WILLS AND SUCCESSION

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- Without a law that recognizes succession as a mode
of acquisition, the death of the decedent would leave
WILLS AND SUCCESSION his inheritance without an owner, converting his
MORILLO QUICK REVIEWER assets into res nullius and his outstanding obligations
Atty. Avelino M. Sebastian, Jr. without an obligor/debtor.

Transmission of Property:
- The heirs acquire title to the hereditary estate from
the moment of the decedent's death, and, thereafter,
CHAPTER 1 the heirs become co-owners of the inheritance.
GENERAL PROVISIONS - Note: Acquisition of ownership is one thing and it
should not be confused with the right of possession
of the things that constitute the inheritance.
DEFINITION OF SUCCESSION:
- It is a mode of acquisition by virtue of which the BUTTE vs. MANUEL UY & SONS
property, rights and obligations, to the extent of the GR no. L-15499, February 28, 1962
value of the inheritance of a person, are transmitted
FACTS:
through his death to another or others, either by his
Jose Ramirez and Marie Garnier are two of the co-owners of a
will or by operation of law. (Art. 774, NCC) house and lot in Sta. Cruz, Manila. When Jose Ramirez died, his ⅙
undivided share of the said property was inherited by Angela Butte
DIFFERENCE BETWEEN INHERITANCE AND (granddaughter), pursuant to Jose’s Last Will & Testament.
SUCCESSION:
Marie Garner sold her undivided ⅙ share to Manuel Uy & Sons, and
INHERITANCE SUCCESSION the latter sent a letter to BPI (appointed judicial administrator of
Jose Ramirez’s estate), informing it about the aforesaid sale. BPI
A mode of acquisition The object of the acquisition forwarded the letter to Angela Butte. On the other hand, Angela
Butte send a letter and a PNB’s check to Manuel Uy & Sons
Refers to the decedent’s A mode of acquisition by offering to redeem the ⅙ share sold by Marie Garnier but the latter
refused it.
properties and his rights and virtue of which the
obligations which are not decedent's property, rights
ISSUE:
extinguished by his death and obligations are W/N Angela Butte can exercise the right of legal redemption over
and which are transmitted to transmitted to his heirs. the ⅙ share sold by Marie Garnier.
his heirs.
RULING:
YES, Angela butte is entitled to exercise the right of legal
ELEMENTS OF SUCCESSION: redemption. As testamentary heir of Jose Ramirez’s estate, she and
1. It is a mode of acquisition; her co-heirs acquired an interest in the undivided ⅙ share owned by
2. Transmission of an inheritance; her predecessor in the Sta. Cruz property, from the moment of the
3. The object of succession is the inheritance; death of a deceased person are transmitted to his heirs from the
4. Death triggers succession moment of his death, and the right of succession includes all
5. Succession is governed by the will or by law. property rights and obligations that survive the decedent.

As a consequence of the fundamental rules of succession (See

A. Mode of Acquisition: Arts. 776, 777, & 947, NCC), the heirs of Jose Ramirez acquired his
Claim of Ownership: undivided share in the Sta. Cruz property from the moment of his
- A mode of acquisition is the statutory basis of a claim death, and from that instant, they became co-owners of the said
of ownership. property together with the original surviving co-owners of their
- Ownership and other real rights over property are decedent.
acquired and transmitted by, among others, testate
and intestate succession. (See. Art. 712, NCC) A co-owner of an undivided share is necessarily a co-owner of the
whole. Hence, any one of Jose Ramirez heirs became entitled to
exercise the right of legal redemption as soon as another co-owner
Modes of Ownership: (O.L.D.T.I.P.S.) (Marie Garnier) had sold her undivided share to a stranger (Manuel
1. Occupation; Uy & Sons). This right of redemption vested exclusively in
2. Law; consideration of the redemptioner’s share which the law nowhere
3. Donation; takes into account.
4. Tradition;
5. Intellectual Creation; Transmission of Rights:
6. Prescription; and - The inheritance of a person includes the rights that
7. Succession pertain to him which are not extinguished by his
death.
B. Transmission of an Inheritance: - Not all rights are transmissible. rights that are
Extinguishment of Juridical Capacity; Effect: personal in nature are intramissible and they are
- Death extinguishes the juridical capacity of a person, extinguished by the death of the person. Example of
his title to or dominion over the things he owned in intransmissible rights:
his lifetime comes to an end. - right to hold public office;

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- rights arising from certain relationships such
as rights of usufructuary (Art. 603(e), NCC);
and
- rights arising from civil personality and
family relations:
- marital rights
- right to receive support
- parental authority
- right to file an action for the
following:
- Legal Separation;
- Declaration of Nullity of
Marriage; or
- Annulment of Marriage
- Claim of Legitimacy
- Rights and obligations arising from a contract are
generally transmissible except if such rights and
obligation are purely personal, or intramissible by
their very nature, or if the law or the stipulation of the
parties prohibits such transmission.
NATIONAL HOUSING AUTHORITY vs. ALMEIDA
GR nos. 162784, June 22, 2007
Petitioner NHA contends that its resolution was grounded on
meritorious grounds when it considered the application for the
purchase of lots. Petitioner argues that it was the daughter
Francisca Herrera who filed her application on the subject lot; that
it considered the respective application and inquired whether she
had all the qualifications and none of the disqualifications of a
possible awardee. It is the position of the petitioner that private
respondent possessed all the qualifications and none of the
disqualifications for lot award and hence the award was not done
arbitrarily.
The petitioner further argues that assuming that the "Sinumpaang
Salaysay" was a will, it could not bind the NHA. That, "insofar as
[the] NHA is concerned, it is an evidence that the subject lots were
indeed transferred by Margarita Herrera, the original awardee, to
Francisca Herrera was then applying to purchase the same before
it.”
The SC are not impressed. When the petitioner received the
"Sinumpaang Salaysay," it should have noted that the effectivity of
the said document commences at the time of death of the author of
the instrument; in her words "sakaling ako'y bawian na ng Dios ng
aking buhay…" Hence, in such period, all the interests of the
person should cease to be hers and shall be in the possession of
her estate until they are transferred to her heirs by virtue of Article
774 of the Civil Code which provides that: “Art. 774. Succession is
a mode of acquisition by virtue of which the property, rights and
obligations to the extent of the value of the inheritance, of a
person are transmitted through his death to another or others
either by his will or by operation of law.”
By considering the document, petitioner NHA should have noted
that the original applicant has already passed away. Margarita
Herrera passed away on October 27, 1971. The NHA issued its
resolution on February 5, 1986. The NHA gave due course to the
application made by Francisca Herrera without considering that the
initial applicant's death would transfer all her property, rights and
obligations to the estate including whatever interest she has or may
have had over the disputed properties. To the extent of the interest
that the original owner had over the property, the same should go
to her estate. Margarita Herrera had an interest in the property and
that interest should go to her estate upon her demise so as to be
able to properly distribute them later to her heirs—in accordance
with a will or by operation of law.
The death of Margarita Herrera does not extinguish her interest
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over the property. Margarita Herrera had an existing Contract to
Sell with NHA as the seller. Upon Margarita Herrera's demise, this
Contract to Sell was neither nullified nor revoked. This Contract to
Sell was an obligation on both parties—Margarita Herrera and
NHA. Obligations are transmissible. Margarita Herrera's obligation
to pay became transmissible at the time of her death either by will
or by operation of law.
If we sustain the position of the NHA that this document is not a
will, then the interests of the decedent should transfer by virtue of
an operation of law and not by virtue of a resolution by the NHA.
For as it stands, NHA cannot make another contract to sell to other
parties of a property already initially paid for by the decedent. Such
would be an act contrary to the law on succession and the law on
sales and obligations.
When the original buyer died, the NHA should have considered the
estate of the decedent as the next "person” likely to stand in to
fulfill the obligation to pay the rest of the purchase price. The
opposition of other heirs to the repurchase by Francisca Herrera
should have put the NHA on guard as to the award of the lots.
Further, the Decision in the said Civil Case No. B-1263 (questioning
the Deed of Self-Adjudication) which rendered the deed therein null
and void should have alerted the NHA that there are other heirs to
the interests and properties of the decedent who may claim the
property after a testate or intestate proceeding is concluded. The
NHA therefore acted arbitrarily in the award of the lots.
VERDAD vs. CA
GR no. 109972, April 29, 1996
Verdad purchased a residential lot. On the other hand, Socoro
seeks to redeem the said residential lot, tracing her title to
deceased Macaria (her mother-in-law) who died intestate. The heirs
of Ramon (grandchildren of Macaria) sold to Verdad the subject
property. Socoro discovered the sale and sought to redeem the
said property.
Can Socorro redeem the subject property considering that she is
merely a spouse of David, son of Macaria, and not being a co-heir
in the intestate of Macaria?
SC ruled that Socorro can redeem the property not because she
rightfully can claim heirship is Macaria’s estate but she is a legal
heir of her husband (David) part of whose estates a share in his
mother’s inheritance. David survived his mother’s death and
thereupon became co-owner of the property. When David later
died, his own estate which included the undivided interest over the
property inherited from Macaria, passed on to his widow Socorro
and her co-heirs pursuant to (Art. 995 & Art. 1001, NCC) law on
succession.
Socorro, along with the co-heirs of David, became co-owners of
the proper that originally descended from Macria. When their
interest in the property was sold by the Heirs of Ramon to Verdad,
a right of redemption arose in favor to Socorro and the co-heirs of
David. (See Arts. 1619-1620, NCC)
Transmission of Obligations:
- The heirs inherited the obligations of the decedent.
- Whatever payment from the hereditary
estate is made to the creditors of the
decedent is ultimately a payment made by
the heirs because the amount of payment
diminishes the shares that the heirs would
have otherwise been entitled to receive.
- SC interpreted the term “obligation” to include the
contingent liabilities of the decedent which are not
extinguished by his death.
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- NOTE: Art. 774, NCC limits the liability of the heirs for
the debts of the decedent to the value of the
inheritance.
- Contracts take effect only between the
parties, their assigns and heirs, except in
case where the rights and obligations arising
from the contract are not transmissible by
their nature, or by stipulation or by provision
of law. The heir is not liable beyond the
value of the property he received from
the decedent. (Art. 1311 (par. 1), NCC)
ESTATE OF HEMADY vs. LUZON SURETY CO.
GR no. L-8437, November 28, 1956
While in our successional system the responsibility of the heirs for
the debts of the decedent cannot exceed the value of the
inheritance they receive from him, the principle remains intact that
these heirs succeed not only to the rights of the deceased but a;so
to his obligations.
The contract of suretyship entered into by Hemady in favor of
Luzon Surety not being rendered intransmissible due to the nature
of the undertaking, nor by the stipulations of the contracts
themselves, nor provision of law, his eventual liability thereunder
necessarily passed upon his death to his heirs. Therefore, the
contracts give rise to contingent claims provable against his estate
under his estate.
For Defendant administratrix it is averred that the above doctrine
refers to a case where the surety files claims against the estate of
the principal debtor; chan roblesvirtualawlibraryand it is urged that
the rule does not apply to the case before us, where the late
Hemady was a surety, not a principal debtor. The argument evinces
a superficial view of the relations between parties. If under the
Gaskell ruling, the Luzon Surety Co., as guarantor, could file a
contingent claim against the estate of the principal debtors if the
latter should die, there is absolutely no reason why it could not file
such a claim against the estate of Hemady, since Hemady is a
solidary co-debtor of his principals. What the Luzon Surety Co.
may claim from the estate of a principal debtor it may equally claim
from the estate of Hemady, since, in view of the existing solidarity,
the latter does not even enjoy the benefit of exhaustion of the
assets of the principal debtor.
Transmission to the Heirs through the Estate:
- Succession is transmission of the inheritance from
the decedent to the heirs upon death of the former.
However, before the inheritance could be distributed
to the heirs, certain procedures must be completed,
such as (1) payment of outstanding debts of the
decedent, (2) payment of estate tax, (3) the resolution
of issues relating to collation (4) final determination of
ownership of the contested party, and other.
- During this time, the inheritance should go
to the estate of the decedent. (NHA vs.
Almeida, 525 SCRA 383)
- The estate of a deceased person is a
juridical entity that has a personality of its
own. (Nazareno vs. CA, 343 SCRA 637)
LIMJOCO vs. INTESTATE ESTATE OF
PEDRO FRAGANTE
GR no. L-770, April 27, 1948
FACTS:
The Public Service Commission (PSC) granted a certificate of
public convenience to the Intestate Estate of Pedro Fragante to
operate and maintain an ice plant pursuant to an application filed
by deceased Pedro in his lifetime. Limjoco (oppositor to the
application of Pedro) contends that it was error on the part of the
PSC to allow the substitution of the legal representative of the
estate of Pedro Fragante for the latter as party applicant in the case
then pending before the PSC, and in subsequently granting to the
said estate the certificate applied for.
ISSUE:
W/N the estate of Pedro Fragante is a “person” within the meaning
of the Public Service Act?
RULING:
YES, it seems reasonable that the estate of a decedent should be
regarded as an artificial person. It is the creation of law for the
purpose of enabling a disposition of the assets to be properly
made.
Under the present legal system, such rights and obligations as
survive after death have to be exercised and fulfilled only by the
estate of the deceased. And if the same legal fiction were not
indulged, there would be no juridical basis for the estate,
represented by the executor or administrator, to exercise those
rights and to fulfill those obligations of the deceased. The reason
and purpose for indulging the fiction is identical and the same in
both cases. This is why according to the Supreme Court of Indiana
in Billings vs. State, supra, citing 2 Rapalje & L. Dictionary, 954,
among the artificial persons recognized by law figures "a collection
of property to which the law attributes the capacity of having rights
and duties", as for instance, the estate of a bankrupt or deceased
person.
C. Object of Succession is the Inheritance:
What constitutes inheritance?
- The assets and liabilities of a person at the time of his
death constitutes his inheritance. (Art. 776, NCC)
- The inheritance of the decedent includes his
properties and transmissible rights and obligations.
Future Property vs. Future Inheritance:
FUTURE PROPERTY FUTURE INHERITANCE
Anything which a person does The contingent universality or
not own at present but which complex of property rights and
the person may acquire or obligations that are passed to
proposes to acquire in the the heirs upon the death of the
future. grantor.
May be the object of a contract May not be the object of a
(Art. 1461, NCC) contract. (Art. 1347, NCC)
Contract involving Future Inheritance:
BLAS vs. SANTOS
GR no. L-14070, March 29, 1961
A document signed by the testator’s wife, promising that she would
respect and obey all the dispositions in the latter’s will, and that
she would hold one-half of her share in the conjugal assets in trust
for the heirs and legatees of her husband in his will, with the
obligation of conveying the same to such of his heirs or legatees as
she might choose in her last will and testament, is a compromise
and at the same time a contract with sufficient cause or
consideration.
The action to enforce the wife’s promise to convey in her
testament, upon her death, one-half of the conjugal properties she
would receive as her share in the conjugal properties, did not arise
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until and after her death when it was found that she did not comply
with her promise. (Article 1969, old Civil Code).
Future inheritance is any property or right not in existence or
capable of determination at the time of the contract, that a person
may in the future acquire by succession.
DE BELEN VDA. DE CABALU vs. TABU
GR no. 188417, September 24, 2012
Under Art. 1347, CC, “no contract may be entered into upon future
inheritance except in cases expressly authorized by law.”
Paragraph 2 of Art. 1347, CC, characterizes a contract entered into
upon future inheritance as void. The law applies when the following
requisites concur: (a) The succession has not yet been opened; (b)
The object of the contract forms part of the inheritance; and (c) The
promissor has, with respect to the object, an expectancy of a right
which is purely hereditary in nature.
In this case, at the time the deed was executed, Faustina’s will was
not yet probated; the object of the contract, the 9,000 sqm.
property, still formed part of the inheritance of Domingo’s father
from the estate of Faustina; and Domingo had a mere inchoate
hereditary right therein.
Succession Inter Vivos:
- Art. 50, Family Code, introduced a new type of
succession that is triggered not by death of a
person but by the annulment or declaration of
nullity of marriage. (Note: See Arts. 50-52, Family
Code)
- The legitime is an integral part of the inheritance of a
deceased person which is reserved for the
compulsory heirs. (Art. 886, NCC)
- Art. 50, FC, mandates the payment of the
legitime of the children following the
annulment or the declaration of nullity of the
marriage of their parents.
- Art. 50,FC, impliedly amends Art. 774, NCC,
that succession may now occur even during
his lifetime.
Contractual Succession:
- This is a gratuitous disposition of future property
mortis causa made by one future spouse to the other
in the ante-nuptial contract.
- Donations mortis causa between future spouses now
require the execution of wills.

Domingo became the owner of the said property only on August 1,

1994. The time of execution of the Deed of Extrajudicial Succession If the future spouses agree upon a regime other than the
with Partition by the heirs of Faustina, when the 9,000 sqm. lot was absolute community of property, they cannot donate to each other
adjudicated to him. Domingo sold the said property to Tabu on in their marriage settlements more than one-fifth of their present
March 5, 1975. property. Any excess shall be considered void.

Therefore, the CA did not err in declaring the March 5, 1975, Deed Donations of future property shall be governed by the
of Sale null and void. provisions on testamentary succession and the formalities of wills.
(Art. 84, Family Code)

D. Death triggers Succession:

Death triggers succession: E. Governed by Will or Law:
- The transmission of the inheritance to the heirs What governs succession?
occurs only upon the death of the decedent. 1. Rules of testamentary succession (if the decedent left
However, Art. 50, Family Code, amends this. a will);
- Death may be actual or presumed. The presumed 2. Rules of intestate succession (if the decedent died
death is classified into ordinary and extraordinary. without a will, or the will is void, of the will that has
subsequently lost its validity, or the will is totally
Presumptive Death for the Purpose of Opening inoperative)
3. Both Rules (If the decedent executed a valid will
Succession:
which did not or could not completely dispose of the
- After an absence of seven years, it being unknown
whether or not the absentee still lives, he shall be inheritance).
presumed dead for all purposes, except for those of
succession. Classification of Succession:
- The absentee shall not be presumed dead for the
purpose of opening his succession till after an
absence of ten years. If he disappeared after the age
of seventy-five years, an absence of five years shall
be sufficient in order that his succession may be
opened. (Art. 390, NCC)

Persons presumed death for all purposes, including the

division of the estate among his heirs:
1. A person on board a vessel lost during a sea voyage,
or an aeroplane which is missing, who has not been
heard of for four years since the loss of the vessel or
aeroplane;
2. A person in the armed forces who has taken part in
war, and has been missing for four years;
3. A person who has been in danger of death under
other circumstances and his existence has not been
known for four years. (Art. 391, NCC)

