WILLS AND SUCCESSION

2015 Bar Review

Atty. Myra Angeli A. Gallardo-Batungbakal
SUCCESSION

Article 774. Succession is a mode of

acquisition by virtue of which the property,
rights and obligations to the extent of the
value of the inheritance, of a person are
transmitted through his death to another or
others either by his will or by operation of the
law.
Terminologies
 Decedent
 Testator/Testatrix
 Administrator/Administratrix
 Executor/Executrix
 Inheritance – property or right acquired
 Succession – a mode of acquisition
 Legatees
 Devisees
 Compulsory heir
 Voluntary heir
TESTAMENTARY SUCCESSION
WILLS
 Acticle. 783. A will is an act whereby a
person is permitted, with the formalities
prescribed by law, to control to a certain
degree the disposition of his estate, to take
effect after his death.

The making of a will is a statutory right.

 Allows the testator “to control to a certain degree
the disposition of his estate after his death.”
Nota Bene!!!
Article 777. The rights to the succession are
transmitted from the moment of death of the
decedent.

Requisites for Succession Mortis Causa:

1. death (actual or presumed)
2. rights or properties that are transmissible
3. transferee (must be living, i.e.no
predecease; no repudiation; no incapacity)
Presumption of death
Ordinary presumption of death (no probability
of death) – 10 years
- absentee disappears under normal
conditions – 10 years; 5 years if the
person aged 75 disappears

Extraordinary presumption of death or

Qualified absence (with probability of death)
– 4 years (missing airplane, lost vessel,
military missing because of war, etc.)
Reappearance
 In case the person reappears, he recovers his
property/properties but not the fruits or rent
thereof.
Inchoate right
 Prior to a person’s death, his heirs merely
have an inchoate right to his property.
Therefore, during his lifetime, the heirs have
no right of disposition or alienation over said
properties. Tordilla v. Tordilla, 60 Phil 162

 Q: Can an heir dispose of his share in the

estate pending liquidation?
 A: Yes. The property is no longer “future

property.”
 NOTE: FUTURE INHERITANCE CANNOT
BE SOLD.
 Q: Is the donation of property after the
decedent’s death but before a judicial
declaration of heirship valid?

 A: Yes, it is not a donation of future

inheritance. Osorio vs. Osorio and Ynchausti,
41 Phil 531
Accrual of Estate Tax

 When does estate tax accrue?

Q: Is it at the moment of decedent’s death or at the time

the heirs possess the property/ies?

A: At the time of decedent’s death.

NOTE: The date the inheritance tax (now referred to as estate

tax) is distinct from the date on which it must be paid.
(Lorenzo vs. Posadas, 64 Phil. 353)
 Q: Wife and children survive the decedent.
Wife sells conjugal property. Valid?

 A: Yes, but only insofar as her share is

concerned. As to the shares of her children,
sale is invalid. Reason: children acquired the
properties at the moment of decedent’s death
(and not at the time of the judicial
declaration of heirship). Ibarie vs. Po. L-
5046, Feb. 27, 1953
Kinds of Succession
Article 778. Succession may be:
1. Testamentary;
2. Legal or intestate; or
3. Mixed

NOTE: 2 more kinds of succession:

4. Compulsory or forced succession – where the

decedent is compelled to give the heirs their
legitimes; heirs, however, are free to refuse
5. Contractual succession
TESTAMENTARY SUCCESSION
WILLS

Article 783. A will is an act whereby a person

is permitted, with the formalities prescribed
by law, to control to a certain degree the
disposition of his estate, to take effect after
his death.
Elements of Succession
 1. Making a will is a statutory right.

- Testator is allowed “to control to a

certain degree the disposition of is
estate after his death.”

2. It is a unilateral act.

3. It is a solemn or formal act.

4. There must be animus testandi.

5. Testator must be capacitated.

6. It is a personal act.

7. It is effective mortis causa.

8. It is revocable or ambulatory.

9. It disposes of the estate partially or totally.

Rabadilla v. CA, 113725, June 29, 2000

- A will cannot be subject of a

compromise agreement as it defeats the
purpose of making a will.

- Testator’s wishes must be strictly

followed.
How to cure latent and
patent ambiguity?

By: EXTRINSIC EVIDENCE

 TESTACY IS PREFERRED
OVER INTESTACY
ONLY WHEN THE WILL IS VALID.
After acquired property
 Article 793. Property acquired after the making of a will
shall only pass thereby, as if the testator had possessed it
at the time of making the will, should it expressly appear
by the will that such was his intention.

Ex. In 2010 T made a will disposing of all his five (5)

beach resorts and giving the same to his mentor. From
2010 to 2014, T acquired four (4) more beach resorts. T
died in January of 2015. How many beach resorts will the
mentor get?
Answer: Only 5. The other 4 are after acquired
properties. These properties will go to the compulsory
heirs by intestate succession.
Interest conveyed
 Article 794. Every devise or legacy shall convey
all the interest which the testator could devise or
bequeath in the property disposed of, unless it
clearly appears from the will that he intended to
convey a less interest.

Note: The entire interest of the Testator in the

property is conveyed.

