TOPIC 1: GENERAL PROVISIONS
intestate — if he left no will
I. CONCEPT OF SUCCESSION
DEFINITION AND CONCEPT
Succession
- In its generic or general sense, is defined as the
transmission of rights and properties from one person to
another thus it may be inter vivos or mortis causa
- in its technical sense, denotes the transfer of title to
property under the laws of descent and distribution,
taking place as it does, only on the death of a
person. Restricted to succession mortis causa.
Kinds of Succession
1. As to effectivity
a. succession inter vivos (example: donation)
b. succession mortis causa (this is succession in the
specific sense meant in Art. 774)
2. As to whether a will exists or not
a. testamentary succession (there is a will)
b. intestate or legal succession (there is NO will)
c. mixed succession (part of the property has been
disposed
3. As to the transferees of the property
a. compulsory succession (refers to the legitime)
b. voluntary succession (refers to the free disposal)
4. As to the extent of rights and obligations involved
a. universal succession (covering ALL juridical
relations involving the deceased)
b. particular succession (covering only certain items or
properties)
5. Special kind
Contractual succession — that kind where a future
husband and a future wife give to each other future
property, effective mortis causa, by means of a marriage
settlement.
ARTICLE 774. Succession is a mode of acquisition by
virtue of which the property, rights and obligations to the
extent of the value of the inheritance, of a person are
transmitted through his death to another or others either
by his will or by operation of law.
Important Elements of the Definition
1. mode of acquisition (or ownership)
2. transfer of property, rights, and obligations to the extent
of the value of the inheritance of a person (called grantor
or transferor, decedent, testator, or intestate)
3. transmission thru death (not during life
4. transmission to another (called grantee, or transferee,
heir, legatee, or devisee)
5. by will or by operation of law (testamentary or legal
succession)
Bases for Succession
1. The natural law which obliges a person to provide for
those he would leave behind
2. A socio-economic postulate which would prevent wealth
from becoming inactive or stagnant
3. The implicit attributes of ownership which is free
disposal of one’s property
ARTICLE 775. In this Title, "decedent" is the general term
applied to the person whose property is transmitted
through succession, whether or not he left a will. If he left
a will, he is also called the testator.
Decedent
- is the person whose estate is to be distributed. He is also
called:
1. testator — if he left a will
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2.
ARTICLE 776. The inheritance includes all the property,
rights and obligations of a person which are not
extinguished by his death.
Inheritance’ Distinguished From ‘Succession
INHERITANCE SUCCESSION
property or right acquired the manner by virtue of
which the property or right
is acquired
Administration is distinguished from succession
ADMINISTRATION SUCCESSION
dealing with a deceased transferring to it
person’s property beneficially.
according to law
What is inherited:
1. property
2. rights not extinguished by death
3. obligations not extinguished by death (to the extent
of the value of the inheritance)
PROPERTY
Real or Personal Properties including its accessions
RIGHTS
Not extinguished by death (and which therefore are part of
the estate):
1. Right to bring or continue an action for forcible entry
or unlawful detainer.
2. Right to compel the execution of a document
necessary for convenience
3. Right to continue a lease contract either as lessor or
lessee, unless otherwise provided for in the contract.
(if lessee, should continue to pay rentals)
4. Property right in an insurance policy (the interest of a
beneficiary in a life insurance policy)
Extinguished by death (and which therefore are not part of
the estate):
1. intransmissible personal rights because of their
nature (such as those appertaining to family rights,
marital and parental authority, support, action for
legal separation, partnership, agency, life annuity).
2. right to claim acknowledgment or recognition as a
natural child.
3. right to hold public or private office or job.
OBLIGATIONS
- all obligations are transmissible unless purely personal
(like the obligation to support) or non-transferable by
law or contract.
NOTE: A creditor of an HEIR (who is not the creditor of the
DECEASED), who intervenes in the estate proceedings, cannot
therefore ask the court to sell the properties which the HEIR-
DEBTOR expects to receive. This is because the debts of the
DECEASED himself must first be paid. Then and only then can we
determine if there is a sufficient residue left for the HEIRS or for
the HEIRS’ CREDITORS. (Litonjua v. Montilla)
ARTICLE 777. The rights to the succession are
transmitted from the moment of the death of the
decedent.
Conditions for the Transmission of Successional Rights
1. that indeed there has been a death (either actual or
presumed)
2. that the rights or properties are indeed transmissible or
descendible
3. that the transferee is still alive (no predecease), willing
(no repudiation), is capacitated to inherit. (These
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 are requisites for succession mortis causa)
Presumption of Death
1. Ordinary presumption because of ordinary absence.
- (An absentee who disappears under normal
conditions, there being no danger or idea of death)
- at the end of ten years (at the end of five years in case
he disappeared after the age of seventy-five)
2. Extraordinary presumption because of extraordinary or
qualified absence
- qualified or extraordinary because of great
probability of death
- The law says that the following shall be presumed
dead for all purposes:
a. A person on board a vessel lost during a sea voyage,
or an aeroplane which is missing, who has not been
heard of for four years since the loss of the vessel or
aeroplane;
b. A person in the armed forces who has taken part in
war, and has been missing for four years
c. A person who has been in danger of death under
other circumstances and his existence has not been
known for four years.
3. GR: There can only be transmission of rights upon death
of decedent
XPN: Presumptive legitimes. There is advance giving of
shares from the properties of the parents should a
marriage be annulled or declared void ab initio.
Effect of Absentee’s Return or Appearance:
- he shall recover
a. his property in the condition in which it may be
found
b. the price of any property that may have been
alienated or the property acquired therewith
- BUT cannot claim either fruits or rent.
- No reimbursement if spent for food, inasmuch as
the consumption had been made in good faith
- No recovery if the heir, devisee, or legatee has acquired
the property through prescription (extraordinary
prescription in view of the lack of a just title, there being
no true succession).
“Future inheritance”
- is that which may eventually be received from a person
still alive. It is any property or right not yet in existence
or not yet capable of determination at the time a contract
is made which a person in the future may acquire by
succession.
ARTICLE 778. Succession may be:
(1) Testamentary;
(2) Legal or intestate; or
(3) Mixed.
Other Kinds of Succession
1. compulsory (or necessary or forced) succession — or
succession to the legitime
2. contractual succession — (This happens when a future
husband and future wife give to each other in their
marriage settlement as much of their future property, in
the event of death, as they may validly dispose of in a
will.
ARTICLE 779. Testamentary succession is that which
results from the designation of an heir, made in a will
executed in the form prescribed by law.
Rules for Testamentary Succession:
1. Testamentary succession may be done thru a will or thru
a codicil.
2. The will or codicil may be:
a. notarial (ordinary, attested, or acknowledged)
b. holographic (handwritten by the testator from
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beginning to end, complete with date and signature)
ARTICLE 780. Mixed succession is that effected partly by
will and partly by operation of law.
ARTICLE 781. The inheritance of a person includes not
only the property and the transmissible rights and
obligations existing at the time of his death, but also
those which have accrued thereto since the opening of the
succession.
ARTICLE 782. An heir is a person called to the succession
either by the provision of a will or by operation of law.
Devisees and legatees are persons to whom gifts of real
and personal property are respectively given by virtue of
a will.
Transferees in TESTAMENTARY Succession
1. Heirs
[NOTE: Heirs may be compulsory (if entitled to the
legitime) or voluntary (like a friend). Examples — “T
institutes Y as heir”; “T gives Y 1/3 of his properties.”].
2. Legatees and Devisees
Legatees — if they succeed to particular personal
properties (legacies).
Devisees — if they succeed to particular real properties
(devises).
Transferees in LEGAL Succession
- In legal succession, the transferees are called legal or
intestate heirs.
Dual Status
- If in a will, a compulsory heir is given more than his
legitime, a compulsory heir and a voluntary heir.
- NOTE: This distinction is important because if a
compulsory heir dies ahead of the testator, his legitime is
inherited by his own child. On the other hand, the child
of a voluntary heir who predeceases or dies ahead of the
testator gets nothing from said testator. (Art. 856)
Difference Between ‘Sale’ & ‘Waiver of Hereditary Rights’
Sale of Hereditary Right Waiver of Hereditary Right
One of the contracting the intestate heirs adjudicate
parties obligates himself and divide the estate left by
to transfer the ownership the decedent among
and the other party to pay themselves as they see fit. It is
a price certain in effect an extrajudicial
settlement between the heirs.
presumes the existence of a mode of extinction of
a contract or deed of sale ownership where there is an
between the abdication or intentional
parties relinquishment of a known
right with knowledge of its
existence and intention to
relinquish it
CHAPTER 2
Testamentary Succession
SECTION 1 Wills
SUBSECTION 1 Wills in General
ARTICLE 783. A will is an act whereby a person is
permitted, with the formalities prescribed by law, to
control to a certain degree the disposition of his estate, to
take effect after his death.
Will
- species of conveyance whereby a person is permitted to
control to a certain degree the disposition of his estate
after his death.
- Its provisions is as if the testator stood before the court in
full life like making the declarations by word of mouth
as they appear in the will.
Characteristics of a Will
1. Purely statutory right (Art. 839)
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 Privilege afforded by law. The making of a will should
be considered subordinated to both the law and public
policy.
1. It is a unilateral act. (This means that no acceptance by
the transferees is needed while the testator is still alive;
any acceptance made prematurely is useless.)
2. Solemn or formal act (Art. 783)
executed in accordance with the formalities prescribed
by law).
3. There must be animus testandi (intent to make a will).
4. The testator must be capacitated to make a will. (Arts.
796-798).
5. The will is strictly a personal act. (Art. 784).
6. It is effective mortis causa
7. It is essentially revocable or ambulatory. (Art. 828).
While the testator is still alive, the will is still ambulatory
and revocable without the need to provide a reason for
revocation.
8. Free and voluntary. (Art. 839).
There must be no vitiation of consent otherwise, the will
shall be disallowed probate which then leads to
intestacy.
Same grounds as in ordinary contracts to be voidable.
The consequence in wills however is that it will be denied
probate
9. It is an individual act. (Arts. 818 and 819)
10. It disposes testator’s estate according to his wishes.
Oral conveyances
- are valid so long as it does not affect interest of third
persons. (Lasam v. Lasam)
ARTICLE 784. The making of a will is a strictly personal
act; it cannot be left in whole or in part to the discretion
of a third person, or accomplished through the
instrumentality of an agent or attorney.
- Drafting may be entrusted to another as long as the
disposition itself expresses the testator’s desires and in
compliance with formalities of the law.
- Employing an attorney-strong presumption that will
was regularly made.
ARTICLE 785. The duration or efficacy of the designation
of heirs, devisees or legatees, or the determination of the
portions which they are to take, when referred to by
name, cannot be left to the discretion of a third person.
Discretion of Third person: illegal delegation of testamentary
power.
ARTICLE 786. The testator may entrust to a third person
the distribution of specific property or sums of money
that he may leave in general to specified classes or causes,
and also the designation of the persons, institutions or
establishments to which such property or sums are to be
given or applied.
- Art. 786 the particular names are not designated;
specifies a class or a cause.
- In Art. 785, the names of particular persons are given.
- Reqt: as long as specific property or a sum of money has
been set aside for the purpose.
ARTICLE 787. The testator may not make a testamentary
disposition in such manner that another person has to
determine whether or not it is to be operative.
- making of a will is strictly a personal act.
ARTICLE 788. If a testamentary disposition admits of
different interpretations, in case of doubt, that
interpretation by which the disposition is to be operative
shall be preferred.
The Fixed Law of Interpretation
- The intention and desires of the testator if clearly
expressed in the will
ARTICLE 789. When there is an imperfect description, or
when no person or property exactly answers the
description, mistakes and omissions must be corrected, if
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the error appears from the context of the will or from
extrinsic evidence, excluding the oral declarations of the
testator as to his intention; and when an uncertainty
arises upon the face of the will, as to the application of
any of its provisions, the testator's intention is to be
ascertained from the words of the will, taking into
consideration the circumstances under which it was
made, excluding such oral declarations.
Kinds of Ambiguity in a Will
1. Latent or Intrinsic Ambiguity
- that which does not appear on the face of the will, and is
discovered only by extrinsic evidence.
- First clause (imperfect description) cured by examining
the will itself and its extrinsic evidence such as written
declarations; not oral as it may result in fraud, confusion
and unfairness to decedent.
2. Patent or Extrinsic Ambiguity
- that which appears on the face of the will itself: by
examining the provision itself, it is evident that it is not
clear
- Second clause (uncertainty upon the face of the will) may
be cured the same as latent ambiguity.
ARTICLE 790. The words of a will are to be taken in their
ordinary and grammatical sense, unless a clear intention
to use them in another sense can be gathered, and that
other can be ascertained.
Technical words in a will are to be taken in their technical
sense, unless the context clearly indicates a contrary
intention, or unless it satisfactorily appears that the will
was drawn solely by the testator, and that he was
unacquainted with such technical sense.
Rules for Interpretation of Words:
1. Ordinary words have their ordinary meanings.
XPN: If there is a clear intention that another meaning
was used — provided that other meaning can be
determined.
2. Technical words have technical meanings.
XPN: If there is a contrary intention and if it appears that
the will was drafted by the testator alone, who did not
know the technical meaning.
ARTICLE 791. The words of a will are to receive an
interpretation which will give to every expression some
effect, rather than one which will render any of the
expressions inoperative; and of two modes of
interpreting a will, that is to be preferred which will
prevent intestacy.
ARTICLE 792. The invalidity of one of several
dispositions contained in a will does not result in the
invalidity of the other dispositions, unless it is to be
presumed that the testator would not have made such
other dispositions if the first invalid disposition had not
been made.
- GR: if one disposition or provision is invalid, it does not
necessarily follow that all the others are also invalid.
- XPN: when the various dispositions are indivisible in
intent or nature.
Art. 793. Property acquired after the making of a will shall
only pass thereby, as if the testator had possessed it at the
time of making the will, should it expressly appear by the
will that such was his intention.
- GR: What are given are only those properties already
owned by the testator at the time the will was made, not
those acquired after.
- XPN: If it expressly appears that it was the intention to
give such “after-acquired” properties or if will
is republished or modified by a subsequent will or
codicil.
ARTICLE 794. Every devise or legacy shall convey all the
interest which the testator could devise or bequeath in the
property disposed of, unless it clearly appears from the
will that he intended to convey a less interest.
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- GR: The entire interest of the testator in the property is ARTICLE 797. Persons of either sex under eighteen years
given of age cannot make a will.
- XPN: Convey a lesser interest if such intent clearly - age of 18 has been fixed for at this age, an individual is
appears in the will or convey a greater interest by express generally no longer subject to fraud, influence, or
declaration insidious machinations
ARTICLE 798. In order to make a will it is essential that
ARTICLE 795. The validity of a will as to its form the testator be of sound mind at the time of its execution.
depends upon the observance of the law in force at the - soundness of mind must exist at the time of the execution
time it is made. of the will, not before nor after.
Reason: A testator cannot be expected to know the future, ARTICLE 799. To be of sound mind, it is not necessary
hence, it is enough that he follows the law in force at the time that the testator be in full possession of all his reasoning
he makes the will. faculties, or that his mind be wholly unbroken,
unimpaired, or unshattered by disease, injury or other
Kinds of Validity With Respect to Wills: cause.
1. Extrinsic validity It shall be sufficient if the testator was able at the time of
- refers to the forms and solemnities needed (Art 795) making the will to know the nature of the estate to be
2. Intrinsic validity disposed of, the proper objects of his bounty, and the
- refers to the legality of the provisions in an instrument, character of the testamentary act.
contract or will. 1ST par: negative definition.
2nd par: affirmative definition.
As to TIME As to PLACE Requisites for Soundness of Mind: testator
EXTRINSIC at the time of GR: Lex loci Celebraciones a. knows the nature of the estate to be disposed of
the FILIPINO PH laws, where (character, ownership of what he is giving)
EXECUTION he resides, or b. testator knows the proper objects of his bounty
where executed (by persons who for some reason expect to inherit
ALIEN IN PH laws, something from him — like his children)
nationality,
c. that testator knows the character of the testamentary act
where executed
(that it is really a will, that it is a disposition mortis causa,
ALIEN PH laws,
OUT Nationality, that it is essentially revocable)
where he Unsoundness of Mind Manifestation:
resides, where a. religious delusion resulting in the unsettling of
executed judgment.
INTRINSIC At time of Nationality of decedent b. blind extraordinary belief in spirits while executing a
DEATH will
c. monomania (insanity on a single subject) — if this
Two Kinds of Recognition: happens to be on the subject of wills or succession.
1. compulsory; or d. insane delusions — belief in things which no rational
2. voluntary. mind would believe to exist.
e. drunkenness if this results in failure to know the nature
SUBSECTION 2 Testamentary Capacity and Intent of the testamentary act. (57 Am. Jur. Wills, Sec. 74).
Distinguish between testamentary power and testamentary f. idiocy — congenital intellectual deficiency.
capacity. (Bar Q) g. a comatose stage, resulting from hypertension and
1. Testamentary power is the statutory right to dispose of cerebral thrombosis, and preventing the testator from
property by acts effective mortis causa (a right given talking or understanding.
usually as a consequence of ownership and respect for h. state of delirium.
family relations). On the other hand, Testamentary Evidence of Soundness of Mind
capacity is the right to make a will provided certain The attesting or subscribing witnesses’ testimony as to the
conditions are complied with. mental condition of the testator prevails over that given by a
2. Testamentary capacity may be classified into two kinds: non-attending physician who merely speculates.
a. active testamentary capacity — capacity to MAKE a
will or codicil. Often referred to as testamentary ARTICLE 800. The law presumes that every person is of
POWER. sound mind, in the absence of proof to the contrary.
b. passive testamentary capacity — capacity to The burden of proof that the testator was not of sound
RECEIVE by virtue of a will. may also be referred to mind at the time of making his dispositions is on the
as plain testamentary CAPACITY. person who opposes the probate of the will; but if the
3. Testamentary capacity is the ability of one to make a testator, one month, or less, before making his will was
will, while testamentary power is the privilege granted publicly known to be insane, the person who maintains
by the law to someone to make a will. the validity of the will must prove that the testator made
it during a lucid interval.
ARTICLE 796. All persons who are not expressly GR: Presumption of Sanity
prohibited by law may make a will. XPN: Insanity
Who Can Make Wills: Burden of proof:
GR: Capacity a. On the person who opposes the probate of the will
XPN: Incapacity b. 1month or less testator is PUBLICLY KNOWN to be
Two general qualifications: insane, one who maintains the validity should prove that
1. 18 years old or over testator made the will on a lucid interval.
2. soundness of mind at the time the will is made. Presumption of Insanity:
- A convict under civil interdiction is allowed to make a a. one month or less before making the will was publicly
will. (interdiction prohibits a disposition of property inter known to be insane. (Art. 800, 2nd par)
vivos, not mortis causa. (Art. 34, Revised Penal Code). b. Will made after judicial declaration of insanity and
- spendthrifts or prodigals can make a will provided they before such judicial order had been set aside. (Torres v.
are at least 18 years old and are of sound mind. Lopez, 48 Phil. 772).
- Testamentifaccion active: Capacity to make a will
- testamentifaccion passive capacity to inherit or to ARTICLE 801. Supervening incapacity does not
receive by will is . invalidate an effective will, nor is the will of an incapable
validated by the supervening of capacity.

