WILLS AND SUCCESSION

Notes from the discussion of Atty. Reyes

SUCCESSION
-derivative form of acquiring property
-donation may be
1. inter vivos or ordinary: during the lifetime of both donor and donee; title is acquired from the notice of
acceptance and after formal requisites are followed
2. mortis causa: title is acquired upon death of the donor

Distinctions:
Inter vivos
1. formalities of ordinary donation
- real: donation and acceptance is embodied
in a public instrument
- personal: if more than 500.00, donation and
acceptance must be in writing
- others: actual and physical transfer
2. date of effectivity
- from the moment the donor receives the notice
of acceptance
3. acceptance
- must be made during the lifetime of the donor;
transfer is not dependent upon death of donor
4. provisions
- irrevocable
- revocable on the following grounds:
*acts of ingratitude
*failure to comply with a condition
*appearance of children, adoption
*inofficiousness of the donation
5. may entitle the donor to the usufruct of the donated 5. upon execution of instrument, naked or absolute
property during the lifetime of the donor
Mortis causa
1. formalities of ordinary donation
- in the form of a will (notarial or holographic)
- failure to comply with the formalities,
prescription may take place
2. date of effectivity
- upon death of donor
- during the lifetime of the donor, donee has a
mere inchoate right
3. acceptance
- made after the death of donor; transfer is
dependent upon death of donor
4. provisions
- predecease of the donee renders the
donation invalid
- revocable on the following grounds:
- *at the will of donor
- *upon predecease of donee
- *donee alienates to a third person
title is retained by the donor subject to transmission
of the property upon death of donor

Elements of mortis causa succession

1. mode of acquiring ownership
2. there is death
two kinds:
- actual / physical death; death which extinguishes civil personality
- presumptive death
* ordinary absence (no danger of death)
4 years: remarriage
5 years: all purposes if disappeared at the age of 75 or more
7 years: all purposes except succession
10 years: all purposes including succession
* extraordinary absence: 4 years
example: battle of war, on board a vessel / aircraft (both plane / vessel and passenger are missing);
similar / analogous circumstances
*** value of estate at the time he disappeared (unlike in ordinary absence): the difference is called
after-acquired property which cannot be passed by the same will
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- distinctions:
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* actual / physical: rights acquired upon distribution

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 * presumptive death: rights acquired upon confirmation of death; if reappeared, the capital must be given
back
3. object of succession
- estate vs inheritance
* estate
- all transmissible property rights and obligations which survives the death of the transferor: computed at
the time death plus whatever accrued after death (gross estate)
* inheritance
- value of the property after paying all transmissible obligations of hereditary estate; distributable ultimately
to the heirs (net estate)
4. parties
a. decedent: person who died
- testator if there is valid will
- intestate if no valid will
b. heirs: beneficiaries
- compulsory heirs: legitimes (limited to family and spouse); direct descending, direct ascending, spouse
- universal heirs: named in a will who is given the whole or fraction of the property
- legatee: given specific personal property (legacy)
- devisee: given specific real property or any interest therein (device)
- legal / intestate heirs: if there is no will or the will is nullified; relative by consanguinity up to 5th degree;
absence of which makes the Philippines the heir
*** heirs must accept the donation, otherwise, the conveyance is incomplete; may renounce or repudiate;
must comply with the formalities required

A donation mortis causa has the following characteristics:

1. It conveys no title or ownership to the transferee before the death of the transferor; or, what amounts to the
same thing, that the transferor should retain the ownership (full or naked) and control of the property while alive;
2. That before his death, the transfer should be revocable by the transferor at will , ad nutum; but revocability may
be provided for indirectly by means of a reserved power in the donor to dispose of the properties conveyed; and
3. That the transfer should be void if the transferor should survive the transferee

Contractual Succession
GR: mere device of contract (contractual succession) does not vest transfer of ownership because what are
allowed are by means of legal relationship and will only
ER: aleatory contracts which is contingent upon death of donor: this is a survivorship agreement (ex: insurance)
is a valid contract for as long as it:
- does not violate rules on prohibited donation
- does not circumvent rules on will
- is not made to defraud creditors
- does not prejudice the compulsory heirs of their legitimes

Rationale of Laws on Succession

1. founded on natural law: to fulfill the natural expectation of owner to transmit his properties to persons who
benefits from his love and affection
2. to contribute to social order
3. to respect the right of the owner to dispose his own property

NOTES ON CASES
1. inter vivos: reservation or reddendum means retention of mere beneficial ownership, the naked title is already
given to the donee (usufruct)
2. inter vivos: a condition that the donor and donee cannot alienate the subject property
3. mortis causa: registration is allowed upon death of donor
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4. inter vivos + compulsory heirs = collation

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5. mortis causa, regardless of the presence of compulsory heirs = no need for collation
6. valid survivorship agreement such as aleatory contacts but consider the limitations (vitug v. ca: pro hac vice)
7. heirs have the right to collect unpaid debts for the estate, NOT for themselves (pasco v. heirs of de guzman)
8. sale before death: heirs are no longer entitled (balus v. balus)
9. iron-barrier rule: illegitimates cannot inherit by operation of law from the legitimates of his mother / father and
vice-versa (dela merced v. dela merced)
10. if administrator has been appointed, any alienation must be approved by the court except
- by an heir in such capacity
- such alienation will not prejudice the legitimes of other heirs (opulencia v. ca)
11. rights of succession is transferred upon the death of the precedent; heirs can represent the estate pending the
appointment of administrator; co-owner may represent his co-owners but the effect may vary (rioferio v. ca)
12. extrajudicial sale with simultaneous sale: even if not yet registered owners, they have successfully sold the
property by virtue of their inheritance (coronel v. ca)
13. proprietary rights such as distributive share in the partnership is transmissible to the heirs (emnace v. ca)
14. estate of decedent is the continuation of his civil personality; thus, the right to the franchise survives the death
of the applicant because CPC shall not pass upon the death of applicant and also, CPC is purely personal (limjoco
v. fragrante)
15. friar land act shall apply in cases where the decedent bought the friar land from the government; thus the
surviving spouse acquired the entire property by operation of law notwithstanding the presence of a will
(arayata v. joya)
16. children, not the estate, were made to pay the debts of the decedent because they were benefited from the
subject property (alvarez v. iac)
17. corporation cannot be included as an asset of the estate; the proper action should have been the inclusion of
share of stock in the inventory; the doctrine of piercing the veil of corporate fiction is not applied in the case (lim
v. ca)
18. whether or not leasehold rights survive the death of the lessor or the lessee
GR: yes because the subject in the case are property rights
BUT in the case, the contract itself provides for the limitation of the lessee's period of lease; lastly, their stay was
allowed by mere tolerance by the lessor (estate of llenado v. llenado)
19. the new owner (heir) has the obligation to maintain the lease agreement; proprietary rights and obligations
are transmissible; renewing the lease may be done without option to buy because the option is not contingent
upon the renewal of the lease agreement (dkc holdings v. ca)
- proprietary rights and obligations are transmissible
- monetary obligation attached to the property: transmissible
- monetary obligations which are purely personal are intransmissible and must be charged against the estate
except when the heirs benefited from the debt

Basic Principles of Succession

1. no successional rights are passed during the lifetime of the owner of the property
- prior to death, the right is mere right of expectancy
- acceptance made prior to death is immaterial
2. from the moment of death, the law reserves the estate for the benefit of the family (natural law); succession by
strangers can never be presumed
- non-family members can inherit only by virtue of will and after the compulsory heirs' legitimes are satisfied
3. the family cannot be deprived of their hereditary estate
- members of the family are automatically entitled to legitimes (compulsory heirs)
- compulsory heirs may be validly ousted from their legitimes in case of disinheritance (only through a will)
4. among family members, the inheritance is in equal share
- in intestate succession, half-blood brothers and sisters are not put into equal footing of their half- blood
brother and sisters
5. heirs cannot be made liable beyond the value of their inheritance
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 FORCED SUCCESSION
Legitimes
- refers to the property whether real or personal which is delivered out of the net hereditary estate in favor of
compulsory or forced heirs
- intangible right of compulsory or forced heirs
- right to legitimes is reserved by law to the following:
* primary forced heirs
1st class: legitimate children and descendants
2nd class: surviving spouse
3rd class: illegitimate children

1) legitimate children (including legitimated children who was conceived when the parents are not
suffering legal impediment to marry except minority; adopted children because adoption covers
legitimate filiation between adoptor and adoptee where the relationship is not anchored by marriage)
-> legitimate children: children of the testator borne out of a valid marriage conceived during the validity
of the testator's marriage: no need to prove filiation
if testator had several marriages
-- if successive, all children are considered compulsory heirs
-- if simultaneous, only children during the first marriage are compulsory heirs

2) legitimate descendants (through right of representation; further descendants acquire right of

representation in case of predeceased, incapacity, or disinheritance; no right of representation if
descendant repudiated his right over the estate)
-- iron barrier rule: no right of representation for illegitimate descendant; illegitimate children cannot
inherit by operation of law from the legitimate relatives of their mother and father and vice-versa

3) surviving spouse (widow or widower is a primary forced heir unless there is a subsequent action to
nullify said marriage; if he or she is the guilty spouse, he or she cannot inherit)

4) illegitimate children
- were born or conceived during void marriage except if the ground is psychological incapacity or failure
to register decree of nullity of the prior marriage
- were borne out of wedlock
-- between parents who are capacitated to marry each other ( may be legitimated later)
-- at the time of conception, parents are not capacitated to marry each other
illegitimate children of testator and their descendants, provided the filiation has been established by
acknowledgment
a) the record of birth as appearing in the civil register or a final judgment, which indicates the
recognition of the parent concerned of their illegitimate filiation;
b) admission of illegitimate filiation in a public document or a private handwritten instrument and
signed by the parent concerned;
c) the open and continuous possession of the status of an illegitimate child; or
d) any other means allowed by the Rules of Court and special laws
(a&b filiation during the lifetime of the child but nothing bars acknowledgement after death of child;
(c&d filiation during lifetime of putative father)
-- further descendants acquire right of representation in case of illegitimate who is predeceased,
incapacitated, or disinherited; right of representation extends to both legitimate and illegitimate
children, there is no iron barrier rule
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 * secondary forced heirs: inherit the legitimes in default of one class of primary forced heirs
1) for legitimate decedent: legitimate parents or other ascendants; if testator died without legitimate
issues
2) for illegitimate decedent: illegitimate parents and no other ascendant; only when the illegitimate
descendant died without any descendant
3) for illegitimate child: only the mother unless there is acknowledgment of the father

In ascending lines, rule on proximity, excluding others, will apply

Principles (legitime as an intangible right)

I. Legitime is not subject to waiver prior to death of decedent
- No contract may be entered into upon a future inheritance except in cases expressly authorized by law. For the
inheritance to be considered future, the succession must not have been opened at the time of the contract. A
contract may be classified as a contract upon future inheritance, prohibited under the second paragraph of Article
1347, where the following requisites concur:
(1) That the succession has not yet been opened.
(2) That the object of the contract forms part of the inheritance; and,
(3) That the promissor has, with respect to the object, an expectancy of a right which is purely hereditary in
nature.

II. Legitime is not subject to impairment

- compulsory heirs cannot be diminished in their right to the inheritance
- impairment may take place by way of:
1. ordinary donation executed by the testator or decedent during his lifetime whether in favor of a stranger or
another compulsory heir; the donation is considered inofficious
2. by way of a will; decedent must consider the share of the compulsory heir; any provision reducing the legitime
must be annulled
- can onerous donation during the decedent's lifetime be annulled? No because there was consideration
received unless what appears to be onerous donation is donation inter vivos or simulated

III. Legitime cannot be the subject of total deprivation

- by way of a will resulting to preterition
- preterition must be annulled because it results to deprivation of one or some of the compulsory heirs of their
legitime

NOTES ON CASES
1. will = partition; the subject is not a future inheritance because there property subject of the compromise
agreement was already existing (Blas v. Santos)
2. waiver of rights over future inheritance is void (sps. diaz v. ferrer)
3. partition inter vivos is valid when it is made by the owner in favor of his compulsory heirs for the purpose of
assigning specific properties; upon death, there is no impairment of the legitimes of other compulsory heirs
4. siblings are not compulsory heirs (concepcion v. sta. ana)
5. testator cannot give what he does not own; the property is owned by the first wife; the children of the first wife
are impaired of their legitimes (dorotheo v. ca)
6. inofficious donation is void only as to the part which caused the impairment of legitimes; inofficiousness must
be questioned within 10 years from death of donor (imperial v. ca)
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 SHARES
compulsory heirs are paid in the following order:
a. LCD
b. SS
c. ICD
 LCD: 1/2 of the net estate of the decedent regardless of the number of illegitimate children
 per capita share: given to the LCDs after partition
 per stirpes share: share of the representatives; cannot exceed the per capita share of the ones they representing

When will farther relatives inherit per capita share?

