Succession 2nd Exam 2019 TSN

ATTY.
LEILANIE YANGYANG-ESPEJO 1ST EXAM COVERAGE

ATENEO DE DAVAO UNIVERSITY Class Transcription
College of Law III – Manresa 2019
EXAMPLE: There is an original will, and there is a codicil, and

August 23; Part 1 & 2 Lape the provisions of the codicil are completely incompatible with
the provisions of the will.
SUBSECTION 5.
Q: Which would prevail: the Codicil or the Will?
CODICILS AND INCORPORATION BY REFERENCE
➢ A: CODICIL.
Article 825. A codicil is supplement or addition to a will, made
after the execution of a will and annexed to be taken as a part
thereof, by which disposition made in the original will is As long as the will is valid, but it is supplemented by a codicil,
the provisions in the codicil prevails over the provisions of the
explained, added to, or altered. (n)
will because again, the purpose of the codicil is to explain, add
to, or alter.
Definition of a Codicil
A codicil is supplement or addition to a will, x x x When you say alter, it really has a different content than the
original will.
As we have discussed before, in case of NOTARIAL WILLS, you

cannot insert or add. Etymology of Codicil
Latin: “CODEX”, meaning “LITTLE WILL”.
But if you have some revisions, you can:
➢ Do so in a codicil; or However, this is not necessarily true because when you say
➢ Execute a new will. ‘codicil’, it can even have provisions which are LENGTHIER than
the will.
Codicil Dependent on Original Will

x x x made after the execution of a will and annexed to be taken It is just termed as ‘codicil’, ‘little will’, but in reality, it is not a
as a part thereof, x x x little will.
Article 826. In order that a codicil may be effective, it shall be

As a consequence of being made after the execution of a will,
it presupposes that there is an ORIGINAL WILL. executed as in the case of a will. (n)
If you have a codicil, but you do not have an original will, then TWO KINDS OF CODICILS
it is NOT VALID, because its existence depends on the original 1. Notarial Codicils
will. 2. Holographic Codicils
PRINCIPLE: In case of NOTARIAL CODICILS, you have to comply with all the
➢ There has to be an original will for there to be a provisions of law as to the requirements for Notarial Wills, the
codicil. same with HOLOGRAPHIC CODICILS.
Purpose of a Codicil Q: You have a notarial will. Can it be supplemented by a

holographic codicil?
x x x by which disposition made in the original will is explained,
➢ A: YES.
added to, or altered.
2ND EXAM | ALBA – CAGAS – CLAROS – DU – FLORES – LATORZA – LAPE – PALMA GIL – PUERIN – PIODOS – ROSAL – SIOSON 1
ATTY. LEILANIE YANGYANG-ESPEJO 1ST EXAM COVERAGE
As long as each of them is able to comply with all the forms

prescribed by law:
GENERAL RULE:
➢ If it is a NOTARIAL CODICIL, comply with all the
Only those documents which are executed in the form of wills
requisites prescribed by law for notarial wills;
can be admitted to probate.
➢ If it is a HOLOGRAPHIC CODICIL comply with all the
requisites prescribed by law for holographic wills.
So we have:
Q: How about a holographic will? Can it be supplemented by a ➢ WILL; and
notarial codicil? ➢ CODICIL.
➢ A: YES.
EXCEPTION:
When it comes to codicils, even if we say that a codicil cannot Article 827 on Incorporation by Reference.
exist without the original will, and it is annexed to be taken as
a part of that will, on its own, it should follow the forms of a
will. In Article 827, even if we have a separate document which is
not really in the form of a will, but such document can be
probated together with the will. So such document is
On its own, it can stand as a will. A codicil can even revoke a incorporated by reference into the will.
will.
REQUISITES FOR A PROPER INCORPORATION BY REFERENCE:

So even if the original will be Holographic, and then you
execute a Notarial Codicil, it is VALID, as long as on its own,
that codicil has complied with all the formalities prescribed by 1. The document or paper must be in existence at the
law for Notarial Wills. time of the execution of the will.
INCORPORATION BY REFERENCE Why? Because the PURPOSE here is to incorporate by

Article 827. If a will, executed as required by this Code, reference into the will that document. How can you
incorporates into itself by reference any document or paper, incorporate something which does not exist?
such document or paper shall not be considered a part of the
will unless the following requisites are present:
REASON FOR THE RULE OF INCORPORATION BY REFERENCE:
➢ Primarily, for CONVENIENCE – To avoid repetitions.
(1) The document or paper referred to in the will must be in
existence at the time of the execution of the will;
EXAMPLE: The testator had several properties. Sa kadaghan
sa iyang properties, he made an Inventory, and the inventory
(2) The will must clearly describe and identify the same, is now consisting of 1,000 pages. Then, the testator executed
stating among other things the number of pages thereof; a Last Will and Testament.
(3) It must be identified by clear and satisfactory proof as the Q: Would the testator have to copy everything into the will all
document or paper referred to therein; and the properties mentioned in the Inventory?
(4) It must be signed by the testator and the witnesses on ➢ A: NO, he does not have to.
each and every page, except in case of voluminous books
of account or inventories. (n)
The testator can just mention in the will that:
When it comes to Last Wills and Testaments:

“1. On January 1, 2000, I made an Inventory of all my

properties; 4. It must be signed by the testator and the witnesses
on each and every page, except in case of
voluminous books of account or inventories.
2. All those properties mentioned in the Inventory dated
January 1, 2000 are deemed covered by this Will;
GENERAL RULE:
3. Those properties mentioned in pages 1 to 20 are given to x The document must be signed by the testator and the
x x” witnesses on each and every page.
So it is more convenient. He does not have to copy everything EXCEPTION:

in his will.
In case of voluminous books of account or inventories.
That is why if you do not have that Inventory yet, and now you
are making a will, just put everything in the will kay wala pa Q: Are we saying that if the inventory is voluminous, there is no
man kay Inventory. So all you have to do is write in your will all need of signing by the testator and the witnesses?
those properties.
➢ A: NO. The exception here is not the signing, but the
The Inventory itself has to be in existence already at the time signing on each and every page.
of the execution of the will.
A sufficient number of pages must still be signed, but not each
2. The will must clearly describe and identify the same, and every page.
stating, among other things, the number of pages.
PURPOSE:
We are referring here to the WILL, meaning, the Will itself ➢ For IDENTIFICATION – So that this Inventory can be
must clearly identify the document. identified as the very same one referred to in the will.
“1. I hereby incorporate in this Will the Inventory which I made INCORPORATION BY REFERENCE:
in January 1, 2000, consisting of 1,000 pages. The cover of that NOTARIAL vs. HOLOGRAPHIC WILL
Inventory is Fuchsia (Pink nalang).”
Q: What if the will is a Notarial Will? Can you make an
incorporation by reference into that Notarial Will?
In the will, it has to describe the inventory.
➢ A: YES. There is no prohibition.
3. It must be identified by clear and satisfactory proof
as the document or paper referred to therein.
The problem now lies if the will is a Holographic Will, and you
want to incorporate by reference into that Holographic Will a
We are referring here to the DOCUMENT ITSELF. This is usually document (e.g. an Inventory).
done during the Probate of the will. You have to identify that
*this document* is the one mentioned in the will.
Q: Can you incorporate by reference into a Holographic Will an
inventory?
That identification in Number 3 can be made by Extrinsic
Evidence. During the Probate, there may be testimony
Remember, the document to be incorporated in the will
explaining that *this Inventory* is the one mentioned in the
cannot, on its own, stand as a Last Will and Testament because
will.
it has only to be signed on each and every page by the testator
and the witnesses, and there are no other requirements that

would make it as a Last Will and Testament, whether
x x x Any waiver or restriction of this right is void.
Holographic or Notarial.
If you incorporate by reference into a Holographic Will a So even if we enter into a contract na “ihatag nimo ang
document, it has to be: property kay X by will, then you cannot revoke that,” that is
NOT VALID. You can always revoke.
1. Entirely written;
2. Dated; and
3. Signed by the testator. ONE POSSIBLE LIMITATION:
When the testator loses soundness of mind.
It is required because in Holographic Wills, there are no
witnesses, if you can remember. The law does not require
witnesses in Holographic Wills. Even in revocation, you still require testamentary capacity –
soundness of mind.
Q: If it is an Inventory which is typewritten, and then you

incorporate that by reference into a Holographic Will, what is ➢ Revocation requires INTENT TO REVOKE or animus
the effect? revocandi.
➢ A: The will now has something in it which is not in the So how can you have an intent to revoke if you are insane?
handwriting of the testator, which is NOT ALLOWED Even if you cancel a will or burn a will, that act can be
under the rule on Holographic Wills. considered as INVOLUNTARY.
Although, there is NO PROHIBITION if, in addition to the ➢ There is NO VOLUNTARINESS;

signature of the testator in the document, you also made the ➢ There is NO INTELLIGENCE in that act.
witnesses sign as witness lang. Anyway, their signatures will be
treated as a mere surplusage because witnesses are not
Therefore, that is NOT a valid revocation.
required in Holographic Wills.
Definition of Revocation:
SUBSECTION 6.
➢ It is defined as an act of the mind terminating the
REVOCATION OF WILLS AND TESTAMENTARY DISPOSITIONS potential capacity of the will to operate at the death
of the testator manifested by some outward and
visible act or sign symbolic thereof.
Article 828. A will may be revoked by the testator at any time
before his death. Any waiver or restriction of this right is void.
(737a) Potential Capacity of a Will
Even if you made a will, acknowledged before a notary public,
and even already admitted to probate, still it has only a
We already discussed before one of the essential elements and
POTENTIAL CAPACITY TO OPERATE, because without death,
characteristics of a will:
the will cannot be given effect yet. The transfer of the property
➢ ESSENTIALLY REVOCABLE or AMBULATORY mentioned in a will cannot be made effective without death.
A will may be revoked by the testator at any time before his So before death, the will only has a potential capacity to
death. x x x operate. It can be TERMINATED ANYTIME by an act of
REVOCATION.
Of course, how can you revoke your will after your death? So
it has to be any time before the death of the testator. Laws Governing Revocation
Article 829. A revocation done outside the Philippines, by a SUMMARY:

person who does not have his domicile in this country, is valid LAWS ON REVOCATION
when it is done according to the law of the place where the will
was made, or according to the law of the place in which the RESIDENT NON-RESIDENT
testator had his domicile at the time; and if the revocation Law of the Place of Domicile
takes place in this country, when it is in accordance with the
Law of the Place of Law of the Place of
provisions of this Code. (n)
Revocation Execution of the Will
What to remember regarding the laws governing revocation:

MODES OF REVOCATION
1. The citizenship or nationality of the testator has no
relevance insofar as the laws governing revocation Article 830. No will shall be revoked except in the following
are concerned; cases:
2. You only have to consider WHERE THE REVOCATION
WAS MADE – if made in the Philippines or abroad.
(1) By implication of law; or
If the revocation was made in the Philippines: (2) By some will, codicil, or other writing executed as
provided in case of wills; or
Whether the testator is a resident or a non-resident, there is
only ONE LAW that would govern: (3) By burning, tearing, cancelling, or obliterating the will with
➢ PHILIPPINE LAW. the intention of revoking it, by the testator himself, or by
some other person in his presence, and by his express
direction. If burned, torn, cancelled, or obliterated by
If the revocation was made abroad: some other person, without the express direction of the
testator, the will may still be established, and the estate
distributed in accordance therewith, if its contents, and
It would matter if you are: due execution, and the fact of its unauthorized
➢ A resident of the Philippines; or destruction, cancellation, or obliteration are established
according to the Rules of Court. (n)
➢ A non-resident of the Philippines.
But just remember that IN BOTH CASES, if the revocation is THREE MODES OF REVOCATION:
made abroad, you can follow: 1. Revocation by Operation (or Implication) of Law;
➢ The LAW OF THE PLACE OF YOUR DOMICILE. 2. Revocation by Subsequent Document or Instrument
Executed in the form of Wills; and
3. Revocation by Overt Acts.
In addition, if you are a RESIDENT of the Philippines, you can
follow:
1. REVOCATION BY OPERATION OF LAW
➢ The LAW OF THE PLACE OF REVOCATION.
When you say revocation by operation of law, it is the LAW

If you are a NON-RESIDENT, you can follow:
which says that the institution, or the device, or the legacy in
➢ The LAW OF THE PLACE OF EXECUTION [OF THE WILL]. the will is already revoked.
This presumption of law is based on the ACT OF THE TESTATOR,

or in some CIRCUMSTANCE, which is also the CONSEQUENCE
of the act of the testator.
The law says that because the testator did this act, then he ➢ A: When the testator previously sold the land, that
might have wanted to revoke the will. amounted to a REVOCATION. The law says that the
device is revoked.
Q: What if, in reality, the testator really had no intention to

revoke the will, which would prevail: the Intention of the Q: What if the testator was just constrained to sell his property
Testator or the Presumption of the Law? because he was insolvent at that time, and when he won the
lotto, he bought back the property because he really wanted to
give it to the devisee?
➢ A: Presumption of the Law.
Which would prevail: the Intention of the Testator or the

EXAMPLES OF REVOCATION BY OPERATION OF LAW:
Presumption of the Law?
1. Article 957 of the New Civil Code – ALIENATION

AFTER THE DEVICE OR LEGACY WAS MADE ➢ A: Presumption of the Law
No Presumption of Revocation
Article 957. The legacy or devise shall be without effect:
Under Article 957 of NCC
Pero magbuot diay ta kung gusto diay sa testator na ihatag to
xxx
sa devisee?
(2) If the testator by any title or for any cause alienates (e.g.
In this case under Article 957, there will be NO PRESUMPTION
SOLD) the thing bequeathed or any part thereof, it being
OF REVOCATION IF:
understood that in the latter case the legacy or devise shall be
without effect only with respect to the part thus alienated. x x ➢ The sale was made with RIGHT TO REPURCHASE.
x
Article 957. x x x
xxx
(2) x x x If after the alienation the thing should again belong to

SITUATION: The testator in his will said: the testator, even if it be by reason of nullity of the contract,
the legacy or devise shall not thereafter be valid, unless the
reacquisition shall have been effected by virtue of the
“I hereby give my land in Jacinto Street, Davao City, covered by exercise of the right of repurchase;
TCT No. 14344, to X.”
xxx
Two years after the execution of the will. The testator sold [by
Absolute Sale] the said property to B, the buyer. Five years
thereafter, nakadaog ug lotto si testator, he bought back the By reserving the right of repurchase, it shows the intention
property from B. Then later on, he died. that the testator really wanted to give effect to the device.
Upon his death, that very same land which was already The testator, if there as a contrary intention, should make
devised, and was sold and was bought back again, is still in the manifest that intention by some outward act, like in Article
estate of the testator. 957, when you reserve the right of repurchase, the law will not
presume revocation.
Q: Can the devisee claim the land because in the will, it was
originally given to him? In the previous [SITUATION], there was no right of repurchase;
it was an ABSOLUTE SALE. It just so happened that the buyer
also agreed to sell the property back to the testator. But, in of the law within a month, unless the authorities have
reality, if the buyer would refuse, the testator could not already taken action; this prohibition shall not apply to
purchase back the property. cases wherein, according to law, there is no obligation to
make an accusation;
Executing a Codicil
Or kung gusto gyud si testator to give effect to the device, pero (5) Any person convicted of adultery or concubinage with the
Deed of Absolute Sale, and no right of repurchase, the he can spouse of the testator;
execute a CODICIL clarifying that he wants to give effect to the
device given to the devisee. (6) Any person who by fraud, violence, intimidation, or undue
influence should cause the testator to make a will or to
2. Article 63 of the Family Code – IN CASE OF LEGAL change one already made;
SEPARATION
(7) Any person who by the same means prevents another
from making a will, or from revoking one already made, or
Art. 63. The decree of legal separation shall have the following
who supplants, conceals, or alters the latter's will;
effects:
(8) Any person who falsifies or forges a supposed will of the

xxx
decedent.
(4) The offending spouse shall be disqualified from inheriting

from the innocent spouse by intestate succession. Moreover, If the heir commits these acts mentioned in Article 1032, then
provisions in favor of the offending spouse made in the will of by operation of law, the institution in his favor is revoked. A
the innocent spouse shall be revoked by operation of law. compulsory heir also is disqualified by operation of law.
(106a)
Although again, if the testator would really want to give to that
heir, he can CONDONE.
3. Article 1032 of the New Civil Code – COMMISSION OF
ACTS OF UNWORTHINESS
But still, without condonation, it is the Presumption of Law
which governs.
Article 1032. The following are incapable of succeeding by
reason of unworthiness:
4. Article 936 of the New Civil Code – LEGACY OF CREDIT
(1) Parents who have abandoned their children or induced
their daughters to lead a corrupt or immoral life, or Article 936. The legacy referred to in the preceding article shall
attempted against their virtue; lapse if the testator, after having made it, should bring an
action against the debtor for the payment of his debt, even if
such payment should not have been effected at the time of his
(2) Any person who has been convicted of an attempt against
death.
the life of the testator, his or her spouse, descendants, or
ascendants;
The legacy to the debtor of the thing pledged by him is
understood to discharge only the right of pledge.
(3) Any person who has accused the testator of a crime for
which the law prescribes imprisonment for six years or
more, if the accusation has been found groundless; EXAMPLE: A borrowed P1 Million to the testator.
(4) Any heir of full age who, having knowledge of the violent So kanang gi-borrow ni A, insofar as the testator is concerned,
death of the testator, should fail to report it to an officer
that is what we call an ASSET. The testator can give that.
➢ The will is REVOKED.

In his will, the testator said:
The properties shall be distributed by legal succession, in
which case, all of the compulsory heirs will participate in the
“If upon my death, there is still an outstanding collectible from
distribution.
A, I hereby give that collectible to X.”
2. REVOCATION BY SUBSEQUENT DOCUMENT OR

Si X karon, upon the death of the testator, he will have the right
INSTRUMENT
to collect from A. That is a LEGACY OF CREDIT.
Q: What if, two (2) years after he made the will, the testator ➢ Here, we have Will #1, then it is REPLACED by Will #2.
files a case against A for collection, pero wala man gihapon
nagbayad si A, so namatay nalang si testator, naa gihapo’y, Under the law on revocation, it is the WILL BEARING A LATER
say, P800,000.00 na outstanding? DATE which revokes a prior one kay mao man na ang latest
expression of the desires of the testator.
What happens to the legacy of credit in favor of the legatee?
TWO MODES UNDER THIS KIND OF REVOCATION:

➢ A: It is deemed REVOKED.
1. Express Revocation; and

The act of filing the case to collect the debt amounts to a 2. Implied Revocation.
revocation of the legacy of credit.
Express Revocation
5. Article 854 of the New Civil Code – PRETERITION In express revocation, it is easier to determine the revocation
because in the second will, there is a REVOCATORY CLAUSE.
Article 854. The preterition or omission of one, some, or all of
the compulsory heirs in the direct line, whether living at the In the second will, there is a statement which says that:
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. “This will revokes the first will.”
If the omitted compulsory heirs should die before the testator, OR

the institution shall be effectual, without prejudice to the right
of representation.
“This will supersedes all the other wills I made prior to this.”
Definition of Preterition:
➢ In the will, a compulsory heir in the direct line is It is very clear that the second will already revoked the first
OMITTED. will.
What is the effect of preterition? Implied Revocation

➢ Under Article 854, it shall annul the institution of In implied revocation, there is nothing in the second will which
heirs. says that it revokes the first will, but:
➢ THE PROVISIONS OF THE FIRST WILL AND THE
SECOND WILL ARE COMPLETELY INCOMPATIBLE
What happens when the institution of heirs is annulled?
WITH EACH OTHER.
Why do we have this requisite? Diba the second requisite is

The usual example is: that “The subsequent instrument must be valid”?
➢ In the first will, the testator gave all his properties to

A. Then in the second will, he gave all his properties Is there a situation where a valid will cannot be admitted to
to B. probate?
We cannot reconcile these wills because the intention is to give EXAMPLE: The testator made a Notarial Will giving all his
to only one. We cannot divide between A and B because the properties to A. Then, he executed a Holographic Will, this
intention is the whole, not half. time giving all his properties to X.
In case of TOTAL INCOMPATIBILITY, the second will, which is Following the law, the second will has revoked the first will.
the most recent expression of the wishes of the testator, is
deemed to have revoked the first will.
Assuming at the time of the execution of the Holographic Will:
1. The testator had testamentary capacity;
August 23, 2019 P.2 – Lape 2. The will was entirely written, dated, and signed in the
hands of the testator; and
3. There is complete incompatibility between the first
REQUISITES FOR A SECOND WILL TO REVOKE A FIRST WILL: will and the second will x x x
1. There must be TESTAMENTARY CAPACITY at the time x x x the second will, without intention to revoke, was
of revocation or execution of the new will; accidentally burned.
That is why when a person loses soundness of mind, he cannot

NOTE: Under the THIRD MODE – REVOCATION BY OVERT ACTS
revoke his last will.
– if there is burning, for example, there has to be INTENT TO
REVOKE at the same time. Here, there is no intent to revoke.
2. The subsequent instrument must be VALID; Thus, there is no revocation of the second will for all intents
and purposes.
Meaning, it must be executed following the formalities of wills.

If the second document is a Notarial Will, it has to follow all There is no copy left at all of that second will, but one person
the requisites for Notarial Wills. If it is a Holographic Will, then can testify as to the contents of that Holographic Will.
it has to be entirely written, dated, and signed in the hands of
the testator.
Q: Can that will, which was admittedly valid, be admitted to
probate based only on the testimony of a witness?
Without complying with the requisites, the second will cannot
revoke the first will.
➢ A: NO.
3. The second will must have a REVOCATORY CLAUSE

(Express Revocation), or it must be COMPLETELY FAUSTO E. GAN vs. ILDEFONSO YAP
INCOMPATIBLE with the previous one (Implied G.R. No. L-12190, August 30, 1958
Revocation); and
Held: That will cannot be probated because there is no

4. The subsequent will must be ADMITTED TO possibility of confirming the genuineness and due execution of
PROBATE. the will. The court cannot make any comparison between the
will and the other writings made by the testator.
In all these instances, there must be an INTENT TO REVOKE:

In case of holographic wills, there has to be a copy presented, ➢ [Overt Acts] + Intent to Revoke.
even if it is just a photocopy, carbon copy, photostatic copy, or
picture, as long as there is a copy. The will itself is its own and
best safeguard. Intent alone, without an act, would not produce revocation.
Act alone, without intent, would not produce revocation.
Therefore, without a copy, even if we admit that the will is

really executed, it will not be allowed probate. Overt Act Must be a Completed Act
Insofar as the overt act is concerned, it must be a COMPLETED
ACT, meaning, it must have passed the subjective stage of the
Q: So here, who is entitled to the estate of the testator? A or B? act.
➢ A: A (of the first will) is entitled to the estate.

If before the completion of the overt act, there was
VOLUNTARY DESISTANCE, the will is not effectively revoked.
Definitely not B because the will where B was instituted cannot
be admitted to probate.
EXAMPLE: The testator wanted to revoke his will. In his mind,
he wanted to revoke his will by tearing it into 10 pieces.
There was also NO REVOCATION OF THE FIRST WILL because
the fourth requisite – the subsequent will must be admitted to
probate – is not present here. Insofar as that testator is concerned, the completed act is
‘tearing it into 10 pieces’.
Still, the second will did not effectively revoke the first will. So
A is still entitled to receive the properties. After tearing it into two (2), he voluntarily desisted. He
changed his mind; he no longer wants to revoke the will.
3. REVOCATION BY MEANS OF OVERT ACTS

THEORETICALLY:
There was no completed act, because the completed act would
OVERT ACTS MENTIONED: be ‘tearing it into 10 pieces’. But that is only in theory.
1. BURNING – Gisunog. IN REAL LIFE:

If you have a will which was torn into two (2) pieces, can you
2. TEARING – Gigisi. It does not matter kung gi-unsa defend your position by saying, “Your Honor, the testator
nimo pag-gisi: Gi-gunting ba nimo, or kamot lang wanted to revoke it by tearing it into 10 pieces, but he changed
imong gigamit, or gi-shred. his mind and only tore it into two (2) pieces”? How can you
prove that?
3. CANCELLING – Butngan nimo ug line (like this), or i-X

nimo, or butngan nimo ug word na “CANCELLED”. IN THE EXAM:
Ayaw mo pag-answer ug “It is impossible to prove...” kay
nakabutang na gani sa facts. Kung klaro na dira ang facts that
4. OBLITERATING – You blot out. You can use an eraser, “the intention of the testator is to tear it into 10 pieces”, ayaw
or laway. Even if klaro lang gihapon ang pagkasulat, na ninyo lisud-lisura ang nag-exam sa inyuha. You just answer
still, the fact that there was an act of obliteration according to the facts as given in the problem.
would already amount to a revocation.
Concurrence of the Act and the Intention

There Must be Intent to Revoke
Intent alone, without the act, will not produce revocation.
That is one act of unworthiness – if an heir prevents the

EXAMPLE: The testator, with all intent to revoke, wanted to testator from revoking his will:
burn his will placed in an envelope. He threw the envelope in
a burning stove. Immediately, he left.
Article 1032. The following are incapable of succeeding by
reason of unworthiness:
Without knowing, one of his heirs, who knew that he was
instituted in that will, took that will from the stove. When he
xxx
opened the envelope, the will was not burned, only the
envelope.
(7) Any person who by the same means prevents another from
making a will, or from revoking one already made, or who
The testator died, and the will was not presented to probate.
supplants, conceals, or alters the latter's will;
Q: Is that will revoked?

xxx
➢ A: NO.
So even if by overt act, the will was not revoked, by operation

Was there an intention? of law, the will was revoked AS TO THE NEPHEW. He becomes
➢ YES. disqualified to inherit from the testator.
Was there an overt act? Q: What if giligsan ni testator iyang will, or iyang gikumot, or
gikaon, or gi-ilo, with intent to revoke, is there still revocation
➢ When you say ‘revocation by an overt act’, the act
kung dili burning, tearing, cancelling, or obliterating?
itself must be made manifest in the will. How can you
say that he burned the will when no part of the will
was burned? ➢ A: YES.
At least a portion of the will must bear evidence of the overt

ROXAS vs. ROXAS
act – in this case, burning. Even if it is not completely burned,
as long as there was a portion that was burned. 48 O.G. 2177
Even if there was tearing, and mabasa gihapon, still, there was Held: The Supreme Court impliedly allowed CRUMPLING as an
an overt act. overt act.
Even if the will has five (5) copies, and the testator only burned By analogy, an act of DESTRUCTION, coupled with intent to
the original copy, and there is still four (4) copies left intact, revoke, will amount to a revocation of a will by overt act.
the four (4) copies are deemed REVOKED because the act
against the original also affects the entire will.
FRANCISCO GAGO vs. CORNELIO MAMUYAC, et al.
G.R. No. L-26317, January 29, 1927
PRINCIPLE:
➢ The act itself must be made manifest in the will.
Facts: There was a Last Will and Testament presented for
probate. But it was denied probate because it was found out
But as to the nephew himself, THERE IS REVOCATION BY that there was a later will which replaced the original one.
OPERATION OF LAW under Article 1032 on Acts of
Unworthiness.
However, when that later will was presented for probate, it
was alleged that it was also revoked.
Before we admit a photocopy, the Supreme Court said that

What happened here was it was only the COPY of the will we must prove that the original was not revoked.
which was presented for probate, not the original.
Article 831. Subsequent wills which do not revoke the previous

As we said in the case of Rodelas vs. Aranza (G.R. No. L-58509 ones in an express manner, annul only such dispositions in the
December 7, 1982), a photocopy, photostatic copy, or carbon prior wills as are inconsistent with or contrary to those
copy may be presented, but we have to prove that the original contained in the later wills. (n)
cannot be produced not because it was revoked, but because it
was just lost without intent to revoke.
TWO TYPES OF REVOCATION UNDER THIS ARTICLE:
Here, what was presented was a mere carbon copy, and during
the lifetime of the testatrix, the original was in her possession. 1. Total Revocation – if COMPLETELY INCOMPATIBLE; or
Held: The Supreme Court said that insofar as revocation of 2. Partial Revocation – if the inconsistencies are only on
wills is concerned, you have to prove that there was revocation the specific provisions of the will.
so that the will presented for probate will be denied. But it is
very difficult to prove revocation, especially if there is still a
DOCTRINE OF ABSOLUTE REVOCATION
copy, because the evidence of revocation is usually not
preserved, especially if it is by overt act. Article 832. A revocation made in a subsequent will shall take
effect, even if the new will should become inoperative by
reason of the incapacity of the heirs, devisees or legatees
Here, the Supreme Court said that we can make a designated therein, or by their renunciation.
PRESUMPTION that:
EXAMPLE: The testator made a will. He instituted A, B, and C

➢ If the will, during the lifetime of the testator, was in his as his sole heirs to his entire estate. Subsequently, he made a
possession, and it cannot be found after his death; OR second will instituting X, Y, and Z as his sole heirs to his entire
estate.
➢ If it is found after his death, but it is in a state of
destruction (i.e. burning, tearing, cancelling, obliterating), We can now say that the second will is deemed to have
xxx revoked the first will. It is revocation by a subsequent
document or instrument – it is Implied Revocation.
x x x then the will was REVOKED by the testator.
Q: What happens if the heirs instituted in the second will:
We cannot presume that it was burned, torn, cancelled, or – X died ahead of the testator;
obliterated by another person because it was the testator – Y renounced his inheritance; and
himself who had sole and ready access to his will, and it was – Z becomes incapacitated x x x
with him all along.
x x x meaning, all of them cannot receive the inheritance?

So if anything happens to the will, it is presumed that it was
done by the testator.
We call that second will an INEFFECTIVE WILL, in the sense that
the heirs instituted there cannot receive, by reason of either
The proponents of the will should prove that it was not death, incapacity, or repudiation.
revoked, especially if they are in possession of the copy of the
will only.
Q: Now that the second will was rendered ineffective, what Facts: The testator made a Notarial Will (first will). In this will,
happens to the first will? Can A, B, and C now claim the estate he instituted A. Then, he changed his mind, so he made
of the testator? another Notarial Will (second will), this time instituting B.
➢ A: NO. Thinking that the second will is already valid, he burned the
first will with intent to revoke.
Remember the REQUISITES FOR A VALID REVOCATION BY A

SUBSEQUENT DOCUMENT: Upon his death, a petition for the probate of the second will
was filed. But then, the will was denied probate because it
failed to comply with the formalities prescribed by law for
1. Is there testamentary capacity? – YES. Notarial Wills.
2. Is the second will valid? – YES. When we say ‘valid’, it A is now insisting that he should get the estate because the
has complied with all the formalities for notarial or second will, which was intended to revoke the first will, did not
holographic wills. The fact that the heirs instituted effectively produce the revocation in the first place.
predeceased, repudiated, or became incapacitated
would not make the will invalid; it just makes the will
‘ineffective’. Issue: Is the contention of A correct? – YES.
3. Is there incompatibility between the first and the Held: For a second will to revoke the first will, it has to be valid,
second will? – YES. and must be allowed probate, among others.
4. Can the second will be probated? – YES.

However, it was argued that while it is admitted that the
second will did not revoke the first will, the first will was
Even if the second will becomes ineffective, it will still be valid. revoked by an overt act – burning, coupled with intent to
And the revocation made as a consequence of the second will revoke.
STILL STANDS. So there is ABSOLUTE REVOCATION.
Issue: Is the argument correct? – YES.

Article 833. A revocation of a will based on a false cause or an
illegal cause is null and void. (n)
Held: The Supreme Court here applied the DOCTRINE OF
DEPENDENT RELATIVE REVOCATION, which is an application
The basis for the revocation is: of Article 833.
1. A false cause; or
2. An illegal cause. DOCTRINE OF DEPENDENT RELATIVE REVOCATION –
“[W]here the act of destruction is connected with the making
of another will so as fairly to raise the inference that the
It renders the revocation INVALID. It is as if there is NO testator meant the revocation of the old to depend upon the
REVOCATION. efficacy of a new disposition intended to be substituted, the
revocation will be conditional and dependent upon the efficacy
of the new disposition; and if, for any reason, the new will
DOCTRINE OF DEPENDENT RELATIVE REVOCATION
intended to be made as a substitute is inoperative, the
VDA. DE MOLO vs. MOLO revocation fails and the original will remains in full force.”
G.R. No. L-2538, September 21, 1951
So here, there was no revocation even by overt act of the first
will because the burning made by the testator of that first will
was based on his FALSE BELIEF that the second will was already We discussed before that for a document to be considered as
valid. a last will and testament, it must contain a disposition of
property.
And now, it turned out that the second will was not valid. So
the revocation fails, and the original will continues to be in full Q: What if it only contains a recognition of an illegitimate
force and effect. child?
That is the application of the Doctrine of Dependent Relative ➢ A: It is NOT A WILL because recognition does not
Revocation. Dependent lang ang revocation sa old sa validity involve disposition of property. So even if it is not in
of the new will. If the new will is not valid, then the old will the form of a last will and testament, recognition is
continues to be effective. still valid.
Q: When you say ‘revocation based on a false cause’, how do So even if the will is revoked, it is just the testamentary
you know that the revocation was based on a false cause? disposition of property mentioned there that is revoked, but
not the recognition of the illegitimate child.
➢ A: If it is Revocation by an Overt Act, you have to

prove that the revocation was based on a false cause. SUBSECTION 7.
REPUBLICATION AND REVIVAL OF WILLS
➢ But if the revocation is made by a subsequent
document or instrument, and the testator made a
EXAMPLE: The testator, with intent to revoke, tore his will into
second will based on something which he thought to
two (2) pieces. The next day, he changed his mind. Gusto niya
be true at that time, but, in reality, it was not, then
na tagaan gyud ug effect nalang ang last will and testament.
THE FALSE CAUSE MUST BE STATED IN THE SECOND
So nagkuha siya ug scotch tape, iyang gi-tape, and he kept that
WILL. The falsity of the cause must appear in the face
as his Last Will and Testament.
of the will itself.
Q: Would that be valid?

Article 834. The recognition of an illegitimate child does not
lose its legal effect, even though the will wherein it was made
should be revoked. ➢ A: NO.
EXAMPLE: The testator made a Last Will and Testament, then If he really wants to give effect to that Last Will and Testament,
in that will, he recognized an illegitimate child. which he already revoked, taping it together or pasting it WILL
NOT REVIVE the will.
One of the modes for the recognition of a child is if you make

such recognition even in a PRIVATE DOCUMENT but The law prescribes specific modes for REPUBLICATION and
subscribed by the parent concerned. REVIVAL of wills.
Q: What if that same will was revoked? What happens to the In both cases, an old will which is already revoked, or which
recognition made in the will? is not valid, is given effect.
➢ A: IT STILL STANDS because the recognition is not a When we say:

testamentary disposition. It does not have to be
➢ REPUBLICATION – That is an act of the TESTATOR;
probated to be effective.
➢ REVIVAL – That is an act of the LAW.
DEFINITIONS: 1. FOR EXPRESS REPUBLICATION

➢ REPUBLICATION – The re-establishment by the
testator of a previously revoked will, or one invalid for
This will apply only if the old (original) will is VOID AS TO
want of proper execution as to form, or for other
FORM.
reasons, so as to give validity to said will.
NOTE: on the Formalities of Notarial and Holographic Wills –

➢ REVIVAL – The re-establishment to validity by
operation of law of a previously revoked will.
➢ For NOTARIAL WILLS, the formalities prescribed under
Articles 804 to 808;
DISTINCTIONS:
REPUBLICATION REVIVAL
➢ For HOLOGRAPHIC WILLS, the formalities prescribed in
The re-establishment by the The re-establishment to
Articles 810 to 814.
testator of a previously validity by operation of law
revoked will, or one invalid of a previously revoked will
for want of proper EXAMPLE: You made a Notarial Will, and then it is not valid
execution as to form, or for because you only have two witnesses.
other reasons, so as to give
validity to said will
Act of the Testator Act of Law Q: But you really want to have that Last Will and Testament.
How can you give effect to that will?
Refers to: Refers only to a previously
➢ A will which was revoked will.
previously revoked; or ➢ A: You have to REPUBLISH it.
➢ A will which is void as to
form; or
Q: How?
➢ A will which is void
because the testator
had no testamentary ➢ A: You really have to COPY EVERYTHING, but this
capacity at that time. time, comply with all the formalities prescribed by
law.
EXPRESS REPUBLICATION OR
REPUBLICATION BY RE-EXECUTION 2. FOR IMPLIED REPUBLICATION
Article 835. The testator cannot republish, without

reproducing in a subsequent will, the dispositions contained in You do NOT have to copy everything in the old will. Pwede na
a previous one which is void as to its form. (n) you make a CODICIL, and you just mention that:
TWO MODES OF REPUBLISHING A WILL: “1. On January 1, 2000, I made a last will and testament;
1. Express Republication or Republication by Re- 2. But I already revoked said will; or I was still a minor at the
Execution; and time I made the will; or I was insane at the time I made the will;
2. Implied Republication or Republication by Reference. 3. But it is my desire to give effect to the will;
DISTINCTIONS:
4. Therefore, I am hereby declaring that the last will and

testament which I made on January 1, 2000 be considered as 2. Article 836 – In case of a codicil which republishes the
my Last Will and Testament; will.
5. I also declare that all the provisions in that Last Will and
Testament be given effect.”
EXAMPLE:
He did not copy everything in the first will; he just mentioned

it by reference in his new will. 2000 – The testator made a will. In his will, he devised to A
his land in Calinan, Davao City, which had 10 hectares.
So that is Republication by Reference or Implied Republication.

2003 – Nagbaha, naa’y Accretion na nahitabo. So ang 10
hectares, nadungagan ug one (1) hectare.
To which kind of wills would that apply?
2005 – The testator made a Codicil. In his Codicil, he said:

1. Wills which are already revoked; and
“All the provisions of the Last Will and Testament which I made
2. Wills which are void BUT NOT AS TO FORM (e.g. in year 2000 are hereby deemed republished, and shall
minor, insane) continue to be in full force and effect.”
Sa katong [Example] na ang Last Will kay iyang gi-gisi, dili 2009 – He died.
pwede na i-scotch tape. Ang iyang buhaton, iyang i-republish.
He can republish it BY REFERENCE.
Q: How much can the devisee A claim as his device? 10 hectares
or one (1) hectare?
Article 836. The execution of a codicil referring to a previous
will has the effect of republishing the will as modified by the
codicil. (n) ➢ A: 11 HECTARES.
Remember Article 793 on AFTER-ACQUIRED PROPERTIES: What is the effect of the execution of the codicil referring to a
previous will which was republished?
Article 793. Property acquired after the making of a will shall

When the testator made a codicil in year 2005, and he referred
only pass thereby, as if the testator had possessed it at the
to that previous will and, therefore, republished that will, it is
time of making the will, should it expressly appear by the will
as if he made the will in year 2005.
that such was his intention. (n)
And in year 2005, what is the area of the land in Calinan, Davao
GENERAL RULE: The legacy or device includes only that
City? It is already 11 HECTARES.
property which exists at the time of the execution of the will.
So anything added to or incorporated in the property devised
or bequeathed will not be included in the device or legacy. So masulod gihapon siya sa Article 793 because you now look
at the extent of the property as of the time of the execution of
the Codicil in 2005.
EXCEPTIONS:
So this is one exception to Article 793 on AFTER-ACQUIRED

1. Article 793 – Unless the testator expressly so
PROPERTIES.
provides;
September 09; Part 1 Puerin Subject to the right of appeal, the allowance of the will, either
during the lifetime of the testator or after his death, shall be
ARTICLE 837. If after making a will, the testator makes a
conclusive as to its due execution. (n)
second will expressly revoking the first, the revocation of the
second will does not revive the first will, which can be revived So probate of wills. We have already discussed before what do
only by another will or codicil. (739a) we mean by probate. PROBATE is a special proceeding
intended to determine the genuineness and due execution of
the will. Whether it is a holographic will or a notarial will, there
Okay, so here we have a will, the first will. And then the first has to be probate.
will is expressly revoked by a second will (take note: it is
The opening paragraph of Article 838, wit:
EXPRESS). And the second will is itself revoked. It does not tell
us how the second will is revoked. It can be by operation of No will shall pass either real or personal property unless it is
law, overt act or by another document, whatever. As long as proved and allowed in accordance with the Rules of Court.
the second will is itself revoked, what is the effect of this
So meaning, probate is mandatory. It is not like a deed of sale
revocation of the second will? So here, of course the situation
na once the parties execute the deed of sale and the it is
is that there is no third will instituting another set of heirs
already notarized, di ba there is already what we call transfer
because in that case, it is very clear that the third will shall
of ownership to the buyer or “tradition instrumental”. But a
govern. But the second will, for example, is just simply
last will and testament even after the testator has signed the
revoked. Q: Will this give rise to the revival of the first will?
will, the witnesses also have signed the will, the notary public
Answer: The law says NO. The revocation of the second will also has notarized the will, there is no transfer of ownership
does not revive the first will, which can be revived only by yet to the heirs mentioned. Even if the testator has already
another will or a codicil. For example, you made a first will died, dili gihapon siya effective immediately because again
instituting A as heir. And then in the second will, you expressly Article 838 says “there has to be probate”.
revoked the first will because you instituted another set of
We learned before that under Article 777 saying “The rights to
heirs. So there’s express revocation. And then with intent to
the succession are transmitted from the moment of the
revoke, the testator burned the second will. So the effect of
death of the decedent.” How about the decedent left a will,
that is the second will is also revoked. And then, what about
do we say that the rights are not transmitted after his death?
the first will? It remains to be revoked. Why? Because the
Because the will is not yet probated. When is the transfer of
express revocation in the second will takes effect immediately.
ownership for example there is a last will and testament? If
So that is what we call the Principle of Instanter, meaning the
there is a last will and testament still the transfers happen
revocatory clause mentioned in the second will has already the
upon death. However, you cannot yet invoke the last will and
effect of revoking the first will. It takes effect immediately
testament as basis of your rights and obligations before the
because it is not a testamentary dispossession that needs
will is probated. It must be probated. Because for all we know
probate before it can be given effect. So that is the Principle of
it is not the last will and testament of the testator? Maybe he
Instanter. So that is the one mentioned in Article 837.
died intestate and it is a forge will. So, every opportunity must
be given in order to determine the genuineness and due
So, we now go to Probate. execution of a purported last will and testament of the
decedent. Now, if the will is admitted to probate, then he can
SUBSECTION 8. - ALLOWANCE AND DISALLOWANCE OF now use the last will but your rights over the property
WILLS mentioned in the will really start from the moment of death of
the decedent.
In the case of Maninang vs CA.
Art. 838. No will shall pass either real or personal property
unless it is proved and allowed in accordance with the Rules of RAFAEL E. MANINANG and SOLEDAD L. MANINANG
Court.
vs.
The testator himself may, during his lifetime, petition the court
COURT OF APPEALS, HON. RICARDO L. PRONOVE, JR., as
having jurisdiction for the allowance of his will. In such case,
Judge of the Court of First Instance of Rizal and BERNARDO
the pertinent provisions of the Rules of Court for the allowance
S. ASENETA
of wills after the testator's a death shall govern.
G.R. No. L-57848 June 19, 1982
The Supreme Court shall formulate such additional Rules of
Court as may be necessary for the allowance of wills on Digested by: April John D. Latorza
petition of the testator.
FACTS: On MAY 21, 1977, CLEMENCIA ASENETA, single, died. these points remain entirely unaffected, and may be raised
She left a HOLOGRAPHIC WILL, the pertinent portions of which even after the will has been authenticated .
are quoted hereunder: Opposition to the intrinsic validity or legality of the provisions
It is my will that all my real properties located in of the will cannot be entertained in Probate proceeding
Manila, Makati, Quezon City, Albay and Legaspi City and all my because its only purpose is merely to determine if the will has
personal properties shagllbe inherited upon my death by Dra. been executed in accordance with the requirements of the
Soledad L. Maninang with whose family I have lived law.
continuously for around the last 30 years now. Dra. Maninang
and her husband Pamping have been kind to me. ... I have
found peace and happiness with them even during the time RELIANCE OF BERNARDO TO NAGUID CASE WHICH PROVIDES:
when my sisters were still alive and especially now when I am In a proceeding for the probate of a will, the Court's area of
now being troubled by my nephew Bernardo and niece inquiry is limited to an examination of, and resolution on, the
Salvacion. I am not incompetent as Nonoy would like me to extrinsic validity of the will, the due execution thereof, the
appear. I know what is right and wrong. I can decide for myself. testatrix's testamentary capacity and the compliance with the
I do not consider Nonoy as my adopted son. He has made me requisites or solemnities prescribed by law. The intrinsic
do things against my will. validity of the will normally comes only after the court has
PETITIONER SOLEDAD MANINANG filed a Petition for probate declared that the will has been duly authenticated. However,
of the Will of the decedent with the CFI. where practical considerations demand that the intrinsic
validity of the will be passed upon, even before it is probated,
RESPONDENT BERNARDO ASENETA (NONOY), who, as the
the Court should meet that issue.
adopted son, claims to be the sole heir of decedent
CLEMENCIA ASENETA, instituted intestate proceedings with SC cited BALANAY VS. HON. MARTINEZ had a similar thrust:
the CFI. The trial court acted correctly in passing upon the will's
The Testate and Intestate Cases were ordered consolidated intrinsic validity even before its formal validity had been
before Branch XI, presided by respondent JUDGE PRONOVE. established. The probate of a will might become an Idle
ceremony if on its face it appears to be intrinsically void.
RESPONDENT BERNARDO then filed a Motion to Dismiss the Where practical considerations demand that the intrinsic
Testate Case on the ground that the holographic will was null validity of the will be passed upon, even before it is probated,
and void because he, as the only compulsory heir, was
the court should meet the issue.
preterited and, therefore, intestacy should ensue.
NAGUID CASE WAS NOT APPLIED IN THIS CASE DUE TO
CFI: ordered the dismissal of the Testate Case. DIFFERENT SET OF FACTS
ISSUE: WON THE DISMISSAL WAS PROPER THE NUGUID AND THE BALANAY CASES PROVIDE THE
RULING: NO EXCEPTION RATHER THAN THE RULE.
Generally, the probate of a Will is mandatory. The intrinsic validity of the Wills in those cases was passed
upon even before probate because "practical considerations"
No will shall pass either real or personal property unless it is
proved and allowed in accordance with the Rules of Court. so demanded.
The law enjoins the probate of the Will and public policy 1. Moreover, for the parties in the Nuguid case, the
"meat of the controversy" was the intrinsic validity of the Will;
requires it, because unless the Will is probated and notice
thereof given to the whole world, the right of a person to in fact, the parties in that case "shunted aside the question of
dispose of his property by Will may be rendered nugatory. whether or not the Will should be allowed probate."
Not so in the case before us now where the probate of the Will
Normally, the probate of a Will does not look into its intrinsic
is insisted on by petitioners and a resolution on the extrinsic
validity.
validity of the Will demanded.
... The authentication of a will decides no other question than
such as touch upon the capacity of the testator and the 2. Moreover, in the Nuguid case, this Court ruled that
compliance with those requisites or solemnities which the law the Will was intrinsically invalid as it completely preterited the
prescribes for the validity of wills. It does not determine nor parents of the testator.
even by implication prejudge the validity or efficiency (sic) of
the provisions, these may be impugned as being vicious or null,
In the instant case, a crucial issue that calls for resolution is
notwithstanding its authentication. The questions relating to
whether under the terms of the decedent's Will, private
respondent had been preterited or disinherited, and if the probate it, so we are not sure whether or not it is genuine,
latter, whether it was a valid disinheritance. maybe in the end we are really disposing his properties in
accordance with his express wishes because that will might
DISTINCTIONS BETWEEN PRETERITION AND DISINHERITANCE
turn out to be a forgery. In that sense, his right to dispose his
Preterition and disinheritance are two diverse concepts. properties mortis causa is actually rendered nugatory because
1. Preterition "consists in the omission in the testator's we are disposing his properties not in accordance with his
will of the forced heirs or anyone of them, either because they express wishes. That is why we have to probate the last will
are not mentioned therein, or, though mentioned, they are and testament.
neither instituted as heirs nor are expressly disinherited."
We have the case of Heirs of Lasam vs Umengan
Disinheritance, in turn, "is a testamentary disposition LASAM vs UMENGAN
depriving any compulsory heirs of his share in the legitimate
for a cause authorized by law." (G.R. 168156)
2. Disinheritance is always "voluntary", preterition upon By: Daniel Bajao

