Civil Code
The future spouses may give each other in
Art. 390. After an absence of seven years, it being
unknown whether or not the absence still lives, he shall
be presumed dead for all purposes except for those of
succession.
The absentee shall not be presumed dead for the
purpose of opening his succession till after an absence
of five years shall be sufficient in order that his
succession may be opened.
Art. 391. The following shall be presumed dead for all
purposes, including the division of the estate among the
heirs:  See page 11
(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.
Testamentary Succession
What is testamentary succession?
Testamentary succession is defined in this provision:
Art. 779. Testamentary succession is that which results
from the designation of an heir, made in a will executed
in the form prescribed by law. (n)
What are the rules in testamentary succession?
Any person who is 18 years old and above of sound
mind may make a valid last will and testament.
What is a will?
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 his estate upon his death. It
may either be a holographic will which is one entirely
written, dated, and signed by the testator himself and is
subject to no formalities or a notarial will which is a will
other than a Holographic Will that conform to all the
requirements of law.
Holographic Will is one entirely written, dated, and
signed by the testator himself and is subject to no
formalities.
Notarial Will is a will other than a Holographic Will that
conform to all the requirements of law.
What is a codicil?
A codicil is a supplement or an addition to a will, made
after the execution of a will and annexed to the will and
to be taken as part thereof, by any disposition made in
the original will is explained, added to, or altered.
Art. 130.
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. (1331a)  See page 14 and
page 16 for Contractual Succession
(A future spouse may agree on the property relations
during their marriages. a man and a woman who are
planning to get married may enter into a contract
defining or providing for their property relations during
their marriage and we call it prenuptial agreement or
marriage settlement.)
CHAPTER 3
LEGAL OR INTESTATE SUCCESSION
SECTION 1. - General Provisions
Art. 960. Legal or intestate succession takes place: 
See page 15
(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
institution 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. (912a)
Paula Conde v. Casiano Abaya
G.R. No. L-4275, 23 March 1909
FACTS:
Casiano Abaya, unmarried, the son of Romualdo Abaya
and Sabina Labadia died on the 1899. Paula Conde, as
the mother of the natural children Jose and Teopista
Conde, whom she states she had by Casiano Abaya
moved the settlement of the intestate succession.
An administrator has been appointed for the said
estate. However, Roman Abaya brother of Casiano
came forward and opposed said appointment and
claimed it for himself as being the nearest relative of
the deceased. The court declares Roman Abaya to be
the sole heir of Casiano Abaya and to be therefore
entitled to take possession of all the property of said
estate.
Paula Conde filed a petition wherein she stated that she
acknowledged the relationship alleged by Roman Abaya
but that she considered her right was superior to his
and moved for a hearing on the matter. She prayed that
she be declared to have preferential rights to the
property left by Casiano Abaya.
ISSUE:
Whether or not the petitioner may enforce an action in
the acknowledgment of the natural child from Casiano
Abaya.
RULING:
The right of action for legitimacy devolving upon the
child is of a personal character and generally pertains
exclusively to him. Only the child may exercise it at any
time during his lifetime. As exception, and in three cases
only, it may be transmitted to the heirs of the child, to
wit: (a) if he or she died during his or her minority, (b)
while insane, or (c) after action had already been
instituted.
Art. 173. The action to claim legitimacy may be brought
by the child during his or her lifetime and shall be
transmitted to the heirs should the child die during
minority or in a state of insanity. In these cases, the
heirs shall have a period of five years within which to
institute the action.
Inasmuch as the right of action accruing to the child to
claim his or her legitimacy lasts during his or her whole
lifetime, he or she may exercise it either against the
presumed parents or his or her heirs. The right of action
which the law concedes to the natural child is not
transmitted to his ascendants or descendants.
ARTICLE 268. The action to claim his legitimacy may be
brought by the child during all his lifetime, and shall be
transmitted to his heirs if he should die during his
minority or in a state of insanity. In these cases the heirs
shall have a period of five years within which to institute
the action.  See page 20
The action already commenced by the child is
transmitted upon his death to the heirs, if the
proceeding has not yet lapsed. (118)
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.
(807a)
Art. 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.  See page 28
If the omitted compulsory heirs should die before the
testator, the institution shall be effectual, without
prejudice to the right of representation. (814a)
Art. 918. Disinheritance without a specification of the
cause, or for a cause the truth of which, if contradicted,
is not proved, or which is not one of those set forth in
this Code, shall annul the institution of heirs insofar as it
may prejudice the person disinherited; but the devises
and legacies and other testamentary dispositions shall
be valid to such extent as will not impair the legitime.
(851a)  See page 28
Art. 793. Property acquired after the making of a will
shall only pass thereby, as if the testator had possessed
it at the time of making the will, should it expressly
appear by the will that such was his intention. (n)  See
page 28

Art. 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. (806)  See page 25

Art. 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.