Ex. T bequeaths to A his car. A conveys

ownership of the car and not mere usufruct.
 Validity of the Will

EXTRINSIC VALIDITY INTRINSIC VALIDITY

 Refers to the form

• Refers to the legality of
the terms/provisions

 Ex. Need for a valid • Ex. Provisions must not

attestation clause impair legitimes

NB: Law at the time of the NB: Law at the time of the
Execution of the Will Testator’s Death
1. T is a FILIPINO
a) Philippine Laws
- [Arts. 804- 814]
b) Country where he may be -
[Art. 815]
c) Country where he executes
the will
- [Art. 17 lex loci celebrationis]

AS TO FORMALITIES
EXTRINSIC VALIDITY
 2. T is an ALIEN ABROAD

a) Law of his domicile

b) national law
c) Philippine law [Art. 816]
d) Law of the place of execution (Art. 17, par 1)/
Lex loci celebrationis

Mnemonic: Di Na Po Love
Do Not Leave Please

AS TO FORMALITIES
EXTRINSIC VALIDITY
3. T is an ALIEN IN THE PHILIPPINES

a) Law of his nationality

b) Philippine law

Remember: MVP Stephen Curry, Katy

Perry, or George Clooney
AS TO FORMALITIES
EXTRINSIC VALIDITY
Example – Alien Abroad
An Australian, domiciled in France,
is en route to Switzerland. He has
a 5 hour lay over in Spain. While
in the airport (Spain), he makes a
will. What country’s/countries’
formalities should he observe to
make sure that the will is valid as
to its form?
This is a case of an ALIEN ABROAD. He can
apply the formalities prescribed in the
following places. Hence, apply Di Na Po Love.
:

1. France (Domicile)
2. Australia (Nationality)
3. Philippines
4. Spain (Lex loci celebrationis)
Example – Alien in the Philippines
 A Korean who has a Korean Restaurant in
Manila has been residing in the Philippines
for 15 years now. She intends to make a will.
What country’s/countries’ formalities must
she observe?

1. Korea (nationality) [Art. 817 – lex

nationalii

2. Philippines [Art. 17 – lex loci]

 NATIONAL LAW
of the Testator governs
[regardless of the place of execution of
the law of the place of death of the
Testator].
AS TO LEGALITY OF PROVISIONS
INTRINSIC VALIDITY
 Bellis vs. Bellis, L-23678, June 6, 1967
Facts: T was a citizen and resident of Texas who had illegitimate
children in the Philippines. He had two wills, one disposing of his
properties in Texas and the other disposing of his properties in the
Philippines. He had recognized illegitimate children in the
Philippines but were not given anything in the will. Texas had no
conflict of law rules. Also, Texan law did not have compulsory heirs.
His will stated that the Philippine properties be distributed in
accordance with Philippine laws and not with his own national law.

Issue: W/N said provision is valid.

Held: Not valid. It is void. Said provision contravenes Art/ 16, par.2
of the NCC.
Christensen Case (Renvoi)
Testate Estate of Christensen,
L-6759, January 31, 1963
Facts: Edward Christensen was born in NY but
acquired citizenship in CA when he resided there
from 1904-1913. He came to the Philippines and
resided here despite frequent visits to CA.

He executed a will in Manila on March 5, 1951. He

had a lone acknowledged natural child named Maria
Lucy Christensen who was deprived of legitime per
Christensen’s will.
Issue: What law should
govern the intrinsic
validity of the will in the
light of the renvoi
doctrine, CA law or
Philippine law?
Held: “Reason demands that We should enforce
the California internal law prescribed for its
citizens residing therein, and enforce the conflict
of law rules law for the citizens domiciled abroad.
If we must enforce the law of California as in
comity we are bound to do so, as so declared in
Art. 16 of our Civil Code, then we must enforce the
law of California in accordance with the express
mandate thereof and as above explained, i.e.,
apply the internal law for residents therein, and its
conflict of laws rule for those domiciled abroad.
The conflict of law rule in California, Article 946,
Civil Code, precisely refers back the case, when a
decedent is not domiciled in California, to the law
of his domicile, the Philippines in the case at bar.
The court of the domicile cannot and should not
refer the case back to California; such action will
leave the issue incapable of determination
because the case will then be like football, tossed
back and forth between the two states, between
the country of which the decedent was a citizen
and the country of his domicile.
The Philippine Court must apply its own law
as directed in the conflict of law rule of the
state of the decedent, if the question has to
be decided, especially as the application of
the internal law of California provides no
legitime for children while the Philippine
law, Arts. 887 (4) and 894, Civil Code of the
Philippines, makes natural children legally
acknowledged forced heirs of the parent
recognizing them.” (Christensen Case)
JOINT WILLS
Art. 818. Two or more persons
cannot make a will jointly, or
in the same instrument, either
for their reciprocal benefit or
for the benefit of a third
person.
Notes on Joint Wills

 Joint wills are VOID whether they are reciprocal

or not.

 If the will is executed by Filipinos, regardless

where they execute the same, the will is VOID
due to public policy.

 If foreigners execute a joint will abroad and it is

valid in the place of execution in accordance with
Art. 816, the same shall be considered valid here.

 If foreigners execute a joint will in the

Philippines, the will is VOID.
Testamentary Capacity and Intent

Requisites of Testamentary Capacity:

1. T not prohibited by law to make a will

[Art. 796];
2. T is at least 18 years of age [Art. 797];
and
3. T is of sound mind at the time of the
execution of the will [Art. 798]
Soundness of Mind
Article 799. To be of sound mind, it is not
necessary that the testator be in full possession
of all his reasoning faculties, or that his mind
be wholly unbroken, unimpaired, or
unshattered by disease, injury or other cause.

It shall be sufficient if the testator was able at

the time of making the will to know the nature
of estate, proper objects of his bounty, and
character of the testamentary act.
 1) nature of the estate – what the T is giving

 2) proper objects of his bounty – recipients

of T’s bounty; persons to whom T is
giving

 3) character of the testamentary act –

ambulatory and revocable
“Between the highest degree of soundness of mind and memory
which unquestionably carries with it full testamentary capacity, and
that degrees of mental aberration generally known as insanity or
idiocy, there are numberless degrees of mental capacity or incapacity
and while on one hand it has been held that mere weakness of mind,
or partial imbecility from disease of body, or from age, will not
render a person incapable of making a will; a weak or feebleminded
person may make a valid will, provided he has understanding and
memory sufficient to enable him to know what he is about to do and
how or to whom he is disposing; it is not necessary that the mind be
unbroken or unimpaired or unshattered by disease or otherwise. It
has been held that testamentary capacity does not necessarily
require that a person shall actually be insane or of unsound mind.”
Ortega vs. Valmonte, G.R. No. 157451, December 16, 2005 citing
Alsua Betts vs. CA , 92 SCRA 332 (1979)
Presumption of Soundness of Mind
 Article 800. The law presumes that every person is of
sound mind, in the absence of proof to the contrary.