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- When an insane, T made a will. Later he became well,
but did not change the will. Is the will valid?
Ans. No, because his becoming capacitated later on is
not important. What is important is that his mind was
not sound at the time he executed the will.
ARTICLE 802. A married woman may make a will
without the consent of her husband, and without the
authority of the court.
- This is without prejudice to “contractual succession” in a
marriage settlement between the future spouses.
- person in his presence, and by his express direction.
ARTICLE 803. A married woman may dispose by will of
all her separate property as well as her share of the
conjugal partnership or absolute community property
What Wife Can Dispose of in Her Will
a. The wife cannot dispose of her husband’s capital
b. The law says that the wife can dispose of her share of the
conjugal property.
If wife disposes the conjugal house, ordinarily, the heir
gets only half of the house, but if in the liquidation
proceedings the house is awarded entirely to the wife’s
estate (the husband receiving some other property, like
cash), the heir gets the whole house.
c. It is understood that the married woman must respect
the legitime of her compulsory heirs. (Art. 886)
SUBSECTION 3 Forms of Wills
Kind of Wills:
a. Ordinary or notarial will - that which requires, among
other things, an attestation clause, and acknowledgment
before a notary public.
b. Holograph or holographic will — written entirely, from
the date to the signature, in the handwriting of the
testator. An attestation clause or acknowledgment before
a notary public is not needed.
- nuncupative wills — wills orally made by the testator in
contemplation of death, and before competent witnesses; not
valid in Ph.
ARTICLE 804. Every will must be in writing and executed
in a language or dialect known to the testator.
- Oral wills not recognized
Handwriting; proved
- handwriting of a person may be proved by any witness
who believes it to be the handwriting of such person who
acquired knowledge of the handwriting of such person.
- Handwriting experts are not mandatory or
indispensable to the examination of handwriting because
the judge must conduct an independent examination of
the questioned signature.
E-Commerce Law
- any contractual agreement entered into may be valid
and enforceable even if it is in the form of an e-
document EXCEPT IN THE EXECUTION OF A
WILL.
ARTICLE 805. Every will, other than a holographic will,
must be subscribed at the end thereof by the testator
himself or by the testator's name written by some other
person in his presence, and by his express direction, and
attested and subscribed by three or more credible
witnesses in the presence of the testator and of one
another.
The testator or the person requested by him to write his
name and the instrumental witnesses of the will, shall
also sign, as aforesaid, each and every page thereof,
except the last, on the left margin, and all the pages shall
be numbered correlatively in letters placed on the upper
part of each page.
The attestation shall state the number of pages used upon
which the will is written, and the fact that the testator
signed the will and every page thereof, or caused some
other person to write his name, under his express
direction, in the presence of the instrumental witnesses,
and that the latter witnessed and signed the will and all
SUCCESSION-UNWEEND NOTES
the pages thereof in the presence of the testator and of one
another.
If the attestation clause is in a language not known to the
witnesses, it shall be interpreted to them.
Requirements for a Notarial or Ordinary Will
Aside from the fundamental requisites that the testator be at
least 18 years old, and possessed of a sound mind:
a. must be in WRITING (ART. 804)
b. executed in a LANGUAGE OR DIALECT KNOWN to
the testator. (ART. 804)
c. subscribed (signed) AT THE END by the testator
himself or by the testator’s name written by another
(thumbmark, stamp, initials are OK so long as testator
intends it to be his signature) (ART. 805)
Attestation consists in witnessing the testator’s
execution of the will in order to see and take
note mentally that those things are done which the
statute requires for the execution of a will and that the
signature of the testator exists as a fact.
Subscription is the signing of the witnesses’ names upon
the same paper for the purpose of identifying such paper
as the will which was executed by the testator.
d. must be attested and subscribed by THREE OR MORE
CREDIBLE WITNESSES in the presence of the testator
and of one another. (In case a testator is blind, the
“presence” may be complied with if the signing or action
is within the range of the OTHER senses like hearing,
touch, etc., of the testator. What is important is that he
realizes what is being done- TEST of “AVAILABLE
SENSES) (ART. 805(1))
e. The testator or the person requested by him to write and
the instrumental witnesses shall SIGN EACH AND
EVERY PAGE except the last, ON THE LEFT MARGIN.
(ART. 805(2))
f. All the pages shall be NUMBERED CORRELATIVELY
in letters placed ON THE UPPER PART OF EACH
PAGE. (to guard against fraud, and to prevent
substitution or of detecting the loss of any of its pages.)
(ART. 805(2))
g. The ATTESTATION (ATTESTATION CLAUSE)
SHALL PROVIDE: (ART. 805(3))
1. the number of pages used — upon which the will is
written;
2. that the testator signed (or expressly caused another
person to sign) the will and every page thereof in the
presence of the instrumental witnesses;
3. that the instrumental witnesses witnessed and
signed the will and all the pages thereof in the
presence of the testator and of one another.
4. PURPOSE: To preserve a record of the facts in the
execution of the will, proof of compliance with the
statutory requisites for the execution of the will and
minimize commission of fraud or undue influence.
h. NOTARIZED (ART. 806)
ARTICLE 806. Every will must be acknowledged before
a notary public by the testator and the witnesses. The
notary public shall not be required to retain a copy of the
will, or file another with the office of the Clerk of Court.
- Acknowledgment, step undertaken whereby the signor
actually declares to the notary that the executor of the
document has attested to the notary that the same is his
own free act and deed.
- Jurat is that part of an affidavit whereby the notary
certifies that before him, the document was subscribed
and sworn by the executor.
- Copy for notary public not required because it may be
prejudicial to the testator or the heir.
- The testator and the instrumental witnesses do not have
to make the acknowledgment in the presence of one
another. This is required only in the attestation, not in the
acknowledgment. (Testate Estate of A. Ledesma, L-7179,
June 30, 1955).
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- A notarial will is NOT a public instrument, as evidenced
by the fact that “the notary public shall not be required to
retain a copy of the will, or file another, with the Office of the
Clerk of Court.”
ARTICLE 807. If the testator be deaf, or a deaf-mute, he
must personally read the will, if able to do so; otherwise,
he shall designate two persons to read it and
communicate to him, in some practicable manner, the
contents thereof.
Rules When Testator is Deaf, or a Deaf-Mute:
a. If illiterate, two persons must communicate its contents
to him
b. two persons designated need not be the attesting
witnesses.
c. The act of reading the will to iilliterate testator need not
be stated in the attestation, it is sufficient if it is proved
during the probate proceedings.
ARTICLE 808. If the testator is blind, the will shall be
read to him twice; once, by one of the subscribing
witnesses, and again, by the notary public before whom
the will is acknowledged.
Rules if the Testator is Blind
a. Testator is BLIND
b. Note that the reading is twice:
1. once by one of the subscribing witnesses,
2. once by the notary public.
c. advisable to have same done before the notary public so
that the blind man may have the benefit of the notary
public’s participation even before he signs the will.
d. deaf-mute and also blind CANNOT make a will unless
in some way, the contents thereof may properly be
communicated to him in accordance with the legal
requirements.
NOTE: The notary public before whom the will is
acknowledged cannot be one of the three witnesses to said
will, in view of the absurdity of one person acknowledging
something before himself. (Cruz v. Villasor, et al., L-32213,
Nov. 26, 1973).
ARTICLE 809. In the absence of bad faith, forgery, or
fraud, or undue and improper pressure and influence,
defects and imperfections in the form of attestation or in
the language used therein shall not render the will
invalid if it is proved that the will was in fact executed
and attested in substantial compliance with all the
requirements of article 805.
Substantial compliance with all the requirements of Article
805
- that is, as long as the purpose sought by the attestation
clause is obtained, the will should be considered valid.
How Substantive Defect Can Be Cured
defects of substance can be cured only
by evidence WITHIN the will itself — not by evidence aliunde
(extrinsic evidence).
Purpose of this Article:
designed to attain the main objective of the new Civil Code in
the liberalization of the manner of executing wills to guard
against fraud and bad faith, but without undue or
unnecessary curtailment of the testamentary privilege.
ARTICLE 810. A person may execute a holographic will
which must be entirely written, dated, and signed by the
hand of the testator himself. It is subject to no other form,
and may be made in or out of the Philippines, and need
not be witnessed.
Holographic will
- one entirely written, dated, and signed by the hand of the
testator.
Advantages of a Holographic Will
1. easier to make
2. easier to revise
3. easier to keep secret
Disadvantages:
1. easier to forge by expert falsifiers
SUCCESSION-UNWEEND NOTES
2. easier to misunderstand since the testator may have been
faulty in expressing his last wishes
3. no guaranty that there was no fraud, force, intimidation,
undue influence; and no guaranty regarding testator’s
soundness of mind.
Formalities for a Holographic Will
1. The language must be known to the testator. (Art. 804).
(Therefore, it is not sufficient that it be interpreted to
him.)
2. The will must be entirely written in the hand of the
testator himself. (Therefore, if it is typewritten, printed,
or mimeographed, it is void. If the testator has no hands,
but can write with his foot, this would be all right, since
what the law requires is a personal distinctiveness.)
3. The will must be DATED
4. The will must be SIGNED by the testator himself.
(full/customary signature and signature must appear at
the end of the will.)
5. There must be animus testandi.
6. Executed at the time that holographic wills are allowed,
not before, the time of death being immaterial.
Issues to be resolved in probate of holographic will:
1. Whether the instrument submitted is, indeed, the
decedent’s last will and testament
2. Whether said will was executed in accordance with the
formalities prescribed by law;
3. Whether the decedent had the necessary testamentary
capacity at the time the will was executed; and
4. Whether its signing was the voluntary act of the
decedent. ( the law existing at the time of the testator’s
death nor the law at the time of probate, but by the law
existing at the time of the execution of the instrument.
This is because, although the Will become operative only
after the testator’s death, still his wishes are given
expression at the time of execution.
Other Features of the Holographic Will:
1. No witnesses are required.
2. No marginal signatures on the pages are required.
3. No acknowledgment is required.
4. In case of any insertion, cancellation, erasure or
alteration, the testator must authenticate the same by his
full signature. (Art. 814).
5. May be made in or out of the Philippines, even by
Filipinos. (See Art. 810)
6. May be made even by a blind testator, as long as he is
literate, at least 18, and possessed of a sound mind.
7. Even the mechanical act of drafting a holographic will
may be left to someone other than the testator, as long as
the testator himself copies the draft in his own
handwriting, dates it, and signs it. (See Art. 810).
ARTICLE 811. In the probate of a holographic will, it
shall be necessary that at least one witness who knows
the handwriting and signature of the testator explicitly
declare that the will and the signature are in the
handwriting of the testator. If the will is contested, at
least three of such witnesses shall be required.
In the absence of any competent witness referred to in the
preceding paragraph, and if the court deem it necessary,
expert testimony may be resorted to.
- Proof of identity of the signature and handwriting of the
testator is important, otherwise, the will cannot be valid.
Probate
- means the allowance of a will by the court after its due
execution has been proved.
The probate may be:
1) uncontested
- at least one identifying (not necessarily a subscribing)
witness is required to avoid the possibility of fraud. If no
witness is available, experts may be resorted to.
2) Contested
- MANDATORY: at least one identifying (not
necessarily a subscribing) witness is required to avoid
the possibility of fraud. If no witness is available,
experts may be resorted to.
6
 - 2nd par. is to support or confirm validity of 1st par. If
Court is unconvinced with the testimony of the 3
witnesses.
ARTICLE 812. In holographic wills, the dispositions of
the testator written below his signature must be dated
and signed by him in order to make them valid as
testamentary dispositions.
Dispositions Written Below the Signature
- must be both DATED and SIGNED by the testator to be
valid.
- If SIGNED — but NOT dated, or if DATED but NOT
signed, the additional dispositions are VOID, for lack of
an essential requisite.
ARTICLE 813. When a number of dispositions appearing
in a holographic will are signed without being dated, and
the last disposition has a signature and a date, such date
validates the dispositions preceding it, whatever be the
time of prior dispositions.
Rules for Curing Defects:
a. If the last disposition is SIGNED and DATED: (by
testator himself)
1. preceding dispositions which are SIGNED but NOT
DATED are validated.
2. preceding dispositions which are NOT SIGNED but
DATED are VOID. (This can be inferred from the
wording of the law.)
3. preceding dispositions which are NOT SIGNED
and NOT DATED are of course VOID, unless
written on the SAME date and occasion as the latter
disposition.
b. if done by ANOTHER, without the testator’s consent,
same will not affect the previous dispositions, which
remain VOID if in themselves VOID; and remain VALID
if in themselves VALID.
c. if done by ANOTHER with the testator’s CONSENT,
same effects as (1), because the latter disposition is not
really HOLOGRAPHIC (not done by the testator
himself)
ARTICLE 814. In case of any insertion, cancellation,
erasure or alteration in a holographic will, the testator
must authenticate the same by his full signature.
Authentication of Correction by Full Signature
- full or usual or customary SIGNATURE (not necessarily
the FULL NAME)
- If alteration is not signed, does not invalidate the whole
will but only the alteration.
- HOWEVER, if what was altered was the DATE or the
SIGNATURE, the alteration without the full signature
makes the WHOLE will VOID.
ARTICLE 815. When a Filipino is in a foreign country, he
is authorized to make a will in any of the forms
established by the law of the country in which he may be.
Such will may be probated in the Philippines.
Formalities of Wills Executed by Filipinos Abroad
- in accordance with the forms (extrinsic validity) of:
a. That other country
b. or of the Philippines (even if the Philippine form is
not recognized that other coountry)
- XPN: a Filipino cannot execute abroad a joint will even if
the same is valid there. (Art. 819)
Effect of Foreign Probate:
- No need for probate here but proceeding to prove that
will had been probated abroad. (as in proving the
existence of foreign judgement)
- If no proof of probate abroad, presumed that the
proceedings in the foreign court is the same as in the Ph.
If will executed by Filipinos Abroad not probated:
- Probated here in Ph and should present proof that such
will had been executed according to the law established
in said foreign country
- In the absence of contrary proof, foreign law shall be
presumed to be the same as in the Ph.
SUCCESSION-UNWEEND NOTES
ARTICLE 816. The will of an alien who is abroad
produces effect in the Philippines if made with the
formalities prescribed by the law of the place in which he
resides, or according to the formalities observed in his
country, or in conformity with those which this Code
prescribes.
Formalities for Wills Executed by Aliens Abroad
An alien abroad may make a will in accordance with the
formalities (extrinsic validity) prescribed by the law of:
a. the place of his residence or domicile;
b. his own country or nationality;
c. the Philippines;
d. the law of the place of execution. (Art. 17, par. 1).
- NOTE: Art. 816 speaks only of extrinsic validity. Intrinsic
validity is governed by Art. 16.
ARTICLE 817. A will made in the Philippines by a citizen
or subject of another country, which is executed in
accordance with the law of the country of which he is a
citizen or subject, and which might be proved and
allowed by the law of his own country, shall have the
same effect as if executed according to the laws of the
Philippines.
Formalities for Wills Executed by Aliens in the Philippines
A will executed in the Ph by an alien can follow the extrinsic
formalities required:
a. By his nationality. ( lex nationalii)
b. Philippines. (lex loci celebrationis
ARTICLE 818. Two or more persons cannot make a will
jointly, or in the same instrument, either for their
reciprocal benefit or for the benefit of a third person.
Joint wills are those which contain in ONE instrument the
will of two or more persons jointly signed by them. VOID
Reciprocal or Mutual Wills are those that provide that the
survivor of the testators will succeed to all or some of the
properties of the decedent. VALID as long as it is not made in
one instrument.
Reasons Why Joint Wills are VOID:
a. To allow as much as possible SECRECY, a will being a
purely personal act.
b. To prevent undue influence by the more aggressive
testator on the other. (Dacanay v. Florendo, et al.)
c. In case of death of the testators at different times, probate
would be harder.
d. It militates against the right of a testator to revoke his will
at any time.
(Example: One testator would be prevented from
revoking by an overt act, like tearing or burning, for the
other may not agree.)
e. In case of a husband and wife, one may be tempted to kill
the other.
Wills that are NOT Joint Wills
a. made on a single sheet of paper, the first on the front, and
the second on the reverse side.
b. made even on the same page with or without a dividing
line between them, but neither combining the signature
of BOTH together.
ARTICLE 819. Wills, prohibited by the preceding article,
executed by Filipinos in a foreign country shall not be
valid in the Philippines, even though authorized by the
laws of the country where they may have been executed.
- one exception to the rule of lex loci celebrationis.
- Refers only to FILIPINOS abroad
Effect of Joint Wills Executed Abroad:
a. Filipinos: Void as it is against public policy
b. Aliens: if executed abroad and valid in accordance with
Art. 816, same should be considered valid here.
c. Aliens: if executed in the Philippines, VOID because
although allowed under Art. 817, still Art. 818, which
refers specifically to joint wills, and which should be
considered as an expression of public policy, should
prevail.
7
 SUBSECTION 4 Witnesses to Wills
ARTICLE 820. Any person of sound mind and of the age
of eighteen years or more, and not blind, deaf or dumb,
and able to read and write, may be a witness to the
execution of a will mentioned in article 805 of this Code.
Qualifications for Witnesses to Notarial Wills:
the witness must:
a. be of sound mind (Art. 820)
b. be at least 18 years (Art. 820)
c. be able to read and write (Art. 820) (not essential that the
witness able to speak and write the language in the will
for he does not have to know the contents of the will. It
is sufficient that it be interpreted to him.)
d. not be blind, deaf, or dumb (Art. 820)
e. be domiciled in the Philippines (Art. 821)
f. not have been CONVICTED (by final judgment) of
FALSIFICATION of a document; PERJURY; or FALSE
TESTIMONY (Art. 821)
ARTICLE 821. The following are disqualified from being
witnesses to a will:
(1) Any person not domiciled in the Philippines;
(2) Those who have been convicted of falsification of a
document, perjury or false testimony.
- Domicile is defined in Art. 6 of the new Civil Code as the
place of habitual residence.
- Citizenship is not essential for domicile is what the law
requires. (Reason: 1. assure that the witness will be
available at the time the will is presented for probate and
2. likeliness of personal acquaintance with the testator
hence, greater credibility as a witness, for example, on
the soundness of mind of the testator).
- Conviction of only three crimes: falsification of a
document, perjury or false testimony.
- These crimes are committed with mental dishonesty thus
disqualified to be witness.
- Notary public before whom the notarial will is
acknowledged is DISQUALIFIED to be a witness to said
will since it would be absurd for him (as witness) to be
acknowledging something before himself (as notary
public).
ARTICLE 822. If the witnesses attesting the execution of
a will are competent at the time of attesting, their
becoming subsequently incompetent shall not prevent
the allowance of the will.
Effect of Subsequent Incapacity:
Immaterial but such witness is incapacitated to testify during
probate.
ARTICLE 823. If a person attests the execution of a will,
to whom or to whose spouse, or parent, or child, a devise
or legacy is given by such will, such devise or legacy
shall, so far only as concerns such person, or spouse, or
parent, or child of such person, or any one claiming under
such person or spouse, or parent, or child, be void, unless
there are three other competent witnesses to such will.
However, such person so attesting shall be admitted as a
witness as if such devise or legacy had not been made or
given.
- Prohibition refers only to the FREE PORTION
Witnesses Cannot Inherit; but not incapacitated as witness
- extends to:
1. the witness
2. the spouse of the witness
3. the parent of the witness
4. the child of the witness
5. anyone claiming the right of said witness, spouse,
parent, or child. (ex.: creditor of witness)
- Other relatives of the witness, like his brother or sister, to
whom a devise or legacy has been given, can get the
inheritance.
ARTICLE 824. A mere charge on the estate of the testator
for the payment of debts due at the time of the testator's
SUCCESSION-UNWEEND NOTES
death does not prevent his creditors from being
competent witnesses to his will.
- While a creditor who acts as a witness is disqualified to
inherit, he is qualified to receive his credit, which after all
cannot be considered a gift but a payment of debt of
testator.,
SUBSECTION 5 Codicils and Incorporation by Reference
ARTICLE 825. A codicil is a supplement or addition to a
will, made after the execution of a will and annexed to be
taken as a part thereof, by which any disposition made in
the original will is explained, added to, or altered.
- Codicil is a supplement or addition to a will thereby
explaining, adding or altering a will. It is a little will
which should be made after the will.
- In case of conflict: between a will and a codicil, it is
understood that the Codicil should prevail, it being the
later expression of the testator’s wishes.
-
ARTICLE 826. In order that a codicil may be effective, it
shall be executed as in the case of a will.
Formalities of Codicils:
a. notarial or ordinary codicils
b. holographic codicils
NOTE:
a. A notarial will may be revoked by either a notarial or
holographic codicil
b. a holographic will may be revoked by a holographic or
notarial codicil.
c. If a codicil is not executed with the formalities of a will,
said codicil is void.
d. A valid will can never be revoked, expressly or
impliedly, by an invalid codicil.
ARTICLE 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,
stating among other things the number of pages thereof;
(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.
- PURPOSE: is to provide for those cases when a testator
wishes to incorporate to his will only by reference (i.e.,
without copying the whole thing) certain documents or
papers, especially inventories and books of accounts.
- Incorporation Can Generally be Done Only in Notarial
Wills from the fact that 827(4) speaks of witnesses which
is not required in holographic will.
- However, if holographic will has 3 witnesses,
incorporation by reference may be had.
- Moreover, if a holographic will (with NO witnesses)
refers to a document entirely written, dated, and signed
in the handwriting of the testator, there can also be a
proper incorporation by reference.
Requisites for Validity of Documents Incorporated by
Reference:
a. document or paper must exist at the time of the execution
of the will
b. will must clearly describe and identify (locations, general
appearance) the document, stating among other things,
the number of pages thereof.
c. identified by clear and satisfactory proof as the
document or paper referred to therein (parol evidence or
evidence aliunde is needed here of course).
d. signed by the testator and the witnesses on each and
every page, except in case of voluminous books of
account or inventories.
8

