DEFINITION OF PROBATE
Anyone who has an interest in the disposition of the estate of the
Probate is the act of proving before a competent court the due
executionof a will by a person possessed of testamentary capacity, as
well as approval thereof by said court.
after it is proved that the will is duly executed, what will the court do?-
will issue an order. IOW, the court approves the due execution.
Probate of will is necessary because:
1. The law expressly requires it in order to pass real or personal
property.
2. It is a proceeding in rem (requiring publication among other
things) and, therefore, cannot be dispensed with or substituted by any
other proceeding, judicial or extrajudicial without offending public
policy.
3. The right of a person to dispose of his property by virtue of a
will may be rendered nugatory.
4. Absent legatees, and devisees, or such of them as may have no
knowledge of the will could be cheated of their inheritance
through the collusion of some of the heirs who might agree to
the partition
of the estate among themselves to the exclusion of others.
Can a will say that it should not be probated because it is a
perfect will?
No. You can’t divest the court of jurisdiction by your own actuations.
Can the heirs extrajudicially partition the estate in
contravention of the will and without probate?
No, it must always be in accordance with the will, judicial or
extrajudicial. Being a proceeding in rem, it can’t be replaced by any
other judicial or extrajudicial proceeding. There must be probate.
The right of a person to dispose his property by virtue of a will, if not
probated, will be nugatory.
Can we have any other remedy aside from probate? No. it is
mandatory. There cannot be other proceeding.
What if the will says, it is final? The law requires probate. You can’t
divest the court of jurisdiction by your own actuations
What if the heirs made an extra-judicial partition and it is not
consistent with the will? Not allowed. A will is beyond compromise.
Ex- The 10 of you are all siblings, but you don’t like one of your
siblings, can you to the exclusion of that one sibling you don’t like
extra-judicially partition the estate? Can you do that? No. The one
excluded sibling can contest that. This is the purpose of probate- to
minimize fraud such as isolating an heir.
Did we not say that a will must be a secret? Secrecy is only up to the
time the testator is alive. When he is dead, it should not be kept a
secret anymore.
Important: Go back to what is essential. A will has to be probated
for it to pass personal and real properties.
Sumilang v. Ramagosa
Probate is one thing; the validity of the testamentary provisions is
another.
Probate decides the execution of the document and the
testamentary capacity of the testator;
Validity of testamentary provisions deals with descent and
distribution.
PETITIONER AND JURISDICTION
What is the difference between the procedure in ante-mortem
and post-mortem probate?
First, the one who brings the action. Second, the SC should resolve to
make rules for ante-mortem but the SC hasn’t made one yet. Hence,
the only difference is the petitioner.
Who can bring action for probate after death of testator?
testator like the administrator, executor, heirs, devisee and legatee
may bring the action.
When to petition? At anytime after the death. No specific timeline.
Ex- the decedent died in 2000, can it be petitioned in 2008? Yes.
Statue of limitation does not apply. There is not prescriptive period.
Is there a prescriptive period to bring probate action
postmortem?
There is none. The Statute of Limitations does not apply to special
proceedings like probate. This is because the probate is not only to
protect the interest of the living but also to give life to the intention of
the dead.
Not governed by laws on ordinary proceedings.
Is there estoppel in probate proceedings?
There is none.
What to allege in the petition?
- That the will complies with the formalities provided by law.
- The death of testator
o Does it matter that the testator took his own life?
No for as long as he is death.
- Do you need to attach the will? Yes. What if the will is
nowhere to be found? There is nothing to probate. But there
can be an instance when you need not attach the will- when
the will is in the hands of another person.
- If with someone else- ask the court to subpoena the person.
- What should you allege to replace the non-submittal of the
will? Allege the name of the person who has the will.
DEFINITION
PROBATE OF WILLS
PETITIONER AND JURISDICTION
Where to file a petition for probate?
A. If resident – RTC or MTC (depending on the value of the estate)
where the testator resides during death.
B. If non-resident – the RTC or MTC (depending on the value of the
estate) where the properties may be located.
(The amount was not settled during the discussion.)
What if the will was not delivered to the court because it is in
the custody of another person?
You allege such fact in the petition and have the court subpoena the
person. In fact, such person can be committed if he defies the
subpoena.
During probate, what does the probate court inquire into?
It inquiries into the (1) extrinsic validity (solemnities, formalities,
testamentary capacity, etc.) and the (2) intrinsic validity
(dispositions in the will) of the will.
INTRINSIC VALIDLITY
What we are inquiring here is how much and to whom the inheritance
will go.
Examples:
Whether the widow can inherit
Whether there is preterition
EXTRINSIC VALIDITY
Refers to the solemnities and formalities of the will.
What is the effect if the will is allowed because the court
found it as extrinsically valid?
It is conclusive but not final because it is still appealable.
When probate court passes upon the ownership of property
(but such is only provisional)
GR: The court does not really pass upon whether or not the
decedent owns the property. (does not have jurisdiction on
ownership)