The burden of proof that the testator was not of

sound mind at the time of the making of the
dispositions is on the person who opposes the
probate of the will, but if the testator, one month
or less, before making the will was publicly
known to be insane, the person who maintains
the validity of the will must prove that the
testator made it during a lucid interval.
Supervening incapacity
and Supervening capacity

 Article. 801. Supervening incapacity does not

invalidate an effective will, nor is the will of
an incapable validated by the supervening of
capacity.
Forms of Will

1. Ordinary or Notarial Will – with an

attestation clause and acknowledgment
before a notary public

2. Holographic Will – entirely handwritten,

dated, and signed by the T
ART. 805 on Notarial Wills
Requirements of a Notarial Will

1. In Writing;

2. In a Language known to the testator;

 This need not be indicated on the
face of the will.
3. Subscribed by the testator himself or
by the testator’s name written by
another person in his presence, and by
his express direction.

 T must sign at the logical end

 First name only – valid (Yap Tua vs. Yap
Ka Kuan, 27 Phil. 579)
 Thumbmark, cross, initials – Valid provided
the T intends this to be his signature

If T cannot write his name, another person

may do so provided: 1) it is done in the
presence of T; and 2) it is by T’s express
direction.

- person should not be one of the three

instrumental witnesses; person does not
have to sign his/her own name; cannot put
his/her name instead of the T’s
4. Attested and subscribed by three or more
witnesses in the presence of the testator and
of each other

 Attest – to affirm to be true or genuine; to authenticate

officially
 Subscribe – to write one’s name underneath
 In the presence – not physical presence but POSSIBILITY
OF SEEING WITHOUT PHYSICAL OBSTRUCTION

- different scenarios (curtain, hallway, looking at a

passing celebrity)
5. Marginal Signatures. The testator or the
person asked by him to write his name AND
the instrumental witnesses shall sign each and
every page of the will except the last, on the
left margin.

 Signatures appear on the last page already.

 Failure to comply with this is a FATAL DEFECT and
renders the will VOID. (See In re; Will of Prieto, 46 Phil
700)
 The purpose of this requirement is to PREVENT FRAUD.
 T signs second page but fails to sign the first page. Will
is VOID. (Estate of Tampoy vs. Albertine, Feb. 25,
1960)
If the whole will is only on one page, no
need for marginal signatures (See
Abangan vs. Abangan, 40 Phil. 476)

 If the signatures appear on the right,

upper, or lower margin – VALID; purpose
is nonetheless served – FRAUD is
prevented. (See Nayue vs. Mojal, 47
Phil. 152)
 6. Numbered correlatively in letters on
the upper part of each page

Prescribed:
One, Two, Three, etc.

Substantial Compliance:
Page 1, Page 2, Page 3, etc.
1, 2, 3, etc.
 7. Attestation Clause must include the ff. info:

i. Number of pages (know substantial

compliance)

ii. That the testator signed the will in the

presence of the instrumental witnesses

iii. That the witnesses signed the will in the

presence of the testator and of one another
Notes on the Attestation Clause:
 Absence of the Attestation Clause
FATAL DEFECT --- Will is VOID.

 Attestation clause not signed by the

witness at the bottom --- FATAL
DEFECT --- Will is VOID

 Failure to state number of pages ---

FATAL DEFECT- VOID
Substantial Compliance re:
Attestation Clause

Gen: Rule : No. of pages not stated – VOID

Exception: When there is substantial

compliance.

There is substantial compliance when the

number of pages can be found somewhere
else in the will itself. There should be no
need for evidence aliunde.
Purposes of the Attestation Clause
 1) To preserve in permanent form a record
of the facts attending to the execution of
the will….(Leynes vs. Leynes, 40 O.G. No. 7,
p. 51)

 2) Proof of compliance with the statutory

requisites for the execution of the will.

 3) To minimize commission of FRAUD.

1) Q: Attestation clause fails to state that the
T signed in the presence of the three
witnesses. Is the will valid?

2) Q: Attestation clause states that the

witnesses signed in the presence of the
T but is quiet as to whether or not the
witnesses signed in the presence of
each other. Is the will valid?
Requisites of a Notarial Will

NOTA BENE:
COMMIT TO MEMORY
ARTS. 804-809 NCC
FOR REQUISITES OF A
NOTARIAL WLL.
Donation Mortis Causa

– partakes of the nature of

testamentary provisions (Art. 728).
Thus, requisites of a notarial will
must be complied with. (See
Maglasang, et al. vs. Heirs of
Cabatingan, June 5, 2002)
Holographic Will

Article 810. A person may execute a

holographic will which must be
entirely written, dated, and signed
by the hand of testator himself. It is
subject to no other form, and may
be made in or out of the Philippines,
and need not be witnessed.
Illustrative Case on
Holographic Will
Vda. De Enriquez vs. Abadia, et al., L-7188, August
9, 1954

- 1923 Sancho Abadia executed a holographic

will. Holographic will were not allowed in 1923.

- In 1946, the will was presented for probate.

- On August 30, 1950, the NCC was adopted,

thereby allowing execution of holographic wills.

- In 1952 the trial court allowed probate.

Q: Should the court have allowed probate of the
holographic will?