SUBSECTION 6 Revocation of Wills and Testamentary
Dispositions
ARTICLE 828. A will may be revoked by the testator at
any time before his death. Any waiver or restriction of
this right is void.
Revocability of a Will
- a will is ambulatory and revocable until the death of the
testator since the disposition and rights are acquired by
the heirs only after the testator’s death.
- Provisions in a will during testator’s lifetime are valid
but not to be considered as testamentary dispositions.
ARTICLE 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.
Conflicts Rules for Revocation of Wills:
(a) For revocation OUTSIDE the Philippines.
1) If not domiciled in the Philippines —
a) follow law of place where will was MADE
b) or follow law of place where testator was
DOMICILED at the time.
2) If domiciled in the Philippines (not provided for in the
law) —
a) follow law of the Philippines (since his domicile is
here) —
b) or follow the general rule of lex loci celebrationis of
the REVOCATION. (Art. 17).
(b) If revocation is IN the Philippines, follow Philippine law.
[NOTE: This is true whether or not the domicile is in the
Philippines.].
ARTICLE 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.
Ways of Revocation:
a. by implication or operation of law (totally or partially)
- when certain acts or events take place after a will has
been made, rendering void or useless either the whole
will or certain testamentary dispositions therein
- Revocation of a legacy does not revoke the entire will.
b. by virtue of an overt act (like burning, tearing, cancelling,
or obliterating totally or partially in some instances)
c. by virtue of a revoking will or codicil (totally or partially,
or expressly or impliedly).
Reason for allowing revocation by implication of law:
- change of mind on the part of the testator.
Revocation by an Overt Act
Requisites:
a. there must be an overt act.
b. There must be a completion at least of the subjective
phase of the overt act.
c. There must be animus revocandi or intent to revoke.
d. The testator at the time of revoking must have capacity
to make a will. (Ex.:: He must be of sound mind,
otherwise there is no real revocation.
e. The revocation must be done by the testator himself, or
by some other person in his presence and by his express
direction. (Ratification of an unauthorized destruction is
SUCCESSION-UNWEEND NOTES
however permissible provided sufficient proof of this is
presented.).
OVERT ACT OF BURNING
- sufficient even if a small part of the instrument itself be
burned
- If thrown into the fire with intent to revoke, there is
already a revocation even if, unknown to the testator,
somebody was able to snatch it from the fire and thus
saved it.
- If a will is burned accidentally, there is no revocation in
view of the lack of intention.
OVERT ACT OF TEARING
- Even a slight tear is sufficient as long as the subjective
phase is passed, that is, as long as the testator considers
the will already revoked.
- The mere act of “crumpling” or the removal of the
“fastener” binding the pages of a will, does NOT
constitute a revocation, even though there be animo
revocandi because crumpling is not one of the overt acts
provided by law.
OVERT ACT OF OBLITERATING OR CANCELLING
- Obliteration — renders the word illegible
- cancellation — is the drawing of lines across a text, but
the words remain legible.
- Cancellation of the signature of witnesses to a
holographic will leaves the will valid, since no witnesses
are after all required.
REVOCATION BY THE EXECUTION OF ANOTHER
WILL OR CODICIL
- Revocation in this manner may be express or implied.
(Implied revocations consists in complete inconsistency
between the two wills.).
- revoking will be itself a valid will (validly executed as to
form), otherwise there is no revocation.
- doctrine of “conditional revocation,” or “dependent
relative revocation: revocation takes place only if the
condition is fulfilled. This is allowed.
Doctrine of Dependent Relative Revocation
- the revocation by destruction or overt act was good only
if the revoking will was valid. (Art. 833)
Problem:
Testator made will No. (1). After one week, he wanted to
revoke same, so he executed will No. (2), expressly
revoking will No. (1). In the belief that he had
already accomplished what he wanted, he then tore into
two pieces will No. (1). On his death, it was discovered that
will No. (2) had not been validly executed.
Question: Can we consider will No. (1) as having
been revoked, or should it still be given effect?
ANS.: There was no revocation either by subsequent will
(for same was invalid) or an overt act (since the act of
destruction or tearing the first will was prompted by the
false belief that the second will had been validly executed).
(See Art. 833, which provides that a revocation of a will
based on a false cause or illegal cause is null and void). To
put it in another way, the doctrine of dependent relative
revocation — the revocation by destruction or overt act was
good only if this condition is fulfilled, namely, that the
revoking will was valid. The condition was not fulfilled;
therefore, the revocation by overt act did not really
materialize. (De Molo v. Molo, et al., L-2538, Sep. 21, 1951,
citing 68 CJ 799, Gardner, pp. 232-233; 1 Alexander, p. 751).
Probate of Lost or Destroyed Notarial Wills
If a notarial will has been lost or destroyed without intent to
revoke, its contents may nevertheless still be proved by:
a. oral or parol evidence
b. carbon copies (Borromeo v. Casquijo, L-26063)
- This is because a carbon copy signed by all concerned
is just as good as the original. (Lugay v. Llamas)
- a “duplicate original’’ (a signed carbon copy or
duplicate executed at the same time as the original) is
as GOOD as the original.
- Incidentally, if the original presented is defective and
invalid, there is in law no other will but the duly
signed carbon duplicate, which is probatable.
9
Effect if Holographic Will is Lost or Destroyed
- If without intent to revoke, and no other copy is available,
it CAN NEVER be probated because the BEST and
ONLY evidence is the HANDWRITING of the testator in
SAID will.
- Evidence of sample handwritten statements of the
testator cannot be admitted because there would be no
handwritten will with which to make a COMPARISON.
- However, it may be probated if there exists a Photostat
or Xerox copy
ARTICLE 831. Subsequent wills which do not revoke the
previous ones in an express manner, annul only such
dispositions in the prior wills as are inconsistent with or
contrary to those contained in the later wills.
Not favored by law thus, efforts to reconcile must be made.
Implied Revocation Thru Wills may be:
a. Total
b. Partial- if there is inconsistency only in certain
provisions.
ARTICLE 832. A revocation made in a subsequent will
shall take effect, even if the new will should become
inoperative by reason of the incapacity of the heirs,
devisees or legatees designated therein, or by their
renunciation.
Difference between an invalid will, and a valid but
ineffective will:
- an invalid revoking will cannot revoke. But a valid
though ineffective will can revoke.
Effect on Revocation if New Will is Inoperative:
- First will is still revoked and testator will be considered
to have died intestate.
- If the revoking will is both invalid and ineffective, there
can be no revocation
ARTICLE 833. A revocation of a will based on a false
cause or an illegal cause is null and void.
Revocation Based on False or Illegal Cause
- one of the aspects of “dependent relative revocation,”
(thus, revoking will cannot be valid and first will still
subsists)
- a revocation made under a mistake.
ARTICLE 834. The recognition of an illegitimate child
does not lose its legal effect, even though the will
wherein it was made should be revoked.
Voluntary recognition of an illegitimate child may be done:
(1) in a record of birth
(2) will
(3) statement before a court of record
(4) any authentic writing
Reason for this Article:
- While a will is essentially revocable, recognition is
irrevocable (unless there be vitiated consent).
- recognition is not really a testamentary disposition
- recognition does not wait for the testator’s death to
become effective.
SUBSECTION 7 Republication and Revival of Wills
ARTICLE 835. The testator cannot republish, without
reproducing in a subsequent will, the dispositions
contained in a previous one which is void as to its form.
Republication
- It is the process of re-establishing a will, which has
become useless because it was void, or had been
revoked.
How Made:
a. re-execution of the original will (the original provisions
are COPIED)
b. execution of a codicil (also known as implied
republication). (Art. 836)
SUCCESSION-UNWEEND NOTES
ARTICLE 836. The execution of a codicil referring to a
previous will has the effect of republishing the will as
modified by the codicil.
Requisites and Limitations of Republication
a. To republish a will void as to its FORM: (execution of a
codcil) all the dispositions must be reproduced or copied
in the new or subsequent will.
Effect:
1. The old will is republished as of the date of the
codicil— makes it speak, as it were, from the new
and later
2. date. The codicil revives the previous will.
3. governed by a statute enacted subsequent to the
execution of the will, but which was operative when
the codicil was executed.
b. To republish a will valid as to its form but already
revoked: (re execution) the execution of a codicil which
makes reference to the revoked will is sufficient; no need
of reproducing all the previous dispositions.
c. A will republished by a codicil is governed by a statute
enacted subsequent to the execution of the will, but
which was operative when the codicil was executed.
Example: At the time a notarial will was executed with two
witnesses, the law required three. Suppose later on, the law
changed the required number to two, and suppose this
time a codicil referring to the will is made with two (as
required) witnesses, is the old will republished?
ANS.: If at the time the codicil was made, the law still
requires three witnesses, then the codicil, even if it has by
itself three witnesses, cannot by mere reference, republish
the old void will, which had only two witnesses. The way
to republish such void will is to execute another will (or
even a codicil) which would REPRODUCE all the previous
dispositions. (See Art. 835).
Can a will, invalid because of fraud or force or undue
influence or because the testator was under 18 or was
insane, be republished by mere reference in a codicil?
ANS.: It is submitted that the answer is yes, because this is
not a case when the will is void as to its FORM. (Form — in
this Article, it is believed, refers to such things as those
covered by Art. 805, et seq., like defect in the number of
witnesses, lack of or fatal defect in the attestation, lack of
acknowledgment, etc.). But not to vitiated consent or to
lack of testamentary capacity, although of course these are
included in the phrase “extrinsic validity,” as distinguished
from “intrinsic validity.’’
ARTICLE 837. If after making a will, the testator makes a
second will expressly revoking the first, the revocation of
the second will does not revive the first will, which can
be revived only by another will or codicil.
A void or a revoked will is a nullity is void. The only ways
of giving effect to it are:
a. Republication
- includes both re-execution and reference by a codicil
- an act of Testator
b. Revival
- takes place by OPERATION of LAW.
- the restoration or reestablishment of revoked will or
revoked provisions thereof, to effectiveness, by virtue
of legal provisions.
Examples of Revival
a. While omission of a compulsory heir in the institution of
heirs annuls the institution, still if the omitted heir dies
ahead of the testator, the institution is revived, without
prejudice to the right of representation. (See Art. 856).
b. If after making a will, the testator makes a second will
impliedly revoking the first, the revocation of the second
will revives the first will.
- Thus, EXPRESS REVOCATION cannot revive the
previous will
- However, in case of an “IMPLIED”REVOCATION by
the second will, an automatic revival of the first occurs
because implied revocation is ambulatory, the
10
 inconsistency being truly and actually apparent only
mortis causa, when the properties are distributed
- probate of a defective will.
SUBSECTION 8 Allowance and Disallowance of Wills
ARTICLE 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 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.
The probate is essential:
- FIRSTLY, because the law expressly requires it
(Art.833(1)0
- SECONDLY, probate is a proceeding in rem (requiring
publication, among other things) and, therefore, cannot
be dispensed with or substituted by any other
proceeding, judicial or extrajudicial without offending
public policy
- THIRDLY, the right of a person to dispose of his property
by virtue of a will may be rendered nugatory;
- FOURTHLY, because absent legatees, and devisees, or
such of them as may have no knowledge of the will could
be CHEATED of their inheritance thru the collusion of
some of the heirs who might agree to the partition of the
estate among themselves to the exclusion of others.
- Thus, even if only one heir has been instituted, there
must still be the judicial order of adjudication
Probate
- is the act of proving before a competent court the due
execution of a will by a person possessed of testamentary
capacity, as well as approval thereof by said court.
- Probate Court: RTC
- Other names: “probation,’’ “legalization,’’
“protocolization,’’ and “authentication”.
- 2 kinds:
a. Probate during the testator’s lifetime
b. Probate after the testator’s death
In probate proceedings, the court:
GR: limited only to passing upon the extrinsic validity of the
will sought to be probated and the compliance with the
requisites or solemnities prescribed by law.
1. orders the probate proper of the will
2. grants letters testamentary or letters with a will annexed
3. hears and approves claims against the estate
4. orders the payment of the lawful debts
5. authorizes the sale, mortgage, or any other encumbrance
of real estate and
6. directs the delivery of the estate or properties to those
who are entitled thereto.
7. determination of who the heirs are and what shares
are due them as regards the estate of a deceased person.
8. May resolve questions of title pertaining to the
determination prima facie of whether certain properties
ought to be included or excluded from the inventory and
accounting of the estate subject of a petition for letters of
administration.
Ante Mortem Probate; Reason and Procedure
- Ante Mortem/Before death of Testator
- Reason: to prevent or minimize fraud, intimidation, and
undue influence and to enable the testator to correct at
once failure to observe legal requirements.
- Procedure:
a. Testator himself petitions the competent court for the
probate of his will.
b. He then follows the procedure for the post mortem
of ordinary probate. (Supreme Court may impose
additional rules for ante mortem probates)
SUCCESSION-UNWEEND NOTES
c. If the will fails to observe the required formalities,
will is to be corrected first and not proceed. with the
Post-Mortem Probate; 2 Parts
- Post-Mortem/After Death of Testator
I. The probate proper (deals with EXTRINSIC
VALIDITY)
II. The inquiry into INTRINSIC VALIDITY and the
DISTRIBUTION itself of the property.
Salient points:
a. will may be presented for probate by any executor,
devisee, legatee, or interested person
b. if a will has already been probated, if later on a
subsequent will is discovered, the latter may still be
presented for a probate.
NOTE: Even if the discovered will had been made earlier
than the probated will, it can still be probated as long as
the two wills can be reconciled, or if there are portions in
the first which have not been revoked in the second.
c. Matters that Should be Brought up Before the Probate
Court:
1. determination of heirs;
2. 2. proof of filiation;
3. 3. determination of estate of decedent; and
4. 4. claims thereto.
d. The petition for probate must among other things state:
1. The fact that the testator is dead, and the place and
time of said death;
2. The fact that the deceased left a will, copy of which
has to be attached to the petition;
3. The fact that the will was executed in accordance
with legal requirements;
4. Names, ages, addresses of the executor and all
interested parties or heirs;
5. The probable value and character of the property of
the estate;
6. The name of the individual whose appointment as
executor is being asked for;
7. If the will has not been delivered to the court, the
name of the person who is supposed to have the will
in his custody.
e. there must be proof of death (actual or presumed),
publication of the notice of hearing, and the compliance
of all the formalities required by law.
f. The necessary witnesses must be produced if available,
and their absence must be satisfactorily explained.
g. A lost or destroyed notarial will may be probated as long
as:
1. a will had been validly executed
2. that the will had been lost or destroyed without
animo revocandi
3. testified by two credible witnesses.
4. However, this must still be proved by the proponent
h. Effect of Probate Proper or allowance of
will (EXTRINSIC VALIDITY)
- As long as there has been final judgement and petition
for relief has expired, order is binding upon the WHOLE
WORLD (being a proceeding in rem) insofar as
TESTAMENTARY CAPACITY (at least 18; sound mind)
and DUE EXECUTION (including all formalities and
absence of any ground for disallowance) are concerned.
- PERIODS — the petition has to be filed:
1) within sixty (60) days after the petitioner learns of the
judgment or order to be set aside;
2) and within six (6) months after such order or judgment
was entered. After the period lapse, judgment now
becomes FINAL.
- As to distribution of properties, NOT in rem, personal
service of summons is required.
NOTE: Distribution is defined as the division, by order of the
court having authority, among those entitled thereto, of the
estate of a person, after the payment of debts and charges.
i. Settlement of estates; procedure:
1. First, proof of testamentary capacity and due
execution are presented, and the court then issues an
order allowing or disallowing the will.
11
 2. the distribution of the estate may be done, after all 2. The fact that the person was suffering from
questions on intrinsic validity are disposed of. mental weakness, or was ignorant, or in financial
j. Points which should NOT be included in the probate distress.”
order, since they affect intrinsic validity: 3. Mere affection, even if illegitimate, is not undue
1. exclusion of the widow from the inheritance. influence, as long as the giving was voluntary.
2. disinheritance of a daughter. 4. Mere inequality, no matter how great, in
3. impairment of the legitime. distributing the estate is not evidence of undue
4. declaring a certain woman to be the true wife of the influence.
testator. - The Ground of Fraud
5. partitioning of conjugal properties. a. Fraud is the use of insidious machinations to
6. right of a widow to the inheritance. convince a person to do what ordinarily he would
7. titles to property, and annulment of alleged not have done. There must be INTENT TO
fraudulent sales. DEFRAUD
k. GR: a probate court has no jurisdiction to decide b. Fraud in a contract renders it voidable; in a will,
questions of ownership. cause for disallowance because the will is void.
XPN: Distinctions Between Revocation and Disallowance or
1. as when the parties voluntarily submit this matter to Nullity
the court; or Revocation Disallowance
2. as when provisionally, the ownership is passed upon voluntary act of the testator given by judicial order
to determine whether or not the property involved is with or without cause must always be for a legal
part of the estate. cause.
l. No Prescriptive Period for Instituting Probate may be partial or total as a
Proceedings rule is always total (except
- The Statute of Limitations fixes time limits for the when it affects a portion of
filing of “civil actions’’ but not for “special the will)
proceedings’’ of which a probate is admittedly one.
m. Estoppel Not Applicable to Probate Proceedings
- for they are invested with public interest, and if
estoppel would be applied, the ascertainment of the
truth may be blocked since the primary purpose of a
probate is not the protection of the interest of living
persons.
n. Termination of Probate Proceedings
- upon the approval by the probate court of the project
of partition, the granting of the petition to close the
proceedings, and the consequent issuance of the
order of distribution directing the delivery of the
properties to the heirs in accordance with the
adjudication made in the will.

ARTICLE 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.
Grounds for Disallowance of a Will
- Ground of Force, Duress, Fear or Threat
a. These grounds connote the idea of coercion, mental
or physical.
b. While their presence in a contract renders it voidable
(and therefore susceptible of ratification), their
presence in a will renders the will VOID.
- Ground of Undue and Improper Pressure and
Influence
a. Undue influence connotes the idea of coercion by
virtue of which the judgment of the testator is
displaced, and he is induced to do that which he
otherwise would not have done.
b. The Civil Code says that “there is undue influence
when a person takes improper advantage of his
power over the will of another, depriving the latter
of a reasonable freedom of choice.
c. The following circumstances to consider:
1. The confidential, family, spiritual and other
relations between the parties

SUCCESSION-UNWEEND NOTES 12
SUCCESSION PREFI NOTES From the Book of Paras and Atty. Lady Love Arreza’s discussion
SECTION 2
Institution of Heir
Article 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; defined
- Institution being a voluntary act, cannot be allowed to
affect the legitime.
- In general, the provisions on “institution” are applicable
to devises and legacies.
- There can be an instituted heir only in testamentary
succession (for the heir in intestate succession is called
legal or intestate heir).
- A conceived child may be instituted, if the conditions in
Arts. 40 and 41 are present. (Art. 1025).
Requisites for a VALID Institution:
1. The will must be EXTRINSICALLY VALID. (Hence, the
testator must be capacitated, the formalities must be
observed, there must be no vitiated consent, the will
must have been duly probated, the will must have been
the personal act of the testator.)
2. The institution must be valid INTRINSICALLY. (The
legitime must not be impaired, the heir must be certain
or ascertainable; there should be no preterition).
3. The institution must be EFFECTIVE (no predecease, no
repudiation by the heir, no incapacity of the heir).
NOTE: In the proper case, there can be institution in a
marriage settlement. (See Art. 130).]
When Is Adjudication By An Heir of the Decedent’s Entire
Estate to Himself By Means of an Affidavit Allowed?
Only if he is the sole heir of the estate. (Delgado Vda. De Dela
Rosa v. Heirs of Marciana Vda. de Damian)
Are the heirs who actually participated in the execution of the
extrajudicial settlement, which included the sale to a third
person of their pro indiviso shares in the property, bound by
the same?
Yes, while the co-heirs who did not participate are given the
right to redeem their shares pursuant to Art. 1088 of the new
Civil Code. (Cruz v. Cristobal)
Article 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.
NON-NECESSITY OF INSTITUTION OF HEIR
A will, unless otherwise defective, is valid, even if:
1. there is no institution of heir (This was needed before
because somebody had to take care of the debts of the
decedent, even beyond the value of the inheritance).
2. the instituted heir is given only a portion of the estate
(Reason: Mixed succession is allowed). (Escuin v. Escuin,
11 Phil. 839).
3. the heir instituted should repudiate or be incapacitated
to inherit (because the law has provided particular
provisions for said cases). (See Art. 184).
Article 842. One who has no compulsory heirs may dispose
by will of all his estate or any part of it in favor of any
person having capacity to succeed.
One who has compulsory heirs may dispose of his estate
provided he does not contravene the provisions of this
Code with regard to the legitime of said heirs.
Unweeend Notes
RULES FOR FREEDOM OF DISPOSITION OF ESTATE:
1. If one has no compulsory heirs:
a. He can give his estate or any portion thereof to
anybody qualified to inherit from him (his corpse
cannot be given except for scientific or educational
purposes).
b. BUT he must respect the restrictions imposed by
special laws. (Example: If an applicant or grantee of
a homestead dies before the issuance of the patent,
his rights thereto can be given only to his surviving
spouse). (See Sec. 105, Com. Act No. 141, see also
Arayata v. Joya, 51 Phil. 654, which held that a
particular law prevails over a general law.).
2. If one has compulsory heirs (those who cannot be
deprived of their legitimes, like a legitimate child, or an
acknowledged natural child) —
a. he must respect the legitimes (unless there be a valid
cause for an express disinheritance);
b. the free portion can, however, be given to anybody
(including of course the compulsory heirs), provided
always that restrictions of special laws are complied
with.
Article 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.
Article 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 other proof, the person instituted
cannot be identified, none of them shall be an heir.
Effect of Error
Mere error in designation of name or circumstances is NOT
important as long as the intent is clear, and there is positive
identification.
Effect of Misdescription
Misdescription may be corrected even by extrinsic evidence
(“any other manner”) but NOT by oral declarations of the
testator. (Art. 789).
Article 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.
Unknown person
- means one who cannot be identified from the will; not
one who is a stranger to the testator.
Special Kinds of Class Institutions
1. of the poor in general. (Art. 1030).
2. relatives of the testator. (Art. 959).
3. a person and his children. (Art. 849).
4. brothers and sisters of the full and half-blood. (Art. 848).
5. the institution of descendants or relatives of a legatee.
(The rule of “nearest excludes the farther’’ will NOT
apply here. Therefore, all the descendants and relatives
will inherit per capita. (Belen v. Bank of the P.I)
Article 846. Heirs instituted without designation of shares
shall inherit in equal parts.
GR: Institution Without Designation of Shares will inherit
equally.
XPN: cannot be applied absolutely in case one of those
instituted is a compulsory heir, inasmuch as institution in
1
SUCCESSION PREFI NOTES From the Book of Paras and Atty. Lady Love Arreza’s discussion
general refers merely to the free portion (free disposal). NOTE: What is disregarded is the false cause, not the
Hence, the legitime must first be removed and what remains institution.
will be divided equally. Rationale: The real cause is the testator’s liberality.
Austria v. Reyes
NOTE: If children who are invalidly adopted are instituted as
• Institution of a compulsory heir to the legitime is VALID heirs, the institution should remain valid. As much as
but SUPERFLUOUS (unnecessary since by law, he is possible, intestacy ought to be avoided, and the testator’s
entitled to it). wishes should be given effect. The allegation that the
• Institution of a voluntary heir (not compulsory heir) to institution should be void because it was based on a false
the legitime is of course VOID.]. cause, the testator thinking that they had to be instituted
because of the adoption, is of no merit because there is
Special Cases nothing in the will to indicate that had the testator known
(a) All are voluntary heirs, but the shares of some are of the invalidity of the adoption, the institution of the
designated, while the shares of the others are not. children would not have been made.
(b) All are voluntary heirs but specific properties of the Evidence of intent must appear in the Will. Proof outside the
estate have been given to them as part of their share. will is not admissible in proving such intent.

Article 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.
Article 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.
INSTITUTION OF BROTHERS AND SISTERS
1. Compared with the old Civil Code
In TESTAMENTARY succession, the shares are the SAME,
unless a different intention appears. (Reason: If indeed the
affection is double, the testator should have given expressly a
double share to the full-blood brother.)
Example: “I institute my full-brother and my half-brother to
my estate of P100,000.” Each gets P50,000.
2. Compared with intestate succession
In intestate succession (OLD and NEW Civil Codes), the
brother of the full-blood gets DOUBLE the share of the
brother of the half-blood. (Art. 1006, new Civil Code; Art. 949,
old Civil Code).
Bar Question
If the testator should institute all his brothers or sisters as
his heirs, and he has some of the full blood and others of
the half-blood on the side of the father or mother only, how
is the inheritance to be distributed among them?
ANS.: Equally, by express provision of the law. (Art. 808).
If the real motive was illegal, the institution should be VOID.
If the real motive is generosity, liberality, or affection and the
illegal cause is only incidental, the institution should be
considered VALID.
Article 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.
Article 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.
Article 853. If each of the instituted heirs has been given an
aliquot part of the inheritance, and the parts together
exceed the whole inheritance, or the whole free portion, as
the case may be, each part shall be reduced proportionally.
While Art. 851 provides the general rule, Art. 852 states the
exception.
When there is only One heir instituted, there is a remainder
or balance and there is NO INTENT to give all to the instituted
heir, the remaining 1/4 should go to the legal heirs.
NOTE: Intestate succession will not apply to the remainder if
the same has been disposed of by way of legacies or devises.

Article 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.
INSTITUTION OF A PERSON AND HIS CHILDREN
1. “His children” refers not to the children of the testator,
but to the children of the person instituted also as an heir.
2. T instituted A and A’s two children to an estate of
P30,000. Each of the three heirs gets P10,000 all at the
same time.
[NOTE: Had the institution been successive, A would get all
in the meantime, the children getting nothing during A’s
lifetime.].
“Deemed” here means presumed, hence, if a contrary
intention is present (that is, to institute them successively),
said intention must prevail, for the testator’s will, if not illegal,
must be followed.
Article 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.
Unweeend Notes
Art. 852 applies only if THERE IS INTENT to give ALL only
to those instituted
If institution exceeds Estate, the share of each must be reduced
proportionately,.
Article 854. The preterition or omission of one, some, or all
of the compulsory heirs in the direct line, whether living at
the time of the execution of the will or born after the death
of the testator, shall annul the institution of heir; but the
devises and legacies shall be valid insofar as they are not
inofficious.
If the omitted compulsory heirs should die before the
testator, the institution shall be effectual, without prejudice
to the right of representation.
Preterition; defined
Preterition or pretermission is the omission, whether
intentional or not, of a compulsory heir in the inheritance of a
person.
Requisites for Preterition:
(a) there is a TOTAL omission in the inheritance
There is TOTAL OMISSION if a compulsory heir is named in
the will, but he is not given any share, although there is no
express disinheritance, there is preterition; if a compulsory
2
SUCCESSION PREFI NOTES From the Book of Paras and Atty. Lady Love Arreza’s discussion
heir is given a share in the inheritance no matter how small,
there is no preterition, for here, under another article (Art.
906), he is entitled only to the completion of his legitime.
(b) the omission must be of a COMPULSORY heir
there can be preterition of legitimate or illegitimate
compulsory heirs, of descendants or of ascendants.
(c) the compulsory heir omitted must be in the DIRECT
Line
There is no preterition of the surviving spouse because,
although he/she is one of the Compulsory Heirs, he/she is
not in the DIRECT LINE
(d) preterited heir must survive the testator.
Effects of Preterition
a. The institution of heirs is annulled or considered VOID
b. Although the institution of heirs is indeed annulled, the
legacies and devises shall remain valid insofar as they are
not inofficious. (legacies and devises are not voided, but
merely reducible if the legitime has been impaired)
Article 855. The share of a child or descendant omitted in a
will must first be taken from the part of the estate not
disposed of by the will, if any; if that is not sufficient, so
much as may be necessary must be taken proportionally
from the shares of the other compulsory heirs.
NOTE: Observe that the law says “child or descendant.” It is
believed that same should apply also to an omitted
compulsory heir, even though not a child or descendant. As a
matter of fact, by applying the different provisions, providing
for shares, we can reach the same conclusion.
Thus, it has been said that it is of the essence of preterition that
there be complete forgetfulness, not in the will necessarily,
but in the inheritance (testate, intestate, or mixed).
Even if a child has been omitted in a will, as long as he has
received anything by way, for example, of a donation inter
vivos, there is NO preterition. This is because the donation is
an advance of his legitime. If what he received by way of
donation is less than his legitime, there is no preterition. He is
entitled not to the annulment of the institution of heir but
merely to the completion of his legitime.
Article 856. A voluntary heir who dies before the testator
transmits nothing to his heirs.
A compulsory heir who dies before the testator, a person
incapacitated to succeed, and one who renounces the
inheritance, shall transmit no right to his own heirs except
in cases expressly provided for in this Code.
The first paragraph means that a voluntary heir cannot be
represented. The legatee’s heir cannot rightfully claim for the
legatee’s inheritance for there is no transmission of any right.
NOTE: Remember that in testate succession, the right of
representation covers only the legitime. (Arts. 856, 1035). In
intestate succession, it covers the entire share of the person
represented. The whole would descend by the rules of
intestate succession.
A compulsory heir who predeceases the testator transmits no
right, although of course there is the right of
representation. The same applies to an incapacitated
compulsory heir. A repudiating compulsory heir does not
only receive nothing but his own heirs are denied the right to
represent.
SECTION 3
Substitution of Heirs
Article 857. Substitution is the appointment of another heir
so that he may enter into the inheritance in default of the
heir originally instituted.
Unweeend Notes
Substitution otherwise referred to as a conditional institution
of heir, is the appointment of another heir in default of or after
the heir originally instituted.
It is the disposition by virtue of which a third person is called
to receive hereditary property in lieu of or after another
person.
There may also be substitution of legatees and devisees.
Rabadilla v. CA
Substitution is the designation by the testator of a person
or persons to take the place of the heir or heirs first
instituted.
Under substitutions, in general, the testator may either: (1)
provide for the designation of another heir to whom the
property shall pass in case the original heir should die
before him/her, renounce the inheritance or be
incapacitated to inherit, as in a simple substitution (Art.
859); or (2) leave his/her property to one person with the
express charge that it be transmitted subsequently to
another or others, as in a fideicommissary substitution.
(Art. 863).
In simple substitution, the second heir takes the inheritance
in default of the first heir by reason of incapacity,
predecease, or renunciation. (Art. 859).
Purpose of Substitution:
(a) to prevent the property from falling into the ownership
of people not desired by the testator.
(b) to prevent the effects of intestate succession.
(c) to allow the testator greater freedom to help or reward
those who by reason of services rendered to the testator,
are more worthy of his affection and deserving of his
bounty than intestate heirs.
Article 858. Substitution of heirs may be:
(1) Simple or common;
(2) Brief or compendious;
(3) Reciprocal; or
(4) Fideicommissary.
Kinds of Substitution:
(a) Simple or common substitution [also known as
sustitucion vulgar. (Art. 859).
(b) Brief or compendious substitution, also known as
sustitucion brevilocua o compendiosa. (Art. 860).
(c) Reciprocal substitution, also called sustitucion reciproca.
(Art. 861).
(d) Fideicommissary substitution, also known as sustitucion
fideicomisoria. (Art. 863, etc.)
Article 859. The testator may designate one or more
persons to substitute the heir or heirs instituted in case such
heir or heirs should die before him, or should not wish, or
should be incapacitated to accept the inheritance.
A simple substitution, without a statement of the cases to
which it refers, shall comprise the three mentioned in the
preceding paragraph, unless the testator has otherwise
provided.
Simple or Common Substitution
Express substitution in case of: 1) predecease; 2) renunciation
or repudiation; 3) incapacity
Note: the designation must ALWAYS BE EXPRESS.
WHEN THE SUBSTITUTION IS EXTINGUISHED:
(a) when the substitute predeceases the testator
(b) when the substitute is incapacitated
(c) when the substitute renounces the inheritance
(d) when the institution of heir is annulled (say by
preterition)
(e) when the institution or the substitution is revoked by the
testator
(f) when a will is void or disallowed or revoked
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SUCCESSION PREFI NOTES From the Book of Paras and Atty. Lady Love Arreza’s discussion
T made a will instituting X as heir, and Y, as substitute. T considered by the testator in designating said original
died on Jan. 5, 2004. X renounced the inheritance on Jan. 7, heir.)
2004. Y died on Jan. 8, 2004. Can Z, the child of Y get
anything from T’s estate? Article 863. A fideicommissary substitution by virtue of
ANS.: Yes, because this is not a case of predecease on the which the fiduciary or first heir instituted is entrusted with
part of Y, who after all survived the testator, the obligation to preserve and to transmit to a second heir
and immediately inherited from T, subject to the condition the whole or part of the inheritance, shall be valid and shall
of X’s non-inheritance. Since the condition was fulfilled take effect, provided such substitution does not go beyond
there is no doubt that Y inherited. True, Y is now dead, but one degree from the heir originally instituted, and
his son Z can share in T’s estate, not as an heir of T, but provided further, that the fiduciary or first heir and the
merely to get the share already inherited by his father Y. second heir are living at the time of the death of the testator.
FIDEICOMMISSARY SUBSTITUTION
Article 860. Two or more persons may be substituted for Or indirect substitution, is that by virtue of which a testator
one; and one person for two or more heirs. institutes a first heir, and charges him to preserve and
Brief and Compendious Substitutions: transmit the whole or part of the inheritance later on to a
1) the brief substitution — when two or more take the place second heir.
of one
2) the compendious substitution — when one takes the REQUISITES AND LIMITATIONS:
place of two or more (a) There must be a FIRST HEIR called primarily or
preferentially to the enjoyment of the property.
Article 861. If heirs instituted in unequal shares should be must himself be capacitated, and must accept the inheritance
reciprocally substituted, the substitute shall acquire the He is not mere trustee for while he also administers, he carries
share of the heir who dies, renounces, or is incapacitated, out not another’s wishes but his own, insofar as management
unless it clearly appears that the intention of the testator is concerned.
was otherwise. If there are more than one substitute, they
shall have the same share in the substitution as in the (b) There must be an obligation clearly imposed upon him
institution. to preserve and transmit to a third person the whole or
Reciprocal Substitution, the essence of which is that the part of the inheritance (part only if the substitution refers
instituted heirs are also made the substitutes of each other. merely to that part).
The words “same share” should be interpreted to mean The obligation (to preserve and transmit) must be given
“same proportionate share.” clearly and expressly

