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Pointers: ART. 805. Every will, other than a holographic will, must be
10 points MCQ subscribed at the end thereof by the testator himself or by the
90 points Essay testator's name written by some other person in his presence, and
by his express direction, and attested and subscribed by three or
(Read and study Art. 774 to 959)
more credible witnesses in the presence of the testator and of
CHAPTER 1 one another
GENERAL PROVISIONS

ART. 774. – SUCCESSION ART. 776. – INHERITANCE

Succession is a mode of acquisition by virtue of which the property, The inheritance includes all the property, rights and obligations of a
rights and obligations to the extent of the value of the inheritance, of person which are not extinguished by his death.
a person are transmitted through his death to another or others either
by his will or by operation of law. INHERITANCE IS COMPRISED OF:
1. ART. 776 – property, rights & Obligations
IMPORTANT ELEMENTS: 2. ART. 781 – Accruals
1. Mode of acquisition (or ownership)
2. Transfer of property, rights, and obligations to the extent of To reconcile the above two provisions:
the value of the inheritance of a person (called grantor or  While, strictly speaking, accruals to the inheritance
transferor, decedent, testator, or intestate) following the death of the decedent do not form part of
3. Transmission thru death (not during life) hereditary states, they are liable for the payment of the
4. Transmission to another (called grantee, or transferee, heir,
legatee, or devisee) ART. 775. – DECEDENT/ TESTATOR
5. By will or by operation of law In this Title, “decedent” is the general term applied to the person
whose property is transmitted through succession, whether or not he
OBJECT OF SUCCESSION IS INHERITANCE. left a will. If he left a will, he is also called the testator.
FUTURE PROPERTY v. FUTURE INHERITANCE
FUTURE PROPERTY FUTURE INHERITANCE claims of the creditors of the decedent.
 Anything that a person does  Any property or right not in
not own at present but that existence or capable of PROPERTIES:
the person may acquire or determination at the time of GR:
proposes to acquire in the the contract, that a person o RTC has no jurisdiction to pass finally and definitely upon the
future may in the future acquire by ownership of properties involved in probate proceedings or in
succession. the summary settlement of estates.
 Cannot be the object of a
 It may be the object of a contract EXCPTN:
contract and under art. 793, 1. The probate court may do so only for the purpose of
may be disposed of by the determining whether or not a given property should be
testator in hi will included in the inventory of the estate of the deceased, but
such determination is not conclusive and is still subject to a
CAN A FOREIGNER ACQUIRE LANDS IN THE final decision in a separate action to be instituted between the
PHILIPPINES THROUGH SUCCESSION? parties
 YES. 2. the probate court may also determine questions of title to
 Sec. 7, ART. XII, CONSTI: Save in cases of hereditary property, if the parties voluntarily submitted to its
succession, no private lands shall be transferred or jurisdiction, and introduced evidence to prove ownership
conveyed except to individuals, corporations, or
associations qualified to acquire or hold lands of the public RIGHTS:
domain. o ART. 776 expressly specified “Not extinguished by death”
 Following the above-mentioned law, the Constitutional
provision which enables aliens to acquire private lands INTRASMISSIBLE TRANSMISSBLE
does not extend to testamentary succession for otherwise 1. Personal rights because of 1. bring or continue an
the prohibition will be for naught and meaningless. Any their Nature (E.g. family action for forcible entry or
alien would be able to circumvent the prohibition by paying right, relation, support etc.) unlawful detainer
money to a Philippine landowner in exchange for a devise 2. Right to claim 2. compel the execution of a
of a piece of land. (RAMIREZ v. RAMIREZ) acknowledgment or document necessary for
recognition as a natural convenience provided it is
NOTE: Aside from hereditary succession, Filipinos who acquire or child valid and enforceable under
own private lands prior to the grant of their citizenship to foreign 3. Right to hold public or SOF
states, may retain the same. Hence, also an exception to the private office or job. 3. continue a lease contract
Constitutional prohibition. either as lessor or lessee,
unless otherwise provided
o Art. 774 speaks of Succession mortis causa for in the contract
4. Property right in an
ART. 728: Donations which are to take effect upon the death insurance policy) is a vested
of the donor partake of the nature of testamentary provisions, interest (provided, the
and shall be governed by the rules established in the Title on designation of the benefi
Succession. ciary is irrevocable), and as
such is transmissible by
 Must comply with the formalities of a Will hereditary succession,
(Notarial or Holographic Will) unless by the terms of the
policy it is otherwise
provided
MAGLASANG vs. CABATINGAN
3 DISTINGUISHING CHARACTERISTICS OF A DONATION OBLIGATIONS NOT EXTINGUISHED BY DEATH
MORTIS CAUSA: o In general, all obligations are transmissible, unless purely
(1) It conveys no title or ownership to the transferee before the personal or non-transferable by law or contract.
death of the transferor; or what amounts to the same thing, that the
transferor should retain the ownership (full or naked) and control LITONJUA V. MONTILLA
of the property while alive; A creditor of an Heir cannot intervene in the estate proceedings,
cannot therefore ask the court to sell the properties which the HEIR-
(2) That before his death, the transfer should be revocable by the DEBTOR expects to receive. This is because the debts of the
transferor at will, ad nutum; but revocability may be provided for DECEASED himself must first be paid.
indirectly by means of a reserved power in the donor to dispose of
the properties conveyed; and WHEN DOES EXTRAJUDICIAL PARTITION MAY BE
(3) That the transfer should be void if the transferor should survive ALLOWED?
the transferee.  SEC. 1, RULE 74 ROC allows the partition of the estate
For a donation mortis causa to be valid it must conform with the of a deceased person by the heirs, extra judicially or thru
following requisites: an ordinary action for partition, without the fi ling of a

special proceeding and the appointment of an administrator
for the purpose of the settlement of said estate only if the
decedent left no debts and the heirs and legatees are all
of age, or the minors are represented by their judicial
guardians
 REASON: Where the deceased dies without pending
obligations, there is no necessity for the appointment of an
administrator to administer the estate for them, and to
deprive the real owners of their possession to which they
are immediately entitled
ART. 777. – TRANSMISSION OF RIGHT OF SUCCESSION
The rights to the succession are transmitted from the moment of
the death of the decedent.
 Although in reality, ART. 777 cannot apply when there is a will,
because a probate proceeding is necessary.
 If you are a SOLE HEIR - execute an Affidavit of Self-
Adjudication and follow the procedures provided by law.
 If more than one – EXTRAJUDICIAL SETTLEMENT
CONDITIONS UNDER ART. 777:
1. Death
2. Right and properties must be transmissible
3. Transferee is still alive, willing and is capacitated
PRESUMPTIVE DEATH
ART. 390, par. 2 - For purposes of succession, after 10 YEARS; if
disappearance occurred after 75-years of age, 5 YEARS
ART. 391 – 4 YEARS
1. Board on vessel
2. Armed forces who partake in war
3. Danger of death and existence has been unknown
ART. 43 – When there is doubt as to who died first, the person who
alleges that one died prior the other has the burden of proof to prove
the same. Absence of proof, it shall be presumed that they died at
the same time, and there shall be no transmittal of rights from one
to the other.
RATIONALE OF ART. 777:
BUTTE VS. MANUEL UY & SONS, INC
As death extinguishes the juridical capacity of the person, his title to or
dominion over the things he owned in his lifetime comes to an end. The
assets and liabilities of a person at the time of his death constitute his
inheritance that must be transferred to his heirs.
Without a law that recognizes succession as a mode of acquisition, the
death of the decedent would leave his inheritance without an owner,
converting his assets into res nullius and his outstanding obligations without
an obligor, hence the necessity of transmitting the inheritance from the
decedent to his heirs upon the death of the former.
The automatic transmission of the inheritance to the heirs as of the time of
the decedent's death is basic in the Civil Code. As a consequence of this
fundamental rule of succession, the heirs acquire title to the hereditary
estate from the moment of the decedent's death, and from that instant, the
heirs become co-owners of the inheritance. Acquisition of ownership is one
thing; it should not be confused with the right of the things that constitute the
inheritance.
 Still, the rights of the heirs to specific distributive shares of
inheritance is not yet final and are still subject to the
satisfaction of decedent’s liability.
REYES VS. RTC****
The right of the heirs to specific, distributive shares of inheritance
will not be determined until all the debts of the estate of the
decedent are paid. In short, the heirs are only entitled to what
remains after payment of the decedent's debts; whether there will be
residue remains to be seen
THE TIME OF DEATH OF THE DECEDENT IS THE
CRITICAL ELEMENT OF SUCCESSION TO DETERMINE
THE FOLLOWING:
1. The law applicable to the substantive validity of his will;
2. The composition of his assets and their valuation;
3. The outstanding liabilities of the decedent and their
payment;
4. The compulsory heirs who are to succeed the decedent and
their capacity to succeed;
5. The determination of issues relating to preterition; and
6. The timeliness of acceptance or repudiation of the
inheritance and the effects thereof
Is there a Succession Inter vivos?
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 YES. See ART. 50-52: Annulment, or declaration of
nullity of marriage
 Mandates the payment of the legitime of the children
following the annulment or declaration of nullity of
marriage of their parents
JUTIC vs. CA
An affidavit is not a donation inter vivos or mortis causa but a mere
declaration of an intention and a desire. It is not a clear and formal act
of giving or donating.
Palicte v. Hon. Ramolete, et al.
Art. 777 of the Civil Code provides that “the rights to the succession
are transmitted from the moment of the death of the decedent.’’
At the moment of the decedent’s death, the heirs start to own the
property, subject to the decedent’s liabilitie s. In fact, they may
dispose of the same even while the property is under
administration.
If the heirs may dispose of their shares in the decedent’s property
even while it is under administration, with more reason should the
heirs be allowed to redeem redeemable properties despite the
presence of an administrator.
 Nonetheless, other co-owners/co-heirs are entitled to
exercise the right of redemption under ART. 1088, CC
 Pending partition, co-heirs may enter into compromise
agreements as they may deem appropriate even if said
compromise alter the distribution of the estate as
prescribed by the will or testator.
DIFFERENT RULES APPLY TO ESTATES INVOLVING
STOCKS IN CORPORATIONS:
PUNO v. PUNO ENTERPRISE****
Upon the death of a stockholder, the heirs do not automatically
become stockholders of the corporation; neither are they
mandatorily entitled to the rights and privileges of a stockholder.
The stocks must be distributed first to the heirs in estate
proceedings, and the transfer of the stocks must be recorded in the
books of the corporation.
Until a settlement and division of the estate is effected, the stocks of
the decedent are held by the administrator or executor. Consequently,
during such time, it is the administrator or executor who is entitled to
exercise the rights of the deceased as stockholder
ART. 778. – FORMS OF SUCCESSION
Succession may be:
(1) Testamentary; (2) Legal or intestate; or (3) Mixed.
Other Kinds of Succession:
1. COMPULSORY/ UNIVERSAL SUCCESSION OR
SUCCESSION BY AN HEIR - the succession to the
universality or the aliquot portion of the estate of the
decedent
2. PARTICULAR SUCCESSION - which is succession to
the specific portion of the property of the decedent
3. CONTRACTUAL SUCCESSION - happens when future
husbands and wives give to each other in their marriage
settlement future property, which shall be effective upon
their death
4. FREAK SUCCESSION - where there is still succession
even without the intervening effect of succession. This
happens when in a decree of annulment or separation or
nullity of the marriage, the spouses are ordered to deliver to
their children their presumptive legitime.
ART. 779. – TESTAMENTARY SUCCESSION
Testamentary succession is that which results from the designation
of an heir, made in a will executed in the form prescribed by law.
 Takes place when testator died with a valid and operative
will.
 Testator controls to a certain degree the distribution of
his estate. (not full control because he can only distribute
the free portion of the estate)
 A will should be valid extrinsically and intrinsically.
CONDITIONS FOR TESTAMENTARY SUX:
1. Will or through Codicil
2. Designation of heir
3. Observance of the formalities required by law
KINDS: NOTARIAL or HOLOGRAPHIC
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devisees and legatees have been 6. Legatees and devisees succeed

ART. 791: In case of doubt, testamentary succession is preferred paid only to the determinate thing or
to legal or intestate succession. amount given

Art. 780. – MIXED SUCCESSION

Mixed succession is that effected partly by will and partly by
operation of law. COMPULSORY V. VOLUNTARY
COMPULSORY VOLUNTARY
TAKES PLACE IN THE FF CIRCUMSTANCES: 1. May become a compulsory and 1. Can never be a
1. Testator executed a valid, will but failed to distribute the voluntary heir at the same time, compulsory heir
entirety of his estate and no provision as to how the residual if given more than his legitime
property shall be disposed, there being no right of accretion
among the instituted heirs; 2. If CH dies ahead of the testator,
2. Sole provision of the will relates to the appointment of an his legitime is inherited by his
administrator, or the payment of debts, or the acknowledgment own child. 2. the child of a voluntary
of an illegitimate child, or any provision that are not heir who predeceases or
considered as testamentary/property dispositions; dies ahead of the testator
3. If any of the beneficiaries (whether instituted heirs, legatees, gets nothing from said
devisees) is incapable to accept or enter into the inheritance, testator.
there being no substitution, representation, or accretion.

The distribution of the hereditary estate is partly controlled by the

testator and partly controlled by law.
IMPORTANCE OF DISTINCTION:
ART. 781. – AFTER-ACQUIRED PROPERTIES; ACCRUAL
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
 While, strictly speaking, accruals to the inheritance following
the death of the decedent do not form part of hereditary states,
they are liable for the payment of the claims of the creditors of
the decedent.
1. When there is preteritio (ART. 854), the instituted
voluntary heirs do not get anything. The legatees/devisees
retain the properties given to them as long as the legitime is
not impaired.
2. When there is invalid disinheritance, (ART. 918), the
instituted voluntary heir gets nothing while the one who
received properties by way of legacy or devise retains the
property given to them as long as the legitimes of the
compulsory heirs are not impaired.

AFTER-ACQUIRED PROPERTIES
 Property acquired by the testator between the time the will
is made and the time he dies, is NOT given to the
designated heir unless the contrary has been expressly
provided. (Art. 793).
 Such property is acquired PRIOR to the death, not
afterwards.
ART. 782. – HEIRS; DEVISEES & LEGATEES
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.
KINDS OF HEIRS/SUCCESSSORS:
1. COMPULSORY / FORCED HEIRS – Persons who are
not deprived of their inheritance unless there are causes to
disinherit the and said causes are provided by law
2. LEGAL/ INTESTATE HEIRS – heirs who inherit by
operation of law; decedent dies without a will or portion of
the estate was not disposed by will
3. VOLUNTARY, TESTAMENTARY OR TESTATE
HEIR – heirs by virtue of a will; free portion
4. LEGATEE OR DIVISEE – the former succeeds personal
properties, while the latter succeeds immovable or real
properties of the decedent
CHAPTER 2
TESTAMENTARY SUCCESSION
SECTION 1
WILLS
Subsection 1. — WILLS IN GENERAL
ART. 783. - WILL
A will is an act whereby a person is permitted, with the formalities
prescribed by law, to control to a certain degree the disposition of
his estate, to take effect after his death.
ELEMENTS OF A WILL: (PAS-FUC-FRI-DM) ******
1. It is strictly a personal act
 It cannot be delegated to a third person. The
disposition of the will should be the disposition of the
person. Since it is personal, will-making shall not be
made in public. Even if a will is acknowledged before
a notary public, a will is not a public document. Even
a notary public is not required to keep a copy of the
will.
2. There must be animus testandi (intent to make a will)
 One should know that the effect of such document is
to transfer one's properties to a particular person
mentioned in the document.

3. The making of a will is a statutory right, not a natural right

HEIRS LEGATEE & DEVISEED
1. Succeed by general right or 1. Succeed by special or
 The law can withhold testamentary power. Hence, will
universal title to all or an aliquot particular title must be subordinated to law and public policy
part of the estate (Herrerors Vs. Gil, 88 Phil 260)
2. Heirs exist both in testamentary
succession and intestate 2. Legatees and devisees exist 4. It is a solemn or formal act
succession only in testamentary succession  For the will to be valid, each form shall comply with
the rules prescribed by the New Civil Code.
3. The heir, if compulsory, succeeds 3. Legatees and devisees succeed
to the inheritance regardless of the only by testator's will
will of the decedent
5. It is a unilateral act
 The testator cannot condition the validity of his will
4. Quantity cannot be determined 4. Quantity can easily be upon the consent of another
until after liquidation of properties determined
of the estate 6. The testator must be capacitated to make a will

5. Heirs represent the juridical 7. It is free from vitiated consent - the presence of vitiated
personality of the deceased, 5. Legatees and devisees do not consent can cause a disallowance of a will
acquiring his property, rights and represent the juridical
obligations personality of the deceased
because it acquires only 8. It is essentially revocable and ambulatory
6. Heirs succeed to the remainder of properties
the estate after all the debts,

 A testator can revoke his will anytime during his
lifetime, even if already probated. A will is essentially
ambulatory.
9. It is an individual act, as distinguished from a joint act
 The will must contain the act of only one person. Joint
wills are prohibited.
10. It disposes of the testator's estate in accordance to his wishes
 a will must contain a disposition of property. It may
be a direct disposition or indirect disposition, like a
will containing only a disinheritance of an heir (SEA
NGIO Vs. Reyes, G.R. No. 149753, November 27,
2006)
11. It is effective mortis causa
 upon the death of the testator.
ART. 784. – PERSONAL ACT
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.
 The mechanical act of drafting may be entrusted to another, as
long as the disposition itself expresses the testator’s desires, and
all the formalities of the law are complied with
HOLOGRAPHIC v. NOTARIAL WILL
• Holographic wills are supposed to be entirely written, dated and
signed in the hands of the testator. Even the mechanical act of
drafting the will cannot be delegated to a third person. (Castaneda Vs.
Alemany)
• As to notarial wills, the mechanical act of drafting the will can be
delegated to a third person. But the content of the will must be the
disposition of the testator himself.
ART. 785. – DURATION, EFFICACY OR DETERMINATION;
CANNOT BE ENTRUSTED TO TP, IF NAMED
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.
TESTAMENTARY ACTS WHICH CANNOT BE DELEGATED
TO THIRD PERSONS: (DED)
1. The duration of designation of the heirs, devisees or legatees
2. The efficacy of the designation of the heirs, devisees or legatees
3. The determination of the portions which the heirs, devisees, or
legatees are to take, when referred to by name
EXAMPLE: The testator says “I give my land to X for as long as my
friend Y allows,’’ this would be a clear case of illegal delegation of
testamentary power
ART. 786 – DELEGATION TO TP; UNNAMED HLD BUT
CLASS IS SPECIFIED
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 of
money are to be given or applied.
WHAT CAN BE ENTRUSTED BY THE TESTATOR TO A
THIRD PERSON?
1. The distribution of specific property or sums of money to
be given in general to specific classes or causes
2. The designation of the persons, institutions or
establishments to whom such property or sums of money
are to be given or applied
ART. 785 ART. 786
 names of particular persons  particular names are not
are given. designated, BUT the clause
or cause is what is specified
 There is specific property or
 No specific property or sum sums of money
of money
 There is a determination of
persons, establishments or
 What is delegated is institutions to whom the
determination of the portion specific property or sum of
which shall go to the named money is to b given or
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HLD persons (VOID) applied
ART. 787. NON-DELEGATION OF DETERMINATION OF
EFFECTIVITY OF WILL
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.
 Violative of the principle that making of a will is strictly
personal (ART. 784)
EXAMPLE: “I institute X as my heir provided that my friend, Y will
agree.” The institution of X is void, as well as the participation or
delegation of Y
Art. 788. – N CASE OF DOUBT, TESTAMENTARY IS
PREFERRED
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
 REASON: testate succession, provided the will is valid, is
preferred to intestacy
 THE TESTATOR'S WISHES AND INTENTIONS AS
EXPRESSED IN HIS TESTAMENTARY
DISPOSITIONS CONSTITUTE THE FIRST AND
PRINCIPAL LAW IN THE MATTER OF
TESTAMENTS.
RULE:
1) In case of doubt, an interpretation that makes disposition
valid shall be preferred.
 The presumption is that the testator has intended an
effective disposition and not one that is impracticable
or illusory. The policy of the law is to respect and give
effect to the testator's will whenever possible
2) Where language is clear, literal meaning controls.
 Where the language of the testamentary disposition is
expressed clearly and precisely, the only function of
the court is to carry out the intention of the testator as
manifested in the will itself.
ART. 789. – DEFECTIVE OR AMBUGUITY OF
TESTAMENTARY DISPOSITION; LATENT OR PATENT
When there is an imperfect description, or when no person or
property exactly answers the description, mistakes and omissions
must be corrected, if the error appears from the context of the will
or from extrinsic evidence, excluding the oral declarations of the
testator as to his intention; (LATENT)
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. (PATENT)
 In a probate proceeding, generally, the probate court may
only rule on the extrinsic validity of the will.
KINDS OF DEFECT:
1. Imperfect description of a property to be given to a particular
recipient;
2. Imperfect description of a person who is to receive the property;
and
3. Uncertainty on the face of the will on the application of any of its
provisions: i.e. ambiguity of a testamentary disposition
KINDS OF AMBIGUITY
1. Latent or Intrinsic Ambiguity — does not appear on the face of
the will, and is discovered only by extrinsic evidence.
This kind of ambiguity arises:
1. Imperfect description of the heir, legatee, or devisee;
2. Imperfect description of the gift being given;
3. only one recipient is designated but it turns out that
there are two or more who fit the description
4. When 2 or more persons meet the description
5. When two or more things/objects meet the description
2. Patent or Extrinsic Ambiguity - that which appears on the face of
the will itself
1. In this case, extrinsic evidence, as well as the will itself
may be examined (but not the oral declarations of the
testator) to ascertain the testator’s intent,
2. but if after everything has been done, the doubt still
remains, the heirs will be considered as unknown
persons under ART. 844,
HOW TO RESOLVE AMBIGUITIES?
1. INTRINSIC EVIDENCE
 by examining the will. You examine the words used in the will or