- if all of the nearest relatives in the descending line repudiated; because they represent their own right

Concepts:
1. fixed legitimes: if the fraction assigned by law does not change whether the compulsory heir survived alone or
in concurrence with other compulsory heirs
2. variable legitimes if the fraction assigned by law changes depending on whether the compulsory heirs survived
alone or in concurrence with other compulsory heirs
3. Principle of concurrence: presence of two or more classes of compulsory heirs will entitle them to legitimes
prescribed by law
4. Principle of exclusion: presence of one class of compulsory heirs bar another class from inheriting the legitimes;
whenever the rule on proximity is applicable, farther relatives are excluded

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Distribution of Legitimes

LCD alone ½ of the estate together as husband and wife

for less than five years, and the
1 LCD ½ of the estate decedent died within three
SS ¼ of the estate months after the celebration of
the marriage
2 or more LCD ½ of the estate ER to ER: ½ if marriage is in
SS Same with each articulo mortis and has been
LCD living together as husband and
wife for five years or more
LCD ½ of the estate
ICD ½ of the ½ of LCD SS 1/3 of the estate
ICD 1/3 of the estate
1 LCD ½ of the estate
ICD (subject to ½ of one legitimate SS ¼ of the estate
reduction) child, each IPA ¼ of the estate
Note: Totality of the
inheritance must not ICD alone ½ of the estate
exceed the free portion
SS (preferred) ¼ of the estate IPA alone ½ of the estate

2 or more LCD ½ of the estate

ICD (subject to ½ of one
reduction) legitimate child,
each
Note: Totality of
the inheritance
must not exceed
the free portion
SS (preferred) Share equal to
that of one
legitimate child

LPA alone ½ of the estate

LPA ½ of the estate

ICD ¼ of the estate

LPA ½ of the estate

SS ¼ of the estate

LPA ½ of the estate

ICD ¼ of the estate
SS 1/8 of the estate

SS alone GR: ½ of the estate

ER: 1/3 if marriage is in articulo
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Summary:
1. Legitimate inherit per capita if all are alive, qualified and did not repudiate; otherwise, they may be represented by
legitimate descendants (per stirpes share)
2. no right of representation in case of repudiation, the share will be passed in the remaining heirs of the one who
repudiated in their own rights, not by right of accretion (if all LCD repudiate, grandchildren will inherit per capita)
3. if all LCD repudiated, illegitimate grandchild can inherit per capita share (iron barrier rule applies only to right of
representation)
4. if separated, innocent spouse can still inherit; otherwise, the share of guilty spouse will go to the free disposable
portion of the estate
5. question as to validity of marriage, check notes
-if the mother questions the legitimacy of child (allegedly not a biological child), the court will require he to provide
evidence
-if on the other hand, the children questions the validity of the parents’ marriage (example: for lack of marriage
license), is this allowed in an estate proceedings?
--GR: actions regarding marriage must be brought within the lifetime of the spouses, being a case which is
personal in nature
--ER: in estate proceedings, part of the duty of the estate court is to determine who are the heirs (this is
intrinsic, NOT a collateral attack)
-prior to death of testator, there is already a final judgment on the nullity of marriage, such judgment is the proof of
filiation itself
-prior to death of testator, there is no final judgment on the nullity of marriage, proof of filiation is needed
6. illegitimate children:
FC if there are legitimates
if no legitimate, CC will apply
7. illegitimate children who died ahead are entitled to be represented by legitimate or illegitimate grandchildren
8. if decedent is legitimate: legitimate descendants OR ascendants; for ascendants, divide between maternal and
paternal line
9. if decedent is illegitimate: parents ONLY
10. when ascendants inherit, their shares are reserved to reserva troncal

RESERVA TRONCAL
- 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 (Art. 891)

Elements
1. there's an ascendant who inherited from descendant (legitimate relatives)
2. inheritance of ascendant must be acquired by operation of law (as share or as intestate share)
- decedent died without any qualified or willing descendant
- there must be a reservable property from another ascendant or half brother/sister (real or personal)
- the decedent acquired the property from ascendant by gratuitous title (succession or donation inter vivos)
3. there must be surviving, willing and qualified reservatarios (legitimate relative by consanguinity within 3rd degree of
the descendant)
- prepositus: the one who died
- reservista: the one who has the obligation to preserve the property (considered as the conditional owner)
- origin: donor
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Rights and obligations
1. during the lifetime of reservista, she has the obligation to cause the annotation of the reservable character within 30
days from the assignment of the property to him
- failure to annotate, legitimate relative by consanguinity within 3rd degree of the decedent may file for an action
for specific performance
2. during the lifetime of reservista, he is the owner of the reservable property; can do all acts of ownership except
alienation
- if it was sold, vendee will act as reservista
- gratuitous transfer is void
- if given by virtue of will, void
3. if obligation to deliver arise, the builder is entitled to the necessary expenses;
- for useful expenses, such as a house, builder which is presumed in good faith and is entitled to reimbursement
based on the principle of unjust enrichment
- for ornamental expenses, builder may remove as long as the property will not be damaged

CHARACTERISTICS OF A WILL
1) disposition of property
2) unilateral
- execution does not require consent of the heir
- even if the heirs are given specific property, their consent is not necessary for the testator to proceed in making his
will; consent will only be effective when it will be carried out (upon death)
- joint will "We" is absolutely void
- will of two or more persons executed by the same act in the same instrument giving each other reciprocal benefits
or naming the same heir (lex loci celebrationis is not applicable)
- purpose of prohibition:
-- to prevent the stronger party from exerting duress or undue influence over the weaker party in order to
obtain benefit
-- it may have effect of defrauding third persons including creditors
-- entail unnecessary inconveniences to present and prove the joint will
-- for public policy
3) making of a will is purely personal on the part of the testator
 the following aspects of the testamentary act cannot be delegated but must be borne purely by the exercise of
judgment of the testator:
* determination of who shall inherit
* duration and efficacy of designation of the heirs
* determination of the portions to be inherited by the heirs specified by the testator
 the following do not invalidate the will even if delegated:
* delegation of purely mechanical act of writing or drafting the will (for notarial wills only)
* signing of a notarial will as long as the person authorized affixes the name of testator under the latter's
presence in his or her express direction (for notarial wills only)
* the actual delivery of property given by the testator to a specified heir or class of heir (executor of a will)
* determination of the portions and the various persons in whose favor the inheritance shall be given
(applicable when the heir named by the testator is a group or a class)
4) purely solemn or formal act
 purposes:
* close door against fraud
* avert substitution of wills
* ensure that the desires are expressed
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* prevent any person not intended to become an heir

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 strict compliance with the formalities is required

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  two forms in the civil code
* notarial will or ordinary will
* holographic or autographic will or extraordinary will
 nuncupative: oral will; invalid
5) attended by animus testandi on the part of the testator
- gratuitous in nature
- expressive of donative intent
- if no animus testandi, void will
6) free and voluntary act of testator
- if not complied, void
- action for annulment will not prosper
- interference with the discretion of testator employed by some other person, invalidates the will and such person is
disqualified from inheriting
7) effective mortis causa
- executed inter vivos
- right to inherit vests upon the death of testator
- prior to testator's death, no one can invoke right to inherit; their right is mere inchoate / expectancy
8) ambulatory and revocable
- testator is given the right to amend, supersede, revoke an existing will
- right and power to revoke cannot be restricted even by the law
- no irrevocable will

RULES IN THE INTERPRETATION OF WILL

when presented for probate (in giving efficacy to the will)
a) when clear, no interpretation is necessary; all provisions must be respected and followed
b) if the provisions are vague or there is doubt, the intent must prevail over the language
- ordinary words given their ordinary meaning
- technical words must be accorded with their technical meaning unless the testator is not familiar with the technical
meaning of the word used

Kinds of ambiguities
1. patent or extrinsic: obvious in the will itself
2. latent or intrinsic: the vagueness does not appear on the face of the will itself; the difficulty in implementing
arises during the time when the will is to be given effect

Rules
1) there's a need to correct the will if it contains an imperfect description of the heir and property to be given (by way of
the following):
 the context of the will itself (to fix the intent)
 if the will cannot aid in ascertaining the intent, correct it through evidence aliunde (extrinsic evidence)
* extrinsic evidence must consist of written evidence showing the intent of the testator such as letters or
other forms of written communication
 if cannot be corrected by evidence aliunde, the law prohibits admission of oral evidence to prove the intent of
the testator; to allow such would open the door for fraud; cannot be the subject of cross examination because the
testator is already dead
 if all else fails, ambiguity cannot lead to, then the provision is invalid
 for as long as the ambiguities can be resolved, prefer testacy over intestacy
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(refer to the table)

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 in case of foreign law, it must be alleged and proved as ordinary fact

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Proof of official record: The record of public documents referred to in paragraph (a) of Section 19, when admissible for
any purpose, may be evidenced by an official publication thereof or by a copy attested by the officer having the legal
custody of the record, or by his deputy, and accompanied, if the record is not kept in the Philippines, with a certificate
that such officer has the custody. If the office in which the record is kept is in a foreign country, the certificate may be
made by a secretary of the embassy or legation, consul general, consul, vice consul, or consular agent or by any officer in
the foreign service of the Philippines stationed in the foreign country in which the record is kept, and authenticated by
the seal of his office.
 if the foreign law cannot be proved, there is procedural presumption (same as our law)
 renvoi:
- The process by which a court adopts the rules of a foreign jurisdiction with respect to any conflict of laws that
arises.
- In some instances, the rules of the foreign state might refer the court back to the law of the forum where the
case is being heard.
 if contrary to public policy, the provision is considered void

Probate of a will executed abroad

- the following are the requisites:
1) testator is a domiciliary of a state outside the Philippines (Filipino non-resident, resident alien)
2) the will is extrinsically valid in accordance with the law where it was executed or with the national law of the testator
3) must be proved that the foreign court is indeed a probate Court
4) proof of procedural rules in probate proceedings abroad and such court adhered to the rules
- the above requisites are needed because the will does not take effect in the Philippines unless presented for probate;
there is a need to re-probate (independent evidence, NOT just the ruling abroad)
- appealable (all orders; multiple appeals are allowed)
TESTAMENTARY CAPACITY
- refers to the ability as well as the power to make a will.
Who can make a will?
1) age: at least 18 years old at the time of execution
 if a minor executed a will, the nullity cannot be cured by subsequent affirmation or ratification upon reaching
the age of majority; the remedy is to make a will and follow the formalities
2) state of mind: presumption of law: all testator's possess soundness of mind
 the opponent shall provide otherwise
 if there is a proof that the testator was publicly known to be insane or had in fact judicially declared insane at
the time of the execution of the will, the legal presumption is in favor of insanity, the burden of proof is shifted to
the proponent of the will
 there is no need to show that the testator was in full possession of the mental faculties or that thy he mind of
the testator was unimpaired by disease, illness, our injury; it is enough to show the following (npc)
-- knew the nature and extent of the hereditary estate (extent of his property and distinguish what are his
properties)
-- proper objects of the bounty (the will shows who are favored by the testator; if institutes stranger, that
may indicate unsoundness of mind, forgery, falsification)
-- character of the testamentary act (executed inter vivos but effective mortis casusa, gratuitous, donative
intent of testator; onerous testamentary dispositions <burden imposed by the testator) are allowed
 whenever there are allegations that the testator was not of sound mind, the focus of inquiry should not be on
the illness, disease, injury, but on the effects thereof on the state of mind

The following do not affect soundness of mind

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* old age
* stomach cancer and dyspepsia
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* mere forgetfulness
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 * physical paralysis / bedridden / speech was slurred or was hard of hearing/ not ambulatory

The following conditions show unsoundness of mind

* total forgetfulness (extends to persons and property of the testator)
* senile dementia in advanced stage
* comatose
* suffering from brain hemorrhage

> Supervening incapacity will not affect the validity of a prior will.
> Supervening capacity will not cure the nullity of a prior will.
> Mental capacity at the time of execution is important

