Codicils and incorporation by reference
stating among other things the number of pages thereof;
Art. 825. A codicil is supplement or addition to a will, made
after the execution of a will and annexed to be taken as a
part thereof, by which disposition made in the original will is
explained, added to, or altered.
Requisites for a valid codicil
1. Supplement or addition to a will;
2. Made after the execution of the will;
3. Annexed and taken as part thereof;
4. Explains, adds or alters the original will; and
5. Executed following the formalities of a will.
Codicil
- Also called a codex or little will.
- There are instances where codicils are actually longer
than the original will. It is just called a codicil because the
intention of a codicil is to add, supplement or amend a
previously existing will.
- It cannot exist independently from a will.
- For there to be a valid codicil, there must be a valid pre-
existing will. The validity of the codicil depends upon the
validity of the will.
- The codicil may either be a notarial will or a holographic
will. It is not required that if the original will is a notarial will,
then the codicil must also be in notarial form. What is
important is that it must comply with the formalities in
executing said wills.
- If there are inconsistencies between the original will and
the codicil, the codicil should prevail since it is the
expression of the latest wishes of the testator.
Distinction between codicil and new will
Codicil New will
Treatment Taken as a part of Exists
the will. independently of
the original will.
Explains, adds, YES NO
supplements,
and alters the
provisions in
the original will
Revocation May revoke only a Entire previous will
part of the original is revoked.
will.
How taken with Taken together. Separate.
the original will
Art. 826. In order that a codicil may be effective, it shall be
executed as in the case of a will.
- The codicil must follow the formalities in the execution of a
will for notarial or holographic wills.
- If the codicil does not follow the formalities required under
the law, the codicil is void but the original will is still valid.
The effect would be as if there was no codicil at all.
- After-acquired properties after the execution of the will
may be included in the disposition of the testator by
subsequently executing a codicil.
Art. 827. If a will, executed as required by this Code,
incorporates into itself by reference any document or paper,
such document or paper shall not be considered a part of the
will unless the following requisites are present:
(1) The document or paper referred to in the will must be in
existence at the time of the execution of the will;
(2) The will must clearly describe and identify the same,
(3) It must be identified by clear and satisfactory proof as the
document or paper referred to therein; and
(4) It must be signed by the testator and the witnesses on
each and every page, except in case of voluminous
books of account or inventories.
Incorporation by reference
- Incorporation of an intrinsic or separate document or paper
into a will by reference so as to become part thereof and
probated as such.
- An exception to the rule that a document before it can be
probated, must have the formalities of a will. It is not
actually required to have separately complied with the
requirements on execution of wills.
- Incorporation by reference must not include a disposition
like “I hereby give my properties to Juan.” since the
document incorporated must only be a reference.
Ex:
- If the testator has numerous properties and he has an
inventory thereof and hundreds of pages enumerating all
the properties.
- If the testator would like to execute a will and he mentions
that he would like to dispose these properties in the
inventory, the testator may not rewrite all of these properties
indicated in the inventory.
- The testator may just refer to that inventory which he
already made.
- It is convenient and practical for the testator because he
does not have to copy and rewrite the inventory in his will.
He can just refer to the inventory which he has already
made before.
- The testator is incorporating in his will by reference the
existence of that inventory which he had already made or
prepared earlier.
Requisites on incorporating by reference
(1) The document or paper referred to in the will must be
in existence at the time of the execution of the will.
- If at the time the will is executed there is no inventory, the
incorporation is void. Reference to future properties is not
allowed.
- If the testator executed a will and the document
incorporated is to be executed in the future, the
incorporation is void because it is not yet in existence.
(2) The will must clearly describe and identify the same,
stating among other things the number of pages
thereof.
It cannot be an approximate number. It must be the specific
number of pages.
(3) It must be identified by clear and satisfactory proof as
the document or paper referred to therein.
There must a description as to the nature of the document and
a date.
(4) It must be signed by the testator and the witnesses on
each and every page, except in case of voluminous
books of account or inventories.
Ex: If the total pages of the inventory is 500 pages, 200 pages
signed is sufficient.
 Requirements
Stated in the 1. Fact that you are referring to the
face of the will document or paper;
2. Clear description and identification
of the document; and
3. Number of pages.
Stated in the 1. Signature of the testator; and
document 2. Signature of the witnesses.
incorporated or
referred to
That can proved 1. That the document is in existence
by extrinsic at the time of the execution of the
evidence will; and
2. That the document is the one being
referred to in the will.
GR: Only notarial wills shall have incorporation by reference.
- These documents under Art 827 have to be signed by the
testator and the witnesses. In notarial wills are required to
have witnesses but in holographic wills there are no
witnesses required in the execution thereof.
- Notarial wills can either be in the handwriting of the testator
or typewritten. Documents incorporated by reference may
also be handwritten by the testator or typewritten. However,
holographic wills must be entirely written, dated and signed
by the testator.
- In a notarial will which has an attestation clause that meets
the requirements under the law and a reference is made to
an inventory of the properties attached to the will, no
separate attestation clause is needed for the said inventory.
XPN: A holographic will may have incorporation by reference.
1. When the holographic will has at least 3 witnesses, because
the subscribing witnesses, although a surplusage can sign
the document to be incorporated; or
2. Even if there are no witnesses but the document to be
incorporated are entirely written, signed and dated in the
hand of the testator.
- If the testator has a computerized inventory of his properties
[document incorporated] but he executed a holographic will,
the incorporation is void. It would violate the requirements
under Art. 810 that it must be written, dated and signed in
the handwriting of the testator.
Incorporation by reference of a void will
Void as to form Void not as to the form
NO YES
Kinds of republication
1. Express republication or republication by re-execution
Republication of the old will that is void as to form. The testator
rewrites all the provisions of the old will.
2. Implied republication or republication by reference
Republication of the old will that is not void as to form [ex:
testator did not have testamentary capacity when the will was
executed].
Revocation of Wills and Testamentary
Dispositions
Art. 828. A will may be revoked by the testator at any time
before his death. Any waiver or restriction of this right is void.
Revocation
- An act of the mind terminating the potential capacity of the
will to operate at the death of the testator manifested by
some outward or visible act or sign symbolic thereof.
- An act of the testator stopping or terminating the effectivity
of the will he previously executed.
- Revocation is done by the testator during his lifetime.
GR: The testator can revoke his will during his lifetime.
- The testator’s right to revoke his will is almost absolute. He
cannot be prevented by his heirs even if his will has already
been probated during his lifetime.
- One of the essential characteristics of a will is revocability.
- The right of the testator to revoke his will cannot be subject
to any agreement or prohibition.
- The provision on the will stating “I hereby waive my right to
revoke this will” is void.
XPN: If the testator loses his testamentary capacity during his
lifetime.
Requisites for a valid revocation
1. Overt act; and
2. Intent to revoke/Animus revocandi.
Art. 829. A revocation done outside the Philippines, by a
person who does not have his domicile in this country, is valid
when it is done according to the law of the place where the
will was made, or according to the law of the place in which
the testator had his domicile at the time; and if the revocation
takes place in this country, when it is in accordance with the
provisions of this Code.
Law governing the revocation of wills
Place of revocation Governing law
Within the PH PH Law
Outside the PH If resident:
1. Law of his domicile; or
2. Law of place of
revocation.
If non-resident:
1. Law of his domicile; or
2. Law of place of
execution.
Art. 830. No will shall be revoked except in the following
cases:
(1) By implication of law; or
(2) By some will, codicil, or other writing executed as
provided in case of wills; or
(3) By burning, tearing, cancelling, or obliterating the will
with the intention of revoking it, by the testator himself,
or by some other person in his presence, and by his
express direction.
If burned, torn, cancelled, or obliterated by some other
person, without the express direction of the testator, the will
may still be established, and the estate distributed in
accordance therewith, if its contents, and due execution, and
the fact of its unauthorized destruction, cancellation, or
obliteration are established according to the Rules of Court.
Modes of revoking a will
1. By implication of law;
2. By subsequent instrument; and
3. By means of an overt act.
Revocation by implication of law
- The law presumes that the testator intents to revoke his will
even if there is no express statement by the testator that he
is revoking his will.
- It is done without the express will of the testator. It is beyond
the testator’s control because it is by law.
Ex:
1. Legacies of remission against third persons [Art. 936]
The will of the testator provides that Juan owes him P1M and if
he dies and the debt is not yet paid by Juan, the testator waives
or condones the debt.
If the testator thereafter files an action of collection of sum of
money against Juan during his lifetime, the testator is deemed
to have revoked his legacy of remission in favor of Juan by
implication of law. In such case, the testator is just filing an action
for collection of sum of money to revoke the legacy of remission.
2. When after the testator has made a will, he sells or
donates the legacy or devise. [Art. 957]
If during the lifetime of the testator and after the execution of his
will, he sells or donates the property devised or bequeathed to
the devisee and legatee to another person, then such devise or
legacy is revoked.
3. When an heir, legatee, or devisee commits an act of
unworthiness. [Art. 1032]
The testator instituted Juan as an heir in his will. Subsequent to
the institution, Juan attempted against the life of the testator.
That is considered an act of ingratitude. Juan is considered
unworthy of the inheritance.
4. Preterition [Art. 854]
When a compulsory heir in the direct line is omitted, the
institution of heirs in the will shall not be allowed.
5. Offending spouse in a decree of legal separation is
disqualified to inherit from the innocent spouse [Art.
63(4) FC].
6. Spouse who contracted the subsequent marriage in
bad faith after the termination of the first marriage shall
be disqualified to inherit from the innocent spouse. [Art.
43(5) FC]
7. If both spouses of the subsequent marriage acted in
bad faith. All donations, and testamentary dispositions,
made by one in favor of the other are revoked by
operation of law. [Art. 44 FC]
8. Disqualification to inherit in marriages declared void ab
initio not annulled by final judgement. [Art. 50 FC]
Presumed intention of the testator under the law or the
revocation shall prevail
Suppose the testator sold the property devised to Juan in favor
of Maria but he really did not have the intention to revoke the
devise. In such case, the testator must manifest his unchanged
mind in a will or codicil. Otherwise, the revocation by implication
of law would prevail.
Revocation by subsequent instrument
- The previous will shall be considered revoked provided the
subsequent will has complied with the formalities of making
a will.
- If the testator executes a first will and disposed of all his
properties in favor Juan and subsequently he executes
another will disposing all of his properties in favor of Pedro,
there is implied revocation because the two wills are clearly
inconsistent with each other.
- However, for the 2nd will to validly revoke the 1st will, the
2nd will must comply with all the formalities in the execution
of wills.
- If the 2nd will is defective, the first will is not deemed revoked
and it can be admitted to probate.
Kinds of revocation by subsequent instrument
1. Express revocation – the 2nd will contains a revocatory
clause expressly revoking the 1st will.
2. Implied revocation – the 2nd will does not expressly
provide that it revokes the first will but its provisions are
clearly inconsistent with the 1st will.
Requisites for a valid revocation by subsequent instrument
1. Testamentary capacity of the testator at the time of the
execution of the subsequent instrument;
2. Subsequent will must be valid;
3. Subsequent will must contain a revocatory clause [express]
or be incompatible with the previous will showing the intent
to revoke [implied].
4. Subsequent will must be admitted to probate.
Ex:
A notarial will was executed by the testator giving all his
properties to Juan. Thereafter, he executed a holographic will
giving all his properties to Pedro. Both wills are valid and
complies with the requisites under the law.
GR: If the holographic will revoking the notarial will is lost, the
notarial will would still prevail and not the subsequent
holographic will because one of the requisites of a valid
revocation by subsequent instrument is that the will must be
presented to probate.
XPN: If the subsequent will is a notarial will.
The notarial will may be proved by the testimony of witnesses.
Thus, even if the notarial will [subsequent instrument] is lost, it
may still revoke the previous will if duly proved.
Revocation by overt act
The overt act must be coupled with intention to revoke. Overt act
alone without intent to revoke will not give rise to revocation.
Overt acts under Art. 830
1. Burning – at least a portion of the will must be burnt; not
necessary that it be burnt entirely.
2. Tearing – tearing the instrument in half would suffice.
3. Cancelling – putting a line across in a page of a will.
4. Obliterating – words are crushed out or intentionally
erased by the testator.
Requisites of revocation by overt act
(1) Testamentary capacity of the testator at the time of
revocation;
(2) Burning, tearing, cancellation, or obliteration of the will by
the testator or by another in his presence and by his express
direction;
(3) Completion of the subjective phase of the act; and
(4) Intent to revoke/animus revocandi.
GR: There is an act of revocation even if the tearing or burning
is not complete. [presumption]
XPN: Voluntary desistance of the testator.
- The testator starts tearing or burning the will but he realized
that he really does not want to revoke his will. He desisted
 from burning the said will. There was an actual overt act but
the same was not complete.
- A duly executed will is assumed to not have been revoked.
- The burden of proof that the will was revoked lies upon the
person who opposes the probate of the will.
Revocation by implication of law
Ex:
- The testator executed a will and he puts it in an envelope
and places it in a fire place. The testator leaves without
seeing if the will was completely burned. The heir sees the
will and prevents it from burning and only the sides of the
will were burnt.
- No revocation by overt act since the will was not destroyed
but only the sides thereof. There was no physical
destruction of the will.
- However, there is revocation by implication of law as to the
heir who prevented the burning of the will. The act of the
heir preventing the will to be revoked is a ground for
disqualification to inherit.
- The subsequent will must have complied with all the
required formalities and must have been admitted to
probate.
- The second will is valid but is considered ineffective
because the heirs mentioned therein predeceased the
testator, were incapacitated to succeed or repudiated/
renounced their inheritance.
- The revocation is valid and the first will cannot be revived.
- Takes effect immediately and the revocation is not
testamentary in character.
Doctrine of dependent relative revocation
- Where the act or destruction is connected to the making of
a will so as squarely to raise the inference that the testator
meant the revocation of the old will.
- The revocation depends upon the efficacy of the new
disposition.
- If for any reason the new will intended to be made as a
substitute is inoperative, the revocation fails and the original
will is in full force and effect.
- Takes effect solely by revocation by subsequent instrument.