PAROL EVIDENCE may be resorted to in order to cure an
ambiguity such as written declarations of the testator
2. EXTRINSIC EVIDENCE/EVIDENCE ALIUNDE
 Evidence that is not found in the will but found outside of the will,
such as letters, documents, persons or investigation
 this is resorted to only upon the failure of the will to cure the error
 Supposed oral declarations of the testator cannot be used because
the testator is already dead
 However, the testimony of the survivor, as well as hearsay
evidence of the deceased, may now be admitted under Sec. 39,
Rule 130 (2019 Amendments to the Revised Rules on Evidence,
A.M. No. 19-08-15) repealing the Dead Man's Statute under Sec.
23, Rule 130 of the Rules of Court.
RABADILLA V. CA
In th e in te rp re ta tio n o f w ills, w h e n a n u n c e rta in ty a rise s o n th e fa c e o f
th e w ills, a s to th e a p p lic a tio n o f o n ly o f its p ro visio n s, th e te sta to r’s
in te n tio n is to b e a sc e rta in e d fro m th e w o rd s o f th e w ills, ta kin g in to
c o n sid e ra tio n th e c irc u m sta n c e s u nd e r w hic h it w a s m a d e . (Art. 789).
Su c h c o n stru c tio n a s w ill su sta in a n d u p h o ld th e w ills in a ll its p a rts m u st
b e a d o p te d .
ART. 790. – WORDS OF THE WILL; ORDINARY & TECHNICAL
SENSE
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. INTENT OF THE TESTATOR TO GOVERN
 construction of wills. the intent of the testator is the
cardinal rule in
SENSE IN WHICH WORDS ARE TO BE TAKEN
 Ordinary Terms
 GENERAL RULE: Give it an ordinary or literal
meaning
 EXCEPTION: If there is an intention to give it
Terms -These are used by persons engaged in
specialized activities in certain fields of
profession.
1. GENERAL RULE: Give it a technical meaning
2. EXCEPTIONS:
1) If the testator himself made the will
and it is very clear that he is
unacquainted or unfamiliar with the
term
2) If it is really the intention of the
testator to give the technical word an
ordinary meaning
2. CIRCUMSTANCES SURROUNDING THE EXECUTION OF
THE WILL
 In order to determine the testator's intention, the court
should place itself as near as possible in his position;
and hence, where the language of the will is ambiguous
or doubtful, should take into consideration the situation
of the testator and the facts and the circumstances
surrounding him at the time the will was executed.
(Solla Vs. Azcueta, 49 Phil. 333)
3. DOUBTFUL LANGUAGE TO BE SUBORDINATED TO
INTENTION
 Where the testator's intention is manifest from the
context of the will and surrounding circumstances but is
obscured by inept and inaccurate modes of expression,
the language will be subordinated to the intention. The
court may depart from the strict wording and read a
word or phrase in a sense different from that which is
ordinarily attributed to it, and for such purpose, may
mold or change the language of the will, such as
restricting its application or supplying omitted words or
phrases. (Rodriguez Vs. CA, G.R. No. L-29264, August
29, 1969)
4. INTENTION OF THE TESTATOR TO BE GATHERED
FROM THE ENTIRE WILL -
 to make disposition operative
 to prevent intestacy
5. PRESUMPTION AS TO INTENTION OF TESTATOR
 The presumption is that the testator intended not to die
intestate either as to the whole of his estate or to every
part thereof.
ART. 791.- WORDS OF A WILL; INTERPRETATION
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. (
INTERPRETATION: Testator do not want to die intestate, testacy is
preferred that intestacy.
Page |5
ART. 792. – INVALIDITY OF ONE OF SEVERAL DISPOSITIONS
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.
EFFECT OF INVALID DISPOSITIONS:
GENERAL RULE:
 Invalidity of one disposition or provision does not necessarily
follow that all the others are also invalid.
 It will not affect the valid ones; remains valid
EXCEPTION:
 Various dispositions are indivisible in intent or nature.
 Entire will is invalidated or the valid dispositions are invalidated if
the testator intends that both the valid and invalid dispositions
are to be indivisible, such that the other dispositions cannot be
given effect if the other dispositions turn out to be invalid.
ART. 793. – AFTER ACQUIRED PROPERTIES
Property acquired after the making of a will shall only pass thereby, as if
the testator had possessed it at the time of making the will, should it
expressly appear by the will that such was his intention.
ART. 781 ART. 791
ACCRUALS AFTER-ACQUIRED
PROPERTIES
Refers to the accruals to the Covers those after-acquired
inheritance after the death of the properties after the execution of the
testator; covers properties arising will up to the time of the death
from the moment of death onwards
Only applies to legacies and
devices and not to inheritance
because the inheritance comprises
the universality or an aliquot
portion of the estate
RULE ON FUTURE PROPERTIES:
GENERAL RULE: Only those properties owned by the testator at the time
of the execution of the will are included.
EXCEPTIONS:
1. Testator expressly provides, in his will, otherwise or that properties
acquired AFTER the execution of his will are included.
2. ART. 836 - If the will is republished or modified by a
subsequent will or codicil
3. ART. 930 – Legacy or device belonging to another person is void
as a general rule because the testator cannot give what he does not
own.
 But if the testator later acquires the ownership, the
legacy or devise can be given effect.
4. ART. 935 - Legacy of credit or remission of debt
EXAMPLE:
LEGACY OF CREDIT
T is the creditor of D to the amount of P1,000,000. T made a will in 2003
giving this credit to X. If by 2006, at T’s death D has paid already P600,000
to T, how much will X get?
ANS: Only the remaining P400,000, which still exists at T’s death.
If upon the other hand, D borrowed P600,000 more instead of paying, how
much will X get, P1,600,000 which represents the total credit, or only
P1,000,000 which represents the credit originally existing at the time the will
was made?
ANS: Only the original P1,000,000, since the extra P600,000 will
be “after-acquired property.” It is clear that Art. 935 cannot apply because
said article contemplates a credit that is reduced, not increased.
[NOTE: It is understood, of course, that the legacy includes all interests on
the credit or debt which may be due the testator at the time of his death.
LEGACY OF REMISSION
T is the creditor of D to the amount of P1,000,000. T made a will in 2002
remitting or waiving D’s debt. This is a legacy of a remission of a debt, in
favor, naturally, of the debtor. If in 2004, D who does not know of the
provision in the will, (and even if he does know) pays P600,000 to T, how
much is the legacy of remission if T subsequently dies?
ANS.: Only P400,000 because this is the debt still remaining at
the time of T’s death, including interests due, if any, of course.
[NOTE: It is important to know how much exactly is the legacy, in order to
determine whether or not it is inoffi cious or impairs the legitime.]
ART. 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
GENERAL RULE:
 All of the testator's rights in property are transmitted because it is
presumed that the testator intended to dispose of his whole interest
in the property.
EXCEPTIONS:

1. If it clearly appears in the will that the testator merely intends to
convey a less interest (Ex. “I hereby give to X the usufruct of my
house.”)
2. If the testator clearly provided that he conveys a greater interest
(Ex.
3. The testator can also give property that he knows is not owned by
him (Arts. 930 and 931), provided it does not belong to the legacy
or devisee
 Art. 931 provides: “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 heirs or the estate shall
only be obliged to give the just value of the thing.”
NOTE: ART. 930: If the testator thought the property was
his, although it is not really his, the legacy or devise is void,
unless the property subsequently becomes his.
ART. 795. – VALIDITY OF WILL AS TO FORM
The validity of a will as to its form depends upon the observance of the
law in force at the time it is made.
 The general rule is that the Legislature can not validate void wills.
KINDS OF VALIDITY OF WILLS: EXTRINSIC & INTRINSIC
1. FORMAL OR EXTRINSIC VALIDITY – Refers to the forms
and solemnities, and the formalities that have to be conformed and
complied with in the execution of the will. Such as: Type of
instrument (Notarial or Holographic), Capacity of the testator,
Qualifications of witnesses.
TWO (2) VIEWPOINTS: Time and Place
 TIME - the law to be observed is the law in force at
the time the will is MADE (executed). (Art. 795)
REASON: The testator cannot possibly and
is not expected to know what law shall
govern in the future.
 PLACE – In relation to the following laws:
ARTICLE 17, CC:
The forms and solemnities of contracts, wills, and other public
instruments shall be governed by the laws of the country in
which they are executed.
When the acts referred to are executed before the diplomatic or
consular officials of the Republic of the Philippines in a foreign
country, the solemnities established by Philippine laws shall be
observed in their execution.
Prohibitive laws concerning persons, their acts or property, and
those which have for their object public order, public policy and
good customs shall not be rendered ineffective by laws or
judgments promulgated, or by determinations or conventions
agreed upon in a foreign country.
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.
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. (n)
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.
RULE:
1. TESTATOR IS A FILIPINO WHO EXECUTES A WILL IN
THE PHILIPPINES
 Philippine laws shall be applied
2. TESTATOR IS A FILIPINO WHO EXECUTES A WILL
ABROAD BEFORE THE DIPLOMATIC OR CONSULAR
OFFICIALS OF THE PHILIPPINES
 Philippine laws shall be applied
3. TESTATOR IS A FILIPINO WHO EXECUTES A WILL
ABROAD NOT BEFORE A DIPLOMATIC OR CONSULAR
OFFICIALS OF THE PHILIPPINES
a) Law of the place where he may be (ART. 815)
b) Law of the place where he executes the will (ART.
17)
 Philippine law – (ART. 815)
4. TESTATOR IS AN ALIEN WHO EXECUTES A WILL
ABROAD
a. Law of the place where the will is executed – (ART.
17)
b. Law of the place of his residence or domicile – (ART.
816)
c. Law of his own country or nationality – (ART. 816)
d. Philippine law – (ART. 816)
Page |6
IN RE: WILL OF RIOSA
In the Philipp ine Isla nd s the la w e xisting a t the da te o f the e xe c utio n o f a will is
c o ntro lling .
Fu rth e rm o re , th e g e n e ra l rule o f sta tu to ry c o n stru c tio n th a t “a ll sta tute s a re to
b e c o nstrue d a s ha ving o nly a p ro spe c tive o pe ra tio n unle ss the purp o se a nd
inte ntio n o f the le g isla ture to g ive the m a re tro spe c tive e ffe c t is e xpre ssly
d e c la re d o r is ne c e ssa rily im plie d fro m the la ng ua g e use d.
In e ve ry c a se o f d o u b t, th e d o ubt m ust b e re so lve d a g a inst the re tro sp e c tive
e ffe c t” a p p lie d to th e la w o f w ills.
ENRIQUEZ v. BADIA
Th e va lid ity o f a w ill a s to fo rm is to b e ju d g e d n o t b y th e la w in fo rc e
a t th e tim e o f th e te sta to r's d e a th o r a t th e tim e th e su p p o se d w ill
is p re se n te d in c o u rt fo r p ro b a te o r w h e n th e p e titio n is d e c id e d b y
th e c o u rt but a t the tim e the instrume nt wa s e xe c ute d.
O n e re a so n in sup p o rt o f th e ru le is th a t a lth o ug h th e w ill o p e ra te s
u p o n a n d a fte r th e d e a th o f th e te sta to r, th e w ish e s o f th e te sta to r
a b o u t th e d isp o sitio n o f his e sta te a m o ng his h e irs a nd a m o ng th e
le g a te e s is g ive n so le m n e xp re ssio n a t th e tim e th e w ill is e xe c u te d ,
a n d in re a lity, th e le g a c y o r b e q ue st th e n b e c o m e s a c o m p le te d
a c t.
ABADA V. ABADA
An a tte sta tio n c la use is m a d e fo r the purp o se o f p re se rving , in pe rm a ne nt fo rm , a
re c o rd o f the fa c ts a tte nding the e xe c utio n o f the will, so tha t in c a se o f fa ilure o f
the m e m o ry o f the subsc ribing witne sse s, o r o the r c a sua lty, the y m a y still be
p ro ve d . A will, the re fo re , sho uld no t b e re je c te d whe re its a tte sta tio n c la use se rve s
the purp o se o f the la w.
Th e C o u rt e xp la in e d th e e xte n t a n d lim its o f th e ru le o n lib e ra l c o n stru c tio n .
Pre c isio n o f la ng ua g e in the d ra fting o f a n a tte sta tio n c la use is d e sira b le .
Ho we ve r, it is no t im p e ra tive th a t a p a rro t-like c o p y o f th e w o rd s o f th e sta tu te b e
m a d e . It is su ffic ie n t if fro m th e la ng ua g e e m plo ye d it c a n re a so na bly be
d e duc e d tha t the a tte sta tio n c la use fulfills wha t the la w e xpe c ts o f it.
2. INTRINSIC VALIDITY – refers to the legalities of wills. (Ex.
Existence of preterition, or invalid disinheritance, or impairment
of legitime)
TWO (2) VIEWPOINTS: Time and Place
 TIME – law enforce at the time of the death of the
decedent
ARTICLE 2263, CC
Rights to the inheritance of a person who died, with or
without a will, before the effectivity of this Code, shall be
governed by the Civil Code of 1889, by other previous
laws, and by the Rules of Court.
The inheritance of those who, with or without a will, die
after the beginning of the effectivity of this Code, shall be
adjudicated and distributed in accordance with this new
body of laws and by the Rules of Court; but the
testamentary provisions shall be carried out insofar as they
may be permitted by this Code.
Therefore, legitimes, betterments, legacies and bequests
shall be respected; however, their amount shall be
reduced if in no other manner can every compulsory
heir be given his full share according to this Code.
(Rule 12a)
EX: A will was executed in 1910 without giving anything to his
illegitimate child.
If he died under the Old Civil Code, the illegitimate child does
not have successful rights.
If he died under the New Civil Code, illegitimate children have
successional rights. Since the testator died during the effectivity
of the New Civil Code, the will intrinsically void.
 PLACE – law enforced is the national law of the
decedent
ARTICLE 16, CC
Real property as well as personal property is subject to the
law of the country where it is situated.
However, intestate and testamentary successions, both
with respect to: (OAI)
1. the order of succession and
2. to the amount of successional rights and to
3. the intrinsic validity of testamentary
provisions,
shall be regulated by the national law of the person
whose succession is under consideration, whatever may be
the nature of the property and regardless of the country
wherein said property may be found.
BELLIS v. BELLIS
A p ro visio n in a fo re ig n e r's will to th e e ffe c t th a t h is p ro p e rtie s
sh a ll b e d istrib u te d in a c c o rd a n c e with Ph ilip p in e la w a n d
n o t with h is n a tio n a l la w , is ille g a l a n d vo id , fo r h is n a tio n a l
la w c a n n o t b e ig n o re d in re g a rd to th o se m a tte rs th a t Artic le
10 — n o w Artic le 16 — o f th e C ivil C o d e sta te s sa id n a tio n a l
la w sh o u ld g o ve rn .
 Page |7

 Art. 796 refers to “all persons,’’ but this should be understood to

CAYETANO vs. LEONIDAS (Ma y 30, 1984)
As a g e n e ra l rule , the p ro b a te c o urt's a utho rity is lim ite d o nly to the e xtrinsic
va lid ity o f the will, the d ue e xe c utio n the re o f, the te sta trix's te sta m e nta ry c a p a c ity
a nd the c o m p lia nc e with the re q uisite s o r so le m nitie s p re sc rib e d b y la w.
Th e in trin sic va lid ity o f th e w ill n o rm a lly c o m e s o nly a fte r th e c o u rt h a s d e c la re d
th a t th e w ill h a s b e e n d uly a u th e n tic a te d . Ho w e ve r, w h e re p ra c tic a l
c o n sid e ra tio n s d e m a n d th a t th e in trin sic va lid ity o f th e w ill b e p a sse d u p o n , e ve n
b e fo re it is p ro b a te d , th e c o u rt sh o u ld m e e t th e issu e .
It is a se ttle d rule th a t a s re g a rd s th e intrinsic va lid ity o f th e p ro visio n s o f th e w ill,
a s p ro vid e d fo r b y Artic le 16(2) a nd 1039 o f the Civil Co d e , the na tio na l la w o f the
d e c e d e nt m ust a p p ly.
MICIANO v. BRIMO
FACTS: A Tu rk e xe c u te d in th e Ph ilip p in e s a w ill, o b se rvin g Ph ilip p in e la w s. In th e
w ill, h e sta te d th a t h e w a n te d h is e sta te d istrib u te d in a c c o rd a n c e w ith Ph ilip p in e
la w o n su c c e ssio n .
ISSUE: Is th e p ro visio n va lid ?
RULING: NO. The p ro visio n is vo id, be c a use the e sta te m ust be d istrib ute d in
a c c o rd a nc e with the la ws o f his c o untry, Turke y, a nd no t the la w o f the Philipp ine s
refer only to natural persons, not juridical ones, like corporations.
This is evident from the requirement of soundness of mind. (Art.
798)
 A convict under civil interdiction is allowed to make a will. This is
because civil interdiction prohibits a disposition of property inter
vivos, not mortis causa. (Art. 34, Revised Penal Code)
ELEMENTS OF TESTAMENTARY SUCCESSION: (NAS-N)****
1) The testator is a natural person.
2) The testator is at least 18 years of age at the time of the execution
of the will.
3) The testator must be of sound mind at the time of the execution of
the will.
4) The testator is not expressly prohibited by law from making the
will.
All these elements must be present at the time of the execution of the will,
otherwise, the will is void.

. Art. 16 p ro vid e s: “Re a l p ro p e rty a s w e ll a s p e rso n a l p ro p e rty is su b je c t to th e la w

o f th e c o u n try w h e re it is situ a te d . ART. 797. – LEGAL CAPACITY
Persons of either sex under eighteen years of age cannot make a will.
Ho w e ve r, inte sta te a nd te sta m e nta ry suc c e ssio n, b o th w ith re sp e c t to :
1) th e o rd e r o f suc c e ssio n
2) the a m o unt o f suc c e ssio na l rig hts
3) a nd the intrinsic va lid ity o f te sta m e nta ry p ro visio ns ART. 798. – SOUND MIND
In order to make a will it is essential that the testator be of sound mind at the
sh a ll b e re g ula te d b y the na tio na l la w o f th e p e rso n w h o se su c c e ssio n is u n d e r
c o n sid e ra tio n , w h a te ve r m a y b e th e n a tu re o f th e p ro p e rty, a n d re g a rd le ss o f the time of its execution
c o untry w he re in sa id p ro p e rty m a y b e fo und .’’
Suppose Turkish law allows the distribution of the property in accordance  soundness of mind must exist at the time of the execution of the
with Philippine law, would the decision still be the same? will, not before nor after.

INSTANCES WHEN THE INTRINSIC VALIDITY OF WILLS OF ART. 799. – WHEN IS A TESTATOR OF SOUND MIND
FOREIGNERS IS GOVERNED BY PHILIPPINE LAWS: To be of sound mind, it is not necessary that the testator be in full
1. DOCTRINE OF PROCESSUAL PRESUMPTION - In the possession of all his reasoning faculties, or that his mind be wholly
absence of evidence of foreign laws, it is presumed that it is the unbroken, unimpaired, or unshattered by disease, injury or other
same as Philippine law. cause.

GENERAL RULE: Foreign laws may not be taken judicial notice It shall be sufficient if the testator was able at the time of making the
of and ha: to be proven like any other fact in dispute between the will to know the nature of the estate to be disposed of, the proper
parties in an proceeding objects of his bounty, and the character of the testamentary act.