In what form must the will appear? The minimum requirements are:
1) in writing
 SC has the power to provide rules in the execution of electronic will
 what if oral will is valid in the state where it was executed (lex loci celebracionis)
-- the oral will is absolutely void because Art 17(3); contrary to public policy because of difficulty in proving the
same and greater possibility of fraud
-- oral will is a valid will; to prevent fraud, there must be safeguards during the execution and probate
proceedings such as testimony of witnesses who can be relied upon to tell the truth regarding the
proceedings
2) every will must be in a language known to the testator
 otherwise, not the expression of the testator, thus it is void
 as long as there is proof that testator was a resident in the locality where the dialect is spoken, there is a legal
presumption that the testator knows of the dialect

FORMS OF WILL
1) notarial / ordinary will
2) holographic / autographic will
- usually done in secrecy

extrinsic validity: complied the requirements under the civil code

Purposes of extrinsic validity: strict compliance of the law

I. notarial will
 subscribed by the testator (subscription is a legal term for signature)
 signature (mark, even if not the customary signature, made by the testator accompanied with animus testandi)
-- identity
-- to manifest the intent of testator to be bound by the provisions of the will
 how to sign?
- directly and personally by the testator
* if controverted, compare with other documents personally signed by the testator
- some other person appointed or designated by the testator
 where?
- at the bottom of the will (after the last testamentary provision to conclude the testamentary act and to
prevent belated insertion and other intercalations
appear on the right hand margin of each and every margin excluding the last page where the signature at the
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bottom already appears)

* marginal signature: in order to identify said pages and to prevent fraudulent removal and or insertion
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of a page not intended by the testator (wherever it is as long as their is marginal signature)
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 * signature in the bottom and marginal signature must be the same in order to ovate allegations of
forgery and falsification

In case the testator did not personally sign:

- write the name of the testator in the places required by law and to be valid:
* agent must sign in the presence of the testator under the express direction of testator and the fact thereof must
be stated in the attestation clause
* if the agent writes his name alone, the will is void
* no thumbmark by the agent
* personally written by the agent

Who else must sign aside from the testator and agent if there is?
 testamentary witnesses: (minimum: 3)
their signature is a proof that
-- they were present at the time if the execution
-- can attest to such fact
 where to sign?
- on the margin of each and every page
- bottom of the attestation clause
 how to sign?
- by their full or customary signature
- cannot use a mark or symbol as substitute for their signature

Attestation
- mental act of witnessing the execution of the will and ensuring that the formalities and other requirements of law
for valid will are observed
- to be incorporated in the will itself

Attesting to mandatory fact of:

 number of pages of the will
 include the fact that testator signed in the places required by law and in the presence of witnesses
 statement that witnesses themselves signed the will in the presence of the testator
 will not affect validity
- even if attestation clause is inserted on the main body of the will, remains to be valid
- attestation clause may be written in the dialect not known to the witnesses because it may be translated
- testator participated in the attestation (signature is a mere surplusage)

Execution of the will from beginning to conclusion is one continuous act of the testator; completion must be without
significant interruption because of the principle “in eodem die ac tempore in eodem loco”
- the making of a will must be made on the same day for the same act or purpose at the same time
- once testator has begun to execute the notarial will, witnesses must be all present
- all must be present during the execution and signing of the will; presence with each other

Presence: actual physical presence

3 meanings:
- under the test of sight (see each other in the act of signing)
- test of location or position (enough that they are together in the same room even if they don't see each other
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signing; the location can allow them to see the signing if they choose to do so; they will not suffer from physical difficulty
in seeing each other)
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- test of knowledge (as long as witnesses and testator are together, no need to see each other signing, as long as
they know that the signing is done)

There must be pagination

- numbered correlatively in letters at the top of the page (if multiple pages ONLY)
- probate court should not immediately nullify the will and instead must determine of if there is chronological order
which can be ascertained from the provisions of the will itself

Attestation clause
- signature at the bottom, failure to sign renders the will invalid
- inadvertence does not invalidate the will; marginal signature, of there is reasonable explanation
- 3 allegations
* number of pages
* witnesses saw the testator sign
* witnesses signed in the presence of one another and testator

Mere defects in the language and form:

- language is not known to the witnesses
- attestation clause incorporated in the body of the will itself
Discrepancies cannot be cured by mere examination itself that's why the whole will may be invalidated

Carbonized copies are considered original

Purpose of attestation clause: to certify that all parties are present with one another, continuing,

Acknowledgment
1. for all acts of conveyance of property and rights
2. acknowledgment may be done on a separate occasion or day
3. done before a person authorized by law to administer oath
4. the acknowledgment must be in the presence and directly by the testator and witnesses; to start and certify that the
execution of the will is voluntary
5. jurat (subscribed and sworn to)
6. acknowledgment (before me..... personally appear.....)
7. jurat only: entire will is void
8. when is jurat sufficient? - affidavits
9. all persons must show valid ID to forestall forgery and falsification
10. notary public who will notarize cannot be one of the witnesses unless there are the other witnesses apart from the
notary public; his presence is considered as surplusage

Special cases
additional requirements of testator is blind (legally blind)
1. will itself must be read to the testator twice
first by one of the instrumental witnesses
by notary public before who the will is acknowledged
- to inform the contents and the opportunity to affirm our object to any of the contents
- the reading must be in the presence of testator and must be done aloud
2. in the execution of will, witnesses must act within the range of the available senses of testator
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3. must be informed of what is happening

4. other available senses: auditory, sensory
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--substantial compliance is enough

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additional requirements of testator is deaf-mute
1. if illiterate, the contents must be communicated on some practicable manner after its drafting; if cannot sign, might
open door to fraud; if cannot wrote, must personally read
2. if blind,

WITNESSES TO WILLS
Qualifications (testamentary capacity is not the same as capacity to be a witness)
1. at least three witnesses
2. must be of legal age
3. sound mind at the time of attestation
4. all the witnesses must be able to read and write (to know and understand the proceedings); not necessarily
understand the attestation clause
5. none of the witnesses must be blind
6. must not be deaf and dumb (dumb means mute)
7. residents of the Philippines ( residency, not citizenship: for purposes of serving summons whenever dispute arises
during the probate proceedings); testimony is no it an indispensable requirement
8. none of the witnesses must have been convicted by final jurymen of the following crimes:
- perjury
- false testimony
- falsification
9. the following are disqualified because of conflict of interest
- any person in whose favor the testator have a legacy or gift in the same will / one who stands to benefit from the
instrument; extends to their spouses, ascendants, descendants and other persons claiming for benefits such as
creditors
- if the any of the above was a witness, he is disqualified to receive benefits unless there are other (at least three)
instrumental witnesses who are fully qualified and disinterested
- what if the witness is one of the compulsory heirs? -> the legitimes is not forfeited because it is provided for by
law; but the testamentary gifts shall be forfeited

HOLOGRAPHIC WILLS
 must be written, signed, and dated by the hand of the testator
 regardless of the number pages, no need to identify each and every page
 where must he sign? -> at the logical end/bottom
-> full or customary signature
-> f marked it with a thumbprint, it is invalid
 where to sign?
-> at the end of every postscript disposition (added by the testator after the signature; made at a date later than the
will itself); if several postscript, all must be signed and the last one is signed and dated
-> sign on every erasure (ajero v ca)
 dated: to identity time of execution
 if the date is impossible, will is void
 undated will is valid
 where? the law does not specify

Holographic in a letter form is valid

In the probate of holographic will

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1. presentation of physical instrument becomes mandatory in order to ascertain whether or nor it is in the
handwriting of the testator
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- loss without inadvertence, the will may still be provided during the probate
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- testimony of witnesses; whoever saw it
- if no testimony witness: secondary evidence
- however, if there is evidence that prior to death, testator had absolute control and possession by the testator,
there is presumption of revocation

In notarial will
- no postscript
- erasure is allowed but insertion is not allowed because it must be done in the presence of witnesses
- countersign insertion; mandatory
- effect of the will if attested

Just a note about midterm exam 

witnesses may sign first before the testator
devisee as a witness will not invalidate the will; however, the part which gives him the inheritance is void

Codicils
- codex: little will
- executed
(1) following the same formalities of a will itself (notarial or holographic)
-- the law does not specify the form of the will based on what it supplements (notarial supplemented by
holographic and vice-versa)
-- if formalities are not followed, it cannot supplement the first will

(2) execution:
> to explain/add or alter the will or any provision thereof
> in adding, it implies that the testator may make additional testamentary dispositions not otherwise provided
for in the original will; the additional dispositions may cover the estate at the time the original will was made or
including after-acquired property
- after-acquired property: acquired after making the original will before death
- GR: after-acquired properties cannot pass by the same will unless expressly otherwise stated (ex: in
a codicil)
> to alter/amend: a will is ambulatory; a will does not take effect prior to death of testator
- considered as revocation (partial or total)
- to revoke, the codicil itself must be submitted to probate and must be valid on its own, at least
extrinsically
- the original will must also be submitted (annex)
- codicil forms part of the will although executed later
- codicil is different from documents incorporated by reference
- incorporation is allowed for the convenience
> in annexing, the following must be present:
-> paper referred to is already existing at the time the will itself is executed
-> the will itself must describe the document or paper being incorporated by reference; the description
must state the number of pages of said paper or document
-> the paper or document must be signed by the testator and witnesses (in eodem.....)
-> with respect to voluminous books/accounts/records, the signing on each and every page may be
dispensed with as long as there are signatures in the significant places of said record (first page, last page,
some of the pages in between to prevent intercalations)
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-> during probate, it must be established that the paper referred to in the will is the same paper presented
in the probate
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*** failure to comply with these requisites, it cannot form part of the will
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Power to revoke is absolute
- any provision of law or contact restricting power to revoke is invalid
- may be done anytime while the testator is alive
- over act is the objective phase AND
- animus revocandi is the subjective phase
- if testator voluntarily stops himself from completing the over acts, the will is not revoked
Example:
if he threw his will in the fireplace and left, then another person stopped the burning, the will is still revoked
(objective and subjective phase is completed)
- anyone who interferes with the power to revoke is disqualified from inheriting by operation of law or by will

Modes of revocation
1) by implication of law (without further act or deed of the testator)
> preterition
> in case of alienation or transformation of legacy or devise after the will has been made
> implied revocation: degree of legal separation (guilty spouse is automatically disqualified to inherit from the
innocent spouse)
> executing a later will giving the same property to another

2) overt act of burning, tearing up, cancelling or obliterating the whole will or a part thereof
must be:
> testator must be of sound mind at the time of revocation
> testator must be prompted by animus revocandi (subjective phase of the act of revocation)
> testator personally or some other person appointed acting under his express direction and in his presence
performed the following acts:
- burning (even a slight singe is a complete revocation)
- tearing up a paper (act of crumpling is equivalent to tearing up; slight tear is a complete act of revocation)
- cancel: original text is still readable
- obliteration: the text is blackened
- cancellation or obliteration may be partial or total (cancelled or obliterated the signature: it is a total revocation;
date of holographic will is cancelled or obliterated, attestation)

3) revocation by subsequent will or codicil

- total or partial revocation
- express or implied revocation
- total: nothing in the original will shall stand, the later codicil shall be given effect
- partial: only the portions of the earlier will that are altered in the subsequent will are deemed affected and
therefore earlier and later wills must be presented for probate
- express revocatory clause: takes effect immediately; based on the principle of instanter
- implied: comparing the earlier and subsequent will, there are serious irreconcilable differences which cannot be
harmonized, the later will shall prevail because it is the latest intent of the testator

Doctrine of dependent relative revocation

- for the 2nd and 3rd modes
- if the execution of the revoking will is dependent on its validity, when that condition is not met, then there is no
revocation
- with intent to revoke the earlier will, the testator executed a subsequent will completely abrogating the prior will, prior
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one contains all the formalities: the prior will shall prevail
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Republication and revival of wills
Republication
- re-establishing a will that has either been revoked or that is void for lack of formalities
- act of the testator to give the same effect prior to the revocation of an earlier will or that will was in fact extrinsically
invalid

How to republish?
- if the will sought to be republished is void
> through re-execution
> there must be compliance with all the requirements of law for its validity: copy or re-execute the provisions of the
revoked will
- if the will sought to be republished was previously revoked
> re-execution
> by a subsequent will or a codicil: there is no need to copy or re-execute the provisions of the revoked will because
the revoked will may be incorporated by reference

Effect of republication: date of republication is the new date of execution of the will

Revival
Example:
2004: first will - x is the universal heir
2007: second will revoking the 2004 will
2014: third will revoking the 2007 will
- what is the effect of the revocation of the revoking will on the will first revoked?
1) if repeal of the first will is express, applying the principle of instanter, the revision of the revoking will will not revive
the first will
2) if repeal by the second will of the first will was made tacitly or implicitly, then the second will itself is revoked by a
third will, then the first will is revived by operation of law (testacy is preferred)
-> unless the last revoking will expressly provides otherwise

what matters is how the first will (among the latest three) was revoked:
if express: no revival of the first
if implied: revival of the first

Probate
Balane: It is a judicial proceeding where the will is "tested" for its compliance with the formal validity of wills.
It is the FIRST PART of two stages in a settlement proceeding.
1. Probate of will -> extrinsic validity
2. Settlement proper -> intrinsic validity
- judicial process of authenticating a will, thus, probate proceedings are mandatory because under the Civil Code, no will
shall pass, real or personal property, unless it is probated or allowed
- for voluntary or testamentary heirs, the only title they have is a will validly executed and allowed by a competent court
- proceeding in rem: notice by publication once a week for three consecutive weeks in a newspaper of general
circulation
> jurisdiction over the person who have interest is acquired through publication
> gr: no separate summons shall be served to the heirs
- imprescriptible for as long as there is allegation that testator died leaving a will
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> even if there is already settlement, probate must still be initiated (testacy over intestacy)
> regardless of how much time intervened between death and discovery of will, probate is still allowed even if there
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was already distribution through intestacy; what was distributed must be returned
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> testate:
mode: death
title: will
> intestate / by operation of law
mode: death
title: legal relationship

Where to probate?
> Filipino testator: domicile at the time of death
> Not Filipino and not a resident of the Philippines at the time of death: where any of his real property is found

Which court? based on the assessed value in the tax declaration

- within Metro: - outside Metro:
RTC: 50k above RTC: 20k above
MTC: 50k and below MTC: 20k and below

Who must initiate probate?