Except if:
1. The parties voluntarily submit such matter to the court.
- if jurisdiction is conferred by law, how come the heirs may
voluntary submit? It is an exception to the rule that
jurisdiction is conferred by law. Provided, it does not
prejudice third persons. Otherwise, the probate does not
have jurisdiction)
2. As when provisionally, the ownership is passed upon to
determine whether or not the property involved is part of the estate.
IOW, for purposes of the inventory, you assume that properties belong
to the estate even though you are not sure yet. Still subject to the final
determination.
What if you are a third person and your property was mistakenly
placed in the inventory of the estate? What is your remedy?
- Notice of lis pendens. Adverse claim
What if it was already distributed to the heirs with finality?
- You can still run after your property. Because there was no
due process since you didn’t know about it.
- Remedy: Annulment of judgment based on extrinsic fraud.
GR: The nature of probate proceedings is in rem. It binds the whole
world. Because there is publication.
Except: Distribution of the estate.
Probate proceeding is not entirely in rem. In it only in rem based on
the premise that you need to inform every body that there will be a
probate proceeding. But upon distribution, it ceases to be a proceeding
in rem.
If the court cannot determine it with finality, where can you
bring the action to determine the ownership of the property?
Your immediate remedy is to file a notice of lis pendens to the
registry of deeds and file an adverse claim of the property.
What if unknown to you, your property was included in the
inventory and it was already distributed to the heirs? Does
that judgment (order of distribution) bind you even if the
probate proceeding is a proceeding in rem, is that absolute?
No.
Which part of the probate proceeding is the exception to the
rule that it is a proceeding in rem?
The distribution of the properties is not a proceeding in rem. Hence,
even if there is already distribution of properties, the distribution does
not bind you, especially if no summons was given to you. Your remedy
is RELIEF in case of extrinsic fraud.
During probate proceedings, first extrinsic validity then
intrinsic validity. What else does the probate proceeding do?
It also distributes the properties.
Requirements before the distribution of the properties (3)
1. There must be a decree of partition to the heirs
If there is only one heir, judicial decree is not needed. It only
requires JUDICIAL ORDER OF ADJUDICATION.
TN: The adjudication is necessary to determine whether it is in
accordance with law and whether the heir is capacitated.
2. There must be payment of the estate tax
TN: Payment of inheritance tax is no longer required.
3. Distributive shares are then delivered
When do we say that the probate proceeding is already
terminated?
Where there is already approval of the partition, order of distribution
ordering the delivery of said properties.
Once the court orders the distribution, that is the end of the probate
proceedings. For practically purposes, it must be received by the heirs.
Now what if a notarial will is lost or destroyed without intent
to revoke, may it still be probated?
Yes, because there was no intention to revoke.
Who will testify now as to the fact that there was a will that
existed, that it was destroyed or lost?
The witnesses will testify.
If holographic will be lost and destroyed and there is no other
copy, may it be probated?
No, because there is no witness and there is no other copy hence, we
cannot have a reference to which we can compare the handwriting
and
signature. However, it there are witnesses to the holographic will, it
can
still be probated because somebody else can testify to the existence of
a will. However, it is very hard to prove.
What is the effect if a will is refused probate?
It renders it a void will.
Notary public is not required to retain a copy also the notarial
section. If you are a notary public, would you retain a copy?
Yes, it would be practical and wise to retain a copy as long as you
obtain
the consent of the testator because it is supposed to be a secret of the
testator.
Is a void will a dead will for all intents and purposes?
No, because it may give rise to natural obligations.
How?
For example, when a will is declared void because it has not been
executed in accordance with the formalities required by law, but one of
the intestate heirs, after the settlement of the debts of the deceased,
pays a legacy in compliance with a defective will.
When it is a natural obligation, can you take it back?
No, it is effective and irrevocable.
Important: In such a case however, the paying intestate heir must
have known of the defect in the will, or of its being void, OTHERWISE
there will be no natural obligation but a case of solutio indebiti (undue
payment), in which event, recovery may be had.
MATTERS BROUGHT UP BEFORE THE PROBATE COURT
Arbolario v CA, 401 SCRA 360
These are:
1. Determination of heirs;
2. Proof of filiation;
3. Determination of estate of decedent;
4. Claims thereto.
KINDS OF PROBATE
1. Ante-mortem – before death of the testator, during the lifetime.
2. Post-mortem – after death of the testator
If you are the lawyer, what is the better kind? Ante-mortem. Because
who does it better than the one who made the will? After all, it is his
intentions. Also, to minimize fraud. Also, for the testator to know if it
requires with all the formalities required by law. Because if it doesn’t,
then he can still change it.
Can the heirs tell the testator to probate the will during his lifetime?
No. Ante-mortem can only be filed by the testator himself. Can you
compel the testator? No. it is within his discretion.
No specific timeline for ante-mortem as to when he should submit it
for probate. For as long as he is still alive. Except, when the testator is
incapacitated. Example: not of sound mind.
What if it was already probated and the court approved because the
will is said to be prefect, can you revoke this? Yes. The testator can
still revoke even if the will is already probated. Revocation of a will is
an absolute right.
Thus, after all, the approval of the court on probate is not final,
subject to revocability of the testator.
The procedure is the same as to ante-mortem and post-mortem. The
only difference is who files the petition.
Why do we allow probate during the lifetime of the testator?
Is it better to have the probate during the lifetime of the
testator?
The testator is in the best position to articulate his intention before the
court. It minimizes fraud.
Who petitions for probate during the lifetime of the testator?
It is the testator himself alone. Other heirs can’t petition for probate
during the lifetime because they still do not have the right to dispose
of the property during the lifetime of the testator.
What if the probate was granted with finality, can the testator
make another will?
Yes because a will is ambulatory, notwithstanding finality of probate
granted by the court. The testator can always revoke a probated will.
Relevant Codal Provisions
Art. 838. No will shall pass either real or personal property unless it is
proved and allowed in accordance with the Rules of Court.
The testator himself may, during his lifetime, petition the court having
jurisdiction for the allowance of his will. In such case, the pertinent
provisions of the Rules of Court for the allowance of wills after the
testator's a death shall govern.
The Supreme Court shall formulate such additional Rules of Court as
may be necessary for the allowance of wills on petition of the testator.
Subject to the right of appeal, the allowance of the will, either during
the lifetime of the testator or after his death, shall be conclusive as to
its due execution.
GROUNDS FOR DISALLOWANCE FOR PROBATE (6) (FIPES-M)
1. Formalities required by law are not complied with
What are these legal formalities?
A. In notarial will:
(a) Must be in writing
(b) An attestation clause
(c) Signed by testator
(d) Acknowledged by the notary public
B. In holographic will:
(a) It must be written, dated and signed by the hand of the
testator
2. If the testator was insane, or otherwise mentally incapable
of making a will, at the time of its execution.
Is sanity presumed?
Yes, unless there is judicial declaration of insanity or that person is
publicly known to be insane one month or less prior to the
execution of the will.
Who now bears the burden of proof?
The burden shifts to the one alleging the validity of the will. He
must prove that testator executed it during lucid interval.
3. If it was executed through force or under duress, or the
influence of fear, or threats.
Is mere inequality in the distribution of shares an evidence of
undue influence?
No, because diversity of apportionment is the usual reason for
making a will. Otherwise, it would encourage intestate succession.
Also, if it is going to be perfect in distribution or apportionment,
you might as well not make a will.
Can I ratify undue influence?
If the ratification is intended by the testator, then it prevails.
If there is undue influence, does it affect form or substance?
It affects the testamentary capacity which is extrinsic but the result
is now intrinsic, because it affects how much and to whom. The
effect goes to intrinsic validity. Per se, extrinsic. But the effect goes
into intrinsic validity.
Does undue influence void the entire will?
No, only to those parts affected. Hence, those parts not affected
will remain to be valid.
4. If it was procured by undue and improper pressure and
influence, on the part of the beneficiary or of some other
person.
TN: The common denominator in the third and fourth ground for
disallowance is COERCION, whether mental or physically.
What is the effect if the testator executed a will under these
circumstances?
The will is void. It is not voidable like contracts as the intent of the
testator is the supreme law in succession.
5. Signature was procured by fraud
Fraud is the use of insidious machinations to convince a person to
do what ordinarily he would not have done. In ordinary parlance,
it is treachery or deception.
TN: For fraud to vitiate a will, there must be intent to defraud.
(Ferdie: When we say fraud, there is already intent there or it is
already something evil. Thus, it is already redundant.)
Example of fraud in a will:
Heir would bring an ordinary document to be signed by the testator
but in truth, it is a will.
Ferdie: In one case cited by the book, it says that you cannot join
undue influence and fraud in one. Otherwise, it shows that there is
really no definite evidence as to the vitiated consent, as to the
invalidity of the will. It says there that they are repugnant and
mutually exclude each other. Otherwise if you join them, you’re
going to show that there is no really definite ground/evidence. Why
do they exclude each other? Why can’t they be together as
grounds? What’s your take on this?
Ferdie: You sign this, this is for example, a lease of your property
but in fact it is a will and the procurement of your signature is
through fraud. But what if I also add that you need to sign because
the doctor said you’re going to die in three days. That is crea ting
fear right? Undue influence, can I not do that? (not answered)
KINDS OF PROBATE
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.
-
Relevant Codal Provision
Art. 839. The will shall be disallowed in any of the following cases:
(1) If the formalities required by law have not been complied with;
(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.
- the grounds are exclusive, no other ground can be allowed to
disallow a will.
-if the signature of a testator is a practically a straight line, and the
testator is an 82 year old cripple and paralyzed, chances are, the
alleged signatures are not really his.
- there is no undue influence when a testator made his mistress, or his
illegitimate child by her, the heir to the entire free portion.
- mere love and affection is not undue influence, as long as the giving
was voluntary.
TN: however, a mistress is incapacitated to inherit.
-mere in inequality no matter how great, in distributing the estate, is
not evidence of undue influence. The fact that some of the heirs are
are favored is not evidence of undue influence.
- after the exercise of undue influence, if the testator had the
opportunity to change/revoke the will, but he did not, SC said that it
means that there really was no undue influence.
- if undue influence has vitiated only some of the dispositions, the rest
should be valid.
- subsequent repentance into making the will is not one of the grounds
given by law.
- note that when a beneficiary is the person who drafted the will, a
suspicion is created that fraud or undue influence was exercised. But
this may be set aside when proven that the document expresses the
true will of the testator.
- example for mistake: a man signed a document not believing it to be
a will. Ground for disallowance.
- disallowance must always be for a legal cause
- will allowed in a foreign country may be allowed here in the PH.
INSTITUTION OF HEIR
DEFINITION
DEFINITION
Institution of heir is an act by virtue of which a testator
designates in his will the person or persons who are to
succeed him in his property and transmissible rights and
obligations. (Art. 840)
-refers to testamentary disposition only. Because in legal succession,
the legal heirs inherit by virtue of their successional rights. In
institution of heirs, they succeed in accordance with the will of the
testator provided, it does not impair the legitime. It also applies to
devisees and legatees. But you can institute a compulsory heir in the
free portion. You cannot institute a voluntary heir in the legitime. Can
you institute a compulsory heir in the legitime? Allowed. But a mere
surplusage.
Can there be an instance when a compulsory heir needs to be
instituted to the legitime? Yes, as secondary compulsory heir. But is
there an instance where you need to institute a primary compulsory
heir into the legitime? If you are the testator you may have preference
as to which property goes to whom even if the properties comprise of
the legitime. This is when you want to be very specific.
TN: This is without prejudice to the legitime.
Where to institute an heir?
In a will. For institution presupposes that there is a will.
Ferdie: The term is designation – you have to identify the heir that
will receive these rights, properties and obligations. Institution refers
to testamentary succession.
The provisions in institution of an heir is also applicable to devisees
and legatees. In these cases, it also designates a person to be given
a property. It just refers to a specific personal property for a legatee
and a specific real property for a devisee.
From which portion of the estate do we get that which is to be
given to the instituted heir?
The free portion.
COMPULSORY HEIR
You need not institute a compulsory heir for his legitime. It is
the law that operates and allocates a portion for them. But if testator
wants to give them a share from the free portion, he can institute the
same. So compulsory heirs can have a dual status.
Can you institute a conceived child?
Yes. Provided the provisions in Article 40 and 41 are satisfied. If the
fetus had an intra-uterine life of less than 7 months, he is considered
born if he lives within 24 hours after complete delivery from the
maternal womb. In other words, fetus is deemed to have a legal
personality in so far as succession is concerned.
Requisites for a valid institution
1. Intrinsically valid (legitime must not be impaired, heirs are
identifiable, no preterition)
2. Extrinsically valid (capacity, formalities, no vitiation of consent,
duly probated, personal act) and
3. Institution must be effective. (not RIP)
a. The instituted heir must not predecease the testator.
b. Instituted heir must not renounce or repudiate his share.
c. Instituted heir must not possess incapacity at time of the
death of testator.
*incapacity, renunciation, and predecease do not invalidate the will,
the institution is only ineffective
*when there is predecease, it can be invalidated when there is
representation to the deceased heir.
Important: If the heir predeceased the testator, the institution
becomes ineffective. The portion given to the one who predeceased is
still valid but it cannot be enforced. In other words, valid but
ineffective.
FAILURE TO INSTITUTE
If the will fails to institute an heir, is the will still valid?
Yes.
What would be placed to make it as a will?
You place there (1) recognition of a child or an (2) appointment
of executor.
Ferdie: In this case however, there is no testamentary disposition
which is an element of a will. Strictly speaking it is not a will, so it can
be referred merely as a document recognizing a child or
acknowledgment of filiation because a will is essentially composed of a
testamentary disposition.
Institution does not comprise of the whole estate. Does it
render will invalid?
The institution is still valid. It will now be a mixed succession.
Testamentary for those portions stated and intestate for the free
portion.
Sometimes if you’re too rich, you might forget some of your
properties.
Going back to incapacity, predeceased and repudiation.
Does it render will invalid? No.
If the testator has no compulsory heirs. How free can he
dispose his property? The testator can give the free portion to
anybody provided that he must have a capacity to succeed.
Ferdie: Capacity to succeed is the only condition here.
Can this voluntary be a person who found the will? Voluntary gni, you
can institute anyone. But of course, he must be identified. Otherwise,
he cannot be recognized.
Freedom to dispose to anybody is not absolute.
The testator must respect the restrictions of special laws.
Example: Applicant or grantee of a homestead dies before the
issuance of the patent, his rights thereto can be given only to his
surviving spouse.
If you have no compulsory heirs, you have the freedom to dispose to
anybody except if you are a grantee of a homestead who dies before
issuance of the patent. Does this make sense? In other words, if there
is no compulsory heirs, why is there is surviving spouse? It appears
that the freedom is absolute.
Ferdie: In the example, the spouse died prior to the issuance of a
patent. Does this make sense, that it is an exception? The testator
here is dead but we are still talking about freedom to dispose of the
property through a will. Is there still freedom to dispose when the
testator died already? Think about this class.
If the testator has compulsory heirs. How free can he dispose
his property?
GR: The testator is free to dispose any portion
Exception: that he cannot touch the legitime.
Exception to XP: He can touch the legitime if there is disinheritance
and reserva troncal (topic after midterm).
Relevant Codal Provisions
Art. 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.
Art. 842. One who has no compulsory heirs may dispose by will of all
his estate or any part of it in favor of any person having capacity to
succeed.
One who has compulsory heirs may dispose of his estate provided he
does not contravene the provisions of this Code with regard to the
legitime of said heirs.
Institution of an heirs- voluntary act, cannot affect the legitime,
applicable to devisees and legatees, institution is only in testamentary
succession, a conceived child may be instituted.
There can be institution in a marriage settlement.
Heirs who participated in extrajudicial settlement and included therein
the sale to 3rd persons are bound by it. The other heirs may redeem
their shares.
HOW TO INSTITUTE
The testator can designate them by placing their name in the will.
The law says name and surname.
What if only the first name or surname or nickname is
designated?
As long as there are identifying circumstances that one can
determine the person whom the testator intented to institute then that
could be a valid designation.
REMEMBER: THE INTENT OF THE TESTATOR IS THE SUPREME LAW
IN SUCCESSION.
Relevant Codal Provision
Art. 843. The testator shall designate the heir by his name and
surname, and when there are two persons having the same names, he
shall indicate some circumstance by which the instituted heir may be
known.
Even though the testator may have omitted the name of the heir,
should he designate him in such manner that there can be no doubt as
to who has been instituted, the institution shall be valid.
ERRONEOUS, INCOMPLETE OR VAGUE INSTITUTION
What if two persons share the same name and surname and
despite the identifying circumstances they are still similarly
situated?
The intent of the testator cannot be determined. Thus, neither of the
two can inherit.
-however, if the two are legal heirs, they can inherit as legal heirs and
not by virtue of that vague disposition.
Why cannot we divide it to both of them?
To divide would be to frustrate the intention of the testator and the
supreme law in succession is the intent of the testator.
What if there is an error in spelling?
If instead of Edgardo, it was stated Eduardo?
As long as there are identifying circumstances.
Ferdie: This is idem sonans.
If statement is “My brilliant student Rafa.” No other
circumstance stated.
There are two Rafas in the room and we cannot clearly identify who is
referred to. Neither of them can receive.
If statement is “My student in 403.” No other circumstance
stated.
This is ambiguous thus the institution is void unless it can be
ascertained through identifying circumstances (the keyword for Sir)
If statement is “My student who will top the Prelims this
Sunday.”
This is verifiable upon the happening of the event.
Or “My student who will top the bar” What if nobody topped the bar?
The determining circumstance may happen BEFORE or AFTER the
testator’s death. Since the law does not distinguish.
Unknown Person.
This does not refer to a stranger to the testator but a person who
cannot be identified from the will.
Group or class of people.
One can institute a group or class of people.
Can you say the poor in general? The rich in general? The needy? The
needy emotionally?
*expect this on the exam.
Example: I institute my inheritance to the USC law students of room
404. This can be done and everybody can get a share. Provided, that
everybody in 404 has the capacity to succeed.
Institute 2 persons without designation of shares.
This is valid. The heirs will inherit in equal parts. E.g. I give all my
properties to Mole and Deniega.
The law presumes that it is the intention of the testator, otherwise, he
could have been more specific.
Example: institution of the relatives of the legatee. Therefore, all the
relatives of the said legatee will get a share of the free portion per
capita and not per stripes. As long as it does not impair the legitime.
Other situations:
1. All Voluntary heirs- Borden, Mole and Deniega. Estate is
1M, indicated in the will - Deniega gets 100,000
How should the estate be divided?
The will is valid. Deniega will get only 100,000 but Borden and
Mole will share equally the remaining so 450,000
Is this not unfair? No because it is out of the liberality of the testator.
And the voluntary heirs has no vested right.
2. All Voluntary heirs- Floro, Mole, and Natuel Estate is
900,000. Testator specified that:
A. Alphonso – is given Tennis Racket of Nadal worth 100,000
B. Marcley – is given my FRIENDS CD complete collection worth
50,000
C. Mole – included but no specific property given
How should the estate be divided?
Ideally each is given 300,000 share.
For Alphonso 200,000 + Nadal Tennis Racket (100,000).
Marcley 250,000 + CD Collection (50,000)
Mole – 300,000
3. Designate “A and B and the children of C to my estate
worth 1 Million”
Determine first how many children of C. For the rule is when heirs
are instituted collectively they are to have been individually
instituted. Thus, A, B and C’s children will get equal shares each.
They have to share it equally, unless the intention of the testator is
otherwise.
Misdescription can be corrected by extrinsic evidence, but not by oral
declarations of the testator.
INSTITUTION OF BROTHERS & SISTERS (HALF/FULL BLOOD)
General Rule: The half and full blooded brothers and sister will
get equal shares.
General rule applies only for testamentary succession.
Exceptions:
1. It is an Intestate succession. For in an intestate succession, the
full brothers and sisters will get double the share of the half brothers
and sisters.
2. Intention of the decedent. He wants to really give a greater
share to the full brothers and sisters.
If testator instituted full brother, half- brother, step brother,
brother in law and illegitimate brother. How divided?
The Full and half- blood brother and sister stated in Art. 848 also
refers to step brother, brother in law and illegitimate brothers also.
This is with respect to testamentary succession. Thus they receive
equal shares. For legal succession, only the full and half-
brothers. The others are not legal heirs.
FALSE CAUSE
Instituted as an heir because testator thought Gerime topped
the bar.
Ascertain whether or not institution was based on the (1) condition
or just a (2) stipulation in the will (only define a specific person).
Rules:
1. Considered not written (when not a condition)
Example: I institute Francesca Fernandez as my heir because she
topped the bar.
If she did not top the bar she will still get her share because it was
not placed as a condition. The real consideration is the liberality of
the decedent.
2. Considered written (when placed as a condition)
Example: I would have instituted Francesca Fernandez as my heir
but because Mark Badayos topped the bar, he now becomes my
heir.
The fact that the testator would not made such institution had he
known of the false cause, must appear in the will itself. Proof outside
the will is not admissible.
ILLEGAL CAUSE
The law does not qualify as it may provide repercussion.
Paras states: We have to qualify if the illegal cause was the
actual motive to give the share. If not, heir can still get his share.
Example where illegal cause is a condition:
I institute Pearl Ronulo as my heir because I want her to kill Danrey.
Ferdie: But it can be phrased in a way that the illegal cause does not
become a condition. What determines whether it was a condition or it
is incidental really depends on the situation. Sometimes, more or less it
becomes incidental because it happened on the past already. You can
institute an heir even if she killed someone before. It is not an illegal
cause anymore.
Ex- not an illegal cause as condition when you did not dangle the
property in order to induce one to commit crime. But can we not argue
that are we not encouraging the commission of crimes? Yes we can
argue that way. But we can also argue that it is merely incidental.
*take note of the difference if it is merely incidental and if it really
impels one to do the crime.
What if it was done already and you took no part, now you just say
“mirisi, I also like that person to die” it is incidental but you can argue
that you are also encouraging crimes.
Estrangement is not a legal ground for the disqualification of a
surviving spouse as an heir.
Relevant Codal Provisions
Art. 844. An error in the name, surname, or circumstances of the heir
shall not vitiate the institution when it is possible, in any other manner,
to know with certainty the person instituted.
If among persons having the same names and surnames, there is a
similarity of circumstances in such a way that, even with the use of the
other proof, the person instituted cannot be identified, none of them
shall be an heir.
Art. 845. Every disposition in favor of an unknown person shall be
void, unless by some event or circumstance his identity becomes
certain. However, a disposition in favor of a definite class or group of
persons shall be valid.
Art. 846. Heirs instituted without designation of shares shall inherit in
equal parts.
Art. 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.
Art. 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.
Art. 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.
Had this been successively, the person will get all the inheritance while
his children will get nothing while such person is still alive.
Except, if such is really the intention of the testator.
Art. 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.
Art. 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.
Art. 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.
Only applies if there is the intent to give all only to those who are
instituted. Otherwise, legal succession applies.
Ex- I hereby institute as my only heirs, A, B, C to get ¼ of my estate.
The whole ¼ shall be divided equally only among them.
Art. 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.
PRETERITION, DEFINED.
Preterition or pretermission is the omission, whether intentional or
not, of a compulsory heir in the inheritance of a person.
Good faith and bad faith does not matter.
When can we say that there is preterition?
Requisites for preterition: (TCD)
1. There is a total omission in the inheritance – complete
forgetfulness, not only in the will, but in the inheritance. What is
being omitted here is the share in the legitime.
Q: Can there be partial omission? No preterition when there is only
partial omission.
Yes, when an heir is given less than his legitime. Partial means the
heir is given something, no matter how less.
Remedy for partial omission: Completion of legitime.
Example: Three compulsory heirs are to given 1M each but one is
given only 500K. Is there preterition? No, as this is only partial
omission.
What if what was omitted was 1 cent out of 1M pesos? Can we not
argue substantial compliance? No. Your remedy is completion of
legitime.
Q: If there is no acceptance, is there preterition?
NO.
TN: acceptance is necessary.
Effect if an heir is not included in the will:
General Rule: There is preterition.
Exceptions:
1. In cases of donation inter vivos, as it is an advanced legitime.
2. When an heir is not included in the will, but there is still left
in the inheritance, the heir can still receive by way of
intestacy.
2. The omission must be of a compulsory heir.
XP: secondary compulsory heirs
Q: Is this absolute?
No. If the secondary compulsory heir is not there, it is not
preterition. He is not there simply because there is no default of
primary compulsory heir.
Secondary compulsory heir cannot be preterited because they are only
waiting in line.
A voluntary heir cannot be omitted because there is no right to begin
with. It is simply because the liberality did not extend to you.
3. The compulsory heir omitted must be in the direct line
(ascending or descending).
TN: Spouse is a compulsory heir but not in the direct line. Thus, a
spouse cannot be preterited.
Does this not counter with our previous discussion that you cannot
touch on the legitime? It is not all the time that a compulsory heir is
entitled to a legitime. There is chance that a spouse (who is a
compulsory heir) can be omitted. And you cannot even call
that preterition. But the spouse has the remedy – in the probate,
the spouse can go to court and ask from the free portion. What if
there is no free portion? The spouse gets nothing. At all. But in
practice, the court, off the record, by persuasion, can give a little
something to the spouse. The remedy is not even demandable as a
matter of right but depends on the availability of the free portion.
Reason: The law wants to preserve the property insofar as blood
relatives are concerned and spouse is a mere stranger.
EFFECTS OF PRETERITION
1. The institution of heirs is annulled (without need of court
action, hence proper term should have been void).
In case of preterition, the omitted heir gets his share not only of the
legitime but also of the free portion.
Does this affect the entire will? No because #2.
2. The legacies and devises shall remain valid insofar as they
are not inofficious. (not voided but merely reducible if legitime has
been impaired).
Ferdie: Inofficious – excessive, too large that it touches on the
legitime.
PRETERITION
REMEDY FOR PRETERITION
1. Go to the free portion.
2. If no free portion- reduce the shares given in the will.
(annulment or reduction)
You go to the free portion. If none, this is the time that you reduce the
shares given in the will. This will now result to the annulment of the
institution of the heirs or reduction of legacy or devise, if inofficious.
Thus, Article 854 applies when the whole estate has been
disposed leaving nothing for the compulsory heir preterited
while Article 855 applies when there is a part of the estate
that has not been distributed yet.
Take note:
PRETERITION – involuntary omission (by mistake or inadvertence)
DISINHERITANCE – voluntary omission (intentional)
Relevant Codal Provisions
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. If the omitted compulsory heirs
should die before the testator, the institution shall be effectual, without
prejudice to the right of representation.
Art. 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.
Get the preterited share from the free portion not disposed of in the
will. If there is none or such is not sufficient, go to the shares of the
other compulsory heirs.
PREDECEASE, INCAPACITY, RENUNCIATION OF HEIR
Relevant Codal Provisions
Art. 856. A voluntary heir who dies before the testator transmits
nothing to his heirs.
A compulsory heir who dies before the testator, a person incapacitated
to succeed, and one who renounces the inheritance, shall transmit no
right to his own heirs except in cases expressly provided for in this
Code.
KINDS OF INSTITUTION
Institution of an heir may be made:
1. With a condition
2. With a term
3. For a certain purpose or cause
WITH A CONDITION
-a testator can impose a condition, provided that it is not impossible,
not illegal, and it is not imposed on the legitime. The legitime is
reserved for compulsory. If he imposes such conditions, it will deemed
as not written.
What is a condition? It is a past or a future event that is uncertain to
happen. It can a past event as long as it is unknown to the parties.
Ex- I institute X provided he will pass the bar exam.
Must be expressed and not presumed.
Condition – Future or uncertain event, or a past event unknown to
the parties, upon which the performance of an obligation depends.
Example: A instituted B as heir provided that B passes the bar of 2003.
TN: Condition can only be imposed on the free portion and never on
the legitime.
Can you impose a condition on the legitime? No. Except:
The only valid prohibition as to legitime
Prohibition against the partition of legitime for a period not exceeding
20 years.
Reason: To preserve the property among the blood relatives and for
sentimental reasons. Also for economic reasons.
What type of property is involved here? We need to qualify as to the
nature of the property. There are some property which do not allow
partition.
Ex- a vintage car, how do you partition? Sell and divide the proceeds.
A car can be subject to prohibition because if it is broken down and
divided physically, there will be change in the value.
What about a rosary made of diamond beads? Can it not be
partitioned for 20 years? If a property is consists of several parts and if
you remove a part, it cannot serve its purpose anymore, the 20 years
prohibition may apply.
What about if it is 12 bouillons (gold bars)? No because the bars are
already separable.
What if it is 20M cash? Can be partitioned because of its nature. The
law states that you are not allowed to prohibit it because of its nature.
Ferdie: The law does not make any distinction. But if we follow the KINDS OF INSTITUTION
reason of the law, then it would make sense if we say that this does GR: Modal institution is not a condition
not apply to all types of properties regardless of nature. This probably XPN: Unless testator’s intention clearly appears on the will itself
refers only to ancestral home or land that the testator would want to Modal institution Conditional Institution
preserve and not cash. Testator cannot say that P20M should be 1. Both provides an obligation
untouched for a period of 20years as it does not make sense, exactly 1. Both provides an obligation
2. Violation of obligation
why the law used the word ‘partition’ which presupposes that the 2. Violation of obligation results
results in forfeiture of
property may be composed of several parts, and if you sever one part in forfeiture of inheritance
inheritance
it renders the property useless. 1. (suspensive condition)
property is placed under
Can the heirs just agree to the partition even if there is a prohibition 1. Capacity of the heir to administration
for 20 years? No probably because it defies the wishes of the testator. succeed is not contingent on and heir will not be allowed to
But it can be done. But can this be sanctioned by the court? Yes. the happening of condition. get the property even if he
Except if one of the heir says no. Because such disagreement, after all, Do you inherit only upon wants to give security because
is consistent with the wishes of the decedent. death? No. the property is under
2. Inheritance can be administration
Can the heirs agree to just partition even without the lapse of immediately demanded, 2. (resolutory/negative
20years? Yes, if there is a compelling reason. provided a security is given condition)
property can be taken upon the
Causes that might cause early partition of the property: giving of a security
1. Causes for termination of partnership can be applied by analogy Principles:
Because the partners are co-owners, so it can be likened to a 1. When in doubt as to whether there is a condition or merely a mode,
partnership. Like when the co-owners are fighting because of the consider same as a mode.
property. 2. When in doubt as to whether there is a mode or merely a
2. When the court finds compelling reason upon the petition of one suggestion, consider same only as a suggestion.
of the co-heirs 3. “The ‘condition’ suspends but does not obligate; the ‘mode’
Ex- support for food, when it is a matter of life and death. Why does obligates but does not suspend (for he who inherits with a mode is
the law allow this? Because had the testator been alive, he would have already an heir; one who inherits conditionally is not yet an heir).”
allowed that.
What if you did not follow the condition?
WITH A TERM Effects of violation of modal institution
Term- future event but certain to happen. 1. Instituted heir forfeits the inheritance
The day or time when the effects of the institution of an heir shall 2. Return of anything received with its fruits and interest
commence or cease.
Example in the book: A instituted B as heir, the effects to commence in Relevant Codal Provision
2005. Art. 871. The institution of an heir may be made conditionally, or for a
Ferdie: This is not a good example because if the testator is still alive certain purpose or cause.
in 2005, it results to a donation inter vivos and not mortis causa. a. With a condition- must be expressed and cannot be
Better Example: I hereby institute B as an heir one year after my presumed; parol evidence cannot be used to prove;
death. however, a document incorporated by reference may.
Ex- I institute X provided Y will dies. b. With a term
Taxes may or may not be imposed. c. For a certain purpose (modal institution)