EXCEPTIONS: REQUIREMENTS OF A SOUND MIND

1. If the foreign laws are within the actual knowledge of the 1) The testator must know the nature of the estate to be disposed of;
court; or 2) He must know the proper objects of his bounty; and
2. When these laws have been considered before by the court 3) He must know the character of the testamentary act.
in previous case and the parties do not oppose as to the
consideration of the court as to the existence of the foreign GENERAL RULE: Testamentary incapacity invalidates the whole will
law. EXCEPTION: If the incapacity proceeds from a delusion on a particular
subject and the product of such delusion might be declared invalid without
2. RENVOI DOCTRINE (referring back) affecting other portions of the will.
 The testator is a Philippine resident and a national of
another country. The national law of the decedent says SUMMARY OF CASES WITH REGARD TO SOUNDNESS OF MIND
that the intrinsic validity of a will should be governed
INDICATION OF UNSOIUND NOT INDICATIVE OF
by the domiciliary law or the law of his residence o
MIND UNSOUND MIND
domicile. Hence, Philippine law will be applied.
 Albornoz vs. Albornoz:  Torres vs. Lopez de Bueno:
TESTATE ESTATE OF CHRISTENSEN Lack of memory and Senility, Senile Dementia
Re nvo i ta ke s p la c e w h e n th e c o n flic ts rule o f th e fo rum m a ke s a understanding and pre-senile when not complete
dementia  Sancho vs. Abella: Senile
re fe re n c e to a fo re ig n la w , b u t th e fo re ig n la w is fo un d to c o n ta in a
debility, deafness, poor
c o n flic t ru le th a t re tu rn s o r re fe rs th e m a tte r b a c k to th e la w o f th e
 Neyra vs. Neyra: Delirium memory.
fo rum (Re m issio n ). when it beclouds the mind so  Alsua-Betts vs. CA:
as not to understand the Weakness of mind or partial
Th e th e o ry o f th e d o c trin e o f re nvo i is th a t th e c o u rt o f th e fo ru m , in nature of act, extent of imbecility from disease of
d e te rm ining th e q u e stio n b e fo re it, m u st ta ke in to a c c o u n t th e w h o le property, objects of bounty body or from age
la w o f th e o th e r ju risd ic tio n , b u t a lso its rule s a s to c o n flic t o f la w s, a n d  Avelino vs. Dela Cruz:
th e n a p p ly th e la w to th e a c tu a l q u e stio n w hic h th e rule s o f th e o th e r  Torres vs. Lopez de Bueno: Blindness
ju risd ic tio n p re sc rib e Complete senile dementia will  Bagtas vs. Paguio, Jocson
TESTAMENTARY CAPACITY (796-803) result to testamentary vs. Jocson, Cuyugan vs.
SUBSECTION 2. — TESTAMENTARY CAPACITY AND INTENT incapacity Baron: Failure of memory
TESTAMENTARY POWER TESTAMENTARY CAPACITY  Caguioa vs. Calderon:
statutory right to dispose of property by the right to make a will provided certain  Samson vs. Corrales Tan: Insomnia
acts effective mortis causa (a right given conditions are complied with (testator is the positive testimony of  Yap Tua vs. Yap Ca Kuan:
usually as a consequence of ownership not prohibited by law, legally attesting witnesses which Tuberculosis
and respect for family relations) capacitated, sound mind) does not in itself seem  Samson vs. Corrales Tan
TESTAMENTARY POWER- refers to the right or privilege given by the unreasonable as to the mental Quintin: Diabetes
state to the individual to execute wills. condition of the testator must  Galvez vs. Galvez: Cholera
prevail over the professional  Bagtas vs. Paguio: Paralysis
TESTAMENTARY CAPACITY - refers to the qualification of a person to speculations of a non- and loss of speech
execute a will. attending physician  Carilio vs. Jaojoco: Cerebral
NOTE: A person may have testamentary power but no testamentary capacity. Hemorrhage with hemiplegia
There are persons who have testamentary capacity, but they do not have  Hernaez vs. Hernaez: Old
testamentary power, like in some other countries. they may be used age
interchangeably  Neyra vs. Neyra: Delirium;
Sleeping Sickness (Addison's
KINDS OF TESTAMENTARY CAPACITY disease)
1) ACTIVE TESTAMENTARY CAPACITY- refers to the qualifications  Bugnao vs. Ubag: Asthma
of persons to EXECUTE wills
SENILITIY v. SENILE DEMETIA
2) PASSIVE TESTAMENTARY CAPACITY - refers to the Senility (infirmity of old age) should be distinguished from “senile
qualifications of persons to RECEIVE by virtue of a will dementia” (decay of mental faculties).

The latter, when advanced or absolute, may produce unsoundness of

ART. 796. – WHO CAN MAKE WILLS
mind resulting in testamentary incapacity.
All persons who are not expressly prohibited by law may make a willl
Two general qualifications: (1) 18 years old or over; (2) soundness of mind at
the time the will is made. Art. 800. – PRESUMPTION & BURDEN OF PROOF
The law presumes that every person is of sound mind, in the

absence of proof to the contrary.
The burden of proof that the testator was not of sound mind at the
time of making his dispositions is on the person who opposes the
probate of the will;
But if the testator, one month, or less, before making his will was
publicly known to be insane, the person who maintains the
validity of the will must prove that the testator made it during a
lucid interval.
PRESUMPTION:
GR: Every person are sane
BOP: Person against probate of the will
EXCPTN: One month or less, before making the will, testator was
publicly known to be insane
BOP: Person who maintains the validity of the will must
prove that it was made during lucid interval
INSTANCES WHERE UNSOUND MIND IS PRESUMED
1) One month or less, before making the will, testator was
publicly known to be insane
2) Testator was Judicially declared insane before making the
will
3) Testator has insanity of a general or permanent nature
shown to have existed at one time
HOW TO ESTABLISH EVIDENCE OF SOUNDNESS OF
MIND
1. You may use the testimony of the notary public
2. The testimony of the attesting witnesses
3. The testimony of the attending physician
4. The testimony of other witnesses
Art. 801. – SUPERVENING INCAPACITY
Supervening incapacity does not invalidate an effective will, nor is
the will of an incapable validated by the supervening of capacity
Art. 802. – MARRIED WOMAN
A married woman may make a will without the consent of her
husband, and without the authority of the court.
 Apply only when married woman is at least 18 yrs old &
of sound mind
Art. 803.- DISPOSAL BY MARRIED WOMAN IN A WILL
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 CAN THE MARRIED WOMAN OR MAN DISPOSED
OF IN A WILL
1. He/she may dispose of his/her separate property; or
2. He/she may dispose of conjugal/community property.
his/her share in the
NOTES:
 If the spouse disposes of the entire community property, the
disposition is only valid with respect to the portion
pertaining to the share of the spouse who is the testator.
The remaining portion becomes invalid.
 But if the spouse knows that he or she has no right to
dispose of the share or his or her spouse but still he or she
provides in the will that such portion or the entire portion
be given to a certain person, in that case, you will learn
later on that it is valid. What is to be done is for the estate
to acquire the other portion.
FORMALITIES OF NOTARIAL/HOLOGRAPHIC WILL (804-
819)
SUBSECTION 3. — FORMS OF WILLS
TWO (2) TYPES: NOTARIAL or HOLOGRAPHIC WILL
1. NORIAL – that which requires:
i. Attestation clause;
ii. Acknowledgement before a notarial public
ESSENTIAL REQUISITES: ART. 805 - 808
2. HOLOGHRAPHIC – its most important feature is being
entirely written, from date to signature of testator, in the
handwriting of the testator
i. Does not require attestation clause or
acknowledgement
NOTE: In our country, we do not recognize NUNCUPATIVE
WILLS or orally made by testator in contemplation of death, and
before competent witnesses.
Page |8
Art. 804.- WRITING & LANGUAGE OR DIALECT KNOWN
TO TESTATOR
Every will must be in writing and executed in a language or dialect
known to the testator
o If the testator resides in a certain locality, it IS
PRIMA FACIE PRESUMED that he knows the
language or dialect in said locality
ART. 805. –SUBSCRIBED, SIGN, ATTESTATION (FORMAL
REQUIREMENTS OF NOTARIAL WILLS) ****
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 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
FORMAL REQUIREMENTS UNDER ARTICLE 805
(only applies to Notarial Will and must be strictly construed)
1. Subscribed at logical end
2. Presence of testator & one another
3. Marginal signature
4. Numbered correlatively in letters
5. Attestation clause
1.SUBSCRIBED AT LOGICAL END: Subscribed at the end by the
testator himself or the testator's name is written by some other
person in the presence and under the express direction of the
testator
 Subscription means the physical act of signing
 “END” of will means the LOGICAL END, if not signed at
the end of the will, not valid
o The presence of additional dispositions in a notarial
will after the signature of the testator invalidates
the entire will because it affects the form******
i. REASON: Signature no longer considered
“signed in the logical end” thus violative of
forms of will.
 E-signatures cannot be affixed in a will because e-
signatures are applicable only to transactions and contracts
LEANO v . LEANO
Pla c ing o f the c ro ss o p p o site o f h e r n a m e a t th e c o n stru c tio n o f th e in stru m e n t
w a s a su ffic ie n t c o m p lia n c e w ith th e re q u ire m e n ts o f se c tio n 618 o f th e C o d e o f
C ivil Pro c e d u re .
Th e c o u rt b a se d its d e c isio n o n th e p rin c ip le th a t a te sta to r h a s th e rig ht to sig n
the ir will b y m a rk, e xe c ute d a nim o te sta nd i.
But whe n SOMEBODY ELSE write s the te sta to r’s na m e fo r h im , th e m e re p la c ing b y
the te sta to r o f a c ro ss a fte r his na m e , w ith o u t th e re b e in g in th e w ill a sta te m e n t
th a t so m e b o d y h a d sig n e d fo r th e te sta to r, is NOT SUFFICIENT, a n d th e w ill is
c o nsid e re d vo id , n o t b e c a u se o f th e c ro ss, b u t b e c a u se o f fa ilure to sta te the
sig ning o f na m e by so m e bo d y e lse .
2. PRESENCE OF TESTATOR & ONE ANOTHER: Attested and
subscribed by three or more credible witnesses in the presence of
the testator and of one another
 "in the presence of the testator and of one another" -
does not necessarily require actually seeing, but possibility
of seeing without any physical obstruction.
 If 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.
o What is important is that he realizes what is
being done.
TEST OF PRESENCE
 Page |9

o Vision Purpose of numbering the pages of a will:

o Position 1. To guard against fraud;
o Mental apprehension 2. To forestall any attempt to suppress or substitute
o Available senses any of the pages;
3. To afford means of detecting the loss of any of its
JAVELLANA V. LEDESMA
pages;
ISSUE: Wh e th e r o r n o t th e sig n in g a n d se a lin g o f th e w ill o r c o d ic il b y th e n o ta ry
p u b lic o ffic e r in th e a b se n c e o f th e te sta to r a n d w itn e sse s a ffe c ts th e va lid ity o f 4. To prevent any increase or decrease in the pages
th e w ill

RULING: NO. The NCC do e s no t re q uire tha t the sig ning o f the te sta to r, the
5. It must contain an ATTESTATION CLAUSE
witne sse s a nd the no ta ry be a c c o m plishe d in o ne sing le a c t.  It is a mental act; the recital of witnessing the execution of
the will and where they certify that the same was executed
All tha t is re q uire d is tha t e ve ry will m ust b e a c kno wle dg e d be fo re a no ta ry p ublic
b y the te sta to r a nd witne sse s fo r the a uthe ntic ity o f the ir sig na ture s a nd the before them and the manner of its execution
vo lunta rine ss o f the ir a c tio ns.  It contains the utterances reduced into writings of the
The sub se q ue nt sig ning a nd se a ling is no t pa rt o f the a c kno wle dg e m e nt itse lf no r testamentary witness themselves - it is the witnesses, and
o f the te sta m e nta ry a c t. not the testator that is required under ART. 805, CC
 Absence of the attestation clause or failure to sign by the
He nc e , the ir se p a ra te e xe c utio n o ut o f the p re se nc e o f the te sta to r a nd the
witne sse s c a nno t be a vio la tio n o f the rule tha t te sta m e nts attesting witnesses is a fatal defect

3. MARGINAL SIGNATURE: The testator or the person requested WHAT DO THE SUBSCRIBING WITNESSES ATTEST TO?
by him to write his name and the credible witnesses of the will shall 1. Genuineness of the signature of the testator; and
sign each and every page of the will, on the left margin, except the 2. The due execution of the will
last page
 Marginal witnesses are also the subscribing witnesses WHAT SHOULD THE ATTESTATION CLAUSE STATE?
 The purpose of the signing at the left-hand margin of the 1. The number of pages used upon which the will is written
will is to identify the pages and prevent fraud 2. The fact that the:
o although the law says “left margin,” the purpose is a. testator signed the will and every page thereof,
served if they are on the “right, top, or bottom margin or caused some other person to write his name,
under his express direction;
GENERAL RULE: Absence of a signature on the first b. signing by the testator or by the person requested
page of the will invalidates the will. by him in the presence of the instrumental
witnesses; and
EXCEPTIONS: c. latter witnessed and signed the will and all he
1. Will contains only one page, pages thereof in the presence of the testator and
o no marginal signatures are needed since of one another.
these would be purposeless as the page
already has, at the end thereof, all the PURPOSES OF THE ATTESTATION CLAUSE:
necessary signatures 1. Preserve in permanent form a record of the
2. Inadvertent lifting of pages. facts attending the execution of the will
a. so that in case of failure of the memory
4. NUMBERED CORRELATIVELY IN LETTERS: All the pages of the subscribing witnesses, or any
shall be numbered correlatively in letters placed on the upper part other casualty, they may still be proved.
of each page 2. Available proof that there has been a compliance
 As long as it the page number has a physical location, the with the statutory requisites for the execution of
will is still valid. The page number may even be the will.
incorporated in the text of the document itself 3. Minimize the commission of fraud or undue
influence.

ABANGAN v. ABANGAN ATTESTATION v. SUBSCRIPTION

Th e o b je c t o f re q uiring th a t e ve ry p a g e o f a w ill m ust b e num be re d ATTESTATION SUBSCRIPTION
c o rre la tive ly in le tte rs p la c e d o n th e u p p e r p a rt o f the sh e e t is to kno w Mental act of the senses. You Mechanical act of the hand.
whe the r a ny she e t o f the will ha s be e n re m o ve d .
see, smell, feel etc.
Bu t w h e n a ll th e d isp o sitive p a rts o f a w ill (a s in th e insta n t c a se ) a re Consists in witnessing the The signing of the witnesses
w ritte n o n o ne she e t o nly, th e o bje c t o f the sta tute disa ppe a rs, testators execution of the will in name upon the same paper for
b e c a u se th e re mo va l o f this sing le she e t c a nno t be hidde n. order to see and take note the purpose of identification of
mentally that those things are such paper as a will executed by
done which the statutes require the testator.
for the execution of the will and
that the signature of the testator
exist as a fact.
The purpose is to render The purpose is identification
available proof of the
authenticity of the will and its
due execution.
act of the witnesses Act of the testator when the
testator signs the will or the
witnesses if the witnesses
affixed their signature in the will
To attest a will is to know that it was To subscribe a paper published as a
published as such and to certify the will is only to write on the same
fact required to constitute an actual paper then names of the witnesses for
or legal publication. the sole purpose of identification.
 P a g e | 10

TESTATE ESTATE OF ABADA vs. ABAJA LANGUAGE; SUBSTANTIAL COMPLIANCE OF

FACTS: Th e m a tte r in d isp u te in th e p re se n t c a se is th e a tte sta tio n ATTESTATION
c la u se in th e w ill o f Ab a d a . In the absence of bad faith, forgery, or fraud, or undue and improper
C a p ulo ng a lle g e d th a t a tte sta tio n c la u se :
pressure and influence, defects and imperfections in the form of
 fa ils to sta te e xp re ssly th a t th e te sta to r sig ne d th e w ill a n d its attestation or in the language used therein shall not render the will
e ve ry p a g e in th e p re se n c e o f th re e w itn e sse s, a n d invalid if it is proved that the will was in fact executed and attested
 it d o e s n o t in d ic a te th e n u m b e r o f w itn e sse s; in substantial compliance with all the requirements of Article 805.
 w ill is n o t a c kno w le d g e d b e fo re a n o ta ry p u b lic 4. Applies only to attestation clause which covers only:
o FORM; and
ISSUE:
Wh e th e r o r n o t th e a tte sta tio n c la use c o m p lie s w ith th e re q uire m e n ts o LANGUAGE
o f th e a p p lic a b le la w s.
When is there substantial compliance?
RULING: 5. When there was an HONEST ATTEMPT on the part of the
YES. Any de fe c ts in the a tte sta tio n c la use do no t inva lida te the will.
testator to comply with the formal requisites provided by
An a tte sta tio n c la use is m a d e fo r th e purpo se o f pre se rving , in law.
pe rm a ne nt fo rm , a re c o rd o f the fa c ts a tte nding the e xe c utio n o f the 6. Art. 809 implies that as long as the purpose of attestation
will, so th a t in c a se o f fa ilure o f the m e mo ry o f th e subsc ribing
clause is obtained, the same should be VALID
witne sse s, o r o th e r c a su a lty, the y m a y still be pro ve d . A will, the re fo re ,
sho uld no t be re je c te d whe re its a tte sta tio n c la use se rve s the purpo se
o f the la w. PURPOSE:
7. Art. 809 has been designed to attain the main objective of
Also , th e C o u rt a p p lie s th e ru le o n substa ntia l c o m plia nc e in the new Civil Code in the liberalization of the manner of
d e te rm ining th e n u m b e r o f w itn e sse s; th e w ill sh o w s th a t th re e
w itn e sse s sig n e d th e w ill.
executing wills.

Th e re is no sta tuto ry re quire m e nt to sta te in th e w ill itse lf th a t th e REQUISITES OF ART. 809:

te sta to r kn e w th e la n g ua g e o r d ia le c t u se d in th e w ill. This is a m a tte r 1. Defect and imperfection refer to the form of the attestation
th a t a p a rty m a y e sta blish by pro o f a liunde . or the language used therein
Th e Co de o f Civil Pro c e dure re pe a le d Artic le 685 o f th e O ld C ivil 2. No bad faith, forgery, or fraud, or undue and improper
C o d e . Un d e r th e C o d e o f C ivil Pro c e d u re , th e inte rve ntio n o f a no ta ry pressure and influence
is no t ne c e ssa ry in the e xe c utio n o f a ny will. The re fo re , Aba da 's will 3. Will was executed and attested in substantial compliance
do e s no t re quire a c kno wle dg me nt be fo re a no ta ry .
with all the requirements under ART 805; and
4. Fact of such execution and attestation must be proved.
G ARC IA v . LAC UESTA
Wh e n th e te sta to r e xp re ssly c a u se d a n o th e r to sig n th e fo rm e r’s
n a m e , th is fa c t m u st b e re c ite d in th e a tte sta tio n c la u se . O th e rw ise , SUMMARY OF THE REQUISITES FOR NOTARIAL WILL:
th e w ill is fa ta lly d e fe c tive . 1. Writin g (A RT. 804)
2. La n g u a g e a n d d ia le c t kno w n to te sta to r
Art. 806. – ACKNOWLEDGED BEFORE NOTARY PUBLIC 3. Sig n e d b y th e te sta to r o r b y a no th e r p e rso n , u n d e r h is d ire c tio n
Every will must be acknowledged before a notary public by the a n d in h is p re se n c e (A RT. 805)
testator and the witnesses. 4. Sig nin g m u st b e m a d e in th e p re se n c e o f th e te sta to r o r
a n o th e r p e rso n, a n d a t le a st th re e (3) in stru m e nta l w itn e sse s
The notary public shall not be required to retain a copy of the will, (A RT. 805)
or file another with the office of the Clerk of Court. 5. Atte ste d a n d su b sc rib e d b y a t le a st th re e (3) c re d ib le w itn e sse s
o Art. 806 requires “acknowledged,’’ and not merely; in th e p re se n c e o f th e te sta to r a n d o f e a c h o n e o f the m
6. Ma rg in a l sig na tu re o n e a c h a n d e ve ry p a g e , e xc e p t th e la st
o notarial officer cannot be one of the testamentary witness pa ge
7. Nu m b e re d c o rre la tive ly in le tte rs.
NOTE: 8. Atte sta tio n c la u se
9. Ac kn o w le d g e m e n t (ART. 806)
1. Testator acknowledges the execution of the will, while the
10. Re a d tw ic e b y tw o (2) p e rso n s d e sig n a te d b y te sta to r, if
witnesses acknowledges the attestation. te sta to r is d e a f o r d e a f-m u te (ART. 807)
11. Re a d tw ic e , o n c e b y o n e o f th e in stru m e n ta l w itn e ss, a n d
AZUELA v .
FACTS: Th e n o ta ry p u b lic , Pe tro n io Y. Ba u tista , o n ly w ro te “ Nila g d a a n ko a t
a g a in b y n o ta ry p u b lic , if te sta to r is BLIND (ART.808)
nino ta rio ko ng a y o ng 10 ng Huny o 10 (sic ), 1981 d ito sa Lung so d ng Ma y nila .” 12. Su b sta n tia l c o m p lia n c e o f th e re q uire m e n ts o f th e la w
(ART. 809)
ISSUE: Is th e w ill va lid ?

RULING: NO. The will wa s no t p ro pe rly a c kno wle dg e d

Art. 810. – HOLOGRAPHIC WILL
An a c kno wle dg e m e nt is th e a c t o f o ne w h o h a s e xe c ute d a d e e d in g o in g b e fo re A person may execute a holographic will which must be entirely
so m e c o m p e te nt o ffic e r o r c o urt a n d d e c la ring it to be his a c t o r d e e d . It in vo lve s written, dated, and signed by the hand of the testator himself.
a n e xtra ste p u n d e rta ke n w h e re b y th e sig n o re a c tu a lly d e c la re s to th e n o ta ry
th a t th e e xe c u to r o f a d o c u m e n t h a s a tte ste d to th e n o ta ry th a t th e sa m e is
h is/ h e r o w n fre e a c t a n d d e e d . It is subject to no other form, and may be made in or out of the
Philippines, and need not be witnessed.
The e xpre ss re quire m e nt o f Artic le 806 is tha t the will b e “a c kno wle dg e d,” a nd  Principle of substantial compliance still applies in
no t m e re ly subsc rib e d a nd swo rn to
holographic wills (ART. 809)

REQUISITES: (EWD-SA)
Art. 807. – DEAF OR DEAF-MUTE TESTATOR
If the testator be deaf, or a deaf-mute, he must personally read the 1. Entirely written
will, if able to do so; 2. Written in language and dialect known to the testator
3. Dated
otherwise, he shall designate two (2) persons to read it and 4. Signed
communicate to him, in some practicable manner, the contents 5. Animus testandi
thereof.
2. This must be proved in the probate proceeding. Thus,
although not essential, it would be wise to state the same in
the notarial acknowledgement.

Art. 808. - BLIND

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.
3. An illiterate is no different than a blind testator hence,
ART. 808 applies to him.