A father died and left behind property. In his last will
and testament, he allotted all his property to his
daughters. The father also left behind a son, but the son
was not left anything in the will. He was not even
mentioned in the will.
Can the son question the will and have a rightful share
of the property his father left behind?
Yes. The will should be opposed. This is a case of
preterition which is not allowed by law.
What is preterition?
Passed over in the will.
The word “preterition” is derived from two Latin terms:
praeter – beyond or by; and ire – to go or to pass.
Praeterire therefore means to go by, to pass by, or to
bypass. It connotes an ignoring, an omitting.
Preterition is the total omission of a compulsory heir
from the inheritance. It consists in the silence of the
testator with regard to a compulsory heir, omitting him
in the testament, either by not mentioning him at all, or
by not giving him anything in the hereditary property,
but without expressly disinheriting him even if he is
mentioned in the will.
Preterition always involves a situation where there is a
last will and testament. The preterition of a direct
compulsory heir in a will goes against the laws of
inheritance.
Wills have limits fixed by law.
When a person dies, the properties he leaves behind
will be distributed to his heirs. If he made no last will
and testament, then the division of property will be
done according to the default law of legal inheritance. If
he did make a last will and testament, then the
properties will be divided according to what he wrote in
his will as long as the will does not violate the limits set
by law.
A will must follow the law. This is because the right to
make a will is granted by law, and it must be
subordinate to law and public policy.[4] Although the
will of the testator should be recognized, if his act or
intention is contrary to law, morals, or public policy it
cannot be given effect.
Legitime
One of restrictions that Philippine law imposes on wills
is that they cannot reduce or take away from the
legitime. The legitime is that part of the testator’s
property which he cannot dispose of because the law
has reserved it for certain heirs. These heirs are called
compulsory heirs.[5] Compulsory heirs are entitled to
inherit shares allotted by law. These shares are called
their legitime.
Who are compulsory heirs?
The following are the compulsory heirs entitled to the
legitime:
(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.
Except for the spouse, all these are direct compulsory
heirs because they have a direct line of ancestry
connecting them upwards or downwards to the
deceased.
Spouses are not direct compulsory heirs.
This is important because there is a special rule for
direct compulsory heirs which makes it against the law
to bypass them in a will:
Art. 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 devisees and legacies shall be valid insofar as
they are not inofficious.
If the omitted compulsory heirs die before the testator,
the institution shall be effectual, without prejudice to
the right of representation.
Adopted kids are also direct compulsory heirs.
It’s worth pointing out that an adopted child is a direct
compulsory heir. 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. Therefore, an adopted child
cannot be preterited.
What is the effect of preterition?
Preterition is invalid and subjects the will to important
consequences. The institution of the heir/s named in
the will becomes annulled. The devisees and legacies
can remain valid only insofar as they do not impair the
legitime.
Considering these nullifications, much or all of the
inheritance will necessarily be as if there were no will to
direct how the properties are apportioned. The
properties would therefore be distributed not in
accordance with the will, but according to the default
shares provided by the law in the absence of a will.
How is preterition invoked?
Note that the omission has to be total for preterition to
be invoked so that the will’s institution of the heir is
annulled.

A daughter is a compulsory heir of the direct line, but if

she was merely allotted a smaller share in her father’s
will than her legitime grants her then she was not
preterited. Preterition means total omission.

A different remedy is needed when the inheritance is

less than what was due to the heir.

Her remedy in such a case is found in Articles 906 and

907 of the Civil Code. She can demand that her share be
fully satisfied. She can even demand that it be satisfied
from the testamentary dispositions that infringed on or
diminished her legitime.

Article 906. Any compulsory heir to whom the testator

has left by any title less than the legitime belonging to
him may demand that the same be fully satisfied.

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.

In any event, these issues should be raised in court

estate proceedings where the inheritance issues are
threshed out.

How does this relate to disinheritance?

Although preterition is not allowed, a direct compulsory
heir can still be disinherited. But disinheritance has to
follow the process set by law.

A testator’s disinheritance of his compulsory heirs can

only be done through a last will and testament, and only
for one of the reasons specified by the Civil Code. The
will which disinherits a compulsory heir must state the
legal cause for the disinheritance.

Disinheritance must be for the reasons allowed for by

law and can only be done in a will.

These exclusive causes for disinheriting a direct

compulsory heir are enumerated in Articles 919 and
920. A valid disinheritance is the only way that living
compulsory heirs can be deprived of their legitime
through a will.

Wills which do not follow the forms, requirements, and

limits set by law will be disputed.