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Succession

In a Nutshell

1. Modes of transmitting ownership
a.) Law
b.) Donation
c.) Testate and intestate succession
d.) Tradition
(Art. 712, New Civil Code)

2. Terms
a.) Decedent – applies to a deceased
person whose property is transmitted
through
succession, whether he left a will
or not.
b.) Testator – applies to a person who left a will.
c.) Inheritance – all property, rights and
obligations of a person which are not
extinguished by his death (Art. 776, NCC).

(i) The obligations of a deceased are only to the
extent of the value of the inheritance left by
him
to his heirs
(ii) In general, obligations are transmissible, unless
purely personal like obligations between
husband and wife, and those non- transferable
by
law or contract.
(iii) Examples of rights extinguished by death:
a) Personal rights like marital rights, parental
authority, support, action for legal
separation, partnership, agency.
b) Right to recognition of a legitimate or an
illegitimate child:

173. (Sec. mily Code).Except when action has already been d. RA 8552) c) Right to hold office or job. rs have 5 years to file the action.) . 173. . action is transmitted to heirs if d dies during minority or in a state of insanity. . d) Right of a lawyer to represent his client. (id.Action for adoption is not extinguished by death of adopter. (Art. (Art.Action already commenced survives. withstanding death or either party. . Family Code).Also.. 13. public or vate.

3. 777. . (Art. When are rights to succession transmitted Rights to succession are transmitted from the moment of the death of the decedent. although properties are delivered to them later. a) Heirs become owners on date of decedent’s death. b) Both acceptance and repudiation retroact to the moment of death. NCC).

778. b) legal or intestate (by law).4. c) mixed (partly by will and partly by operation of law) (Art. NCC) . Kinds of succession : Succession may be: a) testamentary (by will or codicil).

but also those which accrued since the opening of the succession (Art. NCC) Example: Alluvium.5. but not properties acquired after the will was made. 781. What inheritance includes: Not only transmissible rights and obligations at the time of death. .

May be compulsory or voluntary. Heir. NCC) Heir – called to the succession by will or by operation of law. Devisee : One given a gift of real property in a will. > Heir is voluntary. legatee distinguished (Art. . as when a friend or a child is given part of the estate to be taken from the free portion. Legatee : One given a gift of personal property in a will. 782.6. also one who succeeds by universal title or to all or a fraction or aliquot part of the estate. > Heir is compulsory as to legitime. devisee.

7. an instituted heir gets nothing. NCC) . while a legatee or devisee gets the property given to him as long as the legitime is not impaired. > Legatees and devisees exist only in testamentary succession. (Art 854. Importance of distinction between heir and legatee/devisee a) There are heirs in testate (compulsory heirs) and intestate (legal or intestate heirs) succession. b) In preterition.

8. Dual status of heir:
a) In a will, a compulsory heir may be given more than
his legitime.
b) He is a compulsory heir with respect to the legitime.
He is a voluntary heir with respect to the excess.
c) If a compulsory heir dies ahead of the testator, his
legitime goes to his child by representation.
The child of a voluntary heir who
predeceases the testator gets nothing, because
there is
no representation among voluntary heirs
nor in the free
portion.

WILLS
1. Definition of will
An act whereby a person is permitted, with
the formalities prescribed by law, to control to a
certain degree the disposition of his estate, to
take effect after his death. (Art. 783, NCC).

2. Characteristics of a will:
a) Statutory
b) Unilateral (Heirs can’t accept while testator is still
alive)
c) Solemn or formal
d) There must be animus testandi
e) Testator must have testamentary capacity
f) Strictly personal
g) Effective mortis causa
h) Essentially revocable or ambulatory
Meaning of strictly personal (Art. 784, NCC)
(i) Cannot be left in whole or in part to the
discretion of a third person.

(ii) Duration or efficacy of designation
of
heirs, devisees, or legatees or the
portions given
to them, cannot be left
to the discretion of a
third person.
(iii) But the testator may entrust to a
third person the distribution of specific
property or
sums of money left to a
specified class or cause
and the
designation of persons, institutions,
and
establishments to which property or
money is to be given (Art.786, NCC).
Ex.: Charitable institutions
2000 Law Class of San Sebastian College

(But I have two pianos) (ii) Patent or extrinsic : Appears on the face of the will itself. Ex.788.: I institute my sister.: I institute one of my three nephews (but the nephew is not named) I give X one of my three cars (without stating which car).3. interpretation which will make the dispositions operative shall be preferred (Art. Interpretation of wills: a) If it admits of different interpretation. in case of doubt. because testacy is preferred to intestacy. Ex. b) Ambiguities in a will: (i) Latent or intrinsic : Does not appear on the face of the will and is discovered only by extrinsic evidence. (But I have two sisters) I give my piano to Lisa. NCC). .

but not the oral declarations of the testator (id. excluding the oral declarations of the testator (Art. 789. as the words of a dead man can be distorted or perjured.c) How to resolve ambiguities: (i) Latent or intrinsic : From context of the will or extrinsic evidence.) Why can’t the oral declarations of the testator be considered? > Because to do so can result in fraud. NCC) (ii) Patent or extrinsic : Consider the words of the will or the circumstances under which the will was made. .

e) But technical words used are to be taken in their technical sense. or . Use and possession of property only means usufruct. not ownership. unless (i) a contrary intention appears from the context. NCC) Examples : Natural child means child by nature. not in the technical sense (Art.790.d) Words are to be interpreted in their ordinary or grammatical sense.

(ii) it satisfactorily appears that will was drawn solely by the testator. 790. id). and he was unacquainted with such technical sense. f) After-acquired properties go to intestate heirs. (Art. g) Rules of interpretation apply to institution of heirs as well as of legatees and devisees. Example : “Ampon” means de facto adoption. . not legal (judicial) adoption.

but made a will leaving all his properties to a friend. NCC) b) Intrinsic validity : Governed by the law in force at the time of decedent’s death. (i) Legislature cannot pass a law validating a void will. Validity of wills: a) As to form (extrinsic validity): Depends on the law in force at the time of execution (Art. He has a recognized spurious child. like a holographic will executed before the New Civil Code. His estate was settled in 1951. or wife. He died in 1949. descendants. (ii) Suppose the testator had no legitimate ascendants.4. 795. . because the old Civil Code did not recognize holographic wills.

A spurious child had no hereditary rights under the old Civil Code. because succession is determined at the time of death of the decedent.Is the will valid? (aa) The will is valid because the intrinsic validity of a will is governed by the law at the time of the testator’s death. (bb) But if the testator had died in 1951. he spurious child would get his legitime even if born before the New Civil Code. .

this is evident from the requirement of soundness of mind. . (bb) But sex is immaterial.5. (ii) Must be 18 years of age. NCC) (aa) Juridical persons cannot make wills. (Art. Testamentary capacity: (Art. NCC) Active – Capacity to make a will. (bb) Convicts under civil interdiction can make wills. Passive – Capacity to receive property under a will. (cc) Spendthrifts can make wills. (Art.. Who can make a will: (i) Those not expressly prohibited by law. 796. those below 18 cannot make wills. NCC) (aa) Thus. 796 and ff. 797.

the testator knows (aa) The nature of the estate to be distributed (bb) The proper objects of his bounty (cc) The character of the testamentary act. Must be senile dementia (decay of mental faculties due to old age). if one month or less before the making of the will. 801. Old age alone (senility) is not enough. the testator was publicly known to be insane (Art.). Presumption is sanity (Art. nor supervening capacity validate a will (Art. Meaning. 800.800. id. NCC) .(iii) Must be of sound mind at the time of the will’s execution. NCC) But there is also presumption of insanity. Supervening incapacity does not invalidate a will.

id. Person signing should not be one of the attesting witnesses. id.) (iii) Must be signed at the end by the testator or another person in his presence and at his express direction (Art.6. (iv) Must be attested and subscribed by three or more credible witnesses in the presence of the testator one another (Art. NCC) (ii) Must be executed in a language or dialect known to the testator (Art.) . 805. but the attestation clause (not the will) must be interpreted to them (Art. Forms of Wills: Notarial and Holographic a) Notarial Will (i) Must be in writing (Art. 804. unless there are more than 3 such witnesses.). id.) Witnesses do not have to know the dialect or language of the will. 805. id. 804. 804.

Not blind.Domiciled in the Philippines (not necessarily a citizen) . .Of sound mind. deaf or dumb. (Art. a blind or an illiterate can make a will. . . .But witnesses do not have to know the language of the will except that the attestation clause must be interpreted to them. 821. (Art 804). NCC) . perjury.Also. 820. or false testimony.Credible means : .Has not been convicted of falsification. .Able to read and write. . but he cannot be a witness to a will.18 years or more.

1960). 25. Phil. So. But can be “1. substitution or to detect loss of any page. B. L-14322. (vi) All pages of the will must be correlatively numbered in letters placed on the upper part of each page (Art 805.) (aa) Means “One. Garcia. The signatures may be on the right. 47 Phil. 145. III”. Nayue v. II.(v) The testator or person who signed for him and the witnesses must sign each and every page on the left margin of the will except the last page. id. substantial compliance is enough. 2. 152). (Avena v. Three”. (bb) Purpose: To prevent fraud. But lack of marginal signatures is fatal (Estate of Tampoy v. C” or “I. Alberastine. . top. Mojal. 3” or “A. Two. Feb. or bottom of the margin of the will.

42 Phil.(vii) Must have an attestation clause which must state (Art 805.): (aa) The number of pages where the will is written. Purposes: (aa) To preserve in permanent form the record of facts. id. 1952. . 180) unless number of pages appears elsewhere in the will (Singson v. (bb) That the testator signed in the presence of the witnesses and the witnesses signed in the presence of the testator and of each other. (bb) To have proof of compliance. (cc) To minimize commission of fraud or undue influence. Oct. (Re Andrada. 25. L-4603. Failure to state number of pages in the attestation clause is fatal. Florentino.

(viii) Must be notarized (Art 806): (aa) The following are not essential: date. (bb) Only the attestation clause is interpreted to the witnesses if the language is not known to them. place of execution. . (cc) The notary does not have to read the will except if the testator is blind (Art. (ff) But notary cannot be a witness to the will. 808). (dd) The notary need not be present at the time of the execution. and not the will itself. the reading of the will to witnesses. (ee) Witnesses also need not appear before the notary at the same time.

and dumb man cannot make a will because of difficulty of communication. by the notary public. but they must know the sign language (Art. (b) The notary public cannot be one of the attesting witnesses. 807). (Art. the will should be read to him twice: one. . he must personally read the will. by one of the subscribing witnesses. deaf.(ix) If the testator is deaf or a deaf-mute. because he cannot acknowledge his own act. But: (a) A blind. 808). (x) If the testator is blind. and again. or he must designate two persons (need not be the attesting witnesses) to read or communicate the will to him.

(ii) It must be entirely written. . 812) (v) When there are dispositions that are signed but not dated. erasures. they must be dated and signed in order to be valid (Art. such date validates the dispositions preceding it (Art. NCC). but the last disposition has a signature and a date. 804. are void. cancellations. (Art.b) Holographic Will Requirements: (i) Language must be known to the testator. but not the will itself. 813). otherwise. dated. (iv) If there are dispositions written below the signature. (Art. the alterations. etc.814). or alterations must be authenticated by the full signature of the testator (Art. 810) (iii) Insertions. and signed by the testator.

no marginal signatures. 810) (v) Can be made in or out of the Philippines (id. at least three of such witnesses are required. (id. . expert testimony may be presented. (id. (iii) In the absence of said witnesses. (ii) Unlikely to be influenced by fraud or undue influence (iii) No witnesses. (ii) If the will is contested.) Probate of holographic wills: (i) If not contested.). (Art.). only the testimony of one witness who knows the handwriting and signature of the testator is needed. (Art. no notarization and acknowledgment needed. 811).Advantages of holographic wills: (i) More intimate and personal. (iv) Subject to no other form.