ART. 809. – DEFECT & IMPERFECTION IN THE FORM OR


ROXAS v. DE JESUS
FACTS: A le tte r-will wa s fo u n d o n a n o te b o o k, a d d re sse d to th e
c hild re n o f Bib ia n a (te sta to r) th a t is e n tire ly w ritte n in En g lish , d a te d ,
a n d sig n e d in th e h a n d w ritin g o f th e la tte r a s te stifie d a n d re c o g nize d
b y h e r c hild re n .
Th e RTC disa llo we d th e w ill w a s b e c a u se th e da te o nly a ppe a re d a s
FEB./ 61, th e re is no da te o f the da y. It th e re fo re , fa ile d to c o m p ly w ith
Art. 810, C C .
ISSUE: Wh e th e r o r n o t th e d a te “Fe b. / 61” a p p e a ring o n th e
Ho lo g ra p hic Will o f Bib ia n a is a va lid c o m p lia nc e w ith Artic le 810, C C
RULING: YES.
If a w ill h a s b e e n e xe c ute d in su b sta n tia l c o m p lia nc e w ith the
fo rm a litie s o f th e la w , a n d th e p o ssib ility o f b a d fa ith a n d fra u d in the
e xe rc ise is o b v ia te d , sa id w ill sh o uld b e a d m itte d to p ro b a te .
If th e te sta to r, in e xe c uting h is w ill, a tte m p ts to c o m p ly w ith a ll the
re q u ire m e nts, it is su ffic ie nt if th e o b je c tiv e so ug ht to b e a c c o m p lish e d
b y su c h re q u isite is a c tu a lly a tta ine d b y th e fo rm fo llo w e d b y the
te sta to r.
As a g e ne ra l rule , the d a te in a ho lo g ra p hic w ill sho uld inc lud e the
d a y , m o nth, a nd y e a r o f its e xe c utio n.
Ho w e v e r, w he n a s in the c a se , the re is no a p p e a ra nc e o f fra ud , b a d
fa ith, und ue influe nc e a nd p re ssure a nd the a uthe ntic ity o f the w ill is
e sta b lishe d a nd the o nly issue is w he the r o r no t the d a te “Fe b ./ 61”
a p p e a ring o n the ho lo g ra p hic w ill sho uld b e a llo w e d und e r the
p rinc ip le o f sub sta ntia l c o m p lia nc e .
Why should holographic wills be construed more liberally than
the ones drawn by an expert?
 holographic wills are “usually prepared by one who is not
learned in the law.
 It is a fundamental principle that the intent or the will of the
testator, expressed in the form and within the limits
prescribed by law, must be recognized as the supreme law
in succession.
ART. 811. – PROBATE OF HOLOGRAPHIC WILL
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.
PROBATE - allowance of a will by the court after its due execution
has been proved.
FUCTION OF A PROBATE COURT: Settle and liquidate the
estates of deceased person either summarily or thru the process of
administration.
QUESTIONS ADDRESSED:
 Identity
 Due execution; and
 Testamentary capacity
RULE:
1. UNCONTESTED
 At least one witness required
 Such witness must know the handwriting and
signature of the testator
 He must be presented and explicitly declare before the
court that the holographic will and signature was
genuinely in handwritting of the testator
2. CONTESTED
 At least three (3) witnesses must be presented
3. ABSENCE OF COMPETENT WITNESS – If court deemed it
necessary, expert testimony may be resorted to
P a g e | 11
 Expert witness may also be required by court,, upon its
discretion, when it is not satisfied with the witness
presented by the parties either in an uncontested or
contested probate.
AZAOLA v. SINGSON *****
ISSUE: Wh e th e r o r n o t Artic le 811 o f th e C ivil C o d e is m a n d a to ry o r
p e rm issive a n d th a t th e p e titio n e r is b o u n d to p re se n t th re e w itn e sse s.
RULING: DIRECTORY & DISCRETIONARY UPON THE COURT.
The rule o f the first pa ra g ra ph o f Artic le 811 o f the Civil Co d e is m e re ly
dire c to ry a nd is no t m a nda to ry. This is the re a so n why the 2nd
pa ra g ra ph o f Artic le 811 a llo ws the c o urt to re so rt to e xpe rt e vide nc e
Th e la w fo re se e s the p o ssib ility tha t no q ua lifie d w itne ss m a y b e fo und ,
a n d p ro v id e s fo r re so rt to e xp e rt e v id e nc e to su p p ly th e d e fic ie nc y.
Ag a in , u n d e r Artic le 811, th e re so rt to e xp e rt e vid e nc e is c o n d itio n e d
b y th e w o rd s “if the C o urt d e e m it ne c e ssa ry ”, w hic h re ve a l th a t wha t
the la w de e m s e sse ntia l is tha t the c o urt sho uld be c o nvinc e d o f the
will’s a uthe ntic ity.
The duty o f the Co urt, in fine , is to e xha ust a ll a va ila ble line s o f inquiry,
fo r the sta te is a s m uc h inte re ste d a s the pro po ne nt tha t the true
inte ntio n o f the te sta to r be c a rrie d into e ffe c t.
EFFECT IF HOLOGRAPHIC WILL IS LOST OR
DESTROYED:
 If without intent to revoke the same, and no other copy is
available, it can never be probated because the BEST and ONLY
evidence therefore is the HANDWRITING of the testator.
 If the without intent to revoke and the original one was
destroyed but there is a PHOTOCOPY available, it may be
allowed because here, there can be a COMPARISON.
ART. 812. – DISPOSITION WRITTEN BELOW SIGNATURE
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.
 Strictly speaking, said dispositions are really considered
independent of the will itself.
 Additional disposition must be handwritten by the testator,
otherwise void, for failure to comply with the requirement
of under ART. 810 “entirely written"
RULE:
 NOT SIGNED AND DATED - the presumption is that the
testator has no intent to make the disposition
 DATED BUT UNSIGNED or vice-versa – additional
disposition is void for lack of essential requisite, but the
holographic will remains valid.
NOTE: The rule is not the same with notarial wills, the presence of
additional disposition below/after the signature of the testator, will
INVALIDATE THE WHOLE WILL; since signature is not affixed
in the “logical end” of the will required by ART. 805.
Art. 813. – A NUMBER OF DISPOSITIONS WERE SIGNED
BUT NO DATED; LAST DISPOSITION HAS A SIGNATURE
AND DATE
When a number of dispositions appearing in a holographic will are
signed without being dated, and the last disposition has a
signature and date, such date validates the dispositions preceding
it, whatever be the time of prior dispositions.
REQUISITE: (ASL)
1. A number of dispositions appear in the HW
2. Signed but not dated
 If prior disposition is not signed but dated – VOID; law is
explicit “Signed without being dated:
3. Last disposition has signature and date
ART. 814. – INSERTION, CANCELLATION, ERASURE OR
ALTERATION
In case of any insertion, cancellation, erasure or alteration in a
holographic will, the testator must authenticate the same by his full
signature.
 “Full signature” here means the full or usual or
customary SIGNATURE, not merely full name.
Suppose there is an alteration without the full signature, is the
whole will void?
 NO, only the alteration is void.
 However, if what was altered was the DATE or
SIGNATURE, without full signature of the testator, the
WHOLE HW is void.
EFFECT OF ALTERATION WITHOUT FULL SIGNATURE:

GR: Only the ICEA is void
EXCPTN:
 When what is being altered was the DATE or
SIGNATURE, such failure will invalidate the WHOLE
holographic will
Art. 815. – FILIPINO IN FOREIGN COUNTRY
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.
 Exception to this rule is execution of Joint Will abroad;
prohibited under ART. 819
If a will is probated abroad, does it have to be probated again in
the Philippines?
 NO. What is required however is that there must be a
proceeding here to prove that indeed the will had already
been probated abroad.
 Otherwise stated, the rule is the same on foreign judgements.
o It should be observed that in the absence of contrary proof, foreign
laws on the formalities of a will are presumed to be the same as those
existing in the Philippines. (DOCTRINE OF PROCESSUAL
PRESUMPTION)
Art. 816. – WILL OF AN ALIEN WHO IS ABROAD
The will of an alien who is abroad produces effect in the
Philippines if made with the:
1) formalities prescribed by the law of the place in which he resides, or
2) according to the formalities observed in his country, or
3) in conformity with those which this Code prescribes
 It is believed that AART. 17 supplements ART. 816
 Art. 816 speaks only of extrinsic validity. Intrinsic validity is
governed by Art. 16.
A Chinese, domiciled in Argentina, is on his way to Manila. The
boat where he is, is staying for one day in Japan. In Japan, can he
make a will? If so, what country’s formalities should he observe?
ANS: This is a typical case of an alien abroad. Therefore,
he can make a will in accordance with the testamentary formalities
of:
A. Argentina (domicile)
B. China (nationality)
C. Philippines
D. Japan under Philippine law, which recognizes lex loci
celebrationis — law of the place of execution
ART. 817. – WILL MADE IN THE PHILIPPINES BY C or A
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.
 REASON: Being a citizen thereof, he may be more
cognizant of said laws than those in the Philippines.
If a Chinese lives in Manila, he can follow the extrinsic formalities
of wills required:
a) in China (Art. 817) — lex nationalii; OR
b) Philippines (Art. 17) — lex loci celebrationis
Art. 818. –JOINT WILL
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
 Prohibited in the Philippines
JOINT WILL - those which contain in ONE instrument the will of
two or more persons jointly signed by them.
 VOID regardless whether reciprocal or not
RECIPROCAL or MUTUAL WILLS - provides that the survivor
of the testators will succeed to all or some of the properties of the
decedent.
 GR: They are valid
 EXCPTN: Void if made in ONE INSTRUMENT
EX. A made a will making B his heir. B also made a will making A
as his heir.
REASON FOR PROHIBITION:
1. Will is purely a personal act; SECRECY
2. Prevent undue influence
P a g e | 12
3. Probate would be harder
4. Militates right to revoke or idea of ambulatory of wills
5. Tend to convert wills into a contract
6. In case of husband & wife, one might be tempted to kill the
other
DELA CERNA v. POTOT
A joint will (executed by a husband and his wife) was erroneously
probated by the RTC. There being no appeal, the judgment became
fi nal. Can the joint will be given effect?
ANS: YES. (There was an error on the court but the
decree has now become final).
Once a decree of probate becomes final in accordance with the
rules of procedure, it is res judicata
This is NOT a case of lack of jurisdiction: it is simply an instance of
an erroneous but valid judgment. Otherwise stated, this is merely
an error in law, not an error in jurisdiction
The probate court committed an error of law which should have been
corrected on appeals but which did not affect the jurisdiction of the
probate court, nor the conclusive effect of its final decision. A
decision which is binding upon the whole world.
NOTE:
 The principle just given is applicable if both testators of the joint
will were already dead at the time the probate was made.
 If only one was dead, and the other was still alive, the final
judgment can have reference only to the estate of said deceased
testator. Later, when the second testator dies, and the joint will is
once again presented, the same ought to be regarded as
intestate.
Art. 819. – WILLS PROHIBITED UNDER ART. 818
EXECUTED ABROAD; NOT VALID
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
 Not applicable to aliens executing their will; if it is valid in
the place of execution, it is valid in the PH by virtue of Lex
loci celebrations
QUALIFICATION OF WITNESS (820-824)
Subsection 4. — WITNESSES TO WILLS
Art. 820. –REQUISITES OF A WITNESS
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.
REQUISITES: (SAN-ADN)
1. Sound mind
2. At least 18 years of age or more
3. Not blind, deaf or dumb
4. Able to read and write
5. Domiciled in the Philippines
6. Not convicted of falsification, perjury of false
testimony
NOTE: A blind or deaf or deaf-mute can be a testator but cannot be a
witness.
ART. 821. – DISQUALIFIED WITNESSES
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.
 1st paragraph is not applicable to a Filipino who executed
his will abroad
Effect of Pardon
 If the pardon was given because of the man’s innocence, as
when somebody else had been proved to be the really guilty
person, he can now act as a witness to a will. This is because
there is no mental dishonesty.
 If the absolute pardon was an act of Executive grace of
clemency, it is submitted that the disqualification re- mains,
for even an absolute pardon does not remove civil
consequences. The would-be witness still has a taint of mental
dishonesty.
Cruz v. Villasor
The notary public before whom the notarial will is ac- knowledged is
disqualified to be a witness to said will. It would be absurd for him
(as witness) to be acknowledging something before himself (as notary
 P a g e | 13

public).
Essential elements of domicile:
1. The fact of residing or physical presence in a fixed place
2. Intention of remaining permanently or animus manendi
 This disqualification apply only if the will is executed in the
Philippines
 Not essential that the witness be a citizen of the Philippines, for
domicile is what the law merely requires.
 Domicile is defined in Art. 6 of the new Civil Code as the
place of habitual residence
Note:
 Qualification in Art.820 and Art. 821 are exclusive, no other
qualifications are required from witness.
 Conviction under this article should be final
 The law presumes that every witness are trustworthy and
reliable, unless the contrary is established.
Whether or not he is instituted to the will, the creditor is entitled
to be paid for his credit.
Subsection 5. — CODICILS AND INCORPORATION BY
REFERENCE
Art. 825. - CODICIL
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.
Rule in Case of Conflict Between Will and Codicil
 In case of conflict between a will and a codicil, it is understood
that the latter should prevail, it being the later expression of
the testator’s wishes..

CODICIL v. WILL
Art. 822. - SUBSEQUENT INCOMPETENCY OF THE CODICIL NEW WILL
WITNESS
If the witnesses attesting the execution of a will are competent at When a will is executed after the When a new will was
the time of attesting, their becoming subsequently incompetent will is executed, the codicil is subsequently executed after the
shall not prevent the allowance of the will. taken as part thereof. original will, the new will exist
independently to the original will
 Subsequent incapacity is immaterial and without reference thereof.
 Capacity as a witness is different from capacity as a witness in Explains, add to, supplements, No regard to the previous will, it
court. and alter the provisions in the does neither the same as codicil
original will does
COMPETENCY V. CREDIBILITY OF WITNESS May revoke only a part of the Its execution will revoke the
COMPETENCY CREDIBILITY OF WITNESS original will entire original will
Being a part of the original will, Separate fro the original will,
Pertains to qualification of a pertains to believability of the then both are taken as one being the one revoking the other.
witness testimony of a witness

Art. 826. - VALIDITY; EXECUTED AS A WILL

In order that a codicil may be effective, it shall be executed as in the
Art. 823. - ATTESTING WITNESS IS AT THE SAME TIME A case of a will.
DEVISEE OR LEGATEE OR THEIR SPOUSE, PARENT OR
CHD
If a person attests the execution of a will, to whom or to whose TWO (2) TYPES OF CODICIL:
spouse, or parent, or child, a devise or legacy is given by such will, 1. NOTARIAL CODICIL - follows the rules and forms required
such devise or legacy shall, so far only as concerns such person, or by law for notarial will
spouse, or parent, or child of such person, or any one claiming under 2. HOLOGRAPHIC CODICIL - follows the rules required by
such per- son or spouse, or parent, or child, be void, unless there are law to holographic wills
three other competent witnesses to such will.
NOTE:
However, such person so attesting shall be admitted as a witness as  Both types may be revoked by a notarial or holographic will.
if such devise or legacy had not been made or given.  If codicil was executed with the formalities of will, the same
shall be void.
 Under ART 823, attesting witness cannot be a devise or legatee.
They are incapacitated to inherit but capacitated to be a Art. 827. - RULE ON INCORPORATION BY
witness. REFERENCE******
The disqualification extends to: If a will, executed as required by this Code, incorporates into itself
 Witness by reference any document or paper, such document or paper shall
 His spouse not be considered a part of the will unless the following requisites
 Parent are present:
 Child (ICI-S)
 Any one claiming the right oF said witness, spouse, (1) The document or paper referred to in the will must be in
parent, or child. existence at the time of the execution of the will;

EFFECT:
 Will is still valid, only the part appertaining to them should be
considered void.
 If attesting witness, spouse, parent or child is a
COMPULSORY HEIR, he is only entitled to the legitime, but
not to the given free portion or an excess of his legitime.
 This article also covers Voluntary heirs.
GR: Void
EXCPTN: If there are MORE THAN THREE(3) WITNESSES, the
devise or legatee is valid.
Art. 824.- MERE CHARGE ON ESTATE FOR PAYMENT OF
DEBT; CREDITOR AS COMPETENT WITNESS
A mere charge on the estate of the testator for the payment of debts
due at the time of the testator’s death does not prevent his creditors
from being competent witnesses to his will.
(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.
INCORPORATION BY REFERENCE - it is the incorporation of an
intrinsic or separate paper into a will by reference so as to become a
part thereof and probated as such.
 IBR in notarial will do not need any attestation clause,
because the attestation clause of the will itself is
sufficient.

CALUYA v. DOMINGO WHAT IS TO BE STATED IN THE WILL?

A creditor is not disqualified to receive if the testator provides in the 1. The fact that testator is referring to the document
will that such portion shall be given to such creditor as payment for 2. Clear description and identification of the document
an obligation. 3. Number of pages

REQUIREMENTS THAT CAN BE PROVED BY EXTRINSIC,
PAROL OR EVIDENCE ALIUNDE:
 That document is i existence at the time of the execution
of the will;
 otherwise, future papers will render the
incorporation void.
 Document is one being referred in the will
GENERAL RULE: Only NOTARIAL WILL shall have
incorporation clause
 Art. 827(4) speaks of “witnesses,” it is reasonable to
believe that as a rule, only notarial wills can have this
incorporation by reference.
EXCPTN: It is allowed in Holographic will if:
 The holographic will has at least three (3) qualified and
credible witnesses
 WHY? Because then, the subscribing witnesses in the
holographic will, although a surplusage, can now sign the
document incorporated
 EVEN IF NO WITNESS, IF THE DOCUMENT REFERED
TO IS ENTIRELY HANDWRITTEN, SIGNED, AND
DATED IN THE HANDWRITING OF THE TESTATOR
there can also be a proper incorporation by reference.
Subsection 6. — REVOCATION OF WILL
Art. 828. -REVOCATION; WAIVER OR RESTICTION
A will may be revoked by the testator at any time before his death.
Any waiver or restriction of this right is void.
REVOCATION - an act of the mind terminating the potential
capacity of a will to operate at the death of the testator manifested by
some outward and visible act or symbolic sign thereof.
GENERAL RULE: A will is ambulatory and revokable during the
lifetime of testator.
EXCPTN: When testator during his lifetime:
 loses his testamentary capacity or
 becomes of unsound mind
TESTATE OF MALOTO v. CA
The physical act of burning does not automatically revoke a will
without clear intention, and rejecting the argument of res judicata
raised by the opposing heirs.
For a valid revocation to occur, the 'corpus' and 'animus' must
concur, one without the other will not produce a valid revocation.
The physical act of destruction of a will, like burning in this case,
does not per se constitute an effective revocation, unless the
destruction is coupled with animus revocandi on the part of the
testator.
Its is not imperative that the physical destruction be done by the
testator himself. It may be performed by another person but under the
express direction and in the presence of the testator. Of course, it goes
without saying that the document destroyed must be the will itself. In
this case, while animus revocandi, or the intention to revoke, may be
conceded, for that is a state of mind, yet that requisite alone would
not suffice.
"Animus revocandi is only one of the necessary elements for the
effective revocation of a last will and testament. The intention to
revoke must be accompanied by the overt physical act of burning,
tearing, obliterating, or cancelling the will carried out by the
testator or by another person in his presence and under his
express direction.
Under Art. 830, the physical act of destruction, in this case the
burning of the will, does not constitute an effective revocation, unless
it is coupled with animus revocandi on the part of the testator.
Since animus is a state of mind, it has to be accompanied by an
overt physical act of burning, tearing, obliterating or cancelling
done by the testator himself or by another under his express
direction and presence.
CUEVAS v. CUEVAS
FACTS;
Antonina Cuevas executed a notarized conveyance entitled "Donacin
P a g e | 14
Mortis Causa," ceding to her nephew, private respondent Crispulo
Cuevas half of a parcel of unregistered land located in Nueva Ecija.
In the same instrument appears the acceptance of Crispulo Cuevas.
Later on, the donor executed another notarized instrument entitled
"Revocacion de Donacion Mortis Causa" purporting to set aside the
preceding conveyance; She also instituted an action for the recovery
of the subject property on the ff grounds:
The Donation mortis causa previously executed was lawfully
revoked;
Even assuming arguendo that said donation was inter vivos, it was
still invalid because:
Not properly accepted
Donor did not reserve sufficient property for her maintenance;
Donee was guilty of ingratitude for refusal to extend support to donor
(ART. 765, CC)
RTC: ruled in favour of the respondent; denied the petition.
CA: did not rule on the case, but rather forward it to the SC.
ISSUE:
Whether or not the donation embodies a donation inter vivos, or a
disposition of property mortis causa revocable freely by the transferor
at any time before death.
WON the will may still be revoked. – NO.
RULING:
DONATION INTER VIVOS with reservation of beneficial title
during the lifetime of the donor.
Neither the designation mortis causa, nor the provision that a
donation is "to take effect at the death of the donor", is a
controlling criterion in defining the true nature of donations.
The question to be decided is whether the donor intended to part with
the title to the property immediately upon the execution of the deed,
or only later, when she had died. If the first, the donation is operative
inter vivos; if the second, we would be confronted with a disposition
mortis causa, void from the beginning because the formalities of
testaments were not observed.
In this case, It is apparent from the entire context of the deed of
donation that the donor intended that she should retain the entire
beneficial ownership during her lifetime, but that the naked title
should irrevocably pass to the donee.
The decisive proof that the present donation is operative inter vivos
lies in the final phrase to the effect that the donor will not dispose or
take away ("hindi ko nga iya-alis" in the original) the land "because I
am reserving it to him upon my death."
By these words the donor expressly renounced the right to freely
dispose of the property in favor of another (a right essential to full
ownership) and manifested the irrevocability of the conveyance of the
naked title to the property in favor of the donee. Irrevocability is
characteristic of donations inter vivos, because it is incompatible
with the idea of a disposition post mortem. (See ART. 828, CC)
Had the donor meant to retain full or absolute ownership she had no
need to specify possession, cultivation and harvesting, since all these
rights are embodied in full or absolute ownership; nor would she then
have excluded the right of free disposition from the "rights and
attributes of ownership" that she reserved for herself.
Art. 829. - RULES ON REVOCATION
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.
RULES ON REVOCATION IDONE IN:
 PHILIPPINES
 Must comply with the Philippines Law, regardless of the
nationality and domicile
 OUTSIDE THE PHILIPPINES BY A NON-RESIDENT
 Law of the place where the will was made; or
 Law of the place of Domicile
 OUTSIDE OF THE PHILIPPINES BY A RESIDENT
FILIPINO OR FOREIGNER
 Law of the place of Revocation (ART. 17 - lex loci
celebrationis)
 Law of the Domicile of the testator