the other hand, is presumed to be "involuntary". FACTS: There was an unlawful detainer case filed, and
THE EFFECTS OF PRETERITION AND DISINHERITANCE ARE ALSO ejectment case. The lot subject of the unlawful detainer case
TOTALLY DIFFERENT. is situated in Tuguegarao City, Cagayan. It is the eastern half
portion of Lot No. 5427 and Lot No. 990.
1. Pretention under Article 854 of the New Civil Code
shall annul the institution of heir. This annulment is in toto, These lots are registered in the names of the original owners,
unless in the wail there are, in addition, testamentary spouses Pedro Cuntapay and Leona Bunagan. The heirs of the
dispositions in the form of devises or legacies. said spouses conveyed the ownership of Lots Nos. 990 and
5427 in favor of their two children, Irene Cuntapay and Isabel
2. In ineffective disinheritance under Article 918 of the Cuntapay.
same Code, such disinheritance shall also "annul the institution
of heirs", but only "insofar as it may prejudice the person It was agreed that the eastern half portion (subject lot) of Lots
disinherited", which last phrase was omitted in the case of Nos. 990 and 5427 shall belong to the heirs of Isabel Cuntapay.
preterition. Better stated yet, in disinheritance the nullity is On the other hand, the remaining portion thereof (the west
limited to that portion of the estate of which the disinherited portion) shall belong to the heirs of Irene Cuntapay.
heirs have been illegally deprived. Isabel Cuntapay had four children by her first husband,
THE CASE WAS REMANDED Domingo Turingan, namely: Abdon, Sado (deceased), Rufo and
Maria. When Domingo Turingan passed away, Isabel Cuntapay
By virtue of the dismissal of the Testate Case, the remarried Mariano Lasam. She had two other children by him,
determination of that controversial issue has not been namely: Trinidad and Rosendo.
thoroughly considered. The assailed Order of the trial Court
that its conclusion was that respondent Bernardo has been Sometime in January 2001, the heirs of Rosendo Lasam (son of
preterited. HOWEVER, that from the face of the Will, that Isabel Cuntapay by her second husband) filed with the MTCC a
conclusion is not indubitable. complaint for unlawful detainer against Vicenta Umengan,
who was then occupying the subject lot. Vicenta Umengan is
As held in the case of VDA. DE PRECILLA VS. NARCISO the daughter of Abdon Turingan (son of Isabel Cuntapay by her
... it is as important a matter of public interest that a purported first husband).
will is not denied legalization on dubious grounds. Otherwise, Umengan, in her defense, said the she was occupying the
the very institution of testamentary succession will be shaken property not because of tolerance or any contract of lease with
to its foundation. Rosendo Lasam but because her children inherited the
The Supreme Court said that probate is required by public property by intestate succession from the deceased Pedro
policy. Because unless the will is probated and notice thereof Cantupay. However, Lasam presented a copy of a last will and
given to the whole world, the right of a person to dispose of testament allegedly executed by Isabel Cantupay, the wife of
his property by Will may be rendered nugatory. Pedro. So in that will, the land was devised to Rosendo Lasam,
so he said he was entitled to the land. The will was not yet
Why would it rendered nugatory if we do not probate the will?
probated at the time but the RTC ruled in favor of Lasam on
Because we have to make sure that it is really the last will and
the basis of that last will and testament. And the court just
testament of the testator. If we have that document
mentioned that since probate does not prescribe, this ruling is
purporting to be his last will and testament and we don’t
without prejudice to the probate of the will. The reason given
by the RTC is that testacy is favored over intestacy. So we have effect to the express wishes of the testator and because Lasam
a will, in the will, Lasam was instituted or given a property and is instituted in the will, then that will be the expression of the
while the defendant is relying upon legal succession or last wishes of the testator. So we have to give effect to the will.
intestate succession, so we give effect or favor testacy. Is that correct?
MTCC & RTC: rendered judgment in favor of the heirs of Well theoretically it was correct. However, the Supreme Court
Rosendo Lasam and directed the ejectment of respondent said that the problem in this case is the will was not yet
Vicenta Umengan from the lot subject of litigation. probated. So it is basic that an unprobated will cannot be the
foundation of any right or obligation. Even if the property has
CA: reversed and set aside the decision of the RTC and
been given to you in a last will and testament, but that will is
dismissed, for lack of merit, the complaint for unlawful
not yet probated, you cannot invoke that last will and
detainer.
testament. So, it has to be probated. Probate is mandatory.
ISSUE: Was the court correct in relying upon the last will and Although that is without prejudice to the subsequent probate
testament as basis in saying that Lasam had a right over the of the last will and testament.
property?
RULING: NO. The SC said that the RTC committed an error in
relying upon the will because we should note that the will was Let us go to the Nature of Probate Proceeding.
not yet probated, so it is basic that no will shall pass either real Probate Proceeding is a proceeding in rem. When you say
or personal property unless it is proved and allowed in procceding in rem, the decree of the probate court is binding
accordance with the Rules of Court. And an unprobated will against the whole world. Even if you did not receive the notice
cannot be a basis of any right; it cannot be used as a of the proceeding, as long as the minimum requirement hare:
foundation. Until admitted to probate, it has no effect is there is publication of the order of the court setting the case
whatever and no right can be claimed thereunder, the law for hearing, then jurisdiction already attaches to the probate
being quite explicit. The will cannot be given effect yet unless court. You cannot make it as an excuse that you are not bound
it has been probated. because you did not participate unlike a proceeding which is
ARTICLE 838. No will shall pass either real or personal personam. So it is a proceeding in rem. It is binding against the
property unless it is proved and allowed in accordance with whole world. That is in the case of Mercado vs Santos.
the Rules of Court. ATILANO G. MERCADO, Petitioner
Contrary to the ruling of the MTCC and RTC, the purported last v.
will and testament of Isabel Cuntapay could not properly be
ALFONSO SANTOS, Judge of First Instance of Pampanga, and
relied upon to establish petitioners’ right to possess the
IÑIGO S. DAZA, Provincial Fiscal of Pampanga, Respondents.
subject lot because, without having been probated, the said
last will and testament could not be the source of any right. ROSARIO BASA DE LEON, ET AL., intervenors.
The MTCC and RTC, therefore, erroneously ruled that Digested by: April John D. Latorza
petitioners have a better right to possess the subject lot on the FACTS:
basis of the last will and testament of Isabel Cuntapay, which,
to date, has not been probated. Stated in another manner, On May 28, 1931, the PETITIONER MERCADO herein filed in the
Isabel Cuntapay’s last will and testament, which has not been Court of First Instance a petition for the probate of the will of
probated, has no effect whatever and petitioners cannot claim his deceased wife, INES BASA. Without any opposition, and
any right thereunder. upon the testimony of BENIGNO F. GABINO, one of the
attesting witnesses, the probate court, on June 27, 1931,
So this is a case for unlawful detainer filed by Lasam against admitted the will to probate.
Umengan. What was the basis of Lasam in filing the case of
It appears that on October 27, 1932, i. e., sixteen months after
unlawful detainer? Because he was claiming right of
the probate of the will of INES BASA, INTERVENOR ROSARIO
possession based on his being instituted as heir in the last will
BASA DE LEON filed a complaint against the PETITIONER
and testament of the late Isabel Cantupay.
MERCADO, for falsification or forgery of the will probated as
How about Umenga? What was the reason why he possessed above indicated.
the property? Because they were allegedly the legal heirs of
the decedent. In fact, they executed an extrajudicial The case proceeded to trial, and forthwith petitioner moved to
dismiss the case claiming that the will alleged to have been
settlement to partition the property.
forged had already been probated and, further, that the order
Now the RTC ruled in favor of Lasam. According to RTC, testacy probating the will is conclusive as to the authenticity and due
is favored intestacy. So as much as possible we have to give execution thereof.
The motion was overruled. CRIMINAL ACTION AGAINST FORGER OF A DULY PROBATED
ISSUE: WON that the probate of the will of his deceased wife WILL
is a bar to his criminal prosecution for the alleged forgery of Upon the facts stated in the opinion of the court, it was held:
the said will That in view of the provisions of sections 306, 333 and 625 of
the Code of Civil Procedure, criminal action will not lie in this
RULING:
jurisdiction against the forger of a will which had been duly
The criminal action will not lie. The probate of a will by the admitted to probate by a court of competent jurisdiction.
probate court having jurisdiction thereof is considered as
conclusive as to its due execution and validity, and that the will Another principle that you need to remember: ESTOPPEL. The
is genuine and not a forgery. The ruling of the probate court is Principle of Estoppel will not lie in probate proceedings.
binding upon the complainant even if that person was not Perhaps you remember na estoppel is an equitable defense
actually a party to the probate proceeding. Probate even if prescription cannot be used or cannot be invoked but
proceedings are proceedings in rem. Because there is perhaps there is estoppel. In Probate Proceedings, you cannot
publication, there is constructive notice to the whole world be estopped.
and judgment or a decree in a probate proceeding is binding For example:
upon the entire world, even the state.
A, B, C, and D are heirs. The decedent left a will, but the heirs
CITING MANAHAN V. MANAHAN: The decree of probate is decided to disregard the will. They just executed an
conclusive with respect to the due execution thereof and it extrajudicial settlement. Actually, that really happened
cannot be impugned on any of the grounds authorized by law, because when you probate a last will and testament, it is very
except that of fraud, in any separate or independent action or expensive. You have to pay docket fees which is based on the
proceeding. gross value of the estate, then you pay your lawyer’s fees
WILLS; CONCLUSIVENESS OF THE DUE EXECUTION OF A which is usually 10% of the gross value of the estate. So, they
PROBATED WILL. just go away with the probate and enter into an extrajudicial
settlement. Now, by reason of the extrajudicial settlement
Section 625 of the Code of Civil Procedure is explicit as to the they already received properties and then one of the heirs
conclusiveness of the due execution of a probated will. It later on, after receiving the property, he changed his mind
provides: "No will shall pass either the real or personal estate, because he thought na mayo pa iprobate nako ang will kay mas
unless it is proved and allowed in the Court of First Instance, dako ako makuha, lugi ko sa extrajudicial partition. But he
or by appeal to the Supreme Court; and the allowance by the already received benefits. And then he files a petition for
court of a will of real and personal estate shall be conclusive as probate. Is he estopped? Can you invoked estoppel?
to its due execution.
Answer: NO. The principle of estoppel did not lie in probate
The probate of a will by the probate court having jurisdiction proceedings. It is a matter of public policy that the last will and
thereof is considered as conclusive as to its due execution and testament must be probated.
validity, and is also conclusive that the testator was of sound
and disposing mind at the time when he executed the will, and PRESCRIPTION
was not acting under duress, menace, fraud, or undue If you remember in obligations and contracts, we discussed
influence, and that the will is genuine and not a forgery. prescriptions. That the right to institute probate proceedings
THE PROBATE OF A WILL IN THIS JURISDICTION IS A does not prescribed. So walay prescriptive period. You can file
PROCEEDING IN REM it at anytime.
The provision of notice by publication as a prerequisite to the For example:

allowance of a will is constructive notice to the whole world, A filed a petition for probate. Then, the court disallowed the
and when probate is granted, the judgment of the court is will. So gideny ang probate. You did not do anything about the
binding upon everybody, even against the State. denial and then after how many years, he again filed a petition
CONCLUSIVE PRESUMPTION for probate on the premise that the right to institute probate
proceedings does not prescribe. Is that correct?
Conclusive presumptions are inferences which the law makes
so peremptory that it will not allow them to be overturned by Answer: The Supreme Court said NO. Once you institute the
any contrary proof however strong. The will in question having petition for probate and then it is denied, then you now follow
been probated by a competent court, the law will not admit the rules on the reglementary period provided under the Rules
any proof to overthrow the legal presumption that it is genuine of Court. The right to institute probate proceedings does not
and not a forgery. prescribe but once you filed it, then you are now bound by the
provisions under the Rules of Court. You can file only once.
Here, he did not contest nor appeal the disallowance of the Now let us go to Personality.
will. The decision of the disallowance of the will become final PERSONALITY
and executory. So, that became res judicata insofar as that
particular will is concerned. It is essential that, actually not only in probate proceedings but
in all proceedings, a party who files a petition or who
In this case of Dela Rosa vs Archangel intervenes in the proceedings must have personality to
An action for annulment of will, is that allowed? Can you file participate. So, the same thing with probate proceedings. Only
an action for annulment of wills? those who have direct and material interest, those who stands
Answer: NO. you cannot file. If you think that the will is not to be benefited or injured by the avails of the suit can institute
valid, then you file an opposition for the petition for the probate proceedings or can intervene in probate proceedings.
allowance of the will. For example:
In relation to this, I have a case where a father left a last will An adopted child; illustration below:
and testament and then he disinherited his children and his
Testator/ Decedent
wife, and he only instituted his son. Then, the will was very
defective because the grounds for the disallowance
mentioned in the will are not among the grounds provided for A (child)
under the New Civil Code. The will itself is not valid as to form.
There were no paging and lack of statement in attestation
clause as to the signing of the witnesses with the presence of B (adopted child of A)
the testator. And the notary public before the will was A predeceased the Testator. Can this adopted child intervene
acknowledged, there is no notarial commission at the time or participate in a probate proceedings regarding the last will
when he notarized the will. So it was really very defective. and testament of the testator/decedent? NO. Because in the
However, that son did not do anything about the will. He did case of Sayson vs CA, the Supreme Court said that the legal
not institute a petition for the probate of the will. So akong fiction created by law, which is adoption, exists only between
clients, how can we oppose nga wala may petition and we will the adopter and the adopted. So, it does not include the
also not file a petition for the allowance of the will kay dili man relatives of the adopter. Insofar as the estate of the testator is
pud mi gusto iallow siya na will. In th first place, we want to concerned, B is a stranger. He is not an interested party. So
oppose the will. Kaya nga again, wala may petition. So engon
that is one example.
ang son “dawaton na lang ninyo ni. Dapat malipay namo kay
gidisinherit baya mo sa will. Mayo gani kay buotan ko”. So Another example:
what did I do, I deliver the copy of the will to the clerk of court. A is the legitimate child of the testator. B is the illegitimate
Why did I do that? I follow the ruling in the case of Rodriguez child of A.
vs Borja where there are two ways to institute probate
Testator/ Decedent
proceedings.
1. By delivering the copy of the will to the clerk of
court; or A (legitimate child)
2. By petition
So, I deliver the copy of the will. Then, the clerk of court did B (illegitimate child of A)
not do anything. Iyaha ra pud gitagoan ang last will and
testament when under Rule 76, it should have been set for If A predeceased the testator, can B intervenes in the
hearing. So, I went to the clerk of court in the next day and it proceedings for the probate of the last will and testament of
is no enough na imohang tagoan, you should set it for hearing. the testator? NO. Because under Article 992 we have the IRON
Dili pa jud siya motoo, so nagprint ko sa copy sa case ni CURTAIN BAR RULE. An illegitimate child cannot inherit ab
Rodriguez vs Borja. So I wrote a letter and attacjed it. Then, intestate from the legitimate children and relatives of his
engon ang clerk of court na tama diay . so he was convinced father or mother. So cut off siya, B is a stranger insofar as the
and set it for hearing (pero iraffle pa siya before iset for estate of the testator/grandfather is concerned. This is
hearing). He told me na it was the first time dawn a nahitabo premise on the existence of antagonism and resentment
na engon ato because the usual procedure is to file for petition between the legitimate family and the illegitimate family. That
for probate and the to oppose. Kaya lang ang problem the son the legitimate family wills? the presence of the illegitimate
will not file petition for probate. If it happens to you, you can child as nothing but a product of sin. A palpable evidence of a
just deliver a copy of the will to the clerk of court. Although blemish broken in line. And the illegitimate family views the
ang gibayad sa docket fees kay akoang clients. legitimate family of envy because of the status being enjoyed
by the legitimate family. So under Article 992, the law does no of the holographic will. Since the petition for probate was
more than prevent further grounds of resentment. So that is dismissed by the lower court, the contingency did not occur.
why cut-off siya. So, kung mo participate siya sa probate, he or Attorney Leviste is not entitled to his fee.
she is a stranger. Furthermore, Article 1052 presupposes that the obligor is an
BENEDICTO LEVISTE vs. CA, HON. JUDGE LUIS B. REYES, CFI, heir. Rosa del Rosario is not a legal heir of the late Maxima C.
ROSA DEL ROSARIO, RITA BANU, CARMEN DE Reselva. Upon the dismissal of her petition for probate of the
GUZMANMARQUEZ, JESUS R. DE GUZMAN, RAMON R. DE decedent's will, she lost her right to inherit any part of the
GUZMAN, JACINTO R. DE GUZMAN and ANTONIO R. DE latter's estate. There is nothing for the petitioner to accept in
GUZMAN (1989) her name.
Digested by: Angel Petitioner was not a party to the probate proceeding in the
lower court. He had no direct interest in the probate of the will.
FACTS:
His only interest in the estate is an indirect interest as former
Benedicto Leviste, a practicing attorney, entered into a written counsel for a prospective heir.
agreement with Rosa del Rosario to appear as her counsel in a
... the reason for the rule excluding strangers from contesting
petition for probate of the holographic will of the late Maxima
the will, is that the litigants should not be molested by the
C. Reselva. Under the will, a piece of real property, was
intervention in the proceedings of persons with no interest in
bequeathed to Del Rosario. It was agreed that petitioner's
the estate which would entitle them to be heard with relation
contigent fee would be 35% of the property that Rosa may
thereto. (Paras vs. Narciso) We are of the opinion that the
receive upon the probate of the will.
lower court did not err in holding that notice of an attorney's
Leviste received a letter from Ms. Del Rosario, informing him lien did not entitle the attorney-appellant to subrogate himself
that she was terminating his services as her counsel due to in lieu of his client. It only gives him the right to collect a certain
"conflicting interest.". Del Rosario waived her rights to the amount for his services in case his client is awarded a certain
devise in her favor and agreed that the De Guzman brothers sum by the court. (Morente vs. Firmalino)
and sisters who opposed her
As to Mandamus. It does not necessarily follow that every will
petition for probate, shall inherit all the properties left by the that is presented for probate, should be allowed. The law lays
decedent. down procedures which should be observed and requisites
The court disallowed the will. Upon appeal, the private that should be satisfied before a will may be probated. If not
respondents filed a motion to dismiss the appeal on the followed, as in this case, results in the disallowance of the will.
ground that petitioner was not a party in interest. MALOLES vs PHILLIPS
Leviste opposed the motion to dismiss his appeal, claiming that Digested by: James Adrian Cagas
he has a direct and material interest in the decision sought to
Facts:
be reviewed. He also asked that he be substituted as party-
petitioner, in lieu of his former client, Ms. Del Rosario. Arturo de Santos a Filipino and resident of Makati filed a
Petition for probate of his will. He alleged that he has no
The trial judge dismissed the appeal and denied petitioner's
compulsory heirs and that he named in his wll as sole legatee
motion for substitution. Leviste filed in the CA a petition for
and devisee the Arturo de Santos Foundation with an
mandamus. The CA dismissed the petition for being
approximate value of 2M and the copies of his will were in the
insufficient in form and substance as the petitioner did not
custody of his executrix Pacita de los Reyes Philips.
appear to be the proper party to appeal the decision.
Judge Gorospe granted and allowed the will. When
Leviste argues that by virtue of his contract of services with Del
the case was set on hearing there was no written opposition
Rosario, he is a creditor of the latter.
filed. When de los Santos was examined the court declared
ISSUE: WON Leviste has a standing to be a party to the case. him to be of sound and disposing mind. The will was executed
RULING: NO. at his residence and signed in the presence of 3 witnesses Dr.
Valencia, Atty. Berenguer, and atty. Delos Reyes and was
ART. 1052. If the heir repudiates the inheritance to the notarized before Atty Anna Melissa Rosario. Petitioner has no
prejudice of his own creditors, the latter may petition the court compulsory heir and Arturo de los Santos Foundation has been
to authorize them to accept it in the name of the heir. xxx named as a sole legatee and devisee of Dr. de Santos
Article 1052 of the Civil Code does not apply to this case. That properties. Dr. de Sants died on Feb 1996.
legal provision protects the creditor of a repudiating heir. Octavio Filed a motion for intervention that she was the child
Leviste is not a creditor of Rosa del Rosario. The payment of his of alicia de Santos and the sole full blooded nephew of Dr. De
fees is contingent and dependent upon the successful probate
Santos. She Filed for reeconsideration of the decision allowing Most of the cases that reach the courts involve either the
the will. testamentary capacity of the testator or the formalities
adopted in the execution of wills. There are relatively few
(Pacita Philips designated as executor without a bond)
cases concerning the intrinsic validity of testamentary
Orivate respondent filed for letters of testamentary to which dispositions. It is far easier for the courts to determine the
it was granted by Judge Abad Santos. Petitioner sought to mental condition of a testator during his lifetime than after his
intervene in setting aside the aprroval of Philips and that he death. Fraud, intimidation and undue influence are minimized.
came to know the existence of the case by accident. Furthermore, if a will does not comply with the requirements
(Judge Abad Santos appeared firm in his position that " . . . it prescribed by law, the same may be corrected at once. The
would be improper for to hear and resolve the petition probate during the testator's life, therefore, will lessen the
considering that the other branch already commenced the number of contest upon wills. Once a will is probated during
proceeding, he order to return the records of the case to the the lifetime of the testator, the only questions that may remain
other branch in Judge Gorospe’s sala) for the courts to decide after the testator's death will refer to
the intrinsic validity of the testamentary dispositions. It is
However, Judge Santos subsequently granted the Motion for
possible, of course, that even when the testator himself asks
intervention and denied the MR of Private Respo.
for the allowance of the will, he may be acting under duress or
CA decision: reversed the decision of Judge Santos and holds undue influence, but these are rare cases.
that Petitioner has no right or interest to intervene After a will has been probated during the lifetime of the
Issue: Whether the testator is allowed to file a petition for testator, it does not necessarily mean that he cannot alter or
probate of his will during his lifetime. revoke the same before his death. Should he make a new will,
Ruling: Yes it would also be allowable on his petition, and if he should die
before he has had a chance to present such petition, the
Art. 838 of the Civil Code authorizes the filing of a petition for ordinary probate proceeding after the testator's death would
probate of the will filed by the testator himself. It provides: be in order.
Civil Code, Art. 838. No will shall pass either real or personal
property unless it is proved and allowed in accordance with the Thus, after the allowance of the will of Dr. De Santos on
Rules of Court. February 16, 1996, there was nothing else for Branch 61 to do
except to issue a certificate of allowance of the will pursuant
The testator himself may, during his lifetime, petition the court to Rule 73, Ã‚§12 of the Rules of Court. There is, therefore, no
having jurisdiction for the allowance of his will. In such case, basis for the ruling of Judge Abad Santos of Branch 65 of RTC-
the pertinent provisions of the Rules of Court for the allowance Makati that -
of wills after the testator's death shall govern.
Branch 61 of the Regional Trial Court of Makati having begun
The Supreme Court shall formulate such additional Rules of the probate proceedings of the estate of the deceased, it
Court as may be necessary for the allowance of wills on continues and shall continue to exercise said jurisdiction to the
petition of the testator. exclusion of all others. It should be noted that probate
Subject to the right of appeal, the allowance of the will, either proceedings do not cease upon the allowance or disallowance
during the lifetime of the testator or after his death, shall be of a will but continues up to such time that the entire estate of
conclusive as to its due execution. the testator had been partitioned and distributed.
Rule 76, Ã‚§1 likewise provides: The fact that the will was allowed during the lifetime of the
testator meant merely that the partition and distribution of
Sec. 1 Who may petition for the allowance of will. - Any
the estate was to be suspended until the latter's death. In
executor, devisee, or legatee named in a will, or any other
other words, the petitioner, instead of filing a new petition for
person interested in the estate, may, at any time after the
the issuance of letters testamentary, should have simply filed
death of the testator, petition the court having jurisdiction to
a manifestation for the same purpose in the probate court.
have the will allowed, whether the same be in his possession
or not, or is lost or destroyed. As to Petitioner’s Interest:
The testator himself may, during his lifetime, petition in the The private respondent herein is not an heir or legatee under
court for the allowance of his will. the will of the decedent Arturo de Santos. Neither is he a
compulsory heir of the latter. As the only and nearest collateral
The rationale for allowing the probate of wills during the
relative of the decedent, he can inherit from the latter only in
lifetime of testator has been explained by the Code
case of intestacy. Since the decedent has left a will which has
Commission thus:
already been probated and disposes of all his properties the
private respondent can inherit only if the said will is annulled.
His interest in the decedent's estate is, therefore, not direct or (5) Other illegitimate children referred to in Article 287 of the
immediate. Civil Code.18 [Civil Code, Art. 887.]
His claim to being a creditor of the estate is a belated one, Petitioner, as nephew of the testator, is not a compulsory
having been raised for the first time only in his reply to the heir who may have been preterited in the testator's will.
opposition to his motion to intervene, and, as far as the Nor does he have any right to intervene in the settlement
records show, not supported by evidence. proceedings based on his allegation that he is a creditor of
[T]he opposition must come from one with a direct interest in the deceased. Since the testator instituted or named an
the estate or the will, and the private respondent has none. executor in his will, it is incumbent upon the Court to respect
Moreover, the ground cited in the private respondent's the desires of the testator.
opposition, that the petitioner has deliberately misdeclared
Ma’am Yangyang:
the truth worth and value of the estate, is not relevant to the
question of her competency to act as executor. Section 2, Rule A nephew in testamentary succession. He is a stranger
76 of the Rules of Court requires only an allegation of the although he stands to inherit if intestacy but that is a
probable value and character of the property of the estate. The contingent interest. What matters now is we have a probate
true value can be determined later on in the course of the proceeding and he (nephew) is not a compulsory heir. So,
settlement of the estate. insofar as that is concerned, he (nephew) is a stranger.
Opposition to issuance of letters testamentary. Simultaneous BUTIONG vs. SURIGAO CONSOLIDATED MINING
petition for administration. - Any person interested in a will
July 31,1968
may state in writing the grounds why letters testamentary
should not issue to the persons named therein as executors, or FACTS: Here, Christian Harris was the testator. He left a last
any of them, and the court, after hearing upon notice, shall will and testament and in his will, he gave all his properties
pass upon the sufficiency of such grounds. A petition may, at consisting of shares of stock and interest in the Mindanao
the same time, be filed for letters of administration with the Mother Lode Mining Company Inc. and Surigao Consolidated
will annexed. Mining Co., Inc. to his adopted son, Pedro Butiong. Christian
Harris later died and Butiong filed a petition for the probate of
Under this provision, it has been held that an "interested
the last will and testament of Christian Harris. In that
person" is one who would be benefited by the estate, such as
proceeding, Surigao Mining opposed the probate on the
an heir, or one who has a claim against the estate, such as a
ground of forgery.
creditor, and whose interest is material and direct, not merely
incidental or contingent. Even if petitioner is the nearest next ISSUE: Can the Surigao Mining oppose the probate? Does it
of kin of Dr. De Santos, he cannot be considered an "heir" of have personality to intervene in the proceeding?
the testator. It is a fundamental rule of testamentary
succession that one who has no compulsory or forced heirs RULING: The SC said NO. The Company had no personality to
may dispose of his entire estate by will. Thus, Art. 842 of the intervene because it was not instituted as an heir. Surigao
Civil Code provides: Mining does not claim to have such interest in the succession
One who has no compulsory heirs may dispose by will of all his to Christian Harris. It was not an heir, legatee, devisee, or a
estate or any part of it in favor of any person having capacity creditor. So no interest at all. The fact that the shares of stocks
were in the Company is irrelevant. Because we know in
to succeed.
Corporation Law that the shareholders or stockholders are
One who has compulsory heirs may dispose of his estate different from the Corporation. Unless again, Surigao Mining
provided he does not contravene the provisions of this Code could prove that it was instituted as an heir, legatee, devisee
with regard to the legitimate of said heirs. or a creditor, it could not participate as an intervenor or an
Compulsory heirs are limited to the testator's - oppositor in the probate proceeding.
(1) Legitimate children and descendants, with respect to their Ma’am Yangyang:
legitimate parents and ascendants; If you are a stockholder for example in a corporation. So here
(2) In default of the foregoing, legitimate parents and Surigao Consolidated Mining Company Inc., can that
ascendants, with respect to their legitimate children and corporation participate in a probate proceedings regarding the
descendants; last will and testament of one of its stockholders? Kay part sa
mga properties left by the testator would be the shares of
(3) The widow or widower;
stocks in the corporation. So the corporation can be
(4) Acknowledged natural children, and natural children by considered as an interested person? Can it oppose the
legal fiction; probate? The Supreme Court said here NO. The corporation
has no interest in the property. So we have to apply the basic conflict among the heirs. Kay of course kung buhi pa ka unya
principle in Corporation Law that the stockholder is different nay heir mooppose, moengon siya na buang ang testator, the
from the corporation even if you have shares of stocks with the testator did not execute the last will and testament with a
corporation, but that is your own property. The coporation is sound of mind. Kung ikaw si testator, idisinherit nlng niya kay I
separate and distinct from the stockholders. The corporation can change this will man bisan maprobate. So, wala kayo
is not an heir of the decedent (stockholder) unless it s also a nagacontest under anti-mortem probate. Ang problem lang
creditor. But in this case, the corporation is not a creditor of based on my experience, if that is your problem that the
the decedent stockholder. testator died and the heirs quarrel among themselves, it can
We discussed also in Article 811 di ba “Probate of Holographic be better if you probate your will at the time you (testator) is
Wills. So, the probate of the holographic wills is a matter of still alive, but ang ila usual na concern is “dili nlng siguro atty
oi, gitagaan nag ani nako sila ug property, mogasto pa jud ko
substantive law because it is provided for under Article 811 of
the New Civil Code. Just remember what are the distinctions para sa probate. Mahal baya ng probate. So bahala nlng na sila
between probate of holographic wills and probate of notarial basta ako akoa ng giarrange kung kinsa ang makadawat.
Bahala na sila ug wala nako”. But again usually pag patay na si
wills.
testator diha pa jud mogawas ang conflict. Naay uban pagbuhi
In probate of holographic wills, who are the witnesses? If a will pa si testator mura ug angel, but-an kayo unya inig kamatay ni
is uncontested, one witness who can explicitly declare that the testator diha na mogawas ang sungay. That is usually happens.
will and the signature are those of the testator. Whereas, in Ang pinkaworst na conflict kay kana jud related to family kay
notarial wills, if the will is not contested, one of the subscribing halos magpatayan nana sila just because of property. Bisan naa
witnesses. There is no need for that witness to explicitly ka last will and testament dili na guarantee na ang heirs dili
declare (Maravilla case). There is no need for that witness to mag-away.
explicitly declares that the will and the signature are in the
handwriting of the testator. That is not required in notarial will. We will now go to Probate.
He only has to testify that during the signing of the will, he Post-mortem Probate mao ni siya usually ang ginainvoke.
(testator) was in the presence of the testator and each and
What are the stages in a Post-mortem Probate or Probate?
everyone of the witnesses. Now, if the probate of the
holographic will is contested, the law requires that at least 1. We have the PROBATE PROPER; and
three of those witnesses having the requisite qualifications 2. We have the DISTRIBUTION PHASE.
must testify. In case of notarial wills, if the will is contested all PROBATE PROPER
subscribing witnesses and the notary public must testify. What
So, Probate Proper, that is the phase when the probate court
if the will is totally lost? There is no copy at all. If it is a
holographic will, it cannot be probated because in the case of only determines the intrinsic validity of the will.
Gan vs Yap, the will itself is in its own is the best safeguard. It When the court is satisfied that the will is intrinsically valid,
is needed so that the court can make comparisons in the then the next stage is the Distribution Proceeding.
writings in the will and those writings made during the lifetime. DISTRIBUTION PROCEEDING
Without that will, a copy, even a photocopy, you cannot
probate the holographic will. But in case of notarial will, it can So here, the properties of the decedent will be distributed in
still be probated for as long as the contents of the will can be accordance with the last will and testament which is already
proved by recitals of the witnesses. So that would be the main probated.
distinctions. The usual question here is: what matters can the probate
There is also what we called Anti-mortem Probate and Post- court take cognizance during the probate proper?
mortem Probate. Answer: As I said matters pertaining to the EXTRINSIC
Two kinds of probate proceedings: VALIDITY OF THE WILL.
1. Ante-mortem probate – one which is filed by the testator What are these matters specifically?
himself during his lifetime or it happens during the lifetime of 1. Whether the instrument offered for probate is the last will
the testator. and testament of the testator
2. Post-mortem probate – the usual, it is filed after the death We have a here a last will and testament; is this really the one
of the testator or it is one which is file after the death of the executed by the testator. That is a question of identity. Was
testator. So, it is already filed by the heirs. that the last will and testament the testator made? Is it not
Usually in practice, mas daghan ang post-mortem probate forge? Was not revoke already?
kaysa anti-mortem probate. Although there are people who
would like to probate their will during their lifetime to avoid
2. Whether the will was executed according to the formalities there, the probate court determines that he has no standing
prescribed by law because he was not really the child of the testator. Although
A question of due execution; whether the formalities his father was Vinancio Rivera pero it was different Vinancio
prescribed by law had been complied with. In this particular Rivera, not the testator. In that case, the probate court said
that because he has no personality to oppose, then the
issue, you have to examine the will. If it is a notarial will, it is
probate court will not consider the will as contested. And we
done with the formalities prescribed by Articles 804-808? If it
is a holographic will, does it comply with Articles 804, 810-814? do not apply the rule that the three witnesses must be
Those are the questions that the probate court has to answer. presented. Again, because that will only be required if the will
is contested. Again, a person who is not an heir, who is not a
3. Whether the testator had testamentary capacity at the creditor, who has no personality in an action but only a
time of the execution of the will. stranger, in legal contemplation, cannot be an oppositor. So,
It is a question on testamentary capacity. So here, the probate there was no contest in the will.
court will have to determine if the testator was at least 18 OWNERSHIP OF PROPERTY
years old at the time he made the will and that he had a sound
There are several cases. Again, general rule, when you say
mind.
ownership of property, the probate court has no jurisdiction
What are the consequences if we say that during probate to resolve questions on ownership.
proper, the probate court only has to determine the extrinsic
validity of the will? Meaning during probate proper it would For example: Pagprobate, the petition will have to identify
be inappropriate for you to raise questions pertaining to the what are the properties of the estate. For example, some
Intrinsic Validity of the will. For example you are an oppositor, properties there are alleged not own by the testator but by a
you file an opposition to the last will and testament, but your third person. Can the probate court resolve that issue? If I am
opposition is: there is an impairment of the legitimes. That the alleged owner of the property, so I am questioning the
inclusion of the property, for example the probate court said,
person instituted in the last will and testament is not really the
the include property in the estate will be included in the
child of the testator or there was preterition. That property
dispose of by the testator in his will is not really his property- inventory, meaning ba I (third person) has no recourse na
these matters pertain to the intrinsic validity of the will. These because I am bound by the determination of the probate
matters will not be entertained by the probate court during court? Again, the probate court has no jurisdiction to resolve
probate proper. Out of tune ka if that will be the basis of your conflicting claims of ownership except when the issue is for
the determination whether this property shall be included in
opposition. The proper grounds should be: forgery or the
the inventory or excluded from the inventory. Mao lang na
testator is not of sound mind, or the will is not in the form
prescribed by law. siya ang puwede iresolve ni probate court. What if the probate
court will say that the property will be included in the
What if naa diay question regarding ownership or qualification inventory and I (third person) am insisting na “No, the testator
of the heir? Those matters are properly threshed out during already sold the property to me during his lifetime”; that
the Distribution Stage. Because in the first place, if the will is determination by the probate court is merely provisional. So,
not extrinsically valid, it will be disallowed. There is no use for it will not stop the party claiming the ownership over the
you to question those matters pertaining to the intrinsic subject property from filing a separate action in the regular
validity. Kay giinstitute lagi siya sa will, engon ka disqualified courts intended precisely to question the ownership. So, it will
siya, but the will itself is not valid, so, that institution cannot not constitute res judicata. Again, because that is not within
be given effect. Premature ang imo opposition kung ang the jurisdiction of the probate court. Kato lang inclusion or
reason sa imo opposition kay matters pertaining to the exclusion from the inventory of the properties in the estate of
intrinsic validity of the will. Dapat extrinsic lang. That is the the testator.
general rule. When you say that is the general rule, there is
EXCEPTION. There are actually cases when even it is in a In this case of CAMAYA vs. PATULANDONG.
probate proper, the probate court already pass upon CAMAYA vs PATULANDONG
questions pertaining to the intrinsic validity of the will.
(G.R. 144915)
For example FILIATION. Do you still remember Rivera vs IAC
By: Daniel Bajao
case, there was a holographic will presented for probate and
then one Jose Rivera filed an opposition on the ground that he
was the illegitimate child of the testator Vinencio Rivera. And FACTS: On November 17, 1972, Rufina Reyes (testatrix)
the of course, the probate court had to pass upon the issue of executed a Notarized Will wherein she devised, among others,
filiation because it was raised. That would determine whether Lot No. 288-A to her grandson Anselmo Mangulabnan. The
or not he would participate in the probate proceedings. So pertinent portion of her will reads:
IKALIMA. - Aking inihahayag at ginagawa na tagapagmana, sa equally claimed to belong to outside parties. All that said court
aking kusang loob, ang pinalaki kong APO na si ANSELMO P. could do as regards such properties is to determine whether
MANGULABNAN, may sapat na gulang, kasal kay Flora they should or should not be included in the inventory. Though
Umagap, at naninirahan sa San Lorenzo, Gapan, Nueva Ecija, the judgment in the partition case had become final and
at anak ng aking anak na si SIMPLICIA, at sa aking APO na si executory as it was not appealed, it specifically provided in its
ANSELMO ay aking ipinagkakaloob at ipinamamana, sa aking dispositive portion that the decision was without prejudice to
pagkamatay, ang mga sumusunod kong pagaari: the probate of the codicil. The rights of the prevailing parties
(1) Lot 288-A Sta. Cruz in said case were subject to the outcome of the probate of the
codicil.
(2) Lot 3348-A Poblacion
Ma’am Yangyang:
(3) Lot 3349-B Poblacion
So there was a question of conflicting claims of ownership. In
During her lifetime, the testatrix herself filed a petition for the this particular case, the probate court actually declares the
probate of her will before the then Court of First Instance of deed of sale as null and void and ordered the cancellation of
Nueva Ecija. The CFI admitted the will to probate. titles which were registered pursuant to the deed of sale. Ang
On June 27, 1973, the testatrix executed a CODICIL modifying question: can the probate court do that? Can the probate court
above-quoted paragraph five of her will in this wise: declare the annulment or nullity of the Deed of Sale? Can it
cancel titles? NO. Again, because the probate court has no
UNA. - Ang Lote No. 288-A na nakalagay sa barrio ng Sta. Cruz,
jurisdiction to determine conflicting claims of ownership. Also,
Gapan, Nueva Ecija, magsukat 36,384 metro cuadrados, at
the Supreme Court here cited the rule in the Land Registration-
nagtataglay ng TCT No. NT-47089, na aking ipinamana sa aking
Property Registration Decree, Section 48 stating that “ A
apong si ANSELMO P. MANGULABNAN, sangayon sa Pangkat
certificate of title shall not subject to collateral attack. It
IKA-LIMA, pp. 5-6, ng aking HULING HABILIN, ay ipinasiya kong
cannot be altered, modified, or cancelled except in a direct
ipagkaloob at ipamana sa aking mga anak na sina BERNARDO,
proceeding in accordance with law”. So, you cannot
SIMPLICIA, GUILLERMA at JUAN nagaapellidong
collaterally attack the Certificate of Title in a probate
PATULANDONG, at sa aking apong si ANSELMO P.
proceeding. It has to be a direct action filed for the cancellation
MANGULABNAN, sa magkakaparehong bahagi na tig-ikalimang
of the title. So the Supreme Court said “it is well-settled rule
bahagi bawat isa sa kanila.
that the probate court or one in-charge for the proceeding,
IKALAWA. - Na maliban sa pagbabagong ito, ang lahat ng mga whether testate or intestate, cannot adjudicate or determine
tadhana ng aking HULING HABILIN ay aking pinagtitibay na title to properties claimed to be part of the estate and which
muli. are equally claimed to belong to outside parties. All the said
On May 14, 1988, the testatrix died. Anselmo sought the court could do as regards said properties is to determine
delivery to him of the title to Lot 288-A. Executor Bernardo whether to determine it should or should not be in the
Patulandong refused to heed the request in view of the codicil inventory. If there is no dispute, then well and good. If there
which modified the testator’s will. Anselmo thus filed an is, then the parties, the administrator, and the opposing
"Action for Partition" against Patulandong with the RTC. parties have to resort to an ordinary action for the final
determination of the conflicting claims of title because the
It was granted, subject to the result of the probate of the probate court cannot do so”. So, that is regarding ownership.
codicil. Anselmo then sold the land to the Camayas. The
probate court then issued an order wherein the title issued to
the Camayas were declared void and it voided the sale as well. September 09; Part 2 Rosal
The Camayas contended that the probate court has no power
to declare null and void the sale and their title.
ISSUE: WON the probate court was correct in declaring the CHING v RODRIGUEZ
sale and the titles to the land null and void? FACTS: The complaint was captioned as For Disinheritance
RULING: NO, the probate court does not have the power to and Declaration of Nullity of Documents.
annul the title to lands subject of a testate proceeding pending It was alleged that Ramon misrepresented himself as heir of
before it. The probate court exceeded its jurisdiction when it Antonio because his birth certificate was simulated. The
further declared the deed of sale and the titles of the Camayas Disinheritance of Ramon was sought here because
null and void, it having had the effect of depriving them according to the complainants, he was the main and lone
possession and ownership of the property. suspect in the murder of the decedent, Antonio.
A probate court cannot adjudicate or determine title to There was a question as to the jurisdiction of the Court.
properties claimed to be a part of the estate and which are
According to the defendant, the case should have been filed 2. The question is one of collation or advancement
before the probate court because a question pertaining to 3. The parties consent to the assumption of jurisdiction
the disinheritance of an heir is a special proceeding. The by the probate court and the rights of third parties are
regular court, therefore, has no jurisdiction to determine not impaired.
that issue.
The issue arose because of the prayer for the disinheritance
of Ramon. Collation or Advancement
ISSUE: Will that prayer for the disinheritance make this case If for example during his lifetime, the testator made donations,
a special proceeding? Was the case properly filed before the these donations shall be brought back to the estate. If the
regular court? YES. question is whether these donations shall be brought back to
the estate, that is properly within the jurisdiction of the
RULING: If scrutinized, the complaint was only for the probate court.
Declaration of Nullity of Documents and Reconveyance of
Property.
With respect to the prayer of disinheritance, the SC ruled Those three are the possible situations where the
that: determination made by the probate court on question of
ownership is not merely provisional.
It is basic that disinheritance can only be effected in a will.
In this particular case there was no mention of any will at Determination of Decedent’s Estate
all. It cannot be a special proceeding. The court cannot take If a person dies and during his lifetime he was married, there
cognizance of that prayer because there was no last will and is a property regime with the surviving spouse. Upon the death
testament left. of the person, how do we determine his estate?
It was erroneous to ask for the disinheritance of Ramon
because the only person who can disinherit an heir would
• Liquidate the conjugal partnership of gains or
be the testator. However, he can perhaps be declared
disqualified to inherit if there is a ground for absolute community of properties
disqualification, but not for disinheritance. It will be divided into two. Half will be the share of the surviving
spouse, not as inheritance, but share in the conjugal
It does not pertain to the nature of a special proceeding and
does not call for the probate court's exercise of its limited partnership of gains or absolute community of properties. The
other half will go to the testator or the decedent plus those
jurisdiction.
properties owned by him separately. That will be his estate.
The case was properly filed before the regular court.
From that estate, the surviving spouse still has a share as an
heir, along with the children and the other surviving heirs.
GR: The probate court can determine only questions If the question is whether or not these properties are the
pertaining to the extrinsic validity of wills. separate property of the decedent or part of the conjugal
1. Question of Identity partnership of gains, who has jurisdiction to determine that
issue?
2. Question of Due Execution
Should it be threshed out in a separate proceeding or is it
3. Question of Testamentary Capacity within the jurisdiction of the probate court? PROBATE COURT.
In special proceedings, if for example the spouse dies, the
XPN: conjugal partnership of gains or the absolute community of
properties shall be liquidated and distributed in the same
(ARANAS v MERCADO)
proceeding as the settlement of estate of the decedent,
whether intestate or testate. It cannot be a separate
Even if the probate court determines that certain properties proceeding.
should be included in the inventory, the determination is ROMERO v CA
provisional.
In this case, the matter in controversy is the question of
However, it becomes binding when: ownership of certain properties involved. Whether they
1. The interested parties are all heirs of the decedent. belong to the conjugal partnership or to the husband
There's no third party involved. exclusively.
This is a matter properly withinthe jurisdiction of the RULING: It was proper.