1) executor named in the will
2) if executor is unwilling, the actual custodian
3) if neither of the two, any heir or creditor
* mere delivery of the physical will to the court is enough to initiate probate proceedings

Issues in probate
Questions involving the extrinsic validity of the will
> identity of the will
> testamentary capacity of testator at the time of execution
> due execution (freely and voluntarily)
> whether there was compliance with forms and solemnities
* grave abuse of discretion of a probate court in the following cases:
> no power to determine and declare who are the heirs of testator
> to adjudicate questions regarding title over property
> if on the face of the will, it is void, court may dispense with the probate and proceed to rule on its extrinsic
validity
- on the face of the will, there is preterition
- if by prima facie evidence, the property is not owned by the testator

Possible outcomes of probate

1) allowance of the will / admission of the will to probate
- valid title in favor of all testamentary heirs with respect to the property given to them; therefore testamentary and
compulsory heirs may proceed to settle the estate based on the will (judicially or extra judicially)
* if judicial: probate court may convert itself to an estate court
>> final order of partition is the judgment; such judgment will be the basis in obtaining TCT
* if extrajudicial: mere agreement among them and such agreement must be consistent with the will
2) disallowance
- will is null and void
- no disposition can be given effect
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- however, provisions which are not dependent upon death and do not convey title to property are not affected by
the disallowance of the will (e.g. acknowledging illegitimate filiation: immediately effective from the moment of
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execution of will)
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 - disallowed will is a valid proof of filiation (admission contained in a public or private instrument signed by the
putative parent)
- thus the proof of filiation may be used by the illegitimate child to inherit
- intestacy

Kinds of probate
1. Post mortem probate: That which is had after the testator's death.
Who can file?
a) Executor named in the will
b) Any heir named in the will
c) Any heir having interest in the estate
d) Actual custodian of the will even if not named as executor
 Rule: ANY person with interest can file a petition for probate, even if custodial of the will disagrees.
 It is sufficient that he shows prima facie evidence of his or her relationship to the testator, or his right to
latter's estate.
 Precedence of testate over intestate proceedings: Even if court takes cognizance of intestate proceedings, a
probate proceeding will prevail; the former may be dismissed since testacy is favored over intestacy.
Who can oppose? (Strangers CANNOT oppose the probate of a will)
a) Those with interest under the will
b) Those with interest under the law
2. Ante-mortem probate: That which is had upon petition by the testator himself during his lifetime.

Matters to be resolved by probate court: EXTERNAL VALIDITY only

1. Identity of the will: Whether it is the same will or a forgery
2. Due execution of a will: It refers to the formal or extrinsic validity of the will
3. Age and mental capacity of testator
4. Signing of document by the testator
5. Acknowledgment of the instrument by him in the presence of the required number of witness
 Only purpose of probate: To establish conclusively the fact that a will was executed with the formalities and
solemnities required by law for the validity of the will and that the testator was in a condition to make a will.
 If will is disallowed: Dispositions are void but non-dispositive matters are not affected e.g. acknowledgment of
illegitimate child.

Matters outside the authority of probate court

1. Declaration of heirs or capacity of heirs to succeed
2. Ruling on the filiation of the decedent
3. Intrinsic validity or legality of the provisions of the will
a) That a certain legacy is void and another one is valid
b) That a certain person has been disinherited
c) That a certain person has a right or no right to an inheritance
4. Adjudicate on title of properties claimed to part of the estate
5. Capacity of heirs to succeed: Other matters of legal relationship such as validity of marriage, filiation of children or
qualification of heirs
 Effect of decision on these matters: The ruling of the probate court on these matters is mere PROVISIONAL and NOT
BINDING.

EXCEPTION: When probate court can decide on intrinsic matters of will

20

GR: The court does not determine nor even by implication prejudge the validity or efficacy of the testamentary
provisions of a will.
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 Note: The question of intrinsic validity of a will normally comes only after the court has declared that the will has
been duly authenticated.

ER: (Intrinsic validity of will passed upon)

a) The appellate court can meet the issue of the validity of the provisions of the will even before it is probated.
- Occurs when the parties shunted aside the question of allowance of will and travelled on issue of intrinsic
validity, and the probate court rejects the will

b) Will void on its face

i. There is preterition
ii. All properties in the will does not belong to the testator
c) All heirs agreed to dispense with probate
- Pro hac vice in one case; they had compromise agreement to divide estate according to the will even without
probate.
d) Ownership of property disposed of in issue
- Where the decedent was not the sole owner of the property conveyed by him in his will, the disposition of the
whole property to the prejudice of the other co-owners may be declared invalid.

Authority of probate court to adjudicate title to property

GR: Question of ownership is a matter which the probate court cannot resolve with finality.
ER: (Probate court may pass upon issue of ownership)
a) Where interested parties are all heirs, and rights of third persons are not impaired, it is optional to them to submit to
the probate court a question as to title of property.
b) When the controversy is whether the property in issue belongs to the conjugal partnership or conclusively to the
decedent.
Reason: The same is within the jurisdiction of the probate court which necessary has to liquidate the conjugal
partnership in order to determine the estate of the decedent which is to be distributed to the heirs.

Requirements before probate court acquires jurisdiction over the will

There must be evidence showing that:
a) That a person died leaving a will
b) If resident citizen: he died in the province where the court exercises territorial jurisdiction
If non-resident citizen: he has left an estate in the province where the court is situated
c) Last will of deceased has been delivered to the probate court

Actions by court in probate proceedings

1. The probate of the will of the decedent
2. Grants letter of administration to the party best entitled or to any qualified applicant
3. Supervises and controls all acts of administration
4. Hears and approves claims against the estate of the deceased
5. Orders payment of lawful debts
6. Authorizes sale, mortgage, or any encumbrance of real estate
7. Directs the delivery of the estate to those entitled thereto

Witnesses to probate: NO OPPOSITION TO WILL*

 Notarial will: Only one of the subscribing witnesses only, if such witness testifies that the will was executed as
required by law.
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 Holographic will: At least one witness who knows the handwriting and signature of the testator.
- He must explicitly declare that will and signature are in the handwriting of the testator.
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- If no witness: Then EXPERT WITNESS.

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Witnesses to probate: WILL IS CONTESTED
 Notarial will
GR: All subscribing witness and notary public
ER: If witness is dead, insane or not residing in the Philippines, the court may admit witnesses to prove the due
execution of the will and the sanity of the testator
 Holographic will: At least three witnesses who know the handwriting and signature of the testator
If no 3 witnesses: Then EXPERT WITNESS
Note: In HW, it is not necessary that witnesses first be presented before expert testimony may be resorted to.
Jurisdictional facts in probate
1. Death (in case of post-mortem probate)
2. Publication
3. Copies of petition were served to all interested parties if ordered by the Court
4. Will itself

Grounds for disallowance

Art. 839. The will shall be disallowed in any of the following cases:
(1) If the formalities required by law have not been complied with;
(2) If the testator was insane, or otherwise mentally incapable of making a will, at the time of its execution;
(3) If it was executed through force or under duress, or the influence of fear, or threats;
(4) If it was procured by undue and improper pressure and influence, on the part of the beneficiary or of some other
person;
(5) If the signature of the testator was procured by fraud;
(6) If the testator acted by mistake or did not intend that the instrument he signed should be his will at the time of
affixing his signature thereto.

 The grounds for disallowance are EXCLUSIVE.

Effects if any of these grounds is present: Will is VOID.
Note: Wills are either valid or void only. There is no such thing as a voidable will even if the ground is vitiated consent.

REVOCATION DISALLOWANCE
Made by the voluntary act of the testator himself Made by means of a judicial decree
Can be made with or without cause Must always be for any of the causes provided by law
May be partial or total Generally total except where the fraud or undue influence
affects only a part of the will
Takes place during the lifetime of the testator Usually invoked after the testator's death
BOTH presuppose an existing will and both render the affected will null and void.

INSTITUTION OF HEIR
Intrinsic Validity
 Involves naming of heir and giving of property
 Testamentary act of testator in naming and designating testamentary heirs who will benefit from the will.
 Purpose: To prevent unintended persons from acquiring property from the FDP of the estate.

Characteristics of an instituted heir

1. A testamentary heir
2. He continues the judicial personality of the testator
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BUT only to the extent of inheritance

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3. Can be natural or judicial persons

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 If natural: at least conceived
If juridical: must not be prohibited to succeed under the law
4. He acquires rights which are limited to the FDP
5. He is presumed to have been instituted

Kinds of Institution
1. Universal: inherit a fraction or aliquot part or whole portion of the estate
2. Devise or Legacy: inherit an individualized item from estate
Important: Devisee or legatee are preferred over universal heirs
Requisites of valid and effective institution (VPA-CAA)
1. Valid will
2. Institution of heirs personally done by the testator
3. Institution within the authority given by law to the testator
4. True and genuine cause
5. Heir is certain or at least ascertainable in identity
6. Heir is alive, willing, capacitated and NOT disqualified to inherit
7. No preterition/pretermission (see earlier discussion on preterition)

SUMMARY OF RULES in EQUALITY, INDIVIDUALITY, SIMULTANEITY

1. If the shares of some heirs are designated, while those of others are not, those parts designated shall be given to their
owners, and the balance shall be divided equally among those whose shares are not designated
2. If the shares of those whose portions are designated should consume the entire estate, those whose shares are not
designated will inherit nothing
3. When there is no designation of shares but the testator has provided that specific things be given to each heir, and
such things form only a portion of the estate, the institution must be considered as one
without designation of shares and the heirs will divide the estate equally, but the value of the specific things assigned to
each must be included in the amount that should pertain to each.

INSTITUTION OF BROTHERS AND SISTERS in case some are of the full-blood and others are of the half-blood
1. In case of TESTATE succession, the inheritance shall be distributed equally unless a different intention appears
2. In case of INTESTATE succession, those of the full-blood shall be entitled to a share double that of those of the
half-blood

INSTITUTION ON ALIQUOT PARTS

Rule if the entire inheritance is not covered:
a. Testator has no intention to mak

Rule if more than the inheritance is covered: each part is reduced proportionately
Thus,
a. If there is only one heir, deliver the entire/fraction of/property to him subject to any reduction
b. If there are two or more heirs under the same testamentary provision,
1. Apply the allocation prescribed by the testator
2. If silent, equal shares

Classification of testamentary dispositions:

1. Pure institution: does not contain a period or cause or a motive or a condition.
The heir instituted inherits immediately upon the moment of death of the testator.
23

2. Conditional institution: the right to inherit is subject to a suspensive or resolutory condition

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a. Must be expressly stated in the will.

