthorized if done without
the express direction of the testator.
Effect of unauthorized destruction
Will may still be proved as lost or destroyed (Art 830 par 3;
Rule 76 Sec 6 ROC).
● However, this is possible only if the will is attested; if the
will is holographic, it cannot be probated if it is lost, even if
the loss or destruction was unauthorized unless a copy
survives
ELEMENTS OF VALID REVOCATION BY PHYSICAL
DESTRUCTION
1. Corpus
● The physical destruction itself; there must be
evidence of physical destruction
2. Animus
a. Capacity and intent to revoke
b. The testator must have completed everything he
intended to do so
ARTICLE 831. Subsequent wills which do not revoke the
previous ones in an express manner, annul only such
dispositions in the prior wills as are inconsistent with or
contrary to those contained in the later wills.
The revocation of a will by a subsequent will or codicil may be
express (through a revocatory clause) or implied (through
incompatibility)
Under the provision of the old Code, the mere fact of execution
of a subsequent will, provided that will was valid, revoked the
prior one, except only if the testator provides in the posterior
will that the prior will was to subsist in whole or in part.
The present rule is not quite as radical: the execution of a
subsequent will does not ipso facto revoke a prior one.
ARTICLE 832. A revocation made in a subsequent will shall
take effect, even if the new will should become inoperative
by reason of the incapacity of the heirs, devisees or legatees
designated therein, or by their renunciation.
The effectivity of the revocatory clause does not depend on the
testamentary dispositions of the revoking will, unless the
testator so provides
● Revocation is an absolute provision, independent of the
acceptance or capacity of the new heirs
EXAMPLE: X executes a will naming A as his universal heir. 2
years later, X executes a second will revoking the first and
naming B as his universal heir. X then dies and B renounces
the inheritance. The first will remains revoked.
EXCEPTION: Where the testator provides in the subsequent
will that the revocation of the prior one is dependent on the
capacity or acceptance of the heirs, devisees, or legatees
instituted in the subsequent will. (dependent relative
revocation)
● Applies only if it appears that the testator intended his act
of revocation to be conditioned on the making of a new will
or on its validity or efficacy
Q: If the institution of heirs, legatees or devisees in the
subsequent will is subject to a suspensive condition, is the
revocation of the prior will absolute or conditional?
A: Depends on testator’s intent.
● If the subsequent will contains a revocatory clause which
is absolute or unconditional, the revocation will be
absolute, and the happening or non-happening of the
suspensive condition will be immaterial.
● If the testator states in a subsequent will that the
revocation of the prior will is subject to the occurrence of
the suspensive condition, or if the will does not contain a
revocatory clause, the revocation will depend on whether
the condition happens or not.
● If the suspensive condition on which an institution
depends does not occur, the institution is deemed never to
have been made and the prior institution will be
efficacious.
Q: Is the rule of dependent relative revocation applicable if the
revocation of the will is by physical destruction?
A: The physical destruction of the will does not revoke it, on
the inference, drawn by the court, that the testator meant the
revocation to depend on the validity of a new one (MOLO V
MOLO)
ARTICLE 833. A revocation of a will based on a false cause
or illegal cause is null and void.
Wills are revocable ad nutum, le. at the testator’s pleasure
The testator does not have to have a reason or a cause for
revoking.
● However, because the law respects the testator’s true
intent, this article sets aside a revocation that does not
reflect such intent.
Requisites for revocation for a false cause:
1. The cause must be concrete, factual and not purely
subjective
2. It must be false
3. The testator must know its falsity
4. It must appear from the will that the testator is revoking
because of the cause which is false
36
If the revocation is by physical destruction, and the revoked will
is holographic, then though the revocation be null and void,
probate will not be possible unless a copy survives
The rule in this article regarding nullity of revocation for an
illegal cause limits this freedom, albeit for laudable public
policy consideration.
The illegal cause should be stated in the will as the cause of
the revocation.
ARTICLE 834. The recognition of an illegitimate child does
not lose its legal effect, even though the will wherein it was
made should be revoked.
That part of will which recognizes an illegitimate child is not
revocable; recognition is an irrevocable act
● Even if the will is revoked, the recognition remains
effective
FAMILY CODE → admission of illegitimate filiation in a will
would constitute proof of illegitimate filiation
ARTICLE 835. The testator cannot republish, without
reproducing in a subsequent will, the dispositions contained
in a previous one which is void as to its form.
ARTICLE 836. The execution of a codicil referring to a
previous will has the effect of republishing the will as
modified by the codicil.
If the testator wishes to republish a will that is void as to form,
the only way to republish it is to execute a subsequent will and
reproduce (i.e. copy out) the dispositions of the original will
● A will is void as to form if it does not comply with the
requirements of Art 804-808; 810-814; 818 and 819.
If the testator wishes to republish a will that is either:
(c) Void for a reason other than a formal defect
● Example: a will that institutes one of the three
attesting witnesses
(d) Previously revoked, the only thing necessary to republish
it is for the testator to execute a subsequent will or codicil
referring to the previous will.
There is no need to reproduce the provisions of the prior will in
the subsequent instrument.
BALANE: It seems arbitrary that the rules for republication
should be different in cases where the original will is void as to
form and those where it is not.
● The explanation is found in the fact that Article 835 is
derived from Argentine law and Article 836, from California
law. Our Code is a patchwork quilt.
ARTICLE 837. If after making a will, the testator makes a
second will expressly revoking the first, the revo- cation of
the second will does not revive the first will, which can be
revived only by another will or codicil.
ILLUSTRATION:
1985 - X executed Will 1
1987 - X executed Will 2, expressly revoking Will 1
1990 - X executed Will 3, revoking Will 2.
The revocation of Will 3 does not revive Will 1, unless Will 3
expressly revives Will 1.
BALANE: This article is based on the theory of instant
revocation; i.e. that the revocatory effect of the second will is
immediate. Such a theory is, however, inconsistent with the
principle that wills take effect mortis causa.
To be effective (for the purpose of revoking the first will) the
second will must be probated. But it has already been revoked
by the third will. A revoked will now has to be submitted to
probate?
If revocation of the first will implied
The terms of this article apply only where the revocation of the
first will by the second will is express. A sensu contrario, if
revocation is implied (i.e. by incompatible provisions), the
article will not apply - therefore in such a case, the revocation
of the second will by a third will revives the first will, unless the
third will is itself inconsistent with the first.
Exception to this article: The second will is holographic and it
is revoked by physical destruction, because then, the
possibility of its probate is foreclosed, unless a copy survives.
a. Doctrine of Presumed Revocation
It is presumed that a will is revoked:
(1) 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.
(2) Where it is shown that the testator had ready access to
the will and it cannot be found after his death.
It will not be presumed that such will has been destroyed by
any other person without the knowledge or authority of the
testator. The force of the presumption of cancellation or
revocation by the testator, while varying greatly, being weak or
strong according to the circumstances, is never conclusive, but
may be overcome by proof that the will was not destroyed by
the testator with intent to revoke it.
b. Doctrine of Dependent Relative Revocation
Where the 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 intended to be substituted, the revocation
will be conditional and dependent upon the efficacy of the new
disposition; and if, for any reason, the new will intended to be
37
made as a substitute is inoperative, the revocation fails and the
original will remains in full force.
The doctrine is known as that of dependent relative revocation,
which is usually applied where the testator cancels or destroys
a will or executes an instrument intended to revoke a will with a
present intention to make a new testamentary disposition as a
substitute for the old, and the new disposition is not made or, if
made, fails of effect for some reason.
MALOTO V CA
DOCTRINE: Pursuant to Article 830, the physical act of
destruction of a will, like burning in this case, does not per
se constitute an effective revocation, unless the destruction
is coupled with animus revocandi on the part of the testator.
It is not imperative that the physical destruction be done by
the testator himself. It may be performed by another person
but under the express direction and in the presence of the
testator. Of course, it goes without saying that the document
destroyed must be the will itself.
● In this case, while animus revocandi or the intention to
revoke, may be conceded, for that is a state of mind, yet
that requisite alone would not suffice. "Animus
revocandi is only one of the necessary elements for the
effective revocation of a last will and testament. The
intention to revoke must be accompanied by the overt
physical act of burning, tearing, obliterating, or
cancelling the will carried out by the testator or by
another person in his presence and under his
express direction.
● Here, there was no compliance with these
requirements. For one, the document or papers burned
by Adriana's maid, Guadalupe, was not satisfactorily
established to be a will at all, much less the will of
Adriana Maloto. For another, the burning was not
proven to have been done under the express direction
of Adriana. And then, the burning was not in her
presence. Both witnesses, Guadalupe and Eladio,
were one in stating that they were the only ones present
at the place where the stove (presumably in the kitchen)
was located in which the papers proffered as a will were
burned
CUEVAS V CUEVAS
DOCTRINE: The decisive proof that the present donation is
operative inter vivor lies in the final phrase to the effect that
the donor will not dispose or take away ("hindi ko nga iya-
alis" in the original) the land "because I am reserving it to
him upon my death." By these words the donor expressly
renounced the right to freely dispose of the property in favor
of another (a right essential to full ownership) and
manifested the irrevocability of the conveyance of the naked
title to the property in favor of the donee.
● The donor, by the terms of the donation, intended to
part with the title of the property immediately upon the
execution of the deed, which makes it a donation inter
vivos. By stating that she will not dispose or take the
away the property, she expressly renounced the right to
freely dispose of the property.
● An express reservation of the right to control and
dispose at will of the property would be conclusive
indication that the liberality is only at the donor’s death,
and express waiver of free disposition would place the
inter vivos character of the donation beyond dispute.
GAGO V MAMUYAC
DOCTRINE: The law does not require any evidence of the
revocation or cancellation of a will to be preserved. It
therefore becomes difficult at times to prove the revocation
or cancellation of wills. The fact that such cancellation or
revocation has taken place must either remain unproved or
be inferred from evidence showing that after due search the
original will cannot be found.
● 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. It will not be presumed that such
will has been destroyed by any other person without the
knowledge or authority of the testator.
● The force of the presumption of cancellation or
revocation by the testator, while varying greatly, being
weak or strong according to the circumstances, is never
conclusive, but may be overcome by proof that the will
was not destroyed by the testator with intent to revoke
it.
● In view of the fact that the original will of 1919 could not
be found after the death of the testator, and in view of
the positive proof that the same had been cancelled, the
conclusions of the lower court are in accordance with
the weight of the evidence.
MOLO V MOLO
DOCTRINE: A subsequent will, containing a clause revoking
a previous will, having been disallowed, for the reason that it
was not executed in conformity with the provisions of section
618 of the Code of Civil Procedure as to the making of wills,
cannot produce the effect of annulling the previous will,
inasmuch as said revocatory clause is void.
● No evidence which directly indicates that the testator
deliberately destroyed the original of the 1918 will
because of his knowledge of the revocatory clause
contained in the will he executed in 1939. It is possible
that because of the long lapse of twenty-one (21) years
since the first will was executed, the original of the will
had been misplaced or lost, and forgetting that there
was a copy, the testator deemed it wise to execute
another will containing exactly the same testamentary
dispositions.
● Dependent Relative Revocation: Where the 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
a new disposition intended to be substituted, the
revocation will be conditional and dependent upon the
efficacy of the new disposition; and if, for any reason,
the new will intended to be made as a substitute is
inoperative, the revocation fails and the original will
remains in full force.
● The failure of a new testamentary disposition upon
whose validity the revocation depends, is equivalent to
the non-fulfillment of a suspensive conditions, and
hence prevents the revocation of the original will. But a
mere intent to make at some time a will in the place of
that destroyed will not render the destruction
conditional. It must appear that the revocation is
dependent upon the valid execution of a new will.
38

DIAZ V DE LEON
DOCTRINE: The Court held that the second will Exhibit 1
executed by the deceased is not clothed with all the
necessary requisites to constitute a sufficient revocation.
BUT according to the statute governing the subject in this
jurisdiction, the destruction of a will with animo revocandi
constitutes, in itself, a sufficient revocation.
● From the evidence submitted in this case, the intention
of revoking the will is manifest from the established fact
that the testator was anxious to withdraw or change the
provisions he had made in his first will.
● The Original will herein presented for probate having
been destroyed with animo revocandi, cannot now be
probated as the will and last testament of Jesus de
Leon.
10. Allowance and
Disallowance of Wills
ARTICLE 838. No will shall pass either real or personal
property unless it is proved and allowed in accordance with
the Rules of Court.
The testator himself may, during his lifetime, petition the
court having jurisdiction for the allowance of his will. In such
case, the pertinent provisions of the Rules of Court for the
allowance of wills after the testator’s death shall govern.
The Supreme Court shall formulate such additional Rules of
Court as may be necessary for the allowance of wills on
petition of the testator.
Subject to the right of appeal, the allowance of the will,
either during the lifetime of the testator or after his death,
shall be conclusive as to its due execution.
PROBATE OF A WILL → mandatory
TWO KINDS OF PROBATE
1. Post-mortem
● After the testator’s death
2. Ante-mortem
● During his lifetime
REASON FOR ANTE-MORTEM PROBATE: It is far easier for
the courts to determine the mental condition of a testator
during his lifetime than after his death.
● Fraud, intimidation and undue influence are minimized.
● Furthermore, if a will does not comply with the
requirements prescribed by law, the same may be
corrected at once
● Once a will is probated during the lifetime of the tes- tator,
the only questions that may remain for the courts to decide
after the testator’s death will refer to the intrinsic validity of
the testamentary dispositions.
RULES ON PROBATE
Both post-mortem and ante-mortem are found in Rule 76 of the
Rules of Court
FINALITY OF A PROBATE DECREE
Once a decree of probate becomes final in accordance with
the rules of procedure, it is res judicata
SCOPE OF A FINAL DECREE OF PROBATE
RULE: A final decree of probate is conclusive as to the due
execution of the will; i.e. as to the will’s extrinsic or formal
validity only
GALLANOSA CASE: What are covered by or included in the
term “formal validity” and therefore are conclusively settled by
a final decree of probate:
a. The testator was of sound and disposing mind;
b. That his consent was not vitiated;
c. That the will was signed by him in the presence of the
required number of witnesses; and
d. That the will is genuine
BALANE: As to (c), it would be better to state it thus: “that all
the formal requisites of the law have been complied with”
● These formal requirements are those laid down in Arti-
cles 804-808, and 820-821 (if the will is an attested one)
or those provided in Articles 804 and 810-814 (if the will is
holo- graphic), and Articles 818-819.
DOROTHEO V CA: What formal validity encompasses:
a. Whether the will submitted is indeed the decedent’s last
will and testament;
b. Compliance with the prescribed formalities for the
execution of wills;
c. Testamentary capacity;
d. Due execution of the will
DUE EXECUTION means:
1. The testator’s sound and disposing mind;
2. Freedom from vitiating factors (duress, menace, undue
influence)
3. Will genuine, not forgery;
4. Proper testamentary age;
5. The testator is not expressly prohibited by law from
making a will
Another way of defining the scope of a final decree of pro- bate
is to refer to Article 839: objection to a will on any of the
grounds enumerated in that article is foreclosed by a final
decree of probate.
A decree of probate, therefore, does not concern itself with the
question of intrinsic validity and the probate court should not
pass upon that issue.
● EXCEPTION: The probate of a will might become an idle
ceremony if on its face it appears to be intrinsically void.
Where practical considerations demand that the
intrinsic validity of the will be passed upon, even
before it is probated, the court should meet the issue.”
● Save in an extreme case where the will on its face is
intrinsically void, it is the probate court’s duty to pass first
upon the formal validity of the will
39
NEPOMUCENO: A probate court may pass upon the issue of
intrinsic validity if on the face of the will, its intrinsic nullity is
patent.
ARTICLE 839. The will shall be disallowed in any of the
following cases:
(1) If the formalities required by law have not been
complied with;
(2) If the testator was insane, or otherwise mentally
incapable of making a will, at the time of its execution;
(3) If it was executed through force or under duress, or the
influence of fear, or threats;
(4) If it was procured by undue and improper pressure and
influence, on the part of the beneficiary or of some other
person;
(5) If the signature of the testator was procured by fraud;
(6) If the testator acted by mistake or did not intend
that the instrument he signed should be his will at the time of
affixing his signature thereto.
NOTE: This is an exclusive enumeration of the causes for
disallowance of wills
These are the matters involved in formal validity.
● In relation to the GALLANOSA case, supra, a probate
decree once final, forecloses any subsequent challenge
on any of the matters enumerated in this article.
If any of these grounds for disallowance is proved, the will
shall be set aside as void
A will is either valid or void.
● If none of the defects enumerated in this article are
present, it is valid
● If any one of these defects is present, the will is void.
● The issue of formal validity or nullity is precisely what the
probate proceedings will determine.
● There is no such thing as a voidable will
(1) FORMALITIES REQUIRED BY LAW HAVE NOT BEEN
COMPLIED WITH
The formalities referred to are those laid down in Articles 804-
814, 818-819, and 820- 821.
(2) IF TESTATOR WAS INSANE, OR OTHERWISE
MENTALLY INCAPABLE OF MAKING A WILL AT THE
TIME OF ITS EXECUTION
CF. Articles 798-801.
(3) EXECUTED THROUGH FORCE OR UNDER DURESS,
OR THE INFLUENCE OF FEAR, OR THREATS
FORCE → CF definition of force or violence in contract law
Art. 1335. There is violence when in order to wrest consent,
serious or irresistible force is employed
DURESS → CF definition of intimidation in contract law
Art. 1335. xxx There is intimidation when one of the
contracting parties is compelled by a rea- sonable and well-
grounded fear of an imminent and grave evil upon his
person or property, or upon the person or property of his
spouse, descendants or ascendants, to give his consent.
To determine the degree of intimidation, the age, sex and
condition of the person shall be borne in mind.
A threat to enforce one’s claim through compe- tent
authority, if the claim is just or legal, does not vi- tiate
consent.
(4) PROCURED BY UNDUE AND IMPROPER INFLUENCE
UNDUE OR IMPROPER INFLUENCE → CF definition of undue
influence in contract law
Art. 1337. There is undue influence when a person takes
improper advantage of his power over the will of another,
depriving the latter of a reasonable freedom of choice. The
following circumstances shall be considered: the
confidential, family, spiritual and other relations between the
parties, or the fact that the person alleged to have been
unduly influenced was suffering from mental weakness, or
was ignorant or in financial distress
(5) SIGNATURE OF THE TESTATOR WAS PROCURED
THROUGH FRAUD
FRAUD → CF definition of fraud in contract law
Art. 1338. There is fraud when, through insIdious words or
machinations of one of the contracting parties, the other is
induced to enter into a contract which, without them, he
would not have agreed to.
(6) TESTATOR ACTED BY MISTAKE OR DID NOT INTEND
THAT THE INSTRUMENT SHOULD BE HIS WILL
MISTAKE → CF definition of mistake in contract law
Art. 1331. In order that mistake may invali- date consent, it
should refer to the substance of the thing which is the object
of the contract, or to those conditions which have principally
moved one or both parties to enter into the contract.
Mistake as to the identity or qualifications of one of the
parties will vitiate consent only when such identity or
qualifications have been the principal cause of the contract.
A simple mistake of account shall give rise to its correction
RULE 75
Production of Will; Allowance of Will Necessary
40

Section 1. Allowance necessary. Conclusive as to
execution. — No will shall pass either real or personal
estate unless it is proved and allowed in the proper court.
Subject to the right of appeal, such allowance of the will
shall be conclusive as to its due execution.
Section 2. Custodian of will to deliver. — The person who
has custody of a will shall, within twenty (20) days after he
knows of the death of the testator, deliver the will to the
court having jurisdiction, or to the executor named in the will.
Section 3. Executor to present will and accept or refuse
trust. — A person named as executor in a will shall, within
twenty (20) days after he knows of the death of the testate,
or within twenty (20) days after he knows that he is named
executor if he obtained such knowledge after the death of
the testator, present such will to the court having jurisdiction,
unless the will has reached the court in any other manner,
and shall, within such period, signify to the court in writing
his acceptance of the trust or his refusal to accept it.
Section 4. Custodian and executor subject to fine for
neglect. — A person who neglects any of the duties
required in the two last preceding sections without excused
satisfactory to the court shall be fined not exceeding two
thousand pesos.
Section 5. Person retaining will may be committed. — A
person having custody of a will after the death of the testator
who neglects without reasonable cause to deliver the same,
when ordered so to do, to the court having jurisdiction, may
be committed to prison and there kept until he delivers the
will.
RULE 76
Allowance or Disallowance of Will
Section 1. Who may petition for the allowance of will. —
Any executor, devisee, or legatee named in a will, or any
other person interested in the estate, may, at any time after
the death of the testator, petition the court having jurisdiction
to have the will allowed, whether the same be in his
possession or not, or is lost or destroyed.
The testator himself may, during his lifetime, petition the
court for the allowance of his will.
Section 2. Contents of petition. — A petition for the
allowance of a will must show, so far as known to the
petitioner:
(a) The jurisdictional facts;
(b) The names, ages, and residences of the heirs,
legatees, and devisees of the testator or decedent;
(c) The probable value and character of the property of the
estate;
(d) The name of the person for whom letters are prayed;
(e) If the will has not been delivered to the court, the name
of the person having custody of it.
But no defect in the petition shall render void the allowance
of the will, or the issuance of letters testamentary or of
administration with the will annexed.
Section 3. Court to appoint time for proving will. Notice
thereof to be published. — When a will is delivered to, or a
petition for the allowance of a will is filed in, the court having
jurisdiction, such court shall fix a time and place for proving
the will when all concerned may appear to contest the
allowance thereof, and shall cause notice of such time and
place to be published three (3) weeks successively, previous
to the time appointed, in a newspaper of general circulation
in the province.
But no newspaper publication shall be made where the
petition for probate has been filed by the testator himself.
Section 4. Heirs, devisees, legatees, and executors to be
notified by mail or personally. — The court shall also
cause copies of the notice of the time and place fixed for
proving the will to be addressed to the designated or other
known heirs, legatees, and devisees of the testator resident
in the Philippines at their places of residence, and deposited
in the post office with the postage thereon prepaid at least
twenty (20) days before the hearing, if such places of
residence be known. A copy of the notice must in like
manner be mailed to the person named as executor, if he be
not the petitioner; also, to any person named as coexecutor
not petitioning, if their places of residence be known.
Personal service of copies of the notice at lest (10) days
before the day of hearing shall be equivalent to mailing.
If the testator asks for the allowance of his own will, notice
shall be sent only to his compulsory heirs.
Section 5. Proof at hearing. What sufficient in absence
of contest. — At the hearing compliance with the provisions
of the last two preceding sections must be shown before the
introduction of testimony in support of the will. All such
testimony shall be taken under oath and reduced to writing.
It no person appears to contest the allowance of the will, the
court may grant allowance thereof on the testimony of one of
the subscribing witnesses only, if such witness testify that
the will was executed as is required by law.
In the case of a holographic will, it shall be necessary that at
least one witness who knows the handwriting and signature
of the testator explicitly declare that the will and the
signature are in the handwriting of the testator. In the
absence of any such competent witness, and if the court
deem it necessary, expert testimony may be resorted to.
Section 6. Proof of lost or destroyed will. Certificate
thereupon. — No will shall be proved as a lost or destroyed
will unless the execution and validity of the same be
established, and the will is proved to have been in existence
at the time of the death of the testator, or is shown to have
been fraudulently or accidentally destroyed in the lifetime of
the testator without his knowledge, nor unless its provisions
are clearly and distinctly proved by at least two (2) credible
witnesses. When a lost will is proved, the provisions thereof
must be distinctly stated and certified by the judge, under
the seal of the court, and the certificate must be filed and
recorded as other wills are filed and recorded.
Section 7. Proof when witnesses do not reside in
province. — If it appears at the time fixed for the hearing
that none of the subscribing witnesses resides in the
province, but that the deposition of one or more of them can
be taken elsewhere, the court may, on motion, direct it to be
taken, and may authorize a photographic copy of the will to
be made and to be presented to the witness on his
41
examination, who may be asked the same questions with
respect to it, and to the handwriting of the testator and
others, as would be pertinent and competent if the original
will were present.
Section 8. Proof when witnesses dead or insane or do
not reside in the Philippines. — If the appears at the time
fixed for the hearing that the subscribing witnesses are dead
or insane, or that none of them resides in the Philippines,
the court may admit the testimony of other witnesses to
prove the sanity of the testator, and the due execution of the
will; and as evidence of the execution of the will, it may
admit proof of the handwriting of the testator and of the
subscribing witnesses, or of any of them.
Section 9. Grounds for disallowing will. — The will shall
be disallowed in any of the following cases:
(a) If not executed and attested as required by law;
(b) If the testator was insane, or otherwise mentally
incapable to make a will, at the time of its execution;
(c) If it was executed under duress, or the influence of fear,
or threats;
(d) If it was procured by undue and improper pressure and
influence, on the part of the beneficiary, or of some
other person for his benefit;
(e) If the signature of the testator was procured by fraud or
trick, and he did not intend that the instrument should
be his will at the time of fixing his signature thereto.
Section 10. Contestant to file grounds of contest. —
Anyone appearing to contest the will must state in writing his
grounds for opposing its allowance, and serve a copy
thereof on the petitioner and other parties interested in the
estate.
Section 11. Subscribing witnesses produced or
accounted for where will contested. — If the will is
contested, all the subscribing witnesses, and the notary in
the case of wills executed under the Civil Code of the
Philippines, if present in the Philippines and not insane,
must be produced and examined, and the death, absence,
or insanity of any of them must be satisfactorily shown to the
court. If all or some of such witnesses are present in the
Philippines but outside the province where the will has been
filed, their deposition must be taken. If any or all of them
testify against the due execution of the will, or do not
remember having attested to it, or are otherwise of doubtful
credibility, the will may nevertheless, be allowed if the court
is satisfied from the testimony of other witnesses and from
all the evidence presented that the will was executed and
attested in the manner required by law.
If a holographic will is contested, the same shall be allowed
if at least three (3) witnesses who know the handwriting of
the testator explicitly declare that the will and the signature
are in the handwriting of the testator; in the absence of any
competent witnesses, and if the court deem it necessary,
expert testimony may be resorted to.
Section 12. Proof where testator petitions for allowance
of holographic will. — Where the testator himself petitions
for the probate of his holographic will and no contest is filed,
the fact that the affirms that the holographic will and the
signature are in his own handwriting, shall be sufficient
evidence of the genuineness and due execution thereof. If
the holographic will is contested, the burden of disproving
the genuineness and due execution thereof shall be on the
contestant. The testator to rebut the evidence for the
contestant.
Section 13. Certificate of allowance attached to prove
will. To be recorded in the Office of Register of Deeds.
— If the court is satisfied, upon proof taken and filed, that
the will was duly executed, and that the testator at the time
of its execution was of sound and disposing mind, and not
acting under duress, menace, and undue influence, or fraud,
a certificate of its allowance, signed by the judge, and
attested by the seal of the court shall be attached to the will
and the will and certificate filed and recorded by the clerk.
Attested copies of the will devising real estate and of
certificate of allowance thereof, shall be recorded in the
register of deeds of the province in which the lands lie.
GUEVARA V GUEVARA
DOCTRINE: Although not contested, the due execution of
the will and the fact that the testator at the time of its
execution was of sound and disposing mind and not acting
under duress, menace, and undue influence or fraud, must
be proved to the satisfaction of the court, and only then may
the will be legalized and given effect by means of a
certificate of its allowance, signed by the judge and attested
by the seal of the court; and when the will devises real
property, attested copies thereof and of the certificate of
allowance must be recorded in the register of deeds of the
province in which the land lies.
● 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. To assure and compel
the probate of will, the law punishes a person who
neglects his duty to present it to the court with a fine not
exceeding P2,000, and if he should persist in not
presenting it, he may be committed to prision and kept
there until he delivers the will.
● The petition to probate a will and the petition to issue
letters of administration are two different things,
although both may be made in the same case. The
allowance of a will precedes the issuance of letters
testamentary or of administration. One can have a will
probated without necessarily securing letters
testamentary or of administration.
● ITC: There is no showing that the various legatees other
than the present litigants had received their respective
legacies or that they had knowledge of the existence
and of the provisions of the will. Their right under the
will cannot be disregarded, nor may those rights be
obliterated on account of the failure or refusal of the
custodian of the will to present it to the court for
probate.
DE LA CERNA V POTOT
DOCTRINE: The appealed decision correctly held that the
final decree of probate, entered in 1939 by the Court of First
Instance of Cebu has conclusive effect as to his last will and
testament despite the fact that even then the Civil Code
already decreed the invalidity of joint wills, whether in favor
of the joint testators, reciprocally, or in favor of a third party.
● The Court of Appeals should have taken into account
also that the probate decree in 1989 could only affect
the share of the deceased husband, Bernabe de la
Cerna.
42
● It could not include the disposition of the share of the
wife, Gervasia Rebaca, who was then still alive, and
over whose interest in the conjugal properties the
probate court acquired no jurisdiction, precisely
because her estate could not then be in issue. Prior to
the new Civil Code, a will could not be probated during
the testator's lifetime.
● It follows that the validity of the joint will must be, on her
death, reexamined and adjudicated de novo, since a
joint will is considered a separate will of each testator.
● Therefore, the undivided interest of Gervasia Rebaca
should pass upon her death to her heirs intestate, and
not exclusively to the testamentary heir, unless some
other valid will in her favor is shown to exist, or unless
she be the only heir intestate of said Gervasia.
GALLANOSA V ARCANGEL
DOCTRINE: Our procedural law does not sanction an action
for the "annulment" of a will. In order that a will may take
effect, it has to be probated, legalized or allowed in the
proper testamentary proceeding. The probate of the will is
mandatory.
● The defense of res judicata is a two-pronged defense
because (1) the 1939 trial and 1943 decrees of probate
and distribution; and 2) the 1952 order of dismissal
constitute bars by former judgment, in accordance with
Rule 39, ROC. The 1939 decree of probate is
conclusive as to the due execution or formal validity of
the will.
● The testator was of sound 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 trial is not a
forgery. Accordingly, these facts cannot again be
questioned in a subsequent proceeding, not even in a
criminal action for the forgery of the will. After the finality
of the allowance of a will, the issue as to the
voluntariness of its execution cannot be raised
anymore.
NEPOMUCENO V CA
DOCTRINE: The validity of a provision in the will which
completely preterited the decedent’s surviving forced heirs
was adjudged void during the probate proceedings because
a will of this nature, no matter how valid extrinsically, would
be null and void. Separate or latter proceedings to determine
the intrinsic validity of the testamentary provisions would be
superfluous.
● Where there are provisions of the will that are of
dubious legality, the probate court may correctly pass
upon the will’s intrinsic validity even before its formal
validity had been established. The probate of a will
might become an idle ceremony if on its face it appears
to be intrinsically void. Where practical considerations
demand that the intrinsic validity of the will be passed
upon even before it is probated, the court should meet
the issue.
● Given that appears to be no more dispute over the
extrinsic validity of the will, there would be no useful
purpose that would be served if we remand the nullified
provision to the proper court in a separate action for that
purpose simply because, in the probate of the will, the
court does not look into the intrinsic validity of the
provisions.
● Jugo and Gomez were validly married during the
cohabitation of Jugo and Nepomuceno. Allowing the
testamentary provisions in petitioner’s favor, therefore,
would be contrary to Art. 739 and 1028 of the NCC,
which nullifies donations between persons who are
living in adultery or concubinage. There is no finding of
innocence of good faith on Nepomuceno’s part.
NUGUID V NUGUID
DOCTRINE: In the case for the probate of a will. The court's
area of inquiry is limited to an examination of, and resolution
on, the extrinsic validity of the will. The due execution
thereof, the testatrix's testamentary capacity, and the
compliance with the requisites or solemnities by law
prescribed is the issue at this stage of the proceedings —
the Court is not called upon to rule on the efficacy of the
provisions of the will, the legality of any devise or legacy
therein.
● in the event of probate or if the court rejects the will,
probability exists that the case will come up once again
before us on the same issue of the intrinsic validity or
nullity of the will. Result: waste of time, effort, expense,
plus added anxiety.
MALOLES V PHILLIPS
DOCTRINE: In cases for the probate of wills, the authority
of the court is limited to ascertaining the extrinsic validity of
the will, i.e., whether the testator, being of sound mind,
freely executed the will in accordance with the formalities
prescribed by law.
● Ordinarily, probate proceedings are instituted only after
death of the testator, so much so that, after approving
and allowing the will, the court proceeds to issue letters
testamentary and settle the estate of the testator.
● Art 838 of the Civil Code authorizes the filing of a
petition for probate of the will filed by the testator
himself. Rule 76 of the Rules of Court also provides for
who may petition for the allowance of will.
● RATIONALE: Most of the cases that reach the courts
involve either the testamentary capacity of the testator
or the formalities adopted in the execution of wills.
There are relatively few cases concerning the intrinsic
validity of testamentary dispositions. It is far easier for
the courts to determine the mental condition of a
testator during his lifetime than after his death. Fraud,
intimidation and undue influence are minimized.
● Thus, after the allowance of the will of Dr. De Santos on
February 16, 1996, there was nothing else for Branch
61 to do except to issue a certificate of allowance of the
will pursuant to Rule 73, 12 of the Rules of Court.
● There is, therefore, no basis for the ruling of Judge
Abad Santos of Branch 65 of RTC-Makati that Branch
61, having begun the probate proceedings of the estate
of the deceased, continues and shall continue to
exercise said jurisdiction to the exclusion of all others.
● Probate proceedings do not cease upon the allowance
or disallowance of a will but continues up to such time
that the entire estate of the testator had been
partitioned and distributed. The fact that the will was
allowed during the lifetime of the testator meant merely
that the partition and distribution of the estate was to be
suspended until the latter’s death.
43
 The rules on institution of heir set forth in the provisions of this
PASTOR V CA
Section, apply as well to institution of devisees and legatees.
DOCTRINE: In a special proceeding for the probate of a will,
the issue by and large is restricted to the extrinsic validity of
the will, i.e., whether the testator, being of sound mind,
ARTICLE 841. A will shall be valid even though it should not
freely executed the will in accordance with the formalities
contain an institution of an heir, or such insti- tution should
prescribed by law. (ROC Rule 75, Section 1; Rule 76,
not comprise the entire estate, and even though the person
Section 9.
so instituted should not accept the in- heritance or should be
● As a rule, the question of ownership is an
incapacitated to succeed.
extraneous matter which the Probate Court cannot
resolve with finality.
In such cases the testamentary dispositions made in
● For the purpose of determining whether a certain
accordance with law shall be complied with and the
property should or should not be included in the
remainder of the estate shall pass to the legal heirs.
inventory of estate properties, the Probate Court may
pass upon the title thereto, but such determination
ARTICLE 842. One who has no compulsory heirs may
is provisional, not conclusive, and is subject to the
dispose by will of all his estate or any part of it in favor of
final decision in a separate action to resolve title.
any person having capacity to succeed.
● ITC: looking into the body of the decision shows that the
Probate Order did not resolve the question of ownership
One who has compulsory heirs may dispose of his estate
of the properties listed in the estate inventory. This was
provided he does not contravene the provisions of this Code
appropriate, considering that the issue of ownership
with regard to the legitime of said heirs.
was the very subject of controversy in the reconveyance
suit that was still pending
Even if the will does not contain any testamentary disposition,
it will be formally valid provided it complies with all the formal
COSO V FERNANDEZ requisites.
DOCTRINE: Mere general or reasonable influence over a
testator is not sufficient to invalidate a will; to have that effect
the influence must be "undue." The rule as to what HOW MUCH CAN BE DISPOSED OF BY WILL
constitutes "undue influence" has been variously stated, but a. If the testator leaves no compulsory heirs - the entire
the substance of the different statements is that, to be hereditary estate.
sufficient to avoid a will, the influence exerted must be of a b. If the testator leaves compulsory heirs - the disposable
kind that so overpowers and subjugates the mind of the portion; i.e. the net hereditary estate minus the legitimes
testator as to destroy his free agency and make his express
the will of another, rather than his own.
The amount of the legitimes depends on the kind and number
● ITC: While it is shown that the testator entertained
strong affections for Rosario Lopez, it does not appear of compulsory heirs.
that her influence so overpowered and subjugated his ● Various combinations are possible. The amount of the
mind as to "destroy his free agency and make him disposable portion is also variable.
express the will of another rather than his own."
● He was an intelligent man, a lawyer by profession, If the testator disposes by will of less than he is allowed to
appears to have known his own mind, and may well under 2(a) or 2(b), as the case may be - there will be mixed
have been actuated only by a legitimate sense of duty
succession
in making provisions for the welfare of his illegitimate
son and by a proper feeling of gratitude in repaying ● I.e. testamentary succession as to the part disposed of by
Rosario Lopez for the sacrifices she had made for him. the will, and intestate succession as to the part not
● Mere affection, even if illegitimate, is not undue disposed of by the will
influence and does not invalidate a will. No imposition or ● The legitimes, of course, if there are any, pass by strict
fraud has been shown in the present case. operation of law.
● Influence gained by kindness and affection will not be
regarded as `undue,' if no imposition or fraud be
practiced, even though it induces the testator to make ARTICLE 843. The testator shall designate the heir by his
an unequal and unjust disposition of his property in name and surname, and when there are two persons having
favor of those who have contributed to his comfort and the same names, he shall indicate some circumstance by
ministered to his wants, if such disposition is voluntarily which the instituted heir may be known.
made.
Even though the testator may have omitted the name of the
heir, should he designate him in such manner that there can
11. Institution of Heirs be no doubt as to who has been instituted, the institution
shall be valid.

ARTICLE 840. Institution of heir is an act by virtue of which ARTICLE 844. An error in the name, surname, or cir-
a testator designates in his will the person or per- sons who cumstances of the heir shall not vitiate the institution when it
are to succeed him in his property and transmissible rights is possible, in any other manner, to know with certainty the
and obligations. person instituted.