probate court which necessarily has to liquidate the
It is very evident from the will that there was preterition. An
conjugal partnership in order to determine the estate of the illegitimate child was omitted in the will. The petitioners
decedent which is to be distributed among his heirs who are
failed to present evidence that there was a donation.
all parties to the proceedings.
Relevance if there was a donation
If there was a donation made to that omitted heir, there will
Preterition in the Will be no preterition. The institution of heirs will not be
MORALES v OLONDRIZ annulled. There will only be completion of the legitime of
that omitted heir. The donation made to the omitted heir is
FACTS: The testator left a last will and testament, but in that
actually an advance to his legitime.
will, an illegitimate child, Francisco, was not included. The
opposition was that there was preterition in the will.
Under Art. 854, there is preterition when a compulsory heir The general rule is that, in probate proceedings, the scope
from the direct line is omitted from the will. of the court's inquiry is limited to questions on the extrinsic
validity of the will. The probate court will only determine
In preterition, the omitted compulsory heir is not given
the will's formal validity and due execution.
anything in the will or he did not receive a donation at all
during the lifetime of the decedent. There's nothing left However, this rule is not inflexible and absolute. It is not
which can be given to him by way of intestacy. beyond the probate's court jurisdiction to pass upon the
intrinsic validity of the will when so warranted by
In preterition, the last will disposed of all the properties of
exceptional circumstances. When practical considerations
the testator and the compulsory heir in the direct line is not
demand that the intrinsic validity of the will be passed upon
mentioned.
even before it is probated, the court should address the
Effect when there is preterition issue.
The institution of the heirs in the will shall be annulled. The Applying that to this case, the effect of preterition is it will
estate will be distributed by intestacy or legal succession annul the institution of heirs unless there are legacies or
unless there are legatees or devisees mentioned in the will. devises which are not inofficious.
They will be given their legacies and devises. But if there's
There are no legacies and devises in the will, therefore, it's
none, there will be total annulment of institution.
a total annulment of the institution of heirs. The will shall
be totally abrogated.
It was raised that the will is not valid because there is
preterition.
When there is preterition, even if the will is extrinsically valid,
Proponents’ contention: That is not a proper ground for it cannot be given effect because by the presence of
opposition because during the probate, the court only preterition, the estate shall be distributed by legal succession.
determines the extrinsic validity of the will. Preterition is a Even if the court goes through the process of determining the
matter pertaining to the intrinsic validity of the will. It's not extrinsic validity of the will but there is preterition, the will still
the proper stage to entertain that question. cannot be given effect. It will just be a waste of time and
The proponents also allege that a donation was given to the resources on the part of the parties and of the court. There is
illegitimate child. The court gave them opportunity to give a practical consideration here, an exceptional circumstance
evidence on the alleged donation, but there was no that warrants the determination of the intrinsic validity of the
evidence presented. will even during probate proper.
The RTC as probate court converted the proceedings into Remember, it does not necessarily follow that if the question
intestacy. It took cognizance of a matter pertaining to the of preterition is raised in probate proper, the probate court will
intrinsic validity of the will and dismissed the probate automatically skip the issue on the extrinsic validity of the will
proceedings. and proceed to determine the intrinsic validity of the will. That
is not the general rule. Only when there are no legacies or
ISSUE: Was it proper for the RTC to skip the process of
devises.
determining the extrinsic validity of the will and proceed
directly to the intrinsic validity of the will? Was it proper for Preterition; Legacies and Devises
the RTC to concert the proceedings into intestacy? YES. Under Art. 854 even if there is preterition, the legacy or devise
shall still be given effect as long as it is not inofficious.
Legacy and Devise; When Inofficious Subject to the right of appeal, the allowance of the will,
If it cannot be covered by the free portion. either during the lifetime of the testator or after his death,
shall be conclusive as to its due execution. (n)
Note: From the free portion shall be taken the legitime of the
surviving spouse, illegitimate child, the legacies and devises.
Even if there is preterition, the courts still have to determine As to the three (3) matters which are within the jurisdiction
the extrinsic validity of the will if there are legacies and of the probate court
devises. The decree of the probate court once it becomes final,
Why? A legacy or devise cannot be given without a valid will. becomes conclusive as to these matters.
In the case of Morales, there were no legacies or devises, so

there was total abrogation of institution of heirs. There is no Conclusive, meaning, it will be the law of the case. It will
reason to go through the process of determining the extrinsic become res judicata, it will bar another case or another
validity of the will. proceeding dealing on the same issues.
Preterition and Disinheritance in the Will MERCADO v SANTOS
Can we apply the case of Morales? FACTS: The last will and testament was admitted to
probate. The decree of the probate court became final and
executory.
If that happens, the court cannot go directly into intrinsic
validity of the will. It must go through the process of Afterwards, there was a complaint for forgery. It's a criminal
determining the extrinsic validity of the will. Why? We have to case alleging that the last will and testament which was
know whether or not the disinheritance is valid. probated was actually a forgery.
ISSUE: WON the criminal complaint for forgery should be
allowed to continue despite the prior admission of the same
For there to be a valid disinheritance, there should be a valid last will and testament to probate—NO.
will, extrinsically.
RULING: When the probate court allowed the will, it is as if
the probate court admitted that the will is genuine and not
So, apply the general rule: determine first the extrinsic validity forged, and that determination became final and executory.
of the will, then if it is valid, distribute the estate in accordance If a case for forgery is filed alleging that the said will is a
with the will. forgery, it will be disturbing the final and executory
But if there is preterition, the institution of heirs in the will shall determination made by the probate court. That cannot be
be annulled but the legacies and devises can still be given done. That judgment of the probate court on the probate of
effect, or the disinheritance can still be given effect if the will the will is conclusive as to the due execution of the will.
is extrinsically valid.
EFFECT OF ALLOWANCE OF THE WILL We learned before regarding the extrinsic validity of the will, a
Article 838. No will shall pass either real or personal Filipino and a foreigner can execute a will and such will can be
property unless it is proved and allowed in accordance with taken cognizance of by our courts, even if the will was made
the Rules of Court. abroad.
The usual procedure is, if a foreigner leaves a last will and
testament and the will covers properties abroad and in the
The testator himself may, during his lifetime, petition the
Philippines, there's already a probate proceeding abroad. If the
court having jurisdiction for the allowance of his will. In such
probate court abroad allows the will, will that will be
case, the pertinent provisions of the Rules of Court for the
considered sufficient to distribute properties located in the
allowance of wills after the testator's a death shall govern.
Philippines?
Can you just present the decree before the Register of Deeds
The Supreme Court shall formulate such additional Rules of to transfer the title over the properties? No, it's not automatic.
Court as may be necessary for the allowance of wills on
That same will probated abroad will have to be probated again
petition of the testator.
in the Philippines. That is what we call Reprobate Proceedings.
Reprobate proceedings are actually governed by Rule 77 of the do not have the resources to file the petition for probate
Rules of Court. abroad, that is as good as depriving them of their right to
Among others, you have to prove during the reprobate inheritance since our law requires that no will shall pass
proceedings that the court abroad is really a probate court. either real or personal property unless the will has been
You have to prove what are the rules of procedure insofar as proved and allowed by the proper court.
probate of wills are concerned abroad. Those are some of the
matters you have to establish before Philippine probate courts
GROUNDS FOR DISALLOWANCE OF THE WILL
during the reprobate proceedings.
Article 839. The will shall be disallowed in any of the
following cases:
IN RE: IN THE MATTER OF THE PETITION TO APPROVE
(1) If the formalities required by law have not been
THE WILL OF RUPERTA PALAGANAS
complied with;
FACTS: There was a foreigner. He left properties but his
(2) If the testator was insane, or otherwise mentally
heirs filed a petition for probate in the Philippines. There's
incapable of making a will, at the time of its execution;
no probate proceedings abroad. They directly filed a
petition for the probate of the will here in the Philippines. (3) If it was executed through force or under duress, or
That was the ground for the opposition. the influence of fear, or threats;
Oppositors’ contention: That cannot be done. Probate (4) If it was procured by undue and improper pressure
abroad must be undergone then a reprobate shall be and influence, on the part of the beneficiary or of some
done in the Philippines. Because if you do not follow the other person;
process of a prior probate abroad, how can you comply (5) If the signature of the testator was procured by fraud;
with the requirements under Rule 77? How can you prove
that? (6) If the testator acted by mistake or did not intend that
the instrument he signed should be his will at the time of
RULING: The SC held our laws do not prohibit the probate affixing his signature thereto. (n)
of wills executed by foreigners abroad although the same
has not yet been probated and allowed in the countries
of their execution. There is no prohibition for a petition These are the grounds for the disallowance of the will.
for probate directly filed before the Philippine courts
If you are the oppositor, your opposition should be based on
even if you did not file a probate proceeding abroad.
these grounds.
As to compliance with Rule 77
We can classify these grounds into three (3):
The SC held, if what you have filed in the Philippines is an
1. Formalities
original petition for probate, what applies will be Rule 76.
2. Testamentary capacity
3-6. Vitiated consent
Rule 77 applies only to reprobate proceedings, which is
not the case here because this is not a reprobate.
The SC said a foreign will can be given legal effect in our Limitation
jurisdiction. Art. 816 of the Civil Code states that a If you invoke a ground which is not among these mentioned,
foreigner can comply with the laws of his country, law of your opposition is out of due. You are only limited to the
his residence, law of the place of execution of the will, or extrinsic validity of the will. If the opposition pertains to the
Philippine law. Hence, the will can be given effect here. intrinsic validity of the will, that is not a valid ground to oppose
Denial of Right to Inheritance the probate of a will.
Furthermore, the SC said, if the oppositor's contention Although again, as we have discussed, there might be some
shall be followed that there should be a prior probate exceptions.
abroad, the right of the heirs to their inheritance would You cannot add grounds which are not mentioned here. Only
be practically rendered nugatory because probate is these grounds are allowed to oppose the probate of the will.
mandatory.
Perhaps there is a seventh (that) ground: Revocation. Because
If the process of having the will probated abroad is not even if the will was executed in accordance with the
complied with, the heirs cannot get the properties formalities prescribed by law, but if he already revoked the
mentioned in the will. Because usually, if the petitioners
will, still it cannot be probated. That can be another ground for Josefina and nothing to his sister. He also appointed
opposition. Josefina as the executrix. Placido died.
Vitiated Consent There were a lot of grounds for opposition raised. Among
In your Obligations and Contracts, the same vitiates consent: them, that there was fraud and undue influence.
fraud, mistake, violence, indie influence. In alleging fraud, the allegation was that it was highly
dubious for a woman at the prime of her young life to
almost immediately plunge into marriage with a man who
But remember that in Oblicon, the presence of vitiated was thrice her age and who happens to be a Fil-American
consent makes the contract voidable. The remedy is the pensionado. Thus, casting doubt on the intention of the
annulment of contract. Unless annulled, the contract remains respondent in seeking probate of the will.
valid.
However, there was no evidence presented to prove the
In last will and testament, when there is vitiated consent in fraud.
the execution of the will, the will is void. It cannot be given
effect until it is probated. But if it is not probated, it cannot be The oppositors further allege that it defies human reason,
given effect at all. logic, and common experience for an old man with a severe
psychological condition to have willingly signed a last will
There is no such thing as annulment of the will. and testament.
If you think that these grounds are present, you can file an RULING: The SC ruled that fraud “is a trick, secret device,
opposition to the probate of the will. That will be your remedy. false statement, or pretense by which the subject of it is
Revocation vs Disallowance cheated. It may be of such character that the testator is
misled or deceived as to the nature or contents of the
In these two instances, we have a will, but because of
document which he executes, or it may relate to some
revocation or disallowance, the will can no longer be given
extrinsic fact in consequence of the deception regarding
effect.
which the testator is led to make a certain will which, but
for the fraud, he would not have made.
REVOCATION DISALLOWANCE As to Omission of Ciriaca
It refers to an act of the It pertains to the judicial decree The SC held that it is a settled doctrine that the omission of
testator of the court disallowing the will some relatives does not affect the due execution of the will.
There can be a ground or Grounds are mentioned in Art.
no ground to revoke 839 That the testator was tricked into signing it was not
sufficiently established by the fact that he had instituted his
wife who was more than 50 years his junior as the sole
Happens during the Usually invoked after the death
beneficiary and disregarded the petitioner and her family
lifetime of the testator of the testator
who were the ones who took care of the testator during his
twilight years.
May be partial or total Usually total, except when the
fraud or undue influence
That fact alone will not constitute fraud.
affects only a part of the will
In fact, if the distribution of the estate will just be equal among

ORTEGA v VALMONTE the heirs, there is no reason to execute a last will and
testament. You execute a will because you want to make
FACTS: Placido is a Fil-American pensionado. In 1980, he preferences, you want to give more to some heirs than the
came to the Philippines to live here. For two years he lived others. You also want to give to people who are not your
with his sister, Ciriaca. There was a house and lot co-owned compulsory heirs. If you do not make a will, they will not
by them. receive anything.
After two years, he got married to Josefina. At that time he It doesn't mean that if one is preferred, there is already fraud.
was 80, and Josefina was 28. Afterwards, he executed a last
will and testament wherein he gave all his properties to
When you allege fraud, you have to prove the facts which Now if you noticed, under revocation, we also have revocation
constitute the fraud. You cannot allege fraud by just based on false cause.
conclusions. QUESTION: What is the effect if the revocation is based on a
Maybe in that case there was influence, but it was not the kind false cause?
of influence that is considered undue. ANSWER: It is as if there is no revocation
The institution, if based on a false cause, we just disregard the
September 20; DU false cause. That is the same under revocation. If the
revocation is based on the false cause, we disregard it in the
revocation and we give effect to the intent of the testator.
September 20, 2019
Austria vs. Reyes
Transcribed by: Erianne Du
The testator mentioned that he’s giving his property to his
Article 850. The statement of a false cause for the 5 adopted children. It turned out that they were not legally
institution of an heir shall be considered as not written, adopted. Would that void the institution?
unless it appears from the will that the testator would not
have made such institution if he had known the falsity of
such cause No, because in Testamentary Succession, the underlying
reason for the institution is the liberality or generosity of the
testator.
STATEMENT OF A FALSE CAUSE IN THE INSTITUTION OF AN
HEIR
Let’s just disregard the false cause.
QUESTION: What is the effect for example if there is an
institution, but it is subject to a false cause or if there is a
statement of a false cause? QUESTION: How about an institution based on an illegal
cause? How would that affect the institution?
Example: Because A is my most intelligent nephew, I give to
him ¼ of my estate. Example: I hereby give you 1 million because you killed A.
And then it turns out, he is not the most intelligent. He is not Here, we have to refer to Art. 1028 on incapacity in relation to
even intelligent at all. So it is false. Will he get the property? Art. 739
Can he contest during the presentation of evidence that Art. 1028. The prohibitions mentioned in Article 739
proves that he is not intelligent? concerning donations inter vivos shall apply to
ANSWER: It will not be considered as written. testamentary provisions
That is because in succession, the real consideration for the

institution is the generosity or the liberality of the testator. So
we just disregard the false cause.
Article 739. The following donations shall be void:
DO TAKE NOTE: unless it appears from the will that the
(1) Those made between persons who were guilty
testator would not have made such institution if he had known
of adultery or concubinage at the time of the
the falsity of such cause
donation;
Example: I would have wanted to institute A as heir but
(2) Those made between persons found guilty of
because it was B who actually took care of me, I hereby
the same criminal offense, in consideration
institute B to ¼ of my estate.
thereof;
But then it turns out B was actually not the one who took care
(3) Those made to a public officer or his wife,
of the testator. So, it’s very clear from the will. Had the testator
descendants and ascendants, by reason of his
known of the falsity of the cause, he would not have instituted
office.
B here, but A.
In the case referred to in No. 1, the action for declaration
QUESTION: Will B get the inheritance?
of nullity may be brought by the spouse of the donor or
ANSWER: NO. Because that falls under the exception. A will donee; and the guilt of the donor and donee may be
also NOT get the inheritance because A was NOT INSTITUTED. proved by preponderance of evidence in the same action
So here, the property shall go by INTESTACY if representation
is not proper or if there is no accretion. So here you cannot give to each other. Like when the testator
and the recipient are guilty of the same criminal offense in heirs. But when you compute the shares of these heirs as
consideration thereof. instituted, they do not comprise the entire estate
So if that is the reason for the grant, then the heir is Example:
disqualified under the rule on incapacity. I hereby institute A, B, and C as heirs to my entire estate at ¼
But if they can justify the grant based on another reason. each.
Example: A was killed by X. Testator ordered him to kill. The amount of the entire estate is P24 million.
However the real reason why X was instituted was because it
A - ¼
could be that the testator and X have a relationship.
B - ¼
The authorities would say that if there is another underlying
reason for the grant, NOT ONLY THE CRIMINAL ACT (i.e. the C - ¼
affection, or blood relationship) then just ignore the fact that So how do we distribute?
it was based on the illegal cause. Rather, give effect to the
So here we can see na kulang siya ug ¼. Therefore we have to
institution.
increase their shares.
BUT AGAIN, if the real cause for the institution is the crime,
Actually here, because they are instituted to the same portions
then we apply the law on incapacity.
and the same proportion and the intention of the testator is to
Article 851. If the testator has instituted only one heir, and give everything to them, then we just divide this by three(3).
the institution is limited to an aliquot part of the (kay proportionate man ang ilang shares)
inheritance, legal succession takes place with respect to the
So—
remainder of the estate. The same rule applies if the
testator has instituted several heirs, each being limited to A - 1/3
an aliquot part, and all the parts do not cover the whole B - 1/3
inheritance
C - 1/3
So here there is only one(1) heir. And then he is only instituted 24,000,000 / 3 = 8,000,000 each
to the aliquot portion of the inheritance. Now that is the case if they each have equal shares.
Example: I hereby institute A to 1/5 of my estate. Example 2:
QUESTION: What now happens to the remaining 4/5? A - 1/4
ANSWER: The 1/5 shall be distributed by testamentary B - 1/2
succession because it is covered by the will.
C - 1/8
Ang remaining 4/5 kay wala man siya nacover sa will, that will
Amount of estate is still P24,000,000
go by way of legal succession.
Does it cover the entire estate?
That is a case of mixed succession and that is still a valid will.
DO TAKE NOTE: The same rule applies if the testator has
instituted several heirs, each being limited to an aliquot part, FIRST: DIVIDE ACCORDING TO THEIR SHARES
and all the parts do not cover the whole inheritance A - 1/4 (1/4 of 24,000,000 = 6,000,000)
Example: To A ¼ and then to B ½. So naa pa nabilin na ¼. So B - 1/2 (1/2 of 24,000,000 = 12,000,000)
again that will go by intestacy and the will shall only cover
those portions mentioned. C - 1/8 (1/8 of 24,000,000 = 3,000,000)
Article 852. If it was the intention of the testator that the TOTAL: 21,000,000
instituted heirs should become sole heirs to the whole What do we do with the remaining 3,000,000? (note that the
estate, or the whole free portion, as the case may be, and intention is to give away the entire estate. 3,000,000 came
each of them has been instituted to an aliquot part of the from subtracting 21,000,000 from the value of estate which is
inheritance and their aliquot parts together do not cover 24,000,000)
the whole inheritance, or the whole free portion, each part We should now increase their shares in proportion to their
shall be increased proportionally. institution.
SECOND: INCREASE SHARES IN PROPORTION TO THEIR
Here, the intention of the testator is to give everything to the INSTITUTION
[denominator of 21 came from adding 6+12+3] Example:

*note: the figures below have been rounded off Value of estate: 24,000,000
A - 6/21 x 3,000,000 = 857, 142. 9 FIRST: DIVIDE THE SHARES
B - 12/21 x 3,000,000 = 1, 714, 285. 7 A - 1/4 of 24,000,000 = 6,000,000
C - 3/21 x 3,000,0000 = 428, 571.4 B – 1/2 of 24,000,000 = 12,000,000
Total = 3,000,0000 C – 1/3 of 24,000,000 = 8,000,000
FORMULA : (X/Y)Z TOTAL = 26,000,000
WHERE: So here there is an excess of 2,000,000
X — the amount of the share (i.e. 6M; as 1/4 of 24M) We reduce proportionately the excess (the formula is similar
under 852 except that instead of multiplying it by the
Y — total amount of the shares (6M + 12M + 3M)
balance, you multiply it by the excess)
Z — the amount of balance of the share (here it is 3M)
SECOND: FIND AMOUNT OF WHICH TO REDUCE
LAST STEP (to determine share of each): ADD RESULT OF PROPORTIONATELY
(X/Y)Z TO THE AMOUNTS ARRIVED AT AS DIVIDED UNDER
THE FIRST STEP [denominator of 26 came from adding 6+12+8]
A - 857, 142. 9 + 6,000,000 = 6, 857,142. 9 *note: the figures below have been rounded off
B - 1, 714, 285. 7 + 12,000,000 = 13, 714, 285. 7 A – 6/26 x 2,000,000 = 461,538.5

B – 12/26 x 2,000,000 = 923, 076.9
C - 428, 571.4 + 3,000,000 = 3, 428, 571.4
(Check: 6, 857,142. 9 + 13, 714, 285. 7 + 3, 428, 571.4 = C – 8/26 x 2,000,000 = 615, 384.6
24,000,000) TOTAL = 2,000,000
QUESTION: Now what if there are compulsory heirs? FORMULA : (X/Y)Z
Example: I hereby institute A, B, and C to my entire estate. WHERE:
X — the amount of the share (i.e. 6M; as 1/4 of 24M)
Y — total amount of the shares (6M + 12M + 8M)
A– 1/4 Z — the amount of excess of the share (here it is 2M)
B- 1/2 LAST (determine shares): SUBTRACT THE AMOUNTS FROM
C – 1/8 THE RESPECTIVE SHARES ATTAINED FROM THE FIRST STEP
Now A here is the legitimate son of the testator. A – 6,000,000 - 461,538.5 = 5,538,461.5
B – 12,000,000 - 923, 076.9 = 11, 076,923.1
FIRST: Give the legitime of the compulsory heir
So 24,000,000/2 = 12,000,000 (legitime of A the son) C – 8,000,000 - 615, 384.6 = 7,384, 615.4
(The remaining amount which is 12,000,000 will be where (Check: 5,538,461.5 + 11, 076,923.1 + 7,384, 615.4 =
you will be getting the shares of the instituted heirs. From 24,000,000)
there follow the earlier steps as discussed) PRETERITION
Article 853. If each of the instituted heirs has been given an Article 854. The preterition or omission of one, some, or all
aliquot part of the inheritance, and the parts together of the compulsory heirs in the direct line, whether living at
exceed the whole inheritance, or the whole free portion, as the time of the execution of the will or born after the death
the case may be, each part shall be reduced proportionally. 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
So baliktd ito ng Article 852. There is still the intention to give
before the testator, the institution shall be effectual,
away the entire estate to the heirs.
without prejudice to the right of representation.
But here in so computing their aliquot shares, it exceeds the
entire estate.
Preterition: It is the omission of one, some, or all of the
compulsory heirs in the direct line whether living at the time Note that when we say ‘omitted’ it is not only with regards
of the execution of the will or born after the death of the to the will, but also omitted from the inheritance itself.
testator QUESTION: What if only a small portion is left remaining na
CONCEPT OF OMISSION BEING REFERRED TO UNDER THIS pwede mahatag by legal succession?
PRETERITION ANSWER: Again he is just entitled to a completion of his
QUESTION: When will there be preterition? legitime. There is no preterition.
1. THERE MUST BE A WILL 3. No donation inter vivos or any gratuitous transfer
Kung walay will, even if there is omission, there is no must be made to that omitted heir during the
preterition. Without a will to speak of, there is no question of lifetime of the testator
preterition. Example: We have a will which disposes of the entire estate of
So you are a compulsory heir in the direct line omitted in the the testator and C is not mentioned at all in the will. But during
will. the lifetime of the testator, C was given a parcel of land.
Is preterited? NO. He was not entirely omitted. He received a
2. THERE MUST BE OMISSION
parcel of land by way of donation. That donation was
QUESTION: Now what is the omission? considered an advance to his legitime.
ANSWER: So pagkapatay ni testator, gi-compute na siya tanan apil ang
1. The heir is not given anything in the will whether as mga donations made during the lifetime of the testator their
a legatee, as devisee, as an heir. He is forgotten. values will be brought back to the estate and mao to siya ang
basis for the computation of the legitime.
He might be mentioned in the will
Example: Legitime ni C is 5million and then donation sa kanya
Example: I have 3 children—A, B, C. And then pag distribute
is 1million lang. Again he is NOT preterited. He is entitled to
wala apil si C. The will did not mention that it omitted C. The
the completion of his legitime.
will did not say ‘I exclude C, I deprive C…’ wala there’s nothing
at all. He’s just omitted. NOTE: I mentioned donation and any gratuitous disposition.
Because ang mga advances to the legitime, dili lang siya
Another situation: What if he said ‘I exclude C’ or ‘I deprive C’?
limited sa donation.
That is not preterition because he is not forgotten. That is
already a case of disinheritance. When we go to collation, there are other transfers or expenses
made by the testator which can be considered as an advance
So dapat omitted siya from the will. Nothing is given at all.
to the legitime of the heir
QUESTION: Now what if gi-tagaan siya ug 100 pesos sa will and
Example: The heir ran for office. So meron election expenses.
then siblings niya is 1billion and 2billion. Was preterited? Iyang parents nagspend sa iyang election expenses. That will
ANSWER: NO. He is not preterited because he is given 100 be considered as advance to his legitime.
pesos. He was not forgotten. So there’s no preterition.
Nangutang kunwari si anak then ang parents na nagbayad.
REMEDY OF THAT HEIR IN THIS CASE: entitled to a completion Katong gibayad sa utang, advance to the legitime.
of his legitime. But he will not be preterited.
Naglaw school dugay kaayo nahuman, ang parents nag-gastos,
is that considered as advance to the legitime? Actually optional
Take note of the different effects as to the institutional heirs: na yan siya on the part of the parents. Kay maluoy pud ka sa
➢ If he is preterited, the institutional heirs shall be imong mga igsuon uy. Kay nahurot na atong properties para sa
annulled. law school, unya gamay na lang nabilin unya makipag-tunga pa
➢ But if he is merely entitled to a completion of his jud ka pagakamatay sa parents? Optional na lang.
legitime, the institutional heirs will not be
TO SUMMARIZE: So those expenses, grants, and transfers,
annulled. kung gihatag to siya and then you are omitted from the will,
you are no preterited because those will be considered as
2. Aside from being omitted from the will, the will itself
advances to your legitime and thus considered in the
must dispose of the entire estate of the testator
computation.
If the will merely covers ¾ of the estate, meaning there’s still
So that’s an omission.
the remaining ¼ which can pass by legal succession and so that
means that omitted heir can participate in legal succession. Even the presumptive legitime under freak succession,
collated gihapon to siya sa legitime.
3.THE OMISSION MUST BE THE COMPULSORY HEIR IN THE It is a requirement that the preterited heir MUST SURVIVE the
DIRECT LINE testator.
QUESTION: Who are the omitted heirs being preterited? QUESTION: What if C has a representative? Naa siya anak.
ANSWER: THE COMPULSORY HEIRS IN THE DIRECT LINE ANSWER: Then in that case there is still preterition. Because
the representative will now take the place of C. Naa gihapon
Compulsory heirs in the direct line:
omission.
a) Legitimate children and descendants
b) (in the absence of those under letter a) Legitimate In relation to the Iron Bar Rule:
parents and ascendants For example si C, iyahang anak kay illegitimate. Under the
c) Surviving spouse present law, walay preterition if C dies ahead of the testator.
d) Illegitimate child Why? Because the illegitimate child cannot represent.
As to the surviving spouse: If wala na ang 992, naa gihapon preterition and therefore the
institution of heirs will still be annulled.
Acain vs. Intermediate Appellate Court
TAKE NOTE OF THIS PORTION FROM ARTICLE 854:
ISSUE/S:
whether living at the time of the execution of the will or born
Whether or not the spouse can be preterited
after the death of the testator
Whether or not the spouse is a compulsory heir in the direct
Example: Wala kabalo si testator na buntis iyang asawa. And
line.
then he died. And then the child was born.
RULING: NO.
What happens now to the will? THERE IS PRETERITION. The
The Court held that although she is a compulsory heir, she child who was born is a compulsory heir under the direct line.
is not in the direct line. When you say direct line, one who
WHAT IS IMPORTANT TO NOTE: At the time of death of the
descends from the testator or one from whom the testator
testator, gi-conceive ang bata. Kay if na-conceive siya AFTER
ascends. So ascending line or descending line. Thus the
pa sa death, edi dili to anak sa testator obviously and therefore
Spouse, even if omitted, is not considered to be preterited.
walay preterition.
TO SUMMARIZE:
QUESTION: What would be the treatment now if the Spouse is
omitted from the will? ➢ GENERAL RULE: THE OMITTED COMPULSORY HEIR
MUST SURVIVE THE TESTATOR OTHERWISE THERE IS
ANSWER: He/She will be given his/her legitime. As to the
NO PRETERITION
institution of heirs, since there was no preterition, it shall be
➢ EXCEPTION: UNLESS HE HAS A REPRESENTATIVE
respected.
EFFECT OF PRETERITION
QUESTION: Can an adopted child be preterited?
As provided by the law:
ANSWER: YES. Because again under the Domestic Adoption
Act, the adopted child has the same rights as a legitimate child. ➢ shall annul the institution of heir
Hence if kung na-omit siya sa, there is preterition. Example:
4. THE OMITTED COMPULSORY HEIR MUST SURVIVE Amount of Estate: P 24,000,000
THE TESTATOR Heirs: A, B, C are the children of testator
QUESTION: What happens if C is preterited, but C dies ahead C here is preterited. Testator only instituted entire estate to A
of the testator? and B.
ANSWER: No preterition If there is preterition, the institution of heirs shall be annulled
RECALL: When there is preterition in a will, it is as if the will is and what will happen is that there will be INTESTACY. We will
revoked by operation of law. distribute by LEGAL SUCCESSION.
Kasi for example the only provisions in that will are the Wala naman will. So just divide the 24,000,000 by 3.
institution of heirs. Preterition will totally annul the institution A: 8,000,000
so we cannot give effect to the will. There is revocation by
operation of law. B: 8,000,000
But if C for example dies ahead of the testator, then wala na C: 8,000,000
preterition kasi he never became an heir. He died ahead
What if there’s F? Best friend of the testator. And in the will of QUESTION: What if F was given cash of 1,000,000? And then
the testator, he instituted as his sole heirs of the entire estate the testator said ‘I hereby institute A and B as my sole heir to
of 24,000,000 to A, B, and F. He omitted C my entire estate and I give 1,000,000 to F’ And C is preterited.
So assuming there is preterition, the institution of A, B, and F ANSWER: Note what the law says as to effect of preterition--
will be annulled. shall annul the institution of heir; but the devises and legacies
Then we will distribute the estate by legal succession (divide shall be valid insofar as they are not inofficious.
again among the three legal heirs so divide 24,000,000 by 3)-- F here is a legatee.
A: 8,000,000 QUESTION: How do we know if this is inofficious?
B: 8,000,000 ANSWER: Kung maglampas siya sa free portion.
C: 8,000,000 That’s why we have to compute—
F: ZERO (not a legal heir) 24,000,000 / 2 = 12,000,000 ang legitime.
QUESTION: What if the will says ‘I institute A, B, and F as my 12,000,000 ang free portion.
sole heirs of my entire estate, but I give a legacy of 1,000 to C’.
Remember F was given 1,000,000. Not inofficios.
Is there preterition?
So pila nabilin karon?
ANSWER: NO PRETERITION. C was given 1,000. C is now
entitled to the completion of his legitime. 24,000,000 – 1,000,000 (to F as legatee) = 23,000,000
How to divide— Now remember there is preterition (C in this example is
preterited) therefore there is annulment of the institution of
24,000,000 / 2 = 12,000,000 (because the legitimate children
heirs.
are entitled to ½ of the net hereditary estate)
So intestacy. So divide 23,000,000 by 3 among A, B, C.
12,000,000 / 3 (3 children) = 4,000,000 as legitime of each
child TO SUMMARIZE: So here, if F is a legatee or devisee, even if
there preterition, he will still get the legacy or device. But if
Free portion is now 12,000,000 INSTITUTED HEIR SI F, he will get nothing because of
How to divide the free portion? preterition.
Divide the Free Portion among A, B, and F because they are
instituted. Wala na labot si C because he was given 1,000
September 21; Latorza
(already part of his legitime. He will merely be entitled to
completion of his legitime). Continuation of Article 856. . . .
TO THE INSTITUTED HEIRS: 12,000,000 (free portion) / 3 = Okay we have A, B compulsory heirs and D kani ang
4,000,000 mga anak. So insofar as A and B are concerns, they are both
compulsory heirs and voluntary heirs. Although sa legitime
tulo sila anak si A, B and D. Sa free portion, tulo sila na
QUESTION: What if the will says ‘I hereby institute as my heirs instituted si A, si B ug si C bestfriend ni testator.
A, B, and F’? Is there preterition? Let’s say this 24M, if A predeceased the testator, what
(Note the rule on institution of heirs: it shall be limited only to will happen? Insofar as the legitime is concern his legitime he
the free portion unless it is made very clear that it is applied to can be represented pero sa iyang share sa free portion, there’s
the entire estate.) no right of representation. Si C, bestfriend, for example he died
ANSWER: But here, the will says ‘I hereby institute as my heirs ahead of testator, again because C is just a voluntary heir he
transfers nothing to his own heirs. So if he dies, even naa syay
A, B, and F’. Therefore that will be limited to the free portion.
anak na si X, walay may makuha si X because there’s no right
So we give the legitimes of A, B, and C from the ½ of 24,000,000 of representation.
(12,000,000 / 3 = 4,000,000 to A, B, C each respectively)
So lets go back, testator, A and D. Si A nay anak si M.
The free portion give to the instituted heirs (12,000,000 / 3 = Estate 24M, he instituted A,B and C as heirs and also left
4,000,000 to A, B, and F each respectively). C not included legitimate children A,B and D. Assuming na ang ______
because he was not instituted predeceased, so what will they get ? Who will be the heirs ?
NOTE: Be careful of the terms used in the will. Kasi if it says ‘I Okay, insofar as legitime is concern, so mao ni ang surviving
give my ENTIRE ESTATE OF 24 MILLION’ meaning dili lang gyud heirs A,B and D. Sa free portion na silang tulo.
na siya free portion to the instituted heirs.
So what if A died ahead of the testator? Even if M, N, O, X, Y Now Article 856 also mentions:
and Z (grandchildren) are still alive but if all, A,B and D are still “A compulsory heir who dies before the testator, a
alive, walay labot si M,N,O,X, Y and Z because in succession person incapacitated to succeed, and one who renounces the
whether testamentary or intestate we follow the first rule, the inheritance, shall transmit no right to his own heirs except in
RULE OF PROXIMITY. What do you mean by this rule? Those
cases expressly provided for in this Code.”
who are nearest in degree to the testator shall exclude those
who are far. So, they are all excluded by A, B and D. A Again when it comes to the free portion, even if you
predeceased the testator, how do de divide that 24M? A, are compulsory heirs you cannot be represented. But as to
insofar as his legitime is concern, he will be represented by M. your legitime, the right of representation applies. But Article
So pila ang legitime, 24M divided by 2 (as get the legitime), 856 mentions “renounces the inheritance”, a person
12M divided by 3(children), so 4M each. So the 4M of A will go renounces his inheritance cannot be represented, only those
to M. who cannot inherit because of predecease, incapacity or
disinheritance can be represented. So even if it pertains to
So how about sa free portion ni A, makakuha ba si M? your legitime, if you renounce your share you cannot be
No, because no right of representation in the free portion. So
represented.
vacant ang share ni A. Asa maadto? Kay tulo baya sila ge
institute sa free portion. Okay there is a RULE OF PRIORITY: ILLUSTRATION: Assuming instead of dying ahead the testator,
A repudiated his share, so repudiation not predeceased. So
➢ First institution, give to the instituted heir, if the insofar as the legitime is concern, of course the repudiation
instituted heir cannot receive because of predecease,
also applies to the free portion, but now we are talking of
incapacity, repudiation, disinheritance.
legitime because as I said “when a person repudiates he
➢ Second, let’s see if there is a substitution. If there is cannot be represented”, so what is the consequence? The
no substitute. survivors are, of course they are all alive but A repudiated and
➢ Third, let’s see if the right of representation is proper. we have here his children, so unsaon ta pag divide? We only
➢ Fourth, accretion, if accretion is not proper. give to B and D because M cannot represent A by reason of A’s
➢ Lastly, is intestacy. repudiation, so B lang ug si D. What if nag repudiate pud si B,
So here, going back, insofar as legitime is concern A can be silang duha again B cannot be represented, so D will get
represented by M, how about sa free portion? No, because everything. What if D also repudiated? If all of them repudiate
there is no right of representation in the free portion. Asa na their share, what will happen? An heir who repudiate cannot
ta maadto next? Is there a substitute for A, there is none. be represented, so kinsa karon ang magkuha sa estate? In this
Would the right of representation be proper? No because it is case because all of them repudiated, who is the next in line?
the free portion. Would accretion be proper? Yes, accretion is M, N, O, X, Y and Z. How they will divide the estate? This time,
proper. When we go to accretion it is just that the share of the they do not inherit by representation because their parents
heir goes to his co-heirs in the same inheritance, so his share repudiated, they inherit in their own rights, being the next in
will accrue to the others. So ang share ni A mangadto na kay B line under the rule on proximity. The division is per capita. So
and C. 24M divided by 6. So this how we divide if all of them
Now illustrating again the right of representation, for repudiated their shares.
example si A and B predeceased the testator so si D nalang ang
nabilin na buhi na anak, although we have M,N,O,X,Y, and Z.
SECTION 3 SUBSTITUTION OF HEIRS
As to the legitime, how do we distribute it? Diba each is
entitled to 4M as legitime, so ang share ni A mag go kay M by I mentioned to you before naay order of priority. In the order
representation, so nagiisa lang si M so he will get the entire of priority, in testamentary succession, if there is an instituted
4M. Ang share ni B kay 4M gyapon but there are two heir as much as possible we give effect to the institution.
representatives N and O, and they will get 2M each. Si B he will
What if one of the instituted heirs cannot receive either
get the 4M, the inheritance of B is what we call in his own right,
because he predeceased or he becomes disqualified or he
per capita ang tawag. Ang inhetitance ni M,N and O is by right
repudiates, asa man maadto ang iyahang share? Will it go by
of representation so that is per stirpes, so they will just get the
legal succession immediately? NO.
share of the person they represented. Okay this is how we
illustrate the right of representation.
Again si B sa free portion dili pud sya ma represent
kay walay right of representation in the free portion. So sa free
portion, wala naman si A, si B, then by right of accretion
everything will go to C. So that is the illustration of Article 856.
THE ORDER OF PRIORITY IS: (IS-RAI) The definition of substitution should be: Substitution is
1. Institution; the appointment of another heir so that he may enter into
2. Substitution; the inheritance in default of the heir originally instituted or
3. Representation; after such heir originally instituted.”
4. Accretion; KINDS OF DIRECT SUBSTITUTION:
5. Intestacy; 1. Simple or common;
If the instituted heir for some reason cannot receive either 2. Brief or compendious;
because: 3. Reciprocal;
1. he predeceased or We only have ONE INDIRECT SUBSTITUTION that is the
2. he becomes disqualified or concept of FIDEICOMMISSARY SUBSTITUTION.
3. he repudiated. PURPOSE. The purpose of substitution is to give the
Let‘s see if he has a substitute. We give the vacant portion to testator the option to choose who will receive his estate in
the substitute. case the heir originally instituted becomes disqualified,
repudiates or predeceases. At least naa gihapon siyay chance
ARTICLE 857. Substitution is the appointment of another
to choose who will partake of his estate.
heir so that he may enter into the inheritance in default of
the heir originally instituted.
If you read Article 857, it presupposes that there is an SECTION 3 SUBSTITUTION OF HEIRS
original heir and then that heir cannot inherit because of
KINDS OF SUBSTITUTION
predecease, incapacity and repudiation, so in replacement of
that original heir we have the substitute. The substitute enters ARTICLE 858. Substitution of heirs may be:
into the inheritance in default of the heir originally instituted. 1. Simple or common;
The definition in Art.857 is not accurate because this 2. Brief or compendious;
definition covers only direct substitution. Substitution can also 3. Reciprocal; or
refer to indirect substitution. This not the only kind of 4. Fideicommissary.
substitution that we have in the NCC. Again, ang ge ingon lang GENERAL CLASSIFICATIONS:
sa 857 A or B.
They are:
WHAT IS SUBSTITUTION? ART. 857.
1. Direct, or
Of course this has to be provided for by the testator. 2. Indirect
This can only happen in testamentary succession.
KINDS OF SUBSTITUTION
Again, if one of the heirs cannot receive his share dili
dayon ta deretso to intestacy. Let us see if naa siyay substitute. These are right now the different kinds of substitution.
Under our jurisdiction, there are actually TWO GENERAL 1. DIRECT SUBSTITUTION
CLASSIFICATIONS of Substitution: The first three:
1. DIRECT SUBSTITUTION. This is the one defined in Art. 1. SIMPLE OR COMMON;
857. In default of the heir originally instituted 2. BRIEF OR COMPENDIOUS;
meaning if the original heir cannot inherit, then the 3. RECIPROCAL
substitute inherits.
They are direct substitutions.
Under this concept of direct substitution, “A or B” or
It is either:
“in lieu of A, B”. Dili silang duha, isa lang jud. That‘s the
concept of direct substitution. “A the original heir, or B the substitute”
2. INDIRECT SUBSTITUTION. The 1st heir inherits and 2. INDIRECT SUBSTITUTION
after the 1st heir, the 2nd heir. So there are two heirs FIDEICOMMISSARY; which is a form of indirect
who will inherit, one after the other. So lahi sya direct substitution. Here, both of the 1st heir and the 2nd heir
kay “or”, A or B. Sa indirect A and after A, B. All heirs inherit, but one after another.
instituted, the original heir and the substitute will
inherit but ONE AFTER THE OTHER. So both will
inherit but one after the other.
SIMPLE OR COMMON SUBSTITUTION is defined in Article 859. If A cannot inherit: if A predeceases,

becomes incapacitated or repudiates, then X and Y
ARTICLE 859. The testator may designate one or more
will succeed here; they will have equal share— ₱50K
persons to substitute the heir or heirs instituted in case
each.
such heir or heirs should die before him, or should not
2. It could also be that the testator will specify:
wish, or should be incapacitated to accept the inheritance.
“A is the original heir instituted, if A
A simple substitution, without a statement of the cases to defaults, X and Y will be the substitute: X ¼, Y ¾ as
which it refers, shall comprise the three mentioned in the default.”
preceding paragraph, unless the testator has otherwise
provided. 2. COMPENDIOUS SUBSTITUTION
So here the vacancy could be predeceased, incapacity When 2 or more heirs are instituted and there is only 1
or repudiation. But if the institution is silent as to what result substitute for all the heirs originally instituted.
to substitution, it will comprise of all the three, predeceased,
incapacity or repudiation. ILLUSTRATION:
It should be very clear na there is substitution, na in default of INHERITANCE: 100k
the 1st heir because of predeceased, incapacity or repudiation
then the 2nd heir, the substitute will replace him. It should be [ORIGINAL HEIR]
expressly made, we cannot just presume that there is X [50K]
substitution.
[IN DEFAULT OF]
“SUBSTITUTE” A [100]
Note: the substitute is the heir of the testator, not of the Y [50K]
[SUBSTITUTE]
original heir. We have to determine his qualifications based on [IN DEFAULT OF]
his qualification to inherit, based on his relationship with the
testator.
2ND PARAGRAPH: “if there is no statement as to the cause of DISCUSSION:
the case of substitution, it shall comprise of the three” 1. In case of default of the original heir who is X and Y, A
Meaning: will be the substitute.
Predecease, incapacity, or repudiation of course, the Ang ilahang shares, ang institution is ₱100K, Kung dili
substitution has to be expressly provided for in the will of the mahitabo ang predecease, incapacity, or repudiation X
testator. and Y will get the ₱100K under the Principle of Equality,
ARTICLE 860. Two or more persons may be substituted for ₱50K each.
one; and one person for two or more heirs.
Q: What if X predeceases, what happens, will A now
This defines brief and compendious substitutions. inherit the inheritance as a substitute, kay naa na ma’y
1. BRIEF SUBSTITUTION vacant portion?
It is brief substitution when 2 or more persons will be
substituted for 1 heir. A: Not yet, because X and Y are instituted. The share of X
actually will go to Y. But when all of them become
Example: A is the original heir, in case of predecease, incapacitated, they predecease or repudiate the entire
incapacity, or repudiation of A, then X and Y. ₱100k will now go to A as the substitute
ILLUSTRATION:
INHERITANCE: 100k
[ORIGINAL HEIR] X [SUBSTITUTE] [50K]
A[100K] Y[SUBSTITUTE] [50K]
[IN DEFAULT OF]
DISCUSSION:
1. Here, there is original heir who is A. There are 2
substitutes.
ARTICLE 861. If heirs instituted in unequal shares should be Q: What if there are 3 heirs instituted: A, B, and C? They are
reciprocally substituted, the substitute shall acquire the instituted as heirs, at the same time they are also reciprocally
share of the heir who dies, renounces, or is incapacitated, the substitutes of each other. Given na 300k ang estate.
unless it clearly appears that the intention of the testator A:
was otherwise. If there are more than one substitute, they
shall have the same share in the substitution as in the 1. In case of default of A -- B and C will substitute;
institution. 2. In case of default of B—A and C shall substitute; and
3. So on and so forth.
Article 861 refers to reciprocal substitution. The heirs
instituted are also the substitutes of each other. Here, if A defaults, the share of A will go to B and C. B will get
his share of ₱100K, also 100K C. Plus share in the substitution.
ILLUSTRATION:
Q: How will B and C divide?
ESTATE: ₱200K [free portion]
The law says:
INSTITUTED HEIRS[free portion]:
“they shall have the same share in the substitution as in the
1. A—₱100K [share by institution] institution.”
[In case of default, B shall succeed] So, in the same proportion that they are instituted: they are
2. B—₱100K [share by institution] instituted in equal shares, so each of them will get in addition
to their additional shares 50K as substitutes.
[in case of default, A shall succeed]
Q: What if the testator says:
“I hereby institute as my heirs to my estate: A, B, and C. The
[100K] [100K]
sharing will be ½ to A, ¼ to B, ¼ to C. They shall also be
A B reciprocally the substitutes of each other.”
[In default of] [share by substitution] And now C predeceased. The substitution becomes effective.
[+100K] [Total 200k] How do we distribute the estate of the testator?
or ILLUSTRATION:
ESTATE: ₱240K
[100K] [100K]
A B INSTITUTED HEIRS [RECIPROCAL SUBSTITUTES OF EACH
OTHER]:
[share by substitution] [In default of]
1. A — ½ SHARE
[+100K] [Total 200k] 2. B— ¼ SHARE
3. C— ¼ SHARE [PREDECEASED A AND B]
EFFECT OF RECIPROCAL SUBSTITUTION
Q: HOW MUCH WILL BE GIVEN TO A AND B?
In #1If A defaulted— B receives ₱200K DISTRIBUTION OF SHARE BY INSTITUTION:
A B C
In #2 if B defaulted—A receives ₱200K SHARE BY SHARE BY SHARE BY
Here A and B are instituted. So sila ang 2, heirs of the INSTITUTION INSTITUTION INSTITUTION
testator. Let‘s say the estate is ₱100K. In case of default of A, [1/2 OF 240K] [1/4 OF 240K] PREDECEASED; HIS
B shall succeed, B shall be the substitute. In case of default of SHARE WILL GO TO
B, A is the substitute. A&B
For example each of them is given ₱100K. If A 120K 60K HIS SHARE WILL BE
defaults, B gets the share of A. Bale, ₱200K na ang makuha ni DITRIBUTED TO A
B. & B IN
PROPORTION TO
THEIR SHARE IN accordance with “their share in the substitution is the

