INTRODUCTION 2. Concept of pater familias. Diligence of pater familias.
Pater
SOURCE – Based on the 2016 Edition of the Succession Book by Balane.
Annotated the Champ Notes with Clarence Tiu Notes, A 2015 Notes and
Lecture Notes.
INTRODUCTORY LECTURE – Usually 2 meetings.
CONCEPT – Succession is the last mode of acquiring ownership. Our civil
code is divided into 4 Books. Our law on succession is part of property law
as a mode of acquiring ownership. It is an INDEPENDENT mode of acquiring
ownership.
HISTORY – The Civil Code follows the GAIAN ORDER. It basically has THREE
CLASSIFICATIONS.
1. The law on persons
2. The law on things
3. The law on obligations
REQUISITES OF SUCCESSION: (DEPA)
1. Death of the predecessor;
2. Existence and capacity of the successor;
3. Provision of the law or provision of a will granting the right of
succession;
4. Acceptance by the successor.
Q: Is tradition (delivery) required for ownership to transfer?
• No. Ownership is transferred by succession, not by any other
mode.
ETYMOLOGY – Succession is derived from 2 Latin words:
• SUB – meaning under (e.g., an underling, a subordinate, if a
plane travels at a subsonic speed or fly below opposite--
subsonic)
• CEDERE, meaning to give, to pass.
SUCCESSION (sub-cedere) (succedere) (successus) (succession) therefore,
is a passing under.
It gives the idea of the nature of succession as originated from Roman Law.
Why do the Romans call it a passing under? Because of the fiction in Roman
Law that a personality occupies a space, that is, a legal personality is
permanent. A permanent fixture but the occupant will go away. And it is
the successor who will occupy the space you left vacant. There is always
what you call personalitas. "Sound through" like a play, where you wear a
mask, and the one behind the curtain is sounding through. that is,
somebody is really talking behind you. This, by analogy is, succession.
Persona means "you," the character. Personalita or personality which is
always there, and there is or there will always be an occupant, who comes
and goes; it may change the character, the person passes under. What is
behind all this? Personality never dies. We are but dust and shadows based
on the reality of death.
Every person, during his lifetime stands inside a civil personality out of which
several relationships arise. (EXAMPLE – citizenship, filiation, being a lawyer,
contract between buyer and seller – these are all relationships).
When he dies, the civil personality is EXTINGUISHED. Some relationships die,
some survive. Now, the law provides for succession.
Why do we have to devise this fiction? Why the law on succession? The
Law on succession has various underpinnings in Roman Law, that is, first, the
vague idea of after life, like the ideas of Horace -- state of good in the Elipian
fields; second, that the law develops based on conditions of society. One
of the most basic desire of man is the desire for immortality.
SUCCESSION IS A SET OF RULES THAT DETERMINES
1. How
2. When – At what time
3. To Whom
4. In What proportion are they transmitted
The relationships that survive are, or should go (intuit personae)
THREE ASPECTS OF THE LAW ON SUCCESSION
1. Succession provides the vehicle for satisfying your yearning and
longing for immortality. It satisfies or consoles yourself that
something in you lives forever and this is your personality. Others
usually leave something like paintings, book of poems, statue so
that they will be remembered forever, e.g., Horace by
Shakespeare.
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familias means head of the family. The basic unit of Roman
society. It is he who managed and exercised authority over his
children, absolute control over his wife. In Roman law, a man's
wife is his child. It is he who is the guardian of the family gods. It
is a position that must be occupied every time. It is unthinkable
to be otherwise. Once he dies, it is absolutely necessary not only
in religion that he is to be replaced immediately. This is
indispensable.
3. Universal Succession. These underpinnings are gone now. Today,
succession is nothing but a mode of acquiring ownership. Why?
Because you do not have the fiction to have succession,
because of the spread of Christianity which took the place of
those yearning that it is believing in God and life after death. No
more yearnings for immortality, unless you do not believe in the
teachings of Christianity.
Also, the concept of pater familias is no longer applicable because of
parental authority which restricted the authority of the head of the family.
We no longer have slaves, absolute control over children, etc.
But old beliefs do not die easily. Some provisions of the law on succession
are influenced by these underpinnings. Like, "heirs are the continuation of
the personality of the decedent." Another is: when a condition is imposed
upon the substitute, does the substitute have to fulfill the condition? All of
these are residual elements of Roman Law.
DEFINITIONS OF SUCCESSION
Succession in a juridical sense is the substitution of one person for another in
a determinable relationship or a subrogation of one person by another in a
juridical situation. (Manresa.)
Succession is the substitution of a person to the determinable legal
relationship of another. (Castan.)
Castan's definition is better. (Balane.)
PHILIPPINE LAW ON SUCCESSION (Based on the lecture given by JBL Reyes.)
Every person during his lifetime is at the center of a number of juridical
relation flowing from personality. Some of these legal relations are
permanent, some are transitory. Some of these relations are: paternity and
filiation, marriage and maternity, membership of the bar, student of UP, etc.,
which other persons do not have. There are transitory relations, and
examples of these are one when bought a bottle of Coke; lease of an
apartment unit; a mortgage; a contract of partnership; when one rides a
bus, etc.
When a person dies, personality is extinguished. Some of these juridical
relations will die with you-- intuitu personae-- SSS, GSIS-- if they die with you,
no problem. but some of them survive, e.g., land, say a thousand hectares.
If it is only a ball pen left by the decedent, it is not a big problem. But what
if the decedent left a big tract of land, or there is a contract of sale which
transfers ownership bet. the decedent and third parties. You have to set a
devise. You cannot leave them hanging in the air. You have to devise a
set of rules to determine the how, when, to whom, to what extent these
rights will be transmitted. The law which governs them is succession. And
that is all on succession, everything is footnotes.
ELEMENTS OF SUCCESSION (MANRESA)
1. Change of subject (cambio de suheto.) – ownership is transferred
from deceased to heir (subjective change.)
2. Identity of Object (identidad de objecto) – same property is
involved, only the owner is changed. The right is the same
(objective identity.)
DIFFERENT KINDS OF SUCCESSION
1. Moment of Transmission
2. Extent of the rights involved
3. Cause
4. Parties
5. Terms
BY THE MOMENT OF TRANSMISSION
MORTIS CAUSA INTER VIVOS
takes place by virtue of death takes place independently of
death during the lifetime of the
parties (now called Donation inter
vivos.)
In the PH, succession is strictly mortis causa!
 BY THE EXTENT OF THE RIGHTS INVOLVED Say, a will giving UP a property. This is more on the law of property. This is
UNIVERSAL PARTICULAR / PARTIAL the eclectic theory of Castan.
this is very catchy – it succession to specific items or property
involves the entire MAJOR CHANGES IN THE NEW CIVIL CODE ON SUCCESSION
LEGACY DEVISE
estate or fractional or 1. Allowance of holographic wills (Art. 810.) It gives greater
specific personal specific real prop
aliquot or undivided freedom to the decedent to choose in what form he can dispose
prop
part of the estate, by will his estate. Holographic will is not a novelty but a revival.
EX – I give to G my
This was allowed in the Spanish times but was abrogated during
EX – I give you my car fishpond in Laguna.
EX – I give you 1/2 of the American regime. It was only restored under the NCC.
my estate. 2. Improvement in the successional position of the surviving spouse.
Under the OCC, the surviving spouse had a right of usufruct only.
Under the NCC, the surviving spouse is given full ownership and
AS TO CAUSE AND IMPORTANCE (RANK)
is a compulsory heir. The share is variable that it is so bewildering.
1. COMPULSORY that effected by operation of law to forced
3. Abolition of the right of mejora or betterment (the right of the
heirs even if not in a will; succession to the
parent to give a child more than the other.) This is basically a
reserved portion/ legitime
portion of the legitime, 1/3. Freedom is given to the testator as to
2. TESTAMENTARY By the provisions of a will who among his children he will give the 1/3. This system was
3. INTESTATE OR LEGAL succession in default of a will; subordinate to never utilized because it was never understood by the people.
testamentary succession 4. Abolition of the reservas and reversiones. The NCC restored
4. MIXED combination of the above (not really a kind) reserva troncal, reversion adoptiva (under PD 603.)
5. CONTRACTUAL donation propter nuptias by one to another of 5. Granting successional rights to/ for spurious children--
future property which takes effect after death. illegitimate other than natural. This is one of the revolutionary
Why contractual? Because of the transfer of changes in the NCC. Under the OCC only legitimate children
prop. is not by virtue of a will but by contract. have successional rights. NCC liberalized it by granting
So it is governed by the law on contracts. successional rights to spurious children.
Hence, it must be governed by the Statute of 6. Greater facility in the probate of wills. Why? Because of the
Frauds. It must be in writing to be enforceable. allowance of ante mortem probate, that is, during the lifetime of
the testator. Now, probate may be post-mortem or ante-
NOTE – this is now eliminated by the Family mortem.
Code and donations propter nuptias are 7. The application of the prohibition outlined in Art. 739 to
governed by Testamentary succession succession. this is by virtue of Art. 1038. Art. 739 provides that:

AS TO PARTIES TO SUCCESSION:
1. THE ONE WHO DIES – Decedent, transferor, causante, acutor, de
cuius/ auctur
• Testator – if with will
• Decedent – if without will
2. THE ONE WHO SUCCEEDS – Successor, transferee, causa habiente
• By UNIVERSLA TITLE – heir
• By PARTICULAR Title – Devise or legatee
AS TO TERMS
1. TESTATOR – decedent left a will
2. INTESTATE – decedent did not leave a will
3. HEIR – one who succeeds by universal title or to a share of the
estate
4. DEVISEE – one who succeeds by particular title to real prop.
5. LEGATEE – one who succeeds to a specific personal prop.
IMPORTANT PRINCIPLES OF SUCCESSION (WHICH PERMEATE (MEANS FILL) THE
ENTIRETY OF SUCCESSION):
1. Mortis Causa – Succession cannot take place while the owner is
alive. The heir/ successor has a mere expectancy right to the
prop. of the decedent, during the lifetime of the latter.
2. Interest of the family may override the will of the decedent
because of compulsory heirs. There is a legitime reserved for the
family. A will cannot impair the legitime.
3. The estate passes or devolves to the family unless the decedent
expressly orders otherwise in a will. Family covers spouse,
ascendants, descendants, and collateral relatives.
4. The family cannot be entirely deprived of the estate because of
the system of legitime.
5. Within the family, heirs of equal degree/ proximity inherit in equal
shares. Presumption of equality. This is only the general rule. There
are exceptions.
6. The State has a share in the inheritance through taxes.
7. The heirs are not liable for the debts of the estate beyond their
share in the inheritance. Estate is liable for the debts left by the
decedent. Debts are to be deducted before the heirs can get
their shares. Procedure: Collect all assets, deduct debts, then
partition the shares. Up to what extent? Up to all its assets. If the
estate is zero balance, the heirs get nothing.
Article 739. The following donations shall be void: (AC-CO)
(1) Those made between persons who were guilty of
adultery or concubinage at the time of the donation;
(2) Those made between persons found guilty of the
same criminal offense, in consideration thereof;
(3) Those made to a public officer or his wife,
descendants and ascendants, by reason of his office.
In the case referred to in No. 1, the action for declaration of nullity
may be brought by the spouse of the donor or donee; and the
guilt of the donor and donee may be proved by preponderance
of evidence in the same action.
8. Increase of the free portion-- corollary to the abolition of the
mejora
9. Limitation of the fideicommisary substitution to one degree
(before, two degrees)
10. Intestate succession is narrowed from sixth degree to fifth degree.
11. Abolition of the institution under pupilar and ejemplar
(substitution.)
12. Allowance of lifetime probate.
AREAS IN SUCCESSION AFFECTED BY THE AMERICAN CODE
1. Rules in interpretation – Arts. 788-792
2. Rules on formal requirements of a will – Arts. 804-809
3. Rules governing witnesses to wills – Arts. 820-824
4. Rules on republication and revival of wills – Arts. 835-836
5. Rules on revocation – Arts. 829-831
6. Rules on allowance and disallowance of wills – Arts. 838-839
7. Rules on Testamentary capacity. – Arts. 797-802

Under the modern civil law, if the decedent left more debts than assets, it
will not change or affect your status anyway, but not with the decedent's
creditors-- they have to beware-- caveat creditor.

BASIS OF THE LAW ON SUCCESSION – Some say it is the law on property which
seems to be the basic attitude of the Code. Others say succession is a law
on persons because of the compulsory heirs. How can you explain that? Is
there some link bet. the law on succession and property? There is. Castan
said that law on succession is both law on persons and property. However,
in a pure testamentary succession, the law on persons do not come to play.
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 CHAPTER 1 RECAP
GENERAL PROVISIONS • The GENERAL RULE is that properties, rights and obligation are
TRANSMITTED to the heirs.
Art. 774. Succession is a mode of acquisition by virtue of which the property, o EXCEPTION – Money Debts
rights and obligations to the extent of the value of the inheritance, of a • This means that there are TRANSMISSIBLE OBLIGTIONS (such as
person are transmitted through his death to another or others either by his obligation of a lessor to a lessee) that are NON-MONETARY and
will or by operation of law. (n) which are transmissible to the heirs.

NOTE CONNECT ART. 774 WITH ART. 776, SUPRA.

1. A definition by Scaevoia • FOR MONEY DEBTS: If not paid in settlement proceedings, heirs
2. Succession is one of the SEVEN modes of acquiring ownership could be liable to the extent of what they received
under Art. 712 • FOR OBLIGATIONS: E.g., lessee-lessor-- obligation to keep the
3. Relate this to Art. 776. lessee in the peaceful possession is transmitted to the heirs.

SUCCESSION IS A MODE OF ACQUISITION RULE REGARDING PECUNIARY OBLIGATIONS OR MONEY DEBTS

• It is one of the 7 legally recognized modes of acquiring ownership • RULE – Creditors must file a claim against the estate (not the heirs).
under Art. 712 Thus, in our system, money debts are seemingly not transmitted
o Original Modes – because there was no “immediate” to the heirs nor paid by them. The estate pays them, it is only what
previous owner is left after the debts are paid that are transmitted to the heirs. 

1. Occupation
2. Intellectual Creation ART. 774 AND 776 SEEMS TO CLASH WITH THE RULES OF COURT;
o Derivative Modes – title is derived from an immediate HARMONIZATION
previous owner • Logic from Art. 774/776: You can directly sue the heirs for
3. Law 
 obligations of the decedent. This is because, since the
4. Donation 
 successional rights vest on them, at the time of the death of the
5. Testate and Intestate Succession 
 testator
6. Tradition (in consequence of certain contracts) • Rule 90, Rules of Court: You must sue the estate otherwise, the
o Mixed Mode – because it’s hard to classify it, claim will be barred.
prescription is not strictly original, nor derivative • BALANE: Art. 774 and 776 seems to clash with the Rules of Court.
7. Prescription 
 Because Art. 774 and 776 are based on Spanish and Roman Law.
• PROPERTY, RIGHTS, AND OBLIGATIONS ARE TRANSMITTED – those Rules of Court is based on American Law. These are divergent
which are not extinguished by death of the decedent is systems that clash.
inheritance. Succession is but a process of transmission. o Q (THIS IS A RECIT Q) – How do you harmonise this?
• Succession is a mode of acquisition of inheritance transmitted to Given that as a rule, substantive law should prevail
the heirs upon the death of the decedent through a will or by over procedural law?
operation of law. o A – ESTATE OF HEMADY V. LUZON SURETY – This case
harmonizes the conflict between Art. 774 and 776 and
RELATE THIS ART. TO ART. 776 – OVER LAP OF CODAL DEFINITION the Rules of Court as to when the vesting of the
• Reading Art. 774 and 776 will show an overlap of the two successional right takes place. Court in said there is no
provisions 
 conflict between the Civil Code and the Rules of
• Art. 776 defines the “inheritance” of a person 
 Court. It said that, ultimately the result will be the same
• Art. 774 talks of “property, rights and obligations to the extent of anyway. Although the heirs are not immediately and
the value of the inheritance”, Art. 776, on the other hand, talks of directly liable, ultimately they were still held liable
the “inheritance” as including “all the property, rights and since what they got from the estate, was reduced. So,
obligations of a person which are not extinguished by his death” successional rights still vested on the heirs upon the
• BALANE – For better clarity and correlation, Art. 774 should be death of the decedent, but it needs to go through
read as: Succession is a mode of acquisition by virtue of which liquidation and distribution in court and pay off the
the inheritance of a person is transmitted through his death to decedent's creditors before the net estate passes to
another or others either by his will or by operation of law the heirs. Payments made by the estate are deemed
o And the inheritance which is transmitted is defined by payments made by the heirs. Although the heirs are
Art. 776 to include “all the property, rights and not immediately and directly liable, ultimately they
obligations of a person which are not extinguished by were still held liable since what they got from the
his death” estate, was reduced. 


WHAT ARE TRANSMITTED? CASE – UNION BANK V. SANTIBANEZ

• RULE – Only Transmissible rights (which includes property) and • F – Decedent contracted loans during his lifetime. After
obligations pass by succession. decedent died, creditor filed an action for collection against the
• How do we determine those that are transmissible? heirs. 

o Criterion – If the right or obligation is STICTLY PERSONAL • H – The filing of a money claim against the decedent’s estate in
(by stipulation, by law or by nature) then it is NOT the probate court (pursuant to Sec. 5, Rule 86) is MANDATORY.
transmissible (INTRANSMISSIBLE), otherwise, o PURPOSE – protecting the estate of the deceased by
transmissible. informing the executor or administrator of the claims
against it, thus enabling him to examine each claim
TRANSMISSIBLE NOT TRANSMISSIBLE and to determine whether it is a proper one which
should be allowed.
Patrimonial Rights Intuitu Personae
o The plain and obvious design of the rule is the speedy
settlement of the affairs of the deceased and the early
• Thus, only non-personal rights and obligation are transmissible delivery of the property to the distributees, legatees,
though succession. or heirs. The law strictly requires the prompt
presentation and disposition of the claims against the
LIMITATION IN ART. 774 ON THE OBLIGATIONS TRANSMITTED TO THE HEIR decedent’s estate in order to settle the affairs of the
• RULE: The heir cannot be held liable beyond the inheritance estate as soon as possible, pay off its debts and
received distribute the residue. 

• BALANE: Only the payment of money debts has been affected
Q – ARE MONETARY OBLIGATION PURELY PERSONAL SUCH THAT THEY ARE NOT
by the Rules of Court. The transmission of other obligations not by
TRANSMISSIBLE?
nature purely personal follows the rule laid down in Article. 

• NO. They are PATRIMONIAL but they are NOT passed to the heirs.
• They are NOT intuitu personae.
CASE – ESTATE OF HEMADY V. LUZON SURETY
• Money debts, according to the ROC are NOT transmitted to the
• F – Lower court ruled that claims filed by Luzon Surety against
heirs, nor paid by them. It is the ESTATE that pays for them. Only
decedent’s estate based on contracts of suretyship entered into
after the debts are paid that the residue of the state are
by the decedent were not chargeable because death
distributed to the heirs.
extinguished liability as surety/guarantor.

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 • H – Obligations of a guarantor are transmissible. Contracts take
effect only between parties, their assigns and heirs, unless they
are intransmissible by their nature, by stipulation or by operation
of law. 
 Los derechos a la succession de una persona se transmitted desde el
• B – In this case, it is not really a money debt but only a
CONTINGENT CLAIM (because of the contract of guarantee).
Since a guarantee obligation is PATRIMONIAL and not inuitu
personae, it was passed on to the heirs. In any case, A
CONTINGENT CLAIM IS A TRANSMISSIBLE OBLIGATION.
MONETARY OBLIGATIONS
• GENERAL RULE: The estate pays for them before the estate is
partitioned
• EXCEPTION: Alvarez case.
CASE – ALVAREZ V. IAC
• F – A judgment ordering decedent to return the lots was entered
during his lifetime but was not executed because he sold the lots
to a 3rd person. A suit for recovery of the lots was filed against the
heirs of seller.
• H – Liability that arose from the sale of decedent in bad faith was
not extinguished by his death and was passed on to his heirs.
However, the heirs are only liable to the extent of the value of
their inheritance. 
 decedent’s death, without a moment’s interruption.
• B – Predecessor fraudulently disposed of the property during
litigation. SC held that heirs cannot escape liability for their
father's transactions which gave way to this claim for damages.
Even though they did not inherit the prop., the monetary
equivalent thereof was devolved into the mass of the estate
which the heirs inherited. Hereditary estates are always liable in
their totality for the payments of the debts of the estate.
Whatever payment mad by the estate is ultimately a payment
by the heirs because these payments decrease their inheritance.
Art. 775. In this Title, "DECEDENT" is the general term applied to the person
whose property is transmitted through succession, whether or not he left a
will. If he left a will, he is also called the testator. (n)
NOTES
• General term of the person who dies, whether or not he left a will:
“Decedent”
o If the decedent left a will: Also called as a “Testator”
• BALANE –
o It is unfortunate that the Code does not use the term
“intestate” to refer to a decedent who died without a
will. This would have prevented the ambiguity now
inherent in the term “decedent”
o Every testator is a decedent but not all decedents are
testators. Under the American system, a decedent
who did not leave a will is called "intestate." But this is
not true in the Phils.
Art. 776. The inheritance includes all the property, rights and obligations of
a person which are not extinguished by his death. (659)
BALANE – Transmissible property, rights and obligations constitute
inheritance.
GUIDELINES ON WHETHER RIGHTS/ OBLIGATIONS ARE EXTINGUISHED BY
DEATH:
1. Property, rights and obligations which are PURELY PERSONAL are
extinguished by the death of the decedent. They are not part of
the inheritance, e.g., membership in the bar or right of
consortium with your wife.
2. Those which are PURELY PATRIMONIAL.
• GENERAL RULE: They form part of the inheritance, e.g.,
credits.
• EXCEPTION: MONEY DEBTS – obligation to pay is not
transmissible, although purely patrimonial because
the estate pays for it.
3. Those OBLIGATIONS TRANSMITTED TO THE HEIRS WHICH ARE NOT
MONETARY, e.g., obligation of a lessor – patrimonial. B leased to
C a parcel of land for a term of 3 years. After 2 years, B died. The
heirs of B are bound by the lease contract.
NOTE – Obligation as lessee and bailee are transmissible.
1INING VS DE VEGA (2013) – In this case, the estate was not settled, and the
co-owner properties passed on to different generations without being
divided, thus, a lot of co-owners were involved. Co-owners died and their
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Art. 777. The rights to the succession are transmitted from the moment of the
death of the decedent. (657a)
momento de su muerte.
NOTE: Art. 777 is the most important provision in Succession and one of the
most important provisions in Civil Law!
BALANE – WHEN DOES THE SUCCESSIONAL RIGHT TRANSMIT OR VEST?
“VESTED” IS THE MORE APPROPRIATE TERM
• The terminology is INFELICITOUS because the right to succession
is not transmitted, it becomes “VESTED”.
• This is illogical because the decedent does not have rights to the
succession.
• To improve the provision, change the words "succession" to
"inheritance" (the right to succeed is an inchoate right) and the
verb "transmitted" to "become vested."
• To say that it is transmitted implies that before the decedent’s
death, the right to the succession was possession by the
decedent, which is absurd. To say it vests upon death implies that
before the decedent’s death, the right was merely inchoate.
o The vesting of the right occurs immediately upon the
• It is at the PRECISE MOMENT of death, that the heir, devisee or
legatee is legally deemed to have acquired ownership.
• NOT at the time of declaration of heirs, NOT at partition, NOT at
distribution.
WHAT IS TRANSMITTED AT THE MOMENT OF DEATH?
• It is the INHERITANCE. Not the rights.
• Relate this to ART. 781
FOUR ELEMENTS OF SUCCESSION
1. Death
2. Will or Operation of law
3. Existence and capacity of the successor
4. Acceptance.
NOTE – This provision is the heart and soul of succession. The most essential
provision of the law on succession.
• Art. 777 merely specifies the TIME OF VESTING of the successtional
right.

• PRESUMES THAT THE PERSON SUCCEEDING
1. Has a right to succeed by legitime (compulsory
succession), by will (testamentary succession), or by
law (intestate succession) 

2. Has the legal capacity to succeed 

3. Accepts the succession
§ The rights to succession are automatic. Tradition or delivery is not
needed. Fiction of the law is that from the moment of the death
of the decedent, the right passes to the heirs. 

§ During the lifetime of the predecessor, rights to succession are a
mere expectancy. Hence, no contract can be legally entered
into regarding the expected inheritance. When a heir receives his
inheritance, he is deemed to have received it at the point of
death. this is so by legal fiction to avoid confusion.
WHAT ARE THE CONSEQUENCES OF THIS PRINCIPLE
1. USON V. DEL ROSARIO – The law in force at the time of the of the
decedent’s death determines who the heirs should be.
2. DE BORJA V. VDA. DE BORJA – Ownership passes to the heir at the
very moment of death, who therefore, from that moment
acquires the right to dispose of his share onerously or gratuitously.
3. BONILLA V. BARCENA – The heirs have the right to be substituted
for the deceased as party in an action that survives.
4. **INING V. DE VEGA1 – an implied co-ownership arises between
the heirs as to the undivided portion of the estate at the moment
of the death of the decedent. And if such heir/co-owner dies,
then his interest of the estate is further transmitted to his heirs who
become co-owners of the undivided portion of his interest.
respective heirs became co- owners, and so on, this is based on the
principle that the rights to the succession are transmitted from the moment
of death. Note – this case was not discussed in class. Only additional info.
CASE – USON V. DEL ROSARIO
§ F – Nebreda died in 1945 and was survived by his wife and 4
illegitimate children. Wife brought action against illegitimate
children for the recovery of the possession of land left by husband
on the theory that she is the sole heir. Defense: while under the
Old CC spurious children do not have successional rights, under
the New CC they are granted the same status as natural children
thus entitled to succeed from their father’s estate. 
 substitution saying that a dead person cannot be a real party on
§ H – The decedent’s illegitimate children cannot claim
successional rights granted to illegitimate children under the NCC
because the decedent died during the effectivity of the old
code.
o The provision in ART. 2253 providing for the
RETROACTIVE EFFECT since they were declared for the
first time in the NCC WILL NOT APPLY because that is so
only when the new rights do not prejudice or impair
any vested or acquired right of the same origin. Since
the rights of the legitimate children already vested
upon decedent’s death, the new right recognized
under the NCC in favor of illegitimate children of the
deceased cannot be asserted now, to the impairment
of the vested right of the legitimate children.
§ B – In other words, when the testator died in 1945, the illegitimate
children were not heirs yet, since the law in force during that time
was the Old Civil Code which does not give successional rights
to illegitimate heirs.
CASE – DE BORJA V. VDA. DE BORJA – Right to inherit is vested at the moment
of death.
§ F – Decedent died with a will. Before probate of his will and to
end suits between them, D’s son by his first marriage and 2nd wife
entered into a compromise agreement that 2nd wife will receive
P800,000 as full and complete payment of her hereditary share.
§ H – Agreement is valid. There was no attempt to settle or distribute
the estate among the heirs before the probate of the will. The
contract was merely for conveyance (or sale) and all of her
individual share and interest in the estate of the decedent. As a
hereditary share in the decedent’s estate is transmitted or vested
immediately from the moment of death, there is no legal bar to
the successor of disposing of his hereditary share immediately
after such death, even if the actual extent of such share is not yet
determined until after the subsequent liquidation of the estate.
o The effect of such alienation is deemed limited to what
is ultimately adjudicated to the vendor heir.
o The aleatory character of the contract does not
affect the validity of the transaction.
§ B – Even if she did not know how much she was going to inherit,
she could still dispose of her share in the inheritance. Said right to
the share was hers from the moment of death and she could do
whatever she wanted with her share, even sell it.
CASE— ALFONSO V. SPS. ANDRES
§ F – Jose inherited subject property from his father. This was
assigned to him in a Deed of Extrajudicial Settlement. Jose sold it
Sps Andres. 
 involved.
§ H – The transfer is valid because title of property of person who
died intestate passes at once to his heirs, subject to the claims of
administration and payments of debts and expenses. 
 possessed ill-gotten properties.
§ B – The heir can already sell his share of the estate even before it
is finally determined (by testate or intestate procedings) how
much is he going to get. Note that the heir can only sell/dispose
of “his share” the undivided estate. He cannot sell specific items
because, at this point, such is still undetermined.
WHAT IS PRECISELY TRANSMITTED?
§ SPS ALFONSO V. SPS. ANDRES – NET ESTATE – the assets remaining
after the payment of unpaid money debts of the decedent, and
of the expenses of administration.
CASE – LEE V. RTC
§ F – Dr. Ortanez owned 90%of the subscribed capital stock of
Philippine International Life Insurance Company. He died and left
behind a wife and 3 legitimate children and 5 illegitimate
children as heirs. Juliana (wife) and Jose (legit child) sold 1,014
and 1,011 shares respectively to FLAG.
§ H – The sale of the shares of stock were void. An heir may sell only
his interest in the estate, or an ideal, undivided or aliquot part
thereof. He cannot yet sell specific property to the prejudice of
the other heirs.
o When the estate of the deceased person is already
subject of a testator intestate proceeding, the
JDLYRREVERRE | B2020 | SUCCESSION | ATTY. BALANE | CHAMP NOTES ANNOTATED | 5
administrator cannot enter into any transaction
involving it without prior approval of the probate court.
CASE – BONILLA V. BARCENA
§ F – Decedent, during her lifetime, filed an action to quiet title.
During the pendency of the case, Decedent died and counsel
asked that her heirs be substituted. Court denied motion for
interest and has no legal personality to sue. 


§ H – In an action to quiet title, while it is true that a person who is
dead cannot sue in court, yet he can be substituted by his heirs
in pursuing the case up to its completion. When he filed the case,
decedent was still alive, hence the court had acquired
jurisdiction over his person. If thereafter he died, the ROC
prescribes a procedure whereby a party who died during the
pendency of the proceeding can be substituted.
o From the moment of death, the heirs become the
absolute owners of his property, subject to the rights
and obligation of the decedent, and they cannot be
deprived of their rights except by those provided by
law. The moment of death is the determining factor
when the heirs acquire a definite right to the
inheritance, whether such right be pure or contingent.
o The right of the heirs to the property vests in them EVEN
before judicial declaration of being their heirs. Hence,
when Barcena died, her claim or right over the land in
litigation was not extinguished by her death but
TRANSMITTED to her heirs upon her death. The heirs
acquired interests in the litigated property.
§ B – You do not need a declaration of heirship whether testate or
intestate, voluntary, etc. The rights of the heirs to the property vest
in them even before judicial declaration of their being heirs in the
testate proceedings. An action to quiet title is not extinguished
by the death of the decedent, it being a patrimonial right.
Hence, the heirs have the right to be substituted to the action
even before their having declared as heirs.
NOTE
§ What was transmitted was the right to prosecute the action
§ HEIRS OF YAPTINCHAY V. DEL ROSARIO – If there is dispute as to
who the legal heirs, it must be first establish the right to succeed
in a SEPARATE ACTION.
CASE – REPUBLIC V. MARCOS
§ F – Cases for reversion, reconveyance and restitution of ill- gotten
wealth were filed against persons including heirs of Marcos were
sought to be dismissed against the latter-mentioned defendants.
§ H – Despite the finding that their involvement in the alleged illegal
activities was not established, they should be maintained as
defendants because the case is an action that survives thus it is
imperative that the estate be represented.
o Prior settlement of the estate is not necessary for the
heirs to commence an action pertaining to the
decedent. In 
this case, it was an action for partition


o As to Imelda and Bongbong, they are the executors
of FM’s estate, and as to Imee and Irene, they possibly



Art. 778. Succession may be:
(1) Testamentary;
(2) Legal or intestate; or
(3) Mixed. (n)
Art. 779. Testamentary succession is that which results from the designation
of an heir, made in a will executed in the form prescribed by law. (n)
Art. 780. Mixed succession is that effected partly by will and partly by
operation of law. (n)
 INTESTATE/ COMPULSORY CASE— BALUS V. BALUS
TESTAMENTARY MIXED
LEGAL SUCCESSION § F – Mortgage on decedent’s land was foreclosed by the Bank
Art. 779 Lost Art. 780 Not mentioned and there being to redemption, title was consolidated to the
in Art. 788. Bank. D died and 2 of his 3 children bought land from the Bank.
B – The draft of the 3rd child demanded share in the property as his inheritance. 


Code contained a
§ H – The rights to a person's succession are transmitted from the
definition of this
kind of succession moment of his death. In addition, the inheritance of a person
which seems to consists of the property and transmissible rights and obligations
have gotten lost in existing at the time of his death (by virtue of succession), as well
the legislative mill 

as those which have accrued thereto (by virtue of ownership)
That which Takes place by That effected Succession to
since the opening of the succession. 

results from the operation of law partly by will and legitimes
o In this case, since the testator lost ownership of the
designation of in the absence partly by
an heir of a valid will 
 operation of law Prevails over all subject property during his lifetime, it only follows that
other kinds. at the time of his death, the disputed parcel of land
made in a will Combination of no longer formed part of his estate to which his heirs
executed in the any two or all of may lay claim. Stated differently, the heirs never
form prescribed the other 3 kinds inherited the subject lot from their father. 

by law. of wills.
Q – A has a son, X. A dies in 1988. Inheritance is a mango plantation. In 1990,
BALANE – the enumeration cannot satisfactorily accommodate the system there is a crop. Is it part of the inheritance?
of “legitimes” 1. ACCORDING TO ART. 781 – YES. This is inconsistent with Art. 777
§ Legitimes does not fit in with legal or intestate succession because succession occurs at the moment of death. Art. 781
because it operates only in default of a will while legitime implies a second succession.
operates whether or not there is a will, in fact it prevails over a 2. LEGAL CONCEPT – No. X owns it through accession and not
will. Also, there are instances when the rules on legitime (Art. 887) succession. Fruits are no longer part of the inheritance. It belongs
operate, to the exclusion of the rules of intestacy (Art. 960) 
 to the heir because of ownership of the land he received at the
§ Legitime should be classified as a separate and distinct kind of moment of death. (Art. 777.)
succession and can be denominated as “compulsory
succession” Art. 782. An heir is a person called to the succession either by the provision
of a will or by operation of law.
KINDS OF SUCCESSION (ACCORDING TO ORDER OF IMPORTANCE)
1. COMPULSORY – Succession to the legitime Devisees and legatees are persons to whom gifts of real and personal
2. TESTAMENTARY – Succession by will property are respectively given by virtue of a will. (n)
3. INTESTATE OR LEGAL – Succession in default of a will
BALANE: The definitions given in this article are not good. The definitions
"In default of a will" does not mean the absence of a will. contained in the Spanish Civil Code were better. An heir succeeds by
Intestate succession can take place even if there is a will, such as universal title. Devisee or legatee succeeds by particular title.
when the will does not dispose of all the disposable property of
the decedent, in such case, the will defaulted as to the RECALL CASTAN –
remaining property not covered by it.
HEIR DEVISEE LEGATEE
4. MIXED
 One who succeeds Those who succeed Those who succeed
to the whole or an to definite, specific to definite, specific
BALANE aliquot (fractional) and individual REAL and individual
§ Mixed succession is not really a kind of succession, but merely a part of the properties PERSONAL properties
combination of different kinds of succession. So there are really, inheritance

only 3 kinds of succession Successor by Successor by specific title or by particular
§ Before the family code, there was a fourth kind of succession, universal title or by succession

"Contractual Succession" between spouses in the form of a universal succession

donation propter nuptias to take effect upon the death of either X gives Y the whole of X gives Y his house X gives Y a painting
spouse. his estate, or 1/4 of his
estate, in either case, I bequeathed 1/2 of
Art. 781. The inheritance of a person includes not only the property and the Y is considered as an my fishpond in
transmissible rights and obligations existing at the time of his death, but also heir Pampanga to A
those which have accrued thereto since the opening of the succession. (n)
Q: IS IT IMPORTANT TO DISTINGUISH BETWEEN HEIR DEVISEE AND LEGATEE?
AFTER DECEDENT’S DEATH – since the opening of the succession § A – Before, yes. The heir inherited even debts of the decedent,
even if it exceeds the value of the property. Devisees or legatees
BALANE: Art. 781 should be deleted as it only confuses. were liable for debts of the decedent only up to the extent of the
§ Inheritance includes ONLY those things enumerated in Art. 776. value of the prop.
§ Those which have accrued thereto after death (when succession o Now, No. Except in one instance, in case of
opens) do not comprise the inheritance but they accrue by PRETERITION in Art. 854. If read carefully, institution of
virtue of ownership (accretion) and NOT succession. heir is annulled while devise and legacy are not, so
§ Heirs owns the accruals not by succession. long as there is no impairment of the legitime.
§ To say that accruals are inherited is to negate the principle in Art.
777 that the transmission takes place UPON death. ART. 854 – the omission in testator’s will of one, some or all of the compulsory
heirs in the direct line, whether living at the time of execution of the will or
WHAT IS THE RULE NOW? born after the death of testator.
§ RULE: The inheritance includes all the transmissible property, rights
and obligations of a person. Whatever accrues after the BALANE – ART. 782 IS NOT A WORKING DEFINITION – Someone who is a
decedent’s death (which is when the succession opens) belongs devisee (succeeded by a particular title) can fit into the definition of an heir
to the heir, not by virtue of succession, but by virtue of ownership, (succeeds to a fractional/ aliquot/ undivided part of the estate.) and vice
specifically by right of accession. versa.
o This includes fruits (civil, natural and industrial) which
accrue after death. 

o The inheritance passes at the moment of death (Art.
777) to the heirs by virtue of succession, but the fruits of
the inheritance pass to the heirs by virtue of accession.
§ BALANE: To say that the fruits are part of the inheritance means
that the succession takes place beyond the moment of death of
the decedent, which is wrong. Art. 781 is a new provision which
should not have been added.

JDLYRREVERRE | B2020 | SUCCESSION | ATTY. BALANE | CHAMP NOTES ANNOTATED | 6

 CHAPTER 2
TESTAMENTARY SUCCESSION
BALANE – The code is not logical. We should have started with compulsory
succession since it prevails over all the other modes of succession.
ART. 779 – definition of testamentary succession.
SECTION 1. - WILLS
SUBSECTION 1. - WILLS IN GENERAL
Art. 783. A WILL is an
• act whereby a person is permitted,
• with the formalities prescribed by law,
• to control to a certain degree the disposition of this estate,
• to take effect after his death. (667a)
NOTE: The will disposes only the FREE PORTION.
OPERATIVE WORDS IN THE DEFINITION
1. ACT – will as an act is too broad of a definition
§ It should have been limited to only an instrument or a
document because to say act may include
nuncupative or oral will, which are not recognized in
our Code
§ To define it as an ACT would have been accurate
under the Spanish Code because they allowed oral
wills. (a military will could be oral)
§ EXCEPTION – oral wills are allowed under MUSLIM
PERSONAL LAWS à testamentum nuncupativum
2. PERMITTED – will making is purely statutory. It is NOT a constitutional
right.
§ A person is permitted – refers only to natural persons.
§ A law may later on be passed prohibiting the making
of wills.
3. FORMALITIES PRESCRIBED BY LAW – There are requirements as to
the FORM in cases of attested and holographic wills
4. CONTROL TO A CERTAIN DEGREE – The testator’s power to dispose
is limited by the system of legitimes (which should go to the
compulsory heirs)
§ IF THERE ARE NO COMPULSORY HEIRS – the power of
the decedent to dispose of his estate is absolute.
§ IF THERE ARE COMPULSORY HEIRS – he only has a
limited degree to dispose. That is why the will can only
cover the disposable portion of the estate (free
portion.)
5. AFTER HIS DEATH – testamentary succession, similar to all the 3
other kinds, is mortis causa.
§ BALANE – better if UPON
§ ART. 777 – “from the moment of the death of the
decedent”
§ Without a moment’s interruption and NOT after his
death. See comments under ART. 781.
CASE – VITUG V. CA – Alternative Definition of a Will – Memorize for Recit
§ F – Husband and Decedent Wife executed a Survivorship
Agreement with the Bank that after the death of either of them,
the money in their joint savings account would belong to the
survivor. 
 o
§ H – The “survivorship agreement” executed by spouses (between
themselves and the bank) pertaining to bank deposits, which are
conjugal during their lifetime but will be exclusive property of the
surviving spouse upon the death of either, is NOT a will. This is
because a bequest or devise must be owned by the testator. In
this case, it was conjugal funds.
o Neither is the survivorship agreement a donation inter
vivos, because it was to take effect upon death of one
party. It is also not a donation between spouses,
because it involved no conveyance from one spouses
to another.
o Court held that such an agreement is a kind of
aleatory contract involving an obligation with a term,
the term being death.
§ ALTERNATIVE DEFINITION OF A WILL IN THIS CASE: "A personal,
solemn, revocable, and free act by which a capacitated person
disposes of his property, rights and declares or complies with
duties to take effect after his death."
o This is a definition from the Americans which is
authoritative as well. 
 o
§ B – The survivorship agreement circumvents the law on legitimes.
It may deprive the compulsory heirs of legitimes.
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CHARACTERISTICS OF A WILL (RECIT – MEMORIZE AND EXPLAIN)
1. Purely Personal
2. Free and Intelligent
3. Solemn and Formal
4. Revocable and Ambulatory
5. Mortis Causa
6. Individual
7. Executed with animus testandi
8. Executed with testamentary capacity
9. Unilateral
10. Dispositive of property
11. Statutory
RE – 1: PURELY PERSONAL – Non-delegability of the disposing power
§ Personal participation of the testator is required.
RE – 2: FREE AND INTELLIGENT – testator’s consent should not be vitiated
§ It means without insanity, violence, intimidation, undue influence,
fraud and mistake
§ The testator must UNDERSTAND what he is doing
RE – 3: SOLEMN AND FORMAL – subject to formalities under the law
§ Depends on whether attested or holographic
§ If the form is defective, it is void. It cannot be cured.
RE – 4: REVOCABLE AND AMBULATORY
§ AMBULATORY – means it is not fixed, or changeable
§ This is because the will only takes effect upon the testator’s death
and no rights vest yet as long as the testator is alive, even if the
will has already been probated ante-mortem.
§ ART. 828 – this characteristic cannot be waived by the testator.
§ Only revocable UPON death. No such thing as an IRREVOCABLE
will.
RE – 5: MORTIS CAUSA – necessary consequence of ART. 774 and ART. 777
RE – 6: INDIVIDUAL – joint wills are prohibited and VOID.
§ JOINT WILL – one document which constitutes the wills of
two/more individuals.
§ PROHIBITED BECAUSE IT IS AGAINST PUBLIC POLICY
1. Limitation on the modes of revocation
2. Diminution of testamentary secrecy
3. Danger of undue influence
4. Danger of one testator killing the other.
RE – 7: EXECUTED WITH ANIMUS TESTANDI – There must be intent to dispose
mortis causa the property of the testator. There must be a REAL INTENT to
make a will or a disposition to take effect upon death.
§ Said intent must appear from the words of the will.
CASE – MONTINOLA V. HERBOSA
§ F – The Republic contended that the phrase "I hereby leave you
(motherland), parents, loved ones... " is a testamentary
disposition in favor of the Republic as an heir.
§ I – Whether Rizal’s “Ultimo Adios” (Valedictory Poem) possessed
the characteristic of animus testandi
§ H – NO. CA ruled that it was not. The phrase is a mere piece of
poetry, there being no animus testandi. The lack of such intent
might be seen from the face of the document itself.
It is only a will in the grammatical sense but not in a
legal sense.
o It was intended to be a literary piece of work.
RE – 8: EXECUTED WITH TESTAMENTARY CAPACITY – See ART. 796 – ART. 803
RE – 9: UNILATERAL – does not involve an exchange of values or depend on
simultaneous offer and acceptance.
§ Only by one person. A will is NOT a contract.
§ Meeting of the minds is NOT required. The heir cannot
ACCEPT/REJECT the disposition until AFTER the testator dies.
§ Successional rights VEST upon the moment of death.
RE – 10: DISPOSITIVE OF PROPERTY – purpose of will making
§ If he does not, it will be useless. If a will does not dispose of
property (such as a document expressing the desire of the
decedent to be cremated) it is a hollow will, it is still a valid will
but only as to its form, not substance.
§ But as far as the law is concerned, it can be probated but a
USELESS EXPENSE. It is only valid to form and nothing else.
EXCEPTIONS
1. When a will recognizes an illegitimate child
2. When a will disinherits a compulsory heir
3. When it appoints an executor
CASE – SEANGIO V. REYES
§ F – Holographic will contains only a clause disinheriting an heir
without express disposition of property. 
 Manila Hotel.
§ I – Whether or not the decedent left a will which would determine
whether testate or intestate proceedings will take place
§ H – The Court held that the document, although it may initially
come across as a mere disinheritance instrument, conforms to
the formalities of a holographic will because an intent to dispose
mortis cause can be clearly deduced from the terms of the
instrument, and while it does not make an affirmative disposition
of the testator’s property, the disinheritance is an act of
disposition in itself. Thus, probate proceedings should take place.
§ RESULT – Disposition of the property of the testator in favor of those
who would succeed in the absence of the disinherited heir.
§ B – Note that the disposition of property is NOT an essential
element of wills. A will is valid even though it does not contain any
testamentary disposition as long as it complies to the essential
requirements of wills, although it is a hollow will. 

RE – 11: STATUTORY – granted only by CIVIL LAW.
§ The law can also take it away. It is not a constitutional right.
§ In Russia, there are no wills, all intestacy.
Art. 784. The MAKING OF A WILL is a strictly personal act; it cannot be left in
whole or in part to the discretion of a third person, or accomplished through
the instrumentality of an agent or attorney. (670a)
BALANE: The making of a will is a purely personal act. It is an exercise of the
disposing power which cannot be delegated. But the physical act of
making a notarial will can be delegated to the secretary but not the
execution or making of holographic wills.
Q – A dictated The Secretary wrote it down and typed. Is the will valid?
§ A – Yes. What cannot be left in whole or in part to a third person
is the exercise of the will making power, the exercise of the
disposing or testamentary power. The mechanical act can be
delegated.
WHAT DOES PURELY PERSONAL MEAN?
1. It means that the will-making is NON-DELEGABLE.
2. It must be done by the TESTATOR HIMSELF.
WHAT CANNOT BE DELEGATED?
1. The essence of a will.
2. The exercise of DISPOSING POWER.
Art. 785. The duration or efficacy of the designation of heirs, devisees or
legatees, or the determination of the portions which they are to take, when
referred to by name, cannot be left to the discretion of a third person. (670a)
WHAT IS THE ESSENCE OR EXERCISE OF DISPOSING POWER, THAT IS NON-
DELEGABLE?
1. The designation of heirs, devisees, or legatees 
 manner that another person has to determine whether or not it is to be
2. The duration or efficacy of such designation (including such
things as conditions, terms, substitutions) 

3. The determination of the portions they are to receive 
 BALANE: This provision clarifies what is meant that "a will is personal." This is in
4. **ART. 787 – The power to decide whether a disposition should
take effect or not
Art. 786. The testator may entrust to a third person the distribution of specific
property or sums of money that he may leave in general to specified classes
or causes, and also the designation of the persons, institutions or
establishments to which such property or sums are to be given or
applied. (671a)
RULE – The making of a will is a strictly personal act à ART. 785
1. CANNOT DELEGATE THE DESIGNATION OF THE AMOUNT OF
PROPERTY – I hereby set aside the sum _____ which my executor
may determine for the cause of mental health. The amount is not
specified.
2. CANNOT DELEGATE THE DETERMINATION OF CAUSES OR CLASSES
TO WHICH A CERTAIN AMOUNT IS TO BE GIVEN – I hereby set aside
P1M for such worthy causes as you may determine. This is not
valid because the cause is not specific.
NOTE – The PRE-CONDITION – testator must specify before the delegation
1. The AMOUNT of the property
2. The CLASS OR CAUSE to be benefitted.
EXCEPTION – The testator may entrust to a third person the following
1. the MANNER OF DISTRIBUTION OR PROPERTY – I hereby set aside
the sum of P1M for the development of AIDS research. M will
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choose which institution. This is allowed because you have
guided already M's decision. However, M cannot designate
2. the DESIGNATION OF WHO ARE TO RECEIVE it within the class or
cause WHICH ARE DELEGABLE – I designate the following hospitals
to get the share in my estate and appoint M to apportion the
amount of P10M. I set aside P250,000 for the following institutions:
UP, PGH, SR, in an amount as my executor may determine.
NOTE
§ The third person can choose WHO to give (as long as it
corresponds to the class or cause) and HOW MUCH each of them
should receive (as long this corresponds to how much the
testator chooses to give)
§ BALANE: The exceptions here are part of the essence of the will-
making power of the testator, they are allowed to be delegated
only because the law says so.
SUMMARY TABLE
NON-DELEGABLE DELEGABLE
Must be by testator himself May be made by a third person
1. Property or amount of money 1. Manner or distribution
to be given (proportional to the total
2. Class or cause to be benefitted. amount)
2. Designation of persons within
such previously mentioned
class or cause (recipients)
Q – What if the testator specified the recipients (by specific designation) but
left the third person the determination of the sharing (proportion of how
much each receives), is this allowed?
§ A – No, under Art. 786, the recipients must not be specifically
designated by the testator. Art. 786 only applies where the
testator merely specifies the class or cause but not the specific
recipients.
§ This is the case even though this actually involves a lesser
discretion for the third person than the instances allowed by Art.
786. Since in Art. 786, the testator is allowed to delegate WHO to
give and HOW MUCH each person should receive. In the
mentioned scenario, the testator chooses WHO to give but
delegates merely HOW MUCH each of them shall receive.
§ BALANE: This should be allowed since it involves a lesser
discretion. 

Q – What if the third person to whom the powers in Art. 786 is delegated to
refuses to do his duty? 

§ A – Court will compel him to do so. If the third person dies, court
should appoint a substitute in order to carry out the wishes of the
testator.
Art. 787. The testator may not make a testamentary disposition in such
operative. (n)
effect delegating the discretion to the disposition of the will.
§ This article prohibits the delegation to a third person the power to
decide whether a disposition should take effect or not.
§ This is because in effect, the third person becomes the testator.
§ This is ENTIRELY DIFFERENT from the acceptance or renunciation
by the heir as beneficiary. The heir has the freedom to accept or
renounce the testamentary benefit.
ARTICLES 788 – 792 – INTERPRETATION OF WILLS OR RULES OF CONSTRUCTION LATENT AS TO PROPERTY – There is PATENT AS TO PROPERTY – It is clear
an ambiguity as to WHAT property to who it will go to, but the WHAT is
BALANE: The principles in construction and interpretation of wills are based should go to who. ambiguous.
on the principle that the intent of the testator is supreme.
EXAMPLE – I will give him my EXAMPLE – I will give to Jose some
SUMMARY cellphone, and you have many of my cars.
1. ART. 790 – Meaning of words cellphones.
a. Ordinary words, ordinary sense In neither case does there appear In this case the ambiguity is
b. Technical words, technical sense to be ambiguity on the face of the evident from a reading of the
2. ART. 791 – Interpretation of words will. The ambiguity here is latent. testamentary provisions
a. Give effect to the whole, rather than ones that will themselves.
render expressions inoperative IN EITHER CASE, the AMIGUITY of a will is NOT a ground to avoid it. It must
b. If there are two modes of interpreting – the one that be CLEARED UP and NOT STRICKEN DOWN. Testacyis preferred to
prevents intestacy shall be preferred. intestacy. We must give effect to the testamentary disposition
3. ART. 792 – Invalidity of dispositions HOW TO DEAL WITH AMBIGUITIES?
a. It does not affect the validity of other dispositions 1. Determine the intention of the testator

b. Unless it is to be presumed that testator would not § Ambiguity–as far as possible – should be resolved in order 
to
have made such other dispositions if the invalid give effect to the testamentary disposition. 

dispositions were not made. 2. Method of resolving – Any evidence admissible and relevant shall be
admitted, as long as it is according to the ROC.
Art. 788. If a testamentary disposition admits of different interpretations, in
§ EXCEPT: DEAD MAN’S STATUTE – ORAL DECLARATIONS OF THE
case of doubt, that interpretation by which the disposition is to be operative 
TESTATOR AS TO HIS INTENTION – Why not?
shall be preferred. (n)
o They cannot be questioned by the deceased
o They are easy to fabricate
BALANE: Art. 788 is the rule on interpretation in order that the will may be
§ Intrinsic and Extrinsic evidence may be used
valid and not perish.
§ As well as written declarations of the testator
§ RATIONALE: The State prefers testate to intestate.
§ Why? Testamentary is preferred to intestacy.
SOLUTION –
o Testamentary disposition is the express will of the
1. If in spite of evidence you still cannot cure ambiguity, then annul
decedent.
the will.
o Intestamentary is the presumed will of the decedent.
2. If the ambiguity is patent, disregard the will.
This is mere speculation on what the decedent
3. If the ambiguity is latent, look into the evidences allowed by law.
wanted. It is merely implied.
Art. 790 – GENERAL MEANING
UT RES MAGES VALET QUAM PEREAT – that the thing be valid than perish
The words of a will are to be taken in their ordinary and grammatical sense,
§ Construction in favor of validity and not nullity
unless a clear intention to use them in another sense can be gathered, and
that other can be ascertained.
EXAMPLE – The word "chick" can have 2 interpretations:
1. A girl in which case inoperative because it is not within the
Technical words in a will are to be taken in their technical sense, unless the
commerce of man
context clearly indicates a contrary intention, or unless it satisfactorily
2. Sisiw – operative. Interpret according to the second.
appears that he was unacquainted with such technical sense. (675a)
BALANE: Give effect, as much as possible, to the testator's intention, don't
Art. 791 – PREFERENCE TO TESTACY
be too technical.
The words of a will are to receive an interpretation which will give to every
expression some effect, rather than one which will render any of the
Art. 789. AMBIGUITY – capable of more than one meaning.
expressions inoperative; and of two modes of interpreting a will, that is to be
1. LATENT AMBIGUITY – When there is an imperfect description, or
preferred which will prevent intestacy. (n)
when no person or property exactly answers the description,
a. mistakes and omissions must be corrected,
NOTE – Because testacy gives the express will of the testator, we must apply
b. if the error appears from the context of the will or from
INTEGRAL INTERPRETATION.
extrinsic evidence,
c. excluding the oral declarations of the testator as to his
Art. 792 – SEVERABILITY OR SEPARABILITY PRINCIPLE
intention; and
The invalidity of one of several dispositions contained in a will does not result
in the invalidity of the other dispositions, unless it is to be presumed that the
2. PATENT AMBIGUITY – when an uncertainty arises upon the face of
testator would not have made such other dispositions if the first invalid
the will,
disposition had not been made. (n)
a. as to the application of any of its provisions,
b. the testator's intention is to be ascertained from the
BALANE:
words of the will,
§ GENERAL RULE: Severability. A flaw does not affect the other
c. taking into consideration the circumstances under
provisions.
which it was made,
§ EXCEPTION: If it was meant that they were to be operative
d. excluding such oral declarations. (n)
together as seen in the will.
LATENT PATENT
Art. 793 – PROPERTY ACQUIRED AFTER THE WILL WAS MADE
Latere – to be hidden Patere – to be open, obvious, Property acquired after the making of a will shall only pass thereby, as if the
§ It is not obvious/ it is hidden. 
 evident testator had possessed it at the time of making the will, should it expressly
§ When there is an imperfect § It is obvious on the face of the
appear by the will that such was his intention. (n)
description, or when n person or will 

property exactly answers for § This is when the uncertainty BOOK
the description. 
 arises upon the face of the will § Article is problematic because it makes the will speak as of THE
as to the application of any of TIME IT IS MADE, rather than at the time of the decedent’s death
its provisions. 
 (which is more logical because that is when the will takes effect
LATENT AS TO PERSONS – There is PATENT AS TO PERSONS – It is not Art. 777)
an ambiguity as to WHOM the clear as to WHO the property § Obviously, the effects of a will operate only AT THE TIME OF DEATH,
property should go to should go To because you don’t make a will to take effect NOW.
§ EXAMPLE: X executes a will in 1980 with a provision “I leave to A
EXAMPLE – “I institute to 1/4 of my EXAMPLE – I will give this to my first 1/4 of my estate.” When he made the will, his estate was worth
estate my first cousin Jose” (but cousins P100,000. At the time of his death in 1990, X’s estate was worth
the testator has several first P500,000. Per Art. 793, A is entitled only to P25,000
cousins named Jose) § Art. 793 therefore departs from the codal philosophy of Art. 774
and 776 and constitutes an exception to the concept of

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 succession as linked to death and rendered legally effective by RULE – The validity of a will depends on the law in force at the time it was
death. executed, not the time when the testator dies.
§ EXCEPTION – When a subsequent law provides for retroactivity
‣
BALANE – This is a new provision. It is better if this was not placed here. Why? o EXCEPTION TO EXCEPTION – When the testator dies
Because property acquired after the making of the will – will not pass unless before such subsequent law’s effectivity (Art. 777)
there is a clear intention or express provisions that the property will be
passed by the testator.
§ EXAMPLE – I give as legacy to M my cars. I only had 2 cars when
I executed the will. After which I acquired 15 more cars. When I
die, how many cars will she get? Following Art. 793, she will get
only 2 cars. The additional cars are not included.
§ GENERAL RULE: After acquired property shall not pass.
§ EXCEPTION: If the will provides otherwise. If he said "all my cars
when I die, " then M gets all 17 cars.
§ COMMENT: This is crazy. Art. 793 is inconsistent witArt. 777. At the
time of the death, the succession will open. As such, all cars
should be given.
§ But the law should be applied as it is. No matter how inconsistent
it is as pointed out by Tolentino. For as lawyers, you should advise
your clients to be clear or clarify everything to avoid this
ambiguity. Tell your clients to specify "as of the time of my death."
§ The solution to this inconsistency bet. the 2 articles is to repeal Art.
793.

Art. 794. Every devise or legacy shall cover all the interest which the testator
could device or bequeath in the property disposed of, unless it clearly
appears from the will that he intended to convey a less interest. (n)

BALANE
§ GENERAL RULE: Legacy or devise will pass exactly the interest of
the testator over the property.
§ EXCEPTION: Unless it appears from the will that he is giving less
(794) or more (929)

EXAMPLE – say you own a parcel of land. Only the ownership of the land
can be given. If the testator is a usufructuary, he can only bequeath his
rights as usufructuary, nothing more, nothing less.
§ CAN YOU GIVE BIGGER? Yes. Art. 929 says so. Only good if the
other co-owner is willing to sell.

Q – B, G and J are co-owners. B gave to A the land they owned in common,

that is the entire land and full ownership over it GIVING MORE THAN WHAT
HE OWNS. Is this allowed?

§ A – Yes. The remedy is to buy the shares of J and G but he cannot
compel them to buy his share, there being no redemption of the
whole land or give to A the value of B's share, if G and J are not
willing to sell their shares.
§ RULE – How will he give more interest than he actually has under
Art. 931? The estate will need to purchase the interest the testator
wishes to give but doesn't own yet when he dies. If the owners of
such interest does not want to sell, the heir gets the monetary
equivalent instead. 

o EXAMPLE – When testator owns a land in co-ownership
with another.

NOTE – The testator may give a lesser interest – I give the usufruct of my land
to X. What results? Usufruct to X, ownership of the land goes by intestacy.

Art. 795. The validity of a will as to its form depends upon the observance of
the law in force at the time it is made. (n)

EXTRINSIC OR INSTRINSIC OR
FORMAL VALIDITY SUBSTANTIVE VALIDTY
Governing For Filipinos and Foreigners: For Filipinos
Law as to § The law in force when the will § The law as of the time
the time was executed (Art. 795) of death (Art. 777,
o BALANE: You don’t 2263)
want the testator to be
a prophet and predict For Foreigners
laws § Depends on their
o Subsequent laws personal law (Art. 16,
cannot apply par. 2, Art. 1039)
retroactively
§ For foreigners, the assumption
is that the will is being
probated here
Governing For Filipinos and Foreigners: For Filipinos
Law as to § Five choices are available to § Philippine law (Art. 16,
the Place the testator (Art. 815-817) par. 2)
1. Law of Citizenship 

2. Law of Domicile 
 For Foreigners
3. Law of Residence 
 § Their national law (Art.
4. Law of Place of Execution 
 16, par. 2, Art. 1039)
5. Philippine Law 

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 SUBSECTION 2. - TESTAMENTARY CAPACITY AND INTENT
ART. 796 – 801 – TESTAMENTARY CAPACITY
ACTIVE PASSIVE
Testamentification activa is the Testamentification pasiva is the
capacity to make a will. capacity to inherit based on a will.
Refers to the requirements for will Refersto the requirement for
making inheriting by a will
Art. 796. All persons who are not expressly prohibited by law may make a
will. (662)
WHO HAS TESTAMENTARY CAPACITY?
§ All natural persons.
Corporations cannot make wills.
§ Only natural human beings can make a will.
Art. 797. Persons of either sex under eighteen years of age cannot make a
will. (n)
BALANE
• Q: How do you compute the age?
o A: According to the Admin. Code, age is reckoned
according to the calendar month.
• A minor cannot make a will, thus, a will made by a minor is void.
Such void will is NOT validated by his coming of age. The minor,
who has become an adult, must make a new will.
• Note that the provisions says “under eighteen years of age
cannot make a will”, this doesn’t necessarily mean he is a minor
because prior to 1989 (where a special law was passed to lower
age of majority), the age of majority was 21, thus, before such
date, some minors (aged 18-21) can execute a will
Art. 798. In order to make a will it is essential that the testator be of sound
mind at the time of its execution. (n)
BALANE – Soundness of mind is determined at the time of the execution of
the will.
WHAT DOES UNSOUND MIND MEAN?
• The code does not say.
• BUT – we can use the definition of sound mind in ART. 799
• NOTE – the law is interested in the LEGAL consequences of the
testator’s mental capacity or incapacity and NOT in the MEDICAL
ASPECTS of the disease.
Art. 799. To be of sound mind, it is not necessary that the testator be in full
possession of all his reasoning faculties, or that his mind be wholly unbroken,
unimpaired, or unshattered by disease, injury or other cause.
It shall be sufficient if the testator was able at the time of making the will to
know the nature of the estate to be disposed of, the proper objects of his
bounty, and the character of the testamentary act. (n)
Art. 800. The law presumes that every person is of sound mind, in the
absence of proof to the contrary.
The BURDEN OF PROOF that
• the testator was not of sound mind at the time of making his
dispositions is on the person who opposes the probate of the will;
• but if the testator, one month, or less, before making his will was
publicly known to be insane, the person who maintains the
validity of the will must prove that the testator made it during a
lucid interval. (n)
Art. 801. Supervening incapacity does not invalidate an effective will, nor is
the will of an incapable validated by the supervening of capacity. (n)
SUMMARY ON THE RULES ON TESTAMENTARY CAPACITY (896 - 801)
§ All natural person, unless disqualified by law have testamentary
capacity. 
 •
o NOTE: Juridical Persons are not given testamentary capacity. 
 in guardianship proceedings, the most that can be
§ Who are Disqualified?
1. Those under 18 years of age. (797) 
 make a will.
2. Those of unsound mind. (798) 

§ What is soundness of mind?
o NOTE: the law presumes that 
everyone is of a sound mind,
unless the contrary is proven (799 & 800).
o NEGATIVELY– It is not necessary that: 
 2.
1. The testator be in full possession of reasoning faculties.
2. The testators mind be wholly unbroken, unimpaired,
unshattered by disease, injury or other cause.
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o POSITIVELY – it is the ability to know three things:
1. NATURE OF THE ESTATE TO BE DISPOSED OF
§ Testator should have a fairly accurate knowledge of
what he owns 

§ Accurate should be used in a relative sense – since
the more one owns the less accurate is one’s
knowledge of what his estate is to be.
§ The more you own the more liberal you interpret the
requirement of the law. 

2. PROPER OBJECTS OF ONE’S BOUNTY
§ The testator should know, under ordinary
circumstances, who his relatives are in the most
proximate degree. 

§ It is fair that the farther the relation knowledge of
who these relatives are decreases.
§ To give the testator a real option on whom to give
3. CHARACTER OF THE TESTAMENTARY ACT.
§ For this requisite to be present it is not required that
the testator know the legal nature of the will. 

§ All that the testator needs to know is/Requisites:
1. He is disposing of Property 

2. He is disposing of it Gratuitously 

3. It shall take effect after his death. 

BALANE – Insanity is relative. It is different in marriage and in contracts. But
in wills, not knowing one or more of the 3 mentioned above, you are
considered insane.
NOTE – As long as the testator, at the time of making the will, passes the 3
tests above, then HE HAS TESTAMENTARY CAPACITY.
• It does not matter if he is medically incapable.

• Just because you are mentally incapable does not mean that
you cannot make a will. As a matter of fact, even if you are
medically or mentally incapable you can still make a will. 

IS THERE A PRESUMPTION OF SANITY OR SOUNDNESS OF MIND?
• YES. The presumes sanity. Hence, you NEED NOT prove that you
are sane.
• REMEMBER – ART. 800 – Law presumes that the person that is
making a will is of sound mind in the absence of proof to the
contrary
• But this is only REBUTTABLE. It may still be overcome by other
evidence.
GENERAL RULE: SANITY IS PRESUMED – Presumption is for soundness of mind –
proponent of will does not have to prove the soundness of mind of the
testator.
• WHY? The law on evidence says that you don't have to prove:
1. that which is admitted;
2. that which is presumed;
3. that which is taken judicial notice of.
• Disputable presumptions may be overcome by proof to the
contrary.
• THERE ARE 3 PRESUMPTIONS OF LAW
1. conclusive
2. quasi-conclusive – can be overcome only by specific
proof
3. disputable
EXCEPTION: Insanity is rebuttable presumed when or INSANITY IS PRESUMED
1. ART. 800 PAR. 2 – One month or less before the making of the will,
the testator was publicly known to be insane.
• EXAMPLE – A, one month before making of the will was
running in the Plaza Miranda naked and shouting
"Ibagsak!" This is what you mean by publicly known.
2. TORRES V. LOPEZ – If there had been a JUDICIAL DECLARATION of
insanity and before such order has been revoked
• As long as thereis COURT ORDER COMMITMENT for
guardianship for insanity à there is a presumption of
insanity.
REASON – When the question of insanity is put in issue
said is that it raises a presumption of incapacity to
NOTE
1. In these 2 cases, it is the proponent's duty to offer evidence to the
contrary
Proponent to prove that the making of the said will was made by
the testator during a lucid interval.
JUDICIAL DECLARATION OF INSANITY CONSISTS OF:
1. A guardian appointed by reason of insanity. (Rule 93, ROC.)
2. If the insane was hospitalized by order of the court

In either of these cases, there is a presumption of insanity. But once the order
is lifted, the presumption ceases.

Q – WHAT IS THE EFFECT?

1. Rebuttable presumption of sanity is nullified or swept away.
2. There is a rebuttable presumption of unsoundness of mind.

WHO PROVES SANITY? ONUS PROBANDI

1. The burden of proof is on the person who alleges that the testator is
of unsound mind à the persons who OPPOSES THE PROBATE of the will
2. The burden of proof is on the one who MAINTAINS THE VALIDITY of the
will if it was public knowledge that the testator was of unsound mind
within one month or less from the time that he made his will.

WHEN DO YOU DETERMINE SANITY OR INSANITY?

§ At the time of making the will
§ Regardless of any supervening case

CASE – ORTEGA VS. VALMONTE

§ F – This is the case where the 80 year old married a 28 year old,
and the 28 year old was made the heir to 1⁄2 of his property. The
relatives of the old man were saying that nauto the old man who
married, and since he was old he was not of sound mind. 

§ H: There are numberless degrees of mental capacity or
incapacity and while on one hand it has been held that mere
weakness of mind, or partial imbecility from disease of body, or
from age, will not render a person incapable of making a will; a
weak or feebleminded person may make a valid will, provided
he has understanding and memory sufficient to enable him to
know what he is about to do and how or to whom he is disposing
of his property. 

o They also said that there was no proof of fraud 

§ To be of sound mind, at the time of making the will, the testator
need only know
1. the nature of the estate to be disposed of,
2. the proper objects of his bounty, and
3. the character of the testamentary act. 


CASE – BALTAZAR VS. LAXA

• F – In this case Laxa was like the adopted son of the testator (78-
year-old spinster), and the testator left to that person a
substantial portion of what she owned. This was contested by the
other relatives since they were saying that the decedent was of
unsound mind since she was forgetful.
• H – Soundness of mind is presumed. Forgetfulness is not
equivalent to unsoundness of mind. there was also no medical
proof that the decedent was indeed insane.

Art. 802. A married woman may make a will without the consent of her
husband, and without the authority of the court. (n)

BALANE – Sexist provisions which is explained by historical context. It contains

an erroneous and unintended suggestion that a married man does not
have the same privilege
• This should read that “A spouse may make a will without the
consent of the other spouse or the courts.” 

• But remember the family code that a spouse may not dispose of
property inter vivos – while living.
• But once its mortis causa, then a spouse may dispose
of the 
property – whether it is separate property or
his/her share in the ACP or CPG. 


Art. 803. A married woman may dispose by will of all her separate property
as well as her share of the conjugal partnership or absolute community
property. (n)

NOTE
• Art. 803 has been SUPERSEDED BY ART. 97 OF THE FAMILY CODE. It
provides that either spouse may dispose by will of his or her
interest in the community property. 

• Note that during the subsistence of the marriage (of the absolute
community or conjugal partnership) the community/ conjugal
properties cannot be disposed of a single spouse without
consent of the other, except token donations and other
exceptions, BUT, the spouses may dispose of their share by will
since the absolute community property or conjugal partnership is
dissolved upon the death of either spouse (Art. 99 and 126 of
Family Code)
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 SUBSECTION 3. - FORMS OF WILLS • BALANE – This kind of will is an oral will made by the testator
in contemplation of death. This is allowed among Muslims
SUMMARY TABLE only.

ATTESTED WILLS HOLOGRAPHIC WILLS RE 2 – LANGUAGE OR DIALECT KNOWN

COMMON REQUISITES – Formal requirements of Wills in General (Art. 804, 818- • LANGUAGE – anything that may be written. Ilocano is a language.
819): It has grammar, it has literature. It need not be a national language.
1. Must be in writing 
 • REQUISITES
2. Must executed in a language or dialect known to the testator 
 1. Spoken by a substantial number of person
3. Must not be a joint will 
 2. Must have been reduced into writing
FORMAL REQUIREMENTS OF ATTESTED FORMAL REQUIREMENTS OF 3. Fairly substantive body of literature
WILLS (ART. 805-808) HOLOGRAPHIC WILLS • DIALECT – does not have a written form, no literature. It is a variation
(Art. 805-808, 810-814) of tongue.
1. Subscribed by the testator or his
agent in his presence and by his 1. Must be completely handwritten
Q – How will you know whether the will is in a language known to the
express direction at the end by the testator 

testator? Does the will need to state this fact?
thereof, in the presence of the 2. Must be dated by the testator 

witnesses 
 • A – NO, it is not required to be stated, extrinsic evidence or
3. Must be signed by the testator
2. Attested and subscribed by at 4. Necessity of witnesses who knows
testimonialmay be presented.
least three credible witnesses in the handwriting and signature of
the presence of the testator and the testator or expert testimony 
 Q – Is direct evidence always necessary to prove that the testator knew the
of one another 
 5. Additional dispositions must each language?
3. The testator, or his agent, must be dated and signed 
 • A – NO. sometimes, CIRCUMSTANCIAL EVIDENCE is sufficient.
sign every page, except the last, 6. If each additional disposition is • EXAMPLE – A person with a college degree does a will in English.
on the left margin in the presence signed but undated, the last It is not enough that he studied three levels to prove that he
of the witnesses 
 disposition must be signed and understands English.
4. The witnesses must sign every dated. 

page, except the last, on the left 7. In case of any insertion, PRESUMPTION OF COMPLIANCE – It may sometimes be presumed that the
margin in the presence of the cancellation, erasure or testator knew the language in which the will was written.
testator and of one another 
 alteration in a holographic will, • BALANE – Generally there is no presumption, because it is
5. All pages numbered correlatively the testator must authenticate dangerous, only in exceptional cases such as in Abangan, which
in letters on the upper part of the same by his full signature. 

was not really a presumption but rather compliance was proved
each page 

by the facts in that case
6. Attestation clause, stating
a. The number of pages of the
will CASE – SUROZA V. HONRADO
b. The fact that the testator or • F –Administrative action against a judge who admitted a will
his agent under his express where it was written in English – a language she did not
direction signed the will and understand and thumb marked, but admits in the latter
every page thereof, in the paragraphs that it was translated in Filipino for the benefit of the
presence of the witnesses 
 testator and admits that the testator was illiterate.
c. The fact that the witnesses • IMPORTANT FACT – In the opening paragraph of the will, it was
witnessed and signed the will stated that English was a language ‘understood and known’ to
and every page thereof in the testatrix. But in its concluding paragraph, it was stated that
the presence of the testator the will was read to the testator and was translated into Filipino
and one another, 
 language. 

7. Acknowledgment before a
• H – That could only mean that the will was written in a language
notary public 

not known to the illiterate testator and is therefore VOID because
8. For testator who is a literate deaf-
of the MANDATORY provision of ART. 804
mute, he must read the will
personally 
 • B – The issue here is whether the will, which was written in English
9. For testator who is an illiterate is valid. The SC ruled that it is not. The testatrix does not know
deaf-mute, he must designate English, being an Igorot and an illiterate. Obviously, the will is void,
two persons to read the will and because of non-compliance with Art. 804. In a will, can you
communicate to him, in some conclude that it is void where in the attestation clause, it was
practicable manner, its contents. stated that the will was read and translated to Filipino? The law
10. For blind testators, will does not require translation nor interpretation of the language to
must be read to him twice, once the testator but that he himself personally understands the said
by one of the subscribing language.
witnesses, and another by the
notary 
 CASE – ABANGAN V. ABANGAN
• F – Records do not show that the will, executed in Cebu and
Art. 804. Every will must be in writing and executed in a language or dialect written in the dialect of that locality where the testatrix is
known to the testator. (n) neighbor, was in a language known to the testatrix. 

• H – That there is no need to prove that the testator knew and
BALANE: ART. 804 lays down the common requirements that apply to both understood cebuano. Even if the records do not show that the
kinds of wills. These requirements are MANDATORY, failure to comply with testator knew the dialect in which the will is written, but the
these two requirements renders the will VOID. circumstance appearing in the will itself show that same was
executed in Cebu and in the dialect of this locality where the
LOPEZ V. LIBORO – The will itself need not state that the language is known testatator was from, is enough, in the absence of any proof to the
to the testator. Compliance with the language requirement may be shown contrary, to presume that she knew this dialect in which this will is
by EXTRINSIC evidence. written 

• Thus, there is a presumption that the testator knew the language
BALANE – The testator need not know the language of the ATTESTATION or dialect in which the will is written, and this need NOT be
CLAUSE (for Attested Wills), since the attestation clause is the affair of the attested to in the will.
witnesses only. • IN ORDER FOR THE PRESUMPTIONS TO APPLY, THE FOLLOWING MUST
APPEAR:
COMMON REQUISITES 1. The will must be in a language or dialect generally
1. Every will must be in writing and spoken in the place of execution; and 

2. Executed in a LANGUAGE or DIALECT known to the testator 2. The testator must be a native or resident of said
locality. 

RE – IN WRITING
• B – Properly speaking, compliance with the language
• There is no specific form required. It could be in a marble glass, so
requirement is not then presumed but proved by these attendant
long as there is testamentary capacity. Anywhere written, by a
circumstances.
typewriter, in a pad paper, tissue paper or even in a wall.
• Oral or nuncupative wills are NOT allowed.
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 ARTICLES 805 TO 809 – SPECIAL REQUIREMENTS FOR ATTESTED WILLS. RE 1 – SUBSCRIBED BY TESTATOR OR HIS AGENT (at the end thereof)

Art. 805. Every will, other than a holographic will, must be subscribed at the BY THE TESTATOR
end thereof by the testator himself or by the testator's name written by some
other person in his presence, and by his express direction, and attested and REQUISITES FOR SUBSRIPTION / SIGNING BY THE TESTATOR
subscribed by three or more credible witnesses in the presence of the 1. In his presence
testator and of one another. 2. By his express direction
3. In the presence of the witnesses
The testator or the person requested by him to write his name and the
instrumental witnesses of the will, shall also sign, as aforesaid, each and PURPOSE OF THE RULES – To authenticate the will.
every page thereof, except the last, on the left margin, and all the pages
shall be numbered correlatively in letters placed on the upper part of each SUBSCRIBE SIGN
page. Denotes writing To simply place a distinguishing
mark.
The attestation shall state the number of pages used upon which the will is To write under A person may sign in other ways.
written, and the fact that the testator signed the will and every page
thereof, or caused some other person to write his name, under his express NOTE – Signing is BROADER than subscribing.
direction, in the presence of the instrumental witnesses, and that the latter • Not every signature is a subscription
witnessed and signed the will and all the pages thereof in the presence of • Not every distinguishing mark is a writing
the testator and of one another.
THE LAW SHOULD NOT BE LIMITED TO SUBSCRIBING. WE INCLUDE SIGNING.
If the attestation clause is in a language not known to the witnesses, it shall 1. This accommodates signing by thumbmark,
be interpreted to them. (n) 2. A thumbmark is NOT a subscription but is VALID signing.
3. PAYAD V. TOLENTINO, MATIAS V. SALUD – The testator’s
Art. 806. Every will must be acknowledged before a notary public by the thumbprint is ALWAYS valid and sufficient SIGNATURE
testator and the witnesses. The notary public shall not be required to retain 4. DE GALA V. GONZALES – The validity of thumbmarks is NOT limited
a copy of the will, or file another with the Office of the Clerk of Court. (n) to ONLY cases of illness or infirmity.