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DISTINCTION OF AN HEIR, A LEGATEE AND DEVISEE:
Heir - A person called to the succession in the testator’s will,
who pursuant to the terms thereof will either receive the
entirety or a fractional part of the inheritance. (Art. 775, NCC)
Legatee - A person called to the succession in the Testator’s
Will who will receive a movable property specifically identified
by the testator. (Art. 782, NCC)
Devisee - A person called to the succession in the Testator’s
Will who will receive an immovable property specifically
identified by the testator. (Art. 782, NCC)
EFFECT OF DISTINGUISHING “HEIR” AND “LEGATEE &
DEVISEE”:
● In Art. 854 (NCC, the) preterition annuls the institution of
heirs, but the legacies and devises which are not
otherwise inofficious remain valid.
○ The annulment of the institution of heirs is
total, leaving the instituted heirs with nothing
under the will.
○ The legatees and devisees will get the gifts
of movable and immovable properties
respectively, as long as these gifts do not
impair the legitime.
● In Art. 918 (NCC), an invalid disinheritance results in
the annulment of the institution of heirs insofar as it
prejudices the invalidity disinherited heir, but the
devises and legacies shall be valid to the extent they
do not impair the legitime.
○ The institution of heirs may be annulled
(totally or partially) to the extent necessary
to make whole the legitime of the
compulsory heir who was invalidly
disinherited.
○ The legatees and devisees will get the gifts
of the movable or immovable properties
respectively, but the same may be reduced
or abated only if the total annulment of the
institution of heirs is insufficient to make the
whole the legitime of the compulsory heirs
who was invalidly disinherited.
THE INHERITANCE:
- Includes all the property, rights, and obligations of a
person which are not extinguished by his death. (Art.
776, NCC)
- Includes not only the property and the transmissible
rights and obligations existing at the time of his
death, but also those which have accrued thereto
since the opening of succession. (Art. 781, NCC)
NOTE: The inheritance of a person includes only his
properties, rights and obligations which are not
extinguished by his death. However, accruals thereto,
while not forming part of the hereditary estate, are liable
for the payment of the claims of the creditors of the
decedent.
PROPERTIES EXCLUDED IN THE INHERITANCE:
1. Properties subject of fideicommissary substitutions:
- A testator may simultaneously institute 2 heirs to one
and the same inheritance. Upon the death of the
testator, the first heir receives the inheritance.
However, he is burdened with the obligation to
preserve and to transmit to the second heir the whole
or part of the inheritance. (See Art. 863, NCC)
- Hence, upon the death of the first heir, the property
passes to the second heir. It does not form part of the
inheritance of the first heir.
2. Properties subject of “Reserva Troncal”:
- An 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 the property came.
- The reservable property neither comes nor falls under
the absolute dominion of the ascendant who inherits
and receives the same from his descendant. Therefore
it does not form part of his own property nor become
the legitime of his forced heirs. (See. Art. 891, NCC)
3. Properties which are subject matter of valid Aleatory
Contracts:
- It is legally permissible for two or more persons to
pool their resources in a joint investment and to
stipulate that the survivor between or among them
shall take absolute title to the entirety of the
investment upon the death of one of them.
- NOTE: In the following cases, two persons
(two friends, a master and his servant, and a
husband and his wife) contributed properties
into a single investment (joint tenancy in
various movable and immovable properties,
and bank deposits) with the express
agreement that the survivor between them
takes absolute title to whatever is left of the
investment upon the death of the other. The
remaining balance of the investment does
not form part of the estate of the deceased
party and his or her relatives have no
successional rights thereto.
MACAM vs. GATMAITAN & GATMAITAN
GR no. 42519, March 11, 1937
Deceased Leonarda Macam and Defendant Juana Macam lived
together as friends, Leornarda having contributed the house and
Juana contributed the Buick automobile and most of the furniture
to such companionship, both having thereby established a de facto
joint ownership of the properties respectively contributed by them.
Juana contends that with respect to the house, Exhibit C (Deed of
Sale executed Leonarda & Juana with Sps. Inducil over the subject
house), on the part of Leornrda, constitutes a donation mortis
causa in favor of Juana, and as it had not been executed with all
the formalities required by law for a will, it is entirely invalid and did
not produce the effect of conveying the ownership of the house to
Juana.
Trial Court considered the act of Deceased Leonarda as a transfer
of ownership of the house in favor of Juana, but not in the concept
of donation.
SC is of the opinion that Exhibit C is an aleatory contract whereby
one of the parties or both reciprocally bind themselves to give or do
something as an equivalent for that which the other party is to give
or do in case of the occurrence of an event which is uncertain or
will happen at an indeterminate time. Again, Leonarda was the
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owner of the house and Juana of the automobile and most of the
furniture. By virtue of Exhibit C, Juana would become the owner of
the house in case Leonarda dies first, and Leonarda would become
the owner of the automobile and the furniture if Juana were to die
first. In this manner, Leonarda and Juana reciprocally assigned their
respective property to one another conditioned upon who might die
first, the time of death determining the event upon which the
acquisition of such right by the one or the other depended. This
contract is binding upon the parties thereto. Inasmuch as Leonarda
had died before Juana, the latter thereupon acquired the ownership
of the house, in the same manner as Leonarda would have
acquired the ownership of the automobile and of the furniture if
Juana died first.
SURVIVORSHIP AGREEMENTS:
RIVERA vs. PEOPLE’S BANK AND TRUST COMPANY
GR no. 47747, April 17, 1942
Edgar Stephenson and Ana Rivera executed a survivorship
agreement wherein they, together with People’s Bank, agreed that
“all moneys now or hereafter deposited by us shall be the property
of both of us as joint tenants, and after the death of one of us shall
belong to and be the sole property of the survivor, and shall be
payable to and collectible by such survivor.”
Ana was employed by Edgar as housekeeper until his death. The
account was transferred to the name of “Edgar Stepenson and/or
Ana Rivera.” At the time of Edgar’s death, Ana held the deposit
book and there was a balance in said account which Ana claimed
but People’s Bank refused to pay to her because it (the bank) is
doubtful of the validity of the Survivorship Agreement.
SC found that the survivorship is not mere power of attorney
from Edgar to Ana, or that it is a gift mortis causa of People’s
Bank in question from him to her. The fact that subsequently
Edagr transferred the account to the name of himself and/or Ana
Rivera and executed with the latter the survivorship agreement in
question nullifies the assumption that Edgar was the exclusive
owner of the bank account. In the absence of clear proof to the
contrary, the SC give full faith and credit to the certificate of deposit
which recites in effect that the funds in question belonged to Edgar
and Ana; That they were joint owners thereof; and that either of the
could withdraw any part or the whole of said account during the
lifetime of both, and the balance, if any, upon the death of either,
belonged to the survivor.
Is the Survivorship Agreement valid? - SC thinks it is valid. It is an
aleatory contract supported by a lawful consideration - the mutual
agreement of the joint depositors permitting either of them to
withdraw the whole deposit of one of them.
VITUG vs. CA
GR no. 82027, March 29, 1990
The conveyance in question (Romarico Vitug sell certain shares of
stock and belonging to the estate Dolores Vitug) is not of mortis
causa which should be embodied in a will. In this case the monies
subject of savings account were in the nature of conjugal funds,
having been acquired during the existence of the marital relations.
Neither is the survivorship agreement a donation inter vivos
because it was to take effect after the death of one party. It is not a
donation between the spouses because it involved no conveyance
of a spouse’s own properties to the other. In the case at bar, when
the Sps. Vitug opened the savings account, they merely put what
rightfully belong to them in a money-making venture. They did not
dispose of it in favor of the other, would have been sanctionable as
a prohibited donation. And since the funds were conjugal, it cannot
be said that one spouse could have pressured the other in placing
6 WILLS AND SUCCESSION
his or her deposits in the money pool.
The validity of the contract seems debatable by reason of its
“survivor-take-all” feature, but in reality, that contract imposed a
mere obligation with a terms, the term being death. Such
agreements are permitted under Art. 2010 of the Civil Code. Hence,
Survivorship agreements are valid and binding, not only the parties
thereto, but also against their respective successors, provided that
the operation of such agreement is not violative of the law.
A person may lawfully enter into a survivorship agreement with his
or her spouse, or with any unrelated person, with respect to any of
his or her separate property, or any conjugal or community
property. If upon the death of such person he or she should be
survived by compulsory heirs, the latter cannot assail the validity of
such survivorship agreement except insofar as it prejudiced their
legitime.
EXAMPLES OF THE VIOLATIVE EFFECTS OF A
SURVIVORSHIP AGREEMENT:
1. When used to conceal an inofficious donation;
2. When used to transfer property in fraud of creditors;
or
3. When used to defeat the legitime of compulsory
heirs.
TIME OF DEATH OF THE DECEDENT:
- The rights to the succession are transmitted from the
moment of the death of the decedent. (Art. 777, NCC)
- The time of death of the decedent is a critical
element of succession. It is the precise time on which
the following are determined:
1. The law applicable to the substantive validity
of his will;
2. The composition of the decedent’s assets
and their valuation, the outstanding liabilities
of the decedent and their payment;
3. The compulsory heirs who are to succeed
the decedent and their capacity to succeed;
4. Determination of issues relating to
preterition;
5. The testamentary capacity of the testator;
and
6. The timeliness of acceptance or repudiation
of the inheritance and the effects thereof.
CONSEQUENCES OF ART. 777, NCC:
1. The death of the decedent is the defining moment
when the heir acquire a definite right to the
inheritance, whether such right is pure or contingent.
- From the moment of the death of the decedent,
the heirs become the absolute owners of his
property, subject to the rights and obligations of
the decedent, and they cannot be deprived of
their rights thereto except by the methods
provided for by law. The moment of death is the
determining factor when the heirs acquire a
definite right to the inheritance whether such
right be pure or contingent. The right of the heirs
to the property of the deceased vests in them
even before judicial declaration of their being
heirs in the testate or intestate proceedings.
When Fortunata Barcena, therefore, died her
claim or right to the parcels of land in litigation in
Civil Case No. 856, was not extinguished by her
death but was transmitted to her heirs upon her
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death. Her heirs have thus acquired interest in
the properties in litigation and became parties in
interest in the case. There is, therefore, no
reason for the respondent Court not to allow
their substitution as parties in interest for the
deceased plaintiff. (Bonilla vs. Barcena, GR no.
L-41715, June 18, 1976)
2. The right of the heirs to specific distributive shares of
the inheritance does not become finally determinable
until all debts of the estate are paid. The distribution
of the estate is subject to the existence of a residual
estate after payment of the decedent’s debts
(Salvador vs. Sta. Maria, GR no. L-25952, June 30,
1967)
3. The rights to succession are automatically
transmitted to the heirs from the decedent. While a
judicial settlement of the estate is a deceased
person, the formal declaration or recognition of such
successional rights needs confirmation, the court is
duty-bound to protect these rights from
encroachments made or attempted prior to such
judicial declarations. If the administrator or executor
fails or refuses to act to protect the rights of the heirs,
the latter(heirs) may take action in place of such
administrator or executor. (Ramirez vs. Baltazar, GR
no. L-25049, August 30, 1968)
- In the case of Ramirez vs. Baltazar, The
administrator is being charged to have been in
collusion and connivance with the mortgagees of
a property of the deceased, allowing its
foreclosure without notifying the heirs, to the
prejudice of the latter. Since the ground for the
present action to annul the aforesaid foreclosure
proceedings is the fraud resulting from such
insidious machinations and collusion in which
the administrator has allegedly participated, it
would be far-fetched to expect the said
administrator himself to file the action on behalf
of the estate. And who else but the heirs, who
have an interest to assert and to protect, would
bring the action? Inevitably, this case should fall
under the exception, rather than the general rule
that pending proceedings for the settlement of
the estate, the heirs have no right to commence
an action arising out of the rights belonging to
the deceased.
4. Generally, the rights to the succession are
transmitted from the moment of the decedent’s
death. However, the recognition of ownership of the
inheritance by reason of succession is not, in certain
cases, self-executing.
- Example: In the transfer of ownership of shares
of stock of a corporation, upon the death of a
shareholder, the heirs do not automatically
become stockholders of the corporation and
acquire the rights and privileges of the deceased
as a former shareholder. The shares of stocks
must first be transferred to the heirs and such
transfer must be recorded in the stock and
transfer books of the corporation.
- Sec. 63 (now Sec. 62) of the Corporation
Code provides that no transfer of shares
shall be valid except as between the
parties until the transfer is recorded in
the books of the corporation.
5. There is no legal bar to a successor (with requisite
contracting capacity) to dispose his hereditary share
immediately after such death of the causante or
predecessor in interest, even if the actual extent of
such share is not determined until the subsequent
liquidation of the estate, because the hereditary share
of an heir in the decedent’s estate is transmitted
immediately from the moment of the death of the
predecessor in interest.
6. An heir can sell his right, interest, or participation in
the property under administration (See Art. 533,
NCC). However, an heir can only alienate such
portion of the estate that may ultimately be allotted to
him in the division of the estate by the probate or
intestate court after final adjudication, that s, after all
debts shall have been paid or the devisees or
legatees shall have been given their shares. (This
means that an heir ,ay only sell his ideal or undivided
share in the estate, not any specific property therein).
7. Court approval is required in any disposition of the
decedent’s estate but it cannot adversely affect the
substantive rights of heirs to dispose of their own pro
indiviso shares in the co-heirship or co-ownership. In
other words, they can sell their rights, interest, or
participation in the property under administration. A
stipulation requiring court approval does not affect
the validity and the effectivity of the sale as regards
the selling heirs.
8. While an estate remains undivided, the co-owners or
heirs, each have full ownership of their respective
undivided shares and may therefore alienate, assign
or mortgage them. However, the co-owner has no
right to sell or alienate a specific part of the owned in
common.
- When a co-owner sold a specified portion,
the sale is valid but only with the aliquot
share of the selling co-owner and the sale is
subject to the results of the partition.
TYPES OF SUCCESSION:
Testamentary When a testator dies with a valid and
operative will. A will must be both extrinsically
Succession
and intrinsically valid.
(Art. 779, NCC)
[Note: Testacy is preferred over intestacy]
Intestate When a person dies without a valid and
Succession operative will. In intestacy, the distribution of
the estate of the decedent is controlled by
(Art. 778, NCC)
law.
Mixed The distribution of the hereditary estate is
Succession partly controlled by the testator, and
partly,controlled by law. It occurs in the
(Art. 800, NCC)
following cases:
1. If the testator executed a valid will but
failed to distribute the entirety his estate
and he made no provision as to how the
residual property shall be disposed,
there being no right of accretion among
the instituted heirs;
2. Where the sole provision of the will
relates to the appointment of an
administrator, or the payment of debts,
or the acknowledgment of an illegitimate
child, or any other provision that are not
considered as testamentary/property
dispositions; and
WILLS AND SUCCESSION 7
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3. If any of the beneficiaries (whether
instituted heirs, legatees or devisees) is
incapable to accept or enter into the
inheritance, there being no substitution,
representation or accretion.
CHAPTER 2
TESTAMENTARY SUCCESSION
SECTION 1 - WILLS
WILLS IN GENERAL
DEFINITION OF A WILL:
- A will is an act whereby a person is permitted, with
the formalities prescribed by law, to control to a
certain degree the disposition of his estate, to take
effect after his death. (Art. 783, NCC)
CHARACTERISTICS OF A WILL:
a. Making of a will is conferred by law - The right to
dispose of property by will is not a natural but
statutory, and statutory requirements should be
satisfied. (Gil vs. Murciano, 88 Phil. 260 (1951))
b. Making of a will is a unilateral act - Unlike
contracts, the consent or participation of the
beneficiaries are limited to the acceptance or
repudiation of the inheritance at the appropriate time
following the death of the testator. (See Art. 1043,
NCC)
c. Making a will is a formal act - The testator is
required to comply with the form prescribed in Arts.
804-806, NCC, in case of a notarial will; and Art. 810,
NCC, in case of a holographic will.
NOTE: There are certain defects of form that do not
compromise the authenticity of the will. In these
exceptional cases, the SC allowed probate of the
otherwise formally imperfect will.
d. Making of a will is a personal act - The making of a
will cannot be left in whole or in part to the discretion
of third person, or accomplished through the
instrumentality of an agent or attorney. (Art. 784,
NCC)
NOTE: There is a distinction between: (1) The mechanical
act of drafting and finalizing the will - this function is best
left to a competent lawyer; and (2) Exercise of judgement
or discretion in determining the testamentary disposition
that will be written in the Will - this function is non-
delegable.
e. Effective Mortis Causa - The will becomes effective
only after the testator's death, subject to the
condition that it is admitted to probate. (Arts. 783 and
838, NCC). An exception to this is under Art. 50 of
the Family Code.
f. Making of a will is essentially ambulatory - A
testator may revoke his will at any time before his
death, and any waiver or restriction of this right is
void. (Art. 828, NCC). As a rule, a will can never be
8 WILLS AND SUCCESSION
treated as a final and irrevocable disposition of the
testator’s estate until he dies. However, in order to
revoke a will, the testator must possess testamentary
capacity at the time of revocation.
g. Making of a will must be a free act - See Art. 893,
NCC. A vice of consent impairs the efficacy of the
testator’s consent to the execution of the will.
LIMITATIONS ON THE POWER TO CONTROL:
1. Legitime (Art. 886, NCC);
2. Reserva Troncal (Art. 891, NCC);
3. Mistress (Nepomuceno vs. CA, 139 SCRA 206);
4. Fideicommissary Substitution (Art. 863, NCC);
5. Condition not to Marry (Art. 874, NCC);
6. Dispocicion Captatoria (Art. 875, NCC);
7. Dispositions in favor of Incapacitated Persons (Art.
1031, NCC; See also Arts. 1027-1028, NCC)
NECESSITY OF CONVEYANCE OF PROPERTY:
- An essential element of a will is the disposition of
property over which the testator is given some
degree of control. If a document contains no property
disposition, the testator controls nothing; the
document is not a will.
- Probate is an indispensable requirement in order that
a will may pass property.
- If the only disposition of a will:
(1) relates to the recognition of an illegitimate
child - it is not a will because the document
does not dispose of property. The document
need not be probated.
(2) relates to the disinheritance of a compulsory
heir - It is a will because the exclusion of a
compulsory heir from the inheritance results
in an increase in the shares of the others. A
valid disinheritance is an indirect
adjudication of property to one or some
qualified heirs, for which reason probate is
necessary.
SEANGIO vs. REYES
GR no. 140371-72, November 27, 2006
Petitioners argued the holographic will does not contain any
institution of an heir but simply contains a disinheritance of a
compulsory heir. Thus there is no preterition in the decedent’s will
and the holographic will on its face is not intrinsically void.
According to the SC, the testator all his compulsory heirs, with the
sole exception of Alfredo, to inherit his estate. None of the
compulsory heirs in the direct line of Segundo were preterited in
the holographic will since there was no institution of an heir. The
document (entitled “Kasulatan ng Pag-aalis ng Mana”)
unmistakably showed Segundo’s intention of excluding his eldest
son, Alfredo, as an heir to his estate for the reasons that he cited
therein.
For disinheritance to be valid, Art. 916, NCC, requires that the
same must be effected through a will wherein the legal cause
therefore shall be specified. The SC believes that the incidents,
taken a s whole, can be considered a form of maltreatment of
Segundo by his son, Alfredo, and that the matter presents a
sufficient cause for the disinheritance of a child or descendant
under Article 919 of the Civil Code.
Moreover, An intent to dispose mortis causa can be clearly
deduced from the terms of the instrument, and while it does not
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make an affirmative disposition of the latter’s property, the
disinheritance of Alfredo, nonetheless, is an act of disposition in
itself. In other words, the disinheritance results in the disposition of
the property of the testator Segundo in favor of those who would
succeed in the absence of Alfredo.
Atty Sebastian’s Observation:
- In this case, the SC set aside the Probate Court’s order to
dismiss Segundo’s Will for probate and remanded it back to
the probate court with instruction to hear the proceeding.
However, the SC already declared the formal validity of the
said will.
- What else is left for the probate court to do? It should be
noted that the capacity of the testator is not challenged. At
best, the only remaining function of the probate curt court in
this instance is to liquidate the estate and to distribute the net
proceeds thereof to the intestate heirs of Segundo, to the
exclusion of Alfredo.
NON-DELEGABILITY OF TESTAMENTARY DISCRETION:
- The making of a will is a strictly personal act; it
cannot be left in whole or in part to the discretion of a
third person, or accomplished through the
instrumentality of an agent or attorney. (Art. 784,
NCC)
- The testamentary dispositions in a Will must
be left entirely to the discretion of the
testator. Only a testator can determine the
proper objects of his bounty.
- However, the mechanical act of preparing a notarial
will is not covered by Art. 784, NCC because this
matter is generally delegated to an attorney.
- A practical test may be applied in order to determine
whether or not a disposition is testamentary in
character. If so, the same is reserved exclusively for
the testator. If a disposition answers the questions;
(1)”Who will inherit?” and (2)”What or how much wil
be inherited”, the disposition is testamentary in
character. These functions cannot be delegated to an
agent or attorney.
Article 785. The duration or efficacy of the designation of heirs,
devisees or legatees, or the determination of the portions which
they are to take, when referred to by name, cannot be left to the
discretion of a third person.
Article 786. The testator may entrust to a third person the
distribution of specific property or sums of money that he may leave
in general to specified classes or causes, and also the designation
of the persons, institutions or establishments to which such
property or sums are to be given or applied.
- Art. 785 emphasizes that the making of a will is
strictly a personal act of the testator. If the heirs,
legatees or devisees are identified in the will by
name, the testator is prohibited from delegating to a
third person the determination of:
1. The duration of the designation of such
heirs, legatees, or devisees;
2. The efficacy of their designation; and
3. The portions or property to be given to such
heirs, legatees, or devisees.
Exercise of testamentary Non-delegable to third
discretion person
Implementation of a Delegable to third person
testamentary disposition
VALID TESTAMENTARY DISPOSITION TO A CLASS
INSTITUTION:
- The prohibited delegation in Art. 785 does not apply
when the testator makes a class institution (or a
cause) which is permitted by Art. 786.
- Example of Class Institution: Art. 1030, NCC
(Testamentary provision in favor of the poor)
- When a testator entrusts to a third person the
identification of the beneficiaries of the bequest made
to a class, all that the testator delegates to the third
person is the mechanical act of distributing that
which the testator had set aside for such class.
PROHIBITED DELEGATION:
- A testator is absolutely prohibited from delegating to
a third person the discretion to determine whether or
not a testamentary disposition would be operative.
(Art. 787, NCC)
- By entrusting to a third person the determination as
to whether or not a testamentary disposition will be
operative, a testator virtually gives the third person
the power to counterma his testamentary directive.
DEFECTIVE TESTAMENTARY DISPOSITIONS (Art. 789,
NCC): A testamentary disposition my suffer from any of the
following defects:
1. Imperfect description of a property to be given to a
particular recipient;
2. Imperfect description of a person who is to receive
the property; and
3. Uncertainty on the face of the will on the application
of any of its provisions.
CLASSIFICATION OF DEFECTS:
a. Patent Defect - defects that are apparent from a reading
of the will. [Example: “To some of my brothers, I
bequeath one-half of my estate.” → The reader cannot
determine who among the surviving brothers are entitled
to receive the inheritance.]
b. Latent Defect - defects that are non-apparent from a
reading of the will but the ambiguity appears only when
the disposition is examined in light extrinsic facts and
circumstances. [Example: Testator gave a legacy of
P100,000 to his friend, Joe. The disposition is apparently
clear but if following the death of the testator, two of his
friends both name is Joe, the ambiguity of the
testamentary disposition is exposed.]
REMEDIAL MEASURES IN CASE OF IMPERFECTIONS
AND AMBIGUITIES IN THE WILL:
1. Examine the will in its entirety and from the other
provisions thereof, make an attempt to correct the
mistake, fill the omission, or clarify the ambiguity of the
relevant testamentary disposition, if it is possible;
Parol Evidence Rule:
Evidence of written agreements — When the terms of an
agreement have been reduced to writing, it is considered as
containing all the terms agreed upon and there can be,
between the parties and their successors in interest, no
WILLS AND SUCCESSION 9
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evidence of such terms other than the contents of the written
agreement.
However, a party may present evidence to modify, explain or
add to the terms of written agreement if he puts in issue in his
pleading:
(a) An intrinsic ambiguity, mistake or imperfection in the
written agreement;
(b) The failure of the written agreement to express the
true intent and agreement of the parties thereto;
(c) The validity of the written agreement; or
(d) The existence of other terms agreed to by the
parties or their successors in interest after the
execution of the written agreement.
The term "agreement" includes wills. (Sec. 10, Rule 130, 2019
Amended Rules on Evidence (AM no.19-08-5-SC))
2. If the will does not provide the relevant information, use
extrinsic evidence, excluding the oral declaration of the
testator, in order to ascertain his true intention;
Dead Man’s Statute:
Statement of decedent or person of unsound mind – In an
action against an executor or administrator or other
representative of a deceased person, or against a person of
unsound mind, upon a claim or demand against the estate of
such deceased person or against such person of unsound
mind, where a party or assignor of a party or a person in
whose behalf a case is prosecuted testifi es on a matter of
fact occurring before the death of the deceased person or
before the person became of unsound mind, any statement of
the deceased or the person of unsound mind, may be
received in evidence if the statement was made upon the
personal knowledge of the deceased or the person of
unsound mind at a time when the matter had been recently
perceived by him or her and while his or her recollection was
clear. Such statement, however, is inadmissible if made under
circumstances indicating its lack of trustworthiness. (Sec. 39,
Rule 130, 2019 Amended Rules on Evidence, AM no. 19-08-
15-SC))
CONSTRUCTIONS OR INTERPRETATION OF
TESTAMENTARY DISPOSITION:
Article 788. If a testamentary disposition admits of different
interpretations, in case of doubt, that interpretation by which the
disposition is to be operative shall be preferred.
Article 789. When there is an imperfect description, or when no
person or property exactly answers the description, mistakes and
omissions must be corrected, if the error appears from the context
of the will or from extrinsic evidence, excluding the oral
declarations of the testator as to his intention; and when an
uncertainty arises upon the face of the will, as to the application of
any of its provisions, the testator's intention is to be ascertained
from the words of the will, taking into consideration the
circumstances under which it was made, excluding such oral
declarations.
Article 790. The words of a will are to be taken in their ordinary and
grammatical sense, unless a clear intention to use them in another
sense can be gathered, and that other can be ascertained
Technical words in a will are to be taken in their technical sense,
unless the context clearly indicates a contrary intention, or unless it
satisfactorily appears that the will was drawn solely by the testator,
and that he was unacquainted with such technical sense.
Article 791. The words of a will are to receive an interpretation
10 WILLS AND SUCCESSION
which will give to every expression some effect, rather than one
which will render any of the expressions inoperative; and of two
modes of interpreting a will, that is to be preferred which will
prevent intestacy.
Article 792. The invalidity of one of several dispositions contained
in a will does not result in the invalidity of the other dispositions,
unless it is to be presumed that the testator would not have made
such other dispositions if the first invalid disposition had not been
made.
PROPERTY ACQUIRED AFTER MAKING OF A WILL:
- Property acquired after the making of a will shall only
pass thereby, as if the testator had possessed it at
the time of making the will, should it expressly appear
by the will that such was his intention. (Art. 793, NCC)
- Purpose: To permit a testator to dispose of the
property which he may acquire after the making of a
will without having to execute a new will or to amend
the existing will, as though the newly acquired
property were owned by him at the time he wrote the
will. In other words, Art. 793 permits the testator to
dispose future property.
Future Property Refers to the accruals to the inheritance
under Art. 781, after the death of the testator - that is,
after succession has opened. The accruals
NCC
belong to the heirs by right of accession,
although such accruals are liable for the
payment of the testator’s debts.
Future Property Refers to assets acquired by the testator
after the execution of the will.
under Art. 793,
Consequently, these assets form part of
NCC
his estate.
General Rule: A will can only distribute the properties owned
by the testator at the time of the execution of the will. This is
because a testator in general would not dispose property that
does not belong to him.
Exception: Art. 793, Testator can dispose future property
(property acquired after the execution of the will) should he
indicate his intention to do so.
Example: A testator who makes a partition of his estate by will
is likely to omit some assets. And certainly, he could not have
included in the partition the assets which he might acquire in
the future. But the testator can prevent partial intestacy by
making a disposition pertaining to the omitted assets and
future property. Thus “I hereby bequeath all other property
which I have not otherwise disposed in this will, as well as all
property which I may in the future acquire by any title, to X
and Y in equal shares.”
CASES WHERE FUTURE PROPERTY PASSED TO THE
HEIRS EVEN IF NO PROVISION THEREOF IS EMBODIED
IN THE WILL:
1. A republished will relates to properties of the testator as
of the time of republication. (Art. 836, NCC). Thus,
properties acquired after the initial execution of the will
may pass to the instituted heirs following a republication
thereof.
2. A testamentary disposition involving a property which the
testator erroneously thought to be his is void. However, if
the testator should subsequently acquire ownership
 WILLS AND SUCCESSION
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thereof by any title, the testamentary disposition shall be
given effect. (Art. 930, NCC)
CONVEYANCE OF INTEREST:
- Every legacy or devise is presumed to convey to the
beneficiary the entirety of the testator’s interest in the
specific property subject matter thereof. (Art. 794,
NCC)
- If the testator in a valid will devised a parcel of land to
a devisee, the latter will acquire all of the testator’s
interest in that parcel of land. If the testator's interest
therein is limited to an aliquot part thereof, the
devisee will acquire the land, but only to the extent of
the testator;s interest therein.
Grant of Less Generally, a testamentary disposition upon the
than Full beneficiary the totality of the testator’s interest
in the property subject matter thereof, a testator
Interest
may confer less interest.
Ex: A testator who owns a parcel of land may
grant to a devisee a ½ pro indiviso interest
therein. Also, a testator who owns a car may
bequeath to two person jointly the ownership
thereof so that each legatee acquires ½ interest
in the car.
Grant of Testator is permitted to convey to a beneficiary
an interest in property that exceeds his rights
Greater
thereto. (Art. 929,NCC). Thus, if the testator
Interest
owns only a part of, or a part interest in the
thing bequeathed, the legacy or devise shall be
understood to be limited to such part or
interest, unless the testator declares that he
gives the thing in its entirety. In which case, the
explicit grant of greater interest in the thing may
be construed as the testator’s directive that the
third-party interest in the thing be acquired so
that it may be given in its entirety to the
designated beneficiary. (Art. 931, CC)
RULES ON THE FORMAL VALIDITY OF A WILL (Art. 795,
NCC):
1. As to time - the formal validity of a will is governed by the
law in effect at the time of its execution. Therefore, a will
that was executed in 1948 in accordance with form
prescribed by the Code of Civil Procedure retained its
validity even if the said will was submitted in 1951 (the
time when the New Civil Code became effective), and
even if the New Civil Code has changed the rules on the
formal validity of a will.
2. As to place - the testator can choose the law that will
govern the formal validity of his will. Therefore, A filipino
testator living (permanently or temporarily) abroad is not
required to Philippine formalities.
CONFLICT RULES AS TO FORMAL REQUIREMENTS:
Choices of Law as to Place of Execution:
a. Philippine law;
Filipino
b. The forms and solemnities of contracts,
Testator
wills and other public instruments shall be
governed by the law of the country in
which they are executed. (Art. 17, NCC)
c. When a Filipino is in a foreign country, he
is authorized to make a will in any of the
forms established by the law of the country
in which he may be. Such will may be
probated in the Philippines. (Art. 815, NCC)
Resident & 1. The forms and solemnities of contracts,
Non-Resident will and other public instruments shall be
Alien Testator governed by the law of the country in
which they are executed. (Art. 17, NCC)
2. The will of an alien who is in abroad
produces effect in the Philippines if made
with the formalities prescribed by the law
of the place in which he resides, or
according to the formalities observed in his
country, or in conformity with those which
this Code prescribes. (Art. 816, NCC)
CONFLICT RULES AS TO SUBSTANTIVE REQUIREMENTS:
Choice of Law as to Substantive Validity:
As to Time Law in force at the time of death of the
testator. This is the interference from Art. 777,
which states that the rights to succession are
transmitted from the moment of the death of
the decedent.
As to Place Testate and intestate succession, both with
respect to the order of succession, the amount
of successional rights, and the intrinsic validity
of testamentary dispositions, shall be
regulated by the national law of the person
whose succession is under consideration,
whatever may be the nature of the property
and regardless of the country wherein said
property may be found. (Art. 16, NCC)
BELLIS vs. BELLIS
GR no. L-23678, June 6, 1967
FACTS:
Amos Bellis, an American citizen and resident of Texas, executed a
will in the Philippines, in which he disposed of his estate to his
relatives including his first wife, his 3 illegitimate children, and his
surviving children from his first and second marriage. Upon his
death, his will was admitted to probate in Manila. The executor
complied with the provisions of the will and filed a project of
partition. Plaintiffs, 2 of the 3 illegitimate children, opposed the
partition on the ground that they were deprived of their legitimes as
illegitimate children.
ISSUE:
Which law should apply—Texas law or Philippine law?
RULING:
Texas law should apply. Art 16 par 2 and Art 1039 NCC state that
the national law of the decedent, in intestate or testamentary
successions, shall govern with regard to the four items: (a) order of
succession; (b) the amount of successional rights; (c) the intrinsic
validity of the provisions of the will; and (d) the capacity to succeed.
The parties admit that the decedent was a resident of Texas and
under the laws of Texas there are no forced heirs or legitimes.
Accordingly, the intrinsic validity of the provision of the will and the
amount of successional rights are to be determined under Texas
law and not the Philippine law.
TESTAMENTARY CAPACITY AND INTENT
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Article 796. All persons who are not expressly prohibited by law
may make a will.
Article 797. Persons of either sex under eighteen years of age
cannot make a will.
Article 798. In order to make a will it is essential that the testator be
of sound mind at the time of its execution.
MEANING OF TESTAMENTARY CAPACITY:
- Testamentary capacity is the ability and power to
make a will; Fitness to make a will.
- This must be present at the time of the execution of
the will.
ELEMENTS OF TESTAMENTARY CAPACITY:
1. The testator is a natural person;
2. The testator is at least 18 years of age at the time of
the execution of the will;
3. The testator must be of sound mind at the time of
execution of the will;
4. The testator is not expressly prohibited by law from
making a will.
CAPACITY TO ACT:
- Capacity to act is the power of a person to perform
an act with legal effect. It is conferred by law to a
person upon reaching the age of majority, unless
there are circumstances which would otherwise
restrict such capacity or would modify or limit the
same.
Article 38. Minority, insanity or imbecility, the state of
being a deaf-mute, prodigality and civil interdiction are
mere restrictions on capacity to act, and do not exempt
the incapacitated person from certain obligations, as
when the latter arise from his acts or from property
relations, such as easements.
Article 39. The following circumstances, among others,
modify or limit capacity to act: age, insanity, imbecility,
the state of being a deaf-mute, penalty, prodigality, family
relations, alienage, absence, insolvency and trusteeship.
The consequences of these circumstances are governed
in this Code, other codes, the Rules of Court, and in
special laws. Capacity to act is not limited on account of
religious belief or political opinion.
A married woman, twenty-one years of age or over, is
qualified for all acts of civil life, except in cases specified
by law.
- NOTE: Capacity to act is not an element of
testamentary capacity. For instance, deaf-mutism,
prodigality and civil interdiction will not curtail a
person’s power to execute a valid will. However,
minority, insanity and imbecility are circumstances
that disqualify a person from executing one. (Art. 798,
NCC)
Article 801. Supervening incapacity does not invalidate an effective
will, nor is the will of an incapable validated by the supervening of
capacity. (NCC)
AGE REQUIREMENT:
12 WILLS AND SUCCESSION
● The age requirement would tend to ensure that the
testator possess sufficient discretion, as well as emotional
and intellectual maturity that would enable him to exercise
the testamentary power intelligently. The law fixes the age
of majority at 18. (Art. 234, FC, as amended by RA 6809)
● A testator must be at least 18 years of age at the time of
the execution of the will. A will executed by the testator
on the eve of his 18th birthday is void.
OF SOUND MIND:
Article 799. To be of sound mind, it is not necessary that the
testator be in full possession of all his reasoning faculties, or that his
mind be wholly unbroken, unimpaired, or unshattered by disease,
injury or other cause.
It shall be sufficient if the testator was able at the time of making the
will to know the nature of the estate to be disposed of, the proper
objects of his bounty, and the character of the testamentary act.
(NCC)
GUIDELINES TO DETERMINE SOUND-MINDEDNESS OF
THE TESTATOR AT THE TIME OF THE EXECUTION OF HIS
WILL:
1. Testator should know the nature of the estate to be
disposed;
- This refers to the testator’s knowledge of the
composition of his properties, transferable rights, and
obligations.
2. Testator should know the proper objects of his bounty;
- This refers to the testator’s appreciation of his
personal relationships, particularly with respect to
those persons who have a legitimate expectation to
receive a part of his inheritance, or the persons to
whom he is, under ordinary circumstances, expected
to give portions of his estate.
3. Testator is conscious of the nature of the testamentary
act;
- This refers to the testator’s total awareness that by
making a will, he realizes that he makes provisions
for the distribution of his estate, and that such
distribution shall take effect upon his death.
NOTE: The parameters set forth in Art. 799 are not meant to
calibrate a person’s state of mind at the time of the execution
of the will. As the state of a person’s mind is a medical rather
than legal issue, Art. 799 should not be construed as the
measurement of a person’s sanity. In cases where the
testamentary capacity of a person is challenged on the ground
of unsound mind, medical evidence must be presented. The
case below is instructive.
ALSUA-BETTS vs. CA
GR no. L-46430-31, July 30, 1979
Between the highest degree of soundness of mind and memory
which unquestionably carries with it full testamentary capacity, and
that degrees of mental aberration generally known as insanity or
Idiocy, there are numberless degrees of mental capacity or
incapacity and while on one hand it has been held that mere
weakness of mind, or partial imbecility from disease of body, or
from age, will not render a person incapable of making a will; a
weak or feebleminded person may make a valid will, provided he
has understanding and memory sufficient to enable him to know
what he is about to do and how or to whom he is disposing of his
property. To constitute a sound and disposing mind, it is not
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necessary that the mind be unbroken or unimpaired or unshattered
by disease or otherwise. It has been held that testamentary
incapacity does not necessarily require that a person shall actually
be insane or of unsound mind.
EFFECT OF REPEATED CONFINEMENT IN A MENTAL
INSTITUTION ON THE TESTAMENTARY CAPACITY OF A
TESTATOR:
De Guzman vs. From January 18, 1929 up to March 12,
Intestate Estate 1941,Francisco Benitez was confined at
the National Mental Hospital for 5 periods.
Benitez
He executed his last will and testament on
[GR no. 61167-68 August 18, 1945. SC adopted the decision
January 20, 1989]
of the RTC which found that Francisco
Benitez does not possess a sound and
disposing mind at the time executed his
will.
Baltazar vs. Laxa The state of being forgetful or “magulyan”
[GR no. 174489 does not necessarily make a person
mentally unsound so as to render him unfit
April 11, 2012]
to execute a will. A testator is presumed to
be of sound mind at the time of the
execution of the Will and the burden to
prove otherwise lies on the oppositor.
PRESUMPTION OF SANITY:
Article 800. The law presumes that every person is of sound mind,
in the absence of proof to the contrary.
The burden of proof that the testator was not of sound mind at the
time of making his dispositions is on the person who opposes the
probate of the will; but if the testator, one month, or less, before
making his will was publicly known to be insane, the person who
maintains the validity of the will must prove that the testator made it
during a lucid interval. (NCC)
EXCEPTION TO THE PRESUMPTION OF SANITY:
1. One month or less, before the execution of the will,
the testator was publicly known to be insane;
2. Prior judicial declaration of the testator’s insanity,
unless such declaration has been set aside prior to
the execution of the will; and
3. Prior judicial appointment of a guardian over the
person and.or property of a person by reason of
having been found to be insane.
NOTE: The party who maintains the validity of the will under the
above circumstances, has the burden of proving that at the time
that the will was executed, the testator was either (1) In a lucid
interval; or (2) Has regained sanity.
MARRIED WOMAN:
● A married woman may make a will without the consent of
her husband, and without the authority of the court.
(Article 802, NCC)
● A married woman may dispose by will of all her separate
property as well as her share of the conjugal partnership
or absolute community property. (Art. 803,NCC)
FORMS OF WILLS
Purpose of Formalities – to close the door on bad faith and
fraud, to avoid substitution of wills, and to guaranty their truth
and authenticity; (Lee vs. Tambago). In general, formalities are
deterrent to fraud.
Form of Notarial Will
1. In writing
● Any medium, handwritten, printed, in chinese or
arabic characters,
● Does not require the testator to be literate (note
different rule in holographic will)
● Purposes: (i) to prove compliance with the prescribed
formalities; and (ii) to serve as proof of its contents,
thereby avoiding reliance on memory. Probate is,
therefore, conducted (i) for a visual inspection of the
written document in order to determine compliance
with formalities; and (ii) to determine substantive
validity of dispositions.
2. Language known to testator
● Objective is to ensure testator knows the contents of
the will, without necessity of third-party assistance.
● Testator’s knowledge of the language used in the will
is presumed (Abangan vs. Abangan); but if contested,
it must be proved.
● Knowledge of English language is not presumed if
the Filipino testatrix is apparently illiterate (Suroza vs.
Honrado).
● Testator’s knowledge of the Spanish language may
be established by circumstantial evidence (Reyes vs.
vda. de Vidal).
● The testator is presumed to know the language
spoken in the locality where he resides (Lopez vs.
Liboro).
3. Signed by the testator at the end thereof
● “End” means the end of the last testamentary
disposition. The objective of the law is to prevent
unauthorized insertions after the last testamentary
disposition.
● A breach of this requirement results in the nullity of
the will; additional dispositions after the testator’s
end-signature, even if handwritten and authenticated
by the testator, nullifies the will because of the
danger it poses. If the testator wants to add
dispositions, the solution is for the testator to execute
a codicil. (Note a different rule in holographic wills
(particularly 812) which permits the testator to add
testamentary dispositions.)
● However, if the insertion or additional testamentary
disposition is unauthorized, i.e., without the testator’s
knowledge or consent, and proven to be so, the will
should not be declared void because it will unduly
penalize the testator for the mischief of another.
● Or, if the insertion after the testator’s end-signature is
not a testamentary disposition, the same should not
result in the invalidation of the will.
● The requisite end-signature does not apply to the
witnesses who may affix their subscribing signature
on the left margin (as prescribed in 805), or,
anywhere else according to the ruling in Taboada vs.
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Rosal, because the purpose of the subscribing
signatures of the witnesses is merely identify the
authentic pages of the will.
● The customary signature of the testator is sufficient;
the law did not specifically require the testator’s full
signature. The customary signature represents the
testator’s consent to the execution of the will.
● The testator’s thumb mark is acceptable, especially if
the testator is debilitated and unable to manually sign
(Lopez vs. Liboro), or if the testator is illiterate.
● But a “cross” (or any other mark) is not equivalent to
a customary signature, unless it is so proven (Garcia
vs. Lacuesta). It results in a void will.
● It is doubtful if a facsimile signature or an electronic
signature is sufficient.
4. Testator’s name may be written by a third person,
provided it is under his express direction and in his
presence, as well as in the presence of the witnesses.
● The third person should manually write the testator’s
name, not his own name. If the third person manually
wrote his name, the will is void (Balonan vs.
Abellana). The manual signature of the third person is
irrelevant because it is not his will. The authority
conferred to the third person is to write the testator’s
name – not his own name.
● This alternate execution permits an illiterate testator
to execute a will, although he may also affix his
thumb mark.
● If the two conditions are not met (signed by the
express order of the testator, and in the presence of
the testator and the witnesses), the will is void. The
authority to affix the testator’s name is a form of
agency; no directive expressly given, no authority.
The writing of the testator’s name in the presence of
the witnesses will enable the witnesses to testify on
this particular matter during the probate of the will.
See the prescribed contents of the attestation clause.
5. Attested and subscribed by three credible
witnesses
● Attesting signatures refer to the signature of the
witnesses at the bottom of the attestation clause,
thereby confirming the matters therein written.
● The subscribing signatures of the witnesses refer to
their marginal signatures which are intended to
identify the authentic pages of the will.
● The failure of the witnesses, or anyone of them, to
affix their marginal signatures generally results in a
void will. But see the exception to this rule in Icasiano
vs. Icasiano.
● “Credible” means believable. Credibility of the
witnesses is required so that their testimonies during
probate may be given probative value; hence, the
disqualification of witnesses who have been
convicted or perjury, falsification of documents and
false testimony (821[2]).
● More than being credible, a witness must also be
competent; i.e., possessing the qualifications in 820.
6. Attesting and subscribing must be done in the
presence of the testator and of the witnesses
● In short, each of the testator and the witnesses must
sign in the present of each other.
● Breach of this requirement renders the will void.
14 WILLS AND SUCCESSION
● Objective is to have at least 3 witnesses who can
confirm the authenticity of the signature of each of
them.
● Test of presence is not actual seeing the signing, but
the possibility of seeing a person affix his signature
by just casting his eyes in the right direction (Nera vs.
Rimando).
● The subscribing signatures of the witnesses and the
testator need not be on the left margin (Taboada vs.
Rosal).
7. Pages correlatively numbered in letters placed at
the upper part of each page
● The objective of the law is to provide evidence of the
actual number of pages of the will; to facilitate page
count; to deter the insertion of a fraudulent page or
the suppression of an authentic page.
● A breach of this requirement generally renders the
will void.
● Numbering need not be in letters; may use roman or
arabic numerals.
● A two-page will need not be numbered on the first
page (Lopez vs. Liboro)
8.Must contain an attestation clause
● The attestation clause is an act of the witnesses, not
of the testator.
● It must be signed by all the witnesses; testator need
not sign the same.
● It is the confirmation by the witnesses of the truth of
the 3 statements made in the attestation clause,
namely:
o the number of pages of the will;
o the testator signed the will or caused another to
write his name by his express direction and in the
presence of the testator and the witnesses; and
o the testator (or the third person who wrote his
name) and the witnesses signed in the presence of
one another.
o Failure to state that the testator’s name was written
by a third person is a fatal defect (Garcia vs.
Lacuesta)
● In general, a defective attestation clause renders a
will void, subject to the substantial compliance rule in
809. Thus, a defect of the language or form of the
attestation clause may be ignored if it is proven that
the will was in fact executed in accordance with the
prescribed formalities, there being no bad faith,
forgery, fraud or undue influence and improper
pressure. The objective of the substantial compliance
rule is to avoid penalizing the testator for the non-
material errors committed by the witnesses. (See vda.
de Gil vs. vda. de Murciano, and Caneda vs. CA and
notice the reason for the difference in the conclusions
reached by the SC in these two similar cases.)
o Thus, in Taboada vs. Rosal, the failure of the AC to
state the number of pages was cured by a
statement of such number in the will itself, and in
the notarial acknowledgment.
o And in Samaniego-Celada vs. Abena, an erroneous
number of pages (3 instead of correct number
which was 2) was deemed inconsequential because
it was explained that the witnesses erroneously
believed that the AC was part of the will.
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o But in Lopez vs. Lopez, the AC stated there were 7
pages to the will, but the actual page count was 8.
The court disallowed the will.
● The AC does not need to state the number of
witnesses (Estate of Abada vs. Abaja).
● The witnesses must sign at the bottom of the AC; if
they signed on the left margin, the AC is void, and so
is the will (Cagro vs. Cagro).
● AC that is not signed by the witnesses renders the
will void (Azuela vs. CA).
● Witnesses are expected to testify during probate on
the matters set forth in the AC. Their credibility will be
subjected to test. But it is not required for the
proponent to prove the credibility of the witnesses; it
is for the probate court to appreciate credibility.
Thus, even in the case of conflicting testimonies of
the witnesses, the court may yet admit the will to
probate (vda. de Ramos vs. CA)
9. Acknowledged before a notary public by the
testator and the witnesses
● The notarial acknowledgment is a certification by the
notary public that the testator voluntarily and freely
executed the will, and the witnesses voluntarily and
freely signed the AC. See the definition of a notarial
acknowledgment.
● Acknowledgment before the notary public need not
happen immediately after the execution of the will.
● The notary public need not be present during the
execution of the will, except in the case of the will of
a blind or illiterate testator because of the mandatory
reading requirement (808).
● If the witnesses did not acknowledge the AC before
the notary public, the will is void (Garcia vs.
Gatchalian).
● The notary public must be duly commission in the
jurisdiction where he performed the notarial act,
otherwise the will is void (Guerrero vs. Bihis).
● The notary public may not be one of the witnesses to
the will (Cruz vs. Villasor).
Special Additional Formalities for a deaf, deaf-mute, and blind
testator – The additional requirements are in the nature
compensatory mechanism (added protection) to make up for
the handicap or disability of the testator.
Deaf or Deaf-Mute Testator
● If testator is deaf or deaf-mute, he is a PWD because
his ability to hear and/or to communicate his
thoughts is impaired. He is thus required to read the
will, if able to do so, in order to ensure that he
understands what he is about to sign. This is a
mandatory requirement that he must comply with
before he affixes his signature to the will. But note
that there is no assurance that the testator actually
read the will.
● If he is illiterate, he shall designate two persons who
shall read the will and who shall communicate to him
in some practicable manner the contents thereof.
● Testator is given the right to choose the persons who
can effectively communicate with him and whom he
trusts. Clearly, the law cannot determine who these
persons are.
Bind Testator
● An illiterate person is treated as a blind person
because he cannot read the will even if he wants to.
His situation is similar to a blind testator.
● Two separate readings are required: first by one of
the witnesses selected by the testator, and second,
by the notary public before whom the will shall be
acknowledged.
● This is the only instance the notary public has to be
present at the execution of the will.
● The testator’s inability to read printed materials, even
if distance vision is not impaired, is equivalent to
blindness and requires the mandatory two readings
(Garcia vs. Vasquez).
● But note the controversial ruling in Alvarado vs.
Gaviola, where the court allowed an alternate
procedure for the execution of the will of a blind
testator, under the principle of substantial
compliance.
Holographic Will
A holographic will achieves two basic purposes: (i) to keep
secret the fact of execution of a will; and (ii) more importantly,
to keep secret the contents thereof.
Advantages of a holographic will:
● Because the form is simple, it can be executed in
accordance with the prescribed form even without legal
assistance.
● It makes secrecy possible.
Disadvantages of a holographic will:
● The simplicity of its form makes it more vulnerable to
fraud, particularly, forgery.
● Because of the absence of other protective measures,
there is hardly any assurance that the testator executed
the will freely and voluntarily.
Formal Requisites:
1. Entirely written, dated and signed by the hand of
the testator
● Must be handwritten by the testator; no other form is
allowed.
● The handwriting of the testator is the only proof of
authenticity.
● The requirement refers to the date, the testamentary
dispositions, and the signature of testator.
● Breach of the requirement renders the holographic will
void.
● The authenticity of the will is assured only by the
handwriting of the testator, for which reason, it is
arguable that the requirement may be relaxed if the
portion that is not handwritten by the testator is not the
date, his signature, or a testamentary disposition.
● The date need not be a complete date (Roxas vs. de
Jesus). But the incomplete date must make possible
the determination of the state of the mind of the
testator and the law applicable to the required
formalities. Thus the date “Feb.’61” is sufficient to be
used as reference for determining the state of the mind
of the testator at or about February 1961. It also
indicates that the provisions of the New Civil Code
apply to the formal requisites of the holographic will of
the testator.
● The date is presumed to be the true date of execution.
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● The exact location of the date is not important; it can
be embodied in the will (Labrador vs. CA).
2. Implicitly, it must be executed in a language
known to the testator
Probate of a holographic will
1. Ante mortem probate – This is the best option for a
holographic will because the proceeding can be simplified
by the testator testifying that the will presented to the court
is his will, that he executed it freely and voluntarily, and
that the same is in his handwriting.
2. Post mortem probate (811)
(a) Uncontested – Allowance to probate requires one
witness who knows the handwriting and signature of
the testator to declare that the will and the signature
are in the handwriting of the testator.
(b) Contested – Three such witnesses are required.
● Note that the witness must know the handwriting and
signature of the testator; knowledge is not the same as
familiarity (Codoy vs. Calugay); therefore it is imperative
that the witness should present evidence as to the
circumstances which made him say that he knows the
handwriting and signature of the testator; an
unsubstantiated assertion would not be sufficient.
● The testimony of the sole witness, or the 3 witnesses in
the appropriate case, is intended to prove the sole
formal requisite of a holographic will – the handwriting
and signature of the testator.
● Azaola vs. Singson (an en banc decision) declared that
the 3-witness rule is directory, not mandatory,
because: (i) it is possible that there may not be 3 such
witnesses who are qualified to declare that the will is
entirely written by the hand of the testator; or (ii) such
witnesses, while available, may not be willing to testify
during probate; or (iii) the testimonies of such
witnesses may fail to convince the court. For these
reasons, the law permits referral to expert witnesses.
● The subsequent case of Codoy vs. Calugay (a divisional
decision) ruled, however, that the 3-witness rule is
mandatory because 811 used the words “at least three
of such witnesses shall be required.” But it is
disputable that a divisional ruling can overturn an en
banc ruling.
Peculiarities of a holographic will
Holographic Will Notarial Will
Disposition below the Disposition written by the
testator’s signature are valid if testator (or by a third
dated and signed by the person) below the testator’s
testator (812). signature renders the will
void (805).
When a number of This is not permitted in a
dispositions are signed notarial will, and if done, will
without being dated, and the make the notarial will void.
last disposition is both signed
and dated, the dispositions
preceding it are validated
(813).
Insertions, cancellations, This is generally not done in
erasures and alterations are a notarial will because more
permitted provided often than not, its
authenticated by the preparation is handled by a
16 WILLS AND SUCCESSION
testator’s full signature. lawyer.
● Clearly, a holographic will is treated as a work in progress
to which the testator may add testamentary dispositions
during his lifetime.
● Another indication that it is a work in progress is 814;
insertions, cancellations, erasures or alterations are
permitted provided they are authenticated by the testator’s
full signature.
● In Kalaw vs. Relova, the testatrix amended the sole
disposition in her will by cancelling the name of original
heir (Rosa) and substituted it with Gregorio. But the
testatrix did not sign the alteration. The alteration is not
effective as to Gregorio because of the lack of the
authenticating signature of the testatrix. But the
cancellation of Rosa’s name is effectively a revocation of
the disposition in her favor (830[3])
● 813 and 814 are not considered elements of formal
validity; therefore, they are not to be dealt with during
probate proper (Ajero vs. CA).
Joint Wills (818)
● It is a will jointly executed by two or more testators (more
often than not, by spouses).
● It may contain joint dispositions, particularly when the
property disposed thereby is owned in common (ACP,
CGP). But it may also contain separate dispositions, albeit
contained in a single document.
● The joint testators may provide for their reciprocal benefit,
or for the benefit of a third person.
● As to Filipinos, joint wills are void (819); as to foreign
nationals, this matter is governed by their national law.
● Joint wills are prohibited because it gives an opportunity
for one of the testators (the dominant one) to unduly
influence the other (the weaker one), and this is particularly
true with respect to spouses.
● However, if a probate court erroneously allowed probate to
joint wills, and the order admitting the will to probate has
become final, res judicata sets in and the probate order
can no longer be assailed (de la Cerna vs. Rebaca-Potot).
In this case, the will was probated as to the husband. On
the reprobate of the same will as to the wife who died
subsequently, probate was properly denied. This was
because at the time the husband died, the Rules did not
permit ante-mortem probate, which would have been the
case as to the wife. Thus, upon the death of the wife, the
same will had to be re-probated. In the second probate,
the court correctly ruled that joint wills are void.
● However, if today a similar situation should arise, and,
ante-mortem probate being expressly permitted, the post
mortem probate as to the husband would be the ante-
mortem probate as to the surviving wife. This would seem
to lead to the conclusion that even as to the wife, the due
execution of the joint wills can no longer be contested.
WITNESSES TO WILLS
Witnesses to a Notarial Will
The witnesses are expected to take the witness stand during
probate in order to testify on (i) the required procedure for the
execution of the notarial will, (ii) the testamentary capacity of
the testator, and (iii) that the testator freely and voluntarily
executed the will.
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1. Qualifications of a Witness (820)
● Of sound mind (See 799, 800, 801 and Alsua-Betts vs.
CA); the supervening incapacity a witness shall not
deter the allowance of the will (822), in the same way
that the supervening incapacity of the testator will not
invalidate the will (801).
● 18 years of age or older
● Not blind, deaf or dumb (note that he is expected to
testify during probate)
● Literate (ensures higher level of cognitive ability)
● Credible (specifically required by 805[1])
● But credibility of a witness need not be proved by
the proponent of the will (Gonzales vs. CA); it is left
to the court’s appreciation of their testimonies
during probate.
2. Disqualifications of a Witness (821)
● Not domiciled in the Philippines – Local domicile
ensures his availability to testify during probate. It is
arguable though that even if he is a non-domiciliary, if
he is available to testify during probate, it should not
result in the disallowance of a will. The unavailability of
the witnesses to testify during probate jeopardizes the
allowance of the will.
● Convicted of falsification of document, perjury and
false testimony – Conviction for these specific crimes
impairs the credibility of the witness upon whose
testimony the allowance of the will is dependent. The
common element of the specified crimes is the
dishonesty of the offender.
● He must not be the notary public before whom the will
is to be acknowledged (Cruz vs. Villasor). A notary
public who is likewise a witness to a will cannot be
permitted to acknowledge the AC before himself. This
is, at best, a self-serving frustration of the purpose of
the acknowledgment. (See the definition of
acknowledgment.)
3. Prohibited economic interest of a Witness (823)
● If a witness stands to receive a legacy, a devise, or any
other economic benefit under the will upon its
allowance, the legacy, devise, or economic benefit is
void.
● The nullity of the legacy, devise, or economic benefit
extends to those that may be given to his spouse,
parents, children, and anyone else claiming under
them.
● An exception is created, and the legacy, devise or
economic benefit shall not be voided, if there are 3
other credible and competent witnesses (other than the
witness with an economic benefit under the will).
● The reason for the nullity of the legacy or devise is
because those gifts will compromise the integrity of the
testimony of the benefitted witness when he takes the
witness stand, as he will benefit (directly or indirectly)
from the allowance of the will, and will be prejudiced by
its disallowance. Therefore, he is not likely to be
Incorporation by Reference (827)
completely truthful when he testifies, particularly on
matters that could lead to the disallowance of the will.
Remember that he losses the economic benefit if the
will is disallowed.
● The economic benefit notwithstanding, the law does
not disqualify the witness from being a competent
witness with respect to the will from which he stands to
gain.
● A similar provision is found in 1027(4) where an
attesting witness, his spouse, parents, children, or any
one claiming under them, are incapacitated to inherit
from the testator. But note the differences between
these two provisions of the law:
Nullity of the Benefit under Incapacity of the Witness
823 under 1027
Voids the legacy or devise Incapacitates the witness
Provides an exception if Does not provide for an
there are 3 other witnesses exception; the incapacity of
to the will the witness is firm
Basis of nullity of legacy or Basis is the presumed
devise is that the economic undue influence exerted by
benefit he stands to receive the witness on the testator
under the will might
compromise the integrity of
his testimony
● A distinction must be made between the economic
benefit to the witness under a legacy or devise, from
charging the estate for the payment of a debt due to
such witness. A witness who collects a debt from the
estate is not given any economic advantage because
whether or not the will is allowed, he should be able to
collect what is due him.
CODICILS AND INCORPORATION
BY REFERENCE
Codicil
● A supplement or addition to a will, made after the
execution of a will and annexed to be taken as part of
the will (825).
● The objectives of a codicil are: (i) to explain a
disposition in the will, or (ii) to add a disposition, (iii) to
alter a disposition, or to revoke a prior will (830[2]).
● Clearly, a codicil needs a formally valid antecedent will,
otherwise there is nothing to explain, nothing to add to,
and nothing to alter, nothing to revoke.
● If the objective is to explain, add or alter a disposition,
the antecedent will must be preserved because it, too,
must be presented for probate.
● If the objective is to revoke a will, the antecedent will
must likewise be preserved because the efficacy of the
revocation is dependent upon the allowance of the
revoking will. Thus, if the revoking will is denied
probate, the antecedent will remains in force under the
doctrine of dependent relative revocation (Samson vs.
Naval).
● Requires compliance with the formalities of a will; a
codicil may therefore be notarial or holographic.
● Requires the testator to possess testamentary capacity
at the time of the execution of the codicil.
● It is the incorporation of a document into a will, and as
a consequence of which the document becomes an
integral part of the will.
● Because the incorporated document becomes part of
the will, the attestation clause should reflect this by
including in the page count the number of pages of the
incorporated document.
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● Objective is to eliminate the need of re-writing the
document into the will; good case for incorporation by
reference are TCTs of properties disposed in the will,
marriage and birth certificates that will establish
relationship.
● Requisites:
o The incorporated document must be in existence at
the time of the execution of the will; something that
does not exist cannot be incorporated into a will.
o The will must clearly identify and describe the
document, particularly stating the number of pages
thereof.
o Signed by the testator and the witnesses on each
and every page, except for voluminous books of
accounts or inventories.
o During probate, must be identified by clear and
satisfactory proof to be the document referred to in
the will.
● While incorporation by reference is clearly permissible
in notarial wills, it is highly doubtful if it is permissible in
a holographic will which must be entirely written, dated
and signed by the hand of the testator; except,
perhaps, if the incorporated document is entirely in the
handwriting of the testator (such as ledgers, books of
accounts).
REVOCATION OF WILLS AND
TESTAMENTARY DISPOSITION
Revocation of Wills and Dispositions
● Basis – A will is essentially ambulatory; a waiver or
restriction on the power to revoke a will or a disposition
thereof is void (828).
● It is effectively a testamentary disposition; therefore, a
testator needs to possess testamentary capacity in
order to revoke a will. It is also a personal act of the
testator (i.e., the discretion to revoke a will must be
exercised personally by the testator) although the
mechanical act of revoking the will, particularly in the
case of revocation by means of an overt act, may be
delegated by the testator to a third person by means of
an express direction, and done in his presence (Estate
of Maloto vs. CA).
● The revocation of a prior will may be conditional (i.e.
revocation contingent on a future uncertain event).
● If revocation is valid, the revoked will is set aside, even
if the revoking will should be inoperative because of the
incapacity of the heirs or their repudiation (832). The
revoking will must, however, be admitted to probate.
● A revocation based on a false cause is null and void
(833). Mote that the true cause of the benefit given in a
will is the generosity of the testator. The false cause of
revocation referred to here is the internal reason why
the testator decided to revoke the will.
o The reason for the nullity of the revocation is that
the same is the product of vitiated consent –
specifically, a mistake.
o Therefore, it is absolutely necessary, in order to
establish the mistake, that the false cause is stated
in the will; otherwise no one can impute a cause for
the testator’s revocation of his will; any such
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imputed cause would be (i) speculative and (ii)
inadmissible in evidence.
o Therefore, a revocation based on a false cause can
occur only if the revocation is by means of the
execution of a subsequent will or codicil. It cannot
apply to revocation by implication of law and
revocation by means of an overt act.
● Requisites of revocation, in general:
o Testamentary capacity of testator
o Done personally by him (other than the mechanical
act of destroying the document)
o Animus revocandi
o Revocation must be definite (express, if there is a
revocatory clause; or implied, if there are
irreconcilable dispositions between a prior and a
subsequent will)
o Revoking will is admitted to probate
Modes of Revocation
1. By implication of law: such as (i) FC 63(4) on effect of
legal separation on the offending spouse; (ii) FC 43(5) on
the effect of the declaration of nullity of marriage on the
guilty spouse; and FC 50, on the effect of the annulment of
marriage on the guilty spouse.
2. By the execution of a subsequent will or codicil
● Presupposes a prior formally valid will; without which
there is nothing to revoke.
● Doctrine of dependent relative revocation – For
revocation to be effective, the revoking will must be
admitted to probate; otherwise, it cannot revoke a prior
will (Samson vs. Naval)
3. By certain overt acts
● Overt act must be specified by law; however, it is
arguable that the enumeration of the overt acts is not
exclusive as in the Spanish decision where the cutting
of the will using a pair of scissors was deemed to be a
valid act of revocation; thus, shredding the will should
be considered as a valid act of revocation
● Additional requisites specific to revocation by means of
an overt act – completion of the subjective phase of the
overt act; ideally the overt act must be completed.
However, it is possible that the burning or tearing of a
will may leave a doubt as to whether it was sufficiently
burned or torn. It is important therefore to establish by
competent evidence that in doubtful cases, that in the
testator’s mind he had completed the overt act. Cases
where this may be relevant are: (i) when the testator
after commencing the destruction of the will, was
persuaded to desist, and he desisted; (ii) when the
testator has commenced the destruction of the will, but
without his knowledge, the same was salvaged by
someone else.
4. By presumption – If a will was at all times in the
possession of the testator, and was last seen in his
possession, and upon his death it could not be found, a
presumption arises that he revoked the will (Gago vs.
Mamuyac)
Types of Revocation
1. Total or partial – total if the entire will is revoked and
no disposition is left effective; partial, if only specific
dispositions are revoked (831)
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2. Express or implied
● Expressed, if there is a revocatory clause where the
testator explicitly states his desire to revoke a prior will.
Express revocation does not permit a revival of the will
(837); but if the revoked will is formally valid, it may be
republished by mere reference (836), meaning the
revoked will need not be re-written, as a codicil which
refers to it would be sufficient to republish the revoked
will. Republication by reference requires that the
revoked will be preserved. If the expressly revoked will
is void as to form, technically the revoking will did not
revoke it; hence it may be republished only by the re-
writing and re-execution of a new will which must be
valid as to form (835).
● Implied, if the revocation of a prior will or a prior
disposition arose from its irreconcilable inconsistency
with a subsequent will or disposition. In sum the
testator never indicated his desire to revoke the prior
will. A will that is impliedly revoked may be revived by
the revocation of the subsequent will, because the
inconsistency would disappear.
Effect of revocation on the recognition of an illegitimate child
● An illegitimate child may be recognized by his putative
father in the latter’s will.
● Such recognition is not a property disposition; therefore,
its validity or efficacy is not dependent on the allowance of
the will.
● As a general rule, the recognition of the illegitimate child
does not become ineffective by the revocation of the will
that contains it (834), precisely because it is not a property
disposition.
● But exceptionally, the recognition of the illegitimate child
may be challenged if the will is disallowed by reason of (i)
testator’s want of testamentary capacity; or (ii) if
disallowance was premised upon the testator committing a
mistake, or upon violence, intimidation, undue influence, or
fraud perpetrated on the testator.
REPUBLICATION AND REVIVAL OF WILLS
Article 835. The testator cannot republish, without
reproducing in a subsequent will, the dispositions contained in
a previous one which is void as to its form. (NCC)
Article 836. The execution of a codicil referring to a previous
will has the effect of republishing the will as modified by the
codicil. (NCC)
MEANING OF REPUBLICATION:
- To re-issue publicly or to officially or formally
announce or proclaim again.
- The republication of a will is a process sanctioned by
law pursuant to which (1) A will that is void as to form
is rectified by re-executing the same; or (2) A revoked
will which is valid as to form is brought back to life
through the execution of a codicil that makes
reference to the antecedent revoked will.
FORMS OF REPUBLICATION:
1. Will is void as to form - If the will is void as to form, the
testator can rectify the mistake by re-executing the will,
but this time, in accordance with the formalities
prescribed by law at the time of republication. The
republic of a will that is void as to form requires the re-
execution thereof.
2. Will is formally valid but revoked - If the will is valid as to
form but was revoked by the testator, the rewriting and
re-execution thereof would be unnecessary.
Republication in this instance is accomplished through
the execution of a subsequent valid codicil that makes
specific reference to the revoked will.
Article 837. If after making a will, the testator makes a second
will expressly revoking the first, the revocation of the second
will does not revive the first will, which can be revived only by
another will or codicil. (NCC)
REVIVAL OF WILLS:
- This refers to the reinstatement of a revoked will by
operation of law which requires no action on the part
of the testator, Unlike republication.
REQUISITES OF REVIVAL OF WILLS:
1. The testator executed a first formally valid will;
2. The testator executed a second formally valid will
whose provisions are irreconcilably inconsistent with
those of the first will;
3. The second will does not expressly revoke the first
will, but because of the irreconcilable inconsistency
between the provisions of the two wills, the second
will impliedly revoked the first will;
4. The testator revoked the second will.
NOTE: When the above requisites are met, the first will is
automatically revived.
ALLOWANCE AND DISALLOWANCE OF WILLS
Allowance and Disallowance of Wills:
General Rule – 838 provides that no will shall pass property
unless it is proved and allowed in accordance with law
(probate proceedings)
● Probate is necessary because of the extremely
sensitive nature of a will which gratuitously disposes
property after the grantor has died. The grantor can no
longer be heard to confirm or to deny the property
dispositions attributed to him.
● There is a need to ensure that the will is genuine and
truly expresses the wishes of the testator.
● There is a real danger of fraud being perpetrated,
particularly forgery.
Definition of Probate – to prove before some officer or
tribunal, vested by law by authority for the purpose, that the
instrument offered to be proved is the last will and testament
of the deceased person whose testamentary act it is alleged
to be, and that it has been executed, attested and published
as required by law, and that the testator was of sound and
disposing mind. It is a proceeding to establish the validity of
the will (Lasam vs. Umengan).
Stages of Probate
1. Probate Proper – It is the first phase of the proceeding
where the scope of judicial inquiry is limited to: (i) the
testamentary capacity of testator, (ii) compliance with
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formal requisites, (iii) proof that the will presented is that
of the testator, and (iv) proving that the testator freely
executed the same (Gallanosa vs. Ancangel). If these
items are proved, the probate court will issue an order
admitting the will to probate (the probate order).
Generally, matters of substantive validity are not dealt
with in this phase of the proceedings, except if is shown
that the probate of the will would be an idle ceremony and
a waste of time, such as if a compulsory heir was
preterited and the will contained only one disposition
which was the universal institution of an heir (Nuguid vs.
Nuguid).
2. Partition – It is the second phase of the proceeding,
following the admission of the will to probate, where the
scope of judicial inquiry includes a determination of the
substantive validity of the testamentary dispositions, the
capacity of the heirs, and eventually leading to the
partition of the hereditary estate.
Types of Probate
1. Post mortem – probate after the death of the testator;
allowance of the will is largely dependent on the testimony
of the witnesses
2. Ante mortem – probate during the lifetime of the
testator; allowance of the will is largely dependent on a
visual examination of the will and the testimony of the
testator
3. Reprobate of a Will – pertains to the reprobate of a
will already probated in a foreign jurisdiction; this is
necessary only if the probated will is sought to be enforced
in the Philippines. The evidence required are:
● Due execution of the will in accordance with the
relevant foreign law
● Testator was domiciled in the foreign country and not
in the Philippines
● Admission of the will to probate in such country
● Fact that the foreign tribunal is a probate court
● Prove the foreign law on procedure and allowance of
will (vda. de Perez vs. Tolete)
Jurisprudence
1. Necessity of Probate - A will cannot pass property
unless it is allowed or probated (Rodriguez vs. Rodriguez).
The unprobated will of the testator where he allocated his
5-door apartment among his children and live-in partner is
ineffective. The situation did not change even if the
children and the live-in partner executed an extrajudicial
partition of the estate (based on the provision of the
unprobated will) which they did not register. Thus, if it
turned out that the testator had sold the apartment units to
the live-in partner, the children cannot claim any
entitlement under the will which was not probated. Same
conclusion was reached in Lasam vs. Umengan where the
supposed will of the testatrix adjudicating her properties to
her heirs was not probated.
2. Issue of Ownership - As a rule, an issue of
ownership may not be dealt with in a probate proceeding,
the probate court being a court of limited jurisdiction.
Issues of ownership are generally addressed in a separate
action specifically instituted for the purpose. However,
when necessary to determine the inclusions to or
exclusions from estate of the deceased person, a probate
court may provisionally rule on an issue of ownership,
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without prejudice to the matter being threshed out in a
separate proceeding (Pastor, Jr. vs. CA). Pastor
enumerated the errors of the probate court:
● Probate court ordered the inclusion of disputed shares
in the estate of the testator; but went beyond such
finding by ordering that a portion of all those shares be
delivered to the legatee.
● The order of partial distribution was issued even before
the will was admitted to probate.
● The order of partial distribution was issued even before
the estate liabilities (taxes included) could be settled.
● The order of partial distribution was issued even before
the compulsory heirs could be identified and
confirmed, and even before their legitime could be
determined.
3. Intrinsic Validity – scope of inquiry in Phase 1 of
probate
● Jimenez vs. IAC - A widower gave to his 4 children
properties which pertained to the dissolved conjugal
partnership with the deceased wife. This was not
properly documented, nor was the estate of the wife
formally settled. Then he contracted a second marriage
which bore him 7 more children. When he died, the
children of the second marriage sought to include in
the settlement of his estate the properties which were
previously given to the children of the first marriage.
And correctly so, because the first conjugal partnership
was not properly liquidated.
● Nepomuceno vs. CA – A testator gave the legitime of
his legitimate children, and gave the free portion to his
common law partner. Testator was a married man,
albeit separated, and lived with his mistress – a fact he
admitted in his will. The court, during probate, struck
out the institution of the mistress, even before passing
on the formal validity of the will. This case is similar to
Nuguid, where the universal institution of the sister
resulted in the preterition of the surviving parents. Here,
the children were entitled to the legitime as a matter of
right and the testator need not give it to them in his will.
Technically therefore, the only disposition in the will
was the grant of the entire free portion to his mistress.
4. Presentment of the Will to Probate Court – The will
must be physically delivered to the probate court in order
to allow a visual examination of the same so that
compliance with the formalities can be determined
(deadline to custodian of the will – 20 days from learning of
the testator’s death - Rule 75). Probate therefore becomes
problematic if the will is lost or could not be found.
● Gan vs. Yap – An attempt was made to prove the due
execution and contents of a missing holographic will.
Proponents tried to explain why the testatrix concealed
the will from her husband; and that at least 5 witnesses
testified on the contents thereof. The decision did not
state the evidence presented in respect of the evidence
surrounding its execution. The court found the
testimonies of the witnesses not credible and ruled that
the court will not distribute the property of the
deceased based on the holographic will unless it is
proved to be in his handwriting and signature, such
that the loss of the holographic will is a fatal defect.
● Rodelas vs. Aranza – Under similar circumstances, a
photostatic copy of the missing holographic will was
presented. The probate court dismissed the petition on
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the ground that the only evidence of compliance with
the formalities is the original copy of the will. The
Supreme Court ruled that the probate proceedings
should not be dismissed immediately, but that the
proponent should be given an opportunity to compare
the photostatic copy with the standard handwriting of
the testator.
Grounds for Disallowance of a Will (839)
1. non-compliance with formalities
2. lack of testamentary capacity
3. testator’s consent was vitiated (force, threat, undue
influence, fraud, mistake)
Jurisprudence
1. Vice of consent must be proved; cannot be
appreciated on the basis of unsubstantiated allegations of
intimidation, undue influence, or fraud (Baltazar vs. Laxa);
mere forgetfulness is not insanity.
2. That the testatrix lived with the principal beneficiary
of her estate is not an indication that she was unduly
influenced by the latter (Pascual vs. de la Cruz).
3. That the testator was unduly influenced by his
temporary host with whom he lived during the Japanese
occupation is belied by the fact that the testator did not
revoke such will after he moved out of the house of his
host after the war (Ozaeta vs. Cuartero).
4. The oppositor in a probate proceeding has the
burden of proving undue influence (Coso vs. Fernandez-
Deza); not every influence is undue; mere general or
reasonable influence is permissible. Influence becomes
undue when it overpowers and subjugates the mind of the
testator as to destroy the free agency of his will and makes
him express the will of another, rather than his own.
5. The 52-year age gap between the testator and his
wife is not indicative that the latter defrauded the testator
in signing the will; neither does the omission of collateral
relatives from the will (Ortega vs. Valmonte).
SECTION 2 - INSTITUTION OF HEIRS
Preliminary Statement – The testator may distribute his
estate in either of three ways: (i) by instituting heirs, (ii) by
giving legacies and devises (Dizon-Rivera vs. Dizon), or (iii)
by doing both. This explains 841 in that a will need not
contain an institution of heirs.
Definition – Institution refers to the designation of the
person(s) who will succeed to the testator’s estate (840).
The definition is inaccurate because it encompasses the
legatees and the devisees. The accurate definition is the
designation of the person(s) who will inherit the whole or a
fractional part of the estate.
● Gift of value – This is the essence of institution of
heirs. The testator gives to the heirs, individually or
collectively, specific portion(s) of his PRO which
represent(s) specific value. The testator is concerned
only with the value of what he is giving, and not with
the properties which will comprise such portion of the
estate.
● Gift of specific property – This is the essence of a
bequest. The testator gives to the legatee/devisee a
specific movable/immovable property, it being his
intention to set aside such property for the legatee or
devisee, to the exclusion of all other persons. The
testator’s main concern is not the value of the gift, but
the identity of the property he wants to give.
Importance of the Correct Definition – The correct
definition of the institution of heirs highlights the
significance of one of the consequences of preterition and
invalid disinheritance. In either case, the institution of heirs
is annulled (totally in the case of preterition, and possibly
partially only in the case of an invalid disinheritance), but
legacies and devises which are not inofficious shall remain
valid. Why? In preterition and invalid disinheritance, there
is a need to restore the legitime which is denied the
preterited or invalidly disinherited heir. Therefore, it is
imperative for a portion of the estate to be freed so that
from that portion of the estate, the legitime of the deprived
compulsory heir could be sourced.
● In preterition, there is a need to annul the institution
because there is no other source for the recovery of the
legitime of the preterited heir.
● In a void disinheritance, the annulment of the institution
is mandated only if there is no other source of recovery
for the disinherited heir, or if the available resources are
insufficient to fully recover the legitime.
In freeing up a portion of the estate for the recovery of the
legitime, the law made the first recourse against the institution
of heirs, before recourse against the legacies and devises.
This is because the legatees and devises are deemed to have
been given by the testator the preferential right to the specific
property allotted to them. Thus, between the preference
extended to legatees and devisees against none given to
instituted heirs, the institution of heirs will have to be annulled
or aside, before reducing or abating the legacies and devises.
Requisites of a Valid Institution
a. Extrinsically valid will – Unless the will is admitted to
probate, it cannot pass property.
b. Substantive validity of the institution – The institution
must be compliant with the substantive provision of the
law (e.g., no preterition, capacity of the heir, no
impairment of the legitime).
c. Institution must be free from vice of consent on the part
of the testator – otherwise the institution is void.
d. The Institution personally made by the testator (784) – it
is a non-delegable function
e. The instituted heir must be clearly identified (845),
without prejudice to the validity of class institution (786,
1030)
5. Basic Principles
a. Complete distribution by institution is not necessary
(841) – Incomplete distribution, repudiation, or
incapacity of the heirs merely creates a vacancy in the
inheritance, and such vacancy may be filled:
● by the testator himself through substitution of heirs
(857);
● by law, through the right of representation (970)
and, thereafter, accretion (1015); and
● finally by intestacy, if there is no representation and
accretion
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Incomplete distribution may thus result in partial
intestacy (851). Note that the law distinguishes between
the validity of the will (both formal and substantive) and
its effectiveness (i.e., the implementation f the
testamentary dispositions contained in the will, which
can be prevented by RIP). Thus, a will may be valid, but
ineffective in whoe or in part. In order that the estate
may be fully liquidated by testamentary succession, the
will must be both valid and effective.
b. Freedom to dispose (842) – Testator is free to dispose
his estate in any manner in favor of any qualified heir if
he does not have compulsory heirs (887); if he has, he
must preserve the legitime (886).
c. How to designate heirs – The simple rule is that the
instituted heir must be identified or identifiable with
certainty; failing which the institution is void (843, 844,
845).
d. Rule of equality – Heirs instituted without designation
of shares inherit equally (846). Without designation of
specific shares for each heir, there is no factual basis
for giving an advantage to one or some over the others,
and there should be no speculation or second-
guessing the testator on this point.
● If the instituted heirs are all voluntary heirs, apply
the rule of equality outright.
● If some of the instituted heirs are voluntary heirs,
and the others are compulsory heirs, certain
precautions must be observed.
o Carefully read the testamentary disposition
and make a determination of the true intention
of the testator. Determine if the testator’s
intention is to give equal shares to all such
heirs without distinction, or alternatively, if the
testator’s intention is to apply the rule of equal
division only with respect to the free portion of
the estate.
o In the first instance, apply the rule of equal
division among the compulsory and voluntary
heirs, but making sure that the assigned
shares of the compulsory heirs do not impair
their legitime. If there is impairment of the
legitime, make the necessary adjustments so
that the compulsory heirs get at least the
legitime. In this case, the rule of equality will
not result in the quantitative equality of the
shares of all the heirs. (See Dizon-Rivera vs.
Dizon)
o In the second instance, if the intention of the
testator is clearly to apply the law of equality
only to the free portion, distribute the legitime
first, and apply the rule of equality to the free
portion.
● In order to fully understand the process of
distribution, refer to the illustrative examples set out
in Article 846 of the book.
e. Rule on Collective Institution – If the testator
instituted some heirs individually, and others
collectively, it is presumed that his intention is to
institute them individually unless a contrary intention
appears (847).
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● The rule on collective institution is an adjunct of the
rule of equality. The rule of equality prescribes that
heirs instituted without designation of shares shall
inherit equally.
● Thus, if individually instituted heirs concur with
collectively instituted heirs, an issue arises as to
whether or not the rule of equality will squarely
apply.
● If the collectively instituted heirs are treated as one
heir, the individual shares of the collectively
instituted heirs will be significantly less than the
shares of the individually instituted heirs. This is not
prohibited, but the law requires that such intention
must appear in the disposition.
● Without any indication that such was the intention
of the testator, the collectively instituted heirs shall
be treated as though they were individually
instituted – resulting in the equal division of the
estate among all heirs. The collective institution of
several heirs will be treated merely as descriptive of
the individuals comprising the group.
● Thus, the testator instituted to the free portion X, Y,
and the three children of Z (namely A, B, C). The
free portion shall be divided into 5 equal parts. But
if the testator instituted X, Y, and collectively as a
group A, B and C, then X and Y will each get 1/3 of
the free portion, and the remaining 1/3 shall be
divided equally among A, B and C.
f. Rule of Simultaneous Institution – If a person is
called to the succession together with his children, they
are deemed simultaneously instituted, not successive
(849).
● How successive institution works – The testator
institutes a specific heir (can also be a legatee or
devisee), subject to a stipulation that at a specified
point in time, or at the very latest, upon the death of
such heir, the property shall pass to another heir or
heirs designated by the testator.
● Consequence of successive institution – The heir
originally instituted, while he acquires title to the
property, is at best comparable (comparable does
not mean the same) to a lifetime usufructuary
because he is denied the right to dispose the
property which, at a specified time, or at the latest
upon his death, shall pass to another person
designated by the testator.
● Successive institution was eliminated in the New
Civil Code. The fundamental justifying reason is that
successive institution permits a testator to control
the property from his grave (i.e., even after his
death which under 37 terminated his ownership of
the property).
● Thus, if a person is instituted together with his
children, they all inherit simultaneously and will
acquire the property in equal shares. The father
cannot claim sole ownership of the property during
his lifetime and deny his children their proportionate
share thereof until his death.
● But the law created one exception to the rule of
simultaneous institution: the fideicommissary
substitution (863) which shall be discussed later.
g. Institution based on a false cause (850)
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● The false cause must be understood in the
colloquial sense: a false and incidental reason relied
upon by the testator in making the testamentary
disposition. It is important to remember that the
legal and true cause for the institution of an heir is
the liberality or generosity of the testator – which
can never be false.
● Essentially, therefore, the false cause in an
institution is a mistake committed by the testator
upon which he relied in making a testamentary
disposition. A mistake vitiates consent (1330).
● The principles of revocation based on a false cause
(833, Lecture No. 5) are applicable to the institution
based on a false cause.
● Effect of a false cause – the false cause is deemed
not written and the disposition remains valid,
except if it appears from the will that the testator
would not have made such disposition had he
known of the falsity of the cause.
● Requisites:
o The testator must indicate in the disposition his
reason for making the institution; this reason is
the incidental cause for the institution, the
principal cause is his generosity to the heir; if
the cause for the institution is not stated, there
would be no basis for alleging that the institution
was based on a false cause (see parol evidence
rule). Thus, the only acceptable basis for
establishing the falsity of the cause is the
testamentary disposition itself, to the exclusion
of extrinsic evidence.
o There must be competent proof that the stated
cause for the institution of the heir is false.
o To nullify the disposition, it is imperative to
prove that the testator would not have made
such disposition had he known the falsity of the
stated cause. In Austria vs. Reyes, there was a
failure to prove that the consistent reference of
the testatrix to the description of the instituted
heirs as her compulsory heirs (which is false)
was the cause for the institution.
h. Rules for Adjusting the Shares of Instituted Heirs
● If the testator instituted several heirs as her sole
and universal heirs (to the exclusion of all others),
but their collective entitlements do not cover the
entire estate, their respective shares shall be
increased proportionately so that the entire estate
would be distributed (852).
● If the testator instituted several heirs and their
entitlements exceed the hereditary estate, their
respective shares shall be reduced (853).
● See the illustrative adjustments in the examples
cited in Arts. 852 and 853.
Preterition
a. Definition – It is the omission of one, some or all of the
compulsory heirs in the direct line, whether such heirs
are living at the time of the execution of the will, or born
after the death of the testator (854).
b. Consequence – Preterition results in the total
annulment of the institution of heirs, but legacies and
devises which are not inofficious shall remain valid. The
total annulment of the institution paves the way for the
recovery of the legitime by the preterited heir. See the
illustrative examples of the annulment of the institution
in the book.
c. Objective – The legitime of the compulsory heirs must
be preserved. A preterited heir is entitled to recover his
legitime. The total annulment of the institution of heirs
permits this recovery.
d. Different modes of impairing the legitime
● Testator may execute a will, dispose his entire
estate, and leave nothing to a compulsory heir in
the direct line. This situation is addressed by 854
(preterition).
● Testator may give a share to a compulsory heir, but
in an amount less than the prescribed legitime. This
situation is addressed by 906 (completion of
legitime)
● Testator may, in his lifetime, dissipate his estate
through donations inter vivos and thereby deprive
his compulsory heirs of the legitime. This situation
is addressed by 1061 (collation of donations).
e. Requisites of preterition
● Omission of a compulsory heir – Reference is 887.
Children and descendants are the primary
compulsory heirs. The surviving spouse and
illegitimate children are concurring compulsory
heirs. Parents and ascendants are secondary
compulsory heirs. Children and descendants as
well as parents and ascendants are compulsory
heirs in the direct line and may thus be preterited.
While preterition is a matter of intrinsic validity, it
may be dealt with during probate proper if a
continuation of the proceeding, despite a clear case
of preterition, would be an idle ceremony (Nuguid
vs. Nuguid).
● Compulsory heir in the direct line – excludes the
surviving spouse (Balanay vs. Martinez), but
includes an adopted child (Acain vs. IAC)
● Omission of the compulsory heir is total: i.e., he
stands to receive nothing by will, will receive
nothing by intestacy as the will disposed
everything, and he received no advances of the
legitime (i.e., no collationable donation) (Aznar vs.
Duncan). If something is left undistributed by the
will, the omission is not total, there is no preterition;
the omitted heir would merely be entitled to
completion of his legitime (see illustrative example
in Art. 855).
● Omitted compulsory heir survives the testator – If
the omitted compulsory heir predeceased the
testator, he never had a chance to inherit from the
latter; thus, he could not have been omitted.
However, the children and descendants of a
predeceased omitted compulsory heir are entitled
to exercise the right of representation (856 in
relation to 972). While there is no preterition of a
predeceased child, the descendants of the latter
are entitled to recover the legitime of the
predeceased omitted child by right of
representation.
f. Preterition (854) compared to an Ineffective
disinheritance (918)
Preterition Ineffective Disinheritance
Presumed to have been Disinheritance is always
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caused by oversight of the intentional; the testator ● Reciprocal – two heirs being bilateral substitute for the
testator; therefore, has a reason for the other
unintentional. same. ● Fideicommissary – a first heir and a second heir
simultaneously instituted, but the beneficial rights of
854 applies only to All compulsory heirs the second heir is suspended for the duration of the
compulsory heirs in the (descendants, beneficial rights of the first heir (863)
direct line, thus excluding ascendants and spouse)
the spouse. may be disinherited. 3. Basic Rules of Substitution
● The substitute takes the share of the defaulting
Preterition results in the The annulment of the instituted heir, subject to the same charges and
total annulment of the institution is limited to conditions imposed on the instituted heir, except: (i) if
institution of heirs; legacies the extent necessary to the testator otherwise provides, or (ii) the condition or
and devises which are not allow the disinherited charge imposed on the instituted heir is purely personal
(862).
inofficious are preserved. heir to recover legitime;
● If heirs instituted in unequal shares should be
legacies and devises
reciprocal substitutes, the substitute acquires the share
which are not inofficious of the defaulting heir (RIP), unless the testator indicates
are preserved. otherwise. If there are more than one substitutes, they
shall have the same share in the substitution as in the
The recovery of the Recovery of the institution (861). In this regard, be very cautious if the
preterited heir may exceed disinherited heir is substitution involves compulsory heirs because the
the legitime, following the always limited to the legitime of a compulsory heir is not subject to
total annulment of the legitime. substitution (904). See the illustrations in Art. 861.
institution of heirs.
4. Fideicommissary substitution – The first heir
(fiduciary) is entrusted with the obligation to preserve and
Governing law of preterition – national law of the testator to transmit the whole or part of the inheritance to the
(Cayetano vs. Leonidas). second heir, subject to two conditions: (i) the first and
second heirs are related to each other in the first degree
SECTION 3 - SUBSTITUTION OF HEIRS (necessarily by consanguinity because the degree of
relationship is measured by generation 963); and (ii) both
must be living at the time of the death of the testator (863).
Substitution of Heirs A third requisite was omitted by law: i.e., both heirs must
1. Definition – the testator’s appointment of another be capacitated to inherit from the testator.
heir who shall enter into the inheritance in default of the
heir originally instituted (857). The definition is not exactly ● Nature of fideicommissary substitution – It is
accurate because of fideicommissary substitution where undoubtedly a case of successive institution that was
the second heir is not, strictly speaking, meant to take the disguised as a substitution. By definition, substitution is
place of the first instituted heir. The truth is: the appointment of a replacement for a defaulting
fideicommissary substitution is the only permissible case instituted heir (RIP, 857). In a fideicommissary
of successive institution. substitution, the first heir did not default. How was the
disguise created? The theory is that the first and
● Purpose – to fill the vacancy in the inheritance left by second heirs inherited simultaneously from the testator;
the refusal (repudiation) or inability (predecease and but they do not become co-owners of the property
incapacity) of the instituted heir to take the inheritance. inherited. The reason is that while title to the property
In the process, intestacy with respect to the vacant pass to both of them simultaneously, the first heir takes
portion is avoided. precedence in enjoying the beneficial rights to the
property, to the exclusion of the second heir, at most
● Remedies for filling the vacancy in the inheritance to for a lifetime. At the appointed time, or at the latest on
avoid intestacy: the death of the first heir, the beneficial rights to the
● By an act of the testator – substitution of heirs property is consolidated in the second heir, who then
● By provision of law – right of representation (970) becomes the absolute owner of the property.
and right of accretion (1015) Consequently, upon the death of the first heir, the
property subject to fideicommissary substitution does
● Grounds for substitution – Generally, substitution fills a not form part of his estate. So, the practical
vacancy brought about by RIP, unless the testator consequence and benefit arising from a
specifies the specific ground for substitution (859). fideicommissary substitution is that the testator, in a
There is no law that prohibits the testator from single testamentary disposition, is able to pass
providing substitution for another cause (e.g., non- ownership of the property twice: initially to the first heir,
fulfillment of a suspensive condition attached to the and thereafter to the second heir. But for these two
institution of the heir) transmissions, the estate tax is only paid once.