INSTITUTION. same share as in the institution’―—the same
proportion.
How could we divide the 60k between A and
B?
FORMULA FOR SHARE BY SUBSTITUTION=
Do we say, ½ of 60k to A and ¼ of 60k to B?
Kung ing ana di na mahurot ang 60K.
So dapat in the same manner that they
𝒔𝒉𝒂𝒓𝒆 𝒃𝒚 𝒔𝒖𝒃𝒔𝒕𝒊𝒕𝒖𝒕𝒊𝒐𝒏 inherit.
𝒕𝒐𝒕𝒂𝒍 𝒔𝒉𝒂𝒓𝒆
So let’s apportion, pila ang total share ni A
𝒃𝒚 𝒊𝒏𝒔𝒕𝒊𝒕𝒖𝒕𝒊𝒐𝒏
and B? 180k
𝒂𝒄𝒕𝒖𝒂𝒍𝒍𝒚 𝒈𝒊𝒗𝒆𝒏 𝒕𝒐
𝒉𝒆𝒊𝒓𝒔 So A’s [share by substitution] is = 120k/180k
𝒍𝒆𝒔𝒔 x 60k= 40k or (2/3 of 60k).
𝒔𝒉𝒂𝒓𝒆 𝒐𝒇 𝒔𝒖𝒃𝒔𝒕𝒊𝒕𝒖𝒕𝒆𝒅 𝒉𝒆𝒊𝒓 So B’s [share by substitution] is: 60k/180k x
60k= 20k or (1/3 of 60k)
APPORTIONMENT (OF PREDECEASED CO-HEIRS’ SHARE IN 3. So this is how we distribute:
TESTATE) TO SUBSTITUTE HEIRS: ➢ To A= 120k + 40k = 160k
➢ To B = 60k + 20k= 80k
A B
This is how we distribute the estate after substitution.
SHARE BY SUBSTITTION SHARE BY SUBSTITTION
ARTICLE 862. The substitute shall be subject to the same
120K/ 180K X 60K 60K/ 180K X 60K
charges and conditions imposed upon the instituted heir,
4OK 20K unless the testator has expressly provided the contrary, or
the charges or conditions are personally applicable only to
the heir instituted.
TOTAL SHARE RECEIVED:
CHARGES AND CONDITIONS.
A B
Example: Naa’y charge or condition imposed upon
SHARE BY INSTITUTION SHARE BY INSTITUTION the original heir, and there is a substitute:
PLUS PLUS GENERAL RULE: that condition, encumbrance, or charge
SHARE BY SHARE BY applies as well to the substitute.
SUBSTITUTION SUBSTITUTION Example: amplecondition, encumbrance, or 1/2 of
my estate, in case of predecease, incapacity, or repudiation, B
120K + 40K 60K + 20K
shall be the substitute.
160K 80K If the institution of A is subject to the condition that
TOTAL A shall first become a lawyer before he marries, then if A
defaults, that same condition will have to be observed by the
160K + 80K = 240K
substitute,
EXCEPTION: unless it is personally applicable only to the heir
SOLUTION: instituted,
1. Give to A and B their shares as an instituted heir. So Example:
as to: 1. Kay si B lawyer na man siya daan, si A wala pa; so, of
A’s share is ½ of 240k= 120k course you cannot impose that same condition upon
B because he is already a lawyer; or,
B’share is ¼ of 240k= 60K
2. A will get married, and then, B is already married; so,
2. Supposedly, C also gets 60K but he predeceased, so that would no longer be applied
his share becomes vacant and because of their
reciprocal substitution, A and B will now succeed and
will get the share of C. The share of A and B will be in
ARTICLE 863. A fideicommissary substitution by virtue of In effect, the nature of the enjoyment by the 1st heir
which the fiduciary or first heir instituted is entrusted with in a fideicommissary substitution is similar to that of a
the obligation to preserve and to transmit to a second heir usufructuary. He can use, possess, enjoy, but he cannot
the whole or part of the inheritance, shall be valid and shall dispose, because he has to transmit it unimpaired to the
take effect, provided such substitution does not go beyond second heir. There must be an obligation to preserve and
one degree from the heir originally instituted, and provided transmit.
further, that the fiduciary or first heir and the second heir You can use any other similar words as long as the
are living at the time of the death of the testator. meaning is the same— there is an obligation to preserve and
transmit.
This talks with FIDEICOMMISSARY SUBSTITUTION. Like in one case: It could be “passed on unimpaired”,
that‘s the same meaning “preserve and transmit. “
We now have the concept of fideicommissary
substitution. That is the only kind of indirect substitution under 2ND REQUISITE:
our jurisdiction under the New Civil Code. There must be a FIRST HEIR.
Example: The testator says, “I hereby give to A ½ of There are several terms used for the 1st heir:
my estate. Upon the death of A, that same inheritance of A will
now be enjoyed by B; but, A cannot dispose [for example we‘re 1. Fiduciary;
talking of parcel of land kay iya’ng estate is land, so A will not 2. Fiduciario;
dispose] of the inheritance because upon his death that same 3. Heredero; or
property shall go unimpaired to B [or, after 10 years,] that 4. Trustee
same inheritance shall go unimpaired to B.” He is the one who has the obligation to preserve and
ILLUSTRATION: transmit.
“RIGHT”
TESTATOR A B His right is just simply that granted to in a usufructuary.
[1st heir ] [2nd heir] 3RD REQUISITE
(with obligation to preserve There must be a SECOND HEIR.
and transmit upon death or Several terms for 2nd heirs:
after 10 years to A) 1. Fideicommissary

2. Fideicomisario
So there is fideicommisary substitution. As long as all 3. Beneficiary, or
the requisites under Article 863 are present. 4. Cestui que trust
REQUISITES UNDER ARTICLE 863: The second heir receives the property from the first heir,
st
1 REQUISITE but, of course, the second heir is not the heir of the 1st heir,
he is the heir of the testator.
1. There must be an express mention that it is a
fideicommissary substitution. Both the 1st heir and the 2nd heir succeed or inherit from
a. The word fideicommissary must be used; or the testator; and, there is no more obligation on the 2nd heir
b. Even if it is not denominated expressly as to preserve or transmit. The second heir now becomes the full
fideicommisary substitution, but there is owner of the property subject of the fideicommissary
expressly imposed upon the first heir, an substitution.
obligation to preserve the property and 4TH REQUISITE
transmit it to the second heir.
The relationship between the 1st heir and the 2nd heir must
So that is how you constitute fideicommissary NOT BEYOND 1 DEGREE.
substitution. It has to be made expressly.
1 DEGREE MEANS 1 GENERATION
OBLIGATION TO PRESERVE AND TRANSMIT
Q: What do we mean by 1 degree?
The obligation to preserve carries with it the
consequence that the first heir cannot alienate, dispose of or It was contended na: it could refer to 1 transfer; but, now it is
destroy the property. settled nga it should not be interpreted that way, it should
mean 1 generation.
NOT APPLICABLE TO JURIDICAL PERSONS HOW MADE TO BE VALID; OBLIGATION OF FIDUCIARY;

When we say generation, there can be no ALLOWABLE DEDUCTIONS
fideicommissary substitution between juridical persons, ARTICLE 865. Every fideicommissary substitution must be
because there is no generation between juridical persons. expressly made in order that it may be valid.
If you say 1 transfer, pwede ang juridical persons; but The fiduciary shall be obliged to deliver the inheritance to
generation, there has to be a degree of relationship, i.e., there the second heir, without other deductions than those which
can only be 1 parent and child. So that applies only to the arise from legitimate expenses, credits and improvements,
relationship between parent and child. save in the case where the testator has provided otherwise.
So it can be (basta 1 degree): “EXPRESSLY MADE”
1. The 1st heir ang parent, 2nd heir— child; or, We discussed this—the 1st par., na for the
2. The 1st heir—child, ang second heir— parent . fideicommissary substitution to be valid it has to be made
5th REQUISITE expressly.
And both the 1st heir and the 2nd heir must be LIVING OR AT Q: How is it made expressly?
LEAST CONCEIVED at the time of the death of the testator. 1. By designating it as fideicommissary substitution; or
Because it is very important na naa na’y juridical 2. By expressly providing the obligation to preserve and
personality ang both heirs at the time of death. transmit upon the 1st heir.
Diba, it is death which opens succession, so at the OBLIGATIONS OF FIDUCIARY [1ST HEIR]
time of death, if the heir does not yet have personality, wala Q: So what is the obligation of the 1st heir, the fiduciary [2nd
pa siya na-anak at all, he cannot receive. So, he must be living, par., Article 865]?
or atleast conceived at the time of death of the testator.
To deliver the inheritance to the second heir.
So what cannot be imposed on legitime?
WHEN:
ARTICLE 864. A fideicommissary substitution can never
1. If there is a period, upon the arrival of the period.
burden the legitime
2. If there is none, upon the death of the 1st heir.
POLICY “DEDUCTIONS”
The legitime has to go to the compulsory heir: Q: Can he deduct anything from the inheritance or the
1. without any burden; property?
2. without any condition;
There are allowed expenses:
3. without any charge
4. without any substitution at all, 1. Legitimate expenses;
2. Credits; and
Because if we allow that, it would be, well, the testator
3. Improvements.
could easily circumvent the law on legitimes.
EXCEPT when the testator provided otherwise.
EXAMPLE: “My son will only get his legitime when he pass the
bar exam, unya kabalo gud siya nga bugo kayo to iyang anak, ALLOWABLE DEDUCTIONS; POLICY
so impossible g’yud nga mupasar ug bar exam. It is as if saying The law limits only the deductions to these expenses;
na: Si son dili ka entitled to your legitime. otherwise, it might be also very difficult for the 2nd heir to get
EXCEPTIONS: the property because he can no longer refund the 1st heir his
expenses. So only these expenses ang pwede i-deduct.
1. the concept of Reserva Truncal [which we will discuss
in Article 891]; and WHEN 2ND HEIR ACQUIRES RIGHT TO SUCCESSION; [2ND
2. Prohibition to partition. HEIR’S] RIGHT TO REPRESENTATION
EFFECT OF IMPOSITION OF FIDEICOMMISSARY ARTICLE 866. The second heir shall acquire a right to the
SUBSTITUTION IN GENERAL succession from the time of the testator‘s death, even
though he should die before the fiduciary. The right of the
So the same thing, you cannot burden the legitime with a
second heir shall pass to his heirs.
fideicommissary substitution. So when you impose a
fideicommissary substitution. It is understood na, it is limited As I‘ve said, the 1st heir and the 2nd heir inherit from
only to the free portion. the testator, so what matters is that they are living or at least
conceived at the time of death of the testator.
Example: So the testator instituted A as his 1st heir to ½ of his or invest the same according to secret instructions
estate; but, with the obligations to preserve that estate and communicated to him by the testator.
transmit it after 20 years to B, the 2nd heir.
Remember Article 867, these enumerated situations here,
ILLUSTRATION: they will not take effect (ineffective stipulations):
[A: To preserve & transmit after 20 years, i.e., 2010, to B] 1. A Fideicommissary substitution but it is not made
expressly.
a. So you did not mention na it is a
TESTATOR A B fideicommissary substitution; or
ST
(1 HEIR) (2 ND
HEIR) b. You did not mention that the 1st heir has the
obligation to preserve and transmit, in that
(Predeceased A: 1995)
case, this would not be considered a
fideicommissary substitution,
➢ It could be a simple substitution, or simple institution
of the 1st heir, but definitely it will not be given effect
as a fideicommissary substitution.
2. Provision which contains a PERPETUAL PROHIBITION

TO ALIENATE [2nd par.]
B’s heir/s Take note, par. 2 does not refer to a fideicommissary
substitution. This refers to an institution.
(B’s right transmitted: 1995)
Example: ―I hereby leave to A ½ of my estate, and A cannot
(Delivery: After 20 years. i.e.,
alienate, transfer, convey, or assign this property for as long as
2010)
he lives. He cannot at all alienate. He cannot convey, transfer,
DISCUSSION: transmit, dispose of this property. That is a perpetual
prohibition to alienate.
Q: So, assuming namatay na si testator 1990, now before 20 Q: Is that valid?

years namatay pud si B, so after 5 years pa lang, namatay na si A: That is not valid, because the law only allows a prohibition
B, is there still an obligation on the part of A to deliver? to alienate for a period not exceeding 20 years. Katong gi-
A: Yes, because there is a fideicommissary substitution; but, mention nako ganina, partition to huh—that is different—
patay na man si B? Well, the rights of B will go to his own heirs, prohibition to alienate, that cannot be done.
so we still have to wait for 20years, after that, A will have to “PERPETUA”
deliver to the heirs of B; but, definitely the fact that the 2nd
Perpetual, so meaning forever— dili pwede.
heir died ahead of the 1st heir will not affect the validity of the
fideicommissary substitution. Q: How about if 30 years lang, so is it temporary, because it is
not perpetual, it is for a certain period of time, 30 years, pwede
ARTICLE 867. The following shall not take effect:
ba siya?
1. Fideicommissary substitutions which are not made
A: Pwede, pero up to 20 years lang.
in an express manner, either by giving them this
name, or imposing upon the fiduciary the absolute EXAMPLE:
obligation to deliver the property to a second heir; 1. If it is forever— up to 20 years.
2. Provisions which contain a perpetual prohibition to 2. If it is 30 years—up to 20 years gihapon.
alienate, and even a temporary one, beyond the 3. If it is 15 years—valid siya of course.
limit fixed in article 863; “or ― even a TEMPORARY but BEYOND the limit
3. Those which impose upon the heir the charge of fixed in ARTICLE 863[2nd par.]”
paying to various persons successively, beyond the
limit prescribed in article 863, a certain income or EXAMPLE: The testator left a will, he said, I hereby institute A
pension; as heir to ½ of my estate; and A including his heirs and assigns
4. Those which leave to a person the whole or part of cannot dispose of the property forever
the hereditary property in order that he may apply
Diba, as we said it is not valid if that would be respected, Example: I hereby leave to A ₱1M, and A may invest it
limited lang siya up to 20 years, so ilang forever ma-shorten na according to my instruction which I said to him in confidence.
siya to 20 years. That is not valid, because how could we know nga mao
So if the testator says 30 years, 20 years gihapon. What gyud to ang giingon ni testator, niingion si testator nga: akoa
if he says 15 years, valid siya. daw ni, nga ipalit daw nako ni siya ug anything na gusto nako,
EXAMPLE: Testator died year 2000 so na-adto na kay A ang When in the first place nganong wala na lang ka gibuhat ug heir
property. After 5 years, A died; so, he is succeeded by his child noh? So that‘s not allowed.
B.
Q : Is B obliged to observe the prohibition not to alienate We have no way of verifying kung unsa jud tong
within 15 years? instruction. But, of course, If A is really made the heir and he
A: Yes. Now, na-consume naman ang 5 years, then B is bound will invest it, well, iya na nang choice kay heir man siya, this is
different, because the person to whom the property is left is
to observe the limitation for the next 10 years.
not the heir, but he has to invest it, or use it according to the
Q: B died after 5 years, so he is survived by his child C, is C secret instructions of the testator.
obliged to observe the limitation on the alienation?
NULLITY OF THE FIDEICOMMISSARY SUBSTITUTION—
A: This time no more. EFFECT
Pero 15 years lang man? Yes. But this already exceeds ARTICLE 868. The nullity of the fideicommissary
the limitation in Article 863, meaning it cannot go beyond 1 substitution does not prejudice the validity of the institution
degree, even if supposedly naa pa’y 5 years, pero kung more of the heirs first designated; the fideicommissary clause
than 1 degree na gikan sa 1st heir, so free na si C to dispose of shall simply be considered as not written.
the property. He is not bound to observe the limitation for the
next 5 years. We already discussed what are the requisites for a valid
fideicommissary substitution, however if it turns out that
That 15 years lang man? Yes. But this already excee the those requisites are not present, i.e.,
limit fixed in Article 863.
1. There is no express obligation to preserve or to
transmit, or
[3] Those which impose upon the heir the CHARGE of paying 2. Maybe the 2nd heir dies ahead of the testator or
to various persons SUCCESSIVELY, BEYOND the limit 3. they are not 1 degree related,
prescribed in ARTICLE 863, a certain income or pension: So it is not valid as a fideicommissary substitution,
SUCCESSIVE however the law says, bstitution, however if it turns out that
those reqteon of the heirs 1st instituted.
So weSSIVEwhich impose upon the heir meaning, one
after the other. This will just become a pure and simple institution. The
1st heir will get the property and there is no fideicommissary
Example: A has the obligation to pay a pension or allowance
clause. It shall be considered as not written.
to B, ₱10K per month upon the death of B didto na pud kay C,
upon the death of C didto na pud kay D. Actually the same GRANT OF USUFRUCT
limitation, you cannot go beyond 1 degree. So kay B lang ta ARTICLE 869. A provision whereby the testator leaves to a
kutob. person the whole or part of the inheritance, and to another
“SIMULTANEOUS” the usufruct, shall be valid. If he gives the usufruct to various
persons, not simultaneously, but successively, the
What if simultaneously?
provisions of article 863 shall apply
Example: A has the obligation to give to B, C, and D ₱10K/mo.
ORDINARY INSTITUTION
That‘s not prohibited, it is allowed. Asa ang naa’y limitation
would be katong successive. The same thing: It cannot go Example: The testator leaves ½ of his estate to A.
beyond 1 degree. Ordinarily, to A goes the full ownership— the naked
title and the usufruct, but the testator can actually separate
[4] Those which leave to a person the whole or part of the
hereditary property in order that he may apply or invest the the naked title and the usufruct.
same according to SECRET INSTRUCTIONS communicated to SEPARATE INSTITUTION OVER NAKED TITLE AND USUFRUCT
him by the testator. Example: ampleE INSTITUTION OVER NAKED TITLE AND
USUFRUCTd title and the usufruct, b
So valid na siya, however, in your usufruct [Property], If you can justify that it amounts to a prohibition to
pag mamatay si A or B ma-merge na ang naked ownership ug partition, it can be applied to legitime, but if it is purely a
ang usufruct, ma-extinguish man ang usufruct, so that is prohibition to alienate, you can partition, but lahi naman gud
possible na the testator says, ―I hereby give to A the naked nang partition ug alienate.
title over ½ of my estate, and to B the usufruct, as we have
Ang partition among yourselves lang na siya, among the
mentioned, that is valid. heirs, alienate, meaning you cannot transfer it to another
1. SUCESSIVE—SEPARATE INSTITUTION OVER NAKED person. The law says, it is limited only to 20 years, and we are
TITLE AND SUFRUCT talking here of the free portion.
Example: If the will says, ―After the death of B the usufruct PROHIBITION TO ALIENATE PROHIBITION TO
shall go to C, and then after the death of C, the usufruct shall PARTITION
go to D. Is that valid?
SAME The testator can prohibit the
We have to observe the limitation in Article 863. So asa partition but for a period not
lang kutob? exceeding 20 years.
Ang 1st usufruct is kay B, after B si C. So, diha lang We are talking of the free Applies even to legitimes
kutob. After C, wala na; and, take note 1 degree means portion.
relationship, so meaning parent and child si B ug C. That is the
Alienation, meaning Among the heirs.
only time na pwede ma-apply ang successive institution: 1
transfers to another person
degree pursuant to Article 863.
2. SIMULTANEOUS—SEPARATE INSTITUTION OVER
NAKED TITLE AND SUFRUCT SECTION 4 CONDITIONAL TESTAMENTARY DISPOSITIONS
The same thing as we have discussed, kung dili siya AND TESTAMENTARY DISPOSITIONS WITH A TERM
successive but simultaneous, to A the naked title, to B, C, D, E,
F, unsa pa na kadaghan ang usufruct allowed siya, no
KINDS OF INSTITUTION
limitation.
ARTICLE 871. The institution of an heir may be made
PROHIBITION TO ALIENATE FOR MORE THAN 20 YEARS—
conditionally, or for a certain purpose or cause.
VOID
ARTICLE 870. The dispositions of the testator declaring all
or part of the estate inalienable for more than twenty “INSTITUTION”
years are void. The concept of substitution which we just discussed,
We have already discussed this. The testator can that refers to the free portion.
prohibit the alienation of his property but not for a period So, institution of heirs, also, in general refers to the
more than 20 years. free portion because you don‘t institute compulsory heirs to
Again, Kung mu-ingon siya’g forever it shall be limited the legitimes. As a matter of right they are entitled by law.
only to 20 years; 30 years, 20 years gihapon. That‘s the 4 KINDS OF INSTITUTION
prohibition.
There are 4 kinds of institution under the Civil Code. We have:
PROHIBITION TO ALIENATE
1. PURE AND SIMPLE INSTITUTION:
V.
Here there is no condition, period, or charge at all. Upon
PROHIBITION TO PARTITION the death of the testator, the instituted heir immediately gets
NOTE: disposition declaring all or part of the estate the inheritance.
inalienable, meaning, he cannot sell, he cannot dispose. This Of course, subject to probate of the will, because
is different form the prohibition to partition which we will institution of heirs is done only in testamentary succession, so,
discuss in partition. it presupposes na there is a will and under Article 838 probate
The same pud to siya, the testator can prohibit the is mandatory.
partition but for a period not exceeding 20 years. That applies You cannot invoke any right or obligation out of an
even as well to the legitime. unprobated will; but, once the will is probated because your
institution is pure or simple, your right retroacts, or becomes
Here, we are talking of the free portion.
vested from the moment of death. Diha magstart imong 2. Upon the death of A—
ownership from the moment of the death of the testator. of course it will arrive
because no one is
immortal.
2. CONDITIONAL INSTITUTION:
The institution is subject of condition, which we will
discuss what these conditions are. It will come but we don‘t
know yet when. But still it is
3. INSTITUTION WITH A TERM future and certain. So it is a
The institution can also be made subject to a term or term.
period. Or, A past event unknown to the
4. MODAL INSTITUTION parties can also be a
condition even if you say it is
It can also be made subject to a mode.
a past even. So how does it
KINDS OF CONDITIONS become a future event?
In Obligations and Contracts there are several kinds Where is futurity here?
of conditions. We have:
1. Suspensive; We are actually talking here
2. Resolutory of future knowledge of a
3. Potestative past event.
4. Casual
5. Mixed
Example: There is an
PERIOD:
event— a plane crash— and
1. Suspensive; then, we are not sure if A
2. Resolutory survived in the plane crash.
CONDITION V. PERIOD So we can give this as a
condition:
CONDITION PERIOD
―I will give to you ₱1M if A
A condition is an uncertain survived in the plane crash.‖
and future event upon
which, when we apply this
to succession, the Pero, as of now wala pa ta
demandability or the kabalo kung nag-survive
resolution of testamentary siya, so later on, after 2
disposition depends or a months you may discover
past event unknown to the na naka-survive g’yud diay si
parties. A, so it is a past event but
the knowledge comes only
The characteristic of On the other hand, a term is
in the future so it is a
condition is FUTURITY and characterized by FUTURITY
UNCERTAINTY. and CERTAINTY. condition also.
[That condition will happen It is sure to happen although KINDS OF CONDTITIONS

in the future but you are not we may not know when. 1. SUSPENSIVE CONDITION— it is a condition which must be
even sure if it will happen. It fulfilled before the institution becomes effective.
may happen or it may not
Example: Example: ―If A will pass the bar exam.
happen. So there is futurity
and uncertainty.] 1. On December 30, So that is an event which is not sure to happen.
2018‖— of course it will So, the fulfillment of that condition gives rise to the
arrive. effectivity of the institution. So that is a suspensive condition
2. RESOLUTORY CONDITION—the fulfillment of that not imposed. Therefore, just disregard the impossible
condition extinguishes the institution. condition or the illegal condition and then give effect to the
EXAMPLE: AMPLElfillgive to A the use of my house in Calinan, institution.
Davao City, but when he finds employment [he has to leave].
If you find employment you will have to leave. So Example: Impossible Condition
once that happens, the institution is extinguished.
3. POTESTATIVE— dependent upon the sole will of the heir. I would give this parcel of land to A, if A will become beautiful.
EXAMPLE: AMPLEdent up to A AMPLEdenttate, if he cuts his
What if pangit jud sya? Physically impossible. Will A get the
hair short. inheritance?
That‘s potestative. Wala na tong’ pareha sa Well, A can invoke Art. 873. That (condition) will be considered
Obligations and Contracts na if the condition is suspensive and
as not imposed.
potestative on the part of the debtor, the conditional
obligations shall be void, because it is as if it is illusory, because
if you are the debtor, and the fulfillment of the condition gives
rise to your obligation and it is only within your means,
whether you fulfill or not, you will not fulfill, but here in Example: Illegal Condition
succession you will really fulfill because you will receive the
benefit. So even if it is potestative on the part of the heir, it is I will give 1M to X, if X will kill Z.
valid—so dependent upon the sole will of the heir.
So that is illegal condition.
4. CASUAL— depends upon chance.
5. MIXED— depends partly upon the will of the heir, and Now, if you remember in OBLICON, there's also a provision
partly upon chance. dealing with impossible conditions.
September 23; Part 1 & 2 Claros
ARTICLE 1183. Impossible conditions, those contrary to good

Sept 23 Part 1 – Claros, EJ customs or public policy and those prohibited by law shall
annul the obligation which depends upon them. If the
obligation is divisible, that part thereof which is not affected
IMPOSSIBLE OR ILLEGAL CONDITIONS by the impossible or unlawful condition shall be valid.
What is the effect if the institution is subject to an impossible The condition not to do an impossible thing shall be considered
condition? as not having been agreed upon. (1116a)
ARTICLE 873. Impossible conditions and those contrary to law So, if you remember your OBLICON, when the obligation is
or good customs shall be considered as not imposed and shall subject to impossible condition, it's not only the condition
in no manner prejudice the heir, even if the testator should which annulled it is also the oblicgation. Therefore, there is no
otherwise provide. such obligation.
There are 2 conditions mentioned in Art. 873: Why is it in OBLICON we don't just disregard the condition
just like in Succession, considered as not written?
1. Impossible Condition
2. Those contrary to law / illegal conditions
In Succession, the consideration for the institution is the
generousity or liberality of the testator. Therefore, we can just
Now, the impossibility here it could be before or after the disregard that condition. Because there is something to
death of the testator for as long as it is impossible. It remains support the institution. There is a consideration, which is the
to be impossible of performance. The law says if the institution liberality of the testator.
is subject to impossible condition, it would be considered as
ARTICLE 874. An absolute condition not to contract a first or

In OBLICON, what is the consideration? Is it gratuitous? or subsequent marriage shall be considered as not written unless
Onerous? -Onerous such condition has been imposed on the widow or widower by
the deceased spouse, or by the latter‘s ascendants or
Therefore, if there is an obligation, which is subject to a descendants.
condition, you cannot say that we just disregard the condition
because the underlying consideration is the generousity or
liberality of the creditor. Nevertheless, the right of usufruct, or an allowance or some
You cannot say that in OBLICON, in fact, the condition is made personal prestation may be devised or bequeathed to any
part of the consideration in an obligation. If a consideration is person for the time during which he or she should remain
affected by impossibility or illegality it will affect the very unmarried or in widowhood. (793a)
existence of the obligation. There's nothing else that will
support the obligation as a consideration. That's why in
OBLICON, if there's a condition which is impossible or illegal, What is the rule with respect to a condition not to marry or
the conditional obligation shall be void. remarry?
So, that's the distinction. Example: ―I hereby give 10M if you will not marry, or will not
remarry.
Discussed by LCYE
Q: Is that valid?
MICIANO V. BRIMO
50 PHIL 867 November 1, 1927
GENERAL RULE: No, as general rule it is illegal.
FACTS: He made some partition in his estate, and then he

Why? -Because it encourages people to enter into illicit
made a provision na: ―the disposition shall be governed by
relationships. Is it wrong? Is it wrong to engage in illicit
the Philippine law, not by his national law, he was Turkish; of
relationship?
course, this cannot be given effect.
That's not what the law says. Even if you disagree, our society
symbolizes Marriage as the foundation of the family.
Even if the testator says na, ―if my heirs oppose this
directive—that my estate shall be distributed in accordance
with Philippine Law—the heirs will forfeit their inheritance, so So here, if you will say, I will not marry. No problem! Mag live-
ang imohang institution of the heirs is subject to a condition in nalang ko. So that's why it is not allowed. Although here, the
nga dili nila i-oppose ang provision sa imohang will, law says: Not to have first or subsequent marriage.
ISSUE: Now, if an heir opposes that provision, will he forfeit?
RULING: No, because that condition is illegal. Article 16 of the

Civil Code expressly provides that the intrinsic validity of the
testamentary provision shall be governed by the national law
of the decedent. So, that is actually an illegal condition. It will
be considered as not written, and of course, the institution of How about I will give you 10M if you will not marry X? Is it
[heirs/] the legatee shall be valid . valid? Does if fall under the prohibition?
A: Here we have acts of prohibition are not to Marry or not to

remarry. So, that's different. Malay mo, dili ganahan si testator
THE CONDITION NOT TO MARRY
kay X. So it's his property naman. He can impose conditions so
long as the conditions are not prohibited under the law.
The law says it can be given, devised or bequethed for the time
during which he/she is unmarried. Meaning that usufruct, that
EXCEPTION: If such condition has been imposed on the widow
allowance can already be enjoyed by the spouse, the surviving
by the widow‘s spouse/ widow or widower by the deceased
spouse. So if he/she remarry then he/she will forfeit the
spouse, or by the latter‘s ascendants or descendants.
usufruct or allowance. Actually it's not only the spouse but
anyone.
Example: A and B are spouses.
So, I will give you the usufruct over this property but when you
B —wife, A —husband, marry, you will forfeit. So that is not considered as prohibited.
Because the person already enjoys the property in the first
place. So he has already benefited from that property. He can
A in his will mentioned, ―I hereby give to B a parcel of land [so just choose whether to marry or to continue to receive or
devise] subject to the condition that my wife will not re- benefit from the property.
marry.‖
Condition: If you will re-marry you will forfeit that land.
DISPOSITION CAPTATORIA
That is valid.
ARTICLE 875. Any disposition made upon the condition that
the heir shall make some provision in his will in favor of the
The same thing if a parent ni A ang naghatag of land kay B. testator or of any other person shall be void. (794a)
I will give you a parcel of land provided that you not remarry
if my son, A dies. Are you familiar with this provision? We discussed this before.
This is what we call DISPOSITION CAPTATORIA.
-That is a valid condition. Why? For sentimental reasons.
The family is allowed to keep the property within their line. So, I will give to A a parcel of land, provided that A will also give
to me a car.
so there is a condition. It's not actually purely out of liberality
For example the husband, what's the reason nganong pwede
because you expect something in return.
nya i-prohibit?
-Mamatay sya, syimpre makuha na ni B ang property and if
mamatay na si A, B is allowed to remarry. It violates the basic or essential requisite of a will that it should
be UNILATERAL.
If B will remarry, the very same property from the deceased
spouse will now form part of the absolute community or the
conjugal partnership of gains with the new spouse. So swerte Here, the disposition becomes bilateral.
kaayo si new spouse. Gikan sa previous one, by reason of
marriage maadto to sa lain. So, pwede sya. The law says, the
decease spouse or the family of the decease spouse can Now the bilateral disposition here must appear in the will
actually impose a condition not marry or remarry. Otherwise, itself. Because for example, A made will. In his will he said I give
the surviving spouse will forfeit the inheritance. to B 1 hectare agricultural land.
And then B in his will also says, I give to A my house and lot in
Bolton st. Davao City.
What kind of will we have here? It's what we call a reciprocal

"Right of usufruct, or an allowance or some personal
or twin will. Are these wills valid? Yes, they are not prohibited.
prestation may be devised or bequeathed to any person for
They are not joint wills and they do not constitute Dispostion
the time during which he or she should remain unmarried or
Captatoria.
in widowhood."
you will fulfill it. So potestative on the part of the heir, legatee
What if in secret nagsabot si A og si B na tagaan tka sa akoang or devisee that would be valid.
lang ha basta tagae ko sa imung house and lot. So mao na
ilahang sabot. What is the rule under Art. 876?
Would that will be valid? -Yes. Because for it to be considered GENERAL RULE: The law says, ―as soon as the heir learns of
a disposition captatoria, the bilateral disposition must appear
the testator‘s death. [After death na.]
in the will itself.
Here we just have a case of a twin will or a reciprocal will.
Why? Because it is just purely potestative on his part. It's very
easy to fulfill. And even if he fulfills it but he dies ahead of the
POTESTATIVE CONDITION testator, he will not get the enheritance or the testator
revokes the will. So even if there's compliance, it's still useless.
ARTICLE 876. Any purely potestative condition imposed upon

an heir must be fulfilled by him as soon as he learns of the
testator‘s death. EXCEPTION: This rule shall not apply when the condition
already complied with cannot be fulfilled again.
This rule shall not apply when the condition, already complied
with, cannot be fulfilled again. (795a) That‘s the exception. If during the lifetime of the testator
nacomply na diay siya ni heir and it is of such manner or
character that he cannot comply with it again.
What is a potestative condition? -Going back to OBLICON, it is

a condition where it is purely dependent upon the will of Example: Ang condition is that iyang kuluton iyang buhok. So
either party. Whether the debtor or the creditor. kung iya nang gi-kulot during the lifetime of the testator can it
be fulfilled again? Depende, kung halimbawa nawala to iyang
kulot, so magpakulot syag usab. Pero kung wala pa then it's
Are potestative conditions imposed in obligations, valid? Yes, already complied with.
as long as it is not potestative and suspensive on the part of
the debtor. Why? Because if it is potestative, suspensive on the
part of the debtor chances are the debtor will not fulfill that As to the manner of compliance, authority say that mere
condition. Nobody wants an obligation. substantial compliance is sufficient. Why? Because, by
subordinating the fulfillment of the instituion to a potestative
condition which is within the control of the heir, meaning the
Example: I will pay you 10M if I will decide to cut my hair. Well, testator really has confidence on the heir so mere substantial
surely, most probably, the debtor will not cut down his har. compliance would be sufficient.
Bahalag unsa na na kataas diha basta dili lang sya kabayad og
10M. So it tends to make the obligation illusory, that's why it
also makes the conditional obligation void. CASUAL AND MIXED CONDTION
But any other potestative condition, on the part of the creditor ARTICLE 877. If the condition is casual or mixed, it shall be
(potestative resolutory on the part of the debtor) these are sufficient if it happen or be fulfilled at any time before or after
valid. the death of the testator, unless he has provided otherwise.
How about in Succession? 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
Well, if you are an heir and if it means that your institution will knowledge thereof, the condition shall be considered fulfilled
become effective if you fulfill that potestative condition then only when it is of such a nature that it can no longer exist or be
complied with again. (796)
comply with it again. Kay kabalo man sya na nahitabo na na

sya pero gusto gihapon niya na iimpose ang condition.
Casual Condition— depends upon chance. (E.g. if it will rain,

if there will be a typhoon) Example 1: Winning the lotto. The (heir) nakadaog na diay og
lotto. And the testator know that he(heir) already won and he
still provided that (condition) in his will, so meaning gusto pa
Mixed Condition— depends partly upon chance and upon the ni testator na makadaog jud sya og lotto.It is something that
will of the heir. (E.g. Winning the lotto) can still be done.
Unless it is substantially made sure that it cannot be complied
Chance - Includes acts of 3rd persons. with again.
Example: passing the bar exam, Example 2: Becoming a lawyer. So at the time when the
condition was imposed, the heir was already a lawyer and the
testator knew that he was already a lawyer. Does it mean that
It is actually a mixed condition. Kay kung mu-ingon ka'g casual the heir has to become a lawyer again? Can you take the bar
lang, so, ayaw na lang mo pag-study, wala man diay pulos kay exam again?
depends upon chance man g’yud. No—partly upon chance and
Well, you can take the bar exams twice, thrice, kung wala pa
partly upon will— kay kung dili mo mag-study, dili g’yud mo
ka nakapasar. Pero kung nakapasar naka, I don't think you will
mupasar 99.9%.
be allowed to take the bar exam again.
WHEN WILL IT BE FULFILLED?

SUSPENSIVE TERM
The law says:

ARTICLE 878. A disposition with a suspensive term does not
prevent the instituted heir from acquiring his rights and
[1] Any time before or after the death of the testator. transmitting them to his heirs even before the arrival of the
term. (799a)
Why? Unlike potestative conditions it is actually harder to

fulfill this condition. Because it has the element of luck. And it Before that, we first discuss the what is a suspensive term.
would be unreasonable to subject the heir to such kind of
uncertainty.
What is a suspensive term? -the same in OBLICON, it is a
So if he has already complied with it, well, anyway the real future and certain event which will necessarily come
consideration is the liberality of the testator and he has already although at times we may not know when.
complied with it before or after the death of the testator. That
would be suffiecient.
Examples:
[2]For example, the condition is already complied with. It has 1. I will give to you 10M, 2 years after my death. - 2
already existed at the time of the death of the testator. What years after the death of the testator. It will necessarily
is the rule? come.
2. I will give you 10M, upon the death of X. -Is that a
term or a condition? Death of X. Will it happen?
The rule is that: If the testator is unaware of the compliance, Certain. Unless X is immortal, X will surely die. So that
it shall be deemed as complied with. Because the is a period or term. Although we may not know when.
presumption is had the testator known that it was complied Going back to a condition.
he would not have imposed that condition.
What is a condition? -It is a future and uncertain event.
[3] If the testator knew at the time of making the will, that
fulfillment of the condition, it means that the heir has to
When an institution is subject to a suspensive condition, the Unlike in Suspensive condition, if heir dies before fulfilling the
condition has to be fulfilled first, before the inheritance condition wala jud syat makuha. Ultimo iyahang heirs walay
becomes effective. Before the institution be given effect. makuha because in the first place the institution never became
effective. Becaus the condition was not fulfilled.
So what if before fulfilling the condition, the heir died?

I will give to you my house and lot in Mintal, Davao City if you Here in a period or term, there's already a right of the
instituted heir, legatee or deivsee but it is just he
pass the bar exam. And then before that happens, the heir
demandability of the inheritance, legacy or devise which is
died. What are the rights of that heir?
being differed because of the period.
Sa condition dili lang ang demandability, kung dli and
Can he transmit his rights to his own heirs? -No effectivity mismo.
Because the effectivity itself of the institution is made
subordinate to the fulfillment of the condition. Without that
condition having been fulfilled. The inheritance or the Are we not in conflict with what we discussed before that
insofar at the free portion is concerned, there is no right of
institution will not be given effect.
representation? Are the heirs of A here representing him? Is
this an exercise of the right of representation?
How about in a suspensive term?
-This is different because the heir did not predecease the
The testator said: I will give to A 10M, 2 years after my death. testator. He survived the testator, although he died before the
So si A ang Legatee. A will get 10M 2 years after the death of expiration of the term. So naa najud syay right. Which was
the testator. vested from the moment of the death of the testator and when
the he (heir) died that right pass on to his own heirs. So it is not
That is a suspensive term. He will have to wait for 2 years
the right of representation.
before he can get the legacy.
CAUCION MUCIANA
what of the dies, 6 months after the death of the testator? Will
he have rights? -Yes!
ARTICLE 879. If the potestative condition imposed upon the
heir is negative, or consists in not doing or not giving
That is provided under Art. 878. It says, it does not prevent the
something, he shall comply by giving a security that he will not
instituted heir from acquiring his rights and transmitting them
do or give that which has been prohibited by the testator, and
to his heirs even before the arrival of the term.
that in case of contravention he will return whatever he may
have received, together with its fruits and interests. (800a)
So meaning, in that case, maghulat lang gihapon ta og 2 years
because that is the term provided for in the will of the testator.
After 2 years, because A already died, who will get the So Art. 879 deals with a negative potestative condition. It is
inheretance? -It will be the heirs of A. something which is within the control of the heir.
Another Example: Example: I will give you 10M if you will not cut your hair. That
is a negative potestative condition.
Year 2000 - Death of the testator
Will - 2M shall be given to A 2 years after the death of the
testator -- This is a period, the 2 years. The problem with that kind of institution is when do we give
the 10M? When are we going to be so sure that the legatee
will not cut his hair. The only time that we will be sure is
What if 6 months after the death of the testator, A died. What mamatay na sya. Wala niya gi-cut iyang hair. It makes the
are the rights of A? Because A already died, after 2 years (the institution, the legacy or devise useless.
period provided for) his heirs will get the 2M.
So here, actually the institution becomes effective

immediately. Only that the heir, legatee or devisee has to post If si A namatay, nga wala pa niya napakasalan, it means that
a bond. A bond (to secure) that will not do that what is the condition will not be fulfilled. So what happens now? -The
prohibited by the testator. estate shall be placed under administration.
So kung buhaton niya to (prohibited act) the bond will answer.
The bond here is what we call CAUCION MUCIANA.
What if it becomes certain that the condition will never be
fulfilled, that is the end also of the administration because the
So in case of contravention, you will return whatever you that property will now be given depending on whether there is a
you haved received together with the fruits and interest. So substitute or if the right of representation is proper or
that is the purpose of the bond. accretion is proper or lastly, by intestacy/ legal succession.
WHEN ESTATE SHALL IN THE MEANTIME BE PLACED UNDER ADMINISTRATOR

ADMINISTRATION
ARTICLE 881. The appointment of the administrator of the

ARTICLE 880. If the heir be instituted under a suspensive estate mentioned in the preceding article, as well as the
condition or term, the estate shall be placed under manner of the administration and the rights and obligations of
administration until the condition is fulfilled, or until it the administrator shall be governed by the Rules of Court.
becomes certain that it cannot be fulfilled, or until the arrival (804a)
of the term.
This will be discussed in your Special Proceedings. The

The same shall be done if the heir does not give the security procedure will be under Rule 78 to Rule 79 of the Rules of
required in the preceding article. (801a) Court
This article refers to that situation when the estate shall be [1] “EXECUTOR”—if a person leaves a will and he appointed
placed under administration. Going back to article 879, somebody to take charge of his estate, that person is called an
negative potestative condition. So dapat mag bond. executor, kung babae siya, executrix.
Halimbawa wala ka bond si Heir. What will happen to that
property supposed to be given to the heir? It will be placed
under administration until he shall be able to give the bond. [2] ADMINISTRATOR WITH A WILL ANNEXED
Or if the institution is subject to a suspensive condition or Example: he left a will but he did not designate the person who
suspensive term like I will give you a parcel of land. I will give will administer or take charge of his property pending
you this land in Calinan, Davao City 2 years after my death. So distribution, that person is called an administrator with a will
hulaton nato ang 2 years, the estate for the meantime shall be annexed.
placed under administration.
[3] ADMINISTRATOR
Or suspensive condtion, I will give you this land if you will pass
the bar exams. Wala pa man sya naka-pasa, so the property
Example: wala jud siya’y will and then there is a need to
will be placed under administration. Or it becomes very clear
appoint somebody to oversee kay dako ang estate, naa’y
that condition will never be fulfilled. Or until it becomes clear
debts, prior to distribution to the heirs, that person appointed
that the condition shall never be fulfilled, the estate shall be
is an administrator or administratrix.
placed under administration.
For example: I will give you this land in Calinan, Davao City if
you marry A. Samtang wala pa sila nag marry ni A, the property
shall be placed under administration.
MODAL INSTITUTION statement in the institution of these instances mentioned,

they will not be considered as conditions.
What do we mean by "they will not be considered as
ARTICLE 882. The statement of the object of the institution, or
conditions"? -Meaning the effectivity of the institution will not
the application of the property left by the testator, or the
be made to subject to the performance of these provisions. If
charge imposed by him, shall not be considered as a condition
it is a condition, the heir will first apply the money to this
unless it appears that such was his intention.
particular purpose before he can get inheritance. He will first
has to comply with the charge before we can get the
That which has been left in this manner may be claimed at inheritance. That is if it is condition.
once provided that the instituted heir or his heirs give security But if it's a mode, it is a prerequisite for the effectivity of the
for compliance with the wishes of the testator and for the institution.
return of anything he or they may receive, together with its
fruits and interests, if he or they should disregard this
obligation. (797a) Example: You don't have to give 5% first to X before you can
get your inheritance. You already get the inheritance and you
have the obligation to give 5% to X. But if you will not comply,
Article 882 talks of modal institution so there is a mode then you will forfeit the inheritance.
imposed in the institution.
When will there be modal institution: In a MODE, as long as the heir gives the bond or the security,
[1] When there a statement of the OBJECT of the institution; he can already get the inheritance. So it's not like a condition.
Example: I will give to A 10M to used for his review for the Bar Rabadilla vs. Court of Appeals
exams.
Facts:
[2] There is a statement of the APPLICATION of the property;
Aleja Belleza executed a will.
or,
A codicil was appended to it wherein Dr. Jorge Rabadilla was
instituted as a devisee of a parcel of land.
Example: I will give to A 10M for the rehabilitation of his house
The Codicil contained the following provisions:
which was razed by the typhoon.
"FIRST
[3] imposition of a CHARGE.
I give... the following property owned by me to Dr. Jorge
Example:I will give to B this parcel of land provided that 5% of
Rabadilla
the income of this land every year shall be given to X. So, this
is an imposition of a charge. xxx
So this is what we call Modal Institution
FOURTH
When that is the tenor of the institution, when we sa MODAL [a] ....It is also my command, in this … Codicil, that should I die
it is OBLIGATORY. So it has to be performed by the heir, legatee and Jorge Rabadilla shall have already received the ownership
or devisee. of the said Lot … also at the time that the lease of … Guanzon
of the said lot shall expire, Jorge Rabadilla shall have the
What is the consequence if the heir, legatee or devisee does
obligation until he dies, every year to give to Maria Marlina
not comply with the mode?
Seventy (75) (sic) piculs of Export sugar and Twenty Five (25)
-The heir, legatee or devisee forfeits the inheritance. piculs of Domestic sugar, until the said Maria Marlina dies.
The law says "shall not be considered as condition" So the
statement of the object, the application of the property or the
FIFTH
charge imposed shall not be considered as condition. Unless it
appears that such was the intention. Meaning if there is a
[a] Should Jorge Rabadilla die, his heir to whom he shall give descendants of the testatrix did not come fom the predecease,
[said] Lot, shall have the obligation to still give yearly, the sugar incapcity or repudiation. So this is not simple substitution.
as specified in the Fourth paragraph of his testament, to Maria
Marlina on the month of December of each year.
Issue: WON this is a case of Fideicommissary substitution.
SIXTH
Held: It was agrued that Dr. Rabadilla was a first heir and the
I command, in this … (Codicil) that the [said Lot], in the event near descendants of the testatrix were the 2nd heirs in a
that the one to whom I have left and bequeathed, and his heir fideicommissary substitution. The SC said this is not a case of a
shall later sell, lease, mortgage this said Lot, the buyer, lessee,
fideicommissary substitution. Because the requisites of
mortgagee, shall have also the obligation to respect and
Fideicommissary substitution are not present.
deliver yearly 100 piculs of sugar to Maria Marlina, on each
month of December, SEVENTY FIVE 75 piculs of Export and 25
piculs of Domestic, until Maria Marlina shall die, 1. In a fideicommissary substitution, the first heir reserve
lastly should the buyer, lessee or the mortgagee of this lot, not and transmit the property to the 2nd heir. Let's assume that
have respected my command in this Codicil, Maria Marlina, Dr. Rabadilla is the first heir. Does he have the obligation to
shall immediately seize this [said] lot from my heir and the reserve and transmit the property to the 2nd heir? When you
latter's heirs, and shall turn it over to my near desendants, (sic) reserve, meaning, you cannot even alienate or dispose of the
property. Was Dr. Rabadilla here prohibited from disposing the
and the latter shall then have the obligation to give the piculs property? No, because it was mentioned in the codicil that he
of sugar until Maria Marlina shall die. could sell the land but the buyers are also bound by the same
obligation to deliver 100 piculs of sugar to Belleza. So that
I further command in this Codicil that my heir and his heirs of requisite was not present.
this lot, that they will obey and follow that should they decide
to sell, lease, mortgage, they cannot negotiate with others
than my near descendants and my sister."
2. In a fideicommissary substitution, the first heir and the
second heir should not go beyond 1 degree. Here, was there
Pursuant to the same Codicil, the subject lot was transferred even a relationship between Dr. Rabadilla and the supposed
to the deceased, Dr. Jorge Rabadilla. 2nd heirs? There was none.
Dr. Jorge Rabadilla died and was survived by children Johnny
(petitioner), et. al., 3. In a fideicommissary substitution which is am indirect
Maria Marlena brought a complaint against the heirs of Dr. substitution, the rights of the 2nd heir are certain. In this case
Jorge Rabadilla, to enforce the provisions of subject Codicil. are the rights of the descendants of the testatrix certain? It
The Complaint alleged that the defendant-heirs violated the was provided in the codicil that should Dr. Rabadilla not
comply with the provisions, the property shall be ceased in
conditions of the Codicil.
favor of the near descendants of the testatrix. So not certain.
Only when Dr. Rabadilla will not comply with the provision.
Issue: Is this a simple substitution? Why was this issue was
raised?
So clearly, it is not a case of Fideicommissary substitution.
Held: This is a case of simple substitution. Because Dr.