 NATIONAL LAW NEVER GOVERNS REVOCATION
 Not primarily applicable as regards the making of a will.
Art. 830. - THREE (3) WAYS OF REVOCATION (ISB)
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.
(1) REVOCATION BY IMPLICATION OF LAW
 takes place when certain acts or events take place after a
will has been made
Reason for allowance:
 There may be certain changes in the family or
domestic relations or in the status of his property,
such that the law presumes a change of mind on the
part of the testator.
Acts considered by law as an act of revocation: (PLS-LU)
1. ART. 854,NCC
a) one, some or all of the compulsory heirs have been
preterited or omitted, the institution of heir is void.
2. ART. 936, NCC
a) When a credit that has been given as legacy is
judicially demanded by the testator
3. ART. 957, NCC
a) When after the testator made a will, he sells, or
donate the legacy or devise.
4. ART. 106, FC
a) Provisions in a will in favor of a spouse who has
given cause for legal separation shall be revoked by
operation of law the moment a decree of legal
separation is granted.
5. ACT 1032, NCC
a) When an heir, legatee, or devise commits an act of
unworthiness under Art. 1032
Suppose the testator never intended to change his mind ex. A
disposed in his will a car in favor of B, but he sold it to C, and
decided instead to give the money to B?
 In this case, as provided in Art. 830, generally there is a
revocation by implication of law, since A sold the car
which is an object of the will in favor of the legatee, B.
 What the testator should do in a case like this is to
manifest his unchanged mind by executing a new will or
codicil.
 Where the revocation of a will is presumed by law
from a change in the testator’s circumstances,
evidence is generally not admissible to rebut the
presumption, at least not evidence of subsequent
unexecuted intentions of the testator.
(2) REVOCATION BY SUBSEQUENT DOCUMENT
a) May be express or implied
i. Implied revocation - complete inconsistency
between the two wills
b) May be codicil or new will
i. Revoking will must be essentially a Valid will,
otherwise no revocation
c) Revocation must be a definite one
i. A declaration that the first will will be revoked
sometime in the future is not enough.
ii. A second will referred to by the testator as his “last
will” revokes completely the first will, particularly
if the provi- sion of the two,
d) DOCTRINE OF CONDITIONAL REVOCATION***
i. also know as “Dependent Relative Revocation”
ii. revocation may be conditional i.e. the revocation
takes place only if the condition is fulfilled
P a g e | 15
PROBLEM*****
Testator made will No. (1). After one week, he want- ed 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.
Can we consider will No. (1) as having been revoked, or
should it still be given effect?
ANS: 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.
Art. 833 provides that a revocation of a will based on a false
cause or illegal cause is null and void.
In another perspective, 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.
In this case, the condition was not fulfilled; therefore, the
revocation by overt act did not really materialize.
(3) REVOCATION BY AN OVERT ACT
REQUISITES: (SCA-D)*****
a) Must be an overt act specified by law
b) Completion at least of the substantial phase of the overt
act
c) Animus revocandi or intent to revoke
d) Testator at the time of revoking must be capacitated to
make a will
 He must also be of sound mind, otherwise
there is no real revocation
e) Revocation must be done by the testator himself, or by
some other person in his presence and by his express
direction.
RULES ON OVERT ACTS:****
BURNING - there must be an actual burning, and it is not necessary
that the will be burned entirely, again, completion of substantial
phase is sufficient, thus, it is sufficient even if a small part of the
instrument itself be burned
 No revocation if the will is burned accidentally for lack
of intention to revoke
 A will thrown into the fire with intent to revoke, without
scorching the writing, there is already revocation, even if
unknown to the testator, somebody was able to snatch it
from the fire and thus saved it
 If the envelope containing a will is burned, but the will
itself is untouched, there is NO revocation even if there
be intent to revoke
 There was no overt act of burning the will, as
distinguished from the envelop
PROBLEMS
A wanted to revoke his will, so he threw it into a stove so that
it would be burned later on when a fire would be lighted in
the stove. However, the will was later removed by another
person from the stove BEFORE the stove was lighted. Is there
a revocation? ****
ANS: No revocation for while there was intent to revoke,
there never was the overt act of burning.
 However, the person who prevented the revocation, if he
is a heir or a legatee or devisee,
 will NOT INHERIT, not because of revocation by means
of overt act, since there was not overt act,
 but because of REVOCATION BY IMPLICATION OF
LAW,
 because said person is considered INCAPACITATED TO
INHERIT BY REASON OF UNWORTHINESS under
ART. 1032.
TESTATE OF MALOTO v. CA
It is clear that the physical act of destruction of a will, like
burning in this case, does not per se constitute an effective
revocation, unless the destruction is coupled with animus
revocandi on the part of the testator.

It is not imperative that the physical destruction be done by the
testator himself. It may be performed by another person but
under the express direction and in the presence of the testator.
Of course, it goes without saying that the document destroyed
must be the will itself
TEARING - Includes “cutting” but not crumpling
 Slight tear is sufficient
 But ofc the greater the degree of tearing the
greater is the evidence of animo revocandi
 Tearing off even the signature alone constitutes
revocation provided the other requisites are present.
 Signature is the very heart of the will
Perkes v. Perkes
In a fit of anger, a testator tore his will twice and was
continuing to so tear when some- body held his arms and
persuaded him to refrain from tearing the will. He was
prevailed upon. He then placed the torn pieces in his pocket
and said, “Nothing significant has after all been torn.’’
Later, the testator died, and the torn will was found. Was there
a revocation here?
HELD: There was NO REVOCATION for the act of tearing
was subjectively not yet complete, inasmuch as he had
intended to tear up the will some more. (LACKING
REQUISITE: Completion of substantial phase of overt act)
OBLITERATING OR CANCELLING
 Either of two (2) revokes the will, totally or partially
 Obliteration - renders the word illegible; when
erased thru eraser or when it was blot out
 Cancellation - the drawing of line across the text;
placing a mark on the word will not suffice
Probate of Lost or Destroyed Wills*****
1. NOTARIAL WILL - If it has been lost or destroyed without
intent to revoke, contents may be proved by:
 Oral or parol evidence
 Carbon copies or Duplicate Original
 carbon copy signed by all concerned is just as
good as the original
 may be introduced in evidence without
accounting for the non-production of the other
copies
WHAT SHOULD BE PROVEN DURING PROBATE OF
LOST OR DESTROYED NOTARIAL WILL?****
(FIC)
1. Established in accordance with the
formalities required by law under ART. 804-
ART. 809
2. Prove that the will is inexistent at the time of
the death of testator OR that it was
fraudulently destroyed without the knowledge
of testator OR it was accidentally lost or
destroyed without intet to revoke
3. Prove the contents clearly and distinctly by
copies or recital of contents by some
document or testimony of the witnesses
2. HOLOGRAPHIC WILL - if lost or destroyed without intent
to revoke, cannot be probated.
Art. 831. - SUBSEQUENT WILLS (IMPLIED REVOCATION)
*****
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.
IMPLIED REVOCATION - when a subsequent will or codicil was
executed but without a Revocation clause, but its contents are
inconsistent with or contrary to the original will
 May be total or partial;
PARTIAL REVOCATION - if there is inconsistency only in
certain provisions
 This kind of revocation is not favored by law, hence, efforts to
reconcile must be made.
P a g e | 16
Art. 832. - REVOCATION MADE IN SUBSEQUENT WILL
(DOCTRINE OF ABSOLUTE REVOCATION)***
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.
INVALID WILL v. INEFFECTIVE WILL
INVALID REVOKING INEFFECTIVE
WILL REVOKING WILL
Cannot revoke can revoke
Art. 833. - FALSE OR ILLEGAL CAUSE (DOCTRINE OF
RELATIVE REVOCATION)
A revocation of a will based on a false cause or an illegal cause is
null and void.
 Revocation was made based on false belief or mistake
 If revocation was made in a subsequent will, false belief
or illegal cause must appear in the face of the will or
codicil itself.
Art. 834. - RECOGNITION OF AN ILLEGITIMATE CHILD
The recognition of an illegitimate child does not lose its legal effect,
even though the will wherein it was made should be revoked.
 REASON: While a will is essentially revocable,
recognition is irrevocable, unless there be vitiated
consent.
 Also, recognitioN is:
 Not a testamentary disposition; and
 Does not wait for the testator’s death to take
effect.
REPUBLICATION/REVIVAL OF WILLS835 (835– 839)
Subsection 7. — REPUBLICATION AND REVIVAL OF WILL
Art. 835. - EXPRESS REPUBLICATION/ REPUBLICATION
BY RE-EXECUTION
The testator cannot republish, without reproducing in a subsequent
will, the dispositions contained in a previous one which is void as to
its form.
Art. 836. - IMPLIED REPUBLICATION
The execution of a codicil referring to a previous will has the effect
of republishing the will as modified by the codicil.
Republication - is the re-establishment by the testator of a previously
revoked will or one invalid for want of proper execution as to form or
for other reasons so as to give validity to said will
 May be made by:
1. Re-execution of original will - original provisions
are reproduced or copied in a new or subsequent
will
 applies when will is VOID AS TO ITS
FORM
2. Execution of a codicil - mere reference to the revoked will is
enough: there is no necessity of reproducing all the previous
dispositions; also known as implied republication under Art.
836;
 may apply when a will is VALID AS TO
FORM BUT ALREADY REVOKED
EFFECT OF REPUBLICATION UNDER ART. 836 (RRG)
a. codicil revives the previously revoked will
b. Old will is republished as the date of codicil
c. A will republished by codicil shall be governed by a statute
enacted subsequent to the execution of the will, but which
was operative when the codicil was executed.
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?
 Yes.
 While it is true that generally a void will as to its form
cannot be republished merely by reference in a later
valid codicil, and while it is true that according to Art.
795, the validity of a will as to its form depends upon
the observance of the law in force at the time it is made,
still it is submitted that in this particular case, there was a

valid republication because of the fact that here, the
defect has been cured.
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?
 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 but not to vitiated consent or
to lack of testamentary capacity, although of course these
are included in the phrase “extrinsic validity,”
Art. 837. - REVIVAL; PRINCIPLE OF INSTANTER****
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.
 REASON: Revocation takes effect immediately. It does not
wait for the death of the testator to become effective because
revocation does not take the form of testamentary disposition.
Stated otherwise, while a will is a disposition mortis causa, a
revocation takes effect, inter vivos.
“Revival”- is defined as:
 the restoration or re-establishment of revoked will or revoked
provisions thereof,
 to effectiveness, by virtue of legal provision
EX.
 ART. 836 - preterited or omitted compulsory heir in
the will, predeceased the testator,the institution is
revived, without prejudice to the right of
representation
 2nd will impliedly revoked the 1st will, and the
former was also subsequently revoked, 1st will may
be revived by a codicil - implication in ART. 837
sine it used the word “”expressly”
RULE:
1. NO REVIVAL - if the first will is expressly revoked by the
2nd will
2. THERE IS AUTOMATIC REVIVAL - if the first will is
impliedly revoked by a second will and the later is
subsequently revoked.
REASON:
 the fact that an “implied revocation” is
ambulatory, the inconsistency being truly and
actually apparent only mortis causa, when the
properties are distributed.
 See ART. 831 for Implied revocation
REPUBLICATION v REVIVAL
REPUBLICATION REVIVAL
It is the re-establishment of previously
It is the re-establishment
revoked will or one invalid for want of
to validity by operation of
proper execution as to form or for other
law of a previously
reasons so as to give validity to said
revoked will.
will
It involves the act of law,
It involves the act of the testator.
operation of law.
There is a will previously revoked or a
will valid as to form or a will invalid A will previously revoked.
for any other cause
NOTE: Aside from republication and revival, there is no other way
of restoring effectiveness.
Subsection 8. — ALLOWANCE AND DISALLOWANCE OF
WILLS (PROBATE)
Art. 838. - PROBATE & ALLOWANCE
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
P a g e | 17
during the lifetime of the testator or after his death, shall be
conclusive as to its due execution.
PROBATE - is the act or process of proving, before a competent
court the due execution of an instrument purported to be the last will
and testament of a deceased for its allowance or approval by the said
court, that is, for its official recognition and the carrying out of its
provision in so far as they are in accordance with the law.
KEY POINTS:
 Probate is MANDATORY
 Extrajudicial Settlement is NOT allowed when there is a
will
 A probate proceeding is a special proceeding (Rule 76-90
of the Rules of Court).
 It is a proceeding in rem.
 In a probate proceeding the inquiry as a General Rule is
limited only to EXTRINSIC VALIDITY of the will
 no judicial approval can be given to an extrajudicial
partition based on a will unless the will is first probated.
Neither may an unprobated will be presented as evidence
of an act of partition among the co-heirs.
 provisions in the will must not be disregarded unless said
provisions are contrary to law.
GENERAL RULE: During probate proper, the probate court HAS
NO JURISDICTION to entertain other issues except on issues on
whether or not the will was duly probated in compliance with the
formalities required by law and whether or not the testator has
testamentary capacity at the time he executed the will
EXCEPTION:
1. when the parties voluntarily submit this matter to the court; or
2. Summary on issues that may be passed upon by the probate
court (intrinsic validity):
1. Ownership
a. when the testator has disposed of property that is not
his; or
b. Whether or not a certain property is included in the
estate.
2. Filiation
a. Whether or not the oppositor has a personality to
intervene; or
b. whether or not the will has been revoked
3. Whether or not there was preterition
NOTE: But decisions of the court pertaining to these questions are
only provisional. (Lim Vs. CA)
EXTRINSIC VALIDITY means:
1. Whether or not the testator was of sound mind when he
executed the will
2. Whether or not he is 18 years or above
3. Whether or not the will complied with the formalities under
Articles 804-809 with respect to notarial will
4. Whether or not the will is entirely written, dated, and signed in
the handwriting of the testator with respect to a holographic
will
KINDS OF PROBATE:
I．ANTE-Mortem
II．POST-Mortem
a. Probate proper - concerned only with extrinsic validity i.e.
execution of the will & testamentary capacity of the testator;
proceeding in rem
b. Determination of the legality of the testamentary provision
and distribution of estate - intrinsic validity; proceeding for
distribution of the properties is NOT in rem, and cannot affect
those who were not PERSONALLY served with summon.
Intrinsic validity:
i. exclusion of the widow from the inheritance. (Sa-
hagun v. Gorostiza, 7 Phil. 347).
ii. disinheritance of a daughter. (Limjuco v. Canara, 11
Phil. 394).
iii. impairment of the legitime. (In Re Estate of
Johnson, 39 Phil. 156).
iv. declaring a certain woman to be the true wife of the
testator. (Alkuino Lim Pang v. Uy Pian Ng Shun, 52
Phil. 571).
v. partitioning of conjugal properties. (Reynoso v. To-
lentino, O.G. Supp. Aug. 2, 1951, p. 5).
vi. right of a widow to the inheritance. (Barredo v.
Vencer, 56 Phil 806).
vii. titles to property, and annulment of alleged fraudu-
lent sales.
 P a g e | 18

Alsua-Betts Vs. CA fraud, must be proved of course.

The rule on ESTOPPEL and the STATUTE OF LIMITATION do
not apply in probate. REVOCATION DISALLOWANCE

REASONS WHY PROBATE IS ESSENTIAL: Voluntary act of testator Given by order of the court
1. Required by law May be with or without cause Only for legal cause
2. Proceeding in rem - requires publication; cannot be
dispensed by any other proceeding w/ offending public May be total or partial Always total
policy Takes place during lifetime of Usually invoked after testator’s
3. To not put into nugatory the right of a person to dispose testator death
his property
4. Prevent devisee or legatees from being cheated by
possible collusion of heirs for their exclusion
INSTITUTION OF HEIR (840-856)
PROBATE OF PROBATE OF NOTARIAL Section 2 INSTITUTION OF HEIR
HOLOGRAPHIC WILL WILL Art. 840. - INSTITUTION OF HEIR
If there is no contest, it is Institution of heir is an act by virtue of which a testator designates in
when there is no contest, at least his will the person or persons who are to succeed him in his property
enough that at least 1 witness
1 subscribing witness should and transmissible rights and obligations.
explicitly declares that the will
testify as to the execution of the
is in the handwriting and
will. REQUISITES FOR VALID INSTITUTION:
signature of the testator.
a) Extrinsically valid
When it is contested, ALL of the
b) Intrinsically valid
subscribing witnesses plus the c) Institution must be Effective
notary public must testify. d) Instituted heir must be Personally instituted by the
When the will is contested, there testator
must be at least 3 of witnesses.
If all of the subscribing witnesses e) Instituted heir must be Clearly identified in the will
and the notary public are: dead,
In the absence of such witnesses,
insane; or they are all absent in the Art. 841. - WILL REMAINS VALID
expert testimony may be resorted
Philippines or testify against the due A will shall be valid even though it should not contain an institution
to or even if there is no contest, still
execution of the will; or they do not
expert testimony may be resorted
remember having attested to the
of an heir, or such institution should not comprise the entire estate,
to. and even though the person so instituted should not accept the
execution of the will; or they are of
doubtful credibility, then, other inheritance or should be incapacitated to succeed.
witnesses may be resorted to.
In such cases the testamentary dispositions made in accordance with
PROBATE OF LOST/ PROBATE OF LOST/ law shall be complied with and the remainder of the estate shall pass
DESTROYED HW DESTROYED NW to the legal heir.
there must be a photocopy or
carbon copy of the holographic will. EX: T died, giving nothing in his will to his brother B, and instituting
In notarial wills, even if there is no
copy, the notarial will may be
his friend F. If F refuses to accept, or is dis- qualified to inherit, B as
If there is no copy of the sole legal heir gets the estate without prejudice to the remaining
probated because the contents of a
holographic will, effective provisions of the will.
notarial will may be proved by the
even if the reason why the
testimonies of at least 2 witnesses
holographic will was lost or
who can clearly and distinctly prove
destroyed was due to the act of
the contents of the notarial will. Art. 842. - PRINCIPLE OF FREEDOM OF DISPOSITION
another person
without intent to revoke on the part One who has no compulsory heirs may dispose by will of all his
NB: As long as there is no animus estate or any part of it in favor of any person having capacity to
of the testator, still no probate of the
revocandi on the part of the testator.
holographic will may be allowed succeed.
because there is no copy
One who has compulsory heirs may dispose of his estate provided he
does not contravene the provisions of this Code with regard to the
Art. 839. - GROUNDS FOR DISALLOWANCE OF WILL***** legitime of said heirs.
The will shall be disallowed in any of the following cases:
(1) If the formalities required by law have not been complied with; LIMITATIONS TO FREEDOM OF DISPOSITION:
(Formalities) 1. LIABILITIES OF ESTATE TO TESTATOR’S
(2) If the testator was insane, or otherwise mentally incapable of OBLIGATION - takes precedence over legitime
making a will, at the time of its execution; (Unsound mind) 2. LEGITIME
(3) If it was executed through force or under duress, or the influence
of fear, or threats; (Duress/Coercion) ART. 842 is not applicable if disposition is not by will but by
(4) If it was procured by undue and improper pressure and simulated sale. (Heirs of Ureta v. Ureta) ****
influence, on the part of the beneficiary or of some other person;
(Undue influence)
(5) If the signature of the testator was procured by fraud; (Fraud) Art. 843. - DESIGNATION BY NAME & SURNAME;
(6) If the testator acted by mistake or did not intend that the OMITTED NAME
instrument he signed should be his will at the time of affixing his The testator shall designate the heir by his name and surname, and
signature thereto. (MISTAKE/UNINTENTIONAL) when there are two persons having the same names, he shall indicate
some circumstance by which the instituted heir may be known.
 Mere inequality, no matter how great, in distributing the
estate is not evidence of undue influence. 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
FORMALITIES as to who has been instituted, the institution shall be valid.
 NOTARIAL WILLS:
1. Formalities under Art. 804-809  Must be read together with ART 789
 HOLOGRAPHIC WILLS
1. Entirely written, signed and dated in the handwriting of the EFFECT OF DOUBT: *****
testator  In case of doubt in designation, no one will inherit
2. Testamentary capacity because only one was intended by the testator and to
3. Holographic wills must be allowed by law at the time of its allow the person who fitted the description will frustrate
execution testator’s intention.
 Moreover, it is absorb to give one-half to a person whom
Undue influence connotes the idea of coercion by virtue of which the the testator intended to give nothing.
judgment of the testator is displaced, and he is induced to do that
which he otherwise would not have don
Art. 844. - ERROR IN DESIGNATION OF NAME
Fraud is the use of insidious machinations to convince a person to do An error in the name, surname, or circumstances of the heir shall not
what ordinarily he would not have done. For fraud to vitiate a will, vitiate the institution when it is possible, in any other manner, to
there must be intent to defraud. This intent, and the nature of the 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.
RULES IF THERE IS AN ERROR IN NAME, SURNAME OF
CIRCUMSTANCES OF HEIR
1. ERRORS IN THE NAME, SURNAME OR
CIRCUMSTANCES WOULD NOT MATTER AS LONG AS
ULTIMATELY THE COURT CAN IDENTIFY WHO ARE
REALLY THE HEIRS INTENDED BY THE TESTATOR.
2. THE ERROR OR MISDESCRIPTION MAY BE
CORRECTED BY EXTRINSIC EVIDENCE BECAUSE OF
THE PHRASE "IN ANY OTHER MANNER", EXCEPT ORAL
DECLARATION MADE BY THE TESTATOR. (ART. 789)
Del Rosario Vs. Del Rosario
Thus, where legatees are pointed out by name in the will the fact that
they are a third person does not make the legacy conditioned upon
proof of such a relationship. The relationship is merely descriptive.
Evidence is admissible to ascertain the identity of the legatees.
Art. 845. - DISPOSITION IN FAVOR OF UNKNOWN PERSON;
CLASS OR GROUP OF PERSONS
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.
Art. 846. - PRINCIPLE OF EQUALITY***
Heirs instituted without designation of shares shall inherit in equal
parts.
 EXCPTN: ART. 846 cannot be applied when there is a
compulsory;
 the legitime must first be removed and what
remains will be divided equal
Art. 847. - PRINCIPLE OF INDIVIDUALITY;
COLLECTIVELY DESIGNATED*****
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.
NOBLE v. USON
As long as the intention to have the estate collectively distributed
does not appear, the presumption is individual institution.
Art. 848. - INSTITUTION OF BROTHERS & SISTERS
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.
 ART. 848 applies only to TESTAMENTARY
SUCCESSION
 “Others of half blood” also covers sister or brother-in-
laws, but in case of intestacy, they will not get anything
P a g e | 19
Art. 849. - PRINCIPLE OF SIMULTANEITY****
When the testator calls to the succession a person and his children,
they are all deemed to have been instituted simultaneously and not
successively.
 This is merely a rebuttable presumption, hence, if a
contrary intention is present then it must prevail
 Testator is not proscribed to provide for a successive
institution
Art. 850. - STATEMENT OF FALSE CAUSE****
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.
 What is disregarded is the false cause, not the institution
Austria v. Reyes
Before the institution of heirs may be annulled under article 850 of
the Civil Code, the following requisites must concur:
I．cause for the institution of heirs must be stated in the will;
II．the cause must be shown to be false; and
III．it must appear from the face of the will that the testator
would not have made such institution if he had known the
falsity of the cause.
If children who are invalidly adopted are instituted as heirs, the
institution should remain valid. As much as possible, intestacy ought
to be avoided, and the testator’s wishes should be given effect.
The allegation that the institution should be void because it was
based on a false cause, the testator thinking that they had to be
instituted because of the adoption, is of no merit because there is
nothing in the will to indicate that had the testator known of the
invalidity of the adoption, the institution of the children would not
have been made.
Art. 851. - ALIQUOT PART
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.
 Art. 851 applies when there is a remainder or balance
and there is NO INTENT to give all to the instituted heir
or heirs.
 If there is such INTENT, the remainder should be
divided proportionately, applying Art. 852.
Art. 852. - INSTITUTED HEIRS AS SOLE HEIRS TO WHOLE
ESTATE
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 proportionately.