Act of ingratitude of third person Distinction between doctrine of absolute revocation and doctrine
If the person instructed by the testator to do the acts of physical of dependent relative revocation
destruction to revoke the will but did not do it, there is an act of Doctrine of absolute Doctrine of
ingratitude on the part of the 3rd person who did not follow the revocation dependent
testator’s instructions. The law would consider it as if there was revocation
actual destruction. Requisites Subsequent will must Act or destruction
have complied with all is connected to
Maloto vs. CA the required formalities the making of a
and must have been will to raise the
No valid revocation admitted to probate. inference that the
It is clear that the physical act of destruction of a will, like burning testator meant the
in this case, does not per se constitute an effective revocation, revocation of the
unless the destruction is coupled with animus revocandi on the old will would
part of the testator. It is not imperative that the physical depend upon the
destruction be done by the testator himself. It may be performed efficacy of the
by another person but under the express direction and in the new will.
presence of the testator. The document destroyed must be the
will itself. Destruction of the
1st will must be
The document or papers burned by Adriana's maid, Guadalupe, made after the
was not satisfactorily established to be a will at all, much less execution of the
the will of Adriana Maloto. For another, the burning was not 2nd will.
proven to have been done under the express direction of Effect Valid revocation. Revocation is
Adriana and the burning was not in her presence. Subsequent will is valid dependent if the
but ineffective due to second will is
Art. 831. Subsequent wills which do not revoke the previous incapacity or valid.
ones in an express manner, annul only such dispositions in renunciation.
the prior wills as are inconsistent with or contrary to those If the 2nd will is not
contained in the latter wills. valid, the 1st will is
given effect.
Implied revocation by subsequent instrument When Second will does not Testator
When the testator after having previously executed a will inapplicable comply with formalities. destroyed the first
executes another will/codicil that does not contain any will long before he
revocatory clause but the contents thereof are inconsistent with executed the
the former will. second will.
[absolute
Art. 832. A revocation made in a subsequent will shall take revocation by
effect, even if the new will should become inoperative by overt act]
reason of the incapacity of the heirs, devisees or legatees
designated therein, or by their renunciation. Art. 833. A revocation of a will based on a false cause or an
illegal cause is null and void.
Doctrine of absolute revocation
Ex: There is implied revocation by subsequent instrument. The - Art. 833 merely refers to revocation by subsequent will or
testator executed a new will instituting new heirs different from codicils by overt acts.
the heirs instituted in the first will. However, the new heirs in the - The testator was mistaken in the reason for his revocation.
subsequent will predeceased the testator, were incapacitated to The revocation is not effective.
succeed or repudiated their inheritance. - The doctrine of dependent relative revocation applies.
- There is no revocation by overt act if the destruction of the
1st will was prompted by the false belief that the 2nd will
executed is valid.
- The false cause must be stated in the will for Art. 833 to
apply.
Ex:
- The testator made a 1st will instituting Juan as heir. The first
will is valid and complies with all the formalities under the
law. The testator thereafter changed his mind and made
and a 2nd will instituting Pedro as heir. Believing that the 2nd
will complies with the formalities under the law, the testator
burned his 1st will.
- However, the 2nd will turned out to be invalid as it lacked 3
attesting witnesses and there are no marginal signatures.
- The 2nd will is not valid and Pedro will not be entitled to the
estate. The 1st will was not revoked by the 2nd will. The 1st
will would be given effect.
Molo vs. Molo
A subsequent will, containing a clause revoking a previous will,
having been disallowed, for the reason that it was not executed
in conformity with the provisions of section 618 of the Code of
Civil Procedure as to the making of wills, cannot produce the
effect of annulling the previous will, inasmuch as said revocatory
clause is void.
Doctrine of dependent relative revocation
The destruction of the earlier will was but the necessary
consequence of the testator's belief that the revocatory clause
contained in the subsequent will was valid and the latter would
be given effect. If such is the case, then it is our opinion that the
earlier will can still be admitted to probate under the principle of
"dependent relative revocation".
This doctrine is known as that of dependent relative revocation,
and is usually applied where the testator cancels or destroys a
will or executes an instrument intended to revoke a will with a
present intention to make a new testamentary disposition as a
substitute for the old, and the new disposition is not made or, if
made, fails of effect for same reason. The doctrine is not limited
to the existence of some other document, however, and has
been applied where a will was destroyed as a consequence of a
mistake of law.
The rule is established that where the act of destruction is
connected with the making of another will so as fairly to raise the
inference that the testator meant the revocation of the old to
depend upon the efficacy of a new disposition intended to be
substituted, the revocation will be conditional and dependent
upon the efficacy of the new disposition; and if, for any reason,
the new will intended to be made as a substitute is inoperative,
the revocation fails and the original will remains in full force.
This is the doctrine of dependent relative revocation. The failure
of a new testamentary disposition upon whose validity the
revocation depends, is equivalent to the non-fulfillment of a
suspensive conditions, and hence prevents the revocation of the
original will. But a mere intent to make at some time a will in the
place of that destroyed will not render the destruction
conditional. It must appear that the revocation is dependent
upon the valid execution of a new will.
Doctrine of dependent relative revocation does not apply
There is no evidence which may directly indicate that the testator
deliberately destroyed the original of the 1918 will because of
his knowledge of the revocatory clause contained in the will he
executed in 1939.
The only evidence we have is that when the first will was
executed in 1918, Juan Salcedo, who prepared it, gave the
original and copies to the testator himself and apparently they
remained in his possession until he executed his second will in
1939. And when the 1939 will was denied probate on November
29, 1943, and petitioner was asked by her attorney to look for
another will, she found the duplicate copy (Exhibit A) among the
papers or files of the testator. She did not find the original.
Even in the supposition that the destruction of the original will by
the testator could be presumed from the failure of the petitioner
to produce it in court, such destruction cannot have the effect of
defeating the prior will of 1918 because of the fact that it is
founded on the mistaken belief that the will of 1939 has been
validly executed and would be given due effect.
The theory on which this principle is predicated is that the
testator did not intend to die intestate. And this intention is clearly
manifest when he executed two wills on two different occasion
and instituted his wife as his universal heir. There can therefore
be no mistake as to his intention of dying testate.
Art. 834. The recognition of an illegitimate child does not lose
its legal effect, even though the will wherein it was made
should be revoked.
- Recognition takes place immediately upon the execution of
the will. If the recognition is the only thing written in the last
will and testament that was revoked, it is not considered as
a will but the recognition will still be valid.
- Recognition does not involve disposition of properties.
- Recognition of an illegitimate child is not testamentary
disposition and it does not need probate to be effective.
Republication and Revival of Wills
Art. 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.
Republication
Re-establishment of the testator of a previously revoked will or
one invalid for want of proper execution as to form.
Instances of republication
1. The testator previously executed a void will and wants to
give life to this void will; or
2. The testator revoked his will and he wants to give life to this
revoked will.
Kinds of republication
1. Express Republication/Republication by re-execution –
republication of dispositions contained in a previous will that
is void as to form.
2. Implied Republication/Republication by reference –
republication by execution of a codicil referring to a
previously revoked will or valid will as to form but void
because of some intrinsic defect [lack of testamentary
capacity].
Effects of express republication
1. Operates to revive the previous will;
2. Dispositions in the original will are deemed to have been
made as of the date it was republished;
3. Dispositions in the republished will shall be governed by the
law enacted subsequently to the execution of the original
will but was operative when the execution was made.

Implied republication or republication by reference
1. The will is void for causes other than its form; or
2. The codicil refers to a previously executed revoked will.
Requisites of implied republication
(1) The will must be void for causes other than to its form;
(2) The codicil refers to a previously execute will; and
(3) The codicil must be executed in accordance with the
formalities of a will.
Effects of implied republication
Art. 836. The execution of a codicil referring to a previous will
has the effect of republishing the will as modified by the
codicil.
Previous will
- Previously revoked will or a will which is valid as to form but
void for some other defect.
- The codicil revives a will previously revoked and validates
alterations made in the will subsequent to its execution, but
prior to the execution of the codicil.
- Ex: After-acquired properties are included in the codicil.
Distinction between express republication and implied
republication
- If the old will is void as to form, the only way to republish it
is by express republication.
- If the old will is not void as to form, it may be republished
either by express republication or implied republication.
Revival
Art. 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.
Distinction between revival and republication
Revival Republication
Takes place by operation of Involves an act on the part of
law. Applies only to impliedly the testator.
revoked wills.
- There is no revival if the 1st will is expressly revoked by the
2nd will [revocatory clause].
- Revival can only take place if it is impliedly revoked by the
2nd will.
- If the testator a 1st will and thereafter subsequently
executed a 2nd will which revoked the 1st will. The testator
then makes a 3rd will which revoked the 2nd will. In this case,
the 1st will would not be revived [doctrine of absolute
revocation].
Principle of instanter
- Has the same effect with doctrine of absolute revocation.
- If the 2nd will is revoked, the revocation takes effect
immediately and there is no need to wait for the death of the
testator for the revocation to apply.
- The revocation is not testamentary in character.
Allowance and Disallowance of Wills
Art. 838. No will shall pass either real or personal property
unless it is proved and allowed in accordance with the Rules
of Court.
The testator himself may, during his lifetime, petition the court
having jurisdiction for the allowance of his will. In such case,
the pertinent provisions of the Rules of Court for the
allowance of wills after the testator's a death shall govern.
The Supreme Court shall formulate such additional Rules of
Court as may be necessary for the allowance of wills on
petition of the testator.
Subject to the right of appeal, the allowance of the will, either
during the lifetime of the testator or after his death, shall be
conclusive as to its due execution.
Probate
- Proceeding to determine the due execution of the will.
- Probate is mandatory and a matter of public policy. It is to
give effect to the dispositions of the testator which is a right
included in ownership.
- In rem proceeding binding upon the whole world.
- The pre-requisite notice by publication must be complied
with before a will is admitted to probate.
- The right to file for probate does not prescribe. [no
prescription]
- If the will was already submitted for probate but later on
denied, the heirs cannot re-submit the same will after 5
years and claim non-prescription since the probate
proceedings have already been initiated.
- Non-prescription only applies if there is no probate
proceeding initiated.
1st phase – Probate proceeding [extrinsic validity]
2nd phase – Distribution of the properties [intrinsic validity]
Questions passed upon the probate court
1. Identity – whether the same will was the will executed by
the testator;
2. Testamentary capacity of the testator; and
3. Due execution – whether the will complies with the
formalities required under the law.
GR: Only questions of identity, testamentary capacity and due
execution of the will [extrinsic validity] can be raised in a probate
proceeding.
The ff. questions cannot be raised in a probate proceeding:
- WON the legatee provided in the will is void;
- WON the person has a right to receive the inheritance; and
- Questions as to filiation.
XPN:
1. Ownership of property to determine inventory but such
determination is not conclusive; and
2. Preterition.
Heirs of Lasam vs. Umengan
The purported last will and testament of Isabel Cuntapay could
not properly be relied upon to establish petitioners’ right to
possess the subject lot because, without having been probated,
the said last will and testament could not be the source of any
right.
Probate of a will
Before any will can have force or validity it must be probated. To
probate a will means to prove before some officer or tribunal,
vested by law with authority for that 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. The presentation expression of the legislative wisdom goes no further and the
of the will for probate is mandatory and a matter of public policy. case ends there.

Isabel Cuntapay’s last will and testament, which has not been Distinction between post-mortem probate and ante mortem
probated, has no effect whatever and petitioners cannot claim probate
any right thereunder. Post-mortem probate Ante-mortem
probate
Hence, Vicenta Umengan has shown a better right of When After the death of the During the lifetime
possession over the subject lot as evidenced by the deeds of instituted testator of the testator
conveyances executed in her favor by the children of Isabel Instituted Heirs of the testator, Testator only
Cuntapay by her first marriage. by administrator or
executor.
Spouses Pascual vs. CA Effect Testator is not alive to The testator
testify. The heirs himself can be
REMEDIOS anchors her right in filing this suit on her being a questioning the due asked by court.
devisee of CATALINA’s LAST WILL. However, since the probate execution of the will have Minimizes
court has not admitted CATALINA’s LAST WILL, REMEDIOS the burden of proof to instances of fraud,
has not acquired any right under the LAST WILL. REMEDIOS is prove that the will is not intimidation and
thus without any cause of action either to seek reconveyance of valid. undue influence.
Lot Nos. 2-A and 2-E or to enforce an implied trust over these
lots It can be known
The appellate court tried to go around this deficiency by ordering whether the will
the reconveyance of Lot Nos. 2-A and 2-E to REMEDIOS in her complied with the
capacity as executrix of CATALINA’s LAST WILL. This is requirements. If
inappropriate because REMEDIOS sued petitioners not in such there are defects
capacity but as the alleged owner of the disputed lots. in the will, it can be
corrected by the
If she filed the case in her capacity as administatrix, the suit for testator himself.
reconveyance would prosper since it would be filed in behalf of
the estate of the decedent. The suit would be allowed even if Rationale for the probate of a will
there was no probate of the will. 1. Law expressly provides that no will shall pass either real
or personal property unless it is proven and allowed in
Mercado vs. Santos accordance with the Rules of Court. [Art. 838];
2. The probate of a will is a proceeding in rem. Therefore,
Nature of probate proceeding: In rem proceeding binding it cannot be dispensed with a substituted by any other
against the whole world proceeding;
Criminal action will not lie in this jurisdiction against the forger of 3. Public policy requires the probate of the will. Unless the
a will which had been duly admitted to probate by a court of will is probated and notice thereof is given to the whole
competent jurisdiction. The law creates a conclusive world, the right of a person to dispose of his property may
presumption as to the due execution of the will after it is admitted be rendered nugatory; and
into probate. 4. Absent the legatees and devisees or such of them as may
have no knowledge of the will, they could be cheated
The probate of a will in this jurisdiction is a proceeding in rem. out of their inheritance through the collusion of some
The provision of notice by publication as a pre-requisite to the heirs who might agree to partition the estate among
allowance of a will is constructive notice to the whole world, and themselves.
when probate is granted, the judgment of the court is binding
upon everybody, even against the State. Parties who can intervene in probate proceedings
- Real parties in interest that must have an interest in the
A duly probated will cannot be declared to be a forgery without estate, will or in the property.
disturbing in a way the decree allowing said will to be probate. - An heir or creditor of the testator whose interest is material
The decree of probate allowing the will is conclusive and and direct and not merely incidental or contingent.
constitutes res judicata. The ruling of the probate court cannot
be subject of a criminal case because it was already found to be Ex: Incidental or contingent interest
genuine. - Pedro [heir of Maria] employed Juan as his lawyer in the
probate proceeding of Maria’s will. They agreed that if
Remedy of aggrieved party in a forged will Pedro gets the property, he will give 30% of whatever he
Our Code of Civil Procedure provides for an adequate remedy will receive from the estate of Maria to Juan, as his counsel.
to any party who might have been adversely affected by the - Pedro terminated the services of Juan. Juan filed an
probate of a forged will. The aggrieved party may file an attorney’s lien as to the supposed possible share of Pedro
application for relief with the proper court [during the probate in the estate in order to protect his interest.
proceeding] within a reasonable time, but in no case exceeding - Juan as counsel of the supposed heirs do not have an
six months after said court has rendered the judgment of interest in the estate. The agreement between Juan [lawyer]
probate, on the ground of mistake, inadvertence, surprise or and Pedro [heir] is contingent since it depends on the
excusable neglect. success of the decision of the probate court.