The estate is P180,000. T institutes A to P120,000; B to
P20,000; C to P40,000. A is made the substitute of B or C; B
and C are the substitutes of A. If A predeceases, is
incapacitated, or renounces, his share of P120,000 will be
given proportionately to B and C. In other words, B and C
will inherit in the substitution, if substitution is proper, B
and C will get A’s P120,000 in the proportion of P20,000 is
to P40,000 (or in the proportion of 1 is to 2). Hence, in the
substitution, B gets P40,000 and C gets P80,000. Summing
up:
B gets a total of P60,000
(P20,000 by institution),
(P40,000 by substitution)
C gets a total of P120,000
(P40,000 by institution)
(P80,000 by substitution)
TOTAL INHERITANCE = P180,000
NOTE: It is believed that Art. 861 applies also to substitutions
in legacies and devises and also apply even if the institution
was in equal shares because the law uses “unequal” only to
clear up former doubts on the matter in the case the institution
was in unequal shares.
Article 862. The substitute shall be subject to the same
charges and conditions imposed upon the instituted heir,
unless and testator has expressly provided the contrary, or
the charges or conditions are personally applicable only to
the heir instituted.
Effect on the Substitution of Charges and Conditions
Imposed in the Institution
GR: If the substitute inherits, he must fulfill the conditions
imposed on the original heir. (Reason: We presume that the
testator intended the substitute to stand on the same footing
as the original heir.).
XPN:
(1) if the testator has expressly provided the contrary (this
must appear in the will)
(2) if the charges or conditions are personally applicable,
only to the heir instituted. (This occurs when the
personal qualifications of the original heir had been
Unweeend Notes
(c) A SECOND HEIR. (Perez v. Garchitorena)
He is known as fideicommissary, and is a sort of naked owner.
Upon transmission to him of the property, full ownership is
consolidated in him.
Since the second heir inherits not from the first heir but from
the testator, said second heir must be capacitated to succeed
not the first heir but the testator. (Art. 866)
(d) The 1st and the 2nd heirs must be only one degree apart.
For Natural person, “one degree” refers to one generation.
For juridical person, one degree should mean one transfer.
(e) Both heirs must be alive (or at least conceived) at the
time of the testator’s death. (Art. 863).
[NOTE: A conceived child is already considered born for all
purposes favorable to it.].
Reason for the requirement: To reduce as much as possible
the number of years the property will have to be entailed. For
if the second heir were still not even conceived at the time the
testator dies, a long time may elapse. Furthermore, the second
heir himself inherits from the testator, and one cannot inherit
unless he be alive or at least conceived. Thirdly, a non-
conceived child has no juridical capacity, and cannot
therefore be given any legal right. (Art. 37).
(f) Must be made in an EXPRESS manner (Art. 867, par. 1).
(g) Must not burden the legitime. (Arts. 864, 872, 904). (This
is true for all kinds of substitutions, for after all, the
compulsory heirs are entitled to the legitime as of
RIGHT.).
(h) Must not be conditional.
Distinction from Simple Substitution
While in the simple substitution only ONE of the heirs
inherits, in the fideicommissary, BOTH inherit.
First heir, or fiduciary, or heredero, fiduciaro, or trustee, has the
obligation of preserving and transmitting.
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SUCCESSION PREFI NOTES From the Book of Paras and Atty. Lady Love Arreza’s discussion
Second heir, or fideicommissary or fideicomisario or
beneficiary or cestui que trust eventually receives the
property.
Testator or decedent is the fideicomitente.
NOTE: that both the heirs inherit the property or right to it
SIMULTANEOUSLY, although the enjoyment and
possession are SUCCESSIVE.
Purpose of the Fideicommissary Substitution:
1. This is necessary for the prosperity and prestige of the
family, bearing in mind the lack of intelligence, weakness
of character, and vanity and prodigality of the
descendants to whom the property may go.
2. This is a complement of the freedom of disposition which
gives a powerful stimulus to the accumulation of wealth,
and thus, maintains the tradition and social standing of
the family.
de Perez v. Garchitorena
FACTS: Ana instituted Carmen as her heir with the
following stipulations in her will:
(a) Should Carmen die, the whole estate should pass
unimpaired to Carmen’s children.
(b) The estate should never pass out of the hands of Carmen
and her children as long as this was legally possible.
(c) Should Carmen die after Ana while Carmen’s children
are still minors, the estate would be administered by the
executrix.
It should be noted that in the will, no express mention was
made of a fideicommissary substitution. Neither was there
any statement as to whether Carmen was to die before or
after Ana. It was thus alleged that no fideicommissary
substitution was made, and so, after Carmen’s death, the
property belonged to her estate and not to the children as
substitutes, and therefore, creditors could attach the same.
HELD: The properties belonged to the children, and not to
Carmen’s estate. This is because all the requirements of a
fideicommissary substitution are present here, and
consequently, the creditors cannot go against the property.
The requisites for a fideicommissary substitution are
present because the first and second heirs exist, in the
proper relationship, and were both alive at the testatrix’s
death. The phrase “shall pass unimpaired” and the phrase
“should never pass out of the hands,” show an obligation
to preserve and transmit. Finally, the phrase “should
Carmen die after Ana” anticipates a situation where a first
heir, Carmen, will later die after having enjoyed the
inheritance.
Article 864. A fideicommissary substitution can never
burden the legitime.
Rationale: The legitime is expressly reserved for the
compulsory heirs. (Art. 886). As a matter of fact, no
substitution of any kind can be imposed on the legitime.
Article 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.
First paragraph of the Article — to be express, the words
“fideicommissary substitution” need not be given; it is
sufficient that there be the absolute obligation of delivering
(and therefore of preserving) the property to the second heir.
(Art. 867, No. 1).
In the absence of a period fixed by the testator, the inheritance he lives,” or is prohibited to alienate then the prohibition is
must be delivered at death of the first heir.
NOTE: Deteriorations caused by fiduciary’s malice or
negligence must of course be shouldered by him. If the
property is destroyed by a fortuitous event, the obligation to
deliver is generally extinguished.
Unweeend Notes
Article 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.
Article 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 or part of the
hereditary property in order that he may apply or invest
the same according to secret instructions communicated to
him by the testator.
Purpose of the Article — to prevent conditions which would
entail the property for a long time and result in a case worse
than the fideicommissary substitution.
Prohibition to Alienate
(a) Perpetual prohibition to alienate - the stipulation is of no
effect, but considering Art. 870, it is submitted that same
would be valid, but only for the first twenty years.
(b) Temporary prohibition to alienate - In case there is a
fideicommissary substitution, the prohibition to alienate
imposed on the fiduciary is allowed even if more than 20
years have elapsed, otherwise, there may be nothing to
deliver, and the purpose of the substitution is frustrated.
Payment of Income or Pensions
NOTE: If those to receive pensions will be given
simultaneously and not successively, it would be permissible
to require him to pension as many people as he could, but of
course the total amount should not go beyond the value of the
inheritance, unless of course the heir consents.
Effect of Secret Instructions
Secret instructions communicated by the testator, are of no
effect. This is intended to prevent the application of the
property for purposes not legally sanctioned.
Article 868. The nullity of the fideicommissary substitution
does not prejudice the validity of the institution of the heirs
first designated; the fideicommissary clause shall simply be
considered as not written.
Article 869. A provision whereby the testator leaves to a
person the whole or part of the inheritance, and to another
the usufruct, shall be valid. If he gives the usufruct to
various persons, not simultaneously, but successively, the
provisions of article 863 shall apply.
Naked ownership of the property is really distinct and
severable from the use of fruits (the beneficial ownership)
thereof.
Article 870. The dispositions of the testator declaring all or
part of the estate inalienable for more than twenty years are
void.
The prohibition to alienate for more than 20 Years is not
applicable to the legitime. (Art. 904, 2nd par.).
If the devisee or legatee is prohibited to alienate “as long as
good for twenty years if he lives for said period or longer; if
he dies sooner, it is clear that the prohibition is ended, and
therefore his own heirs will not be burdened by the
prohibition.
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SUCCESSION PREFI NOTES From the Book of Paras and Atty. Lady Love Arreza’s discussion
NOTE: Art. 870 does not apply if there is a fideicommissary
substitution, for this must be governed by Art. 867(2).
Bahanay, Jr. v. Martinez
FACTS: In her will, a wife:
(1) claimed certain specific parts of the conjugal estate as
her own (with the husband’s conformity);
(2) ordered that her property be kept intact during the
husband’s lifetime;
(3) ordered the payment of cash (to the children of their
legitimes). Are the provisions valid?
HELD:
(1) The claim to specific portions would ordinarily be void
because the shares of the spouses are merely undivided or
ideal; however, since the husband consented, the defect is
cured, and the husband is deemed to have renounced his
share. This is, of course, without prejudice to the rights of
creditors.
(2) The proviso regarding the non-division of her property
is good only for twenty (20) years.
(3) The order to pay the legitimes of her children in cash is
void because such order can be allowed only if she has
entrusted the management or administration of the
property to one or more of the heirs — under Art. 1080 of
the Civil Code.
In default of the heirs of the decedent, the State will inherit the
share
SECTION 4
Conditional Testamentary Dispositions
and Testamentary Dispositions With a
Term
Article 871. The institution of an heir may be made
conditionally, or for a certain purpose or cause.
VARIOUS KINDS OF INSTITUTIONS
(a) with a condition. (Arts. 871-877, 883-884).
(b) with a term. (Arts. 878, 880, 885).
(c) for a certain purpose or cause (modal institution). (Arts.
871, 882 and 883)
a. CONDITION
Future or uncertain event, or a past event unknown to the
parties, upon which the performance of an obligation
depends (Art. 1179, Civil Code);
It is “every fact or event which is future or uncertain to whose
realization a judicial act is subordinated.”
It is a designation of some future and uncertain event upon
which the validity of an accepted obligation or testamentary
provision depends.
b. TERM
The day or time when an obligation either becomes
demandable or terminates. (Art. 1193).
As applied to succession, it is the day or time when the effect
of an institution of the heir is to begin or cease.
Under Art. 855 of the Civil Code — “the designation of the
day or time when the effects of the institution of an heir shall
commence or cease,” is allowed
A day certain
Is understood to be that which must necessarily come,
although it may not be known when. (Art. 1193, 3rd par.).
c. MODAL INSTITUTION
1) when the institution of an heir is made, for a certain
purpose or cause. (Art. 871).
2) the statement of the object of the institution or the
application of the property left by the testator or the charge
imposed upon him. (Art. 882).
Unweeend Notes
[NOTE: Such statement shall not be considered a condition
unless it appears that such was his intention. (Art. 882).].
3) “modo” also signifies every onerous disposition by which
the obligor imposed upon another and thus limited his
promise, such as demanding a loan in exchange for what the
other person receive.
Conditions to affect the disposition must appear in the
language of the will, and cannot be presumed. (Morente v. De
la Santa, 9 Phil. 387). Parol evidence to prove the existence of
oral or other conditions cannot be allowed. However, if the
condition appears in a document incorporated by reference
into the will, it is proper to consider said condition.
Article 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.
NO CHARGE, CONDITION, OR SUBSTITUTION ON
LEGITIMES
However, the testator can validly impose a prohibition
against the partition of the legitime, for a period not exceeding
twenty years. (This is the only prohibition or condition that
can affect
or burden the legitime).
Article 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.
EFFECT OF IMPOSSIBLE OR ILLEGAL CONDITIONS
is that, the condition is considered void and unwritten but the
institution and testamentary disposition will be considered as
valid. A whimsical error on the part of the testator is
presumed to have been made.
Vague wording of conditions considers the condition and
impossible condition and should therefore be disregarded.
Reason for the law: In testamentary dispositions, the
condition is not as important as the generosity and liberality
of the testator. The impossible condition will just be
disregarded.
Article 874. An absolute condition not to contract a first or
subsequent marriage shall be considered as not written
unless such condition has been imposed on the widow or
widower by the deceased spouse, or by the latter's
ascendants or descendants.
Nevertheless, the right of usufruct, or an allowance or some
personal prestation may be devised or bequeathed to any
person for the time during which he or she should remain
unmarried or in widowhood.
THE CONDITION NOT TO MARRY
1. Absolute Prohibition
a. to contract a first marriage
This condition is absolutely void, and may be
disregarded or considered not imposed. Reason for the
law: Such a condition is contrary to good morality and
public policy. There is NO exception here.
b. to remarry
GR: void because it is contrary to morality and public
policy.
XPN: valid
• when imposed on the widow or widower by the
deceased spouse
• when imposed on the widow or widower by the
ascendants or descendants of the deceased spouse
(not the ascendants or descendants of the widow or
widower) Reason: justified because of sentimental
and economic reasons.)
2. Relative Prohibition
a. to contract a first marriage
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SUCCESSION PREFI NOTES From the Book of Paras and Atty. Lady Love Arreza’s discussion
prohibition to marry a particular girl, or at a particular
time, or for a number of years is valid, UNLESS it
becomes so onerous or burdensome that the “relative”
prohibition really amounts to an absolute one.
b. to remarry
Article 875. Any disposition made upon the condition that
the heir shall make some provision in his will in favor of
the testator or of any other person shall be void.
This Article speaks of what is known as a DISPOSITION
CAPTATORIA.
This is prohibited because it tends to make the making of the
will a contractual act. Note that the disposition itself (and not
merely the condition) is void.
Article 876. Any purely potestative condition imposed
upon an heir must be fulfilled by him as soon as he learns
of the testator's death.
This rule shall not apply when the condition, already
complied with, cannot be fulfilled again.
POTESTATIVE CONDITION
Is one the fulfillment of which depends purely on the heir. He
must perform it personally. Nobody else must do it for him.
Compliance must be AFTER (not before) the testator’s death.
Reason: It is only then that OBEDIENCE can be indicated.
Article 877. If the condition is casual or mixed, it shall be
sufficient if it happen or be fulfilled at any time before or
after the death of the testator, unless he has provided
otherwise.
Should it have existed or should it have been fulfilled at the The bond or security referred to in Art. 879 is called a caucion
time the will was executed and the testator was unaware
thereof, it shall be deemed as complied with.
If he had knowledge thereof, the condition shall be
considered fulfilled only when it is of such a nature that it
can no longer exist or be complied with again.
CASUAL CONDITION
A condition is casual if it depends upon chance and/or upon
the will of a third person.
MIXED CONDITION
A condition is mixed if it depends partly both upon the will
of the heir himself AND upon chance and/or the will of a
third person.
Example of Casual Condition
A gives B a legacy on condition that C wins the lotto.
The fulfillment may be either before or after A’s death.
(a) If C had already won the lotto, and A did not know this,
the condition is deemed already complied with, and B gets
the legacy. (2nd par., Art. 877)
(b) If C had already won the lotto, and A knew of this, the
condition is deemed fulfilled only if C again wins first
prize. Unless this happens, B cannot get the legacy. (3rd
par., Art. 877). Evidently, the only reason for imposing the
condition despite the testator’s knowledge of it having
been done already is to REQUIRE it to be FULFILLED
AGAIN.
Example of a Mixed Condition
A gives B a legacy on condition that B become a lawyer.
The condition may be fulfilled either before or after the
death of A.
(a) If B is already a lawyer, and A did not know this, the
condition is deemed complied with and B gets the legacy.
(2nd par., Art. 877).
(b) If B is already a lawyer, and A knew this, B gets the
legacy just the same, because the condition is of such a
nature that it can no longer be complied with again. (3rd
par., Art. 877).
Article 878. A disposition with a suspensive term does not
prevent the instituted heir from acquiring his rights and
Unweeend Notes
transmitting them to his heirs even before the arrival of the
term.
EFFECT OF SUSPENSIVE TERM
A suspensive term is one that merely suspends the
demandability of a right. It is sure to happen. A suspensive
condition however suspends, not merely the demandability,
but even the acquisition itself of the right.
Distinction Between Term and Condition
The classic distinction between a term and a condition is
that a term is sure to happen, while a condition may or may
not happen.
Effect of Predeceasing a Suspensive Condition
Suppose an heir instituted under a suspensive condition (note
that Art. 878 speaks only of a suspensive term) dies after the
testator but before the condition is fulfilled, does he transmit
any right to his own heirs insofar as the estate of the testator
is concerned?
ANS.: It is submitted that the answer is NO, for he never
inherited, being already dead at the time the condition is
fulfilled, granting that it is indeed fulfilled.
Article 879. If the potestative condition imposed upon the
heir is negative, or consists in not doing or not giving
something, he shall comply by giving a security that he will
not do or give that which has been prohibited by the
testator, and that in case of contravention he will return
whatever he may have received, together with its fruits and
interests.
muciana.
Caucion Muciana
Security given by an heir or legatee, in order to obtain
immediate possession of the inheritance or legacy, binding
him and his surety for his observance of a condition annexed
to the bequest, where the act which is the object of the
condition is one which he must avoid committing during his
whole life. (Black’s Law Dictionary)
Article 880. If the heir be instituted under a suspensive
condition or term, the estate shall be placed under
administration until the condition is fulfilled, or until it
becomes certain that it cannot be fulfilled, or until the
arrival of the term.
The same shall be done if the heir does not give the security
required in the preceding article.
Art. 880 should be applied only to suspensive conditions,
NOT to suspensive terms. Thus, pending the fulfillment of the
suspensive condition, the estate shall be placed under
administration.
[NOTE: Art. 880 also applies to a negative potestative
condition, or one which consists in not doing or not giving
something.].
When Administration Ceases
If there is a suspensive condition, and it “becomes certain that
it cannot be fulfilled” then the administration of the estate will
also cease, but this time, instead of being given to the
instituted heir; it will be given to the legal heirs.
Article 881. The appointment of the administrator of the
estate mentioned in the preceding article, as well as the
manner of the administration and the rights and
obligations of the administrator shall be governed by the
Rules of Court.
Distinctions Between an Executor, an Administrator, an
Administrator with a Will Annexed, and a Special
Administrator
(a) When there is a will, an executor appointed in such will
takes charge in carrying out the wishes of the testator.
“When a will has been proved and allowed, the court
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SUCCESSION PREFI NOTES From the Book of Paras and Atty. Lady Love Arreza’s discussion
shall issue letters testamentary thereon to the person
named as executor therein, if he is competent, accepts the
trust, and gives bond as required by these rules.”
(b) If there is no will, it follows that there can be no executor,
and therefore the Court appoints an administrator, but
only if an administrator is really required. Such an
administrator will be given letters of administration.
(c) If there is a will, but no executor has been named therein,
or if the executor named is either incompetent or
unwilling, the Court will if necessary appoint an
administrator, but this time he will be called
administrator with a will annexed; and he will be
granted letters of administration with a will annexed. If
several wills are involved, the administrator will be
called an administrator with wills annexed, and he will
be given letters of administration with wills annexed.
(d) A special administrator is one appointed temporarily as
administrator pending the qualification of an executor or
the appointment of an administrator to meet the urgent
needs of the estate.
Disqualifications of Executor or Administrator:
(a) is a minor;
(b) is not a resident of the Philippines;
(c) is in the opinion of the Court unfit to execute the duties
of the trust by reason of drunkenness, improvidence, or
want of understanding or integrity, or by reason of
conviction of an offense involving moral turpitude.
NOTE:
A person with an adverse conflicting interest is unsuitable for
the trust reposed in an administrator of an estate.
Asking a few brief questions to check capability of
administrator is insufficient. There should have been a
detailed full dress hearing on the matter of competency, with
the oppositor being allowed to present his own contrary
evidence. This is so even if the surviving spouse enjoys
preference in appointment as administratrix.
Preference in the Administration:
(a) To the surviving husband or wife, as the case may be, or
next of kin, or both, in the discretion of the Court, or to
such person as such surviving husband or wife, or next
of kin, requests to have appointed if competent, and
willing to serve;
(b) If such surviving husband or wife, as the case may be, or
next of kin, or the person selected by them, be
incompetent or unwilling, or if the husband or wife, or
next of kin neglects for thirty days after the death of the
person to apply for administration or to request that
administration be granted to some other person, it may
be granted to one or more of the principal creditors, if
competent and willing to serve;
(c) If there is no such creditor competent and willing to
serve, it may be granted to such other person as the court
may select (Sec. 6, Rule 78, Rules of Court);
(d) However, the Clerk of Court or any other court employee
is generally looked upon with disfavor in the matter of
appointment as administrator of the estate of a deceased
individual because of possible incompatibility in the
discharge of duties. (Medina v. CA)
GR: If a person should die and he leaves property within the
Philippines, a qualified administrator must be appointed by a
Court of competent jurisdiction. (Utolo v. Passion Vda. de
Garcia)
XPN:
(a) Extrajudicial settlements by agreement between heirs.
(See Rule 74, Sec. 1, Rules of Court). (NO DEBTS).
(b) Summary settlement of estate of small value.
Article 882. The statement of the object of the institution, or
the application of the property left by the testator, or the
Unweeend Notes
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.
This Article refers to what is known as modal institution or
“institution modal” or “institucion sub-modo.’’
This occurs when any or all of the following are stated:
(a) object of the institution — Example: I institute A as my
heir to give him enough money to obtain a legal
education.
(b) application of the property left by the testator —
Example: I institute B as my heir. He will apply the
properties of my estate to the erection of a College of Law
in Ortigas Avenue.
(c) The charge imposed by the testator — Example: I
institute A as my heir. He will devote 10% of the annual
income from my buildings for the establishment of a
professorial chair in Civil Law at the University of
Metropolis.
Modal Institution Compared with Conditional Institution
In a modal institution, the inheritance can be immediately
demanded, provided that security is given (Art. 882); whereas
in an institution with a suspensive condition, even if the heir
wants to give security, he will not be allowed to do so, and
will therefore not be allowed to get the property in the
meantime; instead, the property will be placed under
administration. (Art. 880).
When the condition however is resolutory or is negative, the
property can be taken upon the giving of a security (Art. 879),
and from this point of view, there is hardly any difference
between the modal institution on the one hand and the
resolutory or negative condition upon the other hand.
Some Principles
(a) When in doubt as to whether there is a condition or
merely a mode, consider same as a mode.
(b) When in doubt as to whether there is a mode or merely a
suggestion, consider same only as a suggestion.
(c) “The ‘condition’ suspends but does not obligate; the
‘mode’ obligates but does not suspend (for he who
inherits with a mode is already an heir; one who inherits
conditionally is not yet an heir).”
Article 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.
The 1st par. deals with analogous or substantial compliance.
Example: “Buy a new 2003 BMW.” If this cannot
be obtained, a slightly used 2002 BMW will perhaps be
suitable.
The 2nd par. deals with Constructive Fulfillment. Example: A
institutes a friend B as heir provided B passes the bar of 2003.
If C, a brother of A (and the only surviving relative of A)
inflicts injuries on B such that B cannot take the bar exams for
2002; it is as if B has passed the bar, and B gets the estate. C
here is the person interested in the condition because C, being
the presumptive or legal heir, would have received the estate
had the condition not been fulfilled. To punish C, and to
prevent an injustice being committed upon B, B is entitled to
the estate because the condition in this case shall be deemed
to have been complied with.
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SUCCESSION PREFI NOTES From the Book of Paras and Atty. Lady Love Arreza’s discussion
Article 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.
Article 885. The designation of the day or time when the
effects of the institution of an heir shall commence or cease
shall be valid.
In both cases, the legal heir shall be considered as called to
the succession until the arrival of the period or its
expiration. But in the first case he shall not enter into
possession of the property until after having given
sufficient security, with the intervention of the instituted
heir.
Institutions With a Term
(a) suspensive term or ex die — effects begin from a certain
day (Example: “beginning 2008”)
(b) resolutory term or in diem — effects cease on a certain
day (Example: “up to 2008”)
(c) ex die in diem — from a certain day to a certain day
(Example: “beginning 2008 until 2009”)
SECTION 5
Legitime
Article 886. Legitime is that part of the testator's property
which he cannot dispose of because the law has reserved it
for certain heirs who are, therefore, called compulsory
heirs.
Compulsory heirs are never compelled to accept the legitime
for no one can compel another to receive a gift or an economic
advantage. They are called compulsory, only because the
testator cannot disregard them.
3 Types of Heirs:
Compulsory Heirs- heirs by operation of law.
Legal/Intestate Heirs- heirs when there is no will.
Voluntary Heir- heirs by virtue of a will.
Compulsory Heirs vs. Legal Heirs
Compulsory Heirs Legal Heirs
exists whether or not there’s exists if there is no will.
a will
The law reserves to them the They are called to
part of the estate of the succession only when there
testator. exists no will; not reserved.
Includes: LC, LP, Ill. C, Ill P Compulsory Heirs and
and SS. includes collateral relative,
with reference to order of
succession
THREE SYSTEMS AFFECTING THE LEGITIME
1. System of the LEGITIME (PARTIAL RESERVATION)
- here, a part is for the legitime, a part is for the free
portion.
2. System of TOTAL RESERVATION
- here, everything goes to the compulsory heirs, as long as
there is at least one. Only when there is none is there
freedom to dispose.
3. System of TOTAL FREEDOM OF DISPOSITION
- In this system, there is no legitime. Everything is free.
SYSTEM OF LEGITIME
Purpose of the Legitime
(a) To protect the children and the surviving widow or
widower from the unjustified anger or thoughtlessness
of the other spouse — this is the purpose of the legitime.
(b) If there are no compulsory heirs, it follows that there can
be no legitime.
(c) Legitime may be received from two aspects: first as a
right; and second, as the property itself. This means that
when a person refers to his legitime from his father, he
Unweeend Notes
talks either of the right to succeed to a certain portion of
the inheritance; or he may be referring to the actual
property itself.
(d) The testator cannot deprive his compulsory heirs of their
legitime, except in cases expressly specified by law.
Neither can he impose upon the same any burden,
encumbrance, condition, or substitution of any
whatsoever (Art. 904), except, of course, the condition
that the property will not be divided for a period not
exceeding 20 years.
Dorotheo v. CA
Even if the will was validly executed if the testator provides
for dispositions that deprive or impair the lawful heirs of
their legitime or rightful inheritance according to the laws
on succession, the unlawful provisions/dispositions
thereof cannot be given effect.
(e) Even if a testator does not want to make a compulsory
heir an heir, he cannot do so, because this limitation is
imposed upon him directly by the law. (Ex.: Art. 854 and
Art. 915)
Garcia v. Orozco
A sale made by the surviving spouse (to a sister of a
conjugal lot) to avert the claims of compulsory heirs can be
set aside by the court.
No Right of Compulsory Heirs To Insist That the Legitimes
Be Given in the Form of Property
Dizon-Rivera v. Dizon
While compulsory heirs have a right to the legitime, they
cannot insist that they be paid in the form of property,
whether real or personal, when they are NOT
AVAILABLE, as when the will itself contains a partition of
the estate, specifically assigning the property to various
heirs. In a case like this, the legitimes may be satisfied by
paying CASH.
Article 887. The following are compulsory heirs:
(1) Legitimate children and descendants, with respect to
their legitimate parents and ascendants;
(2) In default of the foregoing, legitimate parents and
ascendants, with respect to their legitimate children and
descendants;
(3) The widow or widower;
(4) Acknowledged natural children, and natural children
by legal fiction;
(5) Other illegitimate children referred to in article 287.
Compulsory heirs mentioned in Nos. 3, 4, and 5 are not
excluded by those in Nos. 1 and 2; neither do they exclude
one another.
In all cases of illegitimate children, their filiation must be
duly proved.
The father or mother of illegitimate children of the three
classes mentioned, shall inherit from them in the manner
and to the extent established by this Code.
Under Art. 185 of the Family Code, there are no more
spurious children. Both the natural and the spurious children
are simply called ILLEGITIMATE CHILDREN having exactly
the same rights. Each of them gets half the share of each
legitimate child, and will be taken from the free portion after
the share of the surviving spouse has been satisfied.
TWO KINDS OF COMPULSORY HEIRS:
(a) Primary compulsory heirs
They get their legitime even in the presence of the other
primary compulsory heirs and even in the presence of the
secondary compulsory heirs. The primary forced heirs are
those mentioned in Nos. 1, 3, 4, and 5, Art. 887.
(b) Secondary compulsory heirs
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SUCCESSION PREFI NOTES From the Book of Paras and Atty. Lady Love Arreza’s discussion
They are those mentioned in No. 2 in Art. 887. They inherit
only in the absence of No. 1 in Art. 887. The father or the
mother of illegitimate children is also a secondary
compulsory heir but only as provided for in Art. 903.