If, among persons having the same names and surnames,

44

there is a similarity of circumstances in such a way that,
even with the use of other proof, the person instituted cannot
be identified, none of them shall be an heir.
Requirement for designation of heir
The sense of these two articles is that the heir, legatee, or
devisee must be identified in the will with sufficient clarity to
leave no doubt as to the testator’s intention.
RULE IN TESTAMENTARY SUCCESSION: Respect for and
compliance with the testator’s wishes
The designation of name and surname is directory.
● What is required is that the identity of the designated
successor be sufficiently established.
● This is most usually done by giving the name and
surname, but there are other ways, as can be gleaned
from Article 843, par. 2.
● EXAMPLE: I designate as heir to ⅛ of my estate my
eldest first cousin
If there is any ambiguity in the designation (as in Article 844,
par. 2), the ambiguity should be resolved in accordance with
Article 789.
● If It is not possible to resolve the ambiguity, the testator’s
intent becomes indeterminable and, therefore, intestacy as
to that portion will result
ARTICLE 845. Every disposition in favor of an un- known
person shall be void, unless by some event or circumstance
his identity becomes certain. However, a disposition in favor
of a definite class or group of persons shall be valid.
UNKNOWN PERSON
This refers to a successor whose identity cannot be
determined because the designation in the will is so unclear or
so ambiguous as to be incapable of resolution.
● EXAMPLE: “I designate as heir to one-fourth of my estate
a fiction writer.”
This does not refer to one with whom the testator is not
personally acquainted. The testator may institute somebody
who is a perfect stranger to him, provided the identity is clear.
ARTICLE 846. Heirs instituted without designation of shares
shall inherit in equal parts.
PRESUMPTION IN CASES OF COLLECTIVE
DESIGNATION: EQUALITY
● If the testator intends an unequal apportion- ment, he
should so specify.
APPLICATION: Only in testamentary succession - only among
testamentary heirs as such (or devisees or legatees)
● It will not apply to an heir who is both a compulsory and a
testamentary heir, for in that case the heir will get his
legitime and his testamentary portion.
○ EXAMPLE: X, the testator, in his will institutes to ¼ of
his estate the following: A (his son), B (his cousin),
and C (his friend).
○ A, being X’s compulsory heir, will get his legitime plus
one-third of the one-fourth given by will. As
testamentary heir, A gets a share equal to those of B
and C, but since A is also a compulsory heir, and is
entitled to his legitime over and above his
testamentary share, he will end up getting a larger
slice of Xs estate than B or C.
● Not explicitly covered by this article is an instance where
the shares of some of the heirs are designated and those
of others are not.
○ EXAMPLE: “I institute to one-fourth of my estate A, B,
C, and D, of which portion A is to get one-third, and B
is to get one-fourth.” The shares of C and D are
unspecified.
○ How much are they to get? Are they to divide equally
the remaining portion of the one-fourth of the estate,
after deducting A’s and B’s portions (The remainder is
5/12 of 1/4)?
ARTICLE 847. When the testator institutes some heirs
individually and others collectively as when he says, ‘I
designate as my heirs A and B, and the children of C,’ those
collectively designated shall be considered as individually
instituted, unless it clearly appears that the intention of the
testator was otherwise.
EQUALITY AND INDIVIDUALITY OF DESIGNATION
RULE: Equality
● In addition, this article establishes the presumption that
the heirs collectively referred to are designated per capita
along with those separately designated.
● If the testator intends a block designation, he should so
specify.
ARTICLE 848. If the testator should institute his brothers
and sisters, and he has some of full blood and others of half
blood, the inheritance shall be distributed equally unless a
different intention appears.
If the testator intends an unequal apportionment, he should so
specify.
DIFFERENT RULE IN INTESTACY
It should be borne in mind that this article refers only to
testamentary succession.
● In intestacy, the rule is different: The applicable provision
is Article 1006, which establishes a proportion of 2:1
between full- and half-blood brothers and sisters (without
prejudice to the rule prohibiting succession ab intestato
between legitimate and illegitimate siblings.
RECAPITULATION
A. TESTAMENTARY SUCCESSION
45
 ● Equality of shares of full- and half-blood brothers and
sisters, unless the testator provides otherwise (Article
848)
B. INTESTACY
● Proportion of 2:1 between full- and half-blood brothers
and sisters (Article 1006), and only if the
disqualification in Article 992 does not apply
Q: Does Article 848 apply even to illegitimate brothers and
sisters, in cases where the testator is of legitimate status and
vice-versa?
A: It seems so, because Article 848 makes no distinction. Ubi
lex non disttnguit, nec nos distinguere debe- mus.
ARTICLE 849. When the testator calls to the succession a
person and his children, they are all deemed to have been
instituted simultaneously and not successively.
Equality and individuality of institution are presumed
● If the testator desires a different mode of apportionment,
he should so specify.
ARTICLE 850. The statement of a false cause for the
institution of an heir shall be considered as not written,
unless it appears from the will that the testator would not
have made such institution if he had known the falsity of
such cause.
GR: The falsity of the stated cause for the testamentary
institution does not affect the validity or efficacy of the
institution.
REASON: Testamentary dispositions are ultimately based on
liberality.
EXCEPTION: The falsity of the stated cause for institution will
set aside the institution, if certain factors are present.
AUSTRIA V REYES: 3 requisites for falsity of cause to
annul the institution of heirs
1. The cause for the institution of heirs must be stated in the
will
2. The cause must be shown to be false;
3. It must appear from the face of the will that the testator
would not have made such institution if he had known the
falsity of the cause.
This article does not restrict the operation of ARticle 1028 in
relation to ARticle 739 declaring void certain testamentary
dispositions, by reason of public policy.
● The annulling factor in those two articles is not falsity but
illegality.
ARTICLE 851. If the testator has instituted only one heir,
and the institution is limited to an aliquot part of the
inheritance, legal succession takes place with respect to the
remainder of the estate.
The same rule applies, if the testator has instituted several
heirs each being limited to an aliquot part, and all the parts
do not cover the whole inheritance.
BALANE: The wording of this article is erroneous (or, as
Tolentino kindly puts it), inaccurate.
● Legal succession does not take place with respect to the
remainder of the estate, but to the remainder of the
disposable portion.
● There may, after all, be compulsory heirs whose legitimes
will therefore cover part of the estate; the legitimes do not
pass by legal or intestate succession.
SUGGESTED WORDING:
Art. 851. If the testator has instituted only one heir, and the
institution is limited to an aliquot part of the inheritance less
than the entire disposable portion, legal succession takes
place with respect to the remainder of the disposable portion.
The same rule applies, if the testator has instituted several
heirs, each being limited to an aliquot part, and all the parts do
not cover the whole disposable portion
BALANE: This article states exactly the same rule laid down in
Article 841. There is absolutely no need for the redundancy.
ARTICLE 852. If it was the intention of the testator that the
instituted heirs should become sole heirs to the whole
estate, or the whole free portion, as the case may be, and
each of them has been instituted to an aliquot part of the
inheritance and their aliquot parts together do not cover the
whole inheritance, or the whole free portion, each part shall
be increased proportionally.
ARTICLE 853. If each of the instituted heirs has been given
an aliquot part of the inheritance, and the parts together
exceed the whole inheritance, or the whole free portion, as
the case may be, each part shall be reduced proportionally.
In both articles
(1) There are more than one instituted heir
(2) The testator intended them to get the whole estate or the
whole disposable portion, as the case may be, and
(3) The testator has designated a definite portion for each heir
ART 852 → the total of all the portions is less than the whole estate
(or the whole disposable portion). Therefore, a proportionate increase
is necessary.
The difference cannot pass by intestacy because the testator’s
intention is clear to give the instituted heirs the entire amount.
ART 853 → the reverse occurs: the total exceeds the whole estate
(or the whole disposable portion). Thus, a proportionate reduction
must be made.
EXAMPLE OF ART 852
46
FACTS: X dies without any compulsory heirs but leaves a will Per the proportions specified in the will:
containing the following disposition: “I institute A, B, and C to A = 150,000
my entire estate in the following proportions: A-l/2; B-l/3; C-l/8.” B = 75,000
At the time of his death, X’s estate is valued at P600.000. The C = 50,000
total of the specified portions is only 23/24. A proportionate 275,000
increase should be made.
To find A’s increased share: x = A’s increased share
Per the proportions specified in the will:
150,000: x = 275,000: 300,000
A = 300,000
B = 200,000 275,000x = 45,000,000,000
C = 75,000
575,000 275X = 45,000,000

To find A’s increased share: x = A’s increased share X= 45,000,000/275

300,000: x = 575,000: 600,000 X= 163,636.36

575,000x = 180,000,000,000
To find B’s increased share: x = B’s increased share
575X = 180,000,000
75,000: x = 275,000: 300,000
X= 180,000,000/575
275,000x = 22,500,000,000
X= 313, 043.48
275X = 22,500,000

To find B’s increased share: x = B’s increased share X= 22,500,000/275

200,000: x = 575,000: 600,000 X= 81, 818.19

575,000x = 120,000,000,000
To find C’s increased share: x = C’s increased share
575X = 120,000,000
50,000: x = 275,000: 300,000
X= 120,000,000/575
275,000x = 15,000,000,000
X= 208, 695.65
275X = 15,000,000

To find C’s increased share: x = C’s increased share X= 15,000,000/275

75,000: x = 575,000: 600,000 X= 54,545.45

575,000x = 45,000,000,000
Of X’s P600.000 estate, then, the sharings will be:
575X = 45,000,000 Y = 300,000 (his legitime)
A = 163,636.19
X= 180,000,000/575 B = 81,818.19
C = 54,545.45
X= 78, 260.87
EXAMPLE OF ART 852
Per the proportions specified in the will: FACTS: A dies without any compulsory heirs but leaves a will
A = 313,043.48 containing the following disposition: “I institute A, B, and C to
B = 208,695.65 my entire estate in the follow- ing proportions: A-l/2; B-l/3; C-
C = 78,260.87 l/4.” At the time of his death, X’s net estate is valued at
600,000.00 P600.000. The total of the specified portions is 13/12;
obviously, proportionate reductions have to be made.
FACTS: X dies with Y (a legitimate child) as his only
compulsory heir. X leaves a will stating: “I give A, B, and C the Per the proportions specified in the will:
entire disposable portion (1/2) of my estate, such that A is to A = 300,000
get 1/4 of the estate; B, 1/8 thereof; and C 1/12 thereof.” X’s B = 200,000
net estate is worth P600,000. The total of the specified portions C = 150,000
is only 11/24, making a proportionate increase necessary. 650,000

47
To find A’s reduced share: x = A’s increased share
X= 45,000,000/325
300,000: x = 650,000: 600,000
X= 138,461.54
650,000x = 180,000,000,000
To find B’s reduced share: x = B’s increased share
650X = 180,000,000
100,000: x = 325,000: 300,000
X= 180,000,000/650
325,000x = 30,000,000,000
X= 276,923.08
325X = 30,000,000
To find B’s reduced share: x = B’s increased share
X= 30,000,000/325
200,000: x = 650,000: 600,000
X= 92,307.69
650,000x = 120,000,000,000
To find C’s reduced share: x = C’s increased share
650X = 120,000,000
75,000: x = 325,000: 300,000
X= 120,000,000/650
325,000x = 22,500,000,000
X= 184,615.38
325X = 22,500,000
To find C’s reduced share: x = C’s increased share
X= 30,000,000/325
150,000: x = 650,000: 600,000
X= 69,230.77
650,000x = 90,000,000,000
Of X’s P600,000 estate, then, the sharings will be:
650X = 90,000,000
Y = 300,000 (his legitime)
X= 180,000,000/650 A= 138,461.54
B= 92,307.69
X= 138,461.54 C= 69,230.77

Of X’s P600,000 estate, then, the sharings will be: ARTICLE 856. A voluntary heir who dies before the testator
A = 276,923.08 transmits nothing to his heirs.
B = 184,615.38
C = 138,461.54 A compulsory heir who dies before the testator, a person
incapacitated to succeed, and one who renounces the
inheritance, shall transmit no right to his own heirs except in
FACTS: X dies with Y (a legitimate child) as his only com- cases expressly provided for in this Code.
pulsory heir. X leaves a will stating: “I give A, B, and C the
entire disposable portion (1/2) of my estate, such that A is to
get 1/4 of the estate; B, 1/6 thereof; and C, 1/8 thereof.” Xs net BALANE: It is inaccurate and misleading, because it suggests
estate is worth P600.000. The total of the specified portions is that there are exceptions to the rule that an heir—in case of
13/24 (more than the 1/2 available), and a proportionate predecease, incapacity, or renunciation— transmits nothing to
reduction is necessary. his own heirs
● This rule of non-transmission is absolute; there is no
Per the proportions specified in the will: exception to it. Representation does not constitute an
A = 150,000 exception, because in representation the person
B = 100,000 represented does not transmit anything to his heirs.
C = 75,000 Representation is rather a form of subrogation
325,000
BALANE: It says both too much and too little:
To find A’s reduced share: x = A’s increased share ● TOO MUCH: because this article is found in the chapter
on testamentary succession (in the section on institution of
150,000: x = 325,000: 300,000 heir); thus it should speak only of voluntary or
testamentary heirs.
325,000x = 45,000,0000,000
● TO LITTLE: because if it wished to cover the entire gamut
of rules on this point, it does not mention legal or intestate
325X = 45,000,000
heirs. Neither does it provide for cases of disinheritance.
48

COMPLETE STATEMENT OF THE RULE
An heir—whether compulsory, voluntary, or legal— transmits
nothing to his heirs in case of predecease, incapacity,
renunciation, or disinheritance. However, in case of
predecease or incapacity of compulsory or legal heirs, as well
as disinheritance of compulsory heirs, the rules on
representation shall apply.
OUTLINE OF RULES (ANNEX)
AUSTRIA V REYES
DOCTRINE: Before the institution of heirs may be annulled
under Art 850, the following requisites must concur:
(1) The cause for the institution of heirs must be stated in
the will
(2) The cause must be shown to be false
(3) It must appear from the face of the will that the testator
would not have a made such institution if he had known
the falsity of the cause
● Surely if she was aware that succession to the legitime
takes place by operation of law, independent of her own
wishes, she would not have found it convenient to name
her supposed compulsory heirs to their legitimes.
● Her express adoption of the rules on legitimes should
very well indicate her complete agreement with that
statutory scheme.
● Even if such theory were to be accepted, such
institution must stand. Art 850 is a positive injunction to
ignore whatever false cause the testator may have
written in his will for the institution of heirs.
● Such institution may be annulled only when one is
satisfied, after an examination of the will, that the
testator clearly would not have made the institution if he
had known the cause for it to be false.
● The phrases, "mga sapilitang tagapagmana" and
"sapilitang mana," were borrowed from the language of
the law on succession and were used, respectively, to
describe the class of heirs instituted and the abstract
object of the inheritance.
● 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."
12. Preterition
ARTICLE 854. The preterition or omission of one, some, or
all of the compulsory heirs in the direct line, whether living at
the time of the execution of the will or born after the death of
the testator, shall annul the institution of heir; but the devises
and legacies shall be valid insofar as they are not inofficious.
If the omitted compulsory heirs should die before the
testator, the institution shall be effectual, without preju- dice
to the right of representation.
PRETERITION: OMISSION
● MANRESA: Preterition consists in the omission of an heir
in the will, either because he is not named, or, although he
is named as a father, son, etc., he is neither instituted as
an heir nor expressly disinherited, nor assigned any part of
the estate, thus being tacitly deprived of his right to the
legitime
● CASTAN: By preterition is meant the omission in the will of
any of the compulsory heirs, without being expressly
disinherited. It is thus a tacit deprivation of the legitime, as
distinguished from disinheritance, which is an express
deprivation
● BALANE: Manresa’s definition can be misleading.
Castan’s definition is basically the same
OMISSION THAT CONSTITUTES PRETERITION
1. If the heir in question is instituted in the will but the portion
given to him by the will is less than his legitime—There
is no preterition.
● Should the value of the legacy or devise be less than
the recipient’s legitime, his remedy is only for
completion of his legitime under Articles 906 and 907.
2. If the heir is given a legacy or devise—There is no
preterition.
● Should the value of the legacy or devise be less than
the recipient’s legitime, his remedy is only for
completion of his legitime under Articles 906 and 907.
3. If the heir had received a donation inter vivos from the
testator—The better view is that there is no preterition.
● The donation inter vivos is treated as an advance on
the legitime under Articles 906, 909, 910 and 1062.
4. If the heir is not mentioned in the will nor was a recipient of
a donation inter vivos from the testator, but not all of the
estate is disposed of by the will— There is no
preterition.
● The omitted heir in this instance would receive
something by intestacy, from the portion not disposed
of by the will (the vacant portion). The right of the heir,
should the vacant portion be less than his legitime,
will simply be to demand completion of his legitime,
under Articles 906 and 907.
For there to be preterition, therefore, the heir in question must
have received nothing from the testator by way of:
(1) Testamentary succession
(2) Legacy or devise
(3) Donation inter vivos
(4) Intestacy
PRETERITION → TOTAL OMISSION
● What constitutes preterition is not omission (in the sense
of not being mentioned) in the will but being completely left
out of the inheritance
COMPULSORY HEIR IN THE DIRECT LINE “whether living
at the time of the execution of the will or bom after the death of
the testator.”
● covers children or descendants, and in proper cases, (in
default of children or descendants) parents or ascendants.
● Surviving spouse → not covered because although a
compulsory heir, is not in the direct line
49
DIRECT LINE (art 964 par 2) → A direct line is that constituted by
the series of degrees among ascendants and descendants
Q: Are illegitimate descendants or ascendants within the
coverage of “compulsory heirs in the direct line”?
A: YES (MANRESA); NO (SCAEVOLA)
● BALANE: Manresa’s seems to be the better opinion, since
the law does not distinguish.
QUASI-POSTHUMOUS CHILDREN
● BALANE: There is a flaw in the wording of the Article. The
phrase “whether living at the time of the execution of the
will or bom after the death of the testator” does not, by its
terms, include those compulsory heirs in the direct line
bom after the execution of the will but before the testator's
death (los cuasi postumos).
● Such children are, without doubt, to be included within the
purview of the protection of this Article. This gap is merely
the result of careless drafting.
● The proposed Spanish Code of 1851 expresses the
legislative intent correctly: “whether living at the time of the
execution of the will or bom subsequently, even after the
testator’s death.”
PREDECEASE OF PRETERITED COMPULSORY HEIR
The determination of whether or not there are preterited heirs
can be made only upon the testator’s death
● Should the preterited heir predecease (or be unworthy to
succeed) the testator, obviously the question of preterition
of that heir becomes moot.
● However, should there be a descendant of that heir who is
himself preterited, then the effects of preterition will arise.
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). Art. 854 will apply, not because A was
preterited but because A-1 was preterited.
EXAMPLE: If the preterited heir who predeceases is a child but
the testator is survived solely by ascendants, who are entitled
to a legitime in default of descendants.
ADOPTED CHILDREN
An adopted child, if totally omitted in the inheritance, is
preterited within the contemplation of Article 854 and can
invoke its protection and consequences.
● Since an adopted child is given by law the same rights as
a legitimate child, vis-a-vis the adopter, then the adopted
child can, in proper cases, invoke Article 854 in the same
manner that a legitimate child can
EFFECT OF PRETERITION
annulment of the institution of heir but validity of legacies and
devises to the extent that these latter do not impair legitimes
Preterition abrogates the institution of heir but respects
legacies and devises insofar as these do not impair the
legitimes
● If the will contains only institutions of heirs and there is
preterition, total intestacy will result; if there are legacies or
devises and there is preterition, the legacies or devises
will stand, to the extent of the free portion (merely to be
reduced, not set aside, if the legitimes are impaired) but
the institution of heirs, if any, will be swept away.
PRETERITION VS DISINHERITANCE
Preterition is (total) omission from the inheritance, without the
heir being expressly disinherited.
● The implied basis of the rule on preterition is inadvertent
omission by the testator. Thus, if the testator explicitly
disinherits the heir, this article will not apply.
● Should the disinheritance be ineffective, for absence of
one or other of the requisites for a valid disinheritance, the
heir is simply entitled to demand his rightful share.
ARTICLE 855. The share of a child or descendant omitted in
a will must first be taken from the part of the estate not
disposed of by the will, if any; if that is not sufficient, so
much as may be necessary must be taken proportionally
from the shares of the other compulsory heirs.
BALANE: This article is redundant and completely
unnecessary if it is made to apply to cases of preterition.
● If there is preterition, only Article 854 need be applied: that
article is sufficient and self-implementing for cases of
preterition.
APPLICATION: This article is properly applied in cases where
a compulsory heir is not preterited but left something (because
not all the estate is disposed of by will) less than his legitime.
Article 855 really talks of a completion of legitime.
HOW TO FILL UP COMPULSORY HEIR’S IMPAIRED
LEGITIME:
1. From the portion of the estate left undisposed of by will
2. From the shares of the testamentary heirs, legatees, and
devisees, proportionally
SUPERFLUITY
Since this article, properly understood, does not apply to
preterition but to completion of legitime, it is redundant,
because the rules and manner of completing impaired
legitimes are laid down with greater detail in Articles 906, 907,
909, 910, and 911.
INACCURACY
(1) Its coverage should extend not only to children and
descendants, but to all compulsory heirs. As subsequent
articles (906, et seq.) mandate, any compulsory heir
whose legitime is impaired may demand that the same be
fully satisfied.
(2) The proportionate reductions (after consuming the
undisposed portion) should be borne not by the
50
 compulsory heirs as such but by the testamentary heirs,
including the devisees and legatees.
● To make the compulsory heirs qua compulsory heirs
bear the reduction would mean reducing their own
legitimes—a patent absurdity.
● That would be solving one problem by creating
another: a legitimary “robbing Peter to pay Paul”
solution. As correctly stated by Article 907, it is
testamentary dispositions that must be reduced if they
impair or diminish the legitimes of compulsory heirs.
REYES V BARRETTO-DATU
DOCTRINE: In the Reyes case:
1. there was a compulsory heir in the direct line;
2. such heir was instituted in the will;
3. the testamentary disposition given to such heir was less
than her legitime.
Based on these, the holding was that there was no
preterition.
● There was no total omission, inasmuch as the heir
received something from the inheritance. The heir’s
remedy is not found in Article 854 but in Articles 906
and 907, for completion of legitime
AZNAR V DUNCAN
DOCTRINE: Preterition (according to Manresa) is the
omission of the heir in the will, either by not naming him at
all or, while mentioning him as father, son, etc., by not
instituting him as heir without disinheriting him expressly, nor
assigning to him some part of the properties.
● REQUISITES: (a) That the omission refers to a forced
heir; (b) That the omission is complete; that the forcible
heir receives nothing in the testament
● In order that the right of a forced heir may be limited
only to the completion of his legitime (instead of the
annulment of the institution of heirs), it is not necessary
that what has been left to him in the will be granted to
him in his capacity as heir.
● IN THE CASE: The testator refused to acknowledge
Helen Garcia as his natural daughter, and limited her
share to a legacy of P3,600.00. The Court held that
preterition is not applicable because the testator did not
entirely omit Helen Garcia.
PRETERITION OF A COMPLETION OF
COMPULSORY HEIR LEGITIME
Compulsory heir is not Testator left some property
mentioned in the will (total to the compulsory heir but it
deprivation) is insufficient to cover the
legitime (partial deprivation)
Compulsory heir can Compulsory heir can
institute an action to annul institute an action to
the will complete the legitimacy
ACAIN V IAC
DOCTRINE: Insofar as the widow is concerned, ARticle 854
may not apply as she does not ascend or descend from the
testator, although she is a compulsory heir. Stated
otherwise, even if the surviving spouse is a compulsory heir,
there is no preterition even if she is omitted from the
inheritance, for she is not in the direct line.
● However, the same thing cannot be said of VIRGINIA,
whose legal adoption by the testator has not been
questioned by petitioner. Under Article 39 of P.D. No.
603, known as the Child and Youth Welfare Code,
adoption gives to the adopted person the same rights
and duties as if he were a legitimate child of the adopter
and makes the adopted person a legal heir of the
adopter. She was totally omitted and preterited in the
will of the testator and that both adopted child and the
widow were deprived of at least their legitime. Neither
can it be denied that they were not expressly
disinherited. Hence, this is a clear case of preterition of
the legally adopted child.
● The universal institution of petitioner together with his
brothers and sisters to the entire inheritance of the
testator results in totally abrogating the will because the
nullification of such institution of universal heirs - without
any other testamentary disposition in the will - amounts
to a declaration that nothing at all was written. Art 854
offers no leeway for inferential interpretation.
DY YIENG SEANGIO V REYES
DOCTRINE: It was Segundo’s last expression to bequeath
his estate to all his compulsory heirs, with the sole exception
of Alfredo. Also, Segundo did not institute an heir to the
exclusion of his other compulsory heirs.
● The mere mention of the name of one of the petitioners,
Virginia, in the document did not operate to institute her
as the universal heir. Her name was included plainly as
a witness to the altercation between Segundo and his
son, Alfredo.
NUGUID V NUGUID
DOCTRINE: The deceased Rosario Nuguid left no
descendants, legitimate or illegitimate. But she left forced
heirs in the direct ascending line her parents, now
oppositors Felix Nuguid and Paz Salonga Nuguid. And, the
will completely omits both of them: They thus received
nothing by the testament; tacitly, they were deprived of their
legitime; neither were they expressly disinherited.
● This is a clear case of preterition. Such preterition in the
words of Manresa "anulara siempre la institucion de
heredero, dando caracter absoluto a este
ordenamiento6 referring to the mandate of Article 814,
now 854 of the Civil Code. The one-sentence will here
institutes petitioner as the sole, universal heir — nothing
more. No specific legacies or bequests are therein
provided for. It is in this posture that we say that the
nullity is complete. Perforce, Rosario Nuguid died
intestate.
● The preterition had the effect of nullifying the entire will.
There is no other provision in the will before us except
the institution of petitioner as universal heir.
● The universal institution of petitioner to the entire
inheritance results in totally abrogating the will.
Because, the nullification of such institution of universal
heir — without any other testamentary disposition in the
will — amounts to a declaration that nothing at all was
written. Carefully worded and in clear terms, Article 854
offers no leeway for inferential interpretation. Giving it
an expansive meaning will tear up by the roots the
51
 BASIS OF SUBSTITUTIONS
fabric of the statute.
The right to provide for substitutions is based on testamentary
freedom.
PRETERITION DISINHERITANCE ● SIMPLE SUBSTITUTION: The testator simply makes a
second choice, in case the first choice does not inherit.
Consists in the omission in Is a testamentary
● FIDEICOMMISSARY SUBSTITUTIONS: The testator
the testator’s will of the disposition depriving any
forced heirs or anyone of compulsory heir of his imposes what is essentially a restriction or burden on the
them, either because they share in the legitime for a first heir, coupled with a selection of a subsequent
are not mentioned therein, cause authorized by law recipient of the property.
or, though mentioned, they
are neither instituted as
heirs nor are expressly ARTICLE 858. Substitution of heirs may be:
disinherited (1) Simple or common;
(2) Brief or compendious;
Preterition under Article In effective disinheritance (3) Reciprocal; or
854 CC, we repeat, “shall under Article 918, such (4) Fideicommissary.
annul the institution of heir”. disinheritance shall also
This annulment is in toto, “annul the institution of
SPANISH CODE: Had two more substitutions:
unless in the will there are, heirs,” put only “insofar as
in addition, testamentary it may prejudice the person (1) PUPILAR: Art 775. Parents and other ascendants may
dispositions in the form of disinherited”, which last designate substitutes for their descendants below fourteen
devises or legacies phrase was omitted in the years of age of either sex, in case these should die before
case of pretirition. such age.
(2) EJEMPLAR: Art 776. An ascendant may designate a
substitute for a descendant over fourteen years of age,
JLT AGRO V BALANSAG who, conformably with the law, has been declared
DOCTRINE: IN THIS CASE, Don Julian did not execute a incompetent by reason of mental incapacity.
will since what he resorted to was a partition inter vivos of The substitution referred to in the preceding paragraph
his properties through the court approved Agreement. It is shall be rendered ineffective by a will executed by the
therefore premature, if not irrelevant, to speak of preterition incompetent during a lucid interval or after he has
prior to the death of Don Julian in the absence of a will recovered his mental faculties.
depriving a legal heir of his legitime. Also, they were not
totally omitted from inheritance since there were other
properties which the heirs from the 2nd marriage could SUBSTITUTION OF HEIRS
inherit. (1) Simple/common (vulgar) - Article 859
● Though the certificate of title serves as evidence of an (2) Brief/compendious (brevilocua/compendiosaj) - Article
indefeasible title to the property, the TCT issued to JLT 860
is marred by a grave irregularity. The Property (3) Reciprocal (reciprocal) - Article 861
Registration Decree requires that voluntary instruments
(4) Fideicommissary (fiddeicomisaria) - Article 863
conveying any property must be presented to the
Register of Deeds along with the certificate of title and
registered as well. In reality, there are only 2 kinds of substitution:
● Everything considered, Lot 63 was not validly conveyed (1) The simple or common (vulgar); and
to JLT through the Supplmenetal Deed so Milagros had (2) The fideicommissary (fideicomisaria)
every right to dispose of the property in favor of the Rs. These two are mutually exclusive, i.e. a substitution must be
one or the other, and cannot be both at the same time.
● The two others enumerated—the brief or compendious
13. Substitution of Heirs (brevilocua/compendiosa) and the reciprocal (reciproca)
are merely variations (Manresa: “modalidades”) of either
ARTICLE 857. Substitution is the appointment of an- other the vulgar or the fideicomisaria.
heir so that he may enter into the inheritance in de- fault of
the heir originally instituted.
ARTICLE 859. The testator may designate one or more
persons to substitute the heir or heirs instituted in case such
BALANE: The definition of substitution is incomplete because it heir or heirs should die before him, or should not wish, or
covers only simple substitution and excludes the should be incapacitated to accept the inheritance.
fideicommissary.
A simple substitution, without a statement of the cases to
● In the fideicommissary, the second heir does not succeed which it refers, shall comprise the three mentioned in the
in default of the first, but after the first. preceding paragraph, unless the testator has otherwise
● COMPLETE DEFINITION: Substitution is the appointment provided.
of another heir so that he may enter into the inheritance in
default of, or subsequent to, the heir originally instituted
CAUSES OF SIMPLE SUBSTITUTION:
(a) Predecease of the first heir
52
(b) Renunciation of the first heir
(c) Incapacity of the first heir
HOW TESTATOR MAY PROVIDE FOR SIMPLE
SUBSTITUTION WITH ALL THREE CAUSES
(a) By specifying all the three causes
(b) By merely providing for a simple substitution
RESTRICTED SIMPLE SUBSTITUTION
The testator may limit the operation of simple substitution by
specifying only one or two of the three causes.
QUAERENDCC
Q: May the testator provide for a substitution on grounds other
than those provided in this article?
● In case of renunciation by the first heir, must the substitute
have capacity at the time of the renunciation?
● Stated differently, supposing the substitute dies before the
first heir manifests his renunciation, may the successors of
the substitute acquire the testamentary disposition?
A: The substitute must have capacity at the time of the
renunciation by the first heir.
● A simple substitution is a form of conditional institution;
therefore, Article 1034, par. 3 can be applied to it.
● Art 1034 par 3. If the institution, devise or legacy should
be conditional, the time of the compliance with the
condition shall also be considered
ALTERNATE A: The substitute need not have capacity at the
time of the renunciation (as when he died previously)—can be
defended by an invocation of Articles 1042 and 533, par. 2
● Art 1042. The effects of the accep- tance or repudiation of
the inheritance shall always retroact to the moment of the
death of the decedent
● Art 553 par 2. One who validly renounces an inheri- tance
is deemed never to have possessed the same
Q: Will the substitute be disqualified if the cause of the first
heir’s predecease is that the substitute killed him?
ARTICLE 860. Two or more persons may be substituted for
one, and one person for two or more heirs.
DISTINCTION
(1) BRIEF - two or more substitutes for one original heir
(2) COMPENDIOUS - one substitute for two or more original
heirs
HOWEVER, the majority of commentators make no such
distinction and certainly the law uses the term interchangeably
IF ONE IS SUBSTITUTED FOR TWO OR MORE ORIGINAL
HEIRS
Effect of default of one but not all of the original heirs:
Substitution will not take place; the share left vacant will accrue
to the surviving co-heir or co-heirs. Substitution will take place
only if all the original heirs are disqualified.
EXAMPLE: X makes the following provision in his will: “I
institute A and B to 1/3 of my estate and nominate C as their
substitute.” If A predeceases B, the 1/3 portion, upon X’s
death goes to B; there is no substitution by C.
Substitution occurs only if both A and B are disqualified.
NOTE: The obvious exception to this is a case where the
testator provides for substitution in the event of the death (or
renunciation or incapacity) of any one of the original heirs.
ARTICLE 861. If heirs instituted in unequal shares should
be reciprocally substituted, the substitute shall acquire the
share of the heir who dies, renounces, or is incapacitated,
unless it clearly appears that the intention of the testator was
otherwise. If there are more than one substitute, they shall
have the same share in the substitution as in the institution.
RECIPROCAL SUBSTITUTION
Like the brief/compendious, it is not a distinct kind of
substituttion, but is rather a possible variation of the vulgar or
the fideicomisaria.
SECOND SENTENCE ILLUSTRATION:
A, B, and C are instituted, respectively, to 1/2, 1/3 and 1/6 of
the estate. Should A predecease the testator, B and C will
acquire A’s 1/2 portion in the proportion of 2:1 (their
testamentary shares being 1/3 and 1/6). Should B predecease,
A and C will get B’s 1/3 portion in the proportion of 3:1 (corres-
ponding to the testamentary shares of 1/2 and 1/6). Should C
predecease, A and B will share C’s 1/6 portion in the propor-
tion of 3:2, by the same logic.
ARTICLE 862. The substitute shall be subject to the same
charges and conditions imposed upon the instituted heir,
unless the testator has expressly provided the contrary, or
the charges or conditions are personally applicable only to
the heir instituted.
RATIONALE: The substitute merely takes the place of the
original heir.
ARTICLE 863. A fideicommissary substitution by virtue of
which the fiduciary or first heir instituted is entrusted with the
obligation to preserve and to transmit to a second heir the
whole or part of the inheritance, shall be valid and shall take
effect, provided such substitution does not go beyond one
degree from the heir originally instituted, and provided
further, that the fiduciary or first heir and the second heir are
living at the time of the death of the testator.
ELEMENTS OF THE JIDEICOMISARIA
1. A first heir (fiduciary/fiduciario) who takes the property
upon the testator’s death
2. A second heir (fideicommissary heir/jideicomisario) who
takes the property subsequently form the fiduciary
3. The second heir must be one degree from the first heir
53
4. The dual obligation imposed upon the fiduciary to preserve
the property and to transmit it after the lapse of the period
to the fideicommissary heir
5. Both heirs must be living and qualified to succeed at the
time of the testator’s death
A FIRST HEIR (FIDUCIARY/FIDUCIARIO) WHO TAKES THE
PROPERTY UPON THE TESTATOR’S DEATH
The fiduciary enters upon the inheritance, like every other heir,
upon the opening of the succession; le. when the testator dies.
A SECOND HEIR (FIDEICOMMISSARY
HEIR/JIDEICOMISARIO) WHO TAKES THE PROPERTY
SUBSEQUENTLY FROM THE FIDUCIARY
The fideicommissary heir does not receive the property until
the fiduciary’s right expires.
● Both heirs enter into the inheritance, one after the other,
each in his own turn.
● This distinguishes the fideicomisaria from the vulgar, in
which the substitute inherits only if the first heir fails to
inherit.
NOTE: Though the fideicommissary heir does not receive the
property upon the testator’s death, his right thereto vests at
that time and merely becomes subject to a period, and that
right passes to his own heirs should he die before the
fiduciary’s right expires
THE SECOND HEIR MUST BE ONE DEGREE FROM THE
FIRST HEIR
The requirement of one degree: There is no question that only
one transmission is allowed in the fideicomisaria, from the first
heir to the second heir.
● Q: But, on top of that, does the term “one degree” mean
that the second heir must be in the first degree of
relationship with the first heir, as the word “degree” is used
in Articles 963, 964 and 966? In other words, must the
second heir be either a child or a parent of the first heir?
● A: YES, ruled the SC in effect in PALACIOS V RAMIREZ
NOTE: It is not very clear to this writer how the phrase “one
degree from the heir originally instituted” clearly indicates that
the second heir must be related to and be one generation from
the first heir,” and thereby sweeps aside the theory (ascribed to
Scaevola et al. by the portion quoted in the Palacios decision)
that degree simply means ‘transfer.’
VDA DE ARANAS V ARANAS → implied validation of a usufruct
subject to a fideicommissary substitution in favor of persons beyond
one degree of relationship (namely, the original grantee’s
brothers)
Q: Can that implication be considered to have reversed
Palacios?
A: BALANE: Hardly
1. Reversals by implication should not be favored. The
implication in Aranas, if there was one, is just that. In any
event is too vague and too casual to be considered a
reversal of the express holding in PALACIOS that the term
“degree” in Art. 863 means degree of relationship and not
transfer.
2. Moreover, in the testator’s will in Aranas there was no
express obligation imposed upon the first heir to preserve
the property and transmit it to the second heir: a silence
that negates the existence of a fideicommissary
substitution. Note further that a usufruct is, as a general
rule, alienable (Art. 572).
● JUSTICE VITUG: The Palacios interpretation of
degree as degree of relationship “would
disenfranchise a juridical person from being either a
fiduciary or fideicommissary heir.”
THE DUAL OBLIGATION IMPOSED UPON THE FIDUCIARY
TO PRESERVE THE PROPERTY AND TO TRANSMIT IT
AFTER THE LAPSE OF THE PERIOD TO THE
FIDEICOMMISSARY HEIR
This requisite is the essence of the fideicomisaria.
● This makes the position of the fiduciary basically that of a
usufructuary, with the right to use and enjoy the property
but without the jus disponendl
● EFFECT: If there is no absolute obligation to preserve and
transmit to the second heir, there is no fideicommissary
● The institution is not necessarily void; it may be valid as
some other disposition, but it is not a fideicomisaria
● In PCIB, SC held such an institution to be a simultaneous
institution—on the one hand, of Hodges subject to a
resolutory condition, on the other, of his brothers-and
sisters-in-law subject to a suspensive condition; but not a
fideicomisaria “because no obligation is imposed thereby
upon Hodges to preserve the estate or any part thereof for
anyone else.”
SUMMARY OF MANRESA’S COMMENTS RE: TENURE OF
FIDUCIARY
Primary Rule: The period indicated by the testator
Secondary rule: If the testator did not indicate a period, then
the fiduciary’s lifetime
BOTH HEIRS MUST BE LIVING AND QUALIFIED TO
SUCCEED AT THE TIME OF THE TESTATOR’S DEATH
Living → This requisite is defined in Articles 40-41
Qualified → Articles 1024-1034 governs this
NOTE: This two-fold requirement is to be met only upon the
testator’s death, and this applies not only to the fiduciary but to
the second heir as well. Thus, the second heir need not survive
the first heir; if the second heir dies before the first heir, the
second heir’s own heirs merely take his place
ARTICLE 864. A fideicommissary substitution can never
burden the legitime.
The legitime passes by strict operation of law, therefore the
testator has no power over it.
ARTICLE 865. Every fideicommissary substitution must be
54
 expressly made in order that it may be valid.
The fiduciary shall be obliged to deliver the inheritance to
the second heir, without other deductions than those which
arise from legitimate expenses, credits and improvements,
save in the case where the testator has pro- vided
otherwise.
MANNER OF IMPOSING A FIDEICOMISARIA: EXPRESS
TWO WAYS OF MAKING AN EXPRESS IMPOSITION
(a) By the use of the term fideicommissary, or
(b) By imposing upon the first heir the absolute obligation to
preserve and to transmit to the second heir
ALLOWABLE DEDUCTIONS
GR: The fiduciary should deliver the property intact and
undiminished to the fideicommissary heir upon the arrival of
the period.
The only deductions allowed, in the absence of a contrary
provision in the will are:
a) Legitimate expenses,
b) Credits,
c) Improvements.
Coverage of legitimate expenses and improvements:
necessary and useful expenses, but not ornamental expenses.
DAMAGE TO, OR DETERIORATION OF, PROPERTY
● If caused by a fortuitous event or ordinary wear and tear—
fiduciary not liable.
● If caused by fiduciary’s fault or negligence— fiduciary
liable.
ARTICLE 866. The second heir shall acquire a right to the
succession from the time of the testator’s death, even
though he should die before the fiduciary. The right of the
second heir shall pass to his heirs.
The second heir’s right vests upon the testator’s death,
conformably to Article 777 and also to Article 878 (since, as far
as the second heir is concerned, the institution of him is one
subject to a suspensive term).
● Thus, the second heir does not have to survive the first
heir in order for the substitution to be effective. The
second heir’s own heirs simply take his place; i.e.,
succeed to the vested right already possessed by the
second heir.
ARTICLE 867. The following shall not take effect:
(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 Article 863;
(3) Those which impose upon the heir the charge of paying
to various persons successively, beyond the limit
prescribed in Article 863, a certain income or pension;
(4) Those which leave to a person the whole or part of the
hereditary property in order that he may apply or invest
the same according to secret instructions
communicated to him by the testator.
PAR 1
NOTE: The lack of this element does not, by that fact alone,
nullify the institution.
● It only means that the institution is not a fideicomisaria; it
could, however, be something else, as was the case in
PCIB V ESCOLIN
PAR 2
If there is a fideicomisaria, the limit is the first heir’s lifetime. If
there is no fideicomisaria, the limit is 20 years
PAR 3
Conformably to the limits set in Article 863, there can only be
two beneficiaries of the pension, one after the other, and the
second must be one degree from the first.
● There is no prohibition, however, on simultaneous
beneficiaries.
PAR 4
The ostensible heir here is in reality only a dummy, because, in
reality, the person intended to be benefited is the one to whom
the secret instructions refer.
● The obvious purpose of such a surreptitious disposition is
to circumvent some prohibition or disqualification.
BALANE: This paragraph makes the entire provision void. The
practical problem here, however, is the difficulty of establishing
the fact of circumvention.
● Supposing the ostensible heir conceals or destroys the
secret instructions (something fairly easy to do) and claims
as heir under the testamentary provision as worded, what
then?
ARTICLE 868. The nullity of the fideicommissary
substitution does not prejudice the validity of the institution
of the heirs first designated; the fideicommissary clause
shall simply be considered as not written.
If the fideicommissary substitution is void or ineffective, the
institution of the first heir simply becomes pure and unqualified.
NULLITY OR INFECTIVITY OF THE INSTITUTION OF THE
FIRST HEIR (FIDUCIARY)
This article does not provide for a case where it is the
institution of the first heir that is void or ineffective. What is the
rule in such a case?
● JUSTICE VITUG: When the fiduciary predeceases or is
unable to succeed, the fideicommissary heir takes the
inheritance upon the death of the decedent.
55
BALANE: The nullity or inefficacy of the institution of the
fiduciary should not nullify the institution of the fideicommissary
heir, but, on the contrary, should make the right of the latter
abso- lute and effective upon the testator’s death, as if no
fiduciary had been instituted
MANRESA: The will of the testator in institutions of this nature
is to transmit to the fideicommissary heir the property covered
by the fideicommissary substitution, independently of the will of
the fiduciary.
ARTICLE 869. A provision whereby the testator leaves to a
person the whole or part of the inheritance, and to another
the usufruct, shall be valid. If he gives the usufruct to various
persons, not simultaneously, but successively, the
provisions of Article 863 shall apply.
If the testator institutes successive usufructuaries, there can
only be two usufructuaries, one after the other, and, as to the
two of them, all the requisites of Article 863 (fideicomisaria)
must be present.
ARTICLE 870. The dispositions of the testator declar- ing all
or part of the estate inalienable for more than twenty years
are void.
If the testator imposes a longer period than 20 years, the
prohibition is valid only for 20 years.
● If there is a fideicommissary substitution, this time
limitation will not apply. Rather, Article 863 will apply,
which allows, as a period, the lifetime of the first heir.
a. Simple or common substitution
b. Brief or compendious substitution
c. Reciprocal substitution
d. Fideicommissary substitution
PALACIOS V RAMIREZ
DOCTRINE:
● Re: simple/vulgar substitution: The allegation that the
simple substitution in its vulgar aspect as void because
Wanda survived the testator or stated differently
because she did not predecease the testator is
unmeritorious. Dying before the testator is not the only
case for vulgar substitution for it also includes refusal or
incapacity to accept the inheritance as provided in Art.
859 of the Civil Code, supra. Hence, the vulgar
substitution is valid.
● Re: fideicommisary: The substitutes are not related to
Wanda, the heir originally instituted. Art. 863 of the Civil
Code validates a fideicommissary substitution "provided
such substitution does not go beyond one degree from
the heir originally instituted." As the widow and Wanda
the mistress are not even related, the fideicommissary
substitution is void.
● “Degree” means generation, and it follows that the
fideicommissary can only be either a child or a parent of
the first heir. These are the only relatives who are one
PCI BANK V ESCOLIN
DOCTRINE: Legally speaking, the will provides for neither a
simple nor fideicomissary substitution. There is no vulgar
substitution therein because there is no provision for cither
(1) predecease of the testator by the designated heir or (2)
refusal or (3) incapacity of the latter to accept the
inheritance, as required by Article 859. Neither is there a
fideicommissary substitution therein because no obligation is
imposed thereby upon Hodges to preserve the estate or any
part thereof for anyone else.
● While it was true that Linnie bequeathed her WHOLE
ESTATE to Charles, and gave him full powers of
dominion over the same during his lifetime – at the
same time, she imposed that whatever should remain
thereof upon Charles’s death should go to her siblings.
The brothers and sisters of Mrs. Hodges are not
substitutes for Hodges because, under her will, they are
not to inherit what Hodges cannot, would not or may not
inherit, but what he would not dispose of from his
inheritance; Rather, therefore, they are also heirs
instituted simultaneously with Hodges, subject,
however, to certain conditions, partially resolutory
insofar as Hodges was concerned and correspondingly
suspensive with reference to his brothers and sisters-in-
law.
PEREZ V GARCHITORENA
DOCTRINE: There was fideicommissary substitution.
(1) First heir – Carmen Perez; called to enjoy the property,
but not to dispose
(2) Obligation – Clause 10 provides that if Carmen dies, the
whole estate shall pass unimpaired to the children,
showing that the testatrix had in mind a fideicommissary
substitution
(3) Second heir – Children (within 1 degree)
(4) That that the fideicommissary be entitled to the estate
from the time the testator dies – Not really a requisite,
but a necessary consequence, because the heir does
not inherit from the heir first instituted, but from the
testator.
Requisites of a fideicommissary substitution:
(1) A first heir called primarily to enjoyment of the estate
(2) An obligation clearly imposed upon him to preserve and
transmit to a 3rd person the whole or part of the estate
(3) A second heir, who is related by 1 degree to the first
heir
(4) The fideicommisarius be entitled to the estate from the
time the testator dies
14. Conditional Testamentary
Dispositions and Those with a
Term
CONDITIONS:
ARTICLE 871. The institution of an heir may be made
56
 conditionally, or for a certain purpose or cause.
THREE KINDS OF TESTAMENTARY DISPOSITIONS
1. Conditional dispositions
2. Dispositions with a term
3. Dispositions with a mode (modal dispositions)
INACCURACIES IN SECTION HEADING AND IN THE
WORDING OF THIS ARTICLE
A. Section Heading: Does not include modal dispositions
B. Wording: Does not include dispositions with a term
DEFINITIONS
1. CONDITION: Defined obliquely in Art 1179 par 1
● Article 1179. Every obligation whose performance
does not depend upon a future or uncertain event, or
upon a past event unknown to the parties, is
demandable at once
2. TERM: Defined obliquely in Article 1193 par 1 and 3
● Article 1193. Obligations for whose fulfillment a day
certain has been fixed, shall be demandable only
when that day comes.
A day certain is understood to be that which must
necessarily come, although it may not be known when
3. MODE: Defined obliquely in Article 882
● Article 882. The statement of the object of the
institution, or the application of the property left by the
testator, or the charge imposed by him, shall not be
considered as a condition unless it appears that such
was his intention.
That which has been left in this manner may be
claimed at once provided that the instituted heir or his
heirs give security for compliance with the wishes of
the testator and for the return of anything he or they
may receive, together with its fruits and interests, if
her or they should disregard this obligation
PROPER ORDER OF PROVISIONS IN THIS SECTION
1. General provisions: Article 871 and 872
2. Conditions: Article 873, 874, 875, 876, 877, 883 par 2,
879, 880, 881, 884
3. Terms: Article 878 and 885
4. Modes: Articles 882 and 883 par 1
ARTICLE 872. The testator cannot impose any charge,
condition or substitution whatsoever upon the legitimes
prescribed in this Code. Should he do so, the same shall be
considered as not imposed.
The legitime passes by strict operation of law, independently of
the testator’s will. This article is a logical consequence of that
principle.
● The wording of the disposition will be crucial; it should not
ARTICLE 873. Impossible conditions and those contrary to
law or good customs shall be considered as not imposed
and shall in no manner prejudice the heir, even if the testator
should otherwise provide.
The impossible or illegal condition is simply considered not
written. The testamentary disposition itself is not annulled; on
the contrary, it becomes pure.
The rule in donations [le. simple and remuneratory
donations) is the same:
“Art. 727. Illegal or impossible conditions in simple and
remuneratory donations shall be considered as not imposed.”
On the other hand, the rule in obligations is dif-ferent
“Art. 1183. Impossible conditions, those con- trary to good
customs or public policy and those pro- hibited by law shall
annul the obligation which de- pends upon them. If the
obligation is divisible, that part thereof which is not affected by
the impossible or unlawful condition shall be valid.”
Reason for the difference
Testamentary dispositions and donations share a common
element: they are both gratuitous and spring from the grantor’s
liberality.
● The imposition of a condition does not displace liberality
as the basis of the grant.
● On the other hand, in obligations which are onerous
(which is what Article 1183 refers to), the condition that is
imposed becomes an integral part of the causa of the
obligation.
● The elimination of that condition for being impossible or
illegal results in a failure of cause.
ARTICLE 874. An absolute condition not to contract a first
or subsequent marriage shall be considered as not written
unless such condition has been imposed on the widow or
widower by the deceased spouse, or by the latter’s
ascendants or descendants.
Nevertheless, the right of usufruct, or an allowance or some
personal prestation may be devised or bequeathed to any
person for the time during which he or she should remain
unmarried or in widowhood.
CONDITIONS PROHIBITING MARRIAGE
A. If a first marriage is prohibited—Condition always
considered not imposed.
B. If a subsequent marriage is prohibited:
1. If imposed by the deceased spouse or by his/her
ascendants or descendants—valid
2. If imposed by anyone else-considered not written
The second paragraph of this article may provide the testator,
if he so desires, a means of terminating the testamentary
benefaction should the heir contract marriage (even a first
one).
be so worded as to constitute a prohibition forbidden in the
first paragraph. An example is not difficult to phrase.
57

NECESSITY OF CAUTION MUCIANA
Since this condition (assuming it is validly imposed) is negative
in nature, is a caution Muciana required, as in Article 879?
CONDITION TO CONTRACT MARRIAGE
This article does not prohibit the imposition of a condition to
marry (either with reference to a particular person or not).
Quod non vetitum, licet
Neither does this article declare void a relative prohibition.
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.
POTESTATIVE CONDITION
One that depends solely on the will of the heir/devisee/legatee
CASUAL CONDITION
One that depends on the will of a third person or on chance

Q: X imposed the condition in his will that A can marry anyone
except B. Is this condition valid?
A: VALID. The condition is void if it is an absolute prohibition. If
it is relative, like in the example, it is valid.
ARTICLE 875. Any disposition made upon the condition that
the heir shall make some provision in his will in favor of the
testator or of any other person shall be void.
SCRIPTURA CAPTATORIA
“Captatoriae scripturae neque in hereditatibus, neque in legatis
valent." (Legacy-hunting dispositions, whether to heirs or
legatees, are void.)
REASONS FOR THE PROHIBITION
1. The captatoria converts testamentary grants into
contractual transactions;
2. It deprives the heir of testamentary freedom;
3. It gives the testator the power to dispose mortis causa not
only of his property but also of his heir’s
MIXED CONDITION
One that depends partly on the will of the heir/devisee/legatee
and partly either on the will of a third person or chance.
RULES ON POTESTATIVE, CASUAL, MIXED CONDITIONS
A. POTESTATIVE (ART 876)
POSITIVE
● GR: Must be fulfilled as soon as the heir learns of the
testator’s death
● EX: If
a. the condition was already complied with at the
time the heir learns of the testator’s death, and
b. the condition is of such a nature that it cannot be
fulfilled again.
● CONSTRUCTIVE COMPLIANCE (ART 883 PAR 2):
Condition deemed fulfilled
NEGATIVE (ART 879)
● Heir must give security to guarantee (caucion
muciana*) the return of the value of property, fruits,
and interests, in case of contravention.