Art. 853. - IN EXCESS OF WHOLE ESTATE; REDUCED
PROPORTIONALLY
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.
PRETERITION
Art. 854. - PRETERITION****
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.
 Cannot apply without a will
PRETERITION or pretermission - is the omission, whether
intentional or not, of a compulsory heir in the inheritance of a
person.
 It consist of the silence of the testator with regard to
a compulsory heir either by not mentioning him or
by not giving him anything in the hereditary
properties but not expressly disinheriting him.
REQUISITES: (TCD)
1. TOTAL omission in the inheritance
2. omission must be of a COMPULSORY heir
3. compulsory heir omitted must be in the DIRECT line
4. Compulsory heir must not PREDECEASED testator
TOTAL OMISSION
 meaning the compulsory heir did not receive any legacy,
devise, or donation/ advance on his legitime. (Morales v.
Olondiz)
 If a compulsory heir is not given anything in the will,
but he has already received a donation from the testator,
P a g e | 20
there is NO preterition because after all, a donation to a
compulsory heir is considered an advance of the
inheritance or legitime. (Art. 1073).
 Upon the death of testator, the donation given to CH
by the testator during his lifetime, shall be added to
back to the value of the estate through collation.
COMPULSORY HEIR IN DIRECT LINE
 Legitimate or illegitimate child
 Parents in absence of descendants
 By fiction of law, adopted child are compulsory heir in
direct line
NOTE: A surviving spouse although a compulsory heir but not
in the direct line, thus, an omission of the wife in the will do
not give rise to preterition.
PREDECEASED
GR: No preterition in case the omitted heir predeceased the
testator
EXCPTN: If the omitted CH has children or descendants,
there is representation wherein they are exalted to the position
of the one they are representing i.e. omitted CH. Hence, there is
preterition
EFFECT OF PRETERITION: (ALR)****
1. The institution of heirs is annulled, automatically, without
need of court action, hence, the proper term should have
been “void”
2. Although the institution of heirs is indeed annulled, the
legacies and devises shall remain valid insofar as they are
not inofficious.
3. Legacies or devisees are not voided, but merely reducible
if the legitime has been impaired.
Acain v. IAC, et al.
FACTS: Nemesio Acain executed a will whereby he gave all his
shares in the conjugal property to his brother Segundo. In case
Segundo predeceases Nemesio, all his shares were to be given to
Segundo’s children. Segundo predeceased Nemesio. Thus,
Constantino and his brothers and sisters, the children of Segundo,
filed a petition for probate claiming the property as Nemesio’s heirs.
Duringthe petition for probate, Virginia A. Fernandez, a legally
adopted daughter of Nemesio and the latter’s widow, Rosa Diongson
Vda. de Acain, moved to dismiss on the grounds: (1) Constantino has
no legal capacity to institute these proceedings; (2) he is merely a
universal heir; and (3) the widow and adopted daughter have been
preterited.
ISSUE: WON there is preterition
RULING:
YES, not because of the surviving spouse but because the adopted
child is omitted.
Adoption gives the adopted person the same rights and duties as
if he were a legitimate child of the adopter and makes the
adopted person a legal heir of the adopter.
The universal institution of petitioner together with his brothers and
sisters to the entire inheritance of the testator results in totally
abrogating the will because the nullification of such institution of
universal heirs-without any other testamentary disposition in the will
amounts to a declaration that nothing at all was written.
The effect of annulling the institution of heirs will be the opening
of a total intestacy except that proper legacies and devises must
be respected.
In order that a person may be allowed to intervene in a probate
proceeding he must have an interest in the estate, or in the will,
or in the property to be affected by it either as executor or as a
claimant of the estate and an interested party is one who would
be benefited by the estate such as an heir or one who has a claim
against the estate like a creditor.
Nuguid v. Nuguid
If a testator institutes in his holographic will a sister or brother as the
only heir, and fails to institute his parents, who are still alive, this is a
clear case of PRETERITION, and the instituted heir should get
NOTHING because said institution is void, on account of the
preterition. The total omission of the parents’ names is not to be
regarded as a case of ineffective disinheritance, but a case of

preterition. The total omission of the parents names is not to be
regarded as a case of ineffective disinheritance, but a case of
preterition.
Neri v. Akutin
It is clear that F was not being made a legatee merely, he was indeed
instituted as heir. It would be error to consider all bequests in favor
of strangers as legacies or devises, otherwise there would have been
no need of them distinction, in effect, made in Art. 854.
Art. 855. - EFFECT OF PARTIAL OMISSION OF CH
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.
 This article speaks of remedy in case of partial omission
of the compulsory heir or he received less that what he is
entitled from his legitime. In such case, the differential
shall be taken first from the free portion, if any, if none,
legacy or devise or CH’s share shall be reduced to
complete the legitime.
REMEDY: The legitime must be completed first by recovry from:
1. Undisposed portion of the estate
2. Legacy shall be reduced (ART.854 last par)
3. Compulsory heirs or Voluntary heir
REASON: It shall be unfair to the CHs if the legatee, who may be a
total stranger to testator, to be placed in more advantageous position.
Thus, he must contribute to the impaired legitime.
EXAMPLE FOR NO.1:
EXAMPLE FOR NO.2:
EXAMPLE FOR NO.3:
P a g e | 21
Art. 856 — NO RIGHT OF REPRESENTATION IN
PREDECEASED OF VOLUNTARY HEIR & COMPULSORY
HEIR*****
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.
 this article applies by analogy to DISINHERITANCE: A
compulsory heir who is disinherited shall transmit no
right to his own heirs except when there is a Right of
Representation.
RULES:
VOLUNTARY HEIR - here covers also legacies or devises.
 Hence, if a legacy or devise is given, it transmits nothing
to the heir of the voluntary heir if the voluntary heir dies
before the testator
COMPULSORY HEIR
GR: If a compulsory heir predeceases the testator, is incapacitated or
renounces or repudiates the inheritance, he transmits nothing to his
own heirs.
EXCPTN: Right of Representation
 When a compulsory heir who is capacitated and did not
renounce his his inheritance, predeceased the testator, his
inheritance will be received by his heir and representative.
 He does not transmit, for to transmit is to imply that he is
entitled to it but gives it to his representative. Since he
predeceased, he never was entitled, and therefore what he could
have received is instead given, not by him but by the law to the
representative.
SUBSTITUTION
Section 3
SUBSTITUTION OF HEIRS
Art. 857. - SUBSTITUTION
Substitution is the appointment of another heir so that he may enter
into the inheritance in default of the heir originally instituted.
 Applicable only to testamentary succession
 substitution is nothing but a secondary institution
 There may also be substitution of legatees and devisees.
TWO (2) CONCEPT OF SUBSTITUTION:
Under substitutions, in general, the testator may either:
1. (ART. 859);
 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.
 SIMPLE SUBSTITUTION - second heir
takes the inheritance in default of the first heir
by reason of incapacity, predecease, or
renunciation.
2. (Art. 863)
 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.
 FIDEICOMMISSARY - both the first and
second heirs inherit:(Simultaneously, insofar
as the right to succeed is concerned; and
successively, insofar as the enjoyment and

possession of the property are concerned.)
Purpose of Substitution
Substitution was devised in order to:
a. prevent property from falling into the ownership of
people not desired by the testator.
b. Prevent 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
Nature of Substitution
1. Substitution obtains only in testate succession, hence, there is
no substitution in intestate succession;
2. It is a consequence of the principle of freedom of disposition
which is recognized in favor of the testator;
3. It is nothing more than a subsidiary or secondary institution
of a second or subsequent heir; hence, Section 2 on Institution
of Heir also applies except insofar as its provisions may be
modified by those on substitution;
4. It is really a conditional institution, involving as it does a
suspensive conditional institution for the substitute heir; hence,
the provisions on conditional institution are also suppletorily
applicable;
5. It may refer only to the free portion because the law prohibits
the testator from imposing any burden, encumbrance, condition
or substitution of any kind whatsoever on the legitime (Art.
872, 904, par. 2);
6. It has preference, after institution of heir(Art. 840), over right
of representation (Art. 970), right of accretion (Art. 1015) and
intestacy (Art. 960)
Art. 858. - KINDS OF SUBSTITUTION
Substitution of heirs may be:
(1) Simple or common; (ART.859)
(2) Brief or compendious; (ART.860)
(3) Reciprocal; or (ART. 861)
(4) Fideicommissary (ART.863)
Art. 859. - SIMPLE SUBSTITUTION***
The testator may designate one or more persons to substitute the
heir or heirs instituted in case such heir 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.
 The substitute enters into inheritance not as heir
succeeding the original heir but as an heir of testator.
SIMPLE SUBSTITUTION - second heir takes the inheritance in
default of the first heir by reason of incapacity, predecease, or
renunciation
1ST. PAR: EXPRESS SUBSTITUTION
1. Predecease
2. Renunciation
3. Incapacity
EX. The testatrix instituted an heiress and ordered that the
children of the heiress would substitute the heiress should said
heiress die after the testatrix. Is this a case of simple
substitution?
ANS: No, this is not a case of simple substitution. In simple
substitution of this nature, the heir or heiress dies before,
and not after the testator or testatrix.
Testator T institutes A as his heir and if A should predecease
him, T designates S as a substitute to take A's place.
ANS: Here, the substitution shall only take place upon A's
death. If A should repudiate the inheritance or becomes
incapacitated, S cannot substitute.
2ND PAR: ABSENCE OF STATEMENT OF CASES
 comprise of the three mentioned in the preceding par.
Unless, testator provides otherwise.
EX: Testator T institutes A as his heir and if A should not
succeed him, T designates S as a substitute to take A's place.
ANS: Here, the designation is made in general terms, hence,
there will be substitution whether T predeceased, T
repudiates the inheritance or becomes incapacitated to
succeed.
P a g e | 22
T made a will instituting X as heir, and Y, as substitute. T died
on Jan. 5, 2004. X renounced the inheritance on Jan. 7, 2004. Y
died on Jan. 8, 2004. Can Z, the child of Y get anything from
T’s estate?
ANS.: Yes, because this is not a case of predecease on the
part of Y, who after all survived the testator, and
immediately inherited from T, subject to the condition of X’s
non-inheritance. Since the condition was fulfilled there is no
doubt that Y inherited. True, Y is now dead, but his son Z
can share in T’s estate, not as an heir of T, but merely to get
the share already inherited by his father Y.
Instances When the Substitution is Extinguished
when the substitute: (PIR-ARV)
1. Predeceases the testator
2. Incapacitated
3. Renounces the inheritance
4. Institution of heir is Annulled (say by preterition)
5. Institution or the substitution is Revoked by the testator
6. will is Void or disallowed or revoked
EX: T made a will instituting X as heir, and Y as substitute.
In 1998, Y died, leaving Z, his child. In 2003, T died but X is
incapacitated to inherit. Is Z going to inherit from T?
ANS.: No, because Y may be considered a voluntary heir,
and since he predeceased the testator, he transmits
nothing to his own heirs. (See Art. 856, 1st paragraph). In
the absence of any other provision in the will, legal
succession will take place.
Art. 860. - BRIEF OR COMPENDIOUS SUBSTITUTION
Two or more persons may be substituted for one (COMPENDIOUS);
and one person for two or more heirs. (BRIEF)
 This Article is really a variation of the simple substitution.
BRIEF - plurality of substitutes
 substitutes will divide equally the inheritance of the
instituted heir
COMPENDIOUS - plurality of instituted heir
 The substitute inherits ONLY if ALL the heirs die ahead
of the testator, renounce the inheritance or become
incapacitated.
 But if only one of the original heirs does not succeed,
the substitute does not acquire his share unless
otherwise provided by the testator.
 In this case, the share of such original heir shall go
to the intestate heirs of the heir who does not inherit
or to the other instituted heirs by right of accretion.
Art. 861. - RECIPROCAL SUBSTITUTION
If heirs instituted in unequal shares should be reciprocally
substituted, the substitute shall acquire the share of the heir who
dies, renounces, or is incapacitated, unless it clearly appears that the
intention of the testator was otherwise.
If there are more than one substitute, they shall have the same share
in the substitution as in the institution.
 the essence of which is that the instituted heirs are made
the substitutes of each other.
 the words “same share” should be interpreted to mean
“same proportionate share.”
 The presumption is that the testator wanted it this
way, otherwise, if their shares were to be absolutely
equal, they would not have been instituted
unequally.
RECIPROCAL SUBSTITUTION - is where all the heirs are
constituted as substitute of one another.

T gave A a legacy of P120,000; B, P20,000; C, P40,000. If A
predeceases T, how much of his shares, if any, will go to B and C,
by way of SUBSTITUTION?
ANS.: None, for no substitution was provided for in the will.
However, as will be discussed later, they will inherit by
ACCRETION, and it is worthwhile to note that those who
inherit by accretion inherit also in the same proportion as in the
institution (or devise or legacy).
Art. 862. - CHARGES & CONDITIONS UPON IH ARE
APPLICABLE TO SUBSTITUTE
The substitute shall be subject to the same charges and conditions
imposed upon the instituted heir, unless the testator has expressly
provided the contrary, or the charges or conditions are personally
applicable only to the heir instituted.
GR: If the substitute inherits, he must fulfill the conditions imposed
on the original heir.
 the testator intended the substitute to stand on the same
footing as the original heir
EXCPTN:
1. Testator EXPRESSLY provides otherwise in the will; or
2. Charges or conditions imposed are PERSONAL to
original heir
Art. 863. - FIDEICOMMISSARY *****
A fideicommissary substitution by virtue of which the fiduciary or
first heir instituted is entrusted with the obligation to preserve and
to transmit to a second heir the whole or part of the inheritance,
shall be valid and shall take effect,
provided such substitution does not go beyond one degree from the
heir originally instituted, and provided further, that the fiduciary or
first heir and the second heir are living at the time of the death of
the testator.
CHARACTERISTICS:
 Fideicommissary is an indirect substitution where both
heirs inherit one after the other.
 while in the simple substitution only ONE of the heirs
inherits, in the fideicommissary, BOTH inherit.
 The transmission takes place at the time expressly
stated by the testator in his will, or in silence, upon
death of the first heir.
PURPOSE:
 the power to appoint a fideicommissary substitute 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
REQUISITES: (EFA-SOL-F)***
1. Expressly stated in the will by:
a) naming it as fideicommissary substitution; or
b) By clearly and expressly providing an absolute
obligation to preserve and transmit
2. First heir - fiduciary
3. First heir must be imposed with an absolute obligation,
not conditional, to preserve and transmit to the second
heir, either in whole or part of the inheritance
4. Second heir
5. Second heir must not go beyond one degree from the
fiduciary or originally instituted heir
6. Both first & second heir must be LIVING or at least
CONCEIVED at the time of death of testator
7. Both must be CAPACITATED to succeed
8. Fideicommissary substitution must never burden the
legitime, thus, it can be mposed upon the free portion
only
FIRST HEIR
 almost like a usufructuary, with the right to enjoy the property.
Thus, like a usufructuary, he cannot alienate the property
 implicitly bound to make an inventory to know what properties
he must preserve and transmit.
 entitled to a refund of useful improvements, at least insofar as
an increase in value is concerned.
SECOND HEIR
 most likely a naked owner
 Upon transmission to him of the property, full ownership
is consolidated in him.
 inherits not from the first heir but from the testator.
P a g e | 23
T institutes A as 1st heir, B as second heir. B dies in 1999; T dies in
2012. In 2013, does A inherit?
SSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSS. :
Yes, for while the substitution is not valid, the institution
remains valid. (Art. 868).
Art. 864. - FS MUST NOT BUDEN LEGITIME
A fideicommissary substitution can never burden the legitime.
Art. 865. - EXPRESSLY MADE; OBLIGED TO DELIVER
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.
Extent of the Inheritance to be Delivered:
 Unless specified, it is understood that the whole property
received by a first heir in a fideicommissary substitution
must be delivered.
Obligations of the Fiduciary (DPI) ******
1. Deliver the inheritance
 the delivery must be made at the time or under the
circumstances stated by the testator, otherwise, it
shall be made at the death of the fiduciary on the
presumption that the intention of the testator is that
the fiduciary, as beneficial owner, should enjoy it
during his lifetime. The inheritance may cover the
whole or only a part of the estate
2. Preserve the inheritance
 this is a duty corollary to his obligation to deliver.
Also implied is the duty not to alienate;
3. Make an inventory of the inheritance
 this is implied from the fact that he has to account
for the property object of the substitution.
 Furthermore, it is necessary to determine whether
the deductions made by him are legitimate or not,
such as expenses, credits and improvements, unless
the testator provides otherwise.
NOTE: The fiduciary is not liable for the loss or
deterioration caused by fortuitous events without his fault.
He is not required to furnish a bond or security.
One implication from the duty “to deliver” is that the first heir
must not ordinarily alienate the property to a stranger. What
happens if he does this?
GR:alienation or registration may still be made subject to the
fdeicommissary substitution.
EXCPTN: If the first heir succeedied in transfering the
certificate of title to under his name and subsequently alienate
it to a third person in good faith and for value.
Moralejo, et al. v. Maquiniano CA, 40 O.G. 227
FACTS: Matea, in her will, gave Benvenuto a parcel of land with the
condition that he must not alienate it but pre- serve it instead for his
children. Matea then died, and Benve- nuto inherited the land.
Benvenuto disregarded the will and sold the land to Catalino who did
not know of the existence of the condition. Afterwards, Benvenuto
died. His children now brought this action to recover the land from
Catalino.
ISSUE: Will the action prosper?
HELD: Yes, the action will prosper in view of the tes- tamentary
reservation in favor of the children. This is true, notwithstanding
Catalino’s good faith, for he acquired merely Benvenuto’s right.
Hence, applying the principle of caveat emptor (let the buyer
beware), we can say that the sale to him was valid, but it was subject
to the testamentary reservation, namely, that upon Benvenuto’s death
his children would be- come full owners of the property.
[NOTE:
(a) While Benvenuto was still alive, it is evident that the children
could not get the property for they would be entitled to it only