PRIMARY SECONDARY
COMPULSORY HEIRS COMPULSORY HEIRS
(1) Legitimate and their (4) legitimate parents and
descendants (legitimate). ascendants (legitimate)
(Art. 992.) [NOTE: They inherit only in
(2) Surviving Spouse DEFAULT of No. (1).].
(legitimate). (5) illegitimate parents (no
(3) Illegitimate children and other ascendants)
their descendants [NOTE: They inherit only in
(legitimate or illegitimate). DEFAULT of Nos. (1) and
(Art. 902). (3).]

Noble v. Noble
FACTS: A person claiming to be an illegitimate child
wanted to intervene in the probate proceedings. She
alleged that she enjoyed the status of a child of the deceased
and that she had evidence indicating that the decedent was
her father. Should she be allowed to intervene and thus
inherit?
HELD: Generally, she should not be allowed. Mere proof
of filiation is not enough. What is important is recognition
of that filiation. [NOTE: If the claimant was a minor at the
time of the father’s death, she can ask that she be
recognized if she has a ground to compel recognition. This
move for compulsory recognition must be done within four
years after attaining majority. (See Art. 286, Civil Code).].
In-laws are NOT compulsory heirs.
Brothers and Sisters are also NOT compulsory heirs. Neither
are strangers but may have a share of the inheritance, if the
testator so wants provided that the legitimes of the
compulsory heirs are not impaired. In such case, they would
be termed voluntary heirs or devisees or legatees.
Rosales v. Rosales
A surviving spouse is not an intestate heir of his or her
parent-in-law. Neither is a widow (surviving spouse) a
compulsory heir of her parent-in-law in accordance with
the provisions of Art. 887 of the Civil Code.
The aforesaid provision of law refers to the estate of the
deceased spouse in which case the surviving spouse
(widow or widower) is a compulsory heir. It does not apply
to the estate of a parent-in-law. Indeed, the surviving
spouse is considered a third person as regards the estate of
the parent-in-law.
Unweeend Notes
Article 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.
Articles of the Civil Code Involving the Legitimes of
Compulsory Heirs
Art. 888 — Legitimate children and descendants.
Art. 889 — Legitimate parents or ascendants.
Art. 892 —
a) One legitimate child or descendant concurring with
the surviving spouse.
b) Two or more legitimate children or descendants
together with the surviving spouse.
Art. 893 — Legitimate parents or ascendants with the
surviving spouse.
Art. 894 — Illegitimate children with the surviving spouse.
Art. 895 — Legitimate children or descendants with natural
and other illegitimate children.
Art. 896 — Legitimate parents or ascendants and illegitimate
children.
Art. 897 — Surviving spouse with legitimate children or
descendants and natural children.
Art. 898 — Surviving spouse with legitimate children or
descendants and illegitimate children other than natural.
Art. 899 — Surviving spouse with legitimate parents or
ascendants and illegitimate children.
Art. 900 — Surviving spouse alone.
Art. 901 — Illegitimate children, with no other compulsory
heirs.
Art. 903 —
a) Parents of the illegitimate child who leaves neither
legitimate descendants, nor a surviving spouse, nor
illegitimate children.
b) Parents of the illegitimate child with the surviving
spouse.
Article 889. The legitime 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.
Article 890. The legitime reserved for the legitimate parents
shall be divided between them equally; if one of the parents
should have died, the whole shall pass to the survivor.
If the testator leaves neither father nor mother, but is
survived by ascendants of equal degree of the paternal and
maternal lines, the legitime shall be divided equally
between both lines. If the ascendants should be of different
degrees, it shall pertain entirely to the ones nearest in
degree of either line.
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SUCCESSION PREFI NOTES From the Book of Paras and Atty. Lady Love Arreza’s discussion
Division in the Ascending Direct Line
Explanation:
(a) If all (except of course T) survive, the grandparents get
nothing, P500,000 is the legitime of M and F together, so
each gets P250,000. The remaining P500,000 is the free
portion. (Art. 890, Art. 889).
(b) If M predeceased (died before) T, F gets P500,000 as
legitime. The remaining P500,000 is the free portion. GM
and GF cannot represent M, because there is no right of
representation in the ascending line. (Art. 890, 1st par.; Art.
972, 1st par.). Besides, in every inheritance, the relative
nearest in degree excludes the more distant ones, saving
the right of representation when it properly takes place.
(Art. 962).
(c) If M and F predeceased T, and the others are still alive,
the maternal line gets half of the legitime and the paternal
line gets the other half. The maternal line gets P250,000 and
this should be divided equally between GM and GF, who
will get P125,000 each. If GM has also predeceased T, GF
gets all the P250,000 (the legitime of T’s maternal line).
What has been said of the maternal line is also true of the
paternal line. Notice that this rule applies only when the
ascendants are all of equal degree, that is, all are
grandparents. (Art. 890, 2nd par.).
(d) If the only survivors are ascendants of different degrees,
(as when only GM and the mother of PP survive — a case
of grandparent and great grandparent) the legitime
shall pertain entirely to the ones nearest in degree of either
line, that is, GM, the grandmother, being nearer in degree
than the great grandmother, gets the entire legitime. (Art.
890, 2nd par.). This is in line with the principle that as a
rule, the nearer excludes the farther. (Art. 962)
Article 891. The ascendant who inherits from his
descendant any property which the latter may have
acquired by gratuitous title from another ascendant, or a
brother or sister, is obliged to reserve such property as he
may have acquired by operation of law for the benefit of
relatives who are within the third degree and who belong
to the line from which said property came.
Reserva Troncal/ Reserva Lineal
The ascendant who inherits from his descendant owns the
inheritance only till he dies, and at his death, it should NOT
go to anybody whom he desires, but is reserved by the law in
Unweeend Notes
favor of the relatives of such descendant. These relatives must
be within the 3rd degree, to be counted from said descendant.
Reservable properties (reserva troncal, reserva lineal, reserva
familiar, reserva extraordinario, reserva semi-troncal — all are
synonymous)
It exists only in the LEGITIMATE family.
Purpose: To put it back to the line from which it originally
came, and thus prevent outsiders of the line from obtaining
by some special accident or streak of fortune, property that
would otherwise have remained in the line.
Explanation:
(a) M and F are the parents of C. M died leaving a will, one
provision of which gave a parcel of land to C. One week
later, C died without any descendant, and without any will.
The father F then inherited the land. This land is however
subject to what is known as the reserva truncal (or the
reserva lineal). This means that F owns it only till he dies,
and at his death, it should NOT go to anybody whom he
desires, but is reserved by the law in favor of the relatives
of M; in other words, in favor of the line from which the
property came. These relatives must be within the 3rd
degree, to be counted from C.
[Problem — If in the problem given, the property is claimed
by a brother of F and by a brother of M, who should get the
property?
ANS.: The brother of M gets the property as a result of
reserva troncal. (Aglibot v. Mañalac where the Court
applied the provision on reserva troncal).
Modes of transmission in Reserva Troncal:
1. GRATUITOUS TITLE
The transfer from the ascendant to descendant (donation,
remission, testamentary succession, legal succession);
2. OPERATION OF LAW
The transfer from descendant to the another ascendant
(legal succession, or the legitime in the case of
testamentary succession). Ascendant in this case is called
the reservor while the relatives within the third degree
are called reserves
NOTE: A transfer by sale (and delivery) is NOT a transfer by
operation of law.
Frias Chua v. CFI of Negros Occidental
FACTS: When a father died, his son inherited 1/2 of a piece
of land from him (the other 1/2 went to the surviving
spouse, the mother of the child). Upon the death of the son,
his 1/2 share went to his mother by operation of law. The
property had been received from the father out
of his pure generosity, and was therefore gratuitous. Yet
the probate court ordered payment of interests, costs, and
other fees. Is the said 1/2 still considered gratuitous for
the purpose of the rule concerning “reserva troncal”?
HELD: Yes, for it was really a gratuitous object received
from the father, who had not imposed any condition
or burden on the lot. The obligation to pay was imposed
not by the “origin” but by the court. The said 1/2 is
therefore “reservable.
Four people (at least) involved in reserva truncal:
1) ORIGIN
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SUCCESSION PREFI NOTES From the Book of Paras and Atty. Lady Love Arreza’s discussion
- the ascendant or brother or sister from whom the
property came
- must be an ascendant or brother or sister and must be a
LEGITIMATE relative.
- Transmission to propositus must be by gratuitous title
2) PROPOSITUS
- the descendant who acquired the property gratuitously
and whose death gives rise to the reserva, and from
whom therefore the third degree is counted.
- must be a legitimate descendant (or legitimate half-
brother or half-sister) of the origin of the property.
3) RESERVOR or the RESERVISTA
- the ascendant who in turn acquired the property from
the descendant by operation of law (has the duty to
reserve and also duty to annotate)
- there is no obligation to reserve if he inherited the
property from the descendant not by legal succession nor
by virtue of the legitime as when he inherits the free
portion by virtue of a will.
- He is a full owner, subject to a resolutory condition
which is: If at reservor’s death, there should still exist to make the annotation?
relatives within the third degree of the propositus, and
belonging to the line from which the property came, the
reservor’s ownership over the property is terminated.
Hence, the property is not part any more of his estate but period has lapsed, and he has not yet caused the annotation
instead, ownership is transferred to the relatives referred to be made, he can be judicially compelled to make the
to.
- Has the obligation of making the inventory, annotation,
and the giving of security as well as not to substitute the annotation of the reserva — for the simple reason that they
reservable property with others.
4) RESERVEES or RESERVATARIOS
- the relatives within the third degree from the propositus
who will become the full owners of the property the
moment the reservor dies, because by such death, the
reserva is extinguished.
- Should be in the same line to which the property came
- He is not the reservor’s successor mortis causa; nor is the than what the reservor had — full ownership that was
reservable property part of the reservor’s estate: the
reservee receives the property as a conditional heir of the
propositus, said property merely reverting to the line of
origin from which it has temporarily and accidentally
strayed during the reservor’s lifetime.
Requisites for the passing of the title from the reservista to
the reservatario:
(1) death of the reservista; and
(2) the fact that the reservista had survived the reservatario.
If reservor has no CASH and the reservable property is
MONEY, the reservees can either:
1) select equivalent property from the estate;
2) or demand the sale of sufficient property so that cash may
be obtained.
RELATIVES WITHIN THE THIRD DEGREE COUNTED
FROM THE PROPOSITUS:
1st degree: the parents of the propositus.
2nd degree: the grandparents; full and half-brothers; full and
half-sisters of the propositus
3rd degree: the uncles and aunts by blood; the great
grandparents; and the nephews and nieces of the propositus.
BAR QUESTION
May the property subject to reserva be alienated?
ANS.: Inasmuch as the reservor is not a mere usufructuary,
the answer is YES, without prejudice to reimbursement by
his estate concerning personal properties, and without
prejudice to the reservation insofar as real properties are
concerned. (Lunsod v. Ortega)
Riosa v. Rocha
FACTS: Rufina Dizon died, and three parcels of land were
inherited by her childless son. Later, the son died and the
lands were inherited intestate by the father.
Unweeend Notes
ISSUES:
1) What should the father now do insofar as the reservable
property is concerned?
HELD: He must annotate the reservation in the Registry of
Property within 90 days from the time he accepts the
inheritance (if there be NO court litigation) or within 90
days from the time the court awards him the property (if
there be court proceedings). (See also Arts. 199 and 191,
Mortgage Law).
2) Suppose the annotation is not made by the father
(reservor) within the period of 90 days, what is the right of
the existing reservees?
HELD: Their right is to judicially demand that the reservor
comply with his obligation or to demand that a mortgage
be constituted for their security.
3) Suppose within the period of 90 days, the reservoir
alienates the property in favor of a purchaser who knew of
the existence of the reserva, can the purchaser be compelled
HELD: If the 90-day period has not yet lapsed, the
purchaser cannot be compelled yet, because he still has the
opportunity to make the annotation himself. If the 90-day
annotation. Prior to the lapse of the 90-day period, the
reservees cannot be blamed if they fail to cause the
do not yet have the right to compel such annotation.
4) If within the 90-day period, the reservor dies, may the
reservees get the property from the purchaser who had
bought the property — knowing fully well that a reserva
existed?
HELD: Yes, for the purchaser here acquired no better right
subject to a resolutory condition.
5) Suppose the reservor has not yet died, and the 90- day
period has already lapsed, may the reservee compel the
purchaser to annotate the reservation and at the same time
to constitute a mortgage or security?
HELD: Annotation can be compelled, but not the
constitution of the mortgage or the giving of security. This
is because once the annotation is made, the reservor is
amply protected, and therefore, there is no more need for
the security. The property itself, in this case, can answer for
the efficacy of the reserve troncal.
BAR QUESTION
A inherited certain property from his son B, who in turn
had acquired it by inheritance from his deceased mother.
Do you think that A can dispose by will of said property in
favor of his own brothers, provided that at the time of his
death, he should have no compulsory heirs?
ANS.: No, insofar as the property was inherited by A by
legal succession or as part of his legitime in view of the
existence here of reserva troncal.
Does the reserva mentioned in Art. 891 of the Civil Code
apply in favor of all the relatives within the 3rd degree
belonging to the line from which the property came,
whether they be legitimate or illegitimate?
ANS.: The reserva favors only the legitimate relatives
(Nieva v. Alcala) and even then, preference is given to the
direct line as against the collateral line, and the rule of
“nearer excludes the farther” also applies. (Florentino v.
Florentino)
EXTINGUISHMENT OF THE RESERVA:
1) Death of the reservor.
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SUCCESSION PREFI NOTES From the Book of Paras and Atty. Lady Love Arreza’s discussion
2) Death of ALL the would-be reservees AHEAD of the impediment to many each other (Article 269, New Civil
reservor (reservista). Code).
3) LOSS of the reservable properties, provided the reservor
had no fault or negligence. (Thus, LOSS must be
ACCIDENTAL.)
4) Prescription (as when the reservor or stranger holds
property adversely against the reservees, as FREE from
the reserva). (Reservor — 30 years for real; 8 years for
personal property, because of his bad faith)
5) Registration under the Torrens System as free from the
reservation (without prejudice to the liability of the
reservor to the reservees)
6) Renunciation or waiver by ALL the reservees AFTER the
death of the reservoir.
Article 892. If only one legitimate child or descendant of
the deceased survives, the widow or widower shall be
entitled to one-fourth of the hereditary estate. In case of a
legal separation, the surviving spouse may inherit if it was
the deceased who had given cause for the same.
If there are two or more legitimate children or descendants,
the surviving spouse shall be entitled to a portion equal to
the legitime of each of the legitimate children or
descendants.
In both cases, the legitime of the surviving spouse shall be Article 896. Illegitimate children who may survive with
taken from the portion that can be freely disposed of by the legitimate parents or ascendants of the deceased shall be
testator. entitled to one-fourth of the hereditary estate to be taken
Children Referred To from the portion at the free disposal of the testator.
All the children or descendants of the deceased spouse are Article 897. When the widow or widower survives with
included whether they be of the marriage recently dissolved, legitimate children or descendants, and acknowledged
or of any previous marriage. natural children, or natural children by legal fiction, such
surviving spouse shall be entitled to a portion equal to the
Presence of Grandchildren legitime of each of the legitimate children which must be
If there be no children, but there are, say, 6 grandchildren, the taken from that part of the estate which the testator can
share of the surviving spouse should not be the same as the freely dispose of.
share of each of said six descendants, but should be computed NOTE: Art. 897 does not apply when there is only one
on the number of children which said grandchildren are legitimate child, because in such a case, the surviving spouse
supposed to represent, for after all, grandchildren inherit by gets one-fourth the same share as the estate. (Art. 892). She
right of representation. This is also TRUE even if all the should not be given the same share as the lone legitimate child
children repudiate, and the grandchildren inherit in their own because if this were so, the acknowledged natural child would
right, and not by representation. A contrary answer would be left without a legitime.
make it possible for the children to reduce very much the
share of the surviving spouse by the simple expedient of Article 898. If the widow or widower survives with
refusing to accept the inheritance. legitimate children or descendants, and with illegitimate
children other than acknowledged natural, or natural
Article 893. If the testator leaves no legitimate descendants, children by legal fiction, the share of the surviving spouse
but leaves legitimate ascendants, the surviving spouse shall shall be the same as that provided in the preceding article.
have a right to one-fourth of the hereditary estate. Art. 898 does not apply when there is only one legitimate
This fourth shall be taken from the free portion of the estate. child.
Article 894. If the testator leaves illegitimate children, the Rule in Case of Legitimate and Illegitimate Children
surviving spouse shall be entitled to one-third of the Surviving Together (With or Without the Surviving Spouse)
hereditary estate of the deceased and the illegitimate (a) First, give the legitimes of the legitimate children and of
children to another third. The remaining third shall be at the surviving spouse (if any).
the free disposal of the testator. (b) Secondly, give the legitimes of the illegitimate children
Article 895. The legitime of each of the acknowledged in proportion to the legitime of the legitimate children
natural children and each of the natural children by legal (10, 5) — if estate is SUFFICIENT (for in no case should
fiction shall consist of one-half of the legitime of each of the the legitimes of the legitimate children and of the
legitimate children or descendants. surviving spouse be reduced).
The legitime of an illegitimate child who is neither an (c) If estate is NOT SUFFICIENT, just give whatever
acknowledged natural, nor a natural child by legal fiction, remains of the estate to the illegitimate children.
shall be equal in every case to four-fifths of the legitime of
an acknowledged natural child.
The legitime of the illegitimate children shall be taken from
the portion of the estate at the free disposal of the testator,
provided that in no case shall the total legitime of such
illegitimate children exceed that free portion, and that the
legitime of the surviving spouse must first be fully
satisfied.
NATURAL CHILDREN BY LEGAL FICTION
children born of marriages which are void from the beginning
or after the decree of annulment in voidable marriages.
NATURAL CHILDREN
Children born outside of wedlock of parents, who at the time
of conception of the former, were not disqualified by any
Unweeend Notes 13
SUCCESSION PREFI NOTES From the Book of Paras and Atty. Lady Love Arreza’s discussion
deceased who was the party in danger of death at the time of
the marriage; AND if the cause of death is the SAME as the
sickness, illness or injury existing at the time of the marriage
— the purpose of the law being to avoid a marriage purely for
FINANCIAL GAIN.)
XPN to XPN: — Surviving spouse gets one-half if despite
presence of requirements under XPN above, the couple had
been living previously as husband and wife (without
marriage) for more than five years. (Reason: Suspicion of
financial profit motive is more or less erased because of the 5-
year period.).