2. Types of substitutions (858) ● Requisites of fideicommissary substitution:

● Simple or common – one heir, one substitute a. The testator appoints a first heir (or a first legatee
● Brief – one heir, two or more substitutes (860) or a first devisee). The first heir is alive at the time
● Compendious – two or more heirs, one substitute (860)

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of testator’s death and capacitated to inherit from
the latter. The first heir acquires title to the property
(simultaneously with the second heir). He is not just
a trustee or a usufructuary of the property (vda. de
Mapa vs. CA).
b. The testator imposed on the first heir (the
fiduciary) the duty to preserve the property and
to transmit it to the second heir (the
fideicommissary). In sum, there is a restriction on
the title of the first heir because his title is at best
for a lifetime, if not even shorter. So, does the first
heir have the right to dispose or alienate the
property (jus disponendi)? One opinion holds that
the right to dispose is in conflict with his duty to
preserve and to deliver the property to the second
heir, and therefore, necessarily denied him. A
second opinion holds that the first heir may alienate
the property because he is an owner thereof (not a
co-owner). However, because of the obligation to
preserve and to transmit the property to the second
heir, his ability to alienate the property is subject to
the resolutory condition of his ownership: i.e., at the
appointed time of delivery to the second heir, the
alienation must likewise end. The problem with this
second opinion is that the conditional title of the
first heir may not be known or knowable by the
transferee which would make the latter a purchaser
in good faith. In which case, the second heir may
not recover the property from the purchaser in good
faith. Could the second heir demand a security for
the delivery to him of the property at the appointed
time? The law does not require the first heir to give
such security, particularly because the first and
second heirs are related to each other as parent
and child (first degree).
c. The substitution cannot go beyond one degree –
This requisite was interpreted as one degree by
relationship (Ramirez vs. Ramirez). Thus, the only
persons permitted to be the first and second heirs
in a fideicommissary substitution would be a parent
and a child (regardless of legitimacy or illegitimacy
of relationship because they are related within the
first degree), but not an adopting parent and an
adopted child (if there is no blood relationship
within the first degree).
d. Both the fiduciary and the fideicommissary must
be alive at the time of the testator’s death – This
is because they inherit from the testator
simultaneously (866) and thus have to be
capacitated to inherit from the testator at that point
in time. Note, however, that a conceived child is
given the presumptive personality (40, 41).
e. The substitution must be made in an express
manner – There are two ways of accomplishing
this: (i) call the substitution fideicommissary, or (ii)
impose upon the first heir the explicit obligation to
preserve and to transmit the property to the second
heir (865, 867). Thus, failing to call the substitution
as fideicommissary, or failing to impose the twin
duty to the first heir, there can be no
fideicommissary substitution (Crisologo vs.
Singson).
● Principles of fideicommissary substitution to remember
● It cannot burden the legitime (864, 904).
● Since the substitution is not premised on the
default of the first heir, the second heir inherits from
the testator even though he should die before the
first heir; the right of the second heir to the property
passes to his heirs (866)
● If the first heir should predecease the testator, he
passes nothing to his heirs. Upon the death of the
testator, the property shall pass to the second heir
because he too is an instituted heir.
● If the substitution is void, the institution of the first
heir remains valid; the substitution is deemed not
written (868)
5. Dispositions that are void – These are deemed
possible circumventions of the limitations on
fideicommissary substitution.
● Fideicommissary substitution that are not made in an
express manner
● Perpetual prohibition to alienate the property inherited;
however, the prohibition is valid for 20 years (870,
Rodriguez vs. CA)
● Imposition of the burden of paying income or pension
to various persons beyond the limit of 863 – meaning
not more than 2 payees who must be parent and child
● Heirs given secret instruction regarding the application
or investment of the property bequeathed
6. Separate disposition of naked title and usufruct
(869) – This is permitted and is not covered by the
limitations on fideicommissary substitution. But if the
usufruct is given to several persons successively, the
limitations on fideicommissary substitution shall apply.
SECTION 4 - CONDITIONAL TESTAMENTARY
DISPOSITIONS AND TESTAMENTARY DISPOSITIONS
WITH A TERM
Testamentary Dispositions with a Condition or Term;
Modal Disposition
1. Important Definitions
● Condition – an event that is uncertain to happen in the
future which will either trigger the efficacy of a
testamentary disposition or its termination
● Suspensive condition – an event that is uncertain to
happen in the future, the happening of which will make
a testamentary disposition effective; meantime the
efficacy of the testamentary disposition is put in a state
of suspense, or otherwise held in abeyance. If the
suspensive condition does not happen, or if it becomes
certain that it will not happen, the testamentary
disposition becomes ineffective.
● Resolutory condition – an event that is uncertain to
happen in the future, the happening of which will
terminate a testamentary disposition; meantime the
instituted heir, legatee, or devisee takes possession of
the property bequeathed to him.
● Potestative condition – a condition whose fulfillment
is dependent completely on the will of the heir
● Casual condition – a condition whose fulfillment is
purely dependent on chance or luck
● Mixed condition – a condition whose fulfillment is
partly dependent on the will or the heir, and partly on
chance or luck or on the will of another person
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● Positive condition – a condition that requires the heir
to do something
● Negative condition – a condition that requires the heir
to refrain from doing something
● Term – an event that is certain to happen in the future,
although the exact time of happening may not be known,
which has an effect on the demandability of a testamentary
disposition
● Suspensive term – an event that is certain to happen
in the future (thus, it is a matter of time), but until such
event happens or until the arrival of that period, the
demandability of a testamentary disposition is put in a
state of suspense, or otherwise held in abeyance
● Resolutory term – an event that is certain to happen in
the future (thus, it is a matter of time), the happening of
such event or the arrival of such period terminates the
testamentary disposition
● Modal disposition – may refer to the institution of an heir,
or to a legacy or devise, wherein the testator states: (i) the
object (or purpose) of the institution, legacy or devise, or
(ii) the application of the property left to the beneficiary, or
(iii) imposes a charge or burden on the recipient of the
property
● Efficacy – refers to the effectiveness of the testamentary
disposition, i.e., whether or not the disposition shall take
effect; it is not the same as demandability
● Demandability – refers to the entitlement of the
beneficiary of a testamentary disposition to demand the
delivery of the property left to him; it pertains only to an
effective testamentary disposition
It is advisable to review the provisions of the Code on
conditional obligations and obligations with a term (1179-
1198 inclusive) because the conditions imposed by the
testator upon the heir is governed by the rules established
for conditional obligations, in all matters not specifically
provided herein (884).
2. A testamentary disposition (whether it is an institution
of heir, a legacy, or a devise) may be subject to a
condition, a term, or it may be modal (871). However, a
condition, term or mode cannot be attached to the legitime
(872, 904).
3. Requisites of a Conditional Institution
● The condition must be expressly stated in the will; the
law does not sanction implied conditions or conditions
deduced from inferences.
● The condition must be clear and understandable. If
despite the use of the tools of interpretation the
condition is not clarified, it shall be considered as not
written and the disposition may be given effect. The
nullity of the condition does not carry with it the nullity
of the disposition to which it is attached.
● The condition must be lawful; i.e., not contrary to law.
4. Three Void Conditions in the Code
a. Impossible conditions (873) which includes those that
are contrary to law or good customs, those whose
fulfillment is physically impossible (e.g., a condition that
is contrary to the laws of nature).
26 WILLS AND SUCCESSION
● Absolute impossibility – the condition cannot be
fulfilled by any one at any time under any
circumstance (e.g., the condition to make a dead
man live again)
● Relative impossibility – the condition cannot be
fulfilled by the beneficiary of the disposition
particularly, even if it can be fulfilled by some other
person.
Effect: The condition is void, but the disposition is
valid.
Reason: The condition is merely an accessory to the
testamentary disposition; the cause of the disposition
is the generosity of the testator. If the impossibility of
the condition is known to the testator, then it is
apparent that the testator is making a mockery of the
privilege to dispose property by will.
Compared to obligations – An obligation subject to an
impossible condition is void; not just the condition.
(1183) This is because the impossibility of the condition
indicates the lack of interest of the parties to be bound
to the performance of the obligation.
Time of impossibility – The condition must be
impossible at any point in time, whether at the time of
the execution of the will, or at the time of the death of
the testator
b. Absolute condition not to contract a first or
subsequent marriage (874) – void because it violates
the freedom of the heir to choose his status in life; void
because it tends to encourage cohabitation outside of
marriage.
As to the prohibition to contract a subsequent
marriage, it is valid if imposed on the widow or widower
by the deceased spouse, or by the latter’s ascendants
and descendants.
A condition imposing marriage, surprisingly, is valid.
A relative prohibition to marry (e.g., relative as to time,
race, or religion), to the extent that it is not extremely
onerous as to virtually amount to an absolute
prohibition to marry, is valid.
Effect: The disposition is valid, but the condition is
void.
c. Dispocicion captatoria (875) – It is a testamentary
disposition made upon the condition that the heir
(legatee, or devisee) shall make some provision in his
will in favor of the testator or any other person. A
dispocicion captatoria is void for the following reasons:
● It contractualizes succession which is meant to be
a gratuitous transmission of property.
● It enables a testator to indirectly control the estate
of his heir.
● It compels the heir to make a will in order to comply
with the condition of his institution; and indirectly, it
prevents him from revoking the will that he
executed, or he loses the benefit due from the
testator’s estate.
● It may result in an absurdity. If compliance with the
dispocicion captatoria means a valid and effective
institution of the testator or his nominee in the will
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of the heir, the condition would be suspensive, and
compliance with the dispocicion captatoria cannot
be established until the will of the heir is admitted to
probate.
If the condition of the institution of the heir is for him to
provide something to the testator or the testator’s
nominee other than by way of a parallel testamentary
disposition, the condition is valid as it is not a
dispocicion captatoria.
5. Different Types of Conditional Dispositions
a. Disposition with a suspensive condition – Prior to
the fulfillment of the suspensive condition, or until it
becomes certain that the condition cannot be fulfilled,
the property must be placed under administration
(880). Administration ends when the suspensive
condition is fulfilled; the inheritance is delivered to the
heir together with fruits and interest. But if the
suspensive condition is not fulfilled, or it becomes
certain the condition cannot be fulfilled, the
administrator shall deliver the inheritance, together with
fruits and interest, to the substitute (if the testator
appointed one) or failing which, to the intestate heirs.
b. Disposition with a positive, potestative, and
suspensive condition – The fulfillment of the condition
is dependent on the will of the heir. He must fulfill the
condition as soon as he learns of the testator’s death,
unless the condition has been fulfilled in the past and
cannot be fulfilled again (876). Until he fulfills the
condition, he cannot receive the inheritance left to him.
The fulfillment of a potestative condition is a matter of
obedience to the express wishes of the testator, and
totally within the control of the heir.
The time of fulfillment of the condition is controversial.
A person may know the death of another; but he may
not know if the decedent wrote a will, or that he stands
to benefit from the will, or that the benefit conferred
upon him is conditional. He may not even be sure of
receiving the benefit because the will must be allowed
probate. In short, an heir should not be penalized for a
delay in complying with the positive, potestative and
suspensive condition for any cause which is
reasonable.
c. Disposition with a negative, potestative condition –
The heir acquires the right to the inheritance upon the
death of the testator, and after completion of the
prescribed proceedings, he is entitled to the delivery
thereof. However, he must comply with the prohibition,
and a breach thereof would require him to return the
inheritance, together with the fruits and interest (879).
In order to guaranty the return of the inheritance with
its fruits and interest, he must provide a security which
is known as the caucion muciana in favor of the
substitute heir (if the testator provided for substitution)
and failing which, in favor of the intestate heirs. If the
heir cannot post the security, the property will be
placed under administration (880[2]).
d. Disposition with casual or mixed condition –
Generally, it is sufficient if the condition happened at
any time before or after the death of the testator
(primarily because its fulfillment is dependent wholly or
partly upon chance or luck, and the law does not
require that luck should visit the heir more than once).
However, the testator could provide otherwise (877). If
the condition was fulfilled at the time the will was
executed and the testator was unaware thereof, the
condition is deemed fulfilled. But if the testator knew
that it had been previously fulfilled and yet imposed the
condition, it must be fulfilled again unless by its nature
it cannot be fulfilled again. The fulfillment of a casual or
mixed condition is mainly a function of luck, chance or
the will of another person with little or no influence on
the part of the heir.
6. Dispositions with a Term
a. Disposition with a suspensive term (ex die) – Upon
the death of the testator, the heir acquires the right to
the inheritance and can transmit such right to his heirs
(878), but he cannot demand delivery until the arrival of
the term. Since the term is sure to arrive, only the
demandability of the inheritance is deferred. Prior to
the arrival of the term, the inheritance shall be delivered
to the intestate heirs of the testator who shall provide
the caucion muciana in favor of the instituted heir (885).
If the testator should designate an interim heir prior to
the arrival of the term, the same may be objected to as
an indirect violation of the limitation in 863
(fideicommissary substitution) particularly if the interim
heir is not a relative of the instituted heir in the first
degree.
b. Disposition with a resolutory term (in diem) – Upon
the death of the testator, the instituted heir acquires the
right to the inheritance. Upon completion of the
required proceedings, he is entitled to the delivery
thereof. The instituted heir is entitled to the inheritance
for the duration of the term. Upon the arrival of the
resolutory term, the inheritance shall be passed to the
intestate heirs of the testator (885). The testator cannot
designate a successor heir because that could be
construed as a form of fideicommissary substitution,
and if so, must comply with the one-degree limitation.
7. Modal institution – It is an institution (or a legacy or
devise) wherein the testator states: (i) the object or
purpose of the institution, (ii) the application of the
property, or (iii) imposes a charge or burden on the
instituted heir (882).
● The object or purpose, the application of the property,
or the charge or burden, are not to be considered as
conditions to the institution, legacy or devise. The
reason is: the purpose, application, or burden will
neither suspend nor resolve the institution, or legacy, or
devise. They are meant to be complied with by the heir,
under penalty of losing the property (together with fruits
and interest) in case of breach.
● For which reason, the modal heir, modal legatee, or
modal devisee must post a security for the faithful
compliance with the mode. (Rabadilla vs. CA)
● The mode must be a directive from the testator and
must be complied with. It is not enough for the testator
to make a suggestion. However, if without fault the
modal heir could not comply strictly with the mode, he
is permitted to comply in the most analogous manner
(883). If a person stands to benefit from non-
compliance with the more, and he prevented such
compliance, the mode is deemed complied with.
WILLS AND SUCCESSION 27
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● The net effect of a modal institution is similar to the -Illegitimate grandparents and other illegitimate
effect of an institution with a negative resolutory ascendants (more remote in degree) are not
condition. compulsory heirs of their illegitimate descendants.
3. Concurring Compulsory Heirs:
- Refers to the heirs who succeed concurrently with
SECTION 5 - LEGITIME
primary or secondary compulsory heirs.
- The surviving spouses and illegitimate children are
DEFINITION OF LEGITIME: concurring compulsory heirs. (Art. 887, NCC)
- It is that of the testator’s property which he cannot - Collateral Blood Relatives (brothers, sisters,
dispose of because the law has reserved it for certain nephews, nieces, uncles, aunts, and cousins)
heirs who are, therefore, called compulsory heirs. whether full or half blood are not compulsory heirs.
(Art. 886, NCC)
- Conceptually, the legitime is a specified portion of TABLE OF LEGITIME
the estate of a deceased person which is reserved for
the compulsory heirs as the latter’s minimum share of
the inheritance/ It is an error that a testator cannot Survivors CC LC SS IC LP IP
dispose of the legitime. (Dizon-Rivera vs. Dizon, 33 Provisions:
SCRA 554)
LC only 888 ½ ÷ LC
COMPULSORY HEIRS:
1. Legitimate children and descendants, with respect to
their legitimate parents and ascendants;
2. In default of the foregoing, legitimate parents and 1 LC and 892 ½ ¼
ascendants, with respect to their legitimate children SS
and descendants;
3. The widow or widower; 2 or more 892, 895, ½ ÷ LC 1 LC ½ LC
4. Acknowledged natural children, and natural children LC, IC 897, 898
by legal fiction; and SS
5. Other illegitimate children referred to in article 287.
(Art. 887, NCC) SS and IC 894 ⅓ ⅓