FOR A CERTAIN PURPOSE OR CAUSE (MODAL INSTITUTION
OR INSTITUCION SUB-MODO)
The statement of the object of the institution or the application
of the property left by the testator or the charge imposed upon him.
Not a condition. But should the purpose be violated, the instituted heir
is supposed to forfeit the inheritance, to return everything with fruits
and interest.
Ex- I institute Jannen for his education.
Example: I hereby give P500,000 to X so that he may take care of his
aging sister.
Ferdie: In this case, X does not get any benefit. The P500,000 goes to
the benefit of the aging sister. So technically, this should not be
considered as an institution of an heir but a mere appointment of an
executor/ adminitrator. In this case, X is not given anything but burden
or duty. Normally, when you are instituted, you benefit from it.
Occurs when ANY or ALL of the following are stated:
1. Object of the institution
Example: I institute A as my heir to give him enough money to
obtain a legal education. The institution is for the benefit of the heir.
2. Application of the property left by the testator
Example: I institute B as my heir. He will apply the properties of
my estate to the erection of a College of Law in Ortigas Avenue.
Ex- I give X 500,000 for Y’s education. This is an application.
Normally, this is not for the benefit of somebody else.
3. Charge imposed by the testator
Example: I institute A as my heir. He will devote 10% of the annual
income from my buildings for the establishment of a professorial
chair in Civil Law at the University of Metropolis.
Where you give a little something.
TN: can only be imposed on the free portion and not on the legitime.
Otherwise, it will be considered not imposed.
ANALOGOUS/SUBSTANTIAL COMPLIANCE
GR: It is necessary that the intention of the testator as
provided in the will be followed.
XPNs:
1. If such is impossible, it shall be by analogous or substantial
compliance.
Example: If the condition of buying a new 2003 BMW is not
obtainable, then a slightly used 2002 BMW will do.
Example: testator gave land to build lawn tennis court, the successor
built a table tennis court because the land given is too small. Not
consistent with the intent of the testator. Not substantial compliance.
2. If person interested in condition prevents the fulfillment, it shall be
by constructive fulfillment (deemed complied to punish legal heir
and prevent injustice)
Example: C inflicts injuries on B so he won’t be able to take the BAR
exam after A instituted the latter as heir provided he passes the BAR
(C is A’s brother while B is simply a friend of A)
Why do we allow this? Because you would’ve wanted to, but you
cannot because somebody incapacitated you. It is not your fault. So
the law deems you to have fulfilled.
GR: testator can impose any condition on the free portion.
XP: not illegal, impossible, and vague. Otherwise, it will be deemed not
written.
IMPOSSIBLE, ILLEGAL, VAGUE CONDITIONS
Is the privilege to impose a condition on the free portion
absolute?
So long as the condition is not impossible or not contrary to
public policy, public morals, then the testator may do so.
Otherwise, it will be as if no condition is imposed so as not to prejudice
the instituted heir. A will cannot go against the law.
Ex- I institute Cuadrasal, provided he kills Co.
What if the condition is vague, what happens?
If there is a condition imposed on the institution of an heir that despite
application of construction and interpretation rules it still is ambiguous,
it is treated as if an impossible condition is imposed and such is
disregarded. Not verifiable because there is no yardstick to measure
such condition. Because it is only from the viewpoint of the testator.
Impossible not because it cannot be done, but impossible because it
cannot be gaged.
Ex. I institute Cuadrasal provided he becomes successful.
Time to be considered
The time to be considered in finding out whether a condition is
impossible or illegal is at the time when the condition is supposed to
be fulfilled.
CONDITIONS and PROHIBITIONS TO RE/MARRY
A. Absolute Prohibition
GR: Any stipulation absolutely prohibiting first marriage or for
widow/widower to remarry, as a condition, is void for being
contrary to morality and public policy.
XPN: The prohibition to remarry (presupposes that he/she is previously
married) is valid, for sentimental or economic reasons, if it is imposed
by the following:
1. Deceased spouse
2. Ascendants or descendants of deceased spouse
Ex- I institute you as my heir, provided you remain a virgin wife.
Allowed? No because contrary to law. There is an obligation for the
wife and husband to consummate their marriage.
B. Relative Prohibition (Prohibition to marry a particular girl, or at
a particular time, or for a number of years) unless it becomes so
onerous or burdensome such as:
Examples:
Do not marry for 60 years.
Do not marry in the Philippines or anywhere in Asia.
*you’re just trying to single out somebody from a sea of choices.
Ex- Mr. A made a will and placed therein that his wife should never
remarry otherwise, she will be forfeited of her inheritance. If the wife
remarries, the condition is only valid in so far as the free portion is
concerned. A cannot impose a condition on the legitime.
Ex- Julianne, a middle class, was instituted as heir provided she
marries Harold and spend 15 million in their wedding. Take note, here
it depends upon the financial capabilities. If she is a crazy rich Asian, it
is not onerous or burdensome anymore.
GR: The relative prohibition to contract a first marriage or to
remarry is valid.
XPN: Unless it is onerous or burdensome that it amounts to an
absolute prohibition which cannot be complied anymore.
GR: The condition to marry a particular person or at a
particular place or time is valid.
XPN: Unless such condition becomes impossible or illegal.
Usufructuary
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.
Ex- you can harvest the fruits in my vineyard, as long as you stay
single.
A usufruct can be devised. What happens if you marry? You will be
obliged to return the fruits.
Personal prestation
It is the object or consideration for giving such condition. To do or not
to do something. It can only be you who is capable of fulfilling that. It
can be in cash or services.
Ex- I will pay my debt through rendering my services.
Does this not amount to involuntary servitude? No.
DISPOSITION CAPTATORIA
A void disposition whereby a testator provides an inheritance to an
heir provided that such heir will as well provide an inheritance to the
estate of the testator. It is prohibited because it tends to make the
making of the will a contractual act which is not the essence of the
will.
No vitiated consent, you agreed freely.
Example: A give in his will a legacy of a car to B on the condition that
B in turn, in his own will, would give something to A. What is your
remedy when you really want to give something to each other? don’t
place it in the will.
TN: if the favor to be done by the heir or legatee will not be made in
the will, both disposition and condition should be considered valid.
Haven’t we established that a Mutual Will is allowed? What’s the
difference? In disposition captatoria, it is made a condition. In mutual
will, no condition is written in the will.
POTESTATIVE CONDITION
A condition where the fulfilment of which depends purely on the heir
who must personally perform it. Physically or intentionally? Both.
Example: A instituted B as heir on condition that B would learn how to
dance the “twist”.
Example: I institute Juliane provided she learns how to swim.
Ex- I institute Juliane provided she cut her hair short. But Harold cut
her hair while Juliane is sleeping. Will this suffice? Can be deemed as
fulfillment already? (not clearly answered) Do not argue on how to
prove this in court in the exam.
Take note:
1. A purely potestative condition must be complied with AFTER the
testator’s death since it is only then that obedience can be
indicated. (only AFTER death since it is only then that succession
opens)
2. In obligations, when the condition on the part of the debtor is
potestative and suspensive, both the condition and the obligation
are void.
TN: No prescriptive period and heir cannot be compelled but at least
motivated since non-fulfillment shall means not getting the inheritance.
Can you compel fulfillment? No. it depends entirely on the heir.
Note:
If the condition to marry potestative?
The condition to marry ANY girl is a potestative condition. But a
condition to marry a particular girl is not since that girl may refuse,
thus, it does not depend solely on the heir anymore. It can be a mixed
condition.
There can also be a negative potestative condition. (See Art. 879)
Negative potestative condition- the potestative condition is to not
do something or not give something.
CAUCION MUCIANA- bond given in favor of those who will get the
property if the condition be not complied with.
Ex- A, in his will, institutes B as an heir if he doesn’t smoke for one
year. B can get the inheritance immediately upon A’s death but he
must give a bond to guarantee that he would not smoke again.
CASUAL CONDITION
Condition (1) depends upon chance and/or upon the (2) will of a third
person which may be fulfilled BEFORE or AFTER the death of testator.
Example: A gives a legacy on condition that C wins the lotto.
MIXED CONDITION
Condition depends partly both upon the will of the heir himself AND
upon chance and/or the will of a third person which may be fulfilled
BEFORE or AFTER the death of testator.
Example: A gives B a legacy on condition that B becomes a lawyer.
Example of Casual Condition
A gives B a legacy on condition that C wins the lotto.
The fulfillment may be either before or after A’s death.
(a) If C had already won the lotto, and A did not know
this, the condition is deemed already complied with,
and B gets the legacy
b) If C had already won the lotto, and A knew of this,
the condition is deemed fulfilled only if C again
wins first prize. Unless this happens, B cannot get
the legacy. (3rd par., Art. 877). Evidently, the only
reason for imposing the condition despite the testator’s knowledge of it
having been done already is
to REQUIRE it to be FULFILLED AGAIN. (See 6
Manresa 200).
Example of a Mixed Condition
A gives B a legacy on condition that B become a lawyer.
The condition may be fulfilled either before or after the death
of A.
If B is already a lawyer, and A did not know this,
the condition is deemed complied with and B gets
the legacy. (2nd par., Art. 877).
If B is already a lawyer, and A knew this, B gets
the legacy just the same, because the condition is of
such a nature that it can no longer be complied with
again. (3rd par., Art. 877).
Take note:
1. In both casual and mixed condition, the condition and the
obligation are ordinarily valid.
2. Substantial or constructive compliance is sufficient for:
A. Potestative conditions
B. Mixed conditions when non-fulfillment is caused by a person
interested in the non-fulfillment.
3. The provisions on conditional obligations (Arts. 1179-1190) applies
suppletorily.
Relevant Codal Provisions
Art. 871. The institution of an heir may be made conditionally, or for a
certain purpose or cause.
Art. 872. The testator cannot impose any charge, condition, or
substitution whatsoever upon the legitime prescribed in this Code.
Should he do so, the same shall be considered as not imposed.
Art. 873. Impossible conditions and those contrary to law or good
customs shall be considered as not imposed and shall in no manner
prejudice the heir, even if the testator should otherwise provide.
Art. 874. An absolute condition not to contract a first or subsequent
marriage shall be considered as not written unless such condition has
been imposed on the widow or widower by the deceased spouse, or by
the latter's ascendants or descendants.
Nevertheless, the right of usufruct, or an allowance or some personal
prestation may be devised or bequeathed to any person for the time
during which he or she should remain unmarried or in widowhood.
Art. 875. Any disposition made upon the condition that the heir shall
make some provision in his will in favor of the testator or of any other
person shall be void.
Art. 876. Any purely potestative condition imposed upon an heir must
be fulfilled by him as soon as he learns of the testator's death.
This rule shall not apply when the condition, already complied with,
cannot be fulfilled again.
Art. 877. If the condition is casual or mixed, it shall be sufficient if it
happens or be fulfilled at any time before or after the death of the
testator, unless he has provided otherwise.
Should it have existed or should it have been fulfilled at the time the
will was executed and the testator was unaware thereof, it shall be
deemed as complied with.
If he had knowledge thereof, the condition shall be considered fulfilled
only when it is of such a nature that it can no longer exist or be
complied with again.
Art. 883. When without the fault of the heir, an institution referred to
in the preceding article cannot take effect in the exact manner stated
by the testator, it shall be complied with in a manner most analogous
to and in conformity with his wishes.
If the person interested in the condition should prevent its fulfillment,
without the fault of the heir, the condition shall be deemed to have
been complied with.
Art. 884. Conditions imposed by the testator upon the heirs shall be
governed by the rules established for conditional obligations in all
matters not provided for by this Section.
WITH A TERM
SUSPENSIVE TERM
One that merely suspends the demandability of a right, even the
acquisition itself of the right
Ex- A instituted B as heir but effective only after death of C. B already
acquired the right pending the death of C. Hence, even before the
arrival of the term, B can transmit his rights to his heirs.
Term v. Condition
A. Term – a certain event that is sure to happen
B. Condition – a future event that may or may not happen
Effect of predeceasing the suspensive condition (not term): does not
inherit because he is already dead at the time the condition happened.
Relevant Codal Provisions
Art. 878. A disposition with a suspensive term does not prevent the
instituted heir from acquiring his rights and transmitting th3em to his
heirs even before the arrival of the term.
Art. 880. If the heir be instituted under a suspensive condition
or term, the estate shall be placed under administration until
the condition is fulfilled, or until it becomes certain that it
cannot be fulfilled, or until the arrival of the term.
If the condition is not fulfilled: it will go to the heirs.
The same shall be done if the heir does not give the security required
in the preceding article.
Art. 885. The designation of the day or time when the effects
of the institution of an heir shall commence or cease shall be
valid. In both cases, the legal heir shall be considered as
called to the succession until the arrival of the period or its
expiration. But in the first case he shall not enter into
possession of the property until after having given sufficient
security, with the intervention of the instituted heir.
Example
A has a brother B (A’s only relative) but institutes C as
heir beginning 5 years from A’s death. During the five-year
interval B is considered called to the succession until the period
expires. But B cannot enter into possession of the property until after he has
given sufficient security. The security must be
approved and considered suitable by C, the instituted heir.
[NOTE: While B is entitled to inherit in the meantime, this
is only so if the testator had not designated any other interim
heir for this article may be considered suppletory, there being
no prohibition to institute such interim heir. (6 Manresa 225).].
[NOTE:
(a) In the example given, B is to be considered merely
as the usufructuary, with the right to enjoy but not
alienate, unless the alienation be subject to the right
of C to eventually get the property. (6 Manresa 225).
If B does not offer security, it is as if he renounced
the inheritance and the property should really go
to the next legal heir, instead of being put under
administration, as apparently required by Art. 880.
(See 13 Scaevola 767).
(b) In case the legal heir concerned happens to be
the State, is it required to give security? A noted
commentator answers this in the negative. (See 13
Scaevola, p. 777).
(c) If the institution be in diem, and the first heir takes
possession in the meantime, does he have to give
security for the protection of the legal heirs who will
get the property later?
ANS.: No, since this is not required by the law.
(See 2nd paragraph, Art. 885; see also 6 Manresa
225).].
Relevant Codal Provisions
Art. 871. The institution of an heir may be made conditionally, or for a
certain purpose or cause.
Art. 882. The statement of the object of the institution, or the
application of the property left by the testator, or the charge imposed
by him, shall not be considered as a condition unless it appears that
such was his intention.
That which has been left in this manner may be claimed at once
provided that the instituted heir or his heirs give security for
compliance with the wishes of the testator and for the return of
anything he or they may receive, together with its fruits and interests,
if he or they should disregard this obligation.
Art. 883. When without the fault of the heir, an institution referred to
in the preceding article cannot take effect in the exact manner stated
by the testator, it shall be complied with in a manner most analogous
to and in conformity with his wishes.
If the person interested in the condition should prevent its fulfillment,
without the fault of the heir, the condition shall be deemed to have
been complied with.
FOR A CERTAIN PURPOSE
INSTITUTION OF THE SOUL
For the Article to apply (50-50 disposition), the following requisites are
essential:
1. Disposition is for prayers and pious works
2. Disposition is in general terms
3. Disposition does not specify its application. (Therefore, if a
particular heir, devisee, legatee, or stranger is burdened with the
duty, or if a definite place or date is fixed for the prayers, the Article
does not apply.)
Example: If testator says: “I want my children to give P100,000 every
year to the church for masses for my soul,” will half of the amount go
to the State? NO, the disposition is not in general terms.
Art. 1029 really refers to the institution of the soul. Such an institution
is recognized as valid, though the soul is not a person.
Possible midterm question:
Q: Testator institutes his soul. However, executor doesn’t know the
church where testator belongs. So executor picks Sto. Rosario when in
fact testator belongs to another. Can the executor afford to make a
mistake?
Ans – Yes, because anyway the court must approve. Court decides.
Relevant Codal Provision
Art. 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 purposes mentioned in Article 1013.
DESIGNATION OF THE POOR
The Article applies if the disposition is in favor of:
1. The poor in general (par. 1).
2. The poor of a definite locality (par. 3).
Unless clearly appearing otherwise, only the poor in the testator’s
domicile at death should be considered.
Who designates the Poor?
A. First, the person appointed for the purpose
B. If none — the executor
C. If no executor — then three people (by majority vote): (JMM)
1. Justice of the peace (now a municipal or metropolitan trial
court judge)
2. Mayor
3. Municipal treasurer
TN: All questions, even if already decided by the people concerned,
are subject ultimately to final determination by the Court. The law uses
the word “approval.” Therefore, the question — as to who really are
the poor — is a judicial question.
Relevant Codal Provision
Art. 1030. Testamentary provisions in favor of the poor in general,
without designation of particular persons or of any community, shall be
deemed limited to the poor living in the domicile of the testator at the
time of his death, unless it should clearly appear that his intention was
otherwise.
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 the 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 definite locality.
DISPOSITION IN FAVOR OF THE DISQUALIFIED
Purpose of the Article — to prohibit the testator from violating
indirectly what he cannot violate directly.
How the interposition of a third party may be done:
1. If the disposition is disguised as an onerous contract.
2. If fictitious debts are ordered paid.
3. If an intermediary is interposed (for him later on to give to the
incapacitated person).
TN: The phrase “disqualified person” refers not to one incapacitated
by reason of unworthiness but one incapacitated either absolutely, or
by reason of possible undue influence, or by reason of morality.
See Problems, page 561, Paras.
Relevant Codal Provision
Art. 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.
Relevant provision
Article 857. Substitution is the appointment of another heir so that he
may enter into the inheritance in default of the heir originally
instituted.