WHAT IS DECLARED VOID CAUCION MUCIANA (SECURITY GIVEN)

It is not merely the condition that is declared void but the 1. Art 879 - negative potestative condition
testamentary disposition itself which contains the condition. 2. Art 885 par 2 - suspensive term
3. Art 882 - modal institution

ARTICLE 876. Any purely potestative condition im- posed B. CASUAL OR MIXED (ART 877)
upon an heir must be fulfilled by him as soon as he learns of ● GR: may be fulfilled at any time (before or after
the testator’s death.
This rule shall not apply when the condition, already testator’s death), unless testator provides otherwise.
complied with, cannot be fulfilled again. ● QUALIFICATIONS: If already fulfilled at the time of
execution of will:
ARTICLE 877. If the condition is casual or mixed, it shall be a. If testator unaware of fact of fulfillment— deemed
sufficient if it happen or be fulfilled at any time before or after fulfilled
the death of the testator, unless he has pro- vided otherwise. b. if testator aware thereof—
Should it have existed or should it have been fulfilled at the
i. if can no longer be fulfilled again—deemed
time the will was executed and the testator was unaware
thereof, it shall be deemed as complied with. fulfilled
ii. if it can be fulfilled again—must be fulfilled
If he had knowledge thereof, the condition shall be again.
considered fulfilled only when it is of such a nature that it ● CONSTRUCTIVE COMPLIANCE: (ART 883 PAR 2)
can no longer exist or be complied with again. a) if casual—not applicable
b) if mixed—
ARTICLE 883, par. 2. If the person interested in the
i) if dependent partly on chance—not
condition should prevent its fulfillment, without the fault of
the heir, the condition shall be deemed to have been applicable
complied with. ii) if dependent partly on the will of a third party:
1) if third party is an interested party—
ARTICLE 879. If the potestative condition imposed upon the applicable

58
 2) If third party is not an interested party—
not applicable.
ARTICLE 880. If the heir be instituted under a suspensive
condition or term, the estate shall be placed under
administration until the condition is fulfilled, or until it
becomes certain that it cannot be fulfilled, or until the arrival
of the term.
The same shall be done if the heir does not give the security
required in the preceding article.
ARTICLE 881. The appointment of the administrator of the
estate mentioned in the preceding article, as well as the
manner of the administration and the rights and obliga- tions
of the administrator shall be governed by the Rules of Court.
Between the time of the testator’s death and the time of the
fulfillment of the suspensive condition or of the certainty of its
non-occurrence—property is to be placed under
administration.
A. if condition happens—the property will be turned over to
the instituted heir.
B. if it becomes certain that condition will not happen—
property will be turned over to a secondary heir (if there is
one) or to the intestate heirs, as the case may be.
NOT APPLICABLE TO INSTITUTIONS WITH A TERM
BALANE: Despite the wording of this article, it should not be
applied to institutions with a term, which are governed by Art
885, par 2
● Otherwise, there will be an irreconcilable conflict with that
article, which mandates that before the arrival of the term,
the property should be given to the legal heirs.
● The Spanish Code did not contain this contradiction
because Article 801 of that Code (from which the present
article is derived) referred only to institutions “bajo
condition suspensiva”
● There is now an inconsistency where none existed before,
thanks to the “unknown genius” referred to by J.B.L.
Reyes in his Comments
The property shall be in the executor’s or administrator’s
custody until the heir furnishes the caution Muciana.
PROCEDURAL RULES GOVERNING APPOINTMENT OF
ADMINISTRATOR (RULE 77-90 ROC)
ARTICLE 884. Conditions imposed by the testator upon the
heirs shall be governed by the rules established for
conditional obligations in all matters not provided for by this
Section.
Suppletorily governing conditional institutions are Articles
1179-1192, on conditional obligations.
TERMS:
ARTICLE 878. A disposition with a suspensive term does
not prevent the instituted heir from acquiring his rights and
transmitting them to his heirs even before the arrival of the
term.
WHEN HEIR’S RIGHT VESTS
In dispositions with a term, the heir’s right vests upon the
testator’s death, conformably to Article 777.
● Therefore, should the heir die before the arrival of the
(suspensive) term, he merely transmits his right to his own
heirs who can demand the property when the term arrives.
● The rule in this article is similar to Article 866, in
fideicommissary substitutions.
RULE IN CONDITIONAL INSTITUTIONS
Q: In conditional institutions, what is the rule if the instituted
heir dies before the happening of the condition?
A: This section is silent on the matter. The Spanish Code was
less reticent: “Art 759. The heir or devisee/legatee who dies
before the happening of the condition, even if he survives the
testator, transmits no right to his heirs.”
● The old article was not reproduced in the present Code.
The best that can be done to resolve the question is to
refer to Article 1034, par. 3: “Art 1034 par 3. If the
institution, devise, or legacy should be conditional, the
time of the compliance with the con- dition shall also be
considered”
○ In conditional institutions, the heir should be living and
qualified to succeed both at the time of the testator’s
death and at the time of the happening of the
condition.
ARTICLE 885. The designation of the day or time when the
effects of the institution of an heir shall commence or cease
shall be valid.
In both cases, the legal heir shall be considered as called to
the succession until the arrival of the period or its expiration.
But in the first case he shall not enter into possession of the
property until after having given sufficient security, with the
intervention of the instituted heir.
NOTE: The preposition “from” should be inserted between “or”
and “its” in the second paragraph.
IF TERM IS SUSPENSIVE
Before the arrival of the term, the property should be delivered
to the intestate heirs. A caucion Muciana has to be posted by
them.
IF TERM IS RESOLUTORY
Before the arrival of the term, the property should be delivered
to the instituted heir. No caucion Muciana is required.
MODES:
ARTICLE 882. The statement of the object of the institution
or the application of the property left by the testator, or the
charge imposed on him, shall not be considered as a
condition unless it appears that such was his intention.
59
 That which has been left in this manner may be claimed at Testator provide for the should Dr. Jorge Rabadilla
once provided that the instituted heir or his heirs give designation of another default due to predecease,
security for compliance with the wishes of the testator and heir to whom the incapacity or renunciation, the
for the return of anything he or they may receive, together property shall pass in testatrix's near descendants
with its fruits and interests, if he or they should disregard this case the original heir would substitute him. What the
obligation. should die before Codicil provides is that, should
him/her, renounce the Dr. Jorge Rabadilla or his heirs
inheritance or be not fulfill the conditions
MODE: an obligation imposed upon the heir, without incapacitated imposed in the Codicil, the
suspending—as a condition does—the effectivity of the property referred to shall be
seized and turned over to the
institution.
testatrix's near descendants
● A mode must be clearly imposed as an obligation in order
to be considered as one. Mere preferences or wishes FIDEICOMMISSARY A very important element of a
expressed by the testator are not modes. SUBSTITUTION fideicommissary substitution is
● A mode functions similarly to a resolutory condi- tion. In Testator leave his/her lacking; the obligation clearly
fact, modes could very well have been absorbed in the property to one person imposing upon the first heir the
concept of resolutory conditions. with the express charge preservation of the property
that it be transmitted and its transmission to the
subsequently to second heir. “Without this
ARTICLE 883. When without the fault of the heir, an another or other obligation to preserve clearly
institution referred to in the preceding article can- not take imposed by the testator in his
effect in the exact manner stated by the testator, it shall be Under Article 863, the will, there is no
complied with in a manner most analogous to and in second heir or the fideicommissary substitution”
conformity with his wishes. fideicommissary to
whom the property is Also, the near descendants’
If the person interested in the condition should prevent its transmitted must not be right to inherit from the testatrix
fulfillment, without the fault of the heir, the condition shall be beyond one degree is not definite. The property will
deemed to have been complied with. from the first heir or the only pass to them should Dr.
fiduciary. A Jorge Rabadilla or his heirs not
fideicommissary fulfill the obligation to deliver
The intention of the testator should always be the guiding norm substitution is therefore, part of the usufruct to private
in determining the sufficiency of the analogous performance. void if the first heir is respondent. The near
not related by first descendants are not at all
degree to the second related to the instituted heir.
RABADILLA V CA heir
DOCTRINE: The manner of institution of Dr. Jorge Rabadilla
is modal in nature because it imposes a charge upon the
instituted heir without affecting the efficacy of such
institution. It can be gleaned from the Codicil that the 15. Legitime
testatrix intended that subject property be inherited by Dr.
Rabadilla. It is also clearly worded that the testatrix imposed SYSTEM OF LEGITIMES
an obligation on the instituted heir and his successors-in-
BALANE: Our successional system, closely patterned after that
interest to deliver piculs of sugar to Maria Marlena during the
lifetime of the latter. Should the obligation be not complied of the Spanish Code, reserves a portion of the net estate of the
with, the property shall be turned over to the testatrix's near decedent in favor of certain heirs, or groups of heirs, or
descendants. combination of heirs.
● In a modal institution, the testator states (1) the object ● The portion that is so reserved is called the legitime (a
of the institution, (2) the purpose or application of the transliteration from the Spanish legitima). [The reserve
property left by the testator, or (3) the charge imposed hereditaire of the French Code and the PJlichtteil of the
by the testator upon the heir. A "mode" imposes an
German]
obligation upon the heir or legatee but it does not affect
the efficacy of his rights to the succession. On the other
hand, in a conditional testamentary disposition, the The portion that is left available for testamentary disposition
condition must happen or be fulfilled in order for the heir after the legitimes have been covered is the free or disposable
to be entitled to succeed the testator. The condition portion.
suspends but does not obligate; and the mode obligates
but does not suspend. To some extent, it is similar to a The heirs for whom the law reserves a portion are called
resolutory condition.
compulsory heirs.

TYPES OF NATURE OF LEGITIMES

IN THIS CASE
SUBSTITUTION
The legitimes are set aside by mandate of the law. Thus, the
testator is required to set aside or reserve them.
SIMPLE the provisions of subject
SUBSTITUTION Codicil do not provide that

60
● Otherwise stated, the testator is prohibited from disposing
by gratuitous title (either inter vivos or mortis causa) of
these legitimes.
● Dispositions by onerous title are not prohibited because, in
theory, nothing is lost from the estate in an onerous
disposition, since there is merely an exchange of values.
● MANONGSONG V ESTIMO: When the disposition is for
valuable consideration, there is no diminution of the estate
but merely a substitution of values, that is, the property
sold is replaced by the equivalent monetary
consideration.”
Because the testator is compelled to set aside the legitimes,
the heirs in whose favor the legitimes are set aside are called
compulsory heirs.
● The compulsion is not on the part of the heirs (who are
free to accept or reject the inheritance, but on the part of
the testator.
MAJOR CHANGES IN THE LAW OF LEGITIMES
1. The abolition of the mejora or betterment
● ART 808 SC. The legitime of the legitimate children
and descendants consists of two-thirds of the
hereditary estates of the father and the mother.
However, the testator may dispose of one half of
these two-thirds as betterment in favor of their
legitimate children and descendants.
The other third is of free disposal.
● ART 823 SC. The father or mother may dispose of
one-half of the two-thirds intended as legitime in favor
of one, some, or all of his or her legitimate children or
descendants.
This portion is called the betterment.
2. The surviving spouse’s share is upgraded from a
usufructuary interest to full ownership, albeit of a very
variable share
3. The grant of legitimacy rights to children classified
(under the New Civil Code) as illegitimate other than
natural (commonly called spurious) and a further
change, under the Family Code, abolishing the
distinction between natural and spurious children and
giving all illegitimate children the same legitimacy
shares
ARTICLE 886. 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.
This article gives the statutory definition of legitime
ARTICLE 887. The following are compulsory heirs:
(1) Legitimate children and descendants, with respect to
their legitimate parents and ascendants;
(2) In default of the foregoing, legitimate parents and
ascendants, with respect to their legitimate children and
descendants;
(3) The widow or widower;
(4) Acknowledged natural children, and natural children by
legal fiction;
(5) Other illegitimate children referred to in Article 287.
Compulsory heirs mentioned in Nos. 3, 4 and 5 are not
excluded by those in Nos. 1 and 2; neither do they exclude
one another.
In all cases of illegitimate children, their filiation must be duly
proved.
The father or mother of illegitimate children of the three
classes mentioned, shall inherit from them in the manner
and to the extent established by this Code.
COMPULSORY HEIRS
Enumeration is exclusive and may be classified as follows:
1. Primary compulsory heirs
● Legitimate children and/or descendants
2. Secondary compulsory heirs
● Legitimate parents and/or ascendants
3. Concurring compulsory heirs
● Not excluded by the primary compulsory heirs
● Surviving spouse (widow or widower) and Illegitimate
children
COMPULSORY HEIRS:
1. Legitimate children and descendants
2. Legitimate parents and ascendants
3. Widow or widower
4. Illegitimate children
5. Parents of illegitimate children
ARTICLE 888. The legitime of legitimate children and
descendants consists of one-half of the hereditary estate of
the father and of the mother.
The latter may freely dispose of the remaining half, subject
to the rights of illegitimate children and of the surviving
spouse as hereinafter provided.
EQUAL SHARING
The legitime children share the one-half in equal parts,
regardless of age, sex, or marriage of origin.
BALANE: The provision should have been explicit about this,
rather than leaving it to implication and assumption. The
counterpart provision in intestacy is quite explicit on this.
Adopted children succeed the adopter in the same manner
as legitimate children by blood (Secs. 17 & 18, R.A. 8552)
DESCENDANTS OTHER THAN CHILDREN
GR: The nearer exclude the more remote
● EXAMPLE: Grandchildren cannot inherit, since the
children will bar them, unless all the children renounce, in
which case the grandchildren become the nearest in
degree.
61
● The rule goes on down the line; great-grandchildren
cannot inherit unless all the children and grand-children
renounce.
QUALIFICATION TO THE RULE: Representation when proper
● There is no limit to the number of degrees in the
descending line that may be called to succeed, whether in
their own right or by representation.
ARTICLE 889. The legitime of legitimate parents or
ascendants consists of one-half of the hereditary estates of
their children and descendants.
The children or descendants may freely dispose of the other
half, subject to the rights of illegitimate children and of the
surviving spouse as hereinafter provided.
ARTICLE 890. The legitime reserved for the legitimate
parents shall be divided between them equally; if one of the
parents should have died, the whole shall pass to the
survivor.
If the testator leaves neither father nor mother, but is
survived by ascendants of equal degree of the paternal and
maternal lines, the legitime shall be divided equally be-
tween both lines. If the ascendants should be of different
degrees, it shall pertain entirely to the ones nearest in de-
gree of either line.
LEGITIMATE PARENTS/ASCENDANTS AS SECONDARY
COMPULSORY HEIRS
The legitimate ascending line succeeds only in default of the
legitimate descending line.
3 BASIC RULES GOVERNING SUCCESSION IN THE
ASCENDING LINE
1. The nearer exclude the more remote.
● This rule in the ascending line admits no qualification,
since there is no representation in the ascending line
2. Division by line.
● This rule will apply if there are more than one
ascendant in the nearest degree.
● The legitime shall then be divided in equal parts
between the paternal line and the maternal line.
3. Equal division within the line
● After the portion corresponding to the line has been
assigned, there will be equal apportionment between
or among the re- cipients within the line, should there
be more than one.
The operation of the second and third rules may cause
inequality of shares among ascendants of identical degrees
EXAMPLE: Should X (the decedent) die without legitimate
descendants and be survived by three grandparents as his
nearest ascendants—A and B (paternal grandparents) and C
(maternal grandmother-the legitime of 1/2 will be divided
equally between the paternal and the maternal line (Rule B,
supra).
● Since there are two heirs in the paternal line, the paternal
line portion will be shared equally by the two; and since
there is only one in the maternal line, she gets the entire
allotment for the maternal line.
● RESULT: A and B get 1/8 each of the estate; C gets 1/4 of
the estate.
ARTICLE 891. 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 the said property came.
ORIGIN AND BRIEF HISTORY
The reserva troncal in its present form made its first
appearance only in the Spanish Civil Code of 1889, though
prototypes existed in earlier general and foral law of Spain.
The reserva troncal was found in Article 811 of the Spanish
Code
The Spanish Code contained two reservas:
1) the viudal (also called the ordinaria because it was the
older reserva) and
2) the troncal (also called the extraordinaria because it was
a more re- cent addition).
More, there was a reversion (the legal) in the same Code.
Add to that the reversion in adoption (the adoptiva) found in
Sec. 1 of Act 3977 and incorporated in the Rules of Court of
1940, and we had in our law just prior to the present Civil
Code, two reservas and two reversiones:
1. reserva viudal (Article 968, Spanish Code)
2. reserva troncal (Article 811, Spanish Code)
3. reversion legal (Article 812, Spanish Code)
4. reversion adoptiva (Act 3977 and incorporated in Rule
100, Section 5, Rules of Court of 1940).
The draft Code submitted to Congress in 1948 had abolished
all these four but the legislature decided to retain the reserva
troncal and inserted what is now the present article.
NOTE: The reversion adoptiva was later revived by the Child
and Youth Welfare Code [PD 603] in 1974 and again abolished
by the Family Code of 1988.
OTHER TERMS USED TO REFER TO THE RESERVA
TRONCAL
lineal, familiar, extraordmaria, semi-troncal.
SANCHEZ ROMAN: pseudo-troncal
PURPOSE
The reserva troncal is a special rule designed primarily to
assure the return of the reservable property to the third degree
relatives belonging to the line from which the property originally
came, and to avoid its being dissipated . . . by the relatives of
the inheriting ascendant (reservista).
● The purpose of the reserva troncal to be to avoid “el
peligro de que bienes posefdos secularmente por una
62
 familia pasen bruscamente a titulo gratuito a manos
extranas por el azar de los enlaces y muertes prematuras.
(to avoid the danger that property existing for many
years in a family’s patrimony might pass gratuitously
to outsiders through the accident of marriage and
untimely death)
● The same purpose is worded a little differently: “impedir
que, por un azar de la vida, personas extranas a una
familia puedan adquirir bienes que sin aquel hubieran
quedado en ella (to prevent outsiders from acquiring,
through an accident of life, property which, but for
such accident, would have remained in the family)
REQUISITES (CHUA V CFI)
1. That the property was acquired by a descendant from an
ascendant or from a brother or sister by gratuitous title;
2. That said descendant died without an issue;
3. That the property is inherited by another ascendant by
operation of law; and
4. That there are relatives within the third degree belonging
to the line from which said property came
BALANE COMMENTS:
RE: 1: The term descendant should read person, because if
the grantor is a brother or sister, the one acquiring obviously is
not a descendant
● Acquisition is by gratuitous title (titulo lucrativo) when “the
recipient does not give anything in return
● It encompasses transmissions by donation or by
succession (of whatever kind).
RE: 2: It should read: "that said person died without legitimate
issue, because only legitimate descendants will prevent the
property from being inherited by the legitimate ascend- ing line
by operation of law.
RE: 3: Transmission by operation of law is limited to
succession, either to the legitime or by intestacy, not
testamentary succession.
RE: 4: These relatives, called the reservatarios or reservees
are discussed under the heading: Parties
PROCESS
The property in reserva troncal undergoes a process of three
transmissions or transfers:
1. FIRST TRANSFER - by gratuitous title, from a person to
his descendant, brother or sister.
2. SECOND TRANSFER - by operation of law, from the
transferee in the first transfer to another ascendant. It is
this second transfer that creates the reserva
3. THIRD TRANSFER - from the transferee in the second
transfer to the relatives - reservatarios.
PARTIES
There are four parties:
A. ORIGIN OR MEDIATE SOURCE - the transferor in the
first transfer;
B. PREPOSITUS - the first transferee, who is a descendant
or brother/sister of the Origin;
C. RESERVISTA (RESERVOR) - the ascendant obliged to
reserve; and
D. RESERVATARIOS (RESERVEES) - the relatives
benefited
RULES:
1. No inquiry is to be made beyond the Origin/Mediate
Source. It does not matter who the owner of the property
was before it was acquired by the Origin.
2. All the relationships among the parties must be legitimate.
“. . . the provisions of Art. [891] of the Civil Code apply
only to legitimate relatives.”
ORIGIN/MEDIATE SOURCE
He is either an ascendant or a brother or sister of the
Prepositus.
1. ASCENDANT - may be of any degree of ascent
2. BROTHER/SISTER - there is a divergence of opinion on
this term:
a. OPINION 1 - If the Origin is a brother/sister, the
relationship must be of the half-blood, because
“otherwise the property would not change lines in
passing to a common ascendant of the prepositus
and the brother
● There should, in other words, be no reserva
(according to this theory) if the fraternal
relationship is of the full-blood for then it would
not be possible to identify the line of origin—
whether paternal or maternal.
b. OPINION 2 - It does not matter whether the fraternal
relationship is of the full- or the half-blood. In either
case a reserva may arise. Since the law makes no
distinction, we should not make one.
PREPOSITUS
He is either a descendant or a brother/sister of the Origin (Vide
discussion supra), who receives the property from the Origin
by gratuitous title.
● Thus, in the scheme of the reserva troncal, he is the first
transferee of the property.
● While the property is still with the Prepositus there is as
yet no reserva. The reserva arises only upon the second
transfer.
● Consequently, while the property is owned by the
prepositus, he has all the rights of ownership over it and
may exercise such rights in order to prevent a reserva
from arising.
He can do this in any of these ways:
a. By substituting or alienating the property;
b. By bequeathing or devising it either to the potential
reservista or to third persons (subject to the constraints of
the legitime); or
c. By partitioning in such a way as to assign the property to
parties other than the potential reservista (again subject to
the constraints of the legitime)
63
SANCHEZ ROMAN: calls the Prepositus the arbiter of the
reserva troncal: “el arbitro de que aquellos bienes sean o no
reservables.”
RESERVISTA
He is an ascendant of the Prepositus, of whatever degree.
● The Reservista must be an ascendant other than the
Origin/Mediate Source (if the latter is also an ascendant).
● The law is clear on this: it refers to the Origin/Mediate
Source as another ascendant. If these two parties are the
same person, there would be no reserva troncal.
Q: Should the Origin/Mediate Source and the Reservista
belong to different lines?
● EXAMPLE: A receives by donation a parcel of land from
his paternal grandfather X. Upon A’s death, the parcel
passes by intestacy to his father Y (X’s son). The property
never left the line. Is Y obliged to reserve?
● ANS 1: No, because “another ascendant is one belong-
ing to a line other than that of the reservista” (REYES &
PUNO)
● ANS 2: Yes, because: (1) the law makes no distinc- tion,
and (2) the purpose of the reserva is not only curative, but
also preventive; i.e. to prevent the property from leaving
the line (SANCHEZ ROMAN)
RESERVATORIES
The reserva is in favor of a class, collectively referred to as the
reservatarios (reservees).
REQUIREMENTS TO BE A RESERVATORIO
a. He must be within the third degree (of con- sanguinity).
From whom?—from the Prepositus
b. He must belong to the line from which the property came.
● This is determined by the Origin/Mediate Source. If an
ascendant, the Mediate Source is either of the
paternal or maternal line. If a half-brother or -sister,
the same is true.
● If, however, it is a brother or sister of the full blood, it
would not be possible to distinguish the lines. To
those who hold the opinion that a reserva would exist
in such a case, Manresa’s comment should be the
norm: “. . . the question of line would be indifferent.”
c. Must the reservatario also be related to the Mediate
Source?
● VIEW 1: No. MANRESA: “. . . the article . . . speaks
solely of two lines, the paternal and the mater- nal of
the descendant, without regard to subdivisions.”
● VIEW 2: Yes. SANCHEZ ROMAN: “Otherwise, results
would arise completely contrary to the purpose of this
reserva . . . which is to prevent property from passing
to persons not of the line of origin.”
RESERVA IN FAVOR OF RESERVATORIOS AS A CLASS
Q: To be qualified as a reservatario, is it necessary that one
must already be living when the Prepositus dies?
A: Not required. MANRESA: The reserva is established in
favor of a group or class: the relatives within the third degree—
not in favor of specific individuals
● As long, therefore, as the reservatario is alive at the time
of the reseruista’s death, he qualifies as such, even if he
was conceived and bom after the Prepositus’ death.
PREFERENCE AMONG THE RESERVATORIOS
SCAEVOLA: All reservatarios are beneficiaries in equal
shares, regardless of differences in degree of relationship with
the Prepositus (provided of course, that they are all within the
third degree, as provided by law).
● REJECTED BY SC IN PADURA V BALDOVINO:
Subjects the choice of reservatarios to the rules of
intestate succession, those reservatarios nearer In degree
of relationship to the Prepositus will exclude those more
remotely related.
REPRESENTATION AMONG THE RESERVATORIOS
As in intestate succession, the rule of preference of degree
among reservatarios is qualified by the rule of representation.
There will be only one instance of representation among the
reservatarios, i.e., a case of the Prepositus being survived by
brothers/sisters and children of a predeceased or incapacitated
brother/sister.
JURIDICAL NATURE
The juridical nature of reserva troncal may be viewed from two
aspects—from that of the reservista and that of the
reservatarios.
NATURE OF RESERVISTA’S RIGHT
1. The reservista’s right over the reserved property is one of
ownership.
2. The ownership is subject to a resolutory condition, i. e.,
the existence of reservatarios at the time of the reservistds
death.
3. The right of ownership is alienable, but subject to the
same resolutory condition.
4. The reservista’s right of ownership is registrable.
NATURE OF RESERVATORIOS’ RIGHT
1. The reservatarios have a right of expectancy over the
property.
2. The right is subject to a suspensive condition, Le., the
expectancy ripens into ownership if the reservatarios
survive the reservista
3. The right is alienable, but subject to the same suspensive
condition (Note: Sienes erroneously refers to the condition
as “resolutory”).
4. The right is registrable.
WHETHER THE RESERVISTA MAY, BY WILL, PREFER
SOME RESERVATORIOS OVER OTHERS
The reservista had no power to appoint, by will, which
reservatarios were to get the reserved property
RULE: Upon the reservista’s death, the property passes by
strict operation of law to the proper reservatarios. Thus, the
selection of which reservatarios will get the property is made
by law and not by the reservista.
64