Compulsory heirs mentioned in Nos. 3, 4, and 5 are not excluded

LP, SS 896, 899 ⅛ ¼ ½
by those in Nos. 1 and 2; neither do they exclude one another. In all
and IC
cases of illegitimate children, their filiation must be duly proved.

The father or mother of illegitimate children of the three classes LP only 889 ½
mentioned, shall inherit from them in the manner and to the extent
established by this Code. (Art. 887, NCC)
IC only 901 ½

THREE CATEGORIES OF COMPULSORY HEIRS:

1. Primary Compulsory Heirs: SS only 900 ½; ⅓; ½ ½
- These are the principal beneficiaries of the estate of a
deceased person. They exclude secondary
compulsory heirs and enjoy a preference over other LP and 893 ¼
compulsory heirs (Art. 887, par. 2,NCC) SS
- The legitimate children are the primary compulsory
heirs of the decedent, they exclude the parents and IP only 903 ½
other ascendants of the decedent (whether legitimate
or illegitimate).
- Adopted children fall within the category of legitimate IP and SS 903 ¼ ¼
children. (Art. 189, Family Code)
2. Secondary Compulsory Heirs:
Legends:
- Refers to heirs who succeed only in default of
LC – Legitimate Children LP – Legitimate Parent/s
primary compulsory heirs. SS – Surviving Spouse IP – Illegitimate Parent/s
- Legitimate parents and other legitimate ascendants IC – Illegitimate Children
are secondary compulsory heirs because they inherit
only in default of legitimate children and other
FUNDAMENTAL RULES ON LEGITIME:
legitimate descendants.
1. Primary Compulsory Heirs - Legitimate children and
- Illegitimate parents (as secondary compulsory heirs)
legitimate descendants:
are treated restrictively because they inherit as
- These heirs always get one-half of the hereditary
secondary compulsory heirs only in the absence of
estate, which is divided equally between or among
descendants of the decedent, whether legitimate or
them. If there is only one primary compulsory heir, he
illegitimate. (Art. 903, NCC)
gets the entire one-half share. Remember, an
adopted child is a primary compulsory heir of the

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adopter. The other half of the hereditary estate – the
“free portion” – is the source of the legitime first, of
the surviving spouse, and thereafter, the illegitimate
children. After payment of these accounts, any
remaining balance is referred to as the “free
disposal.”
- The legitimate (and adopted) children referred to as
primary compulsory heirs does not include a son or a
daughter-in-law (Rosales vs. Rosales, GR no. L-
40789, February 27, 1987).
- Primary compulsory heirs exclude secondary
compulsory heirs (Baritua vs. CA, GR no. 82233,
March 22, 1990).
- Legitimate descendants inherit from a legitimate
ascendant in two possible ways: (i) in their own right
as legitimate descendants of the decedent, when all
the children of the decedent repudiate the
inheritance; or (ii) by right of representation if one,
some or all of the children of the decedent
predeceases, are incapacitated, or disinherited (DIP).
2. Secondary Compulsory Heirs - Legitimate parents
and legitimate ascendants:
- They inherit only in default of primary compulsory
heirs.
- When they inherit from a child or descendant, they
always get the one-half share of the primary
compulsory heirs.
- They are not compulsory heirs of an adopted child of
their children – no blood ties.
- Parents exclude grandparents; grandparents exclude
great grandparents – rule of proximity applies strictly.
- Legitime of legitimate parents are divided equally
between them; if one is incapable of receiving his or
her half, the entire legitime goes to the qualified
parent.
- Legitime of ascendants are divided per stirpes; one-
half for the paternal line, the other half to the maternal
line; generally divided equally between the survivors
of each line. If only one line survives, the legitime
goes entirely to that line – rule of proximity applies
strictly.
- The legitime of parents and ascendants may be
burdened by the reserva (Art.891, NCC)
3. Surviving Spouse:
- His or her legitime is premised upon a valid marriage
(or at least a voidable one which has not been
annulled). Common law spouse is not a spouse and
thus not a compulsory heir.
- In case of legal separation, the surviving spouse
inherits from the deceased spouse provided she is
not the spouse at fault (Art. 63(4), Family Code,
disqualification to inherit by testate or intestate
succession). But if the will was executed after the
decree of separation, the disposition therein in favour
of the spouse at fault is valid.
- If the marriage was dissolved by annulment,
declaration of nullity, or foreign divorce, there is no
surviving spouse (obiter, Van Dorn vs. Romillo, GR
no. L68470, October 8, 1985).
- Generally, the legitime of the Surviving Spouse is
equal to the legitime of one legitimate child, except
that if he or she concurs with only one legitimate
child, the legitime is reduced to one-fourth (Art.
892,NCC).
- If Surviving Spouse survives only with legitimate
parents or ascendants of the deceased spouse, the
legitime is one-fourth (Art. 893, NCC), the parents or
ascendants take also one-fourth.
- If Surviving Spouse survives only with illegitimate
children of the deceased spouse, the legitime is one-
third, the illegitimate children get one-third divided
equally among them (Art. 894, NCC).
- If Surviving Spouse survives with legitimate parents
or ascendants, and illegitimate children, legitime is
1/8; the parents or ascendants are entitled to one-
half as secondary compulsory heirs, and the
illegitimate children, collectively, entitled to one-
fourth (Art. 899, NCC).
- If Surviving Spouse alone survives, the legitime is
generally one-half, but reduced to one-third if the
marriage was in articulo mortis and the deceased
spouse died within 3 months from the time of
marriage; but restored to one-half if they have been
living together for more than 5 years from the
celebration of the marriage in articulo mortis (Art.
900, NCC). Note that Art. 900 refers only to the
legitime. In intestacy under the same situation, the
Surviving Spouse gets the entire estate.
- The legitime of Surviving Spouse is always taken
from the free portion, but such legitime has priority
over the legitime of the illegitimate children. Thus, the
legitime of the Surviving Spouse is never reduced by
reason of the insufficiency of the estate (Art. 895,
NCC).
4. Illegitimate Children:
- Family Code eliminated the distinction among
illegitimate children; they are now considered only as
one class of children, and given the same rights with
respect to each other.
- Because they are heirs in the direct line, illegitimate
children may be preterited.
- If only illegitimate children survive, the legitime is
one-half (Art. 901,NCC).
- The right of illegitimate children to the legitime is
transmitted to their own descendants, whether
legitimate or illegitimate (i.e., by right of
representation). Note that the iron curtain rule in Art.
992, NCC, will not apply to the descendants of the
illegitimate child.
5. Illegitimate Parents:
- They are compulsory heirs of their illegitimate child
only if the latter is not survived by any descendant
(legitimate or illegitimate) or by an adopted child.
- If they survive with the Surviving Spouse of the
illegitimate child, their legitime is one-fourth, and the
Surviving Spouse takes the other one-fourth (Art.
903, NCC)
6. Illegitimate Ascendants:
- They are not compulsory heirs of the deceased, and
are not entitled to the legitime.
OTHER MATTERS:
- The testator cannot deprive a compulsory heir of the
legitime except thru disinheritance; neither may a
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testator impose any burden, encumbrance, condition,
D 18,000 0 0 - 6,750 11,250
or substitution on the legitime (Art. 904, see also Art.
872). This is because the legitime is a statutory E 18,000 0 0 - 6,750 11,250
entitlement of a compulsory heir.
- The legitime cannot be renounced during the lifetime Total 90,000 67,500 90,000
of the decedent; if he does so, it is void and the rule
of estoppel will not apply to the renouncer (Art. 905).
Better yet, any contract involving future inheritance is NOTE: The amount of P13,500 representing the impairment of
void (Art. 1347, Uson vs. del Rosario) the legitime of A,B&C was deducted from the shares of D&E
- A compulsory heir who receives less than the legitime who (in this instance) inherited from the testator as voluntary
is not preterited (Art. 854), but he is entitled to the heirs. Since the shares of D&E are equal, they also equally
completion of the legitime (Art. 906). And for this shared the burden of making good the impairment of the
purpose, any testamentary disposition that Impairs legitime of A,B &C.
the legitime may be reduced (or even abated) to the
extent that such disposition is inofficious. B. Indirect Impairment:
- When the testator makes testamentary dispositions
IMPAIRMENT OF LEGITIME: whose aggregate value exceeds the disposable free
- Testamentary dispositions that impair or diminish the portion. (See Art.907, NCC
legitime of the compulsory heirs shall be reduced on
petition of the same, insofar as they may be ILLUSTRATION:
inofficious or excessive. (Art. 907, NCC) Testator with a net hereditary estate of P90,000 was survived
- The legitimate may be impaired by the testator either by two legitimate sons (A&B), and his spouse ©. the testator’s
directly or indirectly. will contains two dispositions: (1) He instituted his father (D) to
⅛ of the estate; and (ii) he gave a car valued at P20,000 as
A. Direct Impairment: legacy to his mother (E).
- When a testator gives to a compulsory heir a share of
the inheritance that is short of the legitime due to Assume that the will was admitted to probate:
such compulsory heir (See Art. 906, NCC). ● Under the terms of will, D is entitled to receive P11,250
and E entitled to the car worth P20,000 for a total
ILLUSTRATION: disposition of P31,250.
Testator with a net hereditary estate of P90,000 was survived ● Each of A,B&Cis entitled to receive by way of legitime
by two legitimate sons (A&B), his spouse C, and his legitimate theamount of P22,500, or P67,500 combined.
parents (D&E). In his will, he instituted A,B,C,D&E, as universal ● If the legitime of the compulsory hers and the
heirs to his estate in equal shares. The intention of the testator testamentary dispositions are to be paid in full, the
is to give each of the beneficiaries the amount of P18,000. amount of P98,750 is needed. The net hereditary estate is
only P90,000. Thus, the testamentary dispositions in favor
Assume that the will was admitted to probate: of the father and the mother impaired the legitime of the
● A & B are entitled to a legitime equal to one-half of the compulsory heirs.
estate (P22,500 each) ● Under Art. 907, these testamentary dispositions should be
○ Net Hereditary Estate divided by two, to get reduced by P8,750, the latter amount being inofficious or
the legitime and free portion. Then divide the excessive.
legitime among the legitimate children. ● NOTE: legatees and devisees enjoy a preference over the
○ [90,000 / 2 = 45,000] instituted heirs. Therefore, the relevant reduction should
○ [45,000 / 2 = 22,500] be applied to the share of the father as an instituted heir,
● C is entitled to a legitime equal to that of a legitimate child and only when further reduction is necessary should the
= P22,500 share or the mother, as legatee, be reduced. Thus:
● The equal distribution of the net hereditary estate among Heir Instituti Legitim Impairm Adjust Final
the testator’s legitimate children, surviving and legitimate on e ent ment Shares
parents, as mandated by the testator in his will, impaired
the legitime of the legitimate children and the surviving A 22,500 22,500
spouse. Under Art. 906, the legitimate children (A&B) and
the surviving spouse (C) may demand that their legitime B 22,500 22,500
by fully satisfied. The full satisfaction of the legitime of
A,B&C requires the shares of D&E, voluntary heirs, be C 22,500 22,500
reduced and the amount taken fromD & E shall be added
to the shares of A,B&C to complete the legitime. Thus: D 11,250 - 8,750 2,500

E 20,000 20,000
Heir Instituti Legitim Impairm Adjust Final
on e ent ment Shares Total 11,250 20,000 67,500 - 8,750 90,000

A 18,000 22,500 4,500 4,500 22,500

NOTE: The Impairment of the legitime occurred not because
B 18,000 22,500 4,500 4,500 22,500 the testator deliberately left to the compulsory heirs an
amount less than the legitime, but because the testamentary
C 18,000 22,500 4,500 4,500 22,500 dispositions exceeded the disposable free portion. Hence, the

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impairment of the legitime is indirect and most probably
unintentional on the part of the testator.
RESERVA TRONCAL:
Reserva Troncal
1. Nature – The reserva is a reversionary rule that seeks
to remedy the accidental and unintended transfer of
wealth from one line of the family to the other (i.e., from
the maternal to the paternal, and vice versa), by restoring
the accidentally transferred property to the line from
which it originally came from. Thus, “the ascendant who
inherits from his descendant any property which the latter
may have acquired by gratuitous title from another
ascendant, brother or sister, is obliged to reserve such
property as he may have received by operation of law for
the benefit of relatives who are within the third degree and
who belong to the line from which the property came.”
2. Transaction flow
● The Origin (the original owner of the reservable
property) is an ascendant, brother or sister of the
Prespositus (either a descendant or a brother or
sister of the Origin). So, it is a transmission of
property either from (i) an ascendant to a
descendant, or (ii) from a brother or sister to another
brother or sister. This first transmission is by
gratuitous title (i.e., by donation inter vivos or by
hereditary succession).
● The Prepositus, in his lifetime, is the owner of the
reservable property. He may do whatever he wants
with the property so acquired, provided the action is
legal.
● The Prepopsitus dies leaving behind the reservable
property. Upon his death, the Prepositus is neither
survived by a legitimate or adopted child, nor by any
descendant to whom the reservable property may
pass by succession.
● As a consequence, the hereditary estate of the
Prepopsitus is pushed to the direction of the parents
or ascendants, as secondary compulsory heirs.
● If the Prepositus died intestate, the transmission of
the reservable property to a parent or ascendant (the
Reservor) would be by operation of law. This is the
potentially accidental transfer of wealth from one line
of the family to the other. Specifically, if the Origin of
the reservable property was the mother of the
Prepositus, and the ascendant Reservor who
acquired the reservable property was the father of
the Prepositus, it is patently clear that the reservable
property which originally belonged to the maternal
line accidentally and unintentionally passed to the
paternal line.
● Art. 891 requires the ascendant Reservor to reserve
the reservable property for the legitimate relatives of
the Prepositus within the third degree coming from
the line of the Origin.
3. Elements of the reserva
● A legitimate ascendant (reservor) acquires property
(reservable property) from a legitimate descendant
(prepositus) by operation of law (the second
transmission of property).
● The prepositus in turn acquired the same property by
gratuitous title (the first transmission of property from
another ascendant, brother or sister (origin).
● The reservor is required to reserve the reservable
property.
● The beneficiaries of the reservation are the legitimate
relatives of the prepositus within the third degree
coming from the line of the origin (reservees).
4. Parties to the reserva
● Origin – a legitimate ascendant or brother, or sister
(whether full or half-blood) of the prepositus who is
the original owner of the reservable property. He
transmits the reservable property to the prepositus
by gratuitous title (i.e., by donation inter vivos or by
hereditary succession). The key element of this
transmission is the gratuitous transfer. This is the first
transmission of the reservable property.
● The transmission is gratuitous even if the
prepositus had to pay for certain obligations of
the origin in order to acquire the reservable
property, provided that such payment was not
mandated by the origin (Chua vs. CFI).
● A transmission made through a relatively
simulated sale (which is proved to be a donation
because the consideration was not paid by the
transferee) is a gratuitous transmission.
● A sale for a price that is grossly lower than the
fair value of the property may be construed as a
donation, to the extent of the deficiency of the
purchase price.
● Prepositus – the transferee in the first transmission,
i.e., a descendant, with respect to a legitimate
ascendant-origin, or a brother or sister of the Origin.
● During the lifetime of the prepositus, there is no
reserva. The prepositus is at full liberty to do
whatever he may wish to do with the property.
Thus, if the prepositus disposed the property,
the possibility of it becoming a reservable
property is eliminated.
● The prepositus may therefore forestall the
reserva. If the prepositus should beget a
legitimate child, or should he adopt a child, the
reserva can no longer exist because the only
way for succession to flow in the ascending line
(to the ascendant-reservor) is thru testamentary
succession – which is not a transmission by
operation of law. The prepositus can further
forestall the reserva by disposing the reservable
property by will – again, the transmission would
not be by operation of law and hence not
accidental or unintentional.
● The prepositus controls to a large extent the
occurrence of the reserva.
● Reservor – the ascendant to acquires the reservable
property by operation of law from the prepositus (the
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second transmission of property). This is the
accidental and unintentional transfer of property from
one line to the other. Note however, that in Gonzales
vs. CFI, the court ruled that the accidental transfer is
not an element of the reserva, such that for as long
as the elements are present, the reserve must be
recognized.
● The obligation to reserve the property
commences at this point.
● While the reservor owns the property in his
lifetime, the eventual characterization of the
property as reservable will be determined upon
his death (whether or not there are surviving
reservees).
● The reservor has a registrable title to the
property; thus, he is not just a trustee or a
usufructuary, but an owner (Edroso vs. Sablan)
● While the reservor is the owner of the property,
his title thereto is conditional; in fact, his title is
subject to the double resolutory conditions: his
death and the survival of the reservees. If these
conditions are fulfilled, the reserva comes to life
(Sienes vs. Esparcia). If on his death there are no
surviving and qualified reservees, there is no
reserva and the property shall form part of his
estate and distributed to his heirs.
● If there are qualified surviving reservees, the
property reverts to the latter and the property will
not form part of the estate of the reservor; the
reservor cannot dispose the reservable property
through his will (Florentino vs. Florentino).
● A reservor is always a legitimate ascendant of
the prepositus. An aunt of the prepositus (a
collateral relative) who acquires the property
from the prepositus by operation of law is not a
reservor. She is under no obligation to reserve
the property (Solivio vs. CA). A half-blood sister
who acquired the property from the prepositus is
not a reservor; she is under no obligation to
reserve the property (Lacerna vs. vda. de
Corsino).
● The critical element is that this second
transmission be by operation of law (e.g., by
intestacy, or a transmission of the legitime). The
second transmission should not be by the
voluntary act of the prepositus, or else the
transmission would not be accidental or
unintentional.
FORMULA IN DETERMINING THE LEGITIME:
● Reservees – they are the legitimate relatives of the
prepositus within the third degree coming from the
line of the origin.
● The reservees cannot be descendants of the
prepositus; if they are, there would have been no
reserva because the property would not have
passed to an ascendant by operation of law.
● The determination of the third-degree relatives
must be reckoned by consanguinity.
STEPS IN DETERMINING THE LEGITIME:
5. Governing Laws – two sets of laws govern the
reserva:
● Art. 891 – determines two things: whether or not the
property is reservable, and identification of the group
of persons to whom the property shall be returned
32 WILLS AND SUCCESSION
● Rules of intestate succession – determines who
among those within the group will ultimately receive
the property. The determination of these people is
governed by the law on intestate succession – hence
the theory of delayed intestacy adopted in Padura vs.
Baldovino, and reiterated in de Papa vs. Camacho. (A
discredited theory is the integration theory where all
the relatives of the prepositus within the third degree
coming from the line of the prepositus will share the
reservable property equally. Under the theory of
delayed intestacy, the said relatives will be covered
by the two fundamental rules of intestacy: the rule of
proximity (subject to the right of representation) and
the rule of equal division, such that not all of them will
share the reservable property.)
● In Nieva vs. Alcala, the court ruled that the reserva
runs only in the legitimate family.
6. Encumbrance created by the reserva – The reserva
creates an encumbrance on the reservable property. That
encumbrance (the reservation in favour of the reservees) if
properly registered or otherwise known to the transferee
of such property, follows the property (Sumaya vs. IAC).
7. Reserva in testamentary succession – There can
be a reserva even in testamentary succession. This
happens when the potentially reservable property passes
from the prepositus to the reservor as part of the legitime
of the reservor. When this happens, there are two
conflicting theories on the treatment of the reservable
property: reserva maxima and reserva minima.
8. Extinguishment of the Reserva
● Loss of the reservable property by force majeure; if
the loss is due to the negligence or bad faith of the
reservor, the reservees have a right of action against
the former.
● Waiver of rights by the reservees; but the waiver
must be made only upon the death of the reservor
because prior to that time, the reservees have
nothing to waive.
● Non-survival of the reservees at the time of the death
of the reservor
● Extinctive prescription; 10 years good faith, 30 years
bad faith (Carillo vs. de Paz)
CALCULATION OF THE LEGITIME:
Value of the property at the time of testator’s death
Less (-): Debts and Charges (Pre-existing)
Net Hereditary Estate
ADD (+): Collationable Donations
Theoretical Hereditary Estate
1. Determine the total value of the properties left by the
decedent/testator at the time of his death:
2. Deduct the unpaid debts and other charges against
from the total value of the properties left by the
decedent/testator in order to get the Net Hereditary
Estate (NHE).
 WILLS AND SUCCESSION
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3. To get the Theoretical Hereditary Estate (THE), add ● Divide the theoretical hereditary estate into two
the value of all donations given by the collationable (representing the strict legitime and the free portion):
donations to the NHE. (See Art. 908, NCC) [1,000,000/2 = 720,000]
● Divide the Strict Legitime among the compulsory heirs
(A,B&C): [720,000/3 = 240,000]
NOTES:
● The value of property left by the testator is calculated at the
● The Surviving Spouse is entitled to the share of 1
time of his death – not the acquisition cost, nor any legitime but it is to be taken from the Free portion.
speculative value. The basis of valuation is the fair market Hence, 720,000 - 240,000
value of the property. Note the exclusions from the estate of Distribution is illustrated as follows:
the decedent.
Theoretical Hereditary Estate: 1,440,000
● Debts and charges include the testator’s unpaid and
demandable contractual as well as statutory obligations (e.g.,
the estate tax). Exclude those indicated in the will (legacies, Strict Legitime 720,000
devises, etc.).

● The net hereditary estate is the actual estate to be distributed Free Portion 720,000
to the heirs.

● Add the collationable donations to get the theoretical Legitime of Compulsory Heirs: A 240,000
hereditary estate.

● Compute the legitime on the basis of the theoretical B 240,000

hereditary estate.

C 240,000
ILLUSTRATION:
Facts: D, the decedent, was survived by his three ;legitimate
children (AB,&C), and by his surviving spouse (S). In his S 240,000
lifetime, D gave a donation of P500,000 to a stranger (X)/ At
the time of D’s death, he left properties worth P1,000,000 and
debts of P10,000. The estate estate tax due on his estate is Total Legitime: [240,000 x 4] 960,000
P50,000.

Answer: Disposable Free Portion: 480,000

1. Calculation of the Theoretical Hereditary Estate (THE):
● Value of Properties at the Time of D’s death:
P1,000,000. After the legitime shall have been determined, the theoretical
● Total Value of D’s debts and charges: (10,000 + 50,000) hereditary estate ceases to have any further relevance. The
= 60,000 actual distribution of D’s estate to the heirs shall be based on
● The Net hereditary Estate is: (1,000,000 - 60,000) = the net hereditary estate.
940,000
● The Collationable Donation is 500,000, representing D’s In the above example, D’s net hereditary estate is P940,000.
donation to X However, after collating the donation to X, the total legitime
● The theoretical Hereditary Estate is : (940,000 + due to the compulsory heirs is P960,000. It is clear that the
500,000) = 1,440,000 D’s donation of P500,000 to X impaired the legitime of the
Illustrated as follows: compulsory heirs by P20,000. The donee X must, therefore,
Value of Properties at the return to the estate of D in the amount of P20,000 so that the
1,000,000 legitime of the compulsory heirs could be paid in full. Thus;
Time of D’s death
Net Hereditary Estate 940,000
Less: Unpaid debts
10,000
(ADD:) Reimbursement from X 20,000
60,000
Estate tax Resources Available for Payment of Legitime 960,000
50,000

Total Legitime of Compulsory Heirs 960,000

Net Hereditary Estate
940,000
Disposable Free Portion 0

Add: Collationable
500,000 Without collation, the legitime of the compulsory heirs would
Donations
have been calculated as follows:
Theoretical Hereditary
1,440,000 Net Hereditary Estate: 940,000
Estate

2. Calculation of the Legitime of the compulsory heirs: Strict Legitime 470,000

WILLS AND SUCCESSION 33

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Free Portion 470,000
Legitime of Compulsory Heirs: A 156,666.66
[470,000/3 = 156, 666.66]
B 156,666.66
C 156,666.66
S the value of all donations inter vivos made by a decedent in his
156,666.66
Total Legitime: [156,666.66 x 4] 626,666.64
Disposable Free Portion:
313,333.36
[156,666.66 - 470,000]
Notice the effect of collation on the legitime of compulsory
heirs. Without collation, the diminution of D’s estate resulting
from the donation to X reduced significantly the legitime of the
compulsory heirs. this is because the legitime was calculated
solely on the basis of what is left of D’s estate upon his death.
Without collation, D could have diluted the legitime even
further, or even further, or even deprived his compulsory heirs
thereof, by simply giving away his possession in his lifetime.
Art. 752 (NCC) prevents this circumvention because it
provides that “x x x no person may give or receive, by way of
donation, more than he may give or receive by will.”
DEFINITION OF COLLATION:
- It is the process of bringing back to the estate of a
decedent the things he had gratuitously disposed or
donated in his lifetime, or their values at the time they
were given, without regard to subsequent
appreciation or depreciation in value, or even total
loss of the property donated (Art. 1071, NCC), so that
they may be accounted for in the computation of the
legitime of compulsory heirs (Art. 1061, NCC).
WHEN COLLATION IS IRRELEVANT:
1. if the testator has no surviving compulsory heir
(Arellano vs. Pascual) (collation is required in order to
preserve the legitime), and
2. If the only donee is also the sole compulsory heir of
the donor (which makes collation an idle process).
TWO KINDS OF COLLATION:
1. Collation in Kind:
- Requires the donee to return the donated thing, or to
make cash reimbursement to the estate; it is resorted
to if the donation impaired the legitime of the
compulsory heirs (Art. 1061, NCC)
2. Collation in Value:
- Value of the donation is notionally added back to the
net hereditary estate of the donor-decedent solely for
the purpose of calculating the legitime of the
compulsory heirs. If the donation did not impair the
legitime, the donee is not required to return the
donated thing (Art. 1071, NCC)
PURPOSE OF COLLATION:
34 WILLS AND SUCCESSION
a. The preservation of the legitime of compulsory heirs
by making sure that the donations made by the donor
in his lifetime did not impair the legitime; and
b. If the donation was given to a compulsory heir,
collation is meant to equalize the shares of the
compulsory heirs. In sum, a donation to a
compulsory heir (unless declared non-collationable)
is not meant to give an advantage to the donee; the
donation is considered as an advance of the legitime.
As a rule, collation is merely a notional accounting process where
lifetime is notionally added back to the net assets (net of liabilities)
he left upon his death. The purpose is merely to compute the
legitime. But, if upon computing the legitime it should turn out that
the actual net estate is not sufficient to pay the legitime in full, then
collation in value (notional accounting) moves to collation in kind
(collation in kind).
VALUATION OF COLLATIONABLE DONATIONS:
- The collationable value of a donation is the fair
market value of the gift at the time of the donation.
(Art. 1071, NCC).
- However, for practical reasons, the value of the
donation as indicated in the relevant deed or
otherwise in the donor's tax return is accepted for the
purpose of collation.
RELEVANCE OF COLLATION:
- The collation of donation is necessary only if the
decedent is survived by compulsory heirs. If there are
no surviving compulsory heirs, no part of the
hereditary estate is required to be set aside for the
legitime; no legitime can be impaired; the entirety of
the net hereditary estate is freely disposable by the
decedent thereby making collation totally irrelevant.
Article 842. One who has no compulsory heirs may
dispose by will of all his estate or any part of it in favor of
any person having capacity to succeed.
One who has compulsory heirs may dispose of his estate
provided he does not contravene the provisions of this
Code with regard to the legitime of said heirs. (NCC)
LIMITATIONS ON THE POWER TO GIVE DONATION:
- A person cannot donate more than what he can give
by will. (Art. 752, NCC; Vda. De Tupas vs. Br. XLIII
RTC Negros Occidental, GR no. L-65800, October 3,
1986)
ESTATES WITHOUT DISPOSABLE FREE PORTION:
- Depending on the composition of the surviving
compulsory heirs, it is possible that the estate of a
deceased person, regardless of its value, may be; (1)
barely sufficient to pay the legitime of all compulsory
heirs. (eg. One legitimate child, surviving spouse, and
one illegitimate child), or (2) insufficient to pay in full
the legitime of some of the surviving compulsory
heirs (eg. One legitimate, surviving spouse, two or
more illegitimate children). In these cases, all
donations (regardless of value) made by the
decedent in his or her lifetime would be inofficious.
EFFECTS OF COLLATION:
a. Collation of donations to compulsory heirs;
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b. Collation of donations to strangers
A. COLLATION OF DONATIONS TO COMPULSORY HEIRS:
Collation of Donations to Compulsory Heirs:
- If the collationable donation was given to a
compulsory heir who concurs with other compulsory
heirs, collation equalizes the respective shares of all
compulsory heirs in the hereditary estate.
- Donations to compulsory heirs is generally
chargeable to the legitime of the donee, except if the
donor expressly stipulated in the relevant deed that
the donation is not collationable - in which case, the
donation is charged to the disposable free portion.
ILLUSTRATION:
A, the decedent, died with properties valued at P200,000 and debts
amounting to P20,000. His estate is exempt from estate tax. He
was survived by his legitimate sons B and C. In his lifetime, A
donated P50,000 to B. A died intestate.
Without collation, the net hereditary estate of A would be P180,000
(Assets worth P200,000 minus debts of P20,000) which shall be
divided equally between his sons (B&C) equally at P90,000 each.
However, B had received from A by way of donation the amount of
P50,000 in Art. 909, NCC, donations given to children are
chargeable to their legitime, unless the donor specifically stipulated
in the relevant deed that the donation is exempt from collation, in
which case the donation to the compulsory heir shall be charged to
the disposable free portion. In the instant case, the donation to B is
not specifically exempt from collation. Therefore, it shall be treated
as an advance of B’s legitime. The estate of A shall there be
distributed by intestacy as follows:
Value of Properties Left by A 200,000
Less (-): Debts (20,000)
Net Hereditary Estate 180,000
Add (+): Collationable Donation 50,000
Theoretical Hereditary Estate 230,000
Calculation of Legitime under Art. 908, NCC:
Theoretical Hereditary Estate 230,000
Strict Legitime [230,000 / 2 = ] 115,000
Disposable Free Portion [230,000 / 2 = ] 115,000
Calculation of the Total Legitime Payable to B & C:
Legitime of B [115,000 / 2 = ] 57,500
Less (-): Collationable Donation 50,000
Balance of legitime Payable to B 7,500
Legitime of C [115,000 / 2 = ]
57,500
Less (-): Collationable Donation
0
Legitime Payable to C
57,500
Total Legitime Payable to B & C: [7,500 + 57,500 = ]
67,000
Distribution of the Disposable Free Portion by Intestacy:
Amount of the Disposable Free Portion 115,000
Intestate Share of B [115,000 / 2 = ] 57,500
Intestate Share of C [115,000 / 2 = ] 57,500
ANSWER: Distribution of the Estate of A:
Heir Legitime Intestate Share Total:
B 7,500 57,500 65,000
C 57,500 57,500 115,000
Total 65,000 115,000 180,000
Note: By adding the P50,000 donation to B’s share, the total
amount received by him would be P115,000. thus, B&C effectively
shared the estate of A equally.
B.COLLATION OF DONATIONS TO STRANGERS:
Collation of Donations to Compulsory Heirs:
- If the collationable donation given to a stranger,
collation protects the legitime of the compulsory heirs
by limiting the value of the donation to that which
can be absorbed by the disposable free portion.
- Donations given to children shall be charged to their
legitime. Donations made to strangers shall be
charged to that part of the estate of which the
testator could have disposed by his last will. (Art.
909, NCC)
ILLUSTRATION:
A, the decedent, died with properties valued at P100,000. and
debts amounting to P10,000 His estate is exempt from estate tax.
He was survived by his legitimate sons B&C. In his lifetime, A gave
X (friend) a donation of P100,000. A died intestate.
THE INSOLVENT ESTATE:
- The estate of a deceased person is insolvent if the
aggregate outstanding obligations of the testator
(decedent) exceed the value of the assets left by him.
[Testator’s Obligation > Testator’s Assets = Insolvent]
ILLUSTRATION:
FACTS: The decedent X died intestate survived by his two
legitimate children (A&B). He left properties valued at
P100,000 and debts amounting to P200,000. In his lifetime, X
donated P50,000 to A. The estate of X is factually insolvent
because the unpaid liabilities exceed the value of the assets.
WILLS AND SUCCESSION 35
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Value of Properties Left by X 100,000
Less (-): Outstanding debts -200,000
Hereditary Estate -100,000
ANSWER: In this case, the unpaid creditors will simply divide
amongst themselves the residual estate of P100,000 in
accordance with the rules on preference of credits.
NOTE:
● The unpaid balance due to the creditors in the amount of
P100,000 is not recoverable from A and/or B as heirs of
the decedent.
○ In Art. 774 (NCC), the liability of the heirs for the
debts of the decedent is limited to the value of the
hereditary estate. The heirs do not incur a
personal obligation to pay the debts of the
decedent from their own personal resources.
● General Rule: the creditors cannot assert their claims
against persons who had received donations from the
decedent, particularly if the donations antedated the
unpaid debts. EXCEPTIONS:
a. if the donation was made after the decedent had
incurred the obligations to the creditors, a
presumption may arise that the gratuitous
conveyance was made by the donor in fraud of his
creditors. (See Art. 1387, NCC). [NOTE: If a donation
falls under Art.1387, par. 1, NCC, a creditor may,
within the period provided by law, institute an action
for rescission of the donation. Rescission would be
premised on the presumption that the gratuitous
conveyance of property made by the donor was the
reason the donor could not meet his payment]
b. Even if the donor gave the donation prior to incurring
the debt, an unpaid creditor may yet challenge the
donation if he can prove that the donor’s undisclosed
intention in giving the donation was precisely to
defraud the future creditors by deliberately disabling
himself from fulfilling his obligation towards the latter.
Example:
1. If the creditors were able to Rescind the Donation:
Creditors have a period of 4 years from the time the donation was
made to seek the rescission of the said donation (Art. 1389, NCC).
In the example aboved, if the creditors of X are successful in
rescinding the donation given to A, the hereditary estate of X will be
calculated as follows:
Value of the Properties Left by X 100,000
Add (+): Value of the Rescinded Donation 50,000
to A
Adjusted Value of Properties Left by X 150,000
Lees (-): Outstanding Debts -200,000
Hereditary Estate -50,000
The recovery by the creditors will improve with the rescission of the
36 WILLS AND SUCCESSION
donation to A. The unrecoverable credit is reduced from P100,000
to P50,000.
2. If the creditors were not able to Rescind the Donation:
Assuming that the donation to A is not rescinded and
therefore beyond the reach of the unpaid creditors, the
same must nonetheless be brought to collation by A for the
purpose of determining the legitime of the compulsory heirs
(A&B). In fact, B has a right to demand the collation of the
said donation. The objective of collation is to allow B to
recover his legitime. For this purpose, the net hereditary
estate of X is Zero; the unpaid claims of the creditors are
ignored since they have no right to enforce their claims
against the donation to A. Thus:
Value of property Left by X 100,000
Less (-): Outstanding Debts 200,000
Net Hereditary Estate 0
Add (+): Collationable Donation to A 50,000
Theoretical Hereditary Estate 50,000
Calculate the Legitime:
Theoretical Hereditary Estate 50,000
Strict Legitime [50,000 / 2 = ] 25, 000
Disposable Free portion [50,000 / 2= ] 25 000
Legitime of A [25,000 / 2 = ] 12,500
Legitime of B [25,000 / 2 = ] 12,500
Total Legitime 25,000
Therefore, A must pay and deliver to B P12,500 as B’s
legitime. Notice that all properties left by the decedent are
earmarked for the creditors, the estate being insolvent. iN
SUM, a is left with a reduced donation of P37,500 which is
accounted for as follows; (a)P12,500 as A’s legitime; and
(b)P25,000 representing the entire disposable free portion of
the decedent’s estate. In turn, B recovers his legitime of
P12,500.
IMPUTATION OF DONATION:
- After collating the donation as required in Art. 908,
NCC, the donations must be imputed to the relevant
accounts.
- Donations given to children are presumed to be
advances on their legitime, unless in the relevant
deeds the donor expressly stipulated that the
donations are not collationable. In these cases, the
donations to children shall be charged to the
disposable free portion. On the other hand, donations
to strangers (ie. persons who are not compulsory
heirs of the donor) are always chargeable to the
disposable free portion. (Art. 909, NCC)
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Examples:
1. A&B have two legitimate children (C&D). A gave C a 3. A&B have two legitimate children (C&D). In his lifetime, A
donation of P100,000. A died with a net hereditary estate gave X (a friend) a donation of P100,000. A died with a net
of P500,000. The legitime is as follows: estate of P500,000. the legitime is as follows:
Vale of properties Left by the Decedant 500,000 Value of Properties Left by the Decedent 500,000

Less (-): Debts and Charges 0 Less (-): Debts and Charges 0

Net Hereditary Estate 500,000 Net hereditary Estate 500,000

Add (+): Collationable Donation to C 100,000 Add (+): Collationable Donation to X 100,00

Theoretical Hereditary Estate 600,000 Theoretical Hereditary Estate 600,000

Strict Legitime: [600,000 / 2 = ] 300,000 Strict Legitime 300,000

Free Portion: [600,000 / 2 = ] 300,00 Free Portion 300,000

From the free portion shall be paid the legitime of the surviving Distribution of Legitime:
spouse B which is equal to the legitime of 1 legitime child. Heir Legitime Donation to X
Thus, the distribution of legitime will be as follows:
Heir Legitime (Donation) Net Legitime Net Estate C 150,000

C 150,000 -100,000 50,000 D 150,,000

D 150,000 150,000 B 150,000

B 150,000 150,000 X 100,000

Subtotal: 450,000 -100,000 350,000 350,000 Subtotal: 450,000 100,000

Disposable Free Portion + 150,000 Disposable Free Portion of Donation to X 50,000

Net hereditary Estate 500,000 Net Hereditary Estate 500,000

The imputation of the donation to C’s legitime equalized the
respective shares of C and D in the strict legitime.
2. On the same facts above but with the modification that the
relevant deed of donation stipulated that the donation to C
is not collationable, the legitime of the compulsory heirs is
as follows:
C 150,000
D 150,000
B 150,000
Total: 450,000
Disposable Free Portion 50,000
Net Hereditary Estate: 500,000
NOTE: After deducting the legitime of the surviving spouse
from the portion, the donation to X was charged thereto,
thereby leaving a disposable balance of P50,000.00.
IMPUTATION OF DONATIONS TO ILLEGITIMATE
CHILDREN:
- Donations made by either parent to an illegitimate
child are imputable to the legitimate of such
illegitimate child with respect to the donor-parent.
(Art. 910, NCC)
- Should they exceed the portion that can be free
disposed of, they shall be reduced in the manner
prescribed by this Code.
- The process of imputing such donation to the
legitime of the illegitimate child is the same as the
imputation of the donations to the legitime of a
legitimate child under Art. 909, NCC.