after Benvenuto’s death.
(b) If Benvenuto in his lifetime had applied for the reg- istration of
the land, the children’s duty should have been to enter an
opposition thereto, not for the real purpose of opposing, but for the
purpose of having their testamentary right recorded in the
Torrens Title. If no such annotation is made, then an in- nocent
purchaser for value would take the property free from all liens and
encumbrances, with the children not possessed of the right to
get the land away from him. This would be true even if the
action for recovery is brought after their father’s death. Their only
right then would be to get from the Assurance Fund of the
Torrens System, or to get reimbursement from their father’s
estate.].
Art. 866. - 2ND HEIR’S RIGHT TO SUCCESSION
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.
 applies only when all the essential requisites for a fideicommissary
substitution are present,
 In other words, while it is permissible for the second heir to
predecease the first heir, neither must predecease the testator
 Their rights become vested upon the death of the testator: 1st
heir: Usufruactuary; 2nd heir: naked owner
 Hence, the second heir can sell the property even if he still
cannot enjoy the property because the usufruct still belongs
to the 1st heir. But the buyer is also subject to the right of the
first heir to enjoy the property.
 Where the fideicommissary substitution is conditional, the right of
the fideicommissary is merely inchoate. His death before the
condition has been fulfilled, prevents the acquisition by him of any
right to the substitution, and consequently, he would have no right
to transmit to his heirs.
Art. 867. - VOID CONDITIONS
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.
PERPETUAL
 valid only for 20 yrs
TEMPORARY
 GR: maximum prohibition to alienate is only 20 years and
must not go beyond 1 degree under ART 863
 EXCPTN: Prohibition to alienate for more than 20 years
may occur in fideicommissary substitution (Ex. 1st heir
lived for 50 yrs)
T instituted A as his only heir, but prohibited him and all who may
subsequently inherit from him to dispose of the property for a
period of twenty years. T then died. A is bound not to alienate for 20
years. But A dies 3 years after T. B, the son of A then inherits the
property from A. Is B still bound to respect the temporary
prohibition?
ANS: Yes, for the next 17 years.
Suppose B dies after 10 years more, and the property is in turn
inherited by C who is his son, is C bound not to alienate for the
remaining 7 years?
ANS: No more, because although a total of 13 years only
has lapsed, still to impose the prohibition for the remaining
7 years on C would be beyond the limits of Art. 863, since
C is not a first degree relative of A who originally
inherited the property.
NOTE:
 Even if we construe one degree as one transfer, the same
conclusion is reached, since here, the second transferee, C, should
no longer be bound.
 The purpose of the law is to prevent a case worse than the
entailment in a fideicommissary substitution.
P a g e | 24
Art. 868. - NULLITY OF FS DOES NOT PREJUDICE 1ST HEIR
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.
 It becomes a simple substitution
Art. 869. - GRANT OF USUFRUCT; ,SUCCESSIVE ENJOYMENT
OF USUFRUCT ART. 863 APPLIES
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.
 If given to various persons successively, as provided in ART.
863, it cannot go beyond one degree usufruct is ordinarily
extinguished by the death of the usufructuary, unless the
contrary is provided in the will
May a usufruct be granted to various persons simultaneously?
 YES. In such a case, said persons would be co- owners of the
usufruct and of the usufructuary rights.
 Art. 564, CC distinctly provides that “usufruct may be
constituted on the whole or part of the fruits of the thing, in
favor of one or more persons, simultaneously or successively,
and in every case, from or to a certain day, purely or
conditionally.”
Art. 870. - PROHIBITION ON ALIENATION MORE THAN 20
YRS IS VOID
The dispositions of the testator declaring all or part of the estate
inalienable for more than twenty years are void. Cannot apply to
legitime & if there is a fideicommissary substitution, for this must be
governed by Art. 867(2).
CONDITIONS
SECTION 4
CONDITIONAL TESTAMENTARY DISPOSITIONS AND
TESTAMENTARY DISPOSITIONS WLTH A TERM
Art. 871. - KINDS OF INSTITUTION
The institution of an heir may be made conditionally, or for a certain
purpose or cause.
 Conditions to affect the disposition must appear in the language
of the will, and cannot be presumed.
 Parol evidence to prove the existence of oral or other
conditions cannot be allowed. But may be given effect by
incorporation of reference
 In case of doubt, it shall be resolved against the existence of
condition, in consonance with the nature of testamentary
disposition as generally acts of liberality.
CONDITION - future or uncertain event, or a past event unknown to
the parties, upon which the performance of an obligation depends
(Art. 1179)
 Its most distinct characteristic is “uncertainty”
KINDS OF INSTITUTION:
SIMPLE / PURE INSTITUTION - that which takes effect
immediately and automatically upon death of the testator without any
charge or condition
CONDITIONAL - a designation of some future and uncertain event
upon which the validity of an accepted obligation or testamentary
provision depends.
WITH A TERM - A day certain is understood to be that which must
necessarily come, although it may not be known when. (Art. 1193,
3rd paragraph). 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, CC— “the designation of the day or time
when the effects of the institution of an heir shall
commence or cease,” is allowed.
MODAL - when the institution of an heir is made, for a certain
purpose or cause. (Art. 871) or those provided in ART. 882.
 “modo” also signifies every onerous disposition by which
the obligor imposed upon another and thus limited his
promise,
Art. 872. - NO CHARGE, CONDITION, OR SUBSTITUTION
UPON LEGITIME
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.
GR: ART. 873
EXCPTN: testator can validly impose a prohibition against the
partition of the legitime, for a period not exceeding twenty years.
 Art. 1083 provides: “Every co-heir has a right to demand
the division of the estate, unless the testator should have
expressly forbidden its partition, in which case the period
of indivision shall not exceed twenty years as provided in
Art. 494.
Art. 873. - IMPOSSIBLE OR ILLEGAL CONDITION
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 CONDITIONS
 They are considered as not imposed but the validity of the
institution of heir and the testamentary disposition is
maintained, even if the testator should otherwise provide.
Without the condition, the effect is that of pure institution.
REASONS FOR THE RULE UNDER ART. 873:
1. Impossible condition is considered as a mere error, oversight
or whim on the part of the testator; hence, it would be unjust to
prejudice the heir, devisee or legatee because of it;
2. The will is made by the testator with the intention to benefit
persons worthy of his generosity; hence, the impossible
condition should not be considered important enough to
frustrate the plain desire and intent of the testator;
AMBIGUOUS CONDITIONS
 If the condition is ambiguous, its meaning should be
ascertained following the rules of interpretation of testamentary
dispositions.
 However, if still its meaning cannot be ascertained, or it is
contradictory or unintelligible, it will be considered as not
imposed and regarded as an impossible condition under Art.
873.
NO-CONTEST AND FORFEITURE PROVISION
 A provision in the will states "that should any heirs, devisees
or legatees contest or oppose its probate, the latter shall lose
his or her right to receive any inheritance or benefit under my
will, which shall be forfeited in favor of the other heirs,
devisees or legatees"
Santos Vs. Buenaventura
Where the heir, devisee or legatee had acted in good faith in
opposing the probate of the will, he should not forfeit his right under
the will in "his desire to know the truth and to protect his rights" in
case it is allowed.
P a g e | 25
Art. 874. - ABSOLUTE CONDITION NOT TO CONTRACT
FIRST OR SUBSEQUENT MARRIAGE
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.
ABSOLUTE CONDITION NOT TO MARRY - Void; contrary to
good morals and public policy
ABSOLUTE CONDITION NOT TO RE-MARRY
GR: Void; contrary to morality and public policy.
EXCPTN: When imposed upon widower or widow by:
1. Deceased spouse
2. ascendants or descendants of the deceased spouse
Reason: justified because of sentimental and economic reasons.
RELATIVE PROHIBITION TO MARRY OR RE-MARRY
 prohibition to marry a particular girl, or at a particular
time, or for a number of years
,
GR: Valid, by implication, and must be complied with unless
impossible or illegal.
EXCPTN: When it becomes so onerous or burdensome
ART. 874, 2nd par: A stopping of a usufruct, allowance, or
personal prestation the moment the heir, devisee, or legatee marries
or remarries — is justified since the law allows their giving for the
time during which the person remains unmarried or in widowhood.
Art. 875. - DISPOSITION CAPTATORIA*****
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.
 Disposition itself is void, not only the condition, because
it tends to make the making of the will a contractual act.
 It contradicts the nature of testamentary disposition as an
act of liberality of the testator
 Applicable only to wills, not other contracts ex. Deed of
Donation
Art. 876. - POTESTATIVE CONDITIONS
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.
 Condition here must be complied, AFTER testator’s
death, unline Art. 877 which may be complied BEFORE
or AFTER t’s death
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.
2nd par:
GR: Art. ART. 876 cannot apply, if the condition already complied
by the heir, is in nature cannot be fulfilled again
EXCPTN: If the condition is susceptible of being complied again,
then the heir must comply
Art. 877. - CASUAL & MIXED CONDITION
If the condition is casual or mixed, it shall be sufficient if it happened
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 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 - depends upon chance and/or upon the will of a third
person
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).
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.
MIXED - depends partly both upon the will of the heir himself AND
upon chance and/or the will of a third person.
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).
Effect of Substantial or Constructive Compliance
 POTESTATIVE - sufficient
 CASUAL - there must be actual or strict compliance
 MIXED - constructive compliance is sufficient when
non-fulfillment is caused by a person interested in the
non-fulfillment.
Art. 878. - SUSPENSIVE TERM
A disposition with a suspensive term does not prevent the instituted
heir from acquiring his rights and transmitting them to his heirs
even before the arrival of the term.
TERM - any future and certain event upon the arrival of which the
validity or efficacy of testamentary isposition depends
SUSPENSIVE TERM - one that merely suspends the demandability
of a right. It is sure to happen.
EX. If Maria dies…
SUSPENSIVE CONDITION - suspends, not merely the
demandability, but even the acquisition itself of the right.
EX. If Maria dies of cancer
SUSPENSIVE TERM v CONDITION
 term is sure to happen, while a condition may or may not
happen.
 Suspensive term suspends only demandability of right to
succession, while suspensive condition suspends both
demandability and right itself.
EFFECTS OF SUSPENSIVE TERM:
1. Acquisition of right not suspended, only its
demandability.
2. Acquisition not affected by predeceased - being a
vested right, it is no longer affected even if such heir dies
before arrival of the term.
3. Administration required pending the term’s arrival -
instituted heir may only demand the inheritance once term
arrives
Art. 879. - NEGATIVE POTESTATIVE CONDITION; CAUSIA
MUCIANA*****
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 interest.
 Art. 879 refers to a condition, not term, and if the
condition is unfulfilled, it is as if no rights were ever
acquired.
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Caucion Muciana - is the bond or security that should be given by
the instituted heir imposed with negative potestative condition in
favor of those who would get the property if the condition be not
complied with (like the intestate heirs or the substitute, etc.).
The favored persons are naturally the ones who can demand the
constitution of the security.
EXCEPTION FROM CAUCION MUCIANA:
 If the subject of inheritance is Allowance, Usufruct or
Personal prestation.
 In case of contravention, the heir is not required to
return what he received and the fruits thereof. Art.
874 2nd, is applied by analogy.
EFFECT OF NEGATIVE POTESTATIVE CONDITION:
1. RIGHT OF THE HEIR TO RECEIVE INHERITANCE
 The heir instituted under such a condition has a right to
receive his share of the inheritance upon the death of the
testator. He loses his right only when he violates the
condition. In such case, he must return the property
received together with the fruits and interests.
2. OBLIGATION OF THE HEIR TO GIVE SECURITY
 Inasmuch as the negative potestative condition is a
continuing one, and there is always a possibility that the
heir may violate the condition, and because of his
insolvency, the person or persons who will succeed upon
such violation, may be deprived of the hereditary
property, thus the law requires the heir or devisee must
give security.
3. RIGHT OF AFFECTED PARTIES TO DEMAND SECURITY
 The security may be demanded by those whom the
property will go in case of violation of the condition, more
specifically, the substitute, or a co-heir with a right of
accretion, or intestate heirs. If the heir fails to give the
security required, the property shall be placed under
administration (Art. 880, par. 2)
Art. 880. - SUSPENSIVE CONDITION PLACED UNDER
ADMINISTRATION
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
and to negative potestative condition
Administration under a ART 880
The estate shall be placed under administration in the following
cases:
1) Suspensive Condition - the heir, devisee or legatee
acquires no right until the condition is fulfilled. The administration
shall continue until the condition is fulfilled or it becomes certain
that it cannot be fulfilled;
 in the latter case, 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.
2) Negative Potestative Condition - when the heir does not
give the security that he will not do or give that which has been
prohibited by the testator (Art. 879), the administration shall
continue until the security is given.
ART 880 v ART 885

Art. 881. - APPOINTMENT OF ADMINISTRATOR
The appointment of the administrator of the estate mentioned in the
preceding article, as well as the man- ner of the administration and
the rights and obligations of the administrator shall be governed by
the Rules of Court.
EXCPTN:
1. EXTRAJUDICIAL SETTLEMENT - If thre is no will
and no debt and all of the heirs are of legal age or if
minors, are represented by their judicial guardian or
representative; extrajudicial settlement or administration
shall be published in a newspaper of general circulatin
 If there is only one heir (or one legatee or one
devisee), he may adjudicate to himself the
entire estate by means of an affidavit filed in
the office of the register of dee
2. SUMMARY SETTLEMENT OF ESTATE - if the gross
value of the estate does not exceed 10k
 10k is jurisdictional
ORDER OF PREFERENCE IN ADMINISTRATION:
a) Surviving spouse or nearest kin competent and willing to
serve
b) Principal creditor
c) Other person as the court may select
Art. 882. - MODAL INSTITUTION
The statement of the object of the institution, or the application of
the property left by the testator, or the charge imposed by him, shall
not be considered as a condition unless it appears that such was his
intention.
That which has been left in this manner may be claimed at once
provided that the instituted heir or his heirs give security for
compliance with the wishes of the testator and for the return of
anything he or they may receive, together with its fruits and
interests, if he or they should disregard this obligation.
 Mode is not a condition; one practical difference can be
pointed out, namely, that in a modal institution, the
inheritance can be immediately demanded, provided that
security is given
MODAL INSTITUTION - is that which the testator has statement in
his will any of the following:
1. Object of institution
2. Application of the property
3. Charge imposed by the testator
 Effects begin from a certain day (Ex: “beginning 2008”)
 Acquisition and enjoyment of the property by the instituted heir
EFFECT OF MODAL INSTITUTION:
1. Instituted heir may immediately claim the property
 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).”
2. But he must give security for compliance of testator’s
wishes
 The security may be demanded by the legal
heirs or those who will benefit from non-
compliance by the instituted heir
3. Non-compliance with the mode operates as negative
resolutory, whereby instituted heir is required to return
indeed anything he may have received together with its
fruits and interest, otherwise, the security will be
forfeited.
4. If exact compliance is not possible, it most be complied in
a manner most analogous and in conformity with
testator’s wishes.
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RULES IN CASE OF DOUBT
 As between mode and condition, it must be understood as
mode
 As between, mode and statement or expression, it must be
interpreted in the latter sense, since it is less burdensome
This is in consonance with the principle of testamentary
disposition as an act of liberality
Art. 883. - SUBSTANTIAL COMPLIANCE or
CONSTRUCTIVE FULFILLMENT
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.
 1st par. may apply to Modal Institution
 2nd par. may apply to both mode or SUSPENSIVE
condition
 When there is substantial or constructive compliance, the
heir is not obliged to return anything
Art. 884. - SUPPLETORY FORCE OF RULES ON
CONDITIONAL OBLIGATIONS
Conditions imposed by the testator upon the heirs shall be governed
by the rules established for condtional obligations in all matters not
provided for by this Section.
Art. 885. - DESIGNATION OF THE DAY OR TIME
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.
 This article speaks of SUSPENSIVE OR RESOLUTORY
TERM, unlike ART 880 which speaks of SUSPENSIVE
CONDITION
KINDS OF INSTITUTION WITH A TERM:
1. SUSPENSIVE or ex die
2. RESOLUTORY or in diem
3. BOTH S & R or ex die in diem
SUSPENSIVE or ex die
shall commence on a day certain after testator’s death, with another
person, usually the legal heir, holding the property during the
interval period between testator’s death until arrival of designated
period
OBLIGATIONS OF LEGAL HEIR WHERE INSTITUTION
SUSPENSIVE
When the institution is suspensive, the legal heir who would have
inherited by intestacy had there been no condition shall be considered
called to succession in the meantime until the arrival of the
suspensive period
1) To preserve the hereditary property
 the legal heir is a usufructuary (not a mere
administrator) during the time of his possession.
 He has the duty to take care of the hereditary
property with the diligence of a good father of the
family or that required by the circumstances.
 Liable for damages suffered by the property due to
his fault or negligence.
2) Not to alienate the property
 because upon the arrival of the suspensive period,
he has to give the property to the instituted heir and
upon delivery to such heir, the security can be
cancelled
3) To make an inventory
 It is implied from the position of the legal heir being
a usufructuary. An inventory showing the value of
the property is necessary to determine the

sufficiency of the security
4) To give security
 As it is required for the protection of the instituted
heir who will get the property later.
 If the security is not given, such failure will be
considered renunciation, in which case, the next
legal heir in the order of intestate succession will be
called.
REASON FOR REQUIREMENT OF SECURITY:
Art. 885 is explicit that legal heir under suspensive term
shall give security before he could enter into possession
of the inheritance.
EXCPTN: the State is the legal heir
EX.: A has a brother B (A’s only relative) but institutes
C as heir beginning 5 years from A’s death. During the
five-year interval B is considered called to the
succession until the period expires. But B cannot enter
into possession of the property un- til after he has given
sufficient security. The security must be approved and
considered suitable by C, the instituted heir.
RESOLUTORY or in diem
 effects cease on a certain day (Ex: “up to 2008”)
 Enjoyment of the property by the instituted heir shall
commence upon testator’s death until the expiration of
the designated period when another shall succeed him.
 Basically, the obligation of the interim heir is the same
as legal heir under suspensive, except that he is not
required to give security.
BOTH S AND R or ex die in diem
 from a certain day to a certain day (Ex- ample:
“beginning 2008 until 2009”)
Instituted heir’s njoyment of the property to commence on the day
certain after the death of the testator and to continue until the
expiration of another designated period, when another shall succeed
him, with somebody else holding the property during the interval
between the death of the testator and the arrival of the first period. So,
the effects of the institution begin from a day certain until they cease
on another day certain (e.g., beginning 2002 until 2004)
LEGITIMES/DISTRIBUTION
SECTION 5 LEGITIME
Art. 886. -LEGITIME***
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.
Philippines follow system of legitime.
SYSTEM OF LEGITIME - is the limitation upon the freedom of
testator to dispose of his property and To protect the children and
the surviving widow or wid- ower from the unjustified anger or
thoughtlessness of the other spouse
Two (2) CONCEPTS OF LEGIME:
1. As property - part of testator’s property reserved by law
2. As a right - right of compulsory heir to succeed such
portion
 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.
TABLE OF LEGITIME
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Art. 887. - KINDS OF CH (2LWA-O)
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
CLASSES OF COMPULSORY HEIRS:
1. Primary compulsory heirs - They inherit all at the same
time. They concur with each other.
i. Legitimate children and their descendants
(legitimate)
ii. Surviving spouse
iii. Natural children (acknowledge & by fiction of
law)
iv. Illegitimate children and their descendants
(legitimate or illegitimate)
2. Secondary compulsory heirs - They inherit only in the
absence of No. 1 in Art. 887.
i. Legitimate ascendants and parents, in default
of No.1
ii. Illegitimate parents (no other ascendants)
NOTE: Brothers and sisters are not compulsory heirs
Art. 888. - LEGITIME OF L&D; FREE PORTION****
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.
SHARE TO HEREDITARY ESTATE:
1. LEGITIMATE C&D = 1/2 of hereditary estate of each
of their parents
2. SURVIVING SPOUSE = the property of each spouse is
1/2 of absolute community or cpg; hence the spouse gets:
1/2 share from ACP/CPG + share from the
estate of deceased spouse
3. ILLEGITIMATE CHILD = 1/2 of the share of legitimate
child or descendant
NOTE:
 The legitime of Surviving spouse and Illegitimate child
shall be TAKEN FROM THE FREE PORTION. What
remains shall be the Free disposal.
 COMPUTE FIRST THE LEGITIME before thse share
of the survivinf spouse, provided there are 2 or more
legitimate children.
Art. 889. - LEGITIME OF LEGITIMATE PARENTS OR
ASCENDANTS; C&D FREE DISPOSAL
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 provide.
 Legitime of legitimate parents are ½ of the net hereditary
estate.
 Only inherits in absence of legitimate children
 Legitimate parents may be excluded only by No.1
 Illegitimate parents are excluded by Illegitimate child or
descendants