PROPERTY RESERVED
KIND OF PROPERTY RESERVABLE
Any kind, “cualquera que sea su clase, muebles o inmuebles,
fructiferos o infructiferos, fungibles o no fungibles.”
● RODRIGUEZ V RODRIGUEZ: A sugar quota allotment
(hence, incorporeal property) was held to be reservable.
EFFECT OF SUBSTITUTION
The very same property must go through the process of
transmissions, described above, in order for the reserva to
arise.
● Thus, the self-same property must come from the Mediate
Source, to the Prepositus by gratuitous title, and to the
reservista by operation of law.
● If the Prepositus substitutes the property by selling,
bartering, or exchanging it, the substitute cannot be
reserved.
NOTE: While the property is with the Prepositus, there is yet
no reserva, which commences only when the property is
received by the reservista.
● Consequently, the Prepositus has, over the property,
plenary powers of ownership, and he may exercise these
powers to thwart a potential reserva As earlier mentioned,
the Prepositus is the arbiter of the reserva
RESERVED PROPERTY NOT PART OF THE
RESERVISTA’S ESTATE UPON HIS DEATH
PRINCIPLE: The reserved property, upon the reservista’a
death, passes to the reservatarios by strict operation of law.
● As a consequence of the rule laid down in Cano, since the
reserved property is not computed as part of the
reservista’s estate, it is not taken into account in
determining the legitimes of the reservista’s compulsory
heirs.
RESERVA MAXIMA - RESERVA MINIMA
A problem will arise if two circumstances concur:
(1) the Prepositus makes a will instituting the ascendant-
reservista to the whole or a part of the free portion; and
(2) there is left in the Prepositus’ estate, upon his death, in
addition to the reserved property, property not reservable.
TWO THEORIES
1. RESERVA MAXIMAR
● As much of the potentially reservable property as
possible must be deemed included in the part that
passes by operation of law. This “maximizes” the
scope of the reserva.
2. RESERVA MINIMA
● Every single property in the Prepositus’ estate must
be deemed to pass, partly by will and partly by
operation of law, in the same proportion that the part
given by will bears to the part not so given.
RIGHTS AND OBLIGATIONS
No explicit provision: Unlike the old reserva viudal, the
reserva troncal does not have any implementing articles.
● This absence was solved under the old Code simply by
extending to the troncal the implementing provisions of the
viudal
The rights of reservatories (and the corresponding
obligations of the reservista) were:
1. To inventory the reserved properties;
2. To annotate the reservable character (if registered
immovables) in the Registry of Property within 90 days
from acceptance by the reservista;
3. To appraise the movables;
4. To secure by means of mortgage: a) the indemnity for any
deterioration of or damage to the property occasioned by
the reservista’s fault or negligence, and the payment of the
value of such reserved movables as may have been
alienated by the reservista onerously or gratuitously.
The abolition of the reserva viudal has caused some
uncertainty whether these requirements still apply.
SUMAYA V IAC: The requirement of annotation remains,
despite the abolition of the reserva viudal.
● HOWEVER, it is silent on two points: 1) within what
period must the annotation be made; and 2) whether the
other requirements of the old viudal also remain.
EXTINGUISHMENT
The reserva troncal is extinguished by:
1. The death of the reservista,
2. The death of all the reservatarios;
● NOTE: If one subscribes to the view that the
reservista can belong to the line of origin, this will not
ipso facto extinguish the reserva because the
reservista, could have a child subequently, who would
be a reservatario
3. Renunciation by all the reservatarios, provided that no
other reservatario is bom subsequently;
4. Total fortuitous loss of the reserved property;
5. Confusion or merger of rights, as when the reser- vatarios
acquire the reservistas right by a contract inter vivos
6. Prescription or adverse possession
ARTICLE 892. If only one legitimate child or descendant of
the deceased survives, the widow or widower shall be
entitled to one-fourth of the hereditary estate. In case of a
legal separation, the surviving spouse may inherit if it was
the deceased who had given cause for the same.
If there are two or more legitimate children or descendants,
the surviving spouse shall be entitled to a portion equal to
the legitime of each of the legitimate children or
descendants.
In both cases, the legitime of the surviving spouse shall be
taken from the portion that can be freely disposed of by the
testator.
ONE LEGITIMATE CHILD/SURVIVING SPOUSE
The sharing is 1/2 for the legitimate child and 1/4 for the
surviving spouse.
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1. If there has been legal separation
a. If there is a final decree of legal separation, and the
deceased is the offending spouse—the surviving spouse
gets his/her legitime
b. If there is a final decree of legal separation, and the
deceased is the innocent spouse—the offending spouse is
disqualified from inheriting
c. If after the final decree of legal separation there was a
reconciliation between the spouses, the reciprocal right to
succeed is restored (because reconciliation sets aside the
final decree)
2. Death pendente lite
If either spouse dies during the pendency of the proceedings
for legal separation, the proceedings are terminated and the
surviving spouse inherits from the deceased spouse (no matter
which of the spouses died)
3. Termination of marriage by reappearance of prior
spouse/Decree of annulment or absolute nullity of
marriage
a. Articles 41-43 of the Family Code govern a
subsequent marriage contracted by a party whose
spouse has been absent for the specified period and
lay down the requisites therefor.
● Under these articles, the reappearance of the
prior spouse terminates the second marriage.
One of the effects of the termination as given in
Article 43(5) is.
The clear implication of this article is that (1) if both
con- sorts in the second marriage were in good faith,
they continue to be heirs of each other, and (2) if only
one of said consorts acted in bad faith, the innocent
one will continue to be an heir of the other.
b. The same problem arises in cases of marriages
judicially annulled or declared void ab initio, because
of the provisions of Article 50, par. 1 of the same
Code
The problem here will arise should either or both
partners in the defective marriage remarry later.
c. Prescinding from the practical problem of having two
husbands (or two wives) claiming the right to a
legitime, the very principle underlying the rule is
questionable: why should consorts of a terminated
marriage, or an annulled one, or one declared void ab
initio continue to be heirs of each other? The marriage
—which forms the basis of the right of succession
here—no longer exists.
LEGITIMATE CHILDREN/SURVIVING SPOUSE
The sharing is 1/2 for the children collectively and for the
spouse a share equivalent to that of “each of the legitimate
children or descendants.”
Determination of surviving spouse’s share:
a. As long as at least one of several children inherits in his
own right, the determination of the share of the surviving
spouse presents no problem. It will always be the
equivalent of one child’s share.
b. Supposing all the children predecease (or are disinherited
or unworthy to succeed), since all the grandchildren would
then inherit per stirpes (by representation), and therefore
in different amounts, the practical solution will still be to
give the spouse the share that each child would have
gotten if qualified.
c. Supposing, however, all the children renounce, the
grandchildren would then inherit per capita, and therefore
equally. Should the spouse’s share still be computed on
the basis of the children’s share had they accepted? If so,
when will the words “or descendants” in the second
paragraph of this article ever be operative?
ARTICLE 893. If the testator leaves no legitimate de-
scendants, but leaves legitimate ascendants, the surviving
spouse shall have a right to one-fourth of the hereditary
estate.
This fourth shall be taken from the free portion of the estate.
LEGITIMATE ASCENDANTS/SURVIVING SPOUSE
The sharing is 1/2 for the ascendants collectively and 1 /4 for
the surviving spouse.
For the parents or ascendants, the sharing will be in
accordance with the rules laid down in Articles 889-890
ARTICLE 894. If the testator leaves illegitimate children, the
surviving spouse shall be entitled to one-third of the
hereditary estate of the deceased and the illegitimate
children to another third. The remaining third shall be at the
free disposal of the testator
ILLEGITIMATE CHILDREN/SURVIVING SPOUSE
The sharing is 1/3 for the illegitimate children or descendants
collectively, and 1/3 for the surviving spouse.
SHARING AMONG ILLEGITIMATE CHILDREN
1. If the decedent died during the effectivity of the Family
Code—the sharing will be equal, inasmuch as the Family
Code has abolished the old distinction between natural
and illegitimate other than natural (spurious)
2. If the decedent died before the effectivity of the Family
Code, the old distinction must be ob- served, and the
legitime of a spurious child will only be 4/5 that of a natural
child, according to the ratio established in Article 895, par.
2. This ratio of 5:4 among natural and spurious children
should be observed in all cases under the Civil Code
where they concur.
ARTICLE 895. The legitime of each of the acknowledged
natural children and each of the natural children by legal
66
 fiction shall consist of one-half of the legitime of each of the
legitimate children or descendants.
The legitime of an illegitimate child who is neither an
acknowledged natural, nor a natural child by legal fiction,
shall be equal in every case to four-fifths of the legitime of
an acknowledged natural child.
The legitime of the illegitimate children shall be taken from
the portion of the estate at the free disposal of the testator,
provided that in no case shall the total legitime of such
illegitimate children exceed that free portion, and that the
legitime of the surviving spouse must first be fully satisfied.
NOTE: This Article has been pro tanto amended by Articles
163, 165 and 176 of the Family Code.
ONE LEGITIMATE CHILD/ILLEGITIMATE
CHILDREN/SURVIVING SPOUSE
The sharing is 1/2 for the legitimate child, 1/4 for the surviving
spouse, and 1/4 for each illegitimate child.
● These sharings are based on Article 892 and Article 176
of the Family Code.
LEGITIMATE CHILDREN/ILLEGITIMATE
CHILDREN/SURVIVING SPOUSE
The sharing is 1/2 for the legitimate children collectively, a
share equal to that of one legitimate child for the surviving
spouse, and 1/2 the share of one legitimate child for each
illegitimate child.
SHARING PRIOR TO FAMILY CODE
1. If death occurred before the effectivity of the Family Code,
this article will govern; consequently, should natural and
spurious children concur in the succession, each spurious
child will get 4/5 the share of one natural child, and each
natural child gets 1/2 the share of one le- gitimate child.
2. Should there be no natural children but only spurious
children, each spurious child will get 2/5 the share of one
legitimate child.
REDUCTION OF SHARES
Depending on the number of legitimate and illegitimate
children, the possibility exists that the total legitimes will
exceed the entire estate.
Reductions, therefore, will have to be made in accordance with
the following rules:
1. The legitimes of the legitimate children should never be
reduced; they are primary and preferred compulsory heirs.
2. The legitime of the surviving spouse should never be
reduced; this article prohibits this.
3. The legitimes of the illegitimate children will be reduced
pro rata and without preference among them.
ARTICLE 896. Illegitimate children who may survive with
legitimate parents or ascendants of the deceased shall be
entitled to one-fourth of the hereditary estate to be taken
from the portion at the free disposal of the testator.
ILLEGITIMATE CHILDREN/LEGITIMATE PARENTS
The sharing is 1/2 for the legitimate parents collectively and 1/4
for the illegitimate children collectively.
● For the parents or ascendants, the sharing will be in
accordance with the rules laid down in Articles 889-890.
● For the illegitimate children or descendants, the sharing
shall depend on whether death occurred before or during
the effectivity of the Family Code
ARTICLE 897. When the widow or widower survives with
legitimate children or descendants, and acknowledged
natural children, or natural children by legal fiction, such
surviving spouse shall be entitled to a portion equal to the
legitime of each of the legitimate children which must be
taken from that part of the estate which the testator can
freely dispose of.
ARTICLE 898. If the widow or widower survives with
legitimate children or descendants, and with illegitimate
children other than acknowledged natural, or natural children
by legal fiction, the share of the surviving spouse shall be
the same as that provided in the preceding article
These two articles are mere reiterations of the rules already
laid down in Articles 892 and 895 and need not be explained
again.
ARTICLE 899. When the widow or widower survives with
legitimate parents or ascendants and with illegitimate
children, such surviving spouse shall be entitled to one-
eighth of the hereditary estate of the deceased which must
be taken from the free portion, and the illegitimate children
shall be entitled to one-fourth of the estate which shall be
taken also from the disposable portion. The testator may
freely dispose of the remaining one-eighth of the estate.
LEGITIMATE PARENTS/ILLEGITIMATE
CHILDREN/SURVIVING SPOUSE
The sharing is 1/2 for the legitimate parents collectively, 1/4 for
the illegitimate children collectively, and 1/8 for the surviving
spouse.
● For the legitimate parents or ascendants, the sharing will
be in accordance with the rules laid down in Articles 889-
890
● For the illegitimate children or descendants, the sharing
will depend on whether death occurred before or during
the effectivity of the Family Code
ARTICLE 900. If the only survivor is the widow or widower,
she or he shall be entitled to one-half of the hereditary
estate of the deceased spouse, and the testator may freely
dispose of the other half.
If the marriage between the surviving spouse and the
testator was solemnized in articulo mortis, and the testa- tor
died within three months from the time of the marriage, the
legitime of the surviving spouse as the sole heir shall be
one-third of the hereditary estate, except when they have
been living as husband and wife for more than five years. In
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 the latter case, the legitime of the surviving spouse shall be
that specified in the preceding paragraph.
SURVIVING SPOUSE AS SOLE COMPULSORY HEIR
GR: ½ of the estate
EX: ⅓ of the estate, if the following circumstances are present:
1. The marriage was in articulo mortis;
2. The testator died within three months from the time of the
marriage;
3. The parties did not cohabit for more than five years; and
4. The spouse who died was the party in articulo mortis at
the time of the marriage.
NOTE: The last requisite is not explicit in this article but can be
derived from the sense and intent of the provision. For obvious
reasons, the law does not regard such marriages with eager
approbation.
ARTICLE 901. When the testator dies leaving illegitimate
children and no other compulsory heirs, such illegitimate
children shall have a right to one-half of the hereditary estate
of the deceased.
The other half shall be at the free disposal of the testator.
ILLEGITIMATE CHILDREN ALONE
They get 1/2 of the estate collectively.
The sharing among the illegitimate children or descen- dants
will depend on whether death occurred before or during the
effectivity of the Family Code
ARTICLE 902. The rights of illegitimate children set forth in
the preceding articles are transmitted upon their death to
their descendants, whether legitimate or illegitimate.
This article grants the right of representation to the legitimate
and illegitimate descendants of an illegitimate child.
ART 902 VS ART 992
In the case of descendants of legitimate children, the right of
representation is given only to legitimate descendants, by
virtue of the provisions of Art. 992
NET EFFECT: The right of representation given to
descendants of illegitimate children is broader than the right of
representation given to descendants of legitimate children
● Thus, an illegitimate child of a predeceased legitimate
child cannot inherit by representation (Article 992), while
an illegitimate child of an illegitimate child can (Article
902). A classic instance of unintended consequence.
ARTICLE 903. The legitime of the parents who have an
illegitimate child, when such child leaves neither legitimate
descendants, nor a surviving spouse, nor illegitimate
children, is one-half of the hereditary estate of such
illegitimate child. If only legitimate or illegitimate children are
left, the parents are not entitled to any legitime whatsoever.
If only the widow or widower survives with parents of the
illegitimate child, the legitime of the parents is one- fourth of
the hereditary estate of the child, and that of the surviving
spouse also one-fourth of the estate.
ILLEGITIMATE PARENTS ALONE
They get 1/2 of the estate.
NOTE: In the illegitimate ascending line, the right does not go
beyond the parents.
ILLEGITIMATE PARENTS/SURVIVING SPOUSE
The sharing is 1 /4 for the parents collectively and 1 /4 for the
spouse.
ILLEGITIMATE PARENTS EXCLUDED BY ALL KINDS OF
CHILDREN
As secondary compulsory heirs, the illegitimate parents are
inferior to legitimate parents.
● Whereas legitimate parents are excluded only by
legitimate children, illegitimate parents are excluded by all
kinds of children, legitimate or illegitimate.
ARTICLE 904. The testator cannot deprive his compulsory
heirs of their legitime, except in cases expressly specified by
law.
Neither can he impose upon the same any burden,
encumbrance, condition, or substitution of any kind
whatsoever.
This article reiterates the principle—already laid down in Art.
886, that the legitime is not within the testator's control. It
passes to the compulsory heirs by strict operation of law.
TESTATOR DEVOID OF POWER TO DEPRIVE
COMPULSORY HEIRS OF LEGITIME
It is the law, not the testator, which determines the
transmission of the legitimes. Consequently, it is not within the
testator’s power to deprive the compulsory heirs of their
legitimes.
EXCEPTION: The only instance in which the law allows the
testator to deprive the compulsory heirs of their legitimes is
disinheritance (Arts. 915-923), the grounds for which are set
forth in Arts. 919- 921.
TESTATOR DEVOID OF POWER TO IMPOSE BURDENS
ON LEGITIME
This rule, first enunciated in Art. 872 and reiterated in the
second paragraph of this article, is but a consequence of the
principle that the legitime passes by strict operation of law.
QUALIFICATIONS: In at least two instances, the law grants
the testator some power over the legitime:
a. ART 1080 PAR 2
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 ● "A parent who, in the Interest of his or her family,
desires to keep any agricultural, industrial, or
manufacturing enterprise intact, may avail himself of
the right granted him in this article, by ordering that
the legitime of the other children to whom the property
is not assigned, be paid in cash.”
b. ART 1080 PAR 1
● “Every co-heir has a right to demand the division of
the estate unless the testator should have expressly
forbidden its partition, in which case the period of
indivlsion shall not exceed twenty years as provided
in article 494. This power of the testator to prohibit
division applies to the legitime.”
RESTRICTIONS ON THE LEGITIME IMPOSED BY LAW
a. ART 159 FC
● The family home shall continue despite the death of
one or both spouses or of the unmarried head of the
family for a period of ten years or for as long as there
is a minor beneficiary, and the heirs cannot partition
the same unless the court finds compelling reasons
therefor. This rule shall apply regardless of whoever
owns the property or constituted the family home
b. RESERVA TRONCAL
ARTICLE 905. 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.
REASON FOR THE RULE
Before the predecessor’s death, the heir’s right is simply
inchoate.
DUTY TO COLLATE
Any property which the compulsory heir may have gratuitously
received from his predecessor by virtue of the renunciation or
compromise will be considered an advance on his legitime and
must be duly credited.
SCOPE OF PROHIBITION
As worded, this article applies only to transactions of
compromise or renunciation between the predecessor and the
prospective compulsory heir.
Q: Is a transaction between the prospective compulsory heir
and another prospective compulsory heir, or between a
prospective compulsory heir and a stranger, interdicted?
A: Yes, but by another article—Art. 1347, par. 2:
“Art. 1347. xxx No contract may be entered into upon future
inheritance except in cases expressly authorized by law. xxx"
ARTICLE 906. Any compulsory heir to whom the tes- tator
has left by any title less than the legitime belonging to him
may demand that the same be fully satisfied.
This rule applies only to transmissions by gratuitous title.
This is the well-known right of completion of legitime (actio ad
supplendam legitimam).
RULE: The principle underlying this article is that anything that
a compulsory heir receives by gratuitous title from the
predecessor is considered an advance on the legitime and is
deducted therefrom.
EXCEPTION:
1. ART 1062 - If the predecessor gave the compul- sory heir
a donation inter vivos and provided that it was not to be
charged against the legitime
2. Art 1063 - Testamentary dispositions made by the
predecessor to the compulsory heir, unless the testator
provides that it should be considered part of the legitime.
ARTICLE 907. Testamentary dispositions that impair or
diminish the legitime of the compulsory heirs shall be
reduced on petition of the same, insofar as they may be
inofficious or excessive.
This article is based on the same principle expressed in Art.
904.
● If the testamentary dispositions exceed the disposable
portion, the compulsory heirs may demand their reduction
to the extent that the legitimes have been impaired.
● To allow the testator to make testamentary dispositions
that impair the legitime would in effect allow him to deprive
the compulsory heirs of part of their legitime—and this is
not allowed by Art. 904.
This article should be read together with Art. 911
ARTICLE 908. 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.
To the net value of the hereditary estate, shall be added the
value of all donations by the testator that are subject to
collation, at the time he made them.
NET HEREDITARY ESTATE
Articles 888-903 set forth the legitimes of the compulsory heirs,
either inheriting alone or in various combinations.
● Those articles gave the legitimes in the form of fractions,
or proportions, of the decedent’s estate.
● This article makes possible the computation of the
absolute amounts of the legitimes by laying down the
manner of computing the net value of the estate (the net
hereditary estate), on which the proportions are based.
MANNERS OF COMPUTING THE HEREDITARY ESTATE
The process has three steps:
1. Inventory of all the existing assets
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 ● This will involve an appraisal/valuation of these
existing assets at the time of the decedent’s death.
● These assets include only those properties that
survive the decedent; le., those which are not
extinguished by his death.
● The value determined by this inventory will constitute
the gross assets.
2. Deducting unpaid debts and charges
● All unpaid obligations of the decedent should be
deducted from the gross assets.
● Only those obligations with monetary value which are
not extinguished by death are con- sidered here.
Thus, those obligations which are purely personal
(intuitu personae) are not taken into account.
● The difference between the gross assets and the
unpaid obligations will be the available assets.
3. Adding the value of donations inter vivos
● To the available assets should be added all the inter
vivos donations made by the decedent.
● The donations inter vivos shall be valued as of the
time they were respectively made. Any increase or
decrease in value from the time they were made to
the time of the decedent’s death shall be for the
donee’s account, since donation transfers ownership
to the donee.
● The sum of the available assets and all the donations
inter vivos is the net hereditary estate.
ARTICLE 909. Donations given to children shall be charged
to their legitime.
Donations made to strangers shall be charged to that part of
the estate of which the testator could have disposed by his
last will.
Insofar as they may be inofficious or may exceed the
disposable portion, they shall be reduced according to the
rules established by this Code.
ARTICLE 910. 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.
Donations inter vivos to compulsory heirs—Donations inter
vivos to a compulsory heir shall be imputed to his legitime, Le.,
considered as an advance on his legitime.
RULE: This rule applies to all compulsory heirs. [Note that
these two articles omit—inadvertently—ascendants who
succeed as compulsory heirs.
● This rule applies to them as well. For obvious reasons, this
rule has no application to a surviving spouse, except in
cases of donations propter nuptias and moderate gifts
under Article 87 Family Code
EXCEPTION: This rule of imputation to the legitime will not
apply if the donor provided otherwise [Vide Art. 1062), in which
case the donation will be imputed to the disposable portion of
the estate.
DONATION INTER VIVOS TO STRANGERS
1. A stranger is anyone who does not succeed as a
compulsory heir.
2. Donations inter vivos to strangers are necessarily imputed
to the disposable portion.
This matter is more fully—and more confusingly (because of
the multiple senses of the word collation)—treated in Chapter
4, Section 5 (Arts. 1061-1077)
ARTICLE 911. After the legitime has been determined in
accordance with the three preceding articles, 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, the
devises or legacies made in the will;
(2) The reduction of the devises or legacies shall be pro
rata, without any distinction whatever.
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.
(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.
This provision implements the principle laid down in Arts. 872,
886, and 904—the inviolability of the legitime. Thus if the
legitimes are impaired, the gratuitous dispositions of the
testator (either inter vivos or mortis causa) have to be set aside
or reduced as may be required to cover the legitimes.
METHOD OF REDUCTION
There is an order of priorities to be observed in the reduction of
the testator’s gratuitous dispositions, thus—
1. Reduce 911 [2]), and the testamentary dispositions (to
heirs) (Art. 907). Among these legacies, devises, and
testamentary dispositions there is no preference.
2. Reduce pro rata the preferred legacies and devises. (Art.
911, last par.)
3. Reduce the donations inter vivos according to the inverse
order of their dates [i.e., the oldest is the most preferred)
(Art. 773).
These reductions shall be to the extent required to complete
the legitimes, even if in the process the disposition is reduced
to nothing.
An apparent conflict exists between this article and Art. 950,
regarding the order of preference among legacies and devises,
70
should reductions be necessary. This matter is treated under
Art. 950.
DEVISES/LEGACIES OF USUFRUCT/LIFE
ANNUITIES/PENSIONS
The following principles should be borne in mind:
1. If, upon being capitalized according to actuarial standards,
the value of the grant exceeds the free portion (i.e., it
impairs the legitime), it has to be reduced, because the
legitime cannot be impaired
2. The testator can impose no usufruct or any other
encumbrance on the part that passes as legitime.
3. Subject to the two rules just stated, the compulsory heirs
may elect between ceding to the devisee/legatee the free
portion (or the proportional part thereof corresponding to
the said legacy/devise, in case there are other
dispositions), and complying with the terms of the usufruct
or life annuity or pension.
ARTICLE 912. 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.
The devisee who is 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.
This covers cases where (1) the devise has to be reduced and
(2) the thing given as a devise is indivisible.
RULES
1. If the extent of reduction is less than 1 /2 of the value of
the thing—it should be given to the devisee.
2. If extent of reduction is 112 or more of the value of the
thing—it should be given to the compulsory heir.
In either case, there should be pecuniary reimbursement to the
party who did not get his physical portion of the thing devised.
ARTICLE 913. 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.
This article applies if neither party (the compulsory heir/s and
the devisee) elects to exercise his right under Art. 912.
HOW THE THING DEVISED SHOULD BE DISPOSED OF:
1. Any other heir or devisee, who elects to do so, may
acquire the thing and pay the parties (the compulsory heir
and the devisee in question) their respective shares in
money
2. if no heir or devisee elects to acquire it, it shall be sold at
public auction and the net proceeds accordingly divided
between the parties concerned.
NOTE: This rule of constructive partition is similar to that in co-
ownership (Art. 498) and in partition of the decedent’s estate
(Art. 1086), except that, in these two latter cases, the
acquisition by one of the co-owners or co-heirs can be done
only if all the co-owners or co-heirs agree to such acquisition.
ARTICLE 914. The testator may devise and bequeath the
free portion as he may deem fit.
This article is simply a restatement of Art. 842, and is therefore
unnecessary.
a. Reserva Troncal
RESERVA TRONCAL: PROSPECT & RETROSPECT
BY BALANE, R
REQUISITES OF A VALID RESERVA TRONCAL (CHUA V
CFI):
1. That the property was acquired by a descendant from an
ascendant or from a brother or sister by gratuitous title;
2. That said descendant died without an issue (no children);
3. That the property is inherited by another ascendant by
operation of law; and
4. That there are relatives within the third degree belonging
to the line for which said property came
PARTIES:
(1) Source - ascendant from which the property came
(2) Prepositus - the descendant who received property by
gratuitous title and died without issue, making his other
ascendant inherit by operation of law
(3) Reservista or Reservor - ascendant who inherits by
operation of law property from his descendant; person
obliged to reserve
(4) Reservatario or reserve - relatives within the 3rd degree
counted from the descendant (prepositus) and belonging
to the line from which the property came; person for whom
the property is reserved
RSERVA TRONCAL CREATES 2 RESOLUTORY
CONDITIONS:
1. The death of the ascendant obliged to reserva
2. The survival, at the time of his death, of relatives within the
third degree belonging to the line from which the property
came
NOTE: All parties must be the legitimate
ascendants/descendants
SIR BOBBIE: BIR cannot impose estate tax on heirs of the
reservista because the property did not become part of his
estate
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b. Reserva Adoptiva
PD 603 THE CHILD AND YOUTH WELFARE ACT
ART 39. Effects of Adoption. - The adoption shall:
(1) Give to the adopted person the same rights and duties
as if he were a legitimate child of the adopter: Provided,
That an adopted child cannot acquire Philippine
citizenship by virtue of such adoption:
(2) Dissolve the authority vested in the natural parent or
parents, except where the adopter is the spouse of the
surviving natural parent;
(3) Entitle the adopted person to use the adopter's
surname; and
(4) Make the adopted person a legal heir of the adopter:
Provided, That if the adopter is survived by legitimate
parents or ascendants and by an adopted person, the
latter shall not have more successional rights than an
acknowledged natural child: Provided, further, That any
property received gratuitously by the adopted from the
adopter shall revert to the adopter should the former
predecease the latter without legitimate issue unless the
adopted has, during his lifetime, alienated such
property: Provided, finally, That in the last case, should
the adopted leave no property other than that received
from the adopter, and he is survived by illegitimate
issue or a spouse, such illegitimate issue collectively or
the spouse shall receive one-fourth of such property; if
the adopted is survived by illegitimate issue and a
spouse, then the former collectively shall receive one-
fourth and the latter also one-fourth, the rest in any case
reverting to the adopter, observing in the case of the
illegitimate issue the proportion provided for in Article
895 of the Civil Code.
The adopter shall not be a legal heir of the adopted person,
whose parents by nature shall inherit from him, except that if
the latter are both dead, the adopting parent or parents take
the place of the natural parents in the line of succession,
whether testate or intestate.
RESTORATION OF REVERSION ADOPTIVA: A STUDY
BY: DOMINGO, R
ROSALES V ROSALES
DOCTRINE: Art 887 refers to the estate of the deceased
spouse, in w/c case the surviving spouse is a compulsory
heir. It does not apply to the estate of a parent-in-law. The
surviving spouse is considered a third person as regards the
estate of the parent-in-law.
● The estate which is the subject matter of the intestate
estate proceedings in this case is that of the deceased
Petra, the mother-in-law of the petitioner. It is from the
estate of Petra that Macikequerox Rosales draws a
share of the inheritance by the right of representation as
provided by Article 981 of the Code.
● Article 971 explicitly declares that Macikequerox
Rosales is called to succession by law because of his
blood relationship. He does not succeed his father,
Carterio (the person represented) who predeceased his
grandmother, Petra Rosales, but the latter whom his
father would have succeeded. Petitioner cannot assert
the same right of representation as she has no filiation
by blood with her mother-in-law.
● Said right of her husband was extinguished by his death
that is why it is their son who succeeded from Petra by
right of representation. He did not succeed from his
deceased father.
LAPUZ V EUFEMIO
DOCTRINE: An action for legal separation which involves
nothing more than the bed-and-board separation of the
spouses (there being no absolute divorce in this jurisdiction)
is purely personal.
● A review of the resulting changes in property relations
between spouses shows that they are solely the effect
of the decree of legal separation; hence, they can not
survive the death of the plaintiff if it occurs prior to the
decree.
● From Art 106 it is apparent that the right to the
dissolution of the conjugal partnership of gains (or of the
absolute community of property), the loss of right by the
offending spouse to any share of the profits earned by
the partnership or community, or his disqualification to
inherit by intestacy from the innocent spouse as well as
the revocation of testamentary provisions in favor of the
offending spouse made by the innocent one, are all
rights and disabilities that, by the very terms of the Civil
Code article, are vested exclusively in the persons of
the spouses; and by their nature and intent, such claims
and disabilities are difficult to conceive as assignable or
transmissible.
● Hence, a claim to said rights is not a claim that "is not
thereby extinguished" after a party dies, under Section
17, Rule 3, of the Rules of Court, to warrant
continuation of the action through a substitute of the
deceased party.
● The same result flows from a consideration of the
enumeration of the actions that survive for or against
administrators in Section 1, Rule 87, of the Revised
Rules of Court
● A further reason why an action for legal separation is
abated by the death of the plaintiff, even if property
rights are involved, is that these rights are mere effects
of decree of separation, their source being the decree
itself; without the decree such rights do not come into
existence, so that before the finality of a decree, these
claims are merely rights in expectation
BARITUA V CA
DOCTRINE: ITC: Alicia and her son with Bienvenido are
unquestionably the successors in interest referred to in law
as the persons authorized to receive payment.
● Parents of the deceased succeed only when the latter
dies without a legitimate descendant. But, the surviving
spouse concurs with all classes of heirs.
● ITC: Private respondent parents are not successors-in-
interest of Bienvenido; they are not compulsory heirs.
The petitioners therefore acted correctly in settling their
obligation with Alicia as the widow of Bienvenido and as
the natural guardian of their lone child.
● This is so even if Alicia had been estranged from
Bienvenido. Mere estrangement is not a legal ground
for the disqualification of a surviving spouse as an heir
of the deceased spouse.
● Neither could the private respondents, as alleged
creditors of Bienvenido, seek relief and compensation
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 from the petitioners. While it may be true that the private
respondents loaned to Bienvenido the purchase price of
the damaged tricycle and shouldered the expenses for
his funeral, the said purchase price and expenses are
but money claims against the estate of their deceased
son. These money claims are not the liabilities of the
petitioners.
SOLIVIO V CA
DOCTRINE: The property of the deceased, Esteban
Javellana, Jr., is not reservable property, for Esteban, Jr.
was not an ascendant, but the descendant of his mother,
Salustia Solivio, from whom he inherited the properties in
question. Therefore, he did not hold his inheritance subject
to a reservation in favor of his aunt, Celedonia Solivio, who
is his relative within the third degree on his mother's side.
● The reserva troncal applies to properties inherited by an
ascendant from a descendant who inherited it from
another ascendant or a brother or sister. It does not
apply to property inherited by a descendant from his
ascendant, the reverse of the situation covered by
Article 891.
● Since the deceased, Esteban Javellana, Jr., died
without descendants, ascendants, illegitimate children,
surviving spouse, brothers, sisters, nephews or nieces,
what should apply in the distribution of his estate are
Articles 1003 and 1009 of the Civil Code
PADURA V BALDOVINO
DOCTRINE: Reserva troncal merely determines the group
of reservatarios to whom property should be returned. But
within that group, the individual rights should be decided by
the applicable rules of ordinary intestate succession. The
reservable property should be succeeded by the
reservatario who is nearest in degree, according to the basic
rules of intestacy.
● The stated purpose of the reserva is accomplished once
property has devolved to the specified relatives of the
line of origin. But from this time on, there is no further
occasion for its application. In the relations between one
reservatario and another of the same degree, there is no
call for applying Art. 891 any longer. The respective
share of each in the reversionary property should be
governed by the ordinary rules of intestate succession.
FLORENTINO V FLORENTINO
DOCTRINE: Any ascendant (called reservist) who inherits
from his descendant (called propositus) any property while
there are living, within the third degree, relatives of the latter
(called reservatarios), is nothing but a life usufructuary or a
fiduciary of the reservable property.
● Nevertheless, there is right of representation on the part
of reservatarios who are within the third degree
mentioned by law, as in the case of nephews of the
deceased person from whom the reservable property
came.
● These reservatarios have the right to represent their
ascendants (fathers and mothers) who are the brothers
of the said deceased person and relatives within the
third degree in accordance with article 811 of the Civil
Code.
● IN THIS CASE, plaintiffs Ramon, Miguel, Ceferino,
Antonio, and Rosario are the children of Jose Florentino
(child of Apolonio II on 1st marriage). They have the
right to represent their aforementioned father, Jose.
● In summary, there are seven (7) "reservatarios" who are
entitled to the reservable property: the aforementioned
3 children (Jose, Espirita, and Pedro) of Apolonio II in
his 1st marriage, who are represented by their 12
children. The others are the remaining 3 children
(Encarnacion, Gabriel, Magdalena) of Apolonio II in his
1st marriage, and finally, Mercedes Florentino (child of
2nd marriage).
EDROSO V SABLAN
DOCTRINE: The fact that Basilio Sablan said that the lands
belong to the appellant and must be delivered to her it
cannot be deduced that he renounced the right required by
law to be reserved in such lands by virtue of the provisions
of article 811 of the Civil Code, for they really belong to her
and must be delivered to her.
SIENAS V ESPARCIA
DOCTRINE: Upon Francisco's death, unmarried and without
descendants, the property was inherited, in turn, by his
mother. The latter was, therefore, under obligation to
reserve it for the benefit of relatives within the third degree
belonging to the line from which said property came, if any
survived her.
● The reservista has the legal title and dominion to the
reservable property but subject to a resolutory
condition; he may alienate the same but subject to
reservation, said alienation transmitting only the
revocable and conditional ownership of the reservists,
the rights acquired by the transferee being revoked or
resolved by the survival of reservatarios at the time of
the death of the reservista.
GONZALES V CFI
DOCTRINE: IN THE CASE AT BAR, a reserva truncal is
involved. The properties in question were indubitably
reservable properties in the hands of Mrs. Legarda.
Undoubtedly, she was a reservoir.
● The reservation became a certainty when at the time of
her death, the reserves or relatives within the third
degree of the prepostus Filomena Legarda were living
or they survived Mrs. Legarda.
● All reserves are equally entitled to share in reserva
troncal. While it is true that by giving the reservable
property to only one reserve, it did not pass to the
hands of strangers, nevertheless, it is likewise true that
the heiress of the reservoir was only one of the reserves
and there is no reason founded upon law and justice
why the other reserves should be deprived of their
shares in the reservable property.
CANO V DIRECTOR
DOCTRINE: The only requisites for the passing of the title
from the reservista to the appellee are:
(1) The death of the reservista
(2) The fact that the reservatorio has survived the
reservista
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ITC: Both facts are admitted, and their existence is nowhere
questioned.
• The contention that an intestacy proceeding is still
necessary rests upon the assumption that the reservatario
will succeed in, or inherit, the reservable property from the
reservista. HOWEVER, the reservatario is not the
reservista's successor mortis causa nor is the reservable
property part of the reservista's estate
VISCONDE V CA
DOCTRINE: Collation is only required of compulsory heirs
succeeding with other compulsory heirs and involves
property/rights received by donation/gratuitous title during
lifetime of the decedent.
● Purpose: Attain equality among compulsory heirs. It is
presumed that the intention in making
donation/gratuitous transfer to a forced heir is to give
him something in advance on acct of his share in the
estate, and that the predecessor’s will is to treat all heirs
equally, in the absence of any expression to the
contrary. Collation does not impose any lien on the
property.
IN RE: ADOPTION OF STEPHANIE GARCIA
DOCTRINE: The law is likewise silent as to what middle
name an adoptee may use. Article 365 of the Civil Code
merely provides that an adopted child shall bear the
surname of the adopter. Also, Article 189 of the Family
Code, enumerating the legal effects of adoption
● Being a legitimate child by virtue of her adoption, it
follows that Stephanie is entitled to all the rights
provided by law to a legitimate child without
discrimination of any kind, including the right to bear the
surname of her father and her mother.
● Article V of RA 8552 (law on adoption) provide that the
adoptee remains an intestate heir of his/her biological
parent. Hence, Stephanie can well assert or claim her
hereditary rights from her natural mother in the future.
● Hence, since there is no law prohibiting an illegitimate
child adopted by her natural father, like Stephanie, to
use, as middle name her mothers surname, we find no
reason why she should not be allowed to do so.
FRANCISCO V FRANCISCO-ALFONSO
DOCTRINE: According to Article 888, Civil Code, the
legitime of legitimate children and descendants consists of
one-half of the hereditary estate of the father and of the
mother. The latter may freely dispose of the remaining half
subject to the rights of illegitimate children and of the
surviving spouse as hereinafter provided.
● Here, Gregorio did not own any other property. If indeed
the parcels of land involved were the only property left
by their father, the sale in fact would deprive Aida of her
share in her father’s estate. By law, she is entitled to
half of the estate of her father as his only legitimate
child.
● The legal heirs of the late Gregorio must be determined
in proper testate or intestate proceedings for settlement
of the estate. His compulsory heir cannot be deprived of
her share in the estate save by disinheritance as
prescribed by law.
CARLOS V SANDOVAL
DOCTRINE: If Teofilo II is proven to be a legitimate,
illegitimate or adopted child, then Juan has no legal
personality to ask for the nullity of marriage. This is based
on the ground that he has no successional right to be
protected, hence, does not have proper interest.
16. Disinheritance
ARTICLE 915. A compulsory heir may, in consequence of
disinheritance, be deprived of his legitime, for causes
expressly stated by law.
a Art 904 → RULE: The testator cannot deprive the compulsory
heirs of the legitime
EXCEPTION: Disinheritance → only instance in which the testator
may deprive his compulsory heirs of their legitime
REQUISITES OF A VALID DISINHERITANCE
1. it must be made in a will (Article 916);
2. it must be for a cause specified by law (Article 916 in
relation to Articles 919-921);
3. the will must specify the cause (Articles 916 and 918);
4. it must be unconditional;
5. it must be total;
6. the cause must be true (Article 918);
7. if the truth of the cause is denied, it must be proved by the
proponent (Article 917).
NOTE: The strictness of the requisites indicates the policy of
the law.
● It regards disinheritance with disfavor and will grant it only
with reluctance, because disinheritance results in
deprivation of legitime.
EFFECT OF DISINHERITANCE
The effect of disinheritance is not just deprivation of the
legitime, but total exclusion of the disinherited heir from the
inheritance.
Thus, the disinherited heir forfeits:
1. His legitime;
2. His intestate portion, if any, and
3. Any testamentary disposition made in a prior will of the
disinheriting testator
ARTICLE 916. Disinheritance can be effected only through
a will wherein the legal cause therefor shall be specified.
MADE IN A WILL
The first clause of this article constitutes the first requisite of
disinheritance - that it must be made in a will
● The will, obviously, must be formally valid and must be
admitted to probate.
LEGAL CAUSE
The second clause is the second requisite.
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● The causes are specified in Articles 919 (for
descendants), 920 (for ascendants), and 921 (for the
surviving spouse).
ARTICLE 917. The burden of proving the truth of the cause
for disinheritance shall rest upon the other heirs of the
testator, if the disinherited heir should deny it.
This article gives the 7th requisite of disinheritance.
NOTE: Truth is not presumed; it must be proved.
● All the disinherited heir need do is deny the cause and the
burden is thrown upon those who would uphold the
disinheritance.
ARTICLE 918. Disinheritance without a specification of the
cause, or for a cause the truth of which, if contradicted, is
not proved, or which is not one of those set forth in this
Code, shall annul the institution of heirs insofar as it may
prejudice the person disinherited; but the devises and
legacies and other testamentary dispositions shall be valid
to such extent as will not impair the legitime.
This article sets forth requisites 3 and 6 of disinheritance.
INEFFECTIVE DISINHERITANCE
If the disinheritance lacks one or other of the requisites
mentioned in this article, the heir in question gets his legitime.
● As to whether he will also get any part of the intestate
portion or not, this depends on whether the testator gave
away the free portion through testamentary dispositions.
● If he did, these dispositions are valid and the compulsory
heir improperly disinherited gets only his legitime.
● If the testator did not, the compulsory heir will be entitled
to his corresponding share of the free portion as well.
Note the difference between the effect of ineffective
disinheritance and that of preterition. (Article 854).
ARTICLE 919. The following shall be sufficient causes for
the disinheritance of children and descendants, legitimate as
well as illegitimate:
(1) When a child or descendant has been found guilty of an
attempt against the life of the testator, his or her
spouse, descendants, or ascendants;
(2) When a child or descendant has accused the testa- tor
of a crime for which the law prescribes imprisonment for
six years or more, if the accusation has been found
groundless;
(3) When a child or descendant has been convicted of
adultery or concubinage with the spouse of the testator;
(4) When a child or descendant by fraud, violence,
intimidation, or undue influence causes the testator to
make a will or to change one already made;
(5) A refusal without justifiable cause to support the parent
or ascendant who disinherits such child or descendant;
(6) Maltreatment of the testator by word or deed, by the
child or descendant;
(7) When a child or descendant leads a dishonorable or
disgraceful life;
(8) Conviction of a crime which carries with it the penalty of
civil interdiction.
CAUSES FOR DISINHERITANCE OF CHILDREN OR
DESCENDANTS (WHETHER LEGITIMATE OR
ILLEGITIMATE) - ENUMERATION IS EXCLUSIVE
PAR 1: When a child or descendant has been found guilty
of an attempt against the life of the testator, his or her
spouse, descendants, or ascendants
● The word “attempt” is used non-technically and should not
be construed to limit the provision to the attempted stage
of the felony. All stages of commission are included—
whether attempted, frustrated, or consummated.
● The felony must be an intentional one.
● Final conviction is required
PAR 2: When a child or descendant has accused the
testator of a crime for which the law prescribes
imprisonment for six years or more, if the accusation has
been found groundless
● The word “accused” is used generically and will include
filling of the complaint before the prosecutor, or presenting
incriminating evidence against the testator, or even
suppressing exculpatory evidence.
● The crime of which the testator is accused must carry a
penalty of at least six years’ imprisonment
○ BALANE: It should have specified instead: more than
six years imprisonment, because six years still falls
within prision correctional. One day beyond that
places it within the next higher penalty—prision
mayor.
● The testator must be acquitted
● The accusation must be found to be groundless, i.e. the
judgment of acquittal must state either that no crime was
committed or that the accused did not commit the crime.
An acquittal on reasonable doubt will not be a ground
for disinheritance.
PAR 3: When a child or descendant has been convicted of
adultery or concubinage with the spouse of the testator
● Final conviction is required
PAR 4: When a child or descendant by fraud, violence,
intimidation, or undue influence causes the testator to
make a will or to change one already made
PAR 5: A refusal without justifiable cause to support the
parent or ascendant who disinherits such child or
descendant
● There must have been a need and a demand for
support
● The demand must have been unjustifiably refused.
○ Refusal may be justified, e.g., if the obligor does not
have enough resources for all whom he is obliged to
support. The ascendants are only third in the
hierarchy of preference among claimants of support
75
PAR 6: Maltreatment of the testator by word or deed, by
the child or descendant
● Includes a wide range of misdeeds, but it is not required
that the act of verbal or physical assault be of a serious
nature.
● No conviction is required - it is not even required that
any criminal case be filed
○ A physical assault that would not fall under par 1
could fall under this paragraph
PAR 7: When a child or descendant leads a dishonorable
or disgraceful life
● The operative word here is “lead.” There must be a
habituality to the conduct to make it fall under this
paragraph.
● The dishonorable or disgraceful conduct or pattern of
behavior need not be sexual in nature, although it may
often be that.
○ EXAMPLE: a child or descendant whose livelihood is
drug-pushing or smuggling is living a dishonorable
and disgraceful life (assuming our society still
recognizes some civilized values).
PAR 8: Conviction of a crime which carries with it the
penalty of civil interdiction.
● Final conviction is required.
● The accessory penalty of civil interdiction is imposed with
the principal penalties of death, reclusion perpetua, and
reclusion temporal.
ARTICLE 920. The following shall be sufficient causes for
the disinheritance of parents or ascendants, whether
legitimate or illegitimate:
(1) When the parents have abandoned their children or
induced their daughters to live a corrupt or immoral life,
or attempted against their virtue;
(2) When the parent or ascendant has been convicted of an
attempt against the life of the testator, his or her
spouse, descendants, or ascendants;
(3) When the parent or ascendant has accused the testator
of a crime for which the law prescribes imprisonment for
six years or more, if the accusation has been found to
be false;
(4) When the parent or ascendant has been convicted of
adultery or concubinage with the spouse of the testator;
(5) When the parent or ascendant by fraud, violence,
intimidation, or undue influence causes the testator to
make a will or change one already made;
(6) The loss of parental authority for causes specified in
this Code;
(7) The refusal to support the children or descendants
without justifiable cause;
(8) An attempt by one of the parents against the life of the
other, unless there has been a reconciliation between
them.
CAUSES FOR DISINHERITANCE OF PARENTS OR
ASCENDANTS (WHETHER LEGITIMATE OR
ILLEGITIMATE) - ENUMERATION IS EXCLUSIVE:
PARs 2, 3, 4, 5, and 7 - also enumerated under Art 919
NOTE: The variation of par. 3—The word here used is false,
whereas par. 2 of Art. 919 uses groundless. Par. 2 of Art. 921
also uses false. The change is not substantive, but merely
stylistic.
PAR 1: When the parents have abandoned their children
or induced their daughters to live a corrupt or immoral life,
or attempted against their virtue
Encompasses three grounds:
a. Abandonment
● This is not restricted to those instances of
abandonment penalized by law (Articles 276-277,
Revised Penal Code; Article 59, PD 603), but includes
all conduct constituting a repeated or total refusal or
failure to care for the child.
b. Inducement to live a corrupt or immoral life
● This ground is basically the same as that given in Art.
231 [2] of the Family Code as a ground for
suspension or deprivation of parental authority.
● The term of this provision seem to apply only to
daughters
● Q: Should the provision also be made to apply to
other female descendants?
● TOLENTINO: Although the law mentions only
‘daughters', we believe that this should be construed
to mean all female descendants.
○ EXAMPLE: For instance, X has two grand-
daughters, who are children of a predeceased
child. He leads one of them to a life of
prostitution. Certainly, he has committed such a
reprehensible act as would justify his
disinheritance by any of those granddaughters
● Q: What about sons and other male descendants?
● A: Art. 231, pars. (2) and (4) of the Family Code make
no distinction.
c. Attempt against virtue
● No conviction is required
PAR 6: The loss of parental authority for causes specified
in this Code
● Not all causes for loss of parental authority are grounds for
disinheritance, for instance, attainment of the age of
majority
Only those causes which involve culpability on the part of
the parents will provide grounds for disinheritance
1. judicial deprivation of parental authority on the ground of
sexual abuse (Article 232, Family Code);
2. loss of parental authority as a result of judicial declaration
of abandonment of the child (Article 229[3]);
3. judicial deprivation of parental authority on the grounds of:
a. excessively harsh or cruel treatment of the child;
b. giving the child corrupting orders, coun- sel, or
example;
c. Compelling the child to beg; or
d. Subjecting the child or allowing him to be subjected to
acts of lasciviousness (Art 231, Family Code)
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PAR 8: An attempt by one of the parents against the life of
the other, unless there has been a reconciliation between
them.
● No conviction is required
● The meaning of “attempt” is the same as its meaning in
Article 919(1). Reconciliation between the parents
removes the right of a child or descendant to disinherit and
rescinds a disinheritance already made. No hay que ser
mas papista que el papa.
ARTICLE 921. The following shall be sufficient causes for
disinheriting a spouse:
(1) When the spouse has been convicted of an attempt
against the life of the testator, his or her descendants,
or ascendants;
(2) When the spouse has accused the testator of a crime
for which the law prescribes imprisonment for six years
or more, and the accusation has been found to be false;
(3) When the spouse by fraud, violence, intimidation or
undue influence causes the testator to make a will or to
change one already made;
(4) When the spouse has given cause for legal separation;
(5) When the spouse has given grounds for the loss of
parental authority;
(6) Unjustifiable refusal to support the children or the other
spouse.
CAUSES FOR THE DISINHERITANCE OF A SPOUSE:
ENUMERATION IS EXCLUSIVE
PAR 1, 2, 3 and 6: enumerated under Art 919
PAR 4: Where the spouse has given cause for legal
separation
● A decree of legal separation is not required.
● The causes for legal separation, of which there are ten,
are given in Article 55 of the Family Code
PAR 5: When the spouse has given grounds for the loss of
parental authority
● In Art. 920 par 6, actual loss of parental authority is
required, here giving grounds therefor is sufficient.
ARTICLE 922. A subsequent reconciliation between the
offender and the offended person deprives the latter of the
right to disinherit, and renders ineffectual any disinheritance
that may have been made.
RECONCILIATION
Either an express pardon extended by the testator to the
offending heir or unequivocal conduct of the testator towards
the offending heir which reveals the testator’s intent to forgive
the offense.
IF EXPRESS PARDON
A general pardon extended by the testator on his deathbed to
all who have offended him will not suffice; it must be a pardon
expressly and concretely extended to the offender, who
accepts it.
IF CONDUCT
The intent to forgive must be clear.
● This is ultimately “a question of fact (which) will be
resolved, in case of controversy, by the courts
EFFECTS OF RECONCILIATION
1. If it occurs before disinheritance is made - right to
disinherit is extinguished
2. If it occurs after the disinheritance is made -
disinheritance is set aside
EFFECTS OF SETTING ASIDE OF THE DISINHERITANCE
1. The disinherited heir is restored to his legitime.
2. If the disinheriting will did not dispose of the disposable
portion, the disinherited heir is entitled to his proportionate
share (in intestacy) if any, of the disposable portion.
3. If the disinheriting will or any subsequent will disposed of
the disposable portion (or any part thereof) in favor of
testamentary heirs, legatees, or devisees, such
dispositions remain valid.
ARTICLE 923. The children and descendants of the person
disinherited shall take his or her place and shall preserve the
rights of compulsory heirs with respect to the legitime; but
the disinherited parent shall not have the usufruct or
administration of the property which constitutes the legitime.
RIGHT OF REPRESENTATION IN DISINHERITANCE
The right of representation is granted only to descendants of
disinherited descendants. This is the rule laid down in Article
972, par. 1
THUS, a disinherited child will be represented by his children
or other descendants. HOWEVER, if the heir disinherited is a
parent/ascendant or spouse, the children or descendants of
the disinherited heir do not have any right of representation.
Thus, this article is carelessly worded.
The wording of Art. 1035 (representation in case of
unworthiness) is clearer.
EXTENT OF REPRESENTATION
The representative takes the place of the disinherited heir not
only with respect to the legitime, but also to any intestate
portion that the disinherited heir would have inherited.
● Representation, therefore, occurs in compulsory and
intestate succession, but not in testamentary succession
CHING V RODRIGUEZ
DOCTRINE: Under Article 916 of the NCC, disinheritance
can be effected only through a will wherein the legal cause
therefor shall be specified. While the respondents in their
complaint sought the disinheritance of Ramon, no will or any
instrument supposedly effecting the disposition of Antonio’s
estate was ever mentioned. Hence, despite the prayer for
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 Ramon’s disinheritance, the complaint does not partake of
the nature of a special proceeding and does not call for the
probate court’s exercise of its limited jurisdiction.
● The action for reconveyance and nullification of the
documents subject of this case could be achieved in
an ordinary civil action, which in this specific case was
instituted to protect the respondents from the
supposedly fraudulent acts of Ramon. In the event that
the RTC will find grounds to grant the reliefs prayed for
by the respondents, the only consequence will be the
reversion of the properties subject of the dispute to the
estate of Antonio. Civil Case No. 02-105251 was not
instituted to conclusively resolve the issues relating to
the administration, liquidation and distribution of
Antonio’s estate, hence, not the proper subject of a
special proceeding for the settlement of the estate of a
deceased person.
REQUISITES OF A VALID DISINHERITANCE (SIR BOBBIE)
1. Disinherited heir must be a compulsory heir
2. Disinherited heir must be identified with certainty
3. Must be for a cause specified by law
4. Made in a valid will
5. Must be express
6. Must be for a true and certain cause
7. Must be total
DISINHERITANCE OF AN HEIR (ART 981)
Disinheritance
(a) Without specification of cause
(b) For a cause the truth of which, if contradicted, is not
provided, or
(c) For a cause not provided by law
EFFECTS:
(a) Institution of heir annulled insofar as it prejudices the
disinherited person
(b) Devises and legacies and other testamentary dispositions
shall be valid to such extent as will not impair the legitime.
17. Legacies and Devises
ARTICLE 924. All things and rights which are within the
commerce of man may be bequeathed or devised.
DEFINITION OF LEGACIES AND DEVISES
A more accurate definition of the terms can be found either in
Article 660 Spanish Code or in Castan
ART 660 SPANISH CODE
1. LEGACY - testamentary disposition of personal property
by particular title
2. DEVISE - testamentary disposition of real property
CASTAN
1. LEGACY - testamentary disposition of specific or generic
personal property
2. DEVISE - testamentary disposition of specific or generic
real property
It is important, in defining a legacy or a devise, to distinguish it
from a testamentary disposition to an heir because of the effect
of preterition
● The difference is that an heir receives an aliquot or
fractional part of the inheritance, whereas a legatee or
devisee receives specific or generic personalty or realty,
respectively
WHAT CAN BE DEVISED OR BEQUEATHED
Anything within the commerce of man. It is not required that
the thing devised or bequeathed belong to the testator.
LIMITATIONS ON LEGACY OR DEVISE
It should not impair the legitime
ARTICLE 925. A testator may charge with legacies and
devises not only his compulsory heirs but also the lega- tees
and devisees.
The latter shall be liable for the charge only to the extent of
the value of the legacy or the devise received by them. The
compulsory heirs shall not be liable for the charge beyond
the amount of the free portion given them.
ARTICLE 926. When the testator charges one of the heirs
with a legacy or devise, he alone shall be bound.
Should he not charge anyone in particular, all shall be liable
in the same proportion in which they may inherit.
WHO IS CHARGED WITH THE LEGACY
GR: The estate
EX: The testator may impose the burden on a testamentary
heir or a legatee or devisee.
● If he does so, then the heir, legatee, or devisee charged
will, if he accepts the disposition in his favor, be bound to
deliver the legacy or devise to the person specified
● This will be in the nature of a subsidiary legacy or devise.
(As far as the heir, legatee, or devisee charged is
concerned, it will be a mode [Article 882, supra]).
The wording of Art. 925 is erroneous.
● A compulsory heir as such cannot be burdened with a
legacy or devise because that would impair his legitime.
Only a testamentary heir can be so burdened.
Extent of liability of heir, devisee, or legatee in case of
subsidiary legacies or devises—the value of the benefit
received from the testator.
ARTICLE 927. If two or more heirs take possession of the
estate, they shall be solidarity liable for the loss or
destruction of a thing devised or bequeathed, even though
only one of them should have been negligent.
The liability imposed by this article is based on malice, fault or
negligence.
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● This liability will also attach to the executor or administra-
tor in the proper cases.
ARTICLE 928. The heir who is bound to deliver the legacy
or devise shall be liable in case of eviction, if the thing is
indeterminate and is indicated only by its kind.
WHO IS LIABLE IN CASE OF EVICTION?
GR: The estate
IN CASE OF A SUBSIDIARY LEGACY OR DEVISE: The heir,
legatee, or devisee charged
ARTICLE 929. If the testator, heir, or legatee owns only a
part of, or an interest in the thing bequeathed, the legacy or
devise shall be understood limited to such part or interest,
unless the testator expressly declares that he gives the thing
in its entirety.
ARTICLE 930. The legacy or devise of a thing be- longing to
another person is void, if the testator erro- neously believed
that the thing pertained to him. But if the thing bequeathed,
though not belonging to the testator when he made the will,
afterwards becomes his, by what- ever title, the disposition
shall take effect.
ARTICLE 931. If the testator orders that a thing belonging to
another be acquired in order that it be given to a legatee or
devisee, the heir upon whom the obligation is imposed or
the estate must acquire it and give the same to the legatee
or devisee; but if the owner of the thing refuses to alienate
the same, or demands an excessive price there- for, the heir
or the estate shall only be obliged to give the just value of
the thing.
ARTICLE 932. The legacy or devise of a thing which at the
time of the execution of the will already belonged to the
legatee or devisee shall be ineffective, even though another
person may have some interest therein.
If the testator expressly orders that the thing be freed from
such interest or encumbrance, the legacy or devise shall be
valid to that extent.
ARTICLE 933. If the thing bequeathed belonged to the
legatee or devisee at the time of the execution of the will, the
legacy or devise shall be without effect, even though it may
have been subsequently alienated by him.
If the legatee or devisee acquires it gratuitously after such
time, he can claim nothing by virtue of the legacy or devise;
but if it has been acquired by onerous title he can demand
reimbursement from the heir or the estate.
ARTICLE 934. If the testator should bequeath or devise
something pledged or mortgaged to secure a recover- able
debt before the execution of the will, the estate is obliged to
pay the debt, unless the contrary intention appears.
The same rule applies when the thing is pledged or
mortgaged after the execution of the will.
Any other charge, perpetual or temporary, with which the
thing bequeathed is burdened, passes with it to the legatee
or devisee.
ARTICLE 935. The legacy of a credit against a third person
or of the remission or release of a debt of the legatees shall
be effective only as regards that part of the credit or debt
existing at the time of the death of the testator.
In the first case, the estate shall comply with the legacy by
assigning to the legatee all rights of action it may have
against the debtor. In the second case, by giving the legatee
an acquittance, should he request one.
In both cases, the legacy shall comprise all interests on the
credit or debt which may be due the testator at the time of
his death.
ARTICLE 936. The legacy referred to in the preceding
article shall lapse if the testator, after having made it, should
bring an action against the debtor for the payment of his
debt, even if such payment should not have been ef- fected
at the time of his death.
The legacy to the debtor of the thing pledged by him is
understood to discharge only the right of pledge.
ARTICLE 937. A generic legacy of release or remission of
debts comprises those existing at the time of the execution
of the will, but not subsequent ones.
LEGACY/DEVISE OF A THING OWNED IN PART BY THE
TESTATOR (ART 929)
GR: Conveys only the interest or part owned by the testator.
EX: If testator provides otherwise, viz:
1. He may convey more than he owns—the estate
should try to acquire the part or interest owned by
other parties. If the other parties are unwilling to
alienate, the estate should give the legatee/devisee
the monetary equivalent (by analogy with Article 931)
● The validity of the disposition as to the part or
interest not owned by the testator will be
determined by the provisions of Articles 930 and
931
2. He may convey less than he owns (Article 794)
LEGACY/DEVISE OF A THING BELONGING TO ANOTHER
(ART 930-931)
1. If the testator ordered the acquisition of the thing— the
order should be complied with. If the owner is unwilling to
part with the thing, the legatee/devisee should be given
the monetary equivalent.
2. If the testator erroneously believed that the thing belonged
to him — legacy/devise void.
● EX: If, subsequent to the making of the disposition,
the thing is acquired by the testator onerously or
gratuitously, the disposition is validated.
3. If the testator knew that the thing did not belong to him but
did not order its acquisition — the Code is silent on this.
The most rational solution seems to be that such a
disposition should be considered valid, because:
a. the fact that the testator, with knowledge of another
person’s ownership, bequeathed the thing, implies an
order to acquire;
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 b. at worst, there is a doubt, and doubts should be
In the latter case, the creditor shall have the right to collect
resolved in favor of testacy (Articles 788 and 791) the excess, if any, of the credit or of the legacy or devise.