(ii)If executed by an alien. (cc) Philippine law (id. 17) . it can be in any form established in the country where he may be at the time of execution (Art.7. 816) (bb) Lex nationalii (id.).). (dd) Lex loci celebrationis (place where testator was at the time of execution) (Art. will may be executed in accordance with: (aa) Lex domicilii (Art. 815). Wills executed abroad: (i) If executed by a Filipino.

either for their reciprocal benefit or for the benefit of a third person. Mutual or reciprocal wills are valid.8. they are void not because they are reciprocal. Example: A and B executed a will in one instrument. 818. but because they are joint. . B also made a will making A his heir. NCC). Joint will of Filipinos: a) Joint will defined: A will executed by two or more persons in the same instrument. but if made in one instrument. b) Distinguished from reciprocal or mutual wills: Reciprocal or mutual wills provide that the survivor of the testators will succeed to all or some of the properties of each decedent. making C their heir. Example: A made a will making B his heir. (Art.

whether reciprocal or not. are void (Art. a will being a purely personal act. d) Reasons why joint wills are void: (i) To allow as much as possible secrecy. (v) In case the testators are husband and wife. one may be tempted to kill the other. (iii) In case of death of the testators at different times.c) Joint wills. like revocation by tearing or burning. (ii) To prevent undue influence by the more aggressive testator on each other. 818). (iv) It militates against the right of a testator to revoke his will at any time. . probate would be harder.

(Art. . valid also here (lex loci celebrationis) (ii) If executed in the Philippines. 819) f) How about joint wills executed by foreigners? (i) If executed abroad and valid in the country of execution. void because it is against our public policy.e) Void even if executed by a Filipino in a foreign country where such will is allowed.

id. parent. Devise. to attesting witnesses (Art.9. but the will is valid. but any property given to him out of the free portion is void. parent. 823. etc. . a) The devise or legacy is void. NCC). e) Can the notary who acknowledges the will be a witness? No. if there are three other competent witnesses to the will) (Art. 823. b) If given to the spouse. or child is a compulsory heir. ) c) But if the witness or his spouse. or child of an attesting witness. he will not lose his legitime. because he cannot acknowledge something before himself. the legacy or devise is also void (but the attesting witness can still act as such.. legacy. d) Can a compulsory heir be an attesting witness? Yes.

whether expressly or impliedly. c) How revoked: (i) A notarial will may be revoked by a notarial or holographic codicil. 825. b) How executed: (i) With the same formalities as a will (Art. alters. a holographic will may be revoked by a holographic or notarial codicil. (ii) Made after the execution of a will and annexed to it to be taken as part thereof. 826) (ii) May be notarial or holographic. . or adds to the original will. (ii) A valid will can never be revoked by an invalid codicil. NCC) (i) A supplement or addition to a will.10. (iii) Explains. Codicil (or a small will): a) Meaning (Art.

827): a) The document or paper referred to must be in existence at the time of the execution of the will. Requisites (Art. c) The document or paper referred to must be identified by clear and satisfactory proof (by parol evidence or evidence aliunde). b) The will must clearly describe and identify the document or paper. . except voluminous books of account or inventories. but number of pages must be stated. to save time and energy. especially the number of pages thereof.11. Incorporation by reference: Means a will validly executed incorporates only by reference (without copying the whole thing) certain documents or papers.Therefore. d) The testator and the witnesses must sign each and every page of the paper or document. . future papers cannot be incorporated by reference. especially inventories and books of account.

REVOCATION OF WILLS 1. When is revocation valid. NCC): a) If done outside the Philippines – (ii) If by one not domiciled here: (aa) Apply the law at the place where the will was made. or (bb) Follow the law at the place where the testator was domiciled at the time the will was made. . law applicable (Art. or (cc) Follow Philippine law.829.

i. or (bb) Follow the general rule of the lex loci celebrationis of the revocation (Art.e. . lex loci celebrationis of the revocation. 17) b) If done in the Philippines – Follow Philippine law whether the testator is domiciled in the Philippines or not..(iii) If done by one domiciled in the Philippines: (aa) Follow Philippine law (since his domicile is here).

totally or partially. or obliterating). . total or partial. expressly or impliedly. NCC): a) By implication or operation of law. tearing. Ways of revocation (Art. 830. b) By an overt act (burning. cancelling. c) By a revoking will or codicil.1.

(v) When one or some of the compulsory heirs are preterited or omitted in the will. NCC). (ii) In cases of legal separation. 957. like – (i) When the testator sells or donates the thing given as legacy or devise (Art. 1032. Different ways of revocation explained a) By implication or operation of law: When after the execution of a will. and declaration of nullity of marriage. with respect to the property given to the guilty spouse (Arts. NCC). 43. annulment of marriage. id. but the legacies and devisees remain valid as long as the legitime is not impaired (Art. (iv) When a credit given as a legacy is judicially demanded by the testator (Art. Family Code). NCC. (iii) When an heir. legatee or devisee commits an act of unworthiness under Art. 854.) . 936. the institution of heirs is void. certain acts or events take place rendering void the will totally or partially (presupposing a change of mind on the part of the testator). 50.2.

(iii) There must be capacity to make a will at the time of revocation. (iv) If the testator threw his will into a stove with the intent of revoking it so that it would be burned once someone lights the stove. there is no revocation because there was never the overt act of burning. (3). even a small part of the will is burned). cancelling or obliterating. tearing. or crumpling) (Art. (NCC): (i) May be done by the testator or another upon his express direction. par.b) By an overt act (burning. (ii) The subjective phase of the act must be completed (if. for example. . but somebody removed the will from the stove before it was lighted. 830.

(v) If a will is burned accidentally. . (viii) Cancellation of the signature is sufficient revocation. is enough revocation as long as the subjective phase is passed. (vi) Tearing of the will. (vii) Obliteration is rendering the words illegible. but the words remain legible. there is no revocation in view of the lack of intention to revoke. cancelling is the drawing of lines across the text. but cancellation or obliteration of non-vital parts leaves the other parts of the will in force. there is no revocation. even if slight or only into two pieces. there being no animo revocandi. (x) If what was burned was only the envelope containing the will. (ix) If a will is mutilated by error or accident. there is no revocation.

. 832 and ff. revocation is void. (2) Efforts to reconcile must be made. 832. only those dispositions in the first will that are inconsistent or contrary to the second will are annulled. or devisees (Art. NCC). (iii) Implied revocation by subsequent will (Art.c) By the execution of another will or by a codicil (Art. 831): If the subsequent will does not revoke the first will in an express manner. legatees. NCC): (i) Revoking will or codicil must be valid as to form. Reasons: (1) The law does not favor implied revocation. (ii) Revocation by subsequent will or codicil takes effect even if the new will becomes inoperative because of the incapacity or renunciation of the heirs. otherwise.

. Then he learned that A was already dead. revocation takes place. (v) Note the difference between an invalid second will and an ineffective second will.(iv) Revocation based on a false or illegal cause is void (Art 833) Example of a false cause: T instituted A as heir. it cannot revoke. so he made another will instituting B. because the revocation of the will in his favor was based on a false cause. If the second will is void. legatee. or devisee. he and not B inherits from T. If it is only inoperative by reason of the incapacity or renunciation of the heir. If A turns out to be still alive.

Then he tore Will No. Upon his death. (1) to pieces. 413). De Leon. (2). (1) revoked.. i. After one week. .(vi) Doctrine of conditional revocation or dependent relative revocation. . Example: T makes Will No. (1) was revoked because the tearing was accompanied by animo revocandi (Diag v. it was discovered that his Will No. revocation takes place only if the condition is fulfilled.Is Will No. he executes Will No. (1). or should it be given effect? In one case. it was held that Will No. 43 Phil. This refers to a revocation that is conditional.e. (2) had not been validly executed.

the revocation by destruction or overt act is good only if the condition is fulfilled. Molo. Here. et al. the condition was not fulfilled. (De Molo v. 21. namely. L-2538. which states that revocation of a will based on a false or illegal cause is null and void). therefore. NCC. it was ruled that there was no revocation either by subsequent will or by overt act of tearing because the tearing was prompted by the false belief that the second will was validly executed (see Art. Or.Later. Sept. 1951). the revocation by overt act did not materialize. . under the doctrine of dependent relative revocation. 833. that the revoking will is valid.

. NCC). 834. Remember that the testator can revoke his will at anytime before his death. 5. Recognition of an illegitimate child in a will does not lose its effect even if the will is revoked (Art. 4. especially if the provisions of the two wills are inconsistent. like as to who are being instituted as heirs.(vii) The second will referred to by the testator as his last will revokes his first will.

. 835. NCC). Definition of Terms: Republication is the act of the testator of reestablishing a will which is void as to form (like there were only two attesting witnesses or there was no attestation clause) or which had been revoked (Art. Revival is the restoration of validity to a previously revoked will by operation of law.REPUBLICATION AND REVIVAL OF WILLS 1.

836.2. NCC) . b) Execution of a codicil referring to a previous will (also known as implied republication) (Art. Modes of Republication: a) Re-execution of the original will (copying the original provisions thereof).

the new will must reproduce or copy all the provisions of the first will.3. Requisites and limitations of republication: a) If a will is void as to form (like if there were only two attesting witnesses or there was no attestation clause). .

my heir A will get 8 cars. not 3 cars. not of the old will. and I copied all its provisions in a second will. and I had only 3 cars when I executed the first will and 8 cars when I executed the second will. . (ii) If I gave all my cars to A in my first will which turned out to be void as to form.(i) But the effect of the will is the date of execution of the new will.

b) If a will is void to form. it cannot be republished by mere reference in a codicil. . There must be a new will or codicil reproducing all the provisions of the first void will.

NCC). There is no need to reproduce the provisions of the revoked will. a codicil merely referring to the revoked will revives said void will. (Art. 836. . the execution of a codicil referring to the previous void will is sufficient republication.But if the first will was valid but had later been revoked. There is no need to reproduce its provisions. effective as of the date of the codicil. c) If a will is void due to fraud or undue influence. The will is however..

NCC): a) If the second will expressly revoked the first will. 837. revocation of the second will does not revive the first will. b) If the second will only impliedly revoked the first will (like having inconsistent provisions). .4. c) If the second will revoking the first will is invalid. Rules on Revival (Art. the first will is still effective because the revocation is void. revocation of the second will revives the first will.

still. if the omitted heir dies ahead of the testator. the institution of heirs is revived.5. NCC). sec. 854. par.. . Another case of Revival: While the preterition of a compulsory heir annuls the institution of heirs. without prejudice to the right of representation (Art.

Study Rules 73 to 90 of the 1997 Rules of Civil Procedure on Settlement of Estate of Deceased Persons. 838. and the approval of the will by said court.PROBATE OF WILLS 1. Necessity of probate: No will shall pass real or personal property unless proved and allowed in accordance with the Rules of Court (Art. 3. . NCC). Meaning of probate: The act of proving before a competent court the due execution of a will by a person with testamentary capacity. 2.

intimidation. . Probate of a will is conclusive as to: a) due execution of the will b) testamentary capacity of the testator 5. Two kinds of probate: a) During the testator’s lifetime (ante mortem probate) Reasons: (i)To prevent or minimize fraud.4. or undue influence in the execution of wills.