After a judgment allowing a will to be probated has become final Coronado vs. CA
and unappealable, and after the period fixed by section 113 of
the Code of Civil Procedure has expired, the law as an The questioned will, however, may be sustained on the basis of
Article 1056 of the Civil Code of 1899, which was in force at the
time said document was executed by Melecio Artiaga in 1918.
The said article read as follows:
"Article 1056. If the testator should make a partition of his
properties by an act inter vivos, or by will, such partition shall
stand in so far as it does not prejudice the legitime of the forced
heir."
In this case, nowhere was it alleged nor shown that Coronado is
entitled to legitime from Melecio Artiaga. Thus, pursuant to the
law enforced at the time the will was executed, Juana validly
inherited the subject property. Coronado cannot be considered
as real party in interest because nowhere it is alleged nor shown
that she is entitled to legitime from Melecio.
CORONADO claims that JUANA is estopped from questioning
the ownership of Coronado over the land in question having
failed to raise the same in the estate proceedings in the trial
court and even on appeal.
Normally, the probate of a will does not look into its intrinsic
validity. The authentication of a will decides no other questions
than such as touch upon the capacity of the testator and the
compliance with those requisites or solemnities which he law
prescribes for the validity of the wills. It does not determine nor
even by implication prejudge the validity or efficiency of the
provisions of the will, thus may be impugned as being vicious or
null, notwithstanding its authentication. The question relating to
these points remain entirely unaffected, and may be raised even
after the will has been authenticated.
Consequently, JUANA is not estopped from questioning the
ownership of the property in question, notwithstanding her
having objected to the probate of the will executed by Monterola
under which Coronado is claiming title to the said property.
Magallanes vs. Kayanan
The property, whether real or personal, which are alleged to
form part of the estate of a deceased person but claimed by
another to be his property by adverse title to that of the deceased
and his estate and not by virtue of any right of inheritance from
the deceased, cannot be determined by the probate court. Such
questions must be submitted to the Court of First Instance in the
exercise of its general jurisdiction to try and determine ordinary
actions.
The probate court may do so only for the purpose of determining
whether or not a given property should be included in the
inventory of the estate of the deceased, but such determination
is not conclusive and is still subject to a final decision in a
separate action to be instituted between the parties. Likewise,
the probate court may also determine questions of title to
property if the parties voluntarily submitted to its jurisdiction and
introduced evidence to prove ownership.
In the case at bar, the action instituted by the petitioner was not
for the purpose of determining whether or not a given property
should be included in the inventory of the estate of the
deceased. The action was for partition and distribution of the
properties left by the deceased. Neither have all of the parties
voluntarily submitted the issue of ownership for resolution by the
court.
It was therefore erroneous for the lower court to resolve the
question of title or, ownership over the properties in said
proceeding. It could only pass upon such a question in the
exercise of its general jurisdiction in an ordinary action.
Ching vs. Rodriguez
Under Article 916 of the NCC, disinheritance can be effected
only through a will wherein the legal cause therefor shall be
specified. This Court agrees with the RTC and the CA that while
the respondents in their Complaint and Amended Complaint
sought the disinheritance of Ramon, no will or any instrument
supposedly effecting the disposition of Antonio's estate was ever
mentioned.
Hence, despite the prayer for Ramon's disinheritance, the Civil
Case does not partake of the nature of a special proceeding and
does not call for the probate court's exercise of its limited
jurisdiction.
The Civil Case remains to be an ordinary civil action, and not a
special proceeding pertaining to a settlement court. An action for
reconveyance and annulment of title with damages is a civil
action, whereas matters relating to settlement of the estate of a
deceased person such as advancement of property made by the
decedent, partake of the nature of a special proceeding.
A special proceeding is a remedy by which a party seeks to
establish a status, a right, or a particular fact. It is distinguished
from an ordinary civil action where a party sues another for the
enforcement or protection of a right, or the prevention or redress
of a wrong. To initiate a special proceeding, a petition and not a
complaint should be filed.
The nullification of the documents subject of the Civil Case could
be achieved in an ordinary civil action. In the event that the RTC
will find grounds to grant the reliefs prayed for by the
respondents, the only consequence will be the reversion of the
properties subject of the dispute to the estate of Antonio.
The Civil Case was not instituted to conclusively resolve the
issues relating to the administration, liquidation and distribution
of Antonio's estate, hence, not the proper subject of a special
proceeding for the settlement of the estate of a deceased
person.
Disallowance of a will
Art. 839. The will shall be disallowed in any of the following
cases:
(1) If the formalities required by law have not been complied
with;
(2) If the testator was insane, or otherwise mentally
incapable of making a will, at the time of its execution;
(3) If it was executed through force or under duress, or the
influence of fear, or threats;
(4) If it was procured by undue and improper pressure and
influence, on the part of the beneficiary or of some other
person;
(5) If the signature of the testator was procured by fraud;
(6) If the testator acted by mistake or did not intend that the
instrument he signed should be his will at the time of
affixing his signature thereto.
- Art. 839 is an exclusive list. No other grounds outside Art.
839 should be allowed in disallowing a will.
(1) If the formalities required by law have not been
complied with.
- Pertains to the formalities of making a holographic will or a
notarial will.
(2) If the testator was insane, or otherwise mentally
incapable of making a will, at the time of its execution.
- Testamentary capacity of the testator must be determined
at the time of its execution.
(3) If it was executed through force or under duress, or the
influence of fear, or threats.
- Ground for disallowance due to vitiated consent. There is
absence of free will on the part of the testator. The will is
void.
- Fear connotes the idea of involuntariness.
- Coercion may be physical or mental such as pointing a gun
to the testator to execute the will or abused him to provide
property to a specific person.
(4) If it was procured by undue and improper pressure and
influence, on the part of the beneficiary or of some
other person.
- Undue influence is when a person is taken advantage of his
power or the will of another, depriving the latter of his
freedom of choice.
(5) If the signature of the testator was procured by fraud.
- Fraud is the use of insidious words or machinations to
convince a person to do what ordinarily he would not have
done.
(6) If the testator acted by mistake or did not intend that
the instrument he signed should be his will at the time
of affixing his signature thereto.
Ex:
- The testator was asked to make a sample will but there was
no intent on the part of the testator that the will would really
be his LWT.
- If the purported will is admitted for probate, it should be
disallowed provided that it is proven to be executed by
mistake or without any intention that the instrument is the
testator’s LWT.
Distinction between undue influence and fraud
Undue influence Fraud
The testator knows that he There is no intention on the
is executing a will because of part of the testator to execute
the influence asserted by a will.
another person.
Ex: The decedent cannot
read and he was made to
sign a piece of paper that
turns out to be a will.
- Fraud and undue influence are mutually repugnant and
exclude each other.
Coso vs. Fernandez
The influence exerted must be of a kind that so overpowers
and subjugates the mind of the testator as to destroy his free
agency and make him express the will of another rather than his
own. Such influence must be actually exerted on the mind of
the testator in regard to the execution of the will in question,
either at the time of the execution of the will, or so near thereto
as to be still operative.
It must result in the making of testamentary dispositions which
the testator would not otherwise have made. The mere fact that
some influence is exercised by a person sustaining an
improper and adulterous relation to testator does not
invalidate a will, unless it is further shown that the influence
destroys the testator’s free agency.
The burden is upon the parties challenging the will to show that
undue influence existed at the time of its execution. It does not
appear that Rosario’s influence so overpowered and subjugated
his mind as to destroy his free agency and make him express
the will of another rather than his own.
Influence gained by kindness and affection will not be
regarded as undue, if no imposition or fraud be practiced.
Even though it induces the testator to make an unequal and
unjust disposition of his property in favor of those who have
contributed to his comfort and ministered to his wants, if such
disposition is voluntarily made.
The testator was an intelligent man, a lawyer by profession. He
was actuated only by a legitimate sense of duty in making
provisions for the welfare of his illegitimate son and by a
proper feeling of gratitude in repaying Rosario for the
sacrifices she had made for him.
Ortega vs. Balmonte
The fact that public policy favors the probate of a will does not
necessarily mean that every will for probate should be allowed.
Article 839 of the Civil Code states the instances when a will may
be disallowed. Fraud is one of the grounds enumerated under
Art. 839.
Fraud
It is a trick, secret device, false statement, or pretense by
which the subject of it is cheated. Fraud may be of such
character that the testator is misled or deceived as to the
nature or contents of the document which he executes. It may
relate to some extrinsic fact, in consequence of the deception
regarding which the testator is led to make a certain will
which, but for the fraud, he would not have made.
Omission of some relatives does not affect the due
execution of a will
That the testator was tricked into signing it was not sufficiently
established by the fact that he had instituted his wife, who was
more than fifty years his junior, as the sole beneficiary. And
disregarded Leticia and her family, who were the ones who had
taken care of the testator in his twilight years.
The party challenging the will bears the burden of proving the
existence of fraud at the time of its execution. Other than the
self-serving allegations of Leticia, no evidence of fraud was ever
presented.
Conflict of dates
The conflict between the dates appearing on the will does not
invalidate the document, because the law does not even require
that a notarial will be executed and acknowledged on the same
occasion.
Distinction between revocation and disallowance
Revocation Disallowance
How made Voluntary act of By judicial order.
the testator.
3 instances under Exclusive grounds
Art. 830. provided under Art.
839.
Must be Not necessarily. Must always be for a
with cause Revocation by the legal cause. Limited to
testator may be the grounds provided
made for any under Art. 839.
reason provided
he has
 testamentary
capacity. 5. The institution is presumed to have been instituted
Extent Partial [affects GR: Total. Entirety of equally with the other instituted heirs unless a contrary
only certain the will is disallowed. intention appears.
dispositions in the
will] or total. XPN: Fraud/undue Ex: “I hereby institute Juan, Pedro and Maria as my heirs.”
influence affects only It is presumed that the sharing between the instituted heirs is
some portion of the will. equal unless a contrary intention is shown.
When made Lifetime of the Before [ante mortem]
testator. or after [post mortem]
the testator’s death.