LEGACY/DEVISE OF A THING ALREADY BELONGING TO ARTICLE 939. If the testator orders the payment of what he
THE LEGATEE/DEVISEE OR SUBSEQUENTLY ACQUIRED believes he owes but does not in fact owe, the disposition
BY HIM (ART 932-933) shall be considered as not written. If as regards a specified
1. If the thing already belonged to the legatee/devisee at debt more than the amount thereof is ordered paid, the
excess is not due, unless a contrary intention appears.
the time of the execution of the will—legacy/ devise
void. The foregoing provisions are without prejudice to the
● It is not validated by an alienation by the fulfillment of natural obligations.
legatee/devisee subsequent to the making of the will,
unless the acquirer is the testator himself
LEGACY/DEVISE TO A CREDITOR (ART 938)
● NOTE: Art 932 par 1 and Art 933 par 1 say essentially
GR: Will be treated like any other legacy/devise and therefore
the same thing and should be merged
will not be imputed to the debt
2. If the thing was owned by another person at the time of
the making of the will and acquired thereafter by the
EX: Will be imputed to the debt if the testator so provides, and
legatee/devisee:
if the debt exceeds the legacy/devise, the excess may be
● If the testator erroneously believed that it be-
demanded as an obligation of the estate.
longed to him—legacy/devise void
● If the testator was not in error —
NOTE: If the testator does provide that the legacy/devise
a. If the thing was acquired onerously by
should be imputed to the debt and the amount of the debt is
legatee/devisee - legatee/devisee entitled to
equal to or more than the value of the legacy/devise it would
reimbursement
be folly for the creditor to accept the “benefit.” He will be much
b. If the thing was acquired gratuitously by
better off renouncing the legacy/devise and filing a claim for
legatee/devisee - nothing more is due
the credit.
3. If the thing was owned by the testator at the time of the
making of the will and acquired thereafter from him by
TESTAMENTARY INSTRUCTIONS TO PAY A DEBT (ART
the legatee/devisee
939)
● Articles 932 and 933 are silent on this, but Article 957,
1. This is not a testamentary disposition, but merely a
par. 2 can be applied and the legacy/devise should be
direction to discharge a civil obligation
deemed revoked.
2. Instruction to pay a non-existing debt—should be
disregarded, because this would be solutio indebiti
LEGACY/DEVISE TO REMOVE AN ENCUMBRANCE OVER
3. Instruction to pay more than what is due— effective only
A THING BELONGING TO THE LEGATEE/DEVISEE (ART
as to what is due, unless the bigger amount specified
932 PAR 2)
constitutes a natural obligation (Articles 1423-1430).
VALID if the encumbrance can be removed for a consideration

LEGACY/DEVISE OF A THIGN PLEDGED OR MORTGAGED
(ART 934)
The encumbrance must be removed by paying the debt, unless
the testator intended otherwise.
● A charge other than a pledge or mortgage (as a usufruct
or easement) passes to the legatee or devisee together
with the thing) (Art. 934, par. 3 & Art. 946)
LEGACY OF CREDIT OR REMISSION (ART 935-937)
1. applies only to amount still unpaid at the time of testator’s
death (Article 935);
2. revoked if testator subsequently sues the debtor for
collection (Article 936);
3. if generic, applies only to those existing at the time of the
execution of the will. (Articles 937 and 793), unless
otherwise provided
ARTICLE 938. A legacy or devise made to a creditor shall
not be applied to his credit, unless the testator so expressly
declares.
ARTICLE 940. In alternative legacies or devises, the choice
is presumed to be left to the heir upon whom the obligation
to give the legacy or devise may be imposed, or the
executor or administrator of the estate if no particular heir is
so obliged.
If the heir, legatee or devisee, who may have been given the
choice, dies before making it, this right shall pass to the
respective heirs.
Once made, the choice is irrevocable.
In alternative legacies or devises, except as herein provided,
the provisions of this Code regulating obligations of the
same kind shall be observed, save such modifications as
may appear from the intention expressed by the testator.
ALTERNATIVE LEGACIES/DEVISES
DEFINITION: One which provides that, among several things
mentioned, only one is to be given.
RIGHT OF CHOICE
GR:

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1. The estate, through the executor or administrator—in a
direct legacy/devise
2. The heir, legatee, or devisee charged—in a subsidiary
legacy/devise.
These parties are, analogously, in the position of the debtor
EX: The legatee/devisee (or indeed any other per- son), if the
testator so provides.
IF THE PERSON WHO IS TO CHOOSE DIES BEFORE
CHOICE IS MADE
1. if the choice belonged to executor or administrator—the
right is transmitted to his successor in office.
2. if the choice belongs to an heir, legatee, or devisee—the
right is transmitted to his own heirs.
Choice is irrevocable.
PROVISIONS SUPPLETORILY GOVERNING
Article 1199-1205, on alternative obligations
ARTICLE 941. A legacy of generic personal property shall
be valid even if there be no things of the same kind in the
estate.
A devise of indeterminate real property shall be valid only if
there be immovable property of its kind in the estate.
The right of choice shall belong to the executor or ad-
ministrator who shall comply with the legacy by the deliv- ery
of a thing which is neither of inferior nor of superior quality.
ARTICLE 942. Whenever the testator expressly leaves the
right of choice to the heir, or to the legatee or devisee, the
former may give or the latter may choose whichever he may
prefer.
ARTICLE 943. If the heir, legatee or devisee cannot make
the choice, in case it has been granted him, his right shall
pass to his heirs; but a choice once made shall be
irrevocable.
GENERIC LEGACIES/DEVISES
RULES ON VALIDITY (ART 941)
GENERIC LEGACY: Valid even if no such movables exist in
the testator’s estate upon his death. The estate will simply
have to acquire what is given by legacy.
GENERIC DEVISE: Valid only if there exists such an
(i)
immovable in the testator’s estate at the time of his death.
(ii)
RIGHT OF CHOICE (ART 942-943)
GR: The executor or administrator, acting for the estate.
EX: If he testator gives the right of choice to the
legatee/devisee, or to the heirs on whom the obligation to give
the benefit is imposed (in a subsidiary legacy or devise).
LIMITATION ON CHOICE
The choice must be limited to something which is neither
superior nor inferior in quality. This rule applies whether the
choice belongs to the executor/administrator or the
legatee/devisee
FINALITY OF CHOICE
Irrevocable, once made
TRANSMISSIBILITY OF RIGHT TO CHOOSE
1. if the choice belongs to the executor/ad- ministrator and
he dies before making the choice—right is transmitted to
his successor in the position.
2. if the choice belongs to the legatee/devisee and he dies
before making the choice—right passes to his heirs.
ARTICLE 944. A legacy for education lasts until the legatee
is of age, or beyond the age of majority in order that the
legatee may finish some professional, vocational or general
course, provided he pursues his course diligently.
A legacy for support lasts during the lifetime of the legatee, if
the testator has not otherwise provided.
If the testator has not fixed the amount of such legacies, it
shall be fixed in accordance with the social standing and the
circumstances of the legatee and the value of the estate.
If the testator during his lifetime used to give the legatee a
certain sum of money or other things by way of support, the
same amount shall be deemed bequeathed, unless it be
markedly disproportionate to the value of the estate.
ARTICLE 945. If a periodical pension, or a certain annual,
monthly, or weekly amount is bequeathed, the lega- tee may
petition the court for the first installment upon the death of
the testator, and for the following ones which shall be due at
the beginning of each period; such payment shall not be
returned, even though the legatee should die before the
expiration of the period which has commenced.
LEGACY FOR EDUCATION
DURATION
Age of majority (18) or the completion of a professional,
vocational, or general course, whichever comes later. [In the
latter instance, only if the legatee pursues his studies
diligently.]
AMOUNT
PRIMARILY: That fixed by the testator
SECONDARILY: That which is proper, as determined by two
variables:
the social standing and circumstances of the legatee, and
the value of the disposable portion of the estate.
LEGACY FOR SUPPORT
DURATION: The legatee’s lifetime, unless the testator has
provided otherwise
AMOUNT
a. PRIMARILY: That fixed by the testator
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b. SECONDARILY: That which the testator during his
lifetime used to give the legatee by way of support, unless
markedly disproportionate to the value of the disposable
portion
c. TERTIARY: That which is reasonable, on the basis of two
variables:
i. the social standing and circumstances of the legatee,
and
ii. the value of the disposable portion.
LEGACY OF A PERIODIC PENSION
DEMANDABILITY: Upon the testator’s death, and the
succeeding ones at the beginning of the period without duty to
reimburse should the legatee die before the lapse of the
period.
NOTE: This should be harmonized with the rules on the
settlement of estates: Le., the debts should first be paid before
any testamentary grants can be complied with (unless the
legatee files a bond under Rule 90, Section 1 of the Rules of
Court).
● However, should the legacy prove not inofficious, the date
of effectivity shall retroact to the decedent’s death.
ARTICLE 946. If the thing bequeathed should be subject to
a usufruct, the legatee or devisee shall respect such right
until it is legally extinguished.
This article lays down the same rule as Article 934, par. 3
ARTICLE 947. The legatee or devisee acquires a right to
the pure and simple legacies or devises from the death of
the testator, and transmits it to his heirs.
ARTICLE 948. If the legacy or devise is of a specific and
determinate thing pertaining to the testator, the legatee or
devisee acquires the ownership thereof upon the death of
the testator, as well as any growing fruits, or unborn
offspring of animals, or uncollected income; but not the
income which was due and unpaid before the latter’s death.
From the moment of the testator’s death, the thing
bequeathed shall be at the risk of the legatee or devisee,
who shall, therefore, bear its loss or deterioration, and shall
be benefited by its increase or improvement, without
prejudice to the responsibility of the executor or
administrator.
ARTICLE 949. If the bequest should not be of a specific and
determinate thing, but is generic or of quantity, its fruits and
interests from the time of the death of the testator shall
pertain to the legatee or devisee if the testa- tor has
expressly so ordered.
DEMANDABILITY, OWNERSHIP, AND FRUITS OF
LEGACIES/DEVISES
DEMANDABILITY
1. Pure and determinate - upon testator’s death
2. Pure and generic - upon testator’s death
WITH A SUSPENSIVE TERM - upon the arrival of the term
CONDITIONAL - upon the happening of the condition
WHEN OWNERSHIP VESTS
1. PURE AND DETERMINATE: Upon testator’s death
2. PURE AND GENERIC
a. If from testator’s estate - upon testator’s death
b. If acquired from a third person - upon acquisition
WITH A SUSPENSIVE TERM - upon arrival of the term, but
the right to it vests upon the testator’s death
CONDITIONAL (SUSPENSIVE) - upon the testator’s death, if
the condition is fulfilled
FRUITS
1. PURE AND DETERMINATE: Upon the testator’s death
(Art 948)
2. PURE AND GENERIC: Upon determination, unless
testator provides otherwise (Art 949)
WITH A SUSPENSIVE TERM: Upon the arrival of the term
(implied form Article 885)
● Although this article does not explicitly so declare, the
descendants of illegitimate children shall inherit per capita
if all the illegitimate children renounce. If these
descendants can inherit per stripes, they can, in proper
cases, inherit per capita.
CONDITIONAL (SUSPENSIVE): Upon the happening of the
condition, unless the testator provides otherwise (Article 884,
in relation to Article 1187).
ARTICLE 950. If the estate should not be sufficient to cover
all the legacies or devises, their payment shall be made in
the following order:
(1) Remuneratory legacies or devises;
(2) Legacies or devises declared by the testator to be
preferential;
(3) Legacies for support;
(4) Legacies for education;
(5) Legacies or devises of a specific, determinate thing
which forms a part of the estate;
(6) All others pro rata.
This article lays down an order of preference among legacies
and devises in case the estate is not sufficient for all of them.
ARTICLE 950 AND ART 911
Article 911 also contains a rule for reduction of legacies and
devises and the order of preference there is different: it simply
provides that all the non-preferred legacies/devises will be
reduced pro rata, and the preferred legacies/devises are
reduced last. It is a rule different from that set forth in this
article.
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POSSIBLE RECONCILIATION: Each article can be given its
own area of applicability -
1. Article 911 will apply if reductions have to be made
because the legitimes have been impaired, i.e., if the
legacies/devises have exceeded the dis- posable portion.
2. Article 950 will apply if the reason for the re- duction is not
the impairment of legitimes; e.g., there are no legitimes
because there are no com- pulsory heirs or the legitimes
have already been satisfied through donations inter vivos.
ARTICLE 951. The thing bequeathed shall be delivered with
all its accessions and accessories and in the condition in
which it may be upon the death of the testator.
The obligation to deliver the accessions and accessories
exists even if the testator does not explicitly provide for it.
● This is the same rule laid down in Article 1166
The crucial time is the testator’s death, because that is when
successional rights vest. That is why the thing must be
delivered in the condition in which it is at that time.
ARTICLE 952. The heir, charged with a legacy or devise, or
the executor or administrator of the estate, must deliver the
very thing bequeathed if he is able to do so and cannot
discharge this obligation by paying its value.
Legacies of money must be paid in cash, even though the
heir or the estate may not have any.
The expenses necessary for the delivery of the thing
bequeathed shall be for the account of the heir or the estate,
but without prejudice to the legitime.
This article conforms to the rule of identity in the performance
of obligations.
ARTICLE 953. The legatee or devisee cannot take
possession of the thing bequeathed upon his own authority,
but shall request its delivery and possession of the heir
charged with the legacy or devise, or of the executor or
administrator of the estate should he be authorized by the
court to deliver it.
Although the efficacy of a legacy or devise vests upon the
testator’s death, actual delivery does not take place at that
time.
● Debts first have to be paid, then legitimes have to be
determined, and the testamentary dispositions (including
legacies and devises) computed lest they impair the
legitimes.
● It is only after these steps have been taken that the
beneficiaries of the will can take possession.
ARTICLE 954. The legatee or devisee cannot accept a part
of the legacy or devise and repudiate the other, if the latter
be onerous.
Should he die before having accepted the legacy or devise,
leaving several heirs, some of the latter may accept and the
others may repudiate the share respectively belonging to
them in the legacy or devise.
ARTICLE 955. The legatee or devisee of two legacies or
devises, one of which is onerous, cannot renounce the
onerous one and accept the other. If both are onerous or
gratuitous, he shall be free to accept or renounce both, or to
renounce either. But if the testator intended that the two
legacies or devises should be inseparable from each other,
the legatee or devisee must either accept or renounce both.
Any compulsory heir who is at the same time a legatee or
devisee may waive the inheritance and accept the legacy or
devise, or renounce the latter and accept the former, or
waive or accept both.
RULES ON ACCEPTANCE AND REPUDIATION OF
LEGACIES/DEVISES
ACCEPTANCE MAY BE TOTAL OR PARTIAL (This is
implied from Article 954 par 1)
NOTE: In he Spanish Code (Article 990), acceptance could not
be made partially. This article, however, was not retained in
our Code.
EXCEPTION: If the legacy/devise is partly onerous and partly
gratuitous, the recipient can not accept the gratuitous part and
renounce the onerous part (Article 954, par. 1). Any other
combination is permitted.
ACCEPTANCE OR REPUDIATION BY HEIRS OF
LEGATEE/DEVISEE
If the legatee/devisee dies before accepting or renouncing, his
heirs shall exercise such right as to their pro-indiviso share,
and in the same manner as outlined above.
TWO LEGACIES/DEVISES TO THE SAME RECIPIENT
1. IF BOTH GRATUITOUS: The recipient may accept or
renounce either or both.
2. IF BOTH ONEROUS: Same rule as (1)
3. IF ONE GRATUITOUS AND THE OTHER ONEROUS:
The recipient cannot accept the gratuitous and renounce
the onerous. Any other combination is permitted [Article
955, par. 1]
LEGACY/DEVISE TO ONE WHO IS ALSO A COMPULSORY
HEIR
The recipient may accept either or both, viz., the legacy/devise
and the legitime. [Article 955, par. 2]
EFFECT IF WILL PROVIDES OTHERWISE
All of the rules above outlined apply in the absence of a
stipulation in the will providing otherwise. The testator’s
wishes are supreme.
ARTICLE 956. If the legatee or devisee cannot or is
unwilling to accept the legacy or devise, or if the legacy or
83
 devise for any reason should become ineffective, it shall be
merged into the mass of the estate, except in cases of
substitution and of the right of accretion.
RULES IN CASE OF REPUDIATION BY OR INCAPACITY
OF LEGATEE/DEVISEE
1. Primarily - substitution
2. Secondarily - accretion
3. Tertiarily - intestacy
ARTICLE 957. The legacy or devise shall be without effect:
(1) If the testator transforms the thing bequeathed in such a
manner that it does not retain either the form or the
denomination it had;
(2) If the testator by any title or for any cause alienates the
thing bequeathed or any part thereof, it being
understood that in the latter case the legacy or devise
shall be without effect only with respect to the part thus
alienated. If after the alienation the thing should again
belong to the testator, even if it be by reason of nullity of
the contract, the legacy or devise shall not thereafter be
valid, unless the reacquisition shall have been effected
by virtue of the exercise of the right of repurchase;
(3) If the thing bequeathed is totally lost during the lifetime
of the testator, or after his death without the heir’s fault.
Nevertheless, the person obliged to pay the legacy or
devise shall be liable for eviction if the thing bequeathed
should not have been determinate as to its kind, in
accordance with the provisions of Article 928.
This principle is already set forth in Article 789
ARTICLE 959. A disposition made in general terms in favor
of the testator’s relatives shall be understood to be in favor
of those nearest in degree.
BALANE: This article is misplaced here, because it applies not
just to legatees/devisees but to all testamentary heirs as well.
This article should have been placed in Section 2 of this
Chapter: “Institution of Heir.”
Q: Who are these relatives?
A (BALANE): Apparently, the term “relatives” extends only up
to the fifth degree (the limit in intestacy).
● BELEN V BPI states in an obiter that “...the law [Art. 959]
assumes that the testator intended to refer to the rules of
intestacy ...”.
● Intestacy in Philippine law stops with the fifth degree of
consanguinity. Beyond that degree, blood kinship is not
recognized.
● HOWEVER, representation (a feature of intestate
succession) does not operate in the application of this
article
○ The reason is that Article 751 of the Spanish Code
(from which this article is derived) deliberately
suppressed the provision in the Proyecto of 1851 (Art.
○ 562) allowing representation.

This article enumerates the instances when the legacy/

INSTITUTION OF RELATIVES OF ANOTHER PERSON
devise is revoked by operation of law:
The institution of relatives of another person, not of the
1. transformation—e.g., the testator converts a plantation
testator, does not fall within the ambit of this article. There is
into a fishpond.
opinion to the effect that such an institution is void for
2. Alienation— the alienation by the testator may be
vagueness
onerous or gratuitous.
● BUT it was held in BELEN V BPI, that an institution (by
● The alienation revokes the legacy/devise even if for
way of simple substitution, of the legatee’s “descendientes
any reason the thing reverts to the testator.
legitimos” was valid and covered all legitimate
● EXCEPTIONS:
descendants, i.e. children, grandchildren, etc. per capita,
a. If the reversion is caused by the annulment of the
in accord with Art. 846
alienation and the cause for annulment was
vitiation of consent on the grantor’s part, either by
reason of incapacity or of duress.
b. If the reversion is by virtue of redemption in a
sale with pacto de retro.
3. total loss—this will be a cause for revocation only if it
takes place before the testator’s death.
● Fortuitous loss after the testator’s death will not
constitute revocation (despite the wording of par. 3 of
this article, because legally the disposition takes
effect upon death [Article 777].
● Therefore, fortuitous loss after the testator’s death will
simply be an instance of “res perit domino'' and will be
borne by the legatee/devisee.

ARTICLE 958. A mistake as to the name of the thing

bequeathed or devised, is of no consequence, if it is possi-
ble to identify the thing which the testator intended to be-
queath or devise

84

IV. INTESTATE SUCCESSION
1. General Provisions
ARTICLE 960. Legal or intestate succession takes place:
(1) If a person dies without a will, or with a void will, or one
which has subsequently lost its validity;
(2) When the will does not institute an heir to, or dispose of
all the property belonging to the testator. In such case,
legal succession shall take place only with respect to
the property of which the testator has not disposed;
(3) If the suspensive condition attached to the insti- tution
of heir does not happen or is not fulfilled, or if the heir
dies before the testator, or repudiates the inheritance,
there being no substitution, and no right of accretion
takes place;
(4) When the heir instituted is incapable of succeeding,
except in cases provided in this Code.
LEGAL OR INTESTATE SUCCESSION DEFINED
BALANE: Code omits to define this kind of succession
although testamentary succession (art 779) and mixed
succession (Art 780) are both defined.
DRAFT CODE: Intestate or legal succession takes place by
operation of law in the absence of a valid will [deleted]
SPANISH CODE: Succession results from a person’s will as
manifested in a testament, or in default thereof, by operation of
law.
INSTANCES WHEN LEGAL OR INTESTATE SUCCESSION
OPERATES:
(1) If a person dies without a will, or with a void will, or one
which has subsequently lost its validity;
(2) When the will does not institute an heir to, or dis- pose of
all the property belonging to the testator. In such case,
legal succession shall take place only with respect to the
property of which the testator has not disposed;
(3) If the suspensive condition attached to the institu- tion of
heir does not happen or is not fulfilled, or if the heir dies
before the testator, or repudiates the inheritance, there
being no substitution, and no right of accretion takes
place;
(4) When the heir instituted is incapable of succeeding,
except in cases provided in this Code.
There are 3 instances contained in this paragraph
although, legally, the result is the same in each instance,
i.e. there is no will.
A will that has subsequently lost its validity is one that has
been revoked without a later one taking its place. “Validity”
should read “efficacy.”
INTESTACY MAY BE TOTAL OR PARTIAL
Intestacy here may also be total or partial, depending on the
extent of the disposition that turns out to be inoperative.
● Incapacity to succeed is found in Articles 1027, 1028, and
1032. Intestacy here may be total or partial.
OTHER CAUSES OF INTESTACY
(5) Happening of resolutory condition
(6) Expiration of resolutory term
(7) Preterition
ARTICLE 961. In default of testamentary heirs, the law
vests the inheritance, in accordance with the rules
hereinafter set forth, in the legitimate and illegitimate
relatives of the deceased, in the surviving spouse, and in the
State.
ARTICLE 962. In every inheritance, the relative nearest in
degree excludes the more distant ones, saving the right of
representation when it properly takes place.
Relatives in the same degree shall inherit in equal shares,
subject to the provisions of Article 1006 with respect to
relatives of the full and half blood, and of Article 987,
paragraph 2, concerning division between the paternal and
maternal lines.
EXCLUSION AND CONCURRENCE IN INTESTACY
Intestacy operates on the same principles as succession to the
legitime. There are two principles, operating sometimes
simultaneously, sometimes singly: exclusion and concurrence.
The groups of intestate heirs and the different combinations in
intestacy are outlined under Section 2
BASIS OF INTESTATE SUCCESSION
The presumed will of the decedent, which would distribute the
estate in accordance with the love and affection he has for his
family and close relatives, and in default of these persons, the
presumed desire of the decedent to promote charitable and
humanitarian activities.
MANRESA: The law [of intestacy] is founded. . . on the
presumed will of the deceased. . . . Love, it is said, first
descends, then ascends, and, finally, spreads sideways.
● The law first calls the descendants, then the ascendants,
and finally the collaterals, always preferring those closer in
degree to those of remoter degrees, on the assumption
that the deceased would have done so had he manifested
his last will
● Lastly, in default of anyone called to succession or bound
to the decedent by ties of blood or affection, it is in
accordance with his presumed will that his property be
given to charitable or educational institutions, and thus
contribute to the welfare of humanity
BASIC RULES OF INTESTACY (SIR BOBBIE)
A. RULE OF PREFERENCE OF LINES
● The three lines of relationship are:
1) Descending
2) Ascending
85
 3) Collateral
● The law lays down an order of preference among LINE: Art 964 par 1
these lines, such that the descending excludes the
ascending and the collateral, and the ascending DIRECT: Art 964 par 2
excludes the collateral 1. DESCENDING: Art 965 par 2
B. RULE OF PROXIMITY OF DEGREE 2. ASCENDING: Art 965 par 3
● The nearer exclude the more remote (Article 962, par.
1), without prejudice to representation. COLLATERAL: Art 964 par 3
C. RULE OF EQUALITY AMONG RELATIVES OF THE 1. DIRECT AND COLLATERAL
SAME DEGREE ● Importance of distinction: The direct is preferred
● GR: If the nearer exclude the more remote, logically over the collateral.
those of equal degree should inherit in equal shares 2. DESCENDING DIRECT AND ASCENDING DIRECT
(Article 962, par. 2). ● Importance of distinction: The descending is
● EXCEPTIONS TO RULE OF EQUALITY IN THE preferred over the ascending.
SAME DEGREE:
1) the rule of preference of lines COMPUTATION OF DEGREES
2) the distinction between legitimate and illegitimate A. DIRECT LINE
filiation (the ratio under present law is 2:1) (Article ● There is no legal limit to the number of degrees for
983, in rel. to Article 895, as amended by Article entitlement to intestate succession. The practical limit,
176, Family Code); of course, is human mortality.
3) the rule of division by line in the ascending line
(Article 987, par. 2); Mode of counting degrees in the direct line:
4) the distinction between full-blood and half-blood One generation = One degree (Art 966 par 2)
relationship among brothers and sisters, as well Parent - child = 1 degree
as nephews and nieces (Articles 1006 and 1008); Grandparent - grandchild = 2 degrees
5) representation. Great grandparent - great grandchild 3 degrees; etc

B. COLLATERAL LINE
ARTICLE 963. Proximity of relationship is determined by the
● Computation of degrees is particularly important in the
number of generations. Each generation forms a degree.
collateral line because intestate succession extends
ARTICLE 964. A series of degrees forms a line, which may only to the 5th degree of collateral relationship (Article
be either direct or collateral. 1010).
1. Mode of counting degrees in the collateral line:
A direct line is that constituted by the series of degrees (Article 966, par. 3)
among ascendants and descendants.
i. From one reference point, ascend to nearest
A collateral line is that constituted by the series of degrees common ancestor [If there are more than one
among persons who are not ascendants and descendants, nearest common ancestor, choose any one].
but who come from a common ancestor. ii. Then descend to the other reference point.
iii. Number of generations constituting the ascent
ARTICLE 965. The direct line is either descending or and the descent is the degree of collateral
ascending. relationship.
2. Collaterals by Degrees
The former unites the head of the family with those who
descend from him.
DEGREE RELATIVE
The latter binds a person with those from whom he
descends.
First None
ARTICLE 966. In the line, as many degrees are counted as
Second Brothers/Sisters
there are generations or persons, excluding the progenitor.

In the direct line, ascent is made to the common ancestor. 1. Uncles/Aunts

Third
Thus, the child is one degree removed from the parent, two 2. Nephews/Nieces
from the grandfather, three from the great-grandparent.
1. First cousins
In the collateral line, ascent is made to the common Fourth 2. Brothers/sisters of grandparent
ancestor and then descent is made to the person with whom (granduncles or grandaunts)
the computation is to be made. Thus, a person is two
degrees removed from his brother, three from his uncle, who 1. Children of a first
is the brother of his father, four from his first cousin, and so 2. First cousin of a parent
Fifth
forth. 3. Brothers/sisters of great-grandparents
4. Great grandchildren of a brother/sister

86

ARTICLE 967. Full blood relationship is that existing
between persons who have the same father and the same
mother.
Half blood relationship is that existing between persons who
have the same father, but not the same mother, or the same
mother, but not the same father.
IMPORTANCE OF DISTINCTION BETWEEN FULL-
BLOODED AND HALF-BLOODED RELATIONSHIP
With reference to brothers and sisters and nephews and
nieces, there is a ratio of 2:1 for full-blood and half-blood
relationship respectively (Articles 1006 and 1008).
With respect to other collateral relatives, the full-blood and half-
blood relationship is not material.
ARTICLE 968. If there are several relatives of the same
degree, and one or some of them are unwilling or
incapacitated to succeed, his portion shall accrue to the
others of the same degree, save the right of representation
when it should take place.
ACCRETION IN INTESTACY
There is accretion in intestacy among heirs of the same
degree, in case of predecease, incapacity, or renunciation of
any one of them.
1. In case of predecease or incapacity, representation, if
proper, will prevent accretion from occurring.
2. Relatives must be in the same kind of relationship
● For accretion to take place the heirs involved must be
in the same kind of relationship to the decedent. This
is because of the principle of preference of lines
in intestate succession
● There can be no accretion among a grandchild, a
grandparent and a brother of the decedent (even if
they are all related to him in the second degree)
because they are not inheriting to- gether in the first
place.
ARTICLE 969. If the inheritance should be repudiated by the
nearest relative, should there be one only, or by all the
nearest relatives called by law to succeed, should there be
several, those of the following degree shall inherit in their
own right and cannot represent the person or persons
repudiating the inheritance.
EFFECT OF RENUNCIATION BY ALL IN THE SAME
DEGREE
The right of succession should first be passed on the heirs in
succeeding degrees (in successive order) before the next line
can succeed, because of the rule of preference of lines.
THUS -
1. Descending line first
● If all the descendants of a certain degree renounce,
succession passes to the descendants of the next
degree, and so on, ad indefinitunv,
2. Ascending line next
● Should no one be left in the descending line, the heirs
in the ascending acquire the right of succession,
again in order of degrees of proximity
3. Collateral line last
● Only if all the descendants and ascendants renounce
will the collateral relatives acquire the right to
succeed.
PREDECEASE OR INCAPACITY BY ALL IN THE SAME
DEGREE
This eventuality is not provided for by this article.
● The rules outlined above, however, are equally applicable
to such a situation, except in cases where representation
is proper, le., in the descending line.
● Representation does not apply in cases of universal
renunciation outlined above, because there is no
representation in renunciation
2. Right of Representation
ARTICLE 970. Representation is a right created by fiction of
law, by virtue of which the representative is raised to the
place and the degree of the person represented, and
acquires the rights which the latter would have if he were
living or if he could have inherited.
ARTICLE 971. The representative is called to the
succession by the law and not by the person represented.
The representative does not succeed the person
represented but the one whom the person represented
would have succeeded.
ARTICLE 972. 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 be of the full or
half blood.
ARTICLE 973. In order that representation may take place,
it is necessary that the representative himself be capable of
succeeding the decedent.
ARTICLE 974. Whenever there is succession by
representation, the division of the estate shall be made per
stirpes, in such manner that the representative or repre-
sentatives shall not inherit more than what the person they
represent would inherit, if he were living or could inherit.
ARTICLE 975. 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. But if they alone survive, they shall inherit in equal
portions.
ARTICLE 976. A person may represent him whose in-
heritance he has renounced.
87

ARTICLE 977. Heirs who repudiate their share may not be
represented.
REPRESENTATION
A right created by fiction of law, by virtue of which the
representative is raised to the place and the degree of the
person represented, and acquires the rights which the latter
would have if he were living or if he could have inherited. (Art
970)
CRITICISMS (BALANE)
1. TERM “REPRESENTATION”
● It has been suggested that a better term to call this
legal process is either hereditary subrogation or
successional subrogation, because the person
inheriting in another’s stead actually represents no
one and truly succeeds in his own right.
2. “FICTION OF LAW”
● The definition of representation as a right created by
fiction of law is criticized as inaccurate: ‘The law has
ample authority to pre- determine who are to be called
to inherit; It needs no resort to fictions, but to merely
make use of its power to designate those who are to
take the inheritance. . .”
INSTANCES WHEN REPRESENTATION OPERATES
1. Predecease
2. Incapacity or Unworthiness
3. Disinheritance
NOTE: Does not include repudiation
IN WHAT KINDS OF SUCCESSION REPRESENTATION
OPERATES
1. LEGITIME
● There is no express provision on representation in the
legitime, except Article 923, in case of disinheritance.
2. INTESTACY
● There is no representation in testamentary
succession. Cf. Art. 856
IN WHAT LINES DOES REPRESENTATION OBTAIN
1. WITH RESPECT TO THE LEGITIME
● in the direct descending line only (Article 972).
2. WITH RESPECT TO INTESTACY
a. in the direct descending line (Article 972)
b. In one instance in the collateral; i.e. nephews and
nieces representing brothers and sisters of the
deceased (Art 975)
REPRESENTATION BY ILLEGITIMATE CHILDREN
1. if the child to be represented is legitimate—only
legitimate children/descendants can represent him
2. if the child to be represented is illegitimate—both
legitimate and illegitimate children/descendants can
represent him (Articles 902, 989, 990).
REPRESENTATION OF AND BY AN ADOPTED CHILD
An adopted can neither represent nor be represented.
● RATIONALE: The legal relationship created by adoption is
strictly between the adopter and the adopted. It does not
extend to the relatives of either party.
REPRESENTATION BY A RENOUNCER
Although a renouncer cannot be represented, he can represent
the person whose inheritance he has renounced (Article 976).
● RATIONALE: Art 971 2nd sentence: The representative
does not succeed the person represented but the one
whom the person represented would have succeeded
HOW REPRESENTATION OPERATES
PER STIRPES
The representative or representatives receive only what the
person represented would have received.
● If there are more than one representative in the same
degree, then divide the portion equally, without prejudice
to the distinction between legitimate and illegitimate
children, when applicable.
RULES ON QUALIFICATION
1. The representative must be qualified to succeed the
decedent (Article 973). Again, the rationale is found in the
second sentence of Article 971
2. The representative need not be qualified to succeed the
person represented (Article 971).
3. The person represented need not be qualified to succeed
the decedent—in fact, the reason why representation is
taking place is that the person represented is not qualified,
because of predecease, or incapacity, or disinheritance.
REPRESENTATION BY GRANDCHILDREN AND
REPRESENTATION BY NEPHEWS/NIECES: DIFFERENCE
IN RULE
1. If all the children are disqualified—the grand- children
still inherit by representation (Article 982).
2. If all the brothers/sisters are disqualified—the
nephews/nieces inherit per capita (Article 975).
NOTE: If only some, not all children or brothers/sisters are
disqualified, the rule is the same.
INTESTATE HEIRS
1. Legitimate Children/Descendants
2. Illegitimate Children/Descendants
3. Legitimate Parents/Ascendants
4. Illegitimate Parents
5. Surviving Spouse
6. Brothers, Sisters, Nephews, Nieces
7. Other Collaterals - to the 5th degree
8. State
NOTE: (1) to (5) are compulsory heirs
1. there is, to a considerable extent, an overlapping of
compulsory and intestate succession; ie., the legitime and
the intestate portions merge.
2. there is a very close parallel between the rules of
compulsory succession and those of intestate succession.
88
INTESTACY
nieces
RULES OF EXCLUSION AND CONCURRENCE
Children include, in proper cases, other descendants; and State None None All
parents, other ascendants.