Article 911. After the legitime has been determined in accordance

The donation to C is not considered as an advance on his
legitime and shall therefore be charged to the disposable free
portion [P150,000 - P100,000 = P50,000]. Because the donor
specifically mandated that the donation was not collationable,
C enjoyed an advantage over the ther compulsory heirs.
with the three preceding articles, the reduction shall be made as
follows:
(1) Donations shall be respected as long as the legitime can
be covered, reducing or annulling, if necessary, the
devises or legacies made in the will;

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(2) The reduction of the devises or legacies shall be pro rata,
without any distinction whatever.
If the testator has directed that a certain devise or legacy
be paid in preference to others, it shall not suffer any
reduction until the latter have been applied in full to the
payment of the legitime.
(3) If the devise or legacy consists of a usufruct or life
annuity, whose value may be considered greater than that
of the disposable portion, the compulsory heirs may
choose between complying with the testamentary
provision and delivering to the devisee or legatee the part
of the inheritance of which the testator could freely
dispose. (NCC)
- Art. 911 applies to the order of reduction of
abatement of donations inter vivos by the testator in
his lifetime, and also the reduction or abatement of
dispositions made in his will.
ORDER OF REDUCTION OR ABATEMENT OF DONATIONS
AND TESTAMENTARY DISPOSITIONS:
- The order of reduction or abatement under Art. 911,
NCC is relevant only if:
1. the testator is survived by compulsory hirs;
and
2. the donations inter vivos given by the
testator in his lifetime and/or the legacies
and devises provided in his will cannot be
accommodated after payment of the
legitime of the compulsory heirs.
b. If the balance is insufficient to pay these legacies
and devises - the same shall be prorated among
them.
ILLUSTRATION:
Facts: The testator was survived by the following compulsory
heirs; (1) Four Legitimate Children (A,B,C&D); (2) Two
Illegitimate Children (E&F); and his surviving spouse (G). In his
lifetime, the testator gave the following donations Inter Vivos;
(a) To A&F, P10,000 each, expressly declared as non-
collationable; (b) To B&E P20,000 each; and (c) To H (a friend),
P20,000. In his will, the testator gave the following legacies; (i)
To C, P20,000; and (ii) To D, P40,000. In addition, he gave his
faithful driver, I, a preferred devise valued at P50,000. upon
the testator’s death, the value of his properties amounted to
P500,000, with unpaid credit card bill amounting to P25,000,
and Estate tax liability amounting to P15,000. Liquidate the
Estate:
1. Determine the Net Hereditary Estate:
Value of Properties Left by the Testator 500,000
Less: Unpaid Debts 25,000
Estate Tax 15,000
40,000
Net Hereditary Estate 460,000

Rules or Process of Reduction or Abatement:

1. Calculate the Theoretical Hereditary Estate (T.H.E.) which 2. Determine the Theoretical Hereditary Estate and Use the
will be the basis for determining the legitime of the same to Calculate the legitime of the compulsory heirs:
compulsory heirs; Net Hereditary Estate 460,000
2. From the T.H.E., pay the legitime of the primary
compulsory heirs. The Collationable donations to them
shall be charged to their legitime. Thereafter, the balance Add: Value of All Donations 80,000
represents the free portion. The Free portion shall be paid
Theoretical Hereditary Estate 540,000
the legitime of the concurring heirs (The Surviving Spouse
& Illegitimate Children), if there any;
3. Thereafter: Strict Legitime 270,000
a. If the legitime of the concurring compulsory heirs
(Surviving spouse and/or Illegitimate Children) is
EQUAL to the free portion (or if there still remains a Free Portion 270,000
disposable free portion) - It is confirmed that the
donations made by the decedent (testator) in his
lifetime did not impair the legitime of the compulsory
heirs. All donations shall be honored. NOTE:
b. If the legitime, as calculated in accordance with Art. - To get the Strict Legitime and free Portion, divide the
908, NCC, is GREATER than the Net Hereditary T.H.E. by two. [540,000 / 2 = 270,000]
Estate - The donation has impaired the legitime of the - The Value of All Donation are as follows:
compulsory heirs. Therefore, the donation shall be Donation To: Amount
reduced or abated, beginning from the most recent
ones going back to the older ones (last-in-first-out) A 10,000
until the legitime is fully satisfied.
4. If there is a Positive Balance comprising the disposable F 10,000

free portion after payment of the legitime of the Surviving

B 20,000
Spouse and the Illegitimate Children - The same shall be
used to pay the preferred legacies and devises. E 20,000
5. Note:
a. If after payment of preferred legacies and devises H 20,000
there remains a balance of the disposable free
portion - the same shall be applied to all ordinary Total: 80,000
legacies and devises.

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Disposable Free Portion 95,000
3. Calculate the Legitime of the Compulsory Heirs:
A 67,500
NOTE:
- The donations to the Compulsory Heirs (P10,000 to
B 67,500 A, and P10,000 to F) were expressly declared as
Non-Collationable. The donation to H (P20,000) is a
Legitimate Children donation to a stranger. All these donations (totalling
C 67,500 to P40,000) are chargeable to the Disposable Free
Portion.
- Note that despite these charges to the free
D 67,500 portion, the legitime of the compulsory heirs
could be paid in full.
- Therefore, the Non-Collationable Donations to A&F
E 33,750
and the Donation to H are honored. After the
payment of the adjusted legitime of the compulsory
Illegitimate children
heirs, the net hereditary estate has a positive balance
F 33,750
of P95,000

Surviving Spouse G 67,500 6. From the Disposable free portion, pay the preferred devise
to I:
Gross Legitime 405,000 Disposable Free Portion 95,000

Preferred Devise to I - 50,000

Net Hereditary Estate 460,000
Balance of the Disposable Free Portion 45,000

NOTE: 7. Pay the ordinary legacies and devises:

- The Strict legitime shall be divided equally among the
Balance of the Disposable Free Portion 45,000
4 legitime children. [270,000 / 4 = 67,500]
- From the free portion shall be paid the legitime of the Total Ordinary Legacies and Devises to C and D 50,000
Surviving Spouse and the illegitimate Children.
- The Illegitimate children are entitled to half of the Deficit - 5,000
legitime of the Legitimate Children. [67,500 / 2 =
33,750]
- Note that while the legitime was calculated based on NOTE:
the T.H.E., the payment of legitime shall be sourced - Since there is a deficiency of P5,000, the balance of
from the net hereditary estate. the disposable free portion shall be pro-rated
between C and D at the rate of 1:2, such as:
4. Adjust the Legitime of Compulsory Heirs by imputing the Legatee Original Amount Reduced Amount
collationable donations to the legitime of the relevant
donees: C 20,000 15,000

Heir Gross Legitime Collationable Donation Adjusted Legitime D 40,000 30,000

A 67,500 67,500 Total 45,000

B 67,500 - 20,000 47,500

C 67,500 67,500 8. The final distribution of the estate shall be as follow:

D 67,500 Heir Adjusted Legitime Legacies & Devises Total

67,500

E 33,750 - 20,000 A 67,500 67,500

13,750

B 47,500 47,500
F 33,750 33,750

G 67,500 C 67,500 15,000 82,500

67,500

D 67,500 30,000 97,500

Total 405,000 - 40,000 365,000

E 13,750 13,750
5. Honor the Non-Collationable donations and the donations
to strangers which are chargeable to the free portion. F 33,750 33,750

Net Hereditary Estate 460,000 G 67,500 67,500

Total Legitime 365,000 I 50,000 50,000

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Total 365,000 95,000 460,000
Note: In intestate succession, the order of preference with respect
to legacies and devises is governed by Art. 950, NCC
REDUCTION OF PARTLY INOFFICIOUS DEVISES:
Article 912. If the devise subject to reduction should consist of real
property, which cannot be conveniently divided, it shall go to the
devisee if the reduction does not absorb one-half of its value; and in
a contrary case, to the compulsory heirs; but the former and the
latter shall reimburse each other in cash for what respectively
belongs to them.
The devisee who is entitled to a legitime may retain the entire
property, provided its value does not exceed that of the disposable
portion and of the share pertaining to him as legitime.
- Art 912, NCC applies when the real property subject
matter of the devise CANNOT BE DIVIDED. The rule
states that if the reduction does not absorb 1⁄2 of its
value, it shall go to the devisee. If the reduction
absorbs 1⁄2 of the value, then it shall go to the
compulsory heirs. Either way, the person who will
receive the real property (devise or compulsory heir)
will have to reimburse the other in cash.
Article 913. If the heirs or devisees do not choose to avail
themselves of the right granted by the preceding article, any heir or
devisee who did not have such right may exercise it; should the
latter not make use of it, the property shall be sold at public auction
at the instance of any one of the interested parties. (NCC)
- Art. 913, NCC, applies when neither the devisee nor
any of the compulsory heirs opted to exercise the
right of keeping (or getting) the devise and
reimbursing the other as provided in Art 912.
However, if any heir fails to exercise this right, the
rule states that the real property shall be sold at
public auction, the proceeds of which will be used to
pay the deficiency of the legitime of the compulsory
heir.
ILLUSTRATIONS:
1. A testator who left a Net Hereditary Estate of P700,000
was survived by two legitimate children (A&B), and his
spouse (S). The sole disposition in the testator’s will is a
devise of a condominium unit valued at P500,000 to his
friend D. The theoretical hereditary estate (inclusive of the
condominium unit) is P1,200,000.
Assuming the will is admitted to probate, the devise given
to D will impair the legitime of the compulsory heirs
because A,B and S are each entitled to a legitime of
P300,000 (collectively P900,000), leaving a disposable free
portion of only P300,000. Thus, the devise is inofficious by
P200,000. The condominium unit is essentially indivisible.
Under Art. 912, par. 1, NCC, the condominium unit shall
be adjudicated to D because the reduction will not absorb
one-half of its value. However, D must reimburse A,B and
S the amount of P200,000 in order to complete the
legitime of the latter. Thus:
Beneficiary Legitime Devise Funding
40 WILLS AND SUCCESSION
A 300,000 To be funded as follows:
700,000 from the estate of the testator
200,000 cash reimbursement from D
B 300,000
S 300,000
D Condo Reimburse A, B and S 200,000
Unit
2. A testator who left a Net Hereditary Estate of P500,000
was survived by two legitimate children (A&B), and his
spouse S. The sole disposition in the testator’s will is a
devise of a condominium unit valued at P500,000 to his
friend D. The theoretical estate is P1,000,000.
Assuming the will is admitted to probate, the devise given
to D will impair the legitime of the compulsory heirs
because A,B and S are each entitled to a legitime of
P250,000 (collectively P750,000), leaving a disposable free
portion of only P250,000. The devise (valued at P500,000)
is inofficious by P250,000, or exactly one-half its value.
The condominium unit is essentially indivisible. The
condominium unit shall be given to the compulsory heirs,
but the latter shall reimburse D P250,000.
Beneficiary Legitime Devise Funding
A 250,000 To be funded as follows:
500,000 condominium unit
250,000 cash from the estate
B 250,000
S 250,000
D 250,000 To be funded by the estate
3. A testator who left a net hereditary estate of P900,000 was
survived by two legitimate children (A&B), and his spouse
S. The sole disposition in the testator’s will is a devise of a
condominium unit valued at P300,000 to A. The theoretical
hereditary estate, inclusive of the condominium unit is
P1,200,000.
Assuming the will is admitted to probate, the devise given
to A will not impair the legitime of B and S. Each of the
compulsory heirs A,B and S are entitled to a legitime of
P300,000 (collectively P900,000), leaving a disposable free
portion of P300,000. Thus:
Beneficiary Legitime Devise Total
A 300,000 Condo Unit 600,000
B 300,000 300,000
S 300,000 300,000
Total: 900,000 300,000 1,200,000
DEVISEE IS ALSO A COMPULSORY HEIR:
- A devisee who is likewise a compulsory heir is
entitled to the devise in addition to the legitime. Art.
912, par. 2, NCC, envisions this situation. Thus, in
determining the devisee’s right to retain the property
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Morillo Quick Reviewer
whose value exceeds the disposable free portion, the
excess of the value of the devise may be imputed to
the legitime of the devisee.
LACK OF INTEREST TO ACQUIRE THE PROPERTY:
- If the aggrieved heir(s) who is/are entitled to exercise
the right to retain the property choose(s) not to
exercise the right, the devisee, who under Art.912,
NCC, did not have such right,may exercise the same
provided he reimburses the aggrieved compulsory
heir(s) the deficit of the latter’s legitime. On the other
hand, if the devisee who is entitled to exercise the
right of retention chooses not to exercise it, the
heir(s) whose legitime was impaired may exercise the
right.
- If neither one is interested to acquire the property,
then any other heir or devisee may exercise the right.
This essentially means that such other heir or devisee
shall pay the value of the property; (i) to the
compulsory heirs, to the extent of the impairment of
the legitime; and (ii) the balance to the devisee.
- In the event no one is interested to exercise the right
to acquire the property, the same shall be sold at a
public auction and from the proceeds, the aggrieved
compulsory heir(s) shall be entitled to the completion
of the legetime, and the balance shall be paid to the
devisee.
Article 914. The testator may devise and bequeath the free portion
as he may deem fit. (NCC)
LIMITATIONS OF ART. 914:
1. A testator may not delegate the exercise of
testamentary discretion to a third person (Art. 784,
NCC);
2. A testator who has no compulsory heir may dispose
by will all or any part of his estate, but only in favor of
persons with capacity to succeed (Art. 842, NCC). In
Art. 1031, NCC, a testamentary disposition in favor of
a disqualified person is void;
3. If a testator should devise or bequeath the free
portion to a fideicommissary substitution, he must
comply with the limitations provided in Art. 863
(NCC). The testator may not issue secret instructions
in relation to the application of any property forming
part of his estate (Art. 867, NCC);
4. A testator cannot declare his estate or any part
thereof inalienable for a period in excess of 20 years.
(Art. 870, NCC);
5. A testator cannot subject a testamentary disposition
to an impossible suspensive condition or to an
absolute condition prohibiting a first or subsequent
marriage (Art. 873-874, NCC);
6. A testator is prohibited from making a dispocicion
captatoria (Art. 875, NCC)
7. A testamentary disposition in favor of a common-law
spouse is void. (Art. 739, NCC)
PRESUMPTIVE LEGITIME:
Presumptive Legitime – awarded in cases where the children
would have been legitimate were it not for the defect of the
marriage; it is an advance of the hereditary share of the
children who, therefore, can no longer be preterited. The
presumptive legitime shall be adjusted upon the death of the
parents; it may be increased or decreased as warranted; but
the problem arises if there is a need to return a part of the
presumptive legitime. It is a collationable advance
SECTION 6 - DISINHERITANCE
Disinheritance
1. Definition and concept – It is a testamentary act of
the testator, executed in the form of a will or otherwise
contained in a will, whereby a compulsory heir is
expressly denied or deprived of his legitime for a cause
provided by law. Disinheritance is the only legal way of
denying a compulsory heir of his legitime. The mere
omission of a compulsory heir in the will is not tantamount
to disinheritance; it could, however, be a case of
preterition depending on compliance with the requisites of
854. A disinheritance results in the total exclusion of a
compulsory heir from the inheritance.
2. Requisites of a Valid Disinheritance
● The disinherited heir is a compulsory heir; therefore, it
includes only a child or descendant, a parent or
ascendant, and a spouse. No collateral relative may
be disinherited because they are not entitled to the
legitime.
● The disinherited heir must be identified, or at least
described, with certainty. The identification of the
disinherited heir cannot be left to speculations. If
there is a doubt as to identity which cannot be
resolved with certainty, the disinheritance cannot be
given effect. Note that disinheritance is a penalty for
an unworthy compulsory heir
● The disinheritance must be for a cause specified by
law. Being punitive in character, and given that it
results in the deprivation of a statutory entitlement
(the legitime) the ground for disinheritance must have
statutory basis.
● The disinheritance must be stated in a formally valid
will because it is a testamentary disposition. The will
must be admitted to probate, before evidence can be
received to prove the validity of the ground cited by
the testator. If the will is denied probate, the
disinheritance is void.
● The disinheritance must be express. The law does
not sanction implied disinheritance, particularly
because the ground must be specified. Remember,
disinheritance is punitive in nature.
● The ground for disinheritance must be true and
certain – meaning, the ground must exist at the time
of the execution of the will where the disinheritance is
made, and, the ground must be proved, if denied by
the disinherited heir. The burden of proof lies on the
heirs who wish to enforce the disinheritance. If the
ground cited requires conviction, there is basis for
disinheritance provided the offense has been
committed at the time of the execution of the will
where the disinheritance is made, but the efficacy will
have to await the conviction (e.g., attempt on life).
● Disinheritance must be total; no such thing as partial
deprivation of the legitime.
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Morillo Quick Reviewer
It is therefore clear that disinheritance can only occur in testator to make a 919(4)
testamentary succession. But let there be no mistake, will, or to change (ii) a parent or ascendant under
there are 5 grounds for disinheritance which are also one already made Art. 920(5)
grounds for incapacity by reason of unworthiness (1032). (iii) a spouse under Art. 921(3)
Therefore, even if a compulsory heir was not disinherited
under any of these concurring grounds, there is no 3. Void Disinheritance
certainty that he can inherit because of the application of ● Disinheritance without specification of the cause –
1032. disinherited heir will be deprived of his right to
challenge the ground for disinheritance
Further, if a compulsory heir is disinherited, any ● Disinheritance of a cause which, if contradicted, is
testamentary disposition in his favour in a prior will is not proved
revoked automatically. If he is deprived of legitime to ● Disinheritance for a cause not specified by law
which he is entitled as a matter of law, there is no basis to
grant him any benefit which is not due him by law, and Consequence: annulment of the institution but only to
which was given him out of the generosity of the testator. the extent necessary to allow the disinherited heir to
recover his legitime. (Note the difference with the total
Five Common Grounds for Incapacity due to annulment of the institution of heirs in case of preterition
Unworthiness and Disinheritance [854].) This is the limit of recovery – legitime only, nothing
Incapacity under Grounds to Disinherit under Arts. more. The theory is that if the testator did not want to give
Article 1032 919, 920, 921 him the legitime, there is no basis to assume that the
Paragraph 1 – Abandonment of children, inducing testator would have wanted to give him more than that.
Abandonment of daughter to lead a corrupt or immoral Legacies and devises remain valid to the extent that they
children, inducing life, attempting on her virtue – a ground do not impair the legitime, or to the extent the legitime of
daughter to lead a to disinherit an ascendant under Art. the disinherited heir can be recovered without touching
corrupt or immoral 920(1); also a ground to disinherit a those legacies and devises (annul the institution first,
life, attempting on spouse because: before reducing or abating legacies and devises).
her virtue
Art. 921(4) – giving cause for legal 4. Grounds for Disinheritance
separation – A spouse gives cause for Grounds for Disinheritance Desc. Asc. Sp.
legal separation if he/she attempts or
induces a common child, or a child of Guilty of attempt on life of the √ √ √
the other spouse by prior marriage, to testator, his spouse,
engage in prostitution, or connives in
descendant, or ascendant
such corruption or inducement (Art.
55(3) Family Code)
Groundlessly accusing the √ √ √
Paragraph 2 – Conviction for an attempt on the life of
conviction for an the testator, his/her spouse, testator of a crime with
attempt on the life descendants or ascendants is a imposable penalty of
of the testator, ground to disinherit: imprisonment of 6 years or more
his/her spouse, (i) a child or descendant under
descendants or Art. 919(1) Conviction of adultery or √ √
ascendants (ii) a parent or ascendant under concubinage with the testator’s
Art. 920(2) spouse
(iii) a spouse under Art. 921(1)
Paragraph 3 – Falsely accusing the testator of a crime
Caused the testator to make or √ √ √
falsely accusing punishable by imprisonment of 6 years
the testator of a or more is a ground to disinherit: change a will through fraud,
crime punishable (i) a child or descendant under violence, intimidation, undue
by imprisonment of Art. 919(2) influence,
6 years or more (ii) a parent or ascendant under
Art. 920(3) Unjust refusal to give support to √ √ √
(iii) a spouse under Art. 921(2) the testator
Paragraph 5 – Convicted of adultery or concubinage
convicted of with the spouse of testator is a ground Maltreatment of the testator by √
adultery or to disinherit:
word or deed(Seangio vs.
concubinage with (i) a child or descendant under
Reyes)
the spouse of Art. 919(3)
testator (ii) a parent or ascendant under
Article 920(4) Leading a dishonorable or √
Paragraph 6 – Person who by fraud, violence, disgraceful life
person who by intimidation, or undue influence should
fraud, violence, cause the testator to make a will, or to Conviction of crime with √
intimidation, or change one already made is a ground accessory penalty of civil
undue influence to disinherit: interdiction (41 RPC)
should cause the (i) a child or descendant under Art

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Morillo Quick Reviewer
Abandonment of children; √ innocence. This makes the accusation groundless. An
inducing a daughter to live a
corrupt or immoral life;
attempting on her virtue
Loss of parental authority (FC √ – Reference must be made to the statutory definition (and
229, 230, 231,232)
Attempt of one parent on the life √ conviction; no ground to disinherit. The counterpart to the
of the other, unless they have
reconciled
Giving cause for legal separation √ The penalty of disinheritance based on this ground does
(FC 55)
Giving ground for loss of √
parental authority
● Attempt on life – Take note of the victims of the attempt.
A child who attempted on the life of (i) his sibling, whether
legitimate or illegitimate, whether of the full or half-blood,
(ii) his grandparents or other ascendants, (iii) his nephews
or nieces, whether legitimate or illegitimate, whether of
the full or half-blood, or (iv) his biological or stepparent,
may be disinherited by his parent or ascendant.
The stage of commission (consummated, frustrated or
attempted) is irrelevant. In any case, there is an attempt
which is a ground to disinherit.
Intent to kill is essential; death that was caused by
reckless imprudence is not a ground to disinherit. But,
proof of a justifying or exempting circumstance precludes
the possibility of disinheritance.
Final conviction is required for the efficacy of the
disinheritance; but it is sufficient that the ground existed
at the time of the execution of the will. Efficacy of
disinheritance will await the final conviction. Acquittal on
the basis of any legal ground precludes disinheritance.
Degree of participation (principal, accomplice, or
accessory) is irrelevant, except that in Art. 20 RPC, an
accessory after the fact incurs no criminal liability if he is
such an accessory to the offender, except if he profited,
or assisted the offender to profit from the effects of the
crime.
● False accusation – Testifying against the testator is the
classic example of an accusation. But, withholding
favourable testimony that could exculpate the testator is
equivalent to an indirect false accusation. The filing of the
affidavit complaint before the prosecutor is a not form of
accusation. The prosecutor is merely to determine the
existence of probable cause for charging the accused. He
is not in a position to determine the guilt or innocence of
the accused.
The crime charged must carry the penalty
imprisonment for 6 years or more.
The disinheritance based on this ground must be founded
upon a definitive acquittal premised on a finding of
acquittal based on reasonable doubt, failure to prosecute,
or prescription of the offense is not equivalent to a false
accusation.
● Adultery or concubinage with the spouse of the testator
essential requisites) of adultery or concubinage under the
RPC because this ground requires criminal conviction. No
adultery or concubinage must be the spouse (not
common law partner) of the testator.
not apply to the offending spouse. The offending spouse
may, however, be disinherited under 921(4) – giving cause
for legal separation (i.e., sexual infidelity).
● Fraud, violence, intimidation, undue influence to cause
testator to make a will or to change one already made –
Review the definition and elements of the various vices of
consent under 1330-1338 of the Code.
A will executed under these circumstances is void (see
839 – grounds to deny probate); the perpetrator of the
vice of consent may be disinherited by the testator who
was victimized. For obvious reason, the testator has to
execute a new will where the perpetrator will be
disinherited.
● Unjust refusal to give support - Refer to the definition of
support in FC 194. Support depends on the needs of the
recipient and on the resources of the giver. Refer to FC
195 to determine who are obliged to support each other.
● Maltreatment of the testator – may be done either by
words (verbal maltreatment) or by deed (physical
maltreatment). It must demonstrate lack of respect to the
testator. (See Seangio vs. Reyes)
● Leading a disgraceful or dishonourable life – The law
did not define what constitutes a disgraceful or
dishonourable life. It is clear, however, that this is a kind
of lifestyle, not just an isolated behavior, no matter how
reprehensible it may be. The apparent basis for
disinheritance is the embarrassment it caused the testator
● Civil interdiction – In RPC 41, this is an accessory
penalty imposed when the imposable penalty is
imprisonment for 12 years and 1 day to 20 years
(reclusion temporal). It is the deprivation of the right of
parental authority or guardianship to the person or
property of the ward, the deprivation of marital authority,
the right to manage one’s property, and the right to
dispose property by an act inter vivos. The disinheritance
is based on the resulting embarrassment to the testator.
This ground requires final conviction of the offender.
● Abandonment of children – refers to the total neglect of
of parental obligations, not only with respect to providing
support, but also with respect to the proper care and
guidance of children under parental authority. Giving up a
child for adoption or giving consent thereto is not
abandonment.
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● Inducing a child of the testator to live a corrupt or
immoral life – It is not necessary for a parent to induce a
daughter to become a prostitute (as in the old Civil Code).
The meaning of a corrupt or immoral life includes
activities that may not be as serious as prostitution.
● Attempt on the virtue of the child of the testator – It
may be in the form of attempted rape, attempted
seduction, or acts of lasciviousness. Conviction is not
necessary to constitute a ground to disinherit.
● Loss of parental authority – Refer to FC 229-232. It is a
ground to disinherit if the loss of parental authority is
attributable to the fault of the neglectful parent (e.g.,
subjecting the child to acts of lasciviousness, compelling
the child to beg, excessive harshness or cruelty to the
child, etc.)
Note that the FC does not make mention of “loss” of
parental authority; it uses the terms “termination,”
“suspension,” “deprivation,” and “permanent deprivation”
of parental authority.
The effect of the recovery of parental authority, after it
was lost, is a contentious matter that has not been
resolved. The question is: if parental authority is
eventually recovered, will it make the disinheritance
ineffective?
● Attempt of a parent on the life of another (920[8]) – This
is a separate ground for a child to disinherit a parent. But
this specific ground is completely different from the same
attempt on the life of a parent by the other parent under
920[2] in the following respects:
● This sub-article does not require the conviction of the
offending parent (note it did not state “convicted of
an attempt”) even if there was an intent to kill the
victimized parent.
● The plotter parent and the victimized parent must be
the biological parent of the child; the child cannot be
an adopted child of the plotter parent and the
victimized parent because adopting parents are not
compulsory heirs of the adopted child.
● This ground cannot be invoked if the plotter parent or
the victimized parent is a stepparent of the child. If
the plotter is a stepparent of the child, he is not a
compulsory heir of the child; if the victimized parent
is a stepparent of the child, he is neither a
compulsory heir of the child.
● The effect of disinheritance under 920[8] is
obliterated by a reconciliation between the parents.
In 920[2], reconciliation will not obliterate the
disinheritance, but final conviction is necessary to
make the disinheritance effective.
A chaotic situation arises if the child who disinherited the
parent dies before the charges are filed against the plotter
parent, and the child did not specify under which ground
44 WILLS AND SUCCESSION
he disinherited the plotter parent. If argued that the
disinheritance is under 920[2], the disinheritance will
require conviction; but if it is argued that the
disinheritance in under 920[8], conviction is not required
and the guilt of the plotter may be established by mere
preponderance of evidence, or alternatively, reconciliation
between the spouses may have occurred which makes
the disinheritance under 920[8] ineffective.
● Giving cause for legal separation – The mere giving of
cause for legal separation is sufficient to support the
disinheritance. A final decree of legal separation is not
necessary. See FC 55 for the 10 grounds for legal
separation. Given the expanded grounds for legal
separation, it is obvious that the spouse is the most
vulnerable to disinheritance.
5. Obliterating the effect of disinheritance –
Reconciliation between the offender and the offended
person deprives the latter of the right to disinherit, and
renders ineffective the disinheritance already made. Two
important points: (i) if disinheritance has not been made,
the offended party can no longer disinherit the offender;
(ii) if disinheritance has been made, it becomes
ineffective.
● Reconciliation is not defined by law. But it is
generally understood to mean the restoration of the
relationship between the offender and the offended
party prior to the commission of the act that
constitutes the ground for legal separation. (See
Bugayong vs. Gines) But, pardon is not the same as
reconciliation, as there may be pardon without
reconciliation. Reconciliation however necessarily
includes pardon.
SECTION 7 - LEGACIES AND DEVISES
LEGACIES DEVISES
Gifts of Movable Property Gifts of Immovable Property
given by the testator to a given by the testator to a
specified beneficiary under such specified beneficiary under sch
conditions as may be provided conditions as may be provided
in the will. in the will.
OBJECT OF A LEGACY OR DEVISE:
- All things and rights which are within the commerce
of man may be bequeathed or devised. (Art. 924,
NCC)
BURDEN OF LEGACIES AND DEVISES:
Article 925. A testator may charge with legacies and devises not
only his compulsory heirs but also the legatees and devisees.
The latter shall be liable for the charge only to the extent of the
value of the legacy or the devise received by them. The compulsory
heirs shall not be liable for the charge beyond the amount of the
free portion given them. (NCC)
INDIVIDUAL RESPONSIBILITY:
- If the testator imposed the burden of paying a legacy
or devise upon a particular heir, legatee or devisee -
 WILLS AND SUCCESSION
he alone shall be obliged to pay it, but he is limited
to the proportion in which he may inherit. (Art. 925,
NCC)
- If the testator imposed the burden of paying a legacy
or devise collectively upon the heirs, legatees and/or
devisees - all of them shall be label to pay the same
in the same proportion in which they inherit. (Art. 925,
NCC)
Illustration:
Problem:Testator instituted his 3 legitimate sons (A,B, and C) as
universal heirs to an estate of P18,000.00 in the following manner;
“(1) A-½; (2) B-⅓; and (3) C-6; provided that the heirs shall give a
legacy of P30,000.00 to D.
Answer: The estate shall be distributed as follows:
Free Liability for
Heir Institution Legitime Legacy
Portion Legacy
A 90,000 30,000 60,000 (20,000)
B 60,000 30,000 30,000 (10,000)
C 30,000 30,000 0 0
D 30,000
Total 180,000 90,000 90,000 30,000 (30,000)
Solution:
● To ensure the preservation of the legitime, the shares of the
compulsory heirs were broken into two parts:
1. The Legitime; and
2. Their (Legitime) respective participation in the distribution
of the disposable free portion
● The responsibility for the payment of the legacy to D can only
be imposed on those compulsory heirs who benefited from the
distribution of the disposable free portion. The legacy cannot
be burdened by any charge (Art. 904, NCC)
● The legacy to D is paid by debiting proportionately the
respective shares of A and B in the disposable free portion.
Since A’s share of the disposable free portion is twice as as the
share of B, hence, A contributes twice as much as B in the
payment of the legacy to D.
● C cannot be made responsible to D since all that C got was his
legitime which cannot be impaired.
RESPONSIBILITY FOR LOSS OR DESTRUCTION OF
THING BEQUEATHED:
- When a will is admitted to probate, the court shall
grant letters testamentary or letters of administration
with a will annexed. Such letters shall extend to all
the estate of the testator in the Philippines. The
executor or administrator is mandated to take
possession and charge of the goods, chattels, rights,
credits and estate of the deceased. The exclusive
responsibility for the possession, care and
preservation of the estate of the testator is vested in
him. (See Sec. 4, Rule 77, ROC)
- If an heir or some them should take possession of the
estate or any part thereof prior to the issuance by the
court of an order for the distribution thereof, and in
the meantime any property forming part of the estate
is lost or destroyed, the possessors are held jointly
and severally liable for such loss or destruction. (Art.
927, NCC)
Morillo Quick Reviewer
- Note that the unauthorized possessor is not exempt
from liability even if the loss or destruction is caused
by force majeure.
WARRANTY FOR GENERIC LEGACIES AND DEVISES:
- The heir who is bound to deliver the legacy or devise
shall be liable in case of eviction, if the thing is
indeterminate and is indicated only by its kind. (Art.
928, NCC)
Example:
Testator imposed upon an heir the obligation to give to a
ward of the testator a car with a value of not less than
P100,000.00. The heir owns two cars; (1) One belongs and
registered in his name without any lien or encumbrance; and
(2) Another car, registered in his own but was purchased on
an installment basis and is subject to a chattel mortgage in
Net share
favor of a financing company. Between these two motor
vehicles, the heir could freely dispose of the unencumbered
70,000 car.
50,000 However, if the heir deliver to the legatee the encumbered
car and he defaults in the remittance of the monthly
30,000 amortization which results to the foreclosure of the chattel
mortgage, the seizure of the car from the legatee would make
30,000 the heir liable to the the latter under Art. 928, NCC.
180,000
EXCLUSION TO THE WARRANTY:
- If the legacy or devise to be delivered by an heir to
the legatee or a devisee is a thing specified by the
testator, the warranty in Art. 928 is not applicable.
- Rationale:
- Art. 928 expressly refers to legacies and
devises of generic things.
- By delivering the specific thing, the heir’s
faithful compliance with the testator’s order
does not serve as basis for bad faith (It is a
matter of obedience); and
- The testator intended the legatee or devisee
to bear with the risk of potential loss of the
thing through eviction.
PARTLY OWNED PROPERTY:
- Gen. Rule:
- If the testator, heir or legatee owns only a part or an
interest in the thing bequeathed, the legacy or devise
shall be understood limited to such part of interest.
(Art. 929, NCC)
- Exception: “Unless the testator expressly declares that
he gives the thing in its entirety.” (Art.929, NCC)
- If at the time if the execution of the will, the testator
knew he owns only a party of the thing bequeathed
(or that the person charged with the sub-legacy or
sub-devise owns only a part thereof), he (testator)
may make an express declaration that; (I) He gives
the thing to the legatee or devisee in its entirety; or (ii)
He directs the person charged with the sub-legacy or
sub-devisee to the thing to the sub-legatee or sub-
devisee in its entirety.
- In any case, such express declaration is not
an indication that the testator did not know
the nature of his estate.
- It is important that in order to give the thing in its
entirety, the testator must indicate in the will that he
is aware that another person has an interest in the
WILLS AND SUCCESSION 45
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property and that notwithstanding, he gives the thing
the will is letters or in Arabic numeral;
to the legatee or devisee in its entirety. written, and the 2. The testator affixed his
fact that the thumb mark to the
testator signed instrument instead of signing
the will and his name; and
CHAPTER 3 every page 3. There was no statement in
LEGAL OR INTESTATE SUCCESSION thereof. (Art. the will that the testator
804-805, NCC) knew the language in which
it was written.