53-54) Note: But the testator can still revoke his will although already probated during his lifetime. pp. (Report of the Code of Commission. b) After the testator’s death. .(ii) To enable the testator to correct at once any failure to comply with the legal requirements.

e) Signature of the testator on the will was procured by fraud. Grounds for disallowance of wills (Art. f) Testator acted by mistake or did not intend that the instrument he signed should be his will when he signed it. b) Testator had no testamentary capacity at the time of execution of the will. d) Will was procured by undue and improper pressure and influence on the part of the beneficiary or some other person. or influence of fear or threats. . 839. duress.6. c) Will was executed through force. NCC) a) Formalities required by law were not complied with.

c) There is undue influence when the testator does something because of fear or desire for peace or from any other feeling that he is unable to resist (Torres v. fear or threat in the execution of a contract renders it merely voidable (i. no other grounds can serve to disallow a will (Pecson v.e. 216). Coronel. 839 are exclusive. 16 Phil. duress. But he who alleges undue influence must prove it (Macapinlac v. . Lopez. Alimurong.. 45 Phil. 772). their presence in a will renders the will void. 41). b) While the presence of force. capable of ratification).Remember: a) The grounds for disallowance of wills in Art. 48 Phil.

although illegitimate. a mistress is incapacitated to inherit. 739. L18979. . on the ground of public morality and public policy (Art. as long as the giving was voluntary (Coso v. 1964). 42 Phil.However. is not undue influence. e) Fraud and undue influence are mutually repugnant and exclude each other. Icasiano. NCC). . June 30. Mere affection. 596). Fernandez Dez.d) There is no undue influence if the testator gives the whole free portion to an illegitimate child or a mistress. 1028 in relation to Art. as that their joinder as grounds for opposing probate shows the absence of definite evidence against the validity of the will (Icasiano v.

Meaning of “Institution of Heirs”: It is “an act by virtue of which a testator designates in his will the person or persons who are to succeed him in his property and transmissible rights and obligations”. NCC) . 840. (Art.INSTITUTION OF HEIR 1.

or incapacity of heirs. cannot affect the legitime. b) Applicable also to devisees and legatees. 40 and 41 of NCC. and devisees must be certain or ascertainable. f) There must be no preterition. e) Heirs. that is. . the remainder of the estate goes to the intestate heirs (Art. there is no predecease. subject to Arts. c) Exists only in testamentary succession. except that devises and legacies are valid as long as the legitime is not impaired. Requisites for a valid institution of heirs: a) Refers only to voluntary heirs. g) The institution must be effective. legatees. repudiation. (Art.2. 841). d) Even a conceived child can be instituted. i) If the institution is partial. 841) h) The will must be extrinsically and intrinsically valid.

c) Error in name. or circumstances of the heir shall not vitiate the institution if he can be ascertained in any other manner (but not by the oral declaration of the testator) (Art. the heir cannot be identified. 843). NCC) b) Even if the name of the heir is omitted. the institution is valid. (Art. none shall be an heir. and even with the presentation of other proof. if there is no doubt as to his identity. surname.3. 844). 843. Ex: “My only brother” (the testator has only one brother). 844). d) If several persons have the same name and surname and similar circumstances. the will must indicate circumstances to identify the heir (Art. and when two persons have the same name. Other rules to remember: a) An heir must be designated by his name and surname. . (Art.

Examples: “I institute my friend”. even if some are full and some half-blood (Art. (I have many such students). “I institute my student in the 4th year of the SSC College of Law”. 1030. 845). (iv) “My brothers and sisters” – equally. NCC) (ii) The relatives of the testator (meaning those nearest in degree) (Art. f) Special kinds of institution: (i) The poor in general (Apply Art. 849) – they are instituted simultaneously. . (iii) “X and his children” (Art. (Art. (But have many friends). 848). 959).e) Institution of an unknown person is void.

that in intestate succession.” First.000. i) “T instituted A and B and the three children of C to his estate of P100.g) Heirs instituted without designation of shares inherit in equal parts (Art. j) “T instituted his two brothers and three half-sisters. 848) (ii) Remember.00 among A. Then. give A his legitime of P500. 848). divide the other P500. . But this does not apply to the legitime.00.000. How should the estate be divided? Divide the estate into five (5) equal parts. Divide.000. h) “T instituted his son A and his friends X and Y to his P1M estate. Divide”. full-blood gets double share of the half-blood.00”. X and Y equally. (i) They get equal shares (Art. though.

.00.k) “T instituted A and the latter’s 2 children to his estate of P100. the heirs inherit simultaneously. Who gets the other ½? The intestate heirs (Art.” Divide the estate into three (3) equal parts or shares. (Art. 850). 849). not successively. i. “I institute my student X for getting 100% in Civil Law in the last bar examinations” The institution is valid. l) A statement of a false cause in the institution of heir is considered not written unless it appears from the will that the testator would not have made the institution had he known of the falsity of the cause (Art. m) “I institute my friend F to ½ of my P1M estate”. 851) .000. not the institution. Divide. even if the student did not get 100% in Civil Law.e. What is disregarded is the false cause.

n) A voluntary heir who dies before the testator or who proves to be incapacitated transmits nothing to his heirs (Art. but A dies ahead of T. The remainder of the estate goes to B as compulsory and voluntary heir. 977) . 856). o) “T has children A and B.000 by representation. A has a child A-1. If T institutes his children A and B to his P1M estate. who gets his estate?”. p) Remember that a person who renounces cannot be represented (Art. > A-1 gets A’s legitime of P250. (i) There is no representation among voluntary heirs. (ii) There is also no representation in legacies and devises.

NCC: “The preterition or omission of one. Art. some. 854.PRETERITION 1. whether living at the time of execution of the will or born after the death of testator. but the devises and legacies shall be valid in so far as they are not inofficious. the institution shall be effectual. without prejudice to the right of representation”. or all of the compulsory heirs in the direct line. . shall annul the institution of heir. If the omitted compulsory heirs should die before the testator.

2. but legacies and devises remain if not inofficious. Nature of Preterition: a) Total omission of one. the institution is effectual. or all of the compulsory heirs in the direct line. some. . f) If the omitted heir predeceases the testator. without prejudice to the right of representation. g) Illegitimate ascendants or descendants are included. b) Omission may be intentional or unintentional c) Compulsory heirs must be in the direct line (ascendants and descendants) d) Compulsory heirs may be living or conceived at the time of the institution e) The institution of heir shall be annulled or voided.

i) If a child has been given a donation inter vivos. There is no preterition. there is no preterition because they are not compulsory heirs and not in the direct line.h) If a compulsory heir is given a very small share. So he is entitled only to the completion of his legitime. If inofficious. He makes a will instituting A and B and his friend F. j) The omission of the surviving spouse in the will is not preterition because she is not a compulsory heir in the direct line. So. l) “T has three sons A. Who gets his estate?” Ans. . not a legatee or devisee. : F gets nothing since he is a voluntary heir. there is no preterition because the donation is an advance on his legitime. the gift is valid if not inofficious. The institution is annulled a legatee or devisee. it is reducible. give her the legitime given to her by law. B. k) If brothers or sisters are omitted. complete only his legitime. and C.

. Note: There may also be substitution of legatees and devisees. Purposes of substitution of heirs: a) To prevent the property from falling into the hands of people not desired by the testator. NCC). 2. Meaning of “substitution of heir”: It is the appointment of another heir in default of or after the heir originally instituted (Art.SUBSTITUTION OF HEIRS 1. b) To prevent inestate succession. 857. c) To allow the testator greater freedom to reward those more worthy of his affection and bounty than his intestate heirs.

b) Brief (Art. Or.3. with C as substitute. NCC) a) Simple. Kinds of substitution : (Art. 858. simply. or incapacity. . 860): Ex: A and B are instituted. c) Compendious (Art. Ex: T instituted A as his heir. vulgar or common (Art 859)(Without stating the reasons for substitution). with B and C as substitutes (Art. 860). but provided in his will that in case A cannot for any reason receive the inheritance. 860): Ex: T institutes A as his heir. he shall be substituted by B. repudiation. T designates B as his heir and C as B’s substitute. > One or more persons substitute the instituted heirs in case of predecease.

d) Fideicommissary substitution (Art. 863) – See
discussion below and next pages
e) Reciprocal (Art. 861):
Ex: A and B are instituted, with the provision that if A
predeceases, renounces, or turns out to be incapacitated, B
substitutes him, and vice versa.
Even if the original shares given to A and B are not
equal, like A was given 2/3 and B 1/3 of the testator’s
estate, since the institution is reciprocal, if either A or B
predeceases, renounces, or is incapacitated, the other gets
the original share of the one originally instituted.
f) Remember that the cause for the substitution need not be
stated, in which case the substitution applies in
predecease, renunciation, or incapacity.

4. Fideicommissary substitution (Art. 863,
NCC).
T institutes A as first heir or fiduciary, but he must
preserve and transmit the estate to second heir B called
fideicommissary or beneficiary, with the following conditions:
a) The substitution does not apply to the legitime (Art. 864)
b) The fideicommissary substitution must be express; i.e.,
the obligation to preserve and transmit the property to the
second heir is clearly imposed.
c) The second heir should not go beyond one degree or one
transfer from the first heir. (Art. 863)
d) Both heirs inherit from the testator.
e) Both heirs must be living or at least conceived at the time
of the testator’s death.

f) The second heir acquires his right from the time of the
testator’s death. If he dies before the first heir or
fiduciary dies, his (the second heir’s) right passes to his
heirs. (Art. 866)
g) The first heir enjoys the property almost like a
usufructuary (Art.866).
So: (i) He cannot alienate the property
(ii) He is entitled to refund of useful
improvements, legitimate expenses,
and
credits (Art. 865).
h) One degree means one generation or one transfer (so,
the second heir can be a juridical person).

i) Since the substitute must be one degree from
the first heir, he must be a parent or child of
the first heir. He cannot be a brother, because
brother is two degrees from the first heir.
j) The nullity of the fideicommissary
substitution does not prejudice the validity of
the institution of the first heir. The
fideicommissary clause is simply deemed not
written. (Art. 868).

But if the second heir or fideicommissary dies ahead of the testator. However. the fideicommissary dies ahead of the fiduciary. the second heir gets the property not as a fideicommissary but as a simple substitute. to give effect to the testator’s will. 866). the right of fideicommissary (or second heir) passes to his heirs (Art. . if after the testator’s death. there is no fideicommissary substitution because both heirs must be living at the time of the testator’s death.Remember also: a) Suppose the fiduciary dies ahead of the testator. since both inherit from the testator.

.b) If the fiduciary registers the property in his name without the fideicommissary substitution. innocent parties are protected.e. i. the buyer acquires only the seller’s right. if the property is unregistered. However. subject to the fideicommissary substitution..

Will B inherit when T dies? Yes. e) The second heir. . as stated above.c) The fideicommissary is a sort of naked owner. a juridical person. not the first heir or fiduciary. ownership is consolidated in him upon transmission of the property to him. f) T instituted A as first heir and B as fideicommissary or second heir. d) The second heir can be. being an heir also of the testator. provided there is only one transfer. not as a fideicommissary but as an ordinary substitute heir. A predeceases T. must be capacitated to succeed the testator.

Upon A’s death. will B get the property? No. A’s brother. Is this a valid fideicommissary substitution? As far as A and A-1 are concerned. testate or intestate. T died and his property passed on to A. A’s son A-1 as second heir. Property will go to A’s heirs. in fact. yes. The fideicommissary substitution is not valid because B is second degree from A. as fideicommissary or second heir. But as to A1’s mother. But she may still get the property from A-1 by testate or intestate succession. and A-1’s mother is third heir.g) T instituted A as first heir and B. h) T instituted A as first heir. she may not even be related to A by blood. . no because she is not one degree from A.

000 to be spent for the interment of the testator. Applies to the free portion. c) For a certain purpose or cause (Modal institution): A is given P30. 2.DISPOSITIONS WITH CONDITIONS OR TERMS 1. never to the legitime. Kinds of institution: a) With a condition : B is instituted provided he passes the 2004 bar exams b) With a term : B is instituted beginning 2003. .

Hence.) (ii) When imposed on the widow/widower by the ascendants or descendants of the deceased spouse. (id. 873). even if the testator should provide otherwise (Art. the disposition is deemed not subject to a condition and is valid. That is only the condition is void. If the condition is violated. With Condition: a) Impossible or illegal conditions and those against good customs are deemed not imposed and do not prejudice the heir.3. Free portion goes to the intestate heirs of the deceased.(id.) . (Art. except: (i) When imposed on the widow and widower by a deceased spouse. b) An absolute condition not to marry is void for being against good morality and public policy. the widow or widower gets only his/her legitime. 874) c) Absolute condition not to remarry is also void as against morality and public policy.