A: No, the holographic will should not have been

allowed probate.
Under Article 795 “The validity of a will as to its
form depends upon observance of the law in force
at the time it is made.” Here, the holographic will
was made in 1923 when there was no law allowing
holographic wills. Applying Art. 795, as there was
yet no law at the time the holographic will was
made, the will then is extrinsically VOID. Hence, it
should not be allowed probate.
Probate – allowance of a will after
proof of its due execution
 In the probate of a holographic will

◦ uncontested – 1 witness who knows the

handwriting of the Testator (not
necessarily the subscribing witnesses)

◦ contested - at least 3 identifying witnesses

Lost or Destroyed Holographic Will
Re: Lost or destroyed holographic will without
intent to revoke CANNOT be probated as
there is no comparison as to T’s handwriting.

Re: Photostatic copy of the holographic will

may be allowed as there can now be
comparison as to T’s handwriting.
Holographic will can
be made in the
Philippines or outside
the Philippines.
Witnesses to Wills
Article 820. Any person of
sound mind and of the of
eighteen years or more, and
not blind, deaf or dumb, and
able to read and write, may be
a witness to the execution of a
will mentioned in Article 805
of this Code.
Qualifications of witnesses

1. of sound mind [Art. 820]

2. at least 18 years old [Art. 820]
3. not deaf, blind or dumb [Art. 820]
4. able to read and write [Art. 820]
5. domiciled in the Philippines [Art. 821]
6. not convicted by final judgment of
FALSIFICATION of a document; PERJURY; or
FALSE TESTIMONY [Art. 821]
Disqualifications
Article 821. The following are disqualified
from being witnesses to a will:

1. Any person NOT DOMICILED in the

Philippines;

2. Those who have been CONVICTED of

FALSIFICATION OF DOCUMENT, PERJURY or
FALSE TESTIMONY.
Disqualification of a Notary Public

The notary public before whom the

notarial will is acknowledged is
disqualified to be a witness to said
will. It would be absurd for him (as a
witness) to be acknowledging
something before himself (as notary
public). Cruz v.Villasor, et al., L-32213,
November 26, 1973
Codicils and Incorporation by
Reference
Article 825. A codicil is a supplement or
addition to a will, made after the execution of
a will and annexed to be taken as a part
thereof, by which any disposition made in the
original will is explained, added, or altered.

Forms of Codicils:

1. Notarial or Ordinary Codicils

2. Holographic Codicils
Incorporation by Reference
When made/Purpose: When the T wants to incorporate in his will
certain documents only by reference without need of copying or
attaching said documents to the will.

Requisites per Art. 827:

1. Document in existence at the time of the execution of the will.

2. The will must clearly describe and identify the document

incorporated by reference.

3. The document incorporated by reference should be identified

by clear and satisfactory proof.

4. It must be signed by the testator and the witnesses on each

and every page thereof, except when in case of voluminous books
of account or inventories.
Revocation of Wills and Testamentary
Disposition
Modes of Revocation enumerated in Art. 830.

Article 830. No will shall be revoked except

in the following cases:

1. By implication of law;

2. By some will, codicil, or other writing

executed as provided in case of wills; or
3. By burning, tearing, cancelling, or obliterating
the will with the intention of revoking it, by the
testator himself, or by some other person in his
presence, and by his express direction. If burned,
torn, cancelled, or obliterated by some other
person, without the express direction of the
testator, the will may still be established, and the
estate distributed in accordance therewith, if its
contents, and due execution, and the fact of its
unauthorized destruction, cancellation, or
obliteration are established according to the Rules
of Court.
1. By Implication of the Law

 Testator sells or donates the property after

making the will. [Art. 957]

 Heir (compulsory or voluntary) commits an act or

unworthiness. [Art. 1032]
3. Revocation by Overt Act

Requisites:
i. Overt act
ii. Completion, at least of the
subjective phase
iii. animus revocandi
2. By a revoking will or codicil

 A will may be revoked by a subsequent will or codicil. It

may either be notarial or holographic.

 The revoking will must be VALID.

 Revocation must be definite.

 However, conditional revocation is allowed, i.e. revocation

takes place when a condition is fulfilled. This is called
conditional revocation or dependent relative revocation.
BURNING

 The will need not be burned entirely.

 If burning of the will is accidental, there is no
revocation as there is no animus revocandi.
 Remember the requisites for this act:
a) there be an overt act;
b) animus revocandi
 Situations
TEARING

Document need not be torn into pieces.

Slight tearing is sufficient to constitute an overt act.
Subject phase (as to the T’s intention) must
completed.
Cutting is construed tearing.
Situation: T tears will. X is able to stop T from
tearing the will. Is there valid
revocation?
OBLITRATING or CANCELLING

Cancelling is made by putting lines across the

disposition. The disposition, however, can still be
read.

Obliterating renders the text no longer legible.

Revocation Based on False Cause
Article 833. A revocation of a will based
on a false cause or an illegal cause is
null and void.
Example: T made a 1st will giving P10 M to Juan. Then he
learned that Juan figured in a vehicular accident and died. T then
made a second will bequeathing the P10M to Juana. A year later,
T learned that Juan simply joined the underground movement and
was in reality still alive. Who inherits, Juan or Juana?

Answer: Juan. The revocation was based on false cause and is

therefore void as provided by Art. 833.
Recognition of an Illegitimate Child

Article 834. The recognition of an illegitimate

child does not lose its legal effect, even
though the will wherein it was made should
be revoked.
Republication and Revival of Wills

Definition:

To republish a will is to REESTABLISH the

same as it was either void or has been already
revoked.

How is republication done?

1. By re-execution (copying the same)
2. By codicil (implied republication)
Article 837. If after making the will, the
testator makes a second will revoking the
first, the revocation of the second will does
not revive the first will, which can be revived
only by another will or codicil.