SECTION 1 - GENERAL PROVISIONS Samaniego- The attestation An error in the number of

Celada vs. shall state the pages of the will as stated in
Abena number of pages the attestation clause was not
PREFERENCE OF TESTACY OVER INTESTACY: 556 SCRA used upon which considered material so as to
- Testator’s will is preferred over intestate succession 569 the will is invalidate the will.
written, (Art. 805,
because it is the testator’s wishes and intention to
NCC)
constitute first and principal law in the matter of
testaments. When expressed clearly and precisely in Alvarado vs. If the testator is The Court departed from the
his last will, they amount to the only law whose Gaviola, Jr. blind, the will twin requirements of Art. 808
mandate must be faithfully obeyed and complied 226 SCRA shall be read to by admitting to probate the will
with. (Rodriguez vs. Borja, 17 SCRA 418; Dizon- 347 him twice; once, of a blind testator even if
Rivera vs. Dizon, 33 SCRA 554) by one of the during the execution of the said
subscribing will, the same was read to the
Jurisprudencial Examples Where the Supreme Court Bend witnesses, and testator only once by a person
again, by the who was neither the notary
Some of the Rules Prescribed in the Execution of a Will:
notary public public before whom the will
CASE GOVERNING before whom the was acknowledged nor one of
SC RULING OR ACTION: will is the attesting witnesses.
TITLE RULE:
acknowledged.
(Art. 808, NCC)
Nera vs. The testator and It is not necessary for the
Rimando the attesting testator and the witnesses to
Roxas vs. de A holographic The court admitted a
18 Phil. 450 witness must actually see each other affix
sign the will in their signatures to the will Jesus, Jr. will must be holographic will to probate
134 SCRA dated. (Art. 810, despite its being incompletely
the presence of during the execution of the will.
245 NCC) dated because there was no
one another. It is sufficient that they might
evidence of bad faith, fraud
(Art. 805, NCC) have seen each other sign, had
they chosen to do so, and undue and improper
influence and pressure.
considering their mental and
physical condition and position
in relation to each other at the
CONCEPT OF INTESTATE SUCCESSION:
moment of inscription of each
signature. - Intestate succession is a type of succession that
takes place when the decedent (or testator) failed to
Taboada vs. The testator and The witnesses may sign on the express his property dispositions in a valid and
Rosal the witnesses left margin of the will (except operative last will and testament.
118 SCRA must sign at the with respect to the signatures - In intestate succession, the distribution of the estate
195 end of the will, of the witnesses to the of a deceased person is controlled by law, unlike in
and that the attestation clause). testamentary succession wherein the disposition of
attestation the estate is controlled by the testator to a certain
clause must Further, even if the attestation
extent.
state the number failed to state the number of
of pages used pages used upon which the will
on which the will was written, such omission did RODRIGUEZ vs. BORJA
was written. (Art. not invalidate the will. GR no. L-21993, June 21, 1966
805, NCC)
FACTS: The intestate proceedings of the estate of the deceased Fr.
Icasiano vs. The witnesses The SC allowed the probate of Rodriguez in the CFI Rizal was filed at 8:00am on March 17, 1963
Icasiano must sign the the will and averted intestacy while the petition for probate was filed in the CFI Bulacan at
11 SCRA will in all pages. from taking place. It rule that 11:00am on the same day. Themovants contend that CFI Bulacan
422 (See Art. 805, the duplicate copy of the will has no jurisdiction to entertain the petition for probate.
NCC) “serves to prove that the
omission of one signature in RULING: “Only after final decision as to the nullity of testate
the third page of the original succession could an intestate succession be instituted in the form
testament was inadvertent and of pre-established action.” The institution of intestacy proceedings
not intentional.” in CFI Rizal may not proceed while the probate of the aforesaid will
of Fr. Rodriguez is pending. SC ruled that the CFI Bulacan was
Lopez vs. The attestation The court admitted the will to entitled priority in the settlement of the estate in question, and that
Liboro shall state the probate even if: in refusing to dismiss the probate proceeding, the said court did
81 Phil. 429 number of pages 1. The first sheet of a two-page not commit any abuse of discretion. The proceedings in the CFI
used upon which will was not paged either in Rizal should be discontinued.

46 WILLS AND SUCCESSION

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THE PRESUMED WILL OF THE DECEDENT:
- In the case of intestate succession, the Civil Code
controls the disposition of the estate of the deceased
person. The framers of the law (putting themselves in
the shoes of the decedent) attempt to distribute the
decedent’s estate in a manner that will most closely
resemble the distribution which the decedent would
have made, with respect to both the recipients and
the amounts to be given to each of them, had h been
able to execute his will.
Article 960. Legal or intestate succession takes place:
(1) If a person dies without a will, or with a void will, or one which
has subsequently lost its validity;
(2) When the will does not institute an heir to, or dispose of all the
property belonging to the testator. In such case, legal
succession shall take place only with respect to the property of
which the testator has not disposed;
(3) If the suspensive condition attached to the institution of heir
does not happen or is not fulfilled, or if the heir dies before the
testator, or repudiates the inheritance, there being no
substitution, and no right of accretion takes place;
(4) When the heir instituted is incapable of succeeding, except in
cases provided in this Code. (NCC)
CAUSES OF INTESTACY:
1. Decedent dies without a will;
2. Decedent dies with a void will:
3. Decedent dies with a will that had lost its validity;
- NOTE: A will that is formally valid at the time of the
execution cannot subsequently lose its validity and it
will continue to be valid because the supervening
incapacity of the testator does not invalidate an
otherwise valid will not shhall any subsequent change
in the required formalities. (See Arts 801 & 795, NCC)
- The phrase “has subsequently lost its validity” (being
inaccurate) must be understood to has subsequently
lost its efficacy.
- A will that is vaid at the time of its execution loses its
efficacy is when the testator revokes it. (Art. 828,
NCC)
4. The will does not institute an heir;
- NOTE: This contravenes Art. 841, NCC, therefore in
order for this to make sense, it must be interpreted to
refer to a case where a testator executed a valid but
did not make any property disposition therein. In
which case, the document cannot be construed as a
will. The author thereof technically died intestate.
5. The will failed to dispose the entire estate;
- Partial intestacy
6. Non-fulfillment of a suspensive condition attached to the
institution of heirs;
- The rights to succession are transmitted from the
moment of the death of the decedent. However, the
efficacy of an institution that is subject to a
suspensive condition is deferred until such time that
the condition is fulfilled.
7. The instituted heir predeceases the testator or is
otherwise incapacitated to inherit from the latter, or
repudiates the inheritance;
8. Other causes of intestacy;
- Intestacy may take place if the institution of an heir is
subject to a resolutory term or condition, in which
case the instituted heir must, upon the arrival of the
term or the fulfillment of the condition, give up the
inheritance and return the same to the legal heirs of
the testator.
- The illegality of a testamentary disposition may also
result in intestacy.
- Ex: A disposition in favor of the testator’s
mistress is void. (Nepomuceno vs. CA, 139
SCRA 206)
- Pretrion (which results in the total annulment of the
institution of heirs) will always result in intestacy.
INTESTATE HEIRS:
1. Intestate heirs who are likewise compulsory heirs of
the decedent;
2. Collateral relatives who are not compulsory heirs; and
3. Intestate heir by default (the State). (See Art. 961,
NCC)
Article 962. In every inheritance, the relative nearest in degree
excludes the more distant ones, saving the right of representation
when it properly takes place.
Relatives in the same degree shall inherit in equal shares, subject to
the provisions of article 1006 with respect to relatives of the full and
half blood, and of article 987, paragraph 2, concerning division
between the paternal and maternal lines. (NCC)
TWO FUNDAMENTAL RULES OF INTESTATE
SUCCESSION:
1. Rule of Proximity; and
2. Rule of Equal Division. (Art. 961, NCC)
RULE OF PROXIMITY:
THE RULE OF PROXIMITY:
- The relatives nearest to the decedent in degree will
inherit from the decedent to the exclusion of the
more remote ones.
- Generally, relatives within the first degree (son or
parent) will exclude relatives within the second
degree (grandson or grandparent), and those who are
even more remotely related to the decedent.
- Rationale: The decedent is presumed to have a
deeper affection for th relative who is nearer in
degree.
DE LOS SANTOS vs. DE LA CRUZ
GR no. L-29192, February 22, 1971
ISSUE: Whether Plaintiff Gertrudes de los Santos is an heir of the
decedent Pelagia.
RULING: Gertrudes is not an heir of deceased Pelagia. Plaintiff
Gertrudes being a mere grand niece of Pelagia, she could not
inherit from the latter by right of representation. In the present case,
the relatives nearest in degree to deceased Pelagia are her
nephews and nieces, one of whom is Defendant Maximo de la
Cruz. Necessarily, Gertrudes (a grandniece) is excluded by law
from inheritance.
BAGUNU vs. PIEDAD
GR no. 140975, December 8, 2000
FACTS: Augusto Piedad died without any direct descendants or
ascendants. Respondent is the maternal aunt of the decedent
WILLS AND SUCCESSION 47
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Augusto (a third degree relative of Augusto), while Petitioner is the
daughter of a first cousin of deceased Augusto (fifth degree relative
of Augusto).
RULING: The rule on proximity is a concept that favors the relatives
nearest in degree to the decedent and excludes the more distant
ones, except when and to the extent that the right of representation
can apply. By right of representation (Art. 962, NCC), a more
distant relative of a decedent is (by operation of law) “raised to the
same place and degree”of relationship as that of a closer blood
relative of the same decedent. The right of representation does not
apply to "other collateral relatives within the fifth civil degree" (to
which group both petitioner and respondent belong) who are sixth
in order of preference following, firstly, the legitimate children and
descendants, secondly, the legitimate parents and ascendants,
thirdly, the illegitimate children and descendants, fourthly, the
surviving spouse, and fifthly, the brothers and sisters/nephews and
nieces, of the decedent. Among collateral relatives, except only in
the case of nephews and nieces of the decedent concurring with
their uncles or aunts, the rule of proximity, expressed in Article 962,
aforequoted, of the Code, is an absolute rule.
Respondent, being a relative within the third civil degree, of the late
Augusto H. Piedad excludes petitioner, a relative of the fifth degree,
from succeeding ab intestato the estate of the decedent.
HEIRS OF PASCASIO URIARTE vs. CA
GR no. 116775, January 22, 1998
In this case, Private Respondent is the son of Agatonica, the half-
sister of Justa. He is thus a third degree relative of Justa. On the
other hand, Petitioners are the sons and daughters of Justa’s
cousin. Therefore, they are fifth degree relatives of Justa. Applying
the principle that the nearest excludes the farthest, then Private
Respondent is the lawful heir of deceased Justa. The fact that his
mother is the only half-sister of Justa is of no moment.
Petitioners misappreciate the relationship between Justa and
private Respondent. As already stated, private respondent is the
son of Justa’s half-sister Agatonica. He is therefore Justa’s
nephew. A nephew is considered a collateral relative who may
inherit if no descendant, ascendant, or spouse survive the
decedent. The private respondent is only a half-blood relative is
immaterial. This alone does not disqualify him from being his aunt’s
heir. As the Court of Appeals correctly pointed out, "The
determination of whether the relationship is of the full or half-blood
is important only to determine the extent of the share of the
survivors."
EXCEPTIONS TO THE RULE OF PROXIMITY:
1. The rule of proximity yields to the right of
representation;
- Representation is a right created by fiction of law by
virtue of which a representative is raised to the place
and degree of the person to be represented, and
acquires the rights which the latter would have if he
were living or if he could have inherited. (Art. 970,
NCC)
Example:
Problem: X is survived by his two legitimate children (A & B) and
his spouse (C). X has a predeceased child (D) who had a legitimate
son E. If X died intestate with a net hereditary estate of P90,000.00,
How should X’s estate be distributed?
Answer: It shall be distributed as follows:
Heir Intestate Share Representation Total
48 WILLS AND SUCCESSION
A P22,500.00 P22,500.00
B P22,500.00 P22,500.00
C P22,500.00 P22,500.00
D 0 0
E P22,500.00 P22,500.00
Total P67,500.00 P22,500.00 P90,000.00
Solution:
● Divide the Net Hereditary Estate into four, representing the
surviving heirs (A,B,C, and E). [90,000/4 = 22,500]
Explanation: Under the rule of proximity, E is excluded by A and B
from the inheritance of X. However, by exercising the right of
representation which is available to E, he is raised to the place and
degree of D (a relative of X in the first degree). Therefore, E inherits
from his grandfather X along with A and B as though E were a first
degree relative of X in the descending line. The right of
representation spared E from the exclusionary effect of the rule of
proximity.
2. Relatives in descending are preferred over relatives in
ascending line;
- Succession pertains in the first place to the
descending direct line. (Art. 978, NCC)
- Only in default of legitimate children or descendants
will parents and other ascendants inherit. (Art. 985,
NCC)
3. Relatives in direct line are preferred over relatives in
collateral line:
- The order of intestate succession calls to succession
the heirs in the following: (First) the descending direct
line; (Second) the ascending direct line; (Third) the
surviving spouse; (Fourth) the collateral relatives but
only up to the fifth civil degree; (Fifth) the State. The
intestate heirs falling within the first two categories
are relatives in the direct line. The intestate heirs
falling in the fourth category are the relatives in the
collateral line.
- Because of the preference of the collateral line, a
legitimate grandson of the decedent (a relative of the
second degree in the direct line) will exclude a
legitimate brother of the decedent (a relative of the
second degree in the collateral line).
RULE OF EQUAL DIVISION:
RULE OF EQUAL DIVISION:
- Heirs of the same degree shall inherit in equal shares.
- Rationale: The law presumes that a decedent would
have an equal affection for his relatives of the same
degree.
EXCEPTION TO THE RULE OF EQUAL DIVISION:
1. The decedent’s brothers and sisters of the full blood
are entitled to twice the shares of brothers and sisters
of the half blood:
- Should brother and sisters of the full blood survive
together with brothers and sisters of the half blood,
 WILLS AND SUCCESSION
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the former shall be entitled to a share double that of
the latter. (Art. 1006, NCC) Solution:
● Divide the Net Estate into two Ascendant Lines to get the
Example: shares of the Ascent Lines. [100,000/2=50,000]
● Divide the share Each Line among the surviving ascendants to
Problem: A&B had 2 legitimate children (C&D). Upon the death of
get their individual intestate shares. [50,000/2=25,000]
A, B married E with whom they had 2 legitimate children (F&G).
When B&E died, they were survived by the four siblings; C&D (B’s
Explanation: X is survived by his grandparents both in the maternal
children in his first marriage), and F&G (B’s children in his second
and paternal line. According to Art. 987, NCC, “should they be of
marriage). Thereafter, C died intestate leaving a net estate of
different lines but of equal degree, ½ shall go to the paternal line
P120,000.00. How should C’s estate be distributed?
and the other half to the maternal line.”
Answer: It shall be distributed as follow:
NOTE: If A predeceased X, B will get double the respective shares
Heir Intestate Share Relationship to C of C&D because the inheritance shall be divided equally between
the paternal and maternal lines regardless of the number of
D 60,000 Full-Blood Brother survivors in each of the lines.

F 30,000 Half-Blood Brother 3. Whenever heirs inherit by right of representation, the

representatives get only that portion which the person
G 30,000 Half-Blood Brother
represented would otherwise inherit if he were living
and could inherit:
Total 120,000
- Whenever there is succession by representation, the
division of the estate shall be made per stirpes, in
Solution: such manner that the representative or
● Distribute the estate in accordance with Art. 1006, NCC. [D= representatives shall not inherit more than what the
½; F= ¼; G= ¼]
person they represent would inherit, if he were living
● Divide the Net Estate in accordance with their respective
shares: or could inherit. (Art. 974, NCC)
○ For D, [120,000 x (½ or 0.5) = 60,000]
○ For F, [120,000 x (¼ or 0.25) = 30,000] Example:
○ For G, [120,000 x (¼ or 0.25) = 30,000]
Problem: Decedent X was survived by his 2 legitimate children
(A&B), and 4 legitimate grandchildren (D,E,F&G) who are legitimate
Explanation: While D, F and G are relatives of C in the second
children of his predeceased son, C. X died intestate with a net
degree. D is a full-blood brother, while F&G are his half-blood
estate of P120,000. How should X’s estate be distributed?
brothers. Following to Art. 1006, D gets double the respective
shares of F&G.
Answer: A’s estate should be distributed as follows:

Heir Intestate Share Representation Total

2. In the ascending line, the inheritance is divided equally
between the paternal and maternal lines. Within each A 40,000 40,000
line, the inheritance is divided per capita:
- In default of the father and mother, the ascendants B 40,000 40,000
nearest in degree shall inherit. Should there be more
than one of equal degree belonging to the same line D 10,000 10,000
they shall divide the inheritance per capita; should
they be of different lines but of equal degree, one-half E 10,000 10,000
shall go to the paternal and the other half to the
maternal ascendants. In each line the division shall F 10,000 10,000
be made per capita. (Art. 987, NCC)
G 10,000 10,000
Example:
Total 80,000 40,000 120,000
Problem: Decedent X was survived by his grandparents; (A&B) in
the maternal line. and (C&D) in the paternal line. X’s net estate is
P100,000. How would X’s estate be distributed? Solution:
● Divide X’s net estate among his legitimate
Answer: X’s estate shall be distributed as follows: children.[120,000/3=40,000]
● Divide C’s share among his four legitimate children.
Maternal [40,000/4=10,000]
50,000 Paternal Line 50,000
Line
Explanation: Under the right of representation, D,E,F&G were
Intestate Intestate raised to the place and degree of C in respect of X in the first
Heir Heir
Share Share degree. However, they took only the share pertained to C because
the representatives cannot inherit more than what the person whom
A 25,000 C 25,000 they represent would have inherited.

B 25,000 D 25,000
RELATIONSHIP
Total 50,000 Total 50,000

WILLS AND SUCCESSION 49


DETERMINATION OF PROXIMITY OF RELATIONSHIP:
- Proximity of relationship is determined by the number
of generations. Each generation forms a degree. (Art.
963, NCC)
CIVIL DEGREES OF CONSANGUINITY:
SERIES OF DEGREES:
DIRECT LINE
Constituted by the series of
degrees among ascendants and
descendants. (Art. 964, NCC)
Ascent is made to the common
ancestor. (Art. 966, NCC)
The child is 1 degree removed
from the parent, 2 degrees
removed from his grandfather,
and 3 degrees removed from
his great-grandparent.
KINDS OF DIRECT LINE:
Descending
Unites the head of the family
with those who descend
from him. (Art. 965, NCC)
KINDS OF BLOOD RELATIONSHIP:
FULL-BLOOD
That is existing between
persons who have the same
father and same mother.
(Art. 967, NCC)
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COLLATERAL LINE
Constituted by the series of
degrees among persons who
are not ascendants and
descendants, but who come
from a common ancestor. (Art.
964, NCC)
Ascent is made to the common
ancestor and then descent is
made to the person with whom
the computation is to be made.
(Art. 966, NCC)
A person is 2 degrees removed
from his brother, 3 degrees
removed from his uncle (who is
the brother of his father), 4
degrees removed from his first
cousin, and so forth.
Ascending
Binds a person with those
from whom he descends.
(Art. 965, NCC)
HALF-BLOOD
That exists between persons
who have the same father
but not the same mother, or
vice-versa. (Art. 967, NCC)
ACCRETION IN INTESTATE SUCCESSION (Art. 968,NCC):
- Gen. Rule: If any of the intestate heirs should be unable or
unwilling to accept the inheritance, the vacant portion
pertaining to such heir shall not devolve to the relatives
next in degree but shall accrue in favor of the co-heirs of
the same degree by right of accretion.
- Exception: If the vacancy in the inheritance is caused
specifically by the incapacity of the heir, the incapacitated
heir may (under the conditions specified by law) be
represented by his descendants, which case, accretion in
favor of the co-heirs of the incapacitated shall not take
place.
Example:
The intestate heirs of A to an estate of P90,000 are his
legitimate brothers B,C&D. If all of the heirs accepted the
inheritance, each will receive P30,000.
1. If B is incapacited to inherit from A but has 2
Legitimate children (E&F) - The vacant portion
pertaining to B shall pertain to E&F in equal shares by
right of representation. (Art. 972, NCC). Such vacant
portions shall not accrue in favor of C&D because
Right of Representation is superior to the right of
accretion.
2. If B is incapacited to inherit from A & has Illegitimate
children - The illegitimate children are barred from
inheriting from A under Art. 992, NCC. Hence, the
vacant portion pertaining to B shall accrue in favor of
C&D.
3. If B repudiated the inheritance but he has 2
Legitimate children (E&F) - E&F cannot exercise the
right of representation because a repudiator cannot
be represented. (Art. 977, NCC). Hence, the vacant
portion pertaining to B shall accrue in favor of C&D.
ARTICLE 969, NCC:
Article 969. If the inheritance should be repudiated by the nearest
relative, should there be one only, or by all the nearest relatives
called by law to succeed, should there be several, those of the
following degree shall inherit in their own right and cannot represent
the person or persons repudiating the inheritance. (NCC)
Illustration:
Decedent D dies with an estate ofP120,000. He was survived
by 3 legitimate children (A,B&C). A has 2 legitimate children
(X&Y).B has 1 legitimate child (W) while C also has 1 legitimate
child (Z).
1. If A repudiates the inheritance, the estate of D shall be
divided as follows:
HEIR AMOUNT:
B 60,000
C 60,000
Total: 120,000
Solution: Divide the Estate among the remaining
legitimate children who did not repudiate.
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[120,000 / 2 = 60,000]
Reason: A’s repudiation of the inheritance denies X and
Y the right of representation. Band C inherit as sole
intestate heirs of D.
2. If A,B&C repudiate the inheritance, the estate of D shall be
divided as follows:
HEIR AMOUNT:
X 30,000
Y 30,000
W 30,000
Z 30,000
Total: 120,000
Solution: Divide the Estate among the D’s
grandchildren. [120,000 / 4 = 30,000]
Reason: The collective repudiation of the inheritance by
A,B&C pushes down the succession to the
grandchildren, the descendants of D next in degree
3. If A,B&C either predeceased D or are otherwise
incapacitated to inherit from D, the estate of D shall be
divided as follows:
HEIR AMOUNT:
X 20,000
Y 20,000
W 40,000
Z 40,000
Total: 120,000
Solution:
● Divide the Estate among the 3 legitimate children to
get their pro-rata shares. [120,000 / 3 = 40,000]
● Divide A’s share among his representatives (X&Y).
[40,000 / 2 = 20,000]
Reason: X&Y will represent A; W will represent B; and Z
will represent C. The representatives inherit that which
the person represented would inherit, if living at the time
of death of the decedent and capacitated to inherit from
the latter.
RIGHT OF REPRESENTATION
Article 970. Representation is a right created by fiction of law, by
virtue of which the representative is raised to the place and the
degree of the person represented, and acquires the rights which the
latter would have if he were living or if he could have inherited.
(NCC)
Article 971. The representative is called to the succession by the
law and not by the person represented. The representative does not
succeed the person represented but the one whom the person
represented would have succeeded. (NCC)
CONCEPT OF THE RIGHT OF REPRESENTATION:
- Representation is a right created by fiction of law.
- The fiction lies in the raising of a more distant relative
to the place and the degree of the person who is
unable to accept an inheritance in any of the
following circumstances:
1. Such a person was disinherited by the
decedent (Art. 923, NCC);
2. He was declared incapacitated to inherit
from the decedent (Art. 1035, NCC); or
3. He predeceased the decedent (Art. 1025,
NCC).
BASIC PRINCIPLES OF THE RIGHT OF
REPRESENTATION:
1. The right of representation is an exception to the rule of
proximity:
- Representation prevents the exclusion of relatives
more distantly related to the decedent by those
nearer in degree by raising the representative to the
place and degree of the person to be represented for
the purpose of enabling the representative to acquire
the inheritance due to the person represented which
the latter is deprived of (as result of disinheritance) or
which he cannot otherwise accept (in consequence
of predecease and incapacity).
2. The representative is called to the succession by law:
- The representative inherits from the decedent
because the law vests in the representative the right
to inherit.
3. The representative does not inherit from the person
represented:
- The representative inherits from the decedent whom
the person represented would have succeeded.
4. The representative must be capacitated to inherit from the
decedent:
5. An adopted child may not represent his adoptive parent:
- Through adoption, the adopted child is deemed to be
a legitimate child of the adopter, and both the
adopted child and the adopter acquire reciprocal
rights and obligations arising from the relationship of
parent and child. (Art. 189, FC)
- The artificial relationship created by adoption is
limited to the adopter and the adopted child. Such
relationship does not extend to the biological
relatives of either of them.
Legitimacy. – The adoptee shall be considered the legitimate
son/daughter of the adopter(s) for all intents and purposes and
as such is entitled to all the rights and obligations provided by
law to legitimate sons/daughters born to them without
WILLS AND SUCCESSION 51
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discrimination of any kind. To this end, the adoptee is entitled
to love, guidance, and support in keeping with the means of
the family. (Sec. 17, RA 8552)
Succession. – In legal and intestate succession, the adopter(s)
and the adoptee shall have reciprocal rights of succession
without distinction from legitimate filiation. However, if the
adoptee and his/her biological parent(s) had left a will, the law
on testamentary succession shall govern. (Sec.18, RA 8552)
DE LA PUERTA vs. CA
GR no. 77867, February 6, 1990
Indeed, even as an adopted child, Carmelita would still be
barred from inheriting from Dominga Revuelta for there would
be no natural kindred ties between them and consequently,
no legal ties to bind them either. As aptly pointed out by Dr.
Arturo M. Tolentino:
“If the adopting parent should die before the adopted
child, the latter cannot represent the former in the
inheritance from the parents or ascendants of the
adopter. The adopted child is not related to the
deceased in that case, because the filiation created by
fiction of law is exclusively between the adopter and the
adopted. "By adoption, the adopters can make for
themselves an heir, but they cannot thus make one for
their kindred."
The result is that Carmelita, as the spurious daughter of
Vicente de la Puerta, has successional rights to the intestate
estate of her father but not to the estate of Dominga Revuelta.
Her claims for support and inheritance should therefore be
filed in the proceedings for the settlement of her own father's
estate and cannot be considered in the probate of Dominga
Revuelta's will.
SAYSON vs. CA
GR nos. 89224-25, January 23, 1992
There is no question that as the legitimate daughter of
Teodoro and thus the granddaughter of Eleno and Rafaela,
Doribel has a right to represent her deceased father in the
distribution of the intestate estate of her grandparents. Under
Article 981, quoted above, she is entitled to the share her
father would have directly inherited had he survived, which
shall be equal to the shares of her grandparents' other
children.
But a different conclusion must be reached in the case of
Delia and Edmundo, to whom in the grandparents were total
strangers. While it is true that the adopted child shall be
deemed to be a legitimate child and have the same rights as
the latter, these rights do not include the right of
representation. The relationship created by the adoption is
between only the adopting parents and the adopted child and
does not extend to the blood relatives of either party.
In sum, we agree with the lower courts that Delia and
Edmundo as the adopted children and Doribel as the
legitimate daughter of Teodoro Sayson and Isabel Bautista,
are their exclusive heirs and are under no obligation to share
the estate of their parents with the petitioners. The Court of
Appeals was correct, however, in holding that only Doribel
has the right of representation in the inheritance of her
grandparents' intestate estate, the other private respondents
being only the adoptive children of the deceased Teodoro.
52 WILLS AND SUCCESSION
6. An adopted child may not be represented in the
inheritance of his adoptive parent:
7. A representative only steps into the shoes of the person
represented:
- A representative is entitled to receive no more than
the share pertaining to the person represented.
8. In the descending line, the right of representation is
exercisable in an unbroken chain one degree at a time:
9. Because representation is a right created by fiction of law,
it does not take into account the wishes of the deceased
person:
- Representation transmits to the representative only
that portion of the estate which the person
represented is entitled by law to receive from the
decedent.
- Representation in intestate succession covers the full
intestate share of the person represented.
- NOTE: In voluntary succession, the dispositions of
the testator are driven primarily by the personal
affection of the testator towards the instituted heirs,
legatees and/or devisees. The right of representation
cannot extend to these personal dispositions of the
testator.
ILLUSTRATION AND APPLICATION OF THE
PRINCIPLES OF THE RIGHT OF REPRESENTATION:
Problem: Sps. A&B have two children (C&D). B has an
illegitimate child E by an extramarital affair. C has 2
descendants, F an illegitimate child and G a legitimate child. D
has two descendants: H an adopted child and J a legitimate
child. E has two descendants: K and L both illegitimate. G has
a legitimate child M. H has a legitimate N. B died intestate.
First Principle:
- If C predeceased B, G (a legitimate second degree
relative of B in the descending line) shall exercise the
right of representation and shall take the share of C.
- While F is likewise two degrees remote from B, F is
not entitled to exercise the right of representation
because he is barred by Art. 992 from inheriting from
B.
Second Principle:
- G is called by law to succeed B in representation of
C. G inherits not because C wanted him to or
because C transferred his successional right to G,
but because the law calls G to succeed B.
Third Principle:
- If B validly disinherited E, K&L will exercise the right
of representation and shall receive the legitime of E
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(Art. 902, NCC). K&L inherit from their grandfather B
Incapacity, Predeceases
and not from their father E. Predeceases
- E never acquired ownership of any part of
B’s estate, clearly, E passed nothing to K&L. Coverage Legitime Only Full Intestate Share
- While K&L are illegitimate children of E, they
are not barred by Art. 992, NCC, from Who may Descendants only, Generally descendants,
inheriting from B because the line of B to E represent? never ascendants nover ascendants but
and the line from E to K&L are both available in the
illegitimate. collateral in favor of
- Whatever K&l receive from the estate of B will pertain nephews and nieces.
to them in ownership to the exclusion of E who is
barred from enjoying the usufruct or administration of Who may be Compulsory heir who is Generally, only a
represented? a descendant of the descendant who is an
the same. (Art. 923, NCC)
testator intestate heir; but by
Fourth Principle: way of exception, a
- G may represent his father C in the inheritance of B brother or sister who
because G is capacitated to inherit from B. However, inherits as an intestate
F is disqualified to inherit from B because of the heir may be
separation of the legitimate from the illegitimate represented.
family under Art. 992, NCC. Such disqualification will
lie even if F is fully capacitated to inherit from C.
ILLUSTRATIONS:
- K&L may inherit from B by right of representation as a
result of the disinheritance of E. The barrier in Art.
A. REPRESENTATION IN TESTAMENTARY SUCCESSION:
992, NCC, is not applicable to them because K&L are
related to B in the illegitimate line, E (being an Problem: Testator (T) has 3 legitimate children (A,B&C). Bhas 2
illegitimate child of B). legitimate children (D&E), and two illegitimate children (F&G). C has
- In Art. 902, NCC, the successional rights of 1 adopted child (H) and a legitimate child (J). In T’s notarial will, he
instituted A, B and C as his sole and universal heirs to an estate of
an illegitimate child are transmitted upon his
P96,000 in the following portion: A-½; B-¼; C-¼. B predeceased T
death to his descendants (legitimate or while C is incapacitated to inherit. Divide the estate.
illegitimate).
- If G repudiates the inheritance of his father C, G does
not lose the right to inherit from B in representation of ANSWER: B who predeceased T, and C who is incapacitated
his father C. In the same way, K&L may inherit from B to inherit from T, cannot receive their respective shares.
by right of representation even if they repudiated the However, their descendants may exercise the right of
inheritance of E. representation. In testamentary succession, the right of
Fifth Principle: representation is available in cases of disinheritance,
- If D should predecease B, J may exercise the right of incapacity and predecease, but only in the descending line
representation but H (the adopted child) may not and only with respect to the legitime of the person
exercise the right of representation. represented. While D&E are entitled to represent B in the
Sixth Principle: succession T, F&G are disqualified to represent C because of
- If H should predecease D, N cannot inherit from D in Art. 992, NCC. While J is entitled to represent C in the
representation of H. There are no blood ties between succession to T, H has no blood ties with T and is therefore
D and N. not entitled to exercise the right of representation.
- The relationship by adoption between H and D does
not extend to N. Given that representation in testamentary succession is
Seventh Principle: limited to the legitime of the person represented, the
- G’s entitlement under the right of representation is to representatives will thus inherit from T as follows:
receive whatever is due C from the estate of B and C Heir By Representation Undistributed Reason for
survived B. In the same way, K&L are entitled to Institution to Legitime Balance Undistributed Balance
whatever share may be due E as an illegitimate child
A 48,000
of B. K&L will divide that share equally between
them. 8,000 4,000 These amounts
D represent B’s institution
to the free portion.
Eight Principle:
- If G repudiated the inheritance of B, M cannot inherit 8,000 4,000 (8,000 /2)
E
from his great-grandfather B by representing his
grandfather C because the successional right that F 0
would link M to his great-grandfather B is broken by
the repudiation of B’s inheritance by G. G 0

H 0

AVAILABILITY AND SCOPE OF REPRESENTATION: 16,000 8,000 This amount represents

J C’s institution to the
Basis Testamentary Intestate Succession free portion.
Succession
Tota 48,000 32,000 16,000 (48,000 - 32,000 =
Disinheritance, Incapacity, l 16,000)
Grounds

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 WILLS AND SUCCESSION
Solution:
1. Determine first the shares of T’s legitimate children’s
shares according to T’s will.
a. For A (96,000 x 0.50 = 48,000)
b. For B (96,000 x 0.25 = 24,000)
c. For C (96,000 x 0.25 = 24,000)
2. Then, determine the Legitime by dividing the legitime
among the 3 compulsory heirs (A,B&C).
a. T’s Estate divided by 2 to get the legitime
(96,000/2 = 48,000), Hence, the Legitime
and the free portion amounts to 48,000
b. Divide the legitime into 3 (48,000/3 =
16,000). Hence, A,B&C will each get 16,000.
3. Then subtract each Instituted shares from their
respective legitime in order to get the free portion.
a. For A (48,000 - 16,000 = 32,000)
b. For B (24,000 - 16,000 = 8,000)
c. For C (24,000 - 16,000 = 8,000)
d. Total Free Portion (32,000 + 8,000 + 8,000
= 48,000)
4. D & E are entitled to represent B in succession to T,
they are only entitled to B’s legitime. Hence, Divide
B’s legitime by two (for D&E)
a. For D (16,000/2 = 8,000). D’s representation
to the Legitime is 8,000
b. For E (16,000/2 = 8,000) E’s representation
to the Legitime.
5. Because C is incapacited and H is not entitled, J will
get the total 16,000, as representation to C’s
Legitime.
HOW TO SETTLE THE UNDISTRIBUTED BALANCE?
Given that there remains an undistributed balance of
P16,000, in the table above, after giving effect to the right of
representation, the only remaining solution to fill the vacant
portion is to apply the right of accretion, if possible.
According, the undistributed balance will pertain by right of
accretion to the heir to whom the testator has given and who
has accepted the whole or a part of the disposable free
portion. In this case, the only heir qualified to receive the
undistributed balance is A since he is the only testamentary
heir to whom was given and who has accepted a part of the
disposable free portion. The final distribution of T’s estate,
therefore, will be as follows:
Heir Institution Representation Accretion
A 48,000 16,000
D 8,000
E 8,000
F 0
G 0
H 0
J 16,000
Total 48,000 32,000 16,000
1 See Arts 1015 & 1021 for explanation
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NOTE: D,E&J cannot benefit from the right of accretion since
all that they got from the estate of the testator is the legitime
which would have otherwise pertained to B and to C. In this
illustration, only A was effectively instituted to the disposable
free portion.
B. REPRESENTATION IN INTESTATE SUCCESSION:
Assume that T’s will was denied probate, he estate will be
distributed in accordance under the rules of intestate
succession. The intestate heirs of T are his legitimate children
(A,B&C) who would have divided the estate of P96,000 equally
among them in the amount of P32,000 had B not
predeceased, and had C not been incapacitated to succeed.
Nonetheless, B may be represented by his legitimate children
(D&E), but not by the illegitimate children (F&G) who are barred
from inheriting from T under Art. 992. On the other hand, C
may be represented by his legitimate child (J) but not by his
adopted child (H).
ANSWER: In intestate succession, the right of representation
is available in cases of incapacity and predecease and covers
the full intestate share of the person represented. Hence, T’s
estate shall be distributed as follows:
Heir Intestacy Representation in Intestacy Total
A 32,000 32,000
D 16,000 16,000
E 16,000 16,000
F 0 0
G 0 0
1
H 0 0
J 32,000 32,000
Total 32,000 64,000 96,000
Solution:
1. Divide T’s estate among his 3 intestate heirs (A,B&C)
to get the respective intestate shares. (96,000/3 =
Total 32,000). Each intestate heir shall receive P32,000
intestate shares.
64,000 2. Divide B’s intestate among his representatives (D&E).
a. 32,000/2 =16,000. Hence, D&E shall receive
8,000 P16,000 each.
8,000
0 Article 972. The right of representation takes place in the direct
descending line, but never in the ascending.
0
In the collateral line, it takes place only in favor of the children of
brothers or sisters, whether they be of the full or half blood. (NCC)
0
16,000 REPRESENTATION IN THE DESCENDING LINE:
- Representation is available only when succession
96,000 flows in the descending line. In this case, the
successional right will descend one person at a time
in an unbroken chain until the law finds that
descendant who will inherit from the decedent in
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representation of the intervening persons who are
unable to exercise such right.
Example:
A - Father
B - Son
C - Grandson
D - Great-Grandson
D may inherit from A in representation of C and B. It is not
necessary, in order for D to inherit from A, that he (D) is alive (or at
least conceived) at the time of the death of A (Art. 1025, CC).
However, a repudiating intermediate heir will break the chain that
would link D to the estate of A would thus prevent D’s exercise of
the right of representation. Thus, if C repudiated A’s inheritance, D
cannot exercise the right of representation but D may be able to
inherit from A in D’s own right if D is the nearest surviving
descendant of A.
REPRESENTATION IN THE COLLATERAL LINE: By way of
exception to the general rule, representation s available in the
collateral line under specific conditions:
1. It is available only in intestate succession;
2. May be exercised exclusively by the children of
brothers and sisters of the decedent, who are
therefore the decedent's nephews and nieces.
Nephews and nieces inheriting in a representative
capacity inherit as relatives of the decedent in the
second degree degree. [Note: The right of
representation cannot be extended to grandnephews
and grandnieces]
3. Nephews and nieces may exercise the right of
representation only if they concur with at least one
uncle or aunt (the brother or sister of the decedent),
otherwise they inherit in their own right as relatives of
the decedent in the third degree;
4. The right of representation is exercisable subject to
the application of the barrier in Art. 992.
CAPACITY TO SUCCEED:
Article 973. In order that representation may take place, it is
necessary that the representative himself be capable of succeeding
the decedent. (NCC)
DISTRIBUTION PER STIRPES:
Article 974. Whenever there is succession by representation, the
division of the estate shall be made per stirpes, in such manner that
the representative or representatives shall not inherit more than
what the person they represent would inherit, if he were living or
could inherit. (NCC)
In succession by representation, the division of the estate per
stirpes is justified as follows:
1. The representative/s is/are called upon by law to take
the share of the person represented. Thus, regardless
of the actual number of representatives, they are
considered as one group entitled to get no more than
the share of the person whom they represent.
2. A distribution of the estate per capita among the
representatives would work injustice to those heirs
who inherit in their own right.
ILLUSTRATION: A left a net hereditary estate of P90,000. He
was survived by B (A’s legitimate son), E, F G & H (A’s
legitimate grandchildren by his predeceased son C), and by
J&K (A’s legitimate grandchildren by a predeceased son D).
● If all the children survived A - the estate of A would have
been divided per capita among B,C & D, each being
entitled to P30,000.
● in exercising the right of representation - the grandchildren
inherit per stirpes taking no more than the share pertaining
to the person they represent. Therefore, E, F, G & H will
each receive P7,500 for a total of P30,000 representing
the share of C; while J & K will each receive P15,000 for a
total of P30,000 representing the sahr eof D.
● If succession by representation will follow the division of
the estate per capita - B will be in a grossly
disadvantageous position because the estate will be
divided into 7 equal parts of just about P12,857. B would
in effect be penalized for surviving A, while the
grandchildren would be rewarded simply because their
parents (C&D) predeceased A.
Article 975. When children of one or more brothers or sisters of the
deceased survive, they shall inherit from the latter by
representation, if they survive with their uncles or aunts. But if they
alone survive, they shall inherit in equal portions. (NCC)
A REPUDIATOR MAY REPRESENT:
- A person may represent him whose inheritance he
has renounced. (Art. 976, NCC)
ILLUSTRATION: A has 2 legitimate children (D&E). B predeceased
A. In the succession of the estate of B, D repudiated the
inheritance, leaving E as the sole heir of B. A subsequently died
intestate leaving an estate of P120,000. following the rule that a
person may represent him whose inheritance he has renounced, D
may represent B in the succession to A. Therefore, A’s estate shall
be distributed as follows:
Heir Share Manner of Succession
D 30,000 By representation
E 30,000 By representation
C 60,000 In his own right
While D repudiated B’s inheritance, it does not follow that D would
be unwilling to accept the inheritance of A. Therefore, while D
severed his right to succeed his father B, he did not sever his right
to succeed his grandfather A. Furthermore, in representation, the
representative inherits from the decedent and not from the person
whom he represents.
A REPUDIATOR CANNOT BE REPRESENTED:
- Heirs who repudiate their share may not be
represented. (Art. 977, NCC)
- If a person repudiates the inheritance of his
ascendant, his heir may not, by right of
representation, accept that which the repudiator had
rejected.
ILLUSTRATION: In the above example, If B survived A but
repudiated the inheritance of A, D&E are not entitled to get B’s
share in the inheritance of A by right of representation because a
repudiatory cannot be represented.
Note that D&E are called by law to take the place of B in the
inheritance of A, there is no legal basis to allow D&E to accept that
which has repudiated. Therefore, C inherits as the sole heir of A.
WILLS AND SUCCESSION 55