SPECIAL REQUIREMENTS FOR ATTESTED/NOTARIAL WILLS CASE – PAYAD VS. TOLENTINO

1. Subscribed by the testator or his agent in his presence and by his • F – Leonia Tolentino was assisted by Atty. Almario in placing her
express direction at the end thereof, in the presence of the witnesses thumbmark on each and every page of the will and that said
2. Attested and subscribed by at least three credible witnesses in the attorney merely wrote the testator’s name to indicate the place
presence of the testator and of one another 
 where the testator placed said mark.
3. The testator, or his agent, must sign every page, except the last, on • H – The SC held that the attorney did not sign for the testator. This
the left margin in the presence of the witnesses 
 is valid because the testator signed by placing her thumbmark.
4. The witnesses must sign every page, except the last, on the left margin • A statute requiring a will to be “signed” is satisfied if the signature
in the presence of the testator and of one another 
 is made by the testator’s mark. 
Hence, it was not necessary that
5. All pages numbered correlatively in letters on the upper part of each the testator requested the attorney to sign for his name,
page 
 inasmuch as the testator himself already signed the will, in
6. ATTESTATION CLAUSE, stating accordance with law. Admitted to probate.
a. The number of pages of the will 
 • RECIT Q – What was the ground for the denial of probate by the
b. The fact that the testator or his agent under his express lower court? Defective attestation clause because it was not in
direction signed the will and every page thereof, in the conformity with the requirement of law in that it is not stated that
presence of the witnesses 
 the testator cause the Attorney to write her name at her express
c. The fact that the witnesses witnessed and signed the will and direction. thumbark is always a proper way fo
every page thereof in the presence of the testator and one signing (no need to be sick or ailing)
another, 
 CASE – MATIAS VS. SALUD
7. Acknowledgment before a notary public. 
 • F – The testatrix placed her thumb mark in lieu of her usual
signature on the will. Beside the thumb mark was the name of the
PURPOSE OF REQUISITES – Judgment call of Code Commission – Balancing testatrix as purportedly written by one of the witnesses. The
of 2 policies attestation clause, however, does not indicate that the person
1. to encourage a person to make a will; who wrote the name of the testatrix thereon was directed by the
2. to make sure that the will is testament of the testator to minimize latter to do so. 

fraud. • H – The legal requisite that the will should be signed by the
testator is satisfied by the thumbprint or other mark affixed by him.
ALSO NOTE – In effect, BOTH the testator and the witnesses, NEED NOT KNOW If such mark is affixed by the decedent, it is unnecessary to state
the language of the attestation clause. in the attestation clause that another person wrote the testator’s
name at his request. The absence of which is not fatal defect.
BALANE GUIDELINES FOR THE FOURTH PARAGRAPH – Know the Language Admitted to probate.
1. Body of the Will – Testator must know • AS TO CLARITY OF THE RIDGE IMPRESSION – it is dependent on
2. Attestation Clause aleatory circumstances – consistency of the ink, over inking,
a. Testator – Need not know slipping of the finger. Where a testator employs an unfamiliar way
b. Witnesses – Need not know. Only requirement is to know the of signing and that both the attestation clause and the will are
contents thereof. It shall be interpreted to them. silent on the matter, such silence is a factor to be considered
against the authenticity of the testament. However, the failure to
DISCREPANCIES describe the signature itself alone is not sufficient to refuse
1. PAR. 1. – No mention that the testator signs in the presence of probate when evidence fully satisfied that the will was executed
witnesses and yet par. 3 states this.
 and witnessed in accordance with law.
2. PAR. 2. – No statement that the testator and the witnesses must sign • RECIT Q – What was the ground for the denial of probate by the
every page in one another's presence and yet that is required to be lower court? Defective attestation clause because it was not in
stated in the attestation clause. conformity with the requirement of law in that it is not stated that
3. PAR. 3. – In case of agent, all it requires is that the agent signed by his the testator cause the agent to write her name at her express
direction and not in his presence, but that is required in par. 1. direction.
• B – The testator signed affixing her thumb mark on the will, this is
Q – Must an attested will be dated? because she can no longer write due to sickness/ disease called
• NO need. NO requirement that an attested will should be dated, herpes zoster, cold, physical infirmity. Is this a sufficient signature?
unlike a holographic will which must be. • Yes. A thumb mark is a sufficient signature of the
• Consequently, a variance between the indicated dates of testator. In fact, it is always and under any and all
execution and acknowledgement does not in itself invalidate the circumstances a valid way to sign a will.
will • REASON: It is less possible to forge. A thumb mark is
always a valid way of signing whether literate or
THE CERTIFICATION OF ACKNOWLEDGMENT
ALREADY HAS A DATE ; SO NO NEED FOR
ATTESTED WILL TO BE DATED. JDLYRREVERRE | B2020 | SUCCESSION | ATTY. BALANE | CHAMP NOTES ANNOTATED | 14
 illiterate. However, there is also the danger of falsifying
it by affixing the thumb of a newly dead person.
Q – What if the testator has NO DISEASE but signed in his thumb mark?
• A – This will do because a thumbmark is a sufficient signature
UNDER ALL circumstances. While in most of these cases, the
testator was suffering from some infirmity which made the writing
of the testator’s name difficult or impossible, there seems to be
no basis for limiting the validity of thumbprints only to cases of
illness or infirmity.
BALANE – The controversy is that what if after the testator affixed his thumb
mark, another person signed on her behalf. Attestation clause does not
state this – it would not appear in the attestation clause. The SC said that
the person signing on his behalf is not an agent and besides it was already
signed by the testator affixing his thumb mark and to state this (the affixing
of the thumb mark) in the attestation is a mere surplusage.
Q – Is a cross considered a signature like a thumbmark?
• GARCIA V. LACUESTA – NO. It is unreliable.
• RULE – A sign of the cross, therefore, placed by the testator does
not comply with the statutory requirement of signature
• EXCEPTION – it is the testator’s usual manner of signature or one
of his usual styles of signing 
(normal way of writing)
CASE – GARCIA V. LACUESTA
• F – Lawyer wrote the name of the testator followed by “a ruego
del testator” then the lawyer’s name on the testator’s will. Beside
his name, the testator wrote an X. Attestation clause did not state
that the lawyer was expressly directed to write testator’s name. 

• H – It is not here pretended that the cross appearing on the will is
the usual signature of the testator or even one of the ways by
which he signed his name. The Court is not prepared to liken the
mere sign of a cross to a thumbmark, and the reason is obvious.
The cross cannot and does not have the trustworthiness of a
thumb mark.
• B – A cross is easy to falsify. Unless ofcourse, your usual signature
is a cross.
BY THE AGENT
REQUISITES FOR SIGNING BY THE AGENT
1. He must sign in testator’s presence
2. By his express direction
NOTE – The agent must sign where the testator’s signature should be.
PURPOSE OF THE RULES – To test the authenticity of the agency. It is an added
safeguard to minimize fraud.
WHAT MUST THE AGENT RIGHT? Agent doesnt need to write his own name.
1. Agent need to write ONLY THE TESTATOR’S NAME. (in must be in
his – agent’s handwriting – by hand)
2. That is all that is required for VALIDITY.
3. He need not write his OWN NAME or both their names.
FOUR CASES: Testator- A and Agent- B
a. "B" is not valid
b. "A" handwritten "by B" typewritten is valid
c. "A" typewritten "by B" handwritten is not valid.
d. "A" is valid
CASE – BARUT V. CABACUNGAN
• F – The agent (who was also a witness) – SEVERO AGAYAN –
signed the name of the testator in the latter's presence and by
his express direction. Probate was opposed on the ground that
the handwriting of the person who signed the name of the
testator was of another witness.
• H – Valid. It is not essential that the person signing for the testator
also sign his name. It is immaterial as to who writes the name of
the testator, PROVIDED that –
1. name was written at T’s express direction;
2. in T’s presence; and
3. in the presence of all witnesses. 
 condition and position with relation to each other at the moment
• It is unimportant whether the person who writes the name of the
testator signs his own or not. It may be wise and practical that the
one who signs the testator’s name also sign his own, but that is
not essential to the validity of the will. BUT, if the third person
signed his OWN NAME rather than the testator’s name, the will is
VOID. The law requires only three witnesses, not four. The main
thing to be establish in the execution of the will is the signature of
the testator.
JDLYRREVERRE | B2020 | SUCCESSION | ATTY. BALANE | CHAMP NOTES ANNOTATED | 15
• B – REQUIREMENTS
a. agent must write the name of the testator by hand;
b. advisable if the agent write his name also.
CASE – BALONAN V. ABELLANA
• F – The witness signed his name above the typewritten words "por
la testadora Anacleta Abellana."
• H – The SC held that the testator's name be written by the agent
signing in his stead in the place where he would have signed if
he were able to do so. It is required that the witness write the
testator's name in the testator's presence and under her express
direction.
CAN THE AGENT OF THE TESTATOR BE ALSO ONE OF THE WITNESSES?
• If there are more than 3 witnesses – Certainly
• If there are exactly three – Uncertain. – Art. 805 implies that the
agent and witness is distinct since the agent is required to sign in
the presence of at least three witness 

WHERE SHOULD THE TESTATOR SIGN? At the end of the will.
WHERE IS THE END OF THE WILL?
1. If the will is ONLY dispositive portions à then simply sign at the
end.
2. If the will contains BOTH dispositive and non-dispositive portion à
then either sign at the
a. PHYSICAL END – where the writing stops
b. LOGICAL END – where the last disposition ends.
3. Either will do.
AZUELA V. CA – Signing at the logical end is permissible also since the non-
dispositive portions are not essential parts of the will
BALANE – Usually, they are the same. But if different, then either will do. What
if after the signature, some clauses follow? What is the effect of the said
clauses to the will?
1. It invalidates the ENTIRE attested will.
2. It annuls or makes the whole void because of the non-
compliance with Art. 805.
3. Signing must be at the end.
WHAT IS THE MEANING OF “TESTATOR MUST SIGN IN THE PRESENCE OF
WITNESS”?
• NERA V. RIMADO – Actual seeing by the witnesses NOT REQUIRED,
only the ability to see each other (the testator and the witnesses)
by merely casting their eyes or pivoting his body in the proper
direction is need.
• BALANE – There must be no barrier to his line of sight. His line of
vision must not be impeded by a wall or curtain. This is a question
of fact for the lower court to determine. Blind witnesses are
therefore disqualified.
FOUR CASES – Testator – A; Witnesses – B, C, D
a. A signs with B breathing on her face. Is it signing in the presence
of the testator? YES – actual seeing.
b. A signs while B is talking to C. B can see A through peripheral
vision. Is A signing in B' s presence? YES – merely casting his eyes
c. A signs while B is talking to C with B's back to A. Is it signing in B's
presence? YES – pivoting his body in the proper direction.
d. B goes out and stands behind the wall. He cannot see A. B is also
talking to F. Is A signing in B’s presence? NO – there is a barrier to
his line of sight.
CASE – NERA V. RIMANDO
• F – When a certain will was being signed, it was alleged that the
testator and some subscribing witnesses were in the inner room
while the other subscribing witnesses were in the outer room.
What separates the inner room from the outer room was a
curtain.
• H – The true test of presence of the testator and the witnesses in
the execution of a will is not whether they actually saw each
other sign, but whether they might have seen each other sign,
had they chosen to do so, considering their mental and physical
of inscription of each signature.
• The position of the parties with relation to each other at the
moment of the subscription of each signature, must be such that
they may see each other sign if they choose to do so.
• It is sufficient that a witness was actually and physically present
and in such position that he could see everything that tool place
by merely casting his eyes in the proper direction and without
any physical obstruction to pevent his doing so. It does not
 depend on proof that their eyes were actually cast upon the ABANGAN V. ABANGAN – If the entire document consists of only two sheets,
document at the moment of subscription by each of them. the first containing the will and the second, the attestation clause, there
Admitted to probate. need not be any marginal signatures at all.

RE 2 – ATTESTED AND SUBSCRIBED BY WITNESSES CASE – ICASIANO V. ICASIANO

• F – In this case, one of the witnesses, signed every page of the will
ATTESTED AND SUBSCRIBED BY AT LEAST THREE CREDIBLE WITNESSES appropriately, but, through oversight and mistake, neglected to
sign one page (page 3 of the original). This was due to the fact
WHAT MUST THE WITNESSES DO? Attest and Subscribe. that he may have lifted two pages instead of one when he
signed the same but he admitted that page 3 was signed in his
ATTEST SUBSCRIBE presence. Evidence was shown that the every page of the
The act of witnessing The act of signing their names in carbon copy of the will was signed by him, to assure that there
the proper places of the will. was no fraud
The act of the sense The act of the hand • H – Not a fatal defect. The inadvertent failure of one witness to
Mental Mechanical affix his signature to one of the pages due to the simultaneous
To know that it was published as To subscribe a paper published as lifting of 2 pages in the course of signing, is not per se sufficient to
such, and to certify the facts a will is only to write on the same justify denial of probate. The impossibility of substitution of this
required to constitute an actual paper the names of the witnesses, page is assured not only of the fact that the testator and two
and legal publication 
 for the purpose of identification 
 other witnesses did sign the questioned page but also by its
Render available proof during the PURPOSE – For identification bearing coincident imprint of the seal of notary.
probate of the will that such will had • The law should not be strictly or literally interpreted when the
been executed in accordance with purpose of the law is to guarantee the identity of the testament
the formalities prescribed by law. and its pages is sufficiently attained. No intentional or deliberate
Both must be done. deviation existed. Otherwise, the witnesses may sabotage the will
by muddling or bungling it or the attestation clause.
CAN WITNESSES SIGN WITH THUMB MARK? Debatable. • It was pure oversight and satisfies the requirements in order to
1. LIBERAL – Some say yes because it is only an act of authentication guard against fraud and bad faith, without undue or
2. STRICT – Some say no because one requirement is that witnesses must unnecessary curtailment of the testamentary privilege.
know how to read and write which implies that the witness write his • B – This ruling should not be interpreted that witnesses may
name. dispense with signing each and every page of the will. Icasiano
is not recommended.
WHERE MUST THE WITNESSES SIGN? • UNUSUAL CIRCUMSTANCES WHICH EXISTED IN THE CASE
• BALANE – This is not clear. 1. there was another copy
• Is the witness required to sign at the end of the will? Ideally, yes, 2. inadvertence/ oversight
but if he signs at the left-margin of the last page, it is substantial 3. because of the notarial seal.
compliance • The presence of these facts led the SC to allow the will.
The
general rule, however, is that, the failure to sign any page is
CASE – TABOADA V. ROSAL a fatal defect.
• F – In this case, the witnesses signed at the left-hand margin.
Petitioner contended that they should have singed at the same RE 4 – SIGNATURE ON EVERY PAGE BY WITNESSES (MARGINAL SIGNATURES)
place where the testator signed, that is, at the bottom of the end
of the will. WHERE MUST WITNESSES SIGN?
• H – The SC was liberal. The purpose of signing at the end is to • At each and every page thereof, on the left margin
prevent interpolation. The object of attestation and subscription • EXCEPT THE LAST PAGE à because it already contains the
which is for identification, was met when the witnesses signed at testator’s signature.
the left-hand margin of the sole page which contained all the • In the presence of the testator and of one another.
testamentary dispositions. The will was signed by the witnesses at
each and every page thereof. IS THERE AN ORDER FOR SIGNING?
• NOTE – This concerned a 2-page will with the first page 1. It is immaterial where the signing is done in a single transaction
containing all the dispositions and the second page the 2. It is material when the signing is done in several transactions à in
attestation and acknowledgement which case, the testator must affix his signature ahead of the
• B – The implication in Taboada is that, literally and ideally, the witnesses.
witnesses should sign at the end of the will, though failure in this 3. NOTE – If the ACKNOWLEDGEMENT is done by the testator and the
regard may be overlooked. 
 witnesses SEPARATELY, all of them must retain their respective
• Literal requirement – witnesses must also sign at the capacities until the last one has acknowledged.
end/ last page
• In the case – as long as signed in the margin, OK
 RECIT
• Now – under or on margin, OK. • Q – Can the testator sign first not in the witness' presence, then let
the witnesses sign? No. Art. 805 requires that the testator should
SIGNING IN THE PRESENCE OF THE TESTATOR AND OF ONE ANOTHER sign at their presence (Vda. de Ramos case.) There is some
inconsistency here but we have to follow Art. 805.
NOTE – NERA DOCTRINE also applies in this case – ability to see is sufficient. • Q – Can the validity be affected if the witness signed ahead of
the testator?
A: No. Provided it is made in one occasion or
RE 3 – SIGNATURE ON EVERY PAGE BY TESTATOR OR AGENT (MARGINAL transaction. However, in strict theory, it cannot be done because
SIGNATURES) before the testator signed there is no will at all which the
witnesses can sign and attest to. If there is more than one
PURPOSE – to prevent the disappearance of the pages. transaction, then the testator must always sign ahead of the
witnesses.
WHERE MUST THE TESTATOR OR HIS AGENT SIGN?
• At each and every page thereof, on the left margin RE 5 – NUMBERED PAGES – PAGINATION
• EXCEPT THE LAST PAGE à because it already contains the
testator’s signature. HOW ABOUT PAGINATION?
• In the presence of the witnesses • All pages must be numbered correlatively in letters, in the upper
part of each page.
WHAT IS MANDATORY AN WHAT IS MERELY DIRECTORY IN SIGNING?
PURPOSE – to prevent insertion or removal of pages
MANDATORY DIRECTORY
Signing on every page Places of signing (margins) – it can
In the presence of witnesses be anywhere.

In the 1950’s, typewriters had only

left margins.
JDLYRREVERRE | B2020 | SUCCESSION | ATTY. BALANE | CHAMP NOTES ANNOTATED | 16
 MANDATORY DIRECTORY ATTESTATION ACKNOWLEDGMENT
There must be a method by which Pagination in letter (manner of Done by a witness Done by the party concerned, in
the sequence of the pages can numbering) this case, the testator.
be known
Pagination by means of Pagination on the upper part of NOTE – The notary public DO NOT ACKNOWLEDGE a will. It is the TESTATOR
CONVENTIONAL system each page. that acknowledges the will as his own making. The notary public
ADMINISTERS the oath.
EXAMPLE – Roman numeral,
Arabic, greek, letters or words) Q – What if the attestation is in a separate document?
• A – VILLAFLOR V. TOBIAS – The fact that the attestation clause
NOT – symbols like stars or hearts was written on a separate page has been held to be a matter of
“minor importance” and apparently will NOT affect the validity
RE 6 – ATTESTATION CLAUSE of the will

WHAT MUST THE ATTESTATION CLAUSE STATE? Q – Must the language of the will be understood or known by the witnesses?
1. The number of pages of the will, 
 No. After all, witnesses need not know the contents of the will.
2. The fact that the testator or his agent under his express direction • Q: Is it required that the witnesses knew the language of the
signed the will and every page thereof, in the 
presence of the attestation clause?
witnesses 
 • A: No. So long as it has been interpreted to them.
3. The fact that the witnesses witnessed and signed the will and • Q: Must the testator know the language of the attestation
every page thereof in the presence of the testator and one clause?
another 
 • A: No. What is required of the testator is to know the language of
the will. An express requirement of Art. 804.
NOTE – Attestation is usually found at the bottom or after the end of the will • REASON FOR THE ABOVE RULES: In order to minimize fraud. The
very purpose of Art. 804 and 805. The law encourages not
MUST THE TESTATOR SIGN THE ATTESTATION CLAUSE? discourages will making. Precisely because it wanted to
• NO. It is the affair of the witnesses. Attestation clause is not a part encourage wills. It sets up safeguards to protect the will.
of the will proper because it contains no dispositions. It is merely attestation clause can be at a separate page
Q – Must the testator sign the attestation clause? attestation clause can be at a separate page
essential for the formal requirements of a valid will. It is a
statement of the witnesses. • A – No. ABANGAN V. ABANGAN – This case concerns a will that
has only 2 pages. The first page contained the dispositions and
WHERE MUST THE SIGNATURES OF THE WITNESSES IN THE ATTESTATION CLAUSE was signed by the testator and the witnesses at the bottom. The
BE? BOTTOM OR LEFT MARGIN? second page contained the attestation clause only and was
• CARGO V. CARGO – Must be at the bottom signed by the witnesses at the bottom. From the case, we can
• This is in order to prevent additions. in one single transaction, no sequence on signing (but still learn 2 things: The first concerns the first page. Since it was signed
• NOT SIGNED BY THE TESTATOR. best to have testator first because no disposition yet w/o by the testator and the witnesses at the bottom, then there is no
testators signature. need for them to sign at the left margin. The second concerns
but if separate transactions, the testator should sign first to the second page. Since it was already signed by the witnesses at
CASE – CAGRO V. C AGRO maintain legal capacity
• F – The appellants insisted that the will is defective because the the bottom of the attestation clause, then there is no need for
attestation was not signed by the witnesses at the bottom them to sign on the margin.
although the page containing the same was signed by the
witnesses on the left hand margin. Petitioner contended that the Q – Is it possible for a valid will attested will even if it has no marginal
signatures of the 3 witnesses on the left hand margin conform signatures?
substantially to law and may be deemed as their signatures to • A – Yes. Case of ABANGAN V. ABANGAN, where the will only
the attestation clause. consisted of two pages.
• H – Court said that the ATTESTATION CLAUSE is “a memorandum • Page 1 – will
of the facts attending the execution of the will” required by law • Page 2 – Attestation clause
to be made by the attesting witnesses, and it must necessarily • The signatures on the left margin would be completely
bear their signatures. 
 purposeless.
• An unsigned attestation clause cannot be considered as an act • In this case, the purpose of the law – which is to avoid any
of the witnesses, since the omission of their signatures at the substitution of any of the sheets of the will, thereby changing the
bottom thereof negatives their participation. If an attestation testator’s dispositions – has already been accomplished.
clause not signed by the three witnesses at the bottom thereof,
be admitted as sufficient, it would be easy to add such clause to RE 7 – ACKNOWLEDGMENT who acknowledges? the testator and the witnesses ; NOT
THE NOTARY PUBLIC.
a will on a subsequent occasion and in the absence of the
testator and any or all of the witnesses. 
 WHAT IS THE LAST REQUIREMENT FOR ATTESTED WILLS?
• BAUSTISTA ANGELO, DISSENT: There is substantial compliance. The 1. Acknowledgment by the notary public.
objection is too technical to be entertained. The purpose of the 2. NOTARIZATION – it becomes a public document, and prima facie
true
law is to avoid the substitution of the pages has already been
3. NOTE – at this time, all the parties (both the testator and the
accomplished, since the fear of substitution has been obviated
by the uncontradicted testimony of the witnesses. witnesses) must have capacity.
• BALANE, CONCURRING: It is safer to sign at the bottom. The logic
WHAT IS AN ACKNOLWEDGMENT?
is that if there had been no signature at the bottom but on the
• LEE V. TAMBAGO – An acknowledgement is the act of one who
sides, there will be ample room for fraud, that is, to add in the
attestation clause upon the death of the decedent an essential has executed a deed in going before some competent officer
matter which was not there in the first place to validate it.; of court and declaring it to be his ac or deed.
• TWO-FOLD PURPOSE
• To safeguard the testators wishes long after his demise
CASE – AZUELA VS. CA
• F – Witnesses did not sign at the bottom of the attestation clause • To assure that his estate is administered in the manner
but they signed the left-hand margin of the page where the AC that he intends it to be done.
is found
MUST THE NOTARY PUBLIC AKNOWLEDGE IN THE PRESENCE OF THE TESTATOR
• H – Will void. Signatures on the left-hand margin comply with the
AND THE WITNESS?
requirement that witnesses sign each page of the will. The
• Should the acknowledgment before a notary, take place, at the
signatures to the attestation clause establish that the witnesses
same time as the signing of the will by the testator and his
are referring to the statements contained in the attestation
witnesses?
clause itself. The attestation clause is separate and apart from
• A – JAVELLANA V. LEDESMA – NO. Art. 705 does not require it. It
the disposition of the will. An unsigned attestation clause results
can take place another time.
in an unattested will. 

CASE – JAVELLANA V. LEDESMA
ECHAVEZ V. DOZEN CONSTRUCTION – An attestation clause is MANDATORY
• F – The testament was executed at the house of the testatrix and
for attested wills. It is SEPARATE and DISTINCT from the ACKNOWLEDGMENT
the codicil was executed after the enactment of the NCC and
CLAUSE (Certification of Acknowledgment). These two cannot be merged.
JDLYRREVERRE | B2020 | SUCCESSION | ATTY. BALANE | CHAMP NOTES ANNOTATED | 17
 therefore had to be acknowledged before a notary public. One
of the instrumental witnesses asserted that after the codicil was
signed and attested at the San Pablo hospital, that the notary
signed and sealed it on the same occasion. The Notary, however,
said that he did not do so, and that the act of signing and sealing
was done afterwards. One of the allegations was that the
certificate of acknowledgement to the codicil was signed
somewhere else or in the office of the notary and not in the
presence of T and witnesses. 

• H – Whether or not the notary signed the certification or
acknowledgement in the presence of the testator and the
witnesses DOES NOT affect the validity of the will (codicil). The
NCC does not require that the signing of the testator, witnesses
and the notary be accomplished all in one single act.
• The NCC requires that the testator and the witnesses sign in the
presence of each other. All that is thereafter required is that the
will must be acknowledged before a notary public.
• The subsequent signing and sealing by the notary public is NOT
PART OF THE TESTAMENTARY ACT. Hence, their separate
execution out of the presence of the testator and the witnesses
cannot be said to violate the rule that the testament should be
completed without interruption.
• OBITER – Art. 806 does not contain words requiring that the
testator and the witnesses should acknowledge the testament
on the same day or occasion that it was executed.
• B – Acknowledgement may be validly done after execution. In
fact, the testator and the witnesses do not have to acknowledge
together. You can acknowledge one by one. The law does not
require it to be made simultaneously. As long as the testator
maintains his testamentary capacity and the witnesses maintain
their witnessing capacity until the last person acknowledges,
then the will is valid. However, if the testator dies before the last
person acknowledges, then the will is not valid. The will is
considered as being unacknowledged.
MAY THE NOTARY PUBLIC BE ALSO COUNTED AS A WITNESS?
• CRUZ V. VILLASOR – No, he cannot avow, assent or admit his
having signed the will in front of himself.
CASE – CRUZ V. VILLASOR
• F – The probate of the last will and testament of the late Valente
Z. Cruz was opposed by Agapita on the ground of fraud, deceit,
misrepresentation and undue influence, and that it was not
executed in accordance with law. Of the three instrumental
witnesses thereto, namely Jamaloas Jr., Dr. Pañares and Atty.
Teves, Jr., one of them, the last named, is at the same time the
Notary Public before whom the will was supposed to have been
acknowledged.
• H – The notary public before whom the will was acknowledged
cannot be considered as the 3rd instrumental witness since he
cannot acknowledge before himself his having signed the will.
• To acknowledge means to avow, in front or before. If the 3rd
witness were a notary public himself, he would have to avow,
assent or admit his having signed the will in front of himself. He
cannot do this because he cannot split his personality into two
so that one will appearing before the other acknowledge his
participation in the will. For he would be interested in sustaining
the validity of his own act.
• US CASES are not applicable since there, a notary public is merely
an instrumental witness and not an ACKNOWLEDGING WITNESS.
Probate denied.
• B – REASONS FOR DENIAL OF CONCEPT
1. The notary public cannot be an oath witness and at
the same time an oath taker. It is impossible for him to
acknowledge before himself;
2. the aim of the notary public to insure the
trustworthiness of the instrument would be lost
because he will try to insure the validity of his own act.
3. The notary public must be impartial
• GENERAL RULE – The notary public cannot be a witness.
o EXCEPT – When there are more than 3 witnesses. In
such a case, the requisite of three witnesses is
achieved.
RECAP
1. May a notary public be an attesting witness? Yes.
2. If a Notary public is also the witness, does it invalidate the will. No,
IF there are three or more. Simply, it means that, a notary public
who is also a witness is simply NOT COUNTED as a witness.
T/F – If the Notary Public is one of the witnesses of the will, the will is void – F.
• Check the number of witnesses
JDLYRREVERRE | B2020 | SUCCESSION | ATTY. BALANE | CHAMP NOTES ANNOTATED | 18
CASE – ORTEGA VS. VALMONTE
• F – Valmonte’s will is being contested because the date of
execution and the date of acknowledgment are different.
• H – Will is valid. Conflict between the dates does not invalidate
the will because the law does even require that a notarial will be
executed and acknowledged on the same occasion.
Consequently, variance between the indicated dates does not
in itself invalidate a will
CASE – GUERRERO V. BIHIS – The notary must act within the jurisdiction of his
notarial commission.
• F – The trial court denied the probate of the will ruling that Article
806 of the Civil Code was not complied with because the will was
“acknowledged” by the testatrix and the witnesses at the
testatrix’s residence at No. 40 Kanlaon Street, Quezon City before
Atty. Macario O. Directo who was a commissioned notary public
for and in Caloocan City.
• H – VOID. No notary shall possess authority to do any notarial act
beyond the limits of his jurisdiction. Since Atty. in this case was not
commissioned in the place where he notarized the document,
he lacked the authority to take the acknowledgment of the
testatrix and the witnesses.
CASE – GABUCAN V. MANTA
• F – In the case, the notarial acknowledgement of the will lacked
a documentary stamp. As such the judge in the lower court
denied probate.
• I – Does the absence of the documentary stamp invalidate the
will?
• H – No. The absence of the documentary stamp does not affect
the validity of the will. Its only effect is to prevent it from being
presented as evidence. The solution is to buy a documentary
stamp and attach it to the will.
Q – Why is there no need that the notary public file a copy of the will with
the Office of the Clerk of Court?
• To protect the secrecy of the will and encourage will-making.
• To prevent dissention of heirs
• Too risky for the testator – incentive for murder
ARTICLES 807 AND 808 ARE SPECIAL ADDITIONAL
REQUIREMENTS WHICH ARE MANDATORY.
IF DEAF/ DEAF MUTE BUT CAN READ - NOT APPLICABLE
Art. 807. If the testator be deaf, or a deaf-mute, he must personally read the
will, if able to do so; otherwise, he shall designate two persons to read it and
communicate to him, in some practicable manner, the contents thereof. (n)
Art. 808. DOUBLE READING REQUIREMENT
If the testator is blind, the will shall be read to him twice; once, by one of the
subscribing witnesses, and again, by the notary public before whom the will
is acknowledged. (n)
CODAL SUMMARY
807 – DEAF OR DEAF-MUTE 808 – BLIND
LITERATE – If able to ILLTIRATE – If unable to The will shall be read
read read to him TWICE.
He must read the He shall DESIGNATE
weal PERSONALLY. two persons to READ ONCE – by one of the
and COMMUNICATE subscribing witnesses
to him the contents
thereof AGAIN – by the
notary public before
in some practicable whom the will is
manner acknowledged.
NOTE ON ART. 807 – The law is not clear if the 2 persons reading it to him
would do it separately or in consonance.
Q – What is the handicap/incapacity pertained to in ART. 807?
• Illiterate Deaf or Deaf-Mute Testators.
Q – WHAT DO YOU MEAN BY SOME PRACTICABLE MANNER?
• NORMALLY – the will must be read to the testator. In this case, this
would be useless
• THUS – It should be in a manner that would make it possible for
the testator to understand the contents of the will.
• EXAMPLE – lip reading, charades, hand signals
PURPOSE – The reading is mandatory for the purpose of making known to
the testator the provision of the will so that he may object if it is not in
accordance with his wishes.
NOTE – Art. 808 does not only cover actually blind persons, but also the
following (they are in contemplation of the law, blind) – see ALVARADO V.
GAVIOLA
1. Have very poor eyesight rendering them unable to read 
 meaning of blind as it is used in Art. 808.
2. Illiterate persons (those unable/incapable to read)
NOTE – Art. 808 is MANDATORY. Otherwise the will Is void.
• See GARCIA V. VASQUEZ – In the case, the will was read to the
testator only once. The SC denied probate of the will for failing to
comply with the requirements of Art. 808. Such failure is a formal
defect.
• BALANE – It should be noted that both the sense of Article 808
and the implication in Garcia are that the burden of proof is upon
the proponent of the will that the special requirement of the
article was complied with. At the same time, there is no
requirement that compliance with the requirement be stated
either in the will or the attestation clause. Compliance must be
proven by extrinsic evidence 
 BALANE – This is a liberalization rule, an attempt to liberalize Articles 804 to
• Q – Can this requirement be presumed? NO.
• Q – Can this be proven to have been complied with competent
evidence? YES. In the absence of which the will is void. Such fact
or reading must be proven by evidence during the probate
proceedings.
CASE – GARCIA V. VASQUEZ
• F – The will and the attestation clause were crammed together
on a single page and had typographical errors. It was alleged by
proponents that testator read the will silently before she signed it
BUT there was evidence that Testator’s vision was for counting
fingers at 5-ft and for distant objects only.
• H – VOID. Testator could not have read the will silently as she was
not unlike a blind testator and execution of the will requires
observance of Art. 808. The testimony of the ophthalmologist who
has first had knowledge of the actual condition of her eyesight
was that her vision remained mainly for viewing distant objects
and not for reading print. Thus, conclusion is inescapable that she
was incapable of reading and could not have read the
provisions of the will supposedly signed by her. The instrumental
witnesses stated that she merely read the instrument “silently”.
She therefore could not see at normal reading distance.
• The rationale behind the requirement of reading the will to the
testator if he is blind or incapable of reading the will himself (as
when he is illiterate) is to make the provisions thereof known to
him, so that he may be able to object if they are no in
accordance with his wishes.
• The aim of the law is to ensure that the dispositions in the will are
properly communicate to and understood by the handicapped
testator, thus making them truly reflective of his desire. Hence, not
only must the will be read to him once, but must be twice by two
different persons (the witness and the notary)
• B – These are protective measures because it is easy to fool a
blind person.
RECAP
• It is not required that the attestation clause expressly state that
Art. 808 was complied with. PROPONENT has burden of proof.
• BUT – Art. 807 and 808 (by evident analogy) are still MANDATORY.
Failure to comply with either result in the NULLITY or DENIAL of
probate.
CASE – ALVARADO V. GAVIOLA
• F – Testator had glaucoma. He was unable to read because he
had very poor, blurred, and defective vision. The will was read to
him only by his lawyer, ONCE ONLY; but not by the notary and
one of the witnesses, they, however, followed with their own
copies and asked if he understood the will, and the testator
answered in the affirmative. 
 in the “form...or language.”
• H – Court said that he is covered under Art. 808, since it does not
only apply to completely blind persons, but also, to those
incapable of reading their wills. 
 1.
• There was substantial compliance since its purpose of making
known to the testator the contents of the will was served. It was
not the first time that the testator affirmed the truth and
authenticity of the contents of the will. He had earlier
acknowledged the will in accordance with his express wishes
when the draft was sent to him. We can safely conclude that the
testator was reasonable assumed that what was read to him
were the terms actually appearing on the documents.
• The spirit of the law was served, though the letter was not. It was
not the object of the law to restrain or curtail the exercise of the
right to make a will.
JDLYRREVERRE | B2020 | SUCCESSION | ATTY. BALANE | CHAMP NOTES ANNOTATED | 19
• Notable, ALVARADO (testator) was not totally blind at the time
the will was executed. He was capable of counting fingers at 3
feet, hence merely poor eyesight. The testator comes within the
• B – Alvarado does NOT reverse or abandon the Garcia ruling, it
liberalizes it. Garcia says that Art. 808 is mandatory, Alvarado says
that substantial compliance (if it attains the purpose of the law,
which is the protect the blind testator) is sufficient. 

Art. 809. In the absence of bad faith, forgery, or fraud, or undue and
improper pressure and influence, defects and imperfections in the form of
attestation or in the language used therein shall not render the will invalid if
it is proved that the will was in fact executed and attested in substantial
compliance with all the requirements of Article 805. (n)
JBL REYES – A liberalization running riot!
808. Substantial compliance with Articles 805 and 806 will validate the will
despite some defects in the attestation clause.
• An attempt to temper or liberalize the strictness of the formal
requisites of attested wills.
• This article does not provide sufficient guidelines to limit the
discretion of the judge in deciding compliance. The judge is
clueless as to how liberal he can be.
• Looking at Art. 809, you get the impression of utmost liberalization.
We cannot determine how liberal we can be or can we go. This
article does not give a clear rule. JBL Reyes and Tolentino suggest
that you make a distinction.
• Simply put – WHAT IS SUBSTANTIAL COMPLIANCE? If the defect is
something that can be remedied by the visual examination of
the will itself, liberalize. If not, then you have to be strict.
JUSTICE JBL REYES SUGGESTS A POSSIBLE RE- WORDING
• MEMORIZE FOR RECIT – In the absence of bad faith, forgery, or
fraud, or undue and improper pressure and influence, defects
and imperfections in the form of attestation or in the language
used therein shall NOT render the will invalid if such defects and
imperfections can be supplied by an examination of the will itself
and it is proved that the will was in fact executed and attested
in substantial compliance with all the requirements of Article 805.
(Lawyers Journal, November 30, 1950, p. 566.)
• EXAMPLE
1. If the attestation clause fails to state the fact that the
testator signed each and every page thereof à BE
LIBERAL. You can easily verify these facts upon visual
examination of the will.
2. If the attestation clause fails to state the fact that the
witnesses signed in each other’s presence à BE
CAREFUL. This might be a fatal flaw. this cannot be
remedied by visual examination of the will, then you
need to be strict.
CASE – CANEDA V. CA
• F – In this case, the opponents to the probate were claiming that
the attestation clause was fatally defective in that while it recites
that the testator indeed signed the will and all its pages in the
presence of the three attesting witnesses and states as well the
number of pages that were used, the same does NOT expressly
state therein the circumstance that said witnesses subscribed
their respective signatures to the will in the presence of the
testator and of each other. The will, however, complied with the
other requirements of Art. 805 and 806. 

• H – Attestation Clause not valid. Art 809 does not apply. It cannot
be conclusively inferred from the signatures that they were made
in the presence of each other. Furthermore, the defects were not


• Art. 809 must be limited only to those effects that can be supplied
by and examination of the will itself such as –
Whether all the pages are numbered (note that this is
pagination and not that the number of pages used
was not stated)
2. Whether the signatures appear in each and every
page
3. Whether the subscribing witness are really three
4. Whether the will itself was notarized.
• All these are facts that the will itself can reveal and the defects
or even omission concerning them in the attestation clause can
safely be disregarded.
• HOWEVER, the following must substantially appear in the
attestation clause, being the only check against perjury –
1. The total number of pages used
 2. Whether all persons required to sign did so in the NOTE – What mandatory requirements need NOT be stated in the will or
presence of each other – even if three persons signed, attestation clause?
it is not sure if they signed in the presence of one 1. LOPEZ V. LIBORO – The will itself need not state that the language
another! is known to the testator.
• Omissions which can be supplied by mere examination of the will 2. ART. 808 – Double Reading requirement to a legally blind person.
itself, without need of resorting to extrinsic evidence is not fatal.
• Omissions which cannot be supplied except by evidence In BOTH cases, they may be proved by EXTRINSIC EVIDENCE in the probate
aliunde would result in the INVALIDATION OF THE ATTESTATION proceedings.
CLAUSE and ultimately, the WILL ITSELF.

CASE – AZUELA V. CA
• F – The will in this case contains a lot of defects. Court explained
why each and every defect is fatal to the validity of the will.
• H – FATAL DEFECT, and a ground denying probate. A will whose
attestation clause does not contain the number of pages on
which the will is written is fatally defective. A will whose
attestation clause is not signed by the instrumental witnesses is
fatally defective. And perhaps most importantly, a will which
does not contain an acknowledgment, but a mere jurat, is fatally
defective. Any one of these defects is sufficient to deny probate.
A notarial will with all three defects is just aching for judicial
rejection.
• Article 809 should not deviate from the need to comply with the
formal requirements as enumerated under Article 805. Whatever
the inclinations of the members of the Code Commission in
incorporating Article 805, the fact remains that they saw fit to
prescribe substantially the same formal requisites as enumerated
in Section 618 of the Code of Civil Procedure, convinced that
these remained effective safeguards against the forgery or
intercalation of notarial wills.

CASE – LOPEZ V. LOPEZ

• F – In this case, the ATTESTATION CLAUSE failed to state the correct
number of pages used upon which the will is written. This was
because, while the ACKNOWLEDGMENT PORTION stated that the
will consists of 7 pages, upon showing it was found that it really
had 8 pages including the acknowledgment portion. 

• H – NOT SUBSTANTIAL COMPLIANCE. Art. 809 does not apply. The
statement in the Acknowledgment portion of the subject last will
and testament that it "consists of 7 pages including the page on
which the ratification and acknowledgment are written” cannot
be deemed substantial compliance. The will actually consists of
8 pages including its acknowledgment which discrepancy
cannot be explained by mere examination of the will itself but
through the presentation of evidence aliunde.
• B – It is not correct to say that the defect in stating the number of
pages in a will cannot be supplied by the will itself. In fact, the will
is paginated and one can simply look at the number of pages of
a will. But note that Justice JBL Reyes himself said that failure of
the attestation to state the total number of pages upon which
the will is written is a fatal defect.

CASE – CELADA V. AVENA

• F – Petitioner posits that the will is fatally defective for the reason
that its attestation clause states that the will is composed of three
(3) pages while in truth and in fact, the will consists of two (2)
pages only because the attestation is not a part of the notarial
will, the same is not accurate.
• H – It must be noted that the subject instrument is consecutively
lettered with pages A, B, and C which is a sufficient safeguard
from the possibility of an omission of some of the pages. The error
must have been brought about by the honest belief that the will is
the whole instrument consisting of three (3) pages inclusive of the
attestation clause and the acknowledgement. The position of
the court is in consonance with the "doctrine of liberal
interpretation" enunciated in Article 809 of the Civil Code.

CASE COMPARISON
AZUELA LOPEZ CELADA
(2006) (2012) (2008)
DEFECTS DEFECT DEFECT – The attestation
1. AC did not state clause mistakenly stated
number of pages The will stated that it that the will had three
2. Witnesses did not sign contained 7 pages pages (it in fact had two)
the AC
3. No acknowledgment The acknowledgement SC – error not material
by a notary (only
stated that there were 8. since the pagination in
jurat)
4. No signature of the
letters were sufficient
testator in each and AC did not state the safeguard of the will’s
every page number of pages. 
 integrity.
5. Pages were not
numbered
consecutively
INVALID INVALID VALID
JDLYRREVERRE | B2020 | SUCCESSION | ATTY. BALANE | CHAMP NOTES ANNOTATED | 20
 ARTICLES 810 TO 814 – PROVISIONS ON HOLOGRAPHIC WILLS. • It may be December 25, 2004, 25 December 2004, 12/XII/2004,
Christmas Day, 2004. Bastille Day, 2005. Feast of St. Ignatius, 2003.
HOLOGRAPHIC WILLS ARE THE SOUL OF SIMPLICITY The 50th Anniversary of WWII, etc.
• As long as there is a generally known feast, or historic event that
ADVANTAGES DISADVANTAGES can be verified and checked.
BOOK • Date is very important, it goes into the testamentary capacity of
Secrecy Danger of Forgery the testator, from this you can already know his age and it helps
Inexpensiveness Greater difficulty of determining determine if he was mentally capacitated.
testamentary capacity
Brevity Increased risk of duress CASE – ROXAS V. DE JESUS
DISCUSSION • F – The holographic will was dated FEB./61. Is this valid?
1. Precisely because it guarantees • H – Since the present NCC did not expressly provide for “aNo,
1. Cheaper
secrecy and is simpler, it is also easier mes y dia” and merely required that the will be dated, this is valid.
2. Simple
3. Easier to revise
to falsify – less people you need to Liberal construction of the holographic will should prevail.
collude with – only yourself, but in • The complete date is required merely to provide against such
4. No notary public needed
 attested will, you need at least four (4) contingencies as that
5. Absolute secrecy is other people.
a. of two competing wills executed on the same day, or
guaranteed – only you, the 2. It may not express testator's wishes
due to faulty expression b. of the testator coming insane on the day on which a will
father and the members of
3. No protection against causes vitiating was executed.
the family will know the
consent because there are no • In this case, there is no such contingency. There appearing no
contents witnesses – danger is higher. fraud, bad faith or undue influence, and the authenticity of the
4. Does not reveal testamentary will is already established, the date, “Feb./61” is valid
capacity of testator due to lack of
witnesses
compliance.
5. Easier to conceal than an attested will • BALANE, DISSENT – The date must be complete. The only saving
– you can allege that no will was grace in the case was that no fraud or bad faith existed. I am not
made. happy with the decision because the period covers one whole
6. Generally, danger of ambiguity is month. One of the purposes is to know when it was executed,
greater than in attested wills – specially in the cases where there are other wills. Example,
because testator is not a lawyer, he
another will dated Feb. 17/ 61. As such, it is dangerous to say that
may not understand technical and
legal words. In attested will, the "Feb./61" is sufficient.
testator is assisted by a lawyer.
RULE OF DATING
JBL REYES – that the disadvantages outweigh the advantages. He • GENERAL RULE – Date in a holographic will should include the
suggested a middle ground, a mystic will (testamento cerrado.) It is not as day, month and year of its execution
strict as a notarial will, but not as fraught with risks as a holographic will. This • EXCEPTION – Substantial compliance is considered valid if there
kind of will is sealed in an envelope and brought to the notary who puts his is no appearance of fraud, bad faith, undue influence and
seal and signs to authenticate, and it will be opened only upon the death pressure and the authenticity of the will is established. 

of the testator. This kind of will minimizes the risk of fraud and protects the
privacy of the testator. WHERE MUST THE DATE BE PLACED?
• Anywhere! The beginning, middle or end à that will do.
Art. 810. A person may execute a holographic will which must be entirely • LABRADOR V. CA – the date was in the contents of the will.
written, dated, and signed by the hand of the testator himself. It is subject
to no other form, and may be made in or out of the Philippines, and need CASE – LABRADOR V. CA
not be witnessed. (678, 688a) • F – In this case, the will was not expressly dated, but its contents
(in one of the testamentary dispositions) impliedly revealed the
BASIC REQUIREMENTS OF HOLOGRAPHIC WILLS date on which it was written 

1. Completely handwritten by the testator 
 • H – Court said that the law does NOT specify a particular location
2. Dated by him; and 
 where the date should be placed in the will. The only
3. Signed by him 
 requirements are that the date be in the will itself and executed
in the hand of the testator. 

COMPLETELY HANDWRITTEN BY THE TESTATOR • B – It is not necessary that the will be separate from the body. In
fact, it can be anywhere in the will as long as the date appears
Q – Must the entire will be handwritten? What is the effect of non- in the will.
compliance?
• YES. If only part is handwritten and the other parts are not, then NOTE – If the date is proven wrong, then its validity depends on whether the
the ENTIRE WILL is void. error is deliberate or not.
• If deliberate, the will is considered not dated and the will is void.
EXAMPLE • If not deliberate, the date will be considered as the true date.
1. If partly by the testator and partly by another person, VOID
2. If another person wrote an additional part without knowledge of SIGNED BY HIM
the testator, the will is VALID but the addition is VOID
3. If another person wrote an additional part with the knowledge of Q – Where must the testator sign the will?
the testator, VOID.
 • At the LOGICAL end, as implied from Art. 812.

Q – May a blind person execute a holographic will?
• YES, just because a person is blind doesn't mean he can’t write,
note also that some blind persons become blind only after birth,
they already learned how to write. What is important is the
presence of the three requisites.
Q – Are holographic wills in letters allowed?
• YES, provided there is an intent on the part of the testator to
dispose of the property in the letters and the 3 requisites are
present.
DATED BY HIM
Q – How must you date the holographic will?
• In any form.
• Date may be written by any of the conventional ways or by
indicating a day of general knowledge (such as “Christmas day
of 2015”, “date of the Hiroshima bombing”)
Q – How must the testator sign the will?
• By the hand of the testator. The reason for this is since he is able
to write his will, then he is literate enough to write his name.
Q – CAN THE TESTATOR SIGN BY MEANS OF A TUMBPRINT?
• A – NO! The article does not seem to permit this, kasi nga by
hand!
Art. 811. In the probate of a holographic will, it shall be necessary that at
least one witness who knows the handwriting and signature of the testator
explicitly declare that the will and the signature are in the handwriting of
the testator. If the will is contested, at least three of such witnesses shall be
required.
In the absence of any competent witness referred to in the preceding
paragraph, and if the court deem it necessary, expert testimony may be
resorted to. (619a)

JDLYRREVERRE | B2020 | SUCCESSION | ATTY. BALANE | CHAMP NOTES ANNOTATED | 21

SUMMARY OF THE REQUIREMENTS IN THE PROBATE OF HOLOGRAPHIC WILLS • Since no witnesses may have been present at the execution of
1. TESTIMONIAL REQUIREMENT the will (there being none required by law), it becomes obviouc
a. UNCONTESTED WILL – only one witness to identify the that the existence of witnesses possessing the requisite
signature and handwriting of the testator qualifications is a matter beyond the control of the proponent.
b. CONTESTED WILL – three witnesses to identify the • There may be no available witness acquainted with the testator’s
signature and handwriting of the testator.
 hand, or even if available, is unwilling to testify. Hence,
2. DOCUMENTARY REQUIREMENT compliance with Art. 811 may be an impossibility. Anyway,
a. GENERAL RULE – GAN V. YAP – The will itself must be expert testimony may be resorted if the court deems it necessary.
presented. • B – This is obiter since the will was ruled as uncontested, therefore
b. EXCEPTION – RODELAS V. ARANZA – If there is an the pronouncements of the court in assuming that the will was
existing copy or duplicate photostatic xerox. contested is immaterial to the disposition of the case. But,
nevertheless, the obiter is a strong one. Proof is not a matter of
RECIT Q – Must the will itself be presented? Art. 811 does not seem to state quantity, not a matter of numbers. To hold that a probate of a
this as a requirement for the probate of holographic wills? will should require three witnesses is to make it more serious than
• A – Yes. Jurisprudence – GAN V. YAP treason (which requires only two witnesses). Art. 811 is merely
directory, what is important is the discretion of the court, it
NOTE depends on the judge. 

• Art. 811 is a RULE OF EVIDENCE. • Which is better? One who testify but with unquestioned credibility
• It merely states that to determine the validity of the holographic or 20 AVSECOM witnesses? So do not rely on the quantity. The
will, it requires the presentation of the will itself. case of Azaola is merely a guide and interprets Art. 811 for us. It
• This article applies only to post mortem probates; it does NOT is not mandatory. It always depends on the judge.
apply to ante mortem probates since in such cases the testator • The Latin maxim testis unus, testis nullus (one witness is not witness)
himself files the petition and, obviously, will identify the document is too archaic a rule (quoting J.B.L. Reyes) à quality of testimony
himself over number of witnesses
• This article only applies to holographic wills.

 CASE – CODOY V. CALUGAY
TESTIMONIAL REQUIREMENT • F – In this case, the opponents of the probate of a holographic
will was arguing that such will was a forgery. They challenged the
Under Art. 811, witnesses who KNOWS the handwriting and signature of the authenticity of the will. The proponents presented six witnesses,
testator are required to explicitly declare that the will and the signature but the probate court discarded the testimony of the four since
are in the handwriting of the testator. it was worthless. 

• H – Court said that based on the language used, Article 811 of
UNDER THE RULES OF COURT (RULE 132, SEC. 22), THE GENUINENESS OF A the Civil Code is mandatory. The word “shall” connotes a
HANDWRITING MAY BE PROVED BY ANY OF THE FOLLOWING: mandatory order. We have ruled that “shall" in a statute
1. A witness who actually saw the person writing the instrument 
 commonly denotes an imperative obligation and is inconsistent
2. A witness familiar with such handwriting and who can give his with the idea of discretion and that the presumption is that the
opinion thereon, such opinion being an exception to the opinion word “shall,” when used in a statute is mandatory.”
rule 
 • We cannot eliminate the possibility of a false document being
3. A comparison by the court of the questioned handwriting and adjudged as the will of the testator, which is why if the
admitted genuine specimen thereof; and 
 holographic will is contested, that law requires three witnesses to
4. Expert evidence declare that the will was in the handwriting of the deceased. 


WHAT IS A CONTESTED WILL? FORGERY. COMPARISON OF CODOY AND AZAOLA BY BALANE

• To “contest” means to attack the authenticity of the will (i.e. that • Conventional wisdom tells us Codoy overruled Azaola.
the will is forged) • But looking at it again, there is no such overruling because all the
• That which a ground for opposition is based on the allegation witnesses in Codoy were USELESS.
THAT THE WILL IS NOT WRITTEN BY THE TESTATOR HIMSELF. • Codoy does NOT reverse Azaola. The word “shall” does not
• That which the genuineness of the signature is in issue. always connote a mandatory intent.
• That is does NOT refer to grounds of fraud or vitiation of consent. • It should be noted that the Codoy ruling was not
based on there being less than three witnesses (there
UNCONTESTED CONTESTED were in fact six).
HOLOGRAPHIC WILL HOLOGRAPHIC WILL • The ruling DID NOT STATE that since there were less
Only one witness to identify the Three witnesses to identify the than three witnesses (apparently only the testimonies
signature and handwriting of the signature and handwriting of the of two witnesses were considered at length), even if
testator Testator their testimony was convincing, the probate must be
denied because of the mandatory import of 811. (The
TWO VIEWS testimony of these two witnesses was found to be
1. CODOY – mandatory indecisive).
2. AZAOLA – Directory • The ruling in fact said that visual examination of the will
reveals that the strokes are different compared with
BALANE – The CREDIBILITY of standard documents. Therefore, the BASIS OF THE
witnesses does not depend on the RULING was that evidence for authenticity was NOT
numbers, but on the INTRINSIC ADEQUATE, not failure to present three witnesses.
QUALITY of their testimonies. Which, if analyzed closely is in accord with Azaola,
which stated that the decisive factor is not quantity,
CASE – AZAOLA V. SINGSON but quality. If one goes beneath the surface, Codoy,
• F – In this case, the probate of a holographic will was being rather than reversing Azaola, may have affirmed it. 

opposed by several persons based on undue and improper • Hence, Azaola case is still preserved. Not mandatory.
pressure and influence – FRAUD. The oppositors however, • BUT, for the purposes of the bar, Codoy REVERSES Azaola. Art. 811
ADMITTED ITS DUE EXECUTION. Only one witness was presented by requiring the production of three witnesses in case the
the proponent of the probate. holographic will was contested is MANDATORY. For purposes of
• Probate court denied the probate on the ground that only one exams under BALANE, it seems it is merely DIRECTORY.
witness was presented, when Art. 811 requires at least three
witness in case the holographic will is contested. 
 DOCUMENTARY REQUIREMENT
• H – Court said that the authenticity of the will was NOT contested.
It is contested when the authenticity of the will is challenged. The MUST THE WILL ITSELF BE PRODUCED FOR PROBATE?
opponents did not raise the issue of the will’s authenticity. Thus, it • Although Art. 811 does not expressly says so, the case of GAN V.
is not required that at least three witnesses be presented. 
 YAP adds the additional requirement.
• EVEN IF ARGUMENT BY THE COURT – But, even if the genuineness • In the probate of a holographic will, the document itself must be
of the will was contested, our NCC cannot be interpreted as to presented.
require compulsory presentation of 3 witnesses to identify the
handwriting of the testator.
JDLYRREVERRE | B2020 | SUCCESSION | ATTY. BALANE | CHAMP NOTES ANNOTATED | 22
 • If the holographic will is LOST, then the will cannot probated
anymore. The reason is that the will itself is the only proof of its
authenticity.
• EXCEPT – RODELAS V. ARANZA – If there is a copy of the
holographic will left.
CASE – GAN V. YAP
• F – Petition for probate of testatrix’s will. Opposition: that testatrix
left no will. Proponent did not present will and instead tried to
establish contents and due execution thru testimonies. 

 last additional disposition is valid
• H – In holographic wills, the document itself is the only material
proof of authenticity, and as its own safeguard, since it could at
any time, be demonstrated to be—or not to be—in the hands of
the testator himself. The execution and the contents of a lost or
destroyed holographic will may not be proved by the bare
testimony of witnesses who have seen and/or read such will. 
 occasion, the last additional disposition validates all and
• The witnesses required in Art. 811, do not need to have seen the
execution of the holographic will. They may be mistaken in their
opinion of the handwriting, or they may deliberately lie in
affirming it is in the testator’s hand. However, the oppositor may
present other witnesses who also know the testator’s handwriting,
or some expert witnesses, who after comparing the will with other
writings or letters of the deceased, have come to the conclusion
that such will has not been written by the hand of the deceased.
And the court, in view of such contradictory testimony may use
its own visual sense, and decide in the face of the document,
whether the will submitted to it has indeed been written by the
testator. Obviously, when the will itself is not submitted, these
means of opposition and of assessing the evidence, are not
available. And then, the only guaranty of authenticity —the
testator’s handwriting—has disappeared.
CASE – RODELAS V. ARANZA
• F – A photostatic copy of testator’s holographic will was
presented for probate. Opposition: that the original must be
presented.
• H – A photocopy or Xerox copy of the holographic will may be
allowed probate because comparison can be made with the
standard writings of the testator. As recognized in the Gan ruling,
footnote no. 8, a lost holographic will may still be proved by a
photographic or photostatic copy. Even a mimeographed or
carbon copy, or other similar means, if any, of determining the
authenticity of the handwriting of the deceased may be
exhibited and tested before the probate court. Hence, the Xerox
copy of a lost or destroyed holographic will may be admitted
because then the authenticity of the handwriting of the
deceased can be determined by the probate court.
• B – This exception is very dangerous. It misread the footnote in the
Gan case, which is not even obiter. A photocopy is easily forged.
Handwriting experts use the science of “penlifting” which is very
very hard to fake in determining the authenticity of a document.
You can't apply this science to a mere photocopy. 
 corrected or inserted.
Art. 812. In holographic wills, the dispositions of the testator written below his
signature must be dated and signed by him in order to make them valid as
testamentary dispositions. (n)
Art. 813. When a number of dispositions appearing in a holographic will are
signed without being dated, and the last disposition has a signature and a
date, such date validates the dispositions preceding it, whatever be the
time of prior dispositions. (n)
NOTE – Art. 812 and 813 deals with the AUTHENTICATION of additional
dispositions.
APPLICABILITY
1. This article contemplates a situation where the testator had
already made a holographic will but later decides to make
additional dispositions. 
 name was crossed out. This indicated a change of mind on the
2. Additional dispositions are those dispositions of the testator
written below his signature
3. It only applies to holographic wills 
 signature, is not valid. As such, the probate is denied and they
WHAT ARE THE REQUIRMENTS FOR EACH ADDITIONAL DISPOSITION?
1. Date
2. Sign
WTHAT IF THERE ARE SEVERAL ADDITIONAL DISPOSITIONS? HOW MAY THE
SIGNATURE AND DATE BE PLACED? The testator has two options.
1. Sign and date EACH additional disposition.
2. Sign EACH additional disposition and undated AND sign and
date the LAST disposition.
JDLYRREVERRE | B2020 | SUCCESSION | ATTY. BALANE | CHAMP NOTES ANNOTATED | 23
NOTE – If in case of SEVERAL additional dispositions, before the last one is
dated but NOT SIGNED, then ONLY THE LAST ADDITIONAL DISPOSITION WILL
BE VALID if the last is signed and dated.
QUESTIONS
• Q – What if the additional dispositions are dated but not signed?
They are invalid
• Q – What if the additional dispositions are dated but not signed
but the last additional disposition is dated and signed? Only the
• Q – What if the additional dispositions are neither dated nor
signed, but the last additional disposition is dated and signed?
§ BALANE – A distinction should be made whether the
additional dispositions were made on one occasion or on
different occasions. If they were all made on one
thus, all additional dispositions are valid, but if they were
made on different occasions, only the last disposition is
valid.
§ This distinction, although theoretically valid, is in practice,
almost worthless, because we are speaking here of
holographic wills and the circumstances of their execution
are very often extremely difficult to prove.
Art. 814. In case of any insertion, cancellation, erasure or alteration in a
holographic will, the testator must authenticate the same by his full
signature. (n)
Q – What kind of changes in a holographic will are covered under this
article?
1. Insertions
2. Cancellations
3. Erasures
4. Alterations
Q – How do you authenticate changes made in holographic wills?
§ In order to make such acts valid, the testator must authenticate
it by his full signature.
Q – What does full signature mean? How does the testator countersign?
§ By his USUAL AND CUSTOMARY signature
§ Not necessarily by the testator’s full name.
§ But it cannot merely be his initials, as seen in the case of KALAW
V. RELOVA (unless it’s his usual signature?)
Q – What if the testator does not authenticate or countersign the errors?
§ The change is simply NOT MADE.
§ The will is NOT ENTIRELY INVALIDATED or invalidated as a whole.
Q – So the erroneous portions are invalidated?
§ GENERALLY – Yes. At most, only as to the particular words erased,
§ EXCEPTION – KALAW V. RELOVA – When the portion involved is an
ESSENTIAL PART OF THE WILL – such as a date, since it is required
of holographic wills – then the error is also voided.
CASE – KALAW V. RELOVA
§ F – In the case, there were 2 alterations. In the first alteration, the
name of Rosa as sole heir was crossed out and Gregorio's name
was inserted. In the second alteration, the name of Rosa as
executor was crossed out and Gregorio's name was inserted. The
second alteration was initialed.
§ The testator did not properly authenticate the changes
§ Alteration 1: Not signed, thus, not valid.

§ Alteration 2: Initialed, thus, not valid; it must be full
signature.

§ H – Gregorio cannot inherit as a sole heir because it was not
authenticated. Rosa cannot inherit as sole heir because her
part of the testator. The SC held that a change done by
cancellation and putting in a new name, without the full
both inherit by intestacy.
§ Ordinarily, when a number of erasures, corrections, and
interlineations made by the testator in a holographic Will have
not been noted under his signature, the Will is NOT thereby
invalidated as a whole, but at most only as respects the particular
words erased, corrected or interlined 

§ However, when as in this case, the holographic Will in dispute had
only one substantial provision, which was altered by substituting
the original heir with another, but which alteration did not carry
the requisite of full authentication by the full signature of the
 testator, the effect must be that the entire Will is voided or
revoked for the simple reason that nothing remains in the Will
after that which could remain valid. 
 person. (669)
§ B – The court, in this case, did not give effect to the insertion of
Gregorio’s name; why, however, was the cancellation of the
original testamentary institution (the cancellation of rosa) given
effect? That cancellation was not done in the way mandated by
the article, because it was not properly authenticated, yet the
court gave it effect by invalidating the disposition. The
cancellation of Rosa should not have been given effect, thus, the
disposition should have been given effect, and Rosa as the
universal heir. The court should have cited Art. 830 in giving effect
to the cancellation of the original heir. Art. 830 pertaining to
revocation by means of cancellation. But even if we apply Art.
830, the cancellation will still be erroneous since Art. 814 is the
specific provision, Art. 830 being only a general provision. This
decision is really a defective one. 
 §
Q – What if there was an insertion by a third person, in the holographic will?
§ If the insertion was authenticated by the testator, the will is VOID
because it’s not completely in his handwriting
§ If the insertion was NOT authenticated, the will is VALID, because
the insertion is not deemed made. 
 2. The diminution of testamentary secrecy
Q – How do we make a change in a notarial will?
§ There is no provision of law dealing on this. The ordinary rules of
evidence will apply. To prove change, the testator should affix
either his signature or initials. The best way, however, is to have
the testator and notary public sign.
Articles 815 to 817 – Laws which govern formal execution according to the
place of execution.
Art. 815. When a Filipino is in a foreign country, he is authorized to make a
will in any of the forms established by the law of the country in which he may
be. Such will may be probated in the Philippines. (n)
Art. 816. The will of an alien who is abroad produces effect in the Philippines
if made with the formalities prescribed by the law of the place in which he
resides, or according to the formalities observed in his country, or in
conformity with those which this Code prescribes. (n)
Art. 817. A will made in the Philippines by a citizen or subject of another
country, which is executed in accordance with the law of the country of
which he is a citizen or subject, and which might be proved and allowed by
the law of his own country, shall have the same effect as if executed
according to the laws of the Philippines. (n)
BALANE – What will govern the FORMAL VALIDITY of his will, in order that it
may be probated in the Philippines?
FOUR COMBINATIONS AS TO SITUATION
1. Filipino makes a will here
2. Filipino makes a will abroad.
3. Foreigner makes a will here.
4. Foreigner makes a will abroad
WHAT LAW GOVERNS THE VALIDITY OF WILL?
1. INTRINSIC – the national law of the testator
 another.
2. TiME – At the time of death.

3. PLACE – the same for Filipinos and aliens. The same rule wherever
you make your will.
§ YOU HAVE FIVE (5) CHOICES – THE LAW OF
1. The law of his citizenship
2. The law of the place of execution
3. The law of his domicile
4. The law of his residence
5. The law of the Philippines
EXAMPLES
1. An Argentine citizen, domiciled in France, residing in Belgium
visiting the Philippines In Japan, he executed a will. He may
choose among the five (5) places as to what law shall govern the
formal requirements of his will.
2. If Ruben executed a will in Makati, he will have to follow Philippine
law because all the choices points to that only.
3. A French person who owns several properties in the Philippines is
domiciled in Germany, resides in Brazil because he works there,
but is in vacation in Japan. He can either follow Philippine law,
German law (place of domicile), Brazilian law (place of
residence), Japanese law (place of execution), or French law
(place of citizenship).
JDLYRREVERRE | B2020 | SUCCESSION | ATTY. BALANE | CHAMP NOTES ANNOTATED | 24
Art. 818. Two or more persons cannot make a will jointly, or in the same
instrument, either for their reciprocal benefit or for the benefit of a third
Q – What is a joint will?
§ It is ONE DOCUMENT (not the use of the word document and not
paper), which constitutes the will of two or more individuals
§ Such document functions as the will of two or more persons
§ A joint will has nothing to do with “JOINT TESTAMENTARY
DISPOSITIONS” à it simply means one document only.
§ If there are separate documents, each serving as one
independent will (even if they are written on the same sheet),
they are NOT “joint wills” prohibited by this article. 

Q – Are joint wills void? If yes, why?
§ Yes, they are void.
THEY ARE VOID BECAUSE
1. The limitation on the modes of revocation (such as one of
the testators would not be able to destroy the document
without also revoking it as the will of the other testator, or in
any event, as to the latter, the problem of unauthorized
destruction would come in)


3. The danger of undue influence 

4. The danger of one testator killing the other
• Reciprocal wills are NOT prohibited as long as they are
executed in separate documents (though it
encourages murder)
• In the case of husband and wife, if the will is made
jointly, the spouses who is more aggressive, stronger in
will or character is liable to dictate the terms of the will
for his or her benefit.
• DACANY V. FLORENDO – In case of reciprocal wills –
where the whole property of one spouse goes to the
surviving spouses, there may be the temptation to kiss
or dispose of the other.
5. *The personal element of a will is undermined – It becomes
a multiple will.
Q – What a single paper contains the two wills of two persons, one will
executed in the front page, the other in the back page? Or one in the upper
part of the page and the other in the lower part?
§ It is NOT a joint will, since there are two separate documents. The
fault is in the wording of the law in saying “one instrument”. What
the law prohibits is not two wills on the same sheet of paper but
two wills in one document.
Q – Are reciprocal wills valid?
§ VALID.
§ One spouse, for example, may give to the other spouse as a
successor.
§ BUT – the will must be written in two separate documents.
Q – Are reciprocal wills, joint wills?
§ Not necessarily, reciprocal wills are sometimes used by married
couples or life partners as a simple means of securing the transfer
of property to the other spouse upon death. Reciprocal wills
between spouses are where basically mirror images of one
RECAP
§ In Germany, joint wills are allowed only if executed by the
spouses.
§ The presumption is that wills are valid. The fault probably is in the
wording of the law.
§ Joint will – one instrument. What the law prohibits is not 2 wills on
the same sheet of paper but joint wills.
Art. 819. Wills, prohibited by the preceding article, executed by Filipinos in a
foreign country shall not be valid in the Philippines, even though authorized
by the laws of the country where they may have been executed. (733a)
Article 17. The forms and solemnities of contracts, wills, and other public
instruments shall be governed by the laws of the country in which they are
executed.
When the acts referred to are executed before the diplomatic or consular
officials of the Republic of the Philippines in a foreign country, the solemnities
established by Philippine laws shall be observed in their execution.
 OUTLINE ON VALIDITY OF JOINT WILLS their honesty and uprightness, in order that their testimony may
be believed and accepted. 

PLACE OF EXECUTION FILIPINOS FOREIGNERS • The petitioner claims that the witnesses must be CREDIBLE as show
VOID Two views in the evidence of record. She contends that the term creditble
is NOT synonymous with the term COMPETENT and that the term
Philippines
1. VALID if valid in their credible should be interpreted as in the Naturalization Law.
laws (Art. 816) • H – There is NO MANDATORY requirement that it must first be
2. VOID because against established in the record the good standing of the witness in the
public policy
community, his reputation for trustworthiness and reliableness, his
VOID VALID honesty and uprightness, because such attributes are presumed
of the witness unless the contrary is proved otherwise by the
(Art. 819, even if if VALID in their laws
authorized by the law of
opposing party. 

Abroad (Art. 17) • In probate proceedings, the instrumental witnesses are NOT
the place of execution.
This is an exception to the CHARACTER WITNESSES for they merely attest the execution of a
permissive provisions of will or testament and affirm the formalities attendant to said
Art. 17 and 815) execution. 

• The rule is that the instrumental witnesses in order to be
SUBSECTION 4. - WITNESSES TO WILLS competent must be shown to have the qualifications under
Article 820 of the Civil Code and none of the disqualifications
Art. 820. Any person of sound mind and of the age of eighteen years or under Article 821 and for their testimony to be credible, that is
more, and not blind, deaf or dumb, and able to read and write, may be a worthy of belief and entitled to credence, it is not mandatory that
witness to the execution of a will mentioned in Article 805 of this Code. (n) evidence be first established on record that the witnesses have
a good standing in the community or that they are honest and
Art. 821. The following are disqualified from being witnesses to a will: upright or reputed to be trustworthy and reliable, for a person is
(1) Any person not domiciled in the Philippines; presumed to be such unless the contrary is established otherwise.
(2) Those who have been convicted of falsification of a document, In other words, the instrumental witnesses must be competent
perjury or false testimony. (n) and their testimonies must be credible before the court allows the
probate of the will they have attested 

BALANE – Articles 820 and 821 may be taken together. These provisions are
applicable only to attested wills and not to holographic wills. Q – Art. 820 and 821 pertains to the “competency” of a witness to be such.
But remember Art. 805 uses the word “credible” pertaining to the witnesses.
Q – What are the 6 qualifications of Witnesses in attested wills? What are the distinctions?
1. SOUND MIND – this refer to the mental capacity of the witness;
• Because attestation is an act of the senses. COMPETENCY CREDIBILITY
• Ability to comprehend what he is doing; same as
The “competency” of a person to His “credibility” depends on the
soundness of mind for contract; there must be some
be an instrumental witness to a will appreciation of his testimony and
degree of education.
is determined by the statute, that arises from the belief and
2. AT LEAST 18 YEARS OLD – this refers to the age of the witness
is the qualifications under Art. 820 conclusion of the Court that said
• Computed according to the calendar year
and 821. witness is telling the truth.
3. NOT BLIND, DEAF OR DUMB (or mute) – this refers to the physical
Competency as a witness is one thing, and it is another to be a credible
capacity of the witness
witness, so credible that the Court must accept what he says. Trial courts
• DUMB = mute! (not someone stupid!)
may allow a person to testify as a witness upon a given matter because
• This is important because these are the three senses
he is competent, but may thereafter decide whether to believe or not
you use for witnessing.
to believe his testimony.
4. ABLE TO READ AND WRITE – this refers to the literacy requirement
• Some degree of education to know the formalities of
Art. 822. If the witnesses attesting the execution of a will are competent at
the will
the time of attesting, their becoming subsequently incompetent shall not
5. DOMICILED IN THE PH – Citizenship is not a factor
prevent the allowance of the will. (n)
• Domicile – because of the great probability of being
called by the court to be a witness.
Q – When should the witness be qualified?
• Can a foreigner be a witness? YES, provided that they
• The competency or capacity to be a witness (1) is determined at
are domiciled in the PH.
the time of witnesses and (2) must have the 6 qualifications and
6. MUST NOT HAVE BEEN CONVICTED OF FALSIFICATION FO
none of the disqualification.
DOCUMENT, PERJURY, OR FALSE TESTIMONY – This refers to the
• JURIDICAL CAPACITY of the witnesses is determined at the time of
moral fitness of the witness.
the act – the execution of the will.
• Conviction has to be FINAL JUDGMENT
• This is the only TEMPORAL CRITERION in the determination of the
• These are crimes affecting the CREDIBILITY OR
competence of the witness.
TRUSTWORTHINESS of a person
• Q – Why not rape? Because chastity has nothing to do
Art. 823. If a person attests the execution of a will, to whom or to whose
with truthfulness. Thys, it is still okay if you are convicted
spouse, or parent, or child, a devise or legacy is given by such will, such
of murder or rape – in such a case, you can still be
devise or legacy shall, so far only as concerns such person, or spouse, or
honest.
parent, or child of such person, or any one claiming under such person or
• The gauge is truthfulness.
spouse, or parent, or child, be void, unless there are three other competent
witnesses to such will. However, such person so attesting shall be admitted
Q – If a will is executed abroad in a place where there is no one domiciled
as a witness as if such devise or legacy had not been made or given. (n)
in the Philippines although there are Filipino citizens not domiciled in the
Philippines does domicile requirement still apply?
BALANE – This is a misplaced provision. It should not be put here but on the
• There are two answers for all theory
section on the disqualification to inherit. It does not tell us that it
1. YES – the law does not distinguish

incapacitates a witness. It tells us of the incapacity of a witness to succeed.
2. NO – there is an implied qualification— The rule applies in
• This is a very wordy provision.
wills executed in the PH
• To be practical, there are two solutions –
Q – When is a witness disqualified to succeed to legacy or device?
1. You have 5 choices as to which law governs. Choose any.
• When there are only three witnesses.
2. Just execute a holographic will.
Q – Is the WILL void?
CASE – GONZALES V. CA
• NO. Not entirely void. Only the testamentary disposition in favour
• F – Testatrix’s will was submitted for probate. The oppossitor
of a witness is VOID.
contends that the will was not attested to by three credible
• The competence of the person as a witness is NOT affected. The
witnesses. Witnesses were driver of the testatrix, driver’s wife, and
will is perfectly valid but the witness (or relatives) cannot inherit.
piano teacher of testatrix’s grandchild. Contestant argued that
• They are counted as part of the 3 witnesses and valid as to the
witnesses must initially testify as to their good standing in the
other dispositions.
community, their reputation for trustworthiness and reliability,

JDLYRREVERRE | B2020 | SUCCESSION | ATTY. BALANE | CHAMP NOTES ANNOTATED | 25

GENERAL RULE – Witness, his spouse, parent, child, or person claiming under
any of them cannot inherit.
• EXCEPTION – There are three other witnesses to the will.
ILLUSTRATION
1. Testator A, Witnesses B, C, D. It is presumed that they are all
qualified to be witnesses. A, in a will, makes legacy to B, giving
him a car. Does it disqualify B to be a witness? No, it disqualifies B
to inherit. The legacy is void
2. If there were 4 witnesses. The legacy is given to B. Is the legacy
valid? Yes, because there are 3 other witnesses
3. If there are four witnesses, each one is given a devise or legacy.
a. Are they competent to be witnesses? Yes.
b. Are bequests to them valid? There are 2 views –
i. LIBERAL – Yes because for each of them,
there are three other witnesses
ii. STRICT – No, because this is an obvious
circumvention of Art. 823. Art. 823 has for its
purpose the prevention of collusion.
Q – Does this provision apply only to devises and legatees?
• NO. The disqualification to succeed (not to witness) extends as
well as to the heirs.
• The intent of the law is to cover all testamentary institutions.
the disqualification applies to testamentary dispositions made in
favor of the witnesses or the specified relatives.
• Hence, if the party is also entitled to a legitime or intestate share,
he will be able to succeed, and that portion is not affected by
the party’s witnessing the will.
Q – Why are the witnesses prohibited or incapable from succeeding?
• The witnesses must be objective to the validity of the will. They
must not have any interest in the will. if they have an interest such
as a devise or legacy, then obviously they will be a proponent to
the will's validity to protect their interest. They might perjure
themselves in the probate to protect their interest.
Art. 824. A mere charge on the estate of the testator for the payment of
debts due at the time of the testator's death does not prevent his creditors
from being competent witnesses to his will. (n)
Q – May creditors be witnesses?
• Absolutely yes.
• This is because the creditors DO NOT INHERIT, the payment of their
claims is not a testamentary disposition.
SUBSECTION 5. - CODICILS AND INCORPORATION BY REFERENCE
Art. 825. A codicil is supplement or addition to a will, made after the
execution of a will and annexed to be taken as a part thereof, by which
disposition made in the original will is explained, added to, or altered. (n)
ILLUSTRATION – In a will, "I give my car to A, July 2, 1995." Now, because I
want to specify which of my cars, I make a will stating "In my will of July 2,
1995, I gave a car to A. I want to clarify that I am giving him my BMW with
plate number.."
Q – When is a subsequent document a codicil and when is it another will?
1. It is a codicil when it explains, adds to, or alters a provision in a
prior will.
2. It is another will if it makes an independent disposition.
EXAMPLE
June 1, 1995, "I give my car to A."
July 1, 1995, "I give my house to B." This is a second will.
FOUR QUESTIONS
1. If original will is attested, can you make an attested codicil?
2. If original will is attested, can you make a holographic codicil?
3. If original will is holographic, can you make a holographic
codicil?
4. If the original will is holographic, can you make an attested
codicil?
ANSWER – Yes to all. The form of a codicil does not have to conform to the
form of the will. A will does not impose its form on the codicil. As long as the
codicil complies which the form of wills, it is valid. (Art. 826.)
Art. 826. In order that a codicil may be effective, it shall be executed as in
the case of a will. (n)
Q – What is a codicil? ART. 825. A codicil is
1. A supplement or addition to a will
JDLYRREVERRE | B2020 | SUCCESSION | ATTY. BALANE | CHAMP NOTES ANNOTATED | 26
2. Made after the execution of a will
3. Annexed to be taken as a part thereof
4. By which any disposition made in the original is
a. Explained
b. Added to, or
c. Altered
Q – Are codicils valid? Yes, provided ART. 826
• In order that a codicil may be effective, it shall be executed as
in the case of a will.
Q – How are codicils and subsequent wills different?
CODICIL SUBSEQUENT WILLS
Merely explains, adds to, or alters a Makes a separate and independent
disposition in a prior will and distinct dispositions
NOTE – The distinction is academic because a codicil follows the form of a will
anyway.
Q – Must the codicil conform to the form of the will to which it refers?
• No, the law does not require this. Thus, an attested will may have
a holographic codicil; a holographic will may have an attested
codicil
Art. 827. If a will, executed as required by this Code, incorporates into itself
by reference any document or paper, such document or paper shall not
be considered a part of the will unless the following requisites are present:
(1) The document or paper referred to in the will must be in existence
at the time of the execution of the will; (it must ante-date the will)
(2) The will must clearly describe and identify the same, stating
among other things the number of pages thereof;
(3) It must be identified (during probate) by clear and satisfactory
proof as the document or paper referred to therein; and
(4) It must be signed by the testator and the witnesses on each and
every page, except in case of voluminous books of account or
inventories. (n) **
Q – What do you incorporate?
• Generally, the documents that clarify provisions in the will to
which it is attached – inventories, sketches, books of account
Q – Can a document contain any testamentary disposition? Why?
• No. Because they do not conform to the requirements of wills.
Q – Can a will make reference to documents or paper? How will they
become part of the will?
• YES. The four enumerations under ART. 827 must concur.
1. Document must pre-exist the will. It must be in
existence when the will is made.
2. The will must refer to the document, stating among
other things the number of pages of the document.
3. The document must be identified during the probate
of the will as the document referred to in the will
4. It must be signed by the testator and the witnesses on
each and every page, except in case of voluminous
books of accounts or inventories.
• One very important requirement for the attached documents to
be valid – the documents, inventories, books of accounts,
documents of titles and other papers of similar nature should
under no circumstances, make testamentary dispositions.
• The incorporated document or paper must not make
testamentary dispositions, because only a will can do so.
Q – Can a document be incorporated in a holographic will considering that
the attached document must be signed by witnesses and that the
holographic will has no witnesses? There are 2 views.
a. YES – witnesses referred to by law should be taken to mean only
if there are witnesses to the will. There is no specification in the
law.
b. NO – The fourth requisite presupposes there were witnesses. It
seems to cover only attested wills. Since the article requires the
signatures of the testator AND the witnesses on EVERY page of
the incorporated document, it seems that only attested wills can
incorporate documents by reference, since only attested wills
are witnessed.
NOTE
• The requirements may be established by extrinsic evidence
(outside of the will) in the case of the first, third and fourth.
• The second requisite is established by the will itself.
• The purpose of this rule is for authentication, to prevent
substitution of the incorporated documents.
SUBSECTION 6. - REVOCATION OF WILLS AND TESTAMENTARY DISPOSITIONS 4. TRANSFORMATION, ALIENATION, OR LOSS OF THE OBJECT DEVISED
OR BEQUEATHED (Art. 957) 

Art. 828. A will may be revoked by the testator at any time before his death. 5. JUDICIAL DEMAND OF A CREDIT GIVEN AS A LEGACY (Art. 936) 

Any waiver or restriction of this right is void. (737a)
EXAMPLES
BALANE – One of the characteristics of a will is that it is ambulatory. It is not 1. ART. 1032 – Unworthiness to succeed – I instituted P as heiress, after
fixed, it is revocable. Revocability is an essential requisite of a will. So any which she killed my parents. The will instituting her as heiress is revoked
waiver or restriction of this right is void. There are no exceptions to this rule. by implication of law.
2. ART. 957 – Deals with the devise or legacy – transformation of the
Q – May a will be revoked by the testator? property by the testator – If I converted to a subdivision the fishpond
• Yes, at his pleasure and during his lifetime which I gave to T as devise.
• There is no such thing as an irrevocable will. See ART. 834 3. ART. 106 – Legal separation. The guilty spouse, who gave the ground
• The right to revoke cannot be waived by the testator. for legal separation, will not inherit and anything given to her is
impliedly taken away by law.
Q – Can the testator make a will irrevocable? 4. ART. 854 – Preterition annuls the institution of heirs.
• No. As long as he is alive, he can revoke will at pleasure.
Distinguish this from a donation inter vivos which cannot be BY SUBSQUENT WILL OR CODICIL
revoked at pleasure by the donor.
Q – What is revocation by subsequent will or codicil? What are the
Q – Why is revocation allowed? requisites?
• Because according to ART. 777, successional rights vests only 1. VALID REVOKING INSTRUMENT – The subsequent instrument must
upon death. comply with the formal requirements of a will
2. CAPACITY TO REVOKE – the testator must possess testamentary
Art. 829. A revocation done outside the Philippines, by a person who does capacity.
not have his domicile in this country, is valid when it is done according to • Insane persons cannot revoke
the law of the place where the will was made, or according to the law of 3. REVOKING CLAUSE – The subsequent will must either contain
the place in which the testator had his domicile at the time; and if the • EXPRESS REVOCATION – if the subsequent instrument
revocation takes place in this country, when it is in accordance with the expressly provides such revocation

provisions of this Code. (n) § REVOCATORY EFFECT: Normally, the prior will is
totally revoked, but really it depends on the
BALANE – This article is incomplete. It does not cover all situations. revocatory clause

• IMPLIED REVOCATION – if the subsequent instrument is
SUMMARIZE THE RULES ON REVOCATION inconsistent and contrary to such prior will
§ REVOCATORY EFFECT: Annul only such dispositions
MADE IN THE PH MADE OUTSIDE THE PH in the prior wills as are inconsistent with or contrary
Follow the PH Law DOMICILED IN THE RP NOT DOMICILED IN RP to those contained in the later wills (Art. 831)
1. Follow Philippine law 1. Follow the law of the § It may either be:
(consistently with the place where the will 1. total when all the provisions are
domiciliary principle was made, or 
 incompatible;
followed by this 2. Follow the law of the 2. partial when only some provisions are
article 
 place where the
2. Follow the law of the testator was
incompatible.
place of revocation domiciled at the time 4. PROBATED INSTRUMENT – see MOLO V. MOLO – That such
(consistently with the of the revocation subsequent will also be probated. Without probating, it cannot
principle of lex loci have the effect of revocation.
celebracionis in Art.
17) 
 NOTE – See Art. 832.
3. Follow the law of
place where the will
was made (by NOTE FURTHER – Mere subsequent wills do not ipso facto revoke prior wills. A
analogy with the rules person may die with two wills, this is not prohibited. There must be an express
on revocation where revocation (through a revocation clause) or a implied revocation (through
the testator is a non- incompatibility)
philippine
domiciliary)
BY PHYSICAL DESTRUCTION

BALANE – Note that the law follows the domiciliary theory. It is curious that it Q – What are the four ways of destroying under revocation by physical
departs from the nationality theory. destruction?
1. Burning
Art. 830. No will shall be revoked except in the following cases: 2. Tearing
(1) BY OPRATION OF LAW – By implication of law; or 3. Cancelling
(2) BY SUBSQUENT WILL OR CODICIL – By some will, codicil, or other 4. Obliterating
writing executed as provided in case of wills; or
(3) BY PHYSICAL DESTRUCTION – By burning, tearing, cancelling, or BALANE – This is the most unlimited way of revocation because it covers any
obliterating the will with the intention of revoking it, by the testator act of physical destruction. It is not an exclusive list but more or less covers
himself, or by some other person in his presence, and by his everything
express direction.
NOTE – This covers the entire gamut of destruction (nuclear bomb, flushing
If burned, torn, cancelled, or obliterated by some other person, in the toilet)
without the express direction of the testator, the will may still be
established, and the estate distributed in accordance therewith, Q – How must physical destruction be done?
if its contents, and due execution, and the fact of its 1. Testator personally

unauthorized destruction, cancellation, or obliteration are 2. Testator’s agent, provided it is done:
established according to the Rules of Court. (n) a. In the presence of such testator and
b. By his express direction
BY OPERATION OF LAW
NOTE – MOLO V. MOLO – both requisites must concur if the destruction is
NOTE – The revocation may be total or partial. done by the testator’s agent

Q – What is revocation by operation of law?