Requisites for a valid institution

Institution of Heir
Art. 840. Institution of heir is an act by virtue of which a
testator designates in his will the person or persons who
are to succeed him in his property and transmissible rights
and obligations.
Institution of heir
- Second phase of the probate proceedings [intrinsic validity].
- The testator gives his properties to the persons named in
the will. [direct disposition].
- Institution only refers to the free portion of the estate.
- Compulsory heirs are entitled to legitime and they are not
required to be instituted in the will because legitime is
provided by law.
- The testator cannot deprive the compulsory heirs of their
legitime unless there is a valid ground for disinheritance.
- It is not required that a will must contain an institution of heir
to be valid.
- Project partition or determining which specific portion
should belong to the instituted heirs is irrelevant.
Distinction between legatee, devisee and heir
1. Legatee – receives personal property.
2. Devisee – receives real property.
3. Heir – receives a fractional portion of the estate.
Intrinsic validity of the will
1. Substance of the will; and
2. Disposition made by the testator in his will.
Characteristics of instituted heir
1. Testamentary heir – He cannot be instituted if there is no
will.
2. Continues the judicial personality of the testator – Only
in relation to the inheritance without being personally liable
for the testator’s debts. An heir inherits the obligations of the
testator but only up to the extent of the inheritance received.
3. Natural or juridical person permitted by law to
succeed.
- To be an instituted heir, what is required is juridical capacity
[capacity to be subject of legal relations] and not capacity to
act [capacity to act with legal effect].
Unborn child can be an instituted heir: When a foetus has
civil/juridical personality [Art. 40 and Art. 41 of the CC]
§ Completely delivered – considered born.
§ Intra-uterine life of less than 7 months – considered
born if it lives for at least 24 hours after its delivery.
4. Acquires rights which are limited to the disposable
portion of the inheritance – Cannot impair the legitime of
compulsory heirs. If the disposition exceeds the free
portion, the portion received by the instituted heir will be
reduced.
1. Will must be extrinsically valid – the will must be valid
and admitted to probate.
2. Institution must be intrinsically valid – there must be no
impairment of the legitime of the compulsory heir
[preterition].
3. Institution must be effective – the testator must not
survive the instituted heir and there must be no repudiation.
- Instituted heirs/voluntary heirs are not entitled to
representation as compared to compulsory heirs.
- If the instituted heirs predeceases the testator, the children
and wife cannot represent the deceased instituted heir.
4. No vice of consent – violence, intimidation, mistake, fraud,
and undue influence.
5. Institution refers to the naming of the person and the
specification of share.
6. Heir must be identifiable.
Art. 841. A will shall be valid even though it should not
contain an institution of an heir, or such institution should
not comprise the entire estate, and even though the
person so instituted should not accept the inheritance or
should be incapacitated to succeed.
In such cases the testamentary dispositions made in
accordance with law shall be complied with and the
remainder of the estate shall pass to the legal heirs [mixed
succession].
Instances where the will is still valid
- It does not contain an institution of an heir and only provides
for disinheritance [indirect disposition].
- It merely indicates for legatees and devises.
- The person instituted does not accept the inheritance or is
incapacitated to succeed [results to intestate succession].
Freedom of disposition of the testator
Art. 842. One who has no compulsory heirs may dispose
by will of all his estate or any part of it in favor of any
person having capacity to succeed.
One who has compulsory heirs may dispose of his estate
provided he does not contravene the provisions of this
Code with regard to the legitime of said heirs.
Compulsory heirs
Those that are entitled to legitime:
1. Children and descendants;
2. Parents and ascendants;
3. Surviving spouse; and
4. Illegitimate children.
- Siblings, aunts, uncles, nephews, and nieces are not
compulsory heirs.
- If a person has no compulsory heir, he may not follow the
rule on legitime and he can dispose his property to any
natural or juridical person as long as they are not
incapacitated to inherit.
- Freedom of disposition is not absolute. The testator must
still follow the provisions of the law.
Omission in the name, surname or circumstances of the
testator
Art. 843. The testator shall designate the heir by his name
and surname, and when there are two persons having the
same names, he shall indicate some circumstance by
which the instituted heir may be known.
Even though the testator may have omitted the name of
the heir, should he designate him in such manner that there
can be no doubt as to who has been instituted, the
institution shall be valid.
- In order to identify the instituted heir, the testator should
identify the heir through his name and surname.
- A nickname can still be given effect as long as the instituted
heir can still be identified.
- In case of ambiguity, intrinsic and extrinsic evidence can be
resorted to in order to identify the instituted heir, except oral
declarations of the testator as to his intention. [imperfect
description under Art. 789]
- If the ambiguity still cannot be resolved despite resorting to
intrinsic and extrinsic evidence, the institution will not be
given effect.
Error in the name, surname or circumstances of the testator
Art. 844. An error in the name, surname, or
circumstances of the heir shall not vitiate the institution
when it is possible, in any other manner, to know with
certainty the person instituted.
If among persons having the same names and surnames,
there is a similarity of circumstances in such a way that,
even with the use of the other proof, the person instituted
cannot be identified, none of them shall be an heir.
Error in description
- “Natural child” but the person named is not a natural child
as contemplated by law.
- “Adopted” but not legally adopted.
- But if the description is a condition for a person to be
instituted as an heir and that description or condition is not
true, then the institution cannot be given effect.
Art. 845. Every disposition in favor of an unknown person
shall be void, unless by some event or circumstance his
identity becomes certain. However, a disposition in favor
of a definite class or group of persons shall be valid.
Disposition in favor of an unknown person
GR: Every disposition in favor of an unknown person shall be
void.
XPN: Unless by some extent/circumstance his identity becomes
certain.
Ex: Void disposition to an unknown person
“I hereby give 10% of my estate to my student.”
Disposition in favor or a definite class or group of persons
- Valid provided it is a definite class or group of persons.
- Ex: “I dispose ½ of my estate to 3-SR batch 2023.”
- Dispositions made in general terms [testator’s relatives/to
the poor] are not necessarily void.
- The instituted heir must be living or at least conceived at the
time of the testator’s death.
Principles governing institution
1. Equality [Art. 846];
2. Individuality [Art. 847; and
3. Simultaneity [Art. 849].
Principle of equality
Art. 846. Heirs instituted without designation of shares
shall inherit in equal parts.
- The presumption is that if the institution is silent, the testator
intended that all the instituted heirs shall have equal shares.
- Inherit per capita or in their own right.
- Freedom of disposition of the testator [testator is free to
designate the amount that the instituted heir will receive].
- The principle only applies if they are in the same juridical
capacity.
- If the instituted heir is also a compulsory heir, he will receive
more than the other heirs [by virtue of his legitime].
- Applies only to the free portion of the estate.
Principle of individuality
Art. 847. When the testator institutes some heirs
individually and others collectively as when he says, "I
designate as my heirs A and B, and the children of
C," those collectively designated shall be considered as
individually instituted, unless it clearly appears that the
intention of the testator was otherwise.
Jose vs. Uson
It was the intention of the testatrix to divide her property
equally between her sisters and nieces. As we look at the
codicil we observe, first, that the testatrix, in the first paragraph
thereof, declares that after her husband's death she desires
that "my sisters and nieces, as hereinafter named, shall
succeed him as heirs."
We note, in the second place, that the testatrix, in the second
paragraph of the codicil, names and identifies each one of her
heirs then living, in each one of the persons whom she desires
shall succeed her husband in the property. Among those
mentioned specially are the nieces as well as the sisters.
The nieces are referred to in no way different from the
sisters. Each one stands out in the second paragraph of the
codicil as clearly as the other and under exactly the same
conditions.
In the third place, we note, with interest, the last clause of the
second paragraph of the codicil which, it seems to us, taken
together with the last clause of the first paragraph of the codicil,
is decisive of the intention of the testatrix. In the last clause she
says that she names all of the persons whom she desires
to take under her will be name "so that they must take and
enjoy the property in equal parts as good sisters and
relatives."
The estate shall be divided into 9 equal parts [4 surviving sisters
and 5 nieces] and not into 6 parts. The nieces were individually
instituted as heirs. However, assuming that they were
collectively instituted, the presumption is that they would
nevertheless share equally in the estate [presumption of
individuality under Art. 857].
Art. 848. If the testator should institute his brothers and
sisters, and he has some of full blood and others of half-
 blood, the inheritance shall be distributed equally unless
a different intention appears.
- Applies only in testate succession wherein the testator has
the opportunity to specify their shares.
- If intestate succession, the full-blooded siblings will inherit
twice more than the half-blooded siblings.
Art. 849. When the testator calls to the succession a
person and his children they are all deemed to have been
instituted simultaneously and not successively.
Ex: The testator institutes Juan and the children of Juan
simultaneously [at the same time].
- Juan and his children will inherit from the testator at the
same time.
- It is not necessary that Juan should die for his children to
inherit because all of them are instituted as heirs of the
testator.
- The children of Juan are heirs of the testator and not as
heirs of their parents.
Art. 850. The statement of a false cause for the institution
of an heir shall be considered as not written, unless it
appears from the will that the testator would not have made
such institution if he had known the falsity of such cause.
Requisites for annulment of institution of heirs [Art. 850]
1. Cause for the institution of the heirs must be stated in
the will;
2. Cause must be shown to be false; and
3. It must appear from the face of the will that the testator
would not have made such institution if he had known
the falsity of the cause.
- In Art. 850 it is important to consider whether the institution
will be given effect despite the existence of the false cause.
- If the institution is based on illegal cause, it will be treated
in the same manner as a false cause wherein it is
considered not written.
- However, if there are no other reasons than the illegal
cause for the institution of heir, then the institution is void.
Ex: Falsity of cause that would annul the institution of heir
- If the testator instituted his best friend Juan to ½ of his
estate because Juan saved him while he was drowning.
However, it was really Maria who saved the testator.
- The institution in favor of Juan would not be given effect
[false cause because the testator really intended Maria
instead of Juan to be the instituted heir.
- However, Maria would still not be entitled to Juan’s share
because she is not an instituted heir.
Austria vs. Reyes
The petitioners would have us imply, from the use of the terms,
"sapilitang tagapagmana" (compulsory heirs) and "sapilitang
mana" (legitime), that the impelling reason or cause for the
institution of the respondents was the testatrix's belief that under
the law she could not do otherwise.
If this were indeed what prompted the testatrix in instituting the
respondents, she did not make it known in her will. Surely if she
was aware that succession to the legitime takes place by
operation of law, independent of her own wishes, she would
not have found it convenient to name her supposed
compulsory heirs to their legitimes. Her express adoption of the
rules on legitimes should very well indicate her complete
agreement with that statutory scheme.
The decedent's will does not state in a specific or
unequivocal manner the cause for such institution of heirs.
We cannot annul the same on the basis of guesswork or
uncertain implications. And even if we should accept the
petitioners' theory that the decedent instituted the respondents
Perfecto Cruz, et al. solely because she believed that the law
commanded her to do so, on the false assumption that her
adoption of these respondents was valid, still such institution
must stand.
Article 850 of the Civil Code is a positive injunction to
ignore whatever false cause the testator may have written
in his will for the institution of heirs.
Such institution may be annulled only when one is satisfied, after
an examination of the will, that the testator clearly would not
have made the institution if he had known the cause for it to be
false.
The will is silent as to whether Basilia would case the revocation
if had she known that she was mistaken in treating her heirs as
legally adopted children. Her disposition of the free portion of her
estate which largely favored the respondent Perfecto Cruz, the
latter's children, and the children of the respondent Benita Cruz,
shows a perceptible inclination on her part to give to the
respondents more than what she thought the law enjoined her
to give to them.
Were we to exclude the respondents Perfecto Cruz, et al. from
the inheritance, then the petitioners and the other nephews and
nieces would succeed to the bulk of the testate by intestacy —
a result which would subvert the clear wishes of the decedent.
Art. 851. If the testator has instituted only one heir, and
the institution is limited to an aliquot part of the
inheritance, legal succession takes place with respect to
the remainder of the estate.
The same rule applies if the testator has instituted several
heirs, each being limited to an aliquot part, and all the parts
do not cover the whole inheritance.
- Aliquot means a fraction or undivided interest.
- Art. 851 should be applied when there is no intention on the
part of the testator to give the remaining part of the estate
and only specific portions were mentioned.
- There were remaining properties not disposed in the will
and there was no intention on the part of the testator to
institute the heir to the entire estate.
- Art. 851 is an example of mixed succession.
Ex: “I hereby give Juan ½ of my estate.” And the testator has no
compulsory heirs. ½ of the estate given to Juan will be
distributed by testate succession and the other ½ by intestate
succession.
Art. 852. If it was the intention of the testator that the
instituted heirs should become sole heirs to the whole
estate, or the whole free portion, as the case may be, and
each of them has been instituted to an aliquot part of the
inheritance and their aliquot parts together do not cover
the whole inheritance, or the whole free portion, each part
shall be increased proportionally.
- In Art. 852, there is an intention to give everything in the
estate to the instituted heirs. [Whereas, in Art. 851 there is
 no intention on the part of the testator to give everything in First part: Computation of allocated share per heir
the estate to the instituted heirs]. Allocated share = Total estate x fraction in the will
- However, what has been given does not comprise the entire
estate because the testator committed a mathematical error Allocated share per heir
in apportioning the specific shares of each instituted heir. A: 1,200,000 x 1/4 = 300,000
B: 1,200,000 x 1/8 = 150,000
Ex: As to my entire estate of P2,400,000, I hereby institute A, B C: 1,200,000 x 2/3 = 800,000
and C as my heirs in the following manner: -------------
A = 1/4 Total allocated: 1,250,000
B = 1/4
C = 1/3
Total estate = 2,400,000 Second part: Computation of excess share per heir
Excess share = (Allocated share per heir/total allocated
First part: Computation of initial share per heir shares) x excess amount allocated
Initial share = Total estate x fraction in the will
Excess amount allocated = Total shares allocated – estate
Initial share per heir = 1,250,000 – 1,200,000
A: 2,400,000 x 1/4 = 600,000 = 50,000
B: 2,400,000 x 1/4 = 600,000 Excess share per heir
C: 2,400,000 x 1/3 = 800,000 A: (300,000/1,250,000) x 50,000 = 12,000
-------------- B: (150,000/1,250,000) x 50,000 = 6,000
Total initial share: 2,000,000 C: (800,000/1,250,000) x 50,000 = 32,000

Second part: Computation of additional share per heir not Third part: Total share per heir
allocated in the will Total share per heir = Allocated share – excess share
Additional share = (Initial share per heir/total initial Total share per heir
shares) x Amount not allocated A: 300,000 - 12,000 = 288,000
B: 150,000 - 6,000 = 144,000
Amount not allocated = Total estate – total initial shares C: 800,000 - 32,000 = 768,000
= 2,400,000 – 2,000,000 -------------
= 400,000
Additional share per heir Total: 1,200,000
A: (600,000/2,000,000) x 400,000 = 120,000
B: (600,000/2,000,000) x 400,000 = 120,000
C: (800,000/2,000,000) x 400,000 = 160,000 Preterition
Art. 854. The preterition or omission of one, some, or all
of the compulsory heirs in the direct line, whether living
Third part: Total share per heir at the time of the execution of the will or born after the
Total share per heir = Initial share + Additional share death of the testator, shall annul the institution of heir; but
Total share per heir the devises and legacies shall be valid insofar as they are
A: 600,000 + 120,000 = 720,000 not inofficious.
B: 600,000 + 120,000 = 720,000
C: 800,000 + 160,000 = 960,000 If the omitted compulsory heirs should die before the
------------- testator, the institution shall be effectual, without
prejudice to the right of representation.
Total: 2,400,000
Preterition
- The total omission [whether by mistake or deliberate
Art. 853. If each of the instituted heirs has been given an omission] of some or all compulsory heirs in the direct line
aliquot part of the inheritance, and the parts together whether living at the time of the execution of the will or born
exceed the whole inheritance, or the whole free portion, after the death the testator.
as the case may be, each part shall be reduced - Art. 854 annuls the institution of heir when there is
proportionally. preterition in order to preserve the legitime of compulsory
heirs.
- This is the reverse of Art. 852. - Art. 854 prevents the testator from denying the compulsory
- The intention of the testator is to give the entire estate but heirs of their legitime.
mathematically, the total of the shares allocated to each heir - Preterition is not considered as disinheritance because in
exceed the entire estate. disinheritance, the testator must state a valid ground for
- The excess shall be deducted proportionally to each share such disinheritance.
allocated to the heirs. - In preterition, the heir was just not mentioned in the will and
it is the presumption of law that it was due to mistake or
Ex: As to my entire estate of P1,200,000, I hereby institute A, B oversight.
and C as my heirs in the following manner:
A = 1/4 Maloles II vs. Phillips
B = 1/8
C = 2/3 The private respondent herein is not an heir or legatee under the
Total estate = 1,200,000 will of the decedent Arturo de Santos. Neither is he a compulsory
heir of the latter. As the only and nearest collateral relative of the
decedent, he can inherit from the latter only in case of intestacy.
Since the decedent has left a will which has already been
probated and disposes of all his properties the private
respondent can inherit only if the said will is annulled. His
interest in the decedent's estate is, therefore, not direct or
immediate.
Even if petitioner is the nearest next of kin of Dr. De Santos, he
cannot be considered an "heir" of the testator. It is a fundamental
rule of testamentary succession that one who has no
compulsory or forced heirs may dispose of his entire estate by
will.
Compulsory heirs are limited to the testator's
(1) Legitimate children and descendants, with respect to
their legitimate parents and ascendants;
(2) In default of the foregoing, legitimate parents and
ascendants, with respect to their legitimate children and
descendants;
(3) The widow or widower;
(4) Acknowledged natural children, and natural children by
legal fiction;
(5) Other illegitimate children referred to in Article 287 of the
Civil Code.
Petitioner, as nephew of the testator, is not a compulsory
heir who may have been preterited in the testator's will.
Acain vs. IAC
Preterition consists in the omission in the testator's will of
the forced heirs or anyone of them either because they are
not mentioned therein, or, though mentioned, they are
neither instituted as heirs nor are expressly disinherited.
The surviving spouse is not a compulsory heir in the direct
line that may be preterited
Insofar as the widow is concerned, Article 854 of the Civil
Code may not apply as she does not ascend or descend
from the testator, although she is a compulsory heir. Stated
otherwise, even if the surviving spouse is a compulsory heir,
there is no preterition even if she is omitted from the
inheritance, for she is not in the direct line.
Preterition as to the legally adopted child
However, the same thing cannot be said of the other respondent
Virginia A. Fernandez, whose legal adoption by the testator has
not been questioned by petitioner. Adoption gives to the
adopted person the same rights and duties as if he were a
legitimate child of the adopter and makes the adopted person
a legal heir of the adopter.
It cannot be denied that she has totally omitted and preterited
in the will of the testator and that both adopted child and the
widow were deprived of at least their legitime. Neither can it
be denied that they were not expressly disinherited. Hence,
this is a clear case of preterition of the legally adopted child.
Effect of preterition
Pretention annuls the institution of an heir and annulment
throws open to intestate succession the entire inheritance.
The only provisions which do not result in intestacy are the
legacies and devises made in the will for they should stand
valid and respected, except insofar as the legitimes are
concerned.
The universal institution of petitioner together with his brothers
and sisters to the entire inheritance of the testator results in
totally abrogating the will because the nullification of such
institution of universal heirs-without any other testamentary
disposition in the will-amounts to a declaration that nothing at all
was written. Carefully worded and in clear terms, Article 854 of
the Civil Code offers no leeway for inferential interpretation.
No legacies nor devises having been provided in the will the
whole property of the deceased has been left by universal
title to petitioner and his brothers and sisters.
The effect of annulling the Institution of heirs will be, necessarily,
the opening of a total intestacy except that proper legacies and
devises must, as already stated above, be respected.
Instances which would result to preterition
There are heirs omitted that are:
1. Living at the time the will was executed;
2. Born after the execution of the will but before the testator’s
death;
3. Born after the testator’s death as long as already conceived
before the death of the testator and provided that such
person acquires juridical capacity in accordance with law.
- There is preterition as long as the preterited heir is already
living or conceived at the time of the execution of the will
even if born after the testator’s death [Art. 40 & Art. 41 of
the CC].
Hacbang vs. Alo
Ownership over the inheritance passes to the heirs at the
precise moment of death - not at the time the heirs are
declared, nor at the time of the partition, nor at the distribution of
the properties. There is no interruption between the end of
the decedent's ownership and the start of the
heir/legatee/devisee's ownership.
For intestate heirs, this means that they are immediately
entitled to their hereditary shares in the estate even though
they may not be entitled to any particular properties yet. For
legatees and devisees granted specific properties, this
means that they acquire ownership over the legacies and
devises at that immediate moment without prejudice to the
legitimes of compulsory heirs.
A person without compulsory heirs may dispose of his estate,
either in part or in its entirety, in favor of anyone capacitated to
succeed him; if the testator has compulsory heirs, he can
dispose of his property provided he does not impair their
legitimes.
Bishop Sofronio was free to dispose of his estate without
prejudice to the legitimes of his compulsory heirs. Bishop
Sofronio's only compulsory heirs were his parents. Their
legitime was one-half of Bishop Sofronio's estate.
Considering that Bishop Sofronio gave his parents half of his
estate, then he was free to dispose of the free portion of his
estate in favor of his sister, Dolores Hacbang Alo. Thus, his will
was intrinsically valid. He also identified the specific
properties forming part of their inheritance. The dispositions
in the will rendered court adjudication and distribution
unnecessary.
At the precise moment of death, the heirs become owners of
the estate pro-indiviso. They become absolute owners of
their undivided aliquot share but with respect to the individual
properties of the estate, they become co-owners.
This co-ownership remains until partition and distribution.
Until then, the individual heirs cannot claim any rights over
a specific property from the estate. This is because the heirs
do not know which properties will be adjudicated to them yet. them: They thus received nothing by the testament; tacitly,
Hence, there is a need for a partition before title over they were deprived of their legitime; neither were they
particular properties vest in the distributee-heirs. expressly disinherited. This is a clear case of preterition.