Substitution defined
Otherwise referred to as conditional institution of heir, substitution is
the appointment of another heir in default of or after the heir originally
instituted.

Rabadilla v. CA
Substitution is the designation by the testator of a person to take the
place of the heir first instituted.

Substitution in general
The testator may either:
1. Provide for the designation of another heir to whom the property
shall pass in case the original heir should: (RIP)
(a) Predecease
(b) Renounce the inheritance
(c) Incapacitated to inherit

TN: This is a case of simple substitution – where the second heir

takes the inheritance in default of the first heir by reason of
incapacity, predecease, or renunciation.

2. Leave his property to one person with express charge that it be

transmitted subsequently to another or others.
TN: This is a case of fideicommissary substitution.

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

Defect of codal definition of substitution

“In default of the heir originally instituted” – is defective. This is so
because in fideicommissary substitution, both the first and second
heirs inherit.
Simultaneously – insofar as the right to succeed is concerned
Successively – insofar as the enjoyment and possession of the
property are concerned.

Better definition:
Substitution is a disposition by virtue of which a third person is called
to receive hereditary property in lieu of or after another person.

Q. Can the Articles on institution apply?

Yes, except insofar as they are modified by the chapter on
substitution, since substitution is nothing but a secondary
institution.
TN: There may also be substitution of legatees and devisees.

Q. May the heirs be allowed to be substituted for the

deceased?
Yes, without requiring the appointment of an administrator or
executor.