1. PRETERITION (Art. 854) – see discussion.
2. LEGAL SEPARATION (Art. 63, par. 4 of the Family Code) 

3. UNWORTHINESS TO SUCCEED (Art. 1032) 


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Q – How do you show the testator’s intention to revoke by physical
destruction.
ELEMENTS FOR PHYSICAL DESTRUCTION
CORPUS ANIMUS
Body Spirit
§ Act of destruction; the physical a. Capacity and intent to revoke
destruction itself b. The testator must have
§ There must be evidence of completed everything he
physical destruction (no matter intended to do – a completed
how small) act and finished intention such
as throwing it in the trash can
(nothing left for him to do)
NOTE – The corpus and animus must concur in order to produce a valid
revocation by physical destruction.
ILLUSTRATIONS
a. A blind testator asked his nurse to give him his will. The nurse gave
him his old. The testator thinking it is his will, threw it into the fire. In
this case, there is animus but letters.
no corpus. Revocation is
ineffective.
b. I threw my civil law exams. But it turned out it was my will.
Revocation is not valid. There is no animus or intent to revoke.
c. ABSENT OF CORPUS – I will revoke the will – but does not actually
destroy it. NO revocation since no physical destruction.
d. ABSENT OF ANIMUS – Testator tears the will into 2 pieces but tapes
it up later. No revocation as testator has not completed
everything he had intended to do. à Changing your mind
before you are done; intention was interrupted and aborted.
NOTE
• How much destruction of the corpus do you need? You need the
physical destruction of the will itself. Does it mean total
destruction of the will, so that nothing will be left? No. As long as
there is evidence of physical destruction, like let us say, edges
were burned. If only the cover was burned, there is no
revocation-- no corpus. If the destruction was not total, there is
still revocation, as long as there is/was evidence of the
destruction of the will, the destruction need not be total.
• A man cannot revoke the will effectively because of insanity.
• In case of tearing, there must be intent to revoke. That is, the
testator had completed what he intended to be done. If in the
act of tearing, the testator was dissuaded not to continue, is
there revocation? No, because the testator was not able to do
what he intended to be done.
§ EXAMPLE – If the testator tore the will into 2, and when he
was about to tear it into quarters, the heir asked for his
forgiveness. The testator said: "Just paste the will." Is there
revocation? None. There is no animus because he was
not able to complete what he intended to do.
• If the testator totally destroyed the will and he changed his mind,
is there revocation? Yes. The act was already consummated. His
remedy is to execute another will.
Q – Must it be total destruction?
 may be conceded, for that is a state of mind, yet that requisite
• No. As long as evidence on the face of the will shows act to
revoke.
Q – What is the effect of unauthorized physical destruction? ART. 830
• It may still be established
• The estate distributed in accordance with the Rules of court.
Q – What must be established?
§ Contents
§ Due execution
§ The fact of its unauthorized destruction, cancellation or
obliteration
Q – so the physically destroyed will may be probated?
• Yes, but Art. 830 refers only to attested will.
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EFFECT OF UNAUTHORISED DESTRUCTION – it depends if the will is attested or
holographic.
ATTESTED WILL HOLOGRAPHIC WILL
Art. 830 par. 3 and Rule 76, Sec. 6 of the Rules of GENERAL RULE – The
Court will CANNOT anymore
ART. 831, PAR. 3 – To give effect to an attested will which be probated if it is lost or
was destroyed without authority, the following must be destroyed, even if such
was unauthorized.
proved and established under the Rules of Court
1. The will’s contents 

2. Due execution, and 
 GAN V. YAP – This is
3. The fact of its unauthorized destruction 
 because in holographic
wills, the will itself must
be presented in
RULE 76, SEC. 6 ROC – No will shall be proved as a lost or
destroyed will unless the following are established probate. As the
document itself is the
1. The will’s execution and validity of the same be
only material proof of
established 

authenticity
2. The will has been in existence at the time of the
death of the testator, OR is shown to have been
EXCEPTION – RODELAS
fraudulently or accidentally destroyed in the
V. ARANZA – A copy of
lifetime of the testator without his knowledge 

the holographic will
3. The will’s provisions are clearly and distinctly
may be admitted into
proved by at least two (2) credible witnesses. 

probate
When a lost or destroyed will is proved, the provisions
thereof must be distinctly stated and certified by the
judge, under the seal of the court, and the certificate
must be filed and recorded as other wills are filed and
recorded.
How do you prove the things enumerated?
Present the
instrumental witnesses to the will and the notary before
whom it was acknowledged.
Q – What is another important requisite for revocation for all kinds?
• The testator must have capacity to revoke
• This is the same as the testamentary capacity.
CASE – ESTATE OF MALOTO V. CA – Corpus and animus must concur. One
without the other will not produce revocation.
• F – Petitioners and respondents are the neices/nephews or
Adriana Maloto who died in 1963. The four heirs believed that the
deceased did not leave a will, hesnce they filed an intestate
proceeding. However, the parties executed an extrajudicial
settlement of the estate dividing it into four equal parts. In 1967,
Atty. Sulpicio Palma, ex-associate of the deceased's counsel
allegedly discovered her last will which was purportedly dated
1940, inside a cabinet. Hence the annulment of the proceedings
and a probate petition was filed by the devisees and legatees.
The said will was allegedly burned by the househelp under
the instruction of the deceased. The lower court denied the
probate on the ground that the animus revocandi in the burning
of the will was sufficiently proven.
• H – It is clear that the physical act of destruction of a will, like
burning in this case, does not per se constitute an effective
revocation, unless the destruction is coupled with animus
revocandi on the part of the testator.
• In this case, while animus revocandi, or the intention to revoke,
alone would not suffice. “Animus revocandi is only one of the
necessary elements for the effective revocation of a last will and
testament. 

• The intention to revoke must be accompanied by the overt
physical act of burning, tearing, obliterating, or cancelling the will
carried out by the testator or by another person in his presence
and under his express direction. 
It is not imperative that the
physical destruction be done by the testator himself. It may be
performed by another person but under the express direction
and in the presence of the testator. Of course, it goes without
saying that the document destroyed must be the will itself. 

• It was not sufficiently established that the papers burned by the
maid was the will of the deceased. Even so, the burning was not
proven to be done under the express direction of the testator
and not in her presence.
Q – Is there a presumption of revocation?
• YES. See GAGO v. MAMUYAC.
PRESUMPTION OF REVOCATION – The loss or unavailability of a will may,
under certain circumstances, give rise to the presumption that it had been
revoked by physical destruction when
1. It is shown to have been in the possession of the testator, when
last seen, or
2. The testator had ready access to the will and it cannot be found
after his death.
CASE – GAGO V. MAMUYAC – The loss or unavailability of a will may, under
certain circumstances, give rise to the presumption that it had been
revoked by physical destruction.
• F – Previously, Francisco Gago filed a petition for the probate of
a will of Miguel Mamuyac executed on July 27, 1918. The
oppositors alleged that the said will was already annulled and
revoked. It appeared that on April 16, 1919, the deceased
executed another will. The lower court denied the probate of the
first will on the ground of the existence of the second will.
• Another petition was filed to seek the probate of the second will.
The oppositors alleged that the second will presented was merely
a copy. According to the witnesses, the said will was allegedly
revoked as per the testimony of Jose Tenoy, one of the witnesses
who typed the document. Another witness testified that on
December 1920 the original will was actually cancelled by the
testator. The lower court denied the probate and held that the
same has been annulled and revoked.
• H – The law does not require any evidence of the revocation or
cancellation of a will to be preserved. It therefore becomes
difficult at times to prove the revocation or cancellation of wills.
The fact that such cancellation or revocation has taken place
must either remain unproved or be inferred from evidence
showing that after due search the original will cannot be found.
• Where a will which cannot be found is shown to have been in the
possession of the testator, when last seen, the presumption is, in
the absence of other competent evidence, that the same was
cancelled or destroyed. The same presumption arises where it is
shown that the testator had ready access to the will and it
cannot be found after his death. 
 •
• It will not be presumed that such will has been destroyed by any
other person without the knowledge or authority of the testator.
The force of the presumption of cancellation or revocation by
the testator, while varying greatly, being weak or strong
according to the circumstances, is never conclusive, but may be
overcome by proof that the will was not destroyed by the testator
with intent to revoke it. 
 1. Will 1 (1995) – "I give my car to A."
• In a great majority of instances in which wills are destroyed for the
purpose of revoking them there is no witness to the act of
cancellation or destruction and all evidence of its cancellation
perishes with the testator. Copies of wills should be admitted by
the courts with great caution. When it is proven, however, by
proper testimony that a will was executed in duplicate and each
copy was executed with all the formalities and requirements of
the law, then the duplicate may be admitted in evidence when
it is made to appear that the original has been lost and was not
cancelled or destroyed by the testator. 
 validity the revocation depends, is equivalent to the non-
• B – Where the will cannot be located at the time of the death of
the testator but was shown to have been in the possession or
control of the testator when last seen, the presumption is that in
the absence of competent evidence to the contrary, the will was
cancelled or destroyed by the testator. The rationale is that it is
hard to prove the act of revocation of the testator. The
presumption is disputable.
• Q – In the case, what if the will was not seen in the possession of
the testator? Will there be the same presumption of revocation?
• The case does not say so. But by analogy, yes. The SC,
however, had not gone this far.
Art. 831. Subsequent wills which do not revoke the previous ones in an
express manner, annul only such dispositions in the prior wills as are
inconsistent with or contrary to those contained in the latter wills. (n)
BALANE – This is included as an element in revocation by subsequent
instrument.
Q – Again, how may revocation be done by subsequent will?
• It must contain either an express Revocatory clause or an implied
one through incompatibility.
• The execution of a subsequent will does no ipso facto revoke a
prior one.
Art. 832. A revocation made in a subsequent will shall take effect, even if
the new will should become inoperative by reason of the incapacity of the
heirs, devisees or legatees designated therein, or by their
renunciation. (740a)
Q – So, what is the effect of revocation by subsequent will?
• The first will remains revoked.
• Revocation is an absolute provision.
• It is independent of the acceptance or capacity of the new heirs.
JDLYRREVERRE | B2020 | SUCCESSION | ATTY. BALANE | CHAMP NOTES ANNOTATED | 29
• The efficacy of the Revocatory clause does not depend on the
testamentary disposition of the revoking will, unless the testator so
provides.
RULES
• GENERAL RULE – DOCTRINE OF ABSOLUTE REVOCATION – The
revocation of a prior will by means of a subsequent will is
absolute. Such revocation does not depend on:
1. Capacity of heirs, devisees, and legatees in the 2nd
will; or
2. On their acceptance.
§ The first one is forever revoked.
§ The revocation will be operative even the heirs, devisees,
or legatees named in the revoking will are disqualified or
they renounce.
§ EXAMPLE
1. Will 1 (1995) – "I give my house and lot to A."
2. Will 2 (2997) – "I give my house to B and hereby
revoke my first will."
§ Suppose, upon the testators' death, B renounces or is
incapacitated, what is the effect? The institution of A is
still revoked. House and lot will go by intestacy. The first
will not be revived by the reason of the inoperation of
the revoking will due to its renunciation or the incapacity
of heirs, devisees, or legatees in it. The rationale is that
the second will was valid except that it was rendered
inoperative.
EXCEPTION – DOCTRINE OF DEPENDENT RELATIVE REVOCATION –
Revocation of the first will is made by the testator to be
dependent on the capacity and acceptance of the heirs,
devisees, and legatees of the subsequent will. How do you
know? The testator said so in the subsequent will.
§ In this case, the first will is not necessarily revoked.
§ EXAMPLE
2. Will 2 (1997) – "I give my car to B. Such legacy is
dependent upon the capacity and acceptance
of B."
• The institution of B is conditional.

• Primary institution – B;
• Secondary institution – A.
Q – What is this Dependent Relative Revocation? See MOLO V. MOLO
• The failure of the new testamentary disposition, upon whose
fulfillment of a suspensive condition, and hence prevents the
revocation of the original will. But a mere intent to make at some
time a will in place of that destroyed will not render the
destruction conditional. It must appear that the revocation is
dependent upon the valid execution of a new will.
• The revocation of the first will is considered conditional and
dependent upon the efficacy of the new disposition. If for any
reason the new will intended to be made as a substitute
becomes inoperative, the revocation fails, and the original will
remains in full force.
Q – What if the institution of heirs, legatees, or devisees in the subsequent
will is subject to a suspensive condition, is the revocation of the prior will
absolute or conditional? 

• It always depends on the testator’s intent. If the subsequent will
contains a revocatory clause which is absolute or unconditional,
the revocation will be absolute, and the happening or non-
happening of the suspensive condition will be immaterial. If,
however, the testator states in the subsequent will that the
revocation of the prior will is subject to the occurrence of the
suspensive condition, or if the will does not contain a revocatory
clause, the revocation will depend on whether the condition
happens or not.
• If the suspensive condition on which an institution depends does
not occur, the institution is deemed never to have been made
and the prior institution will be efficacious. This is in accord with
the juridical nature of suspensive conditions, and is an instance
of dependent relative revocation
Q – What is essential for the applicability of dependent relative revocation?
• It applies only if the testator intended his act of revocation to be
conditioned on the making of a new will or on its validity or
efficacy.
Q – Is the rule of dependent relative revocation applicable if the revocation
of the will is by physical destruction?
• In Molo, the Supreme Court held, in an obiter, that the physical
destruction of the will did not revoke it (meaning first will subsists),
on the inference, drawn by the Court, that the testator meant
the revocation to depend on the validity of a new one.
CASE – MOLO V. MOLO
• F – Marcos Molo executed 2 wills, one in August 1918 and another
in June 1939. The latter will contained a revocation clause which
expressly revoked the will in 1918. He died without any forced
heirs but he was survived by his wife, herein petitioner Juana. The
oppositors to the probate were his nephews and nieces. Only a
carbon copy of the second will was found. The widow filed a
petition for the probate of the 1939 will. It was admitted to
probate but subsequently set aside on ground that the petitioner
failed to prove its due execution. As a result, the petitioner filed
another petition for the probate of the 1918 will this time. Again
the oppositors alleged that said will had already been revoked
under the 1939 will. They contended that despite the
disallowance of the 1939 will, the revocation clause is valid and
thus effectively nullified the 1918 will.
• I – Whether the 1918 will can still be valid despite the revocation
in the subsequent disallowed 1939 will
• H – Yes. The court applied the doctrine laid down in Samson v.
Naval that a subsequent will, containing a clause revoking a
previous will, having been disallowed for the reason that it was
not executed in accordance with law cannot produce the
effect of annulling the previous will, inasmuch as the said
revocatory clause is void.
• There was no valid revocation in this case. No evidence was
shown that the testator deliberately destroyed the original 1918
will because of his knowledge of the revocatory clause
contained in the will executed in 1939.The earlier will can still be
probated under the principle of dependent relative
revocation.The doctrine applies when a testator cancels or
destroys a will or executes an instrument intended to revoke a will
with the intention to make a new testamentary disposition as
substitute for the old, and the new disposition fails of effect for
some reason.
• B – In Molo, the testator executed a subsequent will 21 years after
execution a prior will. The subsequent will contained a revocation
clause but was NOT admitted into probate for failure to comply
with the requirements of law. Thus, the subsequent will was void.
The court held that the first will was still effective and not
considered revoked since the the subsequent will containing the
revocatory clause was void. Thus, if the will is void, the revocatory
clause in such will is likewise void and inefficacious.
• Apart from the fact that the statement is obiter (the facts did not
clearly show that the will had been destroyed), it is arguable
whether the prior will should be deemed to subsist despite its
physical destruction. Can it not be argued that the act of the
testator in destroying the will in fact confirmed his intent to revoke
it? Was the Supreme Court not drawing too remote an
inference? The case of Diaz v. De Leon might be more instructive.
• The prior will should not be given effect because by physical
destruction, the testator definitely shows his intent to revoke it.
First by executing a subsequent will with a revocation clause and
second by physical destruction. So why would you give effect to
such prior will? 
 because all transactions based on mistake are vitiated, that is,
CASE – DIAZ V. DE LEON
• F – The testator, shortly after the execution of the first will in
question, asked that the same be returned to him. The instrument
was returned to the testator who ordered his servant to tear the
document. Thus, in this case, a subsequent will was executed by
the testator which contained a revocation clause to revoke his
prior will. The testator also revoked the prior will by means of
physical destruction. However, the subsequent will was later
disallowed in probate as it did not comply with the requirements
of validity. The issue was whether or not the prior will should be
given effect 
 revoke my designation of B because I have just found out that
• H – Court said it should NOT be given effect. The intention of
revoking the will is manifest from the established fact that the
testator was anxious to withdraw or change the provisions he had
made in his first will. This fact is disclosed by the testator’s own
statements to the witnesses. The original will herein presented for
probate having been destroyed with animo revocandi, cannot
now be probated as the will and last testament. 
 •
• B – Thus, if the prior will was revoked not only by express
revocation by a subsequent will but also with physical destruction
it can be said that the intent of the testator was to definitely
JDLYRREVERRE | B2020 | SUCCESSION | ATTY. BALANE | CHAMP NOTES ANNOTATED | 30
revoke such prior will. It seems that the doctrine of Dependent
Relative Revocation is NOT applicable to give it effect. 

• For DRR to apply, it must clearly appear that the testator intended
the first will to be effective if the subsequent will later turns out to
be void or ineffective. 

NOTE – In order to revoke the first will, the second or subsequent will must be
valid and probated. A revoking will must be probated.
Art. 833. A revocation of a will based on a false cause or an illegal cause is
null and void. (n)
RULE – A revocation of a will based on a false cause or an illegal cause is
VOID.
• BALANE – If the principle is that a will is revocable ad nutum, then
it should indeed be revocable at pleasure, whatever the
testator’s motives or reasons might be, and however impure or
blemished they might be, as long only as he acts freely and
knowingly. A testamentary disposition is, after all, a gratuitous
grant, and can be withdrawn for any reason, or for no reason.
The rule in this article regarding nullity of revocation for an illegal
cause limits this freedom, albeit for laudable public policy
considerations
Q – Are wills revocable?
• Yes. Wills are revocable ad nutum, at the pleasure of the testator.
Q – Must the testator have reason for revoking?
• GENERAL RULE – No, he need not have a reason or cause for
revoking.
Q – What is the exception? Are all causes valid reasons for revocation?
• NO. When there is a (1) false or (2) illegal cause – the revocation
is not given effect / the revocation is null and void – the first will
subsists.
Q – What are the requisites for the nullification of the revocation?
1. The cause must be concrete, factual and not purely subjective –
this means that to have a valid revocation, the cause must be
totally subjective (blind and irrational prejudice)
a. BALANE – If, for example, a testator were to revoke on
the stated ground that he has learned that the heir
was an Ilocano and all Ilocanos are bad, the
revocation would be valid. The ground is blind and
irrational prejudice (as all prejudices are) but a purely
subjective one and will not invalidate the revocation
under this article
2. The cause must be false
3. The testator must NOT know of its falsity
4. It appears on the face of the will that the testator is revoking
because of the false cause.
5. The illegal cause must be stated in the will as the cause of
revocation.
Q – Is this article violative of the right to revoke, even without reason?
• No. The testator need not have a reason to revoke his will. He
may revoke it capriciously or whimsically at pleasure. But if the
revocation is due to mistake or is based on some cause and such
cause was later proven to be false, then the revocation is void
you are acting on a false cause of facts. The cause, however,
must be stated in the will. This shows respect for the freedom of
the testator to revoke, that his real intent be followed.
EXAMPLE
a. BASED ON FACT (KIND OF DEPENDENT RELATIVE REVOCATION
BECAUSE HE WOULD REVOKE ONLY IF HIS INFORMATION IS TRUE.)
– I instituted C as my heir. Later, I heard that it was C who killed
my brother in Davao. So, I revoked my will. But it turned out that
C did not do it. Revocation therefore is void.
b. BASED ON IMPRESSION – I give my car to B who is from Manila. I
she is from Quezon and I hate people from Quezon because they
are arrogant and obnoxious. Is the revocation valid? Yes.
Because the revocation is based on impression or is out of
caprice, prejudice, or unfounded ethnic opinion.
Q – How about revocation by physical destruction?
Note that the Rule in Art. 833 does NOT apply in case the mode
of revocation was physical destruction (complete destruction
rather) of a holographic will – such as by burning, tearing or
obliterating the will in a manner as to completely destroy the will
 • If the revoked will is holographic, and the revocation is invalid, Q – So what must the testator do to republish a will void for non-formal
and hence preserving the first will, probate of the first will still not defect, or previously revoked will?
be possible (GAN V YAP) unless a copy survives (RODELAS V. • The testator should execute a new will or codicil, referring to the
ARANZA) previous will.
• There is no need to reproduce or copy out the provision of the
Q – What if the holographic will was revoked by physical destruction but the prior void will.
cause is false or illegal, but the will is merely cancelled or it can still be read
as it was not completely destroyed? ART. 835 ART. 836
• It seems like the will is still valid as the revocation is void under Art. Void as to Form Void as to
833 
 1. Non-formal defect
2. Previously revoked
Art. 834. The recognition of an illegitimate child does not lose its legal effect, How to republish How to republish
even though the will wherein it was made should be revoked. (714) 1. Execute new will or codicil 1. Execute new will or codicil
2. Copy out the provision form 2. Simply make references to
BALANE – This provision is particularly true under the NCC before the original void will the original void will
enactment of the FC. One of the modes of recognition was by a will. Reference to original is INSUFFICIENT Reference to original is SUFFICIENT
• The part of the will wherein the testator acknowledges an
illegitimate child is non-revocable. Art. 837. If after making a will, the testator makes a second will expressly
• Even if the will is revoked, recognition is valid. revoking the first, the revocation of the second will does not revive the first
• Recognition is an irrevocable act. Why? Because it is not a will, which can be revived only by another will or codicil. (739a)
testamentary act but an act which under the law admits a
relationship of paternity. BALANE – This provision is crazy!!!
• Recognition is NOT an act of disposition. 

• The same rule is still applicable under the FC. SITUATION X makes a will in 1993 (Will 1)

X makes a will in 1994 expressly revoking will 1. (Will 2.)
SUBSECTION 7. - REPUBLICATION AND REVIVAL OF WILLS X makes a will in 1995 revoking will 2. (Will 3.)

Art. 835. The testator cannot republish, without reproducing in a subsequent Revocation Instanter – instantly

will, the dispositions contained in a previous one which is void as to its Will 1 is not revived because its revocation was instant
form. (n) The revocation of Will 2 will not revive Will 1

Art. 836. The execution of a codicil referring to a previous will has the effect EXCEPTIONS – in these cases, the first will is not revoked, and is still effective.
of republishing the will as modified by the codicil. (n) The first will can be revived only by another will or codicil
1. Will 3 expressly revives Will 1.

BALANE 2. Will 3 reproduces provisions of Will 1.
• ART. 835 is derived from Argentine Code. If you want to revive a 3. *Where the second will is holographic and it is revoked by
will which is void as to its form, you must republish the will and just complete physical destruction, because then, the possibility of its
cannot refer to it. probate is foreclosed (GAN VS. YAP, SUPRA, ARTICLE 811), UNLESS
o EXAMPLE – Attested will which just 2 witnesses. You a copy survives (RODELAS VS. ARANZA)
discovered the mistake later on. You cannot just 4. *If the second will is invalid or cannot be admitted into probate
republish it. You have to write it all over again.
• ART. 836 is derived from the California code. The mere reference Q – What is the reason for non-revival of Will 1?
to a previous will will revive it • Theory of instant revocation
• Result of the two articles: Chaos! How to reconcile? Look at • The Revocatory effect of Will 2 is immediate.
Tolentino.
 • But such theory is inconsistent with the principle that wills take
o Art. 835 explicitly refers to wills void as to form. Cause effect only upon death.
of the nullity is the defect in the form. You must • BALANE – This is a funny provision!!
reproduce the dispositions in a subsequent will.

o Art. 836 applies if the reason of nullity is other than SUCCESSION PRINCIPLE ART. 837
defective form Will takes effect upon death. Gives the Will 2 effects ante
§ Underage testator, fraud, under duress. You mortem, even if the testator is still
may republish or refer to the will alive. It makes the will operative
§ "I hereby republish and revive my will of even if the testator is alive.
Oct. 15, 1995..." Said republication was Revocability of wills Makes it irrevocable
made after the discovery of the reason of
the nullity.
Q – What is funny about it?
• Because in order for the revocation of Will 1 to be effective, the
Q – What is republishing?
second will must be probated. But the Will 2 has already been
• To give efficacy to a will previously voided.
revoked by Will 3.
• It suggests that revoked wills (Will 2) are still submitted for probate.
Q – What is void as to form?
• Those that do not comply with (ART 804-804; 810-814 and 818 –
Q – Does this provision apply to all kinds of revocation of Will 2?
819)
• NO. This provision only applies if the revocation of Will 1 by Will 2
is express – only EXPRESS REVOCATION
Q – What if the testator has no testamentary capacity is this a formal defect?
• If the Will 1 is revoked by Will 2 only IMPLIEDLY – The revocation of
• BALANE – It is not a formal defect since it’s not a formal
the Will 2 by Will 3 survives Will 1, unless Will 3 itself is inconsistent or
requirement under the Articles 804-808; 810-814; 818 and 819. But
incompatible with Will 1. In such cases, Art. 837 does not apply.
under Art. 839 which pertains to grounds for disallowance of wills
into probate based on formal defects, it is a ground for
EXPRESS REVOCATION IMPLIED REVOCATION
disallowance.
Will 1 by Will 2 Will 1 by Will 2
Q – What must the testator do to republish a will VOID as to its form? Art. 837 will apply. Art. 837 will NOT apply.
• Just execute a new will and reproduce or copy out the EFFECT – The Will 3 EFFECT
dispositions of the original will. revoking Will 2 will NOT
• Mere reference to that (void) will will not do. revive Will 1. GENERAL RULE – the Will 3 revoking Will 2
revives Will 1.
Q – How about void as to other causes or defects? Other causes for voiding
a will (other than for form) EXCEPT – Will 3 itself is inconsistent with Will 1
1. Void for non-formal defect
2. Void for being previously revoked. ANOTHER EXCEPT – When Will 2 is holographic
and it is revoked by physical destruction,
probate is no longer possible, unless a copy
survives.
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 SUBSECTION 8. - ALLOWANCE AND DISALLOWANCE OF WILLS
Art. 838. No will shall pass either real or personal property unless it is proved
and allowed in accordance with the Rules of Court.
The testator himself may, during his lifetime, petition the court having
jurisdiction for the allowance of his will. In such case, the pertinent provisions
of the Rules of Court for the allowance of wills after the testator's a death
shall govern.
The Supreme Court shall formulate such additional Rules of Court as may be
necessary for the allowance of wills on petition of the testator. (Ante Mortem
Probate)
Subject to the right of appeal, the allowance of the will, either during the
lifetime of the testator or after his death, shall be conclusive as to its due
execution. (n)
BALANE – The second and third paragraphs have become moot and
academic since they are merely transitory provisions pending the
promulgation by the SC of rules, which they have already done. Rules on
probate—both post-mortem and ante- mortem are found in Rule 76 of the
Rules of Court.
Q – What is probate?
§ It is a judicial proceeding where the will is “TESTED” for it
compliance with the FORMAL VALIDITY of wills.
§ It is the first part of 2 stages in a settlement proceeding.
1. PROBATE OF WILL – extrinsic validity
2. SETTLEMENT PROPER – intrinsic validity.
§ GUEVARA V. GUEVARA – The probate of wills is MANDATORY.
§ No will shall pass either real or personal property unless it is proved
and allowed in accordance with the Rules of Court (Rule 72)
not disregard the provisions of the will unless they are contrary to
law.
§ The suppression of wills is contrary to law and public policy,
because unless the will is probated and notice thereof is given to
the whole world, the right of a person to dispose of his property
by will may be rendered nugatory. Absentee devisees and
legates could be cheated of their inheritance thru the collusion
of some of the heirs who might agree to partition of the estate
among themselves to the exclusion of others.
§ The probate of a will is a proceeding in rem, and cannot be
dispensed with and substituted by any other proceeding, judicial
or extrajudicial, without offending public policy. No intestacy.
Probate of will is mandatory.
§ B – The presentation of a will to the court for probate is mandatory
and its allowance by the court is essential and indispensable to
its efficacy. This rule is only for holographic wills, in the case of
attested wills, it must be presented also but if it is destroyed,
without authority, it can still be probated by testimony of the
attesting witnesses
FINALITY OF A PROBATE DECREE
Once a decree of probate becomes final in accordance with the rules of
procedure, it is res judicata or conclusive as to the will’s due execution
and formal or extrinsic validity, but not to its substantive or intrinsic validity.
Q – What is a decree of probate?
§ A DECLARATION of the court that the will in question conforms to
requirements for formal validity.
Q – What is the effect of a decree of probate?
§ It is conclusive of its due execution.
§ DE LA CERNA V. POTOT – It is res judicata.

BALANE – Probate cannot be foregone, even if the heirs choose to do so. CASE – DE LA CERNA V. POTOT
But the heirs can partition the estate after the will has been probated, even § F – Spouses Bernabe Dela Cerna and Gervasia Rebabca
if the partition is against the wishes of the will. executed a joint will where they gave two (2) parcels of land to
Manuela Rebaca, a niece, as they didn't have their own child.
Q – What are the kinds of probate? When Bernabe died, the said will was probated in 1939. Another
1. POST MORTEM – After the testator’s death – at the instance of any petition for probate of the same will insofar as Gervasia was
interested party concerned was filed in 1952 but due to the failure of the
2. ANTE-MORTEM – During the testator’s lifetime – at the instance of petitioner (Manuela) to appears, the same was dismissed in
the testator. 1954. The CA reversed and allowed the probate on the ground
that the 1939 decision on the allowance of the will into probate
EFFECT – It is subject to appeal but once final, it becomes conclusive or res as the husband’s was conclusive on the will’s due execution. 

judicata as to its due execution and testamentary capacity of the testator § H – The final decree of probate has conclusive effect as to his last
(extrinsic validity.) will and testament, despite the fact that even then the Civil Code
already decreed the invalidity of joint wills. (There was an error on
ANTE-MORTEM PROBATE the court but the decree has now become final.)
ADVANTAGES DISADVANTAGES § The lower court committed error in allowing the joint will but
1. Easier for the court to Otios – superfluous, futile. having given a final judgment on the probate, the same is
determine the mental binding upon the whole world. It does not affect the
condition of the testator – since Why? Because the testator can conclusiveness of its final decision, however erroneous. The courts
he is still alive (You can prove easily make a subsequent will have spoken with finality when the will was probated.
the capacity of the testator) revoking it. § B – Thus, the joint will is valid as the husband’s will (by reason of
2. Fraud, intimidation and undue res judicata) BUT void as to the wife. Thus, in this case, a void will
influence are minimized. So unless the testator is very sure, it (due to formal defects) may be given effect if probated and
3. Lessens the number of contests might be useless to have an ante- allowed, because of res judicator 

upon wills mortem probate.
4. *There is opportunity to change Q – Is there an exception to this rule of finality of probate decree?
5. *It eases the mind of the § YES – In case of ante-mortem probates, since the testator is still
testator alive, the testator may still revoke the will, even if such will had
already been probated and even if such was considered
CASE – GUEVARA V. GUEVARA already res judicata.
§ F – Victorino executed a will which was never presented to court § Also see GALLANOSA V. ARCANGEL
for probate. It appeared that only his son Ernest possessed the
land which he adjudicated to himself. While Rosario who had the Q – when does probate attain validity?
will in her custody, did nothing to invoke the acknowledgment, • It depends. After the period for filing an appeal has lapsed or
as well as the devise given to her. upon filing of an appeal and the same is submitted for decision.
§ Respondent Rosario sought to recover a parcel of land sold to Follow rules on appeal.
petitioner, claiming that said land was part of her legitime. To
support her claim, respondent presented the will before the court SCOPE OF A FINAL DECREE OF PROBATE
to prove that she was acknowledged by testator as his natural
child, and only for that purpose (i.e. not for probate). Respondent A final decree of probate is conclusive only as to the due execution of the
claimed to be an intestate and compulsory heir of decedent. 
 will, as it is only concerned about a will's extrinsic or formal validity only, not
§ H – That the procedure adopted by respondent cannot be its substantive or intrinsic validity.
sanctioned because presentation of will to court for probate is
mandatory, and its allowance essential and indispensable for its Q – What is the scope of the final decree of probate? What are the matters
efficacy. 
 considered final and conclusive and res judicata?
§ If the decedent left a will and no debts and Heirs, Devisees and § Only the due execution of the will.
Legatees desire to make an extrajudicial partition of the estate, § Only the extrinsic or formal validity.
they must first present the will to the court for probate. They may

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 § You can refer to the Gallanosa and Dorotheo Cases or the
grounds in Art. 839, all of which enumerates what is covered by
probate
CASE – GALLANOSA V. ARCANGEL (remember the dates)
§ F – Florentino Gallanosa executed a will in 1938 when he was 80
years old. He died. The said will was admitted to probate on JUNE
1939 with Gallanosa as executor. In 1952, the legal heirs filed an
action for the recovery of said 61 parcels of land. The action was
dismissed on the ground of res judicata. Then on 1967 or 15 years
after dismissal of the case or 28 years after probate, another
action against Gallanosa for annulment of the will, recovery of
the lands alleging fraud and deceit, was filed. As a result, the
lower court set aside the 1939 decree of probate.
§ H – A final decree of probate is RES JUDICATA. DUE EXECUTION
means that the testator was of sound and disposing mind at the
time of the execution and that he was not acting under duress,
menace, fraud or undue influence. Finally, that it was executed
in accordance with the formalities provided by law.
§ Barred by prescription – The period for seeking relief under Rule
38 has already expired, hence the judgment may only be set
aside on the grounds of, 1) lack of jurisdiction or lack of due
process of law, and 2) the judgment was obtained by means of
extrinsic collateral fraud (which must be filed within 4 years from
the discovery). Finally, Art. 1410 cannot apply to wills and
testament.
§ NOTE – Gallanosa enumerates what are covered by or included
in the term “formal validity” and therefore are conclusively
settled by a final decree of probate:
1. That the testator was of sound and disposing mind 
 CASE – NEPOMUCENO V. CA
2. That his consent was not vitiated 
 §
3. That the will was signed by him in the presence of the
required number of witnesses, and 
 wife. When the common-law wife sought the probate of the will,
4. That the will is genuine 
 the CA declared the will valid, but held the devise to the
• These facts cannot be questioned again in a subsequent
proceeding, not even a criminal proceeding After the finality of
the allowance of will, the issue as to the voluntariness of its
execution cannot be raised anymore. It is considered a
proceeding in rem and binding upon the whole world.
• AUSTRIA V. VENTENILLA – a petition for annulment of a will was not
entertained after the decree of probate had become final.
§ B – As to number 3, it would be better to state it thus: “that all the
formal requirements of the law have been complied with
JOINT WILLS
ATTESTED HOLOGRAPHIC
(MISC. REQ)
Articles 804-808 Articles 804, 810-814 Art. 818 - 819
& Articles 820-821 and Articles 818-819
Q –What if after the probate court becomes final a person was charged
with forgery of the will, can he can he be convicted?
§ No, the probate is conclusive as to the will's genuineness even
against the state.
c. Will genuine, not a forgery 

d. Proper testamentary age 

e. The testator is not expressly prohibited by law from
making a will 

BALTAZAR V. LAXA – Extrinsic validity pertains to whether the testator, being
of sound mind, freely executed the will in accordance with the requisites
prescribed by law.
EXCEPTION TO THE SCOPE OF PROBATE
A probate court may pass upon the will’s intrinsic validity if it is intrinsically
void on its face.
GENERAL RULES
1. A decree of probate there, does not concern itself with the
question intrinsic validity.
2. The probate court should NOT PASS upon such issue in the first
stage. There is a proper time for that – during the settlement
proper stage.
EXCEPTION
§ If it appears on the ace of the will that it is intrinsically void, the
probate of the will might be an idle ceremony.
§ The substantive validity may be passed upon on the first stage if
patent on the face of the will that the same is void.
§ NEPOMUCENO V. CA – Practical consideration demand that the
intrinsic validity of the will be passed upon even before probate.
F – In the case, the testator left his entire estate to his legal wife
and children but devised the free portion to his common-law
common- law wife null and void for being contrary to Art. 739 of
the NCC. In effect, the court ruled on the intrinsic validity of the
will in the probate proceedings. Was the holding of the CA
correct?
§ H – In this case, the dispositions in the will were found to be
intrinsically void on its face since the testator himself admitted
that he was co-habiting with his common-law wife while legally
married to another.
§ The general rule is that in probate proceedings, the court’s area
of inquiry is limited to an examination and resolution of the
extrinsic validity of the Will. The rule, however, is not inflexible and
absolute. 

§ In view of certain unusual provision in the will, which are dubious
legality, the court may pass upon the will’s intrinsic validity even
before its formal validity has been established.
§ B – It seems, therefore, that, on the authority of Nepomuceno
and the cases there cited, a probate court may pass upon the
issue of intrinsic validity if on the face of the will, its intrinsic nullity
is patent. 


CASE – DOROTHEO V. CA Art. 839. The will shall be disallowed in any of the following cases:
§ F – Aniceta Reyes died in 1969 without her estate being settled. 1. If the formalities required by law have not been complied with;
Thereafter, her husband Alejandro also died. In 1977, Lourdes 2. If the testator was insane, or otherwise mentally incapable of
Dorotheo filed a special proceeding for the probate of making a will, at the time of its execution;
Alejandro’s last will and testament. The children of spouses filed 3. If it was executed through force or under duress, or the influence
their opposition. The RTC ruled that Lourdes being not the wife of of fear, or threats;
Alejandro the will is intrinsically void; the oppositors are the only 4. If it was procured by undue and improper pressure and influence,
heir entitled to the estate. Lourdes filed a Motion for on the part of the beneficiary or of some other person;
Consideration arguing that she is entitled to some compensation 5. If the signature of the testator was procured by fraud;
since she took care of Alejandro prior to his death although they 6. If the testator acted by mistake or did not intend that the
were not legally married to each other. This was denied by the instrument he signed should be his will at the time of affixing his
trial court. signature thereto. (n)
§ H – A final and executor decision or order can no longer be
disturbed or reopened no matter how erroneous it may be. Q – Are the ground for disallowance of wills exclusive?
§ The Supreme Court ruled that the will of Alejandro was § YES
extrinsically valid but the intrinsic provisions thereof are void.
Alejandro gave all the property to the concubine. Q – What is the effect if these grounds are present?
§ This case also enumerates what formal validity encompasses: 
 § It sets aside as void the will.
1. Whether the will submitted is indeed the decedent’s § A will is either valid or void only. There is no such thing as voidable will.
last will and testament; 
 § Even if consent is vitiated, it is still void.
2. Compliance with the prescribed formalities for the
ENUMERATION
execution of wills;
1. Formalities. – Art. 805 et seq. 

3. Testamentary capacity

2. Insanity – Art. 799 

4. Due execution of the will 3. Force and violence – Art. 1335 par. 1 
while duress and intimidation –
§ DUE EXECUTION MEANS Art. 1335 par. 2 

a. The testator’s sound and disposing mind; 
 4. Undue and Improper pressure and influence – Art. 1337 

b. Freedom from vitiating factors (duress, menace, 5. Fraud – Art. 1338 

undue influence); 
 6. Mistake – Art. 1331. 

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 SECTION 2. - INSTITUTION OF HEIR
BALANE – The rules on institution of heir set forth in the provisions of this
Section, apply as well to institution of devisees and legatees. Thus, when the
provisions in this section refers to “heirs”, it is taken to mean that it includes
the devisees and legatees as well.
Art. 840. Institution of heir (devisee or legatee) is an act by virtue of which a
testator designates in his will the person or persons who are to succeed him
in his property and transmissible rights and obligations. (n)
BALANE – The only way to institute an heir is by making a will. Note that the
right of the testator to institute persons to succeed only covers the “free
portion” of his estate. The legitime is NOT subject to institution because it is
reserved for the compulsory heirs. He can, of course, dispose of the entire
estate if he has no compulsory heirs
Art. 841. A will shall be valid even though it should not contain an institution
of an heir, or such institution should not comprise the entire estate, and even
though the person so instituted should not accept the inheritance or should
be incapacitated to succeed.
In such cases the testamentary dispositions made in accordance with law
shall be complied with and the remainder of the estate shall pass to the
legal heirs. (764)
ART. 841 APPLIES WHEN THE ENTIRE ESTATE OF FREE PORTION IS NOT DISPOSED
1. The will does not contain an institution of an heir (does not contain
any testamentary disposition) 
 •
2. The institution does not cover the entire estate, and 
 no doubt as to the testator’s intention
3. The person instituted should not accept the inheritance (heir is
unwilling) 
 compliance with the testator’s wishes.
4. The person instituted is incapacitated to succeed (heir is unworthy) 

BALANE
1. Even if there is no institution of an heir, the will is valid, but it is
useless unless it acknowledges an illegitimate child or disinherits a
compulsory heir.
2. If the institution does not cover the entire estate, the excess shall
either go to the compulsory heirs or by intestacy. (Mixed
succession.)
3. How much can the testator dispose of from his estate? He can
dispose all, except when there are compulsory heirs. In such a
case, he can only dispose of the free portion.
4. GENERAL RULE: If the will does not institute an heir, it need not be
probated.
a. EXCEPTION: Even if it does not institute an heir, if any of
the following are present:
i. When the will recognizes an illegitimate
child;
 heir. (773a)
ii. When it disinherits a compulsory heir
iii. When it instituted an executor.
5. If the instituted heir should repudiate or be incapacitated to
inherit, then legal succession takes place.
Art. 842. One who has no compulsory heirs may dispose by will of all his
estate or any part of it in favor of any person having capacity to succeed.
One who has compulsory heirs may dispose of his estate provided he does
not contravene the provisions of this Code with regard to the legitime of
said heirs. (763a)
Q – How much may the testator dispose in his will? It depends whether the
testator has compulsory heirs.
NO COMPULSORY HEIRS LEAVES COMPULSORY HEIRS
The entire hereditary estate
 The disposable or free portion only
(the net hereditary estate minus
the legitimes)
The testator can disinherit his The amount of the legitimes
compulsory heirs but the only way depends on the kinds and number
to do this is to make a will of compulsory heirs. Various
combinations are possible. Thus,
the amount of the disposable
portion is also variable.
NOTE – In either case, if he still disposes only less than what he is entitled to,
the remainder passes by intestacy or intestate succession. But legitimes still
pass by strict operation of law.
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Art. 843. The testator shall designate the heir by his name and surname, and
when there are two persons having the same names, he shall indicate some
circumstance by which the instituted heir may be known.
Even though the testator may have omitted the name of the heir, should he
designate him in such manner that there can be no doubt as to who has
been instituted, the institution shall be valid. (772)
Q – How must the testator designate HDL?
• GENERAL RULE – An heir must be designated by name and
surname. This also applies to devisees and legatees.
o If there are 2 or more people having the same name and
surname, the testator must indicate some identifying mark
or circumstance to which he may be known, otherwise
there may be a latent ambiguity.
o EXAMPLE – I institute my cousin A. But I have 3 cousins by
the name of A. Unless I give an identifying mark or
circumstance as to which cousin A I refer to, there will be
a latent ambiguity.
• EXCEPTION – Even without giving the name, the identity of the
heir can be ascertained with sufficient certainty or clarity
o EXAMPLE – the present Dean of the Ateneo Law School, my
oldest brother;
NOTE – What is important is that the identity of the heir be known and not
necessarily his name.
Q – What is the sense of this article?
The HDL must be identified in the will with sufficient clarity to leave
• The basic rule in testamentary succession is respect for and
Q – Must the full name and surname of the HDL completely identified? What
is the effect of incomplete name?
• No, the designation of the name and surname is merely directory.
• See. Art. 843 par 2.
• The underlying principle is that the identity of the HDL of the
designated successor (HDL) be sufficiently identified.
• EXAMPLE – “my kuya Germs”, “Dean Bernas of Ateneo”, “my
youngest daughter”
Art. 844. An error in the name, surname, or circumstances of the heir shall
not vitiate the institution when it is possible, in any other manner, to know
with certainty the person instituted.
If among persons having the same names and surnames, there is a similarity
of circumstances in such a way that, even with the use of the other proof,
the person instituted cannot be identified, none of them shall be an
BALANE
1. PARAGRAPH 1 – Even though there may be an error in the name
of the heir, the error is immaterial if his identity can be known in
any other manner.
2. PARAGRAPH 2 – See the rules on latent ambiguity.

a. Use extrinsic evidence except the oral declarations of
the testator as to his intentions to cure the ambiguity.

b. If ambiguity still exists, none of them will inherit.
Q – What if the designation is still ambiguous?
• The ambiguity should be resolved under Art. 789.
Q – What if after Art. 789, the designation remains ambiguous?
• If it is not possible to resolve the ambiguity, and the testator’s
intent becomes indeterminable, and therefore intestacy results
for that portion.
• In short, neither of them will be an heir, and intestacy will result.
Art. 845. Every disposition in favor of an unknown person shall be void, unless
by some event or circumstance his identity becomes certain. However, a
disposition in favor of a definite class or group of persons shall be
valid. (750a)
Q – Can the testator give his entire free portion to a person he does not
personally know?
• YES. The "UNKNOWN PERSON" referred to in this article refers to
one who cannot be identified and not to one whom the testator
does not personally know. The basis of the nullity is the inability to
determine the intention of the testator.
 • It does NOT mean a STRANGER – you can still make disposition in
favor of persons with whom you are not acquainted with,
provided his identity is clear.
• EXAMPLES
o To someone who cares – Void
o To designate ¼ of my estate to novel write – Void
o To someone with ten eyes." – Void, this refers to
someone who does not exist.
• This designation is valid if the identity is not known at the time of
making the will but can be known in the future by circumstances.
How? By establishing certain criteria at the proper time
• EXAMPLES
o First Filipino who wins a gold medal in the Olympics
o I designate ¼ of my estate to whoever will top the 2050
bar exams
o To whoever becomes the next President of the
Philippines after my death
Q – Is class designation valid?
• Yes. Class designation is valid,
o EXAMPLE – class in Civil Law Review, UP College of
Law, 1995-1996.
• MASS INSTITUTION – see Articles 786, 848 (brothers and sisters), 849
(designation of a person and his children) 959 (relatives), 1029
(prayers and pious works for the benefit of his soul), and 1030
(poor.)
ART. 843-845 – SUMMARY OF RULES ON DESIGNATION OF HEIRS
1. In the institution of heirs, the designation of the heir’s name is NOT
necessary, as long as his identity can be ascertained.
a. Generally, the testator should designate the heir by his
name and surname, and when there are two persons
having the same names, he shall indicate some
circumstance by which the instituted heir may be
known.
b. But, even though the testator may have omitted the
name of the heir, should he designate him in such
manner that there can be no doubt as to who has
been instituted, the institution is still valid
c. Also, designation is valid if the identity is not known at
the time of making the will but can be known in the
future by circumstances. This is by establishing certain
criteria at the proper time
d. The designation of name and surname is directory.
What is required is that the identity of the designated
successor be sufficiently established. This is most
usually done by giving the name and surname, but
there are other ways, as can be gleaned from Article
843, par. 2.
2. An error in the name, surname, or circumstances of the heir shall
not invalidate the institution when it is possible, in any other
manner, to know with certainty the person instituted
3. If it is not possible to resolve the ambiguity, the testator’s intent
becomes indeterminable and, therefore, intestacy as to that
portion will result. The result is, that the institution is void. 
 intestate or legal succession
4. The testator may institution a definite class or group of persons
(class designation)
Art. 846. Heirs instituted without designation of shares shall inherit in equal
parts. (765)
BALANE – This is a presumption of equality. This supports the underlying
principle of this chapter which is respect for the wishes of the testator.
Q – What is the effect of collective designation of heirs?
• The heirs inherit in equal parts.
• The presumption in cases of collective designation is equality.
• If the testator intends an unequal apportionment, he should
specify.
NOTE
• This article applies only in testamentary succession – among heirs,
devisees and legatees
• It will not apply to an heir who is both a compulsory and a
testamentary heir, for in that case the heir will get his legitime and
his testamentary portion (Art. 1062) 
 capita)
• Of course, one who is both a compulsory and testamentary heir
will receive more than someone who is just a testamentary heir,
because of the legitime.
EXAMPLE – 1 – X, the testator, in his will institutes to one-fourth of his estate
the following: A (his son), B (his cousin), and C (his friend). A, being Xs
JDLYRREVERRE | B2020 | SUCCESSION | ATTY. BALANE | CHAMP NOTES ANNOTATED | 35
compulsory heir, will get his legitime plus one-third of the one-fourth given
by will. As testamentary heir, A gets a share equal to those of B and C, but
since A is also a compulsory heir, and is entitled to his legitime over and
above his testamentary share, he will end up getting a larger slice of Xs
estate than B or C.
NOTE – Not explicitly covered by this article is an instance where the shares
of some of the heirs are designated and those of others are not.
EXAMPLE – 2 – I institute to one-fourth of my estate A, B, C, and D, of which
portion A is to get one-third, and B is to get one-fourth.” The shares of C and
D are unspecified. How much are they to get? Are they to divide equally
the remaining portion of the one-fourth of the estate, after deducting A’s
and B’s portions (The remainder is 5/12 of 1/4)?
Art. 847. When the testator institutes some heirs individually and others
collectively as when he says, "I designate as my heirs A and B, and the
children of C," those collectively designated shall be considered as
individually instituted, unless it clearly appears that the intention of the
testator was otherwise. (769a)
Q – What is the PRINCIPLE OF EQUALITY AND INDIVIDUALITY OF
DESIGNATION?
• GENERAL RULE – Following the rule of equality in Art. 846, there is
also a presumption that heirs collectively referred to are
designated per capita along with those separately designated.
• EXCEPT – If the testator intended a BLOCK DESIGNATION, he
should specify.
PROBLEM NO – 1 – The testator provides "I give 1/3 of my estate to A, B and
C." C is a class of people. How do you divide the estate?
• It is not to be interpreted as 1/3 to A, B and class C.
• Rather, the 1/3 of the estate should be divided equally among A,
B and the members of class C.
• Why? Because the presumption is that the members of C were
individually designated.
PROBLEM NO – 2 – But if the testator says "I give 1/3 of my estate to A, B and
class C as a unit, then 1/3 will be divided equally among A, B and class C.
Art. 848. If the testator should institute his brothers and sisters, and he has
some of full blood and others of half-blood, the inheritance shall be
distributed equally unless a different intention appears. (770a)
BALANE – Full blood means same parents; half blood means only one parent
is the same.
NOTE
• This article also follows the rule of equality in Art. 846.
• If the testator intends an unequal apportionment, he should so
specify.
Q – Is this article absolute?
• NO. This article applies only to testamentary succession, NOT to
• In intestacy, there is a proportion of 2:1 between full and half
blood brothers and sisters
TESTAMENTARY SUCCESSION INTESTATE SUCCESSION
ART. 848 – Equality of shares of full- ART. 1006 – Proportion of 2:1
and half-blood brothers and between full- and half-blood
sisters, unless the testator provides brothers and sisters, and only if the
otherwise disqualification in Article 992 does
not apply
Q – Does Article 848 apply even to illegitimate brothers and sisters, in cases
where the testator is of legitimate status and vice-versa?
• It seems so, because Article 848 makes no distinction. Ubi lex non
disttnguit, nec nos distinguere debemus.
Art. 849. When the testator calls to the succession a person and his children
they are all deemed to have been instituted simultaneously and not
successively. (771)
NOTE – This also illustrates the principle of equality and individuality (per
• This article is a species of ART. 847
• Successively refers to fideicommisary.
Art. 850. The statement of a false cause for the institution of an heir shall be
considered as not written, unless it appears from the will that the testator
would not have made such institution if he had known the falsity of such
cause. (767a)
Q – What is the effect of a false cause for the testamentary institution?
• GENERAL RULE – The falsity of the stated clause does NOT affect
the validity or efficacy of the institution.
• The false cause is simply NOT written – meaning the institution
remains valid.
• REASON – Testamentary dispositions are acts of liberality.
Q – “A is the tallest in the class. I give him 1/2 of my estate." If A is not the
tallest, is the institution ineffective?
• No. Follow the general rule because the real cause was not the
height but the liberality of the testator.
Q – What is the exception? When may false cause annul the testamentary
institution?
• AUSTRIA V. REYES – If certain factors are present
CASE – AUSTRIA V. REYES
• F – Testatrix instituted as heirs her legally adopted children. Ante
mortem probate of will allowed. Opposition to partition of estate
was that the entire estate should descend to contestants by
intestacy because of intrinsic nullity of institution of heirs (theory
of false adoption); that testatrix was led into believing that
instituted heirs entitled to legitimes as compulsory heirs, as
evidenced by her use of the phrase “sapilitang mana.” 

 2. Indicates his intention to give his entire estate to his heirs
• H – That requisites for annulment of institution of heirs based on
false cause not present. That there was not even a cause for
institution stated in will. That testatrix’s use of phrase “sapilitang
mana” probably means that she approved of system of
legitimes. 
 may be.
• Before the institution of heirs may be annulled under article 850
of the Civil Code, the following requisites must concur:
1. The cause for the institution of heirs must be stated in
the will
2. The cause must be shown to be false and,
3. It must appear from the face of the will that the
testator would not have made such institution if he
had known the falsity of the cause.
• Note that this last requisite is a both a requirement in institution
and revocation based on false cause.
• The wishes of the testator must be respected.
• In the case, the third requisite was absent. As such, the exception
was not applicable and the general rule would apply.
• B – Exceptionally, therefore, the falsity of the cause will annul the
institution if the three requisites enumerated in Austria concur. 
 A= 3/12
• If there is doubt as to whether there is a valid institution because
of the false cause, resolve it in favor of validity.
ILLUSTRATION – Assuming in par. 1

a. The testator has no compulsory heirs -- part of the whole estate
not disposed of by will goes by intestacy.

o EXAMPLE – No compulsory heirs and the testator says
"I give 1/3 of my estate to X." 1/3 will go to X and the
2/3 will go by intestacy.
b. Testator has compulsory heirs-- part of the free portion not
disposed of by will goes by intestacy.
o EXAMPLE – Two legitimate children and testator says "I
give 1/4 of my estate to X." 1/2 will go to the 2 children,
1/4 will go to X, and 1/4 will go by intestacy.
• The same applies when a vacancy occurs.
Art. 852. If it was the intention of the testator that the instituted heirs should
become sole heirs to the whole estate, or the whole free portion, as the
case may be, and each of them has been instituted to an aliquot part of
the inheritance and their aliquot parts together do not cover the whole
inheritance, or the whole free portion, each part shall be increased
proportionally. (n)
BALANE – This article speaks of the testator's intention to give the entire free
portion, or the entire inheritance, as the case may be, but he made a
mistake in the addition of the different proportions.
ELEMENTS
1. Several heirs;
a. If no compulsory heirs, whole estate
b. If with compulsory heirs, whole free portion

3. Indicates portions he wants to give to each

4. Total of portions is less than whole estate or free portion, as the case
EXAMPLE – Testator has no compulsory heirs. He indicates in the will that his
intention to give his entire estate to his heirs. He gives 1/4 to A, 1/6 to B, 1/3
to C. The estate is worth P120,000.
A 30,000
B 20,000
C 40,000
90,000
WHAT DO YOUR DO WITH THE REMAINING PHP30,000?
1. Get the least common denominator.
LCD – 12
B= 2/12
C= 4/12

NOTE 2. Get the ratio of the shares with each other.

• This article refers only to false cause.
• It does not restrict the annulment of certain testamentary A (3) : B (2) : C (4) - 3 + 2 + 4 = 9
dispositions by reason of public policy, because in such case the
reason for annulling is ILLEGALITY and not falsity. 3. Multiply the remainder by the share of each heir with respect to
the ratio in number 2.
Art. 851. If the testator has instituted only one heir, and the institution is limited
to an aliquot part of the inheritance, legal succession takes place with For A, 3/9 x 30,000 = 10,000

respect to the remainder of the estate. For B, 2/9 x 30,000 = 6,666.67

For C, 4/9 x 30,000 = 13,333.33
The same rule applies if the testator has instituted several heirs, each being
limited to an aliquot part, and all the parts do not cover the whole 4. Add the result to what they originally received and the sum will
inheritance. (n) be their complete inheritance.


BALANE – Art. 851 has already been covered by Art. 841, it is redundant. But For A, 30,000 + 10,000 = 40,000

note that the wording of Art. 851 is erroneous. Legal succession does not For B, 20,000 + 6,666.67 = 26,666.67
take place with respect to the remainder of the estate, but rather to the For C, 40,000 + 13,333.33 = 53,333.33
remainder of the disposable (free) portion. There may, after all, be
compulsory heirs whose legitimes will therefore cover part of the estate; the 5. Add your figures in number 4 to make sure that it equals to the
legitimes do not pass by legal or intestate succession. 
 value of the entire estate. (To make sure that you did not make
a mistake.)
SUMMARY TABLE
40,000 + 26,666,67 + 53,333.33 = 120,000
TESTATOR INSITUTED MORE THAN 1
TESTATOR INSTITUTED ONLY 1 HEIR
HEIR 6. Note – If you want to get the inheritance of each right away,
Institution limited to aliquot part Each institution limited to aliquot multiply the ratio in number 3 with the value of the whole estate.
part
Sum of parts is less than entire For A, 3/9 x 120,000 = 40,000
inheritance For B, 2/9 x 120,000 = 26,666.67
Q – What happens to the remainder of the estate? LEGAL SUCCESSION For C, 4/9 x 120,000 = 53,333.33
takes place with respect to the remainder of the disposable portion,
and not the remainder of the estate (Erroneous 851) You get the same results but faster.
JDLYRREVERRE | B2020 | SUCCESSION | ATTY. BALANE | CHAMP NOTES ANNOTATED | 36
Art. 853. If each of the instituted heirs has been given an aliquot part of the SUMMARY TABLE OF ARTICLES 852 AND 853
inheritance, and the parts together exceed the whole inheritance, or the
whole free portion, as the case may be, each part shall be reduced ART. 852 ART. 853
proportionally. (n) COMMON ELEMENTS
a. There are more than one instituted heir
BALANE – The same principle as in Art. 852, only this time you decrease. b. The testator intended them to get the whole estate or whole
disposable portion
ELEMENTS c. The testator has designated a definite or aliquot portion for each heir.
1. Several heirs; The total of all the portions is LESS The total of all the portions
2. Indicates his intention to give his entire estate to his heirs than the whole EXCEEDS the whole.
a. If no compulsory heirs, whole estate COMMON ELEMENT – In short, the testator obviously did not know how
b. If with compulsory heirs, whole free portion
 to add fractions.
3. Indicates portions he wants to give to each
 NOTE – The remainder of portion
4. Total of portions exceeds the whole estate or free portion, as the cannot pass by intestacy since the
case may be. testator clearly intended to give
the instituted heirs the entire
EXAMPLE – Testator has no compulsory heirs. He indicates in the will that his amount.
intention to give his entire estate to his heirs. He gives 1/2 to A, 1/3 to B, 1/4 REMEDY – Proportionate increase REMEDY – Proportional reduction
to C. The estate is worth P30,000. of each share of each share.

A 15,000
B 10,000
C 7,500
2,500

WHAT DO YOUR DO WITH THE REMAINING PHP2,000?

1. Get the least common denominator.

LCD – 12
A= 6/12
B= 4/12
C= 3/12

2. Get the ratio of the shares with each other.

A (6) : B (4) : C (3) - 6 + 4 + 3 = 13

3. Multiply the excess by the share of each heir with respect to the
ratio in number 2.

For A, 6/13 x 2,500 = 1,153.84


For B, 4/13 x 2,500 = 769.23
For C, 3/13 x 2,500 = 576.93

4. Subtract the results in number 3 from what they originally

received and the sum will be their complete inheritance.


For A, 15,000 - 1,153.84 = 13,846.16


For B, 10,000 - 769.23 = 9,230.77

For C, 7,500 - 576.93 = 6,923.07

5. Add your figures in number 4 to make sure that it equals to the

value of the entire estate. (To make sure that you did not make
a mistake.)

13,846.16 + 9,230.77 + 6,923.07 = 30,000

6. Note – If you want to get the inheritance of each right away,

multiply the ratio in number 3 with the value of the whole estate.

For A, 6/13 x 30,000 = 13,846.16

For B, 4/13 x 30,000 = 9,230.77
For C, 3/13 x 30,000 = 6,923.07

You get the same results but faster.

Q – How will the estate by divided?

• There are two answers.
1. 1/3 will go to each. Apply Art. 853.
2. C gets 40%, B gets 30%, and A gets 30%. Assume the third
will is incompatible to the first 2.

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 PRETERITION • For there to be preterition, therefore, the heir in question must
have received NOTHING from the testator by way of:
Art. 854. The preterition or omission of one, some, or all of the compulsory 1. Testamentary succession 

heirs in the direct line, whether living at the time of the execution of the will 2. Legacy or devise 

or born after the death of the testator, shall annul the institution of heir; but 3. Intestacy, or 

the devises and legacies shall be valid insofar as they are not inofficious. 4. Donation inter vivos 

• BALANE – The mention or non-mention in the will is NOT
If the omitted compulsory heirs should die before the testator, the institution constitutive of preterition. Preterition must be total omission from
shall be effectual, without prejudice to the right of representation. (814a) the inheritance

BALANE – Under Art. 854, you need to know the following: Q – When is there preterition?
1. What is the meaning of Preterition? 
 • Only in case of testamentary succession
2. Who can be Preterited? 
 • B – No preterition if there is no will, compulsory heirs cannot be
3. When is it determined? preterited if intestacy results because then, they will not be totally
4. What is the effect of Preterition? 
 omitted from the inheritance
• You cannot have preterition in intestacy
ANSWER
1. PRETERITION – happens when the compulsory heirs in the direct Q – How do you distinguish disinheritance from preterition?
line are totally omitted from the inheritance, that is the heir got
nothing by way of testamentary disposition, donation, legacy, DISINHERITANCE PRETERITION
devise or intestacy. Express deprivation Tacit Deprivation
2. WHO CAN BE PRETERITED?
a. Ascendants – children, whether legitimate, illegitimate NOTE – Should the disinheritance be ineffective, for absence of one or other
or adopted – including quasi-posthumous of the requisites for a valid disinheritance, the heir is simply entitled to
b. Descendant –Parents, whether legitimate of demand his rightful share. 

illegitimate
c. Grandparents Q – When is there NO preterition?
3. DETERMINED – Preterition can only be known at the time of the 1. If the heir instituted in the will receives a portion less than his legitime.
testator's death, not during the execution of the will. This is • REMEDY – Completion of legitime – Art. 906 – 907
because the compulsory heirs can only be determined at the • See REYES V. BARETTO-DATU
time of the testator’s death 

 2. If the heir is given a legacy or devise.
4. WHAT ARE THE EFFECTS OF PRETERITION? • REMEDY – Completion of legitime – Art. 906 – 907
1. Preterition annuls the institution of heirs; • See AZNAR v. DUNCAN
2. Devices and legacies are valid insofar as they are not 3. If the heir had earlier received a donation inter vivos from the
inofficious; testator
3. If the omitted compulsory heir dies before testator, • Donation inter vivos are treated as an advance on
institution shall be effectual, without prejudice to right legitimes. Basis? Art. 906, 909, 910 and 1062.
of representation 4. If not all of the estate is disposed by the will and the heir is still not
mentioned in the will, nor earlier been a recipient of a donation
WHAT IS THE MEANING OF PRETERITION? inter vivos
• The omitted heir would still receive something by way of
Preterition means “to go beyond” or “to bypass”; it means omission. but intestacy, from the vacant or remaining portion,
omission from what? The answer to that question is the basic problem in undisposed by the will
preterition. • REMEDY – Completion of legitime – Art. 906 – 907
• See SEANGIO V. REYES
Q – What is preterition?
• It is an omission? HEIRS OF URETA V. HEIRS OF URETA – Preterition has been defined as the
• [prae-ter] – beside; [ire] – to go = [to go beside, to pass by] TOTAL OMMISSION of a compulsory heir from the INHERITANCE. It consists in
• MANRESA – The preterition consists in the omission of an heir in the the silence of the testator with regard to a compulsory heir, OMITTING HIM
WILL either because he is – IN THE TESTAMENT, either
1. by not mentioning him at all or
NOT NAMED ALTHOUGH NAMED 2. by not giving him anything in the hereditary property but without
He is not named in the will He is neither expressly disinheriting him, even if he is mentioned in the will in the
a. Instituted as an heir latter case.
b. Expressly disinherited
c. Assigned any part of the CASE – MORALES V. OLONDRIZ – Newly assigned case.
estate • F – Alfonso Juan P. Olondriz, Sr. died on June 9, 2003. Believing
THUS – tacitly deprived of his right to legitime that the decedent died intestate, the respondent heirs filed a
petition with the Las Piñas RTC for the partition of the decedent's
CASTAN – Preterition is the omission in the WILL of any of the compulsory heirs estate and the appointment of a special administrator on July 4,
without being expressly disinherited. 2003. On July 11, 2003, the RTC appointed Alfonso Juan O.
Olondriz, Jr. as special administrator. However, on July 28, 2003,
BALANE – on Castan and Manresa – “Complete omission from the will" – Iris Morales filed a separate petition with the RTC alleging that the
Wrong! decedent left a will dated July 23, 1991. Morales prayed for the
• Why? It presupposes that if mentioned in the will, then the heir is probate of the will and for her appointment as special
not preterited. However, whether you are mentioned in the will or administratrix. Notably, the will omitted Francisco Javier Maria
not has no effect on the preterition. Bautista Olondriz, an illegitimate son of the decedent.
• I – Whether there was no preterition because Francisco received
ILLUSTRATIONS a house and lot inter vivos as an advance on his legitime – NO
(1) I have a son, A. The will states "I give 1/2 to B." A is not preterited • H – Preterition is the complete and total omission of a compulsory
because he gets the other half. heir from the testator's inheritance without the heir's express
(2) I have a son A. The will states "I give 1/3 to B and 1/3 to C." A is disinheritance.
not preterited because he gets the other 1/3. His legitime, • The decedent's will evidently omitted Francisco Olondriz as an
however, is impaired. heir, legatee, or devisee. As the decedent's illegitimate son,
(3) I have a son A. The will states "I give ½ to B, ½ to C, and to A, all Francisco is a compulsory heir in the direct line. Unless Morales
my love." A, even if mentioned in the will, was preterited. could show otherwise, Francisco's omission from the will leads to
the conclusion of his preterition. Under the Civil Code, the
Q – What is the proper definition of preterition? preterition of a compulsory heir in the direct line shall annul the
• Preterition is NOT the total omission from the will, but rather, the institution of heirs, but the devises and legacies shall remain valid
total omission from the inheritance. insofar as the legitimes are not impaired. Consequently, if a will
does not institute any devisees or legatees, the preterition of a
compulsory heir in the direct line will result in total intestacy.
JDLYRREVERRE | B2020 | SUCCESSION | ATTY. BALANE | CHAMP NOTES ANNOTATED | 38
 • During the proceedings in the RTC, Morales had the opportunity
to present evidence that Francisco received donations inter
vivos and advances on his legitime from the decedent. However,
Morales did not appear during the hearing dates, effectively
waiving her right to present evidence on the issue.
• ON PASSING UPON THE INTRINSIC VALIDTY OF THE WILL – The
decedent's will does not contain specific legacies or devices and
Francisco's preterition annulled the institution of heirs. The
annulment effectively caused the TOTAL ABROGATION OF THE
WILL, resulting in total intestacy of the inheritance. The
decedent's will, no matter how valid it may appear extrinsically,
is null and void. The conduct of separate proceedings to
determine the intrinsic validity of its testamentary provisions
would be superfluous.
• ON FINALITY OF THE PREVIOUS ORDER SETTING THE CASE FOR
PROBATE WAS RES JUDICATA – The disputed order is merely
interlocutory and can never become final and executory in the
same manner that a final judgment does. An interlocutory order
does not result in res judicata. It remains under the control of the
court and can be modified or rescinded at any time before final
judgment.
• B – This case did not lay down new doctrines. It merely
consolidated all the doctrines in previous cases.
1. DEFINITION OF PRETERITION – In the case of URETA,
which was wordy but was simplified and reiterated in
this case.
2. TOTAL OMISSION FROM INHERITANCE – as in the case
of AZNAR.
3. PRETERITION APPLIES TO ILLEGITIMATE COMPUSLORY
HEIRS – this was the lis mota of the case. This is the most
important doctrine here.
4. TOTAL ANULLMENT OF INSITUTION OF HEIRS – as in the
case of NUGUID.
5. THERE IS PRETERITION IF THE HEIRS WAS A RECEPIENT OF
A DONATION INTER VIVOS – this makes a clear
reference to this kind of situation.
6. REITERATES THE DOCTRINE IN NEPOMUCENO – where
the court may pass on the intrinsic validity of the will in
case of special circumstance.
a. In this case, preterition of the illegitimate
child was a substantial effect that was
patent on its face.
b. However, Balane thinks that this is not
necessarily true because you still have to
find out if the heir was worthy to succeed. If
he was not, then there is no preterition.
TRUE OR FALSE
• T/F – Preterition results in intestacy – F.
• T/F – If there are NO devises and legacies in the will, preterition
results in intestacy – T. (will later be discussed)
CASE – REYES V. BARETTO-DATU
• F – In the case, Lucia received a part of the estate through a
judicially approved project of partition which was based on the
will of her father. However, it was found out later on that Salud
was not really the child of her parents. As such, Lucia sought to
annul the institution of Salud as heir claiming that she was
preterited.
• H –The fact that Lucia was allotted in her father’s will a share
smaller than her legitimes does not invalidate the institution of
Salud as heir, since there was no preterition or total omission for a
forced heir.
• Court held that there was no preterition because there was no
total omission, inasmuch as the heir received something from the
inheritance.
• The heir’s remedy is not for the annulment of the other instituted
heir (Art. 854) but for the completion of legitime in Art. 906-907.
• In this case:
a. There was a compulsory heir in the direct line 
 •
b. Such heir was instituted in the will 
 See ACAIN V. IAC
c. The testamentary disposition given to such heir was
LESS than her legitime 
 compulsory heir, she is not in the direct line and therefore cannot
CASE – AZNAR v. DUNCAN
• F – EDWARD CHRITENSEN instituted as heir his acknowledged
natural daughter, LUCY DUNCAN. HELEN GARCIA, another
natural daughter of testator who however was not
acknowledged, complained that she had been preterited.
Helen Garcia was given only a legacy of 3,600 pesos.
• H – In this case, the testator expressly denied his relationship with
Helen, but still left her a legacy nevertheless, although less than
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the amount of her legitime. The testator refused to acknowledge
Helen as his natural daughter and just gave her a share to a
legacy.
• The heir could not ask that the institution of heirs be annulled
entirely when she was left a legacy worth less than the legitime,
and even if said legatee is not referred to as an heir or even a
relative. Should the value of the legacy or devise be less than the
recipient’s claimed legitime, her remedy is only for the
completion of the legitime.
• The court ordered that HELEN GARCIA be given no more than her
portion in the legitime – ¼ of the hereditary estate, 339 shares of
stocks in the Christensen Plantation Company.
• B – When a compulsory heir, in the direct line, receives something
(such as a devise or legacy) from the inheritance, no matter how
small, there is NO preterition. Remedy is merely for completion of
his legitime. 

CASE – SEANGIO V. REYES
• F – Respondents filed a petition for the settlement of the intestate
estate Segundo Seangio and praying for the appointment of
private respondent Elisa D. Seangio-Santos as special
administrator and guardian ad litem of Dy Yieng Seangio.
Petitioners Dy Yieng, Barbara and Virginia opposed the petition
contending that Segundo left a holographic will disinheriting one
of the private respondents. A petition for the probate of the
holographic will of Segundo was filed by the petitioner and
reiterating that the probate proceedings should take
precedence over the petition filed by the private respondents
because testate proceedings take precedence and enjoy
priority over the intestate proceedings. The two petitions were
then consolidated. Private respondents moved for the dismissal
of the probate proceedings primarily on the ground that the will
only show disinheritance of this eldest son, hence there is
preterition.
• H – The document, entitled Kasulatan ng Pag-Aalis ng Mana,
unmistakably showed Segundo’s intention of excluding his eldest
son, Alfredo, as an heir to his estate for the reasons that he cited
therein. In effect, Alfredo was disinherited by Segundo.
• The Court believes that the compulsory heirs in the direct line
were not preterited in the will. It was, in the Court’s opinion,
Segundo’s last expression to bequeath his estate to all his
compulsory heirs, with the sole exception of Alfredo. Also,
Segundo did not institute an heir to the exclusion of his other
compulsory heirs. The mere mention of the name of one of the
petitioners, Virginia, in the document did not operate to institute
her as the universal heir. Her name was included plainly as a
witness to the altercation between Segundo and his son, Alfredo.
• B – This is a good example where the heir was not mentioned in
the will but there was no preterition. There was a will of
disinheritance of one black sheep son, which was badly written
by a Chinese testator in English. In said will, there was no mention
of the other sons nor did he mention any disposition. The RTC
denied the probation on the ground of preterition because the
other sons were not mention. The SC ruled that preterition is not
the omission from the will but omission from the INHERITANCE.
WHO CAN BE PRETERITED?
A compulsory heir in the direct line, whether living at the time of the
execution of the will or born after the death of the testator.
Q – Who are these compulsory heirs referred to? Who may be preterited?
Who may claim annulment of institution of heirs?
• Under ART. 854, one, some or all of the COMPULSORY HEIRS IN THE
DIRECT LINE.
• This means, children or descendants, and parents or ascendants.
• Illegitimate descendants and ascendants are also protected
according to Manresa (since there is no distinction as to
legitimacy)
Adopted children are also included and may claim preterition –
• This Article EXCLUDES the surviving spouse – although she is a
claim to be preterited.
BALANE – This is a bad provision. It omits the spouse from the protection or
remedy under Art. 854. The protection must be extended to all compulsory
heirs.
BALANE CLARIFICATION
1. "Whether living at the time of the execution of the will or born after
the death of the testator."
 • Q –This does not cover all the possibilities. QUASI-
POSTHUMOUSE CHILDREN – What about those born
after the execution of the will but before the death of
the testator? Art. 854 also covers them, just an
oversight.
2. Extends protection only to "compulsory heirs in the direct line."
• Q – Is this redundant? Aren't compulsory heirs in the
direct line? No. Spouses are compulsory heirs not in the
direct line.
• Q – So what is the remedy of the wife who has been
omitted? Demand her legitime. Compulsory heirs in
the direct line cover only ascendants and
descendants.
WHEN IS PRETERITION DETERMINED?
Preterition is determined upon the testator’s death as implied from the
second paragraph of Art. 854 and the case of JLT Agro v. Balansag
JLT AGRO V. BALASAG – The determination of whether or not they are
preterited heirs can be made only UPON THE TESTATOR’S DEATH
Q – What happens in case the preterited compulsory heirs pre-deceases
the testator?
• See ART. 854 PAR 2 – the institution shall be effectual, without
prejudice to the right of representation
• The question of preterition becomes moot. The institution of other
heirs remains valid
• If the omitted compulsory heir and heirs of his own, such heir may
himself be entitles to succeed by virtue of representation, unless
such heir is also himself completely preterited (see more on Rules
of Representation)
• However, should there be a descendant of that heir who is himself
preterited, then the effects of preterition will arise. 
 •
o EXAMPLE – X has two legitimate children: A and B. X
makes a will which results in the potential preterition of
A because he was omitted from the inheritance. A
predeceases X but leaves a legitimate child A-1, who
is himself completely omitted from the inheritance (A-
1 being entitled to succeed X by representation). Art.
854 will apply, not because A was preterited but
because A-1 was preterited.” 
 that nothing at all was written, the will is totally abrogated.
o Another example would be: if the preterited heir who
pre-deceases is a child but the testator is survived
solely by ascendants, who are entitled to a legitime in
default of descendants. 
 a declaration that nothing at all was written.
CLASS ILLUSTRATIONS – In all cases, assume that A was not mentioned in the
will and had not received any donation inter vivos.
1. FIRST CASE – X have a son A. The will was made in 2008. The will
states "I give ½ to Y, ½ to Z”. Is there preterition? No, because we
do not know yet because X and A are still alive.
2. SECOND CASE – Same facts as above but in 2010 A dies and X in
2017. What will happen to this institution? It is valid and effectual.
• Was A preterited? No, but there was potential
preterition. If A was still alive, then there is preterition.
3. THIRS CASE – Same facts as the first case but A has a son A-1 who
was born on 2009 which was 23 months after the death of A. Was
there preterition?
• No preterition on A.
• But there was preterition on the part of A-1.
• Note that there was preterition not because of A-1’s
omission. Thus, it can be concluded that the preterited
heir must be living when the testator dies.
CASE – ACAIN V. IAC
• F – In the case, Acain left his estate to his brothers, completely
omitting his WIFE ROSA DIONGSON and LEGALLY ADOPTED
DAUGHTER VIRGINIA FERNANDEZ. As such, the two opposed the
probate of the will claiming they were preterited. The will had no
legacies or devises.
• H – The SC held that the adopted child was preterited but not the
wife. A wife is not a compulsory heir in the direct line so she
cannot be preterited.
• Preterition consists in the omission in the testator’s will of the
forced heirs or anyone of them either because they are not
mentioned therein, or, though mentioned, they are neither
instituted as heirs nor are expressly disinherited. 
 CASE – NUGUID V. NUGUID
• Insofar as the widow is concerned, Article 854 of the Civil Code
may not apply as she does not ascend or descend from the
testator, although she is a compulsory heir. Stated otherwise,
even if the surviving spouse is a compulsory heir, there is no
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preterition even if she is omitted from the inheritance, for she is
not in the direct line. (Art. 854, Civil Code)
• However, the same thing cannot be said of adopted children. 