However, heirs, legatees, and devisees bequeathed specific The one-sentence will here institutes petitioner as the sole,
properties do not require Court adjudication to identify which universal heir — nothing more. No specific legacies or
particular properties become theirs; the testator had already bequests are therein provided for. It is in this posture that we
identified these. From the very moment of the testator's death, say that the nullity is complete. Perforce, Rosario Nuguid died
title over these particular properties vests on the heir, legatee, intestate.
or devisee.
The universal institution of petitioner to the entire
On 3 April 1937, title over the subject lot passed on to the inheritance results in totally abrogating the will. Because,
respondent's mother, Dolores Hacbang Alo, at the exact the nullification of such institution of universal heir — without any
moment of her brother's death. From that moment on, she other testamentary disposition in the will — amounts to a
was free to dispose of the subject lot as a consequence of her declaration that nothing at all was written.
ownership.
Legacies and devises merit consideration only when they
Instance: Omitted compulsory heir in the will without any are so expressly given as such in a will. Nothing in Article 854
legatee or devisee instituted suggests that the mere institution of a universal heir in a will
Example Whether there is — void because of preterition — would give the heir so instituted
preterition a share in the inheritance. As to him, the will is inexistent.
1. The testator instituted NO. There is still a portion of There must be, in addition to such institution, a
his legitimate children the estate left for the testamentary disposition granting him bequests or legacies
Juan, Pedro and Maria compulsory heir Lorenzo. apart and separate from the nullified institution of heir.
to 1/4 of the estate. Only 1/4 was instituted in
However, he has favor of Juan, Pedro and There is no other provision in the will before us except the
another legitimate child, Maria. institution of petitioner as universal heir. That institution, by
Lorenzo that was not itself, is null and void. And, intestate succession ensues.
instituted as an heir in The will here does not explicitly disinherit the testatrix's parents,
the will. the forced heirs. It simply omits their names altogether. Said will
2. 99% of the estate was NO. In preterition, there must rather than be labeled ineffective disinheritance is clearly one in
already instituted in be total omission with regard which the said forced heirs suffer from preterition.
favor of Juan, Pedro and to the entire estate.
Maria. Distinction between preterition and ineffective
Lorenzo will be entitled to the disinheritance
completion of his legitime by The effects flowing from preterition are totally different from
reducing the respective those of disinheritance. Preterition under Article 854 of the Civil
shares of the instituted heirs. shall annul the institution of heir. This annulment is in toto,
3. During the lifetime of the NO. The donation made by unless in the will there are, in addition, testamentary
testator, he donated a testator during his lifetime in dispositions in the form of devises or legacies.
parcel of land in favor of favor of Lorenzo was
Lorenzo. considered as an advance of In ineffective disinheritance under Article 918 of the same
his legitime. Code, such disinheritance shall also annul the institution of
heirs, put only insofar as it may prejudice the person
If the value of the donation is disinherited, which last phrase was omitted in the case of
less than the supposed preterition. Better stated yet, in disinheritance the nullity
legitime, the shares of the is limited to that portion of the estate of which the
instituted heirs will be disinherited heirs have been illegally deprived.
reduced to complete
Lorenzo’s legitime. Neri vs. Akutin
4. During the lifetime of the NO. Lorenzo received the
testator, his marriage advance legitime during the The testator left all his property by universal title to the
from his spouse was lifetime of the testator. children by his second marriage, and that without expressly
annulled. There was disinheriting the children by his first marriage, he left
delivery of presumptive If the value of the nothing to them or, at least, some of them. This is, accordingly,
legitimes to his children. presumptive legitime is less a case of preterition. The institution of heirs shall be annulled
than the supposed legitime, and intestate succession should be declared open.
the shares of the instituted
heirs will be reduced to No property has ever been advanced by the testator to the
complete Lorenzo’s legitime. children by his first marriage
The large parcel of land adjoining parcel No. 1 was alleged by
the children of the second marriage to have been advanced by
the testator to the children by his first marriage. Apparently, the
Nuguid vs. Nuguid said land is still claimed to be the property not only of the children
of the first marriage but also of those of the second marriage,
The deceased Rosario Nuguid left no descendants, legitimate which is another way of stating that the property could not
or illegitimate. But she left forced heirs in the direct have been advanced by the testator to the children by the
ascending line her parents, now oppositors Felix Nuguid and first marriage, for otherwise the children by the second
Paz Salonga Nuguid. And, the will completely omits both of marriage would not lay a claim on it.

Instituted heirs are different from legatees in the will
The theory is advanced that the bequest made by universal title
in favor of the children by the second marriage should be treated
as legacies and betterments and, accordingly, it must not be
entirely annulled but merely reduced. This theory, if adopted, will
result in a complete abrogation of articles 814 and 851 of the
Civil Code.
If every case of institution of heirs may be made to fall into
the concept of legacies and betterments reducing the
bequest accordingly, then the provisions of articles 814 and
851 regarding total or partial nullity of the institution, would
be absolutely meaningless and will never have any application
at all.
The institution of heirs is therein dealt with as a thing
separate and distinct from legacies or betterment.
Institution of heirs is a bequest by universal title of property
that is undetermined. Legacy refers to specific property
bequeathed by a particular or special title.
Article 814 [now Art. 854] refers to two different things. Its
special purpose is to establish a specific rule concerning a (1)
specific testamentary provision, namely, the institution of heirs
in a case of preterition. Its other provision regarding the (2)
validity of legacies and betterments if not inofficious is a
mere reiteration of the general rule.
As regards testamentary dispositions in general, the general rule
is that all testamentary dispositions which diminish the
legitime of the forced heirs shall be reduced on petition of the
same in so far as they are inofficious or excessive" (Article 817).
But this general rule does not apply to the specific instance
of a testamentary disposition containing an institution of
heirs in a case of preterition, which is made the main and
specific subject of Article 814.
In such instance, according to Article 814, the testamentary
disposition containing the institution of heirs should be not
only reduced but annulled in its entirety and all the forced
heirs, including the omitted ones, are entitled to inherit in
accordance with the law of intestate succession.
Morales vs. Olondriz
The pertinent portions of the decedent’s will reads:
1. Upon my death, IRIS MORALES OLONDRIZ shall be the
executor hereof and administrator of my estate until its
distribution in accordance herewith.
2. My entire estate shall be divided into six (6) parts to be
distributed equally among and between (1) IRIS MORALES
OLONDRIZ, my children (2) ALFONSO JUAN OLONDRIZ, JR.,
(3) ALEJANDRO OLONDRIZ, (4) ISABEL OLONDRIZ, (5)
ANGELO OLONDRIZ, and their mother (6) MARIA ORTEGAS
OLONDRIZ, SR.
The decedent’s will evidently omitted Francisco Olondriz as
an heir, legatee, or devisee. As the decedent’s illegitimate
son, Francisco is a compulsory heir in the direct line. Unless
Morales could show otherwise, Francisco’s omission from the
will leads to the conclusion of his preterition.
During the proceedings in the RTC, Morales had the opportunity
to present evidence that Francisco received donations inter
vivos and advances on his legitime from the decedent. However,
Morales did not appear during the hearing dates, effectively
waiving her right to present evidence on the issue. We cannot
fault the RTC for reaching the reasonable conclusion that there
was preterition.
Tubera-Balintec vs. Heirs of Tubera
The marriage between Florenda and Cesar Tubera was
celebrated on December 31, 2003, during the effectivity of the
Family Code, without any marriage license. Even assuming
that Cesar Tubera and his first wife had separated in fact, and
thereafter he and Florenda had started living with each other for
a period which lasted for five years, the fact remained that their
five-year cohabitation was not the cohabitation contemplated by
law because there existed a legal impediment on the part of
Cesar Tubera.
Mark Cesar, while he is indeed the child of the decedent,
cannot be considered a legitimate (marital) child of the
decedent and Florenda as he is a product of a marriage that
is void from the beginning. Having proved his illegitimacy or
being a non-marital child through the signature and
acknowledgment of decedent Cesar Tubera in Mark Cesar's
record of birth, the latter can be conclusively considered as an
illegitimate (non-marital) child, who is a compulsory heir.
Recognizing Mark Cesar as the decedent's compulsory heir, the
CA found that he was preterited in the holographic will of
Cesar Tubera pursuant to Article 854 of the Civil Code. Clearly,
the filiation of Mark Cesar has been established by the
record of birth appearing in the civil register.
Mark Cesar, thus, stands to succeed from his father Cesar
Tubera as an illegitimate (non-marital) child. Being the sole
compulsory heir, he excludes the collateral relatives of
decedent Cesar Tubera, including petitioner.
Requisites for preterition to exist
1. Omission from the inheritance must be total or
complete.
- When the compulsory heir received nothing at all whether
as heir, legatee, devisee, done from donation inter vivos or
propter nuptias or has not received anything by intestate
succession.
2. Omitted heir must be the compulsory heir from the
direct line.
3. Omitted heir must be living or at least conceived at the
time of the execution of the testator’s will.
- The compulsory heir must not predecease the testator.
4. Omitted heir must survive the testator.
A legacy or devise that is inofficious impairs the legitime of
the compulsory heir
- A legacy or devise is inofficous if it exceeds the free portion
of the estate.
- To determine whether the legacy or devise is inofficious, the
legitime of the compulsory heirs must first be determined.
Preterition and there is a legatee/devisee in the will
Example Whether the legacy is
inofficious
The testator has 4 legitimate children: Juan, Pedro, Maria and
Lorenzo. Lorenzo is omitted from the will [preterited heir].The
total estate of the testator is P1,200,000.
 Nullity of Total. Results in total Partial. Only in so
Total legitime of compulsory heirs = Total estate x 1/2 institution intestacy. far as it
1,200,000 x 1/2 = 600,000 prejudices the
disinherited heir
Free portion = Total estate x 1/2 [if ineffective]
1,200,000 x 1/2 = 600,000 Effect Omitted compulsory If valid:
1. In the testator’s will, a NO. The P300,000 is less heir gets his share Compulsory heir
P300,000 legacy is than the P600,000 free from the entire estate. is excluded from
given in favor of Jose, portion of the estate. the inheritance.
the bestfriend of the
testator. If ineffective:
2. In the testator’s will, a YES. The free portion of the Compulsory heir
P800,000 legacy is net estate of the testator is is merely
given in favor of Jose, only P600,000. The legacy of restored to his
the bestfriend of the P800,000 exceeds the free legitime.
testator. portion. Testamentary
dispositions
The legacy in favor of Jose which are
will be reduced up to the free inofficious are
portion [P600,000 only]. only reduced.
Preterition and there is an instituted heir Compulsory YES NO
If Jose, instead of being a legatee, is an instituted heir, then heir must be
his institution will be annulled entirely [not merely a reduction in the direct
up to the free portion] and he will not be entitled to anything. line

Art. 855. The share of a child or descendant omitted in a

Importance of distinction between an heir, legatee or will must first be taken from the part of the estate not
devisee disposed of by the will, if any; if that is not sufficient, so
Instituted heir in the will The instituted heir will not be much as may be necessary must be taken proportionally
and a compulsory heir is entitled to anything. The from the shares of the other compulsory heirs.
omitted institution will be annulled.
Legatee or devisee in the The legacy or devisee will be - Art. 855 applies regardless of whether there is preterition or
will and a compulsory heir given as long as it is not not.
is omitted inofficious. - Art. 855 only refers to legitime.
- An heir can be omitted in the will but there is still no
If inofficous, the legacy or preterition if the testator donated a property to him as an
devise will be reduced up to advance legitime.
the free portion only. - The omitted heir will be entitled to the completion of his
legitime.
Rule when the omitted compulsory heir predeceases the
testator Completion of legitime of the omitted heir [in order of
- Logically you cannot omit an heir who already died ahead preference]:
of the testator. 1. Truly free portion of the estate which has not been
- The right of an heir prior to the death of the testator is merely disposed in favor of legates, devisees and voluntary heirs.
inchoate. 2. If insufficient: Portion given to legatees and devisees.

GR: There is no preterition if the compulsory heir in the direct Art. 856. A voluntary heir who dies before the testator
line predeceases the testator. transmits nothing to his heirs. [voluntary heirs have no
XPN: The compulsory heir has his own compulsory heirs which right of representation]
can assert that there is preterition by virtue of the right of
representation. Annulment of the institution would take effect. A compulsory heir who dies before the testator, a person
incapacitated to succeed, and one who renounces the
Effects of preterition inheritance, shall transmit no right to his own heirs
1. Annul the institution of heirs; and except in cases expressly provided for in this Code.
2. Legacy or devise shall be valid in so far as they do not
impair the legitime of the compulsory heirs [reduced up to Art. 856 is divided into two parts:
the free portion if inofficious]. 1. Voluntary heirs have no right of representation.
- If the voluntary heir predeceases the testator, his
Distinction between preterition and disinheritance compulsory heirs cannot represent him as to the share
Preterition Disinheritance given to him.
Intentional YES. May be YES. Always - Voluntary heirs, legates and devisees are given properties
intentional but intentional. from the free portion of the estate.
presumed - A compulsory heir may at the same time also be a voluntary
unintentional. heir if he is given more than his legitime in the will.
Presumption There has been Based on some
under the mistake or oversight in legal cause 2. Compulsory heirs who shall transmit no rights to his
law omitting the own heirs except in cases expressly provided by law
compulsory heir. [right of representation].
GR: A compulsory heir who: 2. Fideicommissary Substitution/Indirect Substitution –
- Predecease the testator; all of the heirs will inherit but one after the other; a first heir
- Incapacitated to succeed; or is instituted and after some time, the same property will
- Renounces his inheritance. pass on to the second heir.