Scenario: 1st will is made. T makes a 2nd will

revoking the 1st will. T makes a 3rd will
revoking the 2nd will. Is the 1st will
revived/reestablished?
Answer: No. The 1st will remains revoked. The
1st will can only be given effect by way of:

1. Republication (re-execution and

by codicil) – made by the T

2. Revival – by operation of the law

Express Revocation

1st Will 2nd Will3rd Will

- revokes 1st will - revokes 2nd Will

Q: Is the 1st Will required?

A: No. The 1st will was revoked immediately by 2nd

Will. The Principle of Instanter applies. The second
will took effect immediately. While a will takes effect
mortis causa, the revocation takes effect inter vivos.
Implied Revocation
1st Will 2nd Will 3rd Will

- inconsistent with - Revokes

1st Will 2nd Will

Q: Is the 1st will revived?

A: Yes. The second will impliedly revoked the

1st will. 1st will is automatically revived.
Allowance and Disallowance of Will

 General Rule: Questions as to title of property

cannot be passed upon in testate or intestate
proceedings, except where one of the parties
prays merely for the inclusion or exclusions
from the inventory of the property, in which
case the probate court may pass provisionally
upon the questions without prejudice to its
final determination of the question in a
separate action. [Alvarez v, Espiritu, August 14, 1965]
Options of an
Acknowledged Natural Child

Uriarte v. Uriarte, et al., May 29, 1970

1. Motion for Intervention

2. Petition to Reopen Proceedings

Grounds for Disallowance
 Article 839. The will shall be disallowed in any of the following
cases:

 1. If the formalities required by law have not been complied with;

 2. If the testator was insane, or otherwise mentally incapable of

making a will, at the time of its execution;

 3. If it was executed through force or under duress, or the

influence of fear, or threats;

 4. It it was procured by undue and improper pressure and

influence on the part of the beneficiary or of some other person;
 5. It the signature of the Testator was
procured by fraud;

 6. It the testator acted by mistake or did not

intend that the instrument he signed should
be his will at the time of affixing his signature
thereto.
Institution of Heir

 Institution refers to devisees and legatees

Requisites for a Valid Institution:

1. Will is extrinsically valid.

2. The institution is valid intrinsically.

3. The institution must be effective (no predecease,

no repudiation by the heir, no incapacity of the heir)
 Institution of legatees and devisees

 Institution of classes (class institutions)

 T can entrust to a third person the distribution of a

specific property of sums of money that he may leave
in general to specified classes.
 COMMIT TO MEMORY:

1. There is only institution of heirs in

testate succession.

2. Institution of heirs refer only to the

Free Portion.

3. Legacies and Devises must not

impair the legitimes.
Preterition
Article 854. The preterition or omission of one,
some, or all the compulsory heirs in the direct
line, whether living at the time of the execution
of the will or born after the death of the testator,
shall annul the institution of heir, but the devises
and legacies shall be valid insofar as they are not
inofficious.

If the omitted compulsory heirs should die before

the testator, the institution shall be effectual,
without prejudice to the right of representation.
Requisites for Preterition
 1. TOTAL OMISSION in the inheritance

 2. of a COMPULSORY HEIR

 3. compulsory heir must be in the DIRECT

LINE

 Spouse cannot be preterited as he/she is not

in the direct line.
Effects of Preterition
The institution of heirs is annulled. Annulment of the
institution is automatic; there is no need for legal
action. In brief, preterition renders the institution of
the legatees and devisees void.

Mario has three children Apple, Banana, and Carrot.

Mario made a will instituting Apple, Banana, and
Dean Lawiswis. Carrot was completely omitted. How
is the P30 M estate divided?

A: Apple, Banana, and Carrot shall share P10 M each.

Nothing for Dean Lawiswis.
Q: Can a spouse be preterited?
A: No. A spouse is not in the direct line.

Q: Can a brother or a sister be preterited?

A: No. Neither is in the direct line.

Q: Can an ascendant be preterited?

A: Yes, if the ascendant is the nearest relative surviving.

Q: Can an adopted child be preterited?

A: Yes. An adopted child has the same rights as that of
the legitimate child.
Q: Can an illegitimate child be preterited?
A: Yes. He is a compulsory heir in the direct
line. The law does not distinguish
between legitimate children and illegitimate
children.
 PRETERITION
BY MISTAKE OR  VOLUNTARY OR
INTENTIONAL
INADVERTENCE
 Considered defective
 Considered true disinheritance
preterition  Institution of heirs is not
wholly void but only insofar
 Total intestacy results as it prejudices the legitime
of the person disinherited

 Nullity of the institution is

only partial

Acain vs. IAC, GR 72706 Oct. 27, 1987

Voluntary Heir
A voluntary heir who predeceases the T
transmits nothing to his heirs.

A voluntary heir cannot be represented.

Disposition Captatoria
Article 875. Any disposition made upon the
condition that the heir shall make some
provision in his will in favor of the testator or
any other person shall be void.

 This is void as it makes the execution of a the

will a contractual act.

 Disposition captatoria vs. Reciprocal

Succession
Substitution of Heir
Substitution is the designation
by the testator of a person or
persons to take the place of
the heir or heirs first
instituted. Rabadilla vs.
Villacarlos, June 29, 2000
Kinds of Substitution
1. Simple or common

2. Brief or compendious

3. Reciprocal

4. Fideicommissary

Mnemonic: So Brief a Rendevous my Friend

1. Simple Substitution – one takes the place of
another

in case of: PIR/RIP

i. Predecease
ii. Incapacity
iii. Repudiation
2. Brief or compendious

Brief – two or more take the place of one

Ex. Annie is the instituted heir. Buknoy and Charie are her
substitutes.