Article 901. When the testator dies leaving illegitimate

Article 899. When the widow or widower survives with
legitimate parents or ascendants and with illegitimate
children, such surviving spouse shall be entitled to one-
eighth of the hereditary estate of the deceased which must
be taken from the free portion, and the illegitimate children
shall be entitled to one-fourth of the estate which shall be
taken also from the disposable portion. The testator may
freely dispose of the remaining one-eighth of the estate.
NOTE: Art. 899 applies when only the following are present:
(a) at least one legitimate parent or ascendant
(b) surviving spouse
(c) at least one illegitimate child (whether acknowledged
natural or spurious).
(When there are legitimate children or descendants, Art. 899
does not apply.).
Legend: A and B are the legitimate parents of C, the
testator. D is C’s surviving spouse. E and F are the
illegitimate children of C. Give the legitimes of each, if the
estate is P800,000.
ANS.:
(a) A and B together get P400,000 (one-half of the estate). So
each gets P200,000.
(b) D, the surviving spouse, gets P100,000 (or one-eighth of
the estate).
(c) E and F together get P200,000 (one-fourth of the estate),
so each gets P100,000.
(d) The remaining P100,000 (one-eighth) is the free portion.
Article 900. If the only survivor is the widow or widower,
she or he shall be entitled to one-half of the hereditary
estate of the deceased spouse, and the testator may freely
dispose of the other half.
If the marriage between the surviving spouse and the
testator was solemnized in articulo mortis, and the testator
died within three months from the time of the marriage, the
legitime of the surviving spouse as the sole heir shall be
one-third of the hereditary estate, except when they have
been living as husband and wife for more than five years.
In the latter case, the legitime of the surviving spouse shall
be that specified in the preceding paragraph.
GR: — Surviving spouse, if she is the ONLY compulsory heir
left, gets one-half.
XPN: — Surviving spouse gets one-third if:
1) the marriage was in articulo mortis;
2) and the testator or testatrix died within three months from
time of celebration of marriage. (Applies only if it was the
Unweeend Notes
children and no other compulsory heirs, such illegitimate
children shall have a right to one-half of the hereditary
estate of the deceased.
The other half shall be at the free disposal of the testator.
Article 902. The rights of illegitimate children set forth in
the preceding articles are transmitted upon their death to
their descendants, whether legitimate or illegitimate.
Can the illegitimate descendants of legitimate children inherit by
right of representation?
ANS.: No, because of the barrier between the legitimate
family. (See Art. 992)This is unfair because this would place
the illegitimate children of illegitimate children in a better
position than the illegitimate children of legitimate children
contrary to the doctrine set forth in Conde v. Abaya. But then
Art. 992 is the law, and harsh as it is, it must be applied.
Iron Curtain Rule
Aquino vs. Aquino G.R. No. 208912 Dec. 2020
Angela claims to be a nonmarital child of Arturo, who was
a marital child of Miguel Aquino, Angela’s grandparent.
Angela seeks to inherit from the estate of Miguel through
her right of representation, hence, Article 982 of the Civil
Code—which does not make any distinctions or
qualifications as to the birth status of the “grandchildren
and other descendants”—shall apply. However, the
application of Article 982 does not automatically give
Angela the right to inherit from Miguel’s estate.
Issue:
Can Angela automatically inherit from Miguel’s estate?
Held:
NO. The application of Article 982 does not automatically
give Angela the right to inherit from Miguel's estate.
Angela must still prove her filiation. Jurisprudence dictates
illegitimate children who were still minors at the time the
Family Code took effect and whose putative parent died
during their minority are given the right to seek recognition
under Article 285 of the Civil Code for a period of up to
four (4) years from attaining majority age. This vested right
was not impaired by the passage of the Family Code.
Hence, Angela, who was not yet born when the Family
Code took effect, has the right to prove that she was her
father’s daughter under Article 285 of the Civil Code
within four years from attaining the age of majority. Under
Article 402 of the Civil Code, the age of majority is 21 years
old. Angela attained majority on October 9, 1999. She had
until October 9, 2003 to assert her right to prove her filiation
with Arturo. Thus, when she moved to be included in the
distribution and partition of Miguel’s estate on July 17,
2003, she was not yet barred from claiming her filiation.
However, resolving several factual matters raised in the
parties’ pleadings and during the oral arguments requires
receiving additional evidence, which the Court is not
equipped to do. Documents may need to be presented and
authenticated; witnesses’ testimonies received and
examined; and DNA testing ordered and conducted, to
determine the truth or falsity of the allegations raised by
the parties before the Court. The Court finds it prudent to
remand the cases to their court of origin for reception of
evidence, in conformity with the legal principles
articulated in the present case.
14
SUCCESSION PREFI NOTES From the Book of Paras and Atty. Lady Love Arreza’s discussion
Article 903. The legitime of the parents who have an
illegitimate child, when such child leaves neither legitimate
descendants, nor a surviving spouse, nor illegitimate
children, is one-half of the hereditary estate of such
illegitimate child. If only legitimate or illegitimate children
are left, the parents are not entitled to any legitime
whatsoever. If only the widow or widower survives with
parents of the illegitimate child, the legitime of the parents
is one-fourth of the hereditary estate of the child, and that
of the surviving spouse also one-fourth of the estate.
Note that Art. 903 refers only to illegitimate parents and not
to other ascendants like the parents of the illegitimate parents.
(Thus, the rule here is different from the case of the
grandparents of a legitimate child, for they may inherit in
default of both legitimate parents).
Article 904. The testator cannot deprive his compulsory
heirs of their legitime, except in cases expressly specified
by law.
Neither can he impose upon the same any burden,
encumbrance, condition, or substitution of any kind
whatsoever.
GR: Such charge, condition, substitution or encumbrance
upon the legitime, said charge, etc. shall be considered as not
imposed. (Art. 872). They are indeed disregarded and
considered not written, except of course the prohibition to
partition the inheritance, including the legitime, for a period
not exceeding 20 years.
XPN: The compulsory heirs are deprived off their legitime by
expressly disinheriting them in a will, wherein the legal cause
therefor shall be specified. (Arts. 916 and 917).
NOTE: Intentional or unintentional preterition does not
deprive the compulsory heirs of their legitime, and as a matter
of fact, preterition shall annul the institution of heir. (Art. 854). 909, last par.).
Article 905. Every renunciation or compromise as regards
a future legitime between the person owing it and his
compulsory heirs is void, and the latter may claim the same
upon the death of the former; but they must bring to
collation whatever they may have received by virtue of the
renunciation or compromise.
Rationale: The right to a future legitime is a mere expectancy,
an inchoate right regarding future inheritance, hence, it
cannot be made the subject of a contract inasmuch as it is
against public policy.
Article 906. Any compulsory heir to whom the testator has
left by any title less than the legitime belonging to him may
demand that the same be fully satisfied.
Article 907. Testamentary dispositions that impair or
diminish the legitime of the compulsory heirs shall be
reduced on petition of the same, insofar as they may be
inofficious or excessive.
Rationale of Art. 907: The legitimes of the forced heirs should
not be impaired.
Applicable only to:
a. testamentary dispositions (and therefore not to
donations). (Arts. 771 and 772 deal with the reduction of
inofficious donations).
b. can be availed of only by the compulsory heirs.
Article 908. To determine the legitime, the value of the
property left at the death of the testator shall be considered,
deducting all debts and charges, which shall not include
those imposed in the will.
To the net value of the hereditary estate, shall be added the
value of all donations by the testator that are subject to
collation, at the time he made them.
Formula for the Computation of the Net Hereditary Estate:
• Gross Estate - Debts and charges = Net Hereditary Estate
Unweeend Notes
• Net hereditary Estate + Collationable Donation = Net
Distributable Estate
• Net Distributable Estate – Legitimes = free portion
How Value of Estate is Determined:
(a) If there are judicial proceedings where the estate is
settled, the administrator must determine the value of
the estate. For this purpose, he will be helped by a tax-
appraiser. The market value should be the basis.
(b) If there are no judicial proceedings for the settlement of
the estate, the heirs must also determine the value of the
estate, subject to the provisions of the Internal Revenue
Code. Here also, it is the market value that must be
considered. It is however presumed that the assessed
value is the true market value. This presumption may
naturally be rebutted.
Article 909. Donations given to children shall be charged to
their legitime.
Donations made to strangers shall be charged to that part
of the estate of which the testator could have disposed by
his last will.
Insofar as they may be inofficious or may exceed the
disposable portion, they shall be reduced according to the
rules established by this Code.
DONATIONS TO CHILDREN
These should first be imputed to or charged against their
legitime; and if the legitime is not sufficient to cover the
donations, the excess should be charged to the free portion;
and if still excessive, they should be reduced so as not to
impair the legitimes of the others.
DONATIONS TO STRANGERS
Donations to strangers be reduced if found to be inofficious,
that is, if they exceed the amount set for free disposal. (Art.
Donations inter vivos to strangers are also collationable, that
is, considered as advances of the free portion.
Article 910. Donations which an illegitimate child may
have received during the lifetime of his father or mother,
shall be charged to his legitime.
Should they exceed the portion that can be freely disposed
of, they shall be reduced in the manner prescribed by this
Code.
DONATIONS TO ILLEGITIMATE CHILDREN
(a) The donations to said illegitimate children are
collationable.
(b) The donations given to illegitimate children should
never impair the legitime of the legitimate children.
(c) Any donation in excess of the legitime shall be charged
to the free disposal and shall be considered in the same
category as donations to strangers.
Article 911. After the legitime has been determined in
accordance with the three preceding articles, the reduction
shall be made as follows:
(1) Donations shall be respected as long as the legitime can
be covered, reducing or annulling, if necessary, the devises
or legacies made in the will;
(2) The reduction of the devises or legacies shall be pro rata,
without any distinction whatever.
If the testator has directed that a certain devise or legacy be
paid in preference to others, it shall not suffer any
reduction until the latter have been applied in full to the
payment of the legitime.
(3) If the devise or legacy consists of a usufruct or life
annuity, whose value may be considered greater than that
of the disposable portion, the compulsory heirs may choose
between complying with the testamentary provision and
delivering to the devisee or legatee the part of the
inheritance of which the testator could freely dispose.
ORDER OF PREFERENCE IN THE HEREDITARY ESTATE
After the net hereditary estate has been ascertained
15
SUCCESSION PREFI NOTES From the Book of Paras and Atty. Lady Love Arreza’s discussion
(a) First, give the legitimes.
(b) Then the donations inter vivos.
(c) Then the preferred legacies and devises.
(d) Then all other devises and legacies pro rata (in case the
estate is not sufficient).
NOTE: The reduction should of course be made in the inverse
order of payment.
Preference Among Donations
If, there being two or more donations, the disposable portion
is not sufficient to cover all of them, those of the more recent
date shall be suppressed or reduced with regard to the
excess.” (Art. 773, Civil Code). In other words, “first come,
first served.” Suppose the dates of the donation are the same,
what should be done? They should all be proportionately
reduced.
Cross-Reference to Art. 950 (KEYWORD: RPSESA)
Art. 950 of the Civil Code reads as follows: “If the estate
should not be sufficient to cover all the legacies or devises,
their payment shall be made in the following order:
a) Remuneratory legacies or devises;
b) Legacies or devises declared by the testator to be
preferential;
c) Legacies for support;
d) Legacies for education;
e) Legacies or devises of a specific, determinate thing which
forms a part of the estate;
f) all others pro rata.”
Thus, there no conflict between Art. 911 and Art. 950.
1) Art. 911 applies only when aside from the various
legacies and devises, there are legitimes to be preserved
(whether impaired or not by the testamentary
provisions) or there are donations inter vivos which
should be respected as much as possible.
2) Art. 950 applies only when there are no compulsory heirs
or when there are no inofficious donations inter vivos. In
other words, if the reduction concerns itself merely with
the legacies or devises, Art. 950 should be applied.
Rule for Usufruct or Life Annuities
ANNUITY refers to a series of equal payments at fixed
intervals deriving from an original lump-sum investment.
The compulsory heirs are given the right to either comply
with the testamentary provision or merely give a sum of
money or properties equivalent to which is the free portion.
Note that usufructuary has no right to choose. It is the forced
heirs who are given the choice so that the legitime may not be
impaired or jeopardized.
What has been said of a legacy of usufruct may also be said of
a legacy of life annuity. The life annuity should last till the
recipient’s death, and might, therefore, extend for a
conceivably long period of time.
Reason For Separate Paragraph on Usufructs
Because usufructs may be constituted to last till the
usufructuary’s death (Art. 603, par. 1), therefore, the value of
the usufruct may conceivably exceed that of the free
disposable portion of the testator. Hence, the necessity of
granting the compulsory heirs the option hereinabove
referred to.
Article 912. If the devise subject to reduction should consist
of real property, which cannot be conveniently divided, it
shall go to the devisee if the reduction does not absorb one-
half of its value; and in a contrary case, to the compulsory
heirs; but the former and the latter shall reimburse each
other in cash for what respectively belongs to them.
The devisee who is entitled to a legitime may retain the
entire property, provided its value does not exceed that of
the disposable portion and of the share pertaining to him
as legitime.
Unweeend Notes
How To Reduce Inofficious Devises
(a) Example of 1st paragraph: A house worth P2 million
was devised to X, but because it is excessive, it has to
be reduced by P800,000. Since the reduction does not
absorb one-half of its value, the house goes to X, but X
has to pay the compulsory heirs the sum of P800,000.
If the reduction would be to the amount of, say, P1.5
million, the compulsory heirs get the house, but they
have to give to X the sum of P500,000.
(b) If the reduction absorbs exactly half the value, the
devisee should get the house just the same after
proper reimbursement. The intent of the testator must
prevail over the literal statement of the law.
(c) Example of the 2nd paragraph: A was a compulsory
heir entitled to a legitime of P1 million. The free
portion of the estate was P500,000. If A is given a
devise of a house worth P1.5 million, A can retain the
house.
Article 913. If the heirs or devisees do not choose to avail
themselves of the right granted by the preceding article,
any heir or devisee who did not have such right may
exercise it; should the latter not make use of it, the property
shall be sold at public auction at the instance of any one of
the interested parties.
Article 914. The testator may devise and bequeath the free
portion as he may deem fit.
TABLE OF STEPS TO DETERMINE LEGITIMES,
INOFFICIOUS DONATIONS, AND EXCESSIVE
LEGACIES AND DEVISES
(1) From the Value of Property left, SUBTRACT debts and
charges (excluding legacies and devises).
[NOTE: If debts exceed property left, estate is
INSOLVENT. Apply BOOK IV, Title XIX, Civil Code, on
PREFERENCE OF CREDITS (Creditors of insolvent
estate cannot ask that donations be reduced just to satisfy
the credits; however, they can ask for rescission of the
donations made in fraud of creditors). (Art. 772, par. 1;
Art. 1381{3}).].
(2) ADD to No. (1) the VALUE of all the COLLA-
TIONABLE DONATIONS INTER VIVOS (Including
remissions, etc.).
[NOTE: Donations to strangers are also to be ADDED to
the value, so as to determine the net hereditary estate.
(TS, May 4, 1888; TS, June 16, 1902).].
(3) From the NET HEREDITARY ESTATE, determine the
actual legitimes of the compulsory heirs surviving.
(Consult table of legitimes).
(4) CHARGE or IMPUTE Donations
[NOTE:
a) a donation to a COMPULSORY HEIR is charged or
imputed to his legitime; any excess is imputed to the free
disposal. (Arts. 909, 910).
b) a donation to a STRANGER is charged or imputed to
the free disposal; if excessive — reduce. See Art. 909,
pars. 2 and 3.]. [NOTE: If a compulsory heir is
EXEMPTED from collation — apply (b) donation to
stranger. (Art. 1062).].
(5) ADD donations (which are imputed to the free disposal)
to LEGACIES AND DEVISES.
[NOTE: If TOTAL exceeds free disposal — reduce, but
donations are preferred to legacies and devises.].
[NOTE: Since in this case the free disposal is exceeded,
and the legitime has been impaired, apply Art. 911 (not
Art. 950) in reducing the legacies and devises.]
16
SUCCESSION FINALS NOTES From the Book of Paras and Atty. Lady Love Arreza’s discussion
(b) Testamentary dispositions shall be valid to such extent
SECTION 6 as will not impair the legitime.
PRETERITION v. VALID DISINHERITANCE
Disinheritance PRETERITION VALID
DISINHERITANCE
Article 915. A compulsory heir may, in consequence of 1. The omission may be 1. disinheritance is always
disinheritance, be deprived of his legitime, for causes either intentional or intentional (thus, it is an
expressly stated by law. unintentional (implied express deprivation)
DISINHERITANCE deprivation)
It is the process or act, thru a testamentary disposition of 2. may be with cause or 2. cause must always be
depriving in a will any compulsory heir of his legitime for without cause stated in the will; must be
true and lawful causes. true and legal
3. preterition annuls the 3. the disinherited heir
PURPOSE institution; therefore the inherits NOTHING (either
To punish the ungrateful, the culpable, the cruel, the omitted heir inherits by way of legitime, or by
unnatural heir, or an unfaithful spouse to maintain good way of free portion)
order and discipline within the family. 4. may exist with or without 4. a will is always required
Not vengeance BUT RETRIBUTION inasmuch as there can a will (as when everything
possibly be no feelings of vengeance between parents and has been given to only one
children or between husband and wife at the supreme hour of of the compulsory heirs by
death. donation inter vivos).
5. the institution is always 5. may be VALID — when
IMPLICATIONS ON DISINHERITANCE:
VOID — except when the all the requirements of the
1. There is no disinheritance in legal succession since
preterited heir predeceases law are followed.
disinheritance must be made in a WILL.
the testator.
2. Only compulsory heirs can be disinherited, for they
alone are entitled to the legitime.
PRETERITION v. INEFFECTIVE DISINHERITANCE
3. Courts may properly inquire into the validity of a
PRETERITION INEFFECTIVE
disinheritance if the cause for the same is lawful. DISINHERITANCE
4. A disinherited heir is excluded in the legitime as well as
The institution of heirs is The institution remains
from the free portion.
completely annulled. valid, but must be reduced
insofar as the legitime has
been impaired.
Article 916. Disinheritance can be effected only through a
(a) In both cases, the omitted heir and the imperfectly
will wherein the legal cause therefor shall be specified.
disinherited heir get at least their legitime.
REQUISITES FOR A VALID DISINHERITANCE
(b) In both cases, the legacies and devises remain valid
W-E-L-T-E-T-S-I-R
insofar as the legitime has not been impaired.
(a) Must be made in a valid will. (Art. 916).
(c) Both refer to compulsory heirs.
(b) Must be made expressly (See Art. 918) (thus,
disinheritance is NOT presumed).
(c) Must be for a LEGAL CAUSE. (Art. 916). Article 919. The following shall be sufficient causes for the
(d) Must be for a TRUE CAUSE. (Arts. 917 and 918). disinheritance of children and descendants, legitimate as
(e) Must be for an EXISTING CAUSE (no conditional or well as illegitimate:
preventive disinheritance; although the REVOCATION (1) When a child or descendant has been found guilty of an
of a DISINHERITANCE may be conditional. attempt against the life of the testator, his or her spouse,
(f) Must be TOTAL or COMPLETE (not partial). descendants, or ascendants;
(g) The cause must be STATED in the WILL itself (Art. 918). (2) When a child or descendant has accused the testator of
(not necessary in the same will the property is disposed; a crime for which the law prescribes imprisonment for six
the law merely says “a will,” meaning “any will”). years or more, if the accusation has been found groundless;
(h) The heir disinherited must be clearly identified, (3) When a child or descendant has been convicted of
(i) The will must not have been revoked — at least insofar adultery or concubinage with the spouse of the testator;
as the disinheritance is concerned. (4) When a child or descendant by fraud, violence,
intimidation, or undue influence causes the testator to
Article 917. The burden of proving the truth of the cause make a will or to change one already made;
(5) A refusal without justifiable cause to support the parent
for disinheritance shall rest upon the other heirs of the
or ascendant who disinherits such child or descendant;
testator, if the disinherited heir should deny it.
(6) Maltreatment of the testator by word or deed, by the
Article 918. Disinheritance without a specification of the
child or descendant;
cause, or for a cause the truth of which, if contradicted, is
(7) When a child or descendant leads a dishonorable or
not proved, or which is not one of those set forth in this
disgraceful life;
Code, shall annul the institution of heirs insofar as it may
(8) Conviction of a crime which carries with it the penalty
prejudice the person disinherited; but the devises and
of civil interdiction.
legacies and other testamentary dispositions shall be valid
CAUSES FOR DISINHERITANCE OF CHILDREN AND
to such extent as will not impair the legitime.
DESCENDANTS
INEFFECTIVE DISINHERITANCE
Par. 1 a. there should be a final judgment
(a) without giving the cause (NO CAUSE STATED)
b. there must be intent to kill
(b) a cause denied by the heir concerned and not proved by
c. “spouse, descendants, or ascendants” refers
the instituted heir (NOT TRUE CAUSE)
to those of the testator
(c) a cause not given in the law (NOT LEGAL CAUSE)
Par. 2 Elements:
(d) subsequent reconciliation
a) the act of accusing
EFFECTS OF INEFFECTIVE DISINHERITANCE b) the fact that the accusation has been found
(a) The institution of heirs is annulled but only insofar as it groundless
may prejudice the person disinherited. c) the offense or crime charged carries a penalty