Rabadilla was the one originally instituted and he will be Issue: WON it is conditional institution.
substituted by the near descendants of the testatrix. If Dr.
Rabadilla will not be able to comply with the provisions the Held: When we say conditional institution, the institution shall
land shall be ceased by the near descendants of the testatrix. not be effective until the heir, legatee or devisee shall have
So, is it a case of simple substitution? The SC said that it is not fulfilled the conditions. Are those statements mentioned by
a case of simple substitution. the testatrix in her will, conditions? The SC said no. It does not
When we say substitution the vacancy is caused by appear from the will that effectivity of the devise to Dr.
predeceased, incapacity or repudiation. Here the event which Rabadilla is made subordinate to the provisions of the will.
will give rise to the property being ceased by the near
favor of a suggestion in case of doubt. Because if there is no

In fact the property from where he would derive the sugar, to doubt, we do not interpret.
be delivered to Belleza will be taken from the land devised to
him. So how can he comply to that if he was not given
So for example, going back to the will of the testatrix, naa syay
possession the land the first place. So, there was no element gibutang: "Dr. Rabadilla should deliver 100 piculs of sugar for
here of uncertainty. It was intended to be effective every year to Belleza." mao ra nay nakabutang sa will and then
immediately for as long as required, Dr. Rabadilla will post a Dr. Rabadilla did not comply. Will he forfeit? How do we know
bond because that is a requirement in a modal institution. that it is a mode, that it is obligatory? Kung naa poy
consequence. In this will, it was mentioned that you will forfeit
The SC here also clarified that in case of doubt whether the the inheritance, the property shall be ceased in favor of the
institutional or subject to a mode, how do we interpret the nearest descendants of the testatrix. But without that
doubt? Between a condition and a mode which is more in statement, what shall we do? Then we construe that as
keeping with the concept of liberality of the part of the suggestion or advice.
testatrix?
-It will be the mode. Because in a modal institution, the Modal Institution
institution is effective immediately whereas in a condition you
still have to fulfill the condition. In a modal institution, the
rights are certain to get the property only that he has to post a Article 883. When without the fault of the heir, an institution
bond. But in a conditional institution, it is not certain. You referred to in the preceding article cannot take effect in the
cannot insure that even if you would post a bond. It may or exact manner stated by the testator, it shall be complied with
may not happen. But unlike a conditional institution, modal in a manner most analogous to and in conformity with his
institution is obligatory. So the instituted heir should comply wishes.
with what is provided for in the will.
If the person interested in the condition should prevent its

In a conditional institution, it's not really obligator in the sense fulfillment, without the fault of the heir, the condition shall be
that sometimes its beyond the control of the heir. It may or deemed to have been complied with.
may not happen.
This article refers to a MODAL INSTITUTION.

We resolve the doubt in favor of MODE.
We discussed Potestative condition, the mode of fulfillment

So here, it is really a MODAL institution. Dr. Rabadilla failed to should be substantial lang on the part of the heir.
comply with the provisions of the will then it would mean the
If it's casual or mixed, the kind of compliance is actually strict.
forfeiture of the devise in favor of the descendants of the
Because by subordinating the fulfillment of the condition to
testatrix.
something beyond the will, beyond the control of the heir, the
authorities say that testator did not really have that much
Now, between a MODE and a SUGGESTION, how do we confidence in the heir. It has to be strict.
interpret? Like you are not sure if what has been provided in Here, Modal Institution, how should that be complied with? -
the will are modes or merely suggestions. Go back to the supposedly strict, but without the fault of the heir the manner
principle on what Succession is all about. It's all about the mentioned by the testator cannot really be complied with
liberality or generousity of the testator. exactly, then the most analogous manner.
Asa may mas dool? -SUGGESTION.
Example: I will give you 1M for your plastic surgery, para
Sa Mode, even if effective immediately, but it is obligatory. So mugwpa ka. And then gisulayan pud niyag plastic surgery pero
if you don't comply, that means you forfeit the inheritance. In wala jud tay mabuhat kay dili jud kaayo sya gwapa. Okay na na
a SUGGESTION, even if you will not comply, you will not forfeit. sya. Analogous manner.
So as between the suggestion and a mode, we interpret in
In a modal institution, there is an obligation imposed of in the Institution Subject to a Period

heir and there is a consequence because if the obligation is not
complied with, it means the forfeiture of the inheritance.
Article 885. The designation of the day or time when the
How should the heir comply with the obligation? As a general
effects of the institution of an heir shall commence or cease
rule, it shall be complied with in accordance with the intention
shall be valid.
of the testator. If it is stated in the will, then it should be
complied with in the manner stated in the will.
In Article 883, it says that – how about if the mode or obligation In both cases, the legal heir shall be considered as called to the
cannot be complied with in the exact manner stated by the succession until the arrival of the period or its expiration. But
testator and it is without the fault of the heir? The law says, in the first case he shall not enter into possession of the
analogous to or in conformity with the wishes of the testator property until after having given sufficient security, with the
or actually, substantial compliance. intervention of the instituted heir.
If for example, the person interested in the condition such as
the legal heirs, they prevent the fulfilment of the condition,
This refers to an institution subject to a period.
then it shall be deemed complied with. Just like in obligations
and contracts, constructive fulfilment. It is as if the condition
was complied with. Kinds of Period:
When you say period, it happens in the future and it will
Article 884. Conditions imposed by the testator upon the heirs happen. So futurity and certainty.
shall be governed by the rules established for conditional It can be:
obligations in all matters not provided for by this Section.
1. Suspensive Period – when we have to wait for the arrival of

We already discussed before that the same conditions the period before the instituted heir can demand for his
applicable in Obligations and Contracts are also applicable inheritance
institution of heirs unless there is a specific provision or there
is a different interpretation or application in Succession.
2. Resolutory Period – the institution is immediately effective
but upon the arrival of the period, the institution ceases. The
There are provisions under the New Civil Code governing heir will have to return what he has received by reason of the
conditions imposed in an institution but the same rules also in institution.
Obligations can apply as long as they are not contrary to the
provisions in Succession. In all matters not provided for in the
section in Succession, then the laws in Obligations and That‘s the effect of suspensive and resolutory period as
Contract governing condition shall apply. discussed in the 2nd paragraph of Article 885.
But remember for example in Obligations and Contracts if an Prior to the arrival of the period, what should happen to the
obligation is subject to an impossible condition, the inherited property? It shall be placed under administration.
conditional obligation is void. But in Succession, when the
institution is subject to impossible condition it shall be deemed
as not written. The institution shall still be effective. Resolutory - Heir must post a bond. When the term arrives,
when the period arrives he will forfeit the inheritance. That will
give the other heirs the security that you will not destroy the
From 2018 TSN: property and nothing would be left to them when the period
What prevails if there is a conflict between the provisions in arrives.
Obligations and Contracts and in Succession? We follow the
provisions in Succession because we are talking of institution.
In all matters not covered by the provisions of Succession, the
provisions of Obligations and Contracts can apply.
-That is the portion reserved for the compulsory heirs. It

PRIORITY: (ISRAI) really depends who are the compulsory heirs.
1. Institution
Therefore di niya pwede i-donate sa uban because that will
2. Substitution
diminish the legitime of his compulsory heirs. Can he sell?
3. Representation That's different. Because when you sell, you get something in
4. Accretion return. As we discussed before, during the lifetime of the
decedent the heirs only have an inchoate right.
5. Intestacy
cannot impugn those sales made by the decedent. Maybe of
they alleged that it is fictitious, absolutely simulated. Well,
In so far as an institution subject to a resolutory period is they can question it upon the death of the testator. Not during
concern, again as we said it is immediately effective but of the lifetime of the testator. Because again inchoate pa iyang
course sooner or later it will end because the extinguishment right.
is subject to a resolutory period. Dili na siya iyaha na dyud
So what if it is simulated? wala pa man pud kay legitime to
because it is subject to a period.
speak of kay wala pa man pud namatay si testator. Malay mo,
After the Resolutory period the property (inheritance) will go una ka mamatay. So you will not receive any legitime. So again
to: Substitution if there is a substitute. Representation if it is that is on the premise na that is not really a sale.
proper. Accretion if it is proper. If wala, to the legal heirs. So
Pero kung sale jud sya, it can be questioned but the sale will be
there should be a security to insure that the heir will receive
sustained. If it is really a sale because it is within the right of
something after the expiration of the period. the decedent to dispose of his property. If it is a donation, then
that donation will be collated.
What happens if upon the arrival of the period, the heir already Actually the law, safeguards the legitime of the compulsory
dissipated or destroyed the inheritance? That‘s why there is a heirs. So there are several mechanisms under the law on
requirement of giving a security. So that the security will succession which are intended to preserve the legitime.
answer if the property inherited is already gone or destroyed
or has deteriorated at the time of the arrival of the resolutory
period. 1. Collation - Again, if the testator during his lifetime,
donated all or most of his properties the law on
collation will insure that the legitime is preserved.
Upon the arrival of the resolutory period, the institution will Because collation requires that the values of those
end and asa nato ihatag ang property? No longer for properties donated shall be brought back, added back
administration. We know that it will not go to any institute to the estate at the time of death.
heir. This time, it will be given to the legal heirs unless there is
a substitution, representation, accretion. Last is, intestacy. 2. Preterition - If a compulsory heir in the direct line is
Now we go to Legitimes. This is a very important provision. omitted in the will, the institution of heirs shall be
Usually ang mga away tungod ani. What is the legal definition annulled. So there the legitime of the omitted
of legitime? compulsory heir will still be preserved. Not only his
SECTION 5 Legitime legitime but the estate shall be distributed by legal
succession.
Article 886. Legitime is that part of the testator's property

which he cannot dispose of because the law has reserved it for 3. Disinheritance - You cannot just disinherit your child,
certain heirs who are, therefore, called compulsory heirs. because you don't like her boyfriend. There has to be
a ground for the valid disinheritance. If the
disinheritance is based on the ground not provided
What is legitime? for by law, then the law on disinheritance requires
that the invalidly disinherited heir shall be given.
-Part of the testator's property which he cannot dispose of
because the law has reserved it for compulsory heirs.
4. Intestate Succession - When supposedly they are not
discussing the legitime anymore, kay ang legitime
man gud, as a general rule that is in testamentary Here we observe the rule on proximity. So kung ANAK, unya
succession. In fact, lahi ang legitimes, lahi pud ang naay mga APO, those who are one degree excludes those who
legal shares. So you have to memorize what are are 2 degrees away. Unless the right of representation applies.
legitimes of the compulsory heirs, surviving alone and
surviving with other compulsory heirs.
(2) In default of the foregoing, legitimate parents and
ascendants, with respect to their legitimate children and
You also have to memorize the legal shares of the legal heirs descendants;
surviving alone and suriving with other heirs. But still, even in
legal legal succession, the children and the spouse should not -Kung walay legitimate children and descendants, then we
be given shares which are lesser than the legitime. have legitimate parents and ascendants. So remember, kung
naa pay apo bisan walay anak, the parents are excluded.
Who are the compulsory heirs?
The descending line is favored over those in the ascending line.
Article 887. The following are compulsory heirs:
We follow here the law of Gravity. Pababa. Kung walay

(1) Legitimate children and descendants, with respect to their descendants, kung wala jud, didto pa mu-enter to the picture
legitimate parents and ascendants; ang parents or ascendants.
(2) In default of the foregoing, legitimate parents and
ascendants, with respect to their legitimate children and
descendants; (3) The widow or widower;
(3) The widow or widower;

(4) Acknowledged natural children, and natural children by -Kani sila they concur with children and legitimate parents.
legal fiction;
(5) Other illegitimate children referred to in article 287. (4) Acknowledged natural children, and natural children by
legal fiction;
Compulsory heirs mentioned in Nos. 3, 4, and 5 are not (5) Other illegitimate children referred to in article 287.
excluded by those in Nos. 1 and 2; neither do they exclude one
another.
-Wala na ni sila. Kay sa Family Code, we only have legitimate
children and illegitimate children. According to the SC, Marital
In all cases of illegitimate children, their filiation must be duly and non-marital children. Wala naman na sa atoang civil code.
proved. So legitimate og illegitimate children sa ta.
The father or mother of illegitimate children of the three Under the Old Civil Code, illegitimate children did not have
classes mentioned, shall inherit from them in the manner and successional rights. They were only entitled to support. Pero
to the extent established by this Code. karun naa na. So illegitimate children and Legitimate children.
You should know who are these compulsory heirs. They're the
ones entitled to their legitimes. Please remember, the law says: "In all cases of illegitimate
children, their filiation must be duly proved." So it doesn't
mean that you are an illegitimate child, entitled naka to inherit.
The law says: (This is the order) Dapat, you have to prove your filiation.
(1) Legitimate children and descendants, with respect to their
legitimate parents and ascendants;
You must be able to prove that they have been acknowledged
-So Legitimate children and then mga apo, mga apo sa by their parents, putative parents as the illegitimate child.
tuhod,mga apo sa lapa-lapa. That's why, insofar as the inheritance is concerned, dehado
pud jud ang illegitimate child because:
1. Ang ilahang sharing is different. Illegitimate = 1/2 of In the absence of the foregoing evidence, the legitimate
the share of the legitimate filiation shall be proved by:
2. Burden of proving the acknowledgement before they (1) The open and continuous possession of the status of a
can inherit. legitimate child; or
(2) Any other means allowed by the Rules of Court and special
So here, the legitimate children and the descendants, the laws.
suriviving spouse and the illegitimate children are called
First paragraph,we call this as primary evidence. Second
PRIMARY COMPULSORY HEIRS.
paragraph, secondary evidence.
Why are they called Primary Compulsory Heirs? Because they
"Any other means allowed by the Rules of Court." -Unsa man
are not excluded by the presence of other compulsory heirs.
tong allowed by the Rules of Court?
Ang parents and other ascendants, they are callled
1. Rule 130 sec. 39. Act or declaration about pedigree
SECONDARY COMPULSORY HEIRS.
and
Why? Because they are excluded by the presence of legitimate 2. Rule 130 sec. 40 Family reputation relating to
children and descendants. pedigree. Mga baptistmal certificate, mga family
So let's dicussed the principles laid down in ILANO vs. CA. bible, inscriptions in the monuments, tombstones,
etc,
How about DNA evidence? -That's also allowed under the
ILANO vs. CA, February 23, 1994 ROC. Ang DNA evidence ma-belong na sya sa Secondary
evidence.
The SC said here that illegitimate children are under the law What is the distinction if you are an illegitimate child and you
are already entitled to legitimes but it doesn't follow that only have the secondary evidence?
because of their relationship they can already insist on sharing - Under175 of the Family Code, you cannot prove the
from the estate of the decedent. So as discussed by the SC: " filiation under the 2nd paragraph of Art. 172 of the FC
the rights of an illegitimate spring not from the filiation or if the putative parent has already died.
blood relationship but from his acknowledgment by the
parent. In other words, the rights of an illegitimate child arose So dapat if wala kay birth certificate na pinirmahan sa
not because he was the true or real child of his parents but imung parents, wala kay admission sa public instrument
and didto ra ka continous possession like in this case of
because under the law, he had been recognized or
Uyguangco v. CA, G.R. No. 76873, October 26, 1989.
acknowledged as such a child."
So mao na imung basis.
September 27; Part 1 & 2 Piodos
In relation to that, how do you prove acknowledgement of an

illegitimate child? -Art. 175 FC. Let’s discussed the case of Uyguangco v. CA, G.R. No.
Art. 175. Illegitimate children may establish their illegitimate 76873, October 26, 1989.
filiation in the same way and on the same evidence as
legitimate children. xxx Q: How can an illegitimate child prove his illegitimate filiation?
What Article in the Family Code?
So we refer to Art. 172, which provides: A: Art. 175. Illegitimate children may establish their
Art. 172. The filiation of legitimate children is established by illegitimate filiation in the same way and on the same evidence
any of the following: as legitimate children. xxx
(1) The record of birth appearing in the civil register or a final

judgment; or So the same for both kinds of children.
(2) An admission of legitimate filiation in a public document or
a private handwritten instrument and signed by the parent
Q: Now, how can legitimate children prove their filiation?
concerned.
What does Article 172 provides?
A: Art. 172. The filiation of legitimate children is established by on these kinds of evidence.
any of the following:
(1) The record of birth appearing in the civil register or a
That’s the rule with respect to illegitimate children.
final judgment; or
(2) An admission of legitimate filiation in a public
document or a private handwritten instrument and signed by Bernabe v. Alejo, GR. No. 140500 Jan. 21, 2002
the parent concerned. Facts: The late Fiscal Ernesto Bernabe allegedly fathered a son
with Carolina Alejo. The son was born on September 18, 1981
and was named Adrian Bernabe. Fiscal Bernabe died on August
In the absence of the foregoing evidence, the 13, 1993 leaving Ernestina as the sole surviving heir. Therafter,
legitimate filiation shall be proved by: Carolina in behalf of Adrian filed the aforesaid complaint
praying that Adrian be declared as acknowledged illegitimate
(1) The open and continuous possession of the status of
son of Fiscal Bernabe. The RTC dismissed the complaint ruling
a legitimate child; or that under the provision of the Family Code, the death of the
(2) Any other means allowed by the Rules of Court and putative father had barred the action. On appeal, the Court of
special laws. Appeals ruled that in the interest of justice, Adrian should be
allowed to prove that he was the illegitimate son of Fiscal
Bernabe since the boy was born in 1981; his rights are
Okay so the first paragraph refers to what we call governed by Article 283 of the Civil Code. Hence, appeal was
Primary Evidence. The second paragraph refers to Secondary interposed in the Supreme Court.
Evidence.
ISSUE: Whether or not the Family Code shall have retroactive
effect.
Q: Here, what evidence was presented? What are those pieces
of evidence?
HELD: Applying recent jurisprudence, the Supreme Court hold
A: Secondary Evidence. that Article 285 of the Civil Code is a substantive law as it gives
Adrian the right to file his petition for recognition within 4
years from attaining majority age. Therefore, the Family Code
Q: What is the issue in this case? cannot impair or take Adrian’s right to file an action for
recognition because that right had already vested prior to its
enactment. The right of children to seek recognition granted
Q: Can he inherit from his putative parents?
by the NCC to illegitimate children who were still minors at the
time the FC took effect cannot be impaired. NCC185 allows an
Here again, if you are an illegitimate child and you illegitimate child to file for recognition within 4 years of
attaining age of majority, thus gave child a vested right which
want to inherit, you want to assert your right to inherit, you the FC cannot impair.
must prove that you have been recognized.
Article 888. The legitime of legitimate children and

Kung wala ka na recognized and then patay na ang descendants consists of one-half of the hereditary estate of
parent and again you want to inherit, if you have primary the father and of the mother.
evidence, YOU CAN because you can prove your filiation even The latter may freely dispose of the remaining half, subject to
after death if you have primary evidence. Pero if you only have the rights of illegitimate children and of the surviving spouse
secondary evidence, kato common reputation or even DNA as hereinafter provided.
evidence are secondary evidence, YOU CAN NO LONGER do
that because those pieces can be used only if you institute the Legitimate children and descendants are what we call
Petition during the lifetime of the putative father. PRIMARY COMPULSORY HEIRS. They are not excluded by any
kind of heirs along with the surviving spouse and illegitimate
children. Aside from that, their legitime is what we call FIXED
Why is it required that it be filed during the lifetime? Why is it legitime because it is fixed, always 1/2 of the net hereditary
not allowed after death? estate. Whereas the others, it could vary - like the surviving
spouse and illegitimate children, it would vary.
Because he can no longer be heard after his death
Again Article 888, it is 1/2 of the net hereditary estate that is 1. The legitime will be divided equally by the Mother and
reserved for legitimate children and descendants. Father. The grandparents are excluded under the rule on
If the estate is 10M, there is only 1 legitimate child then he proximity. So:
gets half of 10M, which is 5M. If there are two children, just Mother = 3M
divide the 5M. Para dyud na siya sa legitimate children. Kung
Father = 3M
pila kabuok tanan, tungaon lang nila in equal shares. If there
are 4, so 5M divided by 4. So that’s how we divide.
2. What if his father predeceased him and these are the
survivors, Mother, Grandparents Mother side and
Article 889. The legitime of legitimate parents or ascendants Grandparents father side.
consists of one-half of the hereditary estates of their children
and descendants. Estate: 12M. How do we distribute the legitime?
The children or descendants may freely dispose of the other Mother = entire 6M
half, subject to the rights of illegitimate children and of the
surviving spouse as hereinafter provided.
Why? Because there is no right of representation in the
Legitimate parents and ascendants, they succeed in lieu of ascending line. So, you cannot say that they represent. The
legitimate children and descendants. Pareha ra na sila ug right of representation pertains to the descending line.
legitime - 1/2 of the net hereditary estate. Mother = entire 6M
The other half is what we call the FREE PORTION. 1. What if his parents predeceased him? The survivors are
Article 890. The legitime reserved for the legitimate parents his Grandparents Mother side and Grandparents father
shall be divided between them equally; if one of the parents side? How do we divide the legitime of 6M?
should have died, the whole shall pass to the survivor. It should be divided equally by line.
If the testator leaves neither father nor mother, but is survived Maternal Line = 3M
by ascendants of equal degree of the paternal and maternal
lines, the legitime shall be divided equally between both lines. Paternal Line = 3M
If the ascendants should be of different degrees, it shall
pertain entirely to the ones nearest in degree of either line. Per line ang division. Ang naa sa maternal line kay
So we are talking here of legitime of legitimate parents and grandparents so they will divide, 1.5M each. The same with
ascendants. Assuming that the testator died with an estate the grandparents paternal line.
worth 12M. And these are the only relatives who survived. GM Maternal Line = 1.5M
GFMaternal Line = 1.5M
GMPaternal Line = 1.5M
GF Paternal Line = 1.5M
2. What happens if, the mother, the father and the

grandfather paternal side predeceased him? The
In this case buhi tanan, Mother and Father, Grandmother, survivors - Grandparents Mother side and Grandmother
Grandfather from the maternal side and Grandmother and Father side. Estate: 12M. Distribute their legitimes.
Grandfather from the paternal line. So how do we distribute We divide by line.
his estate (12M)?
Legitime - 12M divided by 2 = 6M
Legitime - 12M divided by 2 = 6M

GM Maternal Side = 1.5M
Free Portion = also 6M
GF Maternal Side = 1.5M
GM Paternal Line = 3M
Before we discussed Article 891 because this is a very long

discussion Reserva Troncal. We first finish the legitimes. We
proceed to Article 892.
LEGITIME OF THE SURVIVING SPOUSE

That is 1/2 is the legitime, 1/2 is the free portion. The estate
Article 892. If only one legitimate child or descendant of the is 12M.
deceased survives, the widow or widower shall be entitled to
one-fourth of the hereditary estate. In case of a legal
separation, the surviving spouse may inherit if it was the 1. If we have a legitimate child and a spouse so they are the
deceased who had given cause for the same. only survivor, how do we distribute the estate?
If there are two or more legitimate children or descendants, Legitimate child = 6M (fixed 1/2)
the surviving spouse shall be entitled to a portion equal to the
legitime of each of the legitimate children or descendants.
How about the spouse? (isa ra dyud na ang spouse ha) The law
In both cases, the legitime of the surviving spouse shall be
says, the spouse with 1 child is entitled to 1/4 to be taken from
taken from the portion that can be freely disposed of by the
the free portion.
testator.
Spouse (1/4 of the FP) = 3M.
You should memorize the legitimes, the distribution. Is it not
enough to just familiarize because usually you will be asked to
distribute. You cannot distribute if you do not know their So in reality, this is the real free portion (RFP) or what we call
legitimes. the FREE DISPOSAL (PORTION).
To facilitate ang pagmemorize, you should start with the
legitime of the surviving spouse kay kana siya ang nagavary
pag ayo. If you know the legitime of the surviving spouse, easy LC = legitimate child
nalang for you to remember the legitimes of surviving spouse SS = surviving spouse
alone, surviving spouse with 1 legitimate child, with 2 or more
RFP = real free portion or
legitimate children, legitimate children and illegitimate
children, spouse with the parents, spouse with parents and free disposal
illegitimate children,or spouse with illegitimate children,
tanan.
Let’s illustrate ha. This is the estate:
The free disposal is also 3M.
2. Two or more legitimate children

a) In that case, the legitime of the spouse is the same as
So kung muingon sa problem na na acquire to nila spouses
the share of 1 legitimate child.
during their lifetime we presume na under conjugal or
absolute partnership so tungaon kaduha. Ang share sa
deceased spouse, mao na ni siya, the estate. Kung walay b) If there are two legitimate children, so estate 12M
mention about the spouse and the problem says the estate, divided by 2 = 6M (legitime). Then duha man sila
so mao na ni siya, the estate. From the estate, we have the kabuok so 3M each child. Therefore,
legitime and the free portion.
Spouse = 3M
If you notice pareha ra sa No. 1
c) If there are three legitimate children, so ang 6M

tungaon sa tulo ka legitimate children. 2M each child.
The spouse receives the same share as one legitimate

child, so This is a situation na the free portion is 1/3.
Wala na ni apil ang 895 kay wala na ni sa Family Code.
Spouse = 2M from FP
ILLEGITIMATE CHILDREN SURVIVING WITH LEGITIMATE

So lesson here, do not have more than 2 children because mas PARENTS OR ASCENDANTS
mugamay imong legitime. Kung 1 ug 2 pareha ra. Kung 3 or
Article 896. Illegitimate children who may survive with
more, magkagamay na na siya. (I only have 2 children!)
legitimate parents or ascendants of the deceased shall be
entitled to one-fourth of the hereditary estate to be taken
3. Legal Separation from the portion at the free disposal of the testator.
What si the effect kung naay legal separation?

In legal separation the guilty spouse is automatically Here, they are the only survivors.
disqualified to inherit from the innocent spouse even without 1. Legitimate parents or ascendants = 1/2 (always)
disinheritance. So dili na siya ka inherit. Wala na na siyay
2. Illegitimate children = 1/4.
labot dira sa distribution. If there is a DECREE OF LEGAL
SEPARATION.
The disqualification is both in testamentary and legal Diretso na tag 899 kay ang 897 and 898, wala na na tungod sa
succession. Family Code.
SURVIVING SPOUSE WITH LEGITIMATE PARENTS OR
ASCENDANTS AND ILLEGITIMATE CHILDREN
SPOUSE SURVIVING WITH LEGITIMATE PARENTS OR
ASCENDANTS Article 899. When the widow or widower survives with
legitimate parents or ascendants and with illegitimate
children, such surviving spouse shall be entitled to one-eighth
Article 893. If the testator leaves no legitimate descendants, of the hereditary estate of the deceased which must be taken
but leaves legitimate ascendants, the surviving spouse shall from the free portion, and the illegitimate children shall be
have a right to one-fourth of the hereditary estate. entitled to one-fourth of the estate which shall be taken also
This fourth shall be taken from the free portion of the estate. from the disposable portion. The testator may freely dispose
of the remaining one-eighth of the estate.
shall be taken from the free portion of the estate.
1. Legitimate Parents or Ascendants = 1/2 (legitime)

In lieu of the children kay wala may children, we have the
parents, 1/2 of the legitime. 2. Surviving Spouse = 1/8 (free portion)
The spouse, 1/4 to be taken from the free portion. 3. Illegitimate Children = 1/4 (free portion)
SPOUSE SURVIVES WITH AN ILLEGITIMATE CHILD

Article 894. If the testator leaves illegitimate children, the This is one of the provisions called UNHOLY PROVISION.
surviving spouse shall be entitled to one-third of the Unholy siya because it appears that the spouse is being
hereditary estate of the deceased and the illegitimate children penalize for NOT having children with the testator. Imagine
to another third. The remaining third shall be at the free 1/8 lang iyang share. Diba 1/4 kung naay legitimate child?
disposal of the testator.
This is another lesson as I’ve said. Have children and don’t
Here walay legitimate children. Illegitimate child or children, allow your husband (Of course!) to have illegitimate children.
Okay! I’m sure walay illegitimate child akong bana nu! Kaubo
1/3 each lang:
siya kung naa! (katawa tanan)
1. Spouse = 1/3
SPOUSE IS THE ONLY SURVIVING HEIR
2. Illegitimate Child = 1/3
Article 900. If the only survivor is the widow or widower, she
3. Free Portion = 1/3 or he shall be entitled to one-half of the hereditary estate of
the deceased spouse, and the testator may freely dispose of This is testementary succession, meaning there is a will.
the other half. (837a) Because this is a will there is a possibility na naay undue
If the marriage between the surviving spouse and the testator influence, etc that’s why this is the rule.
was solemnized in articulo mortis, and the testator died within Again in legal succession bisan pag two months ra mo
three months from the time of the marriage, the legitime of gikasal, walay ing ani na provision.
the surviving spouse as the sole heir shall be one-third of the
hereditary estate, except when they have been living as
husband and wife for more than five years. In the latter case, Article 902. The rights of illegitimate children set forth in
the legitime of the surviving spouse shall be that specified in the preceding articles are transmitted upon their death to
the preceding paragraph. their descendants, whether legitimate or illegitimate.
Take note ha, lahi lahi ang legitime sa spouse.

GENERAL RULE: Again, illegitimate children have successional rights. For
example:
1/2 of net hereditary estate (kay siya man ang SOLE survivor).
Illegitimate Children surviving with Legitimate Children
The other half kay Free Portion.
The illegitimate children survived with legitimate
children. So wala natay other categories like
However, acknowledged natural child or natural children by legal
fiction.
1. If the marriage is celebrated in Articulo Mortis (kabalo
man mo ani nu?), dapat it should be the testator who was
at the time of marriage was in danger of death. Siya pud Illegitimate child is entitled to 1/2 of the share of 1
tong namatay eventually. legitimate child. This is the rule as long as naay
If the marriage between the surviving spouse and the illegitimate and legitimate children, whether naay
testator was solemnized in articulo mortis, and the surviving spouse or wala basta kay nagsabay si
testator died within three months from the time of the illegitimate and legitimate children.
marriage, the legitime of the spouse is reduced to
onethird of the hereditary estate.
If only the illegitimate child is the survivor, 1/2 of the net
The law here presumes that the spouse married because estate.
of the inheritance or the money maong gireduce niya to
1/3.
Situation 1:
2. But if they have been living as husband and wife for more For example, estate: 12M. Survivors are:
than five years prior to the celebration of the marriage a) 2 Legitimate Children
under Articulo Mortis (nag live in sila before sila
b) 1 Illegitimate Child
nagpakasal), ang share ni surviving spouse is 1/2 napud.
Mubalik ug 1/2.
How do we distribute?
Because here the law presumes na love dyud ni siya. Dili First step, give the legitime of the legitimate children.
ni siya tungod sa kwarta. Nagkataon lang na at that time 12M divided by 2 = 6M. So 6M ang legitime. Since duha
himalatyon na iyang bana tong nagpakasal sila. But it is man sila, each Legitimate child receives 3M.
not the reason, wala sila nagdali ug pakasal kay mamatay
na ang isa. They really love each other! (Corny pud kaayo
How about the illegitimate child? 1/2 of the share of a
ang nagbuhat ani no? haha)
legitimate child. So, 1.5M to be taken from the free
Take note ha this does not apply in legal succession. In portion.
legal succession, kung si spouse ra ang sole survivor sa
a) 2 Legitimate Children = 3M each (Legitime)
mga compulsory, wala tong uban, he or she shall get the
entire estate. Wala may legitimes in legal succession. b) 1 Illegitimate Child = 1.5 M (Free Portion)
Situation 2:
Assuming in that case, naay spouse. So survivors are:

a) 2 Legitimate Children Dili na siya 1/2 of the share of 1egitimate child and wala
nay free portion. Kung naa may legacy or devise na
b) Spouse
gihatag si testator, wala na to siya.
c) 1 Illegitimate Child How do we distribute?
1. Give the legitime of the legitimate children,
so 3M each. So 902, diba wala ko nag discuss sa 902?
2. The Spouse, 3M gihapon to be taken from The rights of illegitimate children are transmitted upon
their death to their descendants, whether legitimate or
the free portion. The same share as one legitimate
child. illegitimate.
3. Illegitimate Child, 1.5M. Also to be taken

from the free portion. 1/2 of the share of one For example,
legitimate child.
So,
a) 2 Legitimate Children= 3M each (legitime)
b) Spouse = 3M (free portion)
c) 1 Illegitimate Child = 1.5M (free portion)
If the illegitimate child (X) predeceased the testator and
he has 2 children, Y (legitimate) and Z (also illegitimate
Situation 3: just like him).
Halimbawa, 10 kabuok iyang illegitimate children Can Y and Z represent the illegitimate child, X?
(kugihan kaayo siya!) Same situation with 12M estate: Yes. There is no issue here. An illegitimate child can be
a) 2 Legitimate Children represented by his children whether legitimate or
illegitimate.
b) Spouse
Please remember this because there will be another
c) 10 Illegitimate Child
provision in Article 992.
Article 903. The legitime of the parents who have an
How do we distribute? illegitimate child, when such child leaves neither
Again, unahon dyud nato pirmi ang legitimate children. legitimate descendants, nor a surviving spouse, nor
Then the spouse and illegitimate children. illegitimate children, is one-half of the hereditary estate
of such illegitimate child. If only legitimate or illegitimate
children are left, the parents are not entitled to any
So, legitime whatsoever. If only the widow or widower
survives with parents of the illegitimate child, the legitime
a) 2 Legitimate Children= 3M each (legitime)
of the parents is one-fourth of the hereditary estate of
b) Spouse = 3M (free portion) the child, and that of the surviving spouse also one-fourth
Sa illegitimate child, dapat each shall receive 1/2 of the of the estate.
share of 1 legitimate child so kung 3M ang share ni
legitimate child divided by 2, so 1.5M. Unya 10 kabuok
WE HAVE 3 SITUATIONS:
sila x 1.5M = 15M. Kulang na? Asa man ta manguha anang
kulang? 1. Legitimate parents surviving with
illegitimate children
The rule here is just divide whatever remains so 12M
minus 9M (6M for 2 LC, 3M for SS) so 3M nalang. So 2. Illegitimate parents surviving with
distribute in equal share to all illegitimate children: legitimate or illegitimate children
3M divided by 10 = 300k. 3. Illegitimate parents surviving with the
spouse
c) 10 Illegitimate Child = 300k each
We are talking here of the parents. a) The illegitimate parent is always excluded
a) Legitimate parents surviving with illegitimate children by children whether legitimate or
- Legitimate parents is always entitled to 1/2. illegitimate.
b) Pero if you are a legitimate parent you are
only excluded by the legitimate children
How about if they are illegitimate parents - meaning ang
and descendants of the testator.
namatay kay ang anak nimo imuhang illegitimate child.
What are the successional rights of the illegitimate c) Legitimate parents concur with
parents? What Article 903 contemplates is, say: illegitimate children.
P is the illegitimate parent because X, the testator is an

illegitimate child. X predeceased P. The survivors here
includes Y and Z. The question is can the parent concur
with the children?
Take note ha na legitimate parents they are excluded by

the presence of legitimate children but they concur with
illegitimate children.
Here, Y can exclude P, the illegitimate parent. Kay
maexclude man gani sa legitimate children ang legitimate
parent, with more reason the illegitimate parent.
How about si Z? Will Z exclude or will Z concur with the
illegitimate parent? Halimbawa:
So silang tanan illegitimate - survivors are: illegitimate

parent and illegitimate child. Will the illegitimate parent
inherit?
The illegitimate parent is EXCLUDED by the presence of
illegitimate child.
In short,
From 2018 TSN

Table of Legitimes (Mentioned by Ma’am):
Survivors Share/s
Illegitimate Parents Illegitimate Parents =

and ¼
Spouse Spouse = ¼
Legitimate Parents Legitimate Parents = ½
and Spouse = ¼
Spouse
Legitimate Child ½
surviving alone
Parents surviving ½
alone
Spouse surviving ½ , 1/3, ½ (diba katong
alone articulo mortis?)
Illegitimate child ½
alone
One Legitimate child Legitimate child = ½
surviving with the Spouse = ¼
Surviving spouse
Two or more Two or more
Legitimate Legitimate
Children with the
Surviving
spouse Children = ½
Spouse = same as the
share of 1 legitimate
child
Illegitimate Children Illegitimate children =
surviving with the 1/3
Spouse Spouse = 1/3
surviving with the
Spouse = ¼
Spouse
Illegitimate children Illegitimate Children =
surviving ¼
with the Spouse and Surviving Spouse = 1/8
Illegitimate parents Illegitimate Parents = ¼
surviving with the Spouse = ¼
Spouse
Table of Legitimes (page 304, book of Paras):
Article 891. The ascendant who inherits from his descendant (descendant)
any property which the latter may have acquired by gratuitous
title from another ascendant, or a brother or sister, is obliged
to reserve such property as he may have acquired by
operation of law for the benefit of relatives who are within the Under reserva troncal, the mother now has the obligation
third degree and who belong to the line from which said to reserve the property in favor of the relatives of his son
property came. (descendant) within the 3rd degree and then coming from
Please remember this article – Reserva Troncal. This is the the line of the origin, in this example, from the paternal
only system of reservation which has remained under the line.
New Civil Code. What is the purpose of Reserva Troncal?
- To see to it that the property does not stray from one
What is Reserva Troncal? line of the family to the other.
- Let us just simplify it first, remember the V-sign. In our example, the land came from the paternal side, and
by reason of an accident in life, the land now went into
the maternal side. So, the law says that it should be
(We have an ascendant, we have a descendant and we reserved in favor of the relatives of the descendant
have the reservor or another ascendant.) belonging to the paternal line where the property
originated.
Remember: There can only be reserva when the property
strays from 1 line of the family to the other.
Origin (ascendant) Reservor (ascendant)
Example 2: There can be no reserva if ang naghatag sa

property is ang grandfather from the maternal side:
gidonate niya sa iyahang apo, namatay si apo, and then
nainherit sa mama. Can there be reserva?
Prepositus
(descendant)
- No, because there is no distinction of line. Ang origin
is from the maternal side, eventually naadto pod siya
FIGURE 2 sa mama o motherside gihapon. There has to be a
distinction.
What are the requisites that must exist in order that a
Example 1: The grandfather donated a land to his
property may be impressed with a reservable character?
grandson. So the grandson now owns the land by virtue
of the donation, but then he died without issue of his own 1. That the property was acquired by a descendant
or without children. The only survivor he had is another (called “praepositus” or propositus) from an ascendant or
ascendant which is his mother. The mother now would from a brother or sister by gratuitous title when the
inherit the property of his son which originally came from recipient does not give anything in return;
the paternal grandfather. 2. That said descendant (praepositus) died without an
issue;
3. That the same property (called “reserva”) is inherited
by another ascendant (called “reservista”) by operation
Origin (ascendant) Reservor (ascendant) of law (either through intestate or compulsory
Grand Father Paternal Mother succession) from the praepositus; and
4. That there are living relatives within the third degree
counted from the praepositus and belonging to the same
line from where the property originally came (called
Son “reservatarios”).
Prepositus So again..
In this case, there was an obligation imposed upon the heir

Parties in a reserva troncal: to pay Standard oil the amount of P3971.20. Thus the
question of whether or not it was gratuitous arose, because
1. The Origin if it is really gratuitous then there will be no obligation to
2. The Prepositus pay.
3. The Reservor
4. The Reservees – relatives within the 3rd degree In this case, the obligation was only a charge by the court
and not by the decedent. So, it can be by virtue of:
The Origin should be an ascendant or a brother or sister. But
when we say brother or sister, it has to be a half-brother or a 1. Testamentary Succession such that the ascendant
half-sister for there to be a distinction in line. gave the property by will to the descendant.
2. It can also be by virtue of Legal Succession
Example 3: We have X, a full blood brother of D, nagdonate og 3. Donation.
land to D. Then D died, the same property is inherited by
operation of law by his mother, can there be a distinction of
lines? Even if there was a charge imposed, but as long as the
charge did not come from the donor or decedent, then the
transfer is considered as gratuitous.
- None, because if X is his full brother, then X must be
the son of D’s mother as well. So, walay distinction.
To create reserve, X should be the half-brother which In reserva troncal, the same property acquired through
basically comes from the other line, here, X should gratuitous title by the descendant is reserved by him as the
come from the paternal line. descendant Prepositus. And then he died without issue.
Because if he died with issue, then the property cannot be
Remember: Even if we say half-brother, the relationship in inherited by the ascendants as they are excluded by the
reserva troncal should be Legitimate. It cannot apply to an presence of the descendants. When the Prepositus died, the
illegitimate half. How is that? very same property was transferred by Operation of law to
another ascendant coming from a different line from the
origin.
- Pwede nagmarry ang parents, namatay ang papa,
then ang mama nag-asawa usab.
Why is the defendant Prepositus called the Arbiter of the
Reserva?
Origin (ascendant) Reservor (ascendant)
- Because in his hands really depend on whether or not
Brother Paternal Mother
there can be reserva troncal.
Example, even if he receives such property gratuitously from
an ascendant but such property was disposed by him pala by
Half- brother selling or destroying the property. Then there can no more be
reserva. Or maybe he retained the property but then he had
Prepositus children, thus there can be no reserva.
(descendant) So it really depends upon the Prepositus.
Now, the transfer from the origin should be by Gratuitous title. Remember: In reserva troncal, the property transferred by
What do we mean by that? Operation of Law should be the very same property which was
CHUA vs. CFI received from the ascendant Origin.
G.R. No. L-29901
August 31, 1977 Example: The descendant received a lotto ticket from his
grandfather paternal side. And then the lotto ticket won 10
Million, and then he died. So the property is now transferred
by operation of law to his mother, is there a need for

reservation? Is there reserve troncal?
This case involves a double sale. The reservor sold the
- No, because he transferred to his mother a different property to A. The reservees also, while the reservor was
property, not the very same property which he still alive, sold the property subject of the reserva to B.
received from the origin. He received a lotto ticket
and not the money.
ISSUE: Is the sale to A valid? Is the sale to B valid? Who has
Let us go to the transfer from the descendant Prepositus to
a better right between A and B?
another ascendant – the Reservor. The law says that the
transfer shall be by Operation of Law.
RULING: The sale made by the reservor to A is valid but
subject to a resolutory condition. What are the rights of the
Operation of law is present in legal succession.
Reservor?
• The reservor is the owner of the property, so she
How about in wills or in Testamentary succession? The son left can sell, use, convey or dispose the property as an
a will leaving all his properties to his mother and then he died. attribute of her ownership.
Then the mother inherited the property. Is there transfer by
• However, the ownership of the reservor is subject
operation of law?
to a Resolutory condition. She has ownership but
- Yes, there can still be transfer by operation of law, her ownership is extinguished by the fulfilment of
remember that because a lot of students forget that. the resolutory condition which are the:
Naa gihapon by operation of law with respect to the
1. Death of the Reservor and
legitime.
2. Survival of the Reservees.
So, even if there is a will and the mother inherited the property
from the son, even if that is her legitime, the mother has the
obligation to reserve that property in favour of the Reservees. Upon her death, the property burdened by the reserva will
As we have discussed before: not go to the estate of the reservor but it will go to the
reservees.
How about the sale made by the Reservees?
General Rule: There can be no burdens, encumbrances,
substitution or charges that may be imposed upon the • The sale by the reservees of the property during
legitime. the lifetime of the reservor is also valid. That is in
the nature of the sale of a future property under
Article 1461 of the Civil Code.
Exception: Concept of Reserva Troncal.
- Even if that is her legitime, there is a burden upon that
Article 1461. Things having a potential existence may be the
legitime. There is an expectancy that upon her death
object of a contract of sale. Xxx So you remember the
as a Reservor, the property will not go to her estate
concept of emptio rae speratae (sale of future property) as
but will go to the Reservees.
distinguished from emptio spei (sale of hope or
- expectancy).
Who are the Reservees?
- They are the relatives of the descendant within the 3rd Here it is valid but subject to the condition that the thing
degree from the line of the origin. We count 3 degrees will exist. The sale made by the Reservees is subject to a
from the descendant Prepositus. When the reservor Suspensive Condition, where, in the meantime it is not yet
dies and there are still reservees who survive, then valid but if the condition is fulfilled, then the sale now
the property will now go to the reservees. becomes effective and valid. What is that suspensive
- condition?
From 2017 TSN 1. Death of the Reservor and
SIENES vs. ESPARCIA 2. Survival of the Reservees.
1 SCRA 750
So you see, the Resolutory condition on the part of the - In so far as Reserva Troncal is concerned, it merely
reservor is the Suspensive Condition on the part of the determines which class of heirs would be entitled to
reservees. the property. But between and among these heirs, we
follow the Rule on Intestate Succession.
The 2 sales are actually valid. In this case, the sale to A

remains valid because the resolutory condition is not Why Intestate succession?
fulfilled. • The reservees here are the heirs of the descendant
prepositus (and not the heirs of the reservor) and
they inherit in the absence of a will through intestate
Now, with respect to the properties subject of the reserva, if
you are the reservee, you will be scared that the reservor will succession.
sell the property. What are the rights of the reservee to assure
that the reserva is protected? From 2016 TSN
• For real property, the fact that it is subject to a Rule in Intestate Succession
reserva should be annotated to the title. It will now
serve as warning to 3rd persons that will be dealing 1. Those who are in the direct line are preferred over
with the land that it is subject to a reserva. Remember those in the collateral line. So, the grandparents are
in your land registration law, encumbrances or liens preferred over the brothers and sisters.
which do not appear to the title are not binding to 2. If they are both in the same direct line or both in the
third persons unless they have actual knowledge of same collateral line, then those who are in the
the same. So, if you are a reserve, the fact of the Descending line are favoured over those who are in
reserva should be annotated and it will serve as your the ascending line.
protection.
3. We also follow the rule on Proximity.
Example 1: If for example they are both in the collateral line,
• You can also compel the reservor to furnish a bond or we have the brothers and sisters and the nephews and nieces,
security specially if it is a Personal property. the one preferred would be the brothers and sisters for they
Let us go to the Reservees. are nearer.
They are the 3rd degree relatives of the descendant prepositus. Example 2: Between uncles/aunts and nephews/nieces who
Who could these relatives be? are both in the collateral line, the ones preferred are those
from the Descending line and not the ascending line, so we
choose the nephews and nieces.
For the Direct relativess: So those are the rules in Intestate succession which is
Child ----- Parent ------ Grand Parents ------ Great GP applicable in so far as the reservees are concerned. We have
the case of Mendoza vs. De Los Santos.
1st 2nd 3rd
MENDOZA vs. DELOS SANTOS