F married after T’s death. . (ii) H instituted his wife as sole heir (there are no other compulsory heirs) on condition that when she becomes a widow. she would not remarry.d) Examples: (i) T instituted friend F provided he will never marry. But the wife still gets her legitime. The condition is valid because it is not an absolute prohibition. F is still entitled to inherit from T because the condition is immoral. The condition is valid as to the free portion. (iii) A instituted his friend B provided he does not marry C. the widow remarried. Two years after H’s death.

The disposition itself is void.e) Disposition captatoria : A disposition on condition that the heir shall make in his will a provision in favor of the testator or any other person. the heir tried his best). (ii) When condition has already been complied with and cannot be complied with again. 876). (i) Must be fulfilled as soon as the heir learns of the testator’s death. f) Potestative condition (Art. condition is deemed fulfilled (Art. (iii) Substantial or constructive compliance is enough (that is. So the heir gets nothing because the institution is a nullity. not just the condition.` . 876): The fulfillment depends solely on the heir and must be performed by him personally.

substantial or constructive compliance is sufficient. already deemed fulfilled. (iii) If already complied with and testator was aware of the compliance. That C wins first prize in the lotto. Mixed – depends partly on the will of the heir and partly upon chance or the will of a third person. Rules: (i) Condition may be fulfilled before or after the death of the testator.g) Casual or mixed condition (Art. (iv) Again. Examples:That A becomes a lawyer. That A wins the Miss Universe beauty contest. 877): Casual – depends upon chance or the will of a third person. (ii) If already complied with and testator was not aware of the compliance. deemed fulfilled if cannot be complied with again. . Ex: That B becomes a lawyer.

880). and will have to return the property in case of contravention of condition. (Art. the property is placed under administration until the condition is fulfilled (Art. 879) i) Positive potestative condition: (i) A institutes B provided the latter learns how to play the piano. with fruits and interests. (ii) Upon A’s death.h) Negative potestative condition: (i) A institutes B provided he stops smoking (ii) B gets the property upon giving security. .

(The mother will surely die. Ex. but even the acquisition of the right itself. Ex. I give this property to X upon his mother’s death.) A condition not only suspends the demandability. It may or may not happen.4. With Term a) Distinguished from condition A term is sure to happen. . It merely suspends the demandability of a right. I give this property to X if his mother dies of cancer.

But if the instituted heir under a suspensive condition dies before the condition is fulfilled. 2003 (iii) Ex die in diem : From a certain day to a certain day. the heir acquires the right pending arrival of the term. he transmits nothing to his heirs because he never inherited from the testator. 878. NCC). and transmits the right to his heirs even before the arrival of the term (Art. . like from year 2002 to 2010.b) In a disposition with a term. This is because a term is sure to happen. c) Kinds of terms: (i) Suspensive: Beginning 2003 (ii) Resolutory : Effects cease on December 1.

880). place the property under administration (Art. 880).d) Rules to follow: (i) T institutes his brother A for 5 years after T’s death. (ii) T institutes his brother A 5 years from his (T’s) death.This is a suspensive term. (iii) T institutes B subject to a suspensive condition: If T dies. . the legal heirs enter into the possession of the property before term arrives. 885).If the legal heirs do not give security. . . the property shall be placed under administration until the condition is fulfilled (Art.A enters possession at once. which will end after 5 years.In suspensive term. subject to giving security (Art 885). A gets the property only after 5 years from testator’s death. . The legal heirs enter into possession of the property in the meantime before arrival of term after giving security (Art. .

(aa) Legal heirs possess property until the term arrives after giving security. This is because the term is sure to come. place the property under administration.(iv) A institutes B upon the death of C. If security is not given. . (bb) Instituted heir who dies before the arrival of the term transmits his rights to his own heirs.

(ii) I institute A as my heir provided he devotes 50% of the income of the property to the establishment of a professional chair in Civil Law at the San Sebastian College of Law. or the application of the property for a certain purpose. . 882). a) Examples: (i) I institute A to my estate for his legal education. or a charge imposed on the heir or legatee/devisee. Modal Institution May be a statement of the object of the institution. (Art. b) Rules to follow: (i) The inheritance can be immediately demanded provided the heir gives security for compliance with the wishes of testator.5.

882) (i) Distinguished from suspensive condition in that if suspensive condition is not yet fulfilled. . property is immediately demandable provided heir gives security for compliance with wishes of testator. property is not demandable even if security is offered. In modal institution.(ii) Heir must return property with fruits and interests if obligation is disregarded (Art.

. whether legitimate or illegitimate. Definition of legitime: That part of the testator’s estate which he cannot dispose of because the law has reserved it for his compulsory heirs (Art.886. 2. NCC).LEGITIME 1. Who are compulsory heirs? a) Primary compulsory heirs (i) Legitimate children and their legitimate descendants (ii) Surviving spouse (iii) Illegitimate children and their descendants.

(ii) Illegitimate parents (other illegitimate ascendants not included). legitimate in children and . They inherit only default of legitimate and illegitimate their respective descendants.b) Secondary compulsory heirs (i) Legitimate parents and other legitimate ascendants (they inherit only in default of children and their descendants).

Remember: a) Purpose of legitime is to protect the surviving spouse and the children from the unjustified anger or thoughtlessness of the testator. or burdens on the legitime except the condition that the estate will not be divided for a period not exceeding 20 years (Art. . b) If there are no compulsory heirs. substitutions. c) The testator cannot deprive the compulsory heirs of their legitime except through valid disinheritance. d) The testator cannot impose any conditions. 1083) e) Donations intervivos are to be reduced if found inofficious (i.e.. if they exceed the free portion) f) Compulsory heirs are not compelled to accept their legitime.3. there can be no legitime.

Surviving spouse – ¼ d) Two or more legitimate children and surviving spouse – Legitimate children – ½ . illegitimate children – Legitimate children – ½ . . Illegitimate children – Each gets ½ of share of one legitimate child (Also to be taken from the free portion).4. Surviving spouse – same share as one legitimate child e) Two or more legitimate children. Surviving Spouse – same share as one legitimate child (to be taken from the free portion). surviving spouse. Legitimes of compulsory heirs a) Legitimate children – ½ of estate divided by number of children b) One legitimate child – still ½ c) One legitimate child and surviving spouse – Child – ½ .

f) Legitimate parents and surviving spouse – ½, ¼
g) Surviving spouse and illegitimate children –
Surviving spouse -1/3 ; Illegitimate children – 1/3
h) Legitimate parents, surviving spouse,
illegitimate children- Legitimate parents – ½
(even if
there is only one parent) ; Surviving
Spouse – 1/8 ;
Illegitimate children – ¼
i) Legitimate parents only – ½
j) Illegitimate children only – ½
k) Surviving spouse only – ½, but if marriage was
in articulo mortis and testator died within 3 months
from marriage, 1/3; if parties, however had lived
together
for more than 5years before their marriage,
½.

l) Legitimate parents and illegitimate children –
Legitimate parents – ½ ; Illegitimate children – ¼
m) Illegitimate parents only – ½
n) Illegitimate parents and surviving spouse –
Illegitimate parents – ¼; Surviving Spouse – ¼
o) Illegitimate children only – ½
p) Illegitimate parents and illegitimate
children – Parents – none ; Illegitimate children –

1/2

Remember also:
a) Legitimate children always get ½ of the estate as legitime.
And this is true even if there is only one child.
b) Legitimate parents as secondary compulsory heirs also
always get ½ of the estate as their legitime, and this is true
even if there is only one legitimate parent.
c) There is no representation in the ascending line.
d) The legitime of the surviving spouse must be paid first out
of the free portion; then give the illegitimate children their
legitime. Therefore, if there are many illegitimate children,
each of them might not get ½ of the share of a legitimate child.
e) There is also representation of illegitimate children
f) Illegitimate children do not inherit abintestato from
legitime children and relatives of their illegitime father and
mother because of the barrier, and vice versa . (Art. 992)

g) Brothers and sisters are not compulsory heirs, but they are
intestate heirs. So, a testator can give his entire estate to strangers
in his will, excluding his brothers and sisters.
h) To determine the legitime, get the value of the property, minus
debts, plus the value of donations subject to collation (Art. 908)
i) Donations to children shall be charged to their legitime;
donations to strangers shall be charged to the free portion; if
they are inofficious, they shall be reduced (Art. 909)
j) The legitime of legitimate parents shall be divided between
them equally. If one parent is dead, the other gets the whole
legitime.
k) If the testator has no legitimate parents but is survived by
ascendants of equal degree, the legitime shall be divided
equally between paternal and maternal lines. If the ascendants
are of different degrees, the ones nearest in degree get the
entire legitime (Art. 889).

or a brother or sister. The ascendant who inherits from his descendant any property which the latter may have acquired by gratuitous title from another ascendant. 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. 891. Reserva Troncal Art.5. (NCC). .

by legitime or by intestate succession) (Transmission by gratuitous title) CHILD (Propositus) ..Example: MOTHER (origin) FATHER (Reservoir or reservista) (Transmission by operation of law.e. i.

i. d) The reservees or reservatarios within the 3 rd degree from the child are any of the following: (i) Maternal half-brothers and half-sisters (second degree) (ii) Maternal half-nephews and half-nieces (third degree) (iii) Maternal grandparents (second degree) (iv) Maternal great grandparents (third degree) (v) Maternal aunts and uncles (third degree) . so father inherited land intestate. c) Father owns land only until he dies.Explanation: a) Mother gave land to child by donation or in her will. Land is reserved by law in favor of the relatives of the mother within the 3 rd degree from the child. Or child gave land to father as the latter’s legitimate in a will. who are the reservees or reservatarios.e.. by gratuitous title. b) Child died with no descendant and no will.

MGGP Reservatarios or Reservees (Relatives of the propositus within the 3rd degree in the maternal line.) 3 MGP 2 3 3 MA MU Mother (Origin) 2 MHS 3 MHN 2 MHB 3 MHN 1 Child (Propositus) .

e) Among the reservees, those in the direct line are
preferred as against the collateral line. Thus, a
grandparent is preferred to a half-brother or sister.
Also, the nearer excludes the farther.
f) Maternal half-nephews and half-nieces are preferred
to maternal aunts and uncles because they are also
intestate heirs of the propositus,
while aunts and
uncles are not.
g) Children of first cousins are not reservees, because
they are already the 6th degree from the propositus.

Other rules to remember:
a) Between the brother of the father and brother of the mother, the
property goes to the latter by reserva troncal.
b) Suppose the mother dies intestate, leaving a car to her child. Later, the
child dies intestate with no wife and no children. The father inherits the
car by intestate succession. This car is reservable.
c) The propositus is the owner of the above car while alive, so he can
defeat the reserva by selling the car.
d) There is no reserva troncal if the child gives the property to his father
in a will out of the free portion, because that is not by operation of law.
e) The reservista is a full owner of the property subject to a resolutory
condition; i.e., upon his death, the property goes to the reservees
f) The property cannot be used to pay the debts of the reservista’s estate
because it is not part of his estate after his death.
g) The reservista must inventory the property and must furnish a bond,
mortgage or any other security to secure the delivery of the property or
its value to the reservees.

h) The reservista is liable for all deterioration imputable to his fault or
negligence.
i) Land may be registered as subject to reserva troncal, and if there is
such annotation in the title, security is not necessary.
j) If the property is personal, the reservista may sell, donate, or pledge
the property, but his estate must reimburse the reservees the value of
the property.
k) If the property is land, the reservista must annotate the reserva
troncal within 90 days from the time he accepts the inheritance (when
there is no case filed in court) or within 90 days from the time it is
awarded to him by the court (Arts. 199 and 191, Spanish Mortgage
Law). The reservees can judicially demand the annotation.
l) The reservees inherit the property from the propositus, not from the
reservista. They are conditional heirs of the propositus.
m) There is representation in reserva troncal , but the representative
must also be within the 3rd degree from the propositus (like nephews
and nieces)

n) Proceeds of insurance given to the beneficiary are not subject to
reserva troncal because this is not a donation
o) If the mother gives a sweepstakes ticket to her son and the ticket
wins later, the prize is inherited by the father, there is no reserva
troncal because the prize came from the PCSO, not from the
mother.
p) Prescription extinguishes the reserva troncal (30 years for real
property, 8 years for personal property)
q) If the property subject to reserva troncal is expropriated , the
reserva continues on the indemnity.
r) If the property is insured and later destroyed, the reserva
continues on the insurance proceeds.
s) The purpose of the reserva troncal is to keep the property in the
family to which it belongs (Velayo Bernardo v. Siojo, 58 Phil. 89)
t) Reserve troncal exists only in the legitimate family; no reserva
exists in favor of illegitimate relatives.