Unweeend Notes 1
SUCCESSION FINALS NOTES From the Book of Paras and Atty. Lady Love Arreza’s discussion
of imprisonment for at least six years.
Par. 3 a) there must be a final judgment of conviction
either in the adultery case or in the concubinage
case
Par. 4 Example:
A makes a will because he was threatened with
injury by B, his son, if the will was not made.
Later on, A makes a new will. In this new will,
A can disinherit B.
Par. 5 if the father had been cruel to the son, or had
abandoned the latter, the son would be justified
in refusing to give support.
Par. 6 a) maltreatment by word (slanderous words,
offensive language)
b) maltreatment by deed
Par. 7 a) There need not be final judgment of
conviction.
b) Anything that brings dishonor or disgrace to
the family of the testator merits correction in the (a) A general pardon usually given at the hour of death to
form of disinheritance.
c) “leading a life” implies continuity.
Par. 8 there must be a final judgment of conviction
Article 920. The following shall be sufficient causes for the
disinheritance of parents or ascendants, whether legitimate
or illegitimate:
(1) When the parents have abandoned their children or
induced their daughters to live a corrupt or immoral life, or
attempted against their virtue;
(2) When the parent or ascendant has been convicted of an
attempt against the life of the testator, his or her spouse,
descendants, or ascendants;
(3) When the parent or ascendant has accused the testator
of a crime for which the law prescribes imprisonment for
six years or more, if the accusation has been found to be
false;
(4) When the parent or ascendant has been convicted of
adultery or concubinage with the spouse of the testator;
(5) When the parent or ascendant by fraud, violence,
intimidation, or undue influence causes the testator to
make a will or to change one already made;
(6) The loss of parental authority for causes specified in this
Code;
(7) The refusal to support the children or descendants
without justifiable cause;
(8) An attempt by one of the parents against the life of the
other, unless there has been a reconciliation between them.
CAUSES FOR THE DISINHERITANCE OF PARENTS OR
ASCENDANTS
(1) When the parents have abandoned their children or
induced their daughters to live a corrupt or immoral
life or attempted against their virtue
Abandonment - includes not merely the exposure of the child
or descendant to danger but also the failure to give it due care
or attention. Significant Element: the negligent and careless
failure to perform the duties of parenthood.
(2) When the parent or ascendant has been convicted of an
attempt against the life of the testator, his or her
spouse, descendants or ascendants.
“his or her spouse, descendants, or ascendants” refers to
those of the testator.
Article 921. The following shall be sufficient causes for
disinheriting a spouse:
(1) When the spouse has been convicted of an attempt
against the life of the testator, his or her descendants, or
ascendants;
(2) When the spouse has accused the testator of a crime for
which the law prescribes imprisonment of six years or
more, and the accusation has been found to be false;
(3) When the spouse by fraud, violence, intimidation, or
undue influence cause the testator to make a will or to
change one already made;
Unweeend Notes
(4) When the spouse has given cause for legal separation;
(5) When the spouse has given grounds for the loss of
parental authority;
(6) Unjustifiable refusal to support the children or the other
spouse.
Article 922. A subsequent reconciliation between the
offender and the offended person deprives the latter of the
right to disinherit, and renders ineffectual any
disinheritance that may have been made.
RECONCILIATION
It is the mutual restoration of feelings to the status quo. It is
indeed the resumption of friendly relations.
CHARACTERISTICS OF RECONCILIATION
(1) Reconciliation needs no special form; therefore it may be
express or implied. (implied or presumed reconciliation
if the parties live again in the same house.)
(2) no reconciliation in the following instances:
all who may have offended the testator, unless there
really be a removal of hurt feelings
(b) A pardon not accepted by the disinherited heir.
(c) A pardon which does not specify the heir concerned nor
the act which had been committed
(d) A pardon given by testator in the very same will wherein
he provides for the disinheritance.
Effects of Reconciliation
(a) If no disinheritance has been made yet, no disinheritance
can now be done. (Art. 922).
(b) Disinheritance already made is rendered
INEFFECTUAL; it is as if there had been no
disinheritance
Disinheritance; how revoked:
(a) subsequent reconciliation;
(b) the making of a new will making the disinherited heir an
instituted heir
Article 923. The children and descendants of the person
disinherited shall take his or her place and shall preserve
the rights of compulsory heirs with respect to the legitime;
but the disinherited parent shall not have the usufruct or
administration of the property which constitutes the
legitime.
REPRESENTATION OF THE DISINHERITED HEIR
The heirs of the disinherited heir can represent the latter, but
only insofar as the legitime of said disinherited heir is
concerned.
Reason:
the fault of the heir is not the fault of the representative — and
it would be unjust to punish them.
NOTE: Neither a disinherited spouse nor a disinherited
parent may be represented since there is no representation in
the ascending line.
SECTION 7
Legacies and Devises
Article 924. All things and rights which are within the
commerce of man be bequeathed or devised.
THE GRANT OF LEGACIES AND DEVISES
A legacy is "bequeathed": while a devise is "devised."
Legacy
It is a gift of personal property given in a will.
Devise
It is a gift of real property given in a will.
PURPOSE of LEGACIES AND DEVISES:
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SUCCESSION FINALS NOTES From the Book of Paras and Atty. Lady Love Arreza’s discussion
(1) the compliance by the testator of social duties
(2) his rewarding of the love and devotion of friends and
relatives
(3) his show of gratefulness for acts done to him
(4) his giving of funds to beneficent and charitable
institutions.
Article 925. A testator may charge with legacies and
devises not only his compulsory heirs but also the legatees
and devisees.
The latter shall be liable for the charge only to the extent of
the value of the legacy or the devise received by them. The
compulsory heirs shall not be liable for the charge beyond
the amount of the free portion given them.
DUTY OF GIVING THE LEGACIES AND DEVISES
GR: no one is charged with this duty, it is the estate which
must give the legacies and devises.
XPN: If the testator gives this duty to the compulsory heirs, or
to the legatees and devisees.
Classification of Legacies and Devises According to the
Person or Institution Burdened (Given the Duty of Giving)
(a) Legacy proper — when the estate has the duty to give the
legacy.
(b) Pre-legacy — when the duty is given to the estate but the
gift is given to a specific heir or legatee.
(Example: T in his will gave his car to S, his son. The car is a
pre-legacy.).
Sub-legacies or Sub-devises
(a) A legatee who is bound to give a sub-legacy is liable only
to the extent of the legacy given to him. (Par. 2, Art. 924). NOT OWN
(b) A compulsory heir is bound to give a sub-legacy only
insofar as his legitime has not been impaired. (Par. 2, Art. a testator, knowing of another’s ownership, gives the
924).].
Article 926. When the testator charges one of the heirs
with a legacy or devise, he alone shall be bound.
Should he not charge anyone in particular, all shall be liable
in the same proportion in which they may inherit.
WHEN HEIRS ARE CHARGED
Compulsory heirs charged with a sub-legacy are liable in
proportion not to how much each actually inherits, but only
in proportion to their institution to the free disposal.
Article 927. If two or more heirs take possession of the
estate, they shall be solidarily liable for the loss or
destruction of a thing devised or bequeathed, even though
only one of them should have been negligent.
Article 928. The heir who is bound to deliver the legacy or
devise shall be liable in case of eviction, if the thing is
indeterminate and is indicated only by its kind.
(a) If the legacy or devise to be given by the heir is a specific
thing, the heir cannot be held liable for eviction since he
has no choice.
(b) If the legacy or devise is a burden not on the heir but on
the estate itself, there is no warranty against eviction,
whether the legacy be specific or generic, if there were
court proceedings which ordered the giving of such
legacy or devise.
Generic or Indeterminate
if it is not particularly designated or physically segregated
from all other things belonging to the same class.
Article 929. If the testator, heir, or legatee owns only a part
of, or an interest in the thing bequeathed, the legacy or
devise shall be understood limited to such part or interest,
unless the testator expressly declares that he gives the thing
in its entirety.
THE GRANT OF A PART INTEREST
GR: only the part owned by the testator should be given
(applies whether or not the testator knew that somebody else
partly owned the property.)
Unweeend Notes
XPN: when testator expressly declares that he gives the thing
in its entirety despite the fact that he is only a part-owner.
Article 930. The legacy or devise of a thing belonging to
another person is void, if the testator erroneously believed
that the thing pertained to him. But if the thing bequeathed,
though not belonging to the testator when he made the will,
afterwards becomes his, by whatever title, the disposition
shall take effect.
RATIONALE:
Had the testator known of his non-ownership, the likelihood
is that he would not have given the devise or legacy
If the gift really does not belong to the testator, the law
presumes that the testator was ignorant of his non-ownership.
Thus, as long as the gift does not belong to the testator, we can
presume the gift to be void.
NOTE: While Art. 929 refers to a stranger who is a PARTIAL
owner, Art. 930 refers to property TOTALLY owned by a
stranger.
Article 931. If the testator orders that a thing belonging to
another be acquired in order that it be given to a legatee or
devisee, the heir upon whom the obligation is imposed or
the estate must acquire it and give the same to the legatee
or devisee; but if the owner of the thing refuses to alienate
the same, or demands an excessive price therefor, the heir
or the estate shall only be obliged to give the just value of
the thing.
ORDER TO ACQUIRE THAT WHICH TESTATOR DOES
It may be express or implied. It may be implied because when
property to the legatee or devisee, we can presume that he
really wants the gift to be effective, and we can infer that he
desires the acquisition.
NOTE: If the testator did not know that the thing did not
belong to him, the gift is invalid. A sensu contrario — it would
follow that as long as the testator knows that the thing does
not belong to him, the gift would be VALID.
Article 932. The legacy or devise of a thing which at the
time of the execution of the will already belonged to the
legatee or devisee shall be ineffective, even though another
person may have some interest therein.
If the testator expressly orders that the thing be freed from
such interest or encumbrance, the legacy or devise shall be
valid to that extent.
Article 933. If the thing bequeathed belonged to the legatee
or devisee at the time of the execution of the will, the legacy
or devise shall be without effect, even though it may have
subsequently alienated by him.
If the legatee or devisee acquires it gratuitously after such
time, he can claim nothing by virtue of the legacy or devise;
but if it has been acquired by onerous title he can demand
reimbursement from the heir or the estate.
WHAT SHOULD BE REIMBURSED:
(a) if thru a sale — the price paid therefor
(b) if thru barter — the value of the thing exchanged
(c) if thru an onerous donation — the value of the burden
imposed
WHO REIMBURSES
(a) the estate — if no one has been charged in particular
(b) the heir, legatee, or devisee — who has been charged.
Article 934. If the testator should bequeath or devise
something pledged or mortgaged to secure a recoverable
debt before the execution of the will, the estate is obliged to
pay the debt, unless the contrary intention appears.
The same rule applies when the thing is pledged or
mortgaged after the execution of the will.
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SUCCESSION FINALS NOTES From the Book of Paras and Atty. Lady Love Arreza’s discussion
Any other charge, perpetual or temporary, with which the
thing bequeathed is burdened, passes with it to the legatee
or devisee.
IF THING IS PLEDGED OR MORTGAGED
GR:
The estate must free the property given from:
(a) pledges
(b) mortgages
(c) any other encumbrance or lien (like antichresis), if given to Article 938. A legacy or devise made to a creditor shall
secure or guarantee a recoverable debt.
XPN:
(a) if there be a contrary intention
(b) if the pledge or mortgage was given not to secure a
recoverable debt, but to secure, for example, dutiful
performance of the functions of a position or office.
WHAT NEED NOT BE ELIMINATED
The estate need not free the property given from:
(a) easements
(b) usufructs
(c) leases which are real rights (those for over one year, or
those which are registered, whether the lease be for more than
one year or not)
(d) leases which are in the nature of personal rights
(e) any other charge, perpetual or temporary, with which the
thing bequeathed or devised is burdened.
ALTERNATIVE REMEDIES OF MORTGAGEE
(a) He can ABANDON his security (disregard the mortgage)
and prosecute his claim for his now unsecured credit before
the probate court. He can then share in the general
distribution of the estate to the various creditors.
(b) He can FORECLOSE the mortgage or realize upon the
security by an ordinary action in court making the executor or
administrator the party defendant (at this stage, he
DISREGARDS the probate proceeding).
(c) He can RELY on the mortgage ALONE and foreclose at
any time within the statute of limitations (10 years from date
of maturity). In the meantime, he will NOT receive any share
in the distribution of the other assets of the estate.
Article 935. The legacy of a credit against a third person
or of the remission or release of a debt of the legatee shall
be effective only as regards that part of the credit or debt
existing at the time of the death of the testator.
In the first case, the estate shall comply with the legacy by
assigning to the legatee all rights of action it may have
against the debtor. In the second case, by giving the legatee
an acquittance, should he request one.
In both cases, the legacy shall comprise all interests on the
credit or debt which may be due the testator at the time of
his death.
TWO LEGACIES:
(a) the Legacy of a Credit (against a third person)
A novation of the credit in that the legatee is subrogated in
favor of the testator who is the original creditor.
The legacy of a credit may be generic or specific: generic — if
it refers to all the credits appertaining to the testator; specific
— only if specified credits are mentioned
The executor or administrator may either assign the creditor’s
actions to the legatee or himself collect the credit. In the latter
case, the proceeds should naturally be delivered by him to the
legatee.
(b) the Legacy of the Remission or release of a debt of the
legatee
amounts to a sort of donation mortis causa and is therefore
subject to the rule of inofficious testamentary dispositions;
that is, this may be reduced if the legitime is impaired.
Article 936. The legacy referred to in the preceding article
shall lapse if the testator, after having made it, should
bring an action against the debtor for the payment of his
debt, even if such payment should not have been effected
Unweeend Notes
at the time of his death.
The legacy to the debtor of the thing pledged by him is
understood to discharge only the right of pledge.
Article 937. A generic legacy of release or remission of
debts comprises those existing at the time of the execution
of the will, but not subsequent ones.
not be applied to his credit, unless the testator so expressly
declares.
In the latter case, the creditor shall have the right to collect
the excess, if any, of the credit or of the legacy or devise.
Article 939. If the testator orders the payment of what he
believes he owes but does not in fact owe, the disposition
shall be considered as not written. If as regards a specified
debt more than the amount thereof is ordered paid, the
excess is not due, unless a contrary intention appears.
The foregoing provisions are without prejudice to the
fulfillment of natural obligations.
Article 940. In alternative legacies or devises, the choice is
presumed to be left to the heir upon whom the obligation
to give the legacy or devise may be imposed, or the
executor or administrator of the estate if no particular heir
is so obliged.
If the heir, legatee or devisee, who may have been given the
choice, dies before making it, this right shall pass to the
respective heirs.
Once made, the choice is irrevocable.
In the alternative legacies or devises, except as herein
provided, the provisions of this Code regulating
obligations of the same kind shall be observed, save such
modifications as may appear from the intention expressed
by the testator.
Article 941. A legacy of generic personal property shall be
valid even if there be no things of the same kind in the
estate.
A devise of indeterminate real property shall be valid only
if there be immovable property of its kind in the estate.
The right of choice shall belong to the executor or
administrator who shall comply with the legacy by the
delivery of a thing which is neither of inferior nor of
superior quality.
Article 942. Whenever the testator expressly leaves the
right of choice to the heir, or to the legatee or devisee, the
former may give or the latter may choose whichever he
may prefer.
Article 943. If the heir, legatee or devisee cannot make the
choice, in case it has been granted him, his right shall pass
to his heirs; but a choice once made shall be irrevocable.
Article 944. A legacy for education lasts until the legatee is
of age, or beyond the age of majority in order that the
legatee may finish some professional, vocational or general
course, provided he pursues his course diligently.
A legacy for support lasts during the lifetime of the legatee,
if the testator has not otherwise provided.
If the testator has not fixed the amount of such legacies, it
shall be fixed in accordance with the social standing and
the circumstances of the legatee and the value of the estate.
If the testator or during his lifetime used to give the legatee
a certain sum of money or other things by way of support,
the same amount shall be deemed bequeathed, unless it be
markedly disproportionate to the value of the estate.
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SUCCESSION FINALS NOTES From the Book of Paras and Atty. Lady Love Arreza’s discussion
Article 945. If a periodical pension, or a certain annual,
monthly, or weekly amount is bequeathed, the legatee may
petition the court for the first installment upon the death of others may repudiate the share respectively belonging to
the testator, and for the following ones which shall be due
at the beginning of each period; such payment shall not be
returned, even though the legatee should die before the
expiration of the period which has commenced.
Article 946. If the thing bequeathed should be subject to a
usufruct, the legatee or devisee shall respect such right
until it is legally extinguished.
Article 947. The legatee or devisee acquires a right to the
pure and simple legacies or devises from the death of the
testator, and transmits it to his heirs.
Article 948. If the legacy or devise is of a specific and
determinate thing pertaining to the testator, the legatee or
devisee acquires the ownership thereof upon the death of
the testator, as well as any growing fruits, or unborn
offspring of animals, or uncollected income; but not the
income which was due and unpaid before the latter's death.
From the moment of the testator's death, the thing
bequeathed shall be at the risk of the legatee or devisee,
who shall, therefore, bear its loss or deterioration, and shall
be benefited by its increase or improvement, without
prejudice to the responsibility of the executor or
administrator.
Article 949. If the bequest should not be of a specific and
determinate thing, but is generic or of quantity, its fruits
and interests from the time of the death of the testator shall
pertain to the legatee or devisee if the testator has expressly
so ordered.
Article 950. If the estate should not be sufficient to cover
all the legacies or devises, their payment shall be made in
the following order:
(1) Remuneratory legacies or devises;
(2) Legacies or devises declared by the testator to be
preferential;
(3) Legacies for support;
(4) Legacies for education;
(5) Legacies or devises of a specific, determinate thing
which forms a part of the estate;
(6) All others pro rata.
Article 951. The thing bequeathed shall be delivered with
all its accessories and accessories and in the condition in
which it may be upon the death of the testator.
Article 952. The heir, charged with a legacy or devise, or
the executor or administrator of the estate, must deliver the
very thing bequeathed if he is able to do so and cannot
discharge this obligation by paying its value.
Legacies of money must be paid in cash, even though the
heir or the estate may not have any.
The expenses necessary for the delivery of the thing
bequeathed shall be for the account of the heir or the estate,
but without prejudice to the legitime.
Article 953. The legatee or devisee cannot take possession
of the thing bequeathed upon his own authority, but shall
request its delivery and possession of the heir charged with
the legacy or devise, or of the executor or administrator of
the estate should he be authorized by the court to deliver
it.
Article 954. The legatee or devisee cannot accept a part of
the legacy or devise and repudiate the other, if the latter be
onerous.
Unweeend Notes
Should he die before having accepted the legacy or devise,
leaving several heirs, some of the latter may accept and the
them in the legacy or devise.
Article 955. The legatee or devisee of two legacies or
devises, one of which is onerous, cannot renounce the
onerous one and accept the other. If both are onerous or
gratuitous, he shall be free to accept or renounce both, or to
renounce either. But if the testator intended that the two
legacies or devises should be inseparable from each other,
the legatee or devisee must either accept or renounce both.
Any compulsory heir who is at the same time a legatee or
devisee may waive the inheritance and accept the legacy or
devise, or renounce the latter and accept the former, or
waive or accept both.
Article 956. If the legatee or devisee cannot or is unwilling
to accept the legacy or devise, or if the legacy or devise for
any reason should become ineffective, it shall be merged
into the mass of the estate, except in cases of substitution
and of the right of accretion.
Article 957. The legacy or devise shall be without effect:
(1) If the testator transforms the thing bequeathed in such
a manner that it does not retain either the form or the
denomination it had;
(2) If the testator by any title or for any cause alienates the
thing bequeathed or any part thereof, it being understood
that in the latter case the legacy or devise shall be without
effect only with respect to the part thus alienated. If after
the alienation the thing should again belong to the testator,
even if it be by reason of nullity of the contract, the legacy
or devise shall not thereafter be valid, unless the
reacquisition shall have been effected by virtue of the
exercise of the right of repurchase;
(3) If the thing bequeathed is totally lost during the lifetime
of the testator, or after his death without the heir's fault.
Nevertheless, the person obliged to pay the legacy or
devise shall be liable for eviction if the thing bequeathed
should not have been determinate as to its kind, in
accordance with the provisions of article 928.
Article 958. A mistake as to the name of the thing
bequeathed or devised, is of no consequence, if it is possible
to identify the thing which the testator intended to
bequeath or devise.
Article 959. A disposition made in general terms in favor
of the testator's relatives shall be understood to be in favor
of those nearest in degree.
CHAPTER 3
Legal or Intestate Succession
SECTION 1
General Provisions
Article 960. Legal or intestate succession takes place:
(1) If a person dies without a will, or with a void will, or
one which has subsequently lost its validity;
(2) When the will does not institute an heir to, or dispose of
all the property belonging to the testator. In such case, legal
succession shall take place only with respect to the
property of which the testator has not disposed;
(3) If the suspensive condition attached to the institution of
heir does not happen or is not fulfilled, or if the heir dies
before the testator, or repudiates the inheritance, there
being no substitution, and no right of accretion takes place;
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SUCCESSION FINALS NOTES From the Book of Paras and Atty. Lady Love Arreza’s discussion
(4) When the heir instituted is incapable of succeeding,
except in cases provided in this Code. Article 970. Representation is a right created by fiction of
law, by virtue of which the representative is raised to the
Article 961. If the thing bequeathed should be subject to a place and the degree of the person represented, and
usufruct, the legatee or devisee shall respect such right acquires the rights which the latter would have if he were
until it is legally extinguished. living or if he could have inherited.
Article 962. In every inheritance, the relative nearest in
degree excludes the more distant ones, saving the right of
representation when it properly takes place.
Relatives in the same degree shall inherit in equal shares,
subject to the provisions of article 1006 with respect to
relatives of the full and half blood, and of article 987,
paragraph 2, concerning division between the paternal and
maternal lines.
SUBSECTION 1. Relationship
Article 963. Proximity of relationship is determined by the
number of generations. Each generation forms a degree.
Article 964. A series of degrees forms a line, which may be
either direct or collateral.
A direct line is that constituted by the series of degrees
among ascendants and descendants.
A collateral line is that constituted by the series of degrees
among persons who are not ascendants and descendants,
but who come from a common ancestor.
Article 965. The direct line is either descending or
ascending.
The former unites the head of the family with those who
descend from him.
The latter binds a person with those from whom he
descends.
Article 966. In the line, as many degrees are counted as
there are generations or persons, excluding the progenitor.
In the direct line, ascent is made to the common ancestor.
Thus, the child is one degree removed from the parent, two
from the grandfather, and three from the great-
grandparent.
In the collateral line, ascent is made to the common
ancestor and then descent is made to the person with
whom the computation is to be made. Thus, a person is two
degrees removed from his brother, three from his uncle,
who is the brother of his father, four from his first cousin,
and so forth.
Article 967. Full blood relationship is that existing between
persons who have the same father and the same mother.
Half blood relationship is that existing between persons
who have the same father, but not the same mother, or the
same mother, but not the same father.
Article 968. If there are several relatives of the same degree,
and one or some of them are unwilling or incapacitated to
succeed, his portion shall accrue to the others of the same
degree, save the right of representation when it should take
place.
Article 969. If the inheritance should be repudiated by the
nearest relative, should there be one only, or by all the
nearest relatives called by law to succeed, should there be
several, those of the following degree shall inherit in their
own right and cannot represent the person or persons
repudiating the inheritance.
SUBSECTION 2.
Right of Representation
Unweeend Notes
Article 971. The representative is called to the succession
by the law and not by the person represented. The
representative does not succeed the person represented but
the one whom the person represented would have
succeeded.
Article 972. The right of representation takes place in the
direct descending line, but never in the ascending.
In the collateral line, it takes place only in favor of the
children of brothers or sisters, whether they be of the full
or half blood.
Article 973. In order that representation may take place, it
is necessary that the representative himself be capable of
succeeding the decedent.
Article 974. Whenever there is succession by
representation, the division of the estate shall be made per
stirpes, in such manner that the representative or
representatives shall not inherit more than what the person
they represent would inherit, if he were living or could
inherit.
Article 975. When children of one or more brothers or
sisters of the deceased survive, they shall inherit from the
latter by representation, if they survive with their uncles or
aunts. But if they alone survive, they shall inherit in equal
portions.
Article 976. A person may represent him whose inheritance
he has renounced.
Article 977. Heirs who repudiate their share may not be
represented.
SECTION 2
Order of Intestate Succession
SUBSECTION 1. Relationship
Article 978. Succession pertains, in the first place, to the
descending direct line.
Article 979. Legitimate children and their descendants
succeed the parents and other ascendants, without
distinction as to sex or age, and even if they should come
from different marriages.
An adopted child succeeds to the property of the adopting
parents in the same manner as a legitimate child.
Article 980. The children of the deceased shall always
inherit from him in their own right, dividing the
inheritance in equal shares.
Article 981. Should children of the deceased and
descendants of other children who are dead, survive, the
former shall inherit in their own right, and the latter by
right of representation.
Article 982. The grandchildren and other descendants shall
inherit by right of representation, and if any one of them
should have died, leaving several heirs, the portion
pertaining to him shall be divided among the latter in equal
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SUCCESSION FINALS NOTES From the Book of Paras and Atty. Lady Love Arreza’s discussion
portions. If the widow or widower should survive with brothers and
sisters, nephews and nieces, she or he shall inherit one-half
Article 983. If illegitimate children survive with legitimate of the estate, and the latter the other half.
children, the shares of the former shall be in the
proportions prescribed by article 895.
Article 984. In case of the death of an adopted child, leaving
no children or descendants, his parents and relatives by
consanguinity and not by adoption, shall be his legal heirs.
SUBSECTION 2.
Ascending Direct Line
Article 985. In default of legitimate children and
descendants of the deceased, his parents and ascendants
shall inherit from him, to the exclusion of collateral
relatives.
Article 986. The father and mother, if living, shall inherit in
equal shares.
Should one only of them survive, he or she shall succeed to
the entire estate of the child.
Article 987. In default of the father and mother, the
ascendants nearest in degree shall inherit.
Should there be more than one of equal degree belonging
to the same line they shall divide the inheritance per capita;
should they be of different lines but of equal degree, one-
half shall go to the paternal and the other half to the
maternal ascendants. In each line the division shall be
made per capita.
SUBSECTION 3. Illegitimate Children
Article 988. In the absence of legitimate descendants or
ascendants, the illegitimate children shall succeed to the
entire estate of the deceased.
Article 989. If, together with illegitimate children, there
should survive descendants of another illegitimate child
who is dead, the former shall succeed in their own right
and the latter by right of representation.
Article 990. The hereditary rights granted by the two
preceding articles to illegitimate children shall be
transmitted upon their death to their descendants, who
shall inherit by right of representation from their deceased
grandparent.
Article 991. If legitimate ascendants are left, the illegitimate
children shall divide the inheritance with them, taking one-
half of the estate, whatever be the number of the ascendants
or of the illegitimate children.
Article 992. An illegitimate child has no right to inherit ab
intestato from the legitimate children and relatives of his
father or mother; nor shall such children or relatives inherit
in the same manner from the illegitimate child.
Article 993. If an illegitimate child should die without
issue, either legitimate or illegitimate, his father or mother
shall succeed to his entire estate; and if the child's filiation
is duly proved as to both parents, who are both living, they
shall inherit from him share and share alike.
Article 994. In default of the father or mother, an
illegitimate child shall be succeeded by his or her surviving
spouse who shall be entitled to the entire estate.
Unweeend Notes
SUBSECTION 4.
Surviving Spouse
Article 995. In the absence of legitimate descendants and
ascendants, and illegitimate children and their
descendants, whether legitimate or illegitimate, the
surviving spouse shall inherit the entire estate, without
prejudice.
to the rights of brothers and sisters, nephews and nieces,
should there be any, under article 1001
Article 996. If a widow or widower and legitimate children
or descendants are left, the surviving spouse has in the
succession the same share as that of each of the children.
Article 997. When the widow or widower survives with
legitimate parents or ascendants, the surviving spouse
shall be entitled to one-half of the estate, and the legitimate
parents or ascendants to the other half.
Article 998. If a widow or widower survives with
illegitimate children, such widow or widower shall be
entitled to one-half of the inheritance, and the illegitimate
children or their descendants, whether legitimate or
illegitimate, to the other half.
Article 999. When the widow or widower survives with
legitimate children or their descendants and illegitimate
children or their descendants, whether legitimate or
illegitimate, such widow or widower shall be entitled to the
same share as that of a legitimate child
Article 1000. If legitimate ascendants, the surviving spouse,
and illegitimate children are left, the ascendants shall be
entitled to one-half of the inheritance, and the other half
shall be divided between the surviving spouse and the
illegitimate children so that such widow or widower shall
have one-fourth of the estate, and the illegitimate children
the other fourth.
Article 1001. Should brothers and sisters or their children
survive with the widow or widower, the latter shall be
entitled to one-half of the inheritance and the brothers and
sisters or their children to the other half.
Article 1002. In case of a legal separation, if the surviving
spouse gave cause for the separation, he or she shall not
have any of the rights granted in the preceding articles.
SUBSECTION 5.
Collateral Relatives
Article 1003. If there are no descendants, ascendants,
illegitimate children, or a surviving spouse, the collateral
relatives shall succeed to the entire estate of the deceased
in accordance with the following articles.
Article 1004. Should the only survivors be brothers and
sisters of the full blood, they shall inherit in equal shares.
Article 1005. Should brothers and sisters survive together
with nephews and nieces, who are the children of the
descendant's brothers and sisters of the full blood, the
former shall inherit per capita, and the latter per stirpes.
7
SUCCESSION FINALS NOTES From the Book of Paras and Atty. Lady Love Arreza’s discussion
Article 1006. Should brother and sisters of the full blood
survive together with brothers and sisters of the half blood, Article 1015. Accretion is a right by virtue of which, when
the former shall be entitled to a share double that of the two or more persons are called to the same inheritance,
latter. devise or legacy, the part assigned to the one who
renounces or cannot receive his share, or who died before
Article 1007. In case brothers and sisters of the half blood, the testator, is added or incorporated to that of his co-heirs,
some on the father's and some on the mother's side, are the co-devisees, or co-legatees.
only survivors, all shall inherit in equal shares without
distinction as to the origin of the property Article 1016. In order that the right of accretion may take
place in a testamentary succession, it shall be necessary:
Article 1008. Children of brothers and sisters of the half (1) That two or more persons be called to the same
blood shall succeed per capita or per stirpes, in accordance inheritance, or to the same portion thereof, pro indiviso;
with the rules laid down for brothers and sisters of the full and
blood. (2) That one of the persons thus called die before the
testator, or renounce the inheritance, or be incapacitated to
Article 1009. Should there be neither brothers nor sisters receive it.
nor children of brothers or sisters, the other collateral
relatives shall succeed to the estate. Article 1017. The words "one-half for each" or "in equal
The latter shall succeed without distinction of lines or shares" or any others which, though designating an aliquot
preference among them by reason of relationship by the part, do not identify it by such description as shall make
whole blood. each heir the exclusive owner of determinate property,
shall not exclude the right of accretion.
Article 1010. The right to inherit ab intestato shall not In case of money or fungible goods, if the share of each heir
extend beyond the fifth degree of relationship in the is not earmarked, there shall be a right of accretion.
collateral line.
Article 1018. In legal succession the share of the person
who repudiates the inheritance shall always accrue to his
SUBSECTION 6. co-heirs.
The State
Article 1019. The heirs to whom the portion goes by the
Article 1011. In default of persons entitled to succeed in right of accretion take it in the same proportion that they
accordance with the provisions of the preceding Sections, inherit.
the State shall inherit the whole estate.
Article 1020. The heirs to whom the inheritance accrues
Article 1012. In order that the State may take possession shall succeed to all the rights and obligations which the heir
of the property mentioned in the preceding article, the who renounced or could not receive it would have had.
pertinent provisions of the Rules of Court must be
observed. Article 1021. Among the compulsory heirs the right of
accretion shall take place only when the free portion is left
Article 1013. After the payment of debts and charges, the to two or more of them, or to any one of them and to a
personal property shall be assigned to the municipality or stranger.
city where the deceased last resided in the Philippines, and Should the part repudiated be the legitime, the other co-
the real estate to the municipalities or cities, respectively, in heirs shall succeed to it in their own right, and not by the
which the same is situated. right of accretion.
If the deceased never resided in the Philippines, the whole
estate shall be assigned to the respective municipalities or Article 1022. In testamentary succession, when the right of
cities where the same is located. accretion does not take place, the vacant portion of the
Such estate shall be for the benefit of public schools, and instituted heirs, if no substitute has been designated, shall
public charitable institutions and centers, in such pass to the legal heirs of the testator, who shall receive it
municipalities or cities. The court shall distribute the estate with the same charges and obligations.
as the respective needs of each beneficiary may warrant.
The court, at the instance of an interested party, or on its Article 1023. Accretion shall also take place among
own motion, may order the establishment of a permanent devisees, legatees and usufructuaries under the same
trust, so that only the income from the property shall be conditions established for heirs.
used.