Shall transmit no rights to his own compulsory heirs. Art. 858. Substitution of heirs may be:
(1) Simple or common;
XPN: Right of representation if the compulsory heir has his own (2) Brief or compendious;
compulsory heirs. (3) Reciprocal; or
(4) Fideicommissary.
Example: If a compulsory heir is at the same time a
voluntary heir in the will and he predeceases the testator. 1-3 is simple substitution
The testator has 2 children, Juan and Pedro. The total estate 4-fideicommissary substitution
of the testator is P1,200,000. In the will, Pedro is given 1/2 of
the free portion of the estate. Art. 859. The testator may designate one or more persons to
substitute the heir or heirs instituted in case such heir or heirs
Total estate = 1,200,000 should die before him, or should not wish, or should be
Total legitime = 1,200,000 x 2 = 600,000 incapacitated to accept the inheritance. [vulgar substitution]
Total free portion = 1,200,000 x 2 = 600,000
Free portion given to Pedro = 600,000 x 1/2 = 300,000 A simple substitution, without a statement of the cases to
which it refers, shall comprise the three mentioned in the
Pedro predeceased the testator. Pedro has a child who preceding paragraph, unless the testator has otherwise
survived him, Maria. provided.
What is Maria entitled to as Pedro’s compulsory heir?
Legitime of each compulsory YES. Maria is entitled to the Grounds for simple/common substitution
heir = Total legitime/number legitime of Pedro because of 1. Predecease;
of compulsory heirs the right of representation. 2. Renunciation or Repudiation; and
Pedro received his legitime 3. Incapacity.
Legitime of Pedro because he is a compulsory
600,000/2 = 300,000 heir of the testator. - It will the substitute who will receive the property.
- Testacy is favored over intestacy.
- The testator is not precluded from providing for other
Free portion given to Pedro NO. Maria is not entitled causes than predecease, renunciation or incapacity
600,000 x 1/2 = 300,000 because Pedro received the [“unless the testator has otherwise provided.”]
share as a voluntary heir. - But if the disposition is silent, the 3 causes [predecease,
renunciation, or incapacity] for substitution applies.
- There is no right of
representation for Order of priority
voluntary heirs. 1. Institution;
- This supposed to be 2. Substitution;
share given to Pedro 3. Representation;
shall be given by way of 4. Accretion; and
intestate succession. 5. Intestacy.
- Maria can inherit this
portion as a legal heir of Art. 860. Two or more persons may be substituted for one;
the testator [her and one person for two or more heirs.
grandfather] along with
the other legal heirs, but 1. Brief Substitution – two or more persons may be
not as representative of substituted for one.
Pedro [her deceased
father].

Substitution of Heirs
Art. 857. Substitution is the appointment of another heir so
that he may enter into the inheritance in default of the heir
originally instituted.

Substitution
- Disposition by virtue of which a third person is called to
receive a hereditary property in lieu of another person. 2. Compendious Substitution – one person substitutes for
two or more heirs.

Kinds of substitution
1. Simple Substitution/Direct Substitution – not all heirs will
inherit; in default of 1 heir, the substitute will inherit.
 shall be the substitute, they are subject to the same
condition.

XPN:
(1) testator has expressly provided the contrary.
- If the testator provides in his will that the substitutes are not
required to observe the same conditions.

(2) the charges or conditions are personally applicable

only to the heir instituted.
- If the substitution is for all heirs and all the heirs died ahead - If the condition upon the instituted heir is to pass the bar
of the testator, the substitute will inherit. exam, but the substitutes are already lawyers.
- If only one of those substituted heirs dies, the rule on
representation will be applied; and accretion if there are no Fideicommissary substitution
representatives. Art. 863. A fideicommissary substitution by virtue of which the
fiduciary or first heir instituted is entrusted with the obligation
Reciprocal substitution to preserve and to transmit to a second heir the whole or part
Art. 861. If heirs instituted in unequal shares should be of the inheritance, shall be valid and shall take effect,
reciprocally substituted, the substitute shall acquire the share provided such substitution does not go beyond one degree
of the heir who dies, renounces, or is incapacitated, unless it from the heir originally instituted, and provided further, that
clearly appears that the intention of the testator was the fiduciary or first heir and the second heir are living at the
otherwise. If there are more than one substitute, they shall time of the death of the testator.
have the same share in the substitution as in the institution.
- Both the first heir and the second heir gets to enjoy the
Ex: property.
Testator instituted Juan, Pedro, and Miguel as his heirs with - The first heir would just be first in enjoying the property.
estate worth P3,000,000. In the will it was stated that should - There would just be an obligation imposed upon the first
Juan die ahead of testator, Pedro and Miguel shall substitute heir to preserve the property and transmit the property to
Juan; or if Pedro dies ahead of testator, Juan and Miguel shall the second heir.
substitute him; or if Miguel dies ahead of the testator, Juan and - Fideicommissary substitution applies only if the first heir
Pedro shall substitute him. and second heir are related within one degree. [applies only
to natural persons]
Share in the estate: - The first heir is considered as a trustee since he later on
Juan: P1,000,000 1/3 has an obligation to transmit it to the second heir.
Pedro: P 500,000 1/6
Miguel: P1,500,000 1/2 Obligations of the First heir/Fiduciary
---------------- (1) Preserve the property.
Total: P3,000,000 - The heir cannot destroy, alienate or transfer the property to
another.
If Juan predeceases the testator, Pedro and Miguel will be his - the words “preserve” and “transmit” must not be necessary
substitute: the exact words provided in the will for it to be considered
- The share of Juan will be distributed proportionally in as a fideicommissary substitution.
accordance with their shares. - It is enough that there is an obligation imposed upon first
heir equivalent to an obligation to preserve the property and
Proportional share to transmit it to the second heir.
Pedro P500,000 1/4
Miguel P1,500,000 3/4 (2) Deliver the property to the 2nd heir.
---------------- - The period of delivery stated by the testator in the will
Total: P2,000,000 should be followed.
- If the institution is silent as to the date of the delivery of the
Share from substituting Juan: property, it should be made at the time of the death of the
Pedro 1,000,000 x 1/4 = 250,000 1st heir.
Miguel 1,000,000 x 3/4 = 750,000
(3) Make an inventory of the property.
Total share:
Pedro: P 500,000 + P250,000 = P750,000 Testate Estate of Ramirez vs. Vda. de Ramirez
Miguel P 1,500,000 + P750,000 = P2,250,000
Substitution is the appoint-judgment of another heir so that he
Art. 862. The substitute shall be subject to the same charges may enter into the inheritance in default of the heir originally
and conditions imposed upon the instituted heir, unless and instituted. Article 858 provides for the kinds of substitution,
testator has expressly provided the contrary, or the charges namely: (1) simple or common; (2) brief or compendious; (3)
or conditions are personally applicable only to the heir reciprocal, and (4) fideicommissary. Although the Code
instituted. enumerates four classes, there are really only two principal
classes of substitutions: the simple and the fideicommissary.
GR: The substitute shall be subject to the same charges and The others are merely variations of these two.
conditions imposed upon the instituted heir.
- The testator imposed upon the instituted heir that he should The simple or vulgar substitution of usufruct is valid
visit the testator’s grave once a month. If Pedro and Miguel The testator provided for a vulgar substitution in respect of the
legacies of Roberto and Jorge. They allege that the substitution
in its vulgar aspect as void because Wanda survived the testator
or that she did not predecease the testator.
But Dying before the testator is not the only case for vulgar
substitution for it also includes refusal or incapacity to accept the
inheritance as provided in Art. 859 of the Civil Code. Hence, the
vulgar substitution is valid.
Substitution in its fideicommissary aspect is void
The substitutes, Juan Pablo Jankowski and Horace V. Ramirez
are not related to Wanda, the heir originally instituted. Art. 863
of the Civil Code validates a fideicommissary substitution
provided such substitution does not go beyond one degree from
the heir originally instituted.
Meaning of one degree
The word degree is construed as generation. The Code thus
clearly indicates that the second heir must be related to and be
one generation from the first heir. It follows that the
fideicommissary can only be either a child or a parent of the first
heir. These are the only relatives who are one generation or
degree from the fiduciary.
The heirs must not predecease the testator
Ex: In 2000, the testator executed a LWT wherein he instituted
Juan and Miguel under a fideicommissary substitution. Juan
being the first heir and Pedro as the second heir. Juan will first
inherit the property and after 10 years, Pedro will inherit the
same property.
On 2001, the testator died. In 2003, Pedro [2nd heir died]. After
10 years, Juan must still deliver the same property to Pedro’s
heirs. The right of Pedro became vested from the moment of
death of the testator. Even if Pedro died before the 10 year
period, his rights as 2nd heir were not extinguished. Upon
Pedro’s death, this rights to the property were transmitted to his
heirs. Upon the end of the 10 year period, the heirs of Pedro can
claim the property from Juan.
Requisites of fideicommissary substitution
(1) Fideicommissary substitution must be expressly made
[stated in the will];
(2) There must be a first heir [fiduciary/trustee];
(3) There must be a second heir [fideicommissary/beneficiary];
(4) The first heir and second heir must have the capacity to
inherit;
(5) There is an obligation upon the first heir to preserve and
transmit to a second heir the whole or part of the
inheritance;
(6) The relationship of the first heir and second heir should not
go beyond one degree; and
(7) The first heir and second heir should be living at the time of
death of the testator.
Art. 864. A fideicommissary substitution can never burden
the legitime.
Ex:
- If it is the legitime that is subjected to the fideicommissary
substitution.
- If the testator provided in his will that Juan [his legitimate
child] shall enjoy the property/his legitime for 10 years but
thereafter deliver the property to Pedro, the substitution is
void.
- Legitime is imposed by law and no conditions, burdens and
substitutions can be imposed upon it.
GR: The rights of compulsory heirs to their legitime is absolute.
XPN:
(1) Reserva troncal; and
(2) Prohibition on the part of the testator not to partition the
estate for a period not exceeding 20 years.
Art. 865. Every fideicommissary substitution must be
expressly made in order that it may be valid.
The fiduciary shall be obliged to deliver the inheritance to the
second heir, without other deductions than those which arise
from legitimate expenses, credits and improvements, save in
the case where the testator has provided otherwise.
Deductions on the property allowed to be made by the
fiduciary
1. Legitimate expenses necessary for preservation;
2. Credits; and
3. Improvements.
Art. 866. The second heir shall acquire a right to the
succession from the time of the testator's death, even though
he should die before the fiduciary. The right of the second heir
shall pass to his heirs.
- Even if the second heir dies before the fiduciary, as long as
he is alive at the time of death of the testator, he is entitled
under the inheritance under the fideicommissary
substitution.
- The rights to the inheritance was vested upon the second
heir upon the death of the testator.
- The 2nd heir can sell the property even if it has not yet been
transmitted to him.
- It is only the usufruct that belongs to the 1st heir.
- The 2nd heir acquired his title over the property as a naked
owner upon the death of the testator.
- The buyer of the property from the 2nd heir shall be
subjected to the right of the first heir to enjoy the property
first. [buyer must respect the usufruct]
Art. 867. The following shall not take effect:
(1) Fideicommissary substitutions which are not made in an
express manner, either by giving them this name, or
imposing upon the fiduciary the absolute obligation to
deliver the property to a second heir;
(2) Provisions which contain a perpetual prohibition to
alienate, and even a temporary one, beyond the limit
fixed in article 863;
(3) Those which impose upon the heir the charge of paying
to various persons successively, beyond the limit
prescribed in article 863, a certain income or pension;
(4) Those which leave to a person the whole part of the
hereditary property in order that he may apply or invest
the same according to secret instructions communicated
to him by the testator.
(1) Fideicommissary substitutions which are not made in
an express manner, either by giving them this name, or
imposing upon the fiduciary the absolute obligation to
deliver the property to a second heir.
Fideicommissary substitution expressly made in the will
1. Name the substitution as fideicommissary substitution; or
2. Impose upon the 1st heir the obligation to preserve and
transmit the property in favor of the 2nd heir.
- There is an absolute obligation imposed upon the fiduciary
by the testator to preserve and deliver the property to the
2nd heir. It is not a mere suggestion. The 1st heir has no
choice/discretion whether to deliver.
(2) Provisions which contain a perpetual prohibition to
alienate, and even a temporary one, beyond the limit
fixed in article 863.
GR: The testator cannot prohibit the heirs from alienating the
property they inherited.
XPN: Prohibition as to partition the estate for a period not
exceeding 20 years.
the same according to secret instructions
communicated to him by the testator.
Ex:
- The testator provides in his will “I give 1M to Juan and he
should use this amount for the purpose I secretly told him.”
- The provision is void since it would be impossible to know
the specific instructions of the testator and whether such
instructions were legal or not.

Example situations Art. 868. The nullity of the fideicommissary substitution does
Partition not prejudice the validity of the institution of the heirs first
Situation WON the provision is valid designated; the fideicommissary clause shall simply be
1. The testator instituted YES. It is within the 20 year considered as not written.
Juan as an heir to his period provided by law.
land. In his will he states - If any of the requisites of the fideicommissary substitution is
that “I give this land to not valid [ex: the substitution is not expressly made; the 2nd
Juan but he shall not heir predeceased the testator; or the relationship between
alienate it for 15 years.” the 1st heir and 2nd heir is beyond 1 degree].
Suppose Juan died. Can YES. Pedro merely stepped - The 1st heir will still get the inheritance. It becomes a simple
Pedro, the son of Juan, into the shoes of his substitution.
inherit the property and be predecessor, Pedro.
subjected to the condition not Art. 869. A provision whereby the testator leaves to a person
alienate it for 15 years? the whole or part of the inheritance, and to another the
Suppose Pedro, the son of NO. That is beyond the limit usufruct, shall be valid.
Juan, also died. Can Miguel stated under Art. 863. The
[son of Pedro] be subjected prohibition is only between If he gives the usufruct to various persons, not
to the same prohibition? Juan and Pedro. It cannot simultaneously, but successively, the provisions of Article
exceed beyond one degree 863 shall apply.
from the instituted heir
[Juan]. Ex:
2. The testator instituted NO. It is beyond the 20 year [1st par.]
Juan as an heir to his period provided by law. The testator provides in his last will and testament that the naked
land. In his will he states ownership will be given to Juan, but for 10 years it should be
that “I give this land to used and enjoyed by Pedro [usufruct given to Pedro].
Juan but he shall not
alienate it for 30 years.” [2nd par]
Fideicommissary substitution - If the testator gives the usufruct to various persons
3. The testator instituted YES. It is not a case of successively, it partakes the nature of a fideicommissary
Juan as the 1st heir prohibition to partition but a substitution. The substitution is bound by the requisites of a
subject to the condition fideicommissary substitution. fideicommissary substitution under Art. 863. [ex: relation of
that Juan will preserve the 1st heir and 2nd heir should not go beyond 1 degree]
the property and Any perpetual prohibition on - If the usufruct was given by the testator simultaneously to
transmit it to Pedro [2nd the fiduciary to alienate the 2 or more persons, it is not bound by the requisites of a
heir] after a period of 30 property is valid because he fideicommissary substitution under Art. 863. [no
years. is already prohibited from requirement of 1 degree]
alienating the property due to
his obligation to preserve and Art. 870. The dispositions of the testator declaring all or part
transmit the property to the of the estate inalienable for more than twenty years are void.
2nd heir.
- Only pertains to prohibition to partition and not
(3) Those which impose upon the heir the charge of paying fideicommissary substitution [period to deliver].
to various persons successively, beyond the limit
prescribed in article 863, a certain income or pension. Conditional Testamentary Dispositions
Ex: Successive transfers/payments beyond one degree not and Testamentary Dispositions
allowed with a Term
- Juan is obligated by the testator to deliver the same
property he inherited to Pedro. Art. 871. The institution of an heir may be made conditionally,
- Then in the same will from Pedro to Miguel and from Miguel or for a certain purpose or cause.
to Maria. This is not allowed under Article 867 because it
violates the provision in connection to fideicommissary - Institution only pertains to the free portion. There is no need
substitution. for institution in case of legitime.
- If the obligation is to pay charges [pension/income] then it
should only be one degree from Juan. [only to Pedro] Kinds of institution
1. Simple/Pure institution – the institution takes place
(4) Those which leave to a person the whole part of the immediately after the death of the testator and it is not a
hereditary property in order that he may apply or invest subject to any condition, burden or charge.
2. Conditional institution – the institution is subject to a - Absolute or relative condition or it may be physical or legal
condition. condition.
- Impossible/unlawful conditions shall be considered as not
3. Institution with a term – the institution necessarily comes written.
although not known exactly when.
Effect of impossible conditions
Ex: Death of person [certain to happen but exact time is Succession in institution Obligations and Contracts
unknown] of heirs [Art. 873]
- The testator institutes Juan as an heir but he shall receive - The institution is still - The obligation and
his inheritance 5 years after the death of the testator or a effective. condition is void.
3rd person.
- The consideration in the
4. Modal institution – institution that is subject to a mode [Art. institution is not really - There is no liberality or
882 and Art. 883] the condition imposed. generosity involved. If
The obligation is merely the condition is
Condition an accessory to the impossible or illegal, the
A future and uncertain event upon which the demandability or institution. illegality or impossibility
resolution of a testamentary disposition will depend upon a past goes into the
and unknown event to the parties. - The consideration in the consideration itself.
institution is the liberality [impossible condition
Condition vs. Period/Term or the generosity of the annuls the obligation]
Condition Period/Term testator.
Future and uncertain or past Future and certain to
but unknown to the parties. happen, although it may Prohibition to marry or remarry
happen that it is not known Art. 874. An absolute condition not to contract a first or
exactly when subsequent marriage shall be considered as not written
unless such condition has been imposed on the widow or
Kinds of conditions widower by the deceased spouse, or by the latter's
As to Cause ascendants or descendants.
1. Potestative – fulfillment depends exclusively upon the will
of the heir, devisee or legatee. Nevertheless, the right of usufruct, or an allowance or some
2. Causal – depends upon chance or the will of a third person. personal prestation may be devised or bequeathed to any
3. Mixed – depends partly upon the will of the heir, and partly person for the time during which he or she should remain
upon chance or the will of a third person. unmarried or in widowhood.