Compendious – one takes the place of two or more

Ex. Buknoy and Charie are the instituted heirs. Annie is

the substitute.
3. Reciprocal Substitution

Tatang instituted Alhambra to 4/5 of

the property and Buknoy to 1/5. If
Alhambra predeceases, is incapacitated, or
renounces, her share of 4/5 goes to
Buknoy. If Buknoy predeceases, is
incapacitated, or renounces, his share of
1/5 goes to Alhambra.
4. Fideicommissary Substitution

- where the first heir called the fiduciary

preserves and transmits to the second heir
called the fideicommissary the inheritance.
Requisites:

1. 1st heir (with right to usufruct)

2. 1s heir to preserve and transmit property
3. 2nd heir (naked owner, with full right of
ownerhship upon transmission of property to
him; he inherits from the T)
4. 1st and 2nd heir must be one degree apart
20 year prohibition
Article 870. The disposition of the testator
declaring all or part of the estate inalienable
for more than twenty years is void.
Reserva Troncal
1. Origin

2. Prepositus

3. Reservor/Reservista

4. Reservees/Reservatarios
Q: What happens if the reservista sells the
property, is the sale valid?

A: Yes, the sale is valid subject to a resolutory

condition. The buyer then acquires a revocable
title.

After the death of the reservista, the reservatorios

may rescind the contract because the resolutory
condition to which the reserva is subject has
already been fulfilled. Sumaya vs. IAC, Sept. 2, 1991.
Q: Assuming that at the time of the reservista’s
death, there are no reservatarios, happens?

A: The property is released from reserva troncal

and becomes part of the estate of the reservista.

“If there are no reservatarios, the property

subject of reserva troncal is released and will be
adjudicated in accordance with the regular order
of succession.” Sumaya vs. IAC, Sept. 2, 1991
Q: Must there be annotation/registration?
A: Yes, if only to protect the rights of the
reservatarios against buyers in good faith and
for value.

Q: Can the reservista dispose of the property in

his will?
A: No for as long as the reservatarios are
living. The property is not his. The
reservatarios are the heirs mortis causa. (See
Tioco de Papa vs. Camacho, Sept. 24, 1986)
Legitimes
 Article 886. Legitime is that part of the
testator’s property which he cannot dispose
of because the law has reserved it for certain
heirs who are, therefore called compulsory
heirs.
Compulsory Heirs
 Article 887. The following are the
compulsory heirs:

1. Legitimate children and descendants, with

respect to their legitimate parents and
ascendants;

2. In default of the foregoing, legitimate

parents and ascendants, with respect to
their legitimate children;
 3. Widow or widower;

 4. Acknowledged natural children, and

natural children by legal fiction;

 5. Other illegitimate children referred to in

Article 287.

 xxx
Illegitimate Children

NOTA BENE: An illegitimate

child gets half of what a
legitimate child gets.
Grounds for Disinheritance of
Children
 Article 919. The following shall be sufficient cause for
the disinheritance of children and descendants,
legitimate as well as illegitimate:

 1. When a child or descendant has been found guilty

of an attempt against the life of the testator, his or her
spouse, descendants, or ascendants;

 2. When a child or descendant has accused the

testator of a crime for which the law prescribes
imprisonment for six years or more, if the accusation
has been found groundless;
 3. When a child or descendant has been convicted
of adultery or concubinage with the spouse of the
testator;

 4. When a child or descendant by fraud, violence,

intimidation, or undue influence causes the testator
to make a will or to change one already made;

 5. A refusal without justifiable cause to support the

parent or ascendant who disinherits such child or
descendant;
 6. Maltreatment of the testator by word or
deed by the child or the descendant;

 7. When a child or descendant leads a

dishonorable, disgraceful life;

 8. Conviction of a crime which carries with it

the penalty of civil interdiction.
Disinheritance of Parents or
Ascendants
Article 920. The following shall be sufficient
causes for the disinheritance of parents and
ascendants, whether legitimate or
illegitimate;

1. When the parents have abandoned their children

or induced their daughters to live a corrupt or
immoral life, or attempted against their virtue;

2. When the parent or ascendant has been convicted

of an attempt against the life of the testator, his
or her spouse, descendants of ascendants;
3. When the parent or ascendant has
accused the testator or a crime for which
the law prescribes imprisonment for six
years or more, if the accusation has been
found to be false;

4. When the parent of ascendant has been

convicted of adultery or concubinage with
the spouse of the testator;
 5. When the parent or ascendant by fraud,
violence, intimidation, or undue influence
causes the testator to make a will or to
change one already made;

 6. The loss of parental authority for causes

specified in this code;

 7. The refusal to support children or

descendants without justifiable cause;
 8. An attempt by one of the parents against
the life of the other, unless there has been a
reconciliation between them.
Grounds for Disinheritance of a
Spouse
Article 921. The following shall be sufficient
causes for disinheriting a spouse:

1. When the spouse has been convicted of an

attempt against the life of the testator, his or her
descendants, or ascendants;

2. When the spouse has accused the testator of a

crime for which the law prescribes imprisonment
for six years or more, and the accusation has
been found to be false;
 3. When the spouse by fraud, violence,
intimidation, or undue influence causes the
testator to make a will or to change one
already made;

 4. When the spouse has given cause for the

legal separation;

 5. When the spouse has given grounds for

the loss of parental authority;
 6. Unjustifiable refusal to support the children or the
other spouse.

 Notes:
 In case of reconciliation between the parties, the
offended person loses his right to disinherit. Any
disinheritance is rendered ineffectual by a reconciliation.