When the son died without a spouse and without children.000 under her will.000 is reservable. He also had properties of his own worth P40.000 legitime of P30. received by the son from his mother can be included or contained in his legitime of P30. since the P20.000) to his father in his will.000 received by the son from his mother went to the father by operation of law. only ½ of P20.000 (½ of P60. . said P20. But under the principle of reserva minima.000.u) Reserva maxima and reserva minima: Explanation: A son received from his mother P20.000 is reservable.000). How much us the reservable property? The legitime of the father in his son’s estate is P30. on the theory that only ½ of the P20.000. Under the principle of reserva maxima. he left all his estate (worth P60.000.

because it subjects to the reservation the largest amount possible. v) How is the reserva extinguished? (i) Death of the reservor or reservista (ii) Death of all the would-be reservees ahead of the reservor (iii) Accidental loss of the reservable property (iv) Prescription (runs from the death of the reservor) – 30 years for real property.The reserva maxima is more in consonance with the original objective of reserva troncal. and favored by Manresa and Scaevola. 8 years for personal property. more in line with the philosophy of the law of socialization of property. But the reserva minima is more just and more equitable. .

the cruel. for causes expressly stated by law. in consequence of disinheritance. Purpose or object of disinheritance: a) To maintain good order and discipline within the family (Castan). A compulsory heir may. the unworthy heir. 915. Meaning of disinheritance: Art. the culpable. the unfaithful spouse. (NCC) 2. . b) To punish the ungrateful. be deprived of his legitime.DISINHERITANCE 1.

stating the cause in the will. must be total or complete. (Art. disinheritance is not valid. 916). d) Cause must be legal.915). Requisites of a valid disinheritance: a) Disinherited heir must be clearly identified. c) Must be express. true. . f) Can’t be partial. and existing (Art. e) Must be unconditional. 916). and the heir gets his or her legitime.3. If partial. b) Must be for a cause provided for by law (Art.

but the disinherited heir shall not have the usufruct of the property constituting the legitime. (Art. b) Includes not only the legitime. c) If will is revoked. g) Heirs of the disinherited heir represent the latter in the legitime. the disinherited heir still gets his legitime. Remember also: a) Can be made only in a will. f) In preterition. There is no disinheritance in legal succession. but also the free portion. disinheritance becomes ineffective. 923) .4. so brothers and sisters cannot be the subject of disinheritance. In invalid disinheritance. d) Only compulsory heirs can be disinherited. the whole institution of heirs is annulled. e) Reconciliation renders disinheritance ineffective.

i.5.000 each. If T dies with an estate of P100. disinheriting one of his children for living a disgraceful life. Since the disinherited heir loses not only his legitime but any share in the free portion. Problems: a) T has 5 children. Divide the P100. since intestacy is only the presumed will of the deceased.000 estate equally among the 4 instituted children. again divide the P100. T also instituted is 4 other children as heirs in his will. .000. how would his estate be divided? The disinherited child is not entitled to his legitime and also a share in the estate as an intestate heir.000 estate. He made a will with only one provision. b) Suppose in Problem (a). Divide the estate among the other four children equally or P25.e..

So the disinherited daughter gets her legitime of P50. Divide the estate. Then divide the free daughters.000 (1/3 of P150. The disinheritance is not valid because the cause is not valid. He made a will disinheriting one of them for living a disgraceful life. which they get as instituted heirs in addition to their legitime of P50. so just divide the entire estate equally between the two daughters who were instituted as heirs.00 each. The disinheritance is valid. d) Suppose in Problem (c). and gave his entire estate of P300. . Divide the estate.c) T has 3 daughters.000). the ground for disinheritance is that the daughter married a man that the father does not like.000 to his two other daughters.

he will not also inherit from T. 1032 (2).” Is the disinheritance valid” No. . because it is partial.e) T’s will reads: “I disinherit my son A if he makes an attempt against my life. but because he is incapacitated under Art. Is the disinheritance valid? No. So C still gets his legitime. f) T disinherited his child C in his will. because it is conditional. not because of the attempted disinheritance. And this is true even if A actually makes an attempt against his father’s life after the execution of the will. providing that C would only get ½ of his rightful share in T’s estate. But if A is convicted.

-Same- 2. -Same- 3. Or more if found to be groundless 2. his spouse. 921) 1. Conviction of 1. or illegitimate (Art. .6. leg. 919) Of parents. adultery or concubinage with testator’s spouse -Same- 3. 920) Of spouse (Art. -Same- 2. Has accused testator of a crime punishable by 6 yrs. descendant or ascendant -Same- 1. When he/she has given around for legal separation (even if no case is filed). or illegitimate (Art. attempt against life of testator. Conviction of 3. leg. Grounds for disinheritance Of children.

Attempt against life of other parent. Leading dishonorable or disgraceful life 6. Caused testator to make a will or to change one through fraud. 7 in case of parents 7. Conviction of crime punishable by civil interdiction 7. Maltreatment of testator by word or deed (conviction not necessary) 5. Refusal to support testator w/o justifiable cause 4. Loss of parental authority for causes specified by law 6.4. unless there is reconciliation 5. Abandonment of children and descendants and inducing daughters to live corrupt or immoral lives or attempted against their virtue. or undue influence 8. Refusal to support children 4. Note: Maltreatment of child by parent is not ground for disinheriting parent because it is part of parental discipline . Unjustified refusal to and descendants w/o support children or other justifiable cause spouse 5. intimidation. When spouse has given ground for loss of parental authority 6. Same as No.

the heir cannot also inherit. But reconciliation extinguishes unworthiness as an incapacity. because incapacity is only the presumed will of the testator. Reconciliation between testator and disinherited heir: a) Subsequent reconciliation deprives the testator of the right to disinherit. like abandonment of children or an attempt against the life of the testator. and any disinheritance already made becomes ineffectual.7. It can be express or implied. b) Reconciliation needs no special form. c) If ground for disinheritance is also a ground for unworthiness. .

Ineffective disinheritance: a) No cause for disinheritance is stated b) The cause is false c) The cause is not legal d) Subsequent reconciliation between testator and disinherited heir results in ineffective disinheritance 9. . How disinheritance is revoked: a) By subsequent reconciliation between testator and disinherited heir. b) By the making of a new will making the disinherited heir an instituted heir.8.

while a devise is “devised”. A devise is a gift of real property given in a will. .LEGACIES AND DEVISEES 1. b) A legacy is “bequeathed”. Legacy and devise distinguished a) A legacy is gift of personal property given in a will.

Who has the duty to give the legacies and devises in a will. but he must give Y P500. a) If no one is charged with this duty in the will. i. legacies/devises cannot be beyond the free portion (Art. Ex: “I institute my child C as heir. Ex: “I give my NISSAN car to X.” . the estate must give them. as represented by the executor or administrator with a will annexed.000 to X”. b) Testator may impose the duty on the compulsory heirs as long as their legitimes are not impaired..2. c) A legatee or devisee can also be charged with the duty of giving a sub-legacy or sub-devise but only to the extent of the value of the legacy or devise given him (Art. but he must give P10. 925). 925).e.

. c) If the testator orders the heir. or devisee to acquire the property from another. (Art. if the testator erroneously believed that he was the owner of the thing when in reality. Heir bound to deliver is liable for eviction If legacy is a specific. the latter must do so. legatee. heir is not liable eviction 4. 930) a) Void. b) But if the thing subsequently becomes his.3. he is not the owner. determinate car. he is obliged only to give the just value of the thing (Art. the disposition is valid. Indeterminate Legacy (Art. 931). 928) a) b) c) for Example is a legacy of an indeterminate or generic car. Legacy or devise of a thing belonging to another. If the owner refuses to sell or demands an excessive price.

5. the legacy or devise is ineffective. b) If the thing is subject to an encumbrance or interest of another person. Legacy or devise of thing already belonging to the legatee or devisee (Art. the legatee or devisee subsequently reacquires it gratuitously. 933) d) If after alienating the thing.932): a) If the thing already belongs to the legatee or devisee at the time of the execution of the will. the legacy or devise is still void. he is entitled to reimbursement of what he had paid (Art. But if he reacquires it by onerous title. c) If thing bequeathed belonged to the legatee or devisee. the legacy or devise is valid only as to the interest or encumbrance. 933) . legacy or devise is without effect even if legatee or devisee subsequently alienates the thing (Art.

still the estate must pay the debt c) Other charges like easements. Legacy of a thing pledged or mortgaged to secure a debt (Art. 934): a) If pledged or mortgaged before the execution of the will. the estate must pay the debt.6. usufructs. . leases which are real rights. pass to the legatee or devisee. b) If pledged or mortgaged after the execution of the will.

the debt remains. the at the the time 8. c) Legacy lapses if the testator later brings action against debtor. 937). comprises all credits/debts existing at the of execution of the will (Art. . d) If generic. Legacy to the debtor of thing pledged by him (Art. Legacy of credit. 935): a) Effective only as regards the credit or debt existing at time of the testator’s death.7. b) Can also be applied to mortgage. 936) a) Only the pledge is extinguished. or remission or release of a debt (Art. antichresis. b) The legacy comprises all interests due to the testator time of his death. or any other security.

b) If the order is to pay more than the debt. Legacy or devise to a creditor (Art. unless the testator so declares b) In the latter case. like a prescribed debt . or to what the testator owes him. 938): a) Shall not be applied to his credit. If the testator orders the payment of a debt (Art. of the credit or of the legacy or devise 10. the creditor can still collect the excess. if any. 939): a) If he does not really owe the alleged debt.9. the excess is not due c) This is without prejudice to the payment of natural obligations. the disposition is void.

Alternative legacies and devises (Art. is irrevocable d) Apply rules on obligations in general . once made.11. or the executor or administrator b) If the heir. or devisee who is bound to give the gift dies. the right passes to the heirs c) The choice. 940): a) The choice is with heir. legatee.

the right passes to his heirs (Art. 942) e) If the heir. or devisee. 941): a) Legacy of generic personal property is valid even if there are no things of the same kind in the estate b) But devise of indeterminate real property is valid only if there are immovable property of the same kind in the estate c) The right to choose the legacy belongs to the executor or administrator who shall deliver a thing which is neither of inferior or superior quality d) If the choice is given to the heir. Legacy of generic personal property or indeterminate real property (Art. or devisee cannot make the choice.12. 943) . legatee. he may choose whatever he prefers (need not be of medium quality) (Art. legatee.

14. Legacy of education (Art. 944): a) Lasts until the legatee is of age. vocational. it is fixed in accordance with the social standing and circumstances of the legatee and the value of the estate.13. b) If the testator did not fix the amount. consider the social standing and circumstances of the legatee and the value of the estate. . 944): a) It lasts during the lifetime of the legatee b) If the testator used to give the legatee a sum of money for support. give same amount. Legacy of support (Art. unless it is markedly disproportionate to the estate c) If the testator did not fix the amount. or general course. or beyond the age of majority in order that he may finish some professional. provided he pursues his course diligently.

947) b) If gift is specific or determinate. the risk of loss or deterioration is on the legatee or devisee. c) If the gift is specific or determinate. 947): a) If the legacy or devise is pure and simple. and gift includes growing fruits. also upon the death of the testator. 949). 948). . as well as any increase or improvement d) If the gift is generic. When does the legatee or devisee acquire ownership of the gift? (Art. unborn offsprings and uncollected income. fruits and interests from the time of death of the testator pertain to the legatee or devisee if the testator expressly ordered the same (Art. but not income due before the testator’s death (Art.15. from the death of the testator. and he transmits it to his heirs (Art.

