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Based on Atty.

Reyes' outline and notes from her discussions, with annotations from Jurado,
Paras, De Leon and Balane. Principles of succession (AODDESD)
1. No succession takes place when a person is alive. Succession has to be
upon death only. During the lifetime, the heirs merely have an
expectancy to the properties.
WILLS AND SUCCESSION 2. Succession and hereditary estate revolves around the family. The interest
INTRODUCTION of the family may override the provisions of a will e.g. legitimes. A will
cannot impair legitimes. Succession by strangers is never presumed.
Art. 774. Succession is a mode of acquisition by virtue of which the property, rights 3. The family cannot be entirely deprived of the estate. A will that deprives
and obligations to the extent of the value of the inheritance, of a person are a compulsory heir of legitime is an invalid will. (remember legitimes!)
transmitted through his death to another or others either by will or by operation of 4. Within a family, the heirs of equal degree of proximity inherit in equal
law. shares. (general rule)
5. The State has a share in the inheritance (for example in intestacy, State
has a share)
Rationale behind the law on succession: (by Atty. Reyes)
6. GR: The heirs are not liable to the debts of the estate beyond their shares
1. To enforce the right of the owner of the property to control the
in the inheritance. The estate should be liable for the debts left by
disposition of said property even after death.
decedent (debts are paid before heirs get shares). XPN: When benefit is
2. Centered on the family of the owner of the property.
redounded to the heirs. Atty. Reyes
3. To provide for social order.
Nature and incidents of succession
Succession, defined
1. Succession is a derivative mode of acquiring and transmitting ownership
The totality or entirety of the property, rights and obligations of a person
and other real rights over property.
transmitted to another or others through any of the modes of acquisition
2. It takes place at the moment of the death of the decedent or deceased
and transmission recognized by law.
person.
It is a derivative mode of transmission because it is acquired from
3. The transmission to the successor or grantee covers only the property,
somebody else.
rights, and obligations of the decedent which are not extinguished by
As a mode of acquisition
death.
General sense: The substitution of one person in the
4. It is limited to the extent of the value of the inheritance for the heir is not
transmissible rights and properties of another.
liable beyond the value of the property he received from the decedent.
Specific or technical sense: It is limited to succession which