Art. 890. - DIVISION IN THE ASCENDING DIRECT LINE
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.
 Observes RULE ON PROXIMITY - nearest kin shall
inherit
 There is no right of representation in the ascending line.
 If the one of the legitimate parent predeceased the
child or descendant, the grandparent cannot
represent the former.
 In such case, the 1/2 portion of the HE shall go to
the living parent of deceased.
 Only if both legitimate parents are dead that the
paternal and maternal line gets share from the estate i.e.
1/2 each
 this rule applies only when the ascendants are all of
equal degree, that is, all are grandparent.
RESERVA TRONCAL
Art. 891. - RESERVA TRONCAL*****
The ascendant who inherits from his descendant any property
which the latter may have acquired by gratuitous title from another
ascendant, or a brother or sister, is obliged to reserve such property
as he may have acquired by operation of law for the benefit of
relatives who are within the third degree and who belong to the line
from which said property came.
PURPOSE: To prevent the the property of the family from falling
into the hand of another family.
CONCEPT: To return the property from where it originally came
from. It is actually a burden, a charge or a restriction on the legitime
of the ascendant.
REQUISITES:
1. Acquired or inherited by gratuitous title by the descendant from
the ascendant or illegitimate brother or sister (source of origin)
2. The propositus died without legitimate issue or heir in the direct
descending line
3. the other ascendant of the propositus belonging to another line
inherited the property by operation of law, either intestacy or by
legitime in testamentary succession
4. Relatives within 3rd degree in the direct line where such
property came, counted from the propositus
THREE (3) TRANSMISSION:
1. By gratuitous title from Ascendant, or half brother or sister to
propositus
2. Second trans.: by operation of law from propositus to the
other ascendant of another line
3. Third Trans.: From the reservor to the reserve
REQUIREMENTS
PROPOSITUS:
(1) Must be descendant of the origin OR of the half brother oor
half sister of the source of rhe property whose death creates or
gives rise to reserve troncal
(2) Must be the legitimate relative of the ascendant or half
brother or siser
(3) He must have inherited the property by gratuitous title
(donation, testate or instestate succession)
(4) No legitimate children or descendants or if there are, they
should be disqualified or unwilling to inherit or legally
disinherited;
a. Otherwise , there can be no reserve troncal for it
would be impossible to pass the property by operation
of law to the ascendant
NOTE:
 Propositus is called an ARBITER because during his lifetime,
there can be no reserva yet. He exercise right of ownership
P a g e | 29
towards the property. Thus, he has the discretion whether to use
or dispose the property to anybody.
 Onlyupon the death of the propositus that the oblogition by the
reservoir shall arise.
 If propositus executed a will, what is transferred to the reservor
is the amount or value of reservable corresponding to the
legitime of the of the reservoe
 If NO WILL, entire property is transmitted ti the reservor by
operation of law
RIGHTS OF RESERVA
(1) No reserva yet while the propositus is alive.
(2) He exercise right of ownership over the property; whether to
use, destroy or dispose the property solely lies upon him subject
to the limitation of inofficious donation and non-impairment of
legitime.
(3) I therefore follows that the existence of the reserve troncal
depends upon the propositus.
vRESERVOR OR RESERVISA
(1) Must be the legitiate ascendant of the propositus
(2) He inherits the reservable property from the propositus and is
obliged to reserve the same until his death to transmit the
same in favor of the reserves who is the third degree relative
counted from the propositus and within the line of he source of
origin.
(3) His inheritance must be by operation of aw
(4) He must belong to the line other than that of the immediate
source of the reservable property
RIGHTS OF THE RESERVOR OR RESERVISTA
(1) CONDITIONAL OWNER OF THE RESERVABLE
PROPERTY
(2) Has legal title and dominion over the property
(3) Right to full use and enjoyment of the property during his
lifetime
(4) May alienate or incumber it subject to reservation
NOTE:
 Reservor is not a mere usufructuary, he is the full owner of
the property thus he can alienate, donate or pledge the property.
 But his ownership is subject to RESOLUTORY CONDITION
i.e. upon his death, there must be relatives of the propositus who
are LIVING & WITHIN THIRD DEGREE OF
CONSANGUINITY from the propositus. Upon the happening
of which, the ownership of the reservor will be extinguished.
o Hence, reservable property is not part of his estate and
cannot be subject to the payment of his own debt
EFFECT OF ALIENATION
 PERSONAL PROPERTY
o No obligation to return but recoverable from the estate
of the reservor.
o Thus,estate of reservor must pay the value of the
reservable property.
 REAL PROPERTY
o INNOCENT PURCHASER FOR VALUE & GF
 Only remedy of the reserves is to demand
payment from reservor or from Assurance
Fund under LRA.
o PURCHASER IN BF
 Obliged to return the property to the reserves
RESERVEES OR RESERVATARIOS
(1) Must be CONCEIVED OR LIVING & a relative within 3 rd
degree of Consanguinity from the propositus
(2) must be a legitimate relative of the origin and propositus
(3) Must belong from the direct line of the source of the property
and the propositus
(4) Must survive the Reservor, because survival is a condition of
succession.

NOTES:
 Rervees inherit from propositus, not from the reservor
 May compel reservor to furnish bond or security or to annotate
the reserve because they already inherit such although subject to
condition that he must be living at the time of death of reservor.
 They cannot impugn the alienation of the property by the
reservor, during the latters lifetime. Their right of action only
arises from the death of the reservor
o It must be remembered that reservor has conditional
ownerhip over the property, and being such, he has the
right to dispose, mortgage or donate the same.
THIRD DEGRE RULE
TAKE NOTE:The nearer excludes the father.***
EXAMPLE:
A died intestate leaving a considerable fortune. His widow B gave
birth to a son three months after A’s death. The child died two
days after it was born. The widow B died two days after her
child. The inheritance left by A is claimed by the legitimate
mother of B, and a legitimate brother of A. There are no other
relatives. Who do you believe is entitled to the inheritance? Why?
ANS.: ½ to A’’s brother & ½ to B’s mother.
 Upon A’s death, his fortune was inherited by his widow
(1/2) and by his son (1/2) by intestate succession
(gratuitous title). (The son inherited because at the time of
his father’s death, he was already conceived, and a
conceived child is already considered born for all purposes
favorable to it).
 Upon the death of the son, without issue, the mother
inherited by operation of law, his halfshare. On this half-
share, there is a reserva troncal, the requisites therefor all
being present — and therefore, on the widow B’s death,
said one-half should properly go to the legitimate brother of
A, who is a relative within the 3rd degree counted from the
propositus (the baby son). Said half is indeed not part of the
estate of B.
 But the other half inherited by B direct from A by legal
succession is certainly not reservable property. It belongs to
her estate. And therefore, on her death, it should go to her
nearest (in the problem, the only) intestate heir, namely, the
legitimate mother of B.
TWO (2) THEORIES ON THE VALUE OF RESERVA****
RESERVA MAXIMA
 ALL THAT CAN EMBRACED OR INCLUDED (from
amount of reservable)IN THE LEGITIME SHALL BE
CONSIDERED AS RESERVABLE PROPERTY\
 It is more keeping with the intent of ART. 891
RESERVA MINIMA
 Only half of the reservable property received from the
origin of the descendant is transferred to the ascendant
reservor as legitime
 More keeping with justice and equity
RESERVA MAXIMA THEORY IS WHAT IS FOLLOWED
IF THERE’S A WILL:
EXTINGUISHMENT OF RESERVAA TRONCAL*****
When does the obligation to reserve cease?
ANS.:
(1) Death of the reservor.
(2) Death of ALL the would-be reservees AHEAD of the
reservor (reservista).
(3) LOSS of the reservable properties, provided the reservor
had no fault or negligence. (Thus, LOSS must be
ACCIDENTAL.)
(4) Prescription
P a g e | 30
 (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) Renunciation by ALL RESERVEES AFTER DEATH
OF RESERVOR
(6) REGISTRATION UNDER TORRENS SYSTEM by an
innocent purchaser in good faith and for value
Frias Chua v. CFI of Negros Occidental
L-29901, Aug. 31, 1977
FACTS: During his marriage to his first wife, a man had a son and
two grandchildren.
When the wife died, he married again, and with the second wife, he
had a
son.
When
the
man
died, a
parcel
of land
owned
by him
was
inherited by his son and the second wife (half, half) thru intestate
succession. After a while, the son of the second marriage died and
his half-share in the land was inherited by his mother (his father’s
second wife) by operation of law.
After the mother’s death, can the son and the grandchildren of
the first marriage get the land?
HELD:
 Yes. They can get the half share of the land that was held
by the second wife by way of reserva troncal.
 This 1/2 had been inherited by the son of the second
marriage by gratuitous title, and transferred to his mother
by operation of law. The present claimants are relatives
within the third degree (reservees).
 As will be noticed, there are two different modes of
transmission present: 1) the transfer from the ascendant M
(or from C’s brother or sister) to C must be by
GRATUITOUS

Beatriz Gonzales v. Court of First Instance
L-34395, May 19, 1981
FACTS: Benito Legarda died survived by three groups of heirs who
partitioned the real properties among themselves in three equal
portions:
(1) one daughter
(2) another daughter
(3) heirs of a deceased son (Benito Legarda, Jr.).
These heirs were:
(a) the son’s widow (Filomena)
(b) seven children (4 daughters named Beatriz, Rosario,
Teresa and Filomena, Jr., and 3 sons
named Benito, Jr., Alejandro, and Jose).
Filomena, Jr., died intestate, and without any child. Her mother
Filomena, Sr., partitioned their 1/3 share in the estate of Legarda, Sr.,
with her 6 surviving children and then gave the properties she
inherited from Filomena, Jr., to her sixteen (16) grandchildren by
means of a holographic will.
ISSUE: May this giving in the holographic will be lawfully
done?
HELD:
 No, because the properties given by such holographic will
were reservable properties (reserva troncal, reserva lineal,
reserva familiar, reserva extraordinario, reserva semi-
troncal — all are synonymous) because they were inherited
gratuitously from an ascendant (Benito, Jr.), transmitted to
a descendant (Filomena, Jr.) then given to another
ascendant (Filomena, Sr.) by operation of law. (Art. 891,
Civil Code).
 Said properties should not have been given to the
grandchildren (3rd degree reservees) but to the children
(2nd degree reserves)
 Reservees may be the common descendants of the
reservor and the origin reserva troncal contemplates
legitimate relationship.
 llegitimate relationship and relationship by affinity are
excluded.
Art. 892.-ONLY ONE LEGITIMATE CHILD SURVIVES;
WIDOW/ER/ENTITLED TO ¼ OF HS; LEGAL SEPARATION
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 of the same.
RULE:
Art. 893.- NO LGITIMATE DESCENDANTS; BUT LEAVES
LEGITIMATE ASCENDANTDS; SURVIVING SPOUSE
ENTITLED TO 1/4
If the testator leaves no legitimate descendants, but leaves
legitimate ascendants, the surviving spouse shall have a right to
one-fourth of the hereditary estate.
This fourth shall be taken from the free portion of the estate.
 Survivors are surviving spouse and legitimate ascendants
 No legitimate descendant
 LA – 1/2
 SS – ¼ taken from free portion
Art. 894. –ILLEGITIMATE CHILDREN & SURVIVING
SPOUSE’S SHARE = 1/3; REMAINING FREE DISPOSALL
If the testator leaves illegitimate children, the surviving spouse shall
be entitled to one-third of the hereditary estate of the deceased and
the illegitimate children to another third.
The remaining third shall be at the free disposal of the testator.
 Illegitimate child & SS concurs
 1/3 each
 Unlike the preceding article, SS share is not taken from
free portion
: A leaves 2 acknowledged natural children B and C, and a
surviving spouse D. How much can A in his will give to a stranger
E? The estate is P900,000.
P a g e | 31
ANS.: A can leave P300,000 to stranger E. Reason: D gets
one-third or P300,000 as her legitime; B and C each gets
P150,000 producing a total of P300,000 for the two of them.
Hence, only one-third of the estate or P300,000 remains at the
free disposal of A. Note that under the premises given, there
are neither legitimate children or descendants; nor legitimate
parents or ascendants.
NOTE:
Legitime of LC & LA = always ½ of hereditary estate
SS & IL – may vary
Art. 895 –Legitime of Acknowledged natural children = 1/2
. The legitime of each of the acknowledged natural children
and each of the natural children by legal fi ction shall consist
of one-half of the legitime of each of the legitimate children or
descendants.
The legitime of an illegitimate child who is neither an
acknowledged natural, nor a natural child by legal fiction,
shall be equal in every case to four-fi fths 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 fi
rst be fully satisfi ed
Art. 896.
Illegitimate children who may survive with legitimate parents
or ascendants of the deceased shall be entitled to one-fourth of
the hereditary estate to be taken from the portion at the free
disposal of the testator.
Art. 897.
When the widow or widower survives with legitimate children
or descendants, and acknowledged natural children, or natural
children by legal fi ction, such surviving spouse shall be
entitled to a portion equal to the legitime of each of the
legitimate children which must be taken from that part of the
estate which the testator can freely dispose of.
Art. 898. If the widow or widower survives with legitimate
children or descendants, and with illegitimate children other
than acknowledged natural, or natural children by legal fi
ction, the share of the surviving spouse shall be the same as
that provided in the preceding article. (n
Art. 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
Art. 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. (837a) 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 onethird of the hereditary estate, except when they
have been living as husband and wife for more than fi ve
years. In the latter case, the legitime of the surviving spouse
shall be that specifi ed in the preceding paragaph.
 P a g e | 32

DISINHERITANCE
SECTION 6 FOUR (4) INSTANCES WHEREIN THERE IS INEFFECTIVE
DISINHERITANCE DISINHERITANCE:
Art. 915. – DISINHERITANCE 1) Disinheritance without specification of the cause
A compulsory heir may, in consequence of disinheritance, be 2) For a cause which is not a true cause
deprived of his legitime, for causes expressly stated by law. 3) For a cause not given in law
4) When there is SUBSEQUENT RECONCILIATION under
Disinheritance - the process or act, thru a testamentary disposition of ART. 922, CC
depriving in a will any compulsory heir of his legitime for true and  “A subsequent reconciliation between the
lawful causes. offender and the offended person deprives the
 Refers only to compulsory heir, for they are the one latter of the right to disinherit and renders
entitled to the legitime ineffectual any disinheritance that may have been
 Only for lawful causes made.”
 Thus, the court may properly inquire into the validity of a
disinheritance. CONSEQUENCE IF THERE IS AN INVALID
DISINHERITANCE
 Made through testamentary disposition. Thus, there must
1) It shall annul the institution of the heirs but in so far as
be a will.
only for the purpose of completing the legitime of the
 Again, there can be no disinheritance in legal or intestate
compulsory heir
succession, only in TESTAMENTARY SUCCESSION.
2) But the devises and legacies and other testamentary
 Excludes the heir not only from the legitime but also from dispositions shall be valid to such extent as will not
the free portion; iin other words, he is completely excluded impair the legitime
from the inheritance.
 REASON: If by disinheritance an heir is excluded from the
legitime, a matter of right, then, with greater reason should
the testator’s attitude or dislike toward him, exclude him
from the free portion (which is not his as a matter of right).

PURPOSE: To punish the ungrateful, the culpable, the cruel, the

unnatural heir, or an unfaithful spouse; Otherwise stated, its object is
to maintain good order and discipline within the family

WAYS OF DEPRIVING THE COMPULSORY HEIR OF HIS

LEGITIME:
1. Disinheritance (Article 915)
2. Repudiation of the inheritance - the act of the heir himself
3. Incapacity by reason of unworthiness
4. Predecease - the actual or presumptive death of the heir
5. Loss of the estate
6. When the debts or charges are equal to or more than the
value of the estate

Art. 916. – WILL & LEGAL CAUSE

Disinheritance can be effected only through a will wherein the legal NOTE:
cause therefor shall be specified.  Remember, in the order of distribution, the devise or
legacy shall be given ahead of the inheritance.
REQUISITES FOR VALID DISINHERITANCE:  : If the free portion has not been disposed of, the
1) Must be made in valid will ineffectively disinherited heir gets not only his legitime,
 can also be effected by virtue of a codicil; or but also his intestate share of the free portion. This is
 separate will; or because he is an intestate heir also.
 in Incorporation By Reference
2) Made expressly, not impliedly Also, the rule is different from preterition, had there been
3) Legal cause for the disinheritance preterition here, each of the heir in EXAMPLE 1 will received
4) True cause P30,000 each.
5) Must be for and existing cause
 A conditional disinheritance is not allowed. PRETERITION v. DISINHERITANCE
EX. "I will disinherit my son if he will kill me in the PRETERITION DISINHERITANCE
future" But a conditional revocation of disinheritance is The omission may be either Disinheritance is always
allowed. intentional or unintentional as intentional because it has to be
long as the deprivation is total. provided for in the will.
"My son attempted for my life. I will disinherit him. But if With cause or without cause
he will ask for my forgiveness, I will revoke the The cause must be provided for
disinheritance" by law. (Articles 920 & 921
6) Must be total or complete NCC)
7) Stated in the will itself Annuls the institution The disinherited heir inherits
8) Heir disinherited must be clearly identified, so that there will be May exist with or without a will. nothing from the legitime & the
no doubt as to who is really being disinherited free portion.
9) The will in which the disinheritance is stated must not have Q: How does preterition exist
been revoked, at least in so far as the disinheritance is without a will?
concerned
A: During the lifetime of the
Art. 917. – BURDEN OF PROOF testator, he can make donations
The burden of proving the truth of the cause for disinheritance and the donations will be
shall rest upon the other heirs of the testator, if the disinherited collated later on. If during his
heir should deny it. lifetime, he gave all his
properties to one of his children.
So upon his death, there is
nothing left. So upon his death,
Art. 918. – WITHOUT SPECIFICATION OF THE CAUSE OR
there is no will but still there is
UNTRUE CAUSE (INVALID DISINHERITANCE)
preterition because there is
Disinheritance without a specification of the cause, or for a cause the
omission.
truth of which, if contradicted, is not proved, or which is not one of
those set forth in this Code, shall annul the institution of heirs
The institution is always void
insofar as it may prejudice the person disinherited.
The institution of heirs is The institution will be followed
But the devises and legacies and other testamentary dispositions completely annulled. unless there is another cause for
shall be valid to such extent as will not impair the legitime not following the institution
which is not because of the
 P a g e | 33

If there is a devise or legacy, he
will receive D the devise or
legacy as long as it is not c
inofficious
disinheritance but for other
causes.
Devises, legacies or other
testamentary dispositions shall
be valid. Even if the person is
just an instituted heir, he will still
receive his share or inheritance.
(3) When a child or descendant has been convicted of adultery or
concubinage with the spouse of the testator
 There has to be conviction
o The law here says “convicted of adultery or
concubinage”, unlike the ground in legal
separation where preponderance of evidence is
sufficient

It is important to distinguish Even if the person is just an (4) When a child or descendant by fraud, violence, intimidation, or
whether the person is an instituted heir, as long as the undue influence causes the testator to make a will or to change one
instituted heir or a devisee or le institution does not prejudice the already made
legatee. legitime of the invalidly  There has to be another will made
disinherited heir, then, that heir
shall receive the inheritance (5) A refusal without justifiable cause to support the parent or
SIMILARITIES ascendant who disinherits such child or descendant
Omitted heir and the imperfectly disinherited heir gets at least their  The determination whether or not the refusal of the child is
legitime without just cause will depend upon the means of the child
legacies and devises remain valid insofar as the legitime has not and the necessity of the ascendant
been impaired (6) Maltreatment of the testator by word or deed, by the child or
Both refer to compulsory heirs. descendant
 This ground of maltreatment is present only with respect to
disinheritance of a descendant
(7) When a child or descendant leads a dishonorable or disgraceful
PRETERITION v. IMPERFECT DISINHERITANCE life
(BAR QUESTION)  What is dishonorable or disgraceful life is a question which
PRETERITION IMPERFECT is addressed to the judgment of the court but generally, the
DISINHERITANCE act must not be an isolated or
The institution of heirs is The institution remains valid,  single act
completely annulled but must be reduced insofar as  It has to be a way of life
the legitime has been impaired.  The child or descendant may be a male or a female
(8) Conviction of a crime which carries with it the penalty of civil
interdiction
Art. 919. – SUFFICIENT CAUSES FOR DISINHERITANCE  Generally, crimes that are punishable by death
The following shall be sufficient causes for the disinheritance of penalty, reclusion perpertua and reclusion
children and descendants, legitimate as well as illegitimate: temporal, all of these carry with it the accessory
1) When a child or descendant has been found guilty of an penalty of civil interdiction
attempt against the life of the testator, his or her spouse,
descendants, or ascendants;
2) When a child or descendant has accused the testator of a
crime for which the law prescribes imprisonment for six
years or more, if the accusation has been found
groundless;
3) When a child or descendant has been convicted of adultery
or concubinage with the spouse of the testator;
4) When a child or descendant by fraud, violence,
intimidation, or undue influence causes the testator to
make a will or to change one already made;
5) A refusal without justifiable cause to support the parent
or ascendant who disinherits such child or descendant;
6) Maltreatment of the testator by word or deed, by the
child or descendant;
7) When a child or descendant leads a dishonorable or
disgraceful life;
8) Conviction of a crime which carries with it the penalty of
civil interdiction.

(1) Guilty of an attempt against the life of the testator, his or her
spouse, descendants, or ascendants
 There is final judgment or conviction already
 At the time of the execution of the will, it is not necessary
that the judgment is final
 He can be found guilty and the judgment may become final
after the death as long as it becomes final.
o Disinheritance can be given effect once the
judgment becomes final already.
o There must be an intent to kill.
 Even if the descendant is just an accomplice or accessory,
this paragraph applies
 Even if the law says “attempt”, the more reason that
frustrated and consummated stages are to be included

(2) Accused the testator of a crime for which the law prescribes
imprisonment for six years or more, if the accusation has been
found groundless
 The accusation be groundless I
 The crime being referred here is against anybody

Accusations referred in this paragraph may include:

1) Institution of a criminal action
2) Testifying in a case against your parents or ascendants
involving a crime which carries a penalty of 6 years or
more
3) Statements affirming the accusations made against
your parents, ascendants.
 P a g e | 34

DOCTRINES