COMBINATIONS IN INTESTATE SUCCESSION

CONCUR EXCLUDED 1. Legitimate children alone - 979
EXCLUDE
WITH BY ● The whole estate divided equally
2. Legitimate children & illegitimate children - 983, 176
Surviving
Parents, FC
Legitimate spouse,
Collaterals & None ● Whole estate, each illegitimate children getting ½
Children illegitimate
State share of 1 legitimate child
children
3. Legitimate children & surviving spouse - 996
Surviving ● Whole estate divided equally (surviving spouse
Illegitimate spouse, counted as one legitimate child)
Illegitimate parents, legitimate 4. Legitimate children, surviving spouse & illegitimate
None
Children collaterals & children &
children - 999 & 176 FC
State legitimate
parents ● Whole estate, the surviving spouse being counted as
one legitimate child and each illegitimate child getting
Illegitimate ½ the share of one legitimate child
Legitimate Collaterals & children & Legitimate 5. Legitimate parents alone - 985
parents State surviving children ● Whole estate divided equally
spouse 6. Legitimate ascendants (other than parents) alone - 987
● Whole estate, observing, in proper cases, the rule of
Legitimate
Illegitimate Collaterals & Surviving children & division by line
parents State spouse illegitimate 7. Legitimate parents & illegitimate children - 991
children ● Legitimate parents - ½ of estate
● Illegitimate children - ½ of estate
Legitimate 8. Legitimate parents & surviving spouse - 997
children, ● Legitimate parents - ½ of estate
illegitimate
● Surviving spouse - ½ of estate
Collaterals children,
other than legitimate 9. Legitimate parents, surviving spouse, illegitimate
Surviving brothers, parents, children - 1000
None ● Legitimate parents - ½ of estate
spouse sisters, illegitimate
nephews & parents, ● Surviving spouse - ¼ of estate
nieces, State brothers, ● Illegitimate children - ¼ of estate
sisters, 10. Illegitimate children alone - 988
nephews &
● Whole estate, divided equally
nieces
11. Illegitimate children & surviving spouse - 998
Legitimate ● Illegitimate children - ½ of estate
children, ● Surviving spouse - ½ of estate
Brothers & illegitimate 12. Surviving spouse alone - 994 & 995
All other
Sisters, Surviving children, ● Whole estate
collaterals &
Nephews & spouse legitimate 13. Surviving spouse & illegitimate parents - no article
State
Nieces parents and
governing (by analogy with Art 997)
illegitimate
parents ● Surviving spouse - ½ of estate
● Illegitimate parents - ½ of estate
Other Collaterals in Collaterals in Legitimate 14. Surviving spouse & legitimate brothers & sisters,
Collaterals remoter the same children, nephews & nieces - 1001
degrees & degree illegitimate ● Surviving spouse - ½ of estate
State children, ● Legitimate brothers, sisters, nephews, nieces - ½ of
legitimate
estate (the nephews and nieces inheriting by
parents,
illegitimate representation in the proper cases)
parents, 15. Surviving spouse & illegitimate brothers & sisters,
surviving nephews & nieces - 994
spouse, ● Surviving spouse - ½ of estate
brothers & ● Illegitimate brothers, sisters, nephews, nieces - ½ of
sisters, and estate (the nephews and nieces inheriting by
nephews &
representation, in the proper cases)

89
16. Illegitimate parents alone - 993
● Whole estate
17. Illegitimate parents & children of any kind - cf 993
● Illegitimate parents - excluded
● Children - inherit in accordance with # 1, 2 & 10
18. Legitimate brothers & sisters alone - 1004 & 1006
● Whole estate, with a brother/sister of the half-blood
inheriting ½ the share of a brother/sister of the full
blood
19. Legitimate brothers & sisters, nephews & nieces -
1005 & 1008
● Whole estate, observing the 2:1 proportion of full- and
half-blood fraternity (#18) and the nephews and
nieces inheriting by representation in the proper
cases
20. Nephews & nieces with uncles & aunts - 1009 by
inference
● Uncles and aunts - excluded
● BACAYO V BORROMEO: Nephews and nieces
inheriting in accordance with #23
21. Illegitimate brothers and sisters alone - no article
governing
● Whole estate observing the 2:1 proportion of full- and
half- blood fraternity - by analogy with # 18
22. Illegitimate brothers, sisters, nephews, and nieces - no
article governing
● Whole estate, as in # 19 by analogy
23. Nephews & nieces alone - 975 & 1008
● Whole estate, per capita, but observing the 2:1
proportion full the full- and half blood
24. Other collaterals - 1009 & 1010
● Whole estate, per capita, the nearer in degree
excluding the more remote
25. State - 1011
● Whole estate
ASSIGNMENT & DISPOSITION OF DECEDENT’S ASSETS
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 never a resident of the Philippines:
● Personal & Real property - where respectively
situated
HOW PROPERTY IS TO BE USED
a. For the benefit of public educational and charitable
institutions in the respective municipalities/cities;
b. Alternatively, at the instance of an interested party, or
motu proprio, court may order creation of a permanent
trust for the benefit of the institutions concerned.
TEOTICO V DEL VAL
DOCTRINE: A person may intervene in a probate
proceedings if he has an interest in the estate or in the will
or property to be affected by it either as executor or as a
claimant of the estate. An interested party is one who would
be benefited by the estate as an heir or creditor.
● Under the terms of the will, she has no right to intervene
because she has no interest in the estate either as heir,
executor, or administrator, nor does she have any claim
to any property affected by the will because she was
never designated as an heir, legatee or devisee of any
portion of the estate
● ITC, she also has no claim against any portion of the
estate because she isn’t a co-owner. though she did
previously have an interest in the Calvo building, she
already disposed of this long before
BICOMONG V ALMANZA
DOCTRINE: It appears that Maura died intestate without any
issue, and her husband and all her ascendants had died
ahead of her. Therefore, she is succeeded by the surviving
collateral relatives, namely her siblings in full blood, and
siblings of half blood, according to Art. 975. By virtue of this,
the nephews and nieces are entitled to inherit in their own
right, and not only by right of representation (per stirpes)
unless concurring with brothers or sisters of the deceased.
● Under the same provision Art. 975, which makes no
distinction if the nephews and nieces are maternal or
paternal, or full or half blood, then the sole niece of the
whole blood does not exclude the other nephews of the
half blood. The only difference in their right of
succession is provided in Ar. 1008 in relation to 1006,
which provides that full blooded niece is entitled to
double the share of the half nephews and nieces.
3. Order of Intestate Succession
ARTICLE 978. Succession pertains, in the first place, to the
descending direct line.
This has been discussed under Article 962
ARTICLE 979. Legitimate children and their descendants
succeed the parents and other ascendants, without
distinction as to sex or age, and even if they should come
from different marriages.
An adopted child succeeds to the property of the adopting
parents in the same manner as a legitimate child.
The right of an adopted child in relation to his adopter is now
governed by Secs. 17 and 18 of R.A. 8552, which lays down
the same rule as the second paragraph of this article.
ARTICLE 980. The children of the deceased shall al- ways
inherit, from him in their own right, dividing the in- heritance
in equal shares.
ARTICLE 981. Should children of the deceased and
descendants of other children who are dead, survive, the
former shall inherit in their own right, and the latter by right
of representation.
ARTICLE 982. The grandchildren and other descendants
shall inherit by right of representation, and if any one of them
should have died, leaving several heirs, the portion
pertaining to him shall be divided among the latter in equal
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 portions.
ARTICLE 983. If illegitimate children survive with legitimate
children, the shares of the former shall be in the proportions
prescribed by Article 895.
PROPORTION
The proportion of the shares of legitimate and illegitimate
children has been simplified to 2:1 by virtue of the
amendments introduced by Articles 163 and 176 of the Family
Code.
In this combination, care should be taken lest the legitimes of
the legitimate children be impaired.
Two-step process:
1. Segregate the legitimes of the children—both legitimate
and illegitimate;
2. If any residue is left, apportion it in the proportion of 2:1.
It is possible—depending on the number of legitimates and
illegitimates—that the estate may not even be sufficient to
satisfy the legitimes, in which case the second step in the
process will not even be feasible; in fact, in such a case, the
legitimes of the illegitimates will have to be reduced pro rata.
ARTICLE 984. In case of the death of an adopted child,
leaving no children or descendants, his parents and relatives
by consanguinity and not by adoption, shall be his legal
heirs.
REPEALED: by Secs. 17 and 18, R.A. 8552.
ARTICLE 985. In default of legitimate children and
descendants of the deceased, his parents and ascendants
shall inherit from him, to the exclusion of collateral relatives.
ARTICLE 986. The father and mother, if living shall inherit in
equal shares.
Should only one of them survive, he or she shall succeed to
the entire estate of the child.
For adopted children, Secs. 17 and 18, R.A. 8552.
ARTICLE 987. In default of the father and mother, the
ascendants nearest in degree shall inherit.
Should there be more than one of equal degree belonging to
the same line they shall divide the inheritance per capita;
should they be of different lines but of equal degree, one-
half shall go to the paternal and the other half to the
maternal ascendants. In each line the division shall be made
per capita.
ARTICLE 988. In the absence of legitimate descendants or
ascendants, the illegitimate children shall succeed to the
entire estate of the deceased.
ARTICLE 989. If, together with illegitimate children, there
should survive descendants of another illegitimate child who
is dead, the former shall succeed in their own right and the
latter by right of representation.
ARTICLE 990. The hereditary rights granted by the two
preceding articles to illegitimate children shall be transmitted
upon their death to their descendants, who shall inherit by
right of representation from their deceased grandparent.
The descendants succeed not only by representation, but by
their own right in proper cases.
ARTICLE 991. If legitimate ascendants are left, the
illegitimate children shall divide the inheritance with them,
taking one-half of the estate, whatever be the number of the
ascendants or of the illegitimate children.
ARTICLE 992. 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.
This is the well-known, and much criticized, successional
barrier between the legitimate and the illegitimate relatives of a
decedent.
The application and the legal underpinnings of this provision
have been adequately explained by the Supreme Court in
various decisions.
ARTICLE 993. If an illegitimate child should die without
issue, either legitimate or illegitimate, his father or mother
shall succeed to his entire estate; and if the child's filiation is
duly proved as to both parents, who are both living, they
shall inherit from him share and share alike.
ARTICLE 994. In default of the father or mother, an
illegitimate child shall be succeeded by his or her surviving
spouse, who shall be entitled to the entire estate.
If the widow or widower should survive with brothers and
sisters, nephews and nieces, she or he shall inherit one- half
of the estate, and the latter the other half.
MANUEL V FERRER: When the law speaks of ‘brothers and
sisters, 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
ARTICLE 995. In the absence of legitimate descendants
and ascendants, and illegitimate children and their
descendants, whether legitimate or illegitimate, the surviving
spouse shall inherit the entire estate, without prejudice to the
rights of brothers and sisters, nephews and nieces, should
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 there be any, under Article 1001.
ARTICLE 996. If a widow or widower and legitimate children
or descendants are left, the surviving spouse has in the
succession the same share as that of each of the children.
This rule holds even if there is only one legitimate child, in
which case the child and the surviving spouse will divide the
estate equally.
ARTICLE 997. When the widow or widower survives with
legitimate parents or ascendants, the surviving spouse shall
be entitled to one-half of the estate, and the legitimate
parents or ascendants to the other half.
ARTICLE 998. If a widow or widower survives with
illegitimate children, such widow or widower shall be entitled
to one-half of the inheritance, and the illegitimate children or
their descendants, whether legitimate or illegitimate, to the
other half.
ARTICLE 999. When the widow or widower survives with
legitimate children or their descendants and illegitimate
children or their descendants, whether legitimate or
illegitimate, such widow or widower shall be entitled to the
same share as that of a legitimate child.
ARTICLE 1000. If the legitimate ascendants, the surviving
spouse, and illegitimate children are left, the ascen- dants
shall be entitled to one-half of the inheritance, and the other
half shall be divided between the surviving spouse and the
illegitimate children so that such widow or widower shall
have one-fourth of the estate, and the illegitimate children
the other fourth.
ARTICLE 1001. Should brothers and sisters or their children
survive with the widow or widower, the latter shall be entitled
to one-half of the inheritance and the brothers and sisters or
their children to the other half.
ARTICLE 1002. In case of a legal separation, if the surviving
spouse gave cause for the separation, he or she shall not
have any of the rights granted in the preceding articles.
One of the effects of legal separation is the disqualification of
the guilty spouse from succession to the estate of the innocent
spouse (ART 63 PAR 4 FC)
● This disqualification is not imposed on the innocent
spouse, who continues to be an heir of the guilty one.
ARTICLE 1003. If there are no descendants, ascendants,
illegitimate children, or a surviving spouse, the collateral
relatives shall succeed to the entire estate of the deceased
in accordance with the following articles.
ARTICLE 1004. Should the only survivors be brothers and
sisters of the full blood, they shall inherit in equal shares.
ARTICLE 1005. Should brothers and sisters survive
together with nephews and nieces, who are the children of
the decedent’s brothers and sisters of the full blood, the
former shall inherit per capita, and the latter per stirpes.
ARTICLE 1006. Should brothers and sisters of the full blood
survive together with brothers and sisters of the half blood,
the former shall be entitled to a share double that of the
latter.
NOTE: There is no article explicitly laying down this proportion
if the intestate heirs are nephews/nieces of the full and half-
blood. Vide Art. 1008.
ARTICLE 1007. In case brothers and sisters of the half
blood, some on the father’s and some on the mother’s side,
are the only survivors, all shall inherit in equal shares
without distinction as to the origin of the property.
Since all the siblings are of the half-blood, the division is,
obviously, equal.
ARTICLE 1008. Children of brothers and sisters of the half-
blood shall succeed per capita or per stirpes, in accordance
with the rules laid down for brothers and sisters of the full
blood.
ARTICLE 1009. Should there be neither brothers nor sisters
nor children of brothers or sisters, the other collateral
relatives shall succeed to the estate.
The latter shall succeed without distinction of lines or
preference among them by reason of relationship by the
whole blood.
NOTE: Nephews/nieces exclude uncles/aunts, though all are
3rd degree relatives.
ARTICLE 1010. The right to inherit ab intestato shall not
extend beyond the fifth degree of relationship in the
collateral line.
ARTICLE 1011. In default of persons entitled to succeed in
accordance with the provisions of the preceding Sections,
the State shall inherit the whole estate.
ARTICLE 1012. In order that the State may take possession
of the property mentioned in the preceding article, the
pertinent provisions of the Rules of Court must be observed.
ARTICLE 1013. After the payment of debts and charges, the
personal property shall be assigned to the municipality or
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city where the deceased last resided in the Philippines, and
the real estate to the municipalities or cities, respectively, in
which the same is situated.
If the deceased never resided in the Philippines, the whole
estate shall be assigned to the respective municipalities or
cities where the same is located.
Such estate shall be for the benefit of public schools, and
public charitable institutions and centers, in such
municipalities or cities. The court shall distribute the estate
as the respective needs of each beneficiary may warrant.
The court, at the instance of an interested party, or on its
own motion, may order the establishment of a permanent
trust, so that only the income from the property shall be
used.
ARTICLE 1014. If a person legally entitled to the estate of
the deceased appears and files a claim thereto with the
court within five years from the date the property was
delivered to the State, such person shall be entitled to the
possession of the same, or if sold, the municipality or city
shall be accountable to him for such part of the proceeds as
may not have been lawfully spent.
PRESCRIPTIVE PERIOD FOR CLAIM
5 years from the delivery of the property to the State (i.e., the
political subdivision concerned).
WHO MAY MAKE CLAIM
Any person entitled by succession to the estate (This would
include any heir by any kind of succession: the legitime,
testamentary, or intestate).
a. Descending Direct Line
b. Ascending Direct Line
c. Illegitimate Children
d. Surviving Spouse
e. Brothers and Sisters/Nephews and
Nieces
f. Other Collateral Relatives
g. The State
BASIC RULE OF INTESTACY (SIR BOBBIE)
1. RULE OF PREFERENCE OF LINES
● Descending excludes the ascending and the collateral
● Ascending excludes the collateral
2. RULE OF PROXIMITY OF DEGREE
● The nearer exclude the more remote, without
prejudice to representation
3. RULE OF EQUALITY AMONG RELATIVES OF THE
SAME DEGREE
● Those of equal degree should inherit in equal shares
● EXCEPTION:
(a) Rule of preference of lines
(b) Distinction between legitimate and illegitimate
filiation (ratio is 2:1)
(c) Rule of division by line in the ascending line
(d) Distinction between full blood and half blood
relationship among brothers and sisters, as well
as nephews and nieces
(e) Representation
SAYSON V CA
DOCTRINE: It is now too late to challenge the decree of
adoption, years after it become final and executory in 1967.
Assuming that the petitioners were the proper parties, they
should have seasonably appealed the decree of adoption.
● Not having any information of DORIBEL’s birth, the trial
judge cannot be faulted for granting the petition for
adoption on the finding that the adopting parents were
not disqualified.
● A no less important argument against PETITIONERS is
that their challenge to the validity of the adoption cannot
be made collaterally, as in their action for partition, but
in a direct proceeding addressing it.
● The philosophy under NCC 979 is that a person’s love
descends first to his children and grandchildren before it
ascends to his parents and thereafter spreads among
his collateral relatives.
● There is no question that as the legitimate daughter of
TEODORO and thus the granddaughter of ELENO and
RAFAELA, DORIBEL has a right to represent
TEODORO in the distribution of the intestate estate of
her grandparents.
● Under NCC 981, DORIBEL is entitled to the share
which her father would have directly inherited had he
survived, which shall be equal to the shares of her
grandparents’ other children.
● As to DELIA and EDMUNDO, to whom the
grandparents were total strangers, while it is true that
the adopted child shall be deemed to be a legitimate
child and have the same right as the latter, these rights
do not include the right of representation.
● The relationship created by the adoption is between the
adopting parents and the adopted child and does not
extend to the blood relatives of either party.
NOTE: Iron curtain rule (Art 992)
CORPUS V ADMINISTRATOR
DOCTRINE: There is no reciprocal succession between
legitimate and illegitimate relatives (Art 992). Hence,
Teodoro Yangco’s half brothers on the Corpus side, who
were legitimate, had no right to succeed his estate under the
rules of intestacy. Since Jose is not an heir of Yangco, it
follows that Juanita, and Corpus, also is not an heir of
Yangco.
SC, following this rule, has previously held that:
(1) Legitimate relatives of the mother cannot succeed her
illegitimate child (Cacho v. Udan)
(2) Natural child cannot represent his natural father in the
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 succession to the estate of the legitimate grandparent
(Llorente v. Rodriguez)
(3) Natural daughter cannot succeed to the estate of her
deceased uncle, a legitimate brother of her natural
mother. (Anuran v. Aquino)
PASCUAL V PASCUAL-BAUTISTA
DOCTRINE: In Diaz v CA, the Court ruled: “Article 992 of
the Civil Code provides a barrier or iron curtain in that it
prohibits absolutely a succession ab intestato between the
illegitimate child and the legitimate children and relatives of
the father or mother of said legitimate child. They may have
a natural tie of blood, but this is not recognized by law for
the purposes of Article 992.
● Between the legitimate family and illegitimate family
there is presumed to be an intervening antagonism and
incompatibility. The illegitimate child is disgracefully
looked down upon by the legitimate family; the family is
in turn hated by the illegitimate child; the latter
considers the privileged condition of the former, and the
resources of which it is thereby deprived; the former, in
turn, sees in the illegitimate child nothing but the
product of sin, palpable evidence of a blemish broken in
life; the law does no more than recognize this truth, by
avoiding further grounds of resentment.”
● ITC, Elgiio pascual is a legitimate child but petitioners
are his illegitimate children.
● Article 902, 989, and 990 clearly speaks of successional
rights of illegitimate children, which rights are
transmitted to their descendants upon their death. The
descendants (of these illegitimate children) who may
inherit by virtue of the right of representation may be
legitimate or illegitimate.
● The right of representation is not available to illegitimate
descendants of legitimate children in the inheritance of
a legitimate grandparent.
LEONARDO V CA
DOCTRINE: The name of the child described in the birth
certificate is not that of the plaintiff but a certain 'Alfredo
Leonardo' who was born on September 13, 1938 to Sotero
Leonardo and Socorro Timbol.
● Other than his bare allegation, petitioner did not submit
any durable evidence showing that the 'Alfredo
Leonardo' mentioned in the birth certificate is no other
than he himself.
● Even if it is true that petitioner is the child of Sotero, still
he cannot, by right of representation, claim a share of
the estate left by the deceased Francisca considering
that, as found again by the CA
● he was born outside wedlock as shown by the fact that
when he was born on September 13,1938, his alleged
putative father and mother were not yet married, and his
alleged father's 1st marriage was still subsisting.
● At most, petitioner would be an illegitimate child who
has no right to inherit ab intestato from the legitimate
children and relatives of his father, like the deceased
Francisca. (Art. 992, CC)
DIAZ V IAC
DOCTRINE: Pursuant to Article 992, the illegitimate children
of Pablo cannot represent Pablo in his succession to the
intestate estate of his mother, Simona. This is not
inconsistent with Article 941, which allows the illegitimate
children to represent the inheritance from another
illegitimate family.
● Article 992 provides a barrier or iron curtain in that it
prohibits in that it prohibits absolutely a succession ab
intestato between the illegitimate child and the
legitimate children and relatives of the father or mother
of said legitimate child.
● They may have a natural tie of blood, but this is not
recognized by law for this purpose, because between
the legitimate family and the illegitimate family, there is
presumed to be an intervening antagonism and
incompatibility. The illegitimate child is disgracefully
looked down upon by the legitimate family; the family is
in turn, hated by the illegitimate child. The illegitimate
child considers the privileged condition of the legitimate
family, and the resources of which it is thereby
deprived; the family, in turn, sees in the illegitimate child
nothing but the product of sin, palpable evidence of a
blemish broken in life. The law does no more than
recognize this truth, by avoiding further grounds of
resentment.
DIAZ V IAC
DOCTRINE: The Court does not dispute the fact that the
NCC has given illegitimate children successional rights,
which rights were never before enjoyed by them under the
Old Civil Code. They were during that time merely entitled to
support. In fact, they are now considered as compulsory
primary heirs under Article 887 of the new Civil Code.
● A careful evaluation of the New Civil Code provisions,
especially Articles 902, 982, 989, and 990, claimed by
petitioners to have conferred illegitimate children the
right to represent their parents in the inheritance of their
legitimate grandparents, would in point of fact reveal
that such right to this time does not exist.
● Articles 902, 989, and 990 clearly speak of successional
rights of illegitimate children, which rights are
transmitted to their descendants upon their death. The
descendants (of these illegitimate children) who may
inherit by virtue of the right of representation may be
legitimate or illegitimate.
● In whatever manner, one should not overlook the fact
that the persons to be represented are themselves
illegitimate. The three named provisions are very clear
on this matter. The right of representation is not
available to illegitimate descendants of legitimate
children in the inheritance of a legitimate grandparent.
● Article 982 is inapplicable to instant case because
Article 992 prohibits absolutely a succession ab
intestato between the illegitimate child and the
legitimate children and relatives of the father or mother.
● It is therefore clear from Article 992 of the New Civil
Code that the phrase "legitimate children and relatives
of his father or mother" includes Simona Pamuti Vda. de
Santero as the word "relative" is broad enough to
comprehend all the kindred of the person spoken of.
SANTILLON V MIRANDA
DOCTRINE: Art 892 falls under Testamentary Succession,
whereas Art 996 falls under Intestate Succession. And under
this article, when the widow survives with only 1 legitimate
child, they share in equal parts. Although the law refers to
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‘children or descendants,’ the rule in statutory construction is
that the plural can be understood to include the singular. So
Art. 996 could or should be read: “If the widow or widower
and a legitimate child are left, the surviving spouse has the
same share as that of the child.”
BAGUNU V PIEDAD
DOCTRINE: In accordance with Article 962 of the Civil
Code, the rule on proximity in intestate succession is a
concept that favors the relatives nearest in degree to the
decedent and excludes the more distant ones except when
and to the extent that the right of representation can apply.
● In accordance with Article 970 and 971, in the direct
line, right of representation is proper only in the
descending, never in the ascending, line. However, in
the collateral line, the right of representation may only
take place in favor of the children of brothers or sisters
of the decedent when such children survive with their
uncles or aunts.
● Thus, in accordance with Articles 972-975 of the Civil
Code, the right of representation does not apply to
"other collateral relatives within the fifth civil degree" (to
which group both petitioner and respondent belong)
who are sixth in the order of preference following, firstly,
the legitimate children and descendants, secondly, the
legitimate parents and ascendants, thirdly, the
illegitimate children and descendants, fourthly, the
surviving spouse, and fifthly, the brothers and
sisters/nephews and nieces, of the decedent.
● Accordingly, respondent, being a relative within the third
civil degree, of the late Augusto H. Piedad excludes
petitioner, a relative of the fifth degree, from succeeding
ab intestato to the estate of the decedent.
HEIRS OF SANDEJAS V LINA
DOCTRINE: Petitioners' computation is correct. The CA
computed Eliodoro's share as an heir based on one tenth of
the entire disputed property. It should be based only on the
remaining half, after deducting the conjugal share.
● Succession laws and jurisprudence require that when a
marriage is dissolved by the death of the husband or
the wife, the decedent’s entire estate under the concept
of conjugal properties of gains must be:
1. Divided equally, with one half going to the surviving
spouse as his separate property (not inherited
through succession) and;
2. The other half to the heirs of the deceased.
The remaining half of the estate is then distributed to the
legal heirs, legatees and devices. The Court assumed,
however, that this preliminary determination of the
decedent’s estate has already been taken into account by
the parties, since the only issue raised in this case is
whether Eliodoro’s share is 11/20 or 3/5 of the disputed lots.
ARMAS V CALISTERIO
DOCTRINE: The successional right in intestacy of a
surviving spouse over the net estate of the deceased,
concurring with legitimate brothers and sisters or nephews
and nieces (the latter by right of representation), is one- half
of the inheritance, the brothers and sisters or nephews and
nieces, being entitled to the other half.
● Nephews and nieces, however, can only succeed by
right of representation in the presence of uncles and
aunts; alone, upon the other hand, nephews and nieces
can succeed in their own right which is to say that
brothers or sisters exclude nephews and nieces except
only in representation by the latter of their parents who
predecease or are incapacitated to succeed.
BARANDA V BARANDA
DOCTRINE: It’s hard to believe that her grandmother, who
was an old woman to sell her properties where she was
presumably making a living with her second husband, to live
off her granddaughters, who were themselves also living off
Paulina. Paulina and the grandmother were strangers.
● Why the nieces did not pay the money in the house
instead of bringing it all the way from the house and
back is something that has not been sufficiently
explained by the sisters.
● Paulina herself, denied under oath, that she ever sold
her lands to Evangelina and Elisa, alleging in her
verified complaint that she “never executed any deed”
conveying the title to her properties and “was surprised
and shocked to learn” later that her TCTs to the lots had
been cancelled. She withdrew her complaint only after
the agreement with her nieces.
● While the nieces explain that the complaint was merely
simulated to prevent the US government from
discontinuing her pension as a war widow on the
ground that she had squandered her property, the Court
believes that instead of commencing litigation, a mere
resale of the properties would have been sufficient,
instead of a civil complaint.
● It is not disputed that Paulina died intestate without
leaving any direct descendants or ascendants, or
compulsory heirs. She was survived, however, by 2
brothers, and several nephews and nieces, including
private respondents and petitioners. The above-named
are the legitimate intestate heirs of Paulina.
● While they are not compulsory heirs, they are
nonetheless legitimate heirs and so, since they stand to
be benefited or injured by the judgment or suit, are
entitled to protect their share of successional rights.
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V. PROVISIONS COMMON TO
TESTATE AND INTESTATE
SUCCESSION
1. Right of Accretion
ARTICLE 1015. Accretion is a right by virtue of which, when
two or more persons are called to the same inheritance,
devise or legacy, the part assigned to the one who
renounces or cannot receive his share, or who died be- fore
the testator, is added or incorporated to that of his co- heirs,
co-devisees, or co-legatees.
ARTICLE 1016. 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.
DEFINITION (ART 1015)
ELEMENTS (ART 1016)
OCCASIONS FOR THE OPERATION OF ACCRETION
1. Renunciation
2. Predecease
3. Incapacity
These are the same occasions for simple substitution
ELEMENTS OF ACCRETION
1. Two or more persons are called to the same
inheritance, or to the same portion thereof, pro
indiviso.
PRO INDIVISO:
a. Either the co-heirs are instituted without individual
designation of shares
● e.g. “I institute A and B to one-half of my estate,
b. The co-heirs are instituted with the specification that
they share equally (“in equal shares”) or that they
have the same fractional sharing (“one-half or one-
third, etc.) for each (Article 1017)
● “I institute A, B, and C to one-half of my estate in
equal shares”
● “I institute A, B, and C to one-half of my estate,
each of them to take one-third of that one-half.”
Q: Will accretion occur if the fractional sharings of the co-heirs
are unequal?
EXAMPLE: “I institute A, B, and C to one-half of my estate; of
this one-half, A is to get 1/2; B, 1/3; and C, 1/6”.
A: All that the law requires is that the institution be pro indiviso,
which means “as undivided” or “in common”. The term does
not import equality. It would therefore seem that accretion will
occur even if the sharings are unequal, as long as the result of
the institution is co-ownership.
● Spanish Code: such an institution would prevent
accretion, because the requirement there was that the
institution be “sin especial designacion de partes”
(without a definite allocation of portions). The change in
wording in our Code results in a different rule here.
2. Renunciation, predecease, or incapacity of one (or
more but less than all) of the instituted heirs.
ARTICLE 1017. The words “one-half for each” or “in equal
shares” or any others which, though designating an aliquot
part, do not identify it by such description as shall make
each heir the exclusive owner of determinate property, shall
not exclude the right of accretion.
In case of money or fungible goods, if the share of each heir
is not earmarked, there shall be a right of accretion.
ARTICLE 1018. In legal succession the share of the person
who repudiates the inheritance shall always accrue to his
co-heirs.
IN INTESTACY, ACCRETION OCCURS
1. In repudiation or renunciation
2. In predecease, only if representation does not take place
3. In incapacity or unworthiness, only if representation does
not take place
NOTE: #2 and #3 are not mentioned by Art 1018
● In intestacy, accretion is subordinate to representation
The co-heirs in whose favor accretion occurs must be co-
heirs in the same category as the excluded heir.
Example: X dies intestate, survived by his wife Y and his
brothers A, B, and C.
● If C renounces, his portion goes to A and B by accretion. Y
is not an accruing co-heir, not being of the same category
or class.
ARTICLE 1019. The heirs to whom the portion goes by the
right of accretion take it in the same proportion that they
inherit.
This article—a new provision—merely makes explicit what
is implied; i.e., that accretion should be proportional.
ARTICLE 1020. The heirs to whom the inheritance accrues
shall succeed to all the rights and obligations which the heir
who renounced or could not receive it would have had.
EXCEPTIONS:
1. in testamentary succession, if the testator provides
otherwise;
2. if the obligation is purely personal, and hence
intransmissible.
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ARTICLE 1021. Among the compulsory heirs the right of
accretion shall take place only when the free portion is left to
two or more of them, or to any one of them and to a
stranger.
Should the part repudiated be the legitime, the other co-
heirs shall succeed to it in their own right, and not by the
right of accretion.
FIRST PARAGRAPH
The principle enunciated here is self- explanatory, provided it is
borne in mind that there are basically three different kinds of
succession:
1. Compulsory (i.e. succession to the legitime)
2. Testamentary
3. Intestate
These three are distinct, even though they may operate
simultaneously.
Accretion is restricted in its operation within the confines
of the particular kind of succession involved.
SECOND PARAGRAPH
No accretion in the legitime.
● In most cases, this rule will not substantially affect the
operation of the legitime.
● It had practical consequences in the Spanish Code on
account of the mejora or betterment, which our Code has
abolished.
Possible significance: computation of legitimes of illegitimate
children or surviving spouse when concurring with legitimate
children.
ARTICLE 1022. In testamentary succession, when the right
of accretion does not take place, the vacant portion of the
instituted heirs, if no substitute has been designated, shall
pass to the legal heirs of the testator, who shall receive it
with the same charges and obligations.
In the testamentary succession, accretion is subordinate
to substitution, if the testator has so provided.
● This is because substitution is the testator’s express
intent, whereas accretion is merely his implied intent.
If there is neither substitution nor accretion, the part left
vacant will lapse into intestacy and will be disposed of
accordingly.
ARTICLE 1023. Accretion shall also take place among
devisees, legatees and usufructuaries under the same
conditions established for heirs.
2. Capacity to Succeed by Will or
Intestacy
CAPACITY TO SUCCEED
Ability to inherit and retain property obtained mortis causa
KINDS OF INCAPACITY TO SUCCEED
(A) ABSOLUTE
● Can never inherit from anybody regardless of
circumstances
(B) RELATIVE
● Can inherit only from certain person or certain
properties, but can inherit from others or certain other
properties
KINDS OF RELATIVE INCAPACITY
1) Because of possible undue influence (Art 1027)
2) Because of public policy and morality (Art 1028 read
together with Art 739)
3) Because of unworthiness (Art 1032)
ARTICLE 1024. Persons not incapacitated by law may
succeed by will or ab intestato.
The provisions relating to incapacity by will are equally
applicable to intestate succession.
GENERAL RULE: IN FAVOR OF CAPACITY TO SUCCEED,
as long as the successor has juridical personality. Incapacity
must be based on some legal ground and must be shown.
BALANE: The second paragraph is inaccurate. Some grounds
for incapacity to succeed by will have no application to
compulsory or intestate succession.
The articles laying down the causes of incapacity to succeed
are Articles 1027, 1028 and 1032:
1. Article 1027, pars. 1-5—applicable only to testamentary
succession;
2. Article 1027, par. 6—applicable to all kinds of succession;
3. Article 1028—applicable only to testamentary succession;
4. Article 1032—applicable to all kinds of succession.
ARTICLE 1025. 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 bom later
under the conditions prescribed in Article 41.
NATURAL PERSONS: REQUIREMENT FOR CAPACITY TO
SUCCEED
GR: Must be living when succession opens.
● WHEN SUCCESSION OPENS: The decedent’s death (Art
777)
● “LIVING”: It is enough that the heir, devisee, or legatee be
already conceived when the decedent dies, provided it be
bom later, in accordance with Articles 40 & 41. Inheriting is
favorable to the child.
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IF INSTITUTION SUBJECT TO SUSPENSIVE CONDITION
Successor must also be living when condition happens (Art
1034 par 3)
● Thus, in a conditional institution, the successor must be
living both when the decedent dies and when the condition
happens.
IF INSTITUTION SUBJECT TO SUSPENSIVE TERM
The requirement of being alive applies only at the moment of
the decedent’s death, the successor need not be alive when
the term arrives.
REPRESENTATION NOT AN EXCEPTION TO
REQUIREMENT
The requirement that the successor should be alive when the
decedent dies is absolute.
● There is no exception to this rule, the provisions of this
article notwithstanding.
● For representation to occur, the representation must at
least already be conceived when the decedent dies,
because of the provisions of Articles 971 and 973
EXAMPLE: X has two sons—A and B—and B was disinherited
by X. X died in 1985. In 1988 B begot a child. B’s child cannot
represent B in the succession to X.
ARTICLE 1026. A testamentary disposition may be made to
the State, provinces, municipal corporations, private
corporations, organizations, or associations for religious,
scientific, cultural, educational, or charitable purposes.
All other corporations or entities may succeed under a will,
unless there is a provision to the contrary in their charter or
the laws of their creation, and always subject to the same.
JURIDICAL PERSON: REQUIREMENT FOR CAPACITY TO
SUCCEED
It must already exist as a juridical person when the decedent
dies.
● Organizations or associations which do not possess
juridical personality cannot succeed, because legally they
would not exist. The enumeration of juridical persons is
found in Article 44
ART. 44. The following are juridical persons:
(1) The State and its political subdivisions;
(2) Other corporations, institutions and entities for public
interest or purpose, created by law; their personality
begins as soon as they have been constituted according
to law;
(3) Corporations, partnerships and associations for private
interest or purpose to which the law grants a juridical
personality, separate and distinct from that of each
shareholder, partner or member.
IF INSTITUTION SUBJECT TO SUSPENSIVE CONDITION
Successor must also be living when condition happens (Art
1034 par 3)
● Thus, in a conditional institution, the successor must be
living both when the decedent dies and when the condition
happens.
IF INSTITUTION SUBJECT TO SUSPENSIVE TERM
The requirement of being alive applies only at the moment of
the decedent’s death, the successor need not be alive when
the term arrives.
ARTICLE 1027. The following are incapable of succeeding:
(1) The priest who heard the confession of the tes- tator
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 gos- pel
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 disposi- tions
given by a ward in his favor before the final accounts of
the guardianship have been approved, even if the testa-
tor should die after the approval thereof; nevertheless,
any provision made by the ward in favor of the guardian
when the latter is his ascendant, descendant, brother,
sister, or spouse, shall be valid;
(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;
(5) Any physician, surgeon, nurse, health officer or druggist
who took care of the testator during his last illness;
(6) Individuals, associations and corporations not permitted
by law to inherit.
PAR 1-5, APPLICATION
PAR 1-5 apply only to testamentary succession
● They have no application to the legitime or to intestacy.
Thus, a person may be disqualified to succeed by will
under these paragraphs but be entitled to a legitime or to
an intestate portion.
● It is unfortunate that these paragraphs (with the exception
of par. 3, which clearly limits its application to
“testamentary dispositions”) do not state with sufficient
clarity that they apply solely to testamentary succession
and not to the legitime or intestacy. The Spanish Code did
not suffer from this ambiguity.
PAR 6
This paragraph is misplaced here because it provides for total
disqualification. It should have been made a separate article.
RATIONALE (OF PAR 1-5)
The law, in imposing this disqualification, seeks to prevent any
possible abuse of the moral or spiritual ascendancy for
purposes of testamentary benefit.
This disqualification is peremptory. No actual duress or
influence need be shown; these are conclusively presumed.
● Proof of absence of duress or influence is irrelevant and
will, anyway, not remove the disqualification.
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PAR 1 The priest who heard the confession of the tes-
tator during his last illness, or the minister of the gospel
who extended spiritual aid to him during the same period;
REQUISITES:
1. the will must have been executed during the tes- tator’s
last illness;
2. the spiritual ministration must have been ex- tended during
the last illness;
3. the will must have been executed during or after the
spiritual ministration.
BALANE: A literal reading of the paragraph does not clearly
indicate that the will must have been made during the testator's
last illness, nor that the spiritual ministration be anterior to, or
simultaneous with, the making of the will
● The counterpart provision in the Spanish code was much
more skillfully—and unambiguously— worded:
Art 752 Spanish Civil Code. Totally without effect shall be
those tes- tamentary dispositions which the testator makes
dur- ing his last illness in favor of the priest who, during such
illness, may have heard his confession, as well as those in
favor of the relatives of said priest within the fourth degree, or
of the church, chapter, community, or institute to which he may
belong
NOTE: Notwithstanding the seemingly restrictive terms of this
disqualification, it applies not only to Christian priests, pastors,
ministers, and so forth, but also to all individuals belonging to
other religions, sects, or cults, whose office or function it is to
extend the peculiar spiritual ministrations of their creed.
PAR 2 The relatives of such priest or minister of the gos-
pel within the fourth degree, the church, order, chapter,
community, organization, or institution to which such
priest or minister may belong
FOURTH DEGREE OF RELATIONSHIP
The computation is made in accordance with Articles 963-969
PURPOSE OF DISQUALIFICATION
To prevent indirect violations or circumventions of Par. (1).
SPOUSE OF RELIGIOUS MINISTER
Q: Does the prohibition of this paragraph apply to the spouse
of the minister?
A: The Catholic priesthood is celibate, but not the priesthood
or ministry of many other denominations or religions. Certainly,
the mischief sought to be averted can be perpetrated by the
spouse.
PAR 3 A guardian with respect to testamentary disposi-
tions given by a ward in his favor before the final accounts
of the guardianship have been approved, even if the testa-
tor should die after the approval thereof; nevertheless, any
provision made by the ward in favor of the guardian when
the latter is his ascendant, descendant, brother, sister, or
spouse, shall be valid
WHEN DISQUALIFICATION APPLIES
For this disqualification to apply, the will must have been
executed by the ward during the effectivity of the guardianship;
i.e. at anytime between the commencement of the
guardianship and its dissolution.
WHAT KIND OF GUARDIANSHIP IS COVERED
The terms of this prohibition seem to be limited to guardians
over the property.
● BALANE: In view of the purpose of the prohibition, the
argument that this prohibition should apply as well to
guardians over the person is most tenable.
EXCEPTION
A guardian who happens to be an as- cendant, descendant,
brother, sister, or spouse of the ward-testator is excluded from
the prohibition. Curiously, this exception is not allowed in the
other paragraphs.
PAR 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
This is essentially a reiteration of the disqualification set forth in
Article 823, but cast in more general terms, since this article
nullifies not just legacies and devises, but all testamentary
dispositions made in the witness’ favor.
NOTE: The discrepancy between this paragraph and Article
823, which allows for an exception; i.e., if there are three other
competent witnesses. That exception should be read into this
paragraph.
PAR 5 Any physician, surgeon, nurse, health officer or
druggist who took care of the testator during his last
illness
SCOPE OF PROHIBITION
The person (physician, surgeon, and so forth) must have taken
care of the testator during the latter’s final illness.
● TAKING CARE means medical attendance with some
regularity or continuity, because it is in such
circumstances that the possibility of duress or influence
exists.
ARTICLE 1028. The prohibitions mentioned in Article 739,
concerning donations inter vivos shall apply to testamentary
provisions.
The disqualification laid down in this article applies only to
testamentary succession.
By the provisions of this article, those who are disqualified from
receiving donations under Article 739 are likewise disqualified
from receiving testamentary dispositions from the parties
specified in that article
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ARTICLE 739. The following donations shall be void:
(1) Those made between persons who were guilty of adultery
or concubinage at the time of the donation:
(2) Those made between persons found guilty of the same
criminal offense, in consideration thereof;
(3) Those made to a public officer or his wife, descendants
and ascendants, by reason of his office.
In the case referred to in No. 1, the action for declaration of
nullity may be brought by the spouse of the doner or donee;
and the guilt of the donor and donee may be proved by
preponderance of evidence in the same action.
ARTICLE 1029. 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 to the
State, for the purpose mentioned in Article 1013.
REQUISITES
1. Disposition for prayers and pious works for the benefit of
the testator’s soul;
2. No specification of the application of the disposition.
APPORTIONMENT OF THE DISPOSITION OR ITS
PROCEEDS
1. One-half to the church or denomination to which the
testator belonged
2. One-half to the State, to be applied as provided for in
Article 1013
ARTICLE 1030. Testamentary provisions in favor of the
poor in general, without designation of particular per- sons
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.
The designation of the persons who are to be considered as
poor and the distribution of the property shall be made by
the person appointed by the testator for the purpose; in
default of such person, by the executor; and should there be
no executor, by the justice of the peace, the mayor, and
municipal treasurer, who shall decide by a majority of votes
all questions that may arise. In all these cases, the approval
of the Court of First Instance shall be necessary.
The preceding paragraph shall apply when the testator has
disposed of his property in favor of the poor of a defi- nite
locality.
The named beneficiaries here are the poor, either of a
definite locality (Par 3) or of no designated locality (Par 1).
● In the latter case, the beneficiaries shall be the poor of the
testator’s domicile, unless excluded by the testator in his
will
Q: Who are to determine the individual beneficiaries within the
class designated by the testator?
1. The person authorized by the testator or in his default
2. The executor, or in his default
3. The administrator
ARTICLE 1031. A testamentary provision in favor of a
disqualified person, even though made under the guise of an
onerous contract, or made through an intermediary, shall be
void.
RATIONALE
What cannot be done by direction cannot be done by
indirection. The simulation must be proved, for this article to
apply.
EFFECT OF SIMULATION OR CIRCUMVENTION
The article provides that the disposition is void, hence
ineffective both as to the intended beneficiary and the
intermediary. The intestate heirs, to whom the property would
go, have the right to claim the nullity.
ARTICLE 1032. The following are incapable of succeeding
by reason of unworthiness:
(1) Parents who have abandoned their children or induced
their daughters to lead a corrupt or immoral life, or
attempted against their virtue;
(2) Any person who has been convicted of an attempt
against the life of the testator, his or her spouse, des-
cendants, or ascendants;
(3) Any person who has accused the testator of a crime for
which the law prescribed imprisonment for six years or
more, if the accusation has been found groundless;
(4) Any heir of full age who, having knowledge of the
violent death of the testator, should fail to report it to an
officer of the law within a month, unless the authorities
have already taken action; this prohibition shall not
apply to cases wherein, according to law, there is no
obligation to make an accusation;
(5) Any person convicted of adultery or concubinage with
the spouse of the testator;
(6) Any person who by fraud, violence, intimidation, or
undue influence should cause the testator to make a will
or to change one already made;
(7) Any person who by the same means prevents an- other
from making a will, or from revoking one already made,
or who supplants, conceals, or alters the latter’s will;
(8) Any person who falsifies or forges a supposed will of
the decedent.
APPLICATION
This article applies to all kinds of succession.
GROUNDS FOR UNWORTHINESS
PAR 1 Parents who have abandoned their children or
induced their daughters to lead a corrupt or immoral life,
or attempted against their virtue
There are three grounds given in this paragraph:
1. Abandonment of the child
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2. Inducement of a daughter to lead a corrupt or immoral life ● That unworthiness deprives the unworthy heir even of the
3. Attempt against a daughter’s virtue legitime is clear from Article 1035

All these three grounds are also grounds for disinheritance of

ARTICLE 1033. The causes of unworthiness shall be
parents or ascendants under Article 920, and are discussed without effect if the testator had knowledge thereof at the
under that article time he made the will, or if, having known of them
subsequently, he should condone them in writing.
PAR 2 Any person who has been convicted of an attempt
against the life of the testator, his or her spouse, des-
RESTORATION TO CAPACITY
cendants, or ascendants
The unworthiness is set aside and the unworthy heir restored
to capacity in two ways:
This is also a ground for disinheritance under Article 919.
1. A written condonation, or
2. The execution by the offended party of a will with
PAR 3 Any person who has accused the testator of a
knowledge of the cause of unworthiness.
crime for which the law prescribed imprisonment for six
years or more, if the accusation has been found
Q: The second mode, is it enough that the offended party
groundless
execute a will with knowledge of the existence of the cause of
unworthiness?
This is also a ground for disinheritance under Article 919.
BALANE: It is not enough. The will must also either institute
the unworthy heir or restore him to capacity
PAR 4 Any heir of full age who, having knowledge of the
violent death of the testator, should fail to report it to an
COMMON GROUNDS FOR UNWORTHINESS AND
officer of the law within a month, unless the authorities
DISINHERITANCE: CONFLICTING MODES OF LIFTING
have already taken action; this prohibition shall not apply
DISQUALIFICATION
to cases wherein, according to law, there is no obligation
1. As pointed out above, most of the grounds for
to make an accusation
unworthiness are also grounds for disinheritance, viz.
paragraphs 1, 2, 3, 5, and 6 of Art. 1032.
One requisite of this ground for disqualification makes this
● There is no problem if the offended party does not
paragraph non-operative, i.e. a legal obligation to make an
choose to disinherit the offending herein, because
accusation. There is no such obligation under present law.
then only the rules on unworthiness will operate.
● Should the offended party, however, elect to disinherit
For academic purposes, the requisites of this ground are:
the offender, the two sets of rules (on disinheritance
(1) The heir has knowledge of violent death of the decedent
and unworthiness) would overlap.
(2) The heir is of legal age;
(3) The heir fails to report it to all officer of the law within a
Q: how is the disqualified heir restored to capacity?
month (after learning of it);
A: Under the rules on disinheritance, a subsequent
(4) The authorities have not yet taken action;
reconciliation is enough (Article 922); under those on
(5) There is a legal obligation for the heir to make an
unworthiness, either a written pardon or a subsequent will
accusation
is required

PAR 5 Any person convicted of adultery or concubinage

Q: Supposing that there is a reconciliation but nothing in
with the spouse of the testator
writing, will it be correct to conclude that the heir is
restored to capacity under the rules on disinheritance but
This is also a ground for disinheritance under Article 919.
stays disqualified under the rules on unworthiness?