Order of preference if the estate is not sufficient to cover all legacies and devises (Art. pro rata . (ii) Entitled to preference because they are moral obligations of the testator. (i) Those which testator gives because of his moral obligation to compensate certain persons for services which do not constitute recoverable debts. like legacy to one who saved the life of the testator. (iii) Remuneratory nature can be proven by extrinsic evidence b) Those declared by the testator as preferential c) For support d) For education e) Legacy or devise of specific.950) : a) Remuneratory. determinate thing in the estate f) Others.16.

951): a) With all accessions and accessories and in the condition it was at the time of the testator’s death b) Deliver the very thing given (if specific or determinate). How legacy or devise is delivered (Art.17. . not its value c) Legacies of money must be paid in cash d) Expenses of delivery are for the account of the heir or estate. but without affecting the heir’s legitime.

Reacquisition of the thing by the testator does not make the legacy or devise valid. unless it is effected by right of repurchase c) If the thing is totally lost during the lifetime or after the death of the testator . or waive his inheritance or the gift. 19. Acceptance of legacy or devise: a) Gift cannot be accepted in part if it is onerous. 957): a) If the testator transforms the thing such that it does not retain its original form or denomination b) If the testator alienates the thing by any title or for any cause. or waive both (Art. 956) d) If a compulsory heir is also a legatee or devisee.) c) Legacy or devise not accepted shall be merged into the mass of the estate. 955). he can accept or waive his inheritance or the gift.18. (Art. except in substitution or accretion (Art. 954) b) Heirs of legatee or devisee can accept the gift if the legatee or devisee dies after the death of the testator. not before (id.When does legacy or devise become of no effect (Art.

958): a) Of no consequence. 959): a) Limited to 5th degree relatives of the testator b) Nearer excludes the farther c) No preference as to lines. Mistake as to name of thing given (Art. a NISSAN 93”.20. Disposition in favor of testator’s relatives (Art. This is effective even if the car is a NISSAN 92 21. if thing can be identified b) Ex: “I give X my only car. What is important is nearness of degree d) Does not apply to relatives of the wife . Grandson and sister are both relatives within second degree.

Legal succession defined: That kind of succession prescribed by law (and presumed by it to be the desire of the deceased) which takes place when the expressed will of the decedent has not been set down in a will. Basis of legal succession: Because unexpected death may come to any person. 2. taking into consideration his love and affection for those closest to him .LEGAL SUCCESSION 1. the law presumes what would have been his last wishes had he executed a will while still alive.

3. or a will that has lost its validity (like a revoked will). or repudiates the inheritance. 960. g) Upon fulfillment a resolutory condition attached to the institution of heir. e) When the heir is incapable of succeeding’ f) Upon the expiration of a resolutory term attached to the institution of heir. . rendering the will ineffective. When does legal succession take place? (Art. d) If the heir predeceases the testator. b) When the will does not institute an heir or does not dispose of all the properties of the testator (partial intestacy). NCC): a) When a person dies without a will or a void will. c) If a suspensive condition attached to the institution of heir in a will does not happen. or is incapacitated to inherit. and there is no substitution or accretion.

. . his only relative.Who gets the house and the car? Ans. A makes a will giving a certain house to C provided he passes the 2002 bar examinations. The car goes to E as the substitute of D. D dies in 1997. C flunks the 2002 bar exams. The house goes to the brother B as intestate heir. with E as D’s substitute in case of predecease.Ex: A has brother B. and giving a certain car to D. A dies in 1998.

and the division between the paternal and maternal lines (Art. Rules to remember in legal or intestate succession: a) An intestate heir is not necessarily a compulsory heir (like a brother or sister) b) Relatives nearer or nearest in degree exclude the more distant ones. 1006). 972) f) There is representation in the descending line. whether full or half-blood descendants. 987) d) Intestate shares are either equal or more than the legitime (like the case of the surviving spouse) e) There is no representation in the ascending line (Art. (Art.4. 962) c) Relatives in the same degree inherit in equal shares. 972) g) There is also representation in the illegitimate line (Art. subject to the rule on full or half-blood brothers and sisters (Art. saving the right of representation when proper (Art. 989) .

but first cousins represent because they are the children of brothers and sisters (iii) Representation in the collateral line is true only in legal succession. . (ii) Children of first cousins cannot represent. because collaterals are not compulsory heirs. (i) Grandchildren of brothers and sisters cannot represent. there is representation only in favor of children of brothers and sisters. and a voluntary heir cannot be represented. 972).h) In the collateral line. whether full or half-blood (Art.

j) Grandchildren always inherit by representation whether they concur with the children or not.i) In partial intestacy. but in no case shall the legitimes be impaired. . They inherit in their own right only when all the children renounce. legacies and devisees are charged to the free portion proportionately against the heirs who are given more than their legitimes. (Art. 982). and they share equally or per capita.

l) Illegitimate children do not inherit abintestato from the legitimate children and relatives of his illegitimate father or mother. Calisterio. they divide per capita or equally (Art. while nephews/nieces divide per stirpes. in this case. 2000) (ii) They inherit in their own right when they do not concur with aunts and uncles. nor do said legitimate children and relatives inherit from the illegitimate child(Art. 975). who divide per capita. (Calisterio v. April 6. (i) They inherit by right of representation when they concur with aunts and uncles. GR 136467. 992) .k) Nephews and nieces inherit either by representation or in their own right. 1005). (Art.

.m) There is also reserva troncal in legal succession. because legal succession is by operation of law n) A renouncer can represent but cannot be represented (Arts. 976-977).

the grandfather inherits alone because the direct line is preferred to the collateral line. they get equal shares (Art. 1004) c) If a man is survived by a grandfather and a brother (both 2 degrees).5. d) Half-sister excludes nephews and nieces. the brother excludes the cousin. Other rules to remember: a) If a man dies survived by a brother and a cousin. . b) If the deceased has two brothers.

while an aunt is only 5th. If there are many illegitimate children. save the right of representation (Art. g) If there are relatives of the same degree and some repudiate or are incapacitated. f) In giving the shares of illegitimate children. 968) . because nephews and nieces are 4th in the order of legal succession. then divide the rest among the illegitimate children. the shares of the legitimate children should not be impaired (1/2 of the estate). give what corresponds to the legitime of the legitimate children first (1/2 of the estate).e) An aunt is excluded by nephews and nieces although both are 4th degrees relations. their shares accrue to the others of the same degree.

000. and D are brothers.500 each. C. while C and D gets P37. the share of A accrues to C and D. while the share of B goes to his child B-1 by representation. and A repudiates his share while B turns out to be incapacitated. because the share of A accrued to them. So B-1 gets P25. If their parents both died. B.Example: Parents (Both dead) A B A-1 B-1 C D A. . because there is no representation in repudiation.000. leaving an estate of P100.

or P50. which they will divide per capita . i) If nephews and nieces alone survive. the next in line (nephews and nieces) get the estate in their own right per capita.h) If in the above example.000 each.000 estate of their parents will go to A-1 and B-1. if A. B. C. they inherit in equal shares (Art. all the brothers and sisters repudiate. 975). there is no representation in repudiation. not by representation because again. the P100. So. . and D all repudiate.

while the ten illegitimate children will divide the other P50.6.000 each. ½.000 each. while the illegitimate children will just have to divide the other half equally among themselves. they divide ½. . they get ½ of the estate. The Sharing in Intestate Succession: a) Legitimate children alone – All b) Legitimate children – Surviving spouse – SS gets the same share as one legitimate child.000 equally among themselves or only P5.000 or P25. So. if there are only 2 legitimate children and 10 illegitimate children. if the parent’s estate is P100. Thus.000 the two legitimate children get P50. If there is only one child. since the legitime of the 2 legitimate children is ½ of the estate. provided the legitimes of the legitimate children are not impaired. c) Legitimate children and illegitimate children – Proportion of 10-5.

so that it can well happen that each illegitimate child cannot get ½ of the share of a legitimate child. to be taken from the other half of the estate so that the share of the legitimate children of ½ of the estate will not be impaired. they will again have to share what remains of the other half of the estate after giving the share of the surviving spouse. . if there are many illegitimate children. Surviving Spouse – Same share as one legitimate child.d) Legitimate children – illegitimate children – s urviving spouse: Legitimate children and illegitimate children – Proportion of 10-5. So.

ascendants are excluded. ½ h) Surviving spouse alone – All i) Legitimate parents alone – All j) Legitimate parents.e) One legitimate child – surviving spouse – illegitimate children: One legitimate child – ½ Surviving spouse – ¼ Illegitimate children – ¼ f) Illegitimate children alone – All g) Illegitimate children and surviving spouse – ½. ¼ Remember that when there are legitimate children. illegitimate children – ½. . surviving spouse. ¼.

½ p) Brothers and sisters. brothers and sisters – ½. ½ m) Surviving spouse and illegitimate parents – ½. ½ l) Legitimate parents and surviving spouse – ½. ½ n) Illegitimate parents alone –All o) Surviving spouse. nephews and nieces – All q) Other collaterals – All (i) Nearer excludes the farther (ii) Does not extend beyond 5th degree (iii) A half-sister excludes all other relatives .k) Legitimate parents and illegitimate children – ½.

8552. Act. 18. Intestate succession in adoption: a) In the intestate succession of the adopter. Rep. (Art. Act 8552) b) In the intestate succession of the adopted child: (i) Again apply Art. Rep.984. (ii) If the adopter dies ahead of the adopted child. 18. the parents and relatives by consanguinity of the adopted child are his legal heirs. NCC) (iii) If only the parents by nature of the adopted child survive. .7. “the adopter(s) and the adoptee shall have reciprocal rights of succession without distinction from legitimate filiation” (Art. they get all.

the latter cannot represent the former in the inheritance from the legitimate relatives of the adopter. d) If the adopter predeceases the adopted child. (3). Family Code). because the filiation created by fiction of law is exclusively between the adopter and the adopted. 189. .c) In the intestate succession of the parents by nature and other blood relatives of the adopted child. par. the adopted child remains an intestate heir (Art.

and acquires the rights which the latter would have if he were living or if he could have inherited. by virtue of which the representative is raised to the place and degree of the person represented. Representation defined: It is “a right created by fiction of law.REPRESENTATION 1. 970.” (Art. NCC) .

. which goes to the representative by operation of law. incapacity. When does representation exist: a) In testate succcession : (i) Exists in predecease. (iii) There is no right to represent a voluntary heir. and disinheritance (ii) Covers only the legitime. b) In intestate succession: (i) Exists also in predecease and incapacity (ii) Covers all that the person represented could have inherited.2.

971) (i) Since the representative does not succeed the person represented. . the representative still gets an equal share in the property of the person whom the person represented would have succeeded. the representative is given less than the other representatives.3. b) The representative succeeds not the person represented but the one whom the person represented would have succeeded (Art. Rules to remember: a) An adopted child cannot represent. (ii) Because the property inherited by the representative does not come from the person represented. he is not liable for the debts of the latter. if under the will of the latter. Neither may an adopted child be represented.

A-1 and A-2 will get equal shares in A’s inheritance from T or as A’s representatives. If A dies giving 2/3 of his estate to A-1 and 1/3 to A-2. sec par. A has two children A-1 and A-2. whether full or half-blood (Art. T dies.Ex: T has 2 children A and B. Hence. c) The right of representation takes place only in the direct descending line: never in the ascending line (Art. .). 972) d) In the collateral line representation takes place only in favor of children of brothers and sisters. grandnephews and grandnieces do not represent. if later. 972.