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  Otherwise the will would be interpreted as a mere order or as a mode imposed by the testator.
 The consequence in case of violation of the condition must also be stated
 If there is NO CONSEQUENCE, it’s NOT A CONDITIONAL INSTITUTION .
b. Must NOT be contrary to law, public policy, public order, morals and good customs.
 Sabinian doctrine: the condition itself must not be contrary to law, public policy, public order, morals and good
customs.
 Under the Sabinian Doctrine, the following testamentary conditions are NULL AND VOID:
1. A Testamentary condition in the will shall be governed by a particular law.
2. A “No contest and forfeiture” clause is also null and void
- Provides that should any of the heirs named in the will question or contest the will for any ground then they
will forfeit their inheritance.
- It suppresses the truth surrounding the execution of the will.
- It is simply disregarded as if it were not written.
3. Testamentary condition requiring that the will is implemented immediately without necessity of a probate.
- Note: Probate is mandatory.
4. Disposicion Captatoria
- This is an absolutely void testamentary disposition and therefore anyone named under cannot inherit.
- A testamentary disposition requiring the heir named therein the will to also institute the testator in the
former’s will.
- Testamentary succession is an act of liberality, not a contractual agreement.
5. An absolute condition not to marry or not to re-marry
- Contrary to morals and public policy because it would deprive a person of one of his inherent or inalienable
rights — the right to choose his own status.
- Considered as not imposed.
- Heir is prohibited by the testator to get married to anyone at anytime and anywhere.
- Condition not to contract subsequent marriage
- Valid when:
i. When it is imposed by the deceased spouse himself;
ii. When it is imposed by the ascendants of the deceased spouse; and
iii. When it is imposed by the descendants of the deceased spouse.
 When validly imposed, resolutory in character.
 The child here is the child of the widow or widower.
 BUT this only affects the free disposable portion.
- If it a mere it is a mere relative condition not to marry it is a VALID ONE.
 A generic condition to contract marriage;
 A specific condition to contract marriage with a determinate person (Jurado); and
 A specific condition not to contract marriage with adeterminate person.
 Example: If the disposition imposed WHEN to get married or WHOM to marry – It is valid. Ex. I hereby give
to X 10M provided he does not marry Y. She can get married to anyone except Y.
 The violation of that would result to forfeiture of the inheritance.
 If forced to marry someone, then it is null and void because it would amount to coercion (MLR).

Condition not to remarry (should not affect the legitimes)

- if absolute, void
- if condition is given by the testator to his/her spouse, valid
- valid even if imposed by the parents of the testator upon the widow/widower or the child of the testator upon the
widow/widower
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- if the condition not to remarry is resolutory, any allowance, pension, usufruct or annuity given by the will to the
widow shall be terminated upon remarriage
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c. Must observe the principle of the untouchability of the legitime of compulsory heirs, save only the testator declares
that the hereditary estate shall not be partitioned for a period which shall not exceed twenty years.

d. Must not be an impossible one.

 It is not possible of realization because it is contrary to either, physical, juridical or moral laws, it shall be
considered as not imposed.

Kinds of conditions that may be imposed by the testator

1) Suspensive condition: the right to inherit accrues upon happening of the condition
- potestative: fulfillment of condition is entirely dependent on the will of the heir; fulfill the condition immediately
upon the death of testator
- casual: dependent on chance, will of third person, or both
- mixed: good faith to perform or fulfill the condition immediately upon the death of testator
how? strictly in accordance with the will; mere substantial or equivalent performance is not allowed unless the
person interested prevents the happening of the condition
> burden of proving that there was prevention rests on the heir
-> failure to fulfill condition: no inheritance is acquitted
-> if there was fulfillment, the right to the inheritance retroacts to the death of the testator
-> the heir must be alive, willing, capacitated at the time of death of testator and at the time of fulfillment of
condition
-> If the conditional heir died before having fulfilled the condition but after the death of the testator, the
testamentary disposition is INOPERATIVE
-> pending the happening of the suspensive condition, the property should be placed under administration until
such time that the condition is fulfilled or until it becomes certain that it cannot be fulfilled (or until the arrival of the
term, in case of suspensive term)
-> in case of negative condition, the heir can also be required to furnish/pay caucion muciana or a bond to answer
for the failure to deliver the property in case the condition already exists

2) resolutory condition: the right to inherit ceases upon happening of the condition
- the right to demand the inheritance arises from the moment of death of the testator subject to the extinction of a
right upon the happening of a resolutory condition
- if fulfilled, the inheritance reverts to the mass of the hereditary estate
- to substitute, co-heirs, or pursuant to intestacy

3. Institution with Conditions (with a period)

- period is always is a future and certain event
- period or term may either be suspensive or resolutory

period is suspensive condition (ex die)

- it is not the right to inherit that is suspended but the mere demandability of the right to inherit
- before suspensive condition arise, the heir died: the heir of the instituted heir will get the inheritance
- pending suspensive condition: property shall devolve to the intestate or legal heirs
- legal heirs will furnish caucion muciana to guarantee in favor of the instituted heir so that the inheritance will be
delivered when the condition arises

period is resolutory condition (in diem)

- same effects with resolutory condition
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- instituted heirs died before resolutory condition, the property shall be given to the heirs of the instituted heirs (the
right will be extinguished only upon the happening of the resolutory condition)
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4. Modal/Sub Modo institution
may be:
- charge or burden imposed to the heir
- the manner in which the inheritance may be applied
- the purpose by which the property may be used or devoted to

 Mode: the statement of the object of the institution, or the application of the property left by the testator, or
the charge imposed by him not conditional in character.
 The burden shall not exceed the value of the inheritance.

Rules:
* condition suspends the right to inherit although it does not obligate the heir while modal institution merely obligates
the heir but does not suspend the right to inheritance
a) The doubt as to whether the testamentary disposition is conditional or modal, the doubt must be in favor of a
modal institution because the modal institution is less cumbersome or less onerous upon the heir
b) A modal institution obligates the heir but does not suspense the right to inherit.
c) In case the mode specified by the testator in the will is violated by the heir, the heir may be compelled to return
not just the capital but all the fruits and interest derived there from the moment that the heir acquired the property
d) Violation of a modal institution operates as a resolutory condition upon the heir

5. Subdemonstratione/motivated institution: testator expresses in the will, the reason, the motive or cause for the
designation of the heir. (optional because it is deemed for liberality)
- If the institution is based on a cause or motive, that cause or motive must be a true and lawful one
- If the cause in the will is illicit, the institution is INVALIDATED
- falsity of cause nullifies the institution
> express in the will
> the cause is found to be false
> testator would not have instituted the heir knowing the truth
- On the other hand if the cause or motive is stated in the institution is FALSE as a general rule, simply disregard the
cause and the institution operates as a pure one as if no cause at all

COLLATION
understood in two senses:
1) as addition/purely mathematical formula whereby all donations inter vivos made by testator prior to death are
added to the value of the estate (all donations inter vivos are advances to the inheritance
- purpose: to determine the exact value of the hereditary estate at the time of death
2) as imputation: mathematical process whereby the value of the property subject to the donation inter vivos is charged:
- against legitimes of compulsory heir if the latter is the donee
> if there is a balance, the donee is entitled to completion of the legitimes
> if in excess of the final legitime, the excess is charged against the free disposable portion if there is; otherwise,
the excess is an impairment to the legitimes of other compulsory heirs; thus, the excess must be returned to
the estate
- against the free disposable portion in case the donee is a stranger
3) as reduction or annulment: if any donation inter vivos is found to be injurious or encroaches upon the legitimes of the
compulsory heirs, the same may be reduced or annulled to totally or partially

Steps in collation
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a) Determination of the gross value of the estate at the time of the death of the testator.
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 - In case of administration proceedings, the executor or administrator, within three months after his appointment,
shall return to the court a true inventory (including intangible rights) or appraisal of all the real and personal estate
of the deceased which have come to his possession or knowledge.
- Inventory must be approved by the court
- No administration proceeding, it is the actual value of the estate which should be taken into consideration, and not
the sentimental value.
- The valuation or appraisal may even be made by common agreement.
- Include all void or simulated deed of sale made to strangers.

b) Determination of all debts and charges which are chargeable against the estate.
- will result to determination of the net value of the estate by deducting all of the debts and charges from the gross
value of the estate.
- If the estate is insolvent, there can be no collation because the heir cannot be made liable for the debts of the
testator/decedent.

c) Collation or addition of the value of all donations inter vivos to the net value of the estate. (net partible estate)
- The value to be collated or added is the value of the thing donated at the time when the donation was made.
- Any loss, deterioration, or improvement of the thing donated from the time when the donation was made up to
the time of the settlement of the donor’s estate shall be for the account or for the benefit of the donee.
- Donation was made to a compulsory heir or to a stranger.

d) ascertain the compulsory heirs and pay their respective legitimes

GHE: 60
debts/liab: 20
NHE: 40
collate
(add)
a: 20
x: 20
= 40 + NHE
total: 80

Rules in reduction
1) reduce first all other legacies or devises not declared preferred by the testator (pro rata)
2) if a particular is declared to be preferred:
- if the entirety of the remaining fdp can accommodate the legacy or devise, it must be paid in full
- if fdp is not enough, reduce the preferred legacy or devise is reduced last in proportion to the value of all others
3) formula in the reduction:
unknown/ total fdp x legacy to be reduced/total legacies????

Order of Preference
1. Legitime of compulsory heirs;
2. Second DIVs
3. Preferred legacies
4. All other legacies or devises
*if after satisfying the legitime of compulsory heirs, the disposable portion is sufficient to cover donations inter vivos,
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but not sufficient to cover the legacies and devises, the rule is that such legacies and devises will be reduced pro rata,
after first satisfying all of those which the testator has declared to be preferential.
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Rules on reduction of devise consisting of real estate/immovables
1. Divide the land if physically viable.
2. If the reduction absorbs at least half or more than half of the value of the real estate then the property itself must be
given to the CH but the CH will have to pay in cash the reduced value of the devisee to the compulsory heir.
3. If the reduction is less than half of the value of the realty, the devisee is entitled to the property subject to payment to
the CH of their legitime in cash.

Rules in reduction of legacies and devises

1. If the reduction of the devise does not absorb one-half of the value of the property, said property shall go to the
devisee, but with the obligation of the latter to reimburse the compulsory heirs in cash for what pertains to them by
virtue of the reduction.
2. If the reduction absorbs more than one-half of the property, said property shall go to the compulsory heirs. The latter,
however, shall reimburse the devisee in cash in order to cover up the reduced amount of the devise.

In case of excessive usufruct

compulsory heirs may opt for the
1. pay the value of usufruct in cash to the heir (annual net income x period of usufruct)
2. or deliver the usufruct over the entire free disposable portion

In case FDP requires the reduction of donation inter vivos

1. determine the dates of these donations
- if the date are not the same, reduce first the latest donation (priority in time, priority in right
- if same dates, reduce pro rata

Collation may be done in two ways

1) collation in kind
2) collation in cash

Disinheritance
- testamentary act whereby the testator deprives a compulsory heir of the legitimes as well as all other shafts
from the hereditary estate
- in the absence of disinheritance, the heir who was not mentioned is preterited

Requisites
1. in a valid will or codicil
2. must be express
3. for any of the cause set forth in the law (exclusive grounds)
4. the cause for disinheritance must be a true and lawful one
* one who is disinherited does not bear the burden of proving the truth of the cause (but must deny); the persons
interested has the burden to prove that the cause is true and lawful

Grounds (for LCD and ICD)

(1) conviction by final judgment on the attempt against the life of the testator, his or her spouse, descendants, or
ascendants (parricide)
* if adopted: homicide or murder
* what if conviction is for a downgraded crime? there is still a basis to disinherit because it is not the nomenclature
attach to the crime under the Revised Penal Code that is material for as long as in the mind of testator, his life is
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threatened
(2) imputation of a crime for which the law imposes the punishment of more than 6 years imprisonment and the
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imputation in is found to be false or baseless

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 - ICD LCD initiating the criminal case as the victim
- ICD LCD testifying against the testator in a criminal case committed against another
* even if testator is acquitted of the acquittal is based on reasonable doubt, the imputation is not baseless
* if non-authorship is the basis for acquittal, the imputation is baseless
(3) Conviction by final judgment for the crime of adultery or concubinage with the spouse of the testator (incestuous or
not)
- the conviction is the basis, not the relationship per se
(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
- the will itself is void; the codicil disinheriting the LCD/ICD is valid
(5) A refusal without justifiable cause to support the parent or ascendant;
- there must be a legal obligation to support the testator
- demand for support was made by the testator
- there was rejection of such demand
- LCD/ICD has sufficient means to provide said support
(6) Maltreatment of the testator by word or deed by the child or descendant
- must be intentionally committed by the heir
(7) When a child or descendant leads a dishonorable or disgraceful life
- series of act must subject the testator and the family to public humiliation
(8) Conviction of a crime which carries with it the penalty of civil interdiction
- civil interdiction is an accessory penalty in reclusion temporal