KINDS OF SUBSTITUTION
Relevant provision
Article 858. Substitution of heirs may be: (SiBReF)
1. Simple or common – sustitucion vulgar
2. Brief or compendious – substitution brevilocua or compendiosa
3. Reciprocal – sustitucion reciproca
4. Fideicommissary – sustitucion fideicomisoria

Two other kinds of substitution under the Old Civil Code

1. Sustitucion pupilar – where the parents and other ascendants
appointed substitutes for their descendants of both sexes under 18
years of age in case these descendants should die before attaining
this age.
Reason: For the salvation of the young, preventing instigators of
murder from reaping any benefits from the crime.
2. Sustitucion ejemplar – where an ascendant appointed a
substitute for his descendant over 18 years of age who has been
legally declared to be incapacitated on account of being of unsound
mind.
Reason for their abolishment
Because there are out of use and impracticable. There has been no
known record that any parent or ascendant in this country has ever
made use of these two provisions.
Salazar v. CA
Ejectment is a real action and is not extinguished by the defendant’s
death. A judgment in said case is inclusive between the parties and
their successors-in-interest, and may thus be enforced even against
the defendant’s members of the family who derive their right of
possession from him. Besides, the widow is now estopped from
denying the court’s jurisdiction as she submitted herself to the court
and testified therein.
Relevant provision
Article 859. The testator may designate one or more persons to
substitute the heir or heirs instituted in case such heir or heirs should
die before him, or should not wish, or should be incapacitated to
accept the inheritance.
A simple substitution without a statement of the cases to which it
refers, shall comprise the three mentioned in the preceding paragraph,
unless the testator has otherwise provided.
Simple substitution
Where the second heir takes the inheritance in default of the first heir
by reason of:
1. Predecease
2. Renunciation or repudiation
3. Incapacity
Example: A instituted B as heir, and stated in his will that in case B
dies ahead of him, another person, C, will substitute B.
Important: The designation must always be express.
Illustrative problems:
(a) A instituted B and appointed C as substitute. A did not
state the causes for which the substitution may be made.
What should these causes be?
ANS.: All or any of the three cases, UNLESS A has
provided otherwise. In other words, if B predeceases A or
renounces the inheritance, or is incapacitated to receive
the inheritance, C will be the substitute heir. (Art. 859,
2nd paragraph).
(b) In question (a), if C enters into the inheritance, does he
do so because he succeeds or inherits from B or from A?
ANS.: From A. The substitute enters the inheritance,
not as an heir succeeding the first heir, but as an heir of
the testator. (Perez v. Garchitorena, 54 Phil. 431).
(c) A made a will stating that should he die before B,
his relatives C and D would inherit certain properties and that
should either C or D die before A, the survivor (between C
and D) would inherit all of said specified properties. However, B died before
A. Would C and D get anything?
ANS.: No, C and D would not get anything, because
their designation was conditional, namely, that A should
die before B, but such was not the case. Had the condition
been followed, and had either C or D died before A, there
would have been substitution. (Machrohon Ong Ham v.
Saavedra, 51 Phil. 267).
(d) The testatrix instituted an heiress and ordered that the
children of the heiress would substitute the heiress should
said heiress die after the testatrix. Is this a case of simple
substitution?
ANS.: No, this is not a case of simple substitution.
In simple substitution of this nature, the heir or heiress
dies before, and not after the testator or testatrix. (G. de
Perez v. Garchitorena and Casimiro, 54 Phil. 431; Art.
859, 1st par., Civil Code)
Substitution is kind of a conditional institution, the condition being
the predecease, renunciation, and incapacity.
Instances when the substitution is extinguished
1. When the substitute predeceases the testator
2. When the substitute is incapacitated
3. When the substitute renounces the inheritance
4. When the institution of heir is annulled (i.e. preterition)
5. When the institution or the substitution is revoked by the testator
6. When a will is void or disallowed or revoked
Illustration:
(a) T made a will instituting X as heir, and Y as substitute
In 1998, Y died, leaving Z, his child. In 2003, T died but
X is incapacitated to inherit. Is Z going to inherit from
T?
ANS.: No, because Y may be considered a voluntary
heir, and since he predeceased the testator, he transmits
nothing to his own heirs. (See Art. 856, 1st paragraph).
In the absence of any other provision in the will, legal
succession will take place.
(b) T made a will instituting X as heir, and Y, as substitute.
T died on Jan. 5, 2004. X renounced the inheritance on
Jan. 7, 2004. Y died on Jan. 8, 2004. Can Z, the child of
Y get anything from T’s estate?
ANS.: Yes, because this is not a case of predecease
on the part of Y, who after all survived the testator, and immediately inherited
from T, subject to the condition
of X’s non-inheritance. Since the condition was fulfilled
there is no doubt that Y inherited. True, Y is now dead,
but his son Z can share in T’s estate, not as an heir of
T, but merely to get the share already inherited by his
father Y
BRIEF OR COMPENDIOUS SUBSTITUTION
Relevant provision
Article 860. Two or more persons may be substituted for one; and one
person for two or more heirs.
Brief and compendious substitutions
While brief or compendious substitutions are used synonymously or
interchangeably, technically, they are different:
A. Brief substitution – when two or more take the place of one.
Example: A is an instituted heir, and B and C are his substitutes.
One heir two substitute
B. Compendious substitution – when one takes the place of two
or more.
Example: A and B are instituted heirs, and C is the substitute.
Two heirs one substitute
Important: This type of substitution is really a variation, either of the
simple or fideicommissary substitution. For instance, in example (A), in
case of predecease, repudiation or incapacity of A, the other two will
take his place. Here, we have an example of the variation of the simple
substitution.