Assume that while repudiated A’s inheritance, C predeceased A
and left no descendants. - In this case, D&E will inherit the estate if
A, not by representation, but in their own right as the nearest
surviving descendants of A.
SECTION 2 - ORDER OF INTESTATE SUCCESSION
ORDER OF INTESTATE SUCCESSION
Legitimate Decedent
1. Legitimate Children and
Legitimate Descendants
2. In default of the foregoing,
Legitimate Parents and
Legitimate Ascendants
3. Illegitimate Children and
their legitimate or
illegitimate descendants
4. Surviving Spouse
5. Legitimate brothers/sisters
and legitimate
nephews/nieces
6. Other legitimate relatives
within the 5th degree
7. State
TABLE SUMMARY OF INTESTATE SHARES:
INTESTATE HEIR:
LEGITIMATE and/or
ADOPTED CHILDREN and
their LEGITIMATE (excluding
the descendants of the
adopted children)
- concurring with
illegitimate children
and their descendants
56 WILLS AND SUCCESSION
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Illegitimate Decedent
1. Legitimate children and
legitimate descendants
2. Illegitimate children and
their legitimate or
illegitimate descendants
3. In default of the foregoing,
illegitimate parents
(ascendants are excluded)
4. Surviving Spouse
5. Illegitimate brothers/sisters
and illegitimate
nephews/nieces (no other
collateral)
6. State
LEGITIMATE PARENTS or
LEGITIMATE ASCENDANTS
INTESTATE SHARE:
Entire estate shall be divided
equally among the legitimate
and/or adopted children.
The legitimate descendants of a
legitimate child may exercise
the right of representation in
cases of predecease and
incapacity, and valid
disinheritance.
The illegitimate descendants of
a legitimate child are barred by
Art. 992 from exercising the
right of representation.
An adopted child may not be
represented by his or her
descendants.
An illegitimate child gets half of
the share of a legitimate and/or
adopted child.
The share of the intestate child
may be reduced if the division
prescribed above would result
in the impairment of the legitime
of the legitimate and/or adopted
children.
A predeceased, incapacitated
or disinherited illegitimate child
may be represented by his or
her descendants, whether
legitimate or illegitimate.
- concurring with the The estate shall be divided
surviving spouse equally among them.
- concurring with the The surviving spouse gets the
surviving spouse and same share as a legitimate
illegitimate children and/or adopted child.
Each of the illegitimate children
shall get half the share of a
legitimate and/or adopted child,
Provided that the intestate
share of the illegitimate children
shall be paid only after the
intestate share of the surviving
spouse has been paid; and
Provided further that the
intestate share of the illegitimate
children may be reduced if, after
the payment of the intestate
share of the surviving spouse,
the estate is insufficient to pay
in the full the share of the
illegitimate children.
The estate shall be divided
equally between the surviving
parents, provided that if there is
only one surviving parent, the
entire estate shall be given to
the survivor.
If there is no surviving parent,
the estate shall be adjudicated
to the ascendants nearest in
degree, dividing the estate
equally between the paternal
and maternal lines, provided
that in each line the intestate
share shall be divided per
capita.
If there are no surviving
ascendants in one line, the
entire estate shall be
adjudicated to the line with
surviving ascendants.
Illegitimate ascendants (ie.
illegitimate grandparents) do not
have successional rights. There
is no right of representation in
the ascending line.
- concurring with Half the estate shall be given to
illegitimate children the legitimate parents who shall
and their descendants divide the same equally
between them, or otherwise
consolidated in the surviving
parent.
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In the absence of surviving
parents, the legitimate
ascendants will take half the
estate dividing the same per
stirpes, but within each line the
inheritance shall be divided
between the surviving
ascendants per capita. The
other half of the estate shall be
divided equally among the
illegitimate children, subject to
the right of representation of the
grandchildren regardless of
legitimacy.
- concurring with the Surviving spouse shall be given
surviving spouse half the estate.
The other half shall be given to
the surviving parents (per
capita) or legitimate ascendants
(per stirpes)
- concurring with the Legitimate parents or in their
surviving spouse and default, the legitimate
illegitimate children ascendants shall take half the
and descendants estate.
The surviving spouse takes one-
fourth of the estate.
Collectively, the illegitimate
children take one-fourth of the
estate and shall divide the same
equally among them.
ILLEGITIMATE CHILDREN and The entire estate shall be given
their DESCENDANTS to the illegitimate children who
shall divide the same equally
among them, subject to the
right of representation of the
grandchildren regardless of
legitimacy.
- concurring with the Surviving spouse shall take half
surviving spouse of the estate, the other half shall
given to the illegitimate children
who shall divide the same
equally among them, subject to
the right of representation of the
grandchildren regardless of
legitimacy.
ILLEGITIMATE PARENTS illegitimate parents shall take
the entire estate which shall be
divided equally between them.
Should there be only one
surviving illegitimate parent, the
entire estate shall be
adjudicated to the survivor.
Illegitimate ascendants do not
have successional rights.
- concurring with the The illegitimate parents shall
surviving spouse take the half of the estate,
dividing the inheritance equally
between them.
If there is only one surviving
illegitimate parent, he or she
takes the entire half of the
estate. The other half shall be
given to the surviving spouse.
SURVIVING SPOUSE The surviving spouse is entitled
to the entire estate.
The rule in Art. 900 (ie. ½; ⅓; ½)
is not applicable to the intestate
share of the surviving spouse, it
relates solely to his or her
legitime.
- concurring with The surviving spouse shall take
brothers, sisters, half of the estate. The other half
nephews and nieces shall pertain to the brothers and
sisters, subject to the right of
representation of nephews and
nieces.
In the appropriate case, the
nephews and nieces may inherit
in their own right.
The successional rights of
brothers, sisters, nephews and
nieces are subject to the
provisions of Art. 992 and 1006.
BROTHERS, SISTERS, Brothers and sisters, concurring
NEPHEWS AND NIECES with the children of
predeceased or incapacitated
brother or sister will take the
entire estate, provided that the
children of a predeceased or
incapacitated brother or sister
inherit by right of
representation; provided further
that their successional rights are
subject to the provisions of Art.
992 and 1006.
OTHER COLLATERAL Other collateral relatives shall
RELATIVES take the entire subject to the
strict application of the rule of
proximity and Art. 992
THE STATE Whenever the State inherits, it
takes the entire estate.
DESCENDING DIRECT LINE
Article 978. Succession pertains, in the first place, to the
descending direct line.
Article 979. Legitimate children and their descendants succeed the
parents and other ascendants, without distinction as to sex or age,
and even if they should come from different marriages.
An adopted child succeeds to the property of the adopting parents
in the same manner as a legitimate child.
Article 980. The children of the deceased shall always inherit from
him in their own right, dividing the inheritance in equal shares.
WILLS AND SUCCESSION 57
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- Illegitimate children concur with legitimate children.
Article 981. Should children of the deceased and descendants of
other children who are dead, survive, the former shall inherit in their
The distribution of the estate between may be
own right, and the latter by right of representation. illustrated as follows:
PROBLEM: X died intestate with a net estate of P120,000. He
was survived by two legitimate children (A&B) and an
Article 982. The grandchildren and other descendants shall inherit illegitimate child (C).
by right of representation, and if any one of them should have died,
leaving several heirs, the portion pertaining to him shall be divided ANSWER: Applying Art. 175, FC, the illegitimate child C shall
among the latter in equal portions. get half the share of one legitimate child (ratio of 1:2). X’s
estate shall therefore be divided among the children as
follows:
Article 983. If illegitimate children survive with legitimate children, Heir Full Intestate Legitime Share of Free
the shares of the former shall be in the proportions prescribed by share Portion
article 895.
A 48,000 30,000 18,000

Article 984. In case of the death of an adopted child, leaving no B 48,000 30,000 18,000
children or descendants, his parents and relatives by consanguinity
and not by adoption, shall be his legal heirs. C 24,000 15,000 9,000

INTESTATE SHARES OF CHILDREN: Total 120,000 75,000 45,000

- Art. 980 makes no distinction between legitimate
(including the adopted) and illegitimate children from
inheriting from the decedent in their own right.
However, it should be noted that between the
legitimate and illegitimate children, the intestate
shares are not equal because an illegitimate child
gets half the intestate share of a legitimate child.
CHILDREN CONCURRING WITH GRANDCHILDREN:
- While a child inherits from his or her parents in his or
her own right, the descendants of a predeceased,
incapacited or disinherited child, generally, inherit
from their grandparents by right of representation.
However, this does not mean that grandchildren can
never inherit from their grandparent in their own right.
- If the only child, or all of the children, should
repudiate the inheritance of the father, the
grandchildren will inherit in their own right as
descendants of their grandfather in the
second degree.
NOTE: The legitimate of each legitimate child is P30,000,
while that of the illegitimate child is P15,000, or a ratio of 2:1.
All of the intestate heirs, legitimate and illegitimate,
participated in and benefitted from the distribution of the
disposable free portion, likewise at the ratio of 2:1.
Solution: In this example, Atty Sebastian used “80-20”
wherein the 80% of X’s net estate is given to his legitimate
children (A&B) while 20% was given to C (X’s illegitimate
child). Hence the distribution of the share will be as follows:
1. For A = 40%
2. For B = 40%
3. For C = 20%
In order to get the Full Instate Share of each, multiple the
percentage share to the Net Estate, hence;
1. For A (120,000 x 40% = 48,000)
2. For B (120,000 x 40% = 48,000)
3. For C (120,000 x 20% = 24,000)
To get the share of free portion, subtract the Intestate share
to the legitime.

CONCURRENCE OF LEGITIMATE AND ILLEGITIMATE TEST OF SUFFICIENCY OF THE ESTATE:

CHILDREN (Art. 983, NCC): A. In intestate succession and when there are no illegitimate
- Take note, Art. 895, CC was repealed by Art. 176, FC children succeeding the decedent:
only with respect to the distinction among th various - The distribution of the estate among the intestate
classes of illegitimate children and their respective heirs is a relatively simple process: just follow the
legitime but Art. 895, 3rd paragraph, CC remains proportion fixed by law.
valid. - In the following combination of intestate heirs, there
- Under Art. 176, Family Code: “Illegitimate children will never be a case where the distribution of the
shall use the surname and shall be under the parental estate would require the reduction of the legitime:
authority of their mother, and shall be entitled to
support in conformity with this Code. The legitime of Combination of Intestate
Intestate Shares
each illegitimate child shall consist of one-half of the Heirs
legitime of a legitimate child. Except for this
modification, all other provisions in the Civil Code 1 legitimate (or adopted) child Entire estate
governing successional rights shall remain in force.”
2 or more legitimates (and/or Entire estate divided equally
- Under Art. 895, third paragraph, Civil Code: “x x x x
adopted) children
The legitime of the illegitimate children shall be taken
from the portion of the estate at the free disposal of 1 legitimate (or adoptedO child ½ for the legitime (or adopted)
the testator, provided that in no case shall the total and spouse) child); and
legitime of such illegitimate children exceed that free 1.2 for the surviving spouse
portion, and that the legitime of the surviving spouse
must first be fully satisfied.” 2 or more legitimate (and/or Entire estate divided equally
adopted) children and spouse

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Legitimate parents Entire estate divided equally
Intestate Heir Intestate Share
Legitimate paternal and Entire estate divided per stirpes
maternal ascendants
A legitimate child 24,000
Illegitimate parents Entire estate divided equally
B legitimate child 24,000
Spouse Entire estate
C legitimate child 24,000
Spouse with brothers and ½ - spouse;
D surviving spouse 24,000
sisters ½ - brothers & cisterns, subject
to Art. 1006
E illegitimate child 12,000
Brothers, sisters, nephews and Entire estate divided equally,
nieces subject to the right of F illegitimate child 12,000
representation and Art. 1006
Total: 120,000
Collateral relatives within the 5 Entire estate divided equally
degree
Solution:
The State Entire estate ● Take note that E&F (being illegitimate children and only
entitled to half of the legitimate share ), add first their share in
order to get a whole number (0.5 + 0.5 = 1) then add it to the
B. In intestate succession and when there are illegitimate four (A,B,C and D).
children concurring with (1) Legitimate (and/or adopted) ● Divide the Net Hereditary Estate by 5 (120,000/5 = 24,000),
children; or (2) legitimate children and the surviving hence A, B, C, and D will receive 24,000 each.
spouse: ● Divide the remaining 24,000 by 2 to get the intestate shares
- It must first confirm whether or not the estate is of E&F as illegitimate children. (24,000/2 = 12,000). Hence,
sufficient to pay the full intestate shares of the E&F each get 12,000 as intestate share
illegitimate children.
Explanation: The distribution of the estate did not require the
- NOTE: the spouse gets the same share as
reduction of the legitime of the illegitimate children. the intestate
one legitimate child, while an illegitimate shares of all the heirs are in excess of the legitime.
child gets half the share of a legitimate child.
- The test runs as follows: 2. PROBLEM: Decedent is survived by 1 legitimate child (A), the
1. Divide the estate into 2 equal parts (the strict legitime surviving spouse (B), and 3 illegitimate (C,D&E).
and the free portion);
2. Set. aside the strict legitime for the legitimate (and/or ANSWER: Strict Legitime (2 pts.) < Free Portion (5 pts.), hence,
adopted) children. Assign 2 points for each legitimate the estate is insufficient to pay the full intestate shares of the
(and/or adopted) child and charge the same to the heirs. Therefore the estate shall be distributed as follows:
strict legitime;
3. To the free portion, charge 2 points to cover the Intestate Heir Intestate Share
share of the surviving spouse and 1 point for each
illegitimate child.;
4. If the points charged to the strict legitime are greater A legitimate child 60,000
than or equal to the points charged to the free
portion, the estate is sufficient to pay the full intestate B surviving spouse 30,000
shares of all intestate heir;
5. If the points charged to the free portion are greater C illegitimate child 10,000
than points charged to the strict legitime, the estate
D illegitimate child 10,000
is insufficient to pay the full intestate shares of the
illegitimate children.
E illegitimate child 10,000
6. If the estate is insufficient to pay the full intestate
shares of the illegitimate children, distribute the
Total: 120,000
estate by simply giving the legitime of the legitimate
children and surviving spouse, and thereafter give the
balance of the estate to the illegitimate children in
equal shares. Solution:
● Divide the Estate by 2 to get the legitime and free portion/
(120,000/2 = 60,000).
Examples: ○ Legitime = 60,000
1. PROBLEM: Decedent is survived by 3 legitimate children ○ Free Portion = 60,000
(A,B&C), THE SPOUSE (D), and two illegitimate children (E&F). ● Give the legitime to A (legitimate child), hence A will receive
60,000
ANSWER: Strict Legitime (6 pts.) > Free Portion (4 pts.), hence, ● Divide the free portion by 2 (between the spouse and the
the estate is more than enough to pay the full intestate shares illegitimate children). (60,000/2 - 30,000)
of all the heirs. If the net hereditary estate is P120,000, the ● Give the 30,000 to the spouse (B), and the remaining 30,000
same shall be distributed to the intestate heirs as follows: to the illegitimate children (C,D&E).

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Explanation: If the net hereditary estate is P120,000, the same
shall be distributed by simply giving the legitime of the legitimate
child A and the spouse B, and thereafter divide the balance of the
estate equally among C,D&E
ADOPTED CHILDREN:
- Adopted children inherit in the same way as legitime
children (Art. 979, NCC)
- However, under Art. 190 (Family Code) the adopting
parent inherits from the adopted child only in the 4
following instances:
1. The adopting parents concur with the
biological parents of the adopted child. The
legitime of the biological parents is ½ of the
estate (whether the parents are legitimate or
illegitimate). The other half of the estate is
the disposable free portion which Art. 190
awards to the adopting parents.
2. The adopting parents concur with the
illegitimate children or the surviving spouse
of the adopted child. The legitime of
illegitimate children is ½ of the estate. In the
alternate case, the legitime of the surviving
spouse is likewise ½ of the estate. In either
case, the other half of the estate which Art.
190 (Family Code) awards to the adopting
parents represents the disposable free
portion.
3. The adopting parents concur with the
illegitimate children and the surviving
spouse of the adopted child. The legitime of
the illegitimate children is ⅓ of the estate
(Art. 894, NCC). Art. 190 (Family Code)
awards the remaining ⅓ portion of the
estate, the disposable free portion, to the
adopting parents.
4. There are no descendants, ascendants, or
collateral relatives surviving the adopted
child. The law rewards the entire estate to
the adopting parents in lieu of the State,
- Note: the adopting parents are not compulsory heirs
of the adopted child but rather, it is the biological
parents, hence:
Biological parents or 1/2 biological
parent/ascendant; 1/2
legitimate ascendants +
adopter adopter
Spouse or illegitimate 1/2 spouse or illegitimate
children + adopter children; 1/2 adopter
Spouse + illegitimate 1/3 spouse; 1/3 illegitimate
children + adopter children; 1/3 adopter
Adopter alone Entire estate
- In sum, succession to the adopted child is based on
his biological relationship, disregarding the fact of his
adoption by the adopting parents, except under Art.
190, Family Code.
60 WILLS AND SUCCESSION
ASCENDING DIRECT LINE
Article 985. In default of legitimate children and descendants of the
deceased, his parents and ascendants shall inherit from him, to the
exclusion of collateral relatives.
Article 986. The father and mother, if living, shall inherit in equal
shares.
Should one only of them survive, he or she shall succeed to the
entire estate of the child.
Article 987. In default of the father and mother, the ascendants
nearest in degree shall inherit.
Should there be more than one of equal degree belonging to the
same line they shall divide the inheritance per capita; should they
be of different lines but of equal degree, one-half shall go to the
paternal and the other half to the maternal ascendants. In each line
the division shall be made per capita.
ASCENDING DIRECT LINE (Parents, Grandparents, and
Beyond):
- They inherit by intestacy only in default of children
and descendants or adopted child of the deceased
(Art. 985, NCC). Ascendants exclude collaterals.
- Parents inherit in equal shares; provided the survivor
between them takes the entire share (Art. 986, NCC).
- In default of parents, the ascendants nearest in
degree inherit; maternal and paternal lines inherit per
stirpes subject to equal division per line (Art. 987,
NCC)
ILLEGITIMATE CHILDREN
MEANING OF ILLEGITIMATE CHILDREN:
- Children conceived and born outside a valid marriage
are illegitimate, except as otherwise provided by the
family code. (Art. 165, Family Code)
ILLEGITIMATE CHILDREN AS CONCURRING INTESTATE
HEIRS:
Article 988. In the absence of legitimate descendants or
ascendants, the illegitimate children shall succeed to the entire
estate of the deceased.
- Art. 988, NCC is premised on the assumption that the
decedent died without a surviving legitimate or
adopted child, legitimate parents or other legitimate
ascendants, and spouse.
- Illegitimate children cannot concur with illegitimate
parents as well as collateral relatives of the decedent.
DEL PRADO vs. SANTOS
GR no. L-20946, September 23, 1966
ISSUE: Who has a better right to the parcel of land left by the
Anastacio, is it Plaintiff Eugenio (legitimate brother of deceased
Anastacio), or minor Jesus (illegitimate son of deceased
Anastacio)?
RULING: Appellant contends: Even if said minor is the illegitimate
 WILLS AND SUCCESSION
Morillo Quick Reviewer
son of the deceased, the latter never recognized him as such, no
showing having been made that it was at the instance or with the
consent of the deceased that said minor was entered as his son in
the civil registry or that the birth certificate where the recognition
appears authentic.
Appellant's position is untenable. The facts stipulated by him and
by appellee are clear: "the deceased Anastacio C. del Prado and
defendant Aurea S. Santos cohabited with each other without the
benefit of matrimony; as a result of that cohabitation, the late
Anastacio C. del Prado and defendant Aurea S. Santos had one
son — the minor Jesus S. del Prado — who was born on
December 19, 1957, and whom Anastacio C. del Prado admitted to
be his son in the latter's birth certificate."
Example:
The decedent (with an estate of P90,000) is survived by his
legitimate parents (A&B), and by 3 illegitimate children (X,Y&Z). The
estate shall be divided into 2 equal parts. The first half shall pertain
to the legitimate ascendants who shall divide the same equally
between them (or otherwise consolidated to the lone surviving
ascendant). The other half shall pertain to the illegitimate children
who shall divide the same equally between or among themselves
(or otherwise to the sole owner.
A 22,500
Legitimate Parents (½ of the
estate)
[90,000/2)/2 = 25,000] B 22,500

Since Anastacio C. del Prado died in 1958 the new Civil Code
applies (Article 2263). Illegitimate children other than natural are X 15,000
entitled to successional rights (Article 287). Where, as in this case,
the deceased died intestate, without legitimate descendants or Illegitimate Children (½ of the
ascendants, then his illegitimate child shall succeed to his entire estate) Y 15,000
estate (Article 988), to the exclusion of appellant who is only a
collateral relative. [90,0000/2)/3 = 15,000]
Z 15,000
RIGHT OF REPRESENTATION:
Article 988. In the absence of legitimate descendants or Total: 90,000
ascendants, the illegitimate children shall succeed to the entire
estate of the deceased.
If A predeceased the decedent, the estate shall be distributed as
follows;
Article 989. If, together with illegitimate children, there should
survive descendants of another illegitimate child who is dead, the Legitimate Parents (½ of the
B 45,000
former shall succeed in their own right and the latter by right of estate) [90,000/2 = 45,000)
representation.
Illegitimate Children (½ of the X 15,000
estate)
- In the succession to the parents of the deceased
illegitimate child, a predeceased illegitimate child [90,0000/2)/3 = 15,000]
Y 15,000
may be represented by his or her children or
descendants (Whether legitimate or illegitimate).
While Art. 989 specifically refers to the representation Z 15,000
of a predeceased illegitimate child, the right of
representation is likewise exercisable by such
Total: 90,000
children or descendants in cases of incapacity and
disinheritance of an illegitimate child.
If X&Y predeceased the decedent without descendents who may
Example:
exercise the right of representation,, the estate shall be distributed
Decedent A is survived by his 3 illegitimate children (B,C&D) each as follows:
having their own illegitimate child. (1) E is the illegitimate child of B;
Legitimate Parents (½ of the
(2) F is the illegitimate child of C; and (3) G is the illegitimate child of A 22,500
estate)
D.
[90,000/2)/2 = 25,000]
If B predeceased A, and C is incapacitated to inherit from A, and A B 22,500
disinherited D, the grandchildren E,F&G may exercise the right of
representation.
Illegitimate Children (½ of the
Z 45,000
However, if B,C&D collectively repudiates A’s inheritance, E,F&G estate) [90,000/2 = 45,000]
will inherit from A in their own right as second degree relatives in
the descending line. The right of representation in Art. 989 is a new Total: 90,000
right conferred upon illegitimate children.

If X predeceased the decedent but has 2 legitimate children D&E,

ILLEGITIMATE CHILDREN CONCURRING WITH the estate shall be divided as follows:
LEGITIMATE ASCENDANTS:
- If legitimate ascendants are left, the illegitimate A 22,500
children shall divide the inheritance with them, taking Legitimate Parents (½ of the
estate)
one-half of the estate, whatever be the number of the
[90,000/2)/2 = 25,000]
ascendants or of the illegitimate children. (Art. 991, B 22,500
NCC)

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- The illegitimate child cannot inherit by operation from
any member of the legitimate family, nor can the
Y 15,000
Illegitimate Children (½ of the latter inert from the former. (Cacho vs. Udan, GR no.
estate) L-19996, April 30, 1965
[90,0000/2)/3 = 15,000]
Z 15,000
Application of The Barrier in the Collateral Line:
1. The barrier applies among relatives in the collateral
D 7,500 line (Corpus vs. Corpus, GR no. L-22469, oCTOBER
Representing X 23, 1978).
[15,000/2 =7,500]
2. The barrier applies to an illegitimate child who seeks
E 7,500
to inherit by operation of law from half-blood sibling
in the legitimate line (Manuel vs. Ferrer, GR no.
Total: 90,000 117246, August 21, 1995).
3. If it is alleged that the barrier applies, the probate
court may inquire into the filiation of the person
seeking to inherit (Leonardo vs. CA, GR no. L-51263,
February 28, 1983).
IRON CURTAIN RULE (“THE BARRIER”): 4. The barrier applies to illegitimate grandchildren who
- An illegitimate child has no right to inherit ab intestato seek to inherit by operation of law from their
from the legitimate children and relatives of his father grandmother who is from the legitimate family (Diaz
or mother; nor shall such children or relatives inherit vs. IAC, GR no. L-66574, June 17, 1987). This is the
in the same manner from the illegitimate child. (Art. issue raised in the pending case before the SC – a
992, NCC) challenge to the Diaz ruling.
- The barrier applies only to intestate succession and
right of representation but this cannot apply and
invoked in testamentary succession where an SURVIVING SPOUSE
illegitimate relative is instituted as an heir, or given a
legacy or devise, by a relative coming from the
TABLE SUMMARY OF THE INTESTATE SHARE OF THE
legitimate line, and vice versa.
SURVIVING SPOUSE:
Reason for the Barrier: Concurring Heirs Intestate Share
- The reason for the barrier is the presumed animosity
between the legitimate and illegitimate family. (Vda. Spouse alone (Art. 995) Entire estate
de Crisologo vs. CA, GR no. L-44051, June 27,
1985)., which presumption (in the opinion of Manresa) Spouse + Legitimate Children Same share as a legitimate child
is conclusive. or Descendants (Art. 996)

VDA. DE CRISOLOGO vs. CA ½ of the estate - Spouse

Spouse + Legitimate Parents
GR no. L-44051, June 27, 1985 ½ of the estate - Legitimate
or Ascendants (Art. 997)
Parents divided per capita
It is clear from the records that the petitioners cannot between them; or Divided per
inherit the properties in question because of Article 992 Stirpes between the paternal
of the Civil Code. Being relatives on the legitimate line of and maternal lines in the case of
Julia Capiao they cannot inherit from tier illegitimate other legitimate ascendants
daughter. Their relative Julia Capiao predeceased the
daughter, Lutgarda Capiao As explained by Manresa,
Spouse + Illegitimate Parents ½ of the estate - Spouse
whom the private respondents cited:
(Art. 993) ½ of the estate - Illegitimate
parents divided per capita
“Between the natural child and the legitimate relatives of
between them
the father or mother who acknowledged it, the Code
denies any right of succession. They cannot be called
relatives and they have no right to inherit. Of course, Spouse + Illegitimate Children ½ of the estate - Spouse
there is a blood tie, but the law does not recognize it. In (Aert. 998) ½ of the estate - Illegitimate
this Article 943 is based upon the reality of the facts and children divided equally among
upon the presumptive will of the interested parties; the them.
natural child is disgracefully looked down upon by the
legitimate family; the legitimate family is, in turn, hated by Spouse + Legitimate + Spouse gets a share equal to
the natural child; the latter considers the privileged Illegitimate Children (Art. 999) that of a legitimate child.
condition of the former and the resources of which it is
thereby deprived; the former, in turn, sees in the natural The illegitimate children gets
child nothing but the product of sin, a palpable evidence half of the share of legitimate
of a blemish upon the family. Every relation is ordinarily children which shall be taken
broken in life; the law does no more than recognize this from the free portion after
truth, by avoiding further grounds of resentment. (7 payment of the share of the
Manresa, 3rd ed., p. 110).” spouse. If the estate is not
sufficient to pay the full intestate
NOTE: In this case, the conclusiveness of the shares of the illegitimate
presumption of animosity is under review. children, the ballance of the
balance estate after payment of
The Barrier Operates Bilaterally: the share of the spouse shall be

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divided equally among the Total: 90,000
illegitimate children.

Spouse + Legitimate Parent ½ of the estate - Legitimate

or Ascendants + Illegitimate
Children (Art. 1000)
Parents (divided per capita
between them) or other
legitimate ascendants (divided
per stirpes between paternal
and maternal lines).
¼ of the estate - Spouse
Explanation: While neither A nor B inherited from the
decedent, the intestate share of the surviving spouse must be
computed as though there was a concurring legitimate child.
The grandchildren (X,Y&Z) who inherit by right of
representation will merely get that which would have
otherwise pertained to their parents (A&B)

Spouse + Brothers & Sisters
and.or their Descendants (Art.
1001)
¼ of the estate - Illegitimate 2. Assume that A&B repudiated the inheritance, the estate of
Children divided equally among the decedent shall be distributed as follows:
them.
Heir Source of Right Amount
½ of the estate - Spouse
C Intestate share as surviving spouse 15,000
½ of the estate - Brothers &
Sisters, subject to the right
representation of nephews and X Intestate share in his own right 15,000
nieces (without prejudice to
nephews and nieces inheriting Y Intestate share in his own right 30,000
in their own right) and subject
further to the provision of Art. Z Intestate share in his own right 30,000
1006.
Total: 90,000

NOTES:
- The surviving spouse is a concurring intestate heir;
neither excluded by descendants, ascendants, nor by
the brothers/sister of the deceased spouse. But she
excludes all other collaterals.
- The successional right of the surviving spouse
presupposes that there was a valid marriage with the
deceased spouse; or a voidable marriage which was
not annulled. In a void marriage, or a marriage which
was annulled, there will be no surviving spouse.
- Note the successional disqualification of a surviving
spouse who is the offending party in legal separation.
- If the spouse survives with one legitimate or adopted
child, he/she inherits by intestacy one-half of the
hereditary estate (Santillon vs. Miranda, GR no. L-
19281, June 30, 1965).
SPOUSE CONCURRING WITH GRANDCHILDREN:
- If the spouse concurs with grandchildren inheriting by
right of representation, the intestate share of a
spouse must be calculated on the basis of the
intestate share of 1 legitimate child.
NOTE: With the repudiation of the inheritance by A&B,
succession flowed to the descendants next in degree which
are the grandchildren, who in this instance inherited in their
own right. While Art. 996 gives the spouse the same intestate
share as a legitimate child, it does not contemplate a case
where the grandchildren inherit in their own right. If Art. 996
were to be applied in this case by analogy, the surviving
spouse would be disadvantaged. The legitimate children can
technically reduce the intestate share of the surviving spouse
by simply renouncing the inheritance of the decedent.
COLLATERAL RELATIVES
Article 1003. If there are no descendants, ascendants, illegitimate
children, or a surviving spouse, the collateral relatives shall succeed
to the entire estate of the deceased in accordance with the
following articles.
Article 1004. Should the only survivors be brothers and sisters of
the full blood, they shall inherit in equal shares.

ILLUSTRATION:
1. The decedent is survived by X &Y, legitimate children of
the predeceased son (A), Z, legitimate child of the
predeceased son (B), and by C, the surviving spouse. The
net hereditary estate is P90,000. the estate of the
decedent shall be distributed as follows:
Heir Source of Right Amount
Article 1005. Should brothers and sisters survive together with
nephews and nieces, who are the children of the descendant's
brothers and sisters of the full blood, the former shall inherit per
capita, and the latter per stirpes.
Article 1006. Should brother and sisters of the full blood survive
together with brothers and sisters of the half blood, the former shall
be entitled to a share double that of the latter.

X Representing A’s intestate share
Y Representing A’s intestate share
Z Representing A’s intestate share
C Intestate share as surviving spouse
15,000 Article 1007. In case brothers and sisters of the half blood, some
on the father's and some on the mother's side, are the only
15,000 survivors, all shall inherit in equal shares without distinction as to
the origin of the property.
30,000
Article 1008. Children of brothers and sisters of the half blood shall
succeed per capita or per stirpes, in accordance with the rules laid
30,000
down for brothers and sisters of the full blood.