Grounds of disinheritance of parents or ascendants (legitimate or illegitimate)

(1) Attempt against the virtue of daughters or granddaughters: when the parents have abandoned their children or
induced their daughters to live a corrupt or immoral life, or attempted against their virtue
- in case availment, deprivation of physical company as well as material, emotional, and spiritual support
(2) Conviction by final judgment against the life of the testator, the latter's spouse, ascendant, or descendant
(3) False imputation
(4) Conviction by final judgment for the crime 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) Loss of parental authority
- natural
- willful
-> abandonment (under the family code, it must be judicially declared unlike abandonment per se in the first
ground)
-> absence
-> adoption (no need to disinherit because they are not the compulsory heirs of each other anymore)
-> giving harsh orders
-> sexcual abuse
-> parents are civilly interdicted
- effects of restoration of parental authority
(a) the restoration will not deprive the testator of the right to disinherit because it is founded on the character of the
heirs itself
(b) since the Civil Code specifies the ground for loss of authority, once it is restored regardless of cause, testator is
denied the right to disinherit or any disinheritance already made is invalidated (the restoration of parental authority
deprives the testator of the right to disinherit because there would be no more ground for the disinheritance)
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Grounds to disinherit a spouse
1-3 common grounds
- attempt on the life
- false imputation
- vitiated consent
(4) giving ground for legal separation
- no necessity of decree of legal separation, mere commission of the act is sufficient
- of there is decree, no need to disinherit because it is the effect of legal separation
(5) failure to support
(6) unjustifiable refusal to support the children or the other spouse
Effects of valid disinheritance
1) total deprivation: deprived of participation, thus disinheritance will justify deprivation of legitimes, any legacy or
devise earlier made in favor of that heir, any universal institution to the whole or fraction of residual estate if earlier
made by will
- deprived of any indirect benefit out of the estate
- cannot exercise any parental administration or usufruct he may otherwise receive but that would eventually pass to a
representative; legitimes of disinherited heir will pass by right of representation should the representatives be minors at
the time the disinherited parent cannot be considered as legal guardian over the property that is disinherited

* if prior to death of testator, the later and the disinherited heir reconciled, none of the above effects
reconciliation: resumption of cordial and friendly relations between testator and the heir
pardon requires specific form (writing) while reconciliation may be express our implied, in writing, oral, acts performed
toward one another leading to the conclusion that their relationship has been restored
burden tests on the disinherited heir

Effects of reconciliation
- if reconciliation after the disinheriting will, disinheritance is invalid and ineffective
- if reconciliation is before the execution of the disinheriting will,

If validly disinherited, legitimes will go to:

1. representatives
2. co-heirs in the same class
3. next in degree
4. intestacy

Note the following:

 conviction by final judgment will retroact to the death of the testator: to deprive the compulsory heir of his
successional right
 conviction by final judgment need not be present at the time of executing the disinheriting will
 valid disinheritance restores only the right to the legitimes unless there is reconciliation wherein in the latter, full
rights are restored

Invalid disinheritance
- intent to disinherit is express in a will or codicil bit without cause
- there is a cause stated but not among those provided by law
- the cause stated on the week is within those set forth in the law but the truth of which was not proved or even if true,
there was a subsequent reconciliation
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Consequences
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- compulsory heir is still entitled to the legitimes

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- any universal institution of heirs as well as legacies, devises, shall remain valid so long as not inofficious

Preterition
- the total omission, generally due to mistake or oversight by the testator in his will, of one, some or all of the
compulsory heirs in the direct line living at the time of the testator's death.

Rule: Total omission is preterition when purpose to disinherit is not expressly made or is not at least manifest.

Presumption of involuntary omission: Preterition may be voluntary but the law presumes that the omission of the
compulsory heir was involuntary and due merely to mistake or inadvertence on the part of the testator.

Elements of preterition
1) Preterition must be total
2) Omission of a compulsory heir
3) Omitted compulsory heir is in the direct line (thus, spouse cannot be preterited)
4) Omitted compulsory heir must be living, willing and capacitated to inherit at the time of the opening of succession of
the testator

Substitution
Article 857. Substitution is the appointment of another heir so that he may enter into the inheritance in defa of the heir
originally instituted.
Article 858. Substitution of heirs may be:
(1) Simple or common;
(2) Brief or compendious;
(3) Reciprocal; or
(4) Fideicommissary

Kinds of substitution of heirs

1. Vulgar substitution: that which takes place when the testator designates one or more persons to substitute the heir
or heirs instituted in case such heir or heirs should die before him, or should not wish, or should be incapacitated to
accept the inheritance.
2. Fideicommissary substitution/indirect substitution: the testator designates a first heir known as the fiduciary who is
imposed the obligation to observe and then later transmit the same inheritance to a second heir also known as
fideicommissary substitute.
- Both fiduciary and fideicommissary substitute inherit simultaneously from the testator. There is simultaneous
succession from the moment of death of the testator.
- However the inheritance of the fideicommissary substitute is subject to a suspensive period which is the death of
the fiduciary or arrival of the time fixed by the testator in the will.

Whether vulgar or fideicommissary substitution, the substitution may be the following:

1. Ordinary: if there is only one substitute or 2nd heir or one original or 1st heir.
2. Brief: implies a plurality of substitutes whereby in the will, two or more substitutes were named by the testator to
the original or 1st heir.
3. Compedious: implies a plurality of heirs to be substituted.
Example: A and B are the original heir; their substitute is C.
- If A cannot inherit then C can take his share; if B cannot inherit then C will get his share.
- If both A and B cannot inherit, then C will get the entire inheritance.
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4. Reciprocal: most effective in vulgar substitution whereby the heirs instituted become the substitute of one another.
- the share in the institution is the share in the substitution
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Vulgar substitution
If the provision is silent as to when the substitution takes place, when can substitution take effect
a. dies ahead of the testator (predeceased) or;
b. refuses or repudiates the inheritance or;
c. declared incapacitated or disqualified
Thus vulgar substitution is actually a form of alternative succession provided only one will inherit. Therefore as far as the
substitute heir is concerned his or her institution is subject to suspensive condition. (above 3)

In case testator specifies the ground and the ground did not occur
- substitute can inherit
- the inheritance will be given to the heirs of the testator (not the heirs of the named heir)
- the property shall be passed through intestacy
In case of condition specified by the testator
GR: If the substitute inherits, as a rule, the substitute is subject to the same conditions or burdens imposed by the
testator on the original heir unless otherwise stated.
If the substitute did not comply with the condition, the substitution is rendered INEFFECTIVE.
Exceptions:
1. When the testator has expressly provided the contrary; or
2. When the charges or conditions are personally applicable only to the heir instituted

Fideicommissary substitution
fiduciary heir: 1st heir
fideicommissary substitute: 2nd heir

Requisites of fideicommissary substitution

1) The fideicommissary substitution must be expressed in the will.
- By calling it “fideicommissary substitution.”
- But if not specifically called as such, it should be construed as such for as long as the testator imposes the
obligation to preserve and later convey or transmit the property to another.
- Example:
(1) there are two heirs
(2) the first heir has the absolute obligation to preserve the property (cannot alienate)
> keep the property unimpaired so that it will pass to another;
> not to alienate so that it may be passed to another.

2) The fiduciary and the fideicommissary substitute must NOT go beyond one degree.
- One degree means one transfer. The transfer must be from fiduciary to the fideicommissary substitute.
- If the testator imposes upon the fiduciary and the 2nd heir the perpetual obligation to keep transmitting the
property to some other person or to several persons successively then it is void beyond one degree.
- If the gift refers to income or usufruct, or to pension imposed by the testator to the first heir, the provision is valid
within one degree.
- one degree may also be construed as one degree of relationship (Rabadilla)
GR: juridical persons cannot be instituted under a fideicommissary substitution because they do NOT have children
or parents.
Exception: for the Catholic Church

3) Both the fiduciary and the fideicommissary heir must be alive, willing and capacitated to inherit at the time of death
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of the testator.
- The fiduciary acquires only the beneficial interest over the inheritance.
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- The fideicommissary substitute acquires naked title or ownership at the time of death of the testator.
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Effect of Death
1. If the fiduciary died before the testator, treat it as vulgar substitution.
2. If the fideicommissary substitute dies ahead of the testator it is as if there was no substitution, similar to institution of
heirs. (both of them must be alive)
3. If both of them died ahead, the testamentary disposition will now become inoperative and it will pass by intestacy.

Simultaneous succession (usufruct)

1. fiduciary heir: beneficial title
- Fiduciary heir has the obligation to preserve the property but that obligation is co-extensive only to the value of
the inheritance and make an inventory.
- At the time of death of the testator, fiduciary can make improvements, can explore, exploit or abuse the property
for as long as he does not alter the substance of the property in usufruct same as fiduciary.
2. fideicommissary substitute: naked title

* title will be consolidated in favor of fideicommissary upon death of fiduciary heir or the period expires

When can the fiduciary transmit the inheritance to the fideicommissary heir? When will the title be consolidated?
a) Period stated by the testator in the will
- However if the fideicommissary substitution imposes the absolute prohibition to sell or alienate it cannot go
beyond 20 years.
b) If no period is specified, then the obligation to transmit will arise upon the death of the fiduciary
- Even if it takes MORE THAN 20 years, the heirs of the fiduciary who has the obligation to transmit.
c) The fiduciary can deliver earlier than the period stated or prior to death voluntarily

Cases
1) belen v. bpi
collective or group institution and only one is named, it is construed the devise are individually given to the heirs
belonging to that group (per capita share)

2) nable v. uson
the named subgroup are entitled to the property because they are individually and specifically named in the will
itself
if the name of the parents are mentioned, but not their children, the subgroup can still inherit as if they were
individually instituted

3) austria v. reyes
the heirs are described as Sapilitang Tagapagmana
they are not validly adopted, the institution is still valid because the Court reiterated the elements of absence of cause

4) barrios v. enriquez
bastard son was instituted with the legitimate children: valid because the old civil code did not prohibit such institution;
the legitimes were not impaired

6) seangio v. reyes
kasulatan sa pag-aalis ng mana
no preterition: the only intent if testator is to disinherit the erring = implied institution of other compulsory heirs
valid disinheritance: totality of acts is considered as maltreatment of the parents
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if the son will deny the same, the father named a witness who may attest to the acts of Alfredo
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7) jlt agro
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no preterition: no total omission, no institution of universal l heirs, there are other properties, the case involves only
partition inter vivos

8) acain v. iac
no preterition of the widow because it only applies to the direct line
as to the adopted child, there is preterition because he is a legitimate child
no need to probate

COLLATION
- collation under 908-909 aims to determine the net hereditary estate in case donations inter vivos were made prior
to death of testator; to resolve conflict between donees and compulsory heirs
- collation under 1061: also treats donations inter vivos as advances however collation in this section is intended to
resolve conflicts between and among compulsory heirs; parification of compulsory heirs; equality in kind and quality
of inheritance

Requisites
1) there must be two or more compulsory heirs surviving, alive, willing and qualified to inherit from the decedent
2) there must be an act of liberality conferred by the decedent upon one or some of the compulsory heirs; these acts of
liberality must be given inter vivos whether directly or indirectly
* indirect acts of liberality: amounts paid by the parents for the following
- election expenses for the child
- fines and indemnities imposed by judgment upon the child
- amounts paid for gambling expenses
- wedding gifts (donations propter nuptias)
> if jewelry or clothing
GR: not collatable because it is customary
ER: if the value of the wedding gift exceeds 1/10 of the free disposable portion, the excess is collatable
> if any other kind of property, the whole value is collatable
- expenses for vocational and professional course
GR: not collatable
ER: if the testator so requires in a will; if the vocational or professional expenses are inofficious
the rule in ER:
> after determining the whole amount of educational-related or living expenses, subtract the amount that
the parents would have spent for the support of such child had the child lived with them at the time of
completing the education
> if the amount cannot be ascertained, 50% is living expenses not collatable because it represents support
and the other 50% is collatable
> if staying with parents: the entire amount spent is collatable
3) there must be identity (may be constructive identity like in the case of representation) between the beneficiary of
the gratuitous act and the heir; they must be one and the same person; the donee is a compulsory heir
- thus, if the donee is a grandchild of donor, parents of donee cannot be compelled to bring back to collation
what was donated to their children; remedy is to impugn the donation