PAR 6 Any person who by fraud, violence, intimidation, or

A: This seems unacceptable because that would make the
undue influence should cause the testator to make a will
rules on unworthiness (which is by operation of law and is
or to change one already made
only the implied will of the offended party) prevail over
those on disinheritance (which is his express will).
This is also a ground for disinheritance under Article 919.
2. Thus, the most acceptable reconciliation seems to be the
EFFECT OF UNWORTHINESS
following:
Unworthiness gives rise to total disqualification; i.e., the
unworthy heir is incapacitated to succeed from the offended
RESTORATION TO CAPACITY: OVERLAP OF RULES
party by any form of succession: the legitime, testamentary,
ON UNWORTHINESS AND DISINHERITANCE (ART
and intestate.
1033 AND 922)
● Thus, unworthiness and disinheritance have identical
1. If Offended Party does not make a will subsequent
effects. Unworthiness is disinheritance imposed by law.
to the occurrence of the (common) cause:

101
 ● Apply Article 1033—Unworthiness sets in ipso
facto and written condonation is necessary to
restore to capacity.
2. If Offended Party makes a will subsequent to the
occurrence of the (common) cause:
a. If he knew of the cause
i. If he disinherits—Apply Article 922.
ii. If he institutes or pardons the offender—
Offender restored to capacity.
iii. If will is silent—This is disputed, but the
better opinion seems to be that the
unworthiness stays.
b. If he did not know of the cause—Unworthiness
stays.
ARTICLE 1034. 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.
In cases falling under Nos. 2, 3, or 5 of Article 1032, it shall
be necessary to wait until final judgment is rendered, and in
the case falling under No. 4, the expiration of the month
allowed for the report.
If the institution, devise or legacy should be conditional, the
time of the compliance with the condition shall also be
considered.
WHEN CAPACITY IS TO BE DETERMINED
GR: The time of the decedent’s death.
REASON: That is when successional rights vest (Article 777).
If institution is subject to a suspensive condition—
1. Time of decedent’s death, and
2. Time of happening of condition
If final judgment is a requisite of unworthiness (Pars. 2, 3, and
5 of Article 1032)—time of final judgment.
ARTICLE 1035. If the person excluded from the inheritance
by reason of incapacity should be a child or descendant of
the decedent and should have children or descendants, the
latter shall acquire his right to the legitime.
The person so excluded shall not enjoy the usufruct and
administration of the property thus inherited by his children.
REPRESENTATION IN UNWORTHINESS
Unworthiness is one of the three occasions for representation
to operate
EXTENT OF REPRESENTATION
Representation in unworthiness (as also in predecease and
disinheritance) extends not only to the legitime, but also to
whatever portion in intestate succession the person
represented may have been entitled to.
● The first paragraph of this article should not be taken to
imply that representation is confined to the legitime.
REPRESENTATION IN THE COLLATERAL LINE
If the unworthy heir is a brother or sister, his children (nephews
and nieces of the decedent) will represent
SECOND PARAGRAPH: Articles 225-226 of the Family
Code should be read together with the second paragraph
of this article:
1. AS TO USUFRUCT
● The prohibition in this provision has become
unnecessary because of Article 226, par. 2 (Family
Code).
● ART 226. The right of the parents over the fruits and
income of the child’s property shall be limited primarily
to the child’s support and secondarily to the collective
daily needs of the family
2. AS TO ADMINISTRATION
● The disqualification remains, and this right shall be
exercised either by a judicially appointed guardian or
those vested by law with substitute parental authority
ARTICLE 1036. Alienations of hereditary property, and acts
of administration performed by the excluded heir, before the
judicial order of exclusion, are valid as to third persons who
acted in good faith; but the co-heirs shall have a right to
recover damages from the disqualified heir.
GOOD FAITH OF TRANSFEREE
The validity of the alienation is determined by the good faith or
bad faith of the transferee, not of the transferor (the excluded
heir).
● For the transferee to be in good faith, he must have
acquired the thing for value and without knowledge of the
defect of the transferor’s title.
● Thus, a donee cannot claim the benefit of this provision,
since he did not acquire for value.
NOTE: In cases of valid alienations by the disqualified heir, the
rightful heirs are not without a remedy: they may go after the
disqualified heir for damages.
ARTICLE 1037. The unworthy heir who is excluded from the
succession has a right to demand indemnity for any
expenses incurred in the preservation of the hereditary
property, and to enforce such credits as he may have
against the estate.
The right of reimbursement granted by this article to the
excluded heir is irrespective of his bad faith because the
expenses referred to in this article are necessary expenses,
which have to be reimbursed even to a possessor in bad faith
ARTICLE 1038. Any person incapable of succession, who,
disregarding the prohibition stated in the preceding articles,
entered into the possession of the hereditary property, shall
be obliged to return it together with its accessions.
He shall be liable for all the fruits and rents he may have
received, or could have received through the exercise of due
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 diligence.
POSSESSOR IN BAD FAITH
The disqualified heir, referred to in this article, who took
possession of the hereditary property, is a possessor in bad
faith, because he took possession “disregarding the provision
stated in the preceding articles.”
Hence, the law applies to him the rules on possession in bad
faith;
1. The obligation to return, with accessions;
2. Liability for fruits which were received and could have
been received.
These are the same rules laid down in Article 549.
PERIOD FOR ACTION TO RECOVER
5 YEARS
ARTICLE 1039. Capacity to succeed is governed by the law
of the nation of the decedent.
NATIONAL LAW OF DECEDENT GOVERNS CAPACITY
It is the national law of the decedent—not that of the heir—that
governs capacity to succeed.
SAME PRINCIPLE IN ART 16 PAR 2
ART. 16, par. 2. However, intestate and testamentary
successions, both with respect to the order of succession and
to the amount of successional rights and to the intrinsic validity
of the testamentary provisions, shall be regulated by the
national law of the person whose succession is under
consideration, whatever may be the nature of the property and
regardless of the country wherein said property may be found.
ARTICLE 1040. The action for a declaration of incapacity
and for the recovery of the inheritance, devise or legacy
shall be brought within five years from the time the
disqualified person took possession thereof. It may be
brought by any one who may have an interest in the
succession.
FIVE YEARS PRESCRIPTIVE PERIOD
The prescriptive period of 5 years applies both to the
declaration of incapacity of the heir and the recovery of the
inheritance or portion thereof wrongfully possessed by the
disqualified heir.
● This is a special prescriptive period for this ac- tion. It is an
exception to the prescriptive periods for recovery of
movables (8 years) and of immovables (30 years) laid
down respectively in Articles 1140 and 1141
PARISH PRIEST V RIGOR
DOCTRINE: The “nearest male relative” must be alive at the
time of death of the decedent. Bequest is inoperative
● it may be deduced that the testator intended to devise
the rice lands to his nearest male relative who would
become a priest, who was forbidden to sell the rice
lands, who would lose the devise if he discontinued his
studies for the priesthood, or having been ordained a
priest, he was excommunicated, and who would be
obligated to say annually twenty masses with prayers
for the repose of the souls of the testator and his
parents.
● When the testator specified his nearest male relative,
he must have had in mind his nephew or a son of his
sister, who would be his third-degree relative, or
possibly a grandnephew. But since he could not
prognosticate the exact date of his death or state with
certitude what category of nearest male relative would
be living at the time of his death, he could not specify
that his nearest male relative would be his nephew or
grandnephews.
● The legal heirs contend that the said devise was in
reality intended for Ramon Quiambao, the testator's
nephew and godchild, who was the son of his sister,
Mrs. Quiambao. The affidavit of Beatriz Gamalinda, the
maternal grandmother of Edgardo Cunanan, who
deposed that after Father Rigor's death her own son,
Valentin Gamalinda, Jr., did not claim the devise,
although he was studying for the priesthood at the San
Carlos Seminary, because she (Beatriz) knew that
Father Rigor had intended that devise for his nearest
male relative belonging to the Rigor family.
● Inasmuch as the testator was not survived by any
nephew who became a priest, the unavoidable
conclusion is that the bequest in question was
ineffectual or inoperative.
3. Acceptance and Repudiation of
the Inheritance
ARTICLE 1041. The acceptance or repudiation of the
inheritance is an act which is purely voluntary and free.
ACCEPTANCE OF INHERITANCE A FREE ACT
The acceptance of property through succession—whether in
the form of a legitime, testamentary succession, or intestacy—
is, like the acceptance of a donation, essentially free and
voluntary.
NO ONE CAN BE REQUIRED TO ACCEPT A BENEFIT
Non potest liberalitas nolenti adquirt
The following articles lay down the requirements for
acceptance and repudiation
NOTE: The rules for acceptance are much more liberal than
those for repudiation. This is because acceptance is beneficial,
whereas repudiation is prejudicial to the successor.
ARTICLE 1042. The effects of the acceptance or
repudiation shall always retroact to the moment of the death
of the decedent.
This has the same underlying philosophy as Article 777.
The moment of death is the time succession vests
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RETROACTIVITY
1. OF ACCEPTANCE: The successor will be deemed to
have owned and possessed the property from the precise
moment of the decedent’s death
● This rule has consequences with respect to
acquisitive prescription, capacity to succeed,
representation, etc
2. OF RENUNCIATION
● The renouncer is deemed never to have owned or
possessed the property.
● The substitute, co-heir, or intestate heir who gets the
property in default of the renouncer is deemed to
have owned and possessed it from the moment of the
decedent’s death.
CONDITIONAL INSTITUTIONS
The principle of retroactivity is not overridden even if the
institution is subject to a suspensive condition
● Upon the happening of the condition, the property passes
to the heir but with retroactive effect. This is the same
principle enunciated in conditional obligations (Article
1187).
● Similarly, if the condition does not happen, the property
goes to the appropriate successor, with the same
retroactive effect.
HOWEVER, for conditional institutions, the provisions of Article
880 should be complied with; to wit, the property should be
placed under administration during the interim.
ARTICLE 1043. No person may accept or repudiate an
inheritance unless he is certain of the death of the per- son
from whom he is to inherit, and of his right to the inheritance.
Acceptance or renunciation must be made knowingly.
● Unless the successor has knowledge of the two things
mentioned in this article, his acceptance or renunciation is
not effective.
ARTICLE 1044. Any person having the free disposal of his
property may accept or repudiate an inheritance.
Any inheritance left to minors or incapacitated persons may
be accepted by their parents or guardians. Parents or
guardians may repudiate the inheritance left to their wards
only by judicial authorization.
The right to accept an inheritance left to the poor shall
belong to the persons designated by the testator to
determine the beneficiaries and distribute the property, or in
their default, to those mentioned in Article 1030.
REQUIREMENT FOR PERSONAL ACCEPTANCE OR
RENUNCIATION
Capacity to act is required for personal acceptance or
renunciation.
ACCEPTANCE OR RENUNCIATION ON BEHALF OF
MINORS OR OTHER INCAPACITATED PARTIES
Minors and other incapacitated parties may accept or renounce
only through their legal representatives
● However, for renunciation there is the added requirement
of court approval.
● As pointed under Art 1041, the rules for renunciation are
stricter than those for acceptance.
GUY V CA: Repudiation is an act of alienation of property
which must pass the court’s scrutiny in order to protect the
interest of the ward
ACCEPTANCE OF TESTAMENTARY GRANTS TO THE
POOR
The persons empowered in Article 1030 to select the recipients
of testamentary grants to the poor in general are likewise
empowered to accept on their be- half.
NOTE:
(1) these authorized individuals can only accept, not reject the
grant;
(2) the persons selected as qualified recipients are, for their
own part, free to accept or renounce the benefit.
ARTICLE 1045. The lawful representatives of corporations,
associations, institutions and entities qualified to acquire
property may accept any inheritance left to the latter, but in
order to repudiate it, the approval of the court shall be
necessary.
ARTICLE 1046. Public official establishments can neither
accept nor repudiate an inheritance without the approval of
the government.
These provisions lay down rules similar to those
concerning acceptance or renunciation on behalf of
minors and incompetents
● The legal representative may accept or renounce the
testamentary grant on behalf of the entity represented, but
for renunciation, court approval is, additionally, required.
ARTICLE 1047. A married woman of age may repudiate an
inheritance without the consent of her husband.
ACCEPTANCE OR RENUNCIATION BY A MARRIED
PERSON
There is no suggestion in this article that a married man of age
does not have the capacity to renounce without his wife’s
consent.
BALANE: The rule is more accurately worded as follows: A
married person of age and not incapacitated for any reason
may accept or renounce an inheritance without his or her
spouse’s consent.
ARTICLE 1048. Deaf-mutes who can read and write may
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accept or repudiate the inheritance personally or through an
agent. Should they not be able to read and write, the
inheritance shall be accepted by their guardians. These
guardians may repudiate the same with judicial approval.
CAPACITY OF DEAF-MUTE TO ACCEPT OR RENOUNCE
This article must be correlated with Article 1327:
ART. 1327. The following cannot give consent to a contract:
(1) Unemancipated minors;
(2) Insane or demented persons, and deafmutes who do not
know how to write.
THUS, a deaf-mute who can read and write has contractual
capacity, and can accept or renounce on his own behalf.
● HOWEVER, an illiterate deaf-mute is incompetent and the
rules on acceptance and renunciation through a
representative apply
ARTICLE 1049. Acceptance may be express or tacit.
An express acceptance must be made in a public or private
document.
A tacit acceptance is one resulting from acts by which the
intention to accept is necessarily implied, or which one
would have no right to do except in the capacity of an heir.
Acts of mere preservation or provisional administration do
not imply an acceptance of the inheritance if, through such
acts, the title or capacity of an heir has not been assumed.
KINDS OF ACCEPTANCE
A. EXPRESS
1. Public document
2. Private writing
B. TACIT
C. IMPLIED (Art 1057)
ARTICLE 1050. An inheritance is deemed accepted:
(1) If the heir sells, donates, or assigns his right to a
stranger, or to his co-heirs, or to any of them;
(2) If the heir renounces the same, even though
gratuitously, for the benefit of one or more of his co-
heirs;
(3) If he renounces it for a price in favor of all his co- heirs
indiscriminately; but if this renunciation should be
gratuitous, and the co-heirs in whose favor it is made
are those upon whom the portion renounced should
devolve by virtue of accretion, the inheritance shall not
be deemed as accepted.
TACIT ACCEPTANCE
Inferred from acts revealing an intent to accept. In general, a
tacit acceptance is inferred from acts of ownership performed
by the heir over the property.
ENUMERATION IS ILLUSTRATIVE, RATHER THAN
EXCLUSIVE:
1. PAR 1: Onerous or gratuitous conveyance in favor of
one, some, or all of his co-heirs, or to a stranger.
● This is an act of ownership, which necessarily implies
that the heir has accepted the inheritance.
2. PAR 2: Gratuitous renunciation in favor of one or
some of his co-heirs
● This is not in fact a renunciation but a conveyance in
favor of the co-heirs specified.
● It partakes of the nature of donation and therefore
must conform to the prescribed form for donations
If the gratuitous “renunciation” is in favor of all the co- heirs but
in proportions different from those in which they would receive
by accretion, it is still a conveyance and must be treated as a
tacit acceptance.
If the “renunciation” in favor of one or some of the co-heirs is
for an onerous consideration, there is an acceptance.
3. PAR 3: Onerous renunciation in favor of all the co-
heirs indiscriminately
● This is not in fact a renunciation but a sale of his
portion and therefore constitutes a tacit acceptance.
Gratuitous renunciation in favor of the co-heirs
indiscriminately - This is a true renunciation and cannot be
treated as a tacit acceptance
● INDISCRIMINATE RENUNCIATION: Means a
renouncement, gratuitously made, in favor of all the co-
heirs who would get the renounced portion by virtue of
accretion
● The same rule applies even if the part re- nounced in this
manner is the legitime, notwith- standing that there is no
accretion in the legitime, as long as the renunciation is
indiscriminate.
ARTICLE 1051. The repudiation of an inheritance shall be
made in a public or authentic instrument, or by petition
presented to the court having jurisdiction over the
testamentary or intestate proceedings.
FORM OF RENUNCIATION
1. PUBLIC OR AUTHENTIC INSTRUMENT
● “Authentic” here should be taken to mean genuine, to
avoid tautology
2. PETITION FILED IN THE SETTLEMENT PROCEEDINGS
FORM OF RENUNCIATION STRICTER
The law has stricter requisites for renunciation, since it is not
beneficial to the heir.
ARTICLE 1052. If the heir repudiates the inheritance to the
prejudice of his own creditors, the latter may petition the
court to authorize them to accept it in the name of the heir.
The acceptance shall benefit the creditors only to an extent
sufficient to cover the amount of their credits. The excess,
should there be any, shall in no case pertain to the
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 renouncer, but shall be adjudicated to the persons to whom,
in accordance with the rules established in this Code, it may
belong.
ACTION PAULIANA
This is an instance of action pauliana, which is the right given
to creditors to impugn or set aside contracts, transactions, or
dispositions of their debtors which will prejudice or defraud
them.
ART. 1177. The creditors, after having pursued the property in
possession of the debtor to satisfy their claims, may exercise
all the rights and bring all the actions of the latter for the same
purpose, save those which are inherent in his person: they
may also impugn the acts which the debtor may have done to
defraud them.
ART. 1313. Creditors are protected in cases of contracts
intended to defraud them.
The right of the creditor to accept the inheritance in the
name of the debtor extends only to the amount or value
necessary to satisfy the credit.
● Any amount in excess of that may be validly renounced by
the debtor-heir.
ARTICLE 1053. If the heir should die without having
accepted or repudiated the inheritance his right shall be
transmitted to his heirs.
This rule is a consequence of the principle that the right of
succession vests at the moment of death (Article 777)
● Therefore, the right of the heir who dies before accepting
or renouncing is already vested and is transmitted to the
heir’s heirs.
● The right to the inheritance itself forms part of the
inheritance of the heir and therefore, the heir of the heir
can exercise the right granted by this article only if he (the
heir’s heir) accepts his own predecessor’s inheritance
● If he renounces, obviously he cannot exercise this
right.
ARTICLE 1054. Should there be several heirs called to the
inheritance, some of them may accept and the others may
repudiate it.
If there are several heirs, their right to accept or right
corresponds to the aliquot share to which they are
entitled.
EXAMPLE: If X dies and Y, his heir, himself dies before
accepting or renouncing the inheritance, leaving A, B, and C as
his own heirs
● A, B, and C each has the right to accept or renounce his
corresponding one-third interest in whatever Y was
entitled to inherit from X.
ARTICLE 1055. If a person, who is called to the same
inheritance as an heir by will and ab intestato, repudiates the
inheritance in his capacity as a testamentary heir, he is
understood to have repudiated it in both capacities.
Should he repudiate it as an intestate heir, without
knowledge of his being testamentary heir, he may still
accept it in the latter capacity.
SITUATION GOVERNED BY THIS ARTICLE
A person is both a testamentary heir (or legatee or devisee and
an intestate heir, with respect to the same inheritance:
1. If he renounces as testamentary heir (or legatee or
devisee)
● he is deemed to have renounced as in- testate heir as
well.
2. If he renounces as intestate heir without knowledge of
his being a testamentary heir (or legatee or devisee)
● he is not deemed to have renounced as testamentary
heir and may therefore accept or renounce separately
in the latter capacity.
RATIONALE: The testamentary disposition is the express will
of the testator, whereas intestacy is only his implied will.
● One who renounces the express will is deemed to have
renounced the implied also, but not the other way around.
Q: Supposing the heir renounces as intestate heir with
knowledge of his being a testamentary heir, may he accept in
the latter capacity?
A: This is disputed; by the wording of paragraph 2 of this
article, it seems he cannot accept as testamentary heir.
● BALANE: In light of the rationale of the rule, however, it
seems he can.
NON-APPLICABILITY OF RULE TO LEGITIME
In view of the rationale of the rule, should the heir be
simultaneously a compulsory heir and a testamentary heir, he
can accept either or both
● The legitime passes not because of any implied will or
wish of the decedent but by strict operation of law,
irrespective of the decedent’s wishes.
● Thus, the term ab intestato in this article refers solely to
intestate succession.
● To the same effect is the rule in Art 955 par 2 regarding a
person who is simultaneously a compulsory heir and a
legatee or devisee.
ARTICLE 1056. The acceptance or repudiation of an
inheritance, once made, is irrevocable, and cannot be
impugned, except when it was made through any of the
causes that vitiate consent, or when an unknown will
appears.
EXCEPTIONS TO RULE OF FINALITY OF ACCEPTANCE
OR RENUNCIATION
1. VITIATED CONSENT
● The factors vitiating consent are:
(1) Violence
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 (2) Intimidation
(3) Undue influence
(4) Mistake
(5) Fraud
2. APPEARANCE OF AN UNKNOWN WILL
● This applies if the newly-discovered will is subsequent
to any will which may have formed the basis for the
acceptance or renouncement.
● The new will (assuming it is valid and admitted to
probate) reopens the whole affair and will call for a
new acceptance or renunciation.
ARTICLE 1057. Within thirty days after the court has issued
an order for the distribution of the estate in accordance with
the Rules of Court, the heirs, devisees and legatees shall
signify to the court having jurisdiction whether they accept or
repudiate the inheritance.
If they do not do so within that time, they are deemed to
have accepted the inheritance.
This is implied acceptance, i.e., failure to signify acceptance
or renunciation within the thirty-day period specified by this
article. Qui tacet consentire videtur.
INTESTATE ESTATE OF BORROMEO V BORROMEO
DOCTRINE:
Elements of an effective waiver:
1) Existence of right
2) Knowledge of existence
3) Intention to relinquish such right – must be shown
clearly and convincingly, indicative to relinquish
particular right and no other reasonable explanation of
his conduct is possible.
The circumstances of this case show that the signatories to
the waiver document did not have the clear and convincing
intention to relinquish their rights:
● In a compliance signed by 5 heirs wherein they
allegedly waived their rights to the contested lots, RESP
recognized and conceded that the petitioner, like the
other signatories to the waiver document, is an heir of
the deceased Vito Borromeo, entitled to share in the
estate
● Majority of the declared heirs executed an Agreement of
Partition which was approved by the Court
● On June 29, 1968, the petitioners executed a Deed of
Assignment and Deed of Conveyance purporting to
assign to RESPs their share in the inheritance
● On October 15, the Deeds were cancelled.
The prevailing jurisprudence on waiver of hereditary rights is
that "the properties included in an existing inheritance
cannot be considered as belonging to third persons with
respect to the heirs, who by fiction of law continue the
personality of the former. Nor do such properties have the
character of future property, because the heirs acquire a
right to succession from the moment of the death of the
deceased, by principle established in Art 657 and applied by
Art 661, according to which the heirs succeed the deceased
by the mere fact of death. More or less, time may elapse
from the moment of the death of the deceased until the heirs
enter into possession of the hereditary property, but the
acceptance in any event retroacts to the moment of the
death, in accordance with Art. 989. The right is vested,
although conditioned upon the adjudication of the
corresponding hereditary portion."
IMPERIAL V CA
DOCTRINE: our law on succession does not countenance
tacit repudiation of inheritance. Rather, it requires an
express act on the part of the heir.
● IN THE CASE: He was therefore not precluded from
subsequently seeking the reduction of the donation
under Article 772. Further, upon his death, Victor’s heirs
were not precluded from seeking the reduction.
● No renunciation of legitime may be presumed from said
acts (moving for execution). At the time of the
substitution, the judgment approving the compromise
agreement has already been rendered. Victor merely
participated in the execution of the compromise
judgment. He was not a party to the compromise
agreement. More importantly, our law on succession
does not countenance tacit repudiation of inheritance.
Rather, it requires an express act on the part of the heir.
● However, the action is barred by prescription. Contrary
to the lower courts’ ruling, the prescriptive period
applicable is not 30 years, but 10 years (actions based
upon an obligation created by law), which is reckoned
from the time of death of the donor-decedent. It is also
barred by laches. While Victor was alive, he gave no
indication of any interest to contest the donation of his
deceased father. As a lawyer, he should have known
that the fact that he actively participated in the case b/n
Imperial and Leoncio did not amount to renunciation.
Ricardo, his natural father, was even a lessee of a
portion of the donated property, and he could also have
instituted an action upon Victor’s death.
4. Executors and Administrators
ARTICLE 1058. All matters relating to the appointment,
powers and duties of executors and administrators and
concerning the administration of estates of deceased
persons shall governed by the Rules of Court.
The pertinent provisions of the Rules of Court are Rules 78-90.
ARTICLE 1059. If the assets of the estate of a decedent
which can be applied to the payment of debts are not
sufficient for that purpose, the provisions of articles 2239 to
2251 on Preference of Credits shall be observed, provided
that the expenses referred to in article 2244, No. 8, shall be
those involved in the administration of the decedent’s estate.
The provisions referred to are found in Title XIX, Concurrence
and Preference of Credits.
ARTICLE 1060. A corporation or association authorized to
conduct the business of a trust company in the Philippines
may be appointed as an executor, administrator, guardian of
an estate, or trustee, in like manner as an individual; but it
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shall not be appointed guardian of the person of a ward.
RULE 78 ROC governs the issuance of letters testamentary
and of administration and should be read together with this
article.
5. Collation
DEFINITION
1. COLLATION AS COMPUTATION (ART 908)
● This is a simple accounting or arithmetical process,
whereby the value of all donations inter vivos made
by the decedent is added to his available assets in
order to arrive at the value of the net hereditary
estate.
2. COLLATION AS IMPUTATION (ART 909 & 910)
● This is the process by which donations inter vivos
made by the decedent are correspondingly charged
either to the donee’s legitime or against the
disposable portion.
3. COLLATION AS RETURN (ART 909 & 910)
● This takes place when a donation inter vivos is found
to be inofficious (i.e. exceeds the disposable portion)
and so much of its value as is inofficious is returned to
the dece- dent’s estate to satisfy the legitimes
ARTICLE 1061. Every compulsory heir, who succeeds with
other compulsory heirs, must bring into the mass of the
estate any property or right which he may have received
from the decedent, during the lifetime of the latter, by way of
donation, or any other gratuitous title, in order that it may be
computed in the determination of the legitime of each heir,
and in the account of the partition.
MEANING OF THIS ARTICLE
This article refers to the computation of all donations inter vivos
made by the decedent, for the purpose of determining the
value of the net estate.
● This is exactly the same thing that is referred to in Art.
908, par 2. The process is purely arithmetical; it is merely
a paper computation.
WHAT SHOULD BE INCLUDED IN THE COMPUTATION
BALANE: This article seems to suggest that only donations
inter vivos to compulsory heirs need be computed. This is not
so
● All donations inter vivos—whether made to compulsory
heirs or to strangers—should be included in the
computation of the net hereditary estate.
● This is the third step in the process of computing the net
hereditary estate, as laid down in Article 908
VALUE TO BE COMPUTED
Only the value of the property donated at the time the donation
was made is to be computed, since in donations ownership
transfers at the time the donation is perfected
● Thus, any subsequent increase in value is for the donee’s
benefit, and any decrease is for his account.
PURPOSE OF ARTICLE
To determine the amount of the net estate so as to ensure that
the legitimes are not impaired
ARTICLE 1062. Collation shall not take place among
compulsory heirs if the donor should have so expressly
provided, or if the donee should repudiate the inheritance,
unless the donation should be reduced as inofficious.
COLLATION IN THE SENSE OF IMPUTATION
Donations inter vivos made by the decedent to a compulsory
heir are, as a general rule, imputed to or charged against the
heir’s legitime.
RULES ON IMPUTATION OF DONATION INTER VIVOS
A. DONATIONS INTER VIVOS TO COMPULSORY HEIRS
● GR: Should be imputed to the heir’s legitime; i.e.
considered as an advance on the legitime. This is the
same rule laid down in Articles 909 and 910
● EXCEPTIONS:
(1) If the donor provides otherwise; or
(2) If the donee renounces the inheritance, because
in this case the donee gives up his status as a
compulsory heir and therefore cannot be
considered as one.
● In case either exception applies, the donation will
have to be imputed to the free portion.
Q: Supposing the compulsory heir received a donation inter
vivos from the decedent but the value of the donation exceeds
the donee's legitime?
A: The donation will be imputed to the donee’s legitime to the
extent of the legitime’s value and the excess, to the free
portion.
B. DONATIONS INTER VIVOS TO STRANGERS
● imputed to the free portion
DONATIONS INTER VIVOS IMPUTED TO FREE PORTION
(1) When made to strangers
(2) When made to compulsory heirs, and the donor so
provides
(3) When made to compulsory heirs who renounce the
inheritance
(4) When in excess of the compulsory heir’s legitime, as to
the excess
ARTICLE 1063. Property left by will is not deemed subject
to collation, if the testator has not otherwise provided, but
the legitime shall in any case remain unimpaired.
COLLATION IN THE SENSE OF IMPUTATION
RULE ON TESTAMENTARY DISPOSITIONS TO
COMPULSORY HEIRS
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GR: They should not be imputed to the legitime, but to the free
portion. Hence, the compulsory heir receives the testamentary
disposition in addition to his legitime.
EX: If the testator provides otherwise
● Should the testator provide otherwise, the testamentary
disposition in favor of the heir will be merged with his
legitime. That will make the disposition illusory.
ARTICLE 1064. When grandchildren, who survive with their
uncles, aunts, or cousins, inherit from their grandparents in
representation of their father or mother, they shall bring to
collation all that their parents, if alive, would have been
obliged to bring, even though such grand-children have not
inherited the property.
They shall also bring to collation all that they may have
received from the decedent during his lifetime, unless the
testator has provided otherwise, in which case his wishes
must be respected, if the legitime of the co-heirs is not
prejudiced.
COLLATION IN THE SENSE OF IMPUTATION
SITUATION COVERED BY ARTICLE
Grandchildren inheriting by representation concurrently with
children (uncles and aunts of the grandchildren) who are
inheriting in their own right, or with other grandchildren
(cousins of the grandchildren).
WHAT THE GRANDCHILDREN HAVE TO COLLATE
(IMPUTE TO THEIR LEGITIME)
1. Whatever the parent whom they are representing would
have been obliged to collate; and
2. Whatever they themselves have received from the
grandparent by gratuitous title (subject to the same rules
and exceptions laid down in Article 1062)
ARTICLE 1065. Parents are not obliged to bring to collation
in the inheritance of their ascendants any property which
may have been donated by the latter to their children.
COLLATION IN THE SENSE OF IMPUTATION
A person should not collate what his parent gave to his child
since he is not the recipient of the conveyance.
WHAT PART OF ESTATE CONVEYANCE IMPUTABLE
The donation to the grandchild should be imputed to the free
portion, since it is a donation to a stranger.
ARTICLE 1066. Neither shall donations to the spouse of the
child be brought to collation; but if they have been given by
the parent to the spouses jointly, the child shall be obliged to
bring to collation one-half of the thing donated.
COLLATION IN THE SENSE OF IMPUTATION
Donations made by a person to his son-in-law or daughter-in-
law are separate property of the donee and, logically, should
not be imputed to the legitime of the donor’s child (the donee’s
spouse). (donation to a stranger)
If the donation is made to the spouses jointly, one-half belongs
to the donor’s child and should be treated in accor- dance with
Article 1062 and the other half of the property of the donor’s
son- or daughter-in-law and should be treated as a donation
to a stranger
● This presumption of equality of aliquot shares will yield to
a different designation by the donor.
ABSOLUTE COMMUNITY REGIME
Article 92: The following shall be excluded from the
community property.
(i) Property acquired during the marriage by gratuitous title by
either spouse, and the fruits as well as the income thereof, if
any, unless it is expressly provided by the donor, testator or
grantor that they shall form part of the community property.
CONJUGAL PARTNERSHIP REGIME
Article 109: The following shall be the exclusive property of
each spouse:
(2) That which each acquires during the marriage by gratuitous
title.
Article 113: Property donated or left by will to the spouses,
jointly and with designation of determinate shares, shall pertain
to the donee-spouse as his or her own exclusive property, and
in the absence of designation, share and share alike, without
prejudice to the right of accretion when proper.
ARTICLE 1067. Expenses for support, education, medical
attendance, even in extraordinary illness, apprenticeship,
ordinary equipment, or customary gifts are not subject to
collation.
COLLATION IN THE SENSE OF COMPUTATION
The expenses mentioned in this article should not even be
included in the computation of the decedent’s estate
● This is, in effect, a qualification of, or an exception to, the
rule in Art. 1061
● REASON: It would be extremely impractical, if not
impossible, to make an accounting of all these items
“SUPPORT”
The general coverage of support is defined in Article 194 of the
Family Code
Article 194: Support comprises everything indispensable for
sustenance, dwelling, clothing, medical attendance, education
and transportation, in keeping with the financial capacity of the
family.
The education of the person entitled to be supported referred
to in the preceding paragraph shall include his schooling or
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training for some profession, trade or vocation, even beyond
the age of majority. Transportation shall include expenses in
going to and from school, or to and from place of work
FOR PURPOSES OF THIS ARTICLE
It does not include expenses for the recipi- ent’s professional,
vocational, or other career, because those items are governed
by Article 1068
ARTICLE 1068. Expenses incurred by the parents in giving
their children a professional, vocational or other career shall
not be brought to collation unless the parents so provide, or
unless they impair the legitime; but when their collation is
required, the sum which the child would have spent if he had
lived in the house and company of his parents shall be
deducted therefrom.
COLLATION IN THE SENSE OF IMPUTATION
GR: The expenses incurred by the parents for the child’s
professional, vocational, or other career (i.e. courses beyond
the secondary level) are an exception the rule laid down in
Article 1062
● These expenses, if not inofficious, although donations,
should not be charged against the recipient’s legitime, but
against the free portion, unless the parents provide other-
wise.
CONTRARY PROVISION BY PARENTS
Should the parents provide otherwise, the child is entitled,
under this article, to deduct from the said amount the sum
corresponding to what his parents would have spent on him
had he stayed at home and loafed.
ARTICLE 1069. Any sums paid by a parent in satisfaction of
the debts of his children, election expenses, fines, and
similar expenses, shall be brought to collation.
COLLATION IN THE SENSE OF IMPUTATION
The items mentioned in this article constitute donations by the
parent to the child and, therefore, should be treated like other
donations to compulsory heirs under Article 1062.
ARTICLE 1070. Wedding gifts by parents and ascendants
consisting of jewelry, clothing, and outfit, shall not be
reduced as inofficious except insofar as they may exceed
one-tenth of the sum which is disposable by will.
BALANE: The sense of this article is vague, it is derived almost
verbatim from Art 1044 Spanish Code
● The only change is that the present article clarifies the
coverage of the provision; i.e. that it applies only to
wedding gifts given by parents or ascendants to children
or descendants
SCOPE AND OPERATION OF ARTICLE
The article covers only wedding gifts consisting of
jewelry, clothing, and wedding outfit, the items necessary
for an individual’s personal use
● It does not include other property, whether personal or real
—that would be governed by the provisions of Article 1062
The value of such wedding gifts cannot go beyond 1/10 of
the free portion of the donor’s estate
Any excess will be considered inofficious and should be
returned in the same manner and at the same time as other
inofficious donations
● As to the allowable 1/10, this is to be imputed to the free
portion
Q: Why should the gift be reduced as inofficious just because it
exceeds one-tenth of the free portion?
A: (MANRESA) The gift will be imputed to the free portion to
the extent of one-tenth of the free portion. Beyond that value,
the excess will be imputable to the recipient’s legitime
ARTICLE 1071. The same things donated are not to be
brought to collation and partition, but only their value at the
time of the donation, even though their just value may not
then have been assessed.
Their subsequent increase or deterioration and even their
total loss or destruction, be it accidental or culpable, shall be
for the benefit or account and risk of the donee.
COLLATION AS COMPUTATION AND IMPUTATION
WHAT VALUE IS TO BE COMPUTED AND IMPUTED
1. Only the value of the thing donated at the time the
donation was made should be considered in the
computation of the donor’s estate (ART 908)
2. Only the thing’s value at the time the donation was made
should be imputed whether to the legitime or the free
portion
REASON: Any appreciation or depreciation of the thing after
that time should be for the donee’s account, since the donation
transfers ownership to him.
ARTICLE 1072. In the collation of a donation made by both
parents, one-half shall be brought to the inheritance of the
father, and the other half, to that of the mother. That given
by one alone shall be brought to collation in his or her
inheritance.
COLLATION AS COMPUTATION AND IMPUTATION
JOINT DONATIONS
The first sentence of this article presupposes either a regime of
absolute community or of conjugal partnership between the
donor spouses.
● A joint donation by them will be treated, upon the
dissolution of the property regime, as pertaining in equal
shares to the estate of each.
110
DONATIONS BY ONE PARENT ALONE
Such a donation will be of separately-owned property and
should be treated as such.
ARTICLE 1073. The donee’s share of the estate shall be
reduced by an amount equal to that already received by him;
and his co-heirs shall receive an equivalent, as much as
possible, in property of the same nature, class and quality.
COLLATION AS IMPUTATION
This article requires not only equivalence in amount, but, as far
as possible, also in the kind of property received.
● This will yield to a different agreement among the heirs.
ARTICLE 1074. Should the provisions of the preceding
article be impracticable, if the property donated was
immovable, the co-heirs shall be entitled to receive its
equivalent in cash or securities, at the rate of quotation; and
should there be neither cash nor marketable securities in the
estate, so much of the other property as may be necessary
shall be sold at public auction.
If the property donated was movable, the co-heirs shall only
have a right to select an equivalent of other personal
property of the inheritance at its just price.
This article provides for the closest analogue to strict
equivalence, in case there are not enough of the same
things to distribute among all.
This will yield to a contrary agreement among the heirs
ARTICLE 1075. The fruits and interest of the property
subject to collation shall not pertain to the estate except from
the day on which the succession is opened.
For the purpose of ascertaining their amount, the fruits and
interest of the property of the estate of the same kind and
quality as that subject to collation shall be made the
standard of assessment.
COLLATION IN THE SENSE OF RETURN
RATIONALE: If any donation turns out to be inofficious, then
the obligation to return it to the estate arises as of the time the
succession vests; i.e. the time of the decedent’s death,
because it is from that time that the compulsory heir’s right to
the inheritance becomes absolute (Article 777).
● From that time therefore the compulsory heir is entitled to
the fruits.
EXTENT OF RIGHT TO FRUITS
1. The entirety of the fruits and interests shall pertain to the
compulsory heir, only if the donation is totally inofficious.
2. If the donation is only partially inofficious, the right to the
fruits and interests shall be prorated between the
compulsory heir and the donee, in proportion to their
respective interests over the property.
ARTICLE 1076. The co-heirs are bound to reimburse to the
donee the necessary expenses which he has incurred for
the preservation of the property donated to him, though they
may not have augmented its value.
The donee who collates in kind an immovable, which has
been given to him, must be reimbursed by his co-heirs for
the improvements which have increased the value of the
property, and which exist at the time the partition is effected.
As to works made on the estate for the mere pleasure of the
donee, no reimbursement is due him for them; has,
however, the right to remove them, if he can without injuring
the estate.
COLLATION IN THE SENSE OF RETURN
The rules in this article govern necessary (PAR 1), useful
(PAR 2), and ornamental (PAR 3) expenses incurred by the
donee who is now obliged to return.
TOTAL OR PARTIAL RETURN
The extent of the application of the rules in this article de-
pends on the extent of the obligation to return, thus:
1. If the thing has to be returned in its entirety (i.e. the
donation is totally inofficious)—
a. Necessary expenses - Reimbursement must be to
the full extent of the expenses incurred (Art 546 par 1)
b. Useful expenses - Reimbursement must like- wise
be to the full extent provided that the improve-ment is
still in existence (Art 546 par 2)
c. Ornamental expenses - No reimbursement
demandable, but right of removal granted if no injury
to the estate will be caused (Art 548)
2. If the thing has to be returned only in part (i.e. the
donation is only partially inofficious)—
a. Necessary and useful expenses - The
reimbursement is also partial, in proportion to the
value to be returned.
b. Ornamental expenses - The same rule as in total
return, unless the property is physically divided and
the ornament happens to be located in the portion
assigned to the donee, in which case he will have all
the rights of ownership.
ART. 546, par. 1. Necessary expenses shall be refunded to
every possessor; but only the possessor in good faith may
retain the thing until he has been reimbursed therefor.
ART. 546, par. 2. Useful expenses shall be refunded only to
the pos- sessor in good faith with the same right of retention,
the person who has de- feated him in the possession having
the option of refunding the amount of the expenses or of
paying the increase in value which the thing may have
acquired by reason thereof.
ART. 548. Expenses for pure luxury or mere pleasure shall not
be refunded to the possessor in good faith; but he may remove
the ornaments with which he has embellished the principal
111
thing if it suffers no injury thereby, and if his successor in the
possession does not prefer to refund the amount expended
CONFUSING TERMINOLOGY
BALANE: (as pointed out by JUSTICE JBL REYES and
SENATOR TOLENTINO): The situation treated in this article is
really a case of reduction of inofficious donations and the rules
set forth in this article really belong in the provisions on
inofficious donations in Articles 909, 910, and 911
● A good deal of confusion would have been avoided if the
Code had not insisted on using the term collation so
variedly.
ARTICLE 1077. Should any question arise among the co-
heirs upon the obligation to bring to collation or as to the
things which are subject to collation, the distribution of the
estate shall not be interrupted for this reason, provided
adequate security is given.
The division and distribution of the estate can be made
partially, should there be controversy as to the inclusion of
certain items either in the computation of the estate’s value or
the imputation of heirs’ shares.
● The distribution can proceed on the items that are not
controverted.
ARTICLE 908. 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.
To the net value of the hereditary estate, shall be added the
value of all donations by the testator that are subject to
collation, at the time he made them.
NET HEREDITARY ESTATE
Articles 888-903 set forth the legitimes of the compulsory heirs,
either inheriting alone or in various combinations.
● Those articles gave the legitimes in the form of fractions,
or proportions, of the decedent’s estate.
● This article makes possible the computation of the
absolute amounts of the legitimes by laying down the
manner of computing the net value of the estate (the net
hereditary estate), on which the proportions are based.
MANNERS OF COMPUTING THE HEREDITARY ESTATE
The process has three steps:
1. Inventory of all the existing assets
● This will involve an appraisal/valuation of these
existing assets at the time of the decedent’s death.
● These assets include only those properties that
survive the decedent; le., those which are not
extinguished by his death.
● The value determined by this inventory will constitute
the gross assets.
2. Deducting unpaid debts and charges
● All unpaid obligations of the decedent should be
deducted from the gross assets.
● Only those obligations with monetary value which are
not extinguished by death are con- sidered here.
Thus, those obligations which are purely personal
(intuitu personae) are not taken into account.
● The difference between the gross assets and the
unpaid obligations will be the available assets.
3. Adding the value of donations inter vivos
● To the available assets should be added all the inter
vivos donations made by the decedent.
● The donations inter vivos shall be valued as of the
time they were respectively made. Any increase or
decrease in value from the time they were made to
the time of the decedent’s death shall be for the
donee’s account, since donation transfers ownership
to the donee.
● The sum of the available assets and all the donations
inter vivos is the net hereditary estate.
ARTICLE 909. Donations given to children shall be charged
to their legitime.
Donations made to strangers shall be charged to that part of
the estate of which the testator could have disposed by his
last will.
Insofar as they may be inofficious or may exceed the
disposable portion, they shall be reduced according to the
rules established by this Code.
Donations inter vivos to compulsory heirs—Donations inter
vivos to a compulsory heir shall be imputed to his legitime, Le.,
considered as an advance on his legitime.
RULE: This rule applies to all compulsory heirs. [Note that
these two articles omit—inadvertently—ascendants who
succeed as compulsory heirs.
● This rule applies to them as well. For obvious reasons, this
rule has no application to a surviving spouse, except in
cases of donations propter nuptias and moderate gifts
under Article 87 Family Code
EXCEPTION: This rule of imputation to the legitime will not
apply if the donor provided otherwise [Vide Art. 1062), in which
case the donation will be imputed to the disposable portion of
the estate.
DONATION INTER VIVOS TO STRANGERS
1. A stranger is anyone who does not succeed as a
compulsory heir.
2. Donations inter vivos to strangers are necessarily imputed
to the disposable portion.
This matter is more fully—and more confusingly (because of
the multiple senses of the word collation)—treated in Chapter
4, Section 5 (Arts. 1061-1077)
DE ROMA V CA
DOCTRINE: There is nothing in the above provisions
112
expressly prohibiting the collation of the donated properties.
The phrase "sa pamamagitan ng pagbibigay na di na
mababawing muli" merely described the donation as
"irrevocable" and should not be construed as an express
prohibition against collation. The fact that a donation is
irrevocable does not necessarily exempt the subject
thereof from the collation required under Art 1061.
● From the use of such terms as "legitime" and "free
portion" in the deed of donation, it was prepared by a
lawyer who understood the legal consequences of the
donation being made. Given the precise language of the
document, he would have included an express
prohibition to collate if that had been the donor's
intention. Anything less than such express prohibition
will not suffice under the clear language of Art 1062.
● That there was an implied prohibition because the
properties donated were imputable to the free portion of
the decedent's estate merits little consideration.
Imputation is not the question here, nor is it claimed that
the disputed donation is officious. The sole issue is
whether or not there was an express prohibition to
collate, and we see none.
● The intention to exempt from collation should be
expressed plainly and unequivocally as an exception to
the general rule in Art. 1062. Absent such a clear
indication of that intention, we apply not the exception
but the rule.
VDA. DE TUPAS V. RTC
DOCTRINE: A person's prerogative to make donations is
subject to certain limitations, one of which is that he cannot
give by donation more than he can give by will
● Such a donation is, moreover, collationable that is, its
value is imputable into the hereditary estate of the
donor at the tune of his death for the purpose of
determining the legitime of the forced or compulsory
heirs and the freely disposable portion of the estate.
● The fact that the donated property no longer actually
formed part of the estate of the donor at the time of his
death cannot be asserted to prevent its being brought to
collation. Indeed, it is an obvious proposition that
collation contemplates and particularly applies to gifts
inter vivos. The further fact that the lots donated were
admittedly capital or separate property of the donor is of
no moment, because a claim of inofficiousness does not
assert that the donor gave what was not his, but that he
gave more than what was within his power to give.
● Since it is clear that the questioned donation is
collationable and that, having been made to a stranger
(to the donor) it is, by law chargeable to the freely
disposable portion of the donor's estate, to be reduced
insofar as inofficious, i.e., it exceeds said portion and
thus impairs the legitime of the compulsory heirs, in
order to find out whether it is inofficious or not, recourse
must be had to the rules established by the Civil Code
for the determination of the legitime and, by extension,
of the disposable portion
and the liabilities, giving rise to the hereditary estate;
4. The addition to the net value thus found, of the value, at
the time they were made, of donations subject to
collation; and
5. The determination of the amount of the legitimes by
getting from the total thus found the portion that the law
provides as the legitime of each respective compulsory
heir.
Deducting the legitimes from the net value of the hereditary
estate leaves the freely disposable portion by which the
donation in question here must be measured. If the value of
the donation at the time it was made does not exceed that
difference, then it must be allowed to stand. But if it does,
the donation is inofficious as to the excess and must be
reduced by the amount of said excess. In this case, if any
excess be shown, it shall be returned or reverted to the
widow as the sole compulsory heir of the deceased Epifanio
Tupas.
ADAN V CASILI
DOCTRINE: Under Art. 1041: allowances for support,
education, attendance in illness, apprenticeship, ordinary
equipment or customary presents are not subject to
collation.
● BUT under Art. 1042, the code provides that expenses
which may have been incurred by the parents in giving
their children a professional or artistic career shall not
be brought to collation unless the parent so orders or
they encroach upon the legitime. Also, in cases in which
it is proper to collate them, the money which the child
would have spent if it had lived in the house and
company of its parents shall be deducted therefrom
● Since the career of surveyor is a professional one and
since the expenses incurred by Simplicia in giving him
that career encroached upon the legitime, it is proper to
collate one-half of the amount spent by her for him
during his studies, the other half being considered as
the amount which the plaintiff would have spent if he
had lived with her