For the Collateral Relatives:
G.R. No 176422
Brothers/ Sisters - 2 degrees
March 20, 2013
Uncles/ aunts or nephews/nieces – 3 degreees
This case disputes 3 parcels of land under the name of Julia

So all of the above stated belong to the relatives within the 3rd
Delos Santos (respondent). According to the petitioners, the
degree relative of the descendant prepositus. What if all of
subject properties were part of the estate of their
them survive, who could be entitled to the properties subject
grandparent, Placido. When Placido died, Ezekiel inherited
of the reserva? Is it all of them? Do they divide the property in
the property by legal succession. When Ezekiel died,
equal shares? Leonora and Julia inherited from him. The only descendant
of Ezekiel was Gregoria who inherited the disputed property - That is the same in legal succession, because in legal
from Ezekiel. From Gregoria it was then transferred to Julia succession, the right of representation in so far as the
(sister of her mother Leonora who predeceased them). direct line is concerned, walay limit. Pero pag
muingon ka og reserva, it cannot also apply because
the descendant here in reserva kay dapat walay issue.
The issue here was whether there is Reserva Troncal?
So the legal succession representation in the collateral line, the
right of representation is up to the nephews and nieces lang
Let us look at the requisites of Article 891: pod who are also up to the 3rd degree.
First, the ascendant transfers property by gratuitous title to September 28; Part 1 & 2 Palma Gil (gwapa)
the descendant, which is present in this case.
So do still remember the parties in a reserve truncal? so we
Second, the descendant transfers property to another have:
ascendant by Operation of Law, which is not present in this
case.
1. That the property was acquired by a descendant
- There was no inheritance by operation of law since (called “praepositus” or propositus) from an
it should be inherited through a direct line and not [ORIGIN] ascendant or from a brother or sister by
collateral. The law requires a direct ascendant, gratuitous title when the recipient does not give
Julia here is Gregoria’s collateral relative. anything in return;
2. That said descendant (praepositus) died without
Assuming for the sake of argument na ascendant si Julia, will an issue;
there be Reserva troncal such that the petitioners will be 3. That the same property (called “reserva”) is
entitled? inherited by another ascendant
- Still no because the petitioners here belong to the (called “reservista”) by operation of law (either
4th degree line of relatives. The law requires up to through intestate or compulsory succession) from
the 3rd degree only for one to be a reservee. the praepositus; and
4. That there are living relatives within the third
degree counted from the praepositus and
So, there is no Reserva. The requisite that the property be
belonging to the same line from where the
transferred to an ascendant from a descendant was not
property originally came (called Reservees
present. And then second, the petitioners are not reservees
or “reservatarios”).
for they are not within the 3rd degree.
INHERITANCE BY RESERVEES
With respect to the reservees, can we apply the right of
representation? we mentioned its governed by law on succession; We have this
principle
Example: Some of the reservees are brothers and sisters
where some of them are already dead and they are survived
by their own children, who, in relation to the descendant "Love first descends, it ascends, then it spreads."
prepositus are the nephews and nieces.
(sana all)
- Actually, the right of representation applies to a

So una ka sa direct line; kung puro sila direct line then
reserva, but the representatives themselves must still
be within the 3rd degree. It cannot be that by the right descending, then ascending, and then kung walay direct then
of representation the 4th degree will be elevated to we go to collateral; same thing sa collateral, descending line is
favored over ascending line; kung naay nephews and neices
the 3rd degree.
they exclude uncles and aunts;
RULE ON PROXIMITY of his mother. wala syay father, wala syay igsuon, wala syay
anak (wala siyay uyab, char wala ni gi mention). So he died, his
estate is 15M (10 plus 5 Million). He left a will. So, How much
So, the nearer relatives excludes those who are far; is the legitime of the Mother as only survivor?
Note: In Reserva, even representatives must be in the third A: 1/2 ang iyang legitime. So
degree.
LEGITIME - 7.5M
VALUATION OF RESERVA
FP - 7.5M
Ex. This Grandfather donated a parcel of land valued 10M to

descendant. So, descendant died without issue, and then he Q: Assuming all the requisites for Reserva Troncal are
died also intestate; so the land went to the mother; How much present, How much is the value of the Reserva?10M was
received. So diba, if there is a will ang transfer is only that
is the value of the reserva here?
portion pertaining to the legitime so dili tanan under the law;
ang Q how much is Reserva? is it 10Million?
A: It would be the entire property, because everything goes to
reservor by legal succession; 10 Million.
A: So Under the theory of Reserva Maxima,
as much as can be covered from the legitime. So, how much is
Under the law on Reserva Troncal (RT) regarding valuation we the legitime? 7.5 Million. How much is property coming from
have 2 theories. Origin? 10. Million. BUT because legitime is only 7.5,
THEREFORE, subject to reservation, Reserva is only up to 7.5
Million EVEN IF the property which came from the origin was
1. Reserva Maxima
valued at 10 Million; Because as much as can be covered from
2. Reserva Minima legitime lang. So are 2.5M ato, it will form part of Free Portion.
Maximum nato is legitime
RESERVA MAXIMA
So How about Under the theory of Reserva Minima,
Value of Reserva is as mucha s can be covered in the legitime. so under this theory it presupposes that For every property
1/2 of that forms part of the legitime, and 1/2 forms part of
the Free Portion. So,
RESERVA MINIMA
Sa 10Million na Origin
For every property transferred by operation of law from Legitime - 5M
ascendant to descendant. 1/2 is legitime and 1/2 is Free
Portion. Free Portion - 5M
This would matter if descendant prepositus died with a will. Sa 5Million property niya
kay if he died intestate everything will go by Operation of Law Legitime 2.5 M
to the ascendant, so we don't have to determine which portion
FP - 2.5M
is legitime and which portion is Free Portion. Everything is
covered.
That's why 7.5 Million gihapon ang legitime. 5 gikan sa 10M
and 2.5 gkan sa 5M;
Ex. So Assuming, descendant died with a will, and during his
lifetime aside from the 10M which he got as donation from his Q: So How much ang value to sa Reserva here?
Grandfather, he also bought.properties worth 5M. So at time A: So the value of reserva minima is only 5 Million representing
of his death mao to iya properties 5M. so he left a will in favor the Legitime of the 10Million Origin.
WHAT THEORY IS BEING USED?

Another Example,
Reserva Minima.
Assuming grandfather donated property to his grandchild
amounting 5M; same property upon death of descendant, Because 1/2 1/2 lang, it considers na not everything is subject
went to mother by Testamentary succession. But on his own
to reservation.
the grandhcild also obtained properties amounting to 10M, so
he left a will and gave all his property to mother. His estate is
15M. How much is the value of the reserva, under reserva Another Example;
maxima?
Grandfather donated property to Grandson; Grandson died
without a will and property went to mother by operation of
L - 7.5 law. Survivors are sister of mother, wife of Grandfather.
So Between the two of them who is entitled to the property?
FP - 7.5 is the property subject to Reserva?
A: So, Reserva Maxima says: As much as can be covered by Grandmother, does she come from line of origin? From the line
the legitime.
of origin meaning relative of Grandfather. She is the wife.
How much is the legitime? 7.5 Million. How much was the
Origin? 5Million. So you cannot go beyond 5, even though
legitime is 7.5M. so legitime is the maximum mao na siya ang A: So Grandmother is not entitled. She is not a reservee. She
pinakadako; but you have to take note of the value of the does not come from line of origin as she is the wife of the
property itself which came from the origin. In this case, it's only Origin, not a blood relative of the origin.
5M.
Because there are no reservees it would be the sister of the
How about Reserva Minima, So under this 1/2 Legitime, 1/2 mother; wala nay reserva because it is a condition in reserva
FP; that naay mag survive na reservees. Kung walay reservees mag
survive walay obligation to reserve. Property passes on to
estate of descendant.
So,
In 5M Property from Ascendant CASE: Sienes v Esparcia
L - 2.5M
FP - 2.5M
SIENES vs. ESPARCIA
1 SCRA 750
In 10M Property acquired during lifetime
This case involves a double sale. The reservor sold the
L - 5M property to A. The reservees also, while the reservor was
FP - 5M still alive, sold the property subject of the reserva to B.
So the value of the reserva minima is only 2.5; As this is the ISSUE: Is the sale to A valid? Is the sale to B valid? Who has
portion which pertains to the Legitime. a better right between A and B?
So remember in RT, if it is Testamentary succession, ang RULING: The sale made by the reservor to A is valid but
portion lang na covered by the reservation is the legitime. subject to a resolutory condition.
that's the maximum amount. So consider, Reserva Maxima
and Reserva Minima. What are the rights of the Reservor when she gets property
subject to reserve truncal?
The 2 sales are actually valid. In this case, the sale to A

remains valid because the resolutory condition is not
• The reservor is the owner of the property, so she
fulfilled.
can sell, use, convey or dispose the property as an
attribute of her ownership.
• However, the ownership of the reservor is subject There were 2 sales of the same property; Reservor sold
to a Resolutory condition. She has ownership but property. Would-be reserves sold the same property upon
her ownership is extinguished by the fulfilment of expectation that upon death of reservoir they will be the
the resolutory condition which are the: owner. Which sale here is valid? Buyer from reservoir? Or Buyer
from Reservees?
SC: the two sales are valid;
Upon her death, the property burdened by the reserva will

not go to the estate of the reservor but it will go to the Reservor is the owner of property subject to reserve. The
reservees. ownership of property will terminate upon his death. His
ownership is subject to resolutory condition which is death of
reservoir and survival of reserves.
How about the sale made by the Reservees?
How about sale made by reserves? SC said that it is valid. Its

• The sale by the reservees of the property during not future inheritance as reserves do not inherit from reservoir.
the lifetime of the reservor is also valid. That is in They inherit from prepositus. He already died. So when they
the nature of the sale of a future property under sold property its like selling future property. This is subject to
Article 1461 of the Civil Code. Suspensive condition. Meaning as of now sale cannot be given
effect, you have to wait for fulfillment of condition, which is the
death of reservoir and survival of reserves.
Article 1461. Things having a potential existence may be the
object of a contract of sale. Xxx So you remember the
concept of emptio rae speratae (sale of future property) as Case: MENDOZA v DELOS SANTOS
distinguished from emptio spei (sale of hope or
expectancy).
Here it is valid but subject to the condition that the thing

will exist. The sale made by the Reservees is subject to a
Suspensive Condition, where, in the meantime it is not yet
valid but if the condition is fulfilled, then the sale now
becomes effective and valid.
What is that suspensive condition?

MENDOZA vs. DELOS SANTOS
G.R. No 176422 March 20, 2013
So you see, the Resolutory condition on the part of the
reservor is the Suspensive Condition on the part of the
reservees. Petitioners are grandchildren of Placido Mendoza (Placido)
and Dominga Mendoza (Dominga). Placido and Dominga
had four children: Antonio, Exequiel, married to Leonor,
Apolonio and Valentin. Petitioners Maria, Deogracias,
Dionisia, Adoracion, Marcela and Ricardo are the children of
Antonio. Petitioners Juliana, Fely, Mercedes, Elvira and Gregoria’s ascendants, both petitioners and Julia, therefore,
Fortunato, on the other hand, are Valentin’s children. are her collateral relatives.
Petitioners alleged that the properties were part of Placido
and Dominga’s properties that were subject of an oral
partition and subsequently adjudicated to Exequiel. After Moreover, petitioners cannot be considered
Exequiel’s death, it passed on to his spouse Leonor and only reservees/reservatarios as they are not relatives within
daughter, Gregoria. After Leonor’s death, her share went to the third degree of Gregoria from whom the properties
Gregoria. In 1992, Gregoria died intestate and without came. The person from whom the degree should be
issue. They claimed that after Gregoria’s death, respondent, reckoned is the descendant/prepositus―the one at the end
who is Leonor’s sister, adjudicated unto herself all these of the line from which the property came and upon whom
properties as the sole surviving heir of Leonor and Gregoria. the property last revolved by descent. It is Gregoria in this
Hence, petitioners claim that the properties should have case. Petitioners are Gregoria’s fourth degree relatives,
been reserved by respondent in their behalf and must now being her first cousins. First cousins of the prepositus are
revert back to them, applying Article 891 of the Civil Code fourth degree relatives and are not reservees or
on reserva troncal. reservatarios.
RULING: They cannot even claim representation of their

predecessors Antonio and Valentin as Article 891 grants a
Based on the circumstances of the present case, Article 891 personal right of reservation only to the relatives up to the
on reserva troncal is not applicable. third degree from whom the reservable properties came.
The only recognized exemption is in the case of nephews
The fallacy in the CA’s resolution is that it proceeded from and nieces of the prepositus, who have the right to
represent their ascendants (fathers and mothers) who are
the erroneous premise that Placido is the ascendant
contemplated in Article 891 of the Civil Code. From thence, the brothers/sisters of the prepositus and relatives within
it sought to trace the origin of the subject properties back the third degree.
to Placido and Dominga, determine whether Exequiel
predeceased Placido and whether Gregoria predeceased If at all, what should apply in the distribution of Gregoria’s
Exequiel. estate are Articles 1003 and 1009 of the Civil Code, which
provide:
It should be pointed out that the ownership of the
properties should be reckoned only from Exequiel’s as he is Art. 1003. If there are no descendants, ascendants,
the ascendant from where the first transmission occurred, illegitimate children, or a surviving spouse, the collateral
or from whom Gregoria inherited the properties in dispute. relatives shall succeed to the entire estate of the deceased
The law does not go farther than such
in accordance with the following articles.
ascendant/brother/sister in determining the lineal
character of the property. What is pertinent is that
Exequiel owned the properties and he is the ascendant from Art. 1009. Should there be neither brothers nor sisters, nor
whom the properties in dispute originally came. Gregoria, children of brothers or sisters, the other collateral relatives
on the other hand, is the descendant who received the shall succeed to the estate.
properties from Exequiel by gratuitous title.
The latter shall succeed without distinction of lines or
preference among them by reason of relationship by the
Article 891 provides that the person obliged to reserve the whole blood.
property should be an ascendant (also known as the
reservor/reservista) of the descendant/prepositus. Julia,
however, is not Gregoria’s ascendant; rather, she is Case: Director of Lands v Aguas
Gregoria’s collateral relative. Gregoria’s ascendants are her
parents, Exequiel and Leonor, her grandparents, great-
DIRECTOR OF LANDS v AGUAS
grandparents and so on. On the other hand, Gregoria’s
descendants, if she had one, would be her children, G.R. No. 42737. August 11, 1936.
grandchildren and great-grandchildren. Not being
2. the inventory must be registered with the registry of

property.
now if the property is REAL property, the reservor has the

obligation to furnish a bond or security that will ensure that
upon death of reservor, and there are reservees who survive,
if the property itself is no longer there, then the bond or
security will answer to the reservees.
Teodoro Legitimate;
Tomas Illegitimate; now if it is a parcel of land which ia already registered, then it
goes to reservor (under concept of reserva troncal) within 90
Romeo legitimate son of Tomas and Luisa;
days from death of descendant prepositus or from the time
Luisa’s father is Cayetano; Court says that property is to be given to reservor, subject to
reserva, dapat i annotate ang fact of reserva in the title. WHY?
becayse if it is not annotated, and property is sold by the
Property of Isidro was inherited by son Tomas; passed on to reservor to an innocent purchaser for value then upon death
Romeo; when Romeo died it passed to Luisa (Romeo’s of reservor, and rest of reservees survive, they cannot get the
mother) and Luisa died, property passed to Luisa’s father property from the innocent purchaser for value. Although they
Cayetano. can get compensation or indemnity from the estate of the
resevor.
Survivors are: Teodoro and Cayetano.
The reservor must not substitute the property with another.
because again, that should be the very same property which is
Q: Is Reserva Truncal applicable? Is Teodoro a Reservee?
the same from origin to descendant prepositus and then to the
reservor.
A: When the law speaks of ascendants and descendants or
relatives it speaks of legitimate relatives;
If the property is Lost or Destroyed during the lifetime of the
reservor, without the fault of the reservor. Then, that's one of
Teodoro cannot inherit because naputol kay Tomas as he the modes of extinguishment of obligations. Reserva is
is illegitimate. As illegitimate child cannot inherit from extinguished.
legitimate relatives of his father and mother and vice versa;
so si Tomas cannot inherit from Teodoro and Teodoro
Regarding land registration, for example wala gi annotate ni
cannot inherit from Teodoro. Siguro kung legitimate din si
reservor and the fact of reserva, the reservees themselves can
Tomas pwede maka inherit si Teodoro. (See: Art 992)
compel the reservor to make the annotation. they have to wait
for the lapse of 90 days (kay naa may 90 days si reservor to
From Full Text: annotqte kung wala sya nag act then the reservees can file an
action to compel the annotation.
When the Civil Code speaks of ascendants, descendants
and relatives, without specifying whether they are
legitimate or natural, it should be understood as referring THEORY OF DELAYED INTESTACY.
to legitimate ones, because to the Code the general rule is
What is the theory of DELAYED INTESTACY.
the legitimate relationship and the natural or illegitimate
relationship is the exception. what do we mean by the delayed intestacy theory. this is
actually the inheritance by the reservees from descendant
prepositus under reserva troncal as stated when the resolutory
Sept 28 part 2 condition is fulfilled. The properties are distributed to
reservees as if they are inheriting fromt the prepositus at the
time of fulfillment of the condition.
1. the reservor must make an inventory of property
received by operation of law from descendant.
since there is no will, then the reservees inherit by intestate Neither can he impose upon the same any burden,
succession - the decedent being the prepositus. So that's why encumbrance, condition, or substitution of any kind
it's called delayed intestacy. whatsoever.
the legitime is reserved by law for compulsory heirs. Therefore
At the time of death the descendant prepositus the reservees the testator cannot deprive his compulsory heirs of their
should already have inherited property, but because of such legitimes without a valid ground (then that would be
circumstances like: the survival of another ascendant, of the disinheritance); and then you cannot also impose any burden,
descendant prepositus, the property goes to the ascendant, encumberance, substitution, of any kind whatsoever in the
thats why theres a delay. but upon the death of the ascendant legitime. So that the testator cannot circumvent law on
reservor, and the reservees are still alive, then they inherit the legitimes by imposing very difficult conditions.
property by intestacy.
Q: Are there instances where the legitime is burdened under
EXTINGUISHMENT OF RESERVA the law?
A: There are only 2 instances when legitime is burdened.
1. Upon death of reservor it is already extinguished.

The property will now go to reservees 1. Reserva Truncal
2. Upon death of all would-be reservees.
3. Upon loss of loss of property without fault or Even if it is legitime of reservor it is subject to a burden which
negligence of reservor is the reserva;
4. Prescription
5. Adverse Possession. (Property which is not titled) 2. Partition
6. Upon registration under Torrens System as free
from the reservation;
the testator can prohibit the partition of his estate, even if it
7. upon renunciation or waiver by all of reservees forms part of legitime; for a period not exceeding 20 years; we
after death of reservor. will discuss that when we go to Partition.
so in these cases wala nay reserva truncal. Article 905. Every renunciation or compromise as regards a
future legitime between the person owing it and his
compulsory heirs is void, and the latter may claim the same
Q:What if the property is in the hands of reservor and
upon the death of the former; but they must bring to collation
property is expropriated by government, Is reserva
whatever they may have received by virtue of the renunciation
extinguished?
or compromise.
A: as to just compensation, that is still subject to right of
reservees.
So you cannot renounce, waive, or enter into a compromise
agreement regarding future legitime. WHY? Because during
Q: What id property is destroyed, but it was insured? Who is lifetime of decedent your right to your legitime is an
entitled to insurance proceeds expectancy or inchoate right;
A: It will be for the benefit of would-be reservees. Pero if at the
time of time of death of reservor there are no more reservees
Upon death of testator, can you waive? Yes, there is no
alive it will pertain to the estate of the reservor.
prohibition; for as long as decedent has already died as you
already have a vested right.
Article 904. The testator cannot deprive his compulsory heirs
of their legitime, except in cases expressly specified by law.
Q: A, B, C, D mga igsuon, entered into a compromise
agreement; in case mamatay atong parents ako si A in
consolation of 10M I will no longer run after my legitime; so
gitagaan syag 10M sabot nila na pag mamatay na ang ilang reduction? it should be the heirs as they are the ones directly
parent dili na mangayo si A sa iyang legitime. Is that valid? affected.
A: No. that is not valid; because again the decedent is not deat;
inchoate pa ang ilahang rights Same thing kung DONATIONS;
Q: So namatay na ang parents; what will happen to 10M na Example. During his lifetime, Testator donated to "X" a land
nareceive ni A pursuant to their compromise agreement? valued at 10M upon his death he left an estate worth 2M; and
A: It will be considered as an advance of A's legitime. but they he left legitimate children. How much is the legitime in that
must bring to collation whatever they may have received by case? so you have to collate the 10M; So (10M plus 2M at time
virtue of renunciation or compromise. of death = 12) 12Million Net estate;
Article 906. Any compulsory heir to whom the testator has left Half of 12M is the legitime, the other half is the free portion.
by any title less than the legitime belonging to him may So obviously the donation is innoficious; if given to a stranger,
demand that the same be fully satisfied. the compulsory heirs can petition to abate donation, and he
will return 4M so that legitime of compulsory heirs can be
given
(because 6M ang legitime; so 10M donation MINUS 6Million
Completion of legitime; legitime = 4M)
So maybe in the will he was given 1M as legacy or device but
his legitime is 1Billion so he is still entitled to remainder - he is
entitled to completion of his legitime. Example. Si "X" is one of the compulsory heirs, he is not a
stranger; 10M was donated to him; so if the testate left "x" "a"
"b" each is entitled to 2M share from the 6M donation; Then
Completion of Legitime is different from Preterition. si X already received 10M; so if it won't be reduced
maapektuhan si "A" and "B" Therefore X has to return 4M so
• In completion of legitime something is given to heir -
that ang legitime ni "a and B" can be given. Remaining shall be
by legacy, device, or donation. In Preterition nothing
charged to free portion.
is given to ommitted heir; he is left out in the
inheritance; even by intestacy there is nothing left for
him. Article 908. To determine the legitime, the value of the
• Further, in completion of legitime there is no property left at the death of the testator shall be considered,
annulment of institution of heirs because we just give deducting all debts and charges, which shall not include those
the legitime of that heir; whereas in Preterition the imposed in the will.
institution of heirs shall be annulled.
• If in the will there is an heir given less than his
To the net value of the hereditary estate, shall be added the
legitime, the will is still valid; If there is Preterition, the
value of all donations by the testator that are subject to
entire will cannot be given effect and everything goes
collation, at the time he made them.
by intestacy.
So how do we determine NET HEREDITARY ESTATE (NE);

Article 907. Testamentary dispositions that impair or diminish
the legitime of the compulsory heirs shall be reduced on
petition of the same, insofar as they may be inofficious or X- legitimate child
excessive.
Y- Stranger
Example. Testator left an estate worth 12Million, he is

Value at time of death – 10M
survived by legitimate children; so legitime 6M; but in will he
gave legacy of 10M to "X" a friend. What is the nature of that • Donations
legacy? So it is innoficious because it exceeds the Free Portion o 2M to X
(which is 6M); So that can be reduced; who will complain for
o 1M to Y W = 1,283,333
• Taxes - 300K V = 1,283,333
• Other debts – 5M X = 1,283,333
• Legacies – 2M
• Devices – 3M So since si X naka receive ng 2M donation that will be
considered as an advance to his legitime; pero iyahang
legitime is 1,283,333. SO,
10M (value at time of death) + 3M (donations) = 13M
2M – 1,283,333 = 716,666.67
13M - 300k (taxes) - 5M (other debts) = 7.7M
So the excess is: 716,666.67.

Net Hereditary Estate = 7.7M
This excess will be charged to the FP; This will not be

Note: this does not include those imposed in will which are returned by X as there is still a FP of 3,850,000.
the legacies and devices. So pagkuha sa legitime and FP didto
na I deduct ang legacies and devices but for purposes of
computing net estate kanang mga grant na legacies and Q: How about donation to Y is it innoficious?
devices wala na silay labot. So that is the implication A: No, its not. It can still be covered by the FP.
of:“deducting all debts and charges, which shall not include
those imposed in the will.”
Computing the FP/ Free Portion
Article 909. Donations given to children shall be charged to
their legitime. FP = 3, 850,000 – 716,666 – 1,000,000
Donations made to strangers shall be charged to that part of
the estate of which the testator could have disposed by his last RULES IN DISTRIBUTING FRP:
will.
If the FP is not enough to satisfy the donations, legacies etc.
Insofar as they may be inofficious or may exceed the
disposable portion, they shall be reduced according to the 1. First satisfy the donations
rules established by this Code. a. Between two or more donations the
earlier donation is preferred;
2. Then (Art. 911) If nay gi declare si testator na
Example. So assuming X is a legitimate child, Y is the
Preferential legacy or device; if wala then:
bestfriend of testator; Y is considered a stranger.
3. All others PRO-RATA
W, V, X are the children.

Note: This only applies if nay donations and compulsory heirs;
Iba ang rule if purely legacy or device lang ang meron.
X received a donation of 2M
Y received a donation of 1M
Article 910. Donations which an illegitimate child may have
received during the lifetime of his father or mother, shall be
Net Estate is 7.7M charged to his legitime.
FP = 3,850,000 Should they exceed the portion that can be freely disposed of,
they shall be reduced in the manner prescribed by this Code.
L = 3,850,000
So,
Article 911. After the legitime has been determined in Article 912. If the devise subject to reduction should consist
accordance with the three preceding articles, the reduction of real property, which cannot be conveniently divided, it
shall be made as follows: shall go to the devisee if the reduction does not absorb one-
half of its value; and in a contrary case, to the compulsory
heirs; but the former and the latter shall reimburse each
(1) Donations shall be respected as long as the legitime can be other in cash for what respectively belongs to them.
covered, reducing or annulling, if necessary, the devises or
legacies made in the will;
The devisee who is entitled to a legitime may retain the entire
property, provided its value does not exceed that of the
(2) The reduction of the devises or legacies shall be pro rata, disposable portion and of the share pertaining to him as
without any distinction whatever. legitime.
If the testator has directed that a certain devise or legacy be Here, there is a devise, but it should be reduced because it is
paid in preference to others, it shall not suffer any reduction inofficious, otherwise the legitimes of the compulsory heirs
until the latter have been applied in full to the payment of the will be prejudiced.
legitime.
Rule:
If the devise consist of real property, which cannot be
(3) If the devise or legacy consists of a usufruct or life annuity, conveniently divided.
whose value may be considered greater than that of the
disposable portion, the compulsory heirs may choose between
complying with the testamentary provision and delivering to e.g. 50 sq.m. lot, okay pa ni sya kadako, pero kung e-
the devisee or legatee the part of the inheritance of which the divide pa ni nimo 25 sq. m. each or smaller, murag kasilyas na
testator could freely dispose. lang ang ma-construct nimo ana- so it would be useless to
divide.
This will apply if again there are compulsory heirs AND So it’s either:
donations inter vivos. AND HA SO DAPAT NAA BOTH. • it will go to the devisee, and then compensate the
compulsory heirs, or
• it will go to the compulsory heirs and they will just
RULES IN DISTRIBUTING FRP: compensate the devisee.
If the FP is not enough to satisfy the donations, legacies etc. “if the reduction absorbs MORE THAN one-half of its value –
1. First satisfy the donations it shall go to the compulsory heirs.”
a. Between two or more donations the • Kay gamay man kaayo ang mabilin sa devisee, more
earlier donation is preferred; than half, let’s say sa example, 20 sq. m. na lang
mabilin sa iyaha, ihatag na lang na tanan sa
2. Then (Art. 911) If nay gi declare si testator na
compulsory heirs, the he will just be paid; or
Preferential legacy or device; if wala then:
3. All others PRO-RATA
• Kung ang mabilin sa devisee kay 30 sq.m. after
reducing, then ihatag na lang na tanan sa iyaha,
Please remember this because in Art 950 there is a similar bayaran na lang niya ang compulsory heirs.
situation where FP is not enough to satisfy donations, legacies
and devices, but Art 950 will only apply if there are no
compulsory heirs; because by then we will not collate Article 913. If the heirs or devisees do not choose to avail
donations; only to apportion FP among legacies and devisees. themselves of the right granted by the preceding article, any
heir or devisee who did not have such right may exercise it;
should the latter not make use of it, the property shall be sold
September 30; Part 1 & 2 Flores at public auction at the instance of any one of the interested
parties.
• Kung walay gusto mag-exercise sa right under Art. G.R. Nos. 89224-25. January 23, 1992.
912, any devisees or heirs who did not have such
MAURICIO SAYSON v. COURT OF APPEALS
right, can exercise the right under Art. 912; or if wala
jud,
The fiction of law created by the adoption is only between the
• The property can be sold at a public aution and they adopter and the adoptee, it does not extend to the relatives of
can just divide it. the adopter.
Article 914. The testator may devise and bequeath the free In representation, the adopted inherits not from the adopter
portion as he may deem fit. but from the decedent with whom he has no relationship. It is
required in representation that the representative himself
must be able and qualified to inherit from the decedent
In so far as the free portion, the testator has the freedom of himself.
disposition.
Here, the adopted child cannot represent the adopter, the

Of course, from the free portion, we get the legitime of the fiction of law is only between them, the adopter and the
spouse and of the illegitimate children, but after that there is adopted.
actually the freedom of disposition.
RELATIONSHIP CREATED BY ADOPTION DOES NOT EXTEND

This is just limited by the RULE ON INCAPACITIES, because even TO THE BLOOD RELATIVES OF EITHER PARTIES. — While it is
if you want to give to your mistress a property, under the Law true that the adopted child shall be deemed to be a legitimate
on Incapacity – that is NOT allowed, the mistress is child and have the same right as the latter, these rights do not
incapacitated to receive the legacy, devise or inheritance. This include the right of representation. The relationship created by
is one of the limitations. the adoption is between only the adopting parents and the
adopted child and does not extend to the blood relatives of
either party.
THE INHERITANCE OF AN ADOPTED CHILD
For example, in Adoption – di ba you can adopt your own child,

Q: Is an adopted child entitled to a legitime?
to raise the status of the child to legitimacy,
• BUT what if the adopted child is the illegitimate child
A: YES. An adopted child is entitled to a legitime. of the adopter?
• Here, in relation to the decedent or the parents, there
is a blood relationship.
The adopted child before the Domestic Adoption Act:
• Again, relationship created by adoption does not
The Family Code, New Civil Code – under these laws, same lang extend to the blood relatives, BUT here there is
gihapon ang treatment, an adopted child has the same rights actually a blood relation, the adopted is also the
as legitimate children. illegitimate child of the adopter, SO CAN THE
ADOPTED CHILD NOW REPRESENT? No.
Q: Can an adopted child represent the adopter?

G.R. No. 77867 | February 6, 1990
If the adopter dies ahead of the adopted, and his parents also
died or his ascendants, CAN THE ADOPTED CHILD REPRESENT ISABEL DE LA PUERTA v. CA
THE ADOPTER, INSOFAR AS THE PARENTS OR ASCENDANTS OF
THE ADOPTER ARE CONCERN?
The illegitimate child cannot inherit because of the IRON BAR
A: No. RULE. Even if it is the legitime, legal succession or insofar as
the legitime is concerned because it is also by operation of law,
still there is a BAR between the legitimate family and the
illegitimate child. The adoption did not improve his status – but
ony insofar as the relatives of the adopter is concerned, sa
adopter, he is entitled to inherit, he has the same rights as the Q: How about the biological parents of the adopted child, can
legitimate children. they inherit from the adoptee?
From the full text: RA 8552, Section 16. Parental Authority. – Except in cases
The reason for this rule was explained in the recent case of where the biological parent is the spouse of the adopter, all
legal ties between the biological parent(s) and the adoptee
Diaz v. Intermediate Appellate Court, thus:
shall be severed and the same shall then be vested on the
adopter(s).
Article 992 of the New Civil Code provides a BARRIER or IRON
CURTAIN in that it prohibits absolutely a succession ab
intestato between the illegitimate child and the legitimate The intention behind the law is to cut off the ties, between the
children and relatives of the father or mother of said legitimate biological parent and the adopted child.
child. They may have a natural tie of blood, but this is not
recognized by law for the purpose of Article 992. Between the Even in the proceedings for adoption, it is confidential, and
legitimate family and the illegitimate family there is presumed
then when you adopt, all records are confidential.
to be an intervening antagonism and incompatibility. The
illegitimate child is disgracefully looked down upon by the • Unlike sa Annulment, naay annotation, naay trace sa
legitimate family; the family is in turn, hated by the illegitimate imong previous marriage. Pero pag ADOPTION, wala
child the latter considers the privileged condition of the gyud nay traces, it is as if anak gyud ang adopted. So
former, and the resources of which it is thereby deprived; the dili gyud na supposed e-reveal kung kinsa ang
former in turn sees in the illegitimate child nothing but the biological parents kay cut-off na inyong relationship.
product of sin, palpable evidence of a blemish broken in life; GR: The biological parents are no longer entitled to inherit
the law does no more than recognize this truth, by avoiding from the adopted.
further ground of resentment.
Q: Can the adopter inherit from the adopted?
EXC: Bartolome v. SSS
• Although this is not actually on the right to inherit but
A: YES. Republic Act No. 8552 or the DOMESTIC ADOPTION to get the benefits from SSS.
ACT.
Si John (adopted child) namatay. He was employed as an
electrician, an accident occurred on board the vessel whereby
Section 18. Succession. – In legal and intestate succession, the steel plates fell on John, which led to his untimely death – so
adopter(s) and the adoptee shall have reciprocal rights of mao to namatay sya. At the time of his death, childless and
succession without distinction from legitimate filiation. unmarried.
However, if the adoptee and his/her biological parent(s) had Ang iyahang adopter kay patay na pod. Ang nabilin karon kay
left a will, the law on testamentary succession shall govern. ang iyang biological parent.
Q: Can the child of the adopted, inherit from the adopter? The reason for SSS in disallowing the claim of the biological
parent is because, there was already an adoption - and this
already severed the ties between adopted child and the
*There is still no jurisprudence regarding this matter accoding biological parent.
Atty. LCYE, but for her:
We should take into consideration in this case that the adopter

He (child of the adopted), can also inherit from the adopter, died during the minority of the adopted, and that time RA 8552
because it is a consequence of the adoption. Alangan naman was not yet in effect, although by analogy the SC referred to
gi-adopt lang nimo sya and walay labot iyang mga anak. the provisions of RA 8552. But NOW, we are governed by the
DOMESTIC ADOPTION ACT.
So here when the adopter died during the minority of the To be sure, reversion of parental authority and legal custody in
adopted, the parental authority of the biological parents favor of the biological parents is not a novel concept. Section
reverted, because what will happen to John here, who will take 20 of Republic Act No. 8552 (RA 8552), otherwise known as the
care of him. That’s why the biological parent can still get the Domestic Adoption Act, provides:
benefits.
Section 20. Effects of Rescission.– If the petition [for rescission

Bartolome vs Social Security System of adoption] is granted, the parental authority of the adoptee’s
biological parent(s), if known, or the legal custody of the
G.R. No. 192531 November 12, 2014
Department shall be restored if the adoptee is still a minor or
Facts: incapacitated. The reciprocal rights and obligations of the
John Colcol (John), born on June 9, 1983, was employed as adopter(s) and the adoptee to each other shall be
electrician by Scanmar Maritime Services, Inc., on board the extinguished.
vessel Maersk Danville, since February 2008. As such, he was
enrolled under the government’s Employees’ Compensation
Moreover, John, in his SSS application, named petitioner as
Program (ECP). Unfortunately, on June 2, 2008, an accident
one of his beneficiaries for his benefits under RA 8282,
occurred on board the vessel whereby steel plates fell on John,
otherwise known as the “Social Security Law.” While RA 8282
which led to his untimely death the following day. John was, at
does not cover compensation for work-related deaths or injury
the time of his death, childless and unmarried. Thus, petitioner
and expressly allows the designation of beneficiaries who are
Bernardina P. Bartolome, John’s biological mother and,
not related by blood to the m ember unlike in PD 626, John’s
allegedly, sole remaining beneficiary, filed a claim for death
deliberate act of indicating petitioner as his beneficiary at least
benefits under PD 626 with the Social Security System (SSS) at
evinces that he, in a way, considered petitioner as his
San Fernando City, La Union. However, the SSS La Union office,
dependent. Consequently, the confluence of circumstances –
in a letter dated June 10, 20095 addressed to petitioner,
from Cornelio’s death during John’s minority, the restoration
denied the claim on the ground that due to the Adoption of
of petitioner’s parental authority, the documents showing
John by Cornelio Colcol, petitioner Bartolome is no longer
singularity of address, and John’s clear intention to designate
entitled to be the beneficiary as the parent of John.
petitioner as a beneficiary – effectively made petitioner, to Our
mind, entitled to death benefit claims as a secondary
Issue: beneficiary under PD 626 as a dependent parent.
Whether or not petitioner is entitled to the pension of the

deceased biological child despite adoption. Q: If according to RA 8552 the relation between the child and
biological parent is cut off, how about the brother/sister of the
former?
Held:
YES. When Cornelio, in 1985, adopted John, then about two (2)
years old, petitioner’s parental authority over John was A: Dili na sila igsoon, unsa man ang reason nganong related
severed. However, lest it be overlooked, one key detail the ECC sila? Tungod na sa ilang biological parents, so kung severed ang
missed, aside from Cornelio’s death, was that when the relation ni child sa iyang parents, with more reason nga wala
adoptive parent died less than three (3) years after the na pod silay relation sa iyang biological brother/sister. Wala
adoption decree, John was still a minor, at about four (4) years pay jurisprudence ani, but this is my supposition.
of age.
In fact, in this case of Bartolome vs. SSS, the court mentioned
John’s minority at the time of his adopter’s death is a that:
significant factor in the case at bar. Under such circumstance,
parental authority should be deemed to have reverted in favor
Our consistent ruling that adoption is a personal relationship
of the biological parents. Otherwise, taking into account Our
and that there are no collateral relatives by virtue of
consistent ruling that adoption is a personal relationship and
that there are no collateral relatives by virtue of adoption, who adoption, xxx xx x.
was then left to care for the minor adopted child if the adopter
passed away? Q: How about sa iyang present na mga igsoon? Kay kaning si
adopter naa pod syay mga anak.
• Legitimate parents
A: For example, si X ug Y mag igsoon, then naay igsoon na • Spouse of the decedent
adopted- si B, the three of them can inherit from the adopter. • Adopted child of the decedent
In fact, because of B’s presence, mabawasan ang ilang share. This case was decided in 1977, so the New Civil Code was the
That’s one consequence. one in effect.
Q: The question is, would B be able to inherit from X and Y, or Here the SC said, the fiction of law created by adoption is only
vice versa? between the adopter and the adopted child,
• the tie that binds the adopted child and the adopter
A: We can apply the same principle as to the parents of the is merely the legal fiction created by law, whereas
adopter. • the tie that binds the adopter and his parents is blood
relationship.
The SC would not be fair and just if we exclude the parents who
In the case of Dela Puerta vs CA: are related by blood to the adopter by the presence of the
"By adoption, the adopters can make for themselves an heir, adopted who is merely related to the adopter by fiction of law.
but they cannot thus make one for their kindred.”
To be fair and equitable, the solution arrived at by the SC here

Meaning, sa adopter lang, sa iya lang, NOT for the others. is that:
• The adopted child was given an inheritance the same
Insofar as the other kindred of the adopter is concerned, dili as an illegitimate child. (wala sya nahimong
sila included sa inheritance, insofar as succession is concerned. illegitimate, ang iyaha lang share is parehas sa
illegitimate child).
In this case, the sharing would be:
Q: What if the adopted child will concur with the legitimate
parents of the adopter? ½ to the parents
¼ to the spouse (legal succession)
For example namatay si adopter and he is survived by his ¼ to the illegitimate, or here – the adopted child.
legitimate parent and by the adopted child.
Atty. LCYE: It’s really different, because the SC is not just
A: The rule here is that if you are a legally adopted child, you interpreting the law here, it is actually amending the law. Kay
have the same rights as a legitimate child- and under the law giusab naman niya ang shares, but anyway the SC is final.
on Succession, if you are a legitimate child or descendant, you
will exclude the legitimate parents or ascendants of the
BUT now, we have THE FAMILY CODE which took effect on
testator/decedent.
August 3, 1988 and DOMESTIC ADOPTION ACT.
So here, would the adopted child exclude the legitimate

Q: Would this ruling in Del Rosario vs. Conanan be still
parents of the adopter?
applicable now?
We have this case of Del Rosario vs. Conanan, it actually refers

• Under the FAMILY CODE we have Art. 189 on
to intestate succession.
Adoption
The question here is, whether or not the adopted child will
Art. 189. Adoption shall have the following effects:
exclude the legitimate parents.
(1) For civil purposes, the adopted shall be deemed to be a

There survivors here were the;
legitimate child of the adopters and both shall acquire the
reciprocal rights and obligations arising from the relationship ➢ If you are the lawyer for the parents and then this is
of parent and child, including the right of the adopted to use the question, you can use the ruling in Del Rosario vs
the surname of the adopters; Conanan.
(2) The parental authority of the parents by nature over the You can argue that even if there is a new law, but
adopted shall terminate and be vested in the adopters, except basically the provisions of the new law, in relation to the rights
that if the adopter is the spouse of the parent by nature of the of the adopted child are the same.
adopted, parental authority over the adopted shall be
exercised jointly by both spouses; and
➢ If you are the lawyer for the adopted child, you have
to strictly apply the terms of the Domestic Adoption
(3) The adopted shall remain an intestate heir of his parents Act - that “without discrimination of any kind”. Since
and other blood relatives. the adopted child is considered as a legitimate child,
then the legitimate parents of the adopter should be
excluded.
• Under DOMESTIC ADOPTION ACT.
Again, wala pa tay specific jurisprudence ani, but if it will be
Effects of Adoption: asked in the Bar Exam, then you can cite the two arguments.
What matters is how you legally argue, the jurisprudence lang
is the case of Del Rosario vs. Conanan.
Section 16. Parental Authority. – Except in cases where the
biological parent is the spouse of the adopter, all legal ties
between the biological parent(s) and the adoptee shall be Section 6
severed and the same shall then be vested on the adopter(s).
DISINHERITANCE
Section 17. Legitimacy. – The adoptee shall be considered the Article 915. A compulsory heir may, in consequence of
legitimate son/daughter of the adopter(s) for all intents and disinheritance, be deprived of his legitime, for causes
purposes and as such is entitled to all the rights and obligations expressly stated by law.
provided by law to legitimate sons/daughters born to them
without discrimination of any kind. To this end, the adoptee is
entitled to love, guidance, and support in keeping with the As we have discussed before, the compulsory heir is entitled
means of the family. to a legitime, and his legitime is protected by law, and
therefore the testator/decedent cannot just deprive the
compulsory heir of his legitime.
Section 18. Succession. – In legal and intestate succession, the
adopter(s) and the adoptee shall have reciprocal rights of
succession without distinction from legitimate filiation. We already discussed before katong mga possible ways by
However, if the adoptee and his/her biological parent(s) had which the compulsory heir may be deprived by his legitime,
left a will, the law on testamentary succession shall govern. but naa gihapoy safeguards provided by law. So now, another
safeguard is the RULE ON DISINHERITANCE.
• Under the New Civil Code.
It’s the same. That is why the issue actually arose, because the Q: What is the meaning of DISINHERITANCE?
New Civil Code which was in effect at this time – it was also
provided that the adopted child is considered as a legitimate
A: is a process or act through a testamentary disposition of
child, shall have the same rights as a legitimate child.
depriving in the will any compulsory heir of his legitime for true
and lawful causes.
So it was argued na because the legitimate child excludes the
legitimate parents of the adopter – the adopted child would
also exclude the parents, but again the SC said that we have to When you say Disinheritance, it can only happen to a
arrive at a more fair and equitable interpretation. compulsory heir. If you are just a brother or an aunt or a
nephew, you cannot be disinherited because in the first place,
because there is no compulsion upon the testator to provide
something for you. You can just be omitted in the will and must also be for a TRUE CAUSE. Dili kay igo lang gi-
there is no effect whatsoever to the will. mention sa testator then automatic na dayon. In
fact, if it denied by the heir, it has to be proved.
Disinheritance can only be made through a valid will. 5. The disinheritance must be for an EXISTING CAUSE
Example: Dili pwede na ingnon nimo imong anak nga