973).e) The representative must himself be capable of succeeding the decedent (Art. 974) That is. because B-1 succeeds A. . because per stirpes means inheritance by group. Ex: A has a child B who has a child B-1. (Art. not B. B-1 can still represent B in the succession of A. all those in a group inherit in equal shares. If B disinherits B-1 in his will. not per capita. f) The representative must at least be conceived at the time succession opens g) When there is representation. the heirs inherit per stirpes .

his brother B.977) j) Illegitimate children of legitimate children cannot represent because of the barrier. k) When nephews and nieces survive with uncles or aunts.000) .h) A person may represent him whose inheritance he has renounced (Art.000 (1/2 of the other P12.000 each (They divide per stirpes the remaining P6.000 B gets P6. they inherit by representation. He is survived by his wife W. If they alone survive. they inherit in equal portions or per capita(Art.000) C-1 and C-2 get P3. but illegitimate children of illegitimates can represent. sons of his deceased brother C. (Art. 976) i) A renouncer may represent him whose inheritance he has renounced. and nephews C-1 and C2. W gets ½ or P12. 975) (i) A died intestate leaving an estate worth P24. Divide A’s estate. 976.000.

000.00. and C-2 divide the other P12. . their parents being already dead and they have no surviving uncles or aunts.(ii) Suppose in the above problem. survived by his son B-1. How should A’s estate be divided? W gets ½ or P12. B is also dead.000 per capita because they alone survive. Nephews B-1 and C-1.

devise or legacy. NCC) . when two or more persons are called to the same inheritance. co-devisees. Meaning of accretion: “A right by virtue of which. or who died before the testator. is added or incorporated to that of his co-heirs. or co-legatees”. the part assigned to the one who renounces. (Art. 1015.ACCRETION 1. or cannot receive his share.

Thus.2. rather than to his legal heirs. 3. legacy. Requisites of accretion: a) Unity of object (the same inheritance. accretion is preferred to intestacy. or devise) b) Plurality of subjects (two or more persons are called to the same property pro indiviso) c) Vacant portion: Due to – (i) Repudiation (ii) Pre-decease (iii) Incapacity (iv) If a suspensive condition is not fulfilled (v) If a particular heir cannot be identified . Reason for accretion: Based on the presumed will of the deceased that he prefers to give certain properties to certain individuals.

Art. 5.Yes. Art.Art. there is no vacant portion. the predeceased heir never had a chance to inherit. If it is the legitime that is repudiated. because here. the share of the person who repudiates the inheritance always accrues to his co-heirs. not by accretion (Art. that is. Is there accretion in legal succession? . 1018 provides that in legal succession. 1018 applies to incapacity. other compulsory heirs take the share of the repudiating heir in their own right.1021) . without prejudice to representation (Manresa) . Accretion among compulsory heirs takes place only when they are instituted to the free portion. 1018 does not speak of predecease. .4.

entire car goes to Y If X predeceases A. c) A gives ¼ of his money in the PNB to X and ¾ to Y. If X repudiates. (Art. the car also goes to Y b) T gives the first floor of a house to X. legatees and usufructuaries under the same condition established for heirs. Accretion would not apply here. 1023) 7.6. Examples: a) A gives a particular car to X and Y in his will. . Accretion also takes place among devisees. because the shares of X and Y have been earmarked. Accretion takes place even if the shares are not equal. and the second floor to Y.

d) T left to his nephews A. e) T instituted his only cousin and the latter’s daughter as his only heirs. A. his daughter or T’s intestate heirs? .000 at PNB. If the cousin turns out to be incapacitated. by accretion. B and C all his money at PNB at the time of his death. When T died. he had P30. however. who gets his share. leaving a child A-1. died before T.000? .B and C get A’s share by accretion .A-1 does not inherit because there is no representation among voluntary heirs. . Who gets the P30.The daughter.

.f) A and B. because A’s child gets A’s share by representation. so A’s share will accrue to B. his child cannot represent him because one who renounces cannot be represented (iii) If A is incapacitated instead of having repudiated his share. T dies. children of brothers or sisters represent. In the collateral line. . A’s child cannot represent because there is no representation among voluntary heirs. brothers of T.No.If this is testacy. are the latter’s only surviving relatives. (i) If A repudiates. will his share accrue to B? . B gets A’s share by accretion (ii) Suppose A has a child. in intestacy.

000 (his legitime) plus P10. .F gets P10. . his share goes to A in the latter’s own right.If F predeceases T. Other cases: a) T institutes in his will his two legitimate children X and Y. 1022). ¼ each. he left his estate worth P100.000 of the free portion.000 to his two children A and B. and ½ to his friend F.000 b) T has two legitimate children A and B. X gets P15.000 . . In his will. who has a child F-1. T dies.000 and B’s legitime of P25. Divide his estate.000.8.If B predeceases T. to his estate of P60.000. So his share goes to A and B as intestate heirs (Art. not by accretion. So A gets his own legitime of P25.Y gets the same share as X . and friend F. F gets P50. his child F-1 cannot represent him because he is a voluntary heir.

So S.c) T gave P10. sister of T.000 deposited at PBC to friend F-1. gets F’s share as sole intestate heir. who gets his share? . sister. If F repudiates. .000 deposited at PNB to friend F. No substitute was appointed. and P10. S.There is no accretion here because the shares are earmarked. was not given anything.

Capacity to succeed is also called passive testamentary capacity: 3. Kinds of incapacity: a) Absolute – cannot inherit from anybody b) Relative (i) Because of possible undue influence (Art. 739) (iii) Because of unworthiness (Art.1028 in relation to Art. 1032) . 1027) (ii) Because of public policy and morality (Art.CAPACITY TO SUCCEED BY WILL OR BY INTESTACY 1. Applies to both testate and intestate succession 2.

But all other corporations or entities (the State. 1025) . or charitable purposes) may inherit under a will (Art. associations not permitted by law or their charter to inherit (Art. educational. b) A child not yet conceived.4. corporations. 1026. scientific. organizations. provinces. 1027 (6)). private corporations. or associations for religious.). first par. municipal corporations. or abortive infants (Art. Absolute incapacity: a) Individuals. cultural. 1026.

his legitime or intestate share is not included in the incapacity. . 1027. but can be cured by evidence that there was no undue influence (iii ) If the priest is a compulsory or intestate heir of the deceased. (i) Reason: To safeguard the heirs from the sinister and undue influence which may be exercised by a priest or minister over a dying man (ii) Undue influence is conclusively presumed. 1027): This incapacity does not include the legitime or intestacy . a) Priest who heard last confession or gave spiritual aid during last illness of decedent (Art. because heirs inherit by law. Incapacity to succeed because of possible undue influence (Art.5. (1)).

(ii) Relatives of the guardian are not included in the incapacity . in which case disposition is valid. c) Guardian with respect to testamentary dispositions of ward before approval of guardian’s final accounts (Art. sister or spouse of the ward.b) Relatives of the priest in (a) within the 4th degree of consanguinity. 1027 (2)). or the church or organization to which such priest belongs (Art. (3)). (i) Except when guardian is an ascendant. brother. descendant. 1027.

nurse. (i) Brother. associations and corporations not permitted by law to inherit (Art. are not included (ii) The care of the testator must be continuing or regular. (iii) Physician. parents or children of such witness. parents or children (Art. incapacity does not apply. and intestacy because the law says “testator”. 1027 (5)). health officer or druggist who took care of testator during his last illness (Art. (iii) The notary public who acknowledged the testator’s will is not disqualified. 1027 (4)). . surgeon. e) Physician. is not disqualified to inherit by intestacy because the law says “testator”. or anyone claiming under such witness. 1027 (6)). and grandchildren and other descendants are not included (ii) If there are more than three attesting witnesses. f) Individuals. sister. spouse.d) Attesting witness to decedent’s will or the spouse. etc. etc. not an isolated service. (i) Relatives of the physician. and intestacy takes place by operation of law.

739 . In A’s will. Incapacity by reason of public policy or morality (Art. b) Made between persons found guilty of the same criminal offense. NCC.6. Ex: A and B committed murder and were duly convicted. The murder is void. in consideration thereof. guilt can be proved civilly. . a) Made between persons who were guilty of adultery or concubinage: (i) Criminal conviction not necessary. 1028): This is the same as void donations in Art. he gave B a legacy for cooperating with him in the murder. (ii) Legacy or devise to a concubine of the testator in the latter’s will is void.

(ii) But if the disposition is made by a superior in favor of an employee. unless morality is involved. by reason of his office (i) Example is a disposition in the will of an employee in favor of his superior so that he (the employee) can get a promotion. and ascendants. the disqualifications does not apply.c) Made to a public officer or his wife. like if the employee is the mistress of the superior officer. descendants. .

general (ii) Executor must deliver ½ to the church to which the testator belongs. the executor determines. . made in general terms (Art. Special dispositions: a) For prayers and pious works for the benefit of the soul of the testator.e.7. and one-half to the State (iii) Action of executor must be with court approval. i. 1030) (i) Limited to the poor in the domicile of the testator at the time of his death (ii) The following determines the distribution: (aa) Person appointed by the testator (bb) If no one is appointed by the testator. b) Disposition in favor of the poor in general (Art. 1029): (i) Application of disposition must not be specified..

Legacy in favor of a person disqualified by unworthiness is implied condonation. mayor. subject to the approval by the RTC judge (iii) The above rules also apply even when the testator specifies the poor of a definite locality. . c) Provision in favor of a disqualified person even in the guise of an onerous contract or made through an intermediary (Art. and municipal treasurer.(cc) If there is no executor. 1031) (i) Void (ii) Refers to absolute incapacity or incapacity by reason of possible undue influence or immorality (iii) Unworthiness is not included. who shall decide by a majority of votes. since there can be condonation in unworthiness. the municipal judge.

1032): a) Parents who have abandoned their children or induced them to lead immoral lives or attempted against their virtue (Art. . (iii) Heir not be convicted before testator’s death. his spouse. descendant. (i) Since conviction is necessary. and even grandchildren (ii) Attempt “against their virtue” does not need criminal conviction b) Any person convicted of an attempt against the life of the testator. as long as testator dies ahead of him. Incapacity by reason of unworthiness (Art. (i) Applies to daughters and sons. effect is retroactive. (iv) Pardon by the President does not erase the incapacity (v) If heir dies before final judgment. 1032 (1)). if testator dies before conviction. his heirs can still inherit because he ahs not been convicted. 1032 (2)).8. If conviction comes after testator’s death. or ascendant (Art. await final judgment (ii) An acquittal on reasonable doubt removes the incapacity.

. since under present law. hence. 1032 (4)): (i) Of doubtful application now. there is some ground for the accusation. (ii) Heir or legatee or devisee should be at least 21. d) Failure to report violent death of testator within one month (Art.c) Any person who has accused the testator of a crime punishable by six years of imprisonment or more if accusation has been found groundless (Art. (3)): (i) Acquittal must be definite (ii) If acquittal is based on reasonable doubt. no one is really bound to make an accusation except the authorities concerned. incapacity does not arise. 1032.

but he or she cannot also inherit if there was already a decree of legal separation between testator and spouse (Art. . Family Code). 1032 (5)): (i) Conviction by final judgment is necessary (ii) The guilty spouse is not included in this incapacity.e) Conviction of adultery or concubinage with spouse of testator (Art. 63 (4).

1032. or undue influence (Art. or who supplants. 1032 (7)). conceals. or alters the latter’s will (Art. h) Any person who falsifies or forges a supposed will of the deceased (Art.f) Any person who causes testator to make a will or to change one by fraud. . (8)). 1032 (6)). intimidation. violence. g) Any person who by the same means mentioned in (f) prevents testator from making a will or from revoking one already made.

not knowing of the act of unworthiness at the time of the execution of the will. Condonation a) Cause of unworthiness is without effect if there is condonation (Art. the testator gave the person concerned an inheritance. the testator condones it in writing. having knowledge of the act of unworthiness. legacy. but having known of the same subsequently. b) If implied condonation is made in a void will or revoked will. 1033): (i) Implied condonation: If.9. or devise (ii) Express condonation: If. . public or private. the incapacity remains.

wait for final judgment. (i) Condition here is suspensive. 1034): a) Consider the same at the time of the death of the testator b) In the second. whether succession is testate or intestate (Arts. (ii) If heir. not resolutory. c) If the institution is conditional. 1032.10. When is capacity or incapacity to be judged (Art. consider the time of compliance or fulfillment of the condition. 16. legatee. or devisee disposition becomes inoperative d) Capacity to succeed is governed by the law of the nation of the decedent. par. 1039.. third and fifth paragraphs of Art. sec. NCC) .