Step-by-step procedure
1. Determination of the value of the property which
remains at the time of the testator's death;
2. Determination of the obligations, debts, and charges
which have to be paid out or deducted from the value of
the property thus left;
3. The determination of the difference between the assets

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VI. PARTITION AND
DISTRIBUTION OF ESTATE
1. Partition
The immediate effect of the decedent’s death is the
vesting of the successional rights of the successor (Art
777)
● What the successors acquire vested rights over is the net
estate, and the net state is what remains after all the
unpaid debts of the decedent are paid, and the value of all
the donations inter vivos is added
● THUS, debts first have to be paid; it is possible, if the
debts exceed the assets, that after the debts are paid,
there will be no estate to speak of.
● HOWEVER, if the decedent’s gross assets exceed his
liabilities, or if there are inofficious donations to be
returned, his net estate passes to his successors (heirs,
legatees, devisees) at the precise moment of death.
The estate is a mass of properties, usually consisting of
various items.
● The immediate effect of the decedent’s death - as far as
successional law is concerned—is a co-ownership of the
heirs over the entire mass. (The legatees and devisees
will acquire a right to the specific items given to them,
assuming the legacies and devises are not inofficious).
The actual partition of the estate among the heirs,
terminating co-ownership can be done basically through
two methods:
1. Extrajudicial agreement among the heirs; or
2. Judicial proceedings
SEQUENCE
1. Upon decedent’s death
● Co-ownership of heirs over net hereditary or partible
estate
2. Subsequent partition
a. By extrajudicial agreement (Rule 74 Sec 1 ROC)
b. Through judicial order in appropriate settlement
proceedings (Rule 90 ROC)
ARTICLE 1078. Where there are two or more heirs, the
whole estate of the decedent is, before its partition, owned in
common by such heirs, subject to the payment of debts of
the deceased
ARTICLE 1079. Partition, in general, is the separa- tion,
division and assignment of a thing held in common among
those to whom it may belong. The thing itself may be
divided, or its value.
Partition ends the co-ownership among the co-heirs as to
the thing partitioned
KINDS OF PARTITION
1. ACTUAL
● Physical division of the thing among the co-heirs
2. CONSTRUCTIVE
● Any act, other than physical division, which terminates
the co-ownership (such as sale to a third person)
ARTICLE 1080. Should a person make a partition of his
estate by an act inter vivos, or by will, such partition shall be
respected, insofar as it does not prejudice the legitime of the
compulsory heirs.
A parent who, in the interest of his or her family, desires to
keep any agricultural, industrial, or manufacturing enterprise
intact, may avail himself of the right granted him in this
article, by ordering that the legitime of the other children to
whom the property is not assigned, be paid in cash.
PARTITION BY THE CAUSANTE
The causante (decedent) can himself effect the partition of his
estate.
NATURE OF PARTITION BY CAUSANTE
A partition made by the causante has the following
characteristics
a. It takes effect only upon death
b. It is revocable as long as the caustante is alive
● hence the causante can change or modify it or even
rescind it during his lifetime
These characteristics stem from the fact that the partition is
based on succession as the mode of transfer, and succession
is necessarily mortis causa.
● Succession, in our law, cannot take place during the
causante's lifetime; that would be a donation inter vivos,
not succession.
ZARAGOZA V CA: In no case can the legitimes be impaired
HOW CAUSANTE MAY MAKE THE PARTITION
1. By will
2. By act inter vivos
● Form of partition by act inter vivos - There is authority
to the effect that a partition inter vivos should be in
writing and in a public instrument.
Q: In case of a partition inter vivos, must there be a prior will?
A: A mere partition inter vivos which does not observe the
formalities of a will cannot, by itself, make testamentary
dispositions, because that would circumvent the requirement of
law that dispositions mortis causa can be made only by means
of a will.
● A person cannot, in the guise of making a partition, make
disposition of property to take effect upon his death.
114
LEGASTO V VERZOSA: A partition inter vivos is valid only if
there is a supporting will on which the partition is based.
ALSUA-BETTS V CA: The partition inter vivos is void even if a
subsequent will is executed in conformity with the provisions of
the prior partition.
BALANE: The cases mentioned were all decided under Article
1056 of the Spanish Code, which is the predecessor provision
of the present Art 1080.
● The original provision specified “testator”, Article 1080
says “person”
● Under the present provision, a partition inter vivos can be
validly made even without a prior supporting will, provided
that it is not used to make mortis causa dispositions
● Nothing can take the place of a will to dispose of
property mortis causa
● HENCE, the only way a partition without a will can be valid
is by following strictly the intestate portions provided by
law; i.e. the partition should conform exactly to the
portions provided by law in intestate succession, for then
the causante would not be making testamentary
dispositions in the partition—the dispositions would be by
virtue of intestate succession.
LIMITATION ON PARTITION BY CAUSANTE
The legitimes of the causante’s compulsory heirs cannot be
impaired by partition made by him, whether in a will or by an
act inter vivos.
● This limitation is obvious, in light of Article 904
PAR 2 PARTITION TO KEEP AN ENTERPRISE INTACT
1. It seems only a parent is allowed the privilege of this
paragraph.
2. This privilege (to make the partition in such a way as to
keep the enterprise intact) can be exercised only if enough
cash or other property is available to satisfy the legitimes
of the other children. Under no circumstances should
the legitimes be impaired.
ARTICLE 1081. A person may, by an act inter vivos or
mortis causa, intrust the mere power to make the partition
after his death to any person who is not one of the co- heirs.
The provisions of this and of the preceding article shall be
observed even should there be among the co-heirs a minor
or a person subject to guardianship; but the mandatary, in
such case, shall make an inventory of the property of the
estate, after notifying the co-heirs, the creditors, and the
legatees or devisees.
MANDATORY CANNOT BE A CO-HEIR
The reason for this prohibition is to ensure fairness and
impartiality
ARTICLE 1082. Every act which is intended to put an end to
indivision among co-heirs and legatees or devisees is
deemed to be a partition, although it should purport to be a
sale, an exchange, a compromise, or any other transaction.
CONSTRUCTIVE PARTITION
Partition may be actual or constructive.
ARTICLE 1083. Every co-heir has a right to demand the
division of the estate unless the testator should have
expressly forbidden its partition, in which case the period of
indivision shall not exceed twenty years as provided in
article 494. This power of the testator to prohibit division
applies to the legitime.
Even though forbidden by the testator, the co-ownership
terminates when any of the causes for which partnership is
dissolved takes place, or when the court finds for compelling
reasons that division should be ordered, upon petition of one
of the co-heirs.
PARTITION GENERALLY A MATTER OF RIGHT
GR: Any co-heir may demand partition at any time. This is the
same rule laid down in Article 494, par 1
EX: There are some instances when partition cannot be
demanded
1. When forbidden by the testator (for a period not exceeding
20 years) [This enforced co-ownership may cover even
the legitimes].
● EX OF EX:
a. Partition may be demanded when any of the
causes for the dissolution of a partnership occurs
(Art 1830-1831)
b. When the court finds compelling reasons for
partition
2. When the co heirs agree on indivision (for a period not
exceeding 10 years, renewable for like periods) (Article
494, par. 2)
3. When the law prohibits partition (e.g. Art. 159, Family
Code)
ARTICLE 1084. Voluntary heirs upon whom some condition
has been imposed cannot demand a partition until the
condition has been fulfilled; but the other co-heirs may
demand it by giving sufficient security for the rights which
the former may have in case the condition should be
complied with, and until it is known that the condition has not
been fulfilled or can never be complied with, the partition
shall be understood to be provisional.
APPLICATION OF ARTICLE
Institutions with a suspensive condition
RATIONALE
1. The heir instituted under a suspensive condition acquires
no rights unless and until the condition happens.
2. The other heirs not so instituted, however, should not be
deprived of their right to demand partition, subject to the
obligation to protect the inchoate right of the conditional
heir, by furnishing adequate security.
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ARTICLE 1085. 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.
EQUALITY AMONG CO-HEIRS
1. QUANTITATIVE
● The shares of the co-heirs are not necessarily equal
in value, but are determined by law and by will.
2. QUALITATIVE
● Whatever the aliquot portions be, however, the law
mandates equality in nature, kind, and quality, so that
if A gets a parcel of rice land, B should also be given
one.
Like Article 1073, this article considers both qualitative and
quantitative equality as ideal.
EXCEPTIONS/QUALIFICATIONS TO THE REQUIREMENT
OF QUALITATIVE EQUALITY
a. if the causante has made the partition himself;
b. if the co-heirs agree otherwise;
c. if qualitative equality impossible or impracticable
ARTICLE 1086. Should a thing be indivisible, or would be
much impaired by its being divided, it may be adjudicated to
one of the heirs, provided he shall pay the others the excess
in cash.
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.
ANOTHER INSTANCE OF CONSTRUCTIVE PARTITION
Sale of the thing and division of the proceeds among the heirs.
● This will have to be resorted to if the thing is essentially
indivisible or if physical partition will so diminish its value
that it becomes unserviceable or useless.
TO WHOM THING MAY BE SOLD:
1. To a third person, or
2. If none of the co-heirs object, to any one of them who is
interested.
If more than one are interested in buying, they may buy it
jointly and have the proceeds distributed among the others to
the extent of their respective shares. But the co- ownership will
continue as to the buyers.
ARTICLE 1087. In the partition the co-heirs shall reimburse
one another for the income and fruits which each one of
them may have received from any property of the estate, for
any useful and necessary expenses made upon such
property, and for any damage thereto through malice or
neglect.
MUTUAL ACCOUNTING
Upon partition, the co-heirs shall render a mutual accounting of
benefits received and expenses (necessary and useful)
incurred by each of them.
THUS, any heir who, between the decedent’s death and
partition time, received fruits from the estate shall reimburse
his co-heirs their respective shares, in proportion to the
hereditary interest of each
● Similarly, any heir who incurred necessary or useful
expenses on the hereditary estate may demand
reimbursement from his co-heirs in the same proportion.
ARTICLE 1088. 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 month from the time they were
notified in writing of the sale by the vendor.
RIGHT OF AN HEIR TO CONVEY SHARE BEFORE
PARTITION
It has already been pointed out earlier that successional rights
vest upon the decedent’s death.
● An heir may dispose of his aliquot share after that time; he
may do this gratuitously or onerously
RIGHT OF REDEMPTION IN CASE OF SALE
In the event any co-heir sells his aliquot portion to a stranger
before partition time, this article entitles any co-heir to redeem
the portion sold.
1. Sale must be to a stranger - A stranger within the
meaning of this article is anyone who is not a co- heir
2. When right of redemption may be exercised - The right
may be exercised only before partition, not after
REQUIREMENT OF WRITTEN NOTICE
The article gives the co-heirs the right of redemption, which
can be exercised within one month from written notice to them
by the vendor.
● Written notice, therefore is required; without it the period
does not commence to run.
The Supreme Court has, as a rule, interpreted this requirement
of written notice strictly.
● HOWEVER, the Court in some cases relaxed the
requirement of written notice and held that actual notice to,
or knowledge by, the co-heir achieves the purpose of the
law and meets the legal requirement
ARTICLE 1088 AND ARTICLE 1620
Article 1620 lays down the same rule as Article 1088
● Article 1620 applies where the co-ownership covers
specific property: Article 1088, where the co-ownership
covers the mass of the hereditary estate. But the
distinction is academic. The rule is the same.
WHERE MORE THAN ONE CO-OWNER WISH TO REDEEM
Implicit in Article 1088—And explicit in Article 1620—is that, in
such a case, all the co-owners wishing to redeem may do so,
116
but in proportion to each one’s hereditary interest over the
mass.
ARTICLE 1089. The titles of acquisition or ownership of
each property shall be delivered to the co-heir to whom said
property has been adjudicated.
This is particularly important in case of registered land because
the old title has to be surrendered so that a new title in the
name of the heir may be issued.
ARTICLE 1090. When the title comprises two or more
pieces of land which have been assigned to two or more co-
heirs, or when it covers one piece of land which has been
divided between two or more co-heirs, the title shall be
delivered to the one having the largest interest, and
authentic copies of the title shall be furnished to the other
co-heirs at the expense of the estate. If the interest of each
co-heir should be the same, the oldest shall have the title.
This article only provides for the right over the document.
The co-heirs, however, have the right to have the title divided
into individual titles, a separate one for each of the owners to
correspond to the separate portions held by them respectively.
ARTICLE 1091. A partition legally made confers upon each
heir the exclusive ownership of the property adjudicated to
him.
This article merely points out the obvious effect of partition; i.e.,
the termination of co-ownership.
ARTICLE 1092. After the partition has been made, the co-
heirs shall be reciprocally bound to warrant the title to, and
the quality of, each property adjudicated.
OBLIGATION OF MUTUAL WARRANTY
Partition among co-heirs imposes upon them the same mutual
obligation of warranties imposed among co-owners in general
RULE ON WARRANTIES
The applicable rules on warranties are found in Articles 1547-
1580, in the Title on Sales, insofar as those articles are not
inconsistent with the rules given in this subsection.
ARTICLE 1093. The reciprocal obligation of warranty
referred to in the preceding article shall be proportionate to
the respective hereditary shares of the co-heirs; but if any
one of them should be insolvent, the other co-heirs shall be
liable for his part in the same proportion, deducting the part
corresponding to the one who should be indemnified.
Those who pay for the insolvent heir shall have a right of
action against him for reimbursement, should his financial
condition improve.
PROPORTIONAL LIABILITY OF CO-HEIR ON WARRANTY
Burdens should be proportional to benefits
INSOLVENCY OF ONE OF OBLIGORS
Should one of the co-heirs bound to make good the warranty
be insolvent, his portion shall be borne proportionally by all,
including the one entitled to the warranty:
EXAMPLE:
1. Co-heirs are A, B, C, D, and E in equal shares of
P60,000.00 each.
2. B claims warranty for the total amount of his share, for
having been evicted.
3. A, C, D, and E have to contribute P12,000.00 each to
make good the warranty. (Since there was eviction in the
amount of P60,000.00, it follows that the total value to be
partitioned was only P240,000.00; hence, P48,000.00
each).
4. Should A be insolvent, his share of P12,000.00 shall be
borne by all the others, including B. Hence, C, D, and E
have to contribute P3,000.00 more, making their individual
liability P15,000.00. B receives a total of P45,000.00 hav-
ing borne his own share of P3,000.00 from A’s insolvency
EXCEPTION TO RIGHT TO REIMBURSEMENT FROM
INSOLVENT OBLIGOR
The obvious exception to this is insolvency judicially declared,
under the Insolvency Law, since judicially declared insolvency
extinguishes all obligations
ARTICLE 1094. An action to enforce the warranty among
co-heirs must be brought within ten years from the date the
right of action accrues.
ARTICLE 1095. If a credit should be assigned as collectible,
the co-heirs shall not be liable for the subsequent insolvency
of the debtor of the estate, but only for his insolvency at the
time the partition is made.
The warranty of the solvency of the debtor can only be
enforced during the five years following the partition.
Co-heirs do not warrant bad debts, if so known to, and
accepted by the distributee. But if such debts are not
assigned to a co-heir, and should be collected, in whole or in
part, the amount collected shall be distributed
proportionately among the heirs.
CREDIT ASSIGNED TO CO-HEIR IN PARTITION
The warranty covers only insolvency of the decedent’s debtor
at the time of partition, not subsequent insolvency, for which
the co-heir takes the risk.
Foolhardy is the co-heir who will accept a collectible as part of
his share in the partition.
● A credit, even under the best of circumstances, is aleatory.
Pqjaro en la mono mejor que cien volando.
117
This warranty has a special prescriptive period of five
years.
BAD DEBTS ASSIGNED TO A CO-HEIR
A co-heir who accepts a known bad debt as his share is either
a fool or a masochist.
ARTICLE 1096. The obligation of warranty among co- heirs
shall cease in the following cases:
(1) When the testator himself has made the partition,
unless it appears, or it may be reasonably presumed,
that his intention was otherwise, but the legitime shall
always remain unimpaired;
(2) When it has been so expressly stipulated in the
agreement of partition, unless there has been bad faith;
(3) When the eviction is due to a cause subsequent to the
partition, or has been caused by the fault of the distrib-
utee of the property.
This article enumerates the instances when there is no mutual
warranty. It is not accurate to refer to it as a cessation, since
there was none to begin with.
These are:
1. Partition by the testator himself (save where the legitime
has been impaired):
2. Agreement among the co-heirs to suppress the warranty;
3. Supervening events causing the loss or the diminution in
value;
4. Fault of the co-heir;
5. Waiver.
LEGASTO V VERZOSA
DOCTRINE: A testator may, by an act inter vivos, partition
his property, but he must first make a will with all the
formalities provided for by law. And it could not be
otherwise, for without a will there can be no testator.
● When the law, therefore, speaks of the partition inter
vivos made by a testator of his property, it necessarily
refers to that property which he has devised to his heirs.
● A person who disposes of his property gratis inter vivos
is not called a testator, but a donor. In employing the
word "testator," the law evidently desired to distinguish
between one who freely donates his property in life and
one who disposes of it by will to take effect after his
death.
● IN THE CASE AT BAR, Sabina Almadin must have
been aware of the necessity of a prior will, since before
making the partition of her property among her nieces,
the defendants herein, she executed a will giving to
each of them the same parcels of land which she later
transferred to them gratuitously.
● As Sabina Almadin's will was disallowed for the reason
that it did not contain all the essential requisites
provided by law for its validity, it cannot be said that the
partition of her estate made among her nieces is valid,
as per Sec 625 of the Civil Procedure
● And since Sabina Almadin's will is null and void for lack
of the legal requisites, consequently, the partition which
she made of her estate among her nieces the
defendants-appellants herein, during her lifetime is
likewise null and void.
TUASON V TUASON JR
DOCTRINE: The provisions of Art 400 are not applicable.
The contract is far from violating the legal provision that
forbids a co-owner being obliged to remain a party to the
community, precisely has for its purpose and object the
dissolution of the co- ownership and of the community by
selling the parcel held in common and dividing the proceeds
of the sale among the co-owners.
● The obligation imposed in the contract to preserve the
co-ownership until all the lots shall have been sold, is a
mere incident to the main object of dissolving the co-
owners.
● By virtue of the document, the parties thereto practically
and substantially entered into a contract of partnership
as the best and most expedient means of eventually
dissolving the co-ownership, the life of said partnership
to end when the object of its creation shall have been
attained.
GARCIA V CALALIMAN
DOCTRINE: No notification in writing was ever received by
petitioners about the sale of the hereditary interest of some
of their co-heirs in the parcel of land they inherited from
Gelacio.
● Petitioners came to know that their co-heirs were selling
the property on December 3, 1954 when one of the
heirs, Juanito Bertomo, asked Petitioner Paz Garcia to
sign a document prepared in the Municipality of
Tubungan because the land they inherited was going to
be sold to private respondent, Jose Calaliman.
● Written notice is indispensable, actual knowledge of the
sale acquired in some other manners by the
redemptioner, notwithstanding. He or she is still entitled
to written notice, as exacted by the Code, to remove all
uncertainty as to the sale, its terms and its validity, and
to quiet any doubt that the alienation is not definitive.
● Both the letter and spirit of the new Civil Code argue
against any attempt to widen the scope of the notice
specified in Article 1088 by including therein any other
kind of notice, such as verbal or by registration. If the
intention of the law had been to include verbal notice or
any other means of information as sufficient to give the
effect of this notice, then there would have been no
necessity or reasons to specify in Article 1088 that the
said notice be made in writing for, under the old law, a
verbal notice or information was sufficient.
RIVERA V DIZON
DOCTRINE: The testator's wishes and intention constitute
the first and principal law in the matter of testaments, when
expressed clearly and precisely in his last will amount to the
only law whose mandate must imperatively be faithfully
obeyed and complied with by his executors, heirs and
devisees and legatees, and neither these interested parties
nor the courts may substitute their own criterion for the
testator's will.
● The testatrix’ testamentary disposition was in the nature
of a partition of her estate by will. Thus, in the third
paragraph of her will, after commanding that upon her
death all her obligations as well as the expenses of her
last illness and funeral and the expenses for probate of
her last will and for the administration of her property in
accordance with law, be paid, she expressly provided
118
 that "it is my wish and I command that my property be
divided" in accordance with the dispositions immediately
thereafter following, whereby she specified each real
property in her estate and designated the particular heir
among her seven compulsory heirs and seven other
grandchildren to whom she bequeathed the same.
● This was a valid partition of her estate as contemplated
and authorized in Article 1080
● IN THE CASE AT BAR, this was properly complied with
in the executrix-appellee's project of partition, wherein
the five oppositors-appellants namely Estela,
Bernardita, Angelina, Josefina and Lilia, were
adjudicated the properties respectively distributed and
assigned to them by the testatrix in her will, and the
differential to complete their respective legitimes of
P129,362.11 each were taken from the cash and/or
properties of the executrix-appellee, Marina, and their
co- oppositor-appellant, Tomas, who admittedly were
favored by the testatrix and received in the partition by
will more than their respective legitimes.
● The testamentary dispositions of the testatrix, being
dispositions in favor of compulsory heirs, do not have to
be taken only from the free portion of the estate, as
contended
● Here, we have a case of a distribution and partition of
the entire estate by the testatrix, without her having
made any previous donations during her lifetime which
would require collation to determine the legitime of each
heir nor having left merely some properties by will which
would call for the application of Articles 1061 to 1063 of
the Civil Code on collation. The amount of the legitime
of the heirs is here determined and undisputed.
● Their right was merely to demand completion of their
legitime under Article 906 of the Civil Code and this has
been complied with in the approved project of partition,
and they can no longer demand a further share from the
remaining portion of the estate, as bequeathed and
partitioned by the testatrix principally to the executrix-
appellee.
2. Extrajudicial Partition by Heirs
RULE 74 Summary Settlement of Estate
Section 1. Extrajudicial settlement by agreement between
heirs. — If the decedent left no will and no debts and the
heirs are all of age, or the minors are represented by their
judicial or legal representatives duly authorized for the
purpose, the parties may without securing letters of
administration, divide the estate among themselves as they
see fit by means of a public instrument filed in the office of
the register of deeds, and should they disagree, they may do
so in an ordinary action of partition. If there is only one heir,
he may adjudicate to himself the entire estate by means of
an affidavit filled in the office of the register of deeds. The
parties to an extrajudicial settlement, whether by public
instrument or by stipulation in a pending action for partition,
or the sole heir who adjudicates the entire estate to himself
by means of an affidavit shall file, simultaneously with and
as a condition precedent to the filing of the public
instrument, or stipulation in the action for partition, or of the
affidavit in the office of the register of deeds, a bond with the
said register of deeds, in an amount equivalent to the value
of the personal property involved as certified to under oath
by the parties concerned and conditioned upon the payment
of any just claim that may be filed under section 4 of this
rule. It shall be presumed that the decedent left no debts if
no creditor files a petition for letters of administration within
two (2) years after the death of the decedent.
The fact of the extrajudicial settlement or administration shall
be published in a newspaper of general circulation in the
manner provided in the nest succeeding section; but no
extrajudicial settlement shall be binding upon any person
who has not participated therein or had no notice thereof.
3. Effect of Partition
ARTICLE 1091. A partition legally made confers upon each
heir the exclusive ownership of the property adjudicated to
him.
This article merely points out the obvious effect of partition; i.e.,
the termination of co-ownership.
ARTICLE 1092. After the partition has been made, the co-
heirs shall be reciprocally bound to warrant the title to, and
the quality of, each property adjudicated.
OBLIGATION OF MUTUAL WARRANTY
Partition among co-heirs imposes upon them the same mutual
obligation of warranties imposed among co-owners in general
RULE ON WARRANTIES
The applicable rules on warranties are found in Articles 1547-
1580, in the Title on Sales, insofar as those articles are not
inconsistent with the rules given in this subsection.
ARTICLE 1093. The reciprocal obligation of warranty
referred to in the preceding article shall be proportionate to
the respective hereditary shares of the co-heirs; but if any
one of them should be insolvent, the other co-heirs shall be
liable for his part in the same proportion, deducting the part
corresponding to the one who should be indemnified.
Those who pay for the insolvent heir shall have a right of
action against him for reimbursement, should his financial
condition improve.
PROPORTIONAL LIABILITY OF CO-HEIR ON WARRANTY
Burdens should be proportional to benefits
INSOLVENCY OF ONE OF OBLIGORS
Should one of the co-heirs bound to make good the warranty
be insolvent, his portion shall be borne proportionally by all,
including the one entitled to the warranty:
EXAMPLE:
1. Co-heirs are A, B, C, D, and E in equal shares of
P60,000.00 each.
2. B claims warranty for the total amount of his share, for
having been evicted.
119
3. A, C, D, and E have to contribute P12,000.00 each to
make good the warranty. (Since there was eviction in the
amount of P60,000.00, it follows that the total value to be
partitioned was only P240,000.00; hence, P48,000.00
each).
4. Should A be insolvent, his share of P12,000.00 shall be
borne by all the others, including B. Hence, C, D, and E
have to contribute P3,000.00 more, making their individual
liability P15,000.00. B receives a total of P45,000.00 hav-
ing borne his own share of P3,000.00 from A’s insolvency
EXCEPTION TO RIGHT TO REIMBURSEMENT FROM
INSOLVENT OBLIGOR
The obvious exception to this is insolvency judicially declared,
under the Insolvency Law, since judicially declared insolvency
extinguishes all obligations
ARTICLE 1094. An action to enforce the warranty among
co-heirs must be brought within ten years from the date the
right of action accrues.
ARTICLE 1095. If a credit should be assigned as collectible,
the co-heirs shall not be liable for the subsequent insolvency
of the debtor of the estate, but only for his insolvency at the
time the partition is made.
The warranty of the solvency of the debtor can only be
enforced during the five years following the partition.
Co-heirs do not warrant bad debts, if so known to, and
accepted by the distributee. But if such debts are not
assigned to a co-heir, and should be collected, in whole or in
part, the amount collected shall be distributed
proportionately among the heirs.
CREDIT ASSIGNED TO CO-HEIR IN PARTITION
The warranty covers only insolvency of the decedent’s debtor
at the time of partition, not subsequent insolvency, for which
the co-heir takes the risk.
Foolhardy is the co-heir who will accept a collectible as part of
his share in the partition.
● A credit, even under the best of circumstances, is aleatory.
Pqjaro en la mono mejor que cien volando.
This warranty has a special prescriptive period of five
years.
BAD DEBTS ASSIGNED TO A CO-HEIR
A co-heir who accepts a known bad debt as his share is either
a fool or a masochist.
ARTICLE 1096. The obligation of warranty among co- heirs
shall cease in the following cases:
(1) When the testator himself has made the partition,
unless it appears, or it may be reasonably presumed,
that his intention was otherwise, but the legitime shall
always remain unimpaired;
(2) When it has been so expressly stipulated in the
agreement of partition, unless there has been bad faith;
(3) When the eviction is due to a cause subsequent to the
partition, or has been caused by the fault of the distrib-
utee of the property.
This article enumerates the instances when there is no mutual
warranty. It is not accurate to refer to it as a cessation, since
there was none to begin with.
These are:
1. Partition by the testator himself (save where the legitime
has been impaired):
2. Agreement among the co-heirs to suppress the warranty;
3. Supervening events causing the loss or the diminution in
value;
4. Fault of the co-heir;
5. Waiver.
DE LOS SANTOS V DE LA CRUZ
DOCTRINE: IN THE CASE AT BAR, Plaintiff-appellee being
a mere grandniece of Pelagia de la Cruz, she could not
inherit from the latter by right of representation, as per Art
972
● The relatives "nearest in degree" to Pelagia de la Cruz
are her nephews and nieces, one of whom is
defendant-appellant. Necessarily, plaintiff-appellee, a
grandniece is excluded by law from the inheritance.
● Indeed, the said agreement itself states that plaintiff-
appellee was participating therein in representation of
her deceased mother. In executing the partition
agreement, the parties thereto were laboring under the
erroneous belief that plaintiff-appellee was one of the
legal heirs of Pelagia de la Cruz. Plaintiff-appellee not
being such a heir, the partition is void with respect to
her, pursuant to Article 110513 of the Civil Code.
● The extrajudicial partition agreement being void with
respect to plaintiff-appellee, she may not be heard to
assert estoppel against defendant- appellant. Estoppel
cannot be predicated on a void contract, or on acts
which are prohibited by law or are against public policy.
4. Rescission and Nullity of
Partition
ARTICLE 1097. A partition may be rescinded or annulled for
the same causes as contracts.
CAUSES FOR ANNULMENT
ART. 1390. The following contracts are voidable or annullable,
even though there may have been no damage to the
contracting parties:
(1) Those where one of the parties is incapable of giving
consent to a contract;
(2) Those where the consent is vitiated by mistake, violence,
intimidation, undue influence or fraud.
These contracts are binding, unless they are annulled by a
proper action in court. They are susceptible of ratification.
120
CAUSES FOR RESCISSION
ART. 1381. The following contracts are rescissible:
(1) Those which are entered into by guardians whenever the
wards whom they represent suffer lesion by more than
one-fourth of the value of the things which are the object
thereof:
(2) Those agreed upon in representation of absentees, if the
latter suffer the lesion stated in the preceding number;
(3) Those undertaken in fraud of creditors when the latter
cannot in any other manner collect the claims due them;
(4) Those which refer to things under litigation if they have
been entered into by the defendants without the
knowledge and approval of the litigants or of competent
judicial authority;
(5) All other contracts specially declared by law to be subject
to rescission.
ARTICLE 1098. A partition, judicial or extrajudicial, may also
be rescinded on account of lesion, when any one of the co-
heirs received things whose value is less, by at least one-
fourth, than the share to which he is entitled, considering the
value of the things at the time they were adjudicated.
LESION
Economic injury, where the party receives less than he is
entitled to receive.
● Lesion is exceedingly difficult to determine and evaluate
and is viewed with increasing disfavor by modem civil law.
AMOUNT OF LESION
The minimum extent of lesion for rescission to be available is
one-fourth (25%).
NOTE: The slight variation from pars. 1 and 2 of Article 1381,
which specifies more than one-fourth. Evidently, in cases of
partition of the inheritance, Article 1098 applies.
ARTICLE 1099. The partition made by the testator cannot
be impugned on the ground of lesion, except when the
legitime of the compulsory heirs is thereby prejudiced, or
when it appears or may reasonably be presumed, that the
intention of the testator was otherwise.
THIS ARTICLE IS AN EXCEPTION TO THE PRECEDING
ARTICLE
A partition made by the testator himself is not subject to
rescission even in case of lesion in the amount specified in the
preceding article, except in the following cases:
1. impairment of the legitime (even if the lesion is less than
one-fourth);
2. mistake by the testator or vitiation of his intent.
ARTICLE 1100. The action for rescission on account of
lesion shall prescribe after four years from the time the
partition was made.
PRESCRIPTIVE PERIOD OF 4 YEARS
This is the same period laid down in the general rule of
rescission of contracts
ARTICLE 1101. The heir who is sued shall have the option
of indemnifying the plaintiff for the loss, or consenting to a
new partition.
Indemnity may be made by payment in cash or by the
delivery of a thing of the same kind and quality as that
awarded to the plaintiff.
If a new partition is made, it shall affect neither those who
have not been prejudiced nor those who have not received
more than their just share.
OBLIGOR’S OPTIONS
It is the co-heir who is sued for rescission who has the option.
He has two choices:
1. To have a repartition
2. To indemnify the co-heir the amount of the lesion suffered
ARTICLE 1102. An heir who has alienated the whole or a
considerable part of the real property adjudicated to him
cannot maintain an action for rescission on the ground of
lesion, but he shall have a right to be indemnified in cash.
Correlated with the preceding article, this article is
unnecessary, since anyway it is the party sued who is given
the option.
ARTICLE 1103. The omission of one or more objects or
securities of the inheritance shall not cause the rescission of
the partition on the ground of lesion, but the partition shall be
completed by the distribution of the objects or securities
which have been omitted.
Incompleteness of the partition is not a ground for rescission.
The remedy is a supplemental partition.
ARTICLE 1104. A partition made with preterition of any of
the compulsory heirs shall not be rescinded, unless it be
proved that there was bad faith, or fraud on the part of the
other persons interested; but the latter shall be
proportionately obliged to pay to the person omitted the
share which belongs to him.
This is not preterition under Article 854.
● This is simply an omission of a compulsory heir in the
partition, the assumption being that something is left for
him in the form of an undisposed portion of the estate.
ARTICLE 1105. A partition which includes a person believed
to be an heir, but who is not, shall be void only with respect
to such person.
This is the reverse of the preceding article. Here an outsider is
mistakenly included in the partition. The obvious remedy is to
121
recover the property from him and have it redistributed among
the proper recipients.
VII. ESTATE PLANNING
1. Taxes - Estate Tax, Capital
Gains Tax, Donor’s Tax

2. Insurance
PROBATE AVOIDANCE TOOLS

A. LIVING TRUSTS
1. Allows you to do the same basic job as a will with the
major plus of avoiding probate.
2. Called “living” because they are created while you are
alive. You legally transfer properties to the trust when you
create it.
3. When you die, your successor trustee obtains the property
and transfers it to your beneficiaries. No probate or other
court proceedings required.
● To create a trust → execute a deed of trust

MOST LIKELY, YOU DO NOT NEED A LIVING TRUST IF:

1. You are young and healthy.
2. You can more sensibly transfer assets by other probate-
avoidance devises.
3. You have, or may have, complex debt problems.
4. There is no one you trust to oversee your trust after your
death.
5. You own little property.

B. SURVIVORSHIP AGREEMENT
Joint (and several) owners of a deposit agree that either of
them could withdraw any part or whole of said account during
the lifetime of both, and the balance, if any, upon the death of
either, belonged to the survivor.

Article 1790. By an aleatory contract, one of the parties bind

himself, or both reciprocally bind themselves, to give or to do
something as an equivalent for that which the other party is
to give or do in case of the occurrence of an event which is
uncertain or will happen at an indeterminate time.

Not invalid per se but may be assailed if done to:

a. Hide an inofficious donation
b. Transfer property in fraud of creditors
c. Defeat the legitime of a forced heir

C. LIFE INSURANCE
A good way to provide surviving family members with quick
cash for debts, living expenses, and for larger estates, estate
taxes.

Life insurance proceeds do not go through probate. If the

beneficiary is named irrevocably, proceeds will not be liable for
estate tax.
122
 PLANNING FOR INCAPACITY

A. LIVING WILL
A legal document in which you state your wishes about life
support and other kinds of medical treatments. The document
takes effect if you cannot communicate your own health care
wishes.

Also called:
● Directive to Physicians
● Health Care Declaration
● Medical Directive
● Health Care Directive

B. DURABLE POWER OF ATTORNEY FOR HEALTH

CARE

A legal document in which you give another person permission

to make medical decisions for you if you are unable to make
those decisions yourself.

Also called
● Medical Power of Attorney
● Power of Attorney for Health Care
● Designation of Surrogate
● Patient Advocate Designation

C. DO NOT RESUSCITATE ORDER

A medical order or form, usually signed by a doctor, that
documents your wish not to receive CPR or other invasive
resuscitation techniques if you stop breathing or your heart
stops beating.

Also called:
● DNR Form
● DNR Directive
● Comfort One

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 TESTAMENTARY SUCCESSION

KIND OF HEIR PREDECEASE INCAPACITY RENUNCIATION DISINHERITANCE

1. Transmits nothing 1. Transmits nothing 1. Transmits nothing 1. Transmits nothing

Compulsory
2. Representation 2. Representation 2. Representation 2. Representation

1. Transmits nothing 1. Transmits nothing 1. Transmits nothing

Voluntary N/A
2. No representation 2. No representation 2. No representation

1. Transmits nothing 1. Transmits nothing 1. Transmits nothing

Legal N/A*
2. Representation 2. Representation 2. No representation

*If a compulsory heir who is also an intestate heir is disinherited, he for- feits both his legitime and his intestate portion and
representation, if proper, operates as to the intestate portion

LEGITIMES OF COMPULSORY HEIRS

LEGITIMATE LEGITIMATE
SURVIVING SURVIVING ILLEGITIMATE ILLEGITIMATE
CHILDREN AND PARENTS AND
RELATIVES SPOUSE CHILDREN PARENTS
DESCENDANTS ASCENDANTS

Legitimate child ½ of the estate in

alone equal portions

¼ of estate taken
1 legitimate child,
½ of estate from the free
surviving spouse
portion

2 or more
legitimate ½ of estate in equal Same portion as 1
children, portions legitimate child
surviving spouse

Legitime child, ½ of the estate in ½ share of 1

illegitimate child equal portions legitimate child

½ share of 1
legitimate child
Legitimate child,
¼ (preferred over NOTE: May suffer
surviving spouse, ½
illegitimate child) reduction pro rata
illegitimate child
because share of
surviving spouse is
given preference

2 or more
legitimate
½ of estate in equal Same as share of 1 ½ share of 1
children,
portions legitimate child legitimate child
surviving spouse,
illegitimate child

Legitimate
½
parents alone

Legitimate parent,
¼ in equal portions ½
illegitimate child

Legitimate parent,
¼ ½
surviving spouse

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Legitimate parent,
surviving spouse
⅛ ¼ ½
and illegitimate
child

Illegitimate child
½ in equal portions
alone

Illegitimate child,
⅓ ⅓ in equal portions
surviving spouse

GR: ½

EX: Marriage in
articulo mortis and
testator dies within
3 months from
Surviving spouse
marriage - ⅓
alone
EX to EX: Having
been living together
as husband and
wife for more than 5
years - 1/2

Illegitimate parent
½
alone

Illegitimate parent,
¼ ¼
surviving spouse

CAUSES OF DISINHERITANCE

CHILDREN AND PARENTS AND

SPOUSE UNWORTHINESS
GROUNDS FOR DISINHERITANCE DESCENDANTS ASCENDANTS
(ART 921) (ART 1032)
(ART 919) (ART 920)

Guilty or convicted of attempt against

the life of the testator, spouse, ✔ ✔ ✔ ✔
ascendant or descendant

Accused testator or decedent of crime

punishable by imprisonment of 6 years ✔ ✔ ✔ ✔
or more, and found groundless or false

Causes testator or decedent to make a

will or change one by fraud, violence, ✔ ✔ ✔ ✔
intimidation, or undue influence

Unjustified refusal to support testator ✔ ✔ ✔

Convicted of adultery or concubinage

✔ ✔ ✔
with spouse of testator or decedent

Maltreatment of testator by word and

✔
deed

Leading a dishonorable or disgraceful

✔
life

Conviction of crime which carries the

✔
penalty of civil interdiction

Abandonment of children or inducing ✔ ✔

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children to live a corrupt and immoral
life or against attempted virtue

Loss of parental authority ✔ ✔

Attempt by one parent against the life

of the other unless there is ✔
reconciliation between parents

Spouse has given cause for legal

✔ ✔
separation

Failure to report violent death of

decedent within 1 month unless ✔
authorities have already taken action

Force, violence, intimidation, or undue

influence to prevent another from
making a will or revoking one already ✔
made or who supplants or alters the
latter’s will

Falsifies or forges supposed will of

✔
decedent

INTESTATE SHARES

LEGITIMATE LEGITIMATE
SURVIVING SURVIVING ILLEGITIMATE ILLEGITIMATE
CHILDREN AND PARENTS AND
RELATIVES SPOUSE CHILDREN PARENTS
DESCENDANTS ASCENDANTS

Legitimate child
Entire estate
alone

1 legitimate child,
½ ½
surviving spouse

2 or more Divide equally

legitimate (Spouse Same as 1
children, considered as 1 legitimate child
surviving spouse legitimate child)

Legitime child,
x x/2
illegitimate child

Legitimate
children,
x x/2 x
surviving spouse,
illegitimate child

Legitimate
Entire estate
parents alone

Legitimate parent,
½ ½
illegitimate child

Legitimate parent,
½ ½
surviving spouse

Legitimate parent,
surviving spouse
¼ ¼ ½
and illegitimate
child

126
Illegitimate child,
½ ½
surviving spouse

Illegitimate parent,
½ ½
surviving spouse

Surviving spouse,
brothers or
½ ½
sisters, nephews
or nieces

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