• Under Article 39 of P.D. No. 603, known as the Child and Youth
Welfare Code, adoption gives to the adopted person the same
rights and duties as if he were legitimate child of the adopter and
makes the adopted person a legal heir of the adopter. 

• Thus, an adopted child is included in the “compulsory heir in the
direct line”. If totally omitted in the inheritance, is preterited.
• The universal institution of PETITIONER TOGETHER WITH HIS BROTHER
AND SISTERS to the entire inheritance of the testator results in
TOTALLY ABROGATING THE WILL because the nullification of such
institution of universal heir – without any other testamentary
disposition in the will – amounts to a declaration that nothing at
all was written.
• B – An adopted child, therefore, if totally omitted in the
inheritance, is preterited within the contemplation of Article 854
and can invoke its protection and consequences. Acain’s logic
is the soul of simplicity: since an adopted child is given by law the
same rights as a legitimate child, vis-a-vis the adopter, then the
adopted child can, in proper cases, invoke Article 854 in the
same manner that a legitimate child can. The law cited by
Acain—Article 39 of PD 603 (the Child and Youth Welfare Code)
was supplanted by Article 189(1) of the Family Code, which,
however, has in turn been supplanted by Secs. 17 and 18 of RA
8552 (the Domestic Adoption Act of 1998) 

WHAT IS THE EFFECT OF PRETERITION?
Annulment of the institution of the heirs but validity of legacies and
devisees to the extent that these do not impair the legitime
RULES
GENERAL RULE – The effect of annulling the institution of heirs will
be, necessarily, the opening of a total intestacy except that
proper legacies and devises must be respected. Here, the will is
not abrogated. There is only the abrogation of the institution of
heirs
• EXCEPTION – If the will contains a universal institution of heirs to
the entire inheritance of the testator – without any other
testamentary disposition in the will – amounts to a declaration
o See ACAIN V. IAC; NUGUID V. NUGUID
• REASON – The nullification of such institution of the universal heirs
without any other testamentary disposition in the will amounts to
Q – What is the effect of preterition? What does the remedy of preterition
do?
• Preterition annuls the institution of an heir and throws open the
entire inheritance to intestate succession. The only provisions that
do not result in intestacy are the legacies and devises made in
the will, for they should stand valid and respected, except in so
far as the legitimes are concerned.
• THUS, IT RESULTS IN EITHER
o The TOTAL ABROGATION OF THE WILL or
o The NULLIFICATION OF THE INSTITUTION OF HEIRS.
• If there are no other testamentary disposition like legacies and
devises, it amounts to a declaration that nothing at all was
written.
• The effect of annulling the institution of heir will be the opening of
intestacy, except that proper legacies and devises must be
respected.
• BALANE – Practically, a compulsory heir who was preterited can
get more than his legitimate because all institutions of heirs are
annulled. The institution is not merely reduced, but is annulled or
set aside. The heirs do not get anything by testamentary
succession. However, the result is NOT always total intestacy
because the devices or legacies are valid as long as they do not
impair the legitimes.
• See ACAIN V. ICA and NUGUID V. NUGUID.
Q – Does preterition automatically result in intestacy?
• NO. It does not automatically result in intestacy because IF there
are devises and legacies, they are considered valid, insofar as
they do not impair the legitimes.
• F – In the case, ROSARIO NUGUI died having 6 brothers and sisters
and her parents. Here, a one sentence will INSTITUTED REMEDIOS,
ONE OF HER SISTERS, AS HER UNIVERSAL HEIR, nothing more. No
specific legacies or bequests were provided. The deceased left
 no ascendants, legitimate or illegitimate, but she left forced heirs
in the direct ascending line – her parents. Thus, the parents
opposed the probate claiming they were preterited.
• H – The SC held that the omission of the parents as forced heirs in
the direct line results in preterition and the nullity of the institution
is complete.
• To ANNUL means to abrogate to make void, to reduce nothing,
to annihilate, obliterate, blot out, to make void or of no effect, to
abolish.
• Legacies and devises merit consideration only when they are so
expressly given as such in a will, in so far as they are not inofficious.
• The will here does not expressly disinherit the parents, the forced
heirs. It simply omitted their names. Such is preterition rather than
an ineffective disinheritance
• There is no escaping that the universal institution of PETITIONER
REMEDIOS to the entire inheritance of the testator results in the
ABROGATION OF THE WILL. Because the nullification of such
institution of universal heir– without any other testamentary
disposition in the will – amounts to a declaration that nothing at
all was written.
• Under Art. 854, the preterition shall ANNUL THE INSITUTION OF HEIR.
This annulment is in toto, unless in the will there are additional
testamentary dispositions in the form of devises and legacies.
• B – If compulsory heirs in the direct line are preterited, and the
free portion had already been devised to other people, the
annulment of the institution of heir will in effect annul your
institution. Also, when the law says devise or legacy, this is used in
its ordinary sense. The claim of the sister that her institution as a
universal heir is equivalent to a devise is untenable. If such were
accepted, it would render Art. 854 useless.
DISINHERITANCE PRETERITION
A testamentary provision BALANE – The total omission from
depriving any compulsory heir of the INHERITANCE, without the heir
his share in the legitime for a cause being expressly disinherited.
authorized by law.
The nullity is limited to that portion A completely nullity of the
of the estate of which the institution of heir. (except devises
disinherited heir has been legally and legacies)
deprived.
Always voluntary, explicit on the Presume to be involuntary, based
part of the testator. on inadvertent omission by the
testator.
He is still not bypassed since the He is bypassed, and the remedy is
heirs is simply entitles to demand the annulment of institution of heirs
his rightful share. (entire will, except devises and
legacies)
LECTURE
• EFFECT OF PRETERITION (OF PARENTS) when there are no devises
or legacies (NUGUID CASE) – whole will is considered inexistent.
• IF THERE ARE DEVISES OR LEGACIES – Set aside only the institution
of heirs but not the institution of devisees and legatees. If the
devise and legacy exceed the free portion, decrease the devise
and legacy.
o 1983 – SOLANO V. CA – This case made a wrong
decision. It made the effect of preterition the
reduction of the share of the instituted heir rather than
annulling the whole institution of heir.
§ The court ruled that the preterition of the
illegitimate children of the testator should
only annul the institution of heir “in so far as
the legitime of the omitted heirs is
impaired”
o 1987 – ACAIN V. IAC – This case restored the correct
interpretation laid down in Nuguid that preterition
annuls the institution of heirs.
• EXAMPLE – Testator has son, A. His will states "I give 1/2 of my
estate to M and P300,000 to N." The estate is worth P600,000. How
much will each get? N gets 300,000. A gets the other 300,000. M
gets nothing.
RECAP
• To recapitulate, therefore, the correct rule on the effect of
preterition: Preterition abrogates the institution of heir but
respects legacies and devises insofar as these do not impair the
legitimes.
• Preterition annuls the institution of an heir and annulment throws
open to intestate succession the entire inheritance including the
free portion. The only provisions that do not result in intestacy are
the legacies and devises made in the will for they should stand
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valid and respected, except insofar as the legitimes are
concerned – see ACAIN V. IAC and NUGUID V. NUGUID
• The DL are subordinate to the legitimes. The DL must not eat up
the share or legitimes of compulsory heirs. – ½ of estate
CLASS ILLUSTRATIONS
1. X have a son A (no prior donation). The will states that “I will give ½
to Y and 6M to ADMU”. The estate is worth 12M. How much will each
get?
• Y gets 0, his institution is annulled.
• ADMU gets 6M à RETAINED, unless inofficious
• A gets 6M
2. X have a son A (no prior donation). The will states that “I will give
1/3 to Y and 8M to ADMU”. The estate is worth 12M. What is the
effect of the preterition?
• Y = 1/3 = 4M = his institution is annulled. Y gets 0.
• ADMU = 8M à REDUCED TO 6M
• A gets 6M
3. X have a son A (no prior donation). The will states that “I will give
2/3 to Y and 4M to ADMU”. The estate is worth 12M. What is the
effect of the preterition?
• Y = 2/3 = 8M = his institution is annulled. Y gets 0.
• ADMU = 4M à RETAINED, unless inofficious
• A gets 6M
• Q – do you give the remaining 2M to Y? No! The 2M goes
to intestacy. In this case, it will go to A. Thus, A will receive
8M, 2M from intestacy and 4M from testacy.
TWO SITUATIONS
• If the will contains only institutions of heirs and there is preterition
– total intestacy will result;
• if there are legacies or devises and there is preterition, the
legacies or devises will stand, to the extent of the free portion –
The DL is merely to be reduced, not set aside, if the legitimes are
impaired but the institution of heirs, if any, will be swept away. 

CRITICISM
1. Why not extend the application to the wife?

2. Why distinguish between heir and devisee and legatee?
NOTE – This is the only case where it is important to know the distinction
between heir, on the one hand, and devisee and legatee on the other.
Art. 855. The share of a child or descendant omitted in a will must first be
taken from the part of the estate not disposed of by the will, if any; if that is
not sufficient, so much as may be necessary must be taken proportionally
from the shares of the other compulsory heirs. (1080a)
BALANE – This article is REDUNDANT and completely unnecessary. Art. 854 is
already complete in itself to provide for the effects of preterition. This is not
a case of preterition. This is a case of completion of legitime.
• There are other rules for completion under Art. 906—911.
• This contemplates a situation where there is a part disposed of
(no preterition) but that part is not sufficient. The insufficiency will
be taken from the TESTAMENTARY SHARES.
TOLENTINO – this article is ABSURD if we follow it. Do not follow it.
Q – So when should this article apply?
• This article should NOT apply to preterition.
• It should apply in case here the heir receives something LESS than
his legitime.
Q – Does this apply to preterition?

a. YES – According to the Code Commission. Their intent was to
make Art. 855 apply to preterition.

b. NO – If you analyze the provision, it does not refer to preterition.
It applies when something is left to an heir but is less than his
legitime.
i. INCOMPLETE LEGITIME – "taken from part not disposed of by
will" – heir will receive something by intestacy – no
preterition.
ii. PRETERITION – If the whole estate is disposed of – Go to Art.
854.
ARTICLE 854 ART 855
Preterition No preterition, as when the heir
receives less than his legitime.
In short, IMPAIRMENT OF LEGITIME
Remedy – Annulment of Institution Remedy – Completion of Legitime
Q – When does Art. 854 operate? How do you fill up the compulsory heir’s Art. 856. A voluntary (or testamentary) heir who dies before the testator
impaired legitime? transmits nothing to his heirs.
1. From the portion of the estate still left undisposed of by the will.
2. From the shares of the testamentary, heir, legatee and devisees. A compulsory heir who dies before the testator, a person incapacitated to
succeed, and one who renounces the inheritance, shall transmit no right to
Q – Who are entitled to full satisfaction of legitimes? his own heirs except in cases expressly provided for in this Code. (766a)
• Not only the children and descendants – as inaccurately
expressed in the article – but the protection must extend to all NOTE
compulsory heirs • This is another inaccurate provision
o Children and descendants • Both voluntary and compulsory heir, who dies before the testator
o Parents and ascendants – transmit nothing to his own heirs.
o Surviving spouse • This rule of non-transmission is absolute.

Q – From whom are their shares to be taken for completion? Q – What about representation?
1. VACANT PORTION (UNDISPOSED) • There may be representation by the heirs of said decedent heir,
• The proportionate reduction should be borne by the but representation is still not a transmission
TESTAMENTARY HEIRS, LEGATEES AND DEVISESS. – not the • Representation in the person does not transmit anything to the
compulsory heirs as inaccurately express in the article. heirs. Rather, representation is a form of subrogation or “to take
• To make the compulsory heirs suffer for the completion place”
of legitimes is the case of “robbing Peter to pay Paul”
• It is the testamentary dispositions that must be reduced if OUTLINE OF RULES
they impair or diminish the legitimes of the compulsory
heir. PREDECEASE INCAPACITY RENUNCIATION DISINHERITANCE
• In fact, the testamentary heirs are subject to reduction TN TN TN TN
Compulsory
even up to ZERO. REP REP NO REP REP
2. IF VACANT PORTION IS NOT ENOUGH – "compulsory heirs." – TN TN TN NA
Voluntary
WRONG. You do not reduce the shares of compulsory heirs but NO REP NO REP NO REP
the shares of testamentary heirs. If the compulsory heir gets more TN TN TN NA
Legal
than his legitime, the excess can be reduced. Why? As to the REP REP NO REP
excess, he is considered a testamentary heir.
LEGEND
ILLUSTRATION – A has 3 children, X, Y and Z. His will states "I give X, 1/3 of my • TN – Transmits Nothing

estate, A, 1/12 of my estate, and B, 1/2. The estate is worth 600,000. • REP – There is Representation
• NO REP – There is no representation
X = 1/3 = 200,000 - excess 100,000 • NA – Not applicable
Z = 1/12 = 50,000 - lacks 50,000

B = 1/2 = 300,000
 NOTE:
Y = 0 = 0 - lacks 100,000 • In all cases, there is NO transmission of successional rights to the
heir (regardless of the kind of heir or cause) 

Legitime - 300,000/ 3 = 100,000 each. • Representation only applies in Compulsory and Intestate
Lacks 150,000 (Z + Y) Succession, NEVER in Testamentary Succession 

• Representation only applies in case of Pre-Decease and
QUESTION Incapacity, NEVER in Renunciation 

1. Is Y preterited? No. There is 50,000 that he will get by intestacy. Y
can demand completion of his legitime under Art. 855. He can
get 50,000 from the undisposed portion. He just lacks 50,000.
2. Where do you get the deficiency?
a. If we follow Art. 855, get from the compulsory heirs. In
other words, get from X and Z proportionately. The
result is that Z will complain because now his legitime
would be incomplete.
b. Get the deficiency proportionally from testamentary
heirs. Why? They are not entitled to any share if it
impairs the legitime of the compulsory heirs.

TOTAL LACK OF LEGITIMES – 150,000.

1. Get the 50,000 undisposed of – Lacking only 100,000.
2. Get proportionally from the shares of testamentary heirs.

TESTAMENTARY HEIRS X = 100,000 - 25,000

B = 300,000 - 75,000
100,000

SUGGESTIONS TO REPHRASE
• TOLENTINO – To harmonize this article with the system of legitimes,
and to erase its absurdity, it should perhaps be rephrased as
follows: “The share of the compulsory heir omitted in a will must
first be taken from the part of the estate not disposed of by the
will, if any: if that is not sufficient, as much as may be necessary
must be taken proportionally from the shares of the other heirs
given to them by will. 

• BALANE – You should not reduce the legitime of the compulsory
heirs, but rather, proportionally reduce the shares of the
TESTAMENTARY HEIRS (who may also be compulsory heirs whose
legitimate is not impaired, meaning, they get more than entitled
legitime) 


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 SECTION 3. - SUBSTITUTION OF HEIRS Q – What are the cause for simple substitution (vulgar)? When is a first
(original) heir said to be in default?
Art. 857. Substitution is the appointment of another heir so that he may enter 1. Predecease of the first heir 

into the inheritance in default of the heir originally instituted. (n) 2. Renunciation of the first heir 

3. Incapacity of the first heir 

Q – What do you mean by "In default."?
• Failure to inherit because of: (a) predecease, (b) renunciation or Q – How does the testator provide for simple (vulgar) substitution?
(c) incapacity. a. By SPECIFYING all the three causes above
• "I institute A, in case A predeceases me, or renounces,
Q – What is substitution? Art. 857. or is incapacitated to succeed, then B will substitute
• Substitution is the appointment of another heir so that he may him."
enter into the inheritance in default of the heir originally instituted. b. By MERELY PROVIDING, “simple substitution”
• "I institute A, and by way of simple substitution, I
Q – Is this definition complete? institute B as substitute." In such a case, all the three
• NO. Because it only covers simple substitution and excludes causes of substitution will apply unless the testator
fideicommissary provides otherwise.
• COMPLETE DEFINITION – Substitution is the appointment of
another heir so that he may enter into the inheritance either in NOTE – The testator may limit the operation of the 3 causes. He can just
default of, or subsequent to the heir originally instituted or after. mention what he wants to apply – it becomes a RESTRICTED SIMPLE
SUBSTITUTION
Q – What are the 2 kinds of substitution? • EXAMPLE – "I institute A, and if he predeceases me, then B will
• Simple – Second heir enters after the default of the first substitute him." In such a case, B will only substitute A if A dies
• Fideicommissary – Second heir enters after the first. before the testator.
• However, if the cause is not covered by the causes given in this
FIDECOMMISSARY article, then the estate will pass by intestacy.
SIMPLE (VULGAR)
(FIDEICOMISARIA)
BASIS – The right to provide or BASIS – The right to provide or Q – May the testator provide for substitution on other grounds?
substitutions is based on substitutions is based on • YES. But strictly speaking, this will not be called “substitution”
testamentary freedom. testamentary freedom. • It becomes a CONDITION – it would be called a conditional
testamentary disposition
In simple substitution, the basis is In fideicommissary, the basis is the • Nevertheless, it would still be a valid substitution.
the freedom of the testator to testator’s freedom to impose a
make a second choice or burden on the first heir. Q – How many substitutions can be made by the testator?
replacement. • ONLY ONE substitution is allowed. The person substituting cannot
RIGHT TO MAKE A SECOND RIGHT TO IMPOSE BURDENS be substituted again.
CHOICE
WHAT IS IT – The testator makes a WHAT IS IT – The testator imposes Art. 860. Two or more persons may be substituted for one; and one person
second choice, in case the first what is essentially a restriction or for two or more heirs. (778)
choice does not inherit. burden on the first heir, couple
with a selection of a subsequent BRIEF COMPENDIOUS
IN DEFAULT OF THE FIRST recipient of the property. Two or more One substitute for two or more original heirs.
substitutes for one Default of ONLY ONE Default of ALL
EXAMPLE – A has sons whom he does not want to get the free portion. He original heir. original heir* original heirs.
wants to give it to B. But B may die before A. After B, A prefers C to get it. As Substitution will NOT Substitution will take
bet. C and his children, A would rather that C get it. As such, C is appointed take place à the place.
by the testator as B's substitute. share left vacant will
accrue to the
NOTE – Substitution covers the free portion only surviving co-heir(s)
*BUT, as an EXCEPTION – the testator may
Art. 858. Substitution of heirs may be: provide for substitution even if only one of the
(1) Simple or common; 859 – Vulgar
original heirs is in default.
(2) Brief or compendious; 860 – Breviloca Compendiosa
(3) Reciprocal; or 861 – Reciproca
BALANE
(4) Fideicommissary. (n) 863 – fideicomisaria
• BRIEF OR COMPENDIOUS – One substitutes for two or more heirs or two
or more substitutes for one heir,
Q – What are the two kinds of substitution?
• EXAMPLE – "I institute A to 1/8 of my estate and as his substitute by
• Simple and fideicommissary.
way of simple substitution, I designate X and Y."
• Just a variation of either simple or fideicommissary
Q – What are the modes, or modalities (variations) for each kind?
• FIDEICOMMISSARY-- "I institute A to 1/2 of my estate and impose upon
• Bried or compendious and reciprocal.
him the obligation to preserve and transmit the property upon his
death to X and Y."
BALANE – You cannot have a purely reciprocal substitution. All substitutions
are either simple or fideicommissary.
NOTE – They are synonymous and may be used interchangeably.
Q – In the OCC what are the two kinds?
PROBLEM – "I institute A, B and C to 1/3 each of my estate and in case they
• EJEMPLAR – A substitution a father was allowed to make because
all die before me, I institute D as substitute by way of simple substitution."
his son was insane. This was a kind of fideicommissary.

• Q – If A and B predecease the testator, will D get their shares? NO.
• POPULAR – A substitution a father made in behalf of a child who
The substitution will take effect only upon the death of all the three.
died before he reaches 18.
However, if what the will stated was "any or... all die before me," then
D will get A and B's shares.
Art. 859. The testator may designate one or more persons to substitute the
heir or heirs instituted in case such heir or heirs should die before him, or
PROBLEM – X makes the following provision in his will: “I institute A and B to
should not wish, or should be incapacitated to accept the inheritance.
1/3 of my estate and nominate C as their substitute.” If A predeceases B,
the 1/3 portion, upon X’s death goes to B; there is no substitution by C.
A simple substitution, without a statement of the cases to which it refers, shall
Substitution occurs only if both A and B are disqualified.” 

comprise the three mentioned in the preceding paragraph, unless the
testator has otherwise provided. (774)
Art. 861. If heirs instituted in unequal shares should be reciprocally
substituted, the substitute shall acquire the share of the heir who dies,
renounces, or is incapacitated, unless it clearly appears that the intention
of the testator was otherwise. If there are more than one substitute, they
shall have the same share in the substitution as in the institution. (779a)

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Q – What is reciprocal substitution?
• It is when the heirs are made substitutes of one another.
• As earlier said, it is merely a modality or variation of the vulgar or
fideicomisaria.
• If both are disqualified, then no substitution will take place and
the estate will pass by intestacy.
EXAMPLE OF SECOND SENTENCE – "I institute A to 1/3, B to 1/6, and C to 1/2
of my estate and by way of simple substitution, I institute them as substitutes
of one another."
• Q – If C predeceases the testator, how will his share be divided if
the estate is worth P60,000?
A = 1/3 = P20,000
B = 1/6 = P10,000
C = 1/2 = P30,000
Q – How will the P30,000 be divided between A and B?
1. Get the LCD of the remaining heirs. In the example, it is 6.
2. Get the ratio between the remaining heirs and the sum of the
ratios.
 succeed at the time of the testator’s death.
A = 2/6, B = 1/6. The ratio between A and B is 2 : 1. The sum of the
ratios is 3.
3. TWO WAYS
a. Divide the 30,000 by the sum of the ratios (3) and
multiply the result by the ratio between them of each
heir.
30,000/ 3 = 10,000.
A = 2 x 10,000 = 20,000
B = 1 x 10,000 = 10,000
b. Multiply 30,000 by the ratio of each heir with respect
to the total ratio.
A = 2/3 x 30,000 = 20,000
B = 1/3 x 30,000 = 10,000
4. Add the result in number 3 to what they initially received.
A = 20,000 + 20,000 = 40,000;
B = 10,000 + 10,000 = 20,000.
APPLICATION OF RECIPROCAL SUBSTITUTION
1. If heirs instituted in unequal (or equal) shares should be
reciprocally substituted, the substitute (heir) shall acquire the
share of the heir who dies, renounces, or is incapacitated
Example: “I give 1/4 of my to A and 1/8 to B, and i institute them
reciprocally” If A dies, his share will go to B; if B dies, his share will
go to A.
2. If there are more than one substitute, they shall have the same
share in the substitution as in the institution.
Example: A, B, and C are instituted, respectively, to 1/2, 1/3 and
1/6 of the estate. Should A predecease the testator, B and C will
acquire A’s 1/2 portion in the proportion of 2:1 (their testamentary
shares being 1/3 and 1/6). Should B predecease, A and C will get
B’s 1/3 portion in the proportion of 3:1 (corresponding to the
testamentary shares of 1/2
Art. 862. The substitute shall be subject to the same charges and conditions
imposed upon the instituted heir, unless and testator has expressly provided
the contrary, or the charges or conditions are personally applicable only to
the heir instituted. (780)
BALANE – Substitute merely “steps into the shoes” of the instituted heirs.
• In substitution, the 2nd heir takes the place of the first heir. A kind
of subrogation.
 the first heir is merely fiduciary, and that of a usufruct, having the
• GENERAL RULE – The second is subject to the same charges and
conditions as the first heir.
• EXCEPTIONS
1. Testator has expressly provided the contrary.
 •
2. Charges and obligations are personally applicable to the
first heir.
• The article does not only cover charges and conditions but also
the rights of the first heir, subject to the same exceptions.
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Art. 863. A fideicommissary substitution by virtue of which the fiduciary or first
heir instituted is entrusted with the obligation to preserve and to transmit to
a second heir the whole or part of the inheritance, shall be valid and shall
take effect, provided such substitution does not go beyond one degree
from the heir originally instituted, and provided further, that the fiduciary or
first heir and the second heir are living at the time of the death of the
testator. (781a)
Again, fideicommissary is the second kind of substitution.
Q – What are the ELEMENTS OF FIDEICOMMISSARY?
1. THE FIRST HEIR (fiduciary) – who takes the property upon the
testator’s death.
2. THE SECOND HEIR (fideicommissary heir) – who takes the property
after or subsequently from the fiduciary
3. THE SECOND HEIR – must be one degree from the first heir.
4. THE DUAL OBLIGATION – imposed upon the fiduciary to preserve
the property and to transmit it after the lapse of the period to the
fideicommissary heir
5. BOTH HEIRS must be living AND qualified (capacitated) to
RE 1 – THE FIRST HEIR (fiduciary) – who takes the property upon the testator’s
death.
• The fiduciary enters upon the inheritance when the testator dies.
• BALANE – For the substitution to operate, the first heir receives
property, either upon the death of the testator or upon the
fulfillment of any suspensive condition imposed by the will. As
distinguished from a simple substitution where the second heir
receives property only upon default of the first heir. First heir does
not receive the property.
Q – What is the nature of the fiduciary’s (first heir’s)right over the property?
• Usufruct.
RE 2 – THE SECOND HEIR (fideicommissary heir) – who takes the property
after or subsequently from the fiduciary
• But the fideicommissary heir already has a vested right at the
time of the testator’s death, and his right is merely subject to a
period.
• This is true even if the fideicommissary does not receive the
property yet. Bothe heirs enter into the inheritance one after the
other, each in his own turn or sequence.
• Thus, he has a VESTED expectancy.
• Even if he dies before the end of the fiduciary’s term, the right
passes to the heirs because he already has vested right in it. (He
need not be alive by then)
Q – What is the tenure or duration of the fiduciary (first heir)?
• FIRST – the period indicated by the testator.
• SECOND – if the testator did not indicate a period, then the
fiduciary’s lifetime.
RE 3 – THE SECOND HEIR – must be one degree from the first heir.
• Only one transmission is allowed, from the first heir to the second
heir. (from the fiduciary to the fideicommissary heir)
o Upon the lapse of time for the first heir, he transmits the
property to the second heir. They cannot be any more
fideicommissary substitution coming from the same
testator. In other words, there can only be one
fideicommissary transmission such that after the first,
there can be no second fideicommissary substitution.
• ONE DEGREE – second heir must be a PARENT or a CHILD of the
first heir.
• ONE GENERATION – Does it refer to the degree of relationship or
number of substitution? It refers to the degree of relationship.
• See PALACIOS V. RAMIREZ and VDA ARANAS V. ARANAS
RE 4 – THE DUAL OBLIGATION – imposed upon the fiduciary to preserve the
property and to transmit it after the lapse of the period to the
fideicommissary heir
• This requisite is the ESSENCE of fideicommissary. This is because
right to use and enjoy property, but without the right to dispose
of the same.
• See CRISOLOGO V. SINGSON and PCIB V. ESCOLIN.
"GIVEN TIME." – Provided by the testator; if not, then it is
understood that the period is the lifetime of the fiduciary.
RE 5 – BOTH HEIRS must be living AND qualified (capacitated) to succeed at
the time of the testator’s death.
• The only temporal criterion is the time of the testator’s death.
 • NOTE – The testator need not survive the first heir; if the second substitution. Her grandnephews object on the ground that there
heir dies before the first heir, the second heir’s heirs merely take could be no fideicommissary substitution because the substitutes
his place. (866) were not within one degree of each other. The SC agreed with
• ART. 866 – From the moment of the death of the testator, the the nephews. It said, quoting Tolentino, that one degree refers to
rights of the first and second heir are vested. one generation. As such, the fideicommissary can only be either
• NATURE OF RIGHT OF FIRST HEIR – Similar to usufruct – Possessory a parent or child of the fiduciary.
and enjoyment of rights without right to alienate. • BALANE COMMENT – This is an unsatisfactory decision! Justice
• If fiduciary is able to register the property in his name, Abad Santos, my teacher in property law, merely quoted
fideicommissary should annotate his claim on the land on the title Tolentino, without explaining why.
to protect himself against any alienations in favor of innocent o It is not very clear how the phrase “one degree from
third parties. the heir originally instituted” clearly indicates that the
second heir must be related to and be one
BALANE DISAGREES WITH TOLENTINO that there can be no successive generation from the first heir,” and thereby sweeps
fideicommissaries or several transmissions. If this is allowed, chaos will result if aside the theory that degree simply means ‘transfer.’
the fideicommissaries die. You will not know who will get the property and The phrase is ambiguous, it is ambiguous in our code
that the property may be tied up for centuries. and in the spanish code, though I agree that it
pertains to blood relationship.
CASE – PALACIOS V. RAMIREZ o An exception is the case of an adopted child, they
• F – JOSE EUGENIO RAMIREZ, a Filipino national, died in Spain on should be included under this kind of substitution as
DECEMBER 11, 1964, with only MARCELLE DEMORON RAMIREZ, his they are legitimate children by legal fiction.
widow, as compulsory heir. His will was admitted to probate on o The eminent civilist Justice Jose Vitug opines that the
JULY 27, 1965 and MARIA LUISA PALACIOS was appointed as Palacios interpretation of degree as degree of
administratrix. relationship “would disenfranchise a juridical person
• JUNE 23, 1966 – the administratrix submitted a project of partition. from being either a fiduciary or fideicommissary heir.
The property is to be divided into two parts. o Thus, fideicommisary substitutes only applies to natural
1. ONE PART – shall go to the widow in satisfaction of her persons
legitime • SCAEVOLA AND TRAVIESAS – Degree should mean designation,
2. OTHER PART OR FREE PORTION – shall go to JORGE and or transmission, or transfer.
ROBERTO RAMIREZ (Two grand Nephews)
3. ONE THIRD OF THE FREE PORTION – charged with the CASE – VDA ARANAS V. ARANAS
widow’s usufruct • F – Petitioners were assailing the stipulation in the will which
4. TWO THIRD OF THE REMAINING FREE PORTION – Usufruct provided that the testator’s nephew shall have usufructuary
in favor of Wanda de Wrobleski rights and be the first administrator of certain properties; and
that upon his death or refusal to continue to act as
MARCELLE ROBERTO AND JORGE WANDA usufructuary/administrator, the administration shall pass to the
• Widow • Two grand • Companion anyone of the sons of his brother. Petitioners contended that this
• French who lives in nephews • Austrian who lives violated Art. 870, CC.
Paris • Lives in Malate in Spain • H – SC ruled that there was a limitation to the right of the nephew,
• Received ½ (as • Received ½ of the • received namely his death or his refusal. The disposition must be respected
spouse) and Free portion usufructuary rights and given effect. Upon the death or refusal of the nephew, the
usufructuary right of 2/3 of the free property can be disposed of subject to the limitations provided
over 1/3 of the free portion in Art. 863 concerning fideicommissary substitution.
portion • vulgar substitution • B – It could possibly be interpreted as containing an IMPLIED
in favor of Juan VALIDATION of a usufruct subject to a fideicommissary
Pablo Jankowski substitution in favor of persons BEYOND ONE DEGREE OF
and Horacio RELATIONSHIP (namely, the original grantee’s brothers)
Ramirez were • Q – Can that implication be considered to have reverse
made by the Palacios? Hardly.
testator in the will. 1. Reversals by implication should not be favored. The
implication in Aranas is too vague and too casual. The
• JORGE AND ROBERTO OPPOSED term DEGREE in Art. 863 means degree of relationship
1. Provisions for vulgar substitution in favor of Wanda de and not transfer.
Wrobleski with respect to the widow's usufruct and in 2. There was no express obligation imposes upon the first
favor of Juan Pablo Jankowski and Horacio V. heir to preserve the property and transmit it to the
Ramirez, with respect to Wanda's usufruct are invalid second heir in the testator’s will in Aranas. A silence
because the first heirs Marcelle and Wanda) survived that negates the existence of a fideicommissary
the testator substitution. Usufruct as a general rule, is alienable.
2. Provisions for fideicommissary substitutions are also
invalid because the first heirs are not related to the CASE – CRISOLOGO V. SINGSON
second heirs or substitutes within the first degree, as • F – Donya Leona left a will stating that upon Consolacions
provided in Article 863 of the Civil Code Crisologo's death death—whether this happens before or after
• H – In this case, the testator provided for fideicommisary that of Donya Leona's death—Consolacion's share shall belong
substitution but the court ruled that such substitution was VOID to the brothers of the Donya Leona.
because the substitutes are not related to the heir originally • I – Whether or not such substitution is a fideicommissary
instituted. 
 substitution.
• Tolentino says that ONE DEGREE from the first heir is, adopting the • H – No, it is not fideicommissary substitution. A careful perusal of
view of Manresa and Sanchez Roman, construed as the testamentary clause under consideration shows that the
GENERATION. The code thus clearly indicates that the second substitution of heirs provided for therein is not expressly made of
heir must be related to and be one generation from the first heir. the fideicommissary kind, nor does it contain a clear statement
• It follows that the fideicommissary can only be either a child or to the effect that appellee, during her lifetime, shall only enjoy
parent of the first hair. These are the only relatives who are one usufructuary rights over the property bequeathed to her, naked
generation or degree from the fiduciary. ownership thereof being vested in the brothers of the testatrix. As
• R – The Court ordered to distribute the estate of Jose Eugenio already stated, it merely provides that upon appellee's death—
Ramirez as follows: whether this happens before or after that of the testatrix—her
o ½ thereof to his widow as her legitime; share shall belong to the brothers of the testatrix.
o ½ thereof which is the free portion to Roberto and • It is of the essence of a fideicommissary substitution that an
Jorge Ramirez in naked ownership and the usufruct to obligation be clearly imposed upon the first heir to preserve and
Wanda de Wrobleski with a simple substitution in favor transmit to another the whole or part of the estate bequeathed to
of Juan Pablo Jankowski and Horace V. Ramirez. him, upon his death or upon the happening of a particular event.
• BALANE SUMMARY – In the case, 2/3 of the usufruct of the free • The last will of the deceased Dña. Leona Singson, established a
portion was given to Wanda, with 2 other persons not related to mere sustitucion vulgar, the substitution Consolacion Florentino
her as her substitutes by way of simple and fideicommissary by the brothers of the testatrix to be effective or to take place

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 upon the death of the former, whether it happens before or after
that of the testatrix.
CASE – PCIB V. ESCOLIN – Effect if there is no obligation to preserve and
transmit.
• F – In the case, the spouses CHARLES NEWTON AND LINNIE JANE
HODGES executed reciprocal wills. It provided that the share in
the conjugal assets will pass to the surviving spouse and that the
surviving spouse can do whatever he or she wants with the
inheritance, even sell it, and if there is any residue from the
inheritance from the other spouse upon the death of the surviving
spouse, it shall pass to the brothers and sisters of the spouse who
first died.
• The wife LINNIE JANE died first. The testator instituted her husband
to her entire estate as she had no compulsory heirs, along with
the right to manage, control, use enjoy and dispose of such
estate; though there were certain properties in Texas which could
not be disposed of. The testator also provided that upon her
husband’s death, the remainder or residue of the estate would
pass to her siblings. 
 heir.
• The husband did not liquidate the conjugal assets because he
was the sole heir of his wife. Upon the husband's death, it is now
questioned whether there is any residue from the wife's estate
that could pass to her brothers and sisters.
• PCIB, (and the) administratrix of the husband claims that:
1. There was no fideicommissary substitution because
there was no obligation upon the husband to preserve
and transmit the property to the brothers and sisters of
the wife as seen in his authority to sell the property, and
2. since there was an invalid attempt to make a
substitution, then the testamentary disposition is void
and there can be no transmission of rights to the
brothers and sisters.
• H – The SC agreed with contention no. 1 on the same ground. The
second requisite was absent and there could be no
ficeicommissary substitution. With regard to the second
contention, the SC disagreed. The SC said there was a
simultaneous substitution. The institution of the husband was
subject to a resolutory condition while the institution of the
brothers and sisters was subject to a suspensive condition. Both
conditions are one and the same. It is the existence in the
husband's estate of assets he received from his wife at the time
of his death. If there is, the husband's right to the residue is
extinguished upon his death while the right of the brothers and
sisters’ vests at the same time.
• The substitution provided for by the Will is not a fideicommissary
substitution because there is clearly no obligation the part of the
husband, as the first designated hair, to preserve the properties
for the substitute heirs. In fact, the husband had absolute freedom
to dispose of the properties.
• The designation that should the husband dies, then the brothers
and sister of the testator would receive whatever residue or
properties are left is NOT a fideicommissary substitution.
• But, this does not render inoperative or invalid the dispositions in
favor of the “substitute” heirs. The brothers and sisters are not
substitutes of the husband because under the will, they are not to
inherit what the husband cannot, would not or may not inherit.
What they inherit is that which he, the husband, would not
dispose of.
• This makes them heirs instituted SIMULTANOEUSLY with the
husband (first heir), subject only to certain conditions. It becomes
a CONDITIONAL SIMULTANEOUS SUBSTITUTION, partially resolutory
as to the husband, and suspensive as to the brothers and sisters.
• B – Just because the substitution is void, does NOT make the
institution void. It is merely a different kind of institution a double
institution in this case. The first institution (to the husband) subject
to a resolutory condition (to the siblings), the second institution
subject to a suspensive condition.
o Here, the institution is deemed to be a simultaneous
institution, not a fideicommissary.
o It is still a valid substitution.
• SCAEVOLA – Characterized the situation as a legacy or devise of
the residue.
Art. 864. A fideicommissary substitution can never burden the
legitime. (782a)
BALANE – In fact, no testamentary disposition can burden the legitime
because legitime is transmitted by operation of law upon the death of the
testator. The testator has no power over it.
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Art. 865. Every fideicommissary substitution must be expressly made in order
that it may be valid.
The fiduciary shall be obliged to deliver the inheritance to the second heir,
without other deductions than those which arise from legitimate expenses,
credits and improvements, save in the case where the testator has provided
otherwise. (783)
Q – How do you make/ impose a fideicommissary substitution?
• THERE ARE TWO WAYS
a. BY EXPRESS IMPOSITION – using the term
“fideicommissary”
EXAMPLE – "I institute A to 1/2 of my estate, and by way
of fideicommissary substitution, I institute B as his
substitute."

b. BY IMPOSING UPON THE FIRST HEIR THE ABSOLUTE
OBLIGATION to preserve and to transmit to the second
EXAMPLE – "I institute A to 1/2 of my estate and impose
upon him the obligation to preserve and to transmit
the same to B upon his return."
Q – How should the first heir transmit the property to the second heir?
• The fiduciary should DLEIVER the property intact and
undiminished to the fideicommissary upon arrival of the period.
• GENERAL RULE – There should be no deductions.
• EXCEPTIONS
1. Legitimate expenses
2. Credits
3. Improvements – These must pertain to necessary and
useful expenses and NOT ornamental expenses.
Q – How about damage to or deterioration of property?
• GENERAL RULE – The fiduciary must bear the loss, damage, or
deterioration if it is due to his fault or negligence
• EXCEPTION – It is caused by a fortuitous event or ordinary wear
and tear
Art. 866. The second heir shall acquire a right to the succession from the time
of the testator's death, even though he should die before the fiduciary. The
right of the second heir shall pass to his heirs. (784)
BALANE – This relates to the fourth requisite of fideicommissary.
• At the time of the testator’s death, right of the first and second
heir become vested.
Q – Should the second heir survive the testator?
• YES. Otherwise there would be no substitution
Q – Should the second heir survive the first heir?
• NO. As long as he survives the testator, (sure na siya!). In case he
dies, the second own heirs simply take his place.
• The second heir’s right vests upon the testator’s death, only that
his institution is one subject to a suspensive term.
Art. 867. The following shall not take effect:
(1) Fideicommissary substitutions which are not made in an express
manner, either by giving them this name, or imposing upon the
fiduciary the absolute obligation to deliver the property to a
second heir;
(2) Provisions which contain a perpetual prohibition to alienate, and
even a temporary one, beyond the limit fixed in article 863;
(3) Those which impose upon the heir the charge of paying to
various persons successively, beyond the limit prescribed in
article 863, a certain income or pension;
(4) Those which leave to a person the whole part of the hereditary
property in order that he may apply or invest the same
according to secret instructions communicated to him by the
testator. (785a)
INEFFECTIVE PROVISIONS IN A WILL
1. FIDEICOMMISSARY SUBSTITUTIONS WHICH ARE NOT MADE IN AN
EXPRESS MANNER
• Relate to Art. 865 par 1 – If there is no dual obligation,
then there is no fideicommissary substitution.
• But the lack of this element does NOT, by that fact
alone, nullify the substitution
 • It only means that it is not a fideicommissary
substitution. It could be something else as in PCIB V.
ESCOLIN.
2. PROVISIONS WHICH CONTAIN A PERPETUAL PROHIBITION TO
ALIENATE, AND EVEN A TEMPORARY ONE, BEYOND THE LIMIT FIXED
IN ARTICLE 863
• This is NOT a fideicommissary but a prohibited
institution
a. Perpetual prohibition will freeze the property which is
against public policy
b. Temporary prohibition is allowed but cannot go
beyond the limit in Art. 863 – limit is the death of the
fiduciary. Cannot prohibit alienation beyond the
death of the fiduciary. When the property goes to the
second heir, there is no more prohibition.
• Commentators say that it refers to Art. 870 rather than
Art. 863. They contend that the limit is 20 yrs. In such a
case, the contention is valid if you do not make it
applicable to substitutions.
FIDEICOMMISSARY NON-FIDEICOMMISSARY
Limit is the first heir’s lifetime Limit is 20 years.
Q – If you prohibit 30 years, what will happen?
• There are 2 answers
i. The whole period is void
ii. Only the first 20 years is valid. (BALANE – agrees
with this)
3. THOSE WHICH IMPOSE UPON THE HEIR THE CHARGE OF PAYING, TO
VARIOUS PERSONS SUCCESSIVELY, A CERTAIN INCOME OR
PENSION BEYOND THE LIMIT PRESCRIBED IN ARTICLE 863
• There can only be two beneficiaries of the pension,
one after the other, and the second must be one
degree from the first.
o The first and second recipient must be
within one degree from each other and it
cannot extend beyond the second
recipient.
EXAMPLE – I give my entire estate to X and
impose upon him the obligation to give a
P10,000 pension to Y and in Y's death, to Y's
son.
But if the obligation is to give pension to Y
and then in Y’s death, his grandson, then it
is ineffective because they are not within
one degree from each other 
 •
If the obligation is to give pension to Y and
then in Y’s death, his son, then in the son’s
death, to Y’s grandson, then it is also
ineffective because there can only be two
beneficiaries. 
 best way to respect the intent of the testator which is to transmit
• There is no prohibition on simultaneous beneficiaries.
EXAMPLE – “I give my entire estate to X and impose
upon him the obligation to give a P10,000 pension to
Y and Z and in case of their deaths, to their sons.”
• Attempt to circumvent one degree limitation of
fideicommissary substitution.
EXAMPLE – "I give 1/3 of my estate to X and impose
upon him the obligation to give a P5,000 pension to A
and in A's death, to A's son." This is allowed. But if this is
extended to the son of the son of A, then it won't be
allowed. The first and second recipient must be w/in
one degree. But it cannot extend beyond the second
recipient.
4. THOSE WHICH LEAVE TO A PERSON THE WHOLE OR PART OF THE
HEREDITARY PROPERTY IN ORDER THAT HE MAY APPLY OR INVEST
THE SAME ACCORDING TO SECRET INSTRUCTIONS
COMMUNICATED TO HIM BY THE TESTATOR
• DUMMY PROVISION. Here, the entire provision
becomes VOID. There is no intent to dispose.
• The obvious purpose of such surreptitious disposition is
to circumvent some prohibition or disqualification.
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EXAMPLE – Prohibition of giving to paramour – A has a paramour
X. A gets B as a dummy. Because of the prohibition of giving to a
paramour, they agree between themselves that A will leave to B
a devise and from its profits B will give X. So A pretends to name
B as heir. But in reality, such institution is for the benefit of X.
a. In such a case, the institution will not benefit X. Even if
X shows a written agreement bet. A and B, it cannot
be enforced because it is contrary to law.
b. As regards B, he can keep the inheritance even if he
double-crosses A. A instituted B at his own risk that he
may be double-crossed by B. Too bad for X.
BALANE – The practical problem here, however, is the difficulty of
establishing the fact of circumvention. Supposing the ostensible heir
conceals or destroys the secret instructions (something fairly easy to do) and
claims as heir under the testamentary provision as worded, what then? It
would appear that, in the absence of proof, the disposition is operative in
favor of such ostensible heir.
Art. 868. The nullity of the fideicommissary substitution does not prejudice the
validity of the institution of the heirs first designated; the fideicommissary
clause shall simply be considered as not written. (786)
Q – When is there a nullity of fideicommissary substitution?
• When it fails to comply with the 5 REQUISITES in ART. 863.
Q – What is the effect of such nullity?
• The fideicommissary substitution becomes VOID and
INEFFECTIVE.
• The institution of the first heir simply becomes PURE and
UNQUALIFIED. It will not be annulled.
BALANE – The nullity of the fideicommissary substitution will not affect validity
of institution of the first heir.
EXAMPLE – "I hereby institute A to 1/3 of my estate under obligation to
preserve and to transmit the same to B upon his death."
a. If institution of B is invalid, what will happen to the institution of A?
Valid. Institution of A is valid without substitution.
b. If the institution of A is invalid, what will happen to the institution
of B? The law does not provide. Think about it.
Q – What is the effect of invalidity/ ineffectivity of the institution of the FIRST
HEIR in fideicommissary substitutions?
• This article does not provide for a case where it is the institution of
the first heir that is void or ineffective 

• JUSTICE VITUG – When the fiduciary predeceases or is unable to
succeed, the fideicommissary heir takes the inheritance upon
the death of the decedent 

BALANE – Vitug, however, does not elaborate. Suffice it to say
that there is much to recommend the view that the nullity or
inefficacy of the institution of the fiduciary should not nullify the
institution of the fideicommissary heir, but, on the contrary, should
make the right of the latter absolute and effective upon the
testator’s death, as if no fiduciary had been instituted. This is the
to the fideicommissary heir the property covered by the
fideicommissary substitution, independently of the will of the
fiduciary. 

Art. 869. A provision whereby the testator leaves to a person the whole or
part of the inheritance, and to another the usufruct, shall be valid. If he gives
the usufruct to various persons, not simultaneously, but successively, the
provisions of Article 863 shall apply. (787a)
Q – Are successive usufructuaries valid?
• YES. Provided, there can only be two (2) usufructuaries, one after
the other.
• PROVIDED FURTHER, the requisites in ART. 863 must be present.
BALANE – This is similar to Art. 867, par. 3 on the heir having the obligation of
paying pension or income to other persons. It is NOT a fideicommissary
substitution but its rulesand requirements in Art. 863 apply; and by analogy
the other provisions on fideicommissaries can also apply 

• In other words, if there can only be two successive usufructuaries
and they should be within one degree (of blood relationship)
from each other
• Note that simultaneous (as distinguished from successive)
usufructuaries are allowed and not restricted, the testator can
designate as many usufructuaries as he wants 

EXAMPLE – "I give to A naked ownership, and to B the usufruct and upon B's
death, to his son C." This is valid within the limit of Art. 863. If it goes to the son
of the son of B, then it is invalid.

NOTE – Just as there can be a substitution with regard to the usufruct, there
can also be a substitution with regard to the naked ownership.

Art. 870. The dispositions of the testator declaring all or part of the estate
inalienable for more than twenty years are void. (n)

BALANE
• This has nothing to do with substitution. It refers to simple institution
of heir, devisee or legatee.
• This article is a recognition of the testator’s right to prohibit
alienation and is also a restriction on the testator’s testamentary
freedom.
• It is based on public policy because if the property remains
inalienable forever, it will be frozen and will negatively affect the
economy.
• If the testator provides for a period of inalienability of his
properties, to be transmitted through succession. The period
should NOT be more than twenty years.

Q – What if it is more than twenty years? (Such as if he provides for 40 years,

or the heir’s lifetime, which turns out to be longer than 20 years)
• BALANE – The period should be reduced to twenty years. The
disposition is NOT void, contrary what Art. 870 says. This is to
respect and give effect to the testator’s intent
• TWO VIEWS
1. No. The whole period is void.

2. No. But valid only for the first 20 years.

FIDEICOMMISSARY/ NON-FIDEICOMMISSARY/
SUBSTITUTIONS INSTITUTION OF HEIRS IN GENERAL
Limit is the first heir’s lifetime Limit is 20 years.

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 SECTION 4. - CONDITIONAL TESTAMENTARY DISPOSITIONS
AND TESTAMENTARY DISPOSITIONS WITH A TERM COMPARE WITH DONATIONS (ART. 727.) AND
ONEROUS OBLIGATIONS (ART. 1183.)
NOTE
• Art. 871 and 872 pertains to general provisions applicable to all Art. 727. Illegal or impossible conditions in simple and remuneratory
three
 donations shall be considered as not imposed.
• Art. 873, 874, 875, 876, 877, 883 (par. 2), 879, 880, 881, 884 pertains
to Conditional Dispositions Art. 1183. Impossible conditions, those contrary to good customs or
• Art. 878 and 885 pertains to Dispositions with a Term
 public policy and those prohibited by law shall annul the obligation
• Art. 882 and 883 (par. 1) pertains to Modal Dispositions which depends upon them. If the obligation is divisible, that part thereof
which is not affected by the impossible
GENERAL PROVISION

Art. 871. The institution of an heir may be made (CMT) Q – What is the effect of an impossible or illegal condition?
a. Conditionally (conditional), or • It is simply considered as not written
b. for a certain purpose or cause. (modal) (790a) • The testamentary disposition itself is not annulled and simply
c. Dispositions with a term – certain as to time or certain as to becomes pure.
occurrence
Q – Ok. Then what?
TERM CONDITION • Then the property immediately goes to the intended heirs.
Uncertainty when it will happen Uncertainty if at all will happen
(but it will happen) OBLICON RULE SUCCESSION RULE
SIMILARITY – Demandability of obligations – both refer to future events Annuls the obligation itself. Condition simply considered as
DIFFERENCE – certainty not written but the institution is itself
valid.
Q – Why are these 3 kinds of testamentary dispositions allowed?
• The right of the testator to impose conditions, terms and modes OBLIGATION VOID. CONDITION IS VOID
springs from testamentary freedom. In onerous obligations, the Testamentary dispositions are in
• Same principle as substitution condition imposed becomes an the nature of gratuitous
o Simple substitution – special kind of condition integral part of the causa of the obligations bases on the testators
o Fideicommissary – Institution subject to some obligation. The elimination of the liberality. This liberality is the basis
encumbrance condition results in failure of cause. of the grant.

Art. 872. The testator cannot impose any charge, condition, or substitution NO CAUSE = NO OBLIGATION
whatsoever upon the legitimes prescribed in this Code. Should he do so, the
same shall be considered as not imposed. (813a) Art. 874. CONDITION PROHIBITING MARRIAGE – An absolute condition not to
contract a first or subsequent marriage shall be considered as not written
NOTE unless such condition has been imposed on the widow or widower by the
• When a testator imposes any of the following upon the legitimes, deceased spouse, or by the latter's ascendants or descendants.
is considered as NOT imposed:
1. Charge 
 Nevertheless, the right of usufruct, or an allowance or some personal
2. Condition 
 prestation may be devised or bequeathed to any person for the time during
3. Substitution 
 which he or she should remain unmarried or in widowhood. (793a)
• BALANE – The legitime passes by strict operation of law,
independently of the testator’s will. This article is a logical Q – Can a condition prohibiting marriage be imposed?
consequence of that principle. • YES. But only for a subsequent marriage imposed by the
• This rule is similar but broader than Art. 864 (on fideicommissary deceased spouse or by his ascendant or descendants.
substitutions) and is also echoed in Article 904, par. 2 

IF THE CONDITION IS ON THE FIRST IF THE CONDITION IS IMPOSED ON
CONDITIONAL DISPOSITIONS MARRIAGE THE SECOND MARRIAGE
VOID. The condition is considered GENERAL RULE – The condition is
SUMMARY OF THE RULES as not imposed. deemed as not imposed.
KIND OF CONDITION EFFECT BASIS
IMPOSSIBLE REASON – ART. 873 – It is contrary EXCEPTION – VALID if imposed by:
Art. 873
CONDITIONS to law and good customs. a. spouse;
ILLEGAL CONDITIONS Condition is VOID b. ascendants of spouse;
CONDITION c. descendants of spouse.
PROHIBITING A FIRST
MARRIAGE VOID – If imposed by anyone else.
• Imposed by the deceased EXAMPLE – "I give 1/3 of my estate EXAMPLE: GENERAL RULE: "I give
Art. 874 to A if she does not get married." 1/3 of my estate to Mr. A on the
CONDITION spouse, or by his/her

 The condition is considered as not condition that if he should be
PROHIBITING A asecendants or descendants:
SUBSEQUENT Condition is VALID 
 imposed. widowed, he will not get married."
MARRIAGE • Imposed by anyone else: The condition is deemed as not
Condition is VOID 
 imposed here.
CONDITION THAT THE
HEIR MAKE A EXCEPTION: "I give the entire free
PROVISION IN HIS portion of my estate to my
Disposition is VOID Art. 875 husband A on the condition that if
WILL IN FAVOR OF THE
TESTATOR OR OF ANY I predecease him, he will not get
OTHER PERSON married." The condition is valid in
this case.
Art. 873. IMPOSSIBLE CONDITIONS and those contrary to law or good
customs shall be considered as not imposed and shall in no manner OTHER SITUATIONS
prejudice the heir, even if the testator should otherwise provide. (792a) 1. What about a condition to contract marriage? Valid because it
is not prohibited and by contrary implication.
BALANE: Impossible conditions include those which are illegal, against
public order and public policy. The article only refers to absolute prohibition. The testator may still
• EFFECT: It nullifies the condition. The condition is deemed as not impose a condition to marry either with reference to a particular
imposed. The testamentary disposition becomes pure, absolute person or a class.
and unconditional.

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 EXAMPLE APPLICABILITY OF ART. 876, 877, 883 PAR. 2, 879
• You should not marry a foreigner These govern potestative, casual and mixed conditions.
• Do not marry miss C
• Do not marry a Lawyer KINDS OF CONDITIONS
• You must marry a Doctor. PURELY POTESTATIVE CASUAL MIXED CONDITION
The fulfillment of the The fulfillment of the The fulfillment of the
These are valid conditions. Because they are only relative condition depends condition depends condition depends
prohibitions. solely upon the will of solely on chance or partly on chance or
the heir, devisee or on the will of a third will of a 3 person
rd

2. What about a condition to enter into religious life? Valid. legatee. person. and partly on the will
3. What about a condition to renounce a religion? Not valid. of the heir, devisee, or
4. What a about a priest? Can you require him to marry? Of course legatee.
Not. E.g., "I give my entire E.g., "I give X, 1/3 of "I give one million to A
5. Can the testator make a condition terminating a testamentary free portion to Erap my estate should provided he sets up a
benefaction should the heir contract a marriage? (see example should he shave his Mayon erupt one foundation for the
below) YES. moustache." year from now." victims of the next
eruption of Mayon."
BALANE – The second paragraph relaxes the rule to go around the
prohibition of the first par. E.g., "I give A a pension of P10,000 during the POSITIVE POTESTATIVE CONDITION NEGATIVE POTESTATIVE
entire time she is single." This is a valid condition. (ART. 876) CONDITION (ART. 879)
GENERAL RULE: The condition must This is when the potestative
Art. 875. Any disposition made upon the condition that the heir shall make
be fulfilled as soon as the heir condition imposed upon the heir
some provision in his will in favor of the testator or of any other person shall learns of the testator's death. consists in not doing or not giving
be void. (794a)
something, 

EXCEPTIONS:
Q – What is SCRIPTURA CAPTATORIA?
• The condition was already Heir must give security to
• It is a legacy-hunting disposition complied with at the time the guarantee (caucion Muciana)
• It is void. heir learns of the testator’s the return of the value of property,
death, and 
 fruits, and interests, in case of
EXAMPLE
• The condition is of such a contravention. 

• “I institute you in my will provided that you also institute me (or
nature that it cannot be
other persons) in yours.”
fulfilled again. EX – Prohibition to Marry under Art.
• "I give 1/3 of my estate to A provided he makes a will instituting
874.
me (or B) as heir."
RULES FOR CASUAL AND MIXED CONDITIONS:
Q – Why is it void?
• GENERAL RULE – The condition may be fulfilled any time, either
before or after the testator's death unless the testator provides
REASONS FOR THE PROHIBITION
otherwise.
• It converts testamentary grants into contractual transactions
o Why? It is not w/in the heir, devisee or legatee's
because the consideration becomes onerous rather than
control.
gratuitous. 

• QUALIFICATION: If condition is already fulfilled at the time of the
• It deprives or restricts the heir of testamentary freedom because
execution.
there is a pressure to make a will. 

a. Testator is unaware – The condition is deemed
• It gives the testator the power to dispose mortis causa not only of
complied with or fulfilled.
his property but also of his heir’s 

b. Testator is aware
i. If the condition can no longer be fulfilled
Q – What is declared void?
again, it is deemed fulfilled;
• The testamentary disposition itself, not just the condition.
ii. If the condition can still be fulfilled, fulfill it
• Therefore, it is deemed not imposed at all. again.

POTESTATIVE, CASUAL AND MIXED CONDITIONS RULES FOR CONSTRUCTIVE COMPLIANCE – That when the heir, devisee or
legatee has done everything to comply with the condition but the condition
Art. 876. Any purely potestative condition imposed upon an heir must be still does not happen.
fulfilled by him as soon as he learns of the testator's death. 1. PURELY POTESTATIVE – Applicable – condition deemed fulfilled.
2. CASUAL – Not applicable.
This rule shall not apply when the condition, already complied with, cannot 3. MIXED
be fulfilled again. (795a) a. By will
i. Person interested - applicable
Art. 877. If the condition is casual or mixed, it shall be sufficient if it happens ii. Person not interested - not applicable
or be fulfilled at any time before or after the death of the testator, unless he b. By chance – Not applicable.
has provided otherwise.
Art. 880. If the heir be instituted under a suspensive condition or term, the
Should it have existed or should it have been fulfilled at the time the will was estate shall be placed under administration until the condition is fulfilled, or
executed and the testator was unaware thereof, it shall be deemed as until it becomes certain that it cannot be fulfilled, or until the arrival of the
complied with. term.

If he had knowledge thereof, the condition shall be considered fulfilled only
when it is of such a nature that it can no longer exist or be complied with
again. (796)
Art. 883. PAR 2. If the person interested in the condition should prevent its
fulfillment, without the fault of the heir, the condition shall be deemed to
have been complied with. (798a)
Art. 879. If the potestative condition imposed upon the heir is negative, or
consists in not doing or not giving something, he shall comply by giving a
security that he will not do or give that which has been prohibited by the
testator, and that in case of contravention he will return whatever he may
have received, together with its fruits and interests. (800a)
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The same shall be done if the heir does not give the security required in the
preceding article. (801a)
NOTE – This article should not be applicable to institutions with a term.
Disregard any reference to the term in this article.
Q – What is to be done between the time of testator’s death and the time
of the fulfillment of the suspensive condition?
• The property must be placed under administration
• The property shall be in the executor’s or administrator’s custody
until the heir furnishes a caucion muciana.
BALANE – If the suspensive condition is not fulfilled, place the estate under
administration until:
1. The condition is fulfilled, in which case the estate should be given
to the instituted heir;
 2. It becomes obvious that it cannot be fulfilled, in which case, the TERM
estate should be given to the intestate heirs. the condition has SUSPENSIVE RESOLUTORY
become obviously impossible of being fulfilled. Ex die in diem
Commence later Cease later
EXAMPLE – "I give a car to A when he places first in the bar." Testator dies Give it to the intestate heirs for Give it to the instituted heirs but
while A is still taking law. The car is put under administration until: them to enjoy but in order to when the term arrives, he must
1. A tops the bar, in which case the car should be given to him; or protect the right of the instituted give it to the intestate heirs. The
2. A dies while reviewing in which case, the car should be given to heir, intestate heirs must put up a instituted heir does not have to file
the intestate heirs because the condition has become obviously bond (caucion muciana.) a bond.
impossible of being fulfilled.
MODAL DISPOSITIONS
IF CONDITION HAPPENS IF IT BECOMES CERTAIN THAT
CONDITION WILL NOT HAPPEN Art. 882. The statement of the object of the institution, or the application of
The property will be turned over to The property will be turned over to the property left by the testator, or the charge imposed by him (the heir),
the instituted heir. a secondary heir (if there is one) or shall not be considered as a condition unless it appears that such was his
to the intestate heirs, as the case (testator) intention.
may be.
That which has been left in this manner may be claimed at once provided
COMPARE/ DISTINGUISH WITH INSTITUTIONS WITH A TERM that the instituted heir or his heirs give security for compliance with the
INSTITUTION WITH A SUSPENSIVE INSTITUTION WITH A SUSPENSIVE wishes of the testator and for the return of anything he or they may receive,
CONDITION TERM together with its fruits and interests, if he or they should disregard this
Property is placed under the Property is given to the heirs at obligation. (797a)
administration in the meantime once even before the arrival of
(while waiting), until the condition the term. Q – What is a mode?
happens or if it becomes certain • It is an obligation imposed upon the heir, without suspending the
that the condition will not happen effectivity of the institution or the rights to the succession. See
RABADILLA V. CA
• EXAMPLE – "I give 1/3 of me estate to A but impose upon him the
Art. 881. The appointment of the administrator of the estate mentioned in obligation to pay for my son's education."
the preceding article, as well as the manner of the administration and the • Since it imposes an obligation upon the heir, the heir may choose
rights and obligations of the administrator shall be governed by the Rules of to renounce it if he does not want to be burdened.
Court. (804a)
Q – How can a mode be imposed?
Art. 884. Conditions imposed by the testator upon the heirs shall be • A mode must be clearly imposed as an obligation in order to be
governed by the rules established for conditional obligations in all matters considered as one.
not provided for by this Section. (791a) • Mere preferences or wishes expressed by the testator are not
modes. A mode functions similarly to a resolutory condition. 

BALANE – Rules on conditional obligations will apply suppletorily. Articles • An obligation imposed upon the heir should not be considered a
1179 to 1192. condition unless it clearly appears from the Will itself that such
was the intention of the testator. In case of doubt, the institution
DISPOSITIONS WITH A TERM should be considered as modal and not conditional. See
RABADILLA V. CA
Art. 878. A disposition with a suspensive term does not prevent the instituted
heir from acquiring his rights and transmitting them to his heirs even before Q – What are the things imposed by the testator in a modal institution? What
the arrival of the term. (799a) are the indicator of a modal institution?
• In a modal institution, the testator states:
BALANE – This is founded on the principle that the right of the heir instituted a. The object of the institution, 

subject to a term is vested at the time of the testator's death – he will just wait b. The purpose or application of the property left by the
for the term to expire. testator, or

• The heir must survive the testator. c. The charge imposed by the testator upon the heir. 


Q – What happens If the heir dies before the arrival of the suspensive term? CONDITION MODE
• If the heir dies after the testator but before the term expires, he The condition must happen or be Imposes a burden, but the heir
transmits his rights to his own heirs because of the vested right. fulfilled before the heir will be gets the property right away.
• EXAMPLE – "I give P1M to X, five years after my death." entitled to succeed.
• The heirs may thereafter demand the property when the term It suspends (the effectivity) but It obligates but does not suspend.
arrives (because a term is certain to happen) does not obligate.
• This is the same rule in fideicommissary substitutions. ART. 866.
RULES
COMPARE THIS WITH CONDITIONAL – Art. 1034, par. 3-- Qualification of heir-
a. In case of doubt between a mode and a condition, resolve in
- The heir must be alive and qualified at the time of the testator’s death and
favor of mode.
when the condition happens. b. In case of doubt whether a mode exists, resolve in favor of it
being a request.
SUSPENSIVE CONDITION SUSPENSIVE TERM
Capacity to succeed is Capacity to succeed is CASE – RABADILLA V. CA
determined determined at the time of death • Condition was imposed on the devisee that he should give sugar
a. At the time of death AND only. to someone every year until that person dies. Should the devisee
b. At the time the condition die, his own heirs still have the obligation to give the sugar yearly.
happens • Here, the testator intended the proptery ot be inherited by the
devisee. The testatrix did not make the devisee’s inheritance and
HENCE – the heir must be living the effectivity of his institution as a devisee, dependent on the
and qualified to succeed at BOTH performance of the said obligation. It is clear, though, that should
instances. the obligation (of giving sugar) be not complied with, the
property shall be turned over to the testatrix’s near descendants.
Art. 885. The designation of the day or time when the effects of the institution The manner of institution of the devisee under subject Codicil is
of an heir shall commence or cease shall be valid. evidently modal in nature because it imposes a charge upon the
instituted heir without, however, affecting the efficacy of such
In both cases, the legal heir shall be considered as called to the succession institution. 

until the arrival of the period or its expiration. But in the first case he shall not
enter into possession of the property until after having given sufficient Art. 883. PAR. 1. When without the fault of the heir, an institution referred to
security, with the intervention of the instituted heir. (805) in the preceding article cannot take effect in the exact manner stated by

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the testator, it shall be complied with in a manner most analogous to and in
conformity with his wishes.

Q – What is the rule on analogous performance or constructive

compliance?
• If a modal institution cannot be literally performed, it may be
complied with in an analogous manner, taking into account the
purpose of aid distribution.
• EXAMPLE – Duty of providing rice – if it cannot be literally
complied with, provide camote instead.

BALANE – A caucion muciana is a security to be put up to protect the

right of the heirs (who would succeed to the property) in case the
condition, term or mode is violated.

INSTANCES WHEN IT IS NEEDED:

1. Suspensive condition – Art. 885.
2. Negative potestative condition – Art. 879.
3. Mode – Art. 882, par. 2.

WHO REQUIRES THE BOND? The intestate heirs.

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 SECTION 5. - LEGITIME
BALANE – You don’t know succession if you don’t know legitimes
• Legitimes comes from a FRENCH WORD which means
“LEGITIMATE SHARE”
• This was derived from the Spanish Civil Code but was simplified
THERE ARE THREE KINDS OF SYSTEMS
1. PARTIAL RESERVATION – set aside for compulsory heirs (French,
Spanish, German)
2. COMMON LAW/ ABSOLUTE FREEDOM – No reservation
§ Based on common law tradition, such as in the US
(except in Louisiana) and UK
§ But there may be reservation for support of minor
children (but this is not really succession)
3. TOTAL RESERVATION/ ABSOLUTE RESERVATION – All legitimes;
everything is set aside
BALANE – Our successional system is the PATIAL RESERVATION SYSTEM, which
reserves a portion of the net estate in favor of certain heirs.
LEGITIME – Is that portion so reserved. See ART 886.
FREE PORTION – That portion left available for testamentary dispositions after
the legitimes have been covered.
CASE – CALALANG-PARULAN V. CALALANG –GARCIA – Presumption that the
sale is genuine, the burden is on the opponents of the sale to prove that it
was relatively simulated and that it was really a donation.
Q – Who are these certain heirs?
• They are the compulsory heirs. ART. 887
• The compulsion is NOT on the part of the heirs but on the part of
the testator.
• The compulsory heirs may still choose to accept or reject it.
BALANE – The term is wrong as it gives the impression that the heirs are
compelled. It was originally called “forced heirs”, but this term is also
erroneous also because it gives the impression that the heirs are forced to
succeed. Both terms are wrong, why did you change a wrong term with
another wrong term? Hmmph!
Art. 887. The following are compulsory heirs:
(1) Legitimate children and descendants, with respect to their
legitimate parents and ascendants;
(2) In default of the foregoing, legitimate parents and ascendants,
with respect to their legitimate children and descendants;
(3) The widow or widower;
(4) Acknowledged natural children, and natural children by legal
fiction;
(5) Other illegitimate children referred to in Article 287.

NEW CIVIL CODE SPANISH CIVIL CODE Compulsory heirs mentioned in Nos. 3, 4, and 5 are not excluded by those
LEGITIMES/ SHORT MEJORA FREE in Nos. 1 and 2; neither do they exclude one another.
FREE PORTION LEGITIME BETTERMENT PORTION
Abolished Mejora Goes to goes to the In all cases of illegitimate children, their filiation must be duly proved.
1. It opened abuses and the children but
gave parents power to children the testator The father or mother of illegitimate children of the three classes mentioned,
influence or blackmail in equal has shall inherit from them in the manner and to the extent established by this
their children shares freedom as Code. (807a)
2. It was a system our people to how the
never applied nor children will BALANE – This list is EXCLUSIVE, but numbers 4 and 5 has been repealed by
understood. Art. 176 of the Family Code.
share it.
LONG LEGITIME
CASE – TUMBOKON VS LEGASPI – A decedent’s compulsory heirs in whose
Art. 886. Legitime is that part of the testator's property which he cannot favor the law reserves a part of the decedent’s estate are exclusively the
dispose of because the law has reserved it for certain heirs who are, persons enumerated in Article 887,
therefore, called compulsory heirs. (806)
Q – What are the main five kinds/groups of compulsory heirs?
Q – What is the nature of legitimes? 1. Legitimate Children and Descendants
• It is a quota, portion, fraction, pro-indiviso share of the estate. 2. Legitimate Parents and Ascendants
• It is NOT specific property 3. Surviving Spouse
• It is NOT a money value 4. Acknowledged natural children, and natural children by legal
• Legitimes are set aside by mandate of the law. The testator is fiction à Illegitimate Children and Descendants
prohibited from disposing by GRATUITOUS TITLE because the 5. Illegitimate Parents (ascendants, whether legitimate or
testator is compelled to set aside legitimes in favor of certain illegitimate, NOT included)
heirs.
NOTE – Under the Family Code, there is no more distinction between
Q – What is the coverage of the legitime? acknowledged natural children and illegitimate children. They are all
1. Donations inter vivos considered as illegitimate.
2. Testamentary disposition mortis causa
Q— What are the three classifications of compulsory heirs?
Q – Are onerous dispositions prohibited? 1. Primary Compulsory Heirs
• NO. Because in theory, nothing is lost from the estate in onerous 2. Secondary Compulsory Heirs
transaction, since there is merely an exchange of values. 3. Concurring Heirs

EXAMPLE – A is married to B. They had a child C. A owns lot worth P5M. PRIMARY SECONDARY CONCURRING
a. A sells the lot to D for P5M. This is valid. The prohibition does not They preferred over, They receive legitimes They succeed as
and exclude, the only in default of the compulsory heirs
cover an onerous disposition because this involves an exchange
secondary primary together with the
of values.
primary or secondary.
b. A donates to D. This is not valid if it impairs the legitime of B and
They live in harmony,
C. with primary and
secondary compulsory
CASE – SPS JOAQUIN V. CA – The right of the heirs is merely inchoate and heirs and with each
vests only upon the parent’s death. While still living, the parents (from whom other.
they are to inherit are free to dispose of their properties. In their
overzealousness to safeguard their future legitime, the heirs forget that One exception is that
theoretically, the sale of the lots to their siblings does not affect the value of illegitimate children/
their parent’s estate. While the sale of the lots reduced the estate, the cash descendants exclude
of equivalent value replaced the lots taken from the estate. illegitimate parents
(this is the only
CASE – SPS MANONGSONG V. ESTIMO – The contract of sales does not instance where a
concurring heir
deprive the compulsory heirs of their legitimes. A valid sale for valuable
excludes another heir)
consideration does not diminish the estate of the seller. When the disposition
Legitimate Children a. Legitimate Parents a. Surviving Spouse 

is for a valuable consideration, there is no diminution of the estate but and/or Descendants and/or Ascendants b. Illegitimate Children
merely a substitution of values, that is, the property sold is replaced by the b. Illegitimate Parents 
 and/or
equivalent monetary consideration. Descendants

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RE 1 – PRIMARY – They are ABSOLUTELY preferred over and EXCLUDE the ascending line includes only parents; it does not go
secondary beyond the parents.
• Note that the illegitimate parents are secondary heirs
1. LEGITIMATE CHILDREN – The following are considered “legitimate” of a lower category than legitimate parents, because
children (Articles 54, 164, 179 of the Family Code) the illegitimate parents are excluded by legitimate
a. Children conceived OR born during the marriage of and illegitimate children (Article 903) whereas
the parents are legitimate. 
 legitimate parents are excluded only by legitimate
b. Children conceived as a result of artificial insemination children/descendants.
c. Adopted Children (in relation to their adopter, (Secs.
17 & 18, R.A. 8552 [Domestic Adoption Act of 1998]) 
 RE – CONCURRING – They are NOT excluded by the primary or secondary
d. Children conceived or born before the judgment of heirs. NEITHER do they exclude one another. They succeed TOGETHER WITH
annulment 
 the primary and secondary heirs.
e. Children conceived or born before the judgment of
absolute nullity of the marriage under Article 36 of the 6. SURVIVING SPOUSES – The person to whom the decedent is
Family Code (Psychological Incapacity) 
 legally married. Refers to the spouse of the DECEDENT, not the
f. Children conceived or born of the subsequent spouse of the predeceased heir-child. See ROSALES V. ROSALES
marriage under Article 53 of the Family Code (in
relation to Art. 52) 
 RULE PERTAINING TO THE RIGHT OF THE SURVIVING SPOUSE TO
SUCCEED
NOTE – The law does not specify how the legitimate children a. The marriage between the decedent and the decedent
should share in the legitime. There is universal agreement, and the surviving spouse must either be VALID, or AT LEAST
however, that they will share equally, regardless of age, sex, or VOIDABLE (having no final decree of annulment yet, at the
marriage of origin. time of the decedent’s death)
o In case the spouse dies during the pendency for
2. LEGITIMATE DESCENDANTS – such as the grandchild or great- declaration of nullity under ART. 36 or ART. 40 of the FC,
grandchild of the decedent the case proceeds. See CARINO V. CARINO.

RULE – The nearer exclude the more remote. b. A final decree of LEGAL SEPARATION should NOT have been
• EXAMPLE – Children, if all qualified, will exclude issued.
grandchildren o Effect of decree of legal separation: Offending spouse
• EXCEPTION – when the rule on representation is disqualified from inheriting from the innocent spouse
(succession per stripes) is proper (from the legitimes/ compulsory succession only)
o Legitimate descendants can represent - The innocent spouse still entitled.
legitimate children o BALANE – This is a punitive effect of a decree of legal
o Illegitimate children, who can be separation, against the offending spouse.
represented by both legitimate and o Death of either spouse during the pendency of a
illegitimate descendants. 
 petition for legal separation— dismissal of the case, the
offending spouse will inherit in this case. See LAPUZ V.
RE 2 – SECONDARY – They can receive legitimes ONLY IN DEFAULT of the EUFEMIO
primary. o BALANE – It doesn’t matter who dies before the decree
of legal separation is issued (during the pendency), the
3. LEGITIMATE PARENTS spouses are capacitated to succeed each other in this
case, as the legal separation proceedings cannot
LEGITIMATE Parents/ EXCLUDED (from being continue (under the family code). The action cannot
continue just to adjudicate the incidental effects of
Ascendants compulsory heirs) ONLY by
legal separation
legitimate children/
ascendants o If after the final decree of legal separation there was
a reconciliation between the spouses, the reciprocal
ILLEGITIMATE parents (only) EXCLUDED by both
right to succeed is restored (because reconciliation
legitimate and illegitimate
sets aside the final decree) (Article 66, par. 2, Family
children/ ascendants
Code).
NOTE – the adopter has, in relation to the adopted, the same
c. Spouse in a terminated subsequent marriage must NOT be in
successional right as legitimate parents.
bad faith in contracting such subsequent marriage
o This pertains to a case of subsequent marriage
Under present law (Sec. 18, R.A. 8552), the adopter displaces the
contracted by a party whose spouse has been absent
biological parents in the successional scheme relative to the
for the specified period and then the subsequent
estate of the adopted.
termination of such subsequent marriage by
reappearance of prior the spouse (Articles 41-43 of the
Thus, in the case of adopted children, their adopted parent is
Family Code)
their compulsory heir, as their legitimate parent, NOT their
o Note that the reappearance of the prior spouse
biological parent.
terminates the second marriage.
o One of the effects of such termination is that the
BALANE – But this is still an open question which is subject to
spouse who contracted the subsequent marriage in
debate.
bad faith (had knowledge that the absent spouse was
still living) shall be disqualified to inherit from the
See BARTOLOME V. SSS
innocent spouse by testate and intestate succession
o The clear implication of this article is that
4. LEGITIMATE ASCENDANTS – such as grandparents or great-
1. if both consorts in the second marriage were in
grandparents
good faith, they continue to be heirs of each
• RULE – excluded by “legitimate”
other, and
children/descendants also applies
2. if only one of said consorts acted in bad faith, the
• the rule that the nearer exclude the more remote
innocent one will continue to be an heir of the
applies
other.
• They are only considered compulsory heirs in default
of parents. 

d. Mere estrangement is not a ground for the disqualification of
• Note that this rule is absolute in the ascending line, it is
the surviving spouse as heir. See BARITUA V. CA
NOT qualified by representation (unlike in the case of
legitimate descendants) 

7. ILLEGITIMATE CHILDREN – The FC has abolished the distinction
between NATURAL and SUPURIOUS children. All illegitimate
5. ILLEGITIMATE PARENTS children are given EQUAL legitimary portions (ART. 176 FC)
• Unlike the legitimate ascending line, which includes • BUT – pursuant to ART. 777, if death occurred before
ascendants of whatever degree, the illegitimate the effectivity of the Family Code on 3 August 1988,
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 the old distinctions will apply and the spurious child
gets only 4/5 the share of the natural (Article 895).
• Children conceived AND born outside a valid
marriage are illegitimate, unless otherwise provided
(Art. 165, Family Code)
• EXCEPT, the following are legitimate:
a. Those legitimated 
 is called to the succession by law because of his blood
b. Born into a voidable marriage, before the final
decree of annulment 
 represented), who predeceased his grandmother BUT in fact
c. Born into a void marriage under Art. 36 or Art.
52/53, before the final judicial declaration of
nullity 
 •
d. Adopted children 
 those who:
8. ILLEGITIMATE DESCENDANTS
• The same rule applies here as in the legitimate
descending line: the nearer exclude the more remote,
without prejudice to representation when proper.
• Note that the illegitimate child can be represented by
both legitimate and illegitimate descendants, as
distinguished from the legitimate child, who can be
represented only by legitimate descendants.
CASE – BARTOLOME V. SSS
• F – JOHN COLCOL was employed as electrician by Scanmar
Maritime Services, Inc. He was enrolled under the government’s
Employees’ Compensation Program. He died due to an
accident while on board the vessel. John was, at the time of his
death, childless and unmarried. Thus, PETITIONER BERNARDINA P.
BARTOLOME, John’s biological mother and, allegedly, sole
remaining beneficiary, filed a claim for death benefits. SSS
denied the claim on the ground that Bernardina was no longer
considered as the parent of John since the latter was legally
adopted by CORNELIO COLCOL. As such, it is Cornelio who
qualifies as John’s primary beneficiary, not petitioner. According
to the records, Cornelio died during John’s minority.
• H – Petitioner is entitled to the pension of the deceased biological
child despite adoption.
• The biological parents retain their rights of succession to the
estate of their child who was the subject of adoption. While the
benefits arising from the death of an SSS covered employee do
not form part of the estate of the adopted child, the pertinent
provision (Art 167 of labor code) on legal or intestate succession
at least reveals the policy on the rights of the biological parents
and those by adoption vis-à-vis the right to receive benefits from
the adopted. 
 a criminal case for that matter, the court may pass upon the
• In the same way that certain rights still attach by virtue of the
blood relation, so too should certain obligations, which, We rule,
include the exercise of parental authority, in the event of the
untimely passing of their minor offspring’s adoptive parent. 
 determination of the case.
• We cannot leave undetermined the fate of a minor child whose
second chance at a better life under the care of the adoptive
parents was snatched from him by death’s cruel grasp.
Otherwise, the adopted child’s quality of life might have been
better off not being adopted at all if he would only find himself
orphaned in the end. Thus, we hold that the adopter’s death at
the time of the adopted’s minority resulted in the restoration of
the biological parent’s parental authority over the adopted
child. 
 for there were no impediments but their marriage was void due
• B – This case was decided under the rules prior to the Domestic
Adoption Act. Now such law governs and it provides that
adoption terminates the relationship of the biological parents
and the adopted. No rights remain. 
 have been equally contributed by each party – this includes
CASE – ROSALES V. ROSALES
• F – WIDOW IRENE insisted on getting a share of the estate in her
capacity as the SURVIVONG SPOUSE OF CARTERIO ROSALES, the
son of the deceased MRS PETRA ROSALES. She claims that she is
a compulsory heir of her mother in law, together with her son,
MACIKEQUEROX.
• I – Is the a widow (surviving spouse of a predeceased legitimate
child of the decedent), an intestate heir of her mother-in-law?
• H – Court that she is NOT a compulsory heir, neither in her own
right, nor by right of representation. There is no provision in the
Civil Code which states that a widow (surviving spouse) is an
intestate heir of her mother-in-law.
• The provision in ART. 887 refers to the estate of the deceased
spouse, in which case the surviving spouse (widow or widower) is
a compulsory hair. It does not apply to the estate of a parent in
law.
• The surviving spouse is considered a 3rd person as regards the
estate of the parent-in-law. Since the estate which is the subject
matter of the intestate proceedings in this case is that of the
mother-in-law of the widow, Irene cannot claim to be a
compulsory heir. She also cannot assert the right of representation
as she has no filiation by blood with her mother-in-law.
• Q – How about the son, Macikequerox? Can he represent his
father in the inheritance of his grandmother? YES. Macikequerox
relationship. He does not succeed his father Carterio (the person
succeeds from the grandmother, from whom his father would
have succeeded.
Intestate or legal heirs are classified into two (2) groups, namely,
a. Inherit by their right, and 

b. Inherit by the right of representation 

• B – In this case, the deceased was the mother-in-law of the
plaintiff. The plaintiff's husband had predeceased his mother. The
plaintiff widow seeks a share in her mother-in-law's estate
claiming she is a compulsory heir being a widow. The SC denied
her claim because the widow in the law refers to the widow of
the deceased and not of a relative of the deceased.
CASE – CARINO V. CARINO
• F – During the lifetime of SP04 Santiago S. Carino, he contracted
two marriages, the first with Susan Nicdao Carino with whom he
had two offsprings (Sahlee and Sandee) and with Susan Yee
Carino with whom he had no children in their almost ten
year cohabitation. In 1988, Santiago passed away under the
care of Susan Yee who spent for his medical and burial expenses.
Both petitioner and respondent filed claims for monetary benefits
and financial assistance pertaining to the deceased from various
government agencies.
• H – Under article 40 of the Family Code, the absolute nullity of a
previous marriage may be invoked for purposes of remarriage
on the basis solely of a final judgment declaring such previous
marriage void. Meaning, where the absolute nullity of a previous
marriage is sought to be invoked for purposes of contracting a
second marriage, the sole basis acceptable in law, for said
projected marriage to be free from legal infirmity, is a final
judgment declaring the previous marriage void.
• However, for purposes other than remarriage, NO judicial action
is necessary to declare a marriage an absolute nullity (judicial
declaration NOT required). For other purposes, such as but not
limited to the determination of heirship, legitimacy or illegitimacy
of a child, settlement of estate, dissolution of property regime, or
validity of marriage even after the death of the parties thereto,
and even in a suit not directly instituted to question the validity of
said marriage (Indirect Attack), so long as it is essential to the
• The SC ruled that Yee has no right to the benefits earned by SPO4
as a policeman for their marriage is void due to bigamy; she is
only entitled to properties, money etc owned by them in
common in proportion to their respective contributions. Wages
and salaries earned by each party shall belong to him or her
exclusively (Art. 148 of FC). Nicdao is entitled to the full benefits
earned by SPO4 as a cop even if their marriage is likewise void.
This is because the two were capacitated to marry each other
to the lack of a marriage license; in their situation, their property
relations is governed by Art 147 of the FC which provides that
everything they earned during their cohabitation is presumed to
salaries and wages earned by each party notwithstanding the
fact that the other may not have contributed at all.
CASE – LAPUZ V. EUFEMIO
• F – The wife (Carmen Lapuz Sy) filed a petition for legal separation
against the husband (Eufemio) based on the abandonment by
the latter, and that the fact that he was cohabiting with another
Chinese woman. Before, the trial could be completed, the wife
died due to a vehicular accident. Thus, the husband moved for
the dismissal of the legal separation proceedings, this was
granted by the lower court.
• I – Whether the death of the plaintiff before final decree, in an
action for legal separation, abate the action? If it does, will
abatement also apply if the action involves property rights?
• H – Court held that the death of EITHER spouse abates the action
because an action for legal separation is purely personal.
• An action for legal separation which involves nothing more than
the bed-and-board separation of the spouses (there being no
absolute divorce in this juris- diction) is purely personal.