 Disinheritance covers both the legitime and the free

portion. The person is completely disinherited.
Legacies and Devises
 Article 950. If the estate should not be sufficient
to cover all legacies or devises, their payment
shall be made in the following order:

◦ 1. Remuneratory legacies and devises;

◦ 2. Legacies or devises declared by the testator to be
preferential;
3. Legacies for support;
4 Legacies for education;
5. Legacies or devises of a specific or determinate thing
which forms a part of the estate;
6. All others, pro rata.
Article 956. If the legatee or devisee cannot or
is unwilling to accept the legacy or devise, or
if the legacy or devise for any reason should
become ineffective, it shall be merged into
the mass of the estate, except in cases of
substitution and of the right of accretion.
 Example: T has a brother Jun but instead
instituted Ime, her best friend, as a legatee. Ime
has two children Ian and Zara. If Ime repudiates,
neither Ian nor Zara can represent her as there is
no right of representation as to voluntary heirs.

 As there is no substitute and accretion under the

given facts, as provided by Art. 956, the legacy
shall be merged into the mass of estate, and will
therefore go to Jun as the nearest intestate heir.
Institution, Substitution, Representation,
Accretion, Intestacy
Accretion Defined:

Article 1015. Accretion is a right by virtue

of which, when two or more persons are
called to the same inheritance, devise or
legacy, the part assigned to the one who
renounces, or cannot receive his share, or
who died before the testator, is added or
incorporated to that of his co-heirs, co-
devisees, co-legatees.
 Representation Defined:

Article 970. Representation is a right

created by fiction of law, by virtue of which
the representative is raised to the place and
the degree of the person represented, and
acquires the rights which the latter would
have if he were living or if he could have
inherited.
Legal or Intestate Succession
There is no will.

Principle of Nearer Excludes the Farther

1. Car dies intestate leaving Ghia a daughter and a niece

Chiclet. Only Ghia inherits because the nearer excludes
the farther. Chiclet does not inherit.

2. Froilan dies without a will and leaves behind a

grandmother and a sister. Only the grandmother inherits.
Although Froilan and his sister are two degrees apart just
like Froilan and his grandmother, the direct line is
preferred over the collateral line.
NOTA BENE:

1. The right of representation takes place in

the direct descending line, but never in the
ascending line. [Art. 972, par. 1]

Lola has a child called Mother. Mother

has a child called Son. Mama passes away.
Son represents Mama and inherits from
Lola.
2. In the collateral line, the right of representation
takes place only in favor of the children of brothers
or sisters, whether they be of full or half blood.
[Art. 972, par. 2]

Angie has brother named Jun and a sister named

Joy. Jun has a daughter named Juna. Joy has a
daughter named Angel. Angel has a daughter
named Angelina. Angie died intestate. Jun, Joy, and
Angel pass away, too. Only Juna and Angelina
survive. Who of them, if any inherit from Angie?
 Answer: Only Juna inherits from Angie.
Under Art. 972, in the collateral line, it takes
place only in favor of children of brothers or
sisters, whether they be full or half-blood.
Representation in the collateral line is limited
then to nieces and nephews. Since Juna is a
child of a brother and is a niece of Angie, she
is the only one who inherits. Angelina does
not inherit as she is not a child or a brother or
sister. Her relation to Angie is that of a
grandniece. In gist, only Juna inherits.
Inheritance Per Stirpes and
inheritance Per Capita

Inheritance Per Stirpes

PER STIRPES inheritance by GROUP. All those in the

group inherit in equal shares. In Per Stirpes, heirs
inherit by way of representation.

Angie had a brother named Jun. Jun has two children Earl and Juna.
Angie’s sister Joy only has one child named Angel. Angie passed away.
Jun also passed away. Estate of Angie is P1M. Divide. Jun’s children
represent him. Juna’s and Earl’s share partake that of their father’s
share. Joy gets P500T and Juna and Earl get the other P500T.
 Per Capita – Heirs inherit in their own right

In the problem given above, if Jun and Joy

also pass away, how will the estate be
divided?

A: Angel, Juna, and Earl will divide the P1M

among themselves. They inherit per capita.
Article 975. When children of one or more
brothers or sisters of the deceased survive,
they shall inherit from the latter by
representation, if they survive with their
uncles or aunts. But if they alone survive,
they shall inherit in equal portions.

1st part – Per Stirpes – by group

2nd part – Per capita – by their own right
 Right of Representation exists in the following
cases:

1. predecease (testate and intestate)

2. incapacity (testate and intestate)
3. disinheritance (this happens only in the
case of testate succession)

- In testate succession, the right of representation

covers only the legitime. [Art. 806 and 1035]
 Case;

Bagunu vs. Piedad, Dec. 8, 2000

 The right of representation in the collateral line
does not extend to the 5th civil degree.

Dela Rosa vs. Damian, 480 SCRA 334 (2006)

 Right of representation does not extend to
grand nephews and nieces, only to nieces and
nephews (children of brothers and sisters)
Effects of Adoption
 Under the Art. 189, FC

Adoption shall have the following effects:

1. For civil purposes – adopted shall be deemed to be

the legitimate child of the adopter or adopting parent;

2. Parental authority of the natural parents is lost and

transferred to the adopting parents;

3. Adopted shall remain an intestate heir of his

parents and other blood relatives.
Article 190. Legal or intestate succession to estate of the
adopted shall be governed by the following rules:

1. Legitimate and illegitimate children and descendants of

the surviving spouse of the adopted shall inherit from the
adopted, in accordance with the ordinary rules of legal or
intestate succession;

2. When the parents, legitimate or illegitimate or the

legitimate ascendants of the of the adopted concur with the
adopters, they shall divide the entire estate in equal shares,
one-half to be inherited by the spouse or the illegitimate
children of the adopted and the other half, by the adopters;
 3. When the surviving spouse or the illegitimate
children of the adopted concur with the adopters, they
shall divide the entire estate in equal shares, one-half
to be inherited by the spouse or the illegitimate
children of the adopted and the other half, by the
adopters.