Relevant provision
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
The essence of reciprocal substitution is that the instituted heirs are
also made the substitutes of each other.
“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.”
Example: Tanya instituted Feds to 2/3 and Bads to 1/3, both to
reciprocally substitute each other. If Feds predeceases, is
incapacitated, or renounces, his share of 2/3 goes to Bads. If Bads
predeceases, is incapacitated, or renounces, his share of 1/3 goes to
Feds.
“If there are more than one substitute, they shall have the
same share in the substitution as in the institution.”
“Same share” – should be interpreted to mean “same proportionate
share”, otherwise, if strictly interpreted, the same would result to
either partial intestacy or absurdity.
Example: Tanya institutes Feds to 12/18, Bads to 2/18, and Shiela to
4/18.
Feds is made the substitute of Bads or Shiela
Bads and Shiela are the substitutes of Feds
If Feds predeceases, is incapacitated, or renounces, his share of 12/18
will be given proportionately to Bads and Shiela. Since Bads and Shiela
were instituted in the proportion of 1 is to 2, this will be the proportion
in which they will get the 12/18. Thus, 4/18 and 8/18, respectively.
BRIEF OR COMPENDIOUS SUBSTITUTION
Will this Article apply even if the institution was in equal
shares?
Yes, the same principle applies. The law uses “unequal” only to clear
up former doubts on the matter in case the institution was in unequal
shares.
Important: This Article also applies to substitutions in legacies and
devises.
Tanya gave Feds a legacy worth P120k Bads, P20k and Shiela,
P40k. If Feds predeceases Tanya, how much of his shares, if
any, will go to Bads and Shiela, by way of substitution?
A: None, for no substitution was provided for in the will. However,
they will inherit by accretion, and it is worthwhile to note that those
who inherit by accretion inherit also in the same proportion as in the
institution.
Effect of Substitution when there is a condition
GR: if the substitute inherits, he must fulfill the conditions imposed on
the original heir.
XP:
(a) testator expressly provides otherwise as appearing in the will
(b) if the conditions/charges are only applicable to the original heir;
this occurs when personal qualifications of the original heirs were
considered by the testator in designating such original heir.
Example:
T instituted A, pianist, as heir, provided that A
would give a piano concert a month after T’s death.
B was made substitute. If A predeceases T, B is not
required to give the concert if he is not a pianist
himself.
Query:
Suppose in the problem above, A died the day
after T died, will B inherit? (The reader will please try
to answer this.) (HINTS: There was no predecease.
Was there incapacity? Was the condition fulfilled?
Has the condition become impossible? Is the condition extinguished and will
it be disregarded? Is this
an impossible condition in a contract or in a will?
Relevant provision
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.
FIDEICOMMISSARY SUBSTITUTION DEFINED
Fideicommissary substitution
Otherwise referred to as indirect substation. It is that by virtue of
which a testator institutes a first heir and charges him to preserve and
transmit the whole or part of the inheritance later on to a second heir.
Distinction from simple substitution
Simple Substitution Fideicommissary
Only one heir inherits/ Both inherits
alternative succession
Parties to a fideicommissary substitution
1. First heir or fiduciary – one who has the obligation of preserving
the property and transmitting the same to the second heir.
2. Second heir or fideicommissary – one who eventually receives the
property.
3. Testator or fideicomitente
Example: Tanya institutes Feds as first heir. The will states that Feds
should preserve and transmit later on the estate to Bads, who is Feds’
son. (It is clear here that upon Tanya’s death, Feds will inherit. Later
on, he will just have to deliver to Bads the property who has also
inherited as second heir)
Important: In fideicommissary substitution, both heirs inherit the
property or right to it simultaneously, although the enjoyment and
possession are successive.
Purpose
For the prosperity and prestige of family, bearing in mind the lack of
intelligence, weakness of character, and vanity and prodigality of the
descendants to whom the property will go.
Power to appoint a fideicommissary substitute is a
complement of the freedom of disposition
As this gives a powerful stimulus to the accumulation of wealth, and
thus, maintains the tradition and social standing of the family.
Disadvantages
1. The free circulation of property is somewhat curtailed, resulting in
suspended ownership.
2. The property may be locked up or entailed in a family for a long
period.
3. It is opposed to the liberty of property and to the principle that the
making of a will is a strictly personal act.
4. The original purpose is feudalistic and is not in accord with the
modern concept of ownership which puts the welfare of the society
over and above that of a particular family.
Important: That is why the Code Commission, while retaining the
concept, introduced amendments requiring two essential requisites
before this substitution can be made:
1. First and second heirs must be only one degree apart
2. Both heirs must be living at the testator’s death
Requisites and limitations of the fideicommissary substation
(FirstObliSecondOneAlive)
1. There must be a first heir called primarily to the enjoyment of the
property
2. There must be an obligation clearly imposed to preserve and
transmit to a third person the whole or part of the inheritance
3. There must be a second heir
4. The first and second heirs must be only one degree apart
5. Both the first and the second heirs must be alive or at least
conceived at the time of the testator’s death
6. Express manner
7. Must not burden the legitime
8. Not conditional
Important: Additionally, it must be made in an express manner,
must not burden the legitime and must not be conditional.
FIRST REQUISITE (First Heir)
Must be capacitated and must accept
The first heir must himself be capacitated and must accept the
inheritance if he wants to enjoy the same.
He is not a mere trustee
Because while he also administers, he carries out not another’s wishes
but his own, insofar as management is concerned. Also, he enjoys the
use and the fruits, unlike a trustee.
He is not a delivery boy or mere agent who does nothing but deliver
the property.
He is more like a usufructuary
A. He has the right to enjoy the property
B. He is bound to make an inventory to know what properties he must
preserve and transmit
C. He cannot alienate the same
D. But unlike a usufructuary, he is not required to furnish a bond
E. But unlike a usufructuary, he is entitled to refund of useful
improvements insofar as an increase in value is concerned
Important: However, in case he succeeds in registering the property
as unencumbered in the Torrens system, innocent third parties should
not be prejudiced. But if no such registration is made, the buyer, no
matter how innocent acquires merely the seller’s right.
SECOND REQUISITE (OBLIGATION)
The obligation must be given clearly and expressly
The obligation to preserve and transmit must be clearly expressed,
either by:
1. Giving the substitution the name “fideicommissary substitution”
2. Imposing upon the first heir the absolute obligation to deliver the
property to a second heir
Instances where there is no fideicommissary substitution
1. If a mere advice, or request is made instead of an obligation. In
such a case, there will be a simple institution of the first heir, and
the second heir gets nothing.
FIDEICOMMISSARY SUBSTITUTION
Important: The nullity of the fideicommissary substitution does
not prejudice the validity of the institution of the heirs first
designated. The fideicommissary clause is simply considered as not
written.
2. If the obligation is conditional
Example:
T devised land to X with authority to sell if X has
children; or if none, she must deliver it after her death to Y.
There is no fideicommissary substitution in view of
the condition. (TS, Nov. 18, 1914)
3. Where there is no obligation to preserve
(d) T instituted X as heir, allowed X to sell the same after
his death, and designated Y as heir to whatever property
remains after X’s death. There is no fideicommissary
substitution here for failure to express the obligation to
preserve.
(e)T asked X to deliver certain properties to Y after T’s
death. There is no fideicommissary substitution here. (See
6 Manresa 134).
(f) T made X his heir. He provided in the will that X would
enjoy the property as long as X lived, but after his death,
same should go to Y.
HELD: There is no fideicommissary substitution
here since there was no obligation to preserve. (TS, Nov.
8, 1919).
THIRD REQUISITE (SECOND HEIR)
Fideicommissary
He is a sort of naked owner. Upon transmission to him of the property,
full ownership is consolidated in him.
Must be a natural person
The second heir cannot be a juridical personal or a class of persons,
because the law takes of “one degree” which refers to generation, and
therefore to a natural person.
Important: However, there is nothing intrinsically wrong with making
the second heir a juridical person. In which case, one degree should
mean one transfer.
Must be capacitated to succeed the testator
Since the second heir inherits not from the first heir but from the
testator, said second heir must be capacitated to succeed the testator
and not the first heir.
FOURTH REQUISITE (ONE DEGREE)
Meaning of one degree
Opinion is divided on this point:
A. Spanish Supreme Court – One degree means one transfer, one
transmission or one substitution, the purpose being to prevent
successive entailments, regardless of relationship.
B. Manresa and Sanchez Roman – One degree means one
generation. This means that the substitute may be the parent or
child of the first heir – no other person can become the
fideicommissary.
Important: Paras agrees with the second opinion considering that the
purpose of fideicommissary substitution is to maintain the prosperity
and prestige of one family.
Illustrative problems:
Problems
1) T instituted A as first heir, and B (A’s brother), as
second heir in what he desired to be a fideicommissary substitution. When T
died, A got the property. Later, A died. Who will get the said property, A’s
heir or B?
ANS.: A’s heir, because the fideicommissary
substitution was not valid, B being a relative of the
2nd degree of A. It does not matter that there was
only one transfer here.
2) T instituted A as first heir; B (A’s son) as 2nd heir;
and C (B’s mother) as 3rd heir in a fideicommissary
substitution. Is this valid?
ANS.: It is valid insofar as A will get and then
B. But on B’s death, C does not get the property as
a result of the fideicommissary substitution because
C is not one degree apart from A; C may not even be
related by blood to A. (However, there is a chance C
can get the property, not as a result of T’s will, but
as a result of B’s will or B’s intestate succession, for
she is after all an heir of B.
FIFTH REQUISITE (BOTH MUST BE ALIVE)
Reasons for the requirement
1. To reduce the number of years the property will have to be
entailed.
2. Because the second heir himself inherits from the testator, thus
he, too, has to be capacitated.
3. A non-conceived child has no juridical capacity and cannot
therefore be given any legal right
Illustrative problems:
T instituted A as first heir, and A’s third child as
second heir. If A does not even have any child yet at the
time the testator dies, can the fideicommissary substitution be given any
effect?
ANS.: No, for the 2nd heir was not yet living or
conceived at the testator’s death. This is so even if at the
time A dies, the 3rd child already exists.
T institutes A as 1st heir, B as second heir. B dies
in 1999; T dies in 2012. In 2013, does A inherit?
ANS.: Yes, for while the substitution is not valid,
the institution remains valid. (See Art. 868).
T institutes A as 1st heir, B as second heir. A dies
in 2012; T dies in 2013. Will B inherit in 2013?
ANS.: It is apparent that the fideicommissary
substitution cannot be given effect, for the 1st heir was already
dead at the time the testator died. If, therefore, A does not
inherit, and if the substitution of B is not valid, it would
seem that the logical answer is that B does not inherit.
Indeed, the fideicommissary substitution cannot be given
effect for it was void. However, liberal construction of
the law can permit us, I believe, to consider this not as
a fideicommissary substitution but as a SIMPLE one. In
such a case, B can inherit. This interpretation can indeed
give effect to the testator’s desire to eventually give the
property to the substitute. And certainly by providing
for a substitute, the testator has made it clear that as
between intestacy and substitution, the latter would be
preferred.
G. de Perez v. Garchitorena
Tanya instituted Feds as her heir with the following stipulations in the
will:
1. Should Feds die, the whole estate should pass unimpaired to
Feds’ children
2. The estate should never pass out of the hands of Feds and his
children as long as this was legally possible
3. Should Feds die after Tanya while Feds’ children are still minors,
the estate would be administered by the executor.
Tanya eventually died. To whom shall the estate belong?
Held: The estate shall belong to Feds’ children, and not to Feds’
estate, as all requirements for a fideicommissary substitution are
present. Consequently, the creditors cannot go against the property.
The requisites for are present because:
1. The first and second heirs exist, in the proper relationship, and
were both alive at the testatrix’s death.
2. The phrase “shall pass unimpaired” and the phrase “should never
pass out of the hands,” show an obligation to preserve and
transmit.
3. The phrase “should Carmen die after Ana” anticipates a situation
where a first heir, Carmen, will later die after having enjoyed the
inheritance.
CANNOT BURDEN THE LEGITIME
Relevant provision
Article 864. A fideicommissary substitution can never burden the
legitime.
Reason
Because the legitime is expressly reserved for the compulsory heirs. In
fact, no substitution of any kind can be imposed on the legitime.
Example: Tanya had an estate of P1 Million. She gave Feds, a friend,
P500k. On the remaining P500k, she imposed a fideicommissary
substitution with her child as first heir. In this case, the son of Tanya
can completely disregard the substitution since it was imposed on his
legitime.
MUST BE EXPRESSLY MADE
Relevant provision
Article 865. Every fideicommissary substitution must be 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 provided otherwise.
Fideicommissary substitution must be expressly made
The words “fideicommissary substitution” need not be given. It is
sufficient that there be the absolute obligation of preserving and
delivering the property to the second heir. Also, if the intention is clear
from the clauses of the will, the same would be sufficient.
However, just because the words “fideicommissary substitution” were
used, does not necessarily mean that it takes effect for after all, the
other requisites may be absent.
When must inheritance be delivered to the second heir
In the absence of a period fixed by the testator, the inheritance must
be delivered at death of the first heir.
Extent of the inheritance to be delivered
It depends on the testator’s intent. Unless specified, it is understood
that the whole property received by the first heir shall be delivered.
Effect of alienation of reservable property
Moralejo v. Maquiniano
Tanya instituted Feds as heir to receive a parcel of land, with the
condition that he must not alienate it but preserve it instead for his
children. However, Feds sold the property to Bads, without the latter
knowing of the condition. When Feds died, his children brought an
action to recover the land from Bads. Will it prosper?
Yes, in view of the testamentary reservation in favor of the children.
This is true even if Bads was in good faith as he merely acquired Feds’
right. Thus, applying the principle of caveat emptor (let the buyer
beware), the sale to Bads was valid, subject to the testamentary
reservation.
Important: However, if Feds succeeding in registering the property
under the Torrens system, Bads takes the property free from all liens
and encumbrances. Consequently, the children cannot recover the
property. Their only right is to recover from the Assurance Fund or get
reimbursement from their father’s estate.
Deductions to be made in case of transmittal to second heir
1. Legitimate expenses – i.e. necessary repairs and increase in value
by reason of useful improvements (the expenses for useful
improvements are not reimbursable – only the amount to the
extent of the increase in value)
2. Legitimate credits
3. Legitimate improvements
Important: If the property is destroyed by reason of a fortuitous
event, the obligation to deliver is generally extinguished.
RIGHT OF SECOND HEIR PASSES TO HIS HEIRS
Relevant provision
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.
Rule if the second heir predeceases the first heir (not the
testator)
The second heir inherits, not from the first heir, but from the testator.
Thus, in case the second heir predeceases the first heir, his rights shall
pass to his heirs.
Important: While it is permissible for the second heir to predecease
the first heir, neither must predecease the testator.
Tanya instituted Feds as first heir, and Bads as second heir.
Tanya died in 2003. Bads died in 2004, leaving a daughter
Shiela. On Feds’ death, will Shiela get the property?
Yes, because on Tanya’s death in 2003, Bads already acquired a right
to the succession. Thus, notwithstanding his subsequent death, the
property shall go to his heirs upon Feds’ death.
TESTAMENTARY DISPOSITIONS AKIN TO
FIDEICOMMISSARY SUBSTITUTIONS
Relevant provision
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.
Purpose of the Article
To prevent conditions which would entail the property for a long time
and result in a case worse than the fideicommissary substitution.
PROHIBITION TO ALIENATE
1. Perpetual prohibition
Example: A gave a devise of land to X, and told him never to
alienate the property. Is the stipulation valid?
Strictly speaking, the stipulation is of no effect, but considering Art.
870, the same would be valid, but only for the first 20 years. Thus,
X can sell the land after 20 years, but not before.
2. Temporary prohibition
A. In case there is a fideicommissary substitution – the prohibition
to alienate imposed on the fiduciary is allowed even beyond the
20 years, otherwise, there may be nothing to deliver, and the
purpose of the substitution is frustrated.
B. In case there is no fideicommissary substation – the testator
can prohibit the heir and all those who may inherit from the
latter, for a total of 20 years, provided the same prohibition will
not go beyond the limits imposed by Article 863.
Example: Tanya instituted Feds as his only heir, but prohibited
him and all those who may subsequently inherit from him to
dispose of the property for 20 years. Tanya then died. Feds is
bound not to alienate for 20 years. However, Feds died
thereafter after Tanya. Bads, the son of Feds then inherits the
property. Is Bads bound to respect the temporary prohibition?
A: Yes, for the next 17 years.
Suppose Bads dies after 10 years, and the property is in turn
inherited by Shiela, his daughter. Is Shiela bound not to
alienate for the remaining 7 years?
A: No more, because although a total of only 13 years lapsed,
to impose the prohibition for the remaining 7 years on Shiela
would be beyond the limits of Article 863, since Shiela is not a
first degree relative of Feds who originally inherited the
property.
PAYMENT OF INCOME OR PENSIONS
Important: Attention must be focused on the word “successively”
Example: T instituted A as a sole heir, with the obligation of paying a
periodical income of P20,000 a month to B, and after B’s death to C.
This would be proper provided that B and C are one degree apart and
both are living at the testator’s death.
If the pension would be given to B first, then to C (son of B) upon B’s
death, then to D (son of C) upon C’s death, this would be very
prejudicial
to A. Therefore the law, in the problem given, would require him to
pension only B, then C after B’s death. To require him to pension also
D of the right to succeed to a certain portion of the inheritance, or he
would be to go beyond the limits of Art. 863.
Important: If those to receive pensions will be given simultaneously
and not successively, it would be permissible to require him to pension
as many people as he could, but of course the total amount should not
go beyond the value of the inheritance, unless of course the heir
consents.
EFFECT OF SECRET INSTRUCTIONS
Example: Tanya made a will giving Feds P1 million to dispose of in
accordance with secret instructions he had given him. If Feds is
supposed to act only as a middleman or agent, both the secret
instructions and the institution are void.
Important: Manresa says this provision is intended to prevent the
application of the property for purposes not legally sanctioned.
However,
if Feds was really instituted, this should be ascertained from the
wordings of the will. He will get the property and only the secret
instructions will be disregarded.
EFFECT OF NULLITY OF THE
FIDEICOMMISSARY SUBSTITUTION
Relevant provision
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.
The fideicommissary clause is simply considered not written
Example: Tanya instituted Feds as first heir, and Bads as second heir.
If
Bads predeceases Tanya, will Feds still inherit?
A: Yes, as instituted heir, notwithstanding the invalidity of the
fideicommissary substitution. The fideicommissary clause is simply