COLLATION IN KIND OR IN CASH

 the donee/compulsory heir will choose either to return the property or pay in cash
- if paid cash, the donee retains risks and enjoyment of benefits including improvements
 if the heir cannot perform the same by bringing back the value, the only option is collation in kind -> the property
34

received shall be returned to the hereditary estate

- convey title from donee to the hereditary estate  executor will partition the same
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 - after delivery, the risk of loss shall be borne by the estate
- the heir who returns the property shall be reimbursed:
> necessary expenses to preserve the property including taxes
> value of useful improvements which are existing at the time of collation
> for luxurious improvements: if appropriated by the estate, it will be reimbursed; otherwise it will be removed
provided there is no destruction of the property
> in case of taxes: taxes advanced from the moment collation is done

PARTITION
- any act that puts an end to an indivision of property
- for exclusive ownership by each of the owners
- may be done extrajudicially or judicially

Extrajudicial
1) before death, partition inter vivos may be done by the testator
o no need to execute any form required for donation; mere deeds of conveyances are sufficient
o if in accordance to a will, the partition is deemed provisional because the will may still be revoked before
death
o must be duly notarized
o binding and executory upon death unless the partition is injurious to the rights of other compulsory heirs or
it can be set aside if a complete stranger is included in the partition (partition is intrinsic to successional
rights)
o testator may instruct by will that to preserve the hereditary estate consisting of agricultural, industrial,
manufacturing (AIM); the AIM shall be given to one of the compulsory heirs and the others shall be paid in
cash
2) extrajudicial partition may also be done by a commissioner after death of testator
o commissioner: any of the heirs or a stranger
o must observe the principle of equality and obtain first letters of accreditation
o if there's a will, may complete extrajudicial partition by way of public instrument
3) heirs among themselves
o even if others are still minor or legally incompetent; the requirement is that they must be represented
o by way of public instrument: to be the basis for the issuance of certificate of title

Forms:
 offshoot of settlement of estate proceeding
 offshoot of settlement of estate of 10k or less
 sole adjudication by an heir which requires court approval
 petition for partition

STEPS IN PARTITION
1) set the legal basis for partition:
a) death
b) value of the gross hereditary estate by way of inventory
c) debts
d) pay off debts or reserve amounts to pay off debts
e) pay first those prescribed under the Rules of Court
 expenses for burial and expenses for last illness
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 expenses incurred in partition

 widow/er’s pension or allowance for three months
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 estate tax
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  all other debts based on maturity
f) determine the heirs (check order of preference)

EFFECT OF COMPLETION OF PARTITION

 confer absolute and exclusive portion over the property adjudicated
 mutual obligation to warrant the title of each: if one of them is evicted, others shall be proportionately liable
 mutual accounting of expenses and benefits
- acts of preservation: any one of them
- administration: financial majority
- alteration: unanimous
Q: what if prior to partition, one heir sell the entire property?
A:
- the sale is valid only as to the share of the co-heir
- other heirs have right of redemption (30 days from actual or constructive notice)

INSTANCES WHEN PARTITION IS NULL AND VOID

1) if partition includes one who is not an heir, the entirety of partition is nullified, redistribute the property
2) when a forced heir is preterited (preterition in the partition):
a. the forced heir is entitled to be given property not yet distributed or remaining in the hereditary estate
b. if it was already divided, redistribute the property

RESCISSIBLE PARTITION
- if there is lesion
- lesion must be more than 1/4 of the share
- redistribute the property

last quiz
 imprescriptible, mandatory, in rem, extrinsic validity, intrinsic validity, jurisdiction
 equally regardless full-blood or half-blood
 relative condition: valid
 Dely as the substitute will inherit (vulgar or simple substitution)
 condition: school of law building: modal
 fideicommissary substitution: fiduciary cannot sell the property
 no collation because there is no compulsory heir
 there is preterition

cases
 mere estrangement/separation de facto is not a ground to disinherit (baritua v. ca)
 disinheritance is applicable also to those who has right or representation, not only right of succession (pecson v.
mediavillo)

LEGACIES OR DEVISES

 testamentary gift given by testator consisting of individualized definite item out of the hereditary estate
 purpose: for the testator to reward persons chosen by him/her
 may be classified based on the nature of property given
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> legacy: personalty (bequeath is better)

> devise: real property or any interest therein such as easement or servitude
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 based on the person burdened

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 > legacy proper
- payment is a charge upon the hereditary estate
- executor/administrator must fulfill said obligation on behalf of the testator
- however, in delivering the same, he must first secure judicial authorization
- once paid, the later cannot be held liable under warranty against hidden defects or eviction because the
delivery is by virtue of judicial authorization
> sub-legacy
- payment or delivery is imposed as a burden upon another heir instituted by the testator against the
property of the heir burdened, not against the estate of testator
- if the burden is in excess of the inheritance, the excess need not be fulfilled by the heir burdened
- in case of non-fulfillment, observe the rules on reciprocal obligation
- there is modal institution
- the heir burdened warrants title, thus, the legatee cannot give property not owned by him
> pre-legacy

RULES PERTAINING TO LEGACIES OF SPECIFIC THINGS (include devises)

1) if belonging to the testator at the time of execution:
a. part of the estate at the time of death: the legacy is valid but the legatee must take the property in
whatever condition it may be found when it will be adjudicated
 in case of land, any pending crops at the time of death of testator shall be for the benefit of the
legatee; but fruits that accrued prior to death will not belong to the legatee unless otherwise
provided in the will
 if legacy or devise is subject to lien, the obligation secured by the property must first be paid by the
estate; unless the testator required the legatee to pay the obligation
 if at the opening of succession, all that the testator has was undivided interest, the legatee steps
into the shoes of the testator, thus he cannot claim the whole
 existing easements, servitudes, or other real rights shall be respected by the legatee
 whoever wrongfully acquires possession of the gift shall be liable for delivery thereof to the legatee
our devisee
 legatee cannot seize actual possession of the property without judicial authorization or final
partition
b. not part of the estate at the time of death of testator because of subsequent alienation, transformation, or
destruction by the testator
 the legacy is rendered ineffective because of implied revocation; implication of the intent of testator
2) if not belonging to the testator at the time of execution
a. under erroneous belief that the property belongs to the testator: the legacy is void
 legatee cannot claim the property unless the testator acquires the property after the making of the
will (validation of what was written in the will)
b. with knowledge that it does not being to him: legacy is valid because there is presumption that the testator
is ordering the estate to acquire the property to be given to the legatee
 estate must endeavor to acquire the property from the owner
 if the present owner refuses to sell or selling at an unreasonable price: the legacy is converted to
cash computed at fair and reasonable value of the property
 at the time of death of testator, legatee already owns the property (onerous): legacy is still valid
however the estate must reimburse the legatee for the price paid; but if the acquisition was
gratuitous, no reimbursement
c. legatee owns the property: totally void
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 only possible redeeming situation is when the legatee sold the property to the testator
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LEGACY OF GENERIC THINGS
1) may be immovable:
 where the will specifies it by kind, nature, quality: legacy is valid
 but if no immovable: void legacy
 determining factor: death of testator, not at the execution of the will
2) generic movable
 valid whether or not its kind, quality, or class belongs to the testator: obligation of estate is to acquire such
property
3) legacy of cash is always valid
 liquid estate: valid - remedy is to sell the property without impairing the legitimes and the disposition of the
will
 order
- personal
- real
- cash
 insolvent: ineffective

ALTERNATIVE LEGACY
- two or more testamentary gifts but the legatee must choose only one
- estate will choose

LEGACY OF OPTION / LEGADO DE OPCION

- testator grants to the legatee the right to choose property from any kind, quality, or class

LEGACY OF RIGHTS
1) legacy of credit
- testator transfers his right to another
- kind of novation by will
- there is subrogation in the person of the creditor
- transferee acquired right only upon death of testator
- between the estate and transferee, the latter has the right to collect
- if after the execution of the will, testator demands full payment against the debtor or files a collection suit, the
legacy is revoked
2) legacy of remission of debt
- legatee is the debtor effective upon death of the testator
- if partial payments have been made prior to death of testator, condonation affects only the balance
- if after the execution of the will, testator demands full payment against the debtor or files a collection suit, the
legacy is revoked
> pending action for collection is suspended until the probate proceedings are settled
- if without knowledge of condonation and debtor pays the debt, he has the right to reimbursement because the
payment was a solutio indebiti
3) legacy of support
- covers only those which are indispensable to life (food, shelter...)
- the amount is determined
> what is stated in the will
> if no statement in the will, based on what was customarily given by testator prior to death
> if none, use the Family Code (needs of the payee v. resources of the payor)
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- duration is for the lifetime of the legatee unless testator fixes a date or imposed condition
4) legacy of education
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 - only for education and related expenses (tuition, miscellaneous, other fees, books...) to complete professional or
technical skills
- living expenses are NOT included
- implied obligation on the part of legatee: study diligently
5) legacy of pension
- the legatee may use it for any purpose
- legatee may be paid in advance (unlike in support and education where the unused amount must be returned if
advanced)

RULES WHENEVER THE SAME PERSON IS GIVEN TWO OR MORE LEGACIES

1) if both legacies are gratuitous, the heir may accept or reject both or either
2) if one is gratuitous and the other is onerous
- accept both
- reject both
- accept onerous and reject gratuitous but not accept gratuitous and reject onerous
3) if the legatee is also a compulsory heir
GR: legacy is added to the legitimes; the heir can reject the legacy without repudiation of the legitimes
4) if instituted heir cannot inherit
follow order of preference: (isai)
- instituted heir
- substituted heir
- right or representation (for legitimes only)
- co-heir (right of accretion)
- intestate

INTESTATE SUCCESSION
- takes place by operation of law
- in forced succession, the law disregards the intent of the testator while in intestate succession, the law is presumptive
of the intent of the testator

WHEN DOES INTESTATE SUCCESSION TAKES PLACE?

1) in the absence of will
- entire estate will be distributed by intestacy
2) the will was executed but was disallowed
- entire estate will be distributed by intestacy
3) the will was validly made and allowed but does not cover the entire estate
- only the part not distributed will be distributed by intestacy
4) the heir instituted in the will does not inherit and in the absence of substitute, co-heir
- only that portion will be distributed by intestacy

INTESTATE SUCCESSION
- relationship between the decedent and the latter's relatives
> determination of those who belong to the direct line and collateral line, thus there is an order of preference (love
descends, ascends, spreads)
a) LCDs and or ICDs: no limitation as to the degree of proximity for as long as they are descendants
b) in default of the above, LPAs and IPs shall inherit
c) all of them in the direct line may concur with the widow/widower
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4) in the absence of those in the direct line, the intestate estate descends to the collateral relatives up to the 5th
degree only
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5) in the absence of 5th degree relatives, the republic shall be the intestate heir
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FOR ALL THE RELATIVES
- determine legitimate and illegitimate filiation
- degree of proximity or closeness must be determined that's why the nearest relatives exclude the farther ones
- full-blood siblings inherit twice as much as the half-blood (but illegitimate half-blood cannot inherit because of iron
barrier rule)

notes
 direct line first, then collateral line up to the 5th degree
 principle of concurrence and exclusion is applicable
 presence of one or more intestate heirs of the same class: they will inherit simultaneously
 presence of one class will bar the others from inheriting the estate: illustrated by the iron barrier rule (A. 992)
 illegitimate cannot inherit by operation of law from the legitimate relatives of their mother/father and vice versa
 rule of proximity: those nearer in degree shall include the farther ones

PRINCIPLE OF EQUALITY
- among the relatives within the same class, apply the principle of equality
- their share is equal, LCDs inherit equally between and among them
- not absolute: by operation of law, they cannot inherit equally even if they are within the same degree of relationship
 LCD and ICD
 among siblings (full-blood inherit twice as much as the half-blood)
 nephews and nieces along with uncle and aunts: intestate estate descends only, uncles and aunts are barred

ORDER OF INTESTATE SUCCESSION

1) of a legitimate decedent
a) concurrence between the LCDs, spouse, and ICDs
- legitimes as minimum shares + surplus
- surplus is 10:10:5
b) LCD and spouse or LCD and ICD
- when only two class survived
- share of widow/widower is equal to the share of LCD
c) LCDs only
d) LPAs concurring with LPAs and ICDs (same as legitimes but of the entire estate)
e) LPAs and spouse or LPAs and ICDs (1/2 each)
f) LPA's only or ICDs only
g) spouse and brothers and sisters, or spouse and nephews and nieces (1/2 each)