Article 916. DISINHERITANCE can be effected only through a 5 yrs. old nga if mahimo syang prostitute, or
will wherein the legal cause therefor shall be specified. mahimong kurakot, you would lead a dishonorable
or disgraceful life, you will be disinherited. So kung
matinuod gyud na in the future, enough na ba tong
Q: What are the REQUISITES FOR A VALID DISINHERITANCE? naa sa will? NO. Because at the time when the will
was made, it was not yet in existence. It should be in
existence already.
A:
1. It can be effected only through a VALID WILL 6. The disinheritance must be TOTAL OR COMPLETE
Before there can be a valid disinheritance, there So you cannot just say “I disinherit him of the free
must be a valid will. Meaning, the will also has to portion or ¼ of his legitime” you must disinherit him
comply with all the formalities prescribed by law. for the legitime and everything. It must be total and
complete.
2. It must be made EXPRESSLY
So it has to be distinguished from implied, meaning 7. The cause must be STATED in the will
you have to state in the will that “I hereby disinherit
X or I hereby exclude X, I hereby deprIve X”. Dili Pwede ba na maski the son truly lead a
pwede ng kay wala lang ka na-mention sa will. dishonourable and disgraceful life, tapos dili e-
mention sa will tungod sa ka-dishonorable? Too
Kay kung wala lang ka na-mention sa will, ang effect embarrassing na kaayo. Is there a valid
is Pretirition. disinheritance? No, because it has be to be stated in
the will.
You have to know if it is a case of Disinheritance or
Pretirition, because the consequences are different. Why? So that the child or the heir would know why
he is being disinherited and he can prove that may
3. There must be a LEGAL CAUSE for the disinheritance be it did not really exist, that it was dishonourable or
disgraceful, or may be he was alreadu condoned or
You cannot disinherit your child kay wala ka ganahi forgiven by the testator or there is already
sa iyang hitsura kay mura na syag ka-nawng sa reconciliation. That’s it is important to know the
inyong silingan or tungod kay wala ka ganahi sa iyang ground.
gi-minyoan.
Is it a valid ground? No! it is not among the grounds 8. The heir disinherited heir must also be clearly
provided for by law. IDENTIFIED
4. The disinheritance must be made for TRUE CAUSE 9. The will where the disinheritance is stated should
NOT have been REVOKED.
Even if the will mentions nga “I hereby disinherit my
son because of dishonourable and disgraceful life” Because if the will has been revoled, it cannot be
example: nagpakulot si Vicco (Lol, joke lang to ni Atty. LCYE, bungkag ang class uy
probated and any institution in that will cannot be
hahaha)
given effect anymore due to the revocation.
Example: criminal iyang anak, so pwede ni kay

provided ni as one of the grounds under the law. In the case of Ching vs. CA, just remember that there can be
But, tinuod ba gyud nga criminal iyang anak. So, it no disinheritance without a will in the first place.
The heir disinherited shall be excluded. He cannot receive by

When you speak of disinheritance, in this case, even if one of testate or intestate succession. In fact, a will can contain only
the prayers was for the disinheritance of the heirs, it did not a disinheritance. In that case, the estate shall be distributed by
convert into an intestate or a special proceeding because again intestacy. But here because of the disinheritance, the
disinherited heir shall not participate in the distribution of the
there was no will to speak of, it was just a civil action for
recovery of possession and declaration of nullity of certain estate.
documents. Now what if there is preterition and there is also a valid
disinheritance?
Article 917. The burden of proving the truth of the cause for
disinheritance shall rest upon the other heirs of the testator, EFFECT OF PRETERITION PLUS A VALID DISINHERITANCE
if the disinherited heir should deny it.
SITUATION 1:
This is in relation to what we discussed, that the cause for the
disinheritance must be a true cause, kung e-admit sa heir nga
“Kurakot ko”, so walay problema but if it is denied, the Entire estate is 24M
proponent of the will must prove that it is really for a true
cause and it is existing.
The testator left his 3 legitimate children, A, B, and C. And his
best friend, D. He made a will where:
Article 918. Disinheritance without a specification of the
cause, or for a cause the truth of which, if contradicted, is not
• A is preterited,
proved, or which is not one of those set forth in this Code,
• B is validly disinherited
shall annul the institution of heirs insofar as it may prejudice
• C and D are instituted heirs for the entire estate
the person disinherited; but the devises and legacies and
other testamentary dispositions shall be valid to such extent
as will not impair the legitime. What is the effect of disinheritance? The heir shall be
excluded.
Q: What is important here is that, if the Disinheritance turns
out to be invalid, what is the consequence? What is the effect of preterition? The institution of heir shall
be annulled. The legacies and devises which are not inofficious
shall be respected.
A: It shall annul the institution of heirs insofar as it may
prejudice the person disinherited but the devises, legacies and
other testamentary disposition shall be valid to such extent Will the preterition affect the disinheritance? Is disinheritance
that will not impair the legitime. an institution? No. Diba lahi ang concept sa institution of heirs,
lahi pod sa devise and legacy, lahi pod and disinheritance.
Disinheritance is not an institution of heirs. Therefore,
Q: How is Disinheritance different from Pretirition?
disinheritance will not be affected by preterition.
A: Take note of the wording in Pretirition – devises and legacies

So in this case, there is an annulment of the institution, i-
which are not inofficious.
exlclude nato si D. Because there is preterition, we go to legal
succession. Now in legal succession, who will participate?
In Disinheritance - devises and legacies and other
testamentary dispositions xxx xx x.
1. A, precisely, he is the one preterited, he has to be
given his share.
2. How about B? No, because he is disinherited.
Lifted from 2018 TSN:
3. How about C? Yes.
If the disinheritance is valid, what is the effect? 4. How about the friend? No, because he is not a legal
heir, so he cannot participate in legal succession.
So the 24M shall be divided equally between A and C, 12M 2. We divide the legitime to the legitimate children, A,
B, and C.
each. This is if there is valid disinheritance.
12M/3=4M
Thus, each will get 4M.
Now, what if there is an invalid disinheritance?
3. Distribute the free portion: 12M
Only B, C, D will participate.
EFFECT OF PRETERITION VS EFFECT OF INVALID 12M/3=4M
DISINHERITANCE Thus, each will get 4M.
Wala nay apil si A sa free portion kay wala man siya gi-institute.
SITUATION 2: Entire estate is 24M In fact, gi disinherit pa gani siya. Pero invalid man ang
disinheritance. Ang remedy lang kay ihatag ang iyang legitime.
Therefore, in an invalid disinheritance, ihatag lang nato ang
The testator left his 3 legitimate children, A, B, and C. And his
legitime sa invalidly disinherited, after that, we can give effect
best friend, D. He made a will where:
to all other testamentary dispositions.
• A was preterited
So this is the difference between the effect of preterition and
• The entire estate was given to B,C,D
invalid disinheritance. Again, didto sila mag matter sa
How do we divide? The institution of the heir shall be instituted heir. Sa preterition, if instituted heir ka, wala kay
annulled. So here 24M divided by A,B,C as shares, 8M each. mareceive at all. Pero sa invalid disinheritance, as long as
D will not get anything because his institution is annulled. nasatisfy ang legitime ni invalidly disinherited heir, naa
gihapon kay madawat.
What if A was not preterited but instead, disinherited?

Article 919. The following shall be sufficient CAUSES FOR THE
DISINHERITANCE of children and descendants, legitimate as
• A was invalidly disinherited (testator disinherited A well as illegitimate:
because he was ugly)
• The entire estate was given to B,C,D
(1) When a child or descendant has been found guilty of an
attempt against the life of the testator, his or her spouse,
First, we know that the ground is invalid. So what is the effect? descendants, or ascendants;
The institution of the heir shall also be annulled but only in so
far as the legitime of the invalidly disinherited heir is affected.
In short, in invalid disinheritance, we give the legitime of the (2) When a child or descendant has accused the testator of a
invalidly disinherited heir and then we can give effect to all crime for which the law prescribes imprisonment for six years
other provisions, institutions, legacies, devises. or more, if the accusation has been found groundless;
Ang sa preterition, only legacy and devise, if not inofficious (3) When a child or descendant has been convicted of adultery
shall be respected. But in invalid disinheritance, ma-anull or concubinage with the spouse of the testator;
gihapon ang institution of heirs but only in so far as the
legitime of the invalidly disinherited heir is affected.
(4) When a child or descendant by fraud, violence,
intimidation, or undue influence causes the testator to make a
In this case, how do we distribute? We will give first the will or to change one already made;
legitime of the invalidly disinherited heir.
(5) A refusal without justifiable cause to support the parent or
1. First, we get the Legitime: 24M/2= 12M ascendant who disinherits such child or descendant;
Thus, the legitime of the legitimate children is 12M.
(6) Maltreatment of the testator by word or deed, by the child 1. When a child or descendant has been found guilty of
or descendant; an attempt against the life of the testator, his or her
spouse, descendants, or ascendants
(7) When a child or descendant leads a dishonorable or When the law says “found guilty”, it presupposes that
disgraceful life; the descendant or the child has been found guilty by
final judgment because if it is not final, and
subsequently the child is acquitted then he did not
(8) Conviction of a crime which carries with it the penalty of
really commit the crime mentioned in 919 (1).
civil interdiction.
Although the conviction may come later after the
execution of the will. We don’t have to wait na
maconvict, since mga 20 years pa yang kaso bago
mag-end. So, as long as there is finally conviction, and
October 04; Part 1 & 2 Sioson it is already final.
October 4, 2019
Now, the law says “attempt” against the life of the
Transcribed by: Keziah M. Sioson testator. In your criminal law, there are three stages
of execution: the attempted, frustrated, and
consummated.
ARTICLE 919. The following shall be sufficient causes for the
disinheritance of children and descendants, legitimate as
Q: What if for example, it is to kill to grandfather who
well as illegitimate:
is the testator, or his wife, and it is consummated or
1. When a child or descendant has been found guilty of frustrated, would it be covered?
an attempt against the life of the testator, his or her
spouse, descendants, or ascendants; A: With more reason, because an attempt is even
2. When a child or descendant has accused the testator covered. What more is frustrated and consummated
of a crime for which the law prescribes imprisonment stages.
for six years or more, if the accusation has been found
groundless; Q: How about the degree of participation? Principal,
3. When a child or descendant has been convicted of it could be by direct participation, by inducement, or
adultery or concubinage with the spouse of the by indispensable cooperation. Or it could be an
testator; accomplice, or accessory?
4. When a child or descendant by fraud, violence,
intimidation, or undue influence causes the testator A: Any principal, yes covered. Accomplice, also
to make a will or to change one already made; covered. Accessory, some say na no they’re not
5. A refusal without justifiable cause to support the because it is already after the fact already.
parent or ascendant who disinherits such child or
descendant; 2. False Accusation
6. Maltreatment of the testator by word or deed, by the
child or descendant; The child or the descendant has accused the testator
7. When a child or descendant leads a dishonorable or of a crime. Take note that it is not just a crime, it must
disgraceful life; be a crime which the law prescribes imprisonment of
8. Conviction of a crime which carries with it the penalty six years or more.
of civil interdiction.
Q: What if you tell na your father killed the dog of
your neighbor? That’s a crime, malicious mischief, is
Under 919, we have the grounds to disinherit a child or that covered?
descendant. Here, the child may be legitimate or illegitimate
because they are all compulsory heirs. A: No, it does not carry the penalty of imprisonment
of six years or more.
What are the specific grounds?
Also, the accusation has to be found groundless. So,
dapat acquitted si testator sa crime that was imputed
against him because if he is convicted, then, it means When we say support, the law is very clear na it has
that it is not actually groundless. to be without justifiable cause.
Q: What will be the form of the false accusation? Q: How to be know that the refusal to give support is
without justifiable cause?
A: The heir could be the one who directly filed the
case against the testator, or he testified in a case A: Depende. In your Persons, the amount of support
against the testator falsely. Some also say, for would depend upon the means of the person entitled
indirectly refusing to testify in favor of the testator to give support, and the necessity of the person who
when the testimony of the child or descendant as a needs support. So, kung tambay lang ang anak mo, he
witness would be material to the acquittal of the cannot demand for P100,000 support per week. Or
accused. That is also a false accusation, although kung billionaire ang anak mo, and he is asking for
indirect. support tapos janitor ka, of course he does not need
support in the first place. So, it would depend.
3. When a child or descendant has been convicted of
adultery or concubinage with the spouse of the 6. Maltreatment of the testator by word or deed by the
testator child or descendant
Ang anak mo, may affair sa asawa mo, and convicted The child or descendant here maltreats the testator.
of adultery or concubinage. Here, there must be Take note, there is no mention of the number of times
convicted by final judgment. It is a ground to that the maltreatment took place. It would then mean
disinherit the child. that even if it only happened in only one occasion,
that is already a ground for disinheritance.
Q: What if you are the testator and your child is
convicted of adultery or concubinage with your “By word”, kung niyawyawan mo ang parents mo and
spouse, the child can be disinherited. Can the spouse they are already old, and everyday you make them
also be disinherited? feel na pabigat lang sila, for the parents siguro that
would be very painful. Then one day, nanalo sya ng
If we go to 920 meron ascendant or parent. When the lotto, pwede ka na idisinherit.
parent or ascendant is found guilty of adultery or
concubinage with the spouse of the testator. In 921, “By deed”, pinapalo or binubugbog, that is a ground
this is disinheritance of the spouse. There is no for disinheritance.
provision saying na when the spouse is guilty with the
descendant or child, or parent or ascendant of the When we go to disinheritance of a parent or
testator. ascendant, so the testator is the child, there is no
ground na maltreatment of the parent or ascendant.
Q: Can we say na the spouse cannot be disinherited? Meaning, acceptable na ang parent or ascendant i-
maltreat ang anak. It is not usual if it is the other way
We will go there when we reach 921. around.
SEANGIO v. REYES
4. When a child or descendant by fraud, violence,
intimidation, or undue influence causes the testator This is a holographic will which only provides for the
to make a will or to change one already made disinheritance. Take note of the act done by the child. The
Fraud, violence, intimidation, or undue influence, for will was in Tagalog. (reads it)
these reasons the child or the descendant caused the
testator to make a will or to change one already “Inaalisan ko ng lahat at anumang mana ang panganay
made. This is also a ground to disinherit the child. You kong anak na si Alfredo Seangio dahil sya ay nagging
can later on make another will, disinheriting the child. lapastangan sa akin at isang beses sya nagsalita ng
masasama sa harapan ko at mga kapatid niya. Labis itong
5. Refusal without just cause to support the parent or kinasama ng loob ko, ang mga sinabi ni Alfredo sa akin, na
ascendant ako ay nasa ibabaw ngayon ngunit darating ang araw na sya
naman ang nasa ibabaw at ako sa ilalim…”
Clearly, there was disinheritance when he said hindi sya

makakuha ng mana. The Supreme Court said that there What about yung nag-one night stand ka lang? Is that
grounds mentioned here constitute maltreatment, taken as considered? Debatable. Pwedeng argument natin is
a whole. Like mangutang ka, gamitin mo ang names ng iyong di ba way of life. You cannot define it by a single act.
parents. Hence, this matter is a ground for disinheritance. So maybe. Think of all those possible circumstances
that can be considered dishonorable or disgraceful.
PECSON V. MEDIAVILLO
8. Conviction of a crime which carries with it the
What was involved here was the granddaughter of the penalty of civil interdiction
testator. In this particular case, the testator left a will ,” I
declare that one of my daughters named Teresa, now Kung naconvict ang mga anak mo, or mga apo of a
deceased left a legitimate daughter named Rosario, I also crime which carries with it the penalty of civil
declare that I disinherit my granddaughter Rosario because interdiction, that is a ground for disinheritance. Civil
she was disrespectful to me and because in one occasion, interdiction is just an accessory penalty. It is usually
when I reprimand her, she raised her hand against me imposed when you are convicted of a crime
therefore it is my will that she shall have no share in my punishable with reclusion temporal, reclusion
property. So the defendant her was disinherited. And she perpetua to death. Here, you can be disinherited also.
denied the reason for the disinheritance.
In this case, the SC said that at the time this happened,
Rosario was about 14 years of age and she had received ARTICLE 920. The following shall be sufficient causes for
some attention from a young man. She had received a letter the disinheritance of parents or ascendants, whether
from him, and the grandfather took steps to inquire about legitimate or illegitimate:
the relations between her and the young man. That was that
occasion where the alleged disrespect and disobedience to
his grandfather happened. 1. When the parents have abandoned their children
or induced daughters to live a corrupt or immoral
SC said that based on the records, immediately after the
life, or attempted against her virtue;
event, Rosario lost her mental faculties. Taking into account
2. When the parent or ascendant has been
her tender years and the fact that later on she lost her
convicted of an attempt against the life of the
mental faculties. The conclusion was that she was not
testator, his or her spouse, descendants, or
responsible for the disrespect and disobedience. So, it was
ascendants;
not voluntary and was not intelligent. She was a child, 14
3. When the parent or ascendant has accused the
years old. Siguro first time nya na may nanligaw sa kanya,
testator for which the law prescribes
tapos kontrabido pa ang lolo nya.
imprisonment for six years or accusation has been
Here, there was no intelligence and voluntariness in the act found to be false;
committed so it was not considered a ground for 4. When the parent or ascendant has been
disinheritance. convicted of concubinage with the spouse of the
testator;
7. When a child or descendant leads a dishonorable or 5. When the parent or ascendant by fraud, violence,
disgraceful life; intimidation, undue influence causes the testator
to make a will or to already made;
Ano naman ang dishonorable or disgraceful life? 6. The loss of parental authority for causes specified
Meaning, not an isolated incident. It has the element in this Code;
of habituality of repetition. If one time lang sya 7. The refusal to support the children or
ginawa, that cannot be considered as a way of life. descendants justifiable cause;
8. An attempt by one of the parents against the life
What can we consider dishonorable or disgraceful of the other unless there has been a reconciliation
life, now in our present time? Siguro prostitute, kasi between them.
hindi pa naman allowed sa laws ang prostitution.
Siguro ang anak mo nagprostitute, siguro naman kung
These are the grounds to disinherit the parents or ascendants.
ikaw ang may anak na prostitute hindi ka naman
proud. Its not something you are proud of.
1. When the parents have abandoned their children or Now, there are several reasons for loss of parental
induced daughters to live a corrupt or immoral life, or authority. In fact, emancipation is a ground for the loss
attempted against her virtue; of parental authority.
Abandonment; or Q: When you reach the age of majority, is it a ground

Here it does not have to amount to a crime. For as long for disiniheritance? Like nag-18 kana, can you now
as the parents deprived the child of the basic disinherit your parents? Wala naman na silang
necessities essential for the sustenance, support. parental authority over you.
Education, shelter, clothing, medical attendance.
Inabandon nya, wala sya nagprovide. So, that’s one. A: This should mean that those reasons of loss which
are due to the fault of the parent concerned. We
Induced their daughters to live a corrupt or immoral mentioned about maltreatment, di ba this is not a
life; or ground to disinherit a parent unlike in 919 it is a
ground to disinherit a child if the child commits it
So, gi-bugaw nya ang iyang anak. The law says against the parent. However, when we go to Article
daughters. What about sons? Can sons be corrupted? 332 of the Civil Code, where the parent’s parental
Yes, although that time when the New Civil Code was authority may be deprived or may be suspended if
enacted, this was in 1950, it was not yet conceptualize they treat their children with excessive harshness or
or maybe it was not yet. Siguro before uso yung i- should they give corrupting orders, counsels, or
corrupt ang mga anak na babae, yung mga call boy examples, or should make them beg or abandon.
siguro hindi pa uso, that’s why daughters lang That’s also a ground to disinherit a parent.
nakalagay sa law. Pero you can apply that by analogy.
Just remember that the loss of parental authority
Attempted against their virtue should be caused by the parent, as a ground to
disinherit the parent or ascendant.
When you attempt to rape your daughter, of course
that is a ground for disinheritance. 7. The refusal to support the children or descendants
justifiable cause;
2. When the parent or ascendant has been convicted of
an attempt against the life of the testator, his or her Same lang sya, we have to take into consideration
spouse, descendants, or ascendants; whether the person who is bound to give support has
the means, and the person who needs support really
This is actually the same in disinheritance of a child or needs it.
descendant, same requisites. Same requisites also for
number 3, 4, 5. 8. An attempt by one of the parents against the life of
the other unless there has been a reconciliation
between them.
3. When the parent or ascendant has accused the
testator for which the law prescribes imprisonment For example, A and B are the parents of C. C here is the
for six years or accusation has been found to be false; testator. Under number 8, if A attempts against the life
of B, it’s a ground for the disinheritance of A. But it
does not need a conviction by final judgment. It can be
4. When the parent or ascendant has been convicted of
proved by a mere preponderance of evidence.
concubinage with the spouse of the testator;
Under number 2, “When the parent or ascendant has
been convicted of an attempt against the life of the
5. When the parent or ascendant by fraud, violence,
testator, his or her spouse, descendants, or
intimidation, undue influence causes the testator to ascendants”. Let’s say, A attempted against the life of
make a will or to already made;
C, the testator, or the spouse of the testator, or an
ascendant of the testator, who could also be B, or
6. The loss of parental authority for causes specified in
descendant of the testator.
this Code;
So, number 2 can actually cover the situation 4. When the spouse has given cause for legal separation
contemplated under number 8. But in number 2, we What are the causes for legal separation?
need conviction by final judgment. In number 8, we
need not. ARTICLE 55. A petition for legal separation may be filed on
any of the grounds:
Q: Which is which? Do we need a conviction by final
1. Repeated physical violence or grossly abusive
judgment if the attempt is against the other spouse,
conduct against the petitioner, a common child, or a
who is also an ascendant of the testator? Mother or
child of the petitioner;
father.
2. Physical violence or moral pressure to compel the
petitioner change religious or political affiliation;
A: In that kind of situation, we apply number 8,
3. Attempt of respondent to corrupt or induce the
because it is more specific. Again, it says an attempt by
petitioner, common child, or a child of the
one of the parents against the life of the other.
petitioner, to engage in prostitution, connivance in
such corruption or inducement;
Remember this, especially the differences between the
4. Final judgment sentencing the respondent to
two.
imprisonment for more than six years, even if
pardoned;
ARTICLE 921. The following shall be sufficient causes for 5. Drug addiction or habitual alcoholism of the
disinheriting a spouse: respondent;
6. Lesbianism or homosexuality of the respondent;
1. When the spouse has been convicted of an attempt 7. Contracting by the respondent of a subsequent
against of the testator, his or her descendants, or bigamous marriage, whether in the Philippines or
ascendants; abroad;
2. When the spouse has accused the testator of a crime 8. Sexual infidelity or perversion;
for law prescribes imprisonment of six years or 9. Attempt by the respondent against the life of the
more, and the has been found to be false; petitioner; or
3. When the spouse by fraud, violence, intimidation, 10. Abandonment of petitioner by respondent without
influence cause the testator to make a will or to justifiable cause for more than one year.
change made;
4. When the spouse has given cause for legal
separation; For purposes of this Article, the term "child" shall include
5. When the spouse has given grounds for the loss a child by nature or by adoption. (9a)
authority;
6. Unjustifiable refusal to support the children or the
other. 1. Repeated physical violence or grossly abusive conduct
against the petitioner, a common child, or a child of the
petitioner
Here, the heir disinherited is the spouse of the testator. Again,
some of the grounds here are the same grounds we have
The spouse here may be the husband or the wife. If the wife is
already discussed. Number 1, 2, 3, 5, and 6. They are all the
the one na nambubugbog sa husband, that is also a ground to
same as what we’ve discussed before.
disinherit the wife, although under the VAWC law, you cannot
file a case against your wife but only as to RA 9262.
2. Physical violence or moral pressure to compel the

petitioner change religious or political affiliation
You discussed this under Persons. Let’s relate this to number

6, lesbianism and homosexuality, that’s a ground for legal
separation, also a ground to disinherit a spouse.
Q: Can you disinherit your child because he is gay or lesbian? against the descendant or ascendant under 921 (1), it would
need conviction by final judgment.
A: It is not a ground. However, the spouse can be disinherited.

Ang sa same sex marriage na petition naman ang question Q: What if there is already a decree of legal separation? Do we
there is how about di ba ground ang lesbianism and need to disinherit the guilty spouse?
homosexuality to disinherit, kung i-allow ang same sex
marriage edi of course admitted na they are lesbian or
homosexual. Pano itong ground under the Family Code. A: We discussed this already under the legitime of the spouse.
When there is legal separation, and there is a decree, the guilty
spouse is disqualified to inherit by legal or testamentary
8. Sexual infidelity or perversion succession from the innocent spouse. So, no need for
disinheritance because the guilty spouse is disqualified by
operation of law.
As we have already discussed, when it is the spouse who has
been convicted of adultery or concubinage with the child or
parent of the testator, there is no such similar ground in 921. If there is already a will executed, and now there is a decree of
But it mentions legal causes for legal separation as a ground legal separation, he cannot receive it anymore.
for disinheritance, and sexual infidelity and perversion is a
ground for legal separation. Actually, you can still use that
ground although it would be considered as sexual infidelity or ARTICLE 922. A subsequent reconciliation between the
perversion. Isn’t it sexual infidelity or perversion na ang anak offender and the person deprives the latter of the right to
ng spouse mo ang ka-affair mo, or parent nya. Hence, it could disinherit, and renders ineffectual disinheritance that may
still be used as a ground for disinheritance. have been made. (856)
Reconciliation has the effect of:
9. Attempt by the respondent against the life of the
petitioner 1. If the testator has not yet made a disinheritance in the
will that already deprives him of the right to disinherit
For example, the husband attempted against the life of the the heir;
testator. That is a ground to disinherit the husband. Again, this
was mentioned under Article 919 (1), when the spouse has 2. If there is already a disinheritance made in the will,
been convicted against the life of the testator, his or her that renders ineffective, the disinheritance made in
ascendants or descendants. the will.
Again, in number 1, it requires conviction by final judgment. As defined, reconciliation is the mutual restoration of the
But in legal separation, you only need preponderance of feelings and relationship between the testator and the
evidence. Etong sexual infidelity or perversion, you need not disinherited heir prior to the act which gave rise to the
convict the spouse of adultery or concubinage, unlike in disinheritance. Hence, it must be a bilateral act, mutual. Silang
grounds to disinherit the child or ascendant found guilty of dalawa.
adultery or concubinage with the spouse of the testator, there When you say forgiveness or condonation, the testator has
is a need for conviction by final judgment. forgiven or condoned the act of the heir.
Q: Will forgiveness or condonation erase the ground for
But in 921, if you use the ground under Article 55 of the Family disinheritance? Like the testator, the son attempted against his
Code as a giving cause for legal separation, there is no need for life so the son was found guilty and then he was imprisoned.
conviction by final judgment, mere preponderance of evidence Later on, he saw na nahirapan na ang son nya sa prison, so he
would be sufficient. said na okay anak im forgiving you. And the son said, no, just
wait for me to get out and ill go back after you.
A: No. That is not reconciliation. Condonation or forgiveness is
Going back, to mere attempt of the spouse against the life of not equivalent to reconciliation. When you say forgive or
the testator, we can actually use Article 55 (9) which does not condone, that is unilateral on the part of the testator. It is
need conviction by final judgment. But if it is an attempt reconciliation which deprives the testator the right to
disinherit or renders it ineffectual any disinheritance already inherited by X, because his parent B was disinherited. Under
made. the law the disinherited parent has no usufruct or
administration over the property of this minor child. This is one
exception to the Family Code na ang parents merong usufruct
Q: How else can the disinheritance be ineffectively made? For or administration over the property of the minor child.
example, there is already a ground for disinheritance, and the
testator did not expressly forgive his son. Then, he made a will
subsequent to that act which gave rise to disinheritance, he Q: Then, who has the right of administration?
instituted the child as an heir. Like lets say he made a will
A: The other spouse. The other parent.
disinheriting the son, then later on he made another one
restoring his son to the will, giving him a share.
Q: What if wala nang ibang parent, si B nalang?
Will the disinheritance will be rendered ineffective?
A: Then there must be a guardian appointed for that particular
Take note that the second will has provisions which are property.
different from the first one. This would amount to a revocation
of the will where the disinheritance was contained. Here, the
reason why the will containing the disinheritance cannot be SECTION 7
given effect is because it was revoked. There is a revocation. LEGACIES AND DEVISES
Or sinira nya ang will containing disinheritance, that is also a
revocation. Hence, the disinheritance and all the institution ARTICLE 924. All things and rights which are within the
cannot be given effect because of revocation. Or if the will was commerce of man be bequeathed or devised.
disallowed, its not a valid reason and any disinheritance there
cannot be given effect.
I think we discussed already in Inheritance Article 776, what
does inheritance include: all the properties, rights, and
ARTICLE 923. The children and descendants of the person obligations which are transmissible.
disinherited shall take his or her place and shall preserve the
rights of compulsory heirs with respect to the legitime; but
the disinherited parent shall not have the usufruct or But here, what constitutes inheritance: properties, rights, and
administration of the property which constitutes the obligations.
legitime.
But when you say legacies or devisees, all things and rights
which are within the commerce of men. It does not mention
obligations. Hindi sya kasali. Again, ang obligations pwede
Take note that a person disinherited can still be represented.
syang iinherit ni heir up to the extent of the value of the
inheritance. Ang sa heir, residual share, the net of the
Example: This is the testator, ang mga anak nya si A, B, and C. properties, rights, and obligations.
B was validly disinherited. How do we divide the estate?
Meanwhile, in legacies or devise, specific sya.
12 million. So legitime, half so 6 million. Ang compulsory share
ng legitimate children, 3 sila so divided by 3. But disinherited si
When you say legacy, meaning specific personal or movable
B, dalawa nalang? No, because B is represented by X (son).
property.
Instead of going to B, the property will go to X. 6 divided by 3
is 2 Million each.
When you say devise, specific real or immovable property. So,
all things and rights.
For example, minor si X. instead of going to B, the share. It will
go to X by right of representation. Now, under the Family Code,
sino ang mag-administer sa property ni X na minor? Q: What can we make subject of inheritance?
Supposedly the parents. However, here the property was
A: Those properties within the commerce of men. Those of res If for example, ang binigay nya kay A is only his legitime, then
nullus cannot be the subject of a legacy. Those of res sinabihan sya ni testator na bigyan nya pa ng 1 hectare of land
communes cannot be the subject of a devise or legacy. Those si X, hindi na yun pwede, because that would already impair
outside the commerce of men cannot be the subject. A’s legitime as a compulsory heir. So, that is only allowed if he
has been given over and above his legitime.
Q: What about parts of the human body?

Or, in the will, X, Y, and Z are devisees. So they have lands.
Now, the testator says, X, out of that parcel of land given to
A: Only when we comply with the Organ Donation Act. When you, you should give P10,000 every month to M. That is a
you give a part of your body, an organ, under the ODA, you can legacy. So, a legatee or a devisee can also be charged with the
do so through a donation or will. obligation to deliver a legacy or devise. In that case, it would
be called as SUB-LEGACY or SUB-DEVICE. A legacy within a
legacy, or a devise within a devise.
When it is through a will, that is legacy. It cannot be a devise
kasi hindi naman real property ang heart mo.
Pwede nga, ikaw si legatee and then bigyan ka obligation na
bigyan ng P10,000 every month si M. Pwede na maubos ang
These are the things and rights, or properties subject of
legacy mo, kasi si testator naman gumawa non. You do not
inheritance which can be transferred in succession is the same
have a legitime to be protected. But the testator cannot say na
as in legacies or devises. kuha ka nalang sa own pocket mo para magcontinue pagbigay
mo kay M, if ubos na. No, he cannot do that. The extent is only
ARTICLE 925. A testator may charge with legacies and up to his legacy.
devises not only his compulsory heirs but also the legatees
and devisees. The latter shall be liable for the charge only
ARTICLE 926. When the testator charges one of the heirs with
to the extent of the value of the legacy or the devise
a legacy or devise, he alone shall be bound. Should he not
received by them. The compulsory heirs shall not be liable
charge anyone in particular, all shall be liable in the same
for the charge beyond the amount of the free portion
proportion in which they may inherit. (859)
given them. (858a)
Who can be charged with the obligation to give the legacy or This talks about an heir charged with legacy or devise. Then,
sya lang ang may obligation.
devise?
Example, it is silent. Like the testator did not mention kung sino
Let’s remember, when you say legacy or devise, we are
referring to the free portion. When the law says a testator may sa heirs ang may obligation, although it was mentioned,
nothing was said in particular. Then, all shall be liable in the
charge with legacies and devises not only his compulsory heirs
same proportion.
but also the legatees and devisees.
Remember, i-charge nya ang several legatees or devisees

Q: Who has the obligation to deliver the legacy and devise?
although he did not mention kung magkano ang sharing,
because halimbawa ang nasa will lang is “I hereby give a legacy
A: Pwede ang heirs. Example, in the will the testator instituted of P10M to X.”
A, B, and C as his heirs. Si A, meron obligation to deliver a
legacy to X, allowed sya. Even if A is a compulsory heir, as long
Q: Who is responsible to give that legacy? Dami silang
as what he has given as legacy or devise will not impair his
instituted, like “I hereby institute A, B, and C as my heirs and I
legitime. Pwede nga in the will if the testator gave him a big
share and pwede nya ditto kuhanin ang ibibigay kay legacy or give P10M to X.”
devisee but it shall not reduce his legitime, in all cases his
legitime shall be preserved.
A: It would not be A, B, or C because it was not stated in the ARTICLE 928. The heir who is bound to deliver the legacy or
will na sila ang responsible. It should be the estate of the devise shall be liable in case of eviction, if the thing is
testator, if walang particular person in-charge in giving that indeterminate and is indicated only by its kind. (860)
particular legacy or devise.
Generic or Indeterminate v. Specific or Determinate.

ARTICLE 927. If two or more heirs take possession of the
estate, they shall be solidarily liable for the loss or
destruction of a thing devised or bequeathed, even though If the legacy or devise is generic, “I am giving to A a red car.”
only one of them should have been negligent. (n) Lahat ng cars ni testator red. Hence, any one of these cars can
be given.
We are referring to a situation where there is no partition yet,

because if there is partition already each heir is the owner of a Q: Who shall decide which is which?
particular share given to him. Pero if wala pa napartition, the
estate shall be held in co-ownership. No co-owner can
A: Depende. Example, if it is an heir who is in-charge like “Ikaw
specifically claim the estate or any portion of the estate. All of
X, ikaw ang may obligation to deliver a red car to R.” So, he can
them are entitled to the entire estate.
just choose from any of the cars of the testator.
Q: What if two or more take possession of the estate, let’s say

Q: What if there is a problem with the car he delivered? It is
A and B took possession of the estate, like a house and lot in
not yet paid, or it was mortagaged. Later on R was
Jacinto. Then, nasunog. Who is liable?
dispossessed to his legacy, the car. What shall R do?
A: They shall be held solidary liable. This presupposes that A: The law says there is liability against eviction. Why? Because
there is negligence. Kung nasunog sya, without the fault or it was the heir who chose which car to deliver. It is not the fault
negligence of A and B kahit na in possession sila, they are not of the testator, hindi rin ni legatee. So, he should deliver
liable. another car. It is the liability of the heir bound to deliver the
legacy or devise.
Q: What if it was only the fault of A, not by B?
Q: How about if it is specific? The testator said, “I hereby give
to R my red Honda Civic with plate number 14344.” Later on,
A: B is still liable, because of their solidary liability. This is one he was dispossessed of the car. What would happen next? Can
of those situations where there could be a solidary
R demand for another car?
obligation. When the law provides for solidarity, aside from
when the nature of the obligation provides for solidarity, or
when it is expressly stipulated. A: No, because it was the testator himself who ordered the
delivery of that specific car. You cannot blame the testator
since binigyan ka nalang nga. Wala na, if it is specific.
Here, even if it is only the fault of A, they are bound solidarily
liable. Anyone of them can be held liable for the entire
destruction. Kung P1M pwede mong kuhanin kay A or kay B. ARTICLE 929. If the testator, heir, or legatee owns only a part
of, or an interest in the thing bequeathed, the legacy or
devise shall be understood limited to such part or interest,
Then si B ang nagbayad, what are his rights?
unless the testator expressly declares that he gives the thing
in its entirety. (864a)
A: He can seek for reimbursement from A. Kasi even if solidary
liable sila as to the other heirs, as to the creditors, between
themselves si A ang in fault. So, he can seek reimbursement. Rule 1: The testator can only give what he owns.
Example: There is a parcel of land in Calinan. The testator owns

¾ of the said land. The testator said, “I hereby devise to A my
land in Calinan.” After he died, how much can A claim? Can he Q: What is the status of the devise? Can the devisee claim the
claim the entire land? Wala naming sinabi si testator na whole land?
or ¾ lang?
A: it is very obvious is 930, “But if the thing bequeathed, though
A: If it turns out na ¾ lang ang ownership ni testator, then that not belonging to the testator when he made the will,
is the extent of the legacy or devise. He cannot give more than afterwards becomes his, by whatever title, the disposition shall
what he owns. take effect.”
This is an exception to the after acquired property.

ARTICLE 930. The legacy or devise of a thing belonging to
another person is void, if the testator erroneously believed
that the thing pertained to him. But if the thing bequeathed, General rule: the legacy or devise is only limited to the
though not belonging to the testator when he made the will, property existing at the time of the execution of the will.
afterwards becomes his, by whatever title, the disposition Anything which is not existing at the time of the making of the
shall take effect. (862a) will is not included.
The general rule is, even in sale or donation, you cannot give One exception: when the testator provides that even
what you do not own. You cannot give what you do not have. properties acquired after the execution of the will shall be
included in the legacy or devise.
So, if the testator gives to another person a property which in
reality is not owned by him, that legacy or devise in that Second exception: when a codicil republishes a will and that is
property is void. as if the legacy or device was made at the time of the execution
of the codicil.
However, if the testator knew, at the time he made the will,
that he was not the owner of that property, would that be This is actually the third exception in the after acquired
valid? property because at the time of the execution of the will, the
legacy or devise of the property in reality wala pa to sa estate
ni testator, but afterwards, the testator acquires the property.
A: That is covered by Article 931. So this is after-acquired property. These are properties
acquired after the execution of the will. Under 930, the legatee
or devisee can claim that property so the disposition shall take
Remember in 930, the testator gave it because he did not
know that he was not the owner. He thought that he was the effect.
owner. It would be different if the testator gave the property
knowing that he did not own the property, but still he ordered
ARTICLE 931. If the testator orders that a thing belonging to
in his will that, that property would be given or bequeathed to
another be acquired in order that it be given to a legatee or
X.
devisee, the heir upon whom the obligation is imposed or the
estate must acquire it and give the same to the legatee or
“I hereby give to A my parcel of land in Calinan.” Now, upon devisee; but if the owner of the thing refuses to alienate the
the death of the testator it was found out that it was never same, or demands an excessive price therefor, the heir or the
owned by him. That devise is void. estate shall only be obliged to give the just value of the thing.
(861a)
However, during the lifetime of the testator, he made a will,

and at the time he made it in 2000, he was not the owner of This speaks of a property of thing belonging to another. It
that land in Calinan but he thought that he was. Supposedly, means that when the testator made the will, it was not owned
that devise was void. But in 2005, the real owner of the land, by him. Again, the testator can devise or bequeathe a property
his neighbor, donated the land to him, and the testator not belonging to him as long as he knew that he did not own
accepted the donation. In 2007, the testator died. the property, but he still ordered that the property be given as
a legacy or as a devise.
The reckoning period is: at the time of the execution of the will,
For example, “I hereby give to X the parcel of land adjacent to who owns it?
my house which is owned by my neighbor.”
If si devisee or legatee ang owner, void.
Q: Is that valid?
A: Yes, because he knew that the owner is his neighbor but still Q: What now if, after the execution of the will in 2000, lets say
he designate that property. in 2002, the property was sold by B. Meaning, hindi na sya ang
owner. And at the time of the death of the testator, halimbawa
nandito na sa estate of the testator ang property? Like at the
Q: What would then be the rule at the death of the testator? time of death of the testator in 2007, hindi na si B ang owner.
In fact si testator na.
A: There is now an obligation on the part of the estate to
acquire the land of the neighbor so that it can be given to the Q: Would that be valid?
devisee.
A: Answered by the next article. But just remember if at the