Prescriptive period for declaration of incapacity and recovery of property (Art.11. 12. 1040): a) Within 5 years from the time incapacitated person took possession of property b) Anyone who has an interest in the succession (person who inherits in place of the incapacitated heir) may bring the action. 1035): a) Representation of the incapacitated person by his children or descendants is only in the legitime because there is no right of representation with respect to the free portion b) But the incapacitated heir is excluded from the usufruct and administration of the property in question . Representation in case of incapacity (Art.

or devisee with respect to hereditary property: a) Alienations and acts of administration before the judicial order of exclusion are valid as to third persons who acted in good faith (Art. and may enforce credits due to him from the estate (Art.). apply the rules on possession in good faith or bad faith e) Incapacitated person must return property together with its accessions (like the increase of the property by alluvium) (Art. 1038) f) Incapacitated person is liable for all fruits and rents received or could have been received through the exercise of due diligence (id.) . 1036) b) Co-heirs have.13. c) Incapacitated heir may demand indemnity for expenses for preservation of property. however. legatee. the right to recover damages from the incapacitated heir (id. 1037) d) As to improvements introduced by incapacitated person. Effects of acts of incapacitated heir.

while acceptance may be presumed. 1042) f) No person may accept or repudiate an inheritance unless he is certain of: (i) The death of the testator (ii) His right to the inheritance (Art. because no one can be compelled to accept the generosity of another. NCC) b) It is more usual to accept than to repudiate. repudiation requires formalities c) There can be partial acceptance and partial repudiation d) Even the legitime may be repudiated. e) The effects of acceptance or repudiation always retroact to the moment of death of the deceased (Art. General Principles: a) Acceptance or repudiation is a purely voluntary and free act (Art. hence. his right shall be transmitted to his heirs (Art. 1043) g) If an heir dies without having accepted or repudiated. 1053) .ACCEPTANCE AND REPUDIATION OF INHERITANCE 1. 1041.

1056) . 1504) i) If a person who is called to the same inheritance by will and ab intestato repudiates the inheritance in his capacity as testamentary heir. 1055) . some may accept and others may repudiate (Art. once made. the repudiation includes his capacity as intestate heir (Art. or when an unknown will appears (Art. he may still accept as testamentary heir (id.).h) If several heirs are called to the same inheritance. is irrevocable and cannot be impugned except for causes that vitiate consent. j) Acceptance or repudiation.If the heir repudiates the inheritance as intestate heir without knowledge that he has been named as testamentary heir.

donates.) (iii) Examples of implies acceptance (Art. inheritance is not deemed accepted. for the benefit of one or more of his co-heirs (cc) If heir renounces right for a price in favor of all his co-heirs indiscriminately. even gratuitously. 1049) b) Implied acceptance (i) Results from acts by which intention to accept is necessarily implied. or assigns right to a stranger.2. or which one would have no right to do except in the capacity of an heir (Art. or to his co-heirs or any of them (bb) If heir renounces right. but if renunciation is gratuitous and co-heirs in whose favor renunciation is made would get right by accretion. Forms of acceptance: a) Express acceptance: Public or private document (Art. . 1049) (ii) Acts of mere preservation or provisional administration do not imply acceptance (id. 1050) (aa) If heir sells.

(ii) Repudiation by parents or guardian must be with judicial authorization (id) c) Deafmutes (Art. municipal mayor. (i) If literate.e. i. majority vote of municipal judge. Who may accept or repudiate: a) Any person who has free disposal of his property (Art. acceptance must be by guardian. and municipal treasurer. 1044) (i) Right to accept or repudiate belongs to person designated by testator (ii) In default of above. he can accept or repudiate personally or through an agent (ii) If illiterate. who can also repudiate but with judicial approval d) Inheritance left to the poor (Art. 1030.3. 1044) b) Minors and incapacitated persons: (i) Acceptance may be made by parents or guardians (id. 1048).).. but with approval of RTC. apply Art. .

1046): . .e) Corporations (Art.Approval of the proper government agency or department head is necessary. 1045): (i) Acceptance may be made by their lawful representatives qualified to acquire property in their behalf (ii) Repudiation may be made by the same representatives but only with court approval f) Public official establishments (those devoted to public purposes like charity and education and supported by public funds)(Art.

4. Acceptance by creditors (Art. 1052): a) Creditors may accept if repudiation by heir prejudices them b) Creditors must petition the court to allow them to accept in name of heir c) Acceptance by creditors should be only to the extent of their credits d) Any excess after acceptance by creditors pertains to the proper testate or intestate heirs .

1057): a) Thirty (30) days after court issues an order of distribution b) If there is no acceptance or repudiation within said period. inheritance is deemed accepted.5. Period for accepting or repudiating (Art. .

COLLATION 1. 1063. 1062. 1061. NCC) Second: Computing or adding certain values to the estate. and charging the same to the legitime (Arts. and charging the same to the free portion (Arts. 1064. 1063) . 1062. Meaning of collation: It has two meanings: First: Computing or adding certain values to the estate.

property should not be computed or charged to the estate at all. 4. 3. As a general rule. customary gifts. whether given to compulsory heirs or to strangers. Only the value of the thing donated at the time of the donation should be collated (Art. property or value should be computed or added. (Art. 1067). because it is not part of the estate. must be reduced if found inofficious. medical attendance. . all donations inter vivos . Meaning of “not collationable”: First. but should be charged to the free portion (not to the legitime). Second. like expenses for support education. 1071).2.

. in order to determine the legitime (Art. not a compulsory heir. b) The surviving spouse is a compulsory heir. 1061).5. 1061 because: (i) Donations during the marriage are null and void (ii) Donation propter nuptias to a future spouse is donation to a stranger and must be imputed to the free portion because at that time. c) Proceeds of life insurance are not collationable because they are not considered donations. the donee was not yet a spouse. hence. Reason: Every donation inter vivos to a legitimate child is generally considered an advance on his legitime. but she is not included in Art. Collation by compulsory heirs: a) Compulsory heirs must bring to collation any property received as donation or by gratuitous title.

Anyway. the donation shall be charged to the free portion. (ii) If the donee repudiates the inheritance. He gave A a donation of P10. Obviously.. i. 1062).000 expressly stating in the donation that the same was not collationable. A and B will each get P45.000. D wanted to give A a preference of P10. Ex: D has two sons.000.000. (i) When donor expressly provided. 1062).e.d) When collation does not take place among compulsory heirs (Art. . If D later dies intestate leaving an estate of P90. he does not want donation to be charged to an heir’s legitime But it must still be imputed to the free portion in order to compute the legitime of the compulsory heirs (Art. the legitime of B has not been impaired. A and B.

There was no other provision in his will.000 to A as a donation inter vivos.000 (1/2 of P50. a) This means that the legacy or devise should be imputed to the free portion.000.000. and give B P50. No preference to A was clearly intended by T.000. but the legitime shall in any case remain unimpaired. leaving an estate of P90. how should this estate be divided? Answer: Give P10. and divide the P90. . and from the total estate of P100. give P40.000 legacy to A does not impair B’s legitime.000. So upon T’s death.000.6. T gave the P10. he gave A a legacy of P10. which is P25.000.000 between A and B. Is a legacy or devise subject to collation? Art.000 to A (he already got P10. Property left by will (like a legacy or devise) is not deemed subject to collation if the testator has not otherwise provided. The P10. not to the legitime. or P45. add the P10.000 donation to A to the P90. If T dies with an estate of P100.000 each. b) Example: T has two legitimate children.000). 1063. c) Suppose in the above example. A and B.000 legacy to A. In T’s will.000 as advance legitime).

7. Grandchildren who inherit from their grandparents by representation of their parents must bring to collation all properties received by their parents from their grandparents (Art. 1064). .

1065). Reason: The parents were not the ones who received the donations.What donations are not collationable: a) Parents are not obliged to bring to collation in the inheritance of their own parents or ascendants properties which had been donated by the latter to their children (Art.8. .

.b) Donation to the spouse of a child should not be brought to collation (Art. the ½ share pertaining to the child of the donor must be brought to collation. 1066): (i) The donation here is not considered an advance on the child’s legitime because it was not given to him. but it must still be imputed to the free portion of the estate of his parent (ii) But if the donation was given to the spouses jointly.

ordinary equipment. apprenticeship. . 1068. 1067). (i) Reason: These expenses are not donations but part of the moral. education. social. (ii) Education here means only up to high school. medical attendance. or customary gifts are not subject to collation (Art.c) Expenses for support. and legal obligations of the parents towards their children. even in extraordinary illness. because college education is covered by Art.

But when collation is required. vocational. the sum that the child would have spent had he lived with the parents must be deducted (Art. .d) Expenses of parents in giving children professional. or other career shall not be brought to collation unless the parents so provide or unless they impair the legitime (like a Doctor of Philosophy degree obtained by a child abroad at the expense of the parents). 1068).

e. fines. i. Note: Justice J. election expenses.B. Reyes had believed that cash wedding gifts are not included in the above Article. the reason behind both gifts being the same.e) Wedding gifts by parents and ascendants consisting of jewelry. 1069) . clothing.. while Justice Paras believed otherwise. and outfit are not chargeable to the legitime of the of the child or descendant. the sentimental value of the child’s wedding to the parents. and similar expenses are collationable (Art.L. f) But payment by parents of a child’s debts.

). What should be brought to collation. be it accidental or culpable. shall be for the account and risk of the donee (id. shall be brought to collation (Art.9. . The thing’s subsequent increase or deterioration and even its total loss or destruction. 1071) a) Only the value of the thing at the time of the donation. 1071). the thing or its value? (Art. not the thing itself.

c) If donated property is movable. and quality b) If donated property is immovable. 1073-1074): a) Co-heirs shall perceive properties of the same nature. class. How to equalize shares of heirs if there is collation (Arts. co-heirs can select an equivalent of other personal property in the estate at its just price.10. or sell other properties at public auction. . co-heirs should receive the cash equivalent or in securities.

c) Works for mere pleasure of donee should be removed without injuring the estate. Reimbursable expenses of the donee (Art. b) Improvements to immovables which have increased value of property. .11. 1076) a) Necessary expenses for preservation.

000 each.000. X had already received from T P10.000. in his will.000. Problems: a) T had two children X and Y. Later.000 (P50. so that T’s estate is actually valued at P100. During his lifetime.000 that T gave him in the latter’s will. Add to this the P15. X complained. claiming that he was not given his legitime.000 When T died. T distributed his estate of P90.000 Y – P25. The legitime of X and Y is ½ of P100.000. Is X right? Answer: The P10. T gave child X P10.000 Friend F – P50. . and he actually received his legitime of P25.000 earlier given by T to X is collationable.12.000) or P25.000 as follows: X – P15.

and C.000 of X’s estate as their legitime. B. During his lifetime.000.b) X has three children A.000 donation to A and the remainder of his estate of P30. B and C is.000. The legitime of A.000. he left an estate of P30.000 (imputing his donation to his legitime and the free portion).000. and the free portion of P45. So X’s donation is not inofficious.000). Answer: X’s estate is actually P90. X gets his legitime of P15. X gave A a donation of P60.000. therefore P45. and A. Divide X’s estate.000 (the P60. B and C should get the remaining P30. Divide this into three. When X died. . B and C each gets a legitime of P15.

his estate minus A’s legacy would only be P20.000).000.000 plus P20.000. In his will. so the legitime of A and B is P50.000 (P80.000 or P25.000. while the rest of A’s legacy would be taken from the free portion.000 each. So both A and B would receive a legitime of P25. when T died. T gave A a legacy of P80. However. reduce A’s legacy by P5.000 each. Should A’s legacy be reduced? Answer: The total estate of T is P100.000.000 and add it to the remaining estate of P20. In order to complete B’s legitime of P25.c) T has two legitimate children A and B. .