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 • The Civil Code recognizes this in its Article 100, by allowing only CASE – BARITUA V. CA
the innocent spouse (and no one else) to claim legal separation; • F – Tricycle collided with bus, tricycle driver, BIENVENIDO
and in its Article 108, by providing that the spouses can, by their NACARIO died. Bus operator settled with tricycle driver’s
reconciliation, stop or abate the proceedings and even rescind estranged wife, ALICIA BARCENO NACARIO. A year later, tricycle
a decree of legal separation already rendered. driver’s PARENTS, sued bus operator for damages alleging that
• Being personal in character, it follows that the death of one party the latter promised to indemnify them for the death of the son,
to the action causes the death of the action itself his funeral expenses and the damaged tricycle (which was
• A review of the resulting changes in property relations between allegedly bought with the parents’ money).
spouses shows that they are solely the effect of the decree of • I – Who is entitled to the indemnity – the estranged wife or the
legal separation; hence, they cannot survive the death of the parents?
plaintiff if it occurs prior to the decree. • H – Tricycle driver’s parents cannot claim because they are not
• Art. 106. “The decree of legal separation shall have the following his compulsory heirs. His wife and child are the compulsory heirs.
effects: (4) The offending spouse shall be disqualified from Spouse concurs with all classes of heirs but parents are
inheriting from the innocent spouse by intestate succession. compulsory heirs only when decedent dies without a legitimate
Moreover, provisions in favor of the offending spouse made in the descendant.
will of the innocent one shall be revoked by operation of law.” • Mere estrangement is not a legal ground for the disqualification
• From this article it is apparent that the disqualification of the of surviving spouse as an heir of the deceased spouse.
offending spouse to inherit by intestacy from the innocent spouse
as well as the revocation of testamentary provisions in favor of Art. 888. The legitime of legitimate children and descendants consists of
the offending spouse made by the innocent one, are all rights one-half of the hereditary estate of the father and of the mother.
and disabilities that, by the very terms of the Civil Code article,
are vested exclusively in the persons of the spouses; and by their The latter may freely dispose of the remaining half, subject to the rights of
nature and intent, such claims and disabilities are difficult to illegitimate children and of the surviving spouse as hereinafter
conceive as assignable or transmissible. provided. (808a)
• A further reason why an action for legal separation is abated by
the death of the plaintiff, even if property rights are Involved, is RULES FOR THE LEGITIME OF THE LEGITIMATE CHILDREN/ DESCENDANTS
that these rights are mere effects of a decree of separation, their 1. The legitime of legitimate children and descendants collectively is 1/2
source being the decree itself; without the decree such rights do of the hereditary estate
not come into existence, so that before the finality of a decree, 2. Equal sharing
these claims are merely rights in expectation. If death supervenes
during the pendency of the action, no decree can be BALANE – The provision should have been explicit about this, rather
forthcoming, death producing a more radical and definitive than leaving it to implication and assumption. The counterpart provision
separation; and the expected consequential rights and claims in intestacy is quite explicit on this. Before, only men inherit, particularly
would necessarily remain unborn. the eldest child, women cannot inherit. This is the principle of
• B – Note that this case pertained to legal separation under the “primogeniture” as prevalent in medieval europe where the firstborn
Civil Code, but the rule is the same under the Family Code. Note male inherits the family estate.
further that it does not matter who dies, it can be the guilty
spouse or the innocent spouse. 3. The nearer exclude the more remote, qualified by representation, when
proper
DIFFERENT COMBINATIONS – ART. 888 – 903 • EXAMPLE – Grandchildren cannot inherit, since the children
will bar them, unless all the children renounce, in which case
HEIRS LEGITIMARY PORTION BASIS the grandchildren become the nearest in degree.
1. LEGITIMATE CHILDREN ½ of the estate Art. 888 • The rule goes on down the line; great-grandchildren cannot
2. SURVIVING SPOUSE Art. 900 inherit unless all the children and grand- children renounce.
3. LEGITIMATE PARENTS BUT – 1/3 only in case of a SURVIVING
Art. 889 The only qualification to the rule that the nearer exclude the
SPOUSE and the marriage being
4. ILLEGITIMATE CHILDREN articulo mortis falling under ART. 900 Art. 901 more remote in the descending line is representation when
5. ILLEGITIMATE PARENTS par 2 Art. 903 proper (Art. 970-977)
6. ONE LEGITIMATE CHILD a. LC – 1/2 of the Estate Art. 892, • REPRESENTATION OCCURS IN THE FF INSTANCES
+ SURVIVING SPOUSE b. SS – 1/4 of the Estate par.1 1. Predecease
7. LEGITIMATE CHILDREN + a. LC – 1/2 of the Estate 2. Incapacity
Art. 892, 3. Disinheritance
SURVIVING SPOUSE b. SS – Share equal to that of
par.2
one LC
8. LEGITIMATE CHILDREN + a. LC – 1/2 of the Estate BALANE – Remember that there is no representation in renouncement,
Art. 176
ILLEGITIMATE CHILDREN b. IC – Each will get 1/2 of share the grandchildren cannot inherit when their parents (the children of the
FC
of one LC decedent), merely renounce, unless ALL the children renounce, in
9. LEGITIMATE CHILD + a. LC – 1/2 of the Estate which case the grandchildren inherit in their own right, not by
ILLEGITIMATE CHILDREN b. IC – Each will get 1/2 of share representation
Art. 895
+ SURVIVING SPOUSE of one LC
c. SS – 1/4 of the Estate 4. There is no limit to the number of degrees in the descending line that
10. LEGITIMATE CHILDREN + c. LC – 1/2 of the estate may be called to succeed, whether in their own right or by
ILLEGITIMATE CHILDREN d. IC – Each will get 1/2 of share representation.
+ SURVIVING SPOUSE of one LC Art. 895
e. SS – Share equal to that of
EXAMPLE
one LC
11. LEGITIMATE PARENTS + a. LP – 1/2 of the estate
Art. 896 X – Deceased
ILLEGITIMATE CHILDREN b. IC – 1/4 of the estate
12. LEGITIMATE PARENTS + a. LP – 1/2 of the estate A – Child of X B – Child of X C – Child of X
Art. 893 E F G H I J
SURVIVING SPOUSE b. SS – 1/4 of the estate
13. LEGITIMATE PARENTS + a. LP – 1/2 of the estate
ILLEGITIMATE CHILDREN b. IC – 1/4 of the estate Art. 899 a. If A, B and C renounce, grandchildren will inherit
+ SURVIVING SPOUSE c. SS – 1/8 of the estate b. If only B renounces, legitime will be divided into 2 only, B's children
14. SURVIVING SPOUSE + a. SS – 1/3 of the estate cannot represent him.
Art. 894
ILLEGITIMATE CHILDREN b. IC – 1/3 of the estate
15. SURVIVING SPOUSE + a. SS – 1/4 of the estate Art. 889. The legitime of legitimate parents or ascendants consists of one-
Art. 903
ILLEGITIMATE PARENTS b. IP – 1/4 of the estate half of the hereditary estates of their children and descendants.

NOTE – That a legitimate child includes an adopted child The children or descendants may freely dispose of the other half, subject to
the rights of illegitimate children and of the surviving spouse as hereinafter
BALANE – There is a premium on legitimacy and blood relations. provided.(809a)

NOTE – BASIC LEGITIME – every time there’s a legitimate child / children – Art. 890. The legitime reserved for the legitimate parents shall be divided
1/2 always from the estate. between them equally; if one of the parents should have died, the whole
shall pass to the survivor.

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If the testator leaves neither father nor mother, but is survived by ascendants 2. Two or more legitimate children or descendants – Spouse gets a
of equal degree of the paternal and maternal lines, the legitime shall be portion equal to the legitime of “each” of the legitimate children
divided equally between both lines. If the ascendants should be of different or descendants
degrees, it shall pertain entirely to the ones nearest in degree of either 3. Even if all these children renounce, spouse’s share will still be
line. (810) computed on the cases of the children’s share had they
accepted (not on the basis of the number of grandchildren) –
RULE FOR THE ASCENDING LINE you still divide by the number of children so as not to trifle with the
• They are only secondary compulsory heirs legitime of the spouse by the mere expedient of all the children
• They succeed only in default of the legitimate descending line agreeing to renounce.
• The legitime of legitimate parents and ascendants consists is 1/2
of the hereditary estate BALANE
• But, supposing all the children predecease (or are disinherited or
THREE RULES unworthy to succeed), since all the grandchildren would then
1. Nearer exclude the more remote. There is no representation in the inherit per stirpes (by representation), and therefore in different
ascending line amounts, the practical solution will still be to give the spouse the
2. Division by (between the) lines. The legitimes is divided equally share that each child would have gotten if qualified. Supposing,
between the paternal side and maternal side however, all the children renounce, the grandchildren would
3. Equal division within the line. then inherit per capita, and therefore equally. Should the
spouse’s share still be computed on the basis of the children’s
ILLUSTRATION share had they accepted? If so, when will the words “or
descendants” in the second paragraph of this article ever be
A1 A2 B1 B2 operative?
A B • Imagine that this can be used by the legitimate descendants to
X – testator cheat the surviving spouse into receiving less legitime, for
example the decedent has 2 children but 16 grandchildren, the
NOTE share of the surviving spouse is 1/4 (portion equivalent of one
• A – Mother of X legitimate child), but if the children predecease, or are
• B – Father of X disinherited or renounce, then the share of the surviving spouse is
• A1 + A2 – Grandparents of X in the mother’s side merely 1/32 (the share of each grandchild). The children, if they
• B1 + B2 – Grandparents of X in the father’s side are alive can collude to agree to renounce their share in order
to deprive the surviving spouse of her supposed legitime.
NEARER EXCLUDES THE REMOTE
a. If X dies, the legitime will be shared by the parents A and B LEGITIME OF SURVIVING SPOUSE
because the nearer excludes the more remote. 1. If valid or voidable marriage – Qualified. Spouse may inherit.
b. If A predeceases X, B gets all. A1 and A2 will get nothing because 2. If legally separated, it depends:

there is no right of representation in the ascending line. a. If innocent spouse – not disqualified to inherit from the
guilty spouse
DIVISION BY THE LINE AND EQUAL DIVISION WITHIN THE LINE b. If guilty spouse – disqualified to inherit from the
a. Division by line will apply. The estate will be divided equally innocent spouse.
between the maternal and paternal lines (1/4 of estate each.)
Legitimes: A1 = 1/8, A2 = 1/8, B1 = 1/8, B2 = 1/8 ILLUSTRATION
b. If A1 predeceases X, there will still be equal division by lines. Both
lines get 1/4 of the estate each. Legitimes: A2 = 1/4, B1 = 1/8, B2 X, decedent, and Y, surviving spouse
= 1/8. A B C
1 2 3 4 5 6 7
NOTE – If one of the parents, either A or B, is alive, division by line will not
apply. Rule 1 would apply where the nearer would exclude the more SITUTATION
remote. The parent would exclude the grandparent. a. If B predeceases X
a. A=1/6

NOTE – ART. 891 – RESERVA TRONCAL – Will be discussed after ART. 903 b. B's children = 1/18 per child
c. C = 1/6

Art. 891. The ascendant who inherits from his descendant any property d. Y = 1/6
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 b. If B renounces
may have acquired by operation of law for the benefit of relatives who are a. A=1/4
within the third degree and who belong to the line from which said property b. C = 1/4
came. (871) c. Y = 1/4

Art. 892. If only one legitimate child or descendant of the deceased survives, c. If A, B and C predecease – representation
the widow or widower shall be entitled to one-fourth of the hereditary a. 1 and 2 = 1/12 each
estate. In case of a legal separation, the surviving spouse may inherit if it b. 3, 4 and 5 = 1/18 each
was the deceased who had given cause for the same. c. 6 and 7 = 1/12 each
d. Y = 1/6
If there are two or more legitimate children or descendants, the surviving
spouse shall be entitled to a portion equal to the legitime of each of the According to commentaries: Y's share is based on what the children would
legitimate children or descendants. have received if they were alive.

In both cases, the legitime of the surviving spouse shall be taken from the
portion that can be freely disposed of by the testator. (834a)
Art. 897. When the widow or widower survives with legitimate children or
descendants, and acknowledged natural children, or natural children by
legal fiction, such surviving spouse shall be entitled to a portion equal to the
legitime of each of the legitimate children which must be taken from that
part of the estate which the testator can freely dispose of. (n)
RULE ON THE LEGITIME FOR SURVIVING SPOUSE AND LEGITIMATE
CHILDREN/DESCENDANTS
1. Only one legitimate child or descendant – Spouse gets 1/4 of the
hereditary estate
 of the hereditary estate.
d. If A, B and C renounce equally – no representation
a. legitime of 1/2 is divided between the 9 grandchildren
b. Y=?
According to Tolentino, Y gets 1/6. Y's share is based on the number of
children. To allow Y's share to be equal to a grandchild would give the
children the opportunity to reduce the legitime of Y, especially if Y is only a
stepmother. The problem in this case is when "or descendants" will apply.
This issue is undecided.
Art. 893. If the testator leaves no legitimate descendants, but leaves
legitimate ascendants, the surviving spouse shall have a right to one-fourth

This fourth shall be taken from the free portion of the estate. (836a)
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LEGITIME OF LEGITIMATE PARENTS/ASCENDANTS AND THE SURVIVING SPOUSE RULE ON REDUCTION OF LEGITIME (SHARES)
1. LEGITIMATE PARENTS OR ASCENDANTS – 1/2 (divide according to LEGITIMATE CHILDREN Never be reduced; they are primary and
Art. 889 and 890.) preferred compulsory heirs
2. SURVIVING SPOUSE – 1/4
 SURVIVING SPOUSE Never be reduced; this article prohibits this
3. FREE PORTION – 1/4 ILLEGITIMATE CHILDREN Reduced pro rata and without preference
among them.
Art. 894. If the testator leaves illegitimate children, the surviving spouse shall
be entitled to one-third of the hereditary estate of the deceased and the You get the remaining proportion, divide it
illegitimate children to another third. The remaining third shall be at the free by the number of illegitimate children
disposal of the testator. (n)
ILLUSTRATION – After the Family Code
LEGITIME OF ILLEGITIMATE CHILDREN AND THE SURVIVING SPOUSE • X, decedent, and Y, surviving spouse
1. ILLEGITIMATE CHILDREN – 1/3 collectively, if after the FC • Legitimate Children – A and B
2. SURVIVING SPOUSE – 1/3 • Illegitimate Children – C and D
3. FREE PORTION – 1/3
SHARING
DIVIDION BEFORE THE FAMILY CODE a. As illustrated
• If the decedent died before the effectivity of the Family Code, • A=1/4
the old distinction must be observed, and the legitime of a • B=1/4
spurious child will only be 4/5 that of a natural child, according • Y=1/4
to the ratio established in Article 895, par. 2. • C=1/8
• This ratio of 5:4 among natural and spurious children should be • D=1/8
observed in all cases under the Civil Code where they concur.
b. If there is a third illegitimate. child, E
BALANE – This is one of the exceptions to the basic rule of 1/2. • Legitime exceeds estate
o A=1/4
Art. 895. The legitime of each of the acknowledged natural children and o B=1/4
each of the natural children by legal fiction shall consist of one-half of the o Y=1/4
legitime of each of the legitimate children or descendants. • Reduce Proportionately
o C=1/8
The legitime of an illegitimate child who is neither an acknowledged natural, o D = 1/8
nor a natural child by legal fiction, shall be equal in every case to four-fifths o E = 1/8
of the legitime of an acknowledged natural child. • Result
o C = 1/12
The legitime of the illegitimate children shall be taken from the portion of the o D = 1/12
estate at the free disposal of the testator, provided that in no case shall the o E = 1/12
total legitime of such illegitimate children exceed that free portion, and that
the legitime of the surviving spouse must first be fully satisfied. (840a) Art. 896. Illegitimate children who may survive with legitimate parents or
ascendants of the deceased shall be entitled to one-fourth of the
NOTE – Art. 895 has been pro tanto amended by Articles 163, 165 and 176 hereditary estate to be taken from the portion at the free disposal of the
of the Family Code. testator. (841a)

LEGITIME OF LEGITIMATE PARENTS AND ILLEGITIMATE CHILDREN/

FAMILY CODE
Art. 163. The filiation of children may be by nature or by
adoption. Natural filiation may be legitimate or illegitimate. (n)
Art. 165. Children conceived and born outside a valid marriage are
illegitimate, unless otherwise provided in this Code. (n)
Art. 176. The legitime of each illegitimate child shall consist of one-half of
the legitime of a legitimate child. Except for this modification, all other
provisions in the Civil Code governing successional rights shall remain in
force. (287a)
DESCENDANTS
1. LP – 1/2 divided according to Art. 889 and 890

2. IC – 1/4 collectively divided according to whether decedent
died before or after the Family Code.
Art. 897. When the widow or widower survives with legitimate children or
descendants, and acknowledged natural children, or natural children by
legal fiction, such surviving spouse shall be entitled to a portion equal to the
legitime of each of the legitimate children which must be taken from that
part of the estate which the testator can freely dispose of. (n)

Art. 898. If the widow or widower survives with legitimate children or

RULES ON THE LEGITIME OF LEGITIMATE AND ILLEGITIMATE descendants, and with illegitimate children other than acknowledged
CHILDREN/DESCENDANTS natural, or natural children by legal fiction, the share of the surviving spouse
1. ONE LEGITIMATE CHILD, ILLEGITIMATE CHILDREN, AND SURVIVING shall be the same as that provided in the preceding article. (n)
SPOUSE
• LC – 1/2 BALANE – This is the same as ART. 892 and 895. The FC has simplified this.
• SS – 1/4
• IC – 1/4 (Art. 892 and 176 of the Family Code) Art. 899. When the widow or widower survives with legitimate parents or
ascendants and with illegitimate children, such surviving spouse shall be
2. LEGITIMATE CHILDREN, ILLEGITIMATE CHILDREN, AND SURVIVING entitled to one-eighth of the hereditary estate of the deceased which must
SPOUSE be taken from the free portion, and the illegitimate children shall be entitled
• LC –1/2 collectively to one-fourth of the estate which shall be taken also from the disposable
• SS – share equal to that of one legitimate child portion. The testator may freely dispose of the remaining one-eighth of the
• IC – 1/2 the share of one LC for each IC estate. (n)

3. SHARING OF THE ILLEGITIMATE CHILDREN PRIOR TO FAMILY CODE LEGITIME OF LEGITIMATE PARENTS, ILLEGITIMATE CHILDREN/DESCENDANTS,
(IF THE DECEDENT DIED PRIOR TO THE EFFECTIVITY OF THE FAMILY AND THE SURVIVING SPOUSE
CODE) 1. LP – 1/2 divided according to Articles 889 and 890
• Art. 895 article will govern; consequently, should 2. IC – 1/4 divided depending on when the decedent died
natural and spurious children concur in the succession 3. SS – 1/8

• each spurious child will get 4/5 the share of one 4. Free portion – 1/8
natural child,
• each natural child gets 1/2 the share of one legitimate BALANE – This shows how arbitrary legitime scheme is with regard to the
child. surviving spouse.
• Should there be no natural children but only spurious
children, each spurious child will get 2/5 the share of Art. 900. If the only survivor is the widow or widower, she or he shall be
one legitimate child. entitled to one-half of the hereditary estate of the deceased spouse, and
the testator may freely dispose of the other half. (837a)
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If the marriage between the surviving spouse and the testator was
solemnized in articulo mortis, and the testator died within three months from
the time of the marriage, the legitime of the surviving spouse as the sole heir
shall be one-third of the hereditary estate, except when they have been
living as husband and wife for more than five years. In the latter case, the
legitime of the surviving spouse shall be that specified in the preceding
paragraph. (n)
RULE FOR SURVING SPOUSE ALONE
GENERAL RULE – SURVIVING SPOUSE AS SOLE 1/2 of Estate
COMPULSORY HEIR Free Portion – 1/2
EXCEPTION – MARRIAGE IN ARTICULO MORTIS 1/3 of Estate
Free Portion – 2/3
REQUISITES
1. The marriage was in articulo mortis;
 compulsory succession because of Art. 992 which
2. The testator died within three months from
the time of the marriage;
 intestado from the legitimate relatives of the father or
3. The parties did not cohabit for more than
five years; and
 §
4. The spouse who died was the party in
articulo mortis at the time of the marriage
EXCEPTION TO THE EXCEPTION – when they have 1/2 of Estate
been living as husband and wife for more than Free Portion – 1/2
five years
BALANE – The decedent must be the one in articulo mortis, it would be
absurd if the decedent was the healthy spouse. This is not provided in Art.
900 but is implied, obviously the law does not regard such marriages with
eager approbation.
Art. 901. When the testator dies leaving illegitimate children and no other
compulsory heirs, such illegitimate children shall have a right to one-half of
the hereditary estate of the deceased.
The other half shall be at the free disposal of the testator. (842a)
Art. 902. The rights of illegitimate children set forth in the preceding articles
are transmitted upon their death to their descendants, whether legitimate
or illegitimate. (843a)
Q – What is the right or representation?
§ It is the right of the descendants to get the legitime of their
parents
§ It is not really representation but more subrogation or
successional subrogation.
Q – To whom is the right of representation granted?
WHEN DECEDENT IS LEGITIMATE WHEN DECEDENT IS ILLEGITIMATE
The right of representation is given The right of representation is
only to the legitimate granted to both legitimate and
descendants illegitimate descendants
RULES ON THE LEGITIME OF ILLEGITIMATE CHILDREN (AS SOLE COMPULSORY
HEIRS)
1. ILLEGITIMATE CHILDREN ALONE—THEY GET 1/2 OF THE ESTATE
COLLECTIVELY.
• But remember that the sharing among the illegitimate
children or descendants will depend on whether
death occurred before or during the effectivity of the
Family Code à 4/5
2. ILLEGITIMATE CHILDREN CAN BE REPRESENTED BY EITHER
LEGITIMATE AND ILLEGITIMATE DESCENDANTS
• This is granted by Art. 892
• The rule is different in case of representation of
legitimate children.
• In the case of descendants of legitimate children, the
right of representation is given only to legitimate
descendants (not to illegitimate), by virtue of the
provisions of Art. 992 

BALANE
§ The net effect of all this is that the right of representation given to
descendants of illegitimate children is BROADER than the right of
representation given to descendants of legitimate children.
§ Thus, an illegitimate child of a predeceased legitimate child
cannot inherit by representation (Article 992), while an
illegitimate child of an illegitimate child can (Article 902).
§ A classic instance of unintended consequence. 

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ILLUSTRATION
X, decedent
A, legitimate child of X B, illegitimate child of X
A1, legitimate A2, illlegitimate B1, legitimate B2, illegitimate
child of A child of A child of B child of B
SITUATION
1. A is legitimate while B is illegitimate. Both A and B Predeceased
X. A left A1, a legitimate child and A2, an illegitimate child. B left
A1, a legitimate child and B2, an illegitimate child. Who will inherit
and not inherit when X dies?
§ A1 can inherit from X by representation.
§ A2 cannot inherit from X in either intestate or
provides that an illegitimate cannot inherit ab
mother and vice-versa
This results in inconsistency and unfairness. (Art. 902)
read with Art. 992 puts a premium on bastardness.
Preference is given to bastard children of bastard
children as compared to bastard children of
legitimate children.
2. If both A and B are dead. Who can X inherit from?

§ A1 dies – X can inherit.

§ A2 dies – X cannot inherit because of Art. 992
§ B2 dies – X cannot inherit. In illegitimacy, you cannot
go beyond the parent in representation.
§ B1 dies – Unknown. The law is silent on this.
Art. 903. The legitime of the parents who have an illegitimate child, when
such child leaves neither legitimate descendants, nor a surviving spouse, nor
illegitimate children, is one-half of the hereditary estate of such illegitimate
child. If only legitimate or illegitimate children are left, the parents are not
entitled to any legitime whatsoever. If only the widow or widower survives
with parents of the illegitimate child, the legitime of the parents is one-fourth
of the hereditary estate of the child, and that of the surviving spouse also
one-fourth of the estate.(n)
RULES ON THE LEGITIME OF ILLEGITIMATE PARENTS (AS SOLE COMPULSORY
HEIRS) OR WITH SURVIVING SPOUSE
1. LLEGITIMATE PARENTS ALONE—THEY GET 1/2 OF THE ESTATE.
§ Note that in the illegitimate ascending line, the right
does NOT go beyond the parents (illegitimate
ascendants are not compulsory heirs)
2. ILLEGITIMATE PARENTS/SURVIVING SPOUSE—THE SHARING IS 1 /4
FOR THE PARENTS COLLECTIVELY AND 1 /4 FOR THE SPOUSE.
3. ILLEGITIMATE PARENTS EXCLUDED BY ALL KINDS OF CHILDREN
§ As secondary compulsory heirs, the illegitimate
parents are inferior to legitimate parents.
RULES
a. Only legitimate children exclude legitimate parents

b. Any kind of children exclude illegitimate children.
 ARTICLES 888 TO 903. DIFFERENT COMBINATIONS ARTICLES 888 TO 903. DIFFERENT COMBINATIONS

ACCORDING TO TOLENTINO ACCORDING TO BALANE

(ALL SHARES ARE WITH RESPECT TO THE WHOLE ESTATE UNLESS OTHERWISE PROVIDED) (ALL SHARES ARE WITH RESPECT TO THE WHOLE ESTATE UNLESS OTHERWISE PROVIDED.)

1. LEGITIMATE CHILDREN – 1/2, in equal portions, whether they survive alone or 1. 2 LC –1/2 shared equally – 1/4 each
with concurring compulsory heirs. (888.) SS – 1/4
2. ONE LEGITIMATE CHILD – 1/2 (888.) 2. 5 LC – 1/2 shared equally – 1/10
SURVIVING SPOUSE – 1/4 (892 [1]) SS – same share as in legitimate child – 1/10
3. LEGITIMATE CHILDREN – 1/2, in equal portions (888)
SURVIVING SPOUSE – share equal to that of each child (892 [2]) OBSERVE – There is an inverse proportion between number of children and
the share of the SS.
4. LEGITIMATE CHILDREN – 1/2, in equal portions. (888.)
NATURAL CHILDREN – 1/2 the share of each legitimate child (895 [1]) 3. 1 LC – 1/2
SS – 1/4
5. * LEGITIMATE CHILDREN – 1/2, in equal portions. (888)
ILLEGITIMATE CHILDREN – 2/5 the share of each legitimate child (895 [2])
GENERAL RULE – SS gets share equal to 1 LC
6. * LEGITIMATE CHILDREN – 1/2, in equal portions.
EXCEPTION – If only 1 LC, SS gets 1/4
NATURAL CHILDREN – 1/2 of the share of a legitimate child. (895 [1])
4. 2 LP – 1/2 shared equally
ILLEGITIMATE CHILDREN – 4/5 of the share of each natural child (895 [2])
SS – 1/4
7. * ONE LEGITIMATE CHILD – 1/2 (Art. 888.)
5. 2LP – 1/2 shared equally
NATURAL CHILDREN – 1/2 of the share of a legitimate child. (895 [1])
SS – 1/8
ILLEGITIMATE CHILDREN – 4/5 of the share of a natural child. ((895 [2])
1 IC – 1/4
SURVIVING SPOUSE – 1/4 (Art. 892, par. 1.)
6. 2LP – 1/2 shared equally
NOTE – All concurring heirs get their share from the free portion. The surviving 3 IC –1/4 shared equally – 1/12 each
spouse will be preferred over the natural and illegitimate children, whose 7. 2 IP – none
share may suffer reduction pro rata. (Art. 895, last par.) 3 IC – 1/2 shared equally – 1/6 each
8. LEGITIMATE CHILDREN – 1/2, in equal portions. (888) 8. 1 AC – 1/2
NATURAL CHILDREN – 1/2 of the share of a legitimate child. (895 [1]) 2 LP – none
ILLEGITIMATE CHILDREN – 4/5 of the share of a natural child. (895 [2]) 9. SS – 1/3
SURVIVING SPOUSE – equal to that of a legitimate child (895 [2]),897, 898) 4 IC – 1/3 shared equally – 1/12 each
9. LEGITIMATE PARENTS – 1/2, whether they survive alone or with concurring 10. SS – 1/4
compulsory heirs. (889) 2 LC – 1/2 shared equally – 1/4 each
10. LEGITIMATE PARENTS –1/2 (889) 4 IC – 1/2 of the share of a LC – 1/8 each
NATURAL CHILDREN – 1/4, in equal shares. (896)
11. LEGITIMATE PARENTS –1/2 (889) If it exceeds the estate, ratably diminish the legitime of the IC = 1/16
ILLEGITIMATE CHILDREN – 1/4, in equal shares (896) 11. 2 IP – 1/4 shared equally
SS – 1/4
12. * LEGITIMATE PARENTS – 1/2 (889)
NATURAL CHILDREN and/or ILLEGITIMATE CHILDREN – 1/4 (896) but each 12. 2 LC – 1/2 shared equally – 1/4 each
illegitimate child gets 4/5 of the share of each natural child (895 [ 2]) SS – share equal to 1 LC – 1/4
13. LEGITIMATE PARENTS – 1/2 (889) 2 LP – none
SURVIVING SPOUSE – 1/4 (893) 13. 1 AC + 1 LC – 1/2 shared equally – 1/4 each
14. * LEGITIMATE PARENTS – 1/2 (Art. 889) SS – share equal to 1 LC – 1/4
NATURAL CHILDREN and/or ILLEGITIMATE CHILDREN – 1/4 (896) but each 14. SS – 1/4
illegitimate child gets 4/5 of the share of each natural child (895 [ 2]) IP – none
SURVIVING SPOUSE –1/8 (899) 1 AC – 1/2
15. NATURAL AND/ OR ILLEGITIMATE CHILDREN – all together get 1/2 (901) If all 15. SS alone –1/2 except if the marriage is in articulo mortis, in which case the
natural or all illegitimate, dive the portion equally. share is 1/3
a. Marriage is in articulo mortis
If some are natural and others illegitimate, each of the illegitimate child gets b. Dies within 3 months
only 4/5 of the share of each natural child. (895 [2]) c. Not lived together for 5 years
16. * NATURAL and/or ILLEGITIMATE CHILDREN –1/3 (894), dividing it as in #15. d. Person who dies is the sick spouse
SURVIVING SPOUSE – 1/3 (894) 16. 1 AC – 1/2
1 IC – 1/2 of the share of AC – 1/4
17. SURVIVING SPOUSE ALONE – 1/2 or 1/3 if the marriage is in articulo mortis and
the deceased dies within 3 months after the marriage. (900) 17. 8 LC – 1/2 shared equally – 1/16
18. ILLEGITIMATE PARENTS (NATURAL OR OTHERWISE) ALONE – 1/2 (903) 1 IC – 1/2 of the share of a LC –1/32
SS – same as the share of 1 LC – 1/16
19. ILLEGITIMATE PARENTS – none. (903)
CHILDREN OR ANY CLASS –same as in #’s. 1, 4, 6 & 15, as the case may be. 18. 8 LC + 1 AC – 1/2 shared equally – 1/18 each
SS – same share as 1 LC – 1/18
20. ILLEGITIMATE PARENTS – 1/4
19. 1 LP – 1/2
SURVIVING SPOUSE – 1/4 (903)
SS – 1/8
1 IC – 1/4
ACCORDING TO BALANE
20. 1 LP – 1/2
SS –1/4
UNDER THE FAMILY CODE 21. 1 LP – 1/2
1. If the decedent died before the Family Code took effect 1 IC – 1/4
§ LC : NC : IC = 10 : 5 : 4 22. 1 AC + 1 LC – 1/2 shared equally – 1/4 each
2. If the decedent died after the FC took effect SS – same share as a LC – 1/4
§ LC : IC = 2 : 1. Do not distinguish between natural and spurious.
1 IC – 1/2 share of LC – 1/8
1 LP/IP – none
CONCURRING FRACTION – 1/2 –called basic legitime. 23. 1 AC – 1/2
§ GENERAL RULE – In most cases, there will be a group or single heir who will get 1/2 SS – 1/4
of the estate. 1 IC – 1/4
§ EXCEPTIONS 2 LP/IP – none
1. Art. 894 – IC (1/3) and SS (1/3)
2. Art. 903 – IP (1/4) and SS (1/4)
3. Art. 900 – SS alone in case of marriage in articulo mortis

EXAMPLE – A, in the ICU, is rich and dying of AIDS. B, who has not lived with A, accepts
A's proposal of marriage. They get married in the hospital. After getting married, A lapses
into a coma. The doctor sends B to buy the medicine. As B is crossing the street, she is
run over by a bus and dies. A is the only compulsory heir of B. Is this the marriage in
articulo mortis contemplated by the 3rd exception? No. The one who should die within
3 months should be A for the exception to apply.
§ RATIONALE FOR THE EXCEPTION IN NUMBER 3 -- It is the law's way of showing
its distaste to marriages for convenience or for interest or gain.
§ EXCEPTION TO EXCEPTION – If they have lived together for at least 5 years
before the marriage. This shows that it was not only for interest. Now that
one is dying, to reward the other spouse.
§ EXCEPTION TO NUMBER 3 – Applies only if the wife is (the) only compulsory
heir. Why? Because in other cases, she will always get less than 1/2. Does
not also apply to intestacy if the wife is the only intestate heir. She will get
the whole estate. In such a case, the testator was not given a change to
make a will. If given a chance, he could have named other people.

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 RESERVA TRONCAL
Art. 891. The ascendant who inherits from his descendant any property
which the latter may have acquired by gratuitous title from another
ascendant, or a brother or sister, is obliged to reserve such property as he
may have acquired by operation of law for the benefit of relatives who are
within the third degree and who belong to the line from which said property
came. (871)
Q – What is the RESERVA TRONCAL?
• It is simply a restriction or encumbrance upon property.
Q – What were the 2 RESERVATIONS/ RESERVAS in the Old Law?
1. Reserva viudal (Article 968, Spanish Code) – also called as
“ordinaria” because it was the older reserva
2. Reserva troncal (Article 811, Spanish Code) – also called as –
"lineal," "familial," "extraordinaria," because it was more a recent
addition.
Q – What were the 2 REVERSIONES in the Old Law?
1. Reversion legal (Article 812, Spanish Code)
2. Reversion adoptiva (Act 3977 and incorporated in Rule 100,
Section 5, Rules of Court of 1940) 
 relatives.
Q – What do you mean by RESERVA and REVERSIONES?
• RESERVA – Property set aside for a group of people who are the
relatives of the person from whom it came 
 FROM AN ASCENDANT OR FROM A BROTHER OR SISTER
• REVERSIONES – Property goes back to the person from whom it
came. 

BALANE – The draft Code submitted to Congress in 1948 had abolished all
these four but the legislature decided to retain the reserva troncal. All of the
four were supposed to be abolished in the New Civil Code, but there was
this congressman from Romblon who pushed for the revival of the reserva
troncal at the last minute. In 1963, PD 613 revived reversion adoptiva. But
this was eliminated by the Family Code. Now, only reserva troncal remains.
1MS 3R
\ / \
\ / \
\ / \
2P 4R
FLOW – 1MS (Mediate Source) à gratuitous title (donation or succession) à
2P (Prepositus) à by operation of law (legitimes or intestacy) à 3R
(Reservista/ reserver) à by intestacy à 4R (Reservatarios/ reservees)
Q – What is the purpose of RESERVA TRONCAL?
• The reserva troncal is a special rule designed primarily to assure
the return of the reservable property to the third-degree relatives
belonging to the line from which the property originally came,
and to avoid its being dissipated by the relatives of the inheriting
ascendant 

• The purpose is also to avoid the danger that property existing for
many years in a family’s patrimony might pass gratuitously to
outsiders through the accident of marriage and untimely death.
• In short, it is to bring back the property to the line of origin.
• According to some, it operates as a form of compensation for
the lack of representation in the ascending line.
• GONZALES V. CFI – The purpose of reserva troncal is to return the
property to where it originated and from where it strayed due to
the accident of marriage. "Accident" here means unforeseen
development.
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• BALANE – One’s interpretation on the purpose of the reserva has
consequences on the interpretation of issues pertaining to it.
These two view have different consequences in several
debatable issues.
• MANRESA – Purpose of the reserva is BOTH curative and
preventive. To bring back property to the line from where it came
or to prevent the property from leaving the line from where it
came
• JBL REYES – Purpose of the reserve is PURELY curative.
PURPOSE ACCORDING TO BALANE
1. FEUDAL
• UNDERLYING CONCEPT – Property should stay with the
family because it has stayed with them for so long and
marriage should not be allowed to cause that
property to leave that family.
• TO PREVENT THE PROPERTY FROM LEAVING THE FAMILY
THROUGH THE ACCIDENT OF MARRIAGE.
• EXAMPLE –
X ---------- Y
|
A
Property from X's family. X dies, property goes to A. A
dies, property goes to Y. The property may end up
with Y's family.
2. THIS IS NOT GOOD
a. It impairs the free circulation of property
b. Underlying philosophy is bad – outdated, aristocratic.
Q – What are the two conditions for RESERVA?
1. Death of the Reservista
2. Survival of the Reservatorios
Q – What are the Requisites of the RESERVA TRONCAL? When is there a
RESERVA TRONCAL?
• NIEVA V. ALCALA – All relationships involved here must be
LEGITIMATE. The provisions of ART. 891 apply only to legitimate
• CHUA V. CFI – The following requisites must be present in order for
Art. 891 to apply: 

1. THAT THE PROPERTY WAS ACQUIRED BY A PERSON
BY GRATUITOUS TITLE
2. THAT SAID DESCENDANT DIED WITHOUT LEGITIMATE
ISSUE
3. THAT THE PROPERTY IS INHERITED BY ANOTHER
ASCENDANT BY OPERATION OF LAW
4. THAT THERE ARE RELATIVES WITHIN THE THIRD DEGREE
BELONGING TO THE LINE FROM WHICH SAID PROPERTY
CAME
NOTE THAT RECITE CHUA V. CFI VERBATIM FROM THE BOOK NOT THE EDITED
ONE WITH SIR’S COMMENTS.
RE 1 – The property acquired by a person (Prepositus) from an ascendant,
brother or sister (Origin) by gratuitous title (First Transfer)
• Acquisition should be by gratuitous title when “the recipient does
not give anything in return”
• It encompasses transmissions
1. by donation (pure or simple, not onerous) or
2. by succession (of whatever kind).
• BALANE – “Descendant” – applies only if one got it from an
ascendant; but what if one got it from a brother; it should have
been "by a person or individual"
• NOTE – No inquiry is to be made beyond the Origin. It does not
matter who the owner of the property was before it was acquired
by the Origin.
RE 2 – That said person dies without LEGITIMATE ISSUE.
• "Issue" here means children or descendants.
• If there is a legitimate issue, this will not apply but will go to
legitimate descendants.
• If there is a legitimate issue but they all renounce, the individual
dies as if there was no legitimate issue
• NOTE – Only legitimate descendants will prevent the property
from being inherited by the legitimate ascending line by
operation of law.
 o Thus, the said descendant, may have a child, an
illegitimate one, and the ascendants can still inherit by
operation of law
RE 3 – That the property is inherited by another or other ascendant
(reservista) by operation of law (Second Transfer)
• Transmission by operation of law is limited to succession, either by:
a. Compulsory Succession (to the legitime)
b. Intestate Succession
• BUT NOT testamentary succession or donation
 3.
• NOTE – It is this SECOND TRANSFER that creates the RESERVA. See
SOLIVIO V. CA.
Q – What are the cases where the other ascendant will inherit by operation
of law , from his descendant?
1. Descendant has NO legitimate children/descendants –This
covers cases where the descendant has a surviving spouse
and/or illegitimate children/descendants (because in these
cases, the ascendant is still entitled to a legitime because only
legitimate descendants will prevent the property from being
inherited by the legitimate ascending line by operation of law. )
2. Descendant’s legitimate children/descendant ALL renounce or
are incapacitated to inherit – Even if the descendant has
legitimate children, but they all renounce or are incapacitated
to inherit, the property will pass to the ascendant, thus reserva
troncal can still apply.
RE 4 – That there are relatives (Reservatarios) within the 3rd Degree (From
Prepositus) belonging to the line from which said property came.
• NOTE – Here, there is a THIRD TRANSFER as the effect of the
Reserva
NOTE – Art. 891 imposes an obligation on the part of the ascendant (the
reservista or reservor), who inherits from his descendant any property which
the latter may have acquired by gratuitous title and by operation of law,
from another ascendant, or a brother or sister, to RESERVE such property.
Reservation of the property is required so that upon the death of such
ascendant, it will be given to the relatives who are within the third degree
and who belong to the line from which said property came (the
reservatarios or reservees)
Q – What is the process involved in the RESERVA TRONCAL?
• Under the requisites and rule, the subject-property involved in the
reserva troncal undergoes a process of three transmissions or
transfers:
1. First transfer—by gratuitous title, from a person to his
descendant, brother or sister. 
 on his mother’s side from whom he had inherited them
2. Second transfer—by operation of law, from the
transferee in the first transfer to another ascendant. (It
is this second 
transfer that creates the reserva) 
 was no second transmission. The property of the deceased,
3. Third transfer—from the transferee in the second
transfer to the relatives (reservatarios) 
 but the descendant of his mother, from whom he inherited the
1MS 3R
\ / \
A \ B / \ C
\ / \ a brother or sister.
2P 4R
1. FIRST TRANSFER – A = 1MS -- 2P
a. MS – either only an:
i. Ascendant of 2P
ii. brother or sister of 2P
b. MS to P – by gratuitous title -- either:
i. Donation
ii. succession
CHUA V. CFI – As long as the transmission to the heir is free from
any condition imposed by the deceased himself and the
property is given out of pure generosity, it is gratuitous. Even if the
Court ordered the heirs to pay Standard Oil, it is still gratuitous. If
the expense or charge is just incidental, it is still considered
gratuitous.
EXAMPLE – "I give you my house provided you pay the
mortgage." This is still gratuitous but you subtract the value of
what you paid.
2. SECOND TRANSFER – B = 2P – 3R
JDLYRREVERRE | B2020 | SUCCESSION | ATTY. BALANE | CHAMP NOTES ANNOTATED | 62
NOTE – Reserva troncal commences at this point.
a. Operation of law:
i. compulsory succession
ii. intestate succession
b. Cannot be by
i. testate succession
ii. donation
THIRD TRANSFER – C = 3R -- 4R
o This is a consequence of reserva troncal
o This occurs when the reservista dies
o Reserva troncal ends here.
CASE – SOLIVIO V. CA
• F – Subject properties involved here was owned by SALUSTIA
SOLIVIO, a widower, who had a child, Esteban Javellana, Jr.
When the mother died, her only son inherited her properties
consisting mostly of lands in Iloilo. The son later died a bachelor,
without descendants, brothers, sisters, nephews or nieces. His only
relatives are his maternal aunt CELEDONIA (half-sister of his
mother) and CONCORDIA (sister of his deceased father). During
his lifetime, Esteban, Jr. had, more than once, expressed to his
aunt Celedonia and some close friends his plan to place his
estate in a foundation to honor his mother and to help poor but
deserving students obtain a college education. Unfortunately, he
died of heart attack before he could set up such foundation. Two
weeks after his funeral, Concordia and Celedonia talked about
what to do with Esteban’s properties. Celedonia told Concordia
about Esteban’s desire to place his estate in a foundation to be
named after his mother, from whom his properties came, for the
purpose of helping indigent students in their schooling.
• Concordia agreed to carry out the plan of the deceased.
Pursuant to their agreement that Celedonia would take care of
the proceedings leading to the formation of the foundation, she
was declared the sole heir by the court. Thereafter, she sold
properties of the estate to pay the taxes and other obligations of
the de- ceased and proceeded to set up the foundation.
Concordia later filed a petition to also be recognized as an heir
of Esteban (maybe she changed her mind?). This was granted,
the trial court ordered the execution of its judgment pending
appeal and required Celedonia to submit an inventory and
accounting of the estate. Caledonia refused, saying that the
properties have been transferred to the foundation.
• I – Whether the decedent’s properties were subject to reserva
troncal in favor of Celedonia, his relative within the third degree


• H – Reserve troncal does NOT apply in this case. It does not apply
to property inherited by a descendant from his ascendant. There
Esteban is not reservable property, for he was not an ascendant,
properties in question. Therefore, he did not hold his inheritance
subject to a reservation in favor of his aunt, Celedonia Solivio,
who is his relative within the third degree on his mother’s side. The
reserva troncal applies to properties inherited by an ascendant
from a descendant who inherited it from another ascendant or
• For there to be a reserve, the two transfers or transmissions are
required.
• B – In this case, there can be no reserva troncal as the second
transmission was not from a descendant to an ascendant, the
properties passed to the person’s aunts. The third requisite (that
the property is inherited by another ascendant by operation of
law) is absent.
CASE – MENDOZA V. DELOS SANTOS – Newly Assigned Case
• F – The properties subject in the instant case are three parcels of
land located in Sta. Maria, Bulacan are presently in the name of
RESPONDENT JULIA DELOS SANTOS. Lot No. 1646-B, on the other
hand, is also in the name of respondent but co-owned by
VICTORIA PANTALEON, who bought one-half of the property from
PETITIONER MARIA MENDOZA AND HER SIBLINGS.
• Petitioners are grandchildren of Placido Mendoza and Dominga
Mendoza. 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 Exequiel’s death, it passed on to his spouse Leonor and only
daughter, Gregoria.
• After Leonor’s death, her share went to Gregoria.
• In 1992, Gregoria died intestate and without issue. They claimed
that after Gregoria’s death, respondent, who is Leonor’s sister,
 adjudicated unto herself all these properties as the sole surviving
heir of Leonor and Gregoria.
• Hence, petitioners claim that the properties should have been
reserved by respondent in their behalf and must now revert back
to them, applying Article 891 of the Civil Code on reserva troncal.
• COURT RULINGS
o RTC – Granted their action for Recovery of Possession
by Reserva Troncal, Cancellation of TCT and
Reconveyance.
o CA – Reversed and set aside the RTC decision and
dismissed the complaint filed by petitioners. CA also
denied their motion for reconsideration.
o SC – Affirmed CA. Reserva Troncal does NOT apply.
• H – Reserva troncal is not applicable. Julia, who now holds the
properties in dispute, is not the other ascendant within the
purview of Article 891 of the Civil Code. Reserva troncal is a
special rule designed primarily to assure the return of a reservable
property to the third-degree relatives belonging to the line from
which the property originally came, and avoid its being
dissipated into and by the relatives of the inheriting ascendant.
• It should be pointed out that the ownership of the properties
should be reckoned only from Exequiel’s as he is the ascendant
from where the first transmission occurred, or from whom
Gregoria inherited the properties in dispute. The law does not go
farther than such ascendant/brother/sister in determining the
lineal character of the property. It was also immaterial for the CA
to determine whether Exequiel predeceased Placido and
Dominga or whether Gregoria predeceased Exequiel. What is
pertinent is that Exequiel owned the properties and he is the
ascendant from whom the properties in dispute originally came.
Gregoria, on the other hand, is the descendant who received
the properties from Exequiel by gratuitous title.
• Article 891 simply requires that the property should have been
acquired by the descendant or prepositus from an ascendant by
gratuitous or lucrative title. A transmission is gratuitous or by
gratuitous title when the recipient does not give anything in
return. At risk of being repetitious, what was clearly established in
this case is that the properties in dispute were owned by Exequiel
(ascendant). After his death, Gregoria (descendant/prepositus)
acquired the properties as inheritance.
• Article 891 provides that the person obliged to reserve the
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
Gregoria’s collateral relative.
• Petitioners cannot be considered reservees/reservatarios as they
are not relatives within the third degree of Gregoria from whom
the properties came. The person from whom the degree should
be reckoned is the descendant/prepositus―the one at the end of
the line from which the property came and upon whom the
property last revolved by descent. It is Gregoria in this case.
Petitioners are Gregoria’s fourth degree relatives, being her first
cousins. First cousins of the prepositus are fourth degree relatives
and are not reservees or reservatarios.
• They cannot even claim representation of their predecessors
Antonio and Valentin as Article 891 grants a personal right of
reservation only to the relatives up to the third degree from whom
the reservable properties came. The only recognized exemption
is in the case of nephews and nieces of the prepositus, who have
the right to represent their ascendants (fathers and mothers) who
are the brothers/sisters of the prepositus and relatives within the
third degree.
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OTHER NOTES:
1. THREE (3) LINES OF TRANSMISSION IN RESERVA TRONCAL.
• The FIRST TRANSMISSION is by gratuitous title, whether
by inheritance or donation, from an ascendant/
brother/ sister to a descendant called the prepositus.
• The SECOND TRANSMISSION is by operation of law
from the prepositus to the other ascendant or reservor,
also called the reservista.
• The THIRD AND LAST TRANSMISSION is from the
reservista to the reservees or reservatarios who must
be relatives within the third degree from which the
property came.
2. THE PERSONS INVOLVED IN RESERVA TRONCAL ARE:
a. The ascendant or brother or sister from whom the
property was received by the descendant by
lucrative or gratuitous title;
b. The descendant or prepositus (propositus) who
received the property;
c. The reservor (reservista), the other ascendant who
obtained the property from the prepositus by
operation of law; and
d. The reservee (reservatario) who is within the third
degree from the prepositus and who belongs to the
(linea o tronco) from which the property came and for
whom the property should be reserved by the
reservor.
3. ART. 964. A series of degrees forms a line, which may be either
direct or collateral. A direct line is that constituted by the series of
degrees among ascendants and descendants.
A collateral line is that constituted by the series of degrees
among persons who are not ascendants and descendants, but
who come from a common ancestor.
4. ART. 1003. If there are no descendants, ascendants, illegitimate
children, or a surviving spouse, the collateral relatives shall
succeed to the entire estate of the deceased in accordance
with the following articles.
ART. 1009. Should there be neither brothers nor sisters, nor children
of brothers or sisters, the other collateral relatives shall succeed
to the estate.
The latter shall succeed without distinction of lines or preference
among them by reason of relationship by the whole blood.
5. DUTY OF THE RESERVISTA – Reservista, has the duty to reserve and
to annotate the reservable character of the property on the title.
In reserva troncal, the reservista who inherits from a prepositus,
whether by the latter’s wish or by operation of law, acquires the
inheritance by virtue of a title perfectly transferring absolute
ownership. All the attributes of ownership belong to him
exclusively.
RECIT – MENDOZA V. DELOS SANTOS
• Q – Why were the subject parcels of land partitioned? When the
parents died, the subject lots were adjudicated in favor of
Exequiel.
• Q – What were the allegations of the Petitioner First Cousins? They
alleged that there is a RESERVA TRONCAL. Thus, the properties
should have been reserved by RESPONDENT JULIA DELOS SANTOS
in their behalf and must now revert back to them.
• Q – What is the ratio of the case? The court held that there was
NO RESERVA TRONCAL because there was no second transfer as
contemplated under ART. 891. The court held that the transfer
from the PREPOSITUS (GEORGIA) to JULIA (MATERNAL AUNT) is not
another ascendant. She is Gregoria’s collateral relatives. Thus,
making her not a reservista.
• Q – What if Georgia predeceased her other will there be a
reserve truncal? YES, because there will be a second transfer. The
mother being another ascendant contemplated by law to be a
reservista, a direct line of Georgia.
Q – What are the basic rules regarding the parties in a Reserva Troncal?
1. NO INQUIRY IS TO BE MADE BEYOND THE ORIGIN/MEDIATE SOURCE
– It does not matter who the owner of the property was before it
was acquired by the Origin
2. ALL THE RELATIONSHIPS AMONG THE PARTIES MUST BE LEGITIMATE
– The provisions of Art. 891 apply only to legitimate relatives, NOT
to illegitimate relations
Q – Who are the parties in the RESERVA TRONCAL?
1. ORIGIN OR MEDIATE SOURCE
2. PREPOSITUS
3. RESERVISTA (RESERVOR)
4. RESERVATARIOS (RESERVEES)
RE 1 – ORIGIN OR IMMEDIATE SOURCE
• The transferor in the first transfer
• The ascendant, brother or sister of the PREPOSITUS
• BALANE
a. If ascendant, there is no problem. You know from
what line the property came from.
b. If brother or sister and full or half blood.
i. If half blood, no problem. You know
what line the property came from.
ii. If full blood, there is a problem. How will
you what line it came from?
Q – In case of siblings, must they be HALF-BLOOD?
• Debatable, but it seems the view of Manresa that reserva applies
to BOTH full and half blood siblings is better 
 be mixing of lines 
Example: A receives by donation a parcel of
• YES – JBL REYES – it must be half-blood, since if it is full-blood, there
is no line, the line is both paternal and maternal, the property
does not leave the line in this case. The property must leave the
line, for reserva to apply, since the purpose of the reserva is to
bring back property to the line from which it came, thus, if the
origin is a sibling, he or she must be of half-blood, for the property
to leave the line. Reserva is merely curative in nature. 
 leaving the line
• NO – MANRESA – It does not matter whether the fraternal
relationship is of the full-or the half-blood. In either case a reserva
may arise. Since the law makes no distinction, we should not
make one. Reserva is NOT just preventive but curative, it should
apply to both full and half-blood as to prevent the property form
leaving the line
• BALANE EXPLAINS – What line do you apply it to? You cannot
apply it to either line as long as it is within the third degree. Why?
The purpose of the law is not only to bring back the property to
the line (curative) but also to prevent it from leaving the family.
A----------B
/ \
X Y
THUS – Y to X. A is dead. X dies, so the property goes to B. B
remarries. The property is lost. Manresa's view is the accepted
view.
RE 2 – PREPOSITUS
• The first transferee, who is a descendant or brother/sister of the
Origin 

• He is the descendant who received by gratuitous title and who
later dies without issue, making his other ascendant inherit by
operation of law. 
 THE PREPOSITUS (CABARDO V. VILLANUEVA)
• While the property is still with the Prepositus there is as yet no
reserva. The reserva arises only upon the second transfer (to the
reservista). 
 by all civilists unanimously
• SANCHEZ ROMAN – He is the “arbiter” of the reserve.
• BALANE – He is the central figure in the reserve troncal because
a. At the time he receives the property, he becomes the
absolute owner. He can prevent reserva troncal from
happening. How? By preventing it from going to an
ascendant by operation of law. How? BY EXERCISING
THE RIGHTS OF OWNERSHIP
1. BY SUBSTITUTING OR ALIENATING THE PROPERTY –
By selling it. Dispose of a potentially free portion
property (even by pacto de retro.)
2. BY BEQUEATHING OR DEVISING IT EITHER TO THE
POTENTIAL RESERVISTA OR TO THIRD PERSONS –
Give it to an ascendant by donation, devise,
legacy or testamentary succession.
3. BY PARTITIONING IN SUCH A WAY AS TO ASSIGN
THE PROPERTY TO PARTIES OTHER THAN THE
POTENTIAL RESERVISTA
JDLYRREVERRE | B2020 | SUCCESSION | ATTY. BALANE | CHAMP NOTES ANNOTATED | 64
b. He is the basis or point of reference for the third
degree relationship.
NOTE – There is no reserva troncal yet while the property is in the hands of
the prepositus.
RE 3 – RESERVISTA
• called "ascendant reservista." He must be another ascendant
other than the mediate source if the mediate source is an
ascendant.
• The OTHER ascendant of the Prepositus of whatever degree
• He is the ascendant obliged to reserve
• The RESERVA arises only at the time of the RESERVISTA inherits or
receives the property from the PREPOSITUS
Q – Should the Origin/Mediate Source and the Reservista belong to
different/opposite lines?
• Debatable, but the better view is, NO, they need not belong to
different lines, since the law does not distinguish.
• MANRESA – No, reserva can apply regardless if they belong to
same or opposite lines since the law does not distinguish. The
purpose of the reserva is not merely curative but also preventive.
• JBL REYES – Yes, because if they belong in both lines, the property
cannot leave the line, thus, there is no reason for reserva to apply.
Reserva is purely curative. How can this happen in the first place?
remember that the origin need not be the father or mother, of
the prepositus he just needs to be an ascendant (or a sibling)
thus, he can be a grandfather or grandmother and there could
land from his paternal grandfather X. Upon A’s death, the parcel
passes by intestacy to his father Y (X’s son). The property never
left the line. Is Y obliged to reserve? 

• The better view is, YES, he is still required to reserve because the
law makes no distinction, and the purpose of the reserva is not
only curative, but also preventive, to prevent the property from


• This was touched on by the SC in CARRILLO VS. DE LA PAZ, where
it held, in obiter, this view. 

ILLUSTRATION OF THE QUESTION
X----------Y X donates to C. C dies and it goes to A.
| 1MS – X
A----------B 2P -- C
| 3R -- A
C
IS THERE RESERVA TRONCAL?
1. No. The property never left the line.
2. Yes. There is no requirement in Art 891 that the 1MS and 3R must
belong to different lines. This is the view accepted by the majority
of commentators.
RE 4 – RESERVATARIOS
• They are the relatives benefited.

• The reserva is in favor of a class, collectively referred to as the
reservatarios (reservees).
Q – What are the requirements to be a RESERVATARIO?
1. HE MUST BE WITHIN THE THIRD DEGREE (OF CONSANGUINITY) FROM
• BALANE – The law does not say it is third degree from
the prepositus, but this is the correct rule as supported
2. HE MUST BELONG TO THE LINE FROM WHICH THE PROPERTY CAME.
(THIS IS DETERMINED BY THE ORIGIN/ MEDIATE SOURCE)
IF ORIGIN IS AN
IF ORIGIN IS A SIBLING
ASCENDANT
If a half-brother or half-sister, distinguish also whether of the
paternal or maternal line. If, however, it is a brother or sister
of the full blood, it would not be possible to distinguish the
lines. Thus, in this case the question of which line is
immaterial, all relatives within the third degree, irrespective
See whether of lines is a reservatario (as supported by Manresa)
such person is
of the paternal BALANE – This is an exception to the general rule that the
or maternal line reservatario must belong to the line from which the property
came, in this case, the question of line is immaterial, those
within the third degree from the prepositus are all
reservatarias (according to Manresa). But if you would follow
JBL Reyes, there would be no reserva, as the property never
left the line in case of full-blood siblings.
 CASE – PADURA V. BALDOVINO
3. HE MUST BE RELATED BY BLOOD TO THE ORIGIN OR MEDIATE • F – Agustin Padura died on April 26, 1908 leaving a last will and
SOURCE testament wherein he bequeathed his properties among his
• This is implied. According to SANCHES – ROMAN. children, Manuel (child on his first wife), Candelaria and
Fortunato (children on his second wife), and his surviving spouse,
ILLUSTRATION Benita Garing. Fortunato was adjudicated four parcels of land.
Fortunato died unmarried without having executed a will; and
A----------A1 not having any issue, the said parcels of land were inherited
| exclusively by her mother.
B----------B1 (Reservista) • On August 26, 1934, Candelaria died leaving as her only heirs, her
| four legitimate children, Cristeta, Melania, Anicia and Pablo, all
C (Prepositus) surnamed Baldovino. Years later Manuel Padura also died.
Surviving him are his legitimate children, Dionisia, Felisa, Flora,
Q – B died. Upon A’s death, C inherits from A. Upon C’s death, the property Gornelio, Francisco, Juana, and Severino, all surnamed Padura.
is transmitted to B1. Is A1 a reservatorio? Upon the death of Benita Garing (the reservista), the question on
the distribution of the said parcels became a dispute between
FOLLOWING THE 3 REQUISITES: the nephews and nieces of Fortunato by half-blood (Paduras)
• Yes. and the nephew and nieces by full-blood (Baldovinos).
• Yes. • I – How should the four parcels of land be divided among the
• No. A1 is not related by blood to the mediate source. nephews and nieces of Fortunato?
• H – Upon the death of the ascendant reservista, the reservable
Q – Who are the possible relatives that can be reservatarios? property should pass, NOT TO ALL the reservatarios as a class but
1. Brothers or sisters 
 only to those nearest in degree to the descendant- prepositus,
2. Nephews or nieces 
 excluding the reservatarios of a more remote degree.
3. Uncles and aunts
 • Proximity of degree and right of representation are basic
4. Grandparents (if they are still living, and no legitimate principles of ordinary intestate succession; so is the rule that
descendants) whole blood brothers and nephews are entitled to a share double
that of brothers and nephews of half blood.
NOTE – These are the only relatives within the third degree of the Prepositus • In other words, the Reserva Tronal merely determines the group
of relatives (reservatarios) to whom the property should be
BALANE – If Reserva Troncal applies and the descendant (prepositus) has returned; but within that group the individual right to the property
legitimate children, but they all renounce or are incapacitated to inherit, should be decided by the applicable rules of ordinary intestate
such that the property will pass to the ascendant (reservista), are the succession, since Art. 891 does not specify otherwise.
descendants who have renounced or are incapacitated inherit considered • The reservatarios who are nephews of the whole blood are
reservatarios? (note that they are obviously relatives within the third degree declared entitled to a share twice as large as that of the
from the prepositus) In other words, can the descendant son, or even nephews of the half-blood.
grandson of the prepositus, now become a reservatario in this case? • B – Apply the rules in intestate succession:
a. Nearer excludes the more remote.
Q – To be qualified as a reservatario is it necessary that one must be already b. Representation in favor or nieces for predeceased
living when the PREPOSITUS dies? brother
• NO, they are not required to be alive when the prepositus dies c. Proportion of 2 : 1 between full and half-blood
BUT they must be living with the Reservista dies. nephews and brothers. However, there is no
• RESERVATARIOS need NOT be alive when the reserve is created. representation in the case because there are no other
This is because the reserve is in favor of a class. As long as the brothers. However, the ratio of 2 : 1 is maintained.
Reservatario is alive at the time of the Reservista’s death, even if
born conceived and born after the Prepositus’ death. Q – Is there representation among the reservatarios?
• BALANE – NOT required, because as Manresa points out: ‘The • YES, as in intestate succession, the rule of preference of degree
Reserva is established in favor of a group or class: the relatives among reservatarios is qualified by the rule of representation. 

within the third degree, not in favor of specific individuals. As • BALANE – Actually, there will be only one instance of
long, therefore, as the reservatario is alive at the time of the representation among the reservatarios, a case of the Prepositus
reservista’s death, he qualifies as such, even if he was conceived being survived by brothers/sisters and children of a predeceased
and born after the Prepositus’ death. 
 or incapacitated brother/sister. 

• The reservatarios do not “strictly” succeed or inherit from the • See FLORENTINO V. FLORENTINO
prepositus, it is a kind of delayed succession. This is despite the • The relatives within the 3rd degree will have only an expectation
fact that some cases say that the reservatarios inherits (the to the property while the ascendant (reservista) lives, an
reserved property) from the prepositus (not the reservista). They expectation that can be transmitted to their own heirs, provided
do not “strictly” inherit from the prepositus because they are not that they are also within the 3rd degree.
required to be alive at the time the prepositus dies. The • GONZALES V. CFI – The Reservatarios do not inherit from the
reservatarios do not inherit from the prepositus directly because Reservista but from the descendant Prepositus, of whom the
one requirement of the capacity to succeed is that the heir Reservarios are the heirs mortis causa, subject to the condition
should be alive when the decedent dies (Art. 1025). They are that they must survive the Reservista.
inheriting by virtue of the special rule of the reserve trocal. The
correct way to say it, is that the reservatarios “as if” or “by CASE – FLORENTINO V. FLORENTINO
analogy” reservatario from the prepositus like ordinary heirs. 
 • F – Property disputed in this case belonged to APOLONIO II. He
had 11 children, 9 from his first marriage and 2 from his second.
Q – Is there preference among reservatarios? The children with the second wife are Mercedes and Apolonio III.
• YES, rules on intestacy will apply. It is the rules of intestacy which When Apolonio II died, his estate was accordingly disposed of
chooses who the reservatarios are and how transmission to them and distributed to his hers, some of which passed his son Apolonio
is governed III. Apolonio later died, childless and single, thus his properties
• BALANE: According to the Padura case, in the reserva, it is “as if passed to his mother, Severina. When she died, the properties
“the reservatarios inherit from the prepositus by intestacy, thus, by passed to her daughter, Mercedes. Several children of Apolonio
analogy, the following principles apply to the reservatarios: II (from his first marriage), some in their own right, some by right of
1. PROXIMITY IN DEGREE – Those reservatarios nearer in representation, filed an action to recover their share of the
degree of relationship to the Prepositus will exclude properties from Mercedes, claiming the application of Reserva
those more remotely related 
 Troncal, they being the relatives within the third degree of
2. RIGHT OF REPRESENTATION – Heirs of the reservatarios Apolonio III (their half-brother) from the line from which the
has the right of representation in the proper cases 
 property came (the reservatarios). The TC dismissed the action, it
3. RULE ON DOUBLE SHARE – Those whole blood brothers said that reserva does not apply as the underlying purpose of the
and nephews are entitled to a share double that of reserva of preventing the subject property from falling into the
brothers and nephews of half blood. 
 hands of strangers had been avoided because it was inherited
by the sister of the decedent. It also said that to apply reserva
troncal would impair the legitimate Mercedes is entitled to.

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 • I – WHETHER RESERVA TRONCAL APPLIES SUCH THAT THE PLAINTIFFS
ARE ENTITLED TO THEIR SHARE 
 from which the property came, OR
• H – Reserva Troncal applies and that the plaintiffs are entitled to
their share as they are relatives of the prepositus within the third
degree. Some (3 plaintiffs) are his relatives within the third degree
in their own right and some (12 plaintiffs) are such by
representation, all of them are indisputably entitled as
reservatarios to the property. The reservista, has no right to
choose, which of the reservatarios should inherit. 
 •
• Following the order prescribed by law in legitime succession,
when there are relatives of the descendant within the third
degree, the right of the nearest relative, called Reservatario over
the property which the reservista (person holding it subject to
reservation) should return to him, excludes that of the one more
remote. The right of representation cannot be alleged when the
one claiming same as a Reservatario of the reservable property
is not among the relatives within the third degree belonging to
the line from which such property came. The right granted by Art.
891 is in the highest degree personal and for the exclusive benefit
of the designate persons who are the relatives within the 3rd
degree. Therefore, relatives of the fourth and the succeeding
degrees can never be considered as reservatarios, since the law
does not recognize them as such.
• In short, there is right of representation on the part of reservatarios
who are within the third degree mentioned by law, as in the case
of nephews of the deceased person from whom the reservable
property came. These reservatarios have the right to represent
their ascendants (fathers and mothers) who are the brothers of
the said deceased person and relatives within the third degree.
• B – Representation only in favor of nephews and nieces of
deceased brothers and sisters of the prepositus. The case is
wrong, however, when it did not distinguish between full and half-
blood nephews and nieces.
JUDICIAL NATURE OF THE RESERVA TRONCAL
• BALANE – Commentators have differing opinions as to the nature
of the Reserva Troncal, some say it is a trust, some say it is a
usufruct, some say it is a kind of possession. Several cases tell us
its juridical nature, The juridical nature of Reserva Troncal may be
viewed from two aspects—from that of the reservista and that of
the reservatarios.
Q – What is the Reservista’s Right over the reserved property? See. EDROSO
V. SABLAN
1. The reservista’s right over the reserved property is one of
ownership (not of trust, usufruct or possession). 

2. The ownership is subject to a resolutory condition, the existence
of reservatarios at the time of the reservista’s death. (resolutory
because the happening of the condition extinguishes the right) 
 2.
3. The right of ownership is alienable, but subject to the same
resolutory condition. 
 •
4. The reservista’s right of ownership is registrable (if it is real
property) 
 3.
Q— Does the Reservista have the power to appoint, by will, who among the
reservatarios will get the reserva? Why?
• NO. See GONZALES V. CFI
• The reserved property does not form part of the estate of the
reservista.
CASE – EDROSO V. SABLAN
• F – Marcelina Edroso was married to Victoriano Sablan until his
death. In this marriage they had a son named Pedro and who at
his father’s death inherited the two said parcels. Pedro also died
unmarried and without issue, and by his decease the two parcels
of land passed through inheritance to his mother, Marcelina
Edroso. Hence the hereditary title whereupon is based the
application for registration of her ownership. Two legitimate
brothers of Victoriano Sablan—Pedro Sablan and Basilio Sablan—
appeared in the case to oppose the registration claiming that
the registration of the parcels of land must be either denied or if
granted, be reserved in their favor.
• I – Whether the parcels of land may be registered in the name of
the reservista?
• H – Yes, MarcelIna is entitled to register in her own name,
however, a right should be reserved in favor of the 2 uncles of the
deceased. The conclusion is that the reservista has the rights of
use and usufruct. He has the legal title and dominion, although
under a condition subsequent. The legal title and dominion, even
though under a condition, reside in him while he lives. All the
attributes of the right of ownership belong to him. This absolute
ownership is not altered for as long as –
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a. There is NO relatives within the 3rd degree in the line
b. Said relatives die before the ascendant.
• In short, there should be
a. Relatives within the 3rd degree AND
b. Said relatives (reservatarios) survive the Reservista at
the time of the Reservista’s death. It is then the
limitation on absolute ownership will arise.
The ascendant (Reservista) acquires the property with a
CONDITION SUBSEQUENT – whether there exist at the time of his
death, relatives with the 3rd Degree. If such relatives
(Reservatarios) exist, they acquire ownership of the property at
the death of the ascendant (reservista). If they (Reservatarios) do
not exist, then the ascendant (Reservista) may freely dispose
thereof.
• Hence, the Reservista has legal title but subject to a condition.
He can do anything that a genuine owner can do.
• On the other hand, the relatives within the third degree in whose
favor the right is reserved cannot dispose of the property, first
because it is in no way, either actually, constructively or formally,
in their possession; and, moreover, because they have no title of
ownership or of fee simple which they can transmit to another.
• PARTIES
• MEDIATE SOURCE – Victoriano Sablan, Father
• PREPOSITUS – Pedro Sablan, son of Victoriano
• Transfer – by operation of law
• RESERVISTA – Marcelina Edroso, mother of Pedro
• Transfer – by operation of law
• LINE OF ORIGIN – Paternal
• RESERVATATRIOS – Pedro Sablan and Basilio Sablan
• Uncles of Pedro
• Brother of Victoriano
• B – Error in the case: The case said “reservatarios cannot dispose
of the expectancy.” According to the Sienes case, supra., which
is correct, the expectancy can be alienated.
RECIT – EDROSO V. SABLAN
• Q – Why is it a condition? It is a condition because the existence
of reserves is future and uncertain.
• Q – Why is it resolutory? It is resolutory because when such event
happens the right to reserve terminates.
• Q – What is a condition? A condition is a future and uncertain
event.
Q – What is the nature of the Reservatarios’ right? See SIENES V. ESPARCIA
1. The reservatarios have a right of expectancy over the property.
The right is subject to a suspensive condition, the expectancy
ripens into ownership if the reservatarios survive the reservista
It is suspensive because the happening of the
condition creates or gives birth to the right
The right is alienable, but subject to the same suspensive
condition
• Note: Sienes erroneously refers to the condition as
“resolutory”). 

4. The right is registrable (if it is real property), by annotation on the
certificate title (remember that this is titled in the name of the
reservista, who has ownership of the reserved properties in the
meantime) 

CASE – SIENES V. ESPARCIA
• F – Lot 3368 originally belonged to SATURNINO YAESO. With his first
wife, TERESA RUALES, he had four children named Agaton,
Fernando, Paulina and Cipriana, while with his second wife,
ANDREA GUTANG, he had an only son named FRANCISCO. A title
covering Lot 3368, his inheritance, was issued in the name
of Francisco. Because Francisco was a minor at the time, his
mother administered the property. When FRANCISCO DIED
SINGLE and without any descendant, his mother Andrea, as his
sole heir, executed an EXTRAJUDICIAL SETTLEMENT AND SALE in
question to third persons appellants.
• When thereafter said vendees demanded from Paulina Yaeso
and her husband Jose Esparcia, the surrender of the title which
was in their possession — the latter refused. Thereafter, Cipriana
and Paulina Yaeso, the surviving half-sisters of Francisco
executed a deed of sale in favor of the spouses Fidel Esparcia
and Paulina Sienes, BEFORE the death of Andrea.
• I – Whether the sale made by the reservista and the reservatarios
were void there being no right to dispose the same. NO
• H – The reserve constitutes a real right which the reservatarios
may alienate and dispose of, conditionally, the condition being
 that the alienation shall transfer ownership to the buyer if and only
if the reservatarios survive the reservista. Any sale made by the
Reservatarios prior to the death of the Reservista will become
effective because of the occurrence of the suspensive condition
(survival of the reservatarios)
• The Court held that the reservista has the legal title and dominion
to the reservable property but subject to a resolutory condition;
that he is like a life usufructuary of the reservable property; that
he may alienate the same but subject to reservation,
said alienation transmitting only the revocable and conditional
ownership of the reservists, the rights acquired by the transferee
being revoked or resolved by the survival of reservatarios at the
time of the death of the reservista.
• The sale made by Andrea Gutang in favor of appellees was,
therefore, subject to the condition that the vendees would
definitely acquire ownership, by virtue of the alienation, only if the
vendor died without being survived by any person entitled to
the reservable property. Inasmuch much as when Andrea
Gutang died, Cipriana Yaeso was still alive, the conclusion
becomes inescapable that the previous sale made by
the former in favor of appellants became of no legal effect and
the reservable property subject matter thereof passed in
exclusive ownership to Cipriana.
• On the other hand, it is also clear that the sale executed by the
sisters Paulina and Cipriana Yaeso in favor of the spouses Fidel
Esparcia and Paulina Sienes was subject to a similar
resolutory condition. The reserve instituted by law in favor of
the heirs within the third degree belonging to the line from which
the reservable property came, constitutes a real right which the
Reserva may alienate and dispose of, albeit conditionally,
the condition being that the alienation shall transfer ownership to
the vendee only if and when the Reservatarios survives the
person obliged to reserve. In the present case, Cipriana Yaeso,
one of the Reservatarios, was still alive when Andrea Gutang, the
person obliged to reserve, died. Thus, the former became the
absolute owner of the reservable property upon Andrea’s death.
• PARTIES
• MEDIATE SOURCE – Saturnino Yaeso, Father
• PREPOSITUS – Francisco, son of Saturnino
• Transfer – by operation of law
• RESERVISTA – Andrea Gutang, mother of Francisco
• Transfer – by operation of law
• LINE OF ORIGIN – Paternal; Parental
• RESERVATARIOS – Half-Siblings – Agaton, Fernando, Paulina
and Cipriana
• B – The reservatarios do not really inherit from the prepositus,
because they are not required to be alive 
when the prepositus
dies (note that this is a requirement in capacity to succeed in Art.
1025). They only inherit from the prepositus “in a manner of
speaking”. They really inherit by virtue of the special rule of the
Reserva Troncal 
 3. The reserved property is NOT part of the reservista’s estate upon
• The rule in this jurisdiction, therefore, is that, upon the reservista’s
death, the property passes by strict operation of law (according
to the rules of intestate succession, declared in the Padura case),
to the proper reservatarios. Thus, the selection of which
reservatarios will get the property is made by law and not by the
reservista. The reservista has no power to appoint, by will, which
reservatarios will get the reserved property 
 CASE – CANO V. DIRECTOR
• B – Errors in this case
1. The case said the “right of reservista is subject to a double
resolutory condition”
a. death of the reservista; and
b. survival or reservatorio
• However, the death of the reservista is a term. It
should be the “right of (the) reservatario is
subject to a suspensive condition.”
2. The case said that “alienation by (the) reservataro is subject
to a resolutory condition.” It should read “suspensive
condition.”
RECIT – SIENES V. ESPARCIA
• Q – Why is it a condition? It is a condition because the existence
of reserves is future and uncertain.
• Q – Why is it resolutory? It is resolutory because when such event
happens the right to reserve terminates.
• Q – What is a condition? A condition is a future and uncertain
event.
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• Q – Why suspensive condition? It is suspensive because the
happening of the condition creates or gives birth to the right. The
happening of the event gives rise to the ownership.
• Q – What is the condition? Reservees survive the Reservor.
• Q – If both rights can be registered, does this mean that you have
two titles? NO, only one title which is under the name of the
reservista and the right of the Reservatarios is merely annotated
to such title – likened to a mortgage.
THREE RELATIONSHIPS
1. Mediate Source à Prepositus – ascendant or brother or sister
2. Prepositus à Reservista – descendant-ascendant relationship
3. Reservatorio à Reservista
a. Mediate Source – blood relation
b. Prepositus – within the 3rd degree
NOTE
• All relationship must be legitimate.
• In effect, this requirement punishes legitimate relations because
if the relation is illegitimate, there is no obligation to reserve.
Q – What kind of property may be included in the reserva troncal?
• ANY KIND. Movable or immovable, fungible or infungible, fruit-
bearing or not, corporeal of incorporeal.
Q – What about money, can it be reserved?
• Yes, provided it is in a form of deposit. In money, the property is
the purchasing power and not the bills. As such, the value of the
money can be reserved.
Q – May the property be substituted? NO
• The very same property must undergo the 3 transfers in order for
the reserve to arise.
• If the Prepositus substitutes the property by selling, bartering, or
exchanging it, the substitute cannot be reserved.
• Note that while the property is with the Prepositus, there is yet no
reserva, which commences only when the property is received
by the reservista.