 4. When the adopters concur with the illegitimate

children and the surviving spouse of the adopted, they
shall divide the entire estate in equal shares, one third
to be inherited by the illegitimate children, one third
by the surviving spouse, one third by the adopters.
 5. When only the adopters survive, they shall
inherit the entire estate.

 6. When only blood collateral blood relatives

of the adopted survive, then the ordinary
rules of legal or intestate succession.
Ex. Airos is an adopted child. Her parent by
nature is Richard. She is adopted by Grace
and Noel. Airos passes away leaving behind
Richard, Noel, and Grace. Divide the estate
the estate of P2M.

A: Richard gets P1M. Noel and Grace share

the P1M or P500T each.
Ex. Danz is an adopted child leaving behind
her three children and her husband. The
estate is P4M. Divide the estate.

All children get P1M each. The surviving

spouse gets the share equal to the share of
each child. Hence, husband gets P1M.
Repudiation
Article 977. Heirs who repudiate their share
may not be represented.

NB: A renouncer may represent [Art. 976] but

may not be represented [Art. 977].
 Rationale of the Iron Bar Rule:

The illegitimate child is disgracefuly looked upon by

the legitimate family; the legitimate family is in turn,
hated by the illegitimate child; the latter considers
the privileged condition of the former, and the
resources of which it is thereby deprived; the former,
in turn sees in the illegitimate child nothing but the
product of sin, palpable evidence of a blemish
broken in life; the law does no more that recognize
this truth by avoiding further grounds of resentment.
( 7 Manresa 10 cited in Grey v. Fabie)
Right of Representation
 Article 970. Representation is a right created
by fiction of law, by virtue of which the
representative is raised to the place and the
degree of the person represented, and
acquires the rights which the latter would
have if he were living or he could have
inherited.
Re: Adopted Child

An adopted child cannot represent and cannot be

represented.
Iron Bar Rule/Iron Clad Rule
 Article 992. An illegitimate child has no right
to inherit ab intestato from the legitimate
children and relatives of his father or mother;
nor shall such children or relatives inherit in
the same manner from the illegitimate child.

 See Diagram on the board.

Accretion
 The share of the person who repudiates shall
accrue to his co-heirs. Art. 1018 NCC

 Among the compulsory heirs the right of accretion

shall take place only when the free portion is left to
two or more of them, or to any one of them and to
a stranger. [Art. 1021, par. 1]

 Accretion shall take lace among devisees, legatees,

and usufructuaries under the same conditions
established for heirs. [Aft. 1023, NCC]
Q: Melle and Tris are married. They have three
children, Agnes, Coco, and Frances. During the
lifetime of Tris, Agnes renounced her
inheritance from her father. Upon Tris’ death,
will the right of accretion apply?

A: No, the right of accretion will not apply.

Agnes renounced her inheritance during the
lifetime of her father. Renunciation of future
inheritance is thus void. Renunciation must be
done after the death of the Tris.
Persons Incapable of Succeeding by
reason of Unworthiness
1. Parents who have abandoned their children or
induced their daughters to lead a corrupt or
immoral life, or attempted against their virtue;

2. Any person who has been convicted of an attempt

against the life of the testator, his or her spouse,
descendants, ascendants;

3. Any person who has accused the testator of a crime

for which the law prescribes imprisonment for six
years or more, if the accusation has been found to
be groundless;
4. Any heir of full age who, having knowledge
of the violent death of the testator, should
fail to report it to an officer of the law within
a month, unless the authorities have already
taken action; this prohibition shall not apply
to cases wherein, according to law, there is
no obligation to make an accusation.
 5. Any person convicted of adultery or concubinage with the
spouse of th e testator.

6. Any person who by fraud, violence, Intimidation, or undue

influence should cause the testator to make a will or to
change one already made;

7. Any person who by the same means prevents another from

making a will, or from one revoking on already made, or
who supplants, conceals, or alters the latter’s will;

7. Any person who falsifies or forges a supposed will of the

decedent. [Art. 1032, NCC]
Acceptance and Repudiation
 Acceptance and repudiation retroact to the date of
death of the decedent.

 Acceptance may be express (in writing; private of

public) or tacit (resulting from acts that imply
acceptance).

 Repudiation of an inheritance shall be made in a

public or authentic instrument, or by petition
presented to the court having jurisdiction over the
testamentary or intestate proceedings. [Art. 1051,
NCC]
Collation
 Definition:

Computing or adding certain values to the

estate and charging the same to the legitime.
COLLATION
 Duty to collate:

Every compulsory heir, who succeeds with other

compulsory heirs, must bring into the mass of
the estate any property or right which he ma
have received form the decedent, during the
lifetime of the latter, by way of donation or any
other gratuitous title, in order that it may be
computed in the determination of the legitime
of each heir, and in the account of the partition.
Not subject to collation
1. expenses of education (elementary and secondary), support,
medical needs, customary gifts (Art. 1067)

2. for professional, vocation, re career (Art.1067)

3. wedding gifts except when they exceed 1/10 of the sum

disposable by will (Art. 1070)

4. donation to the spouse of the child (Art. 1066)

5. parents are not obliged to bring to collation in the

inheritance of their ascendants any property which may have
been donated by the latter to their children (Art. 1065)
Self- adjudication vs. Exrajudicial
Settlement
 If there is only one heir, there is no need for a
judicial declaration of heirship. He may
execute an affidavit entitled Self-Adjudication
and have it registered with the Registry of
Property.

 Requisites of Extrajudicial Settlement:

◦ 1. no will
◦ 2. no debt
◦ 3. heirs of legal age
◦ 4. public instrument
MARAMI PONG SALAMAT!!!

myragallardo@yahoo.com