considered not written.
GRANT OF A USUFRUCT
Relevant provision
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.
Illustrative problems:
1. Tanya, in her will, gave to Feds the naked ownership of his house
and Bads the usufruct. Is this allowed?
A: Yes, because the naked ownership of the property is distinct and
severable from the use of fruits or the beneficial ownership thereof.
2. In the same situation, may the usufruct be given to Bads and
Shiela, a stranger, simultaneously?
A: Yes, and in such case, Bads and Shiela would be co-owners of
the usufruct. The law distinctly provides that “usufruct may be
constituted on the whole or part of the fruits of the thing, in favor
of one or more persons, simultaneously or successively, and in
every case, from or to a certain day, purely or conditionally.”
WILLS AND SUCCESSION l Atty. Ferdinand Gujilde l For the
exclusive use of EH 404 2016-2017
7|UNIVERSITYOFSANCARLOS
DEFINITION
Relevant provision
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.
Three systems affecting the legitime
1. System of the legitime (partial reservation) – A part is for the
legitime, a part is for the free portion.
2. System of total reservation – Everything goes to the compulsory
heirs, as long as there is at least one.
3. System of total freedom of disposition – There is no legitime.
Everything is free.
Purpose of the legitime
To protect the children and the surviving spouse from the unjustified
anger or thoughtlessness of the decedent.
Important: If there are no compulsory heirs, it follows that there can
be no legitime.
Legitime may be received from two aspects
1. As a right
2. As the property itself
Thus, when a person refers to his legitime from his father, he talks
either
may
be referring to the actual property itself.
A compulsory is entitled to his legitime
GR: The testator cannot deprive his compulsory heirs of their legitime.
XPN: In cases expressly specified by law, i.e. disinheritance and
reserva million,
troncal. and the collationable donations are P500k, how much is the net
No burden may be placed on the legitime hereditary estate?
GR: The testator cannot impose upon the legitime any burden, A: P500k. The donation shall not be held responsible for the debts of
encumbrance, condition or substitution. the estate, as the debts should be taken only from the estate
XPN: The condition that the property will not be divided for a period remaining.
not Value to be collated
exceeding 20 years. Should be the value at the time the donations were made and not at
Effect of donations the
No person may give by way of donation more than he may give by time of the collection.
will. LEGITIME
Thus, even donations inter vivos may be reduced if fund inofficious (if DEFINITION
they exceed the free portion). However, any alienation which is for an HOW DETERMINED
onerous or valuable consideration would be proper. WILLS AND SUCCESSION l Atty. Ferdinand Gujilde l For the
Meaning of “compulsory” exclusive use of EH 404 2016-2017
Heirs are compulsory in the sense that the testator cannot disregard 8|UNIVERSITYOFSANCARLOS
them. However, it does not mean that they are compelled to accept Reason: Because donation transfers ownership. Thus, any increase in
the value should be inure to the donee’s benefit. In like manner, in case of
inheritance. Compulsory heirs are never compelled to, for no one can loss, the donee bears the loss.
be How value of estate is determined
compelled to accept the generosity of another. How is the value of the estate at the time of the decedent’s death
Right of completion of legitime determined?
The remedy of a compulsory heir who has been given less of his Administrator must determine the
legitime, is completion of legitime. If there are judicial
value
FORMULA FOR THE COMPUTATION OF proceedings for the
of the estate, with the help of a tax
THE NET HEREDITARY ESTATE settlement of the
appraiser.
Relevant provision estate
The market value should be the basis.
Article 908. To determine the legitime, the value of the property left at Heirs must determine the value of the
the death of the testator shall be considered, deducting all debts and estate, subject to the provisions of the
charges, which shall not include those imposed in the will. NIRC.
To the net value of the hereditary estate, shall be added the value of If there are no judicial
The market value shall be the basis.
all proceedings
However, there is a prima facie
donations by the testator that are subject to collation, at the time he presumption that the assessed value i
made them. the true market value.
Formula Pagkatipunan v. IAC
Property left No conclusions as to the legal share due to the compulsory heirs can
Less (-) Debts and charges be
Plus (+) Value of collationable donations reached in the case without first:
Net hereditary estate 1. Determining the net value of the estate
Example: Tanya died leaving an estate worth P1 million and debts 2. Collating all the donations inter vivos in favor of some of the heirs
amounting to P300k. During her lifetime, she gave a donation to Feds, 3. Ascertaining the legitime of the compulsory heirs
her legitimate son, worth P500k. When Tanya died, two legitimate DONATIONS TO CHILDREN CHARGED AGAINST LEGITIME
sons, Relevant provision
Feds and Bads, survived her. How much is the legitime of each child? Article 909. Donations given to children shall be charged to their
P1 million legitime.
Less (-) P300k Donations made to strangers shall be charged to that part of the
Plus (+) P500k estate
P1,200,000 of which the testator could have disposed by his last will.
The legitime is therefore P600k, to be divided equally between Feds Insofar as they may be inofficious or may exceed the disposable
and portion,
Bads with each getting P300k. they shall be reduced according to the rules established by this Code.
Important: The legitime of Feds is P300k. However, since he has Donations to children
been These should first be imputed to or charged against their legitime. If
given P500k as donation inter vivos, this should first be charged to the the
legitime. The excess of P200k shall be taken from the free portion legitime is not sufficient to cover the donations, the excess should be
which charged to the free portion. If still excessive, they should be reduced
is P600k, leaving a net free portion of P400k. so
The charges referred to as not to impair the legitimes of the others.
The charges to be deducted are not those imposed in the will like Summary:
legacies, but the charges which, even without the will, would be 1. Charge against the child’s legitime
demandable. 2. Charge against the free portion
Example: Tanya, with an estate worth P1 million, instituted B, his 3. Reduce insofar as they impair the legitime of others
legitimate child as heir, but ordered him to give P900k to Bads, a Donations to strangers
friend. They may be reduced if found to be inofficious, as when they exceed
If the P900k is deducted, the net estate would be P10k, and Feds’ the amount set for free disposal.
legitime would only be P50k. This is not the intention of the law. Should the donations inter vivos to strangers be collated –
Here, the net estate is still P1 million, and the legitime is P500k. Thus, that
the charge in Bads’ favor should be reduced so as not to impair the is, their value be added to the remaining estate in order to
legitime. In other words, Feds would be bound to give Bads only find
P500k, out just how much the net hereditary estate is?
since this would be the free portion. A: There are conflicting views.
The debts should be taken only from the estate remaining Sanchez Roman, Donations inter vivos to strangers
without touching the donation Scaevola, Manresa should not be collated, as collation
Example: If the remaining estate is P1 million, the debts are P1.2 speaks only of compulsory heir
 being forced to collate. dispositions mortis causa
They should be collated, as they 1. Because they were made first, showing preference in the
should generosity of the decedent. Priority in time is priority in right.
Falcon, Capistrano, be considered as advances on the free2. Because donation is a bilateral act, there should be acceptance on
Supreme Court of disposal, just as donations inter vivos the donee’s party, while a disposition mortis causa is in a sense,
Spain to unilateral.
children are considered advances on 3. Because donations are generally irrevocable.
their legitimes. Preference among donations
Donations are collationable only whenIf, there being two or more donations, the disposable portion is not
the heirs of the deceased are forced sufficient to cover all of them, those of the more recent date shall be
Philippine
heirs, and when it is proven that theyreduced (first come, first served).
Supreme Court (citing However, if the dates of the donation are the same – they shall be
prejudice the legitime.
Manresa)
In other words, donations given to reduced proportionately.
strangers should NOT be collated. Rule regarding usufruct or life annuity
Important: Paras believes that the second opinion (Falcon’s) is Example: Tanya gave Feds a legacy of usufruct. The estimated value
correct of
as it would be more just that even donations given to strangers are the same (calculated over a period of time) is P120,000 but the free
collationable, as they are advances of the free portion. portion of Tanya’s estate is only P100,000. Here, the value of the
Zaragoza v. CA and Morgan, 2002 usufruct-legacy is greater than the disposable portion. The compulsory
It does not follow that only compulsory heirs must collate. As long as heirs of Tanya are given the right to either comply with the
there are compulsory heirs, donations to them as well as to strangers testamentary
must be collated. provision by giving Feds said usufruct, or give merely a sum of money
1. Those donated to compulsory heirs must be imputed to their or properties equivalent to P100,000 which is the free portion.
legitime Important: Feds has no right to choose. It is A’s forced heirs who are
2. Those donated to strangers must be imputed to the free portion. given the choice so that the legitime may not be impaired or
(for if there values are not to be added, how can we know if the jeopardized.
legitimes have been impaired or not?) Why is there a separate paragraph for devises and legacies of
DONATIONS TO ILLEGITIMATE CHILDREN usufructs?
Relevant provision A: Because usufructs may be constituted to last until the usufructuary
Article 910. Donations which an illegitimate child may have received death, thus, the value of the usufruct may exceed the free disposable
during the lifetime of his father or mother, shall be charged to his portion.
legitime. Annuity
Should they exceed the portion that can be freely disposed of, they A series of equal payments at fixed intervals deriving from an original
shall lump-sum investment.
be reduced in the manner prescribed by this Code. The aleatory contract of life annuity binds the debtor to pay an annual
Also charged against the legitime pension or income during the life of one or more determinate persons
Rules: in consideration of a capital consisting of money or other property
A. Donations to illegitimate children are collationable whose
B. They should never impair the legitime of the legitimate children ownership is transferred to him at once with the burden of the
C. Any donation in excess of the legitime shall be charged to the free income.”
disposal and shall be considered in the same category as donations Rule for life annuities
to strangers What has been said of a legacy of usufruct may also be said of a
ORDER OF PREFERENCE IN THE HEREDITARY ESTATE legacy
Relevant provision of life annuity. The life annuity should last till the recipient’s death, and
Article 911. After the legitime has been determined in accordance with might, therefore, extend for a conceivably long period of time.
the three preceding articles, the reduction shall be made as follows: Collation has two meanings:
(1) Donations shall be respected as long as the legitime can be 1. Computing or adding certain values to the estate and charging the
covered, reducing or annulling, if necessary, the devises or same to the legitime
legacies made in the will. 2. Computing or adding certain values to the estate, and charging the
WILLS AND SUCCESSION l Atty. Ferdinand Gujilde l For the same to the free portion
exclusive use of EH 404 2016-2017 “Not collationable” can mean:
9|UNIVERSITYOFSANCARLOS 1. It should be computed or added, but it should be charged to the
(2) The reduction of the devises or legacies shall be pro rata without free portion and not to the legitime
any distinction whatever. 2. It should not even be computed or added to the estate for it is not
If the testator has directed that a certain devise or legacy be paid part of the same
in preference to others, it shall not suffer any reduction until the Important: There can be collation both in testamentary and legal
latter have been applied in full to the payment of the legitime. succession.
(3) If the devise or legacy consists of a usufruct or life annuity, whose COLLATION BY COMPULSORY HEIRS
value may be considered greater than that of the disposable Relevant provision
portion, the compulsory heirs may choose between complying Article 1061. Every compulsory heir, who succeeds with other
with the testamentary provision and delivering to the devisee or compulsory heirs, must bring into the mass of the estate any property
legatee the part of the inheritance of which the testator could or right which he may have received from the decedent, during the
freely dispose. lifetime of the latter, by way of donation, or any other gratuitous title,
Order of preference in order that it may be computed in the determination of the legitime
After the net hereditary estate has been ascertained, what should be of
the order of payment? each heir, and in the account of the partition.
1. Give the legitimes Collation of the first kind
2. Donations inter vivos Here, all the properties which the compulsory heirs may have received
3. Preferred legacies and devises during the testator’s lifetime by way of donation is added to the value
4. All other devises and legacies pro rate (in case estate is not of the estate, and charging the same to the legitimes.
sufficient) Purpose: To preserve the legitime and to maintain equality as among
Important: The reduction should be made in the inverse order of the compulsory heirs of the same class. This is because every donation
payment. inter vivos is considered generally as an advance of the legitime.
Reasons why donations inter vivos are preferred over Important: There is no necessity for collation if there are no
compulsory heirs.
What should the compulsory heir show so that the property
donated to him shall not be collated?
He shall show an express prohibition to collate made by the
decedentdonor in the Deed of Donation.
Important: Properties transferred by the decedent during his lifetime
by reason of sale are not collationable.
Donations to strangers are collationable
Zaragoza v. CA and Morgan, 2002
It does not follow that only compulsory heirs must collate. As long as
there are compulsory heirs, donations to them as well as to strangers
must be collated.
1. Those donated to compulsory heirs must be imputed to their
legitime
2. Those donated to strangers must be imputed to the free portion.
(for if there values are not to be added, how can we know if the
legitimes have been impaired or not?)
COLLATION
WILLS AND SUCCESSION l Atty. Ferdinand Gujilde l For the
exclusive use of EH 404 2016-2017
10 | U N I V E R S I T Y O F S A N C A R L O S
Is the surviving spouse included in “every compulsory heir”,
such that donation to her/him is collationable?
A: While the surviving spouse is a compulsory heir, she is not included
because in general, donations during the marriage between spouses
are
null and void. Thus, ownership over said properties remains with the
donor.
Important: Moderate donations between spouses, while valid, should
not be collated.
How about donations given to future spouses?
A: They are considered donations to strangers, for at said time, one is
not yet the compulsory heir of the other. Thus, collationable.
The law says “must bring into the mass of the estate”. Does
this
mean that the thing itself which was donated must be
returned
or collated?
A: No, only their value at the time of the donation. The subsequent
increase or deterioration, whether accidental or culpable shall be for
the
benefit or account and risk of the donee.
Two kinds of collation:
1. Collation in value – returning the value representing the property
donated.
2. Collation in kind – returning in kind in case the donation has to be
totally reduced or revoked because it is completely inofficious and
the donee either has no money or does not desire to reimburse in
money.
Two kinds of donations
1. Direct or ordinary donation
2. Indirect donation (i.e. debt which has been remitted, election
expenses, renunciation of inheritance in favor of another
compulsory heir)
Important: Proceeds in a life insurance policy are not collationable
since they are not considered donations for the purpose of collation.
The
same is true with mutual benefits contracts. Any proceeds from a
contract belongs exclusively to the beneficiary.
WHEN COMPULSORY HEIRS WILL NOT COLLATE
Relevant provision
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.
Two instances when donations inter vivos to compulsory heirs
should not be collated (still computed, but not charged to the
legitime):
1. If the donor expressly provides
Purpose: So that preference, not equality is obtained. The donor
does not want the donation charged to the legitime because he
wants to give the donee the property in addition to his legitime.
Important: Preference is allowed unless the legitime of the others
would be impaired.
2. If the donee should repudiate the inheritance (here, the donation
should be charged to the free portion)
Reason: He waives his legitime which is his right as a compulsory
heir. Thus, he ceases to be done. For all legal purposes, he is a
stranger to the inheritance.
Example: D has 3 legitimate children, A, B and C. D donated to A
P600k When D died intestate, the remaining estate was P300k.
(a) If all the children including A will accept, should the donation
to A be reduced?
A: No. The total estate would be P900k and the legitime is
P450k. There being three children, the legitime of each is
P150k. Since the free portion is still P300k, the legitime of B
and C were not impaired. Thus, there is no need for reduction.
(b) If B and C accept, but A repudiates, should the donation to A
be reduced?
A: Yes. Since A repudiates, there will be only two compulsory
heirs. The total estate would still be P900k and the legitime is
P450k, with B and C receiving P225k each. Since the free
portion is only P300k, A’s donation would have to be
necessarily reduced by P150k, since B and C’s legitime are
impaired.
Important: Although the law says “collation shall not take place
if the one should repudiate the inheritance” the donation must still
be computed to find out what the legitime is, and if found
inofficious, it must be reduced.
TESTAMENTARY DISPOSITIONS GENERALLY
WILL NOT BE COLLATED
Relevant provision
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.
The use of the term “collation” is misleading
This is because there is nothing to be brought back to the estate
inasmuch as it has not yet been given away.
Meaning of “not subject to collation”
Means merely that the legacy or devise given should be imputed to the
free portion, and not to the legitime. However, the testator can
provide otherwise.
Example:
Tanya has two legitimate children, Feds and Bads. Tanya made a will,
giving Feds a legacy of P100k. There was no other provision to the
will.
The estate was P1 million. Inasmuch as P100k has been disposed of as
a legacy, how will the remaining P900k be divided?
A: Since the estate is P900k, the legitime is P450k. Feds and Bads thus
receives P225k each. The P100k given as legacy to Feds is not
considered an advance of his legitime, but an advance of the free
portion. It is clear that by giving Feds the legacy, the testator intended
to give him a preference.
Important: Had it been a donation, no preference would have been
intended and the P450 legitime would be divided as follows: Bads –
P225k, and Feds – P125k (in so far as he already received P100k by
way
of donation = P250k). This is so because the law presumes equality to
be the desire of the testator.
General rule and exception
A. Dispositions inter vivos
GR: Equality
XPN: Preference
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B. Dispositions mortis causa (legacies, etc.)
GR: Preference
XPN: Equality
When Article will not apply
In 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, there is no reason to apply Arts. 1061, 1062, and 1063.
Important: If only part of the estate had been given by will, this
would
be different for here, Article 1063 may apply.
COLLATION BY GRANDCHILDREN
Relevant provision child
Article 1064. When grandchildren, who survive with their uncles, himself.
aunts, Exception to the rule
or cousins, inherit from their grandparents in representation of their If they have been given by the parent to the spouses jointly, the child
father or mother, they shall bring to collation all that their parents, if shall be obliged to bring to collation one-half of the thing donated.
alive, would have been obliged to bring, even though such Reason: The half-share given to the child should be considered an
grandchildren advance of his legitime.
have not inherited the property. Important: All donations, whether given to strangers or to
They shall also bring to collation all that they may have received from compulsory
the decedent during his lifetime, unless the testator has provided heirs, should always be reduced if found inofficious. The basic