• Consequently, the Prepositus has, over the property, plenary
powers of ownership, and he may exercise these powers to
thwart a potential reserve
• The reserve commences only when the property is received by
the Reservista.
RULES REGARDING THE PROPERTY RESEVRED
1. Any kind of property is reservable, even incorporeal property.
2. The very same property must go through the process of
transmissions in order for the Reserva to arise.
his death. See CANO V. DIRECTOR
Q – From whom do the Reservatarios inherit?
• The Reservatarios receives the property as conditional heirs of the
descendant Prepositus. See CANO V. DIRECTOR.
• F – The prepositus and the reservista (Maria Cano) had already
died. The reservatarios thus applied for the issuance of a decree
of registration of title in their favor. The heirs of the reservista
opposed, claiming that the subject-matter should be ventilated
in a judicial administration proceeding and that the Registration
Court had no jurisdiction to grant the application. Such heirs were
claiming that the rights of the reservatarios should be declared in
such contentious proceeding where the application of the
Reserva Troncal should be duly proved. The lower court granted
the petition for the issuance of a new certificate, for the reason
that the death of the reservista vested the ownership of the
property in the reservatarios.
• H – Court affirmed the decision of the lower court and held that a
separate proceeding to determine the existence of the Reserva
Troncal is NOT required, and may be established in the
registration proceedings. The reserved property is NOT part of the
estate of the reservista, and does not even answer for the debts
of the latter. Hence, its acquisition by the reservatario may be
entered in the property records without necessity of estate
proceedings, since the basic requisites therefor appear of
record. It is equally well settled that the reservable property
cannot be transmitted by a reservista to her or his own successors
mortis causa, so long as a reservatario within the third degree
 from the prepositus and belonging to the line where the property
came, is in existence when the reservista dies. 
 Every item will pass according to ratios of the
• The reservatario is not the reservista’s successor mortis causa nor
is the reservable property part of the reservista’s estate; the
reservatario receives the property as a conditional heir of the
descendant (prepositus), said property merely reverting to the
line of origin from which it had temporarily and accidentally
strayed during the reservista’s lifetime. 
 is 60,000, and P died without a will, what is reserved?
• Since the Reservatarios nearest to the Prepositus becomes
automatically and by operation of law the owner of the reserved
property upon the death of the Reservista, the Reservatarios
acquire the property without need of estate proceedings.
• B – The Cano ruling is perfectly consistent with the principle that
the reserved property, upon the reservista’s death, passes to the
reservatarios by strict operation of law. It may be stated,
relevantly, that as a consequence of the rule laid down in Cano,
since the reserved property is not computed as part of the
reservista’s estate, it is not taken into account in determining the
legitimes of the reservista’s compulsory heirs. It thus partakes the
nature of an encumbrance or burden on the legitimate of the
compulsory heirs of the reservista (a burden imposed by law)
Q – What are the requisites before a RESERVA MAXIMA AND RESERVA
MINIMA will arise?
1. The Prepositus acquires property by gratuitous title from the origin
or mediate source
2. The Prepositus has other properties of his own (which he did not
acquire from the mediate source)
3. The Prepositus makes a will instituting the ascendant-reservista,
as a compulsory heir, to a part of his estate
4. There is a mixture of properties left in the Prepositus’ estate (from
mediate source and those of his own), which will pass to the
ascendant-reservista by operation of law
NOTE – Thus, the properties will pass to the reservista by will and by operation
of law
SITUATIONS
SITUATION 1 – MS donates a piece of land to P worth P100,000. P then dies
without legitimate issue. R is the mother of P.
MS R P4 million could possibly be the reserved property, it cannot be
\ /
P mediate source
QUESTION
1. If P had no will and the land is the only property in his estate, what
is reserved? The whole land.
Note: 1/2 to R as legitime
1/2 to R by intestacy.
2. If with a will that said “I give the free portion to my mother,” what
is reserved? One-half (1/2) of the land.
Note: 1/2 to R as legitime
1/2 to R by will
What is reserved is what R received as legitime (transferred by
operation of law.)
3. If P acquired another piece of land worth P100,000 before he
died and he did not have a will, what is reserved? The land from
MS is reserved.
4. Same as number 3, but this time P died with a will stating “I give
the free portion to my mother.” What is reserved?
Note: 1/2 to R as legitime = P100,000
1/2 to R by will = P100,000
Land from MS – can be reserved
Land subsequently acquired – cannot be reserved.
TWO THEORIES
a. Reserva maxima (maximum operation of Rerva
Troncal) – fit as much of reservable property as you
can in the 1/2 by legitime. In the example, the whole
land from MS is reservable.
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b. Reserva minima (followed by most commentators) –
properties. In the example, 1/2 will pass as legitime
and 1/2 by will for both pieces of land = 1/2 of land
from MS is reservable.
5. If the land from MS is 100,000 and the land subsequently acquired
Note: 1/2 as legitime = 80,000
1/2 by intestacy = 80,000
a. Reserva Maxima - 8/10 of land from MS is reservable
b. Reserva Minima - 1/2 of the land from MS is reservable
6. Same as number 6 but P had a will stating “I bequeath 1/4 of
my estate to my mother.” What is reserved?
Note: 1/2 as legitime = 80,00 \ 3/4 by operation of law
1/4 by intestacy = 40,000 /
1/4 by will = 40,000
a. Reserva maxima -- Whole land from MS is reservable
b. Reserva minima -- 3/4 of land from MS is reservable
Look at how much passes by operation of law.
THIS ARISES ONLY IF:
1. P dies leaving property he got from MS by gratuitous title and
other property from other sources.
2. P made a will instituting the reservista to part of the estate.
SITUATION 2 – The prepositus acquires P4 million from the mediate source.
He also has properties of P6 million of his own. He makes a will instituting his
mother to “1/2” of his estate. His mother was the sole compulsory heir. Thus,
the entire estate of P10 succession (P5 million).
QUESTION – How much is the reserved property? Note that only P5 million
passes by operation of law and only P4 million came from the mediate
source.
NOTE
1. IT MUST COME FROM THE ORIGIN OR MEDIATE SOURCE – Thus, only
more than that, since this is only the property that came from the
2. IT MUST PASS TO THE PREPOSITUS BY OPERATION OF LAW (EITHER
THROUGH COMPULSORY OR INTESTATE SUCCESSION) – This is
exactly the problem, “what properties are deemed to have
passed by operation of law?” such that, it is those properties that
will comprise of the reservable estate. In other words, the issue is,
how much of the property (from the mediate source) passed by
operation of law?
TWO THEORIES
1. RESERVA MAXIMA – The entire property which came from the
mediate source (P4 million), which can “fit” into that property
which passes by operation of law (P 5 million) is deemed as such,
and is considered reserved property. Thus, since the entire P4
million fits into the entire maximum property passing by operation
of law, such amount is considered the reserved property
• Note that it is not necessarily true that entire property
from the mediate source will be reservable, it will
depend on how much, as much as possible, passes by
operation of law
• Thus, in the example, if the prepositus instituted the
reservista to 3/4 of his estate (instead of 1/2), then 7.5
million passes by will, and only 2.5 million passes by
operation of law, then only 2.5 million, as the maximum
amount which can possible “fit” in the portion which
passes by operation of law, will be the reserved
property.
2. RESERVA MINIMA – In the example above, under the Reserva
Minima, the property coming from the mediate source should be
proportion in accordance with the will, in that if the testator
provides that 1/2 of his estate goes to his mother, then such
proportion provided means that 1/2 of the property received
from the mediate source passes by will, only the other half passes
by operation of law. Thus, only P2 million passes by operation of
law, from the property received from the mediate source, thus
only such amount is reserved property.
• In other words, the proportion provided by the
testator, in the will, covers, not the entire estate in its
 aggregate (this is Reserva maxima), but it covers the Reserva because the reservista, could have a child subsequently,
properties from the mediate source and properties of who would be a Reservatario.
his own (not from the mediate source) SEPARATELY,
such that part of the property from the mediate 3. RENUNCIATION BY ALL THE RESERVATARIOS, PROVIDED THAT NO
source is deemed transferred by will, according to the OTHER RESERVATARIO IS BORN SUBSEQUENTLY – Waiver by all the
proportion provided for. 
 reservatarios provided no Reservatario is subsequently born – This
• Note that the proportion is not always 1/2, it would is a tentative extinguishment because those subsequently born
depend on what is provided for by the testator. 
 cannot be bound by the waiver. A waiver is personal.

COMPARISON This is a CONDITIONAL EXTINGUISHMENT.

RESERVA MAXIMA RESERVA MINIMA 4. TOTAL FORTUITOUS LOSS OF THE RESERVED PROPERTY – If the loss
The property from the origin (the You take the proportion from both was due to the fault of the reservista, the security will answer for
whole of which) is subject to the kinds of property (both from the the property.
Reserva. Origin and from his Own
Acquisition). It must be total and fortuitous, not partial, nor culpable or
You have to fit as much of the ½ from the Origin’s property and ½ negligent.
reservable property into the ½ from the Own-Acquired property.
legitime. 5. CONFUSION OR MERGER OF RIGHTS – Reservista can alienate --
As much as of the potentially Every single property (regardless of but must be to all the reservatarios or if only to one, then merger
reservable property as possible Origin or Own-Acquired) will pass, takes place only with regard to that share.
must be deemed included in that partly by operation of law and
part that passes by operation of partly by the will, in the same As when the reservatarios acquire the reservista’s right by a
law. proportion that the part given by contract inter vivos
the will bears in relation to the part
not given. 6. EXTINCTIVE PRESCRIPTION / ADVERSE POSSESSION – reservista
adversely occupies the prop. Or openly denies the Reserva.
NOTE – There may be other potions
reservable depending on how 7. REGISTRATION OF THE PROPERTY UNDER THE TORRENS SYSTEM BY
much the Prepositus institutes in AN INNOCENT PURCHASER FOR VALUE WHEREIN THE RESERVABLE
favor of the Ascendant-Reservista. CHARACTER OF THE PROPERTY IS NOT ANNOTATED ON THE TITLE –
not really an extinguishment but more of a freeing of the prop.
The reservista, however, is liable for the value of the prop. Plus
NOTE – The reserve minima is more accepted in the PH.
damages.
BALANE – Either view is defensible. The minima, however, finds wider
acceptance here and in Spain. The minima is less burdensome, we should In SETTLEMENT PROCEEDINGS OF THE ESTATE OF THE RESERVISTA, reservatarios
may enter a claim to exclude the property from the inventory. Reservatarios
follow that which is less burdensome. But according to Padilla, the maxima
can also file an accion reivindicatoria. However, this is usually consolidated
should prevail since the Reserva Troncal is there to be given full effect.
with the settlement proceedings.
Q – What are the rights and obligation of the RESERVISTA and
RESERVATARIO?
1. To inventory the reserved properties – to enable the Reservatarios
to know what to expect.
2. To annotate the reservable character (if registered immovables)
in the Registry of Property within 90 days from 
acceptance by
the reservista (SUMAYA V. IAC)
3. To appraise the movables; 

4. To secure by means of mortgage: 

a. The indemnity for any deterioration of or damage to
the property occasioned by the reservista’s fault or
negligence, and 

b. The payment of the value of such reserved movables
as may have been alienated by the reservista
onerously or gratuitously. 


BALANE – The abolition of the Reserva Vidual has caused some uncertainty
whether these requirements still apply. The case of SUMAYA V. IAC (1991),
provides some help. It states that the requirement of annotation remains,
despite the abolition of the Reserva Vidual
• Sumaya: “The jurisprudential rule requiring annotation in the
Registry of Property of the right reserved In real property subject
of Reserva Vidual insofar as it is applied to Reserva Troncal stays
despite the abolition of Reserva Vidual in the New Civil Code” 

• Sumaya, however, is silent on two points:
1. within what period must the annotation be made; and
2. whether the other requirements of the old viudal also
remain. 


Q – How is the Reserva Troncal extinguished?

1. DEATH OF RESERVISTA – No more Reserva Troncal. If the reservista
dies, the reservatarios get the property. If there are no
reservatarios, the prop. Shall form part of the estate of the
reservista. It is a kind of delayed succession (JBL Reyes) from the
prepositus.

CANO V. DIRECTOR – The reserved property does not form part of

the reservista’s estate if there are reservatarios

2. DEATH OF ALL THE RESERVATORIOS – Reservista’s title to the

property becomes absolute and unconditional.
BALANE – If one subscribes to the view that the reservista can
belong to the line of origin, this will not ipso facto extinguish the
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Art. 904. The testator cannot deprive his compulsory heirs of their legitime,
except in cases expressly specified by law.
Neither can he impose upon the same any burden, encumbrance,
condition, or substitution of any kind whatsoever. (813a)
NOTE – No CMT in legitimes
Q – What are the 2 PROHIBITIONS on the part of the testator regarding
legitimes?
1. THE TESTATOR IS DEVOID OF POWER TO DEPRIVE COMPULSORY
HEIRS OF LEGITIME
• The legitime is NOT within the testator's control. It
passes to the compulsory heirs by strict operation of
law.
• This article reiterates this principle, as already
embodied in Art. 886
• EXCEPTION: When the testator disinherits his
compulsory heirs – The only instance in which the law
allows the testator to deprive the compulsory heirs of
their legitimes is disinheritance (Arts. 915-923), the
grounds for which are set forth in Arts. 919- 921.
2. THE TESTATOR CANNOT IMPOSE ANY BURDEN, ENCUMBRANCE,
CONDITION, OR SUBSTITUTION OF ANY KIND WHATSOEVER, ON THE
LEGITIME
IN AT LEAST TWO INSTANCES, THE LAW GRANTS THE TESTATOR SOME
POWER OVER THE LEGITIME, OVER ITS FORM, NOT VALUE:
a. Testator can provide that it is to be paid in cash, if he
is a parent who, in the interest of his or her family,
desires to keep any agricultural, industrial, or
manufacturing enterprise intact (Art. 1080)
b. Testator can prove that the legitime cannot be
partitioned or divided, for a maximum of 20 years (Art.
1083)
BALANE – In these two cases, the legitime is NOT impaired, it is
merely subjected to a burden
RESTRICTIONS ON THE LEGITIME IMPOSED BY LAW:
a. Family home cannot be partitioned unless there are
compelling reasons (Art. 159 of the Family Code)
BALANE – This is not an impairment of the legitime,
merely a burden imposed by law
b. The reserva troncal (Art. 891)
 donations by the testator that are subject to collation, at the time he made
BALANE – This is a case where the legitime can be
impaired and it is provided for by law. The law itself has
provided for the legitime and it can take it away.
EXCEPTIONS: FPIR
a. Art. 238 – Family home-- Ten (10) years.
b. Art. 1080 – Partition inter vivos of will
c. Art. 1083 – Indivision for 20 years
d. Art. 891 – Reserva troncal.
Art. 905. Every renunciation or compromise as regards a future legitime
between the person owing it and his compulsory heirs is void, and the latter
may claim the same upon the death of the former; but they must bring to
collation whatever they may have received by virtue of the renunciation or
compromise. (816)
BALANE – this is the prodigal son provision.
Q – What is the duty to collate?
• Any property which the compulsory heir may have gratuitously
received from the decedent by virtue of the renunciation or
compromise must be brought to collation
• This pertains to donations inter vivos 
 the time of the decedent’s death.
• Such donation will considered an advance on his legitime and
must be duly credited. 
 the decedent, those which are not extinguished by his death.
Q – What is the scope of this prohibition?
• This article applies only to compromises or renunciation between
the predecessor and the prospective compulsory heir.
Q –Is a transaction between the prospective compulsory heir and another
prospective compulsory heir, or between a pro- spective compulsory heir
and a stranger, prohibited? 
 obligations will be the available assets.
JDLYRREVERRE | B2020 | SUCCESSION | ATTY. BALANE | CHAMP NOTES ANNOTATED | 70
• Yes, by Art. 1347. A contract involving future inheritance is void,
regardless of who the parties are.
Art. 906. Any compulsory heir to whom the testator has left by any title less
than the legitime belonging to him may demand that the same be fully
satisfied. (815)
BALANE – "By any title" means by gratuitous title. (It also covers) donation
inter vivos which are considered advances on the legitime.
• Relate this provision to Articles 909 and 910.
• Relate his also to Art. 1062 where the testator expresses otherwise
for purposes of collation only and not preterition.
Q – When will this provision apply?
• The right of completion of legitime (action ad supplendam
legitimam)
1. ART 855 – When the title by which the testator transmitted
property is intestate succession. Art. 855 is a true case of
completion of legitime. (No preterition)
2. ART. 909 and 910 – Donation inter vivos to compulsory heirs
are imputable to their legitimes.
• In both case, anything that the compulsory heir received by
gratuitous title from the predecessor is considered as an
advance on the legitime and should be deducted therefrom.
EXCEPTIONS – When not counted as legitime
1. ART. 1062 – When the donation inter vivos is given with the express
provision by the testator that it should not be charged to the
legitime of the donee-compulsory heir.
2. ART. 1063 – Testamentary dispositions even to a compulsory heir
(unless the testator expressly provides that it should be counted
as legitime)
Art. 907. Testamentary dispositions that impair or diminish the legitime of the
compulsory heirs shall be reduced on petition of the same, insofar as they
may be inofficious or excessive. (817)
AGAIN – testamentary dispositions that exceed the disposable portion may
be subject to reduction upon the instance of the compulsory heirs, to the
extent that the legitime have been impaired.
Art. 908. To determine the legitime, the value of the property left at the
death of the testator shall be considered, deducting all debts and charges,
which shall not include those imposed in the will.
To the net value of the hereditary estate, shall be added the value of all
them. (818a)
IMPORTANCE OF ART. 908
§ Articles 888-903 set forth the legitimes of the compulsory heirs,
either inheriting alone or in various combinations. Those articles
gave the legitimes in the form of fractions, or proportions, of the
decedent’s estate. 

§ Art. 908 makes possible the computation of the absolute
amounts of the legitimes by laying down the manner of
computing the net value of the estate (the net hereditary
estate), on which the proportions are based. 

§ BALANE – Without Art. 908, you would not know the specific
amounts each compulsory heir will get, while the previous articles
define their legitime, meaning the portion of the estate they are
entitled to, such amount is based on the net hereditary estate.
You must first determine this amount, before you can get the
specific amount of their legitime. 

MANNER OF COMPUTING THE NET HEREDITARY ESTATE: 

1. INVENTORY OF ALL THE EXISTING ASSETS
§ This value is the “gross estate” or “gross assets”
§ This will involve an appraisal/valuation of these existing assets at
§ Note that these assets include only those properties that survive
§ In other words, only non-personal assets (in relation to Art. 774
and 777)
2. DEDUCT UNPAID DEBTS AND CHARGES
§ Once you deduct this, you get the “available assets”
§ The difference between the gross assets and the unpaid
 § All unpaid obligations of the decedent should be deducted from Art. 909. Donations given to children shall be charged to their legitime.
the gross assets.
§ Note that it involves the same rule with assets, only those Donations made to strangers shall be charged to that part of the estate of
obligations with monetary value which are not extinguished by which the testator could have disposed by his last will.
death are considered here.
§ Thus, those obligations which are purely personal (intuitu Insofar as they may be inofficious or may exceed the disposable portion,
personae) are not taken into account they shall be reduced according to the rules established by this
Code. (819a)
3. ADD THE VALUE OF ALL DONATIONS INTER VIVOS MADE BY DECEDENT
§ This determines the “net hereditary estate” Art. 910. Donations which an illegitimate child may have received during
§ The sum of the available assets and all the donations inter vivos the lifetime of his father or mother, shall be charged to his legitime.
is the net hereditary estate.
§ To the available assets should be added ALL the inter vivos Should they exceed the portion that can be freely disposed of, they shall
donations made by the decedent. be reduced in the manner prescribed by this Code. (847a)
§ The donations inter vivos shall be valued as of the time they were
respectively made. BALANE: ARTICLES 909 AND 910 ARE TAKEN TOGETHER.
§ Any increase or decrease in value from the time they were made
to the time of the decedent’s death shall be for the donee’s DONATION TO A
DONATION TO CHILD,
account, since donation transfers ownership to the donee. WHETHER LEGITIMATE OR STRANGER
DONATION TO SPOUSE
ILLEGITIMATE
DONATION TO PARENTS OR (Not a compulsory
ASCENDANTS (ART. 1062.) heirs)
HOW TO COMPUTE THE NET ESTATE
GENERAL RULE: GENERAL RULE: Not Charged to the free
Charged to the allowed portion.
1. Inventory all gross assets.
legitime
2. Deduct unpaid debts from the gross assets since the debts of
EXCEPTION: Gifts of They may also be
the decedent are to be paid by his estate. EXCEPTION: If the moderate value; treat reduced if they impair
testator provides the same as a the legitime.
Gross assets - Debts = Available assets. otherwise. (Art. 1062.) donation to a
compulsory heir.
3. Add donations inter vivos made by the decedent to anyone.
The value of the donated property is to be ascertained at the
time the donation was made. Any change in the value is for COLLATION (ART. 1061.)
the account of the donee-owner.
THREE SENSES
Available assets + Donations = Net Hereditary Estate.
a. Computation – Art. 908, par. 2
|
b. Imputation – Articles 909 and 910.
The basis for computing the legitime
c. Reduction/ return – Articles 911 to 913.
Gross Assets P2,500,000
EXAMPLE
Outstanding debts 500,000
Available assets 2,000,000
X
----------------
Donation to eldest son + 300,000
| | | |
!991 stock to brother + 500,000
A B C D
Donation to daughter + 200,000
Net Estate P3,000,000
Gross Estate 70,000
If there are 3 children - legitime = 1,500,000
Less: Debts 35,000
500,000 each.
Available assets 35,000
Add: Donations:
Spouse - legitime = 500,000.
1987 to A 15,000
1989 to M 30,000
CASE – VIZCONDE VS. COURT OF APPEALS – Collation Defined
1991 to D 40,000
• Collation is the act by virtue of which descendants or other
forced heirs who intervene in the division of the inheritance of an
Net Hereditary Estate 120,000
ascendant bring into the common mass, the property which they
received from him, so that the division may be made according
to law and the will of the testator. 

DONATION
• Collation is only required of compulsory heirs succeeding with LACK _______
LEGTIMES ADVANCE ON
other compulsory heirs and involves property or rights received
LEGITIME
by donation or gratuitous title during the lifetime of the
A 20,000 15,000 5,000
decedent. 

B 20,000 0 20,000
• The purpose is to attain equality among the compulsory heirs in
so far as possible for it is presumed that the intention of the C 20,000 0 20,000
testator or predecessor in interest in making a donation or D 10,000 40,000 (30,000)
gratuitous transfer to a forced heir is 
 to give him something in
advance on account of his share in the estate, and that the P45,000 is needed to comply with the legitime but (we) only have 35,000
predecessor’s will is to treat all his heirs equally, in the absence of available assets. So we need 10,000. Reduce the donations.
any expression to the contrary. a. Donation to B is considered as donation to a stranger as far
• Collation does not impose any lien on the property or the subject as the 30,000 is concerned
matter of collationable donation. What is brought to collation is b. Donation to M is a donation to a stranger
not the property donated itself, but rather the value of such c. Donation to A is not subject to reduction
property at the time it was donated, the rationale being that the
donation is a real alienation which conveys ownership upon its The first to bear the reduction is the donation to D, so deduct 10,000 from
acceptance, hence any increase in value or any deterioration him
or loss thereof is for the account of the heir or donee. 

• Collation covers only properties gratuitously given by the A = 20,000
decedent during his lifetime to his compulsory heirs 
 B = 20,000
C = 20,000
D = 30,000
M = 30,000

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Art. 911. After the legitime has been determined in accordance with the
three preceding articles, the reduction shall be made as follows:
(1) Donations shall be respected as long as the legitime can be
covered, reducing or annulling, if necessary, the devises or
legacies made in the will;
(2) The reduction of the devises or legacies shall be pro rata, without
any distinction whatever.
If the testator has directed that a certain devise or legacy be
paid in preference to others, it shall not suffer any reduction until
the latter have been applied in full to the payment of the
legitime.
(3) If the devise or legacy consists of a usufruct or life annuity, whose
value may be considered greater than that of the disposable
portion, the compulsory heirs may choose between complying
with the testamentary provision and delivering to the devisee or
legatee the part of the inheritance of which the testator could
freely dispose. (820a)
METHOD OF REDUCTION (ORDER OF PREFERENCE)


REDUCE THE NON-PREFERRED TESTAMENTARY DISPOSITIONS
• The first step is to reduce pro rata the non-preferred legacies and
devises (Art. 911 [2]), and the testamentary dispositions (to heirs)
(Art. 907).
• Among these legacies, devises, and testamentary dispositions
there is no preference. Non-preferred means that the testator did
not provide for preference
REDUCE THE PREFERRED TESTAMENTARY DISPOSITIONS
• This is also pro-rata
• Preferred means that the testator has directed that a certain
devise or legacy be paid in preference to others, thus, it shall not
suffer any reduction until the latter have been applied in full to
the payment of the legitime. (Art. 911, last paragraph)
REDUCE THE DONATIONS INTER VIVOS TO STRANGERS

• This is when all the testamentary dispositions have already been
reduced to nothing The last step is to reduce the donations inter
vivos made to strangers
• Because donations inter vivos made to compulsory heirs are
considered advances on their legitimate
The deduction is NOT
pro-rata, but according to the inverse order of their dates,
meaning you reduce the most recent first. (Art. 773)
• In other words, the oldest is the most preferred 
 Art. 914. The testator may devise and bequeath the free portion as he may
• BALANE: The last donation is the first to go, and the first donation
is the last to go. Follow the principle of “first in time, stronger in
right”. Law contemplates that the testator prefers the earlier
donations. 

The devisee who is entitled to a legitime may retain the entire property,
provided its value does not exceed that of the disposable portion and of
the share pertaining to him as legitime. (821)
METHOD OF REDUCTION IF THE DEVISE IS INDIVISIBLE REAL PROPERTY (ART. 912
AND 913)
Art. 912 and 913 provides specific rules in cases the devise to be reduced is:
• Real property, and 

• Indivisible 

RULES –
1. If the extent of reduction is less than 1 /2 of the value of the thing,
devisee has right to acquire it

2. If extent of reduction is 1/2 or more of the value of the thing,
compulsory heir (whose legitime is impaired) has right to acquire
it

3. There should be pecuniary reimbursement to the party who did
not get his physical portion of the thing devised.
4. If neither party (the compulsory heir/s and the devisee) elects to
exercise his right of acquiring such property, any other heir or
devisee, who elects to do so, may acquire the thing and pay the
parties (the compulsory heir and the devisee in question) their
respective shares in money
5. If no heir or devisee elects to acquire it, it shall be sold at public
auction and the net proceeds accordingly divided between the
parties concerned.
NOTE – This rule of constructive partition is similar to that in co-ownership
(Art. 498) and in partition of the decedent’s estate (Art. 1086), except that,
in these two latter cases, the acquisition by one of the co-owners or co-heirs
can be done only if all the co-owners or co-heirs agree to such acquisition.
Art. 913. If the heirs or devisees do not choose to avail themselves of the
right granted by the preceding article, any heir or devisee who did not have
such right may exercise it; should the latter not make use of it, the property
shall be sold at public auction at the instance of any one of the interested
parties. (822)
Q – How may the thing devised be disposed of?
1. Any other heir or devisee may acquire the thing and pay the
parties their respective shares in money
2. If still no other heir or devisee should acquire it, it shall be sold at
a public auction and the net proceeds should be divided
accordingly.
deem fit. (n)

REDUCE THE LEGITIMES OF THE ILLEGITIMATE CHILDREN/DESCENDANTS 


• Remember that there is one instance where the legitime will NOT
be satisfied 

• This is when there is no free portion because the total legitimes
exceed the estate. 

• This occurs when there is a concurrence of legitimate and
illegitimate children/descendants. (Art. 895) 
Even if you reduce
all the testamentary dispositions and donations to nothing, you
cannot satisfy the legitime
• The remedy is to reduce pro-rata the legitimes of the illegitimate
children/descendants (Art. 895) 


NOTE – You reduce step by step to the extent required to complete the
legitimes. You stop reducing as soon as the legitimes are sufficiently
covered.

Q – How are Devises and Legacies with usufructs, Life annuities and pensions
reduced?
• If the value of these grants exceed the free portion, it impairs the
legitimes and should be reduced.
• The compulsory heir has 2 options
a. Delivering to the devisee or legatee the free portion
b. Complying with the testamentary provision

Art. 912. If the devise subject to reduction should consist of real property,
which cannot be conveniently divided, it shall go to the devisee if the
reduction does not absorb one-half of its value; and in a contrary case, to
the compulsory heirs; but the former and the latter shall reimburse each
other in cash for what respectively belongs to them.
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 SECTION 6. – DISINHERITANCE • All the disinherited heir need do is deny the cause and the
burden is thrown upon those who would uphold the
BALANE – A compulsory heir cannot deprive his compulsory heir of his disinheritance. 

legitime unless expressly provided by law. The law expressly provides only
one way, valid disinheritance. Art. 918. Disinheritance without a specification of the cause, or for a cause
the truth of which, if contradicted, is not proved, or which is not one of those
Art. 915. A compulsory heir may, in consequence of disinheritance, be set forth in this Code, shall annul the institution of heirs insofar as it may
deprived of his legitime, for causes expressly stated by law. (848a) prejudice the person disinherited; but the devises and legacies and other
testamentary dispositions shall be valid to such extent as will not impair the
Q – What is the nature of disinheritance? legitime. (851a)
• It is the SOLE EXCEPTION to the prohibition that the testator may
not deprive compulsory heirs of legitime NOTE – This article refers to the requisite that the legal cause for
disinheritance should be specified and such must be proved to be true.
Q – When is there a disinheritance? What are the requisites? • If the disinheritance lacks one or other of the requisites
1. It must be made in a will. (Article 916); mentioned in this article, the heir in question gets his legitime.
• The will must be valid as to its form. • As to whether he will also get any part of the intestate portion or
• The will must be admitted to probate. not, this depends on whether the testator gave away the free
2. It must be for a cause specified by law (Article 916 in relation to portion through testamentary dispositions.
Articles 919-921); 
 o If he did, these dispositions are valid and the
• The causes enumerated in ART. 919-912. compulsory heir improperly disinherited gets only his
• There must be a LEGAL CAUSE. legitime.
3. The will must specify the cause (Articles 916 and 918); 
 o If the testator did not, the compulsory heir will be
• The law is very strict because it regards disinheritance with entitled to his corresponding share of the free portion
disfavor as it results in the deprivation of legitimes. as well. 

4. It must be unconditional (Manresa) 
 • Note the difference between the effect of ineffective
• Implied in the nature of disinheritance. It must not contain disinheritance and that of preterition. (Article 854).
any conditions
• It must be absolute (and not “if he doesn’t apologize”) DISINHERITANCE PRETERITION
5. It must be total (Manresa) 
 A testamentary provision BALANE – The total omission from
• Disinheritance covers the entire inheritance, not just the depriving any compulsory heir of the INHERITANCE, without the heir
legitimes. his share in the legitime for a cause being expressly disinherited.
6. The cause must be true (Article 918); 
 authorized by law.
7. If the truth of the cause is denied, it must be proved by the The nullity is limited to that portion A completely nullity of the
proponent (Article 917).
 of the estate of which the institution of heir. (except devises
disinherited heir has been legally and legacies)
ADDITIONAL deprived.
1. Identity of the heir MUST BE clearly established Always voluntary, explicit on the Presume to be involuntary, based
2. Disinheritance must be expressly made. part of the testator. on inadvertent omission by the
testator.
BALANE – The strictness of the requisites indicates the policy of the law. It He is still not bypassed since the He is bypassed, and the remedy is
regards disinheritance with disfavor and will grant it only with reluctance, heirs is simply entitles to demand the annulment of institution of heirs
because disinheritance results in deprivation of legitime. his rightful share. (entire will, except devises and
legacies)
Q – What is the effect of disinheritance? What is the effect if all these
requisites are present?
• You get a VALID disinheritance.
• The effect of disinheritance is NOT just deprivation, but TOTAL
EXCLUSION of the disinherited heir from the inheritance.
• GENERAL RULE – Art. 904 – the testator cannot deprive the
compulsory heirs of the legitime
o EXCEPTION – Disinheritance
• The disinherited heir forfeits:
1. His legitime, 

2. His intestate portion, if any, and 

3. Any testamentary disposition made in a prior will of the
disinheriting testator. 


Q – What is the effect if some of these requisites are absent?

• You get an ineffective disinheritance.
• The heir “so-disinherited” shall still get his legitime. (See Art. 918).

Art. 916. Disinheritance can be effected only through a will wherein the legal
cause therefor shall be specified. (849)

NOTES
1. Should be made through a will – The will, obviously, must be
formally valid and must be admitted to probate.
2. Legal Cause should be specified in the will – The causes are
specified in
a. Articles 919 (for descendants),
b. 920 (for ascendants), and
c. 921 (for the surviving spouse).

Art. 917. The burden of proving the truth of the cause for disinheritance shall
rest upon the other heirs of the testator, if the disinherited heir should deny
it. (850)

NOTES
• Truth of the cause for disinheritance is not presumed; it must be
proved. 

.

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 SUMMARY OF THE GROUNDS/ CAUSES FOR DISINHERITANCE OF COMPULSORY HEIRS

ART. 919 ART. 920 ART. 921

WHO SI DISINHERITED? Child or Descendant Parent or Ascendant
Surviving Spouse
(legitimate of illegitimate) (Legitimate or illegitimate)
COMMON GROUNDS 1. Guilty of attempt on the life of testator, his spouse, descendants, or ascendants

2. Groundless/false accusation of the testator of a crime punishable by imprisonment of 6 years or
more
3. Causes the testator to make or change a will by fraud, violence, intimidation or undue influence
4. Unjustifiably refuses to give support

5. Conviction for adultery or concubinage with testator’s spouse (Except for Art. 921)
PARTICULAR GROUNDS 1. Seriously maltreats the 1. Abandonment of 1. Giving cause for legal
testator by word or children separation 

deed 2. Induced their daughters 2. Giving cause for loss of
2. Leads a dishonourable to live a 
corrupt or parental authority 

or disgraceful life 
 immoral life 

3. Conviction of a crime 3. Attempt against the
penalized by civil daughter’s virtue 

interdiction 
 4. Culpable loss of
parental authority 

5. Attempt on the life of
the other 
parent, unless
there is reconciliation 

NOTE – These grounds are exclusive

Art. 919. The following shall be sufficient causes for the disinheritance of
children and descendants, legitimate as well as illegitimate:
(1) When a child or descendant has been found guilty of an attempt
against the life of the testator, his or her spouse, descendants, or
ascendants;
(2) When a child or descendant has accused the testator of a crime
for which the law prescribes imprisonment for six years or more, if
the accusation has been found groundless;
(3) When a child or descendant has been convicted of adultery or
concubinage with the spouse of the testator;
(4) When a child or descendant by fraud, violence, intimidation, or
undue influence causes the testator to make a will or to change
one already made;
(5) A refusal without justifiable cause to support the parent or
ascendant who disinherits such child or descendant;
(6) Maltreatment of the testator by word or deed, by the child or
descendant;
(7) When a child or descendant leads a dishonorable or disgraceful
life;
(8) Conviction of a crime which carries with it the penalty of civil
interdiction. (756, 853, 674a)
BALANE – This is an exclusive and not illustrative.
NOTES – Conviction is required in numbers 1, 3 and 9.
GROUNDS FOR DISINHERITANCE OF CHILDREN/DESCENDANTS 
 •
1. GUILTY OF ATTEMPT ON THE LIFE OF TESTATOR, HIS SPOUSE,
DESCENDANTS, OR ASCENDANTS
• ATTEMPT – used non- technically and should not be
construed to limit the provision to the attempted stage
of the felony.
• Includes attempted, frustrated and consummated.
• The felony must be intentional – intent to kill must be
present.
• Final conviction is required.
2. GROUNDLESS ACCUSATION OF THE TESTATOR OF A CRIME
PUNISHABLE BY IMPRISONMENT OF 6 YEARS OR MORE
a. There must be an accusation of a crime the penalty of
which is at least 6 years
ACCUSED – generically, and will include
• filing of the complaint before the
prosecutor, or
• presenting incriminating evidence against
the testator, or
• even suppressing exculpatory evidence
• acting as a witness against the ascendant.
The crime of which the testator is accused must carry
a penalty of at least six years’ imprisonment
JDLYRREVERRE | B2020 | SUCCESSION | ATTY. BALANE | CHAMP NOTES ANNOTATED | 74
BALANE – This should be “more” than 6 years, because
what is contemplated is prision mayor and above.
b. The testator must be acquitted.

c. The accusation must be found to be groundless
The judgment of acquittal must state either
i. That no crime was committed or
ii. that the accused did not commit the
crime.
An acquittal on reasonable doubt or prescription will
not be a ground for disinheritance. Acquittal BEYOND
reasonable doubt.
3. CONVICTION FOR ADULTERY OR CONCUBINAGE WITH TESTATOR’S
SPOUSE
• Final conviction is required.
• There must have been a valid marriage.
4. CAUSES THE TESTATOR TO MAKE OR CHANGE A WILL BY FRAUD,
VIOLENCE, INTIMIDATION OR UNDUE INFLUENCE
• Covers causing the testator either to make a will or to
change one already made
• This goes into the very essence of will-making – the
freedom deprived by the child or descendant.
It does not mention prevent because if he was
prevented, how can he make a will of disinheritance?
Prevention is a ground for unworthiness (Art. 1032, par.
7) which has the same effect as disinheritance.
• BALANE – On its face, this ground is not that serious
compared to the previous grounds, but in
testamentary law, this is very serious, as you are
depriving the testator of his testamentary freedom
5. UNJUSTIFIABLY REFUSES TO GIVE SUPPORT THE TESTATOR
• Mere refusal is not enough.
• Refusal may be justified, such as if the obligor does not
have enough resources for all whom he is obliged to
support.
• Note that the ascendants are only third in the
hierarchy of preference among claimants of support
(Art. 200, par. 3, Family Code).
ELEMENTS
• There must be a NEED for support.
• There must be a DEMAND for support.
• The demand must be UNJUSTIFIABLY refused.
EXAMPLE – In the Family Code, there is an order of preference for
support. The person may be willing to support but it is not
economically feasible. A person must support his wife and
children first. There is here a justified refusal.

6. SERIOUSLY MALTREATS THE TESTATOR BY WORD OR DEED
• This will include a wide range of misdeeds, but it is
required that the act of verbal or physical assault be
of a “serious nature”.
o BALANE – It should be serious and judged by
the present values of society.
• No conviction is required; in fact, it is not even required
that any criminal case be filed.
 •
o Consequently, a physical assault that would
not fall under par. 1, could fall under this
paragraph.
• This may be proven by preponderance of evidence.
• Note that this is very hard to prove, especially if the
verbal or physical assault took place with no witnesses.
The other heirs will have a hard time proving this
ground.
EXAMPLE – The son shoots his father. The father is wounded but
he recovers. The father does not want a scandal so he does not
file charges against his son. So, he disinherits his son not under
number 1 but under no. 6.
7. LEADS A DISHONOURABLE OR DISGRACEFUL LIFE
• This is a catch-all provision.
• LEAD – denotes habituality or continuity
• Not isolated cases, one act would not suffice.
BALANE – This should also be judged by the present values of
society. The dishonorable or disgraceful conduct or pattern of
behavior need not be sexual in nature (not limited to sexual
immorality), although it may often be that. Surely, a child or
descendant whose livelihood is drug-pushing or smuggling is
living a dishonorable and disgraceful life (assuming our society
still recognizes some civilized values). 
 •
8. CONVICTION OF A CRIME PENALIZED BY CIVIL INTERDICTION 
 to mean all female descendants. For instance, X has
• Final conviction required.
• The accessory penalty of civil interdiction is imposed
with the principal penalties of death, reclusion
perpetua, and 
reclusion temporal. (Articles 40-41,
Revised Penal Code).
 any of those granddaughters.
BALANE – Note that you need “conviction” (criminal) in some cases, thus, it
must be proved by proof beyond reasonable doubt before a competent
court. But in other cases, it may be proved by preponderance of evidence.
Art. 920. The following shall be sufficient causes for the disinheritance of
parents or ascendants, whether legitimate or illegitimate:
(1) When the parents have abandoned their children or induced
their daughters to live a corrupt or immoral life, or attempted
against their virtue;
(2) When the parent or ascendant has been convicted of an
attempt against the life of the testator, his or her spouse,
descendants, or ascendants;
(3) When the parent or ascendant has accused the testator of a
crime for which the law prescribes imprisonment for six years or
more, if the accusation has been found to be false;
(4) When the parent or ascendant has been convicted of adultery
or concubinage with the spouse of the testator;
(5) When the parent or ascendant by fraud, violence, intimidation,
or undue influence causes the testator to make a will or to
change one already made;
(6) The loss of parental authority for causes specified in this Code;
(7) The refusal to support the children or descendants without
justifiable cause;
(8) An attempt by one of the parents against the life of the other,
unless there has been a reconciliation between them. (756, 854,
674a)
BALANE: Pars. 2, 3, 4, 5, and 7 are also enumerated under Article 919.
• But note the variation in the wording of par. 3—The word here
used is false, whereas par. 2 of Art. 919 uses groundless.
• Par. 2 of Art. 921 also uses false. The change is not substantive,
but merely stylistic.
• The enumeration is also exclusive 
 VIOLENCE, INTIMIDATION OR UNDUE INFLUENCE
• Note that the testator contemplated here is the children or
descendant, while the compulsory heir is the testator’s 
parent or
ascendant 

GROUNDS FOR DISINHERITANCE OF PARENTS/ASCENDANTS 
 adoption or age of majority.
1. PARAGRAPH 1 – GROUNDS
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a. Abandonment of children
b. Induced their daughters to live a corrupt or immoral
life (should also apply to sons and descendants and
against ascendants)
c. Attempt against the daughter’s virtue
• Conviction not required.
ABANDONMENT OF CHILDREN
Abandonment here is not restricted to those instances
of abandonment penalized by law (Articles 276-277,
Revised Penal Code; Article 59, PD 603), but includes
all conduct constituting a repeated or total refusal or
failure to care for the child.
• BALANE – This means culpable (intentional) or
negligent failure to support. In abandonment, there
are two (2) views:
1. STRICT – Leaving them alone while still
children under circumstances that would
endanger them.
2. ACCEPTED – Any case where a parent,
without justifiable cause, withholds his care.
E.g., Leaving someone at the doorstep.
• CHUA V. CABANGBANG – Mere acquiescence—
without more—is not sufficient to constitute
abandonment. There must be an Intention to
completely forego all parental responsibilities and
forever relinquish all parental claim in respect to the
child. 

INDUCED THEIR DAUGHTERS TO LIVE A CORRUPT OR IMMORAL LIFE
• This ground is basically the same as that given in Art.
231(2) of the Family Code as a ground for suspension
or deprivation of parental authority. 
The terms of this
provision seem to apply only to daughters.
TOLENTINO – Although the law mentions only
‘daughters’, we believe that this should be construed
two granddaughters, who are children of a
predeceased child. He leads one of them to a life of
prostitution. Certainly, he has committed such a
reprehensible act as would justify his disinheritance by


• BALANE – Shouldn’t sons and other male descendants,
and other female descendants be covered as well by
this provision? It was a more innocent world when the
present Code was drafted in the late forties. Now,
sexual offenses are committed, apparently with equal
frequency, against both males and females. Gender
equality cuts both ways. Note that Art. 231, pars. (2)
and (4) of the Family Code make no distinction. They
should be included by virtue of the Equal Protection
Clause and Convention on the Rights of the Child 

Q – Does it include grandparents to granddaughters? Yes. The
provision covers ascendant’s vis-à-vis descendants.
ATTEMPT AGAINST THE DAUGHTER’S VIRTUE 

• Final conviction is NOT required here.
NOTE – In all 3 cases, conviction is not required.
2. GUILTY OF ATTEMPT ON THE LIFE OF TESTATOR, HIS SPOUSE,
DESCENDANTS, OR ASCENDANTS

3. FALSE ACCUSATION OF THE TESTATOR OF A CRIME PUNISHABLE BY
IMPRISONMENT OF 6 YEARS OR MORE 

BALANE – “false” should be understood to be the same as
“groundless” in Art. 919, but the latter is the better term
4. CONVICTION FOR ADULTERY OR CONCUBINAGE WITH TESTATOR’S
SPOUSE

5. CAUSES THE TESTATOR TO MAKE OR CHANGE A WILL BY FRAUD,
6. CULPABLE LOSS OF PARENTAL AUTHORITY 

• Refers to culpable loss of parental authority NOT
• Juridical decree required
 Only those causes which involve culpability on the part of the • But note that one of the effects of a decree of legal
parents will provide grounds for disinheritance (Art. 229, 231 and separation is to exclude the offending spouse from
232 of the Family Code), which are: 
 inheriting from the innocent spouse
a. Sexual abuse 

b. Judicial declaration of abandonment of the child 
 CAUSES FOR LEGAL SEPARATION (ART. 55 OF THE FAMILY CODE)
c. Excessively harsh or cruel treatment of the child 
 1. Repeated physical violence or grossly abusive
d. Giving the child corrupting orders, counsel, or conduct directed against the petitioner, a common
example 
 child, or a child of the petitioner; 

e. Compelling the child to beg 
 2. Physical violence or moral pressure to compel the
f. Subjecting the child or allowing to be subjected to petitioner to change religious or political affiliation; 

acts of lasciviousness 
 3. Attempt of respondent to corrupt or induce the
petitioner, a common child, or a child of the
7. UNJUSTIFIABLY REFUSES TO GIVE SUPPORT THE TESTATOR, OR OTHER petitioner, to engage in prostitution, or connivance in
CHILDREN OR DESCENDANTS such corruption or inducement; 

4. Final judgment sentencing the respondent to
8. ATTEMPT ON THE LIFE OF THE OTHER PARENT, UNLESS THERE IS imprisonment of more than six years, even if
RECONCILIATION pardoned; 

5. Drug addiction or habitual alcoholism of the
• GENERAL RULE – No conviction is required here (unlike respondent; 

in number 3, where final conviction is required)
The 6. Lesbianism or homosexuality of the respondent; 

meaning of “attempt” is the same as its meaning in 7. Contracting by the respondent of a subsequent
number 3, which is to be used in its non-technical bigamous marriage, whether in the Philippines or
sense. abroad; 

• EXCEPTION – When they reconcile. Reconciliation 8. Sexual infidelity or perversion; 

between the parents removes the right of a child or 9. Abandonment of petitioner by respondent without
descendant to disinherit and rescinds a disinheritance justifiable cause for more than one year. 

already made.
5. GIVING CAUSE FOR LOSS OF PARENTAL AUTHORITY
BALANE – This presupposes that there is no disinheritance yet. • Note that this is different from the ground in Art. 920.
Losses right to disinherit upon reconciliation. But what if already • Whereas in Art. 920, actual loss of parental authority (a
disinherited before reconciliation? This is not clear. But it should judicial decree) is required, here giving grounds
be considered revoked because in case of doubt, resolve therefor is sufficient, thus, he need not be judicially
against disinheritance. deprived.

Art. 921. The following shall be sufficient causes for disinheriting a spouse:
(1) When the spouse has been convicted of an attempt against the
life of the testator, his or her descendants, or ascendants;
(2) When the spouse has accused the testator of a crime for which
the law prescribes imprisonment of six years or more, and the
accusation has been found to be false;
(3) When the spouse by fraud, violence, intimidation, or undue
influence cause the testator to make a will or to change one
already made;
(4) When the spouse has given cause for legal separation;
(5) When the spouse has given grounds for the loss of parental
authority;
(6) Unjustifiable refusal to support the children or the other
spouse. (756, 855, 674a)
6. UNJUSTIFIABLY REFUSES TO GIVE SUPPORT THE TESTATOR OR THEIR
CHILDREN
Art. 922. A subsequent reconciliation between the offender and the
offended person deprives the latter of the right to disinherit, and renders
ineffectual any disinheritance that may have been made. (856)
BALANE – Through reconciliation, the law keeps the door open for the
disinherited heir to be restored to capacity. This rescinds the disinheritance
previously made. This is akin to reconciliation in legal separation.
• Two persons who are at odds decide to set aside their differences
and to resume their relations. They need not go back to their old
relation. A handshake is not reconciliation. It has to be
something more. It must be clear and deliberate.

BALANE –Similar grounds found in Articles 919 and 920. Q – How can the testator forgive the offense? Either by
1. Both. 1. Concrete or express pardon extended to the offending heir
2. Both. a. A general pardon extended by the testator on his
3. Both. deathbed to all who have offended him will not
5. Art. 920 only. suffice;
6. Both. b. it must be a pardon expressly and concretely
extended to the offender, who accepts it
BALANE – The enumeration is also exclusive 
 2. Unequivocal conduct towards the offending heir which reveals
• Note that the testator contemplated here is the decedent- the testator’s intent to forgive the offense.
spouse, while the compulsory heir is the surviving spouse of the
testator 
 BALANE – There is no definition or required form for reconciliation, it can be
• The only new ground is number 4: Legal separation is not a oral or in writing, it may be express or implied from the acts of the parties.
ground. If there is legal separation, you do not need to disinherit. However, it must be definitive.
• Disinheritance takes place by operation of law.
• As long as there is cause for legal separation, you can disinherit Q – What is the effect of reconciliation?
provided you are the offended spouse. 1. The disinherited heir is restored to his legitime. 

2. If the disinheriting will did not dispose of the disposable portion,
GROUNDS FOR DISINHERITANCE OF SURVIVING SPOUSE 
 the disinherited heir is entitled to his proportionate 
share (in
1. GUILTY OF ATTEMPT ON THE LIFE OF TESTATOR, HIS SPOUSE, intestacy) if any, of the disposable portion. 

DESCENDANTS, OR ASCENDANTS
 3. If the disinheriting will or any subsequent will disposed of the
disposable portion (or any part thereof) in favor of testamentary
2. FALSE ACCUSATION OF THE TESTATOR OF A CRIME PUNISHABLE BY heirs, legatees, or devisees, such dispositions remain valid. 

IMPRISONMENT OF 6 YEARS OR MORE
Q – Will the effects of reconciliation differ when there is a will already? YES.
• IF THERE IS NO WILL – If reconciliation is made before
3. CAUSES THE TESTATOR TO MAKE OR CHANGE A WILL BY FRAUD, disinheritance – It deprives the offended person of his right to
VIOLENCE, INTIMIDATION OR UNDUE INFLUENCE disinherit the offending person.
o Right to disinherit (later) extinguished.
• IF ALREADY DISINHERITED – If reconciliation made after
4. GIVING CAUSE FOR LEGAL SEPARATION disinheritance – It sets aside disinheritance already made.

• A decree of legal separation is not required BALANE – This is inconsistent with Art. 1033. In disinheritance, reconciliation
is sufficient. It need not be in writing. In unworthiness, however, it needs to
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be in writing. This is inconsistent because when you are dealing with the
express will to disinherit, reconciliation is enough when you are dealing with
the presumed will, it must be in writing.
BALANE AGAIN– Reconciliation restores the disinherited heir to his capacity
to inherit, but this is without prejudice to future grounds of disinheritance. If
the compulsory heir gives another ground for disinheritance, then the
decedent may disinherit him again.
right over the fruits and income of the child’s property (which was
acquired by the child by right of representation, by virtue of the
disinheritance of such parent) BUT such shall be limited primarily
to the child’s support and secondarily to the collective daily
needs of the family

Art. 923. The children and descendants of the person disinherited shall take
his or her place and shall preserve the rights of compulsory heirs with respect
to the legitime; but the disinherited parent shall not have the usufruct or
administration of the property which constitutes the legitime. (857)

BALANE – Effect of disinheritance is not explicitly provided for.

• The total exclusion = loss of legitime, right to intestate succession,
and of any disposition in a prior will.
• “TAKES PLACE ONLY IN LEGITIME.” – The law assumes that free
portion has been given away. If not, include the intestate
portion.

Q – What is the rule on right of representation in disinheritance?

1. The right of representation is granted only to the
children/descendants of disinherited children/descendants.
2. The representative takes the place of the disinherited heir not
only with respect to the legitime, but also to any intestate portion
that the disinherited heir would have inherited. 

3. This is similar to Art. 1035.

NOTE
• If the heir disinherited is a parent/ascendant or spouse, the
children or descendants of the disinherited heir do not have any
right of representation. 

• Art. 923 is carelessly worded. See Art. 972 and 1035 for correct
wording. Representation takes place in favour of the child or
descendant of the disinherited heir (who himself is a child or
descendant of the decedent). 

• Representation, therefore, occurs in compulsory and intestate
succession, but NEVER in testamentary succession

IF THE PERSON DISINHERITED IS THE

IF THE PERSON DISINHERITED IS A
PARENT OR ASCENDANT OR THE
CHILD OR DESCENDANT
SPOUSE
His own heirs may represent him His own heir cannot represent him
To what extent may they
represent? BOTH to the legitime
and the intestate portion that the
disinherited would have received.

EXAMPLE AND ILLUSTRATION

X
A B
---------
a1 a2

SITUTATION
a. X made a will giving Y, a friend, 1/2 of his estate. This covered
the free portion. X validly disinherited A. Can a1 and a2
represent A? Yes. Children of A can represent him as to the
legitime only because the free portion has been given to B.
b. X validly disinherits A. X did not dispose of his free portion. How
much will the children of A inherit from X? They will inherit A's
share in the legitime and in the free portion,

1/4 – legitime
1/4 – free portion.

The representative of the disinherited person will receive both the

legitime and the free portion which might have accrued to the
person disinherited if he had not been disinherited.

IF THE DISINHERITED HEIR IS A PARENT – he/she shall NOT have the usufruct or
administration of the property which constitutes the legitime. (Art. 923, last
portion)
• This presupposes that it is the child who inherits from the
decedent, by virtue of representation, because his or her parent
was disinherited 

• BALANE – This has been amended, read this together with Art. 225
and 226 of the Family Code, the right of the parents now has a
JDLYRREVERRE | B2020 | SUCCESSION | ATTY. BALANE | CHAMP NOTES ANNOTATED | 77
 SECTION 7. - LEGACIES AND DEVISES
BALANE – Definition in Art. 782 is not a good definition.
CASTAN – "A legacy or a devise is a gratuitous grant in a will of a specific
personal or real property."
HEIR LEGATEE OR DEVISEE
is "a person who succeeds by "a person succeeds by particular
universal title," to a fractional part title," to a specific property.
of the estate.
Art. 924. All things and rights which are within the commerce of man be
bequeathed or devised. (865a)
Q – What can be devised or bequeathed?
• Anything within the commerce of man
• It is not required that the thing belong to the testator.
• Provided that it does not impair the legitimes.
Art. 925. A testator may charge with legacies and devises not only his
compulsory heirs but also the legatees and devisees.
The latter shall be liable for the charge only to the extent of the value of the
legacy or the devise received by them. The compulsory heirs shall not be
liable for the charge beyond the amount of the free portion given
them. (858a)
Art. 926. When the testator charges one of the heirs with a legacy or devise,
he alone shall be bound.
Should he not charge anyone in particular, all shall be liable in the same
proportion in which they may inherit. (859)
BALANE – This provision gives a misimpression.
Q – Who is charged with the LD?
• GENERAL RULE – It is the estate. When you make a DL, it is the
burden of the estate of the testator. It is the primary obligation of
the estate through the executor or administrator.
• EXCEPTION – A testator may impose the burden of DL on another
person. If such other person accepts the disposition (burden) in
his favor, then it will be a subsidiary legacy or devise. It is
essentially a disposition with a mode. In that case, the burden is
on the estate of the testamentary heir.
EXAMPLE
• I give A 1/4 of my estate but I impose upon him the obligation to
give B a car."
• If A wants to accept the 1/4, he will have to give a car to B.
Art. 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 only one of them should have been negligent. (n)
Art. 928. The heir who is bound to deliver the legacy or devise shall be liable
in case of eviction, if the thing is indeterminate and is indicated only by its
kind. (860)
NOTE
• Generally, the estate is liable in case of eviction
• EXCEPTION: In case of a subsidiary legacy or devise—the heir,
legatee, or devisee charged.
BALANE – (This is a) bad way to put it. As in Art. 925, it is not the heir, devisee
or legatee who is liable but the estate unless sub-legacy is imposed.
EXAMPLE – "I give a fishpond to X." The fishpond was given to X. If a third
person then puts a claim on the fishpond and succeeds in taking possession
of the fishpond by winning the suit, then as a general rule, the estate is liable
unless it is a sub-devise or sub-legatee, in w/c case the devisee or legatee
is liable.
ART. 929-937 – KINDS OF DL
1. Legacy/ Devise of a thing owned in part by the testator
2. Legacy/ Devise of a thing owned by another
3. Legacy/ Devise of a thing already owned by the DL or Subsequently
acquired by the DL
4. Legacy/ Devise To remove an encumbrance over a thing belongng
to the DL
5. Legacy/ Devise of a thing pledged or mortgaged
JDLYRREVERRE | B2020 | SUCCESSION | ATTY. BALANE | CHAMP NOTES ANNOTATED | 78
6. Legacy/ Devise of a Credit or Remission
Art. 929. If the testator, heir, or legatee owns only a part of, or an interest in
the thing bequeathed, the legacy or devise shall be understood limited to
such part or interest, unless the testator expressly declares that he gives the
thing in its entirety. (864a)
RULE: Generally, if the legacy/devise of a thing only owned in part by the
testator what is conveyed is only the interest or part owned by the testator.
(ART. 929)
• EXCEPTION: If testator provides otherwise, he can either convey
MORE THAN HE OWNS LESS THAN HE OWNS
• In this case, the estate should try to acquire He may do so. Art.
the part or interest owned by other parties. 
 794.
• If the other parties are unwilling to alienate
(or the other parties are asking for an Ex: “Legal ownership
unreasonable price), the estate should give to A, but beneficial
the legatee/devisee the monetary ownership to B”
equivalent (by analogy with Article 931) 

The validity of the disposition as to the part or
interest not owned by the testator will be
determined by the provisions of Articles 930 and
931 (pertaining to devises/Legacies of a Thing
Owned by Another) 

Art. 930. The legacy or devise of a thing belonging to another person is void,
if the testator erroneously believed that the thing pertained to him. But if the
thing bequeathed, though not belonging to the testator when he made the
will, afterwards becomes his, by whatever title, the disposition shall take
effect. (862a)
Art. 931. If the testator orders that a thing belonging to another be acquired
in order that it be given to a legatee or devisee, the heir upon whom the
obligation is imposed or the estate must acquire it and give the same to the
legatee or devisee; but if the owner of the thing refuses to alienate the
same, or demands an excessive price therefor, the heir or the estate shall
only be obliged to give the just value of the thing. (861a)
RULES ON LEGACIES/DEVISES IN CASE THE THING IS OWNED BY ANOTHER (ART.
930, 931)
BALANE – There are two requirements in case a devise/legacy of a thing
owned by another
• Testator must expressly order the acquisition of the thing 

• The testator must not have made a mistake, he must know that the
property belonged to him 

1. IF THE TESTATOR ORDERED THE ACQUISITION OF THE THING
• The order should be complied with. 

• If the owner is unwilling to part with the thing, the
legatee/devisee should be given the monetary equivalent. 

2. IF THE TESTATOR ERRONEOUSLY BELIEVED THAT THE THING BELONGED TO HIM
– Legacy/devise void. 

• EXCEPTION: If, subsequent to the making of the disposition, the
thing is acquired by the testator onerously or gratuitously, the
disposition is validated. 

• BALANE: The testator made a mistake, maybe he was rich and
thought he owned the property he made subject to a
testamentary disposition. Of course, it is void, except if he
subsequent (after the making of the will) acquires such property
3. IF THE TESTATOR KNEW THAT THE THING DID NOT BELONG TO HIM BUT DID
NOT ORDER ITS ACQUISITION 

• The estate should try to acquire it
• If not, estate should give the DL the monetary equivalent.
BALANE: This is a middle-ground, the Code is silent on this. The most rational
solution seems to be that such a disposition should be considered valid,
because:
a. The fact that the testator, with knowledge of another person’s
ownership, bequeathed the thing, implies an order to acquire; 

b. At worst, there is a doubt, and doubts should be resolved in favor
of testacy (Articles 788, 791) 

Art. 932. The legacy or devise of a thing which at the time of the execution
of the will already belonged to the legatee or devisee shall be ineffective,
even though another person may have some interest therein.
If the testator expressly orders that the thing be freed from such interest or the payment of his debt, even if such payment should not have been
encumbrance, the legacy or devise shall be valid to that extent. (866a) effected at the time of his death.

Art. 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 subsequently alienated by him.
If the legatee or devisee acquires it gratuitously after such time, he can
claim nothing by virtue of the legacy or devise; but if it has been acquired
by onerous title he can demand reimbursement from the heir or the
estate. (878a)
The legacy to the debtor of the thing pledged by him is understood to
discharge only the right of pledge. (871)
Art. 937. A generic legacy of release or remission of debts comprises those
existing at the time of the execution of the will, but not subsequent
ones. (872)
Balane: Legacy of credit or remission. Articles 935 to 937.

RULES IN CASE THE LEGACY/DEVISE IS ALREADY OWNED OR SUBSEQUENTLY A. DEFINITIONS.

ACQUIRED BY THE DEVISEE/LEGATEE 1. LEGACY OF CREDIT.-- takes place when the testator bequeaths
to another a credit against a third person. In effect, it is a
1. IF THE THING ALREADY BELONGED TO THE LEGATEE/DEVISEE AT THE TIME OF novation of the credit by the subrogation of the legatee in the
THE EXECUTION OF THE WILL place of the original creditor. E.g., "I give to A all the debts B owes
• Legacy/ devise void. 
 me."
• It is NOT validated by an alienation by the legatee/devisee
subsequent to the making of the will, unless the acquirer is the 2. LEGACY OF REMISSION.-- a testamentary disposition of a debt in
testator himself 
 favor of the debtor. The legacy is valid only to the extent of the
• NOTE: Arts. 932, par. 1 and 933, par. 1 say essentially the same amount of the credit existing at the time of the testator's death.
thing and should be merged. 
 In effect, the debt is extinguished. E.g., "I give to A as legacy his
debt to me."
2. IF THE THING WAS OWNED BY ANOTHER PERSON AT THE TIME OF THE
MAKING OF THE WILL AND ACQUIRED THEREAFTER BY THE LEGATEE/DEVISEE 
 B. RULES APPLICABLE.
a. If the testator erroneously believed that it belonged to him – 1. ART. 935.-- Legacy applies only to the amounts outstanding at
Legacy/devise void (Art. 930) the time of the testator's death. E.g., A owes B P1,000. B makes
b. If the testator was not in error (testator knew that it did not belong a will giving as legacy to A the debt of A. After the will is made,
to him) A pays B 500. How much is the legacy? P500.
i. If the thing was acquired onerously by legatee/devisee
• Legatee/devisee is entitled to reimbursement 
 2. ART. 936.-- The legacy is revoked if the testator files an action
• BALANE: This is for the price the legatee/devisee (judicial suit) against the debtor. E.g., A bequeaths the credit he
paid 
 has against B to B. After making the will, A sues B for collection.
ii. If the thing was acquired gratuitously by legatee/devisee A dies while the suit is pending. Does B have a right to the credit?
• Nothing more is due 
 No. The filing of the action revoked the legacy.
• BALANE: Devisee/legatee is not entitled to
3. ART. 937.-- It applies only to credits existing at the time the will
anything anymore since the purpose of the
testator has already been achieved 
 was made, and not to subsequent credits. E.g., "I give to A all the
credits I have against B." When the will was made, B had 3 debts.
After the will was made, B incurs 2 more debts. Which ones can
3. IF THE THING WAS OWNED BY THE TESTATOR AT THE TIME OF THE MAKING OF
A claim?
THE WILL AND ACQUIRED THEREAFTER FROM HIM BY THE LEGATEE/DEVISEE
• Articles 932 and 933 are silent on this, but Article 957, par. 2 can
GENERAL RULE: Only the first 3.
be applied and the legacy/devise should be deemed revoked.
• BALANE – Not entitled to reimbursement, because when the
EXCEPTION: When the testator provides otherwise.
testator sold it to the devisee/legatee, this revokes the
legacy/devisee. This is one of the modes of revocation
Art. 938. A legacy or devise made to a creditor shall not be applied to his
(revocation by operation of law, by alienation of the thing) 

credit, unless the testator so expressly declares.
Art. 934. If the testator should bequeath or devise something pledged or
In the latter case, the creditor shall have the right to collect the excess, if
mortgaged to secure a recoverable debt before the execution of the will,
any, of the credit or of the legacy or devise. (837a)
the estate is obliged to pay the debt, unless the contrary intention appears.
BALANE
The same rule applies when the thing is pledged or mortgaged after the
• GENERAL RULE: Legacy or devise is not considered payment of a
execution of the will.
debt.
o Why? Because if it is, then it would be a useless legacy
Any other charge, perpetual or temporary, with which the thing
or devise since it will really be paid.
bequeathed is burdened, passes with it to the legatee or devisee. (867a)
• EXCEPTION: If the testator provides otherwise.
VALID.
Art. 939. TESTAMENTARY INSTRUCTION TO PAY A DEBT – If the testator orders
• GENERAL RULE – The encumbrance must be removed, the estate
the payment of what he believes he owes but does not in fact owe, the
paying the debt. Pledge/ mortgage must be paid by the estate
disposition shall be considered as not written. If as regards a specified debt
• EXCEPTION – If the testator provides otherwise.
more than the amount thereof is ordered paid, the excess is not due, unless
a contrary intention appears.
PAR. 1. – The purpose of the payment of debt is so that the legatee or
devisee will get it free from encumbrance.
The foregoing provisions are without prejudice to the fulfillment of natural
obligations. (n)
PAR. 3. – E.g., Easement, usufruct.
NOTE – This is not a legacy or devise. It is a mere directive to discharge a civil
Art. 935. The legacy of a credit against a third person or of the remission or
obligation.
release of a debt of the legatee shall be effective only as regards that part
of the credit or debt existing at the time of the death of the testator.
Art. 940. In alternative legacies or devises, the choice is presumed to be left
to the heir upon whom the obligation to give the legacy or devise may be
In the first case, the estate shall comply with the legacy by assigning to the
imposed, or the executor or administrator of the estate if no particular heir
legatee all rights of action it may have against the debtor. In the second
is so obliged.
case, by giving the legatee an acquittance, should he request one.
If the heir, legatee or devisee, who may have been given the choice, dies
In both cases, the legacy shall comprise all interests on the credit or debt
before making it, this right shall pass to the respective heirs.
which may be due the testator at the time of his death. (870a)
Once made, the choice is irrevocable.
Art. 936. The legacy referred to in the preceding article shall lapse if the
testator, after having made it, should bring an action against the debtor for
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In the alternative legacies or devises, except as herein provided, the A legacy for support lasts during the lifetime of the legatee, if the testator
provisions of this Code regulating obligations of the same kind shall be has not otherwise provided.
observed, save such modifications as may appear from the intention
expressed by the testator. (874a) If the testator has not fixed the amount of such legacies, it shall be fixed in
accordance with the social standing and the circumstances of the legatee
ALTERNATIVE LEGACIES – It is one which provides among several things and the value of the estate.
mentioned, only one is to be given. (similar to alternative obligations)
If the testator or during his lifetime used to give the legatee a certain sum of
Q – Who makes the choice? money or other things by way of support, the same amount shall be
• The debtor of course deemed bequeathed, unless it be markedly disproportionate to the value
of the estate. (879a)
IF DIRECT LEGACY/DEVISE IF SUBSIDIARY LEGACY/DEVISE
The estate, through the executor The heir, legatee, or devisee LEGACY FOR EDUCATION LEGACY FOR SUPPORT
or administrator 
 (testamentary heir) charged DURATION Age of majority (18) or the The period provided for the
Right to choose in accordance to Right to choose transmissible to his completion of a testator, if there is none, then
professional, vocational, or the legatee’s lifetime
the successor E/A ownheirs.
general course, whichever
comes later.
EXCEPTION: The legatee/devisee (or any other person), if the testator so
provides. (In the latter instance, only if
the legatee pursues his
NOTE – CHOICE IS IRREVOCABLE studies diligently.)
AMOUNT In the order of preference: In the order of preference:
Art. 941. A legacy of generic personal property shall be valid even if there 1. That fixed by the testator 1. That fixed by the testator
be no things of the same kind in the estate. 2. That which is proper, as 2. That which the testator
determined by two during his lifetime used to
A devise of indeterminate real property shall be valid only if there be variables: give the legatee by way
immovable property of its kind in the estate. a. The social of support, unless
standing and markedly
circumstances of disproportionate to the
The right of choice shall belong to the executor or administrator who shall
the legatee, and value of the disposable
comply with the legacy by the delivery of a thing which is neither of inferior
b. The value of the portion. 

nor of superior quality. (875a) disposable 3. That which is proper, as
portion of the determined by two
Art. 942. Whenever the testator expressly leaves the right of choice to the estate. 
 variables:
heir, or to the legatee or devisee, the former may give or the latter may a. The social standing
choose whichever he may prefer. (876a) and circumstances
of the legatee, and
Art. 943. If the heir, legatee or devisee cannot make the choice, in case it b. The value of the
has been granted him, his right shall pass to his heirs; but a choice once disposable portion
made shall be irrevocable. (877a) of the estate.

GENERIC LEGACIES GENERIC DEVISES But now the variables under

the Family Code, are the
Valid even if no such movables Valid, subject to same rules of
needs of the person to be
exist in the testator’s estate upon choice. Only if the Real property supported and the capacity
his death. 
 exists at the time of the testator’s of the person giving the
death. support
The estate will simply have to
acquire what is given by legacy. Art. 945. If a periodical pension, or a certain annual, monthly, or weekly
Ex: “I give to A a patek watch” Ex: “I give to A one of my watches, amount is bequeathed, the legatee may petition the court for the first
or one of my residential houses installment upon the death of the testator, and for the following ones which
shall be due at the beginning of each period; such payment shall not be
RIGHT OF CHOICE (ART. 942, 943) returned, even though the legatee should die before the expiration of the
• Generally, the executor or administrator, acting for the estate has period which has commenced. (880a)
the right to choose.
o But he must give neither inferior nor superior quality. BALANE: Testator dies on March 1, 1996. He has a will giving A a monthly
o EXCEPTION: If the testator gives the right of choice to pension of P1,000.
the legatee/devisee, or to the heirs on whom the 1. If we follow Art. 945 literally, A can compel the estate to give him
obligation to give the benefit is imposed (in a his pension from March 1, 1996.
subsidiary legacy or devise). 
 2. In reality, A has to wait. The estate should be settled first (will
• The choice must be limited to something which is neither superior probated, payment of debts, determine if legacy is effectual,
nor inferior in quality. etc.) After settlement of the estate, A can demand his legacy
o This rule applies whether the choice belongs to the and its effectivity will retroact to March 1, 1996.
executor/administrator or the legatee/devisee 

o See Art. 1246 

o Ex: If the legacy is a patek watch, don’t get the high
end watch full of diamonds, nor a fake one. 

• The choice is irrevocable, once made. 

• Transmissibility of right to choose: 

a. If the choice belongs to the executor/administrator
and he dies before making the choice – Right is
transmitted to his successor in the position.
b. If the choice belongs to the legatee/devisee and he
dies before making the choice – Right passes to his
heirs.

Art. 944. A legacy for education lasts until the legatee is of age, or beyond
the age of majority in order that the legatee may finish some professional,
vocational or general course, provided he pursues his course diligently.

Art. 946. If the thing bequeathed should be subject to a usufruct, the

legatee or devisee shall respect such right until it is legally
extinguished. (868a)
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Art. 947. The legatee or devisee acquires a right to the pure and simple deterioration, and shall be benefited by its increase or improvement,
legacies or devises from the death of the testator, and transmits it to his without prejudice to the responsibility of the executor or
heirs. (881a) administrator. (882a)

Art. 948. If the legacy or device is of a specific and determinate thing
pertaining to the testator, the legatee or devisee acquires the ownership
thereof upon the death of the testator, as well as any growing fruits, or
unborn offspring of animals, or uncollected income; but not the income
which was due and unpaid before the latter's death.
Art. 949. If the bequest should not be of a specific and determinate thing,
but is generic or of quantity, its fruits and interests from the time of the death
of the testator shall pertain to the legatee or devisee if the testator has
expressly so ordered. (884a)

From the moment of the testator's death, the thing bequeathed shall be at
the risk of the legatee or devisee, who shall, therefore, bear its loss or

ARTICLES 947 TO 949 – RULES ON DEMANDABILITY, FRUITS AND OWNERSHIP.

DEMANDABILTY WHEN OWNERSHIP VESTS RIGHT TO THE FRUITS

1. PURE AND DETERMINATE Upon testator’s death Upon the testator’s death (Article 948)
If acquired from estate – Upon
testator’s death
Upon testator’s death Upon determination, unless testator provides
2. PURE AND GENERIC
otherwise (Article 949)
If acquired from a third person –
Upon acquisition
Upon the arrival of the term (implied from Article 885)

Upon arrival of the term, but the Although this article does not explicitly so declare, the
3. WITH A SUSPENSIVE Upon the arrival of the
right to it vests upon the testator’s descendants of illegitimate children shall inherit per
TERM term
death (Art. 878) capita if all the illegitimate children renounce. If these
descendants can inherit per stirpes, they can, in
proper cases, inherit per capita.
Upon the happening of the condition, unless the
4. WITH A SUSPENSIVE Upon the happening Upon the testator’s death, if the
testator provides otherwise (Article 884, in relation to
CONDITION of the condition condition is fulfilled (Article 1187)
Art. 1187).

Art. 950. If the estate should not be sufficient to cover all the legacies or Art. 953. The legatee or devisee cannot take possession of the thing
devises, their payment shall be made in the following order: bequeathed upon his own authority, but shall request its delivery and
(1) Remuneratory legacies or devises; possession of the heir charged with the legacy or devise, or of the executor
(2) Legacies or devises declared by the testator to be preferential or administrator of the estate should he be authorized by the court to deliver
(3) Legacies for support; it. (885a)
(4) Legacies for education;
(5) Legacies or devises of a specific, determinate thing which forms BALANE – This is to be done only after debts have been paid, legitimes have
a part of the estate; been delivered and DL have been computed to check whether they impair
(6) All others pro rata. (887a) the legitimes.

BALANE – Order of preference. This conflict with Art. 911. Art. 954. The legatee or devisee cannot accept a part of the legacy or
devise and repudiate the other, if the latter be onerous.
ART. 911 ART. 950
SIMPLE REDUCTION COMPLICATED PREFRENCE – follow Should he die before having accepted the legacy or devise, leaving
1. Reduce non-preferred DL first, the order above (Art. 950) several heirs, some of the latter may accept and the others may repudiate
pro-rate the share respectively belonging to them in the legacy or devise. (889a)
2. Then reduce preferred DL The first is the last to be reduced
and the last is the first to be GENERAL RULE – Acceptance must be total or partial
reduced.
Apply when the legitimes have Apply when the reduction is due EXCEPTION – If the DL is partly onerous and partly gratuitous, the recipient
been impaired, the DL exceeded to other reasons (other than cannot accept the gratuitous and renounce the onerous.
the free portion. impaired legitimes)
Art. 955. The legatee or devisee of two legacies or devises, one of which is
Such as onerous, cannot renounce the onerous one and accept the other. If both
• No compulsory heirs are onerous or gratuitous, he shall be free to accept or renounce both, or
• Legitimes already satisfied to renounce either. But if the testator intended that the two legacies or
through donations devises should be inseparable from each other, the legatee or devisee must
• Arithmetic errors, when DL either accept or renounce both.
exceed the estate
Any compulsory heir who is at the same time a legatee or devisee may
Art. 951. The thing bequeathed shall be delivered with all its accessions and waive the inheritance and accept the legacy or devise, or renounce the
accessories and in the condition in which it may be upon the death of the latter and accept the former, or waive or accept both. (890a)
testator.(883a)
Q – What is the Rule for 2 DL to 1 Person?
BALANE – With or without the instruction of the testator a. The testator’s instruction if any, should prevail first
b. Gratuitous + Gratuitous = Recipient may
Art. 952. The heir, charged with a legacy or devise, or the executor or • Accept either, renounce the other,
administrator of the estate, must deliver the very thing bequeathed if he is • Accept both
able to do so and cannot discharge this obligation by paying its value. • Renounce both
c. Onerous + Onerous = Recipient may
Legacies of money must be paid in cash, even though the heir or the estate • Accept either, renounce the other,
may not have any. • Accept both
• Renounce both
The expenses necessary for the delivery of the thing bequeathed shall be d. Gratuitous + Onerous = Recipient
for the account of the heir or the estate, but without prejudice to the • Cannot accept gratuitous and renounce onerous
legitime. (886a) • Any other combination is allowed.

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Q – What is the rule for DL to a Compulsory heir also? ANNULMENT DEPENDS ON THE BASIS:
• The testator’s instruction, if any should prevail first. a. Vitiated consent – Not revoked because there was no
• If not, ART. 955 –Any compulsory heir who is at the same time a intention to revoke
legatee or devisee may b. All other reasons – Revoked.
4. waive the inheritance and accept the legacy or devise, or
5. renounce the latter and accept the former, or 3. TOTALLY LOST – PROVIDED THAT – it occurred before the testator’s
6. waive or accept both. death. This is because a total loss of the thing extinguishes the
obligation.
Art. 956. If the legatee or devisee cannot or is unwilling to accept the legacy
or devise, or if the legacy or devise for any reason should become Art. 958. A mistake as to the name of the thing bequeathed or devised, is of
ineffective, it shall be merged into the mass of the estate, except in cases no consequence, if it is possible to identify the thing which the testator
of substitution and of the right of accretion. (888a) intended to bequeath or devise. (n)

Q – What happens if the DL renounces or is incapacitated to succeed to BALANE – This is similar to Art. 789.
the DL?
1. Follow the substitution, if any Art. 959. A disposition made in general terms in favor of the testator's
2. Then follow accretion relatives shall be understood to be in favor of those nearest in degree. (751)
3. Lastly, follow intestacy.
BALANE
NOTE – If these three things do not take effect, the legatee/devisee shall be • This does not refer to legacies and devises
merged into the mass of the estate (it goes by intestacy) 
 • This article is misplaced. This should be in the Chapter on
Institution of Heirs
Art. 957. The legacy or devise shall be without effect: • This applies only in favor of the testator's own relatives.
(1) TRANSFORMATION – If the testator transforms the thing
bequeathed in such a manner that it does not retain either the
form or the denomination it had;

EXAMPLE – The testator converts a plantation into a fishpond.

(2) ALIENATION – If the testator by any title or for any cause alienates
the thing bequeathed or any part thereof, it being understood
that in the latter case the legacy or devise shall be without effect
only with respect to the part thus alienated. If after the alienation
the thing should again belong to the testator, even if it be by
reason of nullity of the contract, the legacy or devise shall not
thereafter be valid, unless the reacquisition shall have been
effected by virtue of the exercise of the right of repurchase;

(3) TOTAL FORTUITOUS LOSS – If the thing bequeathed is totally lost

during the lifetime of the testator, or after his death without the
heir's fault. Nevertheless, the person obliged to pay the legacy or
devise shall be liable for eviction if the thing bequeathed should
not have been determinate as to its kind, in accordance with the
provisions of Article 928. (869a)

PROVIDED THAT – it occurred before the testator’s death. This is

because a total loss of the thing extinguishes the obligation.