Q: What if the neighbor refuses to part to his land? Or he time of the execution of the will, the owner of the property
demands excessive price for the value of the land? devised or bequeathed, the legacy or devise is void.
A: The obligation of the estate is just to give to the devisee the

just value of the land or the claim, which is the devise or legacy. Now, even though some other person has interest, like it was
mortagaged. Hindi pa rin, because it is still B who is the owner
of the property (even mortgaged).
ARTICLE 932. The legacy or devise of a thing which at the time
of the execution of the will already belonged to the legatee
If the testator expressly orders that the thing be freed from
or devisee shall be ineffective, even though another person
such interest or encumbrance, the legacy or devise shall be
may have some interest therein.
valid up to that extent.
If the testator expressly orders that the thing be freed from
such interest or encumbrance, the legacy or devise shall be
valid to that extent. (866a) Example, the testator said “I hereby devise a parcel of land in
Calinan covered by TCT 14344 to B, and I order that the
mortgage over that land be extinguished.”
Okay, so testator and devisee. There is a parcel of land in
Calinan. “I hereby give to B the parcel of land in Calinan,
covered by TCT 14344.” However, the property is owned by B. For example, the land at the time of the execution of the will
The will was made in 2000, although this was mortgaged to X. was owned by B, again the devise is void. So, upon the death
of the testator, void ang devise.
Q: What is the status of the devise? Can you give something to

someone who owns it already? But still he ordered that the devisee be freed from the
mortgage, the estate would pay the debt of B- that debt
secured by the mortgage. So that the mortgage would now be
A: Void. Even wala itong provision na ito, this is common sense. extinguished and the land be freed from the mortgage.
Sa kanya naman na yung thing in the first place, so that is not
valid. You cannot give something to somebody which he
already owns. ARTICLE 933. If the thing bequeathed belonged to the legatee
or devisee at the time of the execution of the will, the legacy
or devise shall be without effect, even though it may have
If the thing, at the time of the execution of the will belonged
subsequently alienated by him.
to the legatee or devisee, that legacy or devise is void.
If the legatee or devisee acquires it gratuitously after such
time, he can claim nothing by virtue of the legacy or devise;
but if it has been acquired by onerous title he can demand Any other charge, perpetual or temporary, with which the
reimbursement from the heir or the estate. (878a) thing bequeathed is burdened, passes with it to the legatee or
devisee.
As I mentioned before, as long as the legatee or devisee was Legacies and Devises.
the owner of the thing at the time of the execution of the will, So for example:
the legacy or devise is void. Even if that property was The testator devise a specific parcel of land to A and then that
subsequently alienated by him. Void still, because at the time
land is owned by the testator, so no problem, but it is
of the execution of the will, B was the owner.
mortgaged to secure the debt of the testator.
What happens upon the death of the testator? That parcel of
The second paragraph refers to a situation na B was not the land will go to A the devisee but it is subject to a mortgage so
owner at the time of the execution of the will. Ibang tao. In pursuant to Article 934 the estate has the obligation to free the
2000, the testator devised a parcel of land to B. Subsequent to land from the mortgage. Meaning the estate will pay the debt.
the execution of the will, in 2005, B acquired the very same So, it will now go to the devisee A free from the mortgage
land which was devised to him in 2000 by the testator. 2007, whether it is pledeged or mortgaged to secure a recoverable
the testator died. debt.
Q: What is the status of that devise or legacy? Again, there is an obligation on the part of the estate to pay
the debt so that the land can be freed from the mortgage.
A: At the time of the death of the testator in 2007, na kay B na
ang land, na-acquire na nya earlier pa, 2005. What if the testator devises a parcel of land and that land is
constituted as a property bond? So, gigamit sya ba na
The rule here is, if B already acquired the property in 2005 pangbond kay naay na preso so gigamit ang land of the testator
as a bond, bail bond. ang mahitabu ana pag mu jump bail ang
gratuitously, he can claim nothing out of that devise or legacy,
because the purpose of the devise or legacy is to give the accused mu-jump bail pud imung yuta. ma-forfeit ang bond so
property gratuitously to B, and that was already accomplished mawala sa imuha ang yuta.
at the time he acquired it in 2005.
What if that land was devised by the testator? Owned by the
However, if B acquired the property in onerous title, and then testator to na land, although again naka-constitute sya as a
the testator died and there is still the devise in the will. What property bond and then the testator dies.
can B claim?
What are the rights of the devisee?
A: He can claim reimbursement for the price which he gave for
The devisee can claim the land- because it is his devise.
the property. Because valid ang devise or legacy, and the
intention of the legacy or devise is to give the property for free,
or gratuitously to B. That’s why whatever he gave for, when he Can the devisee demand na the estate shall free the land
acquired the land in 2005, he shall be reimbursed. Since dapat from the burden of the bond?
wala syang bayad.
There is no such obligation. Any other property charged to the
devise or bequeath whether perpetual or temporary shall pass
October 07; Part 1 Cagas on the legatee or devise. Katu lang mortgage or pledge to
secure a recoverable debt if that is the burden imposed upon
the property or thing devised or bequeath, the estate has the
Article 934. If the testator should bequeath or devise obligation to free it from such mortgage. Pero any other charge
something pledged or mortgaged to secure a recoverable debt it will pass on to the legatee or devisee.
before the execution of the will, the estate is obliged to pay
the debt, unless the contrary intention appears.
Example: A parcel of land naka-lease and then it was devised
The same rule applies when the thing is pledged or mortgaged by the testator and then he dies.
after the execution of the will.
What happens to the lease upon the death of the testator credit or remission because the law says as regards that part
shall it be extinguished? of the credit or debt existing at the time of death.
We discuss before, na obligations are transmitted to the heirs.
A lease for example survives the death of the decedent. It will
What if instead of paying nangutang og dugang? Nangutang
pass on to the devisee. Maghulat sya na ma-expire ang lease. sya 1 million in year 2002, it is either a legacy of credit or a
But the estate has no obligation to free the land from such legacy of remission. When he died in year 2005, ang utang kay
other burden other than for a mortgage or pledge. 4 million. How much is the value of the legacy of credit or
remission? 3 million or 4 million? di ba naay article 935 says
shall be effective only as regards the part of the creditor debt
Article 935. The legacy of a credit against a third person or of
existing at the time of death of the testator. Ang existing is 4
the remission or release of a debt of the legatee shall be
million man? Would that be the Value? No, because here we
effective only as regards that part of the credit or debt existing
apply the rule on after-acquired properties. Di ba? Whatever
at the time of the death of the testator.
is added or incorporated or acquired after the execution of the
In the first case, the estate shall comply with the legacy by will will not form part of the legacy or devise so the legacy or
assigning to the legatee all rights of action it may have against devise will be limited to that existing at the time of the
the debtor. In the second case, by giving the legatee an execution of the will.
acquittance, should he request one.
In both cases, the legacy shall comprise all interests on the
Kung mabawasan, Article 935, katung nabilin at the time of
credit or debt which may be due the testator at the time of his
death. Pero pag nadugangan, we apply the rule on after-
death
acquired properties. Wala nay labot tung 1 million.
Speaks of a legacy of credit or legacy of remmission. Second and third paragraphs are self-explanatory. Included
ang interest or debt which may be due the testator at the time
Example: Testator, he lent money to A. Between the testator of his death.
and A, testator is the creditor and A is the debtor. Now for Bale mao ni ang exception sa after-acquired properties kay apil
example he made a will and then utang ni A diay is 3 million. In ang interest.
his will, he made in year 2000 the testator said "whatever
Article 936. The legacy referred to in the preceding article shall
outstanding debt A may have at the time of my death I will
lapse if the testator, after having made it, should bring an
consider those debts as condone". That is what we call a
action against the debtor for the payment of his debt, even if
legacy of remission. Meaning, if the testator dies and A still has
such payment should not have been effected at the time of his
debts, he no longer has any obligation to pay whatever balance
death.
existing at the time of death of the Testator.
The legacy to the debtor of the thing pledged by him is
understood to discharge only the right of pledge.
Example: In the same situation, the testator said " whatever
amounts I may have from A as receivable at the time of my Article 936 refers to a legacy of credit or a legacy of remission.
death, those shall be given to B.” What is given to B is actually
a legacy of credit. Whatever receivables of A kay B nato sya,
This gives us an example of revocation by operation of law.
at the time of the testator's death si B na ang naay right to
collect from A na whatever amount A may owe the testator at
the time of the testator's death. How does this happens?
The same example: A borrowed 3 million from the testator
Example: Year 2000 the testator made the will and then the and then in his will the testator said "Whatever amount I may
debt was 3 million and then A was able to pay 500k in year have from A at the time of my death that will be considered as
2002. Then, the testator died in 2005. limited or condoned or possible na whatever amount he may
How much is the value of the legacy of credit or the legacy of from A at the time of his death, he will be giving that to B.”
remission assuming there was a legacy of credit or remission? What happens after the execution of the will? The testator
At the time the testator made the will 3 million di ba? and filed a case against A for collection. What is now the status of
there was payment in year 2002 to 500k, at the time of his that legacy of remission to A or if it is a legacy of credit to B,
death it is already 2.5 million, that is the value of the legacy of what is the effect of that filing a collection against A?
The law says shall lapse, the legacy referred to in the preceding Article 937. A generic legacy of release or remission of debts
article shall lapse. It will be considered revoke. Wala na to sya. comprises those existing at the time of the execution of the
Even if wla nakabayad si A at the time of death of the testator, will, but not subsequent ones.
the mere fact na case was brought by the testator. Take note
of the wording of article 936 should bring an action. So there
has to be a case instituted against the debtor. We already discussed this. If there are additional debts like
katung si A nangutang og 3 million after the execution of the
will nangutang syag additional na 1 million pila karun ang
If it is just a demand letter made by the testator to A will covered sa legacy of remission or legacy of credit? Only that
there be revocation by operation of law? There would be which exists at the time of the execution of the will.
none because the law says bring an action, mere sending of
demand letters would not amount to revocation by operation
of law. Aside from article 937 which is an express provision again, this
is the rule on after-acquired properties. They complement
each other Article 937 and 793.
The second paragraph, the legacy to the debtor of the thing
pledged by him is understood to discharge only the right of
pledge. Article 938. A legacy or devise made to a creditor shall not be
applied to his credit, unless the testator so expressly declares.
In a pledge, it is essential that: In the latter case, the creditor shall have the right to collect the
excess, if any, of the credit or of the legacy or devise.
1. The pledgor should be the owner of the thing
pledged.
2. The thing must be delivered to the pledgee. In article 938 it is the testator who is the debtor. Example: He
borrowed 5 million from A so A is the creditor, the testator is
the debtor. If the testator in his will says, " I hereby give 5
Example si A kay naa man syay utang kay testator na 3 million million to A," how do we treat that 5 million would it be
so to secure the debt, iyahang i-pledge iyahang diamond ring considered as payment for the testator's debt to A or should it
to the testator. Ang tag-iya sa ring is A and then in his will, the be considered as separate and it is a legacy?
testator bequeath that ring to A.
Is that valid? Have you forgotten what we discuss before? Can
Remember that in the order of priority upon the distribution
the testator give to somebody a thing by way of legacy or
of the estate,
devise which that person already owns in the first place? Void
ang legacy of the ring. 1. pay the debts.
2. and then after all the debts are paid, to give
the shares of the compulsory heirs.
What is the consequence of that legacy made by the testator
of the ring to A? 3. give the legacies and the devises.
Of course the legacy is not valid because the testator does not 4. and then the Voluntary Heirs.
own the ring and the ring is owned by the supposed legatee
but it still has an effect, it has the effect of discharging the
pledge. Meaning, wala na ang pledge. At the time of death of The person is a creditor. The general rule is it shall be
the testator, diha mag take effect ang extinguishment of the considered as a legacy or devise. Meaning, Bayaran sya sa
pledge kay its a legacy man, it is in the will. If dili makabayad si utang na 5 million and in addition to the net estate in the free
A saiyang utang, the estate of the testator would no longer portion, he will also be given that legacy of 5 million unless the
have the right to sell the ring at public auction and get the testator so expressly declares.
proceeds. It would have to file an ordinary action for collection
against the debtor kay wala naman ang pledge because that is
If the testator says that 5 million shall be in payment of the
the effect when the testator bequeath the ring which A
testator's debt to A then it will be payment, so it will not be
pledged to the testator.
considered as a legacy or devise.
The second paragraph, Example: The testator borrowed 5

million from A and in his will the testator says " I hereby give 7 And it is without prejudice to the fulfillment of natural
Million to A." As a general rule, if that is silent, meaning, obligation. We shall remember the concept of natural
bayaran sya sa 5 million na utang and in addition tagaan sya sa obligations. Example: There is a debt which has already been
legacy na 7 million. But if the testator says na "that 7 million
prescribe, the debtor cannot be compelled to pay that debt
shall be applied also to his debt then bayaran ang debt na 5
anymore di ba? But despite knowing that the debt has already
million out of that 7 million ang excess that shall be considered prescribed the debtor voluntarily paid the creditor. Under the
as a legacy.”The creditor shall have the right to collect the law on natural obligations the debtor can no longer recover
excess if any of the creditor of the legacy or the devise what he has delivered or paid.
Example: Si testator nangutang sya 5 million kay A. Si A is a In the will of the testator even if he knew that his debt has
creditor. In his will he said "I hereby give a parcel of land worth already prescribed still he ordered the payment of his debt,
7 million to A which shall be considered as payment for my
then we can apply the law on natural obligations. We cannot
obligation." would that be valid? Can the testator or his estate say na we will not pay the debt because it is not due pursuant
at the time of his death demand na i-apply ni A ang land in to the 1st paragraph of article 939. Ang sa 1st paragraph he
payment of the 5 million debt? Makademand ba ang estate na, thought na the debt is due but in fact it is not due. kung wla
OK naa may utang sa imuha si testator na 5 million in his will syay idea na nagprescribe na iyahang debt and that he ordered
he said he is giving you this land worth 7 million in payment of
the payment then we apply the 1st paragraph. But if he knew
his debt, applying Article 938 can we apply the land in payment
that the debt had already prescribed and then still he ordered
of the debt? The debtor cannot compel the creditor to receive his.... to the payment of the obligation, then we apply the
something which is different from what is due. Kung ok lang
second paragraph, the law on natural obligations
kay A na mudawat sa land it's ok but if he does not like the land
he cannot be compelled to receive the land. That is also a
limitation on the part of the testator in Article 938. It does not Article 940. In alternative legacies or devises, the choice is
mean na namatay lang sya pwede na sya makapagcompel sa presumed to be left to the heir upon whom the obligation to
creditor to accept the land. give the legacy or devise may be imposed, or the executor or
administrator of the estate if no particular heir is so obliged.
Article 939. If the testator orders the payment of what he If the heir, legatee or devisee, who may have been given the
believes he owes but does not in fact owe, the disposition shall choice, dies before making it, this right shall pass to the
be considered as not written. If as regards a specified debt respective heirs.
more than the amount thereof is ordered paid, the excess is Once made, the choice is irrevocable.
not due, unless a contrary intention appears.
In the alternative legacies or devises, except as herein
The foregoing provisions are without prejudice to the provided, the provisions of this Code regulating obligations of
fulfillment of natural obligations. the same kind shall be observed, save such modifications as
Article 939 may appear from the intention expressed by the testator.
Article 939 the testator made an order in his will na "I hereby In article 940, we have alternative legacies or devises. Similar
allocate 5 Million in payment to my debt to A. But it turns na on obligations and contracts, di ba you have alternative
he does not owe anything, so it is not due. How do we treat obligations. I promise to deliver to A a car, jewelry, or 2 million
the 5 million, shall we treat that as a legacy in favor of A? The pesos. Here in alternative obligations who has the right of
law says na it shall be considered as not written because it is choice? General rule, the debtor but it could be given expressly
very clear in the will na it is intended as a payment for the debt to the creditor.
but it does not owe in the first place so it is considered as not
written.
In succession, in the will the testator said "I hereby leave a car,
jewelry, or 5 million or 2 million to A, that is an alternative
If there is really a debt, I hereby allocate 7 million in payment legacies or devise. Who has the right of Choice? Is it the heir,
of my debt to A. Pero utang niya kay A is 5 million. That 7 legatee or devisee? the law says if there is an heir who has
million, 5 million lang atong ibayad kay A kay mao ra man to been charged with the obligation to deliver that alternative
ang utang. How about the excess? It shall not be given to A legacy or devise then he has the right of choice. Kung walay
unless the contrary intention appears like in article 938 na he gimention ang will kung kinsa ang may obligation then it is the
intends the excess to be a legacy or devise in favor of A. administrator of the estate or the executor who has the right
to choose which is to be delivered. Or another legatee or 14344 located in Panabo Davao del Norte? is it Valid? Kung
devisee na gitagaan og right of choice so it must be made nagtoo si testator na naa syay yuta pero wala diay, it is void.
mention na it must be made clear in the will of the testator But if it is clear in the will na " I hereby give my neighbor's land
kung kinsa iyahang gitaggan og choice. Otherwise, it will be the in Panabo Davao CIty to A 1 hectare covered by TCT 1344 is it
administrator or executor. valid? Yes because in that particular case the testator knew
that he was not the owner but still he gave the land so upon
his death the estate will have the obligation to buy the land
Example: Wala sya naka-make og choice then the right of from the owner. If the owner will not part with the land or he
choice, it will pass on to the heirs of that particular heir, will demand for excessive price the estate will have to give the
legatee or devisee who had been given the right of choice. The just value of the land to the testator that is if that is a specific
choice is irrevocable. thing and the testator knew that he is not the owner. Pero
kung generic pero wala syay land, that is not valid.
The law on alternative obligations apply in suppletory
character here in so far as alternatives legacies and devisees When do we reckon the time? When shall the ownership
are concerned. But again, the rule in testamentary succession, vested? At the time of the death of the testator. We cannot
ang principal law is we have to apply the wishes of the testator. apply the rule on after-acquired properties because we are
Tanawun nato kung unsa dyud ang will or express desire of the talking about generic thing katung after-acquired properties,
testator in order to give effect to the alternative legacy or specific to sya na gihatag sa imuha and then naay nadugang so
devise. dili mag-apply. We cannot also apply the law on revocation
Article 941. A legacy of generic personal property shall be valid again because asa man mag-apply ang revocation like this
even if there be no things of the same kind in the estate. time naa kay gihatag na parcel of land sa iyaha and then i will
discuss it, at this year 2000 you gave a specific parcel of land
A devise of indeterminate real property shall be valid only if to A and then afterwards you sold the land. At the time of your
there be immovable property of its kind in the estate. death wala na tung land in your estate but at the time when
The right of choice shall belong to the executor or you made the will naa tung land or naa tung land at the time
administrator who shall comply with the legacy by the delivery when you made the will you sold it and then you reacquired it
of a thing which is neither of inferior nor of superior quality. at the time of death naa to sya. That would be a different
matter because that would refer to a specific devise or legacy.
Here, generic lang sya so any property of that kind can be given
Generic property or indeterminate. It could be a legacy or a pero kung wala, wala jud diay kay car, wala kay land then under
devise. Now, different ang rule pag legacy or devise. If it is a Article 941 kung legacy sya valid pero kung devise sya it is void
legacy of a generic personal property, the law says na valid sya
even if there be no things of the same kind in the estate. I
hereby give a red Honda Civic to A is that generic or specific? October 07; Part 2 Alba
Generic, because there are many red Honda Civics unless he
specified the plate number then that would be specific.
OCTOBER 7, 2019 – 2nd PART
Alba
Is it valid kung wala syay car at all sa iyahang estate? Wala man
diay red Honda Civic si testator nganung naghataghatag man Okay, under 941 diay noh, legacy of Generic Property.
syaf. The law says valid sya, even if there be no things of the Generic – wala naka specify kung unsa ang kind
same kind in the estate. Asa man ta manguha og red Honda How about the quality?
civic? Mamalit jud kay wala sya. but if the testator says I hereby
give 1 hectare agricultural land to A, nya wala syay land or naa Like I hereby give to A a cellphone, or
syay land pero dili agricultural, Valid sya? Is it specific or I hereby give to B a red car.
generic? It is generic even if he says agricultural land because
Unsa man ang quality sa car?
there are several agricultural lands. The law says shall be valid
only if there be immovable property of this kind in the estate. The one who is obliged to deliver only has the obligation to
Dili sya valid. deliver a MEDIUM QUALITY. Taking into account the status of
the person to whom the legacy is given and the capacity of the
estate to give the property.
What if the testator says I hereby give a 1 hecatare agricultural
land to A which is covered by transfer certificate title NO.
So kung car, unsa man, Multicab? Of Ferrari? It depends upon GR: Until the legatee is of age. (Meaning legal age – 18 years
the value of the estate and the status of the person. old)
ARTICLE 942. Whenever the testator expressly leaves the XPN:
right of choice to the heir, or to the legatee or devisee, the Pero kung halimbawa iyahang legacy of education kaya para
former may give or the latter may choose whichever he may siya makahuman ug Law School, ang uban kay 30+ naman nag
prefer. (876a) enrol, or 40+
So it’s possible that the right to choice be given to the legatee So pwede ka mu reach beyond sa majority age, but naay caveat
or devisee. – PROVIDED HE PURSUES HIS COUR DILIGENTLY.
Here, the law says the right of choice belongs to the legatee or Kung halimbawa nilampas nakag 18, or 40 naka wa pa ghapon
devisee so the estate would have to deliver which ever he may ka kahuman ug lawschool, so unsa man? Padayon ba gihapon
prefer. ang legacy of education? Siguro kung ma justify nimo na
So there’s actually no obligation to just give the medium diligent siya. Pero diligent ba ka kung maabot kag 10years in
quality. It is what the legatee or devisee prefers. But then lawschool? It depends (lol)
again, they have to take into account the value of the estate. LEGACY OF SUPPORT
ARTICLE 943. If the heir, legatee or devisee cannot make the During the life time of the legatee.
choice, in case it has been granted him, his right shall pass to
So hantud buhi pa si legatee, mao na siyang ang extend sa
his heirs; but a choice once made shall be irrevocable. legacy of support. Unless the testator has provided otherwise.
Here again the legatee or devisee has been given the right of So he could provide for a shorter period. It is subject to the
choice, and once he makes the choice, he cannot change his conditions imposed by the testator.
mind because that is irrevocable. But if he was not able to
make a choice, and then he die, naa na siyay right because he How much? The law says:
survive the testator, only that he was not able to timely make “it shall be fixed in accordance with the social standing and
a choice. the circumstances of the legatee and the value of the estate”
So what will happen? – that is if it is not fixed by the testator in the will.
The right to make a choice will be passed on the heir of the So this is the guideline in the determination of the amount of
legatee or devisee. that legacy of education or legacy of support.
If the testator during his lifetime, used to give a certain sum of
ARTICLE 944. A legacy for education lasts until the legatee is
money. SO that also will be used as a standard. The same
of age, or beyond the age of majority in order that the legatee
amount shall be deemed bequeathed, unless it be markedly
may finish some professional, vocational or general course,
disproportionate to the value of the estate.
provided he pursues his course diligently.
A legacy for support lasts during the lifetime of the ARTICLE 945. If a periodical pension, or a certain annual,
legatee, if the testator has not otherwise provided. monthly, or weekly amount is bequeathed, the legatee may
petition the court for the first installment upon the death of
If the testator has not fixed the amount of such legacies, the testator, and for the following ones which shall be due at
it shall be fixed in accordance with the social standing and the the beginning of each period; such payment shall not be
circumstances of the legatee and the value of the estate. returned, even though the legatee should die before the
If the testator or during his lifetime used to give the expiration of the period which has commenced. (880a)
legatee a certain sum of money or other things by way of
So when shall this be delivered?
support, the same amount shall be deemed bequeathed,
unless it be markedly disproportionate to the value of the Example ALLOWANCE. When man ka maka demand ani?
estate. (879a) 1. The testator must have DIED first
So this talks of legacy of education and legacy of support. 2. The will must be PROBATED first
3. Obligations of the estate must be paid first
LEGACY OF EDUCATION 4. The legatee may petition for the first instalment at
When we say education, meaning para siya makatapos ug the beginning of each period.
professional, vocational or general course. ARTICLE 946. If the thing bequeathed should be subject to a
When shall this last? usufruct, the legatee or devisee shall respect such right until
it is legally extinguished. (868a)
So the thing given to you as a legatee or devisee is subject to a at the time of na namatay si testator, nagbitay pa didto sa
usufruct. It is being used by another person. punuan, ang tag-iya ana kay si devisee.
Upon the death of the testator will that usufruct be Pero the day before nagharvest, gibutang lang didto sa bodega
extinguished? ang fruits. Kinsa man ang tag-iya sa fruits? Estate na. Because
dili na siya growing fruits, natanggal na siya from the trees.
GR: Extinguished
So dili na siya part sa legacy or devise.
XPN: Unless the parties have provided otherwise
Or an unborn offspring of animals, naa siya sa samal naa siyay
So here mag continue siya, the estate has no obligation to free rancho. Naa siyay mga baka didto. Tapos gihatag niya iyahang
the property from the usufruct. It will pass on to the legatee or land pati iyahang rancho ug baka kay A. So at the time of death
devisee. He shall respect it until the usufruct is legally of the testator, legally ang ownership sa land plus the animals
extinguished. are now given to the legatee or devisee.
ARTICLE 947. The legatee or devisee acquires a right to the How about buntis man ang baka? Kinsa man ang tag-iya sa mga
pure and simple legacies or devises from the death of the unborn offsprings. Halimabawa nabuntis ang baka before
testator, and transmits it to his heirs. (881a) namatay ang testator. Pero pagkamatay ni testator wala pa
man nanganak. Kinsay tag-iya? LEGATEE – its part of the
Here we have a pure and simple legacy. Meaning, there are
legacy.
NO PERIOD and NO CONDITIONS imposed. So once the
testator dies, and the will is probated and the free portion is How about uncollected income? When it comes to uncollected
determined. So that legacy and devise can now be given to the income we have to consider when was the income earned.
heir. But take note, it will retroact to the time of the death of Because the law says “but not the income which was due and
the testator, because in succession it opens at the moment of unpaid before the latter's death.”
death of the decedent. Example:
ARTICLE 948. If the legacy or device is of a specific and Gihatag ni testator ang iyahang apartment kay A. So in his will,
determinate thing pertaining to the testator, the legatee or he devise the apartment and the land to A. The will was made
devisee acquires the ownership thereof upon the death of in the year 2010 tapos nag earn ug income, namatay siya year
the testator, as well as any growing fruits, or unborn offspring 2015. So when he died, naay 2 years worth of income diha na
of animals, or uncollected income; but not the income which wala pa na collect. Pero due na siya. When you say due but not
was due and unpaid before the latter's death. yet collected, that is what we call ACCRUED INCOME – income
From the moment of the testator's death, the thing that is already earned but not yet collected. And then
bequeathed shall be at the risk of the legatee or devisee, who namatay siya diba 2015, pagkamatay wala ghpon nibayad
shall, therefore, bear its loss or deterioration, and shall be katong nag lease, so naa gihapon 1 year na wla pa nabayran,
benefited by its increase or improvement, without prejudice so that would be 2016. Pagka 2017 nadaug siya ug lotto (nag
to the responsibility of the executor or administrator. (882a) lease) so nibayad na siya sa iyahang rentals.
The property here is SPECIFIC, DETERMINATE and OWNED by So ang iyang gibayad kay 2 years lease from 2013-2015 (buhi
the testator. pa si testator) so this is considered as earned but not yet
collected and 1 year after the death of the testator 2016.
So what are the obligations and rights involved here?
So here, who owns the land and the building after the death of
When shall the legatee or devisee acquire the thing devised? the testator in 2015? Si A, the devisee under Art. 948 and 781.
Again we mentioned about the probate etc. But the reckoning
period for the transfer of ownership is – from the moment of How about the rentals?
death subject to probate. Those rentals which accrued from year 2013-2015 although
Example: collected in 2017 which is after the death of the testator would
belong to estate of the testator. Because again that would be
In this will the testator give to A the testator’s land in Panabo considered as AFTER ACQUIRED PROPERTY in Art. 793 and
(1 ha, covered by TCT 12345) clearly it is also mentioned in Art. 948, but not the income
It is a specific property. which was due and unpaid before the latter's death –
because this would belong to the estate of the testator.
For example it is an orchard, so naay mga fruits didto – saging,
manga, apples, grapes. SO from the moment of death of the As to the income which accrued from the time of death of the
testator, ang tag-iya sa land kay si A (devisee), kung naay mga testator onwards (2015-2016) this would now pertain to the
fruits didto, iyaha napud to siya. Diba that’s related to Art. 781. devisee, pursuant to Art 948 and also Art. 781 of NCC. And also
Bisag pa namulak siya at the time na buhi pa si testator, pero applying the rule on accession in your property.
And from the moment of the testator’s death, the thing shall (3) Legacies for support;
be at the risk of the legatee or devisee – res perit domino (the (4) Legacies for education;
owner now bears the risk of loss) and also the advantages (5) Legacies or devises of a specific, determinate thing
brought by the improvements – so iyaha napud na siya which forms a part of the estate;
because he is now the owner of the thing. (6) All others pro rata. (887a)
ARTICLE 949. If the bequest should not be of a specific and
determinate thing, but is generic or of quantity, its fruits and So this is again order of priority. Here, the free portion is not
interests from the time of the death of the testator shall sufficient to pay off all the legacies and devises. Kay kung
pertain to the legatee or devisee if the testator has expressly
sufficient siya na no need for priorities.
so ordered. (884a)
Now, we have here the following order. Re-P-S-E-S-A
So Art. 949 is different from Art. 948 because it speaks of a
generic or indeterminate things, which is the legacy or devise. 1. Remuneratory legacies or devises
The rule here is the interest and fruits shall pertain to the So meaning gihatag siya ni testator to the legatee or
legatee or devisee from the time of delivery. Because when it devisee in remuneration for the past services given by
is a generic thing: that person to the testator.
I am giving to A an agricultural land 1 ha, and there are several 2. Legacies or devises declared by the testator to be
agricultural lands owned by the testator. So naa sa Hagonoy, preferential
Panabo, naa pud sa Lupon, naa pud sa Sta. Maria. So naa siyay Meaning, giingon jud niya that this is prioritized, this
several agricultural lands, ang sa Hagonoy walay tanom, ang sa is preferred, or this is preferential.
uban naay tanom.
3. Legacies for support
So even if we are saying na upon the death of the testator, the
legacy or devise is already effective – diba cause that’s the time How do you know that it is a legacy for support? What
when transmission happens. But before the delivery of the does support comprise? In your Persons and Family
thing to the legatee or devisee, we don’t know yet which land Relations everything which is indispensable for the
shall be given. Pwede na katong na land na naay tanom pwede sustenance, medical attendance, clothing, food,
pud katong land na wlay tanom. So wala ta kabalo. So Kung ang shelter.
ihatag niya kay katong naay tanom na naa sa Lupon, so when
will be the right of the legatee or devisee over the fruits start? 4. Legacies for education
From the time na kung kabalo na siya na mao to ang ihatag 5. Legacies or devises of a specific, determinate thing
sa iya, which usually happens from the time of delivery or which forms a part of the estate
from the time that it is communicated by the heir, legatee, So specific thing forming part of the estate.
executor or administrator charge to delivering the property. 6. All others pro rata
So this is the rule when it comes to generic, however if the So like it could be a legacy, or a devise of a specific
testator expressly orders na for example: thing which is not part of the estate or it could be a
legacy of a generic thing. Or a devise of a generic thing
I am giving to A a 1 ha agricultural land, whatever fruits that which forms part of the estate. Or legacy of a generic
may have accrued from that land , whatever growing crops thing which does not form part of the estate.
there are in the land which have already existed at the time of
the death of the testator, shall likewise go to the legatee or So these (mentioned) all forms part of No. 6
devisee.
So in that case, mubalik ta from the moment of death, kay So kung wla diri sa number 1-5 naa siya sa number 6.
giingon man sa testator na tanan mga prutas biskan katong You know naman how to pro rate diba? *EXAMPLE TAKEN
before gipang deliver sugod nga namatay siya ihataga ghpon FROM 2018 TSN*
kay legatee or devisee, then that would be an exception.
Let’s say for example, testator left an estate valued at 1M. He
ARTI LE 950. If the estate should not be sufficient to cover all died with 2 legitimate children but no donations inter vivos.
the legacies or devises, their payment shall be made in the
following order:
So, these are the provisions in his will:
(1) Remuneratory legacies or devises;
(2) Legacies or devises declared by the testator to be • Remuneratory legacy – 200,000
preferential; • One which is declared to be preferred – 50, 000
• Support – 180, 000 if it does not form part of the estate or expressly mentioned by
• Education – 40, 000 the testator na I want to give this to the devisee, so bahala na
sya.
• The land in Calinan devised to another person –
300,000
So here, balik ta diri. After education, you only have 30,000.
• Jewelry bequeathed to another person – 80, 000
This would be all others, pro-rata. How do we satisfy?
• Cell phone bequeathed to another person – 60, 000
300K + 80K + 60K = 440K

So how do we distribute?
So we apportion.
First, we give the legitimes. Free portion is 500K. Legitime is
also 500K. Hatag nato sa compulsory heirs and legitime. So, Land in Calinan: (300K/440K) x 30K = 20, 454.55
250K each. Now we go to the free portion. Gisunod naman Jewelry: (80K/440K) x 30K = 5, 454.55
nako na sya. So, you know what to satisfy first: Cell Phone: (60K/440K) x 30K = 4, 090.91
1. Remuneratory legacy – 200K This is how we distribute following article 950.

2. Preferred legacy – 50K
When do we apply Article 950? Take note:
3. Support – 180K If you remember, under Article 911, we have a similar
4. Education – 40K problem, but there, we have donations, then we have legacies
5. Legacy of a specific thing assuming that it forms part of the and devises. Under 911, if we have two or more donations, we
prioritize the ones made earlier, then the next. Then kung naa
estate – 300K (excessive)
pay nabilin, then naay declared by the testator to be preferred,
then kato. Then all others pro-rata. That’s in 911.
So, wala na. Ang mahatag na lang nimo sa iyaha is worth 30K.
So, diri lang ta kutob.
Then here’s 950. So how do we know if we are to use 911 or
950? It’s just simple, if the testator made donations inter vivos
and left compulsory heirs, so duha ka conditions, we follow
911. Because, if there are compulsory heirs, all donations shall
be collated that’s why we charge them to the free portion.
But if there are no compulsory heirs, even if there are
donations, we follow Article 950 because if there are no
compulsory heirs, there’s no need for collation of donations.
That’s the distinction.
Summary of when to apply 911 or 950:
Article 911 Article 950
Testator made donations inter There are no compulsory
vivos heirs
There are compulsory heirs
ARTICLE 951. The thing bequeathed shall be delivered with all

Now, let’s say this does not form part of the estate. Land in its accessions and accessories and in the condition in which it
Calinan expressly mentioned by the testator to be given to the may be upon the death of the testator.
devisee. Diba pwede man na sya because specific. Ang
dilipwede generic property, immovable, which does not form
partof the estate. That cannot be valid. But if it is specific, even So here, it shall refer to a specific legacy or devise. Because if
it is a generic, there’s no such obligation because you wouldn’t
know which of these properties will be given to you. So you And of course, there must be a valid will which is probated. So,
cannot demand na at the time of the death of the testator, before these things are done, the legatee or devisee cannot on
mao jud to dapat ang ihatag sa imoha. his own take possession of the estate, even if klaro jud kaayo
It should be again kung specific or generic, you can only sa will na kaning yuta sa Jacinto Street na naa sa Ateneo, kay A
ni siya, bisan klaro na kaayo na sa will but he has to wait first
demand either from the time of delivery or at the time that
for all those proceedings and wait for the court order, kay ang
the selection has been communicated to the legatee or
court ang mag determine kung ihatag ba na siya sa iya. There
devisee.
must be court authority.
ARTICLE 952. The heir, charged with a legacy or devise, or the
executor or administrator of the estate, must deliver the very ARTICLE 954. The legatee or devisee cannot accept a part of
the legacy or devise and repudiate the other, if the latter be
thing bequeathed if he is able to do so and cannot discharge
onerous.
this obligation by paying its value.
Legacies of money must be paid in cash, even though the Should he die before having accepted the legacy or devise,
leaving several heirs, some of the latter may accept and the
heir or the estate may not have any.
others may repudiate the share respectively belonging to
The expenses necessary for the delivery of the thing them in the legacy or devise.
bequeathed shall be for the account of the heir or the estate,
but without prejudice to the legitime. Here, we have one legacy or devise. Partly gratuitous, and
partly onerous.
So take note, we must give effect to the wishes of the testator.
So kung unsa tong mga wishes ni testator sa iyahang will dapat Example:
sundon jud to siya. That’s why if it is a thing, kung tagaan siya I am giving to A my house and lot in Jacinto street Davao City.
ug car or jewelry, dapat kato jud ang ihatag. You cannot just Ang sa second floor, everyday limpyohan gyud to ni A. Ang first
give in cash. floor, bahala na siya kung unsa iyahang gusto.
So halimbawa, niingon si testator na tagaan siya ug cellphone, Ang sa second floor, it is onerous because there is a burden. Sa
pero walay cellphone sa estate. Diba valid man gihapon an first floor wala lang.
siya, palit kag cellphone para naa kay mahatag sa legatee.
Question:
How about money? (LEGACY OF MONEY) Pwede ba muingon si A na kapoy man magsige panglimpyo uy,
The law says it must be paid in cash. Even though the estate kato nalang akoa ang first floor, dili nalang ko anang second
don’t have any. So magbaligya ka ug property na mahatag sa floor. Can he do that?
legatee. The law says, he cannot just accept the gratuitous and
Who has the obligation to deliver the legacy or devise? repudiate the onerous.
Again, kung naay heir charged with that obligation, siya. How about if ang dawaton ang onerous lang, ang gratuitious
Kung naay legatee or devisee nga charged with that obligation, ang iyahang I repudiate? Pwede ba?
siya ang mag deliver. Well if you read Art. 954 ang bawal lang kay is to repudiate
That is a case of a sub-legacy or sub-devise. ang onerous then i-accept ang gratuitous. But there is no
prohibition na i-accept ang onerous and repudiate the
If no one in particular is charged, then the administrator or gratuitous.
executor of the estate.
Halimbawa he died before having accepted them – the right to
The law says that the heirs charged to deliver the legacy or accept or the right to repudiate, would be passed to the heir
devise shall also bear the expenses for the delivery of the of the legatee or devisee.
thing, pero without prejudice to the legitime.
ARTICLE 955. The legatee or devisee of two legacies or
ARTICLE 953. The legatee or devisee cannot take possession devises, one of which is onerous, cannot renounce the
of the thing bequeathed upon his own authority, but shall onerous one and accept the other. If both are onerous or
request its delivery and possession of the heir charged with gratuitous, he shall be free to accept or renounce both, or to
the legacy or devise, or of the executor or administrator of renounce either. But if the testator intended that the two
the estate should he be authorized by the court to deliver it. legacies or devises should be inseparable from each other,
Again, a legacy or devise is taken from the free portion of the the legatee or devisee must either accept or renounce both.
estate. So before we know how much is the free portion, pay Any compulsory heir who is at the same time a legatee or
off all the obligation, debts, taxes, charges, and deliver the devisee may waive the inheritance and accept the legacy or
legitimes.
devise, or renounce the latter and accept the former, or If after the alienation the thing should again belong to the
waive or accept both. (890a) testator, even if it be by reason of nullity of the contract, the
legacy or devise shall not thereafter be valid, unless the
So here two legacies, one is ONEROUS and one is
reacquisition shall have been effected by virtue of the
GRATUITOUS. Actually the same gihapon ang rule, you cannot
exercise of the right of repurchase;
just accept the gratuitous and renounce the onerous. So there
is no prohibition also to accept the onerous and repudiate the
gratuitous, unless the intention of the testator you have to If the thing bequeathed is totally lost during the
accept both. Otherwise, you will not receive anything. lifetime of the testator, or after his death without the heir's
The second paragraph says na the compulsory heir, at the fault. Nevertheless, the person obliged to pay the legacy or
same time legatee or devisee sya. Pwede man na sya. You can devise shall be liable for eviction if the thing bequeathed
be given over and above your legitime. So the law says you can should not have been determinate as to its kind, in
waive your inheritance and accept the legacy or devise; or you accordance with the provisions of Article 928. (869a)
can accept the inheritance and waive the legacy or devise; or
you can accept both or you can waive both.
So 957, the instances mentioned here actually, there is
revocation by operation of law of the legacy or devise. So these
ARTICLE 956. If the legatee or devisee cannot or is unwilling are other instances of revocation by operation of law. There
to accept the legacy or devise, or if the legacy or devise for are three things mentioned in Art. 957
any reason should become ineffective, it shall be merged into 1. Transformation
the mass of the estate, except in cases of substitution and of 2. Alienation
the right of accretion. (888a) 3. Loss
1. TRANSFORMATION
We discuss this before, as much as possible if the testator
instituted an heir give it to the instituted heir – institution. The testator gives a diamond ring to A as a legacy. So specific
diamond ring.
If for some reason the instituted heir cannot accept maybe by
predecease, repudiation or incapacity. So let’s see if he has a First ang Art. 957 can only apply if the legacy or devise is
substitute (so substitution). Kung walay substitute and the specific. Bisan pag i-transform pa na nimo, pero dili man
right to representation is proper, then give it to the specific imohang legacy or devise, so it can’t apply anything in
representative (representation). But if it is not proper because the estate corresponding to the description. So it should be a
we’re talking of the free portion then let’s examine if accretion specific, or determinate thing.
is possible. When you say accretion two or more heirs are Again, the testator gave to A by legacy a diamond ring. And
instituted in one inheritance, one of them cannot accept then, siguro mga two years after he gave the will, gipa melt ni
maybe again because predecease, repudiates or incapacity, so testator ang diamond ring, gibuhat niyang earrings. Pareha
his share will go to his co-heirs with the same inheritance. lang gihapon na diamong iyahang diamond na gigamit, so what
Now if accretion is not proper, then the last is intestatcy. happens now to the legacy of the ring to A? Is it still valid? Can
Because wala naman gyud tay lain maadtuan. A claim the earrings at the time of the death of the testator?
So remember, ISRAI – Institution, Substitution, So there is transformation. How do you know if there is
Representation, Accretion, Intestacy. transformation? If the thing, the losses, or it does not retain
either the form or the denomination at hand.
Pareho ba ug itsurang ang ring u gang earrings? Ang earrings
ARTICLE 957. The legacy or devise shall be without effect: duha, naa sa dalunggan gibutang, ang ring sa kamot and isa ra
If the testator transforms the thing bequeathed in kabuok. So lahi ug form, or the denomination, usna may tawag
such a manner that it does not retain either the form or the nimo sa ring? Diba ring? Pareho ba na siya sa earring? So lahi
denomination it had; siya ug pangalan, even if muingon kag the same gold or
diamond, lahi na siya. So the legacy of the ring is now revoked
because of the transformation.
If the testator by any title or for any cause alienates
So during exam, kani lang imong pangutanahon:
the thing bequeathed or any part thereof, it being
understood that in the latter case the legacy or devise shall • Same form?
be without effect only with respect to the part thus alienated. • Same name?
Then kung nalahi, there is transformation. Just remember, the sale contemplated by Art. 957 no. 2 is a
2. ALIENATION voluntary sale.
How about involuntary sale? Like foreclosure. So this cannot
Any title or for any cause, alienates the thing.
be covered by No. 2 of Art. 957. Dapat voluntary.
Example:
3. LOSS
Year 2000, the testator made a will devising his land consisting
1 ha in Calinan Davao City to A. So a specific parcel of land. And Similar ni siya sa ObliCon, extinguishment of obligation. So it is
then 2 years after, kay nagkalisod man si testator, he sold the extinguished when the thing is loss. If the thing bequeathed is
land to X in a DOA. What is now the effect of the sale made by totally loss during the lifetime of the testator or after his death,
so it could be before his death or after – loss it cannot be
the testator of that very same land to another person?
recovered without the heirs fault.
It is revoked by operation of law (alienation).
Now there is the last paragraph, “Nevertheless, the person
What if before namatay si testator napalit niya ug balik tung obliged to pay the legacy or devise shall be liable for eviction
land? Or maybe nagdeclare na null and void ang sale between if the thing bequeathed should not have been determinate as
the testator and X? Nabalik kay testator ang land. So when he to its kind, in accordance with the provisions of Article 928”,
died in 2010, ang will kay mao lang gihapon wala giusab, so this is regarding loss.
nakabutang didto gihapon na he devised the same land to A.
Naa na sa iyahang estate ang land at the time of his death.Ma Again as I mentioned, the thing mentioned here is specific or a
determinate thing. So kung a specific car is given to A and then
claim ba niya ang land?
without the fault of heir or anyone, nawala ang car or nahulog
Still it is revoked. Under the law, if after the alienation, the Pacific Ocean. What happens now to the legacy?
thing should again belong to the testator, even if it be by
Remember the concept of loss – it perishes, goes out of
reason of nullity of the contract, the legacy or devise shall not
commerce, or disappears in such a way that its existence is
thereafter be valid. It remains to be revoked. What matters
unknown or cannot be recovered.
is it was alienated by the testator after he made the will.
Another example, the same land devised to A but two years So here loss, wala na ang legacy or devise. Pero if it is generic.
I hereby give to A a car, unsa gani atong rule when it comes to
after the testator he needed money so he was constrained to
generic things? What if for example I hereby give to A a red
sell the land to X, but the deed of sale, is pacto de retro sale,
or deed of sale with right of repurchase. And then, after a year, car, and then the heir or the one obliged to deliver gave this
na repurchase pud tuod ni testator and land so that when he Honda civic to A and then later on A was deprived of that car
died nabalik sa estate ang land. Can A claim the land as his kay naa problema. Wala naba right si A at all? Or sorry nawala
devise? OR was it revoked because it was sold? na ang car. So ihatag gihapon kay A ang other cars na available
sa estate – so ilisan siya.
If the sale was made with a right of repurchase, the law will
not presume revocation. Because by reserving the right of It’s also mentioned no, the person obliged to pay the legacy or
repurchase, the law sees it that the testator really wanted to devise shall be liable for eviction if the thing bequeathed
should have not been determinate as to its kind in accordance
honor the legacy or devise. So walay revocation.
with the provision of Art. 957 – so ilisan siya ug lain na car if it
Hwoever kung DOA jud siya ug napalit ug balik ni testator ang is generic.
land, revoked gihapon siya because there was no right of
repurchase when the testator sold the land. So dapat pacto de ARTICLE 958. A mistake as to the name of the thing
retro, or deed of sale with right to repurchase. Pero kung DOA, bequeathed or devised, is of no consequence, if it is possible
tas gipalit lang balik ni testator ang land. Revoked gihapon. to identify the thing which the testator intended to bequeath
or devise. (n)
What if it is a Deed of Absolute Sale, and then subsequently na
annul because of vitiated consent (FRAUD, VIOLENCE, A mistake as to the name of the thing bequeathed or devised..’
MISTAKE, INTIMIDATION or UNDUE INFLUENCE), nabalik ang So it doesn’t matter, it is still valid. For example if the testator
land kay testator. Can the devisee claim at the time of the will say “I will give to A my anklet” but it was actually a
testator’s death? Or was the devise revoked because of the bracelet, but he uses it as an anklet. So as long as it can be
alienation? identified, the legacy or devise will still be valid.
This is a different scenario, because the reason for the ARTICLE 959. A disposition made in general terms in favor of
annulment of the sale was vitiated consent. Meaning there the testator's relatives shall be understood to be in favor of
was no voluntariness on the part of the testator when he sold those nearest in degree. (751)
the land. Here, the law cannot presume revocation.
What If the institution states ‘I hereby give ¼ of my estate to

my relatives’ So who are these relatives being referred here?
So we are talking about the testator’s relatives. When you say
relatives, the law says under legal succession who are the
relatives of the testator, who are his legal heirs? When it
comes to direct line, ascending and descending line there is no
limit. When it comes to collateral line, only up to the fifth
degree of consanguinity,so blood relation, dili puwede ang by
affinity.
So here these are the relatives of the testator? Will all of them
inherit? Will all of them share?
In Article 959, there is only one rule here which applies, the
rule on proximity. The nearer relatives excludes those who are
far. There is no right of representation here. You cannot
represent. Striclty jud, proximity. Because of that, the near
relatives exclude those who are far. So there is no right of
representation.
If you still remember our discussion on reserva troncal, those
who are in the descending line are favoured over those who
are in the ascending line. Those who are in the direct line are
favoured over those who are in the collateral line. But here
there is only one rule: the rule on proximity. The near relatives
exclude those who are far.
Now, there is a question. What if the testator will said “I
hereby give ¼ of my estate to all those who are entitled
thereto” would that be the same as ‘in favour of his relatives’
in Article 959?
When you say ‘to all those who are entitled thereto’ that can
be interpreted as the legal heirs, legal succession. So there, we
do not follow the rule in Article 959 because in Article 959 the
only rule is proximity. So when it is ‘to all those who are
entitled thereto’ pertains to legal heirs in legal succession.
So there we follow the rule on proximity. Those who are in the
direct line are favoured over those who are in the collateral
line and those who are in the descending line are favoured
over those in the ascending line and they have the right of
representation.
END

Succession 2nd Exam 2019 TSN

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ATTY.

LEILANIE YANGYANG-ESPEJO 1ST EXAM COVERAGE

EXAMPLE: There is an original will, and there is a codicil, and

As we have discussed before, in case of NOTARIAL WILLS, you

Codicil Dependent on Original Will

Article 826. In order that a codicil may be effective, it shall be

Purpose of a Codicil Q: You have a notarial will. Can it be supplemented by a

As long as each of them is able to comply with all the forms

REQUISITES FOR A PROPER INCORPORATION BY REFERENCE:

INCORPORATION BY REFERENCE Why? Because the PURPOSE here is to incorporate by

When it comes to Last Wills and Testaments:

“1. On January 1, 2000, I made an Inventory of all my

So it is more convenient. He does not have to copy everything EXCEPTION:

and the witnesses, and there are no other requirements that

Q: If it is an Inventory which is typewritten, and then you

Although, there is NO PROHIBITION if, in addition to the ➢ There is NO VOLUNTARINESS;

Article 829. A revocation done outside the Philippines, by a SUMMARY:

What to remember regarding the laws governing revocation:

When you say revocation by operation of law, it is the LAW

This presumption of law is based on the ACT OF THE TESTATOR,

Q: What if, in reality, the testator really had no intention to

Which would prevail: the Intention of the Testator or the

1. Article 957 of the New Civil Code – ALIENATION

(2) x x x If after the alienation the thing should again belong to

(8) Any person who falsifies or forges a supposed will of the

(4) The offending spouse shall be disqualified from inheriting

➢ The will is REVOKED.

2. REVOCATION BY SUBSEQUENT DOCUMENT OR

TWO MODES UNDER THIS KIND OF REVOCATION:

1. Express Revocation; and

If the omitted compulsory heirs should die before the testator, OR

What is the effect of preterition? Implied Revocation

Why do we have this requisite? Diba the second requisite is

➢ In the first will, the testator gave all his properties to

That is why when a person loses soundness of mind, he cannot

Meaning, it must be executed following the formalities of wills.

3. The second will must have a REVOCATORY CLAUSE

Held: That will cannot be probated because there is no

In all these instances, there must be an INTENT TO REVOKE:

Therefore, without a copy, even if we admit that the will is

➢ A: A (of the first will) is entitled to the estate.

3. REVOCATION BY MEANS OF OVERT ACTS

1. BURNING – Gisunog. IN REAL LIFE:

3. CANCELLING – Butngan nimo ug line (like this), or i-X

Concurrence of the Act and the Intention

That is one act of unworthiness – if an heir prevents the

Q: Is that will revoked?

So even if by overt act, the will was not revoked, by operation

At least a portion of the will must bear evidence of the overt

Before we admit a photocopy, the Supreme Court said that

Article 831. Subsequent wills which do not revoke the previous

EXAMPLE: The testator made a will. He instituted A, B, and C

x x x meaning, all of them cannot receive the inheritance?

Remember the REQUISITES FOR A VALID REVOCATION BY A

4. Can the second will be probated? – YES.

Issue: Is the argument correct? – YES.

➢ A: If it is Revocation by an Overt Act, you have to

Q: Would that be valid?

One of the modes for the recognition of a child is if you make

➢ A: IT STILL STANDS because the recognition is not a When we say:

DEFINITIONS: 1. FOR EXPRESS REPUBLICATION

NOTE: on the Formalities of Notarial and Holographic Wills –

Article 835. The testator cannot republish, without