As to Effect GR: An absolute prohibition not to marry or remarry is

1. Suspensive – the happening of which gives rise to the
inheritance.
2. Resolutory – the happening of which will extinguish the
right to the inheritance.
As to Mode
1. Positive – to do something that would happen.
2. Negative – something that will not happen or should not be
done.
As to form
1. Express
2. Implied
Art. 872. The testator cannot impose any charge, condition,
or substitution whatsoever upon the legitimes prescribed in
this Code. Should he do so, the same shall be considered as
not imposed.
- The testator cannot impose any charge, condition or
substitution upon legitimes, because if he is allowed to do
that then he might impose conditions which are too difficult
and unreasonable that effectively it defeats the purpose of
the compulsory heir to be entitled to his legitime.
- The legitime should go to the compulsory heirs unimpaired,
unburdened and not subject to any condition.
Impossible conditions in the institution of heirs
Art. 873. Impossible conditions and those contrary to law or
good customs shall be considered as not imposed and shall
in no manner prejudice the heir, even if the testator should
otherwise provide.
considered void and is deemed not written.
- The condition is just disregarded and their heir will still get
his inheritance.
- “I hereby institute Juan as heir to my estate subject to the
condition that he will not Marry.” If Juan marries, he will still
get this inheritance.
- If the condition will be allowed, it will lead to immoral
consequences that two people might live together without
getting married, otherwise the person will lose his
inheritance.
XPN:
(1) Condition is imposed by deceased spouse in his will; or
(2) By the descendants or ascendants of the deceased spouse.
- Bases on sentimental considerations.
- To prevent the 2nd husband/wife from enjoying the property
earned by the 1st husband.
- To prevent entry of strangers into the property of the family
of the deceased spouse.
- Art. 874 applies only to the free portion. [legitime cannot be
burdened]
Distinction between 1st. par and 2nd par
1st par 2nd par
The property or inheritance The heir already enjoys the
cannot be enjoyed by the property although he forfeits
instituted heir until the the inheritance if he
condition is fulfilled. remarries.
Relative prohibition - Winning the lotto can be complied with again.
- Allowed.
- Prohibition to marry or re-marry a particular person or XPN: It is of such nature that it cannot be complied with
prohibited to marry at a particular time. again.
- Ex: Prohibition to marry within 5 years. [valid] - Ex: I give my cars to Juan if he puts a tattoo in his right arm
- But prohibition to marry for 60 years is tantamount to an and Juan already has a tattoo on his right arm. Juan is not
absolute prohibition. [not allowed] required to put another tattoo just to be entitled to his
legitime.
Disposition captatoria - Ex: I give this house and lot to Pedro if he marries. Pedro at
Art. 875. Any disposition made upon the condition that the the time of the institution of the will is not yet married. But
heir shall make some provision in his will in favor of the after the execution and prior to the death of the testator,
testator or of any other person shall be void. Pedro got married. It is impossible for Pedro to get married
again.
- Ex: The testator in his will institutes Juan as his heir - Passing the bar exam can only be complied once.
provided that Juan will also give the testator a certain
property or give to the son of the testator certain property. Art. 877. If the condition is casual or mixed, it shall be
- Prohibited. It will convert the right to inherit or the execution sufficient if it happens or be fulfilled at any time before or after
of the will into a contract [bilateral]. the death of the testator, unless he has provided otherwise.
- A will should be the unilateral act of the testator in
consideration of his liberality. Should it have existed or should it have been fulfilled at the
- Both the institution and the condition are void. time the will was executed and the testator was unaware
- It impairs the purely personal and voluntary nature of the thereof, it shall be deemed as complied with.
acts of making the will.
- But if it is a Donation inter vivos, there is not disposition If he had knowledge thereof, the condition shall be
captatoria since Art. 875 pertains only to a will. considered fulfilled only when it is of such a nature that it can
no longer exist or be complied with again.
Art. 876. Any purely potestative condition imposed upon an
heir must be fulfilled by him as soon as he learns of the - It can be fulfilled any time before or after the death of the
testator's death. testator since it is not solely dependent upon the will of the
heir.
This rule shall not apply when the condition, already complied - It is difficult to comply since there is a factor that is beyond
with, cannot be fulfilled again. the control of the heir.
- If the chance happens before the death of the testator, the
- It should be complied with as soon as the heir learns of the heir must take advantage of such chance.
testator’s death. - There must be actual/strict compliance because by
- It would be useless to comply with the condition during the subordinating the condition upon chance, the testator
lifetime of the testator since the will is essentially revocable presumably did not trust the heir enough.
during the lifetime of the testator.
Ex of mixed conditions:
Effect of potestative conditions - Passing the bar.
Succession [Art. 874] Obligations and Contracts - Condition for the heir to get married.
- Valid. - Void.
- Purely potestative - An obligation which is GR: If the condition is causal or mixed, it shall be sufficient it is
condition whose dependent upon a fulfilled at any time before or after the death of the testator.
fulfillment depends potestative condition or
solely on the heir, solely upon the will of XPN: The testator provided otherwise.
devisee, or legatee. the debtor is void.
- The heir, devisee, or - Tends to make the Fulfillment of mixed/causal condition prior to the death of
legatee is obviously obligation illusory. the testator
interested in fulfilling the - The debtor will not Sufficient compliance Not sufficient
condition because the comply with the 1. When the testator is The testator knew of the
fulfillment of such condition so as not to unaware thereof; or condition that has already
condition will give rise to give rise to the 2. Testator is aware but it happened and the condition
the inheritance, devise, obligation. cannot be complied with is possible to complied with
or legacy. again. again.