INSTANCES WHEN THE LEGACY/DEVISE IS REVOKED BY OPERATION OF LAW

1. Transformation of the thing.
a. "I bequeath my ring to B." After making the will, the ring
is melted and turned into a pendant.
b. When a coconut plantation is transformed into a
fishpond.

2. ALIENATION – This manifest the intent to revoke. Either onerously

or gratuitously.

EXAMPLE – When the testator sells the thing to the legatee or

devisee himself 


Q – What if the testator gets the thing back from the DL via
succession?

GENERAL RULE – Still the DL is revoked, even if the thing revers to

the testator.

EXCEPTIONS: In these cases, the devise/legacy is NOT revoked: 


a. If the reversion is caused by the annulment of the alienation
and the cause for annulment was vitiation of consent on the
grantor’s part, either by reason of incapacity or of duress.

BALANE – This is an obvious exception because the testator

had no intent to part with the property since he merely
alienated it under duress. The intent of the testator is the
rationale here

b. If the reversion is by virtue of redemption in a sale with pacto

de retro. (reacquired during the testator’s lifetime)

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 CHAPTER 3 NOTE – The rules of intestacy is similar to that of succession to legitimes. They
LEGAL OR INTESTATE SUCCESSION are both governed by the rules on exclusion and concurrence.

SECTION 1. - GENERAL PROVISIONS Q – What is the basis of intestate succession?

• The presumed will of the decdent
INTRODUCTION • The law puts itself in the heart and mind of the decedent
• As Manresa explains it: Love first descends, then ascends, then
Q – What are the 3 kinds of succession according to importance? finally spreads sideways.
a. Compulsory • Thus, the law first calls the descendants, then the ascendants,
b. Testamentary then finally the collaterals.
c. Intestate • But still observing the rule that the nearer exclude the more
remote.
INTESTACY • Lastly, in default of anyone called to succession, it is presumed
• That which takes place by operation of law in default of will that his property be given to charitable an educational
compulsory and testamentary succession. It is the presumed or institutions.
implied will of the testator.
• It is the least preferred among the three modes of succession, but Q – What are the 4 Basic Rules of Intestacy?
is the most common. 1. Rule of Relationship
• It takes place only 2. Rule of Preference of Lines
a. insofar as it does not impair legitimes; 3. Rule of Proximity of Degree
b. only if there is no will disposing of the property. 4. Rule of Equality among relatives of the same degree
• It applies the principle of exclusion and concurrence (the same
principles as in compulsory succession.) RULE OF RELATIONSHIP – the heirs must be related to the deceased
• The relationship must first be ascertained.
Q – Who are the intestate heirs? • FOUR KINDS
1. Legitimate children or descendants 1. Family – Jus familial, ascendants and descendants in
2. Illegitimate children or descendants the direct line.
3. Legitimate parents or ascendants 2. Blood – Jus sanguinis, collaterals up to the fifth degree
4. Illegitimate parents 3. Marriage – Jus conjugis – spouse
5. Surviving spouse 4. State – Jus imperii – the right of sovereignty.
6. Brothers and sisters, nephews and nieces
7. Other collateral relatives up to the fifth degree RULE OF PREFERENCE OF LINES
8. The State. • The three lines of relationship are:
o The descending 

NOTES o The ascending; and 

• Numbers 1 to 5 are both compulsory and intestate heirs. o The collateral 

• Numbers 6 to 8 are intestate heirs. • The law lays down an order of preference among these lines
The
• This shows why the rules on legitime are similar to the rules of descending excludes the ascending and the collateral
The
intestacy. ascending excludes the collateral.

• BALANE – This is also true in compulsory succession. The
Art. 960. Legal or intestate succession takes place: descending is preferred over the ascending.
(1) If a person dies without a will, or with a void will, or one which has o EXCEPTION – Illegitimate children/descendants do
subsequently lost its validity; NOT exclude the legitimate parents/ascendants
(2) When the will does not institute an heir to, or dispose of all the
property belonging to the testator. In such case, legal succession RULE OF PROXIMITY OF DEGREE – The nearer exclude the more remote
shall take place only with respect to the property of which the (Article 962, par. 1), without prejudice to representation.
testator has not disposed; • This applies to the descending and ascending line, but
representation only takes place in the descending line. 

BALANE – This is when the will does not dispose of the entire “free • It also applies to the collateral line, but there is only once instance
portion”, not the entire estate (as the provision says) because the
where representation take place in this line, this is in case of
legitimes have to be respected. brothers and sisters, and nephews and nieces. 

(3) If the suspensive condition attached to the institution of heir does
RULE OF EQUALITY AMONG RELATIVES OF THE SAME DEGREE – This rule is a
not happen or is not fulfilled, or if the heir dies before the testator,
corollary of the previous one: If the nearer exclude the more remote,
or repudiates the inheritance, there being no substitution, and no
logically those of equal degree should inherit in equal shares (Article 962,
right of accretion takes place;
par. 2). 

(4) When the heir instituted is incapable of succeeding, except in
• EXCEPTIONS
cases provided in this Code. (912a)
1. Rule of Preference of Lines – Parents and children are both
one degree, but the descending is preferred over the
OTHER CAUSES OF INTESTACCY (NOT IN THE PROVISION)
ascending. The direct line is preferred over the collateral,
(5) Happening of Resolutory Condition
even if they are of the same degree
(6) Expiration of Resolutory Term
2. The distinction between legitimate and illegitimate filiation
(7) Preterition
(ratio of 2:1)
3. The rule of division by line in the ascending line – pertains to
Art. 961. In default of testamentary heirs, the law vests the inheritance, in
the paternal and maternal ascending line2
accordance with the rules hereinafter set forth, in the legitimate and
4. The distinction between full-blood and half-blood
illegitimate relatives of the deceased, in the surviving spouse, and in the
relationship among brothers and sisters, nephews and nieces
State. (913a)
(Ratio is 2:1) (Art. 1006 and 1008) (Padura)
5. RIGHT OF REPRESENTATION – Heirs who inherit by right of
Art. 962. In every inheritance, the relative nearest in degree excludes the
representation will normally inherit in different shares,
more distant ones, saving the right of representation when it properly takes
because the portioning is NOT per capita, but per stirpes
place.
Those (grandchildren, etc) who will inherit by right of
Relatives in the same degree shall inherit in equal shares, subject to the
representation will not inherit in equal shares, because it will
provisions of article 1006 with respect to relatives of the full and half blood,
depend on the number of grandchildren in relation of the
and of Article 987, paragraph 2, concerning division between the paternal
children they stand to inherit from by right of representation
and maternal lines. (912a)
(persons representing will only inherit what the person to be
represented will inherit).

2 Should there be more than one of equal degree belonging to the same to the paternal and the other half to the maternal ascendants. In each line the
ascending line (the grandparents and higher) they shall divide the inheritance division shall be made per capita.
per capita; should they be of different lines but of equal degree, one-half shall go
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 SUBSECTION 1. - RELATIONSHIP b. Siblings of a grandparent (grand-uncles and grand-
aunts)

Art. 963. Proximity of relationship is determined by the number of c. Grandchildren of a sibling (grand-nephews and
generations. Each generation forms a degree. (915) grand-nieces)
e. FIFTH DEGREE
Art. 964. A series of degrees forms a line, which may be either direct or a. Children of first cousin
collateral. b. First cousins of a parent

c. Siblings of great-grandparent
A direct line is that constituted by the series of degrees among ascendants d. Great-grandchildren of a sibling
and descendants.

A collateral line is that constituted by the series of degrees among persons ILLUSTRATION
who are not ascendants and descendants, but who come from a common
ancestor. (916a)
A
| \
Art. 965. The direct line is either descending or ascending.
B D
The former unites the head of the family with those who descend from him.
For B, A is in the direct line. D is in the collateral line.
The latter binds a person with those from whom he descends. (917)

Art. 966. In the line, as many degrees are counted as there are generations
Art. 967. Full blood relationship is that existing between persons who have
or persons, excluding the progenitor.
the same father and the same mother.
In the direct line, ascent is made to the common ancestor. Thus, the child is
Half blood relationship is that existing between persons who have the same
one degree removed from the parent, two from the grandfather, and three
father, but not the same mother, or the same mother, but not the same
from the great-grandparent.
father. (920a)
In the collateral line, ascent is made to the common ancestor and then
FULL BLOOD HALF-BLOOD
descent is made to the person with whom the computation is to be made.
Thus, a person is two degrees removed from his brother, three from his uncle, That existing between persons That existing between persons
who is the brother of his father, four from his first cousin, and so forth. (918a) who have the same father AND who have the same father BUT not
the same mother the same mother or vice versa
BALANE – ART. 963-967 on relationships.
• (These rules on relationship are) important because of certain Q – What is the importance of distinguishing between full blood and half
principles which ordain in intestacy, namely: blood?
a. Nearer excludes the more remote; • The distinction applies ONLY to
b. Direct line is preferred over the collateral; • ART. 1006 – Brothers and Sisters
c. Descending line is preferred over the ascending. • ART. 1008 – Nephews and Nieces
• There is a ration of 2:1 for full blood and half-blood but this only
TWO BASIC CONCEPTS IN RELATIONS applies to intestacy
a. Concept of Degree – this is the method of computing the
proximity of relationship. Every degree is one generation Art. 968. If there are several relatives of the same degree, and one or some
b. Concept of Lines – These are the relative positions in the family of them are unwilling or incapacitated to succeed, his portion shall accrue
between 2 generations (genealogical chart) to the others of the same degree, save the right of representation when it
a. IN INESTACY should take place. (922)
i. The is no limit – direct line – (i) ascending
and (ii) descending) NOTE – The part assigned to the one disqualified/unwilling to inherit
ii. Limit of 5 degrees – Collateral line – 2 (meaning he renounces or cannot receive his share, or who died before the
persons having a common ancestor testator) is added or incorporated to that of his co-heirs, co-devisees, or co-
legatees (Art. 1015) 

Q – What is the importance of line? There are preferences made in
intestacy. Q – Is there accretion in intestacy? YES
• Among heirs of the same degree for the following instances (Art.
Q – What is the importance of distinguishing the direct and collateral lines? 1015)
• The direct line is preferred over the collateral a. Predecease
• EX – LOLO > KUYA b. Incapacity
• In the direct line, there is no limit to the number of degrees (you c. Renunciation
can go ad infinitum in the intestacy) • However, if there is representation (only in the descending line)
• In the collateral line, there is a limit that extends only up to the in those 3 instances, then there is NO accretion.
fifth degree. • Should there be accretion, the heirs involved must be in the same
kind of relationship to the decedent. This is because of the
Q – What is the importance of distinguishing the descending direct and the preference of lines in intestate succession (Ex – all brothers, all
ascending direct lines? grandchildren)
• The descending is preferred over the ascending.
• EX – ANAK > LOLO Q – What are the requisites?
a. IN INTESTATE SUCCESSION – no accretion in compulsory
Q – What is the importance of degree? succession but covered under Art. 1022 for testamentary
• It determines the proximity of relationship. Every generation is a succession
degree b. HERIS OF THE SAME DEGREE – For accretion to take place the heirs
• Also, we recall the rule that – the nearer excludes the more involved must be in the same kind of relationship to the
remote. decedent, inheriting together (must be all siblings, or all children,
etc.)
Q – Who are the collaterals by degree? • This is because of the principle of preference of lines in
a. FIRST DEGREE – None intestate succession. 

b. SECOND DEGREE – Siblings (brothers and sisters) • Thus, there can be no accretion among a grandchild,
c. THIRD DEGREE a grandparent and a brother of the decedent (even if
a. Uncles and Aunts they are all related to him in the second degree)
b. Nephews and Nieces because they are not inheriting together in the first
d. FOURTH DEGREE place. 

a. First cousins
 c. SOME HEIRS ARE DISQUALIFIED OR ARE UNWILLING TO INHERIT –
Predecease, Incapacity or Renunciation. Note that only “some”

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 of the heirs are disqualified or unwilling to inherit. If ALL of them ART. 968 ART. 969
are disqualified or unwilling, then Art. 969 applies instead. 
 When it 1. Renuncation by SOME 1. Renunciation by ALL
d. REPRESENTATION DOES NOT OPERATE applies heirs of the same heirs of the same
degree degree (universal
INSTANCES WHEN REPRESENTATION DOES NOT OPERATE 2. Predecease or renunciation) 

a. Renunciation or Unwillingness Incapacity of SOME 2. Predecease or
b. In the direct ascending line heirs of the same Incapacity of ALL heirs
c. In the collateral line degree when of the same degree
representation does when representation
EXCEPT – In intestate succession, representation only NOT operate does NOT operate
operates in the collateral line in favour of nephews (universal predecease
and nieces (representing their parents, who are the or incapacity) (This is
siblings of the decedent) (Art. 975) not explicitly provided
for in Art. 869 but
EXCEPTION TO EXCEPTION – In intestate succession, according to Balane it
representation will NOT operate in favour of the is covered) 

nephews and nieces, if ALL the siblings of the Who will Heirs of the Same Kind Next heirs in the
decedent are disqualified to inherit. (Art. 975) inherit and Degree (those who successional order
instead inherit together)
d. In cases of adopted children Basis of Right of Accretion By their own right, as the
Inheriting nearest heirs.
Heirs
IN CASES OF PREDECEASE OR INCAPACITY, Example Renunciation by SOME Renunciation by ALL heirs
representation if proper, will prevent accretion from occurring. heirs of the SAME degree of the SAME degree.

A has three sons, X, Y, and Z. A dies without a will. X is childless. For A has three sons, X, Y and A has three sons, X, Y and Z.
intestate purposes, if X in disinherited (or incapacitated or predeceases) Z. Z has children. A dies X, Y and Z have their own
then the share of X will go to Y and Z by right of accretion, because without a will. For children. If they X, Y and Z
representation will not take place. If however, X has a child, then his compulsory/intestate ALL renounce their
share will go to his son by right of representation, accretion will not take purposes, if Z renounces his inheritance, then their
place. 
 share, then Z’s children shares will go to their
cannot inherit (because children, not by
THUS – Accretion will be proper, in favour of the heirs of the same degree, they are excluded by representation, but by
if there is no representation (meaning the predeceased or nearer descendants X and virtue of their own right, as
incapacitated heirs have no children) 
 Y, and they can’t inherit by their heirs in the nearest
representation because degree according to the
ACCRETION IS MORE RELEVANT IN RENUNCIATION, there is no representation successional order.
Because there is no representation in renunciation in renunciation), thus, Z’s
share will accrue by right
of accretion to the other
A has three sons, X, Y and Z. Z has children. A dies without a will. For
heirs of the same degree,
intestate purposes, if Z renounces his share, then Z’s children cannot
X and Y.
inherit (because they are excluded by nearer descendants X and Y, and
they can’t inherit by representation because there is no representation
SUBSECTION 2. - RIGHT OF REPRESENTATION
in renunciation), thus, Z’s share will accrue by right of accretion to the
other heirs of the same degree, X and Y.
Art. 970. Representation is a right created by fiction of law, by virtue of which
the representative is raised to the place and the degree of the person
represented, and acquires the rights which the latter would have if he were
Art. 969. If the inheritance should be repudiated by the nearest relative,
living or if he could have inherited. (942a)
should there be one only, or by all the nearest relatives called by law to
succeed, should there be several, those of the following degree shall inherit
Q – What is this right of representation?
in their own right and cannot represent the person or persons repudiating
• Representation is a right created by fiction of law, by virtue of
the inheritance. (923)
which the representative is raised to the place and the degree of
the person represented, and acquires the rights which the latter
Q – What is the effect of renunciation by ALL in the SAME degree?
would have if he were living or if he could have inherited. 

• The right of succession should first be passed on the heirs in
succeeding degrees (in the successional order) before the next
JBL REYES – The term “representation” is erroneous, it should be called
line can succeed, because of the rule of preference of lines
“subrogation” instead. It has been suggested that a better term to call this
• This is because of the rule of preference of lines
legal process is either hereditary subrogation or successional subrogation,
Successional Order because the person inheriting in another’s stead actually represents no one
and truly succeeds in his own right
1. The descending line first – If all the descendants of a certain
degree renounce, succession passes to the descendants of the
next degree, and so on, ad indefinitum BALANE – “Representation” is a case of agency, where one who acts in
2. The ascending line next – Should no one be left in the descending behalf of another. Representation involves an agent who acts on behalf of
a principal, where the former’s acts are considered the latter’s own. In
line, the heirs in the ascending acquire the right of succession,
“representation” in succession, the heirs (who will represent) are really
again in order of degrees of proximity
3. The collateral line last – Only if all the descendants and placed in the position of the heirs (who will be represented) in their own
ascendants renounce will the collateral relatives acquire the right, thus it is really a case of substitution or subrogation. But because the
law calls it “representation” we will call it that.
right to succeed.

PREDECEASE OR INCAPACITY BY ALL IN THE SAME DEGREE

• This eventuality is not provided for by this article. 

• The rules outlined above, however, are equally applicable to
such a situation, EXCEPT in cases where representation is 
proper
(such as in the descending line) 

• Remember that representation does not apply in cases of
universal renunciation outlined above, because there is no

representation in renunciation (Art. 977) 


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 ILLUSTRATION
X •
/ | \
A B C
/\
b1 b2
B predeceases X. When X dies, b1 and b2 are excluded because of the
rule that the nearer excludes the more remote. Only A and C should
inherit. But because of the right of representation, b1 and b2 will inherit
in the place of B. They are raised to the level of B. They will only get
what B would have gotten.
Q – When does it operate?
a. Predecease (Art. 982, 975)
b. Disinheritance (Art. 923)
c. Incapacity or unworthiness to succeed (Art. 1035)
NOTE – this does not apply to renunciation (Art. 968, 969, 977).
• A renouncer cannot be represented.
• But a renouncer can represent the person whose inheritance he
has renounced.
EXAMPLE – “A has a son B, B has a son C, and C has a son D. Note that
there are four generations here. When B dies, C renounces his
inheritance from B. Later, A dies. C can still inherit from A by virtue of
representing B. When C renounced, he only renounced his share from
B, not A. But, D cannot represent C and inherit from B. Thus, the
renouncer C can represent B but he cannot be represented by D.”
Q – In what kinds of succession does it operate?
a. Compulsory – as to the legitime
b. Intestate – as to the intestate share
NOTE – It does not apply to testamentary succession – If the testator provides
that in case the instituted heir (or devisee or legatee) cannot inherit from
him (due to predecease, incapacity, disinheritance), another person will
represent him or inherit instead, this is a case of substitution, NOT
representation.
NOTE FURTHER – E.g., "I institute my son, and if he predeceases me, he will
be represented by his son." This is substitution and not representation.
Art. 971. The representative is called to the succession by the law and not
by the person represented. The representative does not succeed the person
represented but the one whom the person represented would have
succeeded. (n)
Art. 972. The right of representation takes place in the direct descending
line, but never in the ascending.
In the collateral line, it takes place only in favor of the children of brothers
or sisters, whether they be of the full or half blood. (925)
Q – Which line does the representation obtain?
a. IN COMPULSORY SUCCESSION – in the direct descending line only
(Art. 972)
b. IN INTESTATE SUCCESSION
1. In the direct descending line (Art. 972)
2. In the collateral line, but only in favour of nephews and
nieces (Art. 975)
Representing their parents (who are the siblings of the
decedent)
This is the only case of representation in the
collateral line
EXCEPTION – If ALL the siblings of the decedent are
disqualified to inherit, then representation does NOT operate
in favour of the nephews and nieces, but rather they will all
inherit in their own right, per capita. (Art. 975)
Q – Can illegitimate children represent?
1. If the child to be represented is LEGITIMATE – Only legitimate
children/ descendants can represent him (Art. 992)
2. If the child to be represented is ILLEGITIMATE – Both legitimate
and illegitimate children/descendants can represent him (Art.
902, 989, 990)
BALANE – This is the rule for both compulsory and intestate succession. No
reason or logic for the distinction, it's just what the law says. Note that
illegitimate children are preferred here.
JDLYRREVERRE | B2020 | SUCCESSION | ATTY. BALANE | CHAMP NOTES ANNOTATED | 86
Q – Can adopted children represent? Can they be represented?
• NO.
TEOTICO V. DEL VAL – An adopted child cannot represent his
adoptive parent because the fiction is only between the adopter
and the adopted.
CASE – TEOTICO V. DEL VAL
• Under our law the relationship established by adoption is limited
solely to the adopter and the adopted and does not extend to
the relatives of the adopting parents or of the adopted child
except only as expressly provided for by law. Hence, no
relationship is created between the adopted and the collaterals
of the adopting parents. 

• As a consequence, the adopted is an heir of the adopter but not
of the relatives of the adopter. 

• The relationship established by the adoption, however, is limited
to the adopting parent, and does not extend to his other
relatives, except as expressly provided by law. 

• Thus, the adopted child cannot be considered as a relative of
the ascendants and collaterals of the adopting parents, nor of
the legitimate children which they may have after the adoption,
except that the law imposes certain impediments to marriage by
reason of adoption. 

• Neither are the children of the adopted considered as
descendants of the adopter. The relationship created is
exclusively be- tween the adopter and the adopted, and does
not extend to the relatives either. 

• Relationship by adoption is limited to adopter and adopted, and
does not extend to other members of the family of either; but the
adopted is prohibited to marry the children of the adopter to
avoid scandal. 

• B – The rationale for the rule barring an adopted from
representing and being represented is that the legal relationship
created by adoption is strictly between the adopter and the
adopted. It does not extend to the relatives of either party.
CASE – SAYSON V. CA
• While it is true that the adopted child shall be deemed to be a
legitimate child and have the same right as the latter, these rights
do not include the right of representation. 

• The relationship created by the adoption is between only the
adopting parents and the adopted child and does not extend
to the blood relatives of either party
ILLUSTRATION
X
/ | \
A B C
/\
b1 b2
B predeceases X. When X dies, b1 and b2 can represent B in B's share in
the estate of X.
Art. 973. In order that representation may take place, it is necessary that the
representative himself be capable of succeeding the decedent. (n)
BALANE – Capacity to succeed – In representation, there are three parties:
1. The decedent;
2. The person represented;
3. The representative.
QUESTIONS:
a. Must 3 have capacity to succeed from 1? Yes, because he is
really succeeding from 1.
b. Must 3 have capacity to succeed from 2? No, because 3 is not
succeeding from 2.
c. Must 2 have capacity to succeed from 1? No. This is precisely
why 3 succeeds 1.
NOTE – Capacity to succeed is NOT the same as capacity to represent.
 Q – When does representation NOT operate? ILLUSTRATION IN THE DIRECT LINE (ART. 982)
1. Renunciation or unwillingness to inherit
2. Testamentary succession X
3. In the direct ascending line / | \
4. In the collateral line (except in intestate succession – nephews A B C
and nieces; exception to the exception, when ALL the siblings / | | | \
of the decedent are disqualified) à see illustration below. a1 a2 b c1 c2
5. In cases of adopted children.
a. In A, B and C predecease X, all grandchildren inherit by
representation, per stirpes.
Art. 974. Whenever there is succession by representation, the division of the b. If A, B and C renounce, all grandchildren inherit by their own
estate shall be made per stirpes, in such manner that the representative or right, per capita.
representatives shall not inherit more than what the person they represent
would inherit, if he were living or could inherit. (926a)
Q – How do you distinguish representation by grandchildren and by
Art. 975. When children of one or more brothers or sisters of the deceased nephews and nieces?
survive, they shall inherit from the latter by representation, if they survive with
their uncles or aunts. But if they alone survive, they shall inherit in equal BY GRANDCHILDREN BY NEWPHEWS / NIECES
portions. (927) If ALL children are disqualified à If ALL the brothers and sisters of the
the grandchildren still inherit by deceased are disqualified à the
Q – How does representation operate?
representation (see Art. 982) nephews and nieces inherit per
• PER STIRPES – This means that the representative or capita.
representatives receive COLLECTIVELY only what the person
But, even if only some, not all, of the children or brothers and sisters are
represented would have received
disqualified, the rule is still the same.
• In other words, representation operates in such manner that the
representative or representatives shall not inherit more than what
Art. 976. A person may represent him whose inheritance he has
the person they represent would inherit, if he were living or could
renounced. (928a)
inherit. (Art. 974)
• If there are more than one representative in the same degree,
Art. 977. Heirs who repudiate their share may not be represented. (929a)
then divide the portion equally, without prejudice to the
distinction between legitimate and illegitimate children, when
applicable
• Distinguish this from “per capita” which involves proportionate
sharing. IN RENUNCIATION/ REPUDIATION
• BALANE – per stirpes means “through the roots”, meaning the
representative will only get what the “root” would have gotten. NOTE
a. Person who renounces cannot be represented. (Art. 977.)
b. Person who renounces can represent. (Art. 976.)
ILLUSTRATION – IN COLLATERAL LINE
A
|
a1
B
/
|
A -- a2
C
/
|
X—B – b1
D
\
C—c1
C renounces his inheritance from B. B then dies. Later on, A dies.
\
c2
EFFECT:
a. D cannot represent C in B's estate.
THUS – If A, B and C predecease X, all nephews inherit in their son’s right,
b. Can C represent B in A's estate? Yes. When C renounced, he
per capita.
only renounced his right to inherit from B. He did not renounce his
right to inherit from A.
EXAMPLE
• A has 3 children, X, Y and Z. X has 2 children X1 and X2. If X dies
before A (or is incapacitated or disinherited), then X1 and X2 will
inherit from A by right of representation. Once A dies, the
portioning is 1/3 to Y, 1/3 to Z and 1/3 collectively to X1 and X2
(because they will receive only what the person represented
would have received, per stirpes, not per capita), they will then
share the 1/3 equally, or 1/6 each.” 

• A has 2 children, B and C. B has 1 child, B1, while C has two
children C1 and C2. B and C predeceases A. (note that if B and
C renounces, children will inherit per capita) When A dies, the
three grandchildren will NOT inherit equally (inherit per stripes),
because representation operates per stirpes, the representatives
receive only what the person represented would have received.
Thus, B1 would get 1/2 and C1 and C2 will get 1/4 each (as they
divide equally the share of their father C)” 


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 SECTION 2. - ORDER OF INTESTATE SUCCESSION

COMPULSORY HEIRS INTESTATE HEIRS

1. Legitimate children or descendants 
 1. Legitimate children or descendants 

2. Illegitimate children or descendants 
 2. Illegitimate children or descendants 

3. Legitimate parents or ascendants 3. Legitimate parents or ascendants 

4. Illegitimate parents 
 4. Illegitimate parents 

5. Surviving spouse 
 5. Surviving spouse 

6. Siblings (brothers and sisters), nephews and nieces 

7. Other collateral relatives up to the fifth degree 

8. The State. 

NOTE – 1-5 exclude 6-8, except 5 & 6 (they will concur) 5&6 are given special
preference.

GROUP OF
INTESTATE WHO THEY EXCLUDE WHO THEY CONCUR WITH WHO EXCLUDES THEM
HEIRS
1. Legitimate 1. Legitimate or illegitimate parents 1. Surviving Spouse NO ONE
Children 2. Collaterals 2. Illegitimate children
3. State

EVERYONE
2. Illegitimate 1. Illegitimate parents 1. Legitimate Children NO ONE
Children 2. Collaterals 2. Legitimate Parents
3. State 3. Surviving spouse
3. Legitimate 1. Collaterals 1. Surviving Spouse Legitimate Children
Parents 2. State 2. Illegitimate children
4. Illegitimate 1. Collaterals Surviving Spouse 1. Legitimate Children
parents 2. State 2. Illegitimate Children
5. Surviving 1. Collaterals other than siblings, 1. Legitimate Children NO ONE
Spouse nephews and nieces 2. Illegitimate Children
2. The State 3. Legitimate Parents
4. Illegitimate Parents
5. Siblings, nephews and nieces
6. Siblings, 1. All other collaterals Surviving Spouse 1. Legitimate Children
Nephews 2. State 2. Illegitimate Children
and Nieces 3. Legitimate Parents
NOTE – that the nephews/ nieces exclude 4. Illegitimate Parents
uncles/ aunts, though all are 3rd degree
relatives
7. Other 1. Collaterals in remote degrees (those Collaterals in the same degree 1. Legitimate Children
Collaterals nearer collaterals exclude the more 2. Illegitimate Children
(up to the remote collaterals 3. Legitimate Parents
fifth degree) 2. The State 4. Illegitimate Parents
5. Surviving Spouse
6. Siblings, nephews and nieces
8. The State NO ONE NO ONE EVERYONE (of the intestate heirs)

NOTE
• Like the legitime, intestacy operates in rules of exclusion and concurrence. Know the heirs who will exclude the others and concur with others. Inversely,
know the heirs who are excluded by the existence of the other heirs. 

• Note under the table above:
1. “Legitimate children” include legitimate descendants and adopted children 

2. “Illegitimate children” include illegitimate descendants 

3. “Legitimate parents” include legitimate ascendants and adopted parents 

4. “Illegitimate parents” DO NOT INCLUDE illegitimate ascendants (you do not go beyond the illegitimate parents)
5. The State is always the last intestate heir. Thus, a person will always have an intestate heir. 


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 COMBINATIONS IN INTESTATE SUCCESSION
HEIRS LEGITIME INTESTATE (FREE PORTION) TOTAL PORTION/ BASIS
TOTAL TAKE HOME
Legitimate The whole estate, Art. 979
Children divided equally Art. 988
Illegitimate 1/2 of the estate Art. 985, 987
Children The rule in case of a
Art. 994, 995
surviving spouse and the
Legitimate But, 1/3 only in the case of Art. 993
marriage, being in
Parents a surviving spouse and the Art. 979
articulo mortis falling
marriage, being in articulo Art. 988
1/2 of the Estate under Art. 900, par. 2
Surviving Spouse mortis falling under Art. 900,
becomes irrelevant now Art. 985, 987
par. 2
since total intestacy
operates.
FREE PORTION – ½ of the
Illegitimate Estate
For the legitimate Art. 994, 995
Parents
ascendants, observe the
rule of division by line
Legitimate The whole estate, divided equally. But in case of full or half-blood siblings, proportion of Art. 1004,
Siblings 2:1 applies (half-blood sibling gets only 1/2 of the share of a full-blood sibling) 1006
By analogy
Illegitimate
The 2:1 rule also applies to full or half-blood nephews and nieces with Art. 1004,
Siblings
1006
Note that for nephews and nieces, they are NOT inheriting by representation but rather,
Nephews and in their own right, as there is no sibling (Art. 975)
Art. 975, 1008
Nieces None – no legitime
TOTAL TAKE HOME – The Whole Estate
FREE PORTION – The whole The whole estate, divided equally, between those of the same degree. But observe the
estate rule that the nearer in degree excluding the more remote
Other collaterals
Art. 1009,
(up to the fifth Note also that there is no representation nor full or half-blood distinction for the other
1010
degree) collateral relatives

NOTE – Per Capita

State The Whole Estate Art. 1011
a. IF LEGITIMES DO NOT EXCEED THE ESTATE – Apportion the
free portion between the children, but each
illegitimate child get only 1/2 the share of one
a. Legitimate Children – legitimate child. 

½ b. IF LEGITIMES EXCEED THE ESTATE –
No free portion,
b. Illegitimate Children – reduce share of illegitimate children (The legitime The whole estate, each Art. 983
Legitimate
Each will get ½ of prevails over intestacy, since you don’t even have illegitimate child getting
Children and
share of one enough for the legitimes, intestacy will not apply) 
 1/2 the share of one Art. 176 of the
Illegitimate
legitimate childe legitimate child. Family Code
Children
NOTE – This is a case where there may be no free portion as
FREE PORTION – Any Residue the legitimes may exceed the entire estate. Get the
Left legitimes first to determine whether it has been impaired, in
order to know whether there is a free portion that will pass
by intestacy. Remember that in this case, a proportionate
reduction must be made against the illegitimate children
a. Legitimate Child – ½ of
The whole estate,
Legitimate Child the estate
divided equally (the
and Surviving b. Surviving Spouse – ¼ of Apportion the free portion equally between the legitimate
surviving spouse
Spouse the estate children and the spouse (the surviving spouse counted as
counted as one
FREE PORTION – ¼ one legitimate child)
legitimate child)
a. Legitimate Child – ½ of Art. 996
the estate BUT – if only one legitimate child, then the entire free
If only one legitimate
Legitimate b. Surviving Spouse – portion of 1/4 is given to the surviving spouse (meaning the
child, then the child gets
Children and Share Equal to that of spouse is beneficiary of the entire intestate portion)
1/2, the surviving spouse
surviving Spouse one child
gets the other half
FREE PORTION – Any Residue
Left
a. LEGITIMATE CHILDREN: a. IF LEGITIMES DO NOT EXCEED THE ESTATE – Apportion the
1/2 of the estate 
 free portion between the children, but each
b. ILLEGITIMATE CHILDREN: illegitimate child get only 1/2 the share of one
Each will get 1/2 of legitimate child. The surviving spouse is counted as one

share of one legitimate child 
 The whole estate, the
legitimate child 
 b. IF LEGITIMES EXCEED THE ESTATE – No free portion (The surviving spouse being
Legitimate
c. SURVIVING SPOUSE: legitime prevails over intestacy, since you don’t even counted as one Art. 999 and
Children,
Share equal to that of have enough for the legitimes, intestacy will not apply) legitimate child and Art. 176 of the
Illegitimate
one legitimate child 
 
*This is the other case where there 
 each illegitimate child Family Code
Children and
*But if only one legitimate getting 1/2 the share of
Surviving Spouse
child, then legitime of NOTE – This is the other case where there may be no free one legitimate
spouse is 1/4 of the estate portion as the legitimes may exceed the entire estate. Get
only the legitimes first to determine whether it has been impaired,
FREE PORTION – Any residue in order to know whether there is a free portion that will pass
by intestacy. Remember that in this case, a proportionate
reduction must be made against the illegitimate children

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 COMBINATIONS IN INTESTATE SUCCESSION
HEIRS LEGITIME INTESTATE (FREE PORTION) TOTAL PORTION/ BASIS
TOTAL TAKE HOME
a. LEGITIMATE PARENTS – a. LEGITIMATE PARENTS – None a. LEGITIMATE
Legitimate 1/2 of the estate 
 b. ILLEGITIMATE CHILDREN – The Free ¼ of the estate 
 PARENTS – ½ of the
Parents and b. ILLEGITIMATE CHILDREN Estate
Art. 991
Illegitimate – 1/4 of the estate 
 b. ILLEGITIMATE
Children FREE PORTION – 1/4 CHILDREN – ½ of the
estate
a. LEGITIMATE PARENTS – a. LEGITIMATE PARENTS – None a. LEGITIMATE
Legitimate 1/2 of the estate 
 b. SURVIVNG SPOUSE – The ¼ of the estate. PARENTS – ½ of the
Parents and b. SURVIVNG SPOUSE – 1/4 Estate Art. 997
Surviving Spouse of the estate b. SURVIVNG SPOUSE –
FREE PORTION – ¼ ½ of the estate.
a. LEGITIMATE PARENTS: 1/2 a. LEGITIMATE PARENTS: None a. LEGITIMATE
of the estate b. ILLEGITIMATE CHILDREN: None PARENTS: ½ of the
Legitimate b. ILLEGITIMATE CHILDREN: c. SURVIVING SPOUSE: 1/8 of the estate
(The Free portion) Estate
Parents, 1/4 of the estate 
 b. ILLEGITIMATE
Illegitimate c. SURVIVING SPOUSE: 1/8 CHILDREN: ¼ of the Art. 1000
Children and of the estate
 Estate
Surviving Spouse c. SURVIVING
SPOUSE: ¼ of the
FREE PORTION – 1/8 Estate
c. SURVIVING SPOUSE: a. SURVIVING SPOUSE: 1/6 of the estate 
 a. SURVIVING
1/3 of the estate 
 b. ILLEGITIMATE CHILDREN: 1/6 of the estate SPOUSE: 1/2 of the
Surviving Spouse d. ILLEGITIMATE estate 

and Illegitimate CHILDREN: 1/3 of the (Each gets half of the free portion of 1/3)
 b. ILLEGITIMATE Art. 998
Children estate 
 CHILDREN: 1/2 of
the estate
FREE PORTION – 1/3
a. SURVIVING SPOUSE: a. SURVIVING SPOUSE: 1/4 of the estate 
 a. SURVIVING SPOUSE:
Surviving Spouse 1/4 of the estate 
 b. ILLEGITIMATE PARENTS: 1/4 of the estate 
 1/2 of the estate 

By analogy,
and Illegitimate b. ILLEGITIMATE PARENTS: b. ILLEGITIMATE
Art. 997
Parents 1/4 of the estate 
 PARENTS: 1/2 of the
FREE PORTION – 1/2 estate 

a. SURVIVING SPOUSE: a. SURVIVING SPOUSE: None 
 a. SURVIVING SPOUSE:
1/2 of the estate 
 b. LEGITIMATE SIBLINGS, NEPHEWS AND NIECES: 1/2 of the ½ of the Estate

Surviving Spouse
b. LEGITIMATE SIBLINGS, estate 
 b. LEGITIMATE
and Legitimate
NEPHEWS AND NIECES: SIBLINGS, NEPHEWS
Siblings, Art. 1001
None NOTE – that the legitimate nephews and nieces are AND NIECES: 1/2 of
Nephews and
inheriting either by representation (if they inherit with the estate 

Nieces
legitimate siblings) or in their own right (there is no legitimate
FREE PORTION – 1/2 sibling) (See Art. 975)
a. SURVIVING SPOUSE: a. SURVIVING SPOUSE: None 
 a. SURVIVING SPOUSE:
1/2 of the estate 
 b. LEGITIMATE SIBLINGS, NEPHEWS AND NIECES: 1/2 of the ½ of the Estate 

b. ILLEGITIMATE SIBLINGS, estate 
 b. LEGITIMATE
NEPHEWS AND NIECES: SIBLINGS, NEPHEWS
None Note that the illegitimate nephews and nieces are inheriting AND NIECES: 1/2 of
either by representation (if they inherit with illegitimate the estate 

Surviving Spouse
siblings) or in their own right (there is no illegitimate sibling)
and Illegitimate
(See Art. 975)
Siblings, Art. 994
Nephews and
Who are illegitimate siblings? These are the siblings of an
Nieces
illegitimate decedent. When the law speaks of ‘brothers
and sisters, nephews and nieces’ as legal heirs of an
illegitimate child, it refers to illegitimate brothers and sisters
as well as to the children, whether legitimate or illegitimate,
of such brothers and sisters (relate this with the iron curtain
FREE PORTION – 1/2 rule in Art. 992)
Legitimate The whole estate, divided equally. But in case of full or half-blood siblings, proportion of
Siblings, 2:1 applies (half-blood sibling gets only 1/2 of the share of a full-blood sibling) Art. 1005,
Nephews and 1008
Nieces None The 2:1 rule also applies to full or half-blood nephews and nieces

Illegitimate FREE PORTION – Whole Note that the legitimate nephews and nieces are inheriting either by representation (if
Estate they inherit with legitimate siblings) or in there own right (there is no legitimate sibling) By Analogy,
Siblings,
(See Art. 975) Art. 1005,
Nephews and
1008
Nieces
TOTAL TAKE HOME – Whole estate
Illegitimate NOTE THESE CERTAIN RULES OF EXCLUSION Art. 993
Parents and 1. Children of any kind EXCLUDE illegitimate parents
Children of Any 2. Nephews and nieces EXCLUDE uncles and aunts (Art. 1009 and Bacayo v. Borromeo 1986) (This is another
Kind exception to the rule that relatives of the same degree inherit equally.
Nephews and Art. 1009,
Nieces and IN THESE CASESE, follow the rules of those not excluded. Bacayo v.
Uncles and Aunts Borromeo

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NOTE UNDER THE TABLE ABOVE:
• “Legitimate children” include legitimate descendants and adopted children 

• “Illegitimate children” include illegitimate descendants 

• “Legitimate parents” include legitimate ascendants and adopted parents 

• “Illegitimate parents” DO NOT INCLUDE illegitimate ascendants (you do not go beyond the illegitimate parents) 


PARTIAL INTESTACY – TO WHOM WILL THE REMAINING FREE PORTION BE GIVEN

FREE PORTION GIVEN TO ONE OR ONE GROUP OF FREE PORTION DIVIDED EQUALLY BETWEEN THE
FREE PORTION DIVIDED 2:1 ACCORDINGLY
INTESTATE HEIR INTESTATE HEIRS
1. GIVE TO THE SOLE INTESTATE HEIR – When This is if the remaining intestate heirs are the This is if the remaining intestate heirs are the
there is only one or one group of following: following:
intestate heir 1. Legitimate Children and Surviving 1. Legitimate Children and Illegitimate
2. GIVE TO SURVIVING SPOUSE – If intestate Spouse 
 Children 

heirs are either: 2. Surviving Spouse and Illegitimate 2. Legitimate Children, Illegitimate
a. Legitimate Child and Children 
 Children, and Surviving Spouse 

Surviving Spouse 
 3. Surviving Spouse and Illegitimate 3. Legitimate Siblings, Nephews and
b. Legitimate Parents and Parents 
 Nieces 

Surviving Spouse 
 4. Illegitimate Siblings, Nephews and
c. Legitimate Parents, Nieces
Illegitimate Children, and
Surviving Spouse 
 NOTE
3. GIVE TO ILLEGITIMATE CHILDREN – If • For siblings, nephews and nieces, only if
intestate heirs are Legitimate Parents if there are full-blood and half-blood
and Illegitimate Children • Illegitimate or half-blood get only 1/2 of
4. GIVE TO SIBLINGS, NEPHEWS AND NIECES what legitimate or full-blood gets
– If intestate heirs are either:
a. Surviving Spouse and
Legitimate Siblings, Nephews
and Nieces 

b. Surviving Spouse and
Illegitimate Siblings,
Nephews and Nieces 


BALANE – The problem of partial intestacy is an unnecessary one. There is a If you follow Art. 983 literally, 2 : 2 : 1 : 1 : 1 : 1 : 1 assuming the decedent died after
problem because the civil code does not provide for such situation. This is the the Family Code took effect.
bad news. The good news is that all the major commentators have a similar
solution, which is the most logical. 
 A = 40,000
• The combinations laid down by the preceding articles (978-1014) B = 40,000
cover only cases of total intestacy. Nowhere in this Chapter or C = 20,000
elsewhere can one find provisions to govern cases of partial intestacy; D = 20,000
Instances where the decedent has left a will disposing of part, but not E = 20,000
all, of the disposable portion. How then should the estate be divided F = 20,000
if the decedent died with a will but the will does not dispose of the F = 20,000
entire free or disposable portion? 
 G = 20,000
• The problem is solved by inference, bearing in mind the law’s intent,
thus: But the legitime of A and B is impaired.
a. Trace where the intestate or free portion went in total Legitime of A and B = 90,000
intestacy. 
 Share of A and B 80,000
b. Since part of that free portion was disposed of by will, the Legitime lacks 10,000
testamentary provision should be carried out,
c. What is left of the free portion should then be given to the Since Art. 983 impairs the legitime, follow this two- step process:
intended beneficiary in intestacy. 
 a. Give the legitime first. (Give to the legitimate first before the
illegitimate.)
NOTE – You don’t simply divide the free portion. b. THUS
a. If there is an excess, divide it according to the ratio of 2 : 1
EXAMPLE – The net estate of A is 12 million. or 10 : 5 : 4 depending on the circumstances
• His compulsory heirs are his legitimate parents, and surviving spouse. b. If lacking, reduce the share of illegitimate children pro-
• Then A institutes a third person to 1/8 of his estate. rata.
• If A dies, you cannot divide the 12 million into 1/2 to parents (as
legitime), 1/4 to spouse (as legitime) and 1/8 to third person. In the illustration:
• Where will the remaining intestate portion of 1/8 go? To the spouse
alone. Why? since under Art. 997, if it had been total intestacy, the A = 45,000
entire free portion would have gone solely to the spouse, thus, in B = 45,000
partial intestacy, the free portion should also go solely to the spouse. C = 22,500
• BALANE – The obvious intention of the law is to give it the free portion D = 22,500
to the spouse. Whats left of the free portion should go to the intestate E = 22,500
heir to whom it is meant to go if there was no will (in total intestacy). F = 22,500
G = 22,500
REMEMBER – Legitimes cannot be impaired. TOTAL 202,500
• GOOD NEWS: Just follow the rules, the legitimes will never be impaired.
They are automatically covered by the rules. The estate lacks 22,500
• BAD NEWS: Art. 983, which covers the combination of legitimate and Reduce the shares of illegitimate children pro-rata = 22,500/ 5 = 4,500 each. The
illegitimate children, might impair the legitime. share of each illegitimate child will equal 18,000.

Illustration: X's estate is worth P180,000. NOTE – 1. An adopted child is treated as a legitimate child.
2. Spouse receives shares if:
X a. The valid is marriage
------------------------------- b. Violable but not annulled
| | | | | | | c. If legally separated, apply the same rules as in legitimes.
A B C D E F G

NOTE – C, D, E, F and G are illegitimate children.

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SECTION 2. - ORDER OF INTESTATE SUCCESSION
SUBSECTION 1. - DESCENDING DIRECT LINE
Art. 978. Succession pertains, in the first place, to the descending direct
line. (930)
Art. 979. Legitimate children and their descendants succeed the parents
and other ascendants, without distinction as to sex or age, and even if they
should come from different marriages.
An adopted child succeeds to the property of the adopting parents in the
same manner as a legitimate child. (931a)
Art. 980. The children of the deceased shall always inherit from him in their
own right, dividing the inheritance in equal shares. (932)
Art. 981. Should children of the deceased and descendants of other
children who are dead, survive, the former shall inherit in their own right, and
the latter by right of representation. (934a)
Art. 982. The grandchildren and other descendants shall inherit by right of
representation, and if any one of them should have died, leaving several
heirs, the portion pertaining to him shall be divided among the latter in equal
portions. (933)
BAVIERA – Only legitimate descendants
• GENERAL RULE – Art. 982
• EXCEPTION – Art. 992 – An illegitimate child has no right to inherit
ab intestato from the legitimate children and relatives of his
father or mother; nor shall such children or relatives inherit in the
same manner from the illegitimate child.
NOTE
• This applies only to child, not descendant
• This is called the "iron curtain rule."
Art. 983. If illegitimate children survive with legitimate children, the shares of
the former shall be in the proportions prescribed by Article 895. (n)
BAVIERA – ARTICLE 895 - note article 176 FC - Illegitimate child is entitled to
1/2 of share of a legitimate child. The legitime of the illegitimate child shall
be taken from the free portion, provided in no case shall the total legitime
of illegitimate child exceed the free portion, and the legitime of surviving
spouse must first be fully satisfied.
Art. 984. In case of the death of an adopted child, leaving no children or
descendants, his parents and relatives by consanguinity and not by
adoption, shall be his legal heirs. (n)
CASE – SAYSON V. CA
• In the case of adopted children, while it is true that the adopted
child shall be deemed to be a legitimate child and have the
same rights as the latter, these rights do not include the right of
representation. The relationship created by the adoption
between only the adopting parents and the adopted child and
does not extend to the blood relatives of either party.
RULE OF SUCCESSION OF AN ADOPTED CHILD
1. The adopted child inherits from his adopter in exactly the same
way and exactly the same extent as a legitimate child
2. The adopted child remains an heir of his biological parents and
other blood relative (as if there was no adoption) This applies to
both compulsory and intestate succession.
SUBSECTION 2. - ASCENDING DIRECT LINE
Art. 985. In default of legitimate children and descendants of the deceased,
his parents and ascendants shall inherit from him, to the exclusion of
collateral relatives. (935a)
Art. 986. The father and mother, if living, shall inherit in equal shares.
Should one only of them survive, he or she shall succeed to the entire estate
of the child. (936)
Art. 987. In default of the father and mother, the ascendants nearest in
degree shall inherit.
Should there be more than one of equal degree belonging to the same line
they shall divide the inheritance per capita; should they be of different lines
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but of equal degree, one-half shall go to the paternal and the other half to
the maternal ascendants. In each line the division shall be made per
capita. (937)
SUBSECTION 3. - ILLEGITIMATE CHILDREN
Art. 988. In the absence of legitimate descendants or ascendants, the
illegitimate children shall succeed to the entire estate of the
deceased. (939a)
Art. 989. If, together with illegitimate children, there should survive
descendants of another illegitimate child who is dead, the former shall
succeed in their own right and the latter by right of representation. (940a)
Art. 990. The hereditary rights granted by the two preceding articles to
illegitimate children shall be transmitted upon their death to their
descendants, who shall inherit by right of representation from their
deceased grandparent. (941a)
Art. 991. If legitimate ascendants are left, the illegitimate children shall divide
the inheritance with them, taking one-half of the estate, whatever be the
number of the ascendants or of the illegitimate children. (942-841a)
Art. 992. An illegitimate child has no right to inherit ab intestato from the
legitimate children and relatives of his father or mother; nor shall such
children or relatives inherit in the same manner from the illegitimate
child. (943a)
BAVIERA
• This applies only to child, not descendants
• This is called the IRON CURTAIN RULE— this is the successional
barrier between the legitimate and illegitimate relatives of the
decedent.
NOTE
• An illegitimate cannot inherit from legitimate
• Legitimate cannot also inherit from the illegitimate
• BUT an illegitimate can inherit from another illegitimate.
CASE – CORPUS V. ADMINISTRATOR
• Since Teodoro Yangco was an acknowledged natural child or
was illegitimate and since Juanita Corpus was the legitimate
child of Jose Corpus, himself was a legitimate child, we hold that
the appellant Tomas Corpus has no cause of action for recovery
of the supposed hereditary share of his mother, Juanita Corpus,
as legal heir, in Yangco’s estate. Juanita Corpus was not a legal
heir of Yangco because there is no reciprocal succession
between legitimate and illegitimate relatives.
• This rule is based on the theory that the illegitimate child is
disgracefully looked upon by the legitimate family, while the
legitimate family is in turn hated by the illegitimate child. The law
does not recognize the blood tie and seeks to avoid further
grounds of resentment.
CASE – LEONARDO V. CA
• Even if the petitioner is the child of Leonardo, still he cannot, by
representation, claim a share of the estate left by the deceased
Reyes considering that he was born out of wedlock. His alleged
putative father and mother were then not yet married. At most,
petitioner is an illegitimate child who has no right to inherit ab
intestate from the legitimate children and relatives of his father,
like the deceased Reyes.
CASE – MANUEL V. FERRER
• This is the principle of absolute separation between the legitimate
family and the illegitimate family. The doctrine rejects succession
ab intestate in the collateral line between legitimate relatives on
one hand and the illegitimate relatives on the other.
• What is meant by the law when it speaks of brothers and sisters,
nephews and nieces, as legal or intestate heirs of an illegitimate
child? It is clear that by virtue of this barrier, the legitimate
brothers and sister, as well as the children, whether legitimate or
illegitimate, of such brothers and sisters, cannot inherit from said
ilegitimate child.
CASE – DIAZ V. IAC
• Art. 992 provides a barrier or iron curtain in that it prohibits
absolutely a succession ab intestate between
1. Illegitimate child and
2. The legitimate children and relatives of the father or
mother of the legitimate child
• Between the legitimate family and the illegitimate family, it is
presumed to be an intervening antagonism and incompatibility.
 • Art. 902, 989 and 990 clearly speak of successional rights of
illegitimate children, which rights are transmitted to their
descendant upon their death. The descendant of these
illegitimate children, who may inherit by virtue of representation
may either be legitimate or illegitimate.
• In whatever manner, one should not overlook the fact that the
person to be represented are themselves illegitimate. The right of
representation is not available to illegitimate descendant of
legitimate children, in the inheritance of a legitimate
grandparent.
• The right to represent legitimate children however is subject to
the limitation prescribed in ART. 992 to the end that an illegitimate
child has no right to inherit ab intestate from the legitimate
children and relatives of his father or mother.
• While the NCC may have granted successional rights to
illegitimate children. They however, read in conjunction with Art.
992, prohibit the right of representation from being exercised
where the person to be represented is a legitimate child.
Needless to say, the determining factor is the legitimacy or
illegitimacy of the person to be represented.
IF THE PERSON TO BE REPRESENTED IF THE PERSON TO BE REPRESENTED
IS AN ILLEGITIMATE CHILD IS A LEGITIMATE CHILD
The his descendant, whether His illegitimate descendant
legitimate or illegitimate, may cannot represent him because
represent him. the law provides that only his
legitimate descendant may
exercise the right of
representation by virtue of ART.
992.
Art. 993. If an illegitimate child should die without issue, either legitimate or
illegitimate, his father or mother shall succeed to his entire estate; and if the
child's filiation is duly proved as to both parents, who are both living, they
shall inherit from him share and share alike. (944)
Art. 994. In default of the father or mother, an illegitimate child shall be
succeeded by his or her surviving spouse who shall be entitled to the entire
estate.
If the widow or widower should survive with brothers and sisters, nephews
and nieces, she or he shall inherit one-half of the estate, and the latter the
other half.(945a)
SUBSECTION 4. - SURVIVING SPOUSE
Art. 995. In the absence of legitimate descendants and ascendants, and
illegitimate children and their descendants, whether legitimate or
illegitimate, the surviving spouse shall inherit the entire estate, without
prejudice to the rights of brothers and sisters, nephews and nieces, should
there be any, under article 1001. (946a)
Art. 996. If a widow or widower and legitimate children or descendants are
left, the surviving spouse has in the succession the same share as that of
each of the children. (834a)
Art. 997. When the widow or widower survives with legitimate parents or
ascendants, the surviving spouse shall be entitled to one-half of the estate,
and the legitimate parents or ascendants to the other half. (836a)
Art. 998. If a widow or widower survives with illegitimate children, such widow
or widower shall be entitled to one-half of the inheritance, and the
illegitimate children or their descendants, whether legitimate or illegitimate,
to the other half. (n)
Art. 999. When the widow or widower survives with legitimate children or
their descendants and illegitimate children or their descendants, whether
legitimate or illegitimate, such widow or widower shall be entitled to the
same share as that of a legitimate child. (n)
Art. 1000. If legitimate ascendants, the surviving spouse, and illegitimate
children are left, the ascendants shall be entitled to one-half of the
inheritance, and the other half shall be divided between the surviving
spouse and the illegitimate children so that such widow or widower shall
have one-fourth of the estate, and the illegitimate children the other
fourth. (841a)
Art. 1001. Should brothers and sisters or their children survive with the widow
or widower, the latter shall be entitled to one-half of the inheritance and the
brothers and sisters or their children to the other half. (953, 837a)
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Art. 1002. In case of a legal separation, if the surviving spouse gave cause
for the separation, he or she shall not have any of the rights granted in the
preceding articles. (n)
CASE – SANTILLON VS. MIRANDA
• Art. 892 of the New Civil Code falls under the chapter on
Testamentary Succession; whereas Art. 996 comes under the
chapter on Legal or Intestate Succession. Such being the case, it
is obvious that the child cannot rely on Art. 892 to support his
claim to 3/4 of his father's estate. Art 892 merely fixes the legitime
of the surviving spouse and Art. 888 thereof, the legitime of
children in testate succession. While it may indicate the intent of
the law with respect to the ideal shares that a child and a spouse
should get when they concur with each other, it does not fix the
amount of shares that such child and spouse are entitled to when
intestacy occurs. Because if the latter happens, the pertinent
provision on intestate succession shall apply, i.e., Art. 996. 

• Since this is intestate proceedings. The only article applicable is
Art. 996
• Art. 996 could or should be read (and so applied) : "If the widow
or widower and a legitimate child are left, the surviving spouse
has the same share as that of the child."
• Indeed, if we refuse to apply the article to this case on the ground
that "child" is not included in "children," the consequences would
be tremendous, because "children" will not include "child" in the
other articles
• Court said that “children” in Art. 996 includes “child” (if there is
only one)
TESTATE SUCCESSION INTESTATE SUCCESSION
Where there is only one child The child gets ½ and the surviving
surviving the spouse, the child gets spouse also gets ½
½ and the surviving spouse get ¼
SUBSECTION 5. - COLLATERAL RELATIVES
Art. 1003. If there are no descendants, ascendants, illegitimate children, or
a surviving spouse, the collateral relatives shall succeed to the entire estate
of the deceased in accordance with the following articles. (946a)
Art. 1004. Should the only survivors be brothers and sisters of the full blood,
they shall inherit in equal shares. (947)
Art. 1005. Should brothers and sisters survive together with nephews and
nieces, who are the children of the descendant's brothers and sisters of the
full blood, the former shall inherit per capita, and the latter per stirpes. (948)
Art. 1006. Should brother and sisters of the full blood survive together with
brothers and sisters of the half blood, the former shall be entitled to a share
double that of the latter. (949)
Art. 1007. In case brothers and sisters of the half blood, some on the father's
and some on the mother's side, are the only survivors, all shall inherit in equal
shares without distinction as to the origin of the property. (950)
Art. 1008. Children of brothers and sisters of the half blood shall succeed per
capita or per stirpes, in accordance with the rules laid down for the brothers
and sisters of the full blood. (915)
Art. 1009. Should there be neither brothers nor sisters nor children of brothers
or sisters, the other collateral relatives shall succeed to the estate.
The latter shall succeed without distinction of lines or preference among
them by reason of relationship by the whole blood. (954a)
Art. 1010. The right to inherit ab intestato shall not extend beyond the fifth
degree of relationship in the collateral line. (955a)
CASE – INING V. VEGA
• One who is merely related by affinity to the decedent does not
inherit from the latter and cannot become a co-owner of the
decedent’s property. Consequently, he cannot effect a
repudiation of the co-ownership of the estate that was formed
among the decedent’s heirs. Family relations, which is the
primary basis for succession, exclude relations by affinity
SUBSECTION 6. - THE STATE
Art. 1011. In default of persons entitled to succeed in accordance with the
provisions of the preceding Sections, the State shall inherit the whole
estate. (956a)
Art. 1012. In order that the State may take possession of the property
mentioned in the preceding article, the pertinent provisions of the Rules of
Court must be observed. (958a)

Art. 1013. After the payment of debts and charges, the personal property
shall be assigned to the municipality or city where the deceased last resided
in the Philippines, and the real estate to the municipalities or cities,
respectively, in which the same is situated.

If the deceased never resided in the Philippines, the whole estate shall be
assigned to the respective municipalities or cities where the same is located.

Such estate shall be for the benefit of public schools, and public charitable
institutions and centers, in such municipalities or cities. The court shall
distribute the estate as the respective needs of each beneficiary may
warrant.

The court, at the instance of an interested party, or on its own motion, may
order the establishment of a permanent trust, so that only the income from
the property shall be used. (956a)

Art. 1014. If a person legally entitled to the estate of the deceased appears
and files a claim thereto with the court within five years from the date the
property was delivered to the State, such person shall be entitled to the
possession of the same, or if sold the municipality or city shall be
accountable to him for such part of the proceeds as may not have been
lawfully spent. (n)

Q – How is the descendant assets disposed in favor of the State?

IF THE DECEDENT WAS A RESIDENT IF DECEDENT NEVER A RESIDENT OF

OF THE PH AT ANY TIME THE PH
Personal Property – to municipality Personal and real property—
of last residence where respectively situated

Real Property – where situated. Lex situs is observed

HOW PROPERTY IS TO BE USED
• For the benefit of public educational and charitable
institutions in the respective municipalities/cities; 

• Alternatively, at the instance of an interested party, or motu
proprio, court may order creation of a permanent trust for the
benefit of the institutions concerned. 


IF THE ESTATE HAS BEEN GIVEN TO THE STATE BUT A PERSON LEGALLY ENTITLED
LATER APPEARS 

• Any person entitled by succession to the estate may file a claim
with the court
• This would include any heir by any kind of succession: the
legitime, testamentary, or intestate 

• Such person shall be entitled to the possession of the same, or if
sold, the municipality or city shall be accountable to him for such
part of the proceeds as may not have been lawfully spent
• Prescriptive period for claim—5 years from the delivery of the
property to the State (the political subdivision concerned). 


.
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 CHAPTER 4 In case of money or fungible goods, if the share of each heir is not
PROVISIONS COMMON TO TESTATE AND INTESTATE SUCCESSIONS earmarked, there shall be a right of accretion. (983a)

SECTION 1. - RIGHT OF ACCRETION
Art. 1015. Accretion is a right by virtue of which, when two or more persons
are called to the same inheritance, devise or legacy, the part assigned to
the one who renounces or cannot receive his share, or who died before the
testator, is added or incorporated to that of his co-heirs, co-devisees, or co-
legatees. (n)
Article 1023. Accretion shall also take place among devisees, legatees
and usufructuaries under the same conditions established for heirs.
(987a)
Art. 1018. In legal succession the share of the person who repudiates the
inheritance shall always accrue to his co-heirs. (981)
BALANE – Accretion takes place only if there is no representation.
SOME RULES FROM ART. 1018 BY IMPLICATION
1. In renunciation, there is always accretion. Why? Because there
is no representation in renunciation. This applies only to intestacy
and testamentary succession.
2. In intestacy, apply representation first. If there is none, then
accretion will apply.
3. In testamentary succession, apply substitution first. If there is no
substitution, then accretion will apply.

Art. 1016. ELEMENTS OF ACCRETION – In order that the right of accretion may
take place in a testamentary succession, it shall be necessary:
1. That two or more persons be called to the same inheritance, or to
the same portion thereof, pro indiviso; and
Q – What does pro-indiviso mean? It means undivided or in
common.
a. The co-heirs are instituted without individual
designation of shares
Ex: “I institute A and B to one-half of my estate”
b. The co-heirs are instituted with the specification that
they share equally (“in equal shares”) or that they
have the same fractional sharing (“one-half or one-
third, etc.) for each (Article 1017)
Ex: ““I institute A, B, and C to one-half of my estate in
equal shares.” or “I institute A, B, and C to one-half of
my estate, each of them to take one-third of that one-
half.”
c. The co-heirs are instituted but their fractional sharings
are unequal
Art. 1019. The heirs to whom the portion goes by the right of accretion take
it in the same proportion that they inherit. (n)
BALANE – This implies proportion is different. This applies in intestacy and
not to testamentary (succession.) In testamentary (succession), shares are
always equal becaue of designation of shares. In intestacy, it is possible to
have different shares. E.g., full and half blood.
EXAMPLE,
A
X B
C
D
Estate = 600,000. If C predecease X, then
B = 200,000 + 40,000 = 240,000
C = 200,000 + 40,000 = 240,000
D = 100,000 + 20,000 = 120,000
Share of C divided in the proportion they were to inherit.
Art. 1020. The heirs to whom the inheritance accrues shall succeed to all the
rights and obligations which the heir who renounced or could not receive it
would have had. (984)

Ex: “I institute A, B, and C to one-half of my estate; of BALANE

this one-half, A is to get 1/2; B, 1/3; and C, 1/6”. 1. Co-heirs get (their) share with the same obligations and
conditions.
Thus, if the shares are earmarked (designated), then accretion 2. Can representatives get accretion? Yes. If person represented
does NOT operate will get the accretion, then the representative should (also) get
the accretion.
Ex: “I give my house in Makati to A, house in Quezon City to B,
house in Manila to C. No pro-indiviso sharing here because the ILLUSTRATION
properties have been specifically earmarked to specific persons. a1
Meaning if A predeceases, accretion cannot operate in favour ------A /
of the other legatees.” | \ a2
|
2. That one of the persons thus called die before the testator, or | ----B
renounce the inheritance, or be incapacitated to receive X ---- |
it. (928a) | ----C
|
Q – When will accretion take place? -----D
1. Predecease
2. Renunciation Estate is worth 600. A predeceased X. B renounced.
3. Incapacity • If all present, then 150 each.
• a1 and a2 = 150 + 50 = 200
PROVIDED – only some and not all of the instituted heirs give ground. These • C = 150 + 50 = 200
are the same grounds for simple substitution • D = 150 + 50 = 200

Q – When will accretion take place in intestacy?
1. Predecease – only if there is no representation
2. Renunciation – always
3. Incapacity – only if there is no representation.
IN SHORT – In intestacy, accretion is subordinate to representation.
B's share acquired by the others by accretion – 150
• a1 and a2 get accretion because they represent A in A's rights
as if A is still around. They stand in the same position as a person
represented.
• a1 and a2 get 75 each by right of representation, and 25 each
by accretion.

ART. 1018 – In legal succession, the share of the person who repudiates the Q – How does accretion operate?
inheritance shall always accrued to his co-heirs. 1. Accretion should be proportional.
2. Heir in whose favor accretion applies succeeds to all the rights
Art. 1017. The words "one-half for each" or "in equal shares" or any others and obligations which the unqualified heir would have received
which, though designating an aliquot part, do not identify it by such
description as shall make each heir the exclusive owner of determinate EXCEPTION
property, shall not exclude the right of accretion. 1. In testamentary succession, if the testator provides
otherwise 


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 2. If the obligation is purely personal, and hence
intransmissible 


Art. 1021. Among the compulsory heirs the right of accretion shall take place
only when the free portion is left to two or more of them, or to any one of
them and to a stranger.

Should the part repudiated be the legitime, the other co-heirs shall succeed
to it in their own right, and not by the right of accretion. (985)

RULE – IN THE LEGITIME, NOTHING GOES BY ACCRETION. ACCRETION DOES

NOT OPERATE IN COMPULSORY SUCCESSION (ART. 1021, 2ND PAR.)
• A has three sons, X, Y, and Z. If X predeceases and he has no
children or descendants, the legitime of the legitimate children
(which is 1/2 of the estate) is divided between Y and Z. They do
not get the share of X by accretion, but rather, by their own right
as the remaining compulsory heirs, accretion does not operate.
But assuming that X has children, then his legitime will go to his
children by right of representation.” 

• A makes a will and institutes his 2 sons X and Y, and his brother Z
to his entire estate. X has no children/ descendants. A dies, but X
predeceases him. 1/2 of the estate will immediately go to Y, as
his legitime (not by accretion by by his own right in compulsory
succession), the remaining 1/2 will be divided to X, Y and Z
equally, thus 1/6 each. But since X predeceases, then his 1/6
share will go to Y and Z equally, or 1/12 each, by accretion 

o Note that the institution of X, Y and Z to the entire
estate (or 1/3 each) is interpreted to mean that it is 1/3
of the free portion only, because under Art. 1063,
testamentary disposition is imputed to the free portion
unless the testator provides otherwise

Art. 1022. In testamentary succession, when the right of accretion does not
take place, the vacant portion of the instituted heirs, if no substitute has
been designated, shall pass to the legal heirs of the testator, who shall
receive it with the same charges and obligations. (986)

NOTE – In testamentary succession, accretion and substitution may overlap.

But the substitution will prevail over the accretion. This is because substitution
is the testator’s express intent, while accretion is merely implied intent.

If there is neither substitution nor accretion, the vacant will go by way of

intestacy,

Art. 1023. Accretion shall also take place among devisees, legatees and
usufructuaries under the same conditions established for heirs. (987a)

COMPARISON – ACCRETION, SUBSTITUTION AND REPRESENTATION

SUBSTITUTION
ACCRETION REPRESENTATION
(SIMPLE)
A co-heir, co- The The
devisee, or co- appointed representative
legatee is added heir (compulsory or
or incorporated (substitute) intestate heir) is
to the share of his enters into raised to the
co-heirs, co- the place and the
devisees, or co- inheritance in degree of the
legatees. (Art. default of the person
EFFECT
1015) heir originally represented, and
instituted (Art. acquires the
857) rights which the
latter would have
if he were living or
if he could have
inherited. (Art.
970)
IN WHAT 1. Intestate Testamentary 1. Compulsory
MODE OF 2. Testamentary 2. Intestate
SUCCESSION
IT OPERATES
1. Predecease 1. Predecease
CAUSES 2. Renunciation 2. Incapacity
3. Incapacity 3. Disinheritance

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SECTION 2. - CAPACITY TO SUCCEED BY WILL OR BY INTESTACY
Art. 1024. Persons not incapacitated by law may succeed by will or ab
intestato.
The provisions relating to incapacity by will are equally applicable to
intestate succession. (744, 914)
Q – Who may succeed by will or by intestacy?
• Any person having capacity to succeed, as long as he has
juridical personality.
• Incapacity must be based on some legal ground and must be
shown.
BALANE
• PAR. 1 – Ab intestato refers both to legitime and intestacy.
• PAR. 2 – Mistake - not true. Incapacity to succeed by will, 1027,
1028 and 1032, are they applicable to intestacy? Not all.
a. APPLIES ONLY TO INCAPACITY BY WILL – Articles 1027,
paragraphs 1 to 5, 1028 (applicable only in
testamentary succession.)
b. APPLIES TO BOTH – Articles 1027, par. 6, 1032.)
Q – Who may inherit?
• Both a natural person and a juridical person.
Art. 1025. In order to be capacitated to inherit, the heir, devisee or legatee
must be living at the moment the succession opens, except in case of
representation, when it is proper.
A child already conceived at the time of the death of the decedent is
capable of succeeding provided it be born later under the conditions
prescribed in article 41. (n)
Article 41. For civil purposes, the foetus is considered born if it is alive at
the time it is completely delivered from the mother's womb. However, if
the foetus had an intra-uterine life of less than seven months, it is not
deemed born if it dies within twenty-four hours after its complete delivery
from the maternal womb.
Article 40. Birth determines personality; but the conceived child shall be
considered born for all purposes that are favorable to it, provided it be
born later with the conditions specified in the following article.
BALANE – Both natural and juridical persons have the capacity to succeed
(unless there are grounds for incapacity), but for making a will, only natural
persons are capacitated to make a will.
Q – What are the requisites for succeeding?
• The heir must be living when the succession opens, which is at the
time of the death of the decedent.
• In cases of representation, the representative must be alive when
the decedent dies.
• The requirement applies regardless whether the institution is
subject to a suspensive condition or term, but may be subject to
additional requirements.
Q – What does LIVING mean?
• See Art. 41 for general rule. The exception is in Art. 40 (for
posthumous children)
• It is enough that the heir, devisee, or legatee be already
conceived when the decedent dies, provided it be born later, in
accordance with Articles 40 & 41.
• Inheriting is favorable to the child.
Q – Is representation an exception to this requirement?
• NO. The requirement that the heir must be alive when the
succession opens is ABSOLUTE. Representation is NOT an
exception to this requirement.
• The representative must be alive when the decedent dies. (ART.
971 and 973).
ILLUSTRATION 1
• Ex: “X has two sons—A and B—and B was disinherited by X. X died
in 1985. In 1988 B begot a child. B’s child cannot represent B in
the succession to X.”
• How about in the reserva troncal where the reservatarios are not
required to be alive when the prepositus dies? Note that several
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cases say that the reservatarios inherit from the prepossess (Cases
of Cano, Gonzales, etc)
• BALANE – NOT an exception, the reservatarios do not really inherit
from the prepositus, they only inherit from “in a manner of
speaking”. They really inherit by virtue of the special law on the
reserva troncal.
ILLUSTRATION 2
X
/ | \
A B C
|
b1
1. B dies on Jan. 1996. B's wife is pregnant. X dies in March 1996.
b1 is born in July 1996. Was b1 alive when X died? Yes. Art. 41,
the foetus is considered alive from the moment of conception.
This is not an exception bec. b1 is alive.
2. B is disinherited in 1996. X dies in 1997. b1 is born in 1999.
a. Can b1 represent B? No. He was not living at the
time X died.
b. Can b1 inherit from X? No. Art. 1025, par. 1.
IF INSTITUTION SUBJECT TO A IF INSTITUTION SUBJECT TO A
SUSPENSIVE CONDITION SUSPENSIVE TERM
• Successor must also be living The requirement of being alive
when condition happens applies only at the moment of the
(Article 1034, par. 3).
 decedent’s death, the successor
• The successor must be living need not be alive when the term
both arrives. (Art. 878)
1. when the decedent dies and
2. when the condition happens.
NOTE – Requirement #1 is ABSOLUTE for both cases. Not even
representation is an exception because for representation to occur, the
representative, must also be at least already conceived when the
decedent dies. (ART. 971 and 973)
NOTE – This table also applies to juridical persons.
CASE – PARISH PRIEST OF TARLAC V. RIGOR
• F – there was a devise in favor of the nearest male relative who
would become a parish priest, who was forbidden to sell such
land and would lose the devise if he discontinued his studies for
the priesthood.
• I – The time when the nearest male relative would study for the
priesthood should be determined. Did the testator contemplate
only his nearest male relative at the time of his death or at any
time AFTER his death?
• H – ONLY AT THE TIME OF HIS DEATH. Not an indefinite time
thereafter. In order to be capacitated to inherit, the HDL must be
living at the moment the succession opens. To construe them as
referring to the testator’s nearest relative at any time after this
death would create uncertainty as to the disposition of his estate.
The testator must have known that such a broad provision would
suspend for an unlimited period of time the efficaciousness of his
bequest.
• Since the testator was NOT survived by any nephew who
became a priest, the devise in question was ineffectual or
inoperative.
• B – In the case, the priest provided that his estate will go to any
of the nephews who may enter the priesthood. The nephew
claiming, however, was born after the priest had died. As such,
the nephew cannot inherit.
Art. 1026. A testamentary disposition may be made to the State, provinces,
municipal corporations, private corporations, organizations, or associations
for religious, scientific, cultural, educational, or charitable purposes.
All other corporations or entities may succeed under a will, unless there is a
provision to the contrary in their charter or the laws of their creation, and
always subject to the same. (746a)
Q – Can you make a testamentary disposition in favor of JURIDICAL
PERSONS?
• GENERAL RULE – Yes, provided that
1. It is allowed by their charter.
2. The juridical person must already exist as a juridical
person when the decedent dies.
 NOTE – Organizations or associations which do not possess
juridical personality cannot succeed, because legally they would
not exist. See ART. 44 CC.
• EXCEPTION – See BARLIN V. RAMIREZ CASE
• For institutions subject to suspensive conditions or terms, the rules
for natural persons also apply. 
 disqualification. It should have been made a separate article.
Art. 44. The following are juridical persons:
1. The State and its political subdivisions;
2. Other corporations, institutions and entities for public interest
or purpose, created by law; their personality begins as soon
as they have been constituted according to law;
3. Corporations, partnerships and associations for private
interest or purpose to which the law grants a juridical
personality, separate and distinct from that of each
shareholder, partner or member. (35a)
CASE – BARLIN V. RAMIREZ
• F – Priests were already been in existence in the Municipality of
Lagonoy since 1839. January 13,1869 the church and convent
were burned. They were rebuilt between 1870 and 1873.
Rebuilding process were ordered by the Governor and was the
laborers were the people from the barangay as perthe order of
the Cabeza De Barangay. The materials and funds that were
used on the renovation were from the parish priests funds. A
complaint was filed alleging that defendant, Ramirez, was in
possession of the property under the authority and with the
consent of the municipality of Lagonoy and that such
municipality was the owner thereof.
• I – Whether or not that the subject property where in the said
church situated were owned by the government or by the
Catholic Church having the capacity as Juridical Personality.
• H – The court decided to hold its decision in favor of the Catholic
Church because of its Juridical Personality here in the Philippines,
It is not necessary to show that the church as a juridical person
was the owner of the buildings. It is sufficient to say that this right
to the exclusive possession and control of the same, for the
purposes of its creation, existed. The Church belongs to God and
the use of the Church should be to glorify God which is the
Catholic Church used to do. The Ownership of the Churches in
the Philippines is not covered by the treaty of Paris which were
contracted between U.S. and Spain.
BALANE – You cannot institute a corporation to be organised and
incorporated in the future, but you can place it in a trust. In the case of a
trust, you can give it to a trust, even if the beneficial owner of a trust is still
inexistent This is a consequence of Art. 777. This is similar to the law on
donations. You also cannot donate to an unincorporated entity because it
is legally inexistent. 

EXAMPLE – I give 1/3 of my estate to David-Navato Organization, a non-
incorporated org." Is this valid? No. It has no juridical personality.
Art. 1027. The following are incapable of succeeding:
1. The priest who heard the confession of the testator during his last
illness, or the minister of the gospel who extended spiritual aid to
him during the same period;
2. The relatives of such priest or minister of the gospel within the
fourth degree, the church, order, chapter, community,
organization, or institution to which such priest or minister may
belong;
3. A guardian with respect to testamentary dispositions given by a
ward in his favor before the final accounts of the guardianship
have been approved, even if the testator should die after the
approval thereof; nevertheless, any provision made by the ward
in favor of the guardian when the latter is his ascendant,
descendant, brother, sister, or spouse, shall be valid;
4. Any attesting witness to the execution of a will, the spouse,
parents, or children, or any one claiming under such witness,
spouse, parents, or children;
5. Any physician, surgeon, nurse, health officer or druggist who took
care of the testator during his last illness;
6. Individuals, associations and corporations not permitted by law
to inherit. (745, 752, 753, 754a)
BALANE – Pars. 1-5 of this article apply only to testamentary succession.
They have no application to the legitime or to intestacy. 
 guardianship, which is at anytime between the commencement
• Thus, a person may be disqualified to succeed by will under these
paragraphs but be entitled to a legitime or to an intestate
portion.
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• BALANE – It is unfortunate that these paragraphs (with the
exception of par. 3, which clearly limits its application to
“testamentary dispositions”) do not state with sufficient clarity
that they apply solely to testamentary succession and not to the
legitime or intestacy. The Spanish Code did not suffer from this
ambiguity. Par. 6 is misplaced here because it provides for total


PERSONS INCAPACITATED TO SUCCEED BY TESTAMENTARY SUCCESSION
• Note the requisites for the disqualification to apply, it is strictly
construed against incapacity
PAR 1 – PRIESTS OR RELIGIOUS MINISTERS.
• The priest who heard the confession of the testator during his last
illness, or the minister of the gospel who extended spiritual aid to
him during the same period 

• REQUISITES
1. The will must have been executed during the testator’s
last illness 

2. The spiritual ministration must have been extended
during the last illness 

3. The will must have been executed during or after the
spiritual ministration 

EXAMPLE
a. A, a priest, is a friend of B. B regularly goes to confession to A. B
then becomes seriously ill. He executes a will instituting A to 1/3
to his estate. Is this testamentary disposition valid or is A
capacitated to inherit from B? Yes.
b. On his deathbed, X makes a will instituting Y, a priest. Thinking he
will die, X calls Y to confess. Is Y capacitated to inherit from X?
Yes.
Q – When does par. 1 apply, in other words, when is the priest incapacitated
to succeed?
• When the confession is made prior to the making of a will. If
simultaneous, the priest is still disqualified. If the will is made first,
the priest can inherit.
• If the confession was made before the will was made and the
priest is the son of the sick person, can the priest inherit upon the
death of the sick person? Yes. He can get the legitime.
• If the priest were a brother? Yes. He can inherit by intestacy.
• Disqualification applies only to testamentary dispositions.
BALANE – "PRIEST OR MINISTER OF THE GOSPEL." – Despite this apparent
restriction to Christian ministers, this applies to all spiritual ministers, e.g.,
Buddhist monks. Why? Because it is conclusively presumed that the spiritual
minister used his moral influence to induce or influence the sick person to
make a testamentary disposition in his favor.
PAR 2 – RELATIVES OF THE PRIESTS OR RELIGIOUS MINISTERS
• This widens the disqualification in par 1.
• The relatives of such priest or minister of the gospel within the
fourth degree, the church, order, chapter, community,
organization, or institution to which such priest or minister may
belong 

Q – Does the prohibition of this paragraph apply to the spouse of the
minister?
• NO, Art. 1027 doesn’t expressly include the spouse of the minister,
because this involves incapacity to succeed, thus it is strictly
construed against incapacity. 

• BALANE – Certainly, the mischief sought to be averted can be
perpetrated by the spouse. The code commission forgot to
include the spouse because they forgot that while the Catholic
priesthood is celibate, the priesthood or ministry of many other
denominations or religions. The disposition in favour of a spouse
can still be void by reason of undue influence, but it must be
proven, no conclusive presumption here. 