Article 1009. Should there be neither brothers nor sisters nor

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children of brothers or sisters, the other collateral relatives shall
succeed to the estate.
The latter shall succeed without distinction of lines or preference
among them by reason of relationship by the whole blood.
Article 1010. The right to inherit ab intestato shall not extend
beyond the fifth degree of relationship in the collateral line.
NOTES:
- Collateral relatives are classified into two groups: (i)
the brothers and sisters of the deceased, and (ii) all
other collaterals within the fifth degree of
consanguinity.
- Brothers and sisters are preferred over other
collaterals; in fact, the former exclude the latter.
- Brothers and sisters are excluded by descendants
and ascendants of the decedent, but they concur
with the surviving spouse.
- Brothers and sisters inherit in their own right, but they
may be represented by their children (if concurring
with at least one brother or sister of the decedent),
subject to the barrier in Art. 992, NCC.
- Full-blood brothers and sisters inherit twice as much
as half-blood brothers and sisters (Art. 1006, NCC)
THE STATE
Article 1011. In default of persons entitled to succeed in
accordance with the provisions of the preceding Sections, the State
shall inherit the whole estate.
Article 1012. In order that the State may take possession of the
property mentioned in the preceding article, the pertinent provisions
of the Rules of Court must be observed.
Article 1013. After the payment of debts and charges, the personal
property shall be assigned to the municipality or city where the
deceased last resided in the Philippines, and the real estate to the
municipalities or cities, respectively, in which the same is situated.
If the deceased never resided in the Philippines, the whole estate
shall be assigned to the respective municipalities or cities where the
same is located.
Such estate shall be for the benefit of public schools, and public
charitable institutions and centers, in such municipalities or cities.
The court shall distribute the estate as the respective needs of each
beneficiary may warrant.
The court, at the instance of an interested party, or on its own
motion, may order the establishment of a permanent trust, so that
only the income from the property shall be used.
Article 1014. If a person legally entitled to the estate of the
deceased appears and files a claim thereto with the court within five
years from the date the property was delivered to the State, such
person shall be entitled to the possession of the same, or if sold,
the municipality or city shall be accountable to him for such part of
the proceeds as may not have been lawfully spent.
STATE AS AN INTESTATE HEIR BY DEFAULT:
- The State is an intestate heir by default; only when
there are no qualified and surviving relatives of the
decedent, thus making the State to succeed out of
necessity.
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- The State inherits thru escheat proceedings. Escheat
is the reversion of property to the State when there is
a failure of persons legally qualified to inherit from the
decedent.
- The escheated personal property shall be awarded to
the municipality/city where the decedent last resided;
the immovable property shall be awarded to the
municipality or city where it is found.
- The escheated property shall be used for the benefit
of (i) public schools, and (ii) public charitable
institutions and centers.
CHAPTER 4
PROVISIONS COMMON TO TESTATE
AND INTESTATE SUCCESSION
SECTION 1 - RIGHT OF ACCRETION
Right of Accretion
1. Definition – a right by virtue of which, when two or
more persons are called to the same inheritance, devise or
legacy, the part assigned to one who renounces, or is
incapacitated, or predeceased, is added or incorporated to
the part assigned to his co-heirs, co-devisees, or co-
legatees.
o This is the second statutory remedy for curing a
vacancy in the inheritance caused by RIP. Accretion in
testamentary succession will prevent the onset of
intestacy with respect to the vacant portion of the
inheritance.
o There is an opinion that accretion may also apply to fill
a vacancy in the inheritance caused by the non-
fulfillment of a suspensive condition attached to the
share of a co-heir, co-devisee or a co-legatee, or to the
nullity of the disposition with respect to a co-heir, co-
devisee, or a co-legatee.
o Accretion is inferior to the testator’s right to appoint a
substitute; there will be no accretion if the testator filled
a vacancy thru the appointment of a substitute in the
instances when substitution is permissible.
o Accretion is also inferior to the right of representation;
there will be no accretion (whether in testamentary or
intestate succession) in the instances where the right of
representation is available.
o Accretion in testamentary succession is not available to
the legitime of a compulsory heir. The vacancy in the
legitime is subject to representation, or if not, the
vacant legitime shall be tacked into the legitime of the
other compulsory heirs.
o Accretion in intestacy does not apply to the legitime
either.
o Accretion in testamentary succession is premised on
the assumption that (i) if the testator bequeathed a
specific property (to several co-legatees or co-
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devisees) or a specific portion of the estate (to several
co-heirs), it is the intention of the testator to give the
same to them exclusively, to the exclusion of all others.
Thus, if there is a vacancy, the law presumes that it is
the testator’s intention to tack in the vacant portion
proportionately to the shares of the other co-heirs, co-
legatees, or co-devisees, to the exclusion of all others.
o Because of the foregoing presumption, and unlike the
right of representation, a testator may prohibit
accretion between or among co-heirs, co-legatees and
co-devisees. Such prohibition will be interpreted to be
the testator’s lack of intention to give the co-heirs, co-
legatees and co-devisees preference over the portions
given them, nor an intention to exclude all other
persons.
o In the same way, no co-heir, co-legatee, or co-devisee
should be forced to accept the accrued portion; he
should be given the option to accept or to repudiate it,
given that accretion is a right conferred by law – not an
obligation. There are, of course, contrary opinions on
the matter which has not be resolved by the SC.
o In intestacy, the right of accretion (it being the last
remedy to cure a vacancy in the inheritance) is meant
to complete the distribution of the hereditary estate.
2. Requisites of Accretion
● Unitary object of the inheritance – This refers to a single
object of the inheritance, either in the form of a single
object or a collection of objects, or a definite portion of the
estate, or the totality of the estate; in short, there is a
single inheritance.
● Plurality of subjects – This refers to the designation of two
or more persons who shall receive the unitary object; i.e., a
property, or a collection of property, or a definite portion of
the estate, or the entirety of the estate is bequeathed to
two or more persons, such that they become co-heirs, co-
legatees, or co-devisees with respect to the unitary object.
● Vacancy in the inheritance – This means that one or some
of the co-heirs, co-legatees, or co-devisees repudiate his
share, or is incapacitated to inherit from the decedent, or
predeceased the decedent (RIP).
● Acceptance of the inheritance by the other co-heirs, co-
legatees, or co-devisees. They are the beneficiaries of the
right of accretion because of their having accepted their
respective shares.
● Non-earmarking of shares of the co-heirs, co-legatees or
co-devisees – In 1017, the words “one-half for each” or “in
equal shares” or any others which, though designating an
aliquot part, do not identify it by such description as to
make each heir the exclusive owner of a determinate
property. In short, non-earmaking means that the co-heirs,
co-legatees or co-devisees were meant to be co-owners
of the unitary object, each acquiring an undivided interest
therein. Therefore, in testamentary succession, if the
testator earmarks or designates specific portions of the
unitary object to the several co-heirs, co-legatees or co-
devisees in such manner as each will acquire the exclusive
ownership of specific portion of the unitary object, there
will be no accretion because there is no co-ownership
among them.
3. Rules of Accretion
● The distribution of the vacant portion to the beneficiaries of
accretion is proportionate to their respective undivided
shares (1019) (excluding the legitime, if also a compulsory
heir). Study and understand the illustrative examples cited
in the book.
● In 1018, the law provides that “in legal succession, the
share of the person who repudiates the inheritance shall
always accrue to his co-heirs. This provision is misleading
because if the vacant portion pertains to a compulsory heir
as his legitime, accretion will not lie (1021). Study and
understand the illustrative examples cited in the book.
● He who benefits from accretion (particularly in
testamentary succession) succeed as well to all the rights
and obligations which applies to the co-heir, co-legatee, or
co-devisee who repudiated, predeceased, or is otherwise
incapacitated (1020). This provision does not apply to
accretion in intestacy as obviously, no such obligation
could have been imposed as there is no testator.
● 1022 is a unique provision as it refers to accretion in
intestacy. The law states: In testamentary succession,
when the right of accretion does not take place, the vacant
portion of the instituted heir, if no substitute has been
designated, shall pass to the legal (intestate) heirs of the
testator, who shall receive it with the same charges and
obligations. This is a unique provision because the charges
and obligations imposed on a testamentary heir under the
will of the testator, shall pass to the intestate heirs who will
receive the vacant portion under the rules of intestacy.
Note that in 960, intestacy results if there is no will, or the
will is void, or the will was revoked.
SECTION 2 - CAPACITY TO SUCCEED
BY WILL OR BY INTESTACY
Capacity to Succeed
1. Definition – It is the fitness of an heir, a legatee or a
devisee to inherit from the testator or the decedent. Based
on the statutory definition (1024) which is couched in
negative terms, it may be deduced that capacity is
presumed; incapacity must be proved.
Note, however, that 1024 makes an erroneous statement:
“The provisions relating to incapacity by will are equally
applicable to intestate succession.
There are 3 types of incapacities referred to in the Code:
(i) incapacity because of possible undue influence (1027),
(ii) incapacity by reason of moral considerations (1028),
and (iii) incapacity by reason of unworthiness (1032).
Items (i) and (ii) apply only to testamentary succession.
Only item (iii) applies to both testate and intestate
succession.
The essential element of capacity to succeed is found in
1025: the heir, devisee or legatee must be living at the
moment succession opens, except (i) when
representation is proper (i.e., the representative takes the
place of the predeceased compulsory heir), and (ii) in the
case of successional right of an unborn child under the
doctrine of presumptive personality in Arts. 40 and 41.
See Parish Priest of Victoria vs. Rigor.
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Juridical entities like the state, LGUs, and private
corporations (whether stock or non-stock, whether for
profit or otherwise), and partnerships, may inherit
because they are given juridical personality. However,
1026 creates an exception in favour of unincorporated
organizations and associations for religious, scientific,
cultural, educational and charitable purposes. Even
without separate juridical personality, they may inherit by
express provision of the law. Ownership of the inherited
property will vest upon the members of such
organizations and associations.
2. Types of incapacity
● Absolute – cannot succeed from any one or inherit
any property under any circumstance (e.g., a person
yet to be conceived at the time succession opens;
the reservees inheriting a reservable property need
not be alive on the death of the prepositus, pursuant
to the theory of delayed intestacy, it being sufficient
that the reserves is at least conceived on the death of
the reservor when succession to the reservable
property opens.)
● Relative – cannot succeed a particular decedent
(e.g., the application of the iron curtain rule in 992,
the persons named in 1027 and 1028) or inherit a
particular property (e.g., the heirs of the reservor
cannot inherit the reservable property)
3. Incapacity by reason of possible undue influence
(1027)
● The priest who heard the confession of the testator
during the last illness; the minister who extended
spiritual aid to the testator during the last illness –
Notice the explicit reference to the “testator,”
implying that this incapacity does not extend to
intestate succession. The law takes into account the
opportunity of the priest and the minister to unduly
influence the testator in making provision for them.
o The confession to the priest need not be the last;
but it must be a confession during the last
illness.
o Testator need not die immediately after the
confession. If he recovers from the illness and
had ample chance to reconsider the disposition
but did not revoke the disposition, the same is
valid. There is an end to the effect of undue
influence.
o No application if the priest rendered other
spiritual aid (not confession); if the alleged undue
influence was made not to favour the priest; if
the disposition to the priest was given before the
confession; the disposition that pertains to the
priest is not economic (e.g., his appointment as
executor of the will); if the priest is a compulsory
heir of the testator (at least with respect to the
legitime.
o Members of the catholic church who are not
priests are not covered.
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o Ministers are incapacitated for any kind of
spiritual aid given to the testator during the last
illness.
o Question: Will the disqualification apply to an
Imam, or a Buddhist monk?
● The relatives of the priest or minister within the 4 th
degree, the church, order, chapter, community,
organization or institution to which he belongs – The
extension of the incapacity is to address a potential
circumvention of the incapacity of the priest or
minister.
● The guardian with respect to testamentary
dispositions given by the ward in his favour prior to
the approval of the final accounts of the guardian;
except if the guardian is an ascendant, descendant,
brother, sister or spouse of the testator –
o A guardian is appointed to take custody of the
ward (an incapacitated person), or to manage the
property of the latter, or both.
o This incapacity has very limited application today
because a person 18 years or older is
emancipated and could execute a will; unlike in
the old dispensation wherein the age of
emancipation is 21, but an 18-year old minor
may execute a will, even if he is under
guardianship. This is the situation addressed by
the law; the opportunity of the guardian to
unduly influence the ward under his custody or
whose property is under his management.
o The incapacity of the ward for reason of mental
disorder is not relevant if such disorder
disqualifies the ward from executing a will.
o There are two types of guardians: (i) legal, i.e.,
guardian who exercises parental authority over
the ward (i.e., parents), and (ii) judicial, i.e., a
guardian appointed by the court. The incapacity
referred to cannot possibly refer to the legal
guardians of the ward.
o There are two three types of judicial guardians: (i)
over the person of the ward, meaning custody of
the ward; (ii) over the management of the
property of the ward, and (iii) over both. Judicial
guardian over the person requires no
accounting; judicial guardianship over the
property requires periodic accounting to the
guardianship court. So, it would appear that
since the disqualification lasts only until the final
accounts of the guardian is approved by the
guardianship court upon the termination of the
guardianship, the incapacity refers to the
guardian over the property of the testator-ward.
But it is the judicial guardian over the person of
the ward has the better opportunity to exert
undue influence on the ward. Thus, the generally
accepted proposition is that the disqualification
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should apply equally to the judicial guardian over
the person and judicial guardian over the
property of the testator-ward.
● An attesting witness to the will, his spouse, parents
or children, or anyone claiming under any of them –
Refer to the discussion in 823 and note the
comparison between 823 and 1027(4).
● The physician, surgeon, nurse, health officer or
druggist who took care of the testator during the last
illness
o The law presumes that the opportunity to unduly
influence the testator may likewise be exploited
by healthcare providers.
o Notice that the incapacity does not extend to the
relatives of the healthcare providers.
o “Taking care” of the testator during the last
illness clearly suggests the continuity of the
provision of healthcare services, as distinguished
from isolated services which do not create a
personal and intimate relationship with the
testator, or the testator’s dependency on the
healthcare provider.
o Notice the enumeration of the healthcare
providers that are specifically disqualified by law.
The enumeration appears to be outdated as
there are other heathcare providers today who
have an equal opportunity to unduly influence
the testator (e.g., licensed caregivers).
o The testator must execute the will during the
illness and while the heathcare services were
being provided. If the will was executed before
that, the disqualification will not apply. If the will
was executed long after the termination of the
services, or long after the testator recovered
from the illness, the disqualification will not apply
either because of the improbability of the
exertion of undue influence; the disposition may
in fact be considered as remuneratory (which is
not prohibited by law).
o Compulsory heirs are not covered by this
disqualification, at the very least, with respect to
the legitime. But even beyond that, a
disqualification would penalize a compulsory heir
who rendered services to the testator.
● Individuals, associations and corporations not
permitted by law to inherit – This is a misplaced
provision as it has nothing to do with undue
influence.
4. Incapacity by reason of morality (1028) – They
cannot inherit from each other by testamentary
succession; there is no disqualification in intestate
succession. The objective of the law is to prevent a
situation where persons who are co-conspirators in a
criminal offense will benefit therefrom or be rewarded
therefor.
o Persons guilty of adultery or concubinage at the time
of the execution of the will – The word “guilty”
suggests the necessity of criminal conviction,
meaning that at the time of the execution of the will,
the testator and the beneficiary have been convicted
of adultery or concubinage.
o Persons found guilty of the same criminal offense, in
consideration thereof – Again, “guilty” suggests prior
criminal conviction prior to the execution of the will.
“In consideration thereof” means that the
testamentary disposition was made in consideration
of the criminal conspiracy, which should not be
rewarded with a testamentary gift. The
disqualification should not affect the legitime if one of
the co-conspirators is a compulsory heir of the other.
But, would it be necessary for the testamentary
disposition to categorically state that the cause of the
same is the recipient’s participation in the criminal
conspiracy? Perhaps not, because the
disqualification is imposed by law and is a matter of
public policy.
o Those given to a public officer, his spouse,
descendant or ascendant, by reason of his office –
This is a patent form of corruption because the
testamentary gift would not have been given had the
recipient not been a public officer. Must the
disposition state that the disposition is made by
reason of the recipient’s holding of a public office?
Perhaps not, because this statement could expose
the testator and the recipient to criminal prosecution
and it is unlikely the testator would do this.
5. Disqualification by reason of unworthiness (1032)
– The incapacity by reason of unworthiness is premised
upon the commission by the heir, legatee or devisee of a
serious offense against the testator which makes him
unworthy of the generosity of the latter. There are 7
grounds for incapacity by reason of unworthiness. All of
them, except one, are grounds for disinheritance (i.e.,
failure of an heir of full age to report to a law officer the
violent death of the testator within 30 days, unless the
authorities have taken action, provided that the incapacity
will not apply if by law there is no obligation to make an
accusation). Refer to the discussion of the various
grounds for disinheritance (919-921) where the same
grounds constitute an act of unworthiness.
o The causes of unworthiness apply both to
testamentary and intestate succession.
o The unworthy heir may be represented by his
descendants (1035), subject to: (i) the iron curtain rule
in 992 and (ii) subject to the rules of representation in
testamentary and intestate succession, respectively.
Therefore, it is important to remember the principles
surrounding the iron curtain rule, and the principles of
representation discussed in 970-977).
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o Incapacity by reason of unworthiness is cured by
condonation.
o Condonation, if express, must be in writing signed by
the testator indicating the offense that is condoned. It
need not comply with the formalities of a will; it need
not be admitted to probate; it need not be notarized.
But it must be made after the commission of the
offense.
o If implied, condonation is inferred from the act of the
testator in providing something for the offender in his
will, knowing fully well that the offender has
committed an offense against him. By providing
something in his will for the offender, it is presumed
that the testator has condoned the unworthy act of
the former.
o Implied condonation is at best conditional because (i)
the will must be admitted to probate before it could
dispose property, and (ii) the testator can revoke that
will at any time before his death. If the will containing
implied condonation is not admitted to probate, the
authenticity of the will is not established. On the other
hand, if the will is revoked, the testamentary
disposition in favour of the offender is ineffective. In
either case, non-admission of the will to probate
makes the implied condonation ineffective.
o Note that condonation (which cures incapacity by
reason of unworthiness) is not the same as
reconciliation (which renders disinheritance
ineffective). Refer to the discussion of reconciliation
in 922.
6. Effects of incapacity
● The incapacitated heir may be represented by his
descendants (1035), but he shall not enjoy the
usufruct and be entitled to the administration of the
property acquired by his descendants by
representation.
● If the incapacitated heir has performed acts of
administration prior to the declaration of his
incapacity and the judicial order of exclusion, the
acts are valid as to third persons who acted in good
faith; but the co-heirs shall be entitled to indemnity
for damages against the incapacitated heir (1036).
● But the incapacitated heir shall be entitled to recover
the expenses he incurred for the preservation of the
property, and to enforce such right against the estate
(1037). The basis of recovery of necessary expenses
is unjust enrichment of the estate.
● The incapacitated heir who disregards the
consequences of his incapacity and enters into
possession of the property shall be obliged to return
it together with its accession (fruits and interest).
Further, he shall be liable for the unrealized fruits and
rent that could have been received through the
exercise of due diligence (1038).
7. Other significant rules
● Action for the declaration of incapacity and for the
recovery of the inheritance prescribes in 5 years from
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the time the incapacitated heir took possession of the
property. The action may be brought by any heir who
has an interest in the hereditary estate (1040).
● The incapacity of an heir, legatee or devisee, is
governed by the national law of the decedent (1039).
8. Special Testamentary Dispositions – These
dispositions are those made in favour of those who are
not natural persons, or those who are not individually
specified.
● Institution of the testator’s soul (1029) - It is a
disposition of property, in general terms, for prayers
and pious works for the benefit of the testator’s soul.
The property shall be divided equally between (i) the
church or denomination to which the testator
belongs, to be used for prayers and pious works, and
(ii) the State, to be used for the benefit of public
schools, and public charitable institutions and
centers (1013). Note that a person’s soul in truth
cannot be instituted because it has no juridical
personality.
Requisites:
o The disposition for payers and pious works shall
be made in general terms without specifying the
nature of the prayers or pious works, or
otherwise specifying the application of the
property; otherwise, the specified application
shall be followed.
o The testator’s intention is to give benefit to his
soul.
o No particular person is charged with the
implementation of the disposition; otherwise that
person will determine the application of the
property.
o The disposition is a burden on the estate, not on
any particular heir, legatee or devisee.
● Institution of the poor in general – This is an
example of a class institution. The heirs are instituted
as a class, not as individuals. Therefore, there is a
need to identify the persons who belong to the
instituted class.
o The selection of the individuals who will form
part of the class are limited to those living in the
domicile of the testator at the time of his death,
unless the testator otherwise specified.
o The authority to identify these persons rests with
the person appointed by the testator for the
purpose, failing which, the executor, failing
which, collectively the municipal mayor,
municipal treasurer, and municipal judge
(requiring a majority vote); in all cases, the
designation of the beneficiaries shall be
approved by the probate court.
o The delegation of the power to identify the
beneficiaries is not a delegation of testamentary
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discretion, but a delegation of the power to
implement the testamentary disposition.
● Disposition in favour of an incapacitated person
(1031) – The disposition is void, but this refers only to
those incapacitated by reason of undue influence and
those incapacitated by reason of morality. It does not
apply in general to a disposition in favour of a person
incapacitated by reason of unworthiness, because
under certain conditions, the disposition may be
construed as an implied condonation.
o The objective of the law is to prevent a
circumvention of the incapacity of the heir.
o The customary mode of circumvention is to
simulate the disposition as a separate onerous
contract, or through the intervention of an
intermediate party to conceal the privity between
the testator and the incapacitated heir, legatee
or devisee.
o This circumvention is not done in the will itself,
otherwise the circumvention would be patent.
SECTION 3 - ACCEPTANCE AND REPUDIATION OF THE
INHERITANCE
Acceptance and Repudiation of the Inheritance
1. Characteristics of acceptance and repudiation
● It is a free and voluntary act (1041) – no one can be
forced to accept or repudiate an inheritance. If there
are several heirs, they can each independently
exercise the right to accept or to repudiate the shares
respectively pertaining to them (1054).
● The effect is retroactive to the moment of the death
of the decedent. The rights to the inheritance are
transmitted from the moment of the death of the
testator. The acceptance or repudiation therefore, is
but a confirmation that succession has or has not
transferred ownership to the heir.
● It requires certainty of the death of the testator, and
the heir’s entitlement to the inheritance. Death
triggers succession, without which there can be no
successional transfer of the inheritance. Certainty of
entitlement means a number of things. In
testamentary succession, it means the allowance of
the will, a determination that the disposition in favour
of the heir is valid, and a determination that the heir is
capacitated to succeed the testator, a residual estate
after the payment of debts and taxes, non-
impairment of the legitime, if any. In intestacy, it
means a residual estate after payment of debts and
taxes, the entitlement to the inheritance under the
order of intestate succession, and capacity to
succeed the decedent.
● The right to accept or reject an inheritance belongs to
the heir, legatee or devisee. If he was unable to
exercise this right because he died, the right passes
to his own heirs (1053).
● Once an heir has accepted or repudiated an
inheritance, the same is irrevocable (1056) except if
his decision is vitiated (mistake, violence,
intimidation, undue influence, and fraud).
2. Who may accept/repudiate
● Any person with free disposal of his property; i.e.,
there are no restrictions on his ability to dispose
property (1044). Therefore:
o Minors and incapacitated persons may accept
and inheritance thru their guardians, but
repudiation by a guardian needs judicial
authorization because repudiation is a
disposition of property constituting an act of
ownership which is beyond the authority of a
guardian. See Guy vs. CA where a parent waived
the hereditary rights of her illegitimate children
from their father. In addition, repudiation may be
challenged by a defrauded creditor who may
petition the court to accept the same (1052)
o Acceptance of the institution of the poor in
general (1030) shall be accepted by the person
designated to identify those who will benefit from
the class institution.
o For bequests to private juridical entities,
acceptance shall be made by their lawful
representatives (1045 in relation to Sec. 23,
Corporation Code - the board of directors, for a
corporation). But repudiation needs court
approval (recall the trust fund doctrine in
Corporation Law).
o For public official establishments – acceptance
or repudiation requires the approval of the
government (1046). Public official establishment
refers to institutions that perform non-
governmental functions (e.g., national museum,
national library, the CCP). Acceptance or
repudiation requires the approval of the agency
to which they are attached.
o For a married woman, she is free to accept or
repudiate an inheritance (1047); does not require
the consent of the husband even under an ACP
because the inheritance would fall under her
paraphernal.
o For literate deaf-mute, he can accept or
repudiate personally or through an agent. But if
he is illiterate, he is considered incapacitated to
act and therefore needs the intervention of a
guardian (1048); but in case of repudiation, he
must obtain judicial approval.
o If an heir is called to the succession both as a
testamentary and intestate heir (obviously a case
of partial intestacy), and he repudiates his
testamentary share, he is deemed to have
repudiated his share as an intestate heir. Refusal
to accept what is due him by will results in a
derivative conclusion that he would not be
predisposed to accept that which may be due
him by law. But if he repudiated his intestate
share not knowing that he has a testamentary
share, he may still be permitted to accept his
testamentary share. Rejection of what is due him
by law does not equate to a rejection of what is
due him by the generosity of the testator (1055).
3. Kinds of Acceptance (1049)
● Express – requires a public or private instrument; in
short, in writing
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● Tacit – Acceptance is implied from the acts of the
heir, legatee, or devisee by which the intention to
accept is necessarily implied, or an act which such
heir, legatee or devisee would have to right to do
except if he had accepted the inheritance. Such acts
that imply acceptance are (1050):
o Selling, donating or assigning his right to a
stranger or to a co-heir – He could not have sold,
donated, or assigned something which he did
not own. Therefore, by doing so, he impliedly
accepted the inheritance.
o Repudiation of the inheritance for the benefit of
one or more co-heirs – While he acted as though
he repudiated, he could not have done so for the
benefit of a co-heir if he did not own that which
he relinquished for someone else. This form of
tacit acceptance, however, requires that the
repudiating heir must identify the co-heir in
whose favour he is repudiating his share. If no
such beneficiary is named, there is a real case of
repudiation, in which case, the repudiated
portion shall pertain to the substitute heir, if the
testator appointed one, or to the other co-heirs
collectively and proportionately, under the right
of accretion.
● Presumed – Acceptance is presumed if after 30 days
after the court issued the order of distribution the
heir, legatee or devisee failed to signify his
acceptance or repudiation of the inheritance (1057).
The reason for the law is to prevent holding hostage
the settlement of the estate of the deceased person
by the mere inaction of the beneficiaries.
4. Form of Repudiation – requires a public instrument
(could be done in the deed of extrajudicial partition which
is notarized) or thru an authentic document (e.g., a
manifestation in the probate court confirming the
repudiation (1051). Repudiation requires a specific form
because (i) it is in fact a property disposition, (ii) it could
have a material adverse effect on the patrimony of the
repudiator which in turn could affect his ability to service
his debts and his ability to provide support to those he is
obliged to support, and (iii) it results in a vacancy in the
inheritance that triggers the application of statutory
solutions (e.g., accretion) and the possible application of
the rules of intestacy. The re-alignment of the distribution
of the hereditary estate cannot be justified on the basis of
mere presumptions.
5. Right of an unpaid creditor to accept the
repudiated share of an heir (1052) – If the repudiation of
an inheritance by an heir would prejudice his unpaid
creditor (e.g, he would be unable to pay after having
repudiated the inheritance), the latter may petition the
court to be authorized to accept the same, to be applied
to his claim.
● The right of a creditor to accept the inheritance
cannot exceed the amount of his unpaid claim.
● The unpaid claim has to be proved and must be
existing. See Leviste vs. CA where the court rejected
the request of the unpaid creditor.
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● In any case, before a creditor makes such a petition,
he debtor-heir’s right to the inheritance must be
established; i.e., if the settlement of the estate is
judicial and testamentary, the will has been admitted
to probate, debts and taxes have been paid, legitime
is not impaired, the debtor-heir is capacitated to
inherit from the testator, his share may be lawfully
given him. If the settlement is by intestacy, the
petition must be filed before the intestate court. If the
decedent died intestate and the settlement of the
estate is extrajudicial, the unpaid creditor must
ventilate his claim in a court of general jurisdiction.
● In any case, the creditor’s resort to this remedy must
be initiated before the final liquidation f the estate of
the decedent, because after which, the jurisdiction of
the probate or intestate court ends.
● Note that the right to accept the inheritance on behalf
of the repudiating heir presupposes that succession
has opened. If the testator is still alive, the unpaid
creditor cannot make a claim on the future
successional rights of the debtor-heir.
SECTION 4 - EXECUTORS AND ADMINISTRATORS
Article 1058. All matters relating to the appointment, powers
and duties of executors and administrators and concerning
the administration of estates of deceased persons shall be
governed by the Rules of Court. (NCC)
Article 1059. If the assets of the estate of a decedent which
can be applied to the payment of debts are not sufficient for
that purpose, the provisions of articles 2239 to 2251 on
Preference of Credits shall be observed, provided that the
expenses referred to in article 2244, No. 8, shall be those
involved in the administration of the decedent's estate. (NCC)
Article 1060. A corporation or association authorized to
conduct the business of a trust company in the Philippines
may be appointed as an executor, administrator, guardian of
an estate, or trustee, in like manner as an individual; but it
shall not be appointed guardian of the person of a ward.
(NCC)
SECTION 5 - COLLATION
What is collation?
It is the process of bringing back to the estate of a
decedent the things he had donated in his lifetime, or their
values at the time they were given, without regard to
subsequent appreciation or depreciation in value, or even total
loss, of the property donated (Art. 1071), so that they may be
accounted for in the computation of the legitime of
compulsory heirs (Art. 1061). Collation is irrelevant if (i) the
testator has no surviving compulsory heir (Arellano vs.
Pascual) (collation is required in order to preserve the
legitime), and (ii) the only donee is also the sole compulsory
heir of the donor (which makes collation an idle process).
Collation is an integrated 4-step process. Study and
understand the illustration cited in the book.
First, collation Collate the donations inter vivos by adding
of all the value thereof to the net hereditary estate
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donations (i.e., assets minus liabilities and taxes); the
inter vivos sum is the theoretical hereditary estate.
Second, Using the theoretical hereditary estate as the
calculation of base, calculate the legitime of the compulsory
the legitime heirs of the donor-decedent. If the total
legitime is equal to or less than the net
hereditary estate, the donations inter vivos
did not impair the legitime. The donees may
keep the same and such donations shall be
honored.
Third, In the distribution of the net hereditary estate,
imputation of the donations inter vivos shall first be
the donations imputed. Donations to compulsory heirs shall
inter vivos be charged as advances of the legitime; i.e.,
the donation shall be included in the legitime,
unless the donor stipulated that the donation
shall be non-collationable, in which case the
donation to the compulsory heir shall be
charged to the free disposal. Donations to
strangers shall be charged to the free
disposal.
Fourth, If after calculating the legitime it should turn
reduction or out that the net hereditary estate is
abatement of insufficient to pay the legitime, the donations
donations, as inter vivos would be inofficious. These
may be donations shall either be reduced or
necessary otherwise totally abated in order to pay the
legitime in full. The reduction or abatement
will follow the inverse order; i.e., last donation
in-first donation out.
What are the two kinds of collation?
Definition
Collation requires the donee to return the donated
in Kind thing; resorted to if such donation impaired
the legitime of the compulsory heirs (inferred
from 912 and 1076)
Collation value of the donation is notionally added back
to the net hereditary estate of the donor-
in value
decedent for the purpose of calculating the
legitime of the compulsory heirs (908, 1071). If
the donation did not impair the legitime, the
donee is not required to return the donated
thing.
How do collation in value and collation in kind work?
The Civil Code did not explain this enigma. What is
clear though is that the Code was irrationally shifting from
collation in kind to collation in value without an explanation
for the shift. Dr. Tolentino suggested the following (which
seems to be a reasonable interpretation of the conflicting
provisions of the law).
o The first step of collation (as outlined above) is purely
collation in value. The purpose of collation here is
merely to determine whether or not the donations inter
vivos made by the donor-decedent impaired the
legitime.
o If after collation in value it is determined that the
donations inter vivos did not impair the legitime, the
same shall be honored; the donees may keep the
donated property; the value of all such donations are
charged to (or deducted from) the free disposal; the net
hereditary estate shall be distributed to the heirs.
o If after collation in value it is determined that the
donations inter vivos impaired the legitime, the collation
will have to shift in kind; i.e., the donees may have to
make cash reimbursement to the estate or return the
donated property in order that the legitime of the
compulsory heirs may be paid in full.
o As explained in the book, reimbursement in cash if the
fairest of all practical solutions to the impairment of the
legitime. The abatement of the donation (recovery of
the property in an inofficious donation) may result in
under-recovery of the impaired legitime, or the over-
reimbursement by the donee.
What are the purposes of collation?
o If the donation was given to a stranger, the
preservation of the legitime of compulsory heirs by
making sure that the donations made by the donor in
his lifetime did not impair the legitime of the
compulsory heirs.
o If the donation was given to a compulsory heir,
collation is meant to equalize the shares of the
compulsory heirs. In sum, a donation to a compulsory
heir (unless declared non-collationable by the donor) is
not meant to give an advantage to the donee; the
donation is considered as an advance of the legitime.
Study and understand the Illustrative example cited in
the book that shows how the legitime of compulsory
heirs is equalized.
o Equalization of the legitime of the compulsory heir is
both quantitative (donation is an advance of the
legitime) and qualitative (equality even as to the nature
of the property donated in 1073)
Who are obliged to collate?
All donees are obliged to bring to collation whatever they
had received from the donor inter vivos, in the settlement of
the latter’s estate. Remember, collation seeks to preserve the
legitime. Thus, all donations must be collated, otherwise
leakages in the patrimony of the donor which are not collated
may result in the impairment of the legitime.
o A surviving spouse can never be obliged to collate
because every donation (not customary gifts) given to
such surviving spouse by the deceased spouse is
void (FC 87).
o If a predeceased donee received a donation inter
vivos from his/her parents, the same is not
collationable by his/her surviving spouse in the
settlement of the estate of the parent-donor
(Vizconde vs. CA). The obligation to collate pertains
personally to the donee. Thus, the donation to the
predeceased donee, while collationable, shall be
charged to the free disposal because the
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predeceased donee never had a chance to inherit
from the donor. Read Vizconde carefully and
understand the decision.
o Grandchildren who inherit from a grandparent in
representation of their parent must bring to collation
the donation which their parent had received from
their grandparent (1064). This is because
grandchildren inheriting by right of representation (by
subrogation) merely acquire the rights which would
have pertained to their parent (Art. 970). In sum, the
donation to the parent is an advance of what the
parent is entitled to receive from the grandparent,
and it does not matter that the children did not
benefit from such donation. Study and understand
the illustrative example cited in the book.
o A person who inherits from his parent is not obliged
to bring to collation the donation given to his/her
children or descendant by his deceased parent; (Art.
1065) but such donation shall nonetheless be
brought to collation by the donees in order to
determine if the legitime was impaired. The donation
shall be imputed or charged to the free disposal (Art.
1064).
that the educational expenses for obtaining a
profession or vocation is not collationable.
o the presumptive legitime given to children in the cases
specified in the Family Code;
o sums paid by a parent in satisfaction of the debts of his
child, election expenses, fines, and similar expenses
(Art. 1069); and
o wedding gifts (consisting of jewelry, clothing and outfit)
given by parents or ascendants on the occasion of the
wedding of a child or descendant; but a wedding gift
not exceeding 1/10 of the free disposal will not be
charged to the legitime of the recipient, but to the free
disposal (Art. 1070). The wedding gift in 1070 is not the
same as a donation propter nuptias.
Donation Propter Nuptias Wedding Gift in 1070
Object is not specified. Object is jewelry, clothing
and outfit
Donor may be any person Donor must be a parent or
qualified to give a donation ascendant of the donee

o A donation given by a person to his or her son-in-law If given by a parent, the The done must be a child or
or daughter-in-law, while collationable, is charged to donee is either the child, the descendant of the donor;
the free disposal because the donee is not a future spouse, or both of cannot include the future
compulsory heir of the donor. But more importantly, them jointly spouse of the child or
the spouse of such donee is not liable to bring to descendant.
collation the value of the gift to his or her spouse in
the settlement of the estate of his or her parent-donor
Donation must be given Donation may be given at
(1066). In sum, the donation to a child is collationable
and is deemed an advance of the legitime of such before the celebration of the any time before or after the
child. But a donation to the spouse of that child is a marriage. marriage.
donation to a stranger, and therefore chargeable to
the free disposal. Study and understand the Donation is governed by the The donation is non-
illustrative example cited in the book. rules of ordinary donation, as collationable to the extent
modified by the Family Code. not exceeding 1/10 of the
What must be brought to collation? Thus, it is collationable in full, value of the free portion of
o all gratuitous conveyances (donations) made by a
except if declared by the the hereditary estate of the
person in his lifetime, excluding amounts received by
way of support, or as customary gifts (Art. 1067); donor to be non- donor.
expenses for support is not a gift (or an act of liberality collationable.
or generosity) of the parent to the child; it is an
obligation imposed by law on the parent to the child.

o expenses incurred by the parent for the education of
the child; this is, under the Family Code, part of
support. In 1068, it would seem that a child’s right to
education is limited, because this provision gives the
parent the option to require the child to collate the
expenses incurred in giving the child a professional,
vocational, or other career. The implication of 1068 is
that the obligation of the parent in respect of the
education of the child is limited to the completion of
secondary education (up to high school only) such that
anything beyond that is considered a gift from the
parent which the latter may require to be collated.
However, Art. 194 of the Family Code in part provides
as follows: “The education of the person entitled to be
supported referred to in the preceding paragraph shall
include his schooling or training for some profession,
trade or vocation, even beyond the age of majority”.
Conclusion: 1068 is modified by FC 194 to the extent
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What is a non-collationable donation?
It is a donation to a compulsory heir which the donor
stipulated in the deed of donation to be chargeable to the
free disposal, and not to the legitime of the donee (Art.
1062). Non-collationable donations, nonetheless, must still
be collated for the purpose of calculating the legitime.
Non-collationable donations shall be reduced or abated if
the legitime is impaired.
An irrevocable donation inter vivos is not the same as a
non-collationable donation (de Roma vs. CA).
How is a collationable donation imputed?
If given to a compulsory Charge to the legitime of the
heir (except the spouse) donee; but if declared non-
collationable, charge to free

If given to a voluntary heir
or to a stranger
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disposal
● The share of co-owners in the benefit and charges shall
Charge to the free disposal be proportionate to their respective interest in the thing
owned in common (485). Each co-owner has full
ownership of the part and of the fruits and benefits
pertaining thereto (493).

● No co-owner shall be obliged to remain in co-

o Joint donation made by the parents to a child is
separately collationable by the child in the settlement
of the estates of his parents: one-half to the estate of
his father and imputed as an advance of his legitime
from the father, and the other half to the estate of his
mother and imputed as an advance of his legitime from
the mother (1072). Study and understand the illustrative
example cited in the book.
o Donation given jointly to a child and his spouse is
likewise separately collationable: one-half
collectionable by the child and imputed as an advance
of his legitime from the donor-parent; one-half
collationable by the spouse of the child and imputed to
the free disposal.
What is meant by reduction or abatement of donations?
If after collation the legitime was not impaired, the
donations shall be respected (Art. 911); the donees may keep
what they had received. However, if after collation the legitime
was impaired, the donation may be reduced or abated in order
that the legitime may be paid in full (Mateo vs. Lagua). The
reduction or abatement of donations is governed by the last-
in-first-out rule.
If a donation is abated because it was determined to be
inofficious, the donee is entitled to reimbursement from the
heirs of the donor (who will benefit from the abatement of the
donation) for the expenses incurred in the preservation of the
thing donated (reimbursement of necessary expenses), even if
such expenses did not augment the value of the property. He
is also entitled to reimbursement for useful expenses
(improvement of value) which exists at the time of the
partition. But he has no right to reimbursement for expenses
for mere pleasure, although he has the right to remove them if
it can be done without injuring the property (1076).
SECTION 6 - PARTITION AND DISTRIBUTION OF THE
ESTATE
PARTITION
Partition
1. Definition – The separation, division and assignment
of a thing held in common among those to whom it may
belong (1079). Every act intended to put an end to
indivision among co-heirs is a partition, even if it purports
to be a sale, an exchange, or a compromise (1082).
Partition is the dissolution of the co-ownership among the
co-heirs, or co-legatees, or co-devisees (1078). Subject to
some exceptions, partition of an estate is a matter of right
(1083).
● Whenever the ownership of an undivided thing or right
belongs to different persons, there is co-ownership
(484).
ownership, and any one may demand partition, but an
agreement to keep the thing undivided for a period not
exceeding 10 years is valid (494), or 20 years if ordered
by a donor or testator. But even if prohibited by the
testator, there may be a partition of the estate when
any of the causes for which a partnership is dissolved
takes place (see 1830 and 1831 for the causes of
dissolution of a partnership), or when the court finds a
compelling reason (1083).
● Partition may be prohibited by law; nor may partition be
allowed if to do so would render the thing
unserviceable (495). Note that partition may likewise be
prohibited by contract (e.g., a prohibition to further
partition a subdivision lot, if such prohibition was
imposed by the subdivision developer and inscribed at
the back of the TCT to the subdivision lot).
● In the case of partition of a hereditary estate, it
presupposes a final determination of the PRO, the
payment of the relevant taxes and debts, the payment
of all other obligations of the estate, a final
determination of the identity of the persons entitled to
the hereditary estate, and, in the case of testamentary
succession, the allowance of the will and a
determination of the substantive validity of the
testamentary dispositions.
● A voluntary heir upon whom a suspensive condition is
imposed cannot demand partition until the condition is
fulfilled (1084). But the heirs who are not bound by a
condition may demand partition, provided they give
security for the right of the conditional heir; the partition
is thus conditional.
Who may effect partition?
● The heirs themselves, as in the case of extrajudicial
partition (or partition by agreement of the heirs);
● The testator himself (see Art. 1080); or a person
designated by the testator (1081); or
● The probate or intestate court
What is an ante mortem partition?
It is a partition of an estate prepared by a person during
his lifetime. It is valid provided the legitime is not impaired
(1980). However, the partition is not effective until the
death of the person.
The law cited a specific instance when a person might
make an inter-vivos partition. If he wishes to keep and
agricultural, industrial or manufacturing enterprise to be
kept intact even after his death, he may adjudicate the
enterprise to one or some of his heirs, and the legitime of
those persons to whom the enterprise is not awarded, may
be paid in cash.
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Inter-vivos partition does not require the formalities of a will
(Mang-oy vs. CA); a written signed document is sufficient.
In Chavez vs. IAC, the SC went further by ruling that an
inter-vivos partition may be made even orally. The doctrine
in Chavez is based on estoppel; a co-heir may be
estopped from contesting the parol partition made by his
predecessor-in-interest.
4. Rules Governing Partition
● The rule of quantitative and qualitative equality (1085)
must be observed.
● If the co-owned property is essentially indivisible or if
partition will impair its value, it may be awarded to one
of the co-heirs who will reimburse in cash the shares of
the others, or, upon demand of any co-heir, the same
shall be sold at public auction (1086). Note that 1086 is
different from 1080 which refers to an agricultural,
industrial or a manufacturing enterprise which is
essentially divisible.
● Co-heirs shall reimburse one another for income and
fruits which each may have received from the co-
owned property, for necessary and useful expenses
made on the property, and for damages sustained by
reason of malice or negligence (1087).
● Disposition of a co-heir’s share in the co-owned
property gives to the non-selling co-heirs the right of
redemption within 30 days by reimbursing the price to
the purchaser who is required to serve them notice of
the transaction (1088). But in Alonzo vs. IAC, the SC
dispensed with the notification by the buyer because
the purchaser occupied a proportionate portion of the
land that was co-owned, and therefore the
redemptioners (who delayed their action for years) were
fully aware of the sale.
EFFECT OF PARTITION
Effects of Partition
● Immediate effect – the dissolution of the co-ownership
among the co-heirs. Each co-heir acquires exclusive
ownership of the property (or part thereof) adjudicated
to him (1091).
● Statutory warranties – Each co-heir gives to the others
a warranty of title to and quality (warranty against
hidden defects) of each property adjudicated.
o A breach of warranty does not require a new
partition, but the aggrieved heir is entitled to
recover from the others the loss that he suffered.
o No warranty is given if it was the testator who
specified the property to be given to a specific
beneficiary or beneficiaries; so, the warranties do
not extend to legatees and devisees.
o The warranty is shared by the co-heirs in proportion
to their respective shares; but their liability is
solidary as the share of the insolvent is absorbed by
those who are solvent, deducting the share of the
co-heir to be indemnified (1093).
o The action to enforce the warranty prescribes in 10
years from the date the right of action accrues.
● Receivable assigned as collectible (1095) – It is
possible that a portion of the hereditary estate may
include receivables. By its very nature, a receivable
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may be collectible or non-collectible (bad debts),
depending on the solvency of the debtor. The
receivables will be distributed to the heirs during
partition.
o If a receivable is assigned to an heir as collectible,
the co-heirs shall give a warranty of collectability by
holding themselves liable for the insolvency of the
debtor, provided such insolvency existed at the
time of partition. This warranty is good fora period
of 5 years from partition.
o There is no warranty of collectability for bad debts,
if the debtor’s insolvency was known at the time of
partition, and notwithstanding, the heir accepted
the receivable.
o If bad debts are not assigned to any heir, all of them
shall nonetheless proportionately share any
collection from the said bad debts.
● Instances when the warranty of title and quality do not
exist (1096)
o If the testator made the partition; which means the
testator intended the recipient to take the risk of
non-collection, provided the legitime of the
recipient is not impaired in the event of non-
collection.
o In the case of extrajudicial partition, if the
warranties are waived expressly by agreement of
the co-heirs, unless there was bad faith on the part
of some of the co-heirs.
o If eviction was due to a cause that occurred
subsequent to the partition, or was caused by the
fault of the recipient of the property.
RESCISSION AND NULLITY OF PARTITION
● Basis – Rescission of partition is based on the economic
damage suffered by a co-heir (1098). Annulment is based
on a vice of consent to the partition (mistake, violence,
intimidation, undue influence and fraud) on the part of the
co-heir demanding annulment. It appears, however, that
the law does not envision a voidable partition because the
title of subsection 3 is “Rescission and Nullity of Partition,”
suggesting that the partition will be set aside as null and
void.
● Rescission or annulment of partition envisions several co-
heirs; if there is only one heir, rescission or annulment of
partition is irrelevant because there will be no co-
ownership to dissolve. Indeed, in Rule 74, a sole heir may
adjudicate the entire estate to himself by mere affidavit.
● In contract law, rescission is:
o a subsidiary remedy; it is available only as a remedy of
last resort, meaning, there is no other legal means to
obtain reparation for the economic damage;
o granted only to the extent necessary to repair the
economic damage; thus, the entire transaction
(partition, in this case) need not be rescinded;
o not available to contracts which are approved by the
court. Note, however that in 1098, a judicial partition
may be rescinded.
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These principles are important because partition may be
rescinded for the same causes as contracts (1097).

In order to justify a rescission of a judicial or extrajudicial

partition, the prejudiced heir must receive something
whose value is less by at least one-fourth of the value due
him, using the value of the things at the time of
adjudication. Note that in contract law, the threshold of the
economic damage is more than one-fourth of the value of
the thing. The lesion could be caused by an erroneous
valuation of the properties of the estate, or otherwise due
to some defect of the property adjudicated.

● Nullity of partition is premised on the same causes as a

contract (1097). Therefore:
o a partition executed by the heirs during the lifetime of
the decedent is void because the partition, as a
contract, has no lawful object.
o a partition founded upon an unlawful cause is void; like
a contract founded on an unlawful cause (1352).
o The action to set aside a partition that is “invalid” is
imprescriptible (Bautista vs. Non), as in the case of a
partition that excluded a compulsory heir.

Other rules
● A partition made by the testator cannot be rescinded
except if the legitime is impaired, or if it can be
demonstrated that the testator intended otherwise (1099).
● The heir sued for the rescission of partition has two
options: (i) to indemnify the prejudiced heir in cash, or by
the delivery of a thing of the same kind and quality, in
order to repair the damage, or (ii) to agree to a new
partition. Clearly, a demand for the rescission of partition
will not necessarily result in the setting aside of the original
partition. In addition, the heirs who were not prejudiced by
the partition and those who did not receive more than their
just share shall not be affected by the rescission. In short,
a new partition will not affect the entire hereditary estate
(1101).
● An heir who has alienated the whole or a substantial part
of the real property adjudicated to him cannot maintain an
action for rescission on the ground of lesion; he may only
ask for cash indemnification (1102). Again, notice the
difference with rescission in contract law where a party
cannot seek rescission of a contract if he is unable to
return the thing he received from that contract.
● The inadvertent omission of some assets in the partition is
not a ground for rescission of the partition on account of
lesion; the omitted assets shall merely be distributed to the
heirs (1103).
● The omission or exclusion of a compulsory heir from the
partition shall not justify its rescission, provided there was
no bad faith or fraud on the part of those who participated
in the partition. But the omitted or excluded compulsory
heir shall be entitled to recover what is due him.
● The inclusion of a stranger (one who has no right to the
inheritance) in the partition is void only with respect to
such person (1105).

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