Institution with a suspensive term

2nd par
- There must be substantial compliance.
- It is presumed that by imposing a purely potestative
condition, the testator trusts the heir enough to comply with
the condition.
GR: If the heir has already complied with the condition, it
must be complied with again.
- Ex: I give this land to Juan if he goes to Sagada and Juan
already went to Sagada. It is possible for Juan to go to
Sagada again.
Art. 878. A disposition with a suspensive term does not
prevent the instituted heir from acquiring his rights and
transmitting them to his heirs even before the arrival of the
term.
- The arrival of the term or period gives rise to the
demandability of the inheritance.
Disposition with a suspensive term
Ex: In the testator’s will, Juan was instituted as heir. It provides
that Juan will enjoy the property 10 years after the death of the
testator.
1. If 5 years after the death of the testator, Juan died. - It continues until it is extinguished by virtue of the expiration
- The heirs of Juan shall have the right to demand the or arrival of the term.
inheritance after the lapse of the 10 years from the time of
the death of the testator. 2. Heirs are entitled to succeed in case of predecessor’s
- The right of the instituted heir becomes vested from the death
moment of the death of the testator, although the right of - If the instituted heir should die before the arrival of the term,
the instituted heirs to enjoy the property is suspended his own heirs are entitled to succeed to the right to the
because he has to await for the arrival of the term. inheritance until their termination.
- What is suspended is just the demandability of the
inheritance. His right to demand becomes vested at the time Disposition subject to a negative potestative condition
or upon the death of the testator. Art. 879. If the potestative condition imposed upon the heir is
negative, or consists in not doing or not giving something, he
Disposition with a suspensive condition shall comply by giving a security that he will not do or give
Ex: Testator provided in his will that Juan would be entitled to that which has been prohibited by the testator, and that in
the property if Pedro passed the bar exams. However, Juan died case of contravention he will return whatever he may have
before Pedro could pass the bar. received, together with its fruits and interests.
- The heirs of Juan will not be entitled because Juan died
before the condition has happened. Negative potestative condition
- At the time of death, Juan had no right to pass on to his - Purely dependent upon the will of the heir, devisee, or
heirs because at the time of his death, the suspensive legatee, which consists of not giving or not doing.
condition has not yet happened. - Ex: A condition that the instituted heir will not sing ever. He
will be entitled to receive the inheritance the moment the
Distinction between disposition with a suspensive term and testator dies. However, as a security that he will not sing,
disposition with a suspensive condition he is required to give a bond [caucion muciana].
Disposition with Disposition with
suspensive term suspensive Caucion muciana
condition - The security given by an heir who is subject to a potestative
When right is Upon the death of the Upon fulfillment of condition which is negative or who is subject to the condition
vested testator. the condition. which consist in not doing or not giving something.
- The law secures the rights of those who would succeed to
Only the enjoyment of the properties upon the violation of the condition by
the property is requiring the conditional heir to furnish a bond.
suspended until the - The bond may be demanded by those to whom the property
arrival of the term. will go upon the violation of the condition. [substitutes, co-
Effect if not If the instituted heir If the instituted heirs or legal heirs]
fulfilled dies before the arrival heir dies before
of the term, his rights the fulfillment of Art. 880. If the heir be instituted under a suspensive condition
are passes on to his the condition, no or term, the estate shall be placed under administration until
heirs. rights are passed the condition is fulfilled, or until it becomes certain that it
upon to his heirs. cannot be fulfilled, or until the arrival of the term.
Only demandability is
suspended. The heirs The same shall be done if the heir does not give the security
will be entitled to the required in the preceding article.
inheritance upon
arrival of the term. - If the institution is subject to suspensive condition or term,
the heir will not be able to enjoy the property until after the
Effects of a suspensive term happening of the condition or arrival of the term.
1. Acquisition of right is not suspended - The properties will be placed under administration until the
- What is suspended is merely the demandability. happening of the condition or arrival of the term.
- The heir, devisee, legatee instituted under a suspensive - If it is a negative potestative condition [Art. 879], the heir is
term acquires his right from the moment the testator dies. immediately entitled to the enjoyment of the property, but
- He may transmit such right to his heirs, upon his death, the instituted heir will just be required to furnish a bond.
even before the arrival of the suspensive term. - However, if he refuses to furnish a bond (caucion muciana)
the property shall be placed under administration until he
2. Acquisition is not affected by predecease furnishes the required bond.
- The right, having already been acquired at the time the
testator’s death, it is no longer affected even if such Instances when the estate is placed under administration
instituted heir should die before the arrival of the term. 1. Heir is instituted under a suspensive condition
- But the inheritance can only be demanded when the term 2. Heir is instituted under a suspensive term.
arrives.
Instances when the administration ends
3. Administration is required pending term’s arrival 1. Happening of suspensive condition.
- The estate shall be placed under administration until the 2. Arrival of suspensive term.
arrival of the term.
Art. 881. The appointment of the administrator of the estate
Effects of a resolutory term mentioned in the preceding article, as well as the manner of
1. Right is immediately transmitted the administration and the rights and obligations of the
- The right to the inheritance is transmitted from the moment administrator shall be governed by the Rules of Court.
the succession is open or at the time the testator’s dies.
Duties of administrator/executor
1. Oversee the estate;
2. Preserve the estate;
3. Pay the debts of the estate; and
4. Distribute the estate among the heirs.
Modal institution
Art. 882. The statement of the object of the institution, or the
application of the property left by the testator, or the charge
imposed by him, shall not be considered as a condition unless
it appears that such was his intention.
That which has been left in this manner may be claimed at
once provided that the instituted heir or his heirs give security
for compliance with the wishes of the testator and for the
return of anything he or they may receive, together with its
fruits and interests, if he or they should disregard this
obligation.
Modal institution
(1) Statement of the object of the institution.
- The testator institutes one Juan as his heir to give him
enough money to enroll in law school to study.
(2) Application of the property left by the testator.
- The testator institutes Juan and he directs Juan to apply the
properties of his estate to the construction and
establishment of a College of Law.
(3) Charge imposed by the testator.
- Th testator institutes Juan as his heirs, and in the will, he
states that Juan shall devote 10% of the annual income of
the commercial building for lease for the monthly feeding
program of the local government.
Distinction between mode and condition
Mode Condition
Heirs enjoy YES. Provided he NO. Only upon
property upon has furnished a the fulfillment of
death of testator security. condition.
Obligatory YES. Object of the NO. Condition
institution must be may or may not
complied with. happen.
Treatment in - Treat it as a mode.
case of doubt - The burden is heavier in a
condition.
- The mode merely obligates but
does not suspend [unlike in
condition].
Effects of modal institution
1. The heir may claim the property at once – upon testator’s
death.
2. The heir or his respective heirs must give security for
compliance with the testator’s wishes on the return of
what has been received with fruits or interests – security
demanded by the legal heirs of the testator or by those for
whose benefit the obligation was imposed by the testator
upon the instituted heir.
3. Non-compliance with the mode operates as a negative
resolutory condition – return of property
4. If exact compliance is not possible, the mode shall be
complied with in a manner most analogous to and in
conformity with the testator’s wishes.
Rabadilla vs. CA
In a modal institution, the testator states (1) the object of the
institution, (2) the purpose or application of the property left by
the testator, or (3) the charge imposed by the testator upon the
heir. A "mode" imposes an obligation upon the heir or legatee
but it does not affect the efficacy of his rights to the succession.
On the other hand, in a conditional testamentary disposition, the
condition must happen or be fulfilled in order for the heir to be
entitled to succeed the testator. The condition suspends but
does not obligate; and the mode obligates but does not suspend.
To some extent, it is similar to a resolutory condition.
From the provisions of the Codicil litigated upon, it can be
gleaned unerringly that the testatrix intended that subject
property be inherited by Dr. Jorge Rabadilla. It is likewise clearly
worded that the testatrix imposed an obligation on the said
instituted heir and his successors-in-interest to deliver one
hundred piculs of sugar to the herein private respondent,
Marlena Coscolluela Belleza, during the lifetime of the latter.
However, the testatrix did not make Dr. Jorge Rabadilla's
inheritance and the effectivity of his institution as a devisee,
dependent on the performance of the said obligation. It is clear,
though, that should the obligation be not complied with, the
property shall be turned over to the testatrix's near descendants.
The manner of institution of Dr. Jorge Rabadilla under subject
Codicil is evidently modal in nature because it imposes a charge
upon the instituted heir without, however, affecting the efficacy
of such institution.
Then too, since testamentary dispositions are generally acts of
liberality, an obligation imposed upon the heir should not be
considered a condition unless it clearly appears from the Will
itself that such was the intention of the testator. In case of doubt,
the institution should be considered as modal and not
conditional.
Art. 883. When without the fault of the heir, an institution
referred to in the preceding article cannot take effect in the
exact manner stated by the testator, it shall be complied with
in a manner most analogous to and in conformity with his
wishes.
If the person interested in the condition should prevent its
fulfillment, without the fault of the heir, the condition shall be
deemed to have been complied with.
Manner most analogous to and in conformity with testator’s
wishes [1st par]
- Under Art. 833, substantial compliance is enough, as long
as the instituted heir substantially complies with the
obligation imposed upon him.
- Substantial compliance would be sufficient for the institution
to take effect.
Person interested should prevent its fulfillment [2nd par]
Ex: The testator puts in his will that testator “I will give Juan
P100,000 if he will accompany my son to travel to Mecca”.
However, the son does not want to travel to Mecca. The son is
the one preventing from the condition from happening.
- Even if the obligation is not fulfilled, it will be deemed as it
was fulfilled [constructive fulfillment].
- The instituted heir should not be prejudiced by the fact that
other persons prevented him from fulfilling his obligation.
Art. 884. Conditions imposed by the testator upon the heirs
shall be governed by the rules established for conditional
obligations in all matters not provided for by this Section.
- There are certain conditions under the Civil Code in Instances when heirs are required to give a
Obligations and Contracts. security/caucion muciana
- There are also provisions about conditions in our law on 1. Institution is subject to a suspensive term – the legal
succession. heirs can enjoy the property pending the arrival of the term
- In case of conflict, the rule on succession shall prevail. provided that the legal heirs shall give security [Art. 885];
- If this chapter/title under succession is silent, then the rules 2. Modal institution – instituted heir subject to a mode shall
on conditional obligations [oblicon provisions] will apply. give security before the heir can enjoy the property [Art.
882]; and
Institution subject to a suspensive term or resolutory term 3. Institution is subject to a negative potestative condition
Art. 885. The designation of the day or time when the effects or consists in not doing or not giving – instituted heir must
of the institution of an heir shall commence or cease shall be also give security. [Art. 879]
valid.
Legitime
In both cases, the legal heir shall be considered as called to
the succession until the arrival of the period or its expiration.
Art. 886. Legitime is that part of the testator's property which
But in the first case he shall not enter into possession of the
he cannot dispose of because the law has reserved it for
property until after having given sufficient security, with the
certain heirs who are, therefore, called compulsory heirs.
intervention of the instituted heir.
Legitime in two senses
- When the institution is suspensive, the legal heir who would
1. Property – part of the testator’s property referred to in the
have inherited by intestacy had there been no condition
law; and
shall be considered as called to the succession in the
2. Right –right of a compulsory heir to succeed to such portion
meantime until the arrival of the period or its expiration.
of the testator’s property.
- Under Art. 885, for the legal heir to enjoy the property
pending arrival of the period, the legal heir is required to
3 systems of disposition of property
give security with the conformity of the instituted heir as to
1. Absolute freedom of disposition of property – a is free
its sufficiency.
to dispose of his property in whatever manner that he may
- The security is required for the protection of the instituted
decide [no legitime].
heir who will get the property later upon arrival of the period.
2. Complete reservation of property – the law decides who
- If the security is not given, it is a renunciation on the part of
will get the property and how it will be distributed.
the legal heir, which places the next legal heir in the order
3. Partial reservation of property – only a part of the
of the intestate succession will lay claim.
property is reserved by law for a certain group of heirs. [1/2
- If none of the heirs give security, the property will be subject
legitime and 1/2 free portion]
to the administration of the estate. [Art. 880]
- Partial reservation of property is followed in the PH.
Obligations of the legal heir
- The system of legitimes strengthens family solidarity.
1. Preserve the hereditary property – the legal heir is
- Acquisition of property will give the children a sense of
essentially deemed a usufructuary during the time of such
security.
possession. He has the duty to take care of it with the
- The purpose of legitime is to protect the compulsory heirs
diligence of a good father of a family or as required under
of the testator.
the circumstances.
- Gratuitous donations can be made but only up to the free
portion. It should not be inofficious or burden the legitime.
2. Not to alienate the property – upon the arrival of the
- If the transaction is onerous [ex: sale], there is no limitation
suspensive period, the legal heir has the obligation to give
because there will still be something that is left in the estate.
the property to the instituted heir.
[not inofficious]
3. Make an inventory of the property – An inventory
Art. 887. The following are compulsory heirs:
showing the value of the property is necessary to determine
(1) Legitimate children and descendants, with respect to
the sufficiency of the security.
their legitimate parents and ascendants;
(2) In default of the foregoing, legitimate parents and
Distinction between Art. 880 and Art. 885
ascendants, with respect to their legitimate children and
Before arrival of Art. 880 Art. 885
descendants;
the term
(3) The widow or widower;
Suspensive term The estate shall The property will (4) Acknowledged natural children, and natural children by
be placed under be given to the
legal fiction;
administration. legal heir/called to
(5) Other illegitimate children referred to in Article 287.
the succession.
Resolutory term Instituted heir/legal heir inherits upon Compulsory heirs mentioned in Nos. 3, 4, and 5 are not
testator’s death. excluded by those in Nos. 1 and 2; neither do they exclude
one another.
- Art. 885 prevails over Art. 880 [apply Art. 885 first/give the
property to the legal heir] In all cases of illegitimate children, their filiation must be duly
- It is only when (1) there is no legal heir/intestate heir; or (2) proved. The father or mother of illegitimate children of the
no security given, that Art. 880 will apply. The property will three classes mentioned, shall inherit from them in the
be placed under administration of the estate. manner and to the extent established by this Code.
Art. 887 is qualified by the Family Code
There is no more acknowledged natural children, but only
legitimate and illegitimate children.
(1) Legitimate children and descendants, with respect to
their legitimate parents and ascendants;
(2) In default of the foregoing, legitimate parents and
ascendants, with respect to their legitimate children and
descendants;
(3) Widow or widower; and
(4) Illegitimate children.
Rule on proximity – the nearer relatives exclude those who are
far.
Tirol vs. Nolasco
It will be recalled that Roberto Jr. died on April 16, 1995, or
after his mother's death on October 10, 1991, but before his
father's death on January 8, 2002. When Gloria died, Roberto
Jr. would have inherited from her as a compulsory heir by
virtue of Article 887(1) of the Civil Code.
As far as respondent Sol is concerned, she would inherit
from Roberto Jr. pursuant to Article 887(3) and part of his
estate would be his share in the estate of her mother, Gloria.
Respondent Sol could not inherit from the estate of Roberto
Sr. because Roberto Jr. predeceased Roberto Sr., his father,
and the children of Roberto Jr. would succeed by right of
representation from their grandfather pursuant to Article 972
of the Civil Code, which provides, in part: The right of
representation takes place in the direct descending line, but
never in the ascending [line]." Moreover, respondent Sol is
not related by blood, but only by affinity, to Roberto Sr.
Groups of compulsory heirs
1. Primary compulsory heirs – legitimate children,
legitimated children [parents subsequently married] and
adopted children.
2. Secondary compulsory heirs – ascendants or parents [it
is only in the absence of legitimate children that they
inherit].
3. Concurring compulsory heirs – widow/widower and
illegitimate children; they inherit together with
parents/ascendants.
Affiliation of illegitimate children must be duly proved
- If one is an illegitimate child, his right to inherit is dependent
upon having been proved his filiation.
- It is not sufficient for the illegitimate child to just prove his
filiation. There has to be voluntary or involuntary recognition
by the putative parent.
Evidence admissible to prove filiation
(1) Primary evidence
- Birth certificate; and
- Private document signed by the putative parent
acknowledging that he is the father of the child;
(2) Secondary evidence
- Common reputation; and
- DNA.
Secondary evidence can only be invoked during the life of the
putative parent.
Legitime
1. Fixed – 1/2 legitime of the children cannot be reduced.
2. Variable – legitime that vary depending on how a certain
heir will inherit together with another heir. [ex: share of
surviving spouse would change depending on the number
of legitimate children]
Legitime of legitimate children
Art. 888. The legitime of legitimate children and descendants
consists of one-half of the hereditary estate of the father and
of the mother.
The latter may freely dispose of the remaining half, subject to
the rights of illegitimate children and of the surviving spouse
as hereinafter provided.
Ex: Estate P1,000,000
Legitime: P1M x 1/2 = P500k [it will be divided on the total
number of legitimate children]
Free portion: P1M x 1/2 = P500k
- Where the share of the concurring spouse and illegitimate
children will be take.
Francisco vs. Francisco-Alfonso
Even assuming that the kasulatan was not simulated, it still
violated the Civil Code provisions insofar as the transaction
affected Aida's legitime. The sale was executed in 1983, when
the applicable law was the Civil Code, not the Family Code.
Obviously, the sale was Gregorio's way to transfer the property
to his illegitimate daughters at the expense of his legitimate
daughter, Aida. The sale was executed to prevent respondent
from claiming her legitime and rightful share in said property.
Before his death, Gregorio had a change of heart and informed
his legitimate daughter Aida about the titles to the property.
Gregorio Francisco did not own any other property. If indeed the
parcels of land involved were the only property left by their
father, the sale in fact would deprive respondent of her share in
her father's estate. Under Art. 888, Aida is entitled to half of the
estate of her father as his only legitimate child.
Legitime of legitimate parents
Art. 889. The legitim of legitimate parents or ascendants
consists of one-half of the hereditary estates of their children
and descendants.
The children or descendants may freely dispose of the other
half, subject to the rights of illegitimate children and of the
surviving spouse as hereinafter provided.
- If the parents are legitimate they are excluded only by the
presence of legitimate children.
- If the parents are illegitimate, they are excluded even by the
presence of illegitimate children or descendants.
Ex. 1: Legitimate child excludes the legitimate parent
Juan (father)
|
Testator (legitimate child)
|
Pedro (legitimate child of testator)
- Only Pedro can inherit.
 Juan (father) Only Juan/surviving parent can inherit. There is no right of
| representation in the ascending line.
Testator (legitimate child)
| Legitime = P1M x 1/2 = P500k [entire legitime goes to Juan]
Pedro (legitimate) and Maria (illegitimate)
Ex. 3: No surviving parents.
- Only Pedro and Maria can inherit. Presence of Pedro as Estate: P1,000,000
legitimate child excludes the parent. Pedro & Nena Miguel & Ana
Grandparents Grandparents
Ex. 2: Illegitimate child excludes illegitimate parent | |
Juan (Predeceased) Maria (Predeceased)
Juan (father)
| |
Testator (illegitimate child) Testator
| Child of Juan & Maria
Pedro (illegitimate child of testator)
All the grandparents in both sides can inherit.
- Only Pedro can inherit.
Legitime = P1M x 1/2 = P500k
Ex. 3: Illegitimate child concur with legitimate parent Share of each grandparent = P500k/4 = P125k

Juan (father) Ex. 4: No surviving parents and one of the grandparents

| died.
Testator (legitimate child) Estate: P1,000,000
| Pedro & Nena Miguel & Ana (died)
Pedro (illegitimate child of testator) Grandparents Grandparents
| |
- Both Pedro and Juan can inherit. Juan (Predeceased) Maria (Predeceased)

Art. 890. The legitime reserved for the legitimate parents |

shall be divided between them equally; if one of the parents Testator
should have died, the whole shall pass to the survivor. Child of Juan & Maria

If the testator leaves neither father nor mother, but is survived The surviving grandparents can inherit.
by ascendants of equal degree of the paternal and maternal Legitime = P1M x 1/2 = P500k
lines, the legitime shall be divided equally between both lines.
If the ascendants should be of different degrees, it shall For Pedro and Nena = P250k
pertain entirely to the ones nearest in degree of either line. Pedro = P125k
Nena = P125k
Ex. 1: Rule of proximity
Estate: P1,000,000 For Miguel = P250k
Pedro & Nena Miguel & Ana
Grandparents Grandparents Ex. 5: No surviving parents and two grandparents died.
| | Estate: P1,000,000
Juan Maria Pedro & Nena Miguel (died) & Ana (died)
Grandparents Grandparents
| | |
Testator Juan (Predeceased) Maria (Predeceased)
Child of Juan & Maria
|
The parents of the testator can inherit [Juan and Maria]. Testator
Child of Juan & Maria
Legitime = P1M x 1/2 = P500k [divided between Juan and Maria]
Juan = P250k Legitime = P1M x 1/2 = P500k [divided between Pedro & Nena]
Maria = P250k
Pedro = P500k
Ex. 2: Only 1 surviving parent. Nena = P500k
Estate: P1,000,000
Pedro & Nena Miguel & Ana Reserva troncal
Grandparents Grandparents Art. 891. The ascendant who inherits from his descendant
| | any property which the latter may have acquired by gratuitous
Juan Maria (Predeceased) 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
Testator third degree and who belong to the line from which said
Child of Juan & Maria property came.

- Also known as reserve lineal, familiar, extraordinaria or

semi-troncal.
- The purpose is to preserve the property for the family to Extent Up to the legitime Whole property
whom such property came from. transferred as only
reservable
Illustration of Reserva Troncal property

Ex: When there is no reserva troncal

1. Origin left an insurance policy and the beneficiary is the
propositus – proceeds of the policy were not received from
the origin but from the insurance company.
2. Origin gave the propositus a lotto ticket that thereafter
won – what was received from the propositus is the ticket
and not the money.

Chua vs. CFI

Sienes vs. Esparcia

1st transmission: The transfer from the origin to the propositus

must be by gratuitous transfer [donation/succession].

2nd transmission: The transfer from the propositus to the

reservoir must be by operation of law [succession].

3rd transmission: Transfer of property from the reservoir to the

reservees.

Requisites of reserva troncal

1. Transfer of property by gratuitous title to the descendant
[propositus], from an ascendant/half brother or sister
[origin];
2. Descendant died without any legitimate issue or heir in the
direct descending line;
3. Property was inherited by another ascendant of the
descendant or by an ascendant of the individual belonging
to another line by operation of law; and
4. Existence of relatives of the descendant within the third
degree from the line from where the properties came from.

Persons involved in reserva troncal

1. Origin
- Must be a legitimate relative. [legitimate parent or legitimate
half-brother/sister]
- It cannot be full blooded siblings since there is no distinction
as to the line.
- The property must be owned by the origin.

2. Propositus/decedent
- Must be a be a descendant of the origin or of the half-
brother or half-sister.
- It must be a legitimate relationship.
- The Propositus, there being no obligation to reserve yet on
any part, can just dispose the property to anybody.
- The arbiter of the reserve because it is within the hands of
the Propositus whether or not the reserve troncal will arise
- If the Propositus will destroy the property, then reserva
troncal cannot arise.
- If the Propositus reserves the property until his death, then
reserva troncal may arise.
- If the Propositus has children of his own, then reserva
troncal cannot arise.

Transfer of property from propositus to the reservor by

operation of law
Testate Intestate
Died with a will YES NO