otherwise, in which case his wishes must be respected, if the legitime restriction
of the co-heirs is not prejudiced. is imposed by the law itself. “No person may give or receive, by way of
Example of first paragraph donation, more than he may give or receive by will.
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During A’s lifetime, A gave B a house, which was later on donated by B EXPENSES FOR SUPPORT
to L, a friend. If B predeceases A, then E will represent B, and together Relevant provision
with C and D, will inherit from A. E, the grandchild, will be obligation to Article 1067. Expenses for support, education, medical attendance,
collate the value of the house, even if E himself has not inherited said even
property. This is because had B been alive, he would have been in extraordinary illness, apprenticeship, ordinary equipment, or
obliged customary gifts are not subject to collation.
to bring to collation the value of said house. Meaning of “not subject to collation”
Additional notes about paragraph 1: Their values are not added to the hereditary estate. They are not
A. Gives an exception to the rule that only donees should collate considered as advances of the inheritance, whether as part of the
B. Applies only when the grandchild inherits by right of legitime or part of the free portion.
representation, not when he inherits in his own right, for here the Reasons of the law
reason of the law would cease 1. These expenses are not considered donations; their cause is not
C. Applies in case of predecease but equally applies for the same generosity, but moral, social and legal obligations.
reason in both incapacity and disinheritance. 2. The almost physical impossibility of computing the value of these
Example of second paragraph things, like the customary gifts.
In the same example, if A had given E a house during A’s lifetime, the Meaning of education
value of said house should also be collated, unless the testator has Means only up to high school. College education is included within the
provided otherwise, provided however, that the legitime of the co-heirs scope of the next article.
are not prejudiced. Support after death
DONATIONS TO GRANDCHILDREN Like allowances during the liquidation of the estate are not embraced
Relevant provision under Art. 1067. Said allowances are advances of the inheritance.
Article 1065. Parents are not obliged to bring to collation in the EXPENSES FOR A CAREER
inheritance of their ascendants any property which may have been Relevant provision
donated by the latter to their children. Article 1068. Expenses incurred by the parents in giving their children
Example: a
D professional, vocational or other career shall not be brought to
AB collation
C unless the parents so provide, or unless they impair the legitime; but
D has two legitimate children, A and B. A has a child C. D donated to C when their collation is required, the sum which the child would have
P100k. D dies intestate leaving an estate of P900k. Divide. spent if he had lived in the house and company of his parents shall be
A: Since D died intestate, the entire P900k is the legitime. Thus, A and deducted therefrom.
B shall receive P450k each. A is not required to collate what his child C Education after high school
had received by way of donation. This article deals with education after high school, and may even
Reason: A should not collate for he himself had not received the include
donation. graduate courses in the Philippines and abroad, but not after the
In the same example, does C have to collate? course
If by collation we mean that the value must be computed to find out if is finished.
the legitime has been impaired or not, the answer is yes. But if we Example: When a father buys a hacienda for his son who has
mean graduated
that it will be computed to C’s legitime, the answer is no, because in with a degree in agriculture. The hacienda is a real donation,
the chargeable
case presented, C is not a compulsory heir of D, and is therefore not to the legitime.
entitled to a legitime for he is excluded by his father A. Expenses considered as advance of the free portion
DONATIONS TO SPOUSE OF CHILD The expenses will not be considered as an advance of the legitime but
Relevant provision as an advance of the free portion.
Article 1066. Neither shall donations to the spouse of the child be XPN: If the parents so provide, said expenses will be considered as an
brought to collation; but if they have been given by the parent to the advance of the legitime.
spouses jointly, the child shall be obliged to bring to collation one-half Important: In no case should the legitime be impaired.
of the thing donated. Expenses at home
Spouse of child is not obliged to collate Expenses which would have been incurred had the child stayed home
The donee is not a compulsory heir of the parents-in-law. Since the with the parents should be deducted.
donations were not given to the child himself, he should not be obliged Reason: His parents would have spent anyway said amount for his
to collate what he did not receive. support. Thus, in one case, it was held that from the expenses
Meaning of “non-collation” incurred
This does not mean that the value should not be computed. It only for a course in surveying, should be deducted the half which anyway
means that although the value of the donation should be computed would have been used to support the student concerned at home.
(since all donations to strangers are also computed or “collated”), its OTHER SUMS WHICH SHOULD BE COLLATED
value should not be considered as an advance of the legitime of the Relevant provision
Article 1069. Any sums paid by a parent in satisfaction of the debts of Only the value should be collated
his children, election expenses, fines, and similar expenses shall be This is the value at the time of the perfection of the donation.
brought to collation. Reason for par. 2
Other sums which should be collated The owner, being the donee, bears the loss. Hence, even if the thing
1. Sums paid by a parent in satisfaction of the debts of his children given has been lost by a fortuitous event, the donee must still collate
2. Election expenses its
3. Fines value.
4. Similar expenses What value controls
Example: To enable his son to win an election, a father spent P100k. The actual value at the time of the donation is a question of fact which
This is collationable and chargeable to the legitime because the must be established by proof. Thus, the value stated in the deed of
expenses are considered donation. donation is not controlling.
Meaning of “debt” Reason: The increased valuation may have been prompted by the
The debt must be valid and enforceable, otherwise the son is not vanity
befitted in any way. of the donor, just as a decreased valuation may have been due to
Question: A has a legitimate son B. To obtain a loan from a bank, B humility, or a desire to pay lower taxes.
had to have A act as his guarantor. When B could not pay, A had to DONATION BY BOTH PARENTS
pay Relevant provision
for him. Is the amount collationable? Article 1072. In the collation of a donation made by both parents,
A: No because the son was not a donee of the father’s generosity but onehalf shall be brought to the inheritance of the father, and the other
a half,
debtor obliged to pay his father. In this case, the father himself bound to that of the mother. That given by one alone shall be brought to
himself to pay because he consented to be a guarantor. collation in his or her inheritance.
Important: However, if the father was not a guarantor and he paid of Example:
his own accord, the sum paid in satisfaction of the debt is clearly A was legally married to B. They had a legitimate child, C. Both
collationable. parents
WEDDING GIFTS agreed to give C a house during their lifetime. Later, A died. When C
Relevant provision participates in the inheritance of A, how much should be collated by
Article 1070. Wedding gifts by parents and ascendants consisting of him?
jewelry, clothing, and outfit, shall not be reduced as inofficious except A: Only half the value of the house.
insofar as they may exceed one-tenth of the sum which is disposable Important: This is different with Article 1066 which refers to
by donations
will. given to spouses.
Wedding gifts contemplated: REDUCTION OF DONEE’S SHARE IN THE ESTATE
1. Jewelry Relevant provision
2. Clothing Article 1073. The donee’s share of the estate shall be reduced by an
3. Outfit amount equal to that already received by him; and his co-heirs shall
Important: It is submitted that by analogy, cash or money or real receive an equivalent, as much as possible, in property of the same
property, may be included within the scope of the Article, for what nature, class and quality.
after Example:
all is the difference? A has 2 children B and C. B had been given a donation of an old car
Rule in case of wedding gifts worth P100k during A’s lifetime. When A died, he left an estate worth
GR: Although wedding gifts are really donations, they are not P900k. Since B is supposed to receive a total of P500k, he will be given
chargeable only P400k as he has already received P100k by way of donation.
to the legitime in view of the sentimental importance of a wedding. C in turn should be given, if possible, a car in the estate worth P100k
XPN: It may be reduced if they exceed one-tenth (1/10) of the free and cash worth P400k. If the car cannot be given, as when the estate
disposal. This is to prevent abuse and extravagance. had only one car, Art. 1074 should be applied.
Example: Important: The law ordains not only equality in value but also in
A had 2 legitimate children, B and C. When the two children married, A kind,
gave P10k pin to B, and a P20k trousseau to C, as wedding gifts. A left nature, class, and quality, if this can be done.
an estate worth P190k. Should the gifts be reduced? ADDITIONAL WAYS OF EQUALIZATION
Estate = P190k Relevant provision
B’s gift = P10k Article 1074. Should the provisions of the preceding article be
C’s gift = P20k impracticable, if the property donated was immovable, the co-heirs
------------------------- shall
Total = P220k be entitled to receive its equivalent in cash or securities, at the rate of
WILLS AND SUCCESSION l Atty. Ferdinand Gujilde l For the quotation; and should there be neither cash nor marketable securities
exclusive use of EH 404 2016-2017 in the estate, so much of the other property as may be necessary shall
13 | U N I V E R S I T Y O F S A N C A R L O S be sold at public auction.
Free portion = P110k If the property donated was movable, the co-heirs shall only have a
A: 1/10 of the free portion is P11k. Thus, B’s gift should not be right
reduced to select an equivalent of other personal property of the inheritance at
because it does not exceed 1/10 of the free portion. However, C’s gift its just price.
should be reduced by P9k since it exceeds 1/10. This P9k should be Rule
chargeable against C’s legitime because the law considers it as an In the process of equalization, more rights are given to the co-heirs
advance thereof. who
COLLATION OF THE VALUE did not receive donations, if the donations were of real property.
Relevant provision Rights if real property
Article 1071. The same things donated are not to be brought to 1. Get property of same kind
collation 2. If none, get cash securities
and partition, but only their value at the time of the donation, even 3. If none, sell property to get cash
though their just value may not then have been assessed. Rights if personal property
Their subsequent increase or deterioration and even their total loss or 1. Get property of same kind
destruction, be it accidental or culpable, shall be for the benefit or 2. If none, get equivalent (in value) personal property (no right to
account and risk of the donee. demand cash or to demand a sale to get cash)
FRUITS AND INTEREST OF COLLATIONABLE PROPERTIES
Relevant provision
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.
Example: D has two legitimate sons A and B. A had formerly been
given
a donation of land as advance of the inheritance. Prior to D’s death,
full
ownership of the land and the fruits belong to A, but from the moment
D dies, all the fruits thereof up to the moment of distribution is made,
belong to the estate. Thus, all will participate in the fruits
Reason for the law
Because it cannot be denied that the land is really part of the
inheritance
(an advance thereof).
Related provision
Article 781, Civil Code. 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.”
Important: The donee is not deprived of the possession of the land.
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14 | U N I V E R S I T Y O F S A N C A R L O S
RULES FOR RETURNING IN KIND
Relevant provision
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; he has, however, the right to
remove them, if he can do so without injuring the estate.
Collation in kind
This Article speaks of collation “in kind”. This is strictly speaking not
collation, but a returning in kind.
This happens when:
1. The donation is totally reduced because it is completely inofficious,
and
2. The donee either has no money or does not desire to reimburse in
money.
Comment of Justice JBL Reyes
The provisions of Art. 1076 could be applied only to the case of a
donation that becomes revoked as inofficious in its totality. It is only
then that the very same thing donated must be returned. But that is
NOT collation.
Article 1076 in its present form should be placed with the other articles
treating of the reduction of donations in the chapter of legitimes.
Important: There are instances when the property itself cannot be
returned, as when it is now in the possession and ownership of a third
person in good faith.
Comment of the Code Commission
Art. 1076 of the new Civil Code makes mention of necessary, useful,
and
voluntary improvements that may have been made on the property
subject to collation, a subject not found in the old Civil Code.
Important: Improvements which do not exist at the time of partition
are not supposed to be reimbursed.
Problem if value of donation increases
Example: Tanya donated to Feds, a parcel of land worth P1M. At the
time of Tanya’s death, he had one legitimate son, one surviving
spouse,
and one acknowledged natural child. At that time too, the land was
already worth P4M. How much value of land, if any, must be returned
to the estate?
A: Because of the presence here of a:
1. Legitimate child (legitime — 1/2)
2. A surviving spouse (legitime — 1/4), and
3. An acknowledged natural child (legitime — 1/4), there is no
more disposable portion, and the donation is totally inofficious.
BUT this should not mean that the entire land must now be returned.
This is because what had been donated was only P1 million. Therefore,
only 1/4 of the present value of the land (1/4 of the land itself) must
be
returned. The remaining 3/4 inures to the benefit of the donee who
had
become its owner since the time
Art. 1076 of the perfection of the donation. Of course, all the fruits of
said 1/4 also belong to the estate, that is, the fruits accruing since the
death of the decedent.
QUESTIONS ARISING FROM COLLATION
Relevant provision
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.
Questions on collation do not interrupt distribution
Provided, adequate security is given. Said questions may be threshed
out during the administration proceedings.
Prescription
Just because more than thirty years have elapsed since the perfection
of the donation, it does not necessarily follow that collation is barred
by
prescription, for prescription on said matter did not run as long as the
donor was still alive.
Only properties received by gratuitous title may be subject of
collation
Properties received by sale are not collationable. Only properties
received by gratuitous title may be collated. Thus, collation may, in
proper cases, be done, whatever be the character or nature of the
donation – simple, remunerative or onerous.
Important: But for remunerative and onerous donations – only
insofar
as they exceed the value of the service or of the charge.
Binding effect of final judgments
Final judgments by the proper court regarding questions on collation
are
binding both on the person who raised the issue, and on the heirs
concerned.
When collation is prematurely raised
Vda. De Rodriquez v. Court of Appeals
When the estate proceedings have not yet reached the stage of
partitioning and then distributing the property, any question of
collation
that is brought up can be regarded as having been prematurely raised.
COMPULSORY HEIRS
Relevant provision
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.
WHO ARE ENTITLED
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Classes of compulsory heirs in equal portions. In fact, it may be given only to one)
1. Primary compulsory heirs 3. Free portion – 1/3
2. Secondary compulsory heirs TN: The strict legitime, thus the mejora or betterment equalled the
Primary compulsory heirs Secondary compulsory heirs “long
Those mentioned in legitime” in the old Civil Code.
Those mentioned in No. 2. Comment of the Code Commission
Nos. 1, 3, 4, and 5
Get their legitime even in the The mejora or betterment whose purpose of equalization was more
presence of the other primary imaginary than real has been eliminated from the new Civil Code.
They inherit only in the HOW MUCH AND TO WHOM
compulsory heirs and even in
absence of No. 1. WILLS AND SUCCESSION l Atty. Ferdinand Gujilde l For the
the presence of the secondary
compulsory heirs. exclusive use of EH 404 2016-2017
Important: The father or the mother of illegitimate children is also a 16 | U N I V E R S I T Y O F S A N C A R L O S
secondary compulsory heir but only as provided for in Article 903. Reason for abolishing the mejora
There is no more distinction between the natural and spurious Art. 889. The legitime of legitimate parents or ascendants consists of
children under the Civil Code. one-half of the hereditary estates of their children and descendants.
Both are simply called illegitimate children having exactly the same The children or descendants may freely dispose of the other half,
rights. Each gets half the share of each legitimate child, and will be subject
taken to the rights of illegitimate children and of the surviving spouse as
from the free portion after the share of the surviving spouse has been hereinafter provided.
satisfied. Art. 890. The legitime reserved for the legitimate parents shall be
Illegitimate children, to be compulsory heirs, must be divided between them equally; if one of the parents should have died,
recognized the whole shall pass to the survivor.
If alleged father signed on the certificates of live birth of the child as If the testator leaves neither father nor mother, but is survived by
its ascendants of equal degree of the paternal and maternal lines, the
father, this is very good evidence of acknowledgment or recognition. legitime shall be divided equally between both lines. If the ascendants
Note that natural children shall be regarded as legitimated in case their should be of different degrees, it shall pertain entirely to the ones
parents will have a subsequent valid marriage. nearest in degree of either line.
Q: If recognized spurious children were born before the Art. 892. If only one legitimate child or descendant of the deceased
effectivity of the new Civil Code, will they be entitled to the survives, the widow or widower shall be entitled to one-fourth of the
legitime? hereditary estate. In case of a legal separation, the surviving spouse
A: Yes, but only if their father died after the effectivity of the New Civil may inherit if it was the deceased who had given cause for the same.
Code on August 30, 1950. 892 – 903
Rule in case of a surviving spouse with respect to his or her RESERVA TRONCAL
parent-in-law Relevant provision
Rosales v. Rosales Art. 891. The ascendant who inherits from his descendant any
A surviving spouse is not an intestate heir or his or her parent-in-law. property
Neither is a widow (surviving spouse) a compulsory heir of her which the latter may have acquired by gratuitous title from another
parentin-law in accordance with the provisions of Art. 887 of the Civil ascendant, or a brother or sister, is obliged to reserve such property as
Code. he may have acquired by operation of law for the benefit of relatives
Here, the surviving spouse is considered a third person as regards the who are within the third degree and who belong to the line from which
estate of the parent-in-law. said property came.
Brothers and sisters LEGACIES AND DEVISES
Brothers and sisters and not compulsory heirs, but there is nothing Relevant provisions
wrong in giving them a share in the inheritance, if the testator so Article 924-959
wants INSTITUTION OF THE SOU
provided that the legitimes of the compulsory heirs are not impaired. DISPOSITION IN FAVOR OF THE DISQUALIFIED
Consequently, they are termed as voluntary heirs or devisees or
legatees
as the case may be.
LEGITIME OF LEGITMATE CHILDREN AND DESCENDANTS
Relevant provision
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.
Example:
Tanya has two children, Bads and Feds. The estate is worth P1M. The
legitime is worth P500k, thus Bads and Feds receives P250k each. The
remaining P500k is the free portion. This free portion is however
subject
to the legitimes of the surviving spouse and the illegitimate children if
they exist.
Important: For convenience, it would be proper to consider that part
of the free portion left after deducting the legitimes of the surviving
spouses and the illegitimate children, if present, as the free disposal,
for
it is really this part that can be given to strangers and other people.
Division of the hereditary estate under the Old Civil Code
The hereditary estate was divided into three:
1. Strict legitime – 1/3 (divided equally among the legitimate children)
2. Mejora – 1/3 (given to the legitimate children but not necessarily