• Omission was made of the spouse of the minister of the gospel.
What do you do? Apply Art. 1031. To disqualify the spouse, you
have to show that the testamentary benefaction given to the
wife was meant to benefit the minister. This is harder to prove.
PAR 3 – GUARDIANS
• GENERAL RULE – For this disqualification to apply, the will must
have been executed by the ward during the effectivity of the
of the guardianship and its dissolution.
• BALANE – For guardians over the property, the guardianship
is terminated upon final approval of the accounts. For
 guardians over the person, it is terminated upon order of the
court.
• Note that the terms of this prohibition limit it to guardians
over the property.
• BALANE – In view, however, of the purpose of the
prohibition, the argument that this prohibition should apply
as well to guardians over the person is most tenable.
• EXCEPTION: A guardian who happens to be an ascendant,
descendant, brother, sister, or spouse of the ward-testator is
excluded from the prohibition.
• BALANE – Curiously, this exception is not allowed in the
other paragraphs. Why is this exception not extended to the
priest? Also what about the relatives of the guardian, why
are they not disqualified as well like the relatives of the
priest? The omission in the case of the priest was stupid.
PAR 4 – ATTESTING WITNESSES
• Any attesting witness to the execution of a will, the spouse,
parents, or children, or any one claiming under such witness,
spouse, parents, or children 
 ineffective both as to the intended beneficiary and
• BALANE – This is essentially a reiteration of the disqualification set
forth in Article 823, but cast in more general terms, since this
article nullifies not just legacies and devises, but all testamentary
dispositions made in the witness’ favor. Note the discrepancy
between this paragraph and Article 823, which allows for an
exception; if there are three other competent witnesses. That
exception should be read into this paragraph. 
 shall deliver one-half thereof or its proceeds to the church or denomination
PAR 5 – PHYSICIAN, SURGEON, NURSE, HEALTH OFFICER OR DRUGGIST
• The person (physician, surgeon, and so forth) must have taken
care of the testator during the latter’s final illness.
• ‘Taking care” means medical attendance with some regularity
or continuity, because it is in such circumstances that the
possibility of duress or influence exists. 
 testator’s soul
• Obviously, the pharmacist of “Farmacia Patakbuhin” who only
happens to fill a prescription does not fall under the interdiction.
• REQUISITES:
1. The will was made during the last illness
2. The sick person must have been taken cared of during
his last illness. Medical attendance was made.
3. The will was executed during or after he was being
taken cared of. 
 belonged
PAR 6 – INDIVIDUALS, ASSOCIATIONS AND CORPORATIONS NOT PERMITTED
BY LAW TO INHERIT
• BALANE – Par. 6 is misplaced here because it provides for total
disqualification. It applies to ALL kinds of succession. It should
have been made a separate article. 
 NOTE – Because of Art. 1029, this is not a disposition in favor of an unknown
• Corporations and other juridical entities can only inherit by
testamentary succession, they have no legitime neither are they
intestate heirs. 
 Art. 1030. Testamentary provisions in favor of the poor in general, without
• EXCEPTION – The State, as a juridical entity, can inherit by
intestacy, as the last intestate heir.
Art. 1028. The prohibitions mentioned in article 739, concerning donations
inter vivos shall apply to testamentary provisions. (n)
Article 739. The following donations shall be void:
1. Those made between persons who were guilty of adultery or
concubinage at the time of the donation;
2. Those made between persons found guilty of the same
criminal offense, in consideration thereof;
3. Those made to a public officer or his wife, descendants and
ascendants, by reason of his office.
RULE IN ART. 1027, 1028 IN RELATION TO 739, AND 1031
• The testamentary disposition is VOID, by reason of incapacity of
the heir to succeed by testacy.
• Note that the will is not VOID, only the disposition contemplated.
OTHER PERSONS WHO ARE INCAPACITATED TO SUCCEED BY TESTAMENTARY
SUCCESSION
1. PERSONS GUILTY OF ADULTERY OR CONCUBINAGE
• Those made between persons who were guilty of
adultery or concubinage at the time of the donation
• Criminal conviction is not required here, it may be
proved by a mere preponderance of evidence
2. PERSONS GUILTY OF THE SAME CRIMINAL OFFENSE
• Those made between persons found guilty of the
same criminal offense, in consideration thereof
• Conviction is required here
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• BALANE – Note that dispositions subject to an illegal
condition (such as to commit a crime) is considered
not written, thus the condition is void but disposition is
effective. If, however, the condition has already been
fulfilled (because the heir committed the crime) the
disposition will now be void under Art. 1028 in relation
to Art. 739 (2)
3. PUBLIC OFFICERS – Those made to a public officer or his wife,
descendants and ascendants, by reason of his office
4. DISQUALIFIED PERSONS, UNDER THE GUISE OF AN ONEROUS
CONTRACT
• A testamentary provision in favor of a disqualified
person, even though made under the guise of an
onerous contract, or made through an intermediary,
shall be void (Art. 1031) 

• BALANE— What cannot be done by direction cannot
be done by indirection. 

• The simulation must be proved, for this to apply. 

• Art. 1031 provides that the disposition is void, hence
the intermediary. The intestate heirs, to whom the
property would go, have the right to claim the nullity.

Art. 1029. Should the testator dispose of the whole or part of his property for
prayers and pious works for the benefit of his soul, in general terms and
without specifying its application, the executor, with the court's approval
to which the testator may belong, to be used for such prayers and pious
works, and the other half to the State, for the purposes mentioned in Article
1013. (747a)
Q – What are the requisites for the in favor of PRAYERS AND PIOUS WORKS?
1. Disposition for prayers and pious works for the benefit of the
2. No specification of the application of the disposition
BALANE – Note that there is no institute heir here, and thus the disposition
should be void, but the law considers it valid
Q – What is the apportionment of the disposition or its proceeds?
• One-half to the church or denomination to which the testator


• One-half to the State, to be applied as provided for in Article 101


BALANE – Where did the state come from? Why the State? Under what
rubric does the State fall: Prayers? Pious works?
person.
designation of particular persons or of any community, shall be deemed
limited to the poor living in the domicile of the testator at the time of his
death, unless it should clearly appear that his intention was otherwise.
The designation of the persons who are to be considered as poor and the
distribution of the property shall be made by the person appointed by the
testator for the purpose; in default of such person, by the executor, and
should there be no executor, by the justice of the peace, the mayor, and
the municipal treasurer, who shall decide by a majority of votes all questions
that may arise. In all these cases, the approval of the Court of First Instance
shall be necessary.
The preceding paragraph shall apply when the testator has disposed of his
property in favor of the poor of a definite locality. (749a)
DISPOSITIONS IN FAVOUR OF THE POOR
• The named beneficiaries here are the poor, either of a definite
locality (Par. 3) or of no designated locality (Par. 1).
• If there is no designated locality, the beneficiaries shall be the
poor of the testator's domicile, unless excluded by the testator in
his will.
BALANE – What is meant by the testator’s domicile? What political
subdivision will this refer to? The country? the region? the city or the
barangay? 

Q – The determination of the individual beneficiaries within the class
designated by the testator shall be made by (in the order of preference)?

1. Person authorized by the testator (Primary Rule – Testator’s Wish)
2. Executor or administrator
 3. Committed composed of the justice of the peace (now the MTC)
the mayor, and the municipal treasurer
a. Note that the approval of the court is necessary
b. This will never operate since there will always be an
executor or administrator of the estate.
4. Preventing the testator from revoking his will
5. Supplanting, concealing, or altering the testator's will.
6. Falsifying or forging a supposed will of the decedent.
THERE IS NO CONFLICT WITH DISINHERITANCE DESPITE SIMILAR GROUNDS.

BALANE – The Committee specified in this article will, in fact, not have
occasion to function, because if there is a will, there will always be an
executor, if not, then the court will simply appoint an administrator.
Art. 1031. A testamentary provision in favor of a disqualified person, even
though made under the guise of an onerous contract, or made through an
intermediary, shall be void. (755)
ILLUSTRATION – A, son of B, tries to kill B. B may disinherit him or not. If B
disinherits him under Art. 919, then A is disqualified to inherit. However, even
if B did not disinherit A, A is incapacitated to inherit bec. of Art. 1032. If
disinherited under Art. 919, there is double disinheritance. Disinheritance in
the will is redundant. In the common grounds, you do not have to disinherit
in Art. 919 since the effect of Articles 919 and 1032 are the same.

BALANE – What you cannot do directly, you cannot do indirectly. This is the
same as Art. 867, par. 4. – Use of a (a) dummy; (b) contract

Art. 1032. The following are incapable of succeeding by reason of

unworthiness:
1. Parents who have abandoned their children or induced their
daughters to lead a corrupt or immoral life, or attempted against
their virtue;
2. Any person who has been convicted of an attempt against the
life of the testator, his or her spouse, descendants, or ascendants;
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;
4. Any heir of full age who, having knowledge of the violent death
of the testator, should fail to report it to an officer of the law within
a month, unless the authorities have already taken action; this
prohibition shall not apply to cases wherein, according to law,
there is no obligation to make an accusation;
5. Any person convicted of adultery or concubinage with the
spouse of the testator;
6. Any person who by fraud, violence, intimidation, or undue
influence should cause the testator to make a will or to change
one already made;
7. Any person who by the same means prevents another from
making a will, or from revoking one already made, or who
supplants, conceals, or alters the latter's will;
8. Any person who falsifies or forges a supposed will of the
decedent. (756, 673, 674a)

APPLICABILITY OF ART. 1032

• This article applies to ALL kinds of succession 

• Paragraphs 1, 2, 3, 5 and 6 are the same as in disinheritance. Thus,
there are only 3 new grounds, paragraphs 4, 7, and 8. 

• BALANE – Note that paragraph 4 is inoperative and has no
application because there is no law penalizing misprision of
murder. No law has been passed obligating a person to report to
the authorities the fact of the testator’s death.

Q – What is the effect of unworthiness?

• TOTAL disqualification.
• Incapacitated to succeed by ANY FORM of succession.
• Thus, unworthiness and disinheritance have identical effects.
Unworthiness is disinheritance imposed by law. 


BALANE – If these grounds are present, the law itself disinherits the heir. This
is legal disinheritance. The effect is exactly the same as disinheritance,
which is total exclusion from the inheritance

UNWORTHINESS DISINHERITANCE
Unworthiness renders a person Disinheritance is the act by which
incapacitated to succeed from a testator, for just case, deprives a
the offended party by any form of compulsory heir, of his right to the
succession: the legitime, legitime.
testamentary, and intestate. 


NEW GROUNDS FOR UNWORTHINESS TO SUCCEED (THAT ARE NOT GROUNDS

FOR DISINHERITANCE)
1. Any person convicted of adultery or concubinage with the
spouse of the testator 

2. Any person who by fraud, violence, intimidation, or undue
influence should cause the testator to make a will or to change
one already made 


NUMBERS 6, 7 AND 8 COVER SIX (6) CASES OF ACTS RELATING TO A WILL:

1. Causing the testator to make a will
2. Causing the testator to change an existing will
3. Preventing the decedent from making a will

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 SUMMARY OF GROUNDS FOR DISINHERITANCE AND
UNWORTHINESS TO SUCCEED 


DISINHERITANCE
CHILD OR PARENT OR SURIVING SPOUSE UNWORTHINESS TO SUCCEED
DESCENDANT ASCENDANT
PROVISION Art. 919 Art. 920 Art. 921 Art. 1032
COMMON 1. Guilty of attempt on the life of testator, his spouse, descendants, or ascendants 

GROUNDS 2. Groundless/false accusation of the testator of a crime punishable by imprisonment of 6 years or more 

3. Causes the testator to make or change a will by fraud, violence, intimidation or undue influence 

4. Conviction for adultery or concubinage with testator’s spouse (Except for disinheritance of spouse) 

COMMON
Unjustifiably refuses to give support
GROUNDS FOR N/A
DISINHERITANCE
PARTICULAR (1) Seriously (1) Abandonment of (1) Giving cause for (1) Abandonment of children 

GROUNDS maltreats children 
 legal separation 

the
testator by (2) Induced their daughters to live a corrupt or
word or deed 
 (2) Induced their (2) Giving cause for loss immoral life 

daughters to live a of parental authority 

(2) Leads a corrupt or immoral life (3) Attempt against the daughter’s virtue 

dishonourable or 

disgraceful life 
 (3) Attempt against (4) Failure to report fact of violent death of the
the daughter’s virtue 
 testator to the authorities 

(3) Conviction of a
crime penalized (4) Culpable loss of (5) Any person who by the same means prevents
by civil interdiction parental authority 
 another from making a will, or from revoking one

 already made, or who supplants, conceals, or alters
(5) Attempt on the life the latter's will; 

of the other parent,
unless there is (6) Any person who falsifies or forges a supposed will
reconciliation 
 of the decedent.

Art. 1033. The cause of unworthiness shall be without effect if the testator because unworthiness, there being no written pardon or will
had knowledge thereof at the time he made the will, or if, having known of executed to pardon Y.
them subsequently, he should condone them in writing. (757a) 2. Apply the spirit of the law: Y can inherit – Applying the law literally
is illogical because disinheritance is based on the express will of
Article 922. A subsequent reconciliation between the offender and the the testator, while unworthiness is based only on his implied will.
offended person deprives the latter of the right to disinherit, and renders
ineffectual any disinheritance that may have been made. (856) BALANE – COMMENTATORS – Rules of disinheritance should apply. To make
the rules of unworthiness apply would be giving precedence to the
IMPORTANT PHRASES presumed will over the express will. Reconciliation also erases the effects of
• HAD KNOWLEDGE AT THE TIME HE MADE THE WILL – it is presumed unworthiness.
that the testator had pardoned the offender
• KNOWN SUBSEQUENTLY – Needs written pardon Q – How do you reconcile unworthiness and disinheritance as regards
restoration to capacity?
HOW AN UNWORTHY HEIR IS RESTORED TO CAPACITY – The unworthiness is set
aside and the unworthy heir restored to capacity in two ways: DISINHERITANCE UNWORTHINESS
1. A written condonation, or A subsequent reconciliation is Reconciliation is NOT enough
2. The execution by the offended party of a will with knowledge of enough
the cause of unworthiness 1. Express pardon, or 
 1.A written condonation, or
2. Unequivocal Conduct (which 2.The execution by the
BALANE – Is it NOT enough that the offended party execute a will with reveals 
the testator’s intent offended party of 
a will with
knowledge of the existence of the cause of unworthiness. The better opinion to forgive the offense.) 
 knowledge of the cause of
seems to be that the will must also either institute the unworthy heir or restore unworthiness 

him to capacity. Making a will is not enough, there must be a written pardon OVERLAP OF THE RULES – REMEDY
in the will itself, or in any other written instrument. 1. If Offended Party does not make a will subsequent to the
occurrence of the (common) cause: Apply Article 1033
PROBLEM – In disinheritance, incapacity to disinherit is lifted by • Unworthiness sets in ipso facto and
reconciliation. But in Art. 1033, there must be a pardon in writing. This is • written condonation is necessary to restore to capacity
strange.
• In Art. 919 – express will – reconciliation is enough 2. If Offended Party makes a will subsequent to the occurrence of the
• In Art. 1033 – presumed will – needs written pardon. (common) cause:

Problem arises if the testator made a will disinheriting. What rule do you IF HE KNEW THE CAUSE IF HE DID NOT KNOW THE CAUSE
apply if the reason for disinheriting was a common ground?
• IF HE DISINHERITS—Apply Unworthiness stays
a. If you follow the rules of disinheritance – Yes. Article 922

b. If you follow the rules of unworthiness – No.
• IF HE INSTITUTES OR PARDONS
THE OFFENDER— Offender
EXAMPLE: Y is convicted on an attempt on the life of his father X. X disinherits
restored to capacity

Y because of this. Thus, under the law, Y is both disinherited and unworthy
• IF WILL IS SILENT—This is
to succeed X. X, because he is very forgiving, decides to reconcile with Y,
disputed, but the better
however, he failed to execute a pardon in writing. If X dies, can Y succeed
opinion seems to be that the
him?
unworthiness stays.
2 VIEWS
1. Apply law literally: Y cannot inherit – In that, even if Y is not
anymore disinherited, he is still incapacitated to succeed X

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Art. 1034. In order to judge the capacity of the heir, devisee or legatee, his
qualification at the time of the death of the decedent shall be the criterion.
In cases falling under Nos. 2, 3, or 5 of Article 1032, it shall be necessary to
wait until final judgment is rendered, and in the case falling under No. 4, the
expiration of the month allowed for the report.
Art. 1038. Any person incapable of succession, who, disregarding the
prohibition stated in the preceding articles, entered into the possession of
the hereditary property, shall be obliged to return it together it its accessions.
He shall be liable for all the fruits and rents he may have received, or could
have received through the exercise of due diligence. (760a)

If the institution, devise or legacy should be conditional, the time of the BALANE – Possessor in bad faith means he knows that he is incapacitated.
compliance with the condition shall also be considered. (758a)
Q – What is the obligation and liability of a disqualified her in case of
Q – When should you determine capacity to succeed? unlawful possession of the hereditary property?
1. PAR 1 – At the time of death. correlate with par. 1 of Art. 1025. • Obligation to return the property with accessions
The time succession opens, no exceptions. • Liable or all the fruits and rents he may have received, or could
2. PAR 2 – Grounds 2, 3 and 5 – Wait for final judgment when have received through the exercise of due diligence.
conviction is needed – at the time of final judgment.
3. PAR 3 – Conditional – If institution is subject to a suspensive Art. 1039. Capacity to succeed is governed by the law of the nation of the
condition decedent. (n)
• at the time of the 
decedent’s death AND
• at the time of the happening of the condition 
 Q – What law governs the capacity to succeed?
• The law of the decedent
Art. 1035. If the person excluded from the inheritance by reason of • NOT the law of the heir.
incapacity should be a child or descendant of the decedent and should
have children or descendants, the latter shall acquire his right to the Art. 1040. The action for a declaration of incapacity and for the recovery of
legitime. the inheritance, devise or legacy shall be brought within five years from the
time the disqualified person took possession thereof. It may be brought by
The person so excluded shall not enjoy the usufruct and administration of any one who may have an interest in the succession. (762a)
the property thus inherited by his children. (761a)
Q – What is the period for action to recover (the property unlawfully
Q – Is there representation in unworthiness? possessed by the disqualified heir?
• YES. Remember the 3 instances • Five (5) years from the time the disqualified heir took possession
1. Predecease of the property 

2. Disinheritance • This is also the period when to bring an action for the declaration
3. Unworthiness of incapacity. 

NEVER in renunciation. • Note that this is a special prescriptive period for this action. It is an
exception to the prescriptive periods for recovery of movables (8
Q – To what extent may there be representation? years) and of immovables (30 years) (Articles 1140 and 1141)
• As to the legitime SECTION 3. - ACCEPTANCE AND REPUDIATION OF THE INHERITANCE
• As to the intestate portion
o The person represented may been entitled. Art. 1041. The acceptance or repudiation of the inheritance is an act which
is purely voluntary and free. (988)
BALANE –It does not mention intestate share only legitime. Why? Because
Art. 1035 assumes that the free portion has been disposed of completely. FREEDOM TO ACCEPT OR RENOUNCE
But if not, then intestate share is included. • The heir has the freedom to accept or renounce the inheritance
• Whether it be in the form of legitime, testamentary succession or
Q – Is there representation in the collateral line? intestacy.
• YES. If the unworthy heir is a brother or sister, his children (nephews • This is because it is similar to donation which is essentially free and
and nieces of the decedent) will represent. voluntary.
• No once can be required to accept a benefit.
Art. 1036. Alienations of hereditary property, and acts of administration • If there are several heirs, their right to accept or renounce
performed by the excluded heir, before the judicial order of exclusion, are corresponds to the aliquot share to which they are entitled.
valid as to the third persons who acted in good faith; but the co-heirs shall
have a right to recover damages from the disqualified heir. (n) Q – What are the basic rules?
a. Rules for acceptance are more liberal than the rules of
BALANE – This applies the doctrine of innocent purchaser for value without renunciation because the former are beneficial to the heir while
prejudice to the right to damages of the prejudiced heirs against the the latter is prejudicial to the heir.
incapacitated heir. b. In case an heir is incompetent/ insane or a minor, acceptance
or repudiation must be made by a representative. In case of
Q – What happens to the alienations made by the excluded heir, before renunciation, court approval is necessary because of letter (a).
the judicial order of exclusion?
• The validity of the alienation is determined by the good faith or Art. 1042. The effects of the acceptance or repudiation shall always retroact
bad faith of the transferee (3rd party purchaser), NOT the to the moment of the death of the decedent. (989)
transferor (excluded-heir-seller).
o GOOD FAITH – Valid Q – Is there retroactivity of acceptance or renunciation?
§ For the transferee to be in good faith, he • YES. This is the RULE ON RETROACTIVITY.
must have acquired the thing for value and • This is because of Art. 777 which states that "the right to the
without knowledge of the defect of the succession are transmitted from the moment of the death of the
transferor’s title. 
 decedent."
§ Thus, a donee cannot claim the benefit of
this provision, since he did not acquire for RULES ON RETROACTIVITY
value. CONDITIONAL
ACCEPTANCE RENUNCIATION
INSTITUTIONS
o BAD FAITH – Void
The successor will be The substitute, co-heir, or Upon the happening of
• In case the alienation is valid, of course, the transferee has now
deemed to have owned intestate heir who gets the condition, the
the right. But, the rightful heirs also have a right to go after the and possessed the the property in default of property passes to the
excluded-heir-seller for damages. property from the precise the renouncer is deemed heir but with retroactive
moment of the to have owned and effect.
Art. 1037. The unworthy heir who is excluded from the succession has a right decedent’s death. possessed it from the
• to demand indemnity or any expenses incurred in the moment of the It is not overridden even if
This rule has decedent’s death. the institution is subject to
preservation of the hereditary property, and
consequences with a suspensive condition.
• to enforce such credits as he may have against the estate. (n) respect to acquisitive The renouncer is deemed
prescription, capacity to never to have owned or Only that the property is
Q – What right is an excluded heir granted? succeed, representation, possessed the property. placed under the
• The right of reimbursement for necessary. etc. administration in the
• Even if he was in bad faith. mean time.

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BALANE – Nothing is vested to the renouncing heir, he is deemed never to Q – Who may accept or renounce?
have acquired anything by virtue of succession. Correlatively, the person
who acquires and accepts it as a consequence of the renunciation is PERSON INHERITING/
PERSON WHO CAN ACCEPT OR RENOUNCE
deemed to have acquired it from the moment of the decedent’s death. BENEFITING
(1) PEOPLE IN Any person having the free disposal of his
Art. 1043. No person may accept or repudiate an inheritance unless he is GENERAL property may accept or repudiate an
certain of the death of the person from whom he is to inherit, and of his right inheritance. This pertains to the capacity to
to the inheritance. (991) act


Article 905. Every renunciation or compromise as regards a future How acceptance or renunciation is made

legitime between the person owing it and his compulsory heirs is void a. Personally
b. Through agent (by special power of
Article 1347. No contract may be entered into upon future inheritance attorney)

except in cases expressly authorized by law.
Must have capacity to dispose the property
Q – When should there be acceptance or renunciation? a. Of age
• The heir must have knowledge and certainty of the following b. Not restricted in his capacity to act.
facts, before he can accept or renounce (1) (A) HEIRS IN Without having accepted or repudiate the
a. Death of the decedent GENERAL inheritance
b. Right to the inheritance (is established) • His right shall be transmitted to his heirs.
Art. 1053 – If the heir • This will apply only if the heir’s heir accepts.
Q – What is the basis for this rule? Art. 777. should die.
Should there be several heirs called to the
NOTE – Remember that renunciation of future inheritance is void. It can only inheritance, some of them may accept and
be made after the decedent’s death. (Art. 905, 1347) the others may repudiate.
(2) MINORS OR May accept or May be repudiated
Art. 1044. Any person having the free disposal of his property may accept INCAPCITATED renounce only by their parents or
or repudiate an inheritance. PERSONS through their legal guardians only by
representatives or judicial authorization.
Any inheritance left to minors or incapacitated persons may be accepted guardians.
by their parents or guardians. Parents or guardians may repudiate the Repudiation is an act
inheritance left to their wards only by judicial authorization. of alienation of
property which must
The right to accept an inheritance left to the poor shall belong to the pass the court’s
persons designated by the testator to determine the beneficiaries and scrutiny in order to
distribute the property, or in their default, to those mentioned in Article protect the interest of
1030. (992a) the ward.
(3) TESTAMENTARY May be accepted May be repudiated
Art. 1045. The lawful representatives of corporations, associations, institutions GRANTS TO THE POOR only by the persons in by – the persons
and entities qualified to acquire property may accept any inheritance left Art. 1030 selected as
to the latter, but in order to repudiate it, the approval of the court shall be recipients.
necessary.(993a) OR

Art. 1046. Public official establishments can neither accept nor repudiate an The poor persons
inheritance without the approval of the government. (994) selected as
recipients.
Art. 1047. A married woman of age may repudiate an inheritance without
(4) JURIDICAL The authorized lawful But in order to
the consent of her husband. (995a) PERSONS representatives may repudiate it, the
accept any approval of the court
Art. 1048. Deaf-mutes who can read and write may accept or repudiate
Corporations, inheritance left shall be necessary.
the inheritance personally or through an agent. Should they not be able to
Associations,
read and write, the inheritance shall be accepted by their guardians. These Institutions, Entities,
guardians may repudiate the same with judicial approval. (996a) when qualified to
acquire property)
(5) THE GOVERNMENT Public official establishments can neither
accept nor repudiate an inheritance without
the approval of the government
(6) MARRIED PERSON GENERAL RULE – A married person of age and
not incapacitated for any reason may accept
or renounce an inheritance without his or her
spouse’s consent.

EXCEPTION – If insane. In this case, however,

the marriage is not the reason for the
incapacity.
(7) LITERATE DEAF Thus, deaf-mutes who can read and write, may
MUTE accept or repudiate the inheritance
• Personally or
Considered as • Through an agent.
capacitated.
(8) ILLETERATE DEAF- ACCEPTANCE – The RENOUNCE – These
MUTE inheritance shall be guardians may
accepted by their repudiate the same
Considered as guardians. with judicial
incapacitated. approval.

Art. 1048 – Should

they not be able to
read and write

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Art. 1049. Acceptance may be express or tacit.
An express acceptance must be made in a public or private document.
A tacit acceptance is one resulting from acts by which the intention to
accept is necessarily implied, or which one would have no right to do
except in the capacity of an heir.
Acts of mere preservation or provisional administration do not imply an
acceptance of the inheritance if, through such acts, the title or capacity of
an heir has not been assumed. (999a)
Q – What are the forms of acceptance?
a. ART. 1049 – Express
b. ART. 1049 and 1050 – Tacit
c. Art. 1057 – Implied
KINDS OF ACCEPTANCE
1. EXPRESS In clear and explicit terms. In writing, whether in a
a. Private writing
b. Public document
2. TACIT Q – What is tacit acceptance? ART. 1049. PAR (3)
• Acts revealing an intent to accept.
• Inferred from acts of ownership performed
by the heir over the property.
Q – What is NOT a tacit acceptance?
• Acts of mere preservation or provisional
administration do not imply an acceptance
of the inheritance if, through such acts, the
title or capacity of an heir has not been
assumed
3. IMPLIED Q – What is implied acceptance?
• Acceptance by inaction.
• ART. 1057 – Once the court issues an order
for the distribution of the estate, the heirs
must accept or repudiate the inheritance
within 30 days, if they fail to do so, they are
deemed to have accepted it. 
 The acceptance shall benefit the creditors only to an extent sufficient to
BALANER – The law interprets silence in your favor,
silence means acceptance in this case.
Art. 1050. An inheritance is deemed accepted:
1. If the heirs sells, donates, or assigns his right to a stranger, or to his
co-heirs, or to any of them;
2. If the heir renounces the same, even though gratuitously, for the
benefit of one or more of his co-heirs;
3. If he renounces it for a price in favor of all his co-heirs
indiscriminately; but if this renunciation should be gratuitous, and
the co-heirs in whose favor it is made are those upon whom the
portion renounced should devolve by virtue of accretion, the
inheritance shall not be deemed as accepted. (1000)
INSTANCES OF TACIT ACCEPTANCE (ART. 1050) 
 •
a. If the heirs sells, donates, or assigns his right to a stranger, or to his
co-heirs, or to any of them
• Onerous or gratuitous conveyance in favor of one,
some, or all of his co-heirs, or to a stranger. 
 to pay.
• Disposition is an act of ownership, which necessarily
implies that the heir has accepted the inheritance. 
 extends only to the amount of value needed to satisfy the credit.
b. If the heir renounces the same, even though gratuitously, for the
benefit of one or more of his co-heirs 

• Gratuitous renunciation in favor of one or some (but
not all) of his co-heirs. 
 inheritance his right shall be transmitted to his heirs. (1006)
• This is not in fact a renunciation but a conveyance in
favor of the co-heirs specified. 
 Q – Is the right to renounce a transmissible right?
• It partakes of the nature of donation and therefore
must conform to the prescribed form for donations 

• If the gratuitous “renunciation” is in favor of all the co-
heirs BUT in proportions different from those in which
they would receive by accretion, it is still a
conveyance and must be treated as a tacit
acceptance. 
 exercise the right granted by this article only if he (the heir’s heir)
• Also, if the “renunciation” in favor of one or some of
the co-heirs is for an onerous consideration, there is an
acceptance 

c. If he renounces it for a price in favor of all his co-heirs
indiscriminately; but if this renunciation should be gratuitous, and
the co-heirs in whose favor it is made are those upon whom the
portion renounced should devolve by virtue of accretion, the
inheritance shall not be deemed as accepted
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• Onerous renunciation in favor of all the co-heirs
indiscriminately

• This is not in fact a renunciation but a SALE of his portion and
therefore constitutes a tacit acceptance.
• But, if it's a gratuitous renunciation in favor of the co-heirs
indiscriminately, it is a true renunciation and cannot be
treated as a tacit acceptance.
• INDISCRIMINATE RENUNCIATION means a renouncement,
gratuitously made, in favor of all the co-heirs who would get
the renounced portion by virtue of accretion. 

• The same rule applies even if the part renounced in this
manner is the legitime, notwithstanding that there is no
accretion in the legitime, as long as the renunciation is
indiscriminate. 

Q – What is the true case of renunciation?
• Gratuitous in favor of the co-heirs indiscriminately.
• Renunciation in favor of ALL the co-heirs who would get the
renounced portion by virtue of accretion.
Art. 1051. The repudiation of an inheritance shall be made in a public or
authentic instrument, or by petition presented to the court having
jurisdiction over the testamentary or intestate proceedings. (1008)
FORMS OF RENUNCIATION
1. Public or authentic document
2. Petition presented to the court.
BALANE
• Strict form is required. One cannot renounce tacitly or impliedly.
• AUTHENTIC – should be taken to mean genuine.
• Note that the law has stricter requirements for renunciation, since
it is not beneficial to the heir
Art. 1052. If the heir repudiates the inheritance to the prejudice of his own
creditors, the latter may petition the court to authorize them to accept it in
the name of the heir.
cover the amount of their credits. The excess, should there be any, shall in
no case pertain to the renouncer, but shall be adjudicated to the persons
to whom, in accordance with the rules established in this Code, it may
belong. (1001)
Article 1177. The creditors, after having pursued the property in
possession of the debtor to satisfy their claims, may exercise all the rights
and bring all the actions of the latter for the same purpose, save those
which are inherent in his person; they may also impugn the acts which
the debtor may have done to defraud them. (1111)
Article 1313. Creditors are protected in cases of contracts intended to
defraud them. (n)
RULE ON RENOUNCEMENT PREJUDICIAL TO CREDITORS
This is an instance of accion pauliana, which is the right given to
creditors to impugn or set aside contracts, transactions, or
dispositions of their debtors which will prejudice or defraud them.
• This will only apply if the debtor has no other properties with which
• The right of the creditor to make the heir accept the inheritance
• Any amount in excess of that is considered validly renounced.
Art. 1053. If the heir should die without having accepted or repudiated the
• YES. This rule is a consequence of the principle that the right of
succession vests at the moment of death (Article 777). 

• Therefore, the right of the heir who dies before accepting or
renouncing is already vested and is transmitted to the heir’s heirs.

The right to the inheritance itself forms part of the inheritance of
the heir (Articles 774 & 776) and therefore, the heir of the heir can
accepts his own predecessor’s inheritance. 

• If he renounces, obviously he cannot exercise this right.
Art. 1054. Should there be several heirs called to the inheritance, some of
them may accept and the others may repudiate it. (1007a)
NOTE – Right to renounce transmitted is pro-rata if there are several heirs,
(even if transmitted to the heir’s heirs)

X law, irrespective of the decedent’s wishes. Thus, the term ab
----------
| | |
A B C
-----
| | |
a b c
ILLUSTRATION – X died on Jan. 1, 1996. A died on Jan. 14, 1996 without
having accepted or repudiated the inheritance. a, b and c get the rights
of A. Any of them may renounce. If a and b renounce, then 2/3 of A's share
is deemed renounced. No accretion takes place between a, b and c.
NOTE – Partial acceptance is allowed. E.g., B renounces 2/3 of what he will
get.
ANOTHER ILLUSTRATION –If X dies and Y, his heir, himself dies before
accepting or renouncing the inheritance, leaving A, B, and C as his own
heirs—A, B, and C each has the right to accept or renounce his
corresponding one-third interest in whatever Y was entitled to inherit from X.
BALANE – Should one or more of the heirs renounce, to whom will the
repudiated portion go? To the ones who accept, by accretion? Or to the
intestate heirs of the decedent whose inheritance the predecessor of the
heirs was unable to accept or renounce? 
 it can cause chaos, if the heir keeps changing his mind
Art. 1055. If a person, who is called to the same inheritance as an heir by will
and ab intestato, repudiates the inheritance in his capacity as a
testamentary heir, he is understood to have repudiated it in both capacities.
Should he repudiate it as an intestate heir, without knowledge of his being
a testamentary heir, he may still accept it in the latter capacity. (1009)
Article 955. Any compulsory heir who is at the same time a legatee or
devisee may waive the inheritance and accept the legacy or devise, or
renounce the latter and accept the former, or waive or accept both.
Q – What happens if a person is BOTH A TESTAMENTARY HDL, and is also an
INTESTATE HER, with respect to the same inheritance?
RENOUNCES AS
RENOUNCES AS INSTESTATE HEIR
TESTAMENTARY HDL
He is deemed to WITH KNOWLEDGE OF WITHOUT KNOWLEDGE
BEING A OF BEING A
have renounced as
TESTAMENTARY HEIR TESTAMENTARY HEIR
intestate heir as well.
This is disputed. But it He is NOT deemed to
seems that he can still have renounced as
accept as testamentary heir (may
testamentary heir. still accept it)
BALANE – The rationale is that while the testamentary disposition is the
express will of the testator, intestacy is only his implied will. Thus, one who
renounces the express will is deemed to have renounced the implied also,
but not the other way around. 
 the payment of debts are not sufficient for that purpose, the provisions of
Supposing the heir renounces as intestate heir with knowledge of his being
a testamentary heir, may he accept in the latter capacity? This is disputed;
by the wording of paragraph 2 of this article, it seems he cannot accept as
testamentary heir. BUT, in light of the rationale of the rule, however, it seems
he can. of a trust company in the Philippines may be appointed as an executor,
EXAMPLE – X dies, survived only by his brother Y. X left a will, instituting Y to
1/8 of his estate. Y is thus a testamentary heir (1/8) and intestate heir (7/8),
thus, Y is an heir in two concepts. If Y renounces as testamentary heir, he is
also deemed to have renounced as intestate heir (rationale that express will
prevails over implied will). But the reverse is not true. If Y renounces as
intestate heir, he is NOT deemed to have renounced as testamentary heir,
regardless of whether he had no knowledge of his being a testamentary
heir (by virtue of Art. 1055), or if he had such knowledge (by virtue of the
rationale) 

Q – Why would Y renounce as intestate heir but not as testamentary heir?
• Well, because Y can think that if he inherits by will, he is sure that
X really wants him to get that part, but with regard to the part
that passes only by operation of law, he might think that X didn’t
want him to have that since he didn’t include that in his will (if X
wanted to, he could have done so, since he already made a will)
• In view of the rationale of the rule, should the heir be
simultaneously a compulsory heir and a testamentary heir, he
can accept either or both. The legitime passes not because of
JDLYRREVERRE | B2020 | SUCCESSION | ATTY. BALANE | CHAMP NOTES ANNOTATED | 105
any implied will or wish of the decedent but by strict operation of
intestato in this article refers solely to intestate succession. To the
same effect is the rule laid down in Article 955, par. 2, supra,
regarding a person who is simultaneously a compulsory heir and
a legatee or devisee.
NOTE – Legitime is treated separately – This may be accepted or renounced
separately. The heir may accept the testate share and reject the legitime
and vice versa.
NOTE FURTHER – This applies only if both testamentary and intestate heir.
Q – In cases where the person is both a testamentary and compulsory heir?
• He can accept either or reject.
• Legitime passes by strict operation of law, irrespective of the
decedent’s wishes.
Art. 1056. The acceptance or repudiation of an inheritance, once made, is
irrevocable, and cannot be impugned, except when it was made through
any of the causes that vitiate consent, or when an unknown will
appears. (997)
GENERALLY, THE ACCEPTANCE OR REPUDIATION OF AN INHERITANCE, ONCE
MADE, IS IRREVOCABLE, AND CANNOT BE IMPUGNED
• BALANE – There is a principle of irrevocability, because otherwise,


• EXCEPT – In cases of: 

1. VITIATED CONSENT – In case of violence, intimidation,
undue influence, mistake, and fraud.
2. APPEARANCE OF AN UNKNOWN WILL – This applies if
the newly-discovered will is subsequent to any will
which may have formed the basis for the acceptance
or renouncement. The new will (assuming it is valid and
admitted to probate) reopens the whole affair and will
call for a new acceptance or renunciation.
Art. 1057. Within thirty days after the court has issued an order for the
distribution of the estate in accordance with the Rules of Court, the heirs,
devisees and legatees shall signify to the court having jurisdiction whether
they accept or repudiate the inheritance.
If they do not do so within that time, they are deemed to have accepted
the inheritance. (n)
IMPLIED ACCEPTANCE – The thirty day period is counted from the receipt of
the order.
SECTION 4. - EXECUTORS AND ADMINISTRATORS
Art. 1058. All matters relating to the appointment, powers and duties of
executors and administrators and concerning the administration of estates
of deceased persons shall be governed by the Rules of Court. (n)
Art. 1059. If the assets of the estate of a decedent which can be applied to
Articles 2239 to 2251 on Preference of Credits shall be observed, provided
that the expenses referred to in Article 2244, No. 8, shall be those involved
in the administration of the decedent's estate. (n)
Art. 1060. A corporation or association authorized to conduct the business
administrator, guardian of an estate, or trustee, in like manner as an
individual; but it shall not be appointed guardian of the person of a
ward. (n)
NOTE
• See Rules 78-90 of the Rules of Court for Art. 1058 and 1060 

• See Rules of Concurrence and Preference of Credits for Art. 1059


 SECTION 5. - COLLATION
Q – What is collation?
• BALANE – Steps taken to settle the estate to be able to give it to
the heirs.
THREE COMPONENTS OF COLLATION
1. COLLATION AS COMPUTATION – This is a simple accounting or
arithmetical process, whereby the value of all donations inter
vivos made by the decedent is added to his available assets in
order to arrive at the value of the net hereditary estate. This
process has been discussed as the third step under Article 908.
2. COLLATION AS IMPUTATION – This is the process by which
donations inter vivos made by the decedent are correspondingly
charged either to the donee’s legitime or against the disposable
portion. Articles 909 and 910 provide for this.
Determine if the donation is chargeable/ imputable to the
legitime or the free portion.
o GENERAL RULE – If compulsory heir, imputable to the
legitime.
o EXCEPTION – If testator has provided otherwise.
3. COLLATION AS RETURN/ RESTORATION – This takes place when a
donation inter vivos is found to be inofficious (exceeds the
disposable portion) and so much of its value as is inofficious is
returned to the decedent’s estate to satisfy the legitimes. Again
Articles 909 and 910 contain provisions on this.
NOTE – This will not happen if the legitimes are not impaired.
BALANE – The biggest problem about collation is the term; or more precisely,
the several meanings which the term carries. Basically, collation, as used in
this section, carries three meanings. The articles in this section swing from
one meaning to an- other. Hence, it is necessary—for a proper
understanding of the articles—to understand the sense in which the word
collation is used in each article. These three senses are related but distinct.
Art. 1061. Every compulsory heir, who succeeds with other compulsory heirs,
must bring into the mass of the estate any property or right which he may
have received from the decedent, during the lifetime of the latter, by way
of donation, or any other gratuitous title, in order that it may be computed
in the determination of the legitime of each heir, and in the account of the
partition. (1035a)
FIRST SENSE – Computation.
• This is the same as the third step in ART. 908.
• INACCURACY IN THE PROVISION – collation done by compulsory
heirs.
o All donations are collated provided there is at least
one compulsory heir because there will be a legitime.
Q – What should be included in the computation for the purpose of
determining the value of the net estate?
• ALL donation inter vivos
• Whether made to compulsory heirs or to strangers (non-
compulsory heirs)
• This is because every donation is imputable to either the legitime
of the free portion.
• You compute only the value of the property donated at the time
the donation was made.
Art. 1062. Collation shall not take place among compulsory heirs if the donor
should have so expressly provided, or if the donee should repudiate the
inheritance, unless the donation should be reduced as inofficious. (1036)
SECOND SENSE – Imputation. (ART. 909 – 910)
HOW ARE THESE DONATIONS IMPUTED
TO COMPULSORY HEIRS TO STRANGERS
GENERAL RULE – Donation to a compulsory heir shall Always to the free
be collated (imputed or considered an advance) portion.
to his legitime.
EXCEPT –
1. If donor provides otherwise
2. If the donee renounces (gives up status
as compulsory heir)
3. The donation exceeds the legitime (as
to the excess)
In which cases, the donation is imputable to the
free portion.
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Art. 1063. Property left by will is not deemed subject to collation, if the
testator has not otherwise provided, but the legitime shall in any case
remain unimpaired. (1037)
SECOND SENSE – Imputation
Q – How are testamentary disposition to compulsory heirs imputed?
• GENERAL RULE – Imputed to the free portion.
o The heir gets legitime + testamentary disposition.
o Why? If not, what is the use? He will get it anyway.
Unless, of course, if it impairs the legitime of others.
• EXCEPTION – If the testator provides otherwise.
Art. 1064. When the grandchildren, who survive with their uncles, aunts, or
cousins, inherit from their grandparents in representation of their father or
mother, they shall bring to collation all that their parents, if alive, would have
been obliged to bring, even though such grandchildren have not inherited
the property.
They shall also bring to collation all that they may have received from the
decedent during his lifetime, unless the testator has provided otherwise, in
which case his wishes must be respected, if the legitime of the co-heirs is not
prejudiced. (1038)
SECOND SENSE – Imputation
• GRANDCHILDREN – refer to all descendant who inherit by
representation.
ILLUSTRATION
• X has 3 children – A, B, and C.
• A has 2 Children – A1 and A2
Q – If A predeceases X, A1 and A2 inherit by representation. What must the
grandchildren (A1 and A2) impute to their inheritance?
• Whatever the parent whom they are representing would have
been obliged to collate (whatever donation X made to A, their
parent)
• Whatever they themselves have received from the grandparent
by gratuitous title (Whatever A1 and A2 received from X)
o Even if X and A1 and A2 are non-compulsory heirs of
each other.
ILLUSTRATION 2
• X has 2 children – A and B
• B has 2 children – B1 and B2
B predeceased X.
• In 1988, X donated to B P70,000.
• In 2001, X donated to b1 and b2 P50,000
Q – What will b1 and b2 impute when X dies?
• Par. 1 – 1988 donation – Yes because B would have imputed it (if
he) were he alive.
• Par. 2 – 2001 donation – Yes. This is not logical because b1 and
b2 inherit by representation. The general rule is that only persons
who receive the donation are bound to impute it.
Art. 1065. Parents are not obliged to bring to collation in the inheritance of
their ascendants any property which may have been donated by the latter
to their children. (1039)
SECOND SENSE – Imputation
Q – What happens if grandfather donation property to grandson? Should
the parent collate to grandfather’s estate?
• The parent should NOT collate what the grandfather gave to his
(parent’s) son since he was not the recipient of the conveyance.
• Since the donation was made to a stranger, it should be imputed
to the grandfather’s free portion of the estate.
ILLUSTRATION
• X has 2 children – A and B
• A has a child – A1
• B has 2 children – B1 and B2
In 1995, X donated to A1. In 2001, X dies while A is still alive. Will A impute
the donation to A1? No. A1 is considered a stranger because he is not a
compulsory heir. Impute to the free portion.
Art. 1066. Neither shall donations to the spouse of the child be brought to
collation; but if they have been given by the parent to the spouses jointly,
the child shall be obliged to bring to collation one-half of the thing
donated. (1040)
SECOND SENSE – Imputation
Q – What happens if a parent donates property to daughter-in-law?
• The donation to the daughter-in-law is her separate property and
should NOT be imputed to the son’s (husbands) legitime
• The donation is made to a stranger and therefore imputable to
the free portion of the parent’s estate.
Q – What if the donation is made by the parent to the spouses jointly (the
son and the daughter-in-law)?
• Then ½ of the donation belongs to the son which is imputable to
the son’s legitime
• The other ½ is still a donation to a stranger which is imputable to
the free portion.
Art. 1067. Expenses for support, education, medical attendance, even in
extraordinary illness, apprenticeship, ordinary equipment, or customary gifts
are not subject to collation. (1041)
FIRST SENSE – Computation
1. Overlap between support in the NCC and the FC – Support in the
FC already includes medical attendance.
2. All expenses in Art. 1067 are not imputed to the legitime –
including 6 things in support in the FC.
Art. 1068. Expenses incurred by the parents in giving their children a
professional, vocational or other career shall not be brought to collation
unless the parents so provide, or unless they impair the legitime; but when
their collation is required, the sum which the child would have spent if he
had lived in the house and company of his parents shall be deducted
therefrom. (1042a)
SECOND SENSE – Imputation
• This qualifies Art. 1067.
GENERAL RULE – Expenses for support should not even be included in the
computation of the estate. (ART. 1067)
EXCEPTION – ART. 1068 – Expenses for professional, vocational and other
career (ex: law school), they are imputed against the free portion.
EXCEPTION TO THE EXCEPTION
1. When parents provide otherwise
2. When it impairs the legitimes of other compulsory heirs.
Q – What happens if the parents provide otherwise? That law school
expenses will be charged to the legitime?
• Then the child is entitled to deduct the sum corresponding to
what the parents would have spent on him had he stayed at
home and loafed.
BALANE
• But if you lived away from home, deduct the living expenses
from what would be imputed against your legitime.
• This is inconsistent because this is included in support under the
Family Code.
Art. 1069. Any sums paid by a parent in satisfaction of the debts of his
children, election expenses, fines, and similar expenses shall be brought to
collation. (1043a)
SECOND SENSE – Imputation
• They are considered donations to the child.
• Generally, imputable to the legitime unless Art. 1062.
Art. 1070. Wedding gifts by parents and ascendants consisting of jewelry,
clothing, and outfit, shall not be reduced as inofficious except insofar as
they may exceed one-tenth of the sum which is disposable by will. (1044)
SECOND SENSE – Imputation
WEDDING GIFTS – TWO VIEWS
1. LITERAL – Cannot be beyond 1/10 of the free portion. If it
exceeds, return the excess.
2. LIBERAL
a. below 1/10 of the free portion, impute to the free portion
b. above 1/10 of the free portion, impute to the legitime.
Q – What if the parents gave you wedding gifts? How shall it be imputed?
• The gifts will still be imputed to the free portion, after all, the
parents may give the entire free portion as wedding gift.
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• The value imputed will be to the extent of 1/10 of the free portion.
Beyond that value, the excess will be imputed to the child’s
legitime.
ILLUSTRATION 1 – Estate is worth 600. There are 3 children. Legitimes = 300.
When A got married, he was given a gift of 40. This is more than 1/10 of
the free portion.
1. Literal = 30, impute to the legitime
10, return
2. Liberal = 30, impute to the free portion
10, impute to the legitime.
ILLUSTRATION 2
• 1M – free portion
• 300K – wedding gift
THUS
• 1/10 free portion = 100K imputed to the free portion
• 200K imputed to the legitime.
Art. 1071. The same things donated are not to be brought to collation and
partition, but only their value at the time of the donation, even though their
just value may not then have been assessed.
Their subsequent increase or deterioration and even their total loss or
destruction, be it accidental or culpable, shall be for the benefit or account
and risk of the donee. (1045a)
FIRST AND SECOND SENSES – Computation and Imputation
Q – In general, since we only look at the values in collation, what value
should be computed and imputed?
• COMPUTE (IN THE ESTATE) – the value of the thing donated at the
time the donation was made.
• IMPUTE (AGAINST THE FREE PROTION OR THE LEGITIME) – the value
of the thing donated at the time the donation was made.
Q – Why?
• Because donation transfers ownership to the done upon
acceptance, any decrease or increase in value of the thing
donated should be for the donee’s account.
CASE – IMPERIAL V. CA
• A claim for legitime does not amount to a claim for title. In
VIZCONDE V. CA, what is brought to collation is not the donated
property itself but the value of the property at the time it was
donated. The rationale for this is that the donation is a real
alienation which conveys ownership upon its acceptance,
hence any decrease or increase in value is for the account of
the done.
• Therefore, the prescriptive period for an action for reduction of
an inofficious donation is 10 years, since it is an action upon an
obligation created by law.
• Q – From when is this 10 year period counted? The cause of
action to enforce a legitime accrues upon the death of the
decedent, since it is only then that the net estate may be
ascertained and the legitimes determined.
Art. 1072. In the collation of a donation made by both parents, one-half shall
be brought to the inheritance of the father, and the other half, to that of
the mother. That given by one alone shall be brought to collation in his or
her inheritance. (1046a)
FIRST AND SECOND SENSES – Computation and Imputation.
• This provision contemplates joint donation by parents from their
common property.
a. 1/2 computed for determination of the estate of the
husband.
b. 1/2 computed for determination of the estate of the
wife.
• Same rule for imputation with respect to the donee. Impute 1/2
to father and 1/2 to mother.
Art. 1073. The donee's share of the estate shall be reduced by an amount
equal to that already received by him; and his co-heirs shall receive an
equivalent, as much as possible, in property of the same nature, class and
quality. (1047)
SECOND SENSE – Imputation – What should the heirs receive?
• This applies when the done is a compulsory heir and not a
stranger.
• This article requires that equivalence in amount, kind of property
that compulsory heirs should receive.
 • Of course, the compulsory heirs may agree themselves. SUMMARY OF RULES OF COLLATION AS IMPUTATION
DISPOSITIONS CHARGED TO THE DISPOSITIONS CHARGED TO THE
Art. 1074. Should the provisions of the preceding article be impracticable, if LEGITIME FREE PORTION
the property donated was immovable, the co-heirs shall be entitled to 1. Donations inter vivos made to 1. Donations inter vivos:
receive its equivalent in cash or securities, at the rate of quotation; and compulsory heirs, UNLESS: a. Made to strangers; 

should there be neither cash or marketable securities in the estate, so much a. When the donor provides b. Made to compulsory heirs,
of the other property as may be necessary shall be sold at public auction. otherwise or 
 if the donor so provides; 

b. The donee renounces 
 c. Made to compulsory heirs
If the property donated was movable, the co-heirs shall only have a right to c. Those in excess of the who renounce the
select an equivalent of other personal property of the inheritance at its just legitime inheritance; 

price. (1048) 2. Expenses incurred by the d. Made to compulsory heirs,
parents for the child’s but in excess of their
professional, vocational, or legitime, as to the excess. 

SECOND SENSE – Imputation.
other career, but only when the e. Which are expenses
donor provides that it will incurred by the parents for
Applies if Art. 1073 is not possible. charged to the legitime 
 the child’s professional,
a. Immovables – cash or securities 3. Wedding gifts by parents and vocational, or other career
b. Movables – similarly valued movable ascendants to children or (unless the donor provides
descendants consisting of otherwise) 

Art. 1075. The fruits and interest of the property subject to collation shall not jewelry, clothing, and outfit, as f. Wedding gifts by parents
pertain to the estate except from the day on which the succession is to the amount exceeding 1/10 and ascendants to
opened. of the estate 
 children or descendants
4. Testamentary Dispositions to consisting of jewelry,
For the purpose of ascertaining their amount, the fruits and interest of the compulsory heirs, but only when clothing, and outfit (as to
property of the estate of the same kind and quality as that subject to the testator provides that it will the amount equal to or less
collation shall be made the standard of assessment. (1049) charged to the legitime than 1/10 of the estate)
2. Testamentary Dispositions to
THIRD SENSE – Return compulsory heirs (unless the
testator provides that it will be
charged to the legitime) and to
Q – What If the donation turns out to be inofficious?
strangers
• Of course the done should return the donated property to the
estate
• The fruits and interests acrruing from the time of the decedent’s
death should also be returned. This is because it I from that time
that the rightful heirs should have acquired it.

IF DONATION TOTALLY IF DONATION PARTIALLY

INOFFICIOUS INOFFICIOUS
Return entire fruits Return only a pro-rated amount of
fruits and interests

Art. 1076. The co-heirs are bound to reimburse to the donee the necessary
expenses which he has incurred for the preservation of the property
donated to him, though they may not have augmented its value.

The donee who collates in kind an immovable which has been given to him
must be reimbursed by his co-heirs for the improvements which have
increased the value of the property, and which exist at the time the partition
if effected.

As to works made on the estate for the mere pleasure of the donee, no
reimbursement is due him for them; he has, however, the right to remove
them, if he can do so without injuring the estate. (n)

THIRD SENSE – RETURN – on the assumption that the donation is totally

inofficious, the done should return the property. However, is he entitled to
reimbursement on expenses made to the property?

TOTAL RETURN PARTIAL RETURN

NECESSARY EXPENSES Yes. Reimburse to the Yes. Proportional to
FULL extent. the value to be
returned.
USEFUL EXPENSES Yes. Reimburse to the Yes. Proportional to
FULL extent. (If the the value to be
things is still there) returned.
ORNAMENTAL No. That’s for the No. But if the
EXPENSES donee’s account. ornament is located
(But the done can in the portion which
remove it provided will not be returned
that no injury to (donee’s portion),
property) then it’s the donee’s.

Art. 1077. Should any question arise among the co-heirs upon the obligation
to bring to collation or as to the things which are subject to collation, the
distribution of the estate shall not be interrupted for this reason, provided
adequate security is given. (1050)

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 SECTION 6. - PARTITION AND DISTRIBUTION OF THE ESTATE
SUBSECTION 1. – PARTITION
BALANE – When the decedent dies, there is already “juridical” assignment
or transfer of the estate to the heirs. Partition is the means of how this is really
done. After the decedent’s death, there will always be some interval of time
before partition occurs, it may be a short interval if there is no issue, or a long
one if there are a lot of issues or if there is a will. The consequence of this
“juridical” vesting upon the decedent’s death is that a co-ownership is
automatically constituted by operation of law over the net hereditary
estate. This co-ownership will subsists until partition is effected. Thus, until
there is partition, the properties may even pass to the heirs of the heirs, co-
owned by the other heirs of the heirs 
 person will get.
Q – What is partition?
• Partition is the process in which the estate is finally disposed of or
assigned actually/physically or constructively to the heirs
• Separate, divide and assign.
Q – When do you partition?
• Only if there’s a net estate remaining.
• And of course, only if there is more than one heir.
Q – What is partitioned?
• Only the mass of properties constituting the net hereditary estate
is partitioned.
• What the successors acquire vested rights over is the net estate
and the net estate remains after
1. All the unpaid debts of the decedent are paid and
2. The value of the donations inter vivos is added
• The immediate effect if the decedents death is a co-ownership
of the heirs over the entire mass of properties.
• This co-ownership lasts until there has been partition.
Q – How may partition be done? Either may be availed with or without
• EXTRAJUDICIALLY – Decedent dies intestate and there are no
debts.
1. All the heirs agree among themselves – Upon
agreement, partition is already valid.
2. If registered property is included, publish the partition
in a public document
3. Go to the Register of Deeds to have titles transferred
• JUDICIAL
1. Settlement proceeding
2. Ordinary action on co-ownership in a will
Q – What is the general Procedure?
a. If with a will, it must first be probated. After probate, the heirs can
choose between:
i. Extrajudicial
ii. Judicial – Judge will divide but will first give the heirs a
chance to submit their own partition.
b. If the heirs do not agree on the partition , the judge will appoint
a commissioner.
c. Commissioner will submit a project of partition to the judge. This
project of partition, however, is not binding on the judge.
d. The judge will issue an order of partition.
e. Property will be adjudicated among the heirs accordingly.
Art. 1078. Where there are two or more heirs, the whole estate of the
decedent is, before its partition, owned in common by such heirs, subject to
the payment of debts of the deceased. (n)
Art. 1079. Partition, in general, is the separation, division and assignment of
a thing held in common among those to whom it may belong. The thing
itself may be divided, or its value. (n)
NOTE – Even if partition is made years later, remember that succession rights
vest at the time of the decedent’s death and the heirs are deemed to have
acquired property at that time.
KINDS OF PARTITION
ACTUAL CONSTRUCTIVE
Physical division of the Any act, other than physical division, which terminates
thing among the co- the co-ownership (such as sale to a third person)
heirs.
c. Sale, exchange, compromise or any other
transaction (Art. 1082)
d. Sale of the thing and division of the proceeds
among the heirs (Art. 1086)
 NOTE – The Legasto Case was based on the Spanish Code. Not. Art. 1080
• To a third person, or
• If none of the co-heirs object, to any one of
them who is interested. 

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Art. 1080. Should a person make partition of his estate by an act inter vivos,
or by will, such partition shall be respected, insofar as it does not prejudice
the legitime of the compulsory heirs.
A parent who, in the interest of his or her family, desires to keep any
agricultural, industrial, or manufacturing enterprise intact, may avail himself
of the right granted him in this article, by ordering that the legitime of the
other children to whom the property is not assigned, be paid in
cash. (1056a)
BALANE – PAR. 1 – Q – Can the decedent himself effect the partition? How?
1. BY MAKING A WILL – making two things
a. TESTAMENTARY DISPOSITION – State what value the
b. PARTITION – State specific property the heir will get or
what comprises the value.
EXAMPLE – X has no compulsory heirs. He states in his will "I give
to A 1/3 of my estate. To comprise A's share, I would like her to
get my house in Alabang."
The testator is allowed to do so even if he has compulsory heirs.
The partition is valid as long as the items given do not impair the
legitime.
2. BY ACT INTER VIVOS – private writing not a will, such as sale.
• FAJARDO V. FAJRDO – this should be in writing
• LEGASTO V. VERSOZA – It must observe the formalities
of a will.
• CHAVEZ V. IAC – But an oral partition is also valid.
RULE UNDER THE OCC – to do this, there has to be a prior existing
will. Why? If no prior existing will, you are giving the person power
to make dispositions not in the form of a will. This is seen in the use
of the word "testator" in the article.
RULES UNDER THE NCC, IS IT VALID?
• Yes, as long as (it is) strictly confine(d) to rules of
intestate succession since there is no will. (You) can
only state what properties they are to receive and not
make testamentary dispositions.
• Otherwise, he will have to make a supporting will. This
is seen in the use of the word "person" in the article.
NOTE: (This) can still be done in (the) manner done in the OCC.
EXAMPLE: Estate of A consists of RTW factory and cash. A has 3
compulsory heirs X, Y and Z. A wants the factory to go to X. A
makes a partition "Factory to X. Y and Z are to get their legitime
in cash."
This is valid. Because legitimes are only values and not specific
properties. Also, the legitimes are not impaired.
BUT THIS PARITION
1. Takes effect only upon his death and
2. Is revocable as long as he is alive
3. The legitimes of the compulsory heirs should not be impaired.
CASE – LEGASTO V. VERZOSA
• A testator may, by an act inter vivos, partition his property, but he
must first make a will with all the formalities provided for by law.
And it could not be otherwise, for without a will there can be no
testator; when the law, therefore, speaks of the partition inter
vivos made by the testator of his property, it necessarily refers to
that property which he has devised to his heirs.
• It is an indispensable condition precedent to a testator
partitioning his estate inter vivos that he have made a valid will
disposing of said estate among his heirs; and if this will be
declared null and void, the partition made by the testator in
pursuance of its provisions is likewise null and void, for where
these provisions cease to exist, the partition made in conformity
therewith also becomes null and void, as the cessation of the
cause implies the cessation of the effect.
• In this case, since the will is null and void for lack of the legal
requisites, consequently, the partition which she made of her
estate among her nieces the defendants-appellants herein,
during her lifetime is likewise null and void.
does not say testator but person. It no longer applies under the present rules.
Q – Can the predecessor make a partition without a will?
• NOW, YES.
• Partition inter vivos can be validly made even without a will
provided that it is not used to make mortis causa dispositions.
• You can just put it in a simple document.
• In other words, by following strictly the intestate portions and
legitimes provided for by law. The partition should conform
exactly to the portions under the rules on intestacy and legitimes.
• Hence, the dispositions should be by virtue of intestate and
compulsory succession.
CASE – CHAVEZ V. IAC
• In the case, Manuela assigned or distributed her estate equally
among her six (6) children. Three of those sold their share to a
sister, Concepcion, with the consent of Manuela. Manuela then
sold the entire property to Ferrer. Was the partition by an act inter
vivos valid?
• Yes. Art. 1080 allows the person to make a partition. If the
partition is by will, it must be with the formalities on wills. If the
partition is by an act inter vivos, the partition may be oral or
written, and need not be in the form of a will, provided the
partition does not prejudice the legitime of the compulsory heirs.
The deeds of sale between Concepcion and her sisters are valid
beause. they are not contracts with respect to future inheritance
but rather a contract perfected and consummated during the
lifetime of Manuela, who signed and gave her consent.
Art. 1081. A person may, by an act inter vivos or mortis causa, intrust the
mere power to make the partition after his death to any person who is not
one of the co-heirs.
The provisions of this and of the preceding article shall be observed even
should there be among the co-heirs a minor or a person subject to
guardianship; but the mandatary, in such case, shall make an inventory of
the property of the estate, after notifying the co-heirs, the creditors, and the
legatees or devisees. (1057a)
BALANE
1. Under this article, partition may be made by:
a. the testator himself;
b. Third person who is not an heir.
2. Does this article also prohibit a devisee or legatee from being
appointed? It is not certain. If he is given a specific portion, then
there is no temptation to favor himself. But if his share be a
generic portion, then the temptation exists.
3. Mandatary refers to a person entrusted to make the partition –
cannot be a co-heir to ensure fairness and impartiality.
Art. 1082. Every act which is intended to put an end to indivision among co-
heirs and legatees or devisees is deemed to be a partition, although it
should purport to be a sale, and exchange, a compromise, or any other
transaction. (n)
BALANE – Any act or any mode of distribution that ends the co-ownership
is a partition. The rules on co-ownership apply.
1. Physical partition, e.g., actually dividing the land.
2. Constructive partition – Art. 1086
Q – If indivisible (e.g., a house) or if it will be greatly impaired if partitioned.
How do you partition? By constructive partition.
a. Assign the property to the one who will give the other share in
cash.
b. If any object, the property is sold at public auction. Why will any
object? Public auction will usually bring a higher selling price.
Q – How do you determine if the property is indivisible or not?
• By agreement between the co-owners. If none, the courts will
decide.
CASE – TUASON V. TUASON
• The agreement was that the co-owners would improve the
property and construct roads and then subdivide it into small lots
for sale. In return, they would receive the gross selling price and
the rents that may be collected from the property.
• The contract itself has for its purpose and object, the dissolution
of the co-ownership by selling the lots owned in common and
dividing the proceeds of the same among the co-heirs.
• The obligation in the contract to preserve the co-ownership until
all the lots shall have been sold is merely an incident to the main
object of dissolving the co-ownership.
Art. 1083. Every co-heir has a right to demand the division of the estate (at
any time) unless the testator should have expressly forbidden its partition, in
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which case the period of indivision shall not exceed twenty years as
provided in article 494. This power of the testator to prohibit division applies
to the legitime.
Even though forbidden by the testator, the co-ownership terminates when
any of the causes for which partnership is dissolved takes place, or when
the court finds for compelling reasons that division should be ordered, upon
petition of one of the co-heirs. (1051a)
GENERAL RULE – Any co-heir may demand partition at any time, as matter
of right.
EXCEPTION – When the indivision is imposed by (no partition)
1. When forbidden by the testator – 20 years max.
2. When the co heirs agree on indivision – 10 years max.
3. When the law prohibits partition
EXCEPTION TO THE EXCEPTION
a. When any of the causes for the dissolution of a partnership occurs
(Articles 1830-1831)
b. When the court finds compelling reasons for partition.
BALANE – Such as if the co-heirs are always quarrelling to the point that they
want to kill each other
Art. 1084. Voluntary heirs upon whom some condition has been imposed
cannot demand a partition until the condition has been fulfilled; but the
other co-heirs may demand it by giving sufficient security for the rights which
the former may have in case the condition should be complied with, and
until it is known that the condition has not been fulfilled or can never be
complied with, the partition shall be understood to be provisional. (1054a)
RULE
1. The heir instituted under a suspensive condition acquires no rights
unless and until the condition happens. – Their right as heir vests only
when the suspensive condition happens.
2. The other heirs have the right to demand partition, but they must
give adequate security. – They must give sufficient security for the
rights which the former may have in case the condition should be
complied with, and until it is known that the condition has not been
fulfilled or can never be complied with, the partition is still
provisional.
Art. 1085. In the partition of the estate, equality shall be observed as far as
possible, dividing the property into lots, or assigning to each of the co-heirs
things of the same nature, quality and kind. (1061)
BALANE – We already saw this in collation (Art. 1073,1074).
• It applies to heirs similarly situated.
• It is subject to agreement between the parties and the realities
of the situation, if there are properties of the same kind.
• It’s NOT mandatory but is merely a guide. 

Q – How do co-heirs share the partitioned estate?
1. Quantitative – The shares of the co-heirs are NOT necessarily
equal in value, but are determined by law and by will.
2. Qualitative – Equality in nature, kind, and quality (whatever the
aliquot portions be) 

So that if A gets a fishpond, B should also be given one.
EXCEPT
a. If the causante (the decedent) has made the partition
himself; 

b. If co-heirs agree otherwise 

c. If qualitative equality impossible or impracticable (no similar
properties) 

Art. 1086. Q – When is this form of constructive partition resorted to? Should
a thing be indivisible, or would be much impaired by its being divided, it
may be adjudicated to one of the heirs, provided he shall pay the others
the excess in cash.
Nevertheless, if any of the heirs should demand that the thing be sold at
public auction and that strangers be allowed to bid, this must be
done. (1062)
BALANE – If one or more of the heirs demand that the property be sold
publicly, then this prevails over the offer of one to give the others their share
in cash because he will buy it.
Q – To whom may the thing be sold?
a. To a stranger
b. To any one of the co-heirs if none of them object. (no right of
redemption in this case)
Art. 1087. In the partition the co-heirs shall reimburse one another for the
income and fruits which each one of them may have received from any
property of the estate, for any useful and necessary expenses made upon
such property, and for any damage thereto through malice or
neglect. (1063)
ILLUSTRATION – A, B and C are heirs. A, B and C take possession and
manage a fishpond, citrus plantation and apartment house respectively.
Later, they decide to partition the property. Assuming they have equal
shares, they must each account for the fruits actually received and these
fruits will be divided equally among them.
A received 30 as fruits
B received 50 as fruits
C received 20 as fruits
Add this and divide equally among them.
Art. 1088. Should any of the heirs sell his hereditary rights to a stranger before
the partition, any or all of the co-heirs may be subrogated to the rights of
the purchaser by reimbursing him for the price of the sale, provided they do
so within the period of one month from the time they were notified in writing
of the sale by the vendor. (1067a)
Art. 1620. A co-owner of a thing may exercise the right of redemption in
case the shares of all the other co-owners or of any of them, are sold to
a third person. If the price of the alienation is grossly excessive, the
redemptioner shall pay only a reasonable one.
Should two or more co-owners desire to exercise the right of redemption,
they may only do so in proportion to the share they may respectively
have in the thing owned in common.
Art. 1619. Legal redemption is the right to be subrogated, upon the
same terms and conditions stipulated in the contract, in the place of one
who acquires a thing by purchase or dation in payment, or by any other
transaction whereby ownership is transmitted by onerous title.
Q – Can the heirs sell his share even before partition? Yes.
• He can dispose his aliquot share gratuitously or onerously.
• Since successional rights vest at the moment of the decedent’s
death.
Q – Can the other heirs redeem the portion sold?
• Yes. Provided that the following requisites are present
a. The sale must be to a stranger
b. The right may be exercise only before partition and not
after.
c. Co-heir must exercise the right of redemption within one
month from written notice to them by the vendor.
d. Where more than one co-owner wish to redeem, all the
co-owners wishing to redeem may do so, but in
proportion to each one’s hereditary interest over the
mass.
• These co-heirs should be notified in writing by the selling heir,
otherwise, the period does not commence to run.
Q – Is this written notification required?
• YES. See GARCIA V. CALALIMAN.
CASE – GARCIA VS. CALALIMAN
• Written notice is indispensable, actual knowledge of the sale
acquired in some other manners by the redemptioner,
notwithstanding. Even if there is already a registration of the deed
of sale with the Register of deeds (Actual Notice). He or she is still
entitled to written notice, as exacted by the Code, to remove all
uncertainty as to the sale, its terms and its validity, and to quiet
any doubt that the alienation is not definitive. 
 heirs, but if any one of them should be insolvent, the other co-heirs shall be
• The law not having provided for any alternative, the method of
notifications remains exclusive, though the Code does not
prescribe any particular form of written notice nor any distinctive
method for written notification of redemption 

• BALANE – The Court has, in at least three recent cases, however,
relaxed the requirement of written notice and held that actual
notice to, or knowledge by, the co-heir achieves the purpose of
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the law and meets the legal requirement. Alonzo v. IAC, Distrito
v. CA, Fernandez v. Tarun. Alonzo declared, however, that it was
not abandoning the previous rulings but was simply laying down
an exception to the general rule, in view of peculiar
circumstances. Whether these three cases are merely exceptions
or are portents of changing jurisprudence, remains to be seen.
The subsequent case of Primary Structures v. Valencia,
characterizing the written notice as “mandatory” and stating that
“notwithstanding actual knowledge of a co-owner, the latter is
still entitled to a written notice” may indicate a return to the
previous strict interpretation. The subsequent case of Cua v.
Vargas also adopts the strict interpretation. And so swings the
pendulum. 

BALANE – The right of redemption given to the co-heir provided the co-heir/
vendor sold his undivided share or a portion thereof in the estate.
Article 1620 on legal redemption and Art. 1088 are the same. The only
difference is in the application.
1. Art. 1620 applies to specific property
2. Art. 1088 applies to hereditary mass
Q – How will the right of redemption be exercised?
a. If only one will redeem, he will pay the purchase price.
b. If more than one will redeem, they will pay purchase price
proportionally to their share in the property.
NOTE – Share must have been sold to a stranger. If sold to a co-heir, the right
of redemption does not exist. Why? The purpose is to keep the proprietary
mass within the co-owners.
Art. 1089. The titles of acquisition or ownership of each property shall be
delivered to the co-heir to whom said property has been
adjudicated. (1065a)
BALANE – Once partition is made, respective titles are given to the
respective heirs. Why? So that they can transfer the titles in their names.
Art. 1090. When the title comprises two or more pieces of land which have
been assigned to two or more co-heirs, or when it covers one piece of land
which has been divided between two or more co-heirs, the title shall be
delivered to the one having the largest interest, and authentic copies of the
title shall be furnished to the other co-heirs at the expense of the estate. If
the interest of each co-heir should be the same, the oldest shall have the
title. (1066a)
BALANE – (This is) to enable everybody to get their respective properties.
Usually you must have the land resurveyed.
SUBSECTION 2. - EFFECTS OF PARTITION
Art. 1091. A partition legally made confers upon each heir the exclusive
ownership of the property adjudicated to him. (1068)
BALANE – Effect of partition – Art. 1091 or to terminate co-ownership.
Art. 1092. OBLIGATION OF MUTUAL WARRANTY – After the partition has been
made, the co-heirs shall be reciprocally bound to warrant the title to, and
the quality of, each property adjudicated. (1069a)
BALANE – Warranties are the same as in sales:
1. Eviction (title)
2. Hidden defects (quality)
Q – Three co-heirs A, B and C divided the land they inherited equally. But
part of the land given to A did not really belong to the predecessor so A
losses part of his share. What happens?
• B and C will be liable for the warranty for the part lost.
• They will either:
a. give cash; or
b. give land.
Art. 1093. The reciprocal obligation of warranty referred to in the preceding
article shall be proportionate to the respective hereditary shares of the co-
liable for his part in the same proportion (other bound to make good the
warranty), deducting the part corresponding to the one who should be
indemnified.
Those who pay for the insolvent heir shall have a right of action against him
for reimbursement, should his financial condition improve. (1071)
BALANE – ILLUSTRATION: A, B, C and D. A lost part (as in Art. 1092) worth
90.
1. B, C and D will share equally in the 90, 30 each
2. If D is insolvent, A, B and C will shoulder his 30 share, 10 each
3. GENERAL RULE – A, B and C have a right of reimbursement against
D should his financial situation improve.
EXCEPTION – If D gets a judicial declaration of insolvency. This
wipes out all his debts.
NOTE – There is NO warranty for bad debts, if so known to, and accepted
by, the co-heir as his share
BALANE – A co-heir who accepts a known bad debt as his share is either a
fool or a masochist. The law does not protect you from your own foolishness.
Art. 1094. PRESCRITION OF THE ACTION TO ENFORCE WARRANTY – An action
to enforce the warranty among heirs must be brought within ten years from
the date the right of action accrues. (n)
BALANE – The ten (10) years is counted from the time the portion was lost or
the hidden defect was discovered.
Art. 1095. CREDIT IS ASSIGNED TO CO-HEIR IN PARTITION – If a credit should
be assigned as collectible, the co-heirs shall not be liable for the subsequent
insolvency of the debtor of the estate, but only for his insolvency at the time
the partition is made.
The warranty of the solvency of the debtor can only be enforced during the
five years following the partition.
Co-heirs do not warrant bad debts, if so known to, and accepted by, the
distributee. But if such debts are not assigned to a co-heir, and should be
collected, in whole or in part, the amount collected shall be distributed
proportionately among the heirs. (1072a)
Q – Can you assign a credit? Yes. A credit is a property.
TIME OF INSOLVENCY OF THE DEBTOR IS IMPORTANT
a. If the debtor was originally solvent (solvent before the
assignment), then later on becomes insolvent, the co-heirs are
not liable.
b. If the debtor was insolvent before the partition.
RULES
• GENERAL RULE: Warranty holds and co-heirs are liable.
• EXCEPTION: If co-heir/ distributee knew of the insolvency and still
accepted the bad debt
Art. 1096. INSTANCES WHEN THERE IS NO MUTUAL WARRANTY – The obligation
of warranty among co-heirs shall cease in the following cases:
1. When the testator himself has made the partition, unless it
appears, or it may be reasonably presumed, that his intention
was otherwise, but the legitime shall always remain unimpaired;
2. When it has been so expressly stipulated in the agreement of
partition, unless there has been bad faith;
3. When the eviction is due to a cause subsequent to the partition,
or has been caused by the fault of the distributee of the
property. (1070a)
NO WARRANTY IN THESE CASES
1. Partition by the testator himself (save where the legitime has
been impaired) 
 a.
2. Agreement among the co-heirs to suppress the warranty 
 b.
3. Supervening events causing the loss or the diminution in value 
 prejudiced heir the monetary equivalent of the damage. Pay the
4. Fault of the co-heir 
 person deficiency is all agrees.
5. Waiver 

EXCEPTION – The legitimes have been impaired
SUBSECTION 3. - RESCISSION AND NULLITY OF PARTITION
Art. 1097. A partition may be rescinded or annulled for the same causes as
contracts. (1073a)
BALANE:
A. Rescission – Articles 1381 to 1382.
B. Annulment – Art. 1390.
1. Party incapable of giving consent
2. Vitiated consent
a. Mistake
b. Violence
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c. Intimidation
d. Undue Influence
e. Fraud.
Art. 1098. A partition, judicial or extra-judicial, may also be rescinded on
account of lesion, when any one of the co-heirs received things whose
value is less, by at least one-fourth, than the share to which he is entitled,
considering the value of the things at the time they were
adjudicated. (1074a)
Q – When is lesion a ground to rescind partition?
• EXAMPLE – Legitime should be 1M. But the partition a person got
is only 750K.
• There is lesion = 250K, thus, Rescissible.
• But if injury is less than 25%, then ask for completion.
BALANE – Note the slight variation of Art. 1098 from pars. 1 and 2 of Article
1381, which specifies more than one-fourth. Evidently, in cases of partition
of the inheritance, Article 1098 applies, or at least 1/4. Lesion is exceedingly
difficult to determine and evaluate and is viewed with increasing disfavor
by modern civil law.
Lesion is the same as that in Art. 1381, paragraphs 1 and 2. This applies
whether the partition was judicial or extrajudicial.
ILLSUTRATION – A is a co-heir of B and C. A is entitled to receive 100. In
partition, he receives:
1. Property worth 80. No rescission of partition bec. the lesion is less
then 1/4. But A has rights under the warranties. So he can ask for
completion.
2. Property is worth 75. There is lesion so A can demand for the
rescission of the partition.
In actuality, (this is) hard to do – how do you prove values, they are very
subjective. This is not looked upon with favor by Civil Law commentators.
Art. 1099. The partition made by the testator cannot be impugned on the
ground of lesion, except when the legitime of the compulsory heirs is
thereby prejudiced, or when it appears or may reasonably be presumed,
that the intention of the testator was otherwise. (1075)
BALANE – If partition was done by the testator
GENERAL RULE – The heirs cannot demand rescission on the ground of lesion.
EXCEPTIONS
a. when the legitime of any compulsory heir was impaired.
b. when the testator's intent was not carried out.
Art. 1100. The action for rescission on account of lesion shall prescribe after
four years from the time the partition was made. (1076)
Art. 1101. The heir who is sued shall have the option of indemnifying the
plaintiff for the loss, or consenting to a new partition.
Indemnity may be made by payment in cash or by the delivery of a thing
of the same kind and quality as that awarded to the plaintiff.
If a new partition is made, it shall affect neither those who have not been
prejudiced nor those have not received more than their just share. (1077a)
BALANE – If there is lesion, there are two (2) options
Make a new partition/ Re-partition
Indemnify the suing heir the amount of lesion suffered. Give the
Q – Who can choose? The heir sued.
EXAMPLE – A, B and C. A is supposed to receive 100,000. He receives only
70,000. A sues B and C. B and C has the choice of which option to follow.
Art. 1102. An heir who has alienated the whole or a considerable part of the
real property adjudicated to him cannot maintain an action for rescission
on the ground of lesion, but he shall have a right to be indemnified in
cash. (1078a)
Art. 1103. The omission of one or more objects or securities of the inheritance
shall not cause the rescission of the partition on the ground of lesion, but the
partition shall be completed by the distribution of the objects or securities
which have been omitted. (1079a)
BALANE – This contemplates a case where there is an incomplete partition.
Why? E.g., It was not known that they existed. The solution is to partition the
newly discovered objects.

Art. 1104. A partition made with preterition of any of the compulsory heirs
shall not be rescinded, unless it be proved that there was bad faith or fraud
on the part of the other persons interested; but the latter shall be
proportionately obliged to pay to the person omitted the share which
belongs to him. (1080)

BALANE
• This refers to omission of heir in partition and not to preterition.
• The heir omitted has the right to demand his share.

Q – What if an heir is mistakenly excluded in the partition (not preterition)?

What can he do?
• If the omission was in good faith à indemnity he simply gets his
rightful share.
• If omission was in bad faith à have the partition annulled.

BALANE – I have a friend who is a lawyer (who lived in some province), he

had 6 children, his eldest was a girl and the others were boys. His eldest son
was the type who wanted to live life to the fullest and was always restless,
one day, the son disappeared. My friend, the father never saw him again,
but he thinks the son is somewhere in mindanao and wishes him well. If
assuming that the father dies and the estate is accordingly partitioned, but
the eldest son later re-appears and demands his share, then the co-heirs will
simply proportionally give him his share. No bad faith or fraud here, thus, no
rescission.

Art. 1105. A partition which includes a person believed to be an heir, but

who is not, shall be void only with respect to such person. (1081a)

Q – What if a person is mistakenly included in the partition?

• The property will be taken away from him and redistributed
among the proper recipients. It does not nullify the partition.

BALANE – This is the reverse of the preceding article. Here an outsider is

mistakenly included in the partition. The obvious remedy is to recover the
property from him and have it redistributed among the proper recipients.
No rescission here, just get back the share and make a supplemental
partition

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