Article 1014. If a person legally entitled to the estate of the

SECTION 2.
deceased appears and files a claim thereto with the court Capacity to Succeed by Will or by
within five years from the date the property was delivered Intestacy
to the State, such person shall be entitled to the possession
of the same, or if sold, the municipality or city shall be Article 1024. Persons not incapacitated by law may succeed
accountable to him for such part of the proceeds as may not by will or ab intestato.
have been lawfully spent. The provisions relating to incapacity by will are equally
applicable to intestate succession.

CHAPTER 4 Article 1025. In order to be capacitated to inherit, the heir,

Provisions Common to Testate and devisee or legatee must be living at the moment the
succession opens, except in case of representation, when it
Intestate Successions is proper.
A child already conceived at the time of the death of the
SECTION 1 decedent is capable of succeeding provided it be born later
Right of Accretion under the conditions prescribed in article 41.

Unweeend Notes 8
SUCCESSION FINALS NOTES From the Book of Paras and Atty. Lady Love Arreza’s discussion
Article 1026. A testamentary disposition may be made to
the State, provinces, municipal corporations, private
corporations, organizations, or associations for religious,
scientific, cultural, educational, or charitable purposes.
All other corporations or entities may succeed under a will,
unless there is a provision to the contrary in their charter or (3) Any person who has accused the testator of a crime
the laws of their creation, and always subject to the same.
Article 1027. The following are incapable of succeeding:
(1) The priest who heard the confession of the testator
during his last illness, or the minister of the gospel
who extended spiritual aid to him during the same
period;
(2) The relatives of such priest or minister of the gospel
within the fourth degree, the church, order, chapter,
community, organization, or institution to which such
priest or minister may belong;
(3) A guardian with respect to testamentary dispositions
given by a ward in his favor before the final accounts
of the guardianship have been approved, even if the
testator should die after the approval thereof;
nevertheless, any provision made by the ward in favor
of the guardian when the latter is his ascendant,
descendant, brother, sister, or spouse, shall be valid;
(4) Any attesting witness to the execution of a will, the
spouse, parents, or children, or any one claiming
under such witness, spouse, parents, or children;
(5) Any physician, surgeon, nurse, health officer or
druggist who took care of the testator during his last
illness;
(6) Individuals, associations and corporations not
permitted by law to inherit.
Article 1028. The prohibitions mentioned in article 739,
concerning donations inter vivos shall apply to
testamentary
provisions.
Article 1029. Should the testator dispose of the whole or
part of his property for prayers and pious works for the
benefit of his soul, in general terms and without specifying
its application, the executor, with the court's approval shall
deliver one-half thereof or its proceeds to the church or
denomination to which the testator may belong, to be used
for such prayers and pious works, and the other half to the
State, for the purposes mentioned in article 1013.
Article 1030. Testamentary provisions in favor of the poor
in general, without designation of particular persons or of
any community, shall be deemed limited to the poor living
in the domicile of the testator at the time of his death, unless
it should clearly appear that his intention was otherwise.
The designation of the persons who are to be considered as
poor and the distribution of the property shall be made by
the person appointed by the testator for the purpose; in
default of such person, by the executor, and should there
be no executor, by the justice of the peace, the mayor, and
the municipal treasurer, who shall decide by a majority of
votes all questions that may arise. In all these cases, the
approval of the Court of First Instance shall be necessary.
The preceding paragraph shall apply when the testator has
disposed of his property in favor of the poor of a definite
locality
Article 1031. A testamentary provision in favor of a
disqualified person, even though made under the guise of
an onerous contract, or made through an intermediary,
shall be void.
Article 1032. The following are incapable of succeeding by
reason of unworthiness:
Unweeend Notes
(1) Parents who have abandoned their children or
induced their daughters to lead a corrupt or immoral
life, or attempted against their virtue;
(2) Any person who has been convicted of an attempt
against the life of the testator, his or her spouse,
descendants, or ascendants;
for which the law prescribes imprisonment for six
years or more, if the accusation has been found
groundless;
(4) Any heir of full age who, having knowledge of the
violent death of the testator, should fail to report it to
an officer of the law within a month, unless the
authorities have already taken action; this prohibition
shall not apply to cases wherein, according to law,
there is no obligation to make an accusation;
(5) Any person convicted of adultery or concubinage
with the spouse of the testator;
(6) Any person who by fraud, violence, intimidation, or
undue influence should cause the testator to make a
will or to change one already made;
(7) Any person who by the same means prevents another
from making a will, or from revoking one already
made, or who supplants, conceals, or alters the latter's
will;
(8) Any person who falsifies or forges a supposed will of
the decedent.
Article 1033. The cause of unworthiness shall be without
effect if the testator had knowledge thereof at the time he
made the will, or if, having known of them subsequently,
he should condone them in writing.
Article 1034. In order to judge the capacity of the heir,
devisee or legatee, his qualification at the time of the death
of the decedent shall be the criterion.
In cases falling under Nos. 2, 3, or 5 of article 1032, it shall
be necessary to wait until final judgment is rendered, and
in the case falling under No. 4, the expiration of the month
allowed for the report.
If the institution, devise or legacy should be conditional,
the time of the compliance with the condition shall also be
considered.
Article 1035. If the person excluded from the inheritance
by reason of incapacity should be a child or descendant of
the decedent and should have children or descendants, the
latter shall acquire his right to the legitime.
The person so excluded shall not enjoy the usufruct and
administration of the property thus inherited by his
children.
Article 1036. Alienations of hereditary property, and acts
of administration performed by the excluded heir, before
the judicial order of exclusion, are valid as to the third
persons who acted in good faith; but the co-heirs shall have
a right to recover damages from the disqualified heir.
Article 1037. The unworthy heir who is excluded from the
succession has a right to demand indemnity or any
expenses incurred in the preservation of the hereditary
property, and to enforce such credits as he may have
against the estate.
Article 1038. Any person incapable of succession, who,
disregarding the prohibition stated in the preceding
articles, entered into the possession of the hereditary
property, shall be obliged to return it together it its
accessions.
He shall be liable for all the fruits and rents he may have
received, or could have received through the exercise of
due diligence.
9
SUCCESSION FINALS NOTES From the Book of Paras and Atty. Lady Love Arreza’s discussion
Article 1039. Capacity to succeed is governed by the law of
the nation of the decedent.
Article 1040. The action for a declaration of incapacity and
for the recovery of the inheritance, devise or legacy shall be
brought within five years from the time the disqualified
person took possession thereof. It may be brought by any
one who may have an interest in the succession.
SECTION 3
Acceptance and Repudiation of the
Inheritance
Article 1041. The acceptance or repudiation of the
inheritance is an act which is purely voluntary and free.
Article 1042.The effects of the acceptance or repudiation
shall always retroact to the moment of the death of the
decedent.
Article 1043. No person may accept or repudiate an
inheritance unless he is certain of the death of the person
from whom he is to inherit, and of his right to the
inheritance.
Article 1044. Any person having the free disposal of his
property may accept or repudiate an inheritance.
Any inheritance left to minors or incapacitated persons
may be accepted by their parents or guardians. Parents or
guardians may repudiate the inheritance left to their wards
only by judicial authorization.
The right to accept an inheritance left to the poor shall
belong to the persons designated by the testator to
determine the beneficiaries and distribute the property, or
in their default, to those mentioned in article 1030.
Article 1045. The lawful representatives of corporations,
associations, institutions and entities qualified to acquire
property may accept any inheritance left to the latter, but
in order to repudiate it, the approval of the court shall be
necessary.
Article 1046. Public official establishments can neither
accept nor repudiate an inheritance without the approval
of the government.
Article 1044. Any person having the free disposal of his
property may accept or repudiate an inheritance.
Any inheritance left to minors or incapacitated persons
may be accepted by their parents or guardians. Parents or
guardians may repudiate the inheritance left to their wards
only by judicial authorization.
The right to accept an inheritance left to the poor shall
belong to the persons designated by the testator to
determine the beneficiaries and distribute the property, or
in their default, to those mentioned in article 1030.
Article 1045. The lawful representatives of corporations,
associations, institutions and entities qualified to acquire
property may accept any inheritance left to the latter, but
in order to repudiate it, the approval of the court shall be
necessary.
Article 1046. Public official establishments can neither
accept nor repudiate an inheritance without the approval
of the government.
Article 1047. A married woman of age may repudiate an
inheritance without the consent of her husband.
Unweeend Notes
Article 1048. Deaf-mutes who can read and write may
accept or repudiate the inheritance personally or through
an agent. Should they not be able to read and write, the
inheritance shall be accepted by their guardians. These
guardians may repudiate the same with judicial approval.
Article 1049. Acceptance may be express or tacit.
An express acceptance must be made in a public or private
document.
A tacit acceptance is one resulting from acts by which the
intention to accept is necessarily implied, or which one
would have no right to do except in the capacity of an heir.
Acts of mere preservation or provisional administration do
not imply an acceptance of the inheritance if, through such
acts, the title or capacity of an heir has not been assumed.
Article 1050. An inheritance is deemed accepted:
(1) If the heirs sells, donates, or assigns his right to a
stranger, or to his co-heirs, or to any of them;
(2) If the heir renounces the same, even though
gratuitously, for the benefit of one or more of his co-
heirs;
(3) If he renounces it for a price in favor of all his co-heirs
indiscriminately; but if this renunciation should be
gratuitous, and the co-heirs in whose favor it is made are
those upon whom the portion renounced should devolve
by virtue of accretion, the inheritance shall not be deemed
as accepted.
Article 1051. The repudiation of an inheritance shall be
made in a public or authentic instrument, or by petition
presented to the court having jurisdiction over the
testamentary or intestate proceedings.
Article 1052. If the heir repudiates the inheritance to the
prejudice of his own creditors, the latter may petition the
court to authorize them to accept it in the name of the heir.
The acceptance shall benefit the creditors only to an extent
sufficient to cover the amount of their credits. The excess,
should there be any, shall in no case pertain to the
renouncer, but shall be adjudicated to the persons to
whom, in accordance with the rules established in this
Code, it may belong.
Article 1053. If the heir should die without having accepted
or repudiated the inheritance his right shall be
transmitted to his heirs.
Article 1054. Should there be several heirs called to the
inheritance, some of them may accept and the others may
repudiate it.
Article 1055. If a person, who is called to the same
inheritance as an heir by will and ab intestato, repudiates
the inheritance in his capacity as a testamentary heir, he is
understood to have repudiated it in both capacities.
Should he repudiate it as an intestate heir, without
knowledge of his being a testamentary heir, he may still
accept it in the latter capacity.
Article 1056. The acceptance or repudiation of an
inheritance, once made, is irrevocable, and cannot be
impugned, except when it was made through any of the
causes that vitiate consent, or when an unknown will
appears.
Article 1057. Within thirty days after the court has issued
an order for the distribution of the estate in accordance
with the Rules of Court, the heirs, devisees and legatees
shall signify to the court having jurisdiction whether they
accept or repudiate the inheritance.
10
SUCCESSION FINALS NOTES From the Book of Paras and Atty. Lady Love Arreza’s discussion
If they do not do so within that time, they are deemed to
have accepted the inheritance.

SECTION 4
Executors and Administrators
Article 1058. All matters relating to the appointment,
powers and duties of executors and administrators and
concerning the administration of estates of deceased
persons shall be governed by the Rules of Court.

Article 1059. If the assets of the estate of a decedent which

can be applied to the payment of debts are not sufficient for
that purpose, the provisions of articles 2239 to 2251 on
Preference of Credits shall be observed, provided that the
expenses referred to in article 2244, No. 8, shall be those
involved in the administration of the decedent's estate.

Article 1060. A corporation or association authorized to

conduct the business of a trust company in the Philippines
may be appointed as an executor, administrator, guardian
of an estate, or trustee, in like manner as an individual;
but it shall not be appointed guardian of the person of a
ward.

SECTION 5
Collation
Article 1061. Every compulsory heir, who succeeds with
other compulsory heirs, must bring into the mass of the
estate any property or right which he may have received
from the decedent, during the lifetime of the latter, by way
of donation, or any other gratuitous title, in order that it
may be computed in the determination of the legitime of
each heir, and in the account of the partition.

Article 1062. Collation shall not take place among

compulsory heirs if the donor should have so expressly
provided, or if the donee should repudiate the inheritance,
unless the donation should be reduced as inofficious.

Article 1063. Property left by will is not deemed subject to

collation, if the testator has not otherwise provided, but
the legitime shall in any case remain unimpaired.

Article 1064. When the grandchildren, who survive with

their uncles, aunts, or cousins, inherit from their
grandparents in representation of their father or mother,
they shall bring to collation all that their parents, if alive,
would have been obliged to bring, even though such
grandchildren have not inherited the property.
They shall also bring to collation all that they may have
received from the decedent during his lifetime, unless the
testator has provided otherwise, in which case his wishes
must be respected, if the legitime of the co-heirs is not
prejudiced

Unweeend Notes 11