2) of illegitimate decedent

3) of adopted decedent (art. 190)

RIGHT OF REPRESENTATION
- right created by operation of law whereby a person is raised to the same status and rank as the person represented

Elements of right of representation:

1) takes place by operation of law / legal fiction: representative inherits not from the person represented but from the
person who the latter should have inherited
- must be capacitated and willing to inherit from the decedent and not from the person represented
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- one who renounces cannot be represented but he or she may represent  it will go to the co-heirs/class in the
same degree through right of accretion (right of accretion: same level)
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2) representative is a relative remoter in degree while the person represented is a relative closer to the decedent
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 - one who cannot represent a relative closer in degree cannot represent another relative remoter in degree

WHEN RIGHT OF REPRESENTATION SHALL TAKE PLACE

- right is present whenever there is predecease, or incapacity, and in the case of legitimes, disinheritance

WHO MAY REPRESENT

1) in case of predecease, incapacity, disinheritance in the legitimes
> in legitimes: only those in the direct descending line
- if the children of testator, cannot inherit, grandchildren will inherit
> in intestacy: exercised by the
- direct descending line subject to iron barrier rule
- nephews and nieces may also represent their parents as long as the representative nephews and nieces concur
with other brothers and sisters of the decedent
- beyond nephews and nieces, no more representation
- determine whether the one represented is legitimate or illegitimate
> if the one represented is legitimate: iron barrier rule
> if illegitimate: no iron barrier rule

RIGHT OF ACCRETION
- implied institution of two or more heirs based on the presumptive will of the decedent
- institution is merely implied that is why it is subordinate to substitution

Elements of right of accretion:

(1) joint designation in the will of two or more heirs to the same property or portion
- two or more heirs are not given any definite or specific portion of the property so that by their designation
they will eventually become co-owners of the inheritance
- if called to succession to a specific part or item to the hereditary estate, the right of accretion cannot be
exercised
- their portion in the inheritance is specified or delineated by the testator
- if the will states “I hereby give to a and b my parcel of land”, in case the other one can inherit the same shall
inherit by right of accretion
(2) there must be a vacant portion that has been created by predecease, incapacity or repudiation by the person
originally called to the inheritance and there is no substitute named by the testator
(3) vacancy did not arise in the legitime
- because in case of predecease, the vacancy in the legitime will pass through representation, co-heirs will
acquire in their own right and not by right of accretion
- vacancy is created in the free disposable portion, in any share in intestacy under 1018 if the same has been
repudiated

Notes:
 The co-heir called to the same inheritance shall inherit by operation of law the share of the other
 Accretion is similar concept with substitution, co-heirs must be subject to the same conditions, burdens and charges
as the original heir unless by will, the testator provides otherwise.
 Share in accretion is the same in substitution
 Share in substitution is the same in institution
 Share will pass through the heirs of the decedent
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CAPACITY TO SUCCEED
- ability to acquire property mortis causa
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- determine the capacity of an heir at the time of the opening of succession

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- heir is required to be capacitated

WHAT ARE THE KINDS OF INCAPACITY?

A. absolute incapacity - cannot inherit form anyone at anytime
- juridical entity under whose charter (law of creation, articles of incorporation) absolutely prohibit them from
acquiring property gratuitously
- LGUs
- State
- Non-stock, stock corporation: depending on the circumstances (G.R. Prohibited from making gratuitous
donations)
- all other persons devoid of juridical or civil personality
- in case of predecease, the heir who would have inherited is entitled to right of representation
- conceived fetus, favorable to unborn (presumed to possess civil personality from the moment of its
conception) provided that it shall be born in accordance with law, alive at the time of delivery; less than
intra-uterine of 7 months, must live for 24 hours

E.R: soul (a testamentary provision in favor of the decedent is valid)

“To facilitate my entry in the pearls of heaven, 10 M to the Roman Catholic Church care of the Pope”
- Money or property given for the benefit of the soul of testator must be used in accordance with the will by the
person designated in the will.
- if no named person, executor must use said property as follows
1/2 to the church where he belonged
1/2 charity

B. relative incapacity - disqualify a person from inheriting under certain circumstances from certain persons
- First two are applicable in testamentary succession
a. Incapacity by reason of possible undue influence - disqualified whether or not there is proof that he exerted undue
influence; proof of undue influence is immaterial
(1) Priest, pastor or minister of the church that rendered spiritual aid or heard the last confession of the testator prior to
death
- applies directly to the priest and pastor as well as to the latter's spouse, parent or children, to the church
- in favor of that person, spouse of the priest, possibly no opportunity to revoke the testamentary provision
(2) physician, nurse, druggist, similar persons who rendered help during the last illness of the testator (illness that lead
to the death of the testator) even if the testator survives such illness; only remedy is for the testator to execute an
affirming will or codicil in case he survives the illness
Q: in the first two relative incapacities, what if the (1) and (2) are compulsory heirs?
A: they are disqualified to inherit from the FDP

(3) any attesting witness to the will including the latter's spouse, parent or child or any other person claiming under said
will, his spouse, child or parent
- creditor of a witness
- redeeming factor: disqualification ceases if there are at least three other competent and disinterested person
attesting to the will
(4) guardian: with respect to the property of the ward if the said will is prior to the accountability of the guardianship
- there is fiduciary relationship between the guardian and ward
- judicial approval of the final accounts of guardianship restores the ward of civil personality
- sound mind and at least 18 years of age, guardianship is founded on other causes (prodigal son / spendthrift)
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b. By reason of public morality - similar to the prohibitions for donations inter vivos premised on public morality
(1) persons who are guilty of adultery and concubinage with one another; conviction by final judgment is not necessary
(2) those who are guilty of the same criminal offense and by reason thereof they cannot and are disqualified to inherit
from one another
- co-conspirators who are principals, accomplice, accessories before and after the act (aggravating circumstance
if there is a promise of reward or gift)
(3) those made in favor of public officers, to the latter's spouse, child, parent or ascendant by reason of latter's office.
- public officers - cannot inherit

c. Acts of unworthiness
(1) parents who have abandoned their children
(2) attempt against the life of the decedent
(3) false imputation
(4) conviction by final judgment with adultery or concubinage with the spouse of the testator
(5) knowing of the violent death of the testator, failed to report the same within one month (obstruction of justice, saw
the violent death amounts to the crime of abandonment)
-only if within that month, the authority have not yet taken action, the heir must promptly inform the proper
authorities
(6) supplants the will of the testator
-submits a will that is a complete falsity
(7) any person who by any vice of consent make another will or to cause one to revoke

RESTORATION OF CAPACITY
 For acts of unworthiness, the capacity may be restored through pardon granted by the decedent prior to death; it
must be in writing
- present the written pardon in order to restore the capacity to inherit
 If the ground of unworthiness is a ground for disinheritance, no need for a written pardon because mere
reconciliation is enough in order to regain the status of an heir
 Capacity to inherit cannot be restored in any manner if the basis is possible undue influence or public morality

THE LAW PROHIBITS INTERPOSITION

- given in favor of a disqualified heir disguised as an obligation or through a conduit or intermediary
- example: if the paramour, testator gives to the sister of the paramour, or testator owes something from the
paramour
- this is not self-executing
 necessity: persons who are interested must petition the court for the declaration of incapacity
o If extra-judicial, petition must be filed as an independent action
o If judicial settlement - mere motion is enough
 In all cases, the burden to prove that the heir is disqualified rests on the persons interested

EFFECTS OF DISQUALIFICATION:
 In case of declaration of said incapacity, then the heir is not entitled to any share out of the inheritance.
 Valid or legitimate ground: petition the court for disqualification if he is not disinherited
 The disqualified heir is not entitled to exercise parental usufruct and administration over property that may pass
- if the disqualification is of a compulsory heir, entitled to the right of representation
- if substitute (free disposable portion), no substitute (by right of accretion)
- intestacy (by right of representation)
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ACCEPTANCE AND REPUDIATION
(1) date of opening of the succession
- time when successional rights vests and if the inheritance is accepted, it retro acts to the said date
- if repudiated, no right whatsoever accrued
(2) date of availability of inheritance
- whether or not there is inheritance from the hereditary estate
(3) date of delivery
- actual vs. constructive
- the final act for said delivery is the partition of the hereditary estate whether judicial or extrajudicial

PARTITION
- if specific or definite item of the property of the decedent or in case of land by metes and bounds, the same is actually
delivered to the heir
- delivery of inheritance that will end the indivision

REQUISITES
1) Formed by one who is capacitated
2) For the act of acceptance, these may be done by an agent or representative in case the heir is legally incompetent to
accept

WHO MAY ACCEPT AND OR REPUDIATE IN BEHALF OF THE FOLLOWING?

(1) minors - legal or judicial guardians (parents)
- these persons cannot renounce without prior renunciation (Guy vs. CA)
- same for other incompetents
(2) juridical person can only accept or repudiate through their legal representatives
republic President
LGU/ other government respective heads
agencies
partnership managing partner
(in repudiation, all must
repudiate)
corporation board of directors
FORMS OF ACCEPTANCE
(1) express - this may be done either in writing or verbally by the heir,
(2) implied or tacit - merely implies said acceptance from the performance of acts made by the heir, the conclusion is
drawn from said act except as to the capacity of an heir
- the following are considered acts of implied acceptance:
a. Sale or disposition made by the heir
b. When the heir gratuitously renounces or waives the right in favor of a co-heir or even some other person
c. waiving in favor of a specified person (means accept then transfer)
d. starts performing acts of dominion over the inheritance such as destroying, improving or claiming a specific
portion, payment of taxes limited to the undivided interest
e. NOTE: mere acts of administrations do not amount to implied acceptance, expenses are subject to
reimbursement and mutual accounting
(3) presumed
- can only take place if there are judicial proceedings in the settlement of the estate or partition thereof
- from the time of the adjudication of the property and the latter has not signified one way or another
acceptance or repudiation: 30 days
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- approved project of partition, simply requires issuance of title over definite portions
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FORMS OF REPUDIATION (in favor of all the co-heirs)
- always express and in writing
- this is unnatural, thus, it cannot be merely presumed
- written evidence of repudiation must be made known to the other heirs
- motion before the estate court must be publicized
- once an heir repudiates in the form prescribed by the law, he is deemed to have never acquired any successional rights
at all.

EFFECTS FOR EITHER REPUDIATION OR ACCEPTANCE

- done usually after the death of the testator
- retroactive to the death of testator
- one who repudiates the legitime is also deemed to have waived his share in the free portion
- one who repudiated as an intestate heir can still accept under a belated will
- capacity to succeed, acceptance and repudiation is subject to the constitutional ban of ownership of lands among
aliens
example:
 devise is given in favor of an American by a Filipino
 effect: American is not capacitated to inherit

Cases in testamentary capacity and probate

1) Castañeda v. Alemany
- not written by the testator but signed by him
- mechanical act of writing may be delegated
2) Dacanay v. Florendo
- joint will
3) Dela Cerna v. Rabaca
- survivorship agreement
4) Reyes v. CA
- animus testandi of testator
5) Palaganas v. Palaganas
- will by a foreigner may be probated in the Philippines because the estate is located here; no need to reprobate
6) Alsua Betts v. CA
- revocation of a will is allowed but in the case, there is no revocation
7) Llorente v. CA
- extrinsic validity: Philippine law governs because it is executed here
- intrinsic validity: national law of the testator
8) Vda de Perez v. Tolete
- reciprocal will: in a two separate acts, testators institute each other as their respective heirs
- reciprocal will is not present in the case
- pending probate in the US may be held simultaneously in the Philippines
- the sole heir in the Philippines must present evidence (requisites for probate in the Philippines)
-> the will has been admitted to probate
-> testator domiciled abroad
-> foreign tribunal is a probate Court
-> in accordance with the law abroad
9) Suntay v. Suntay
- no evidence that the probate proceedings in China complied with the law in China
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- thus, processual presumption applies

10) Ortega v. Valmonte
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- advanced age / exhibitionist: not unsound mind

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11) Bagtas v. Paguio
- has a way to express his intent (his paralysis was only with respect to half of his body)
- physical incapacity is not mental incapacity
12) Abquilan v. Abquilan
- full paralysis / brain damage: nature of his disease renders her incapacitated to express her intentions

Pass Succession! Pass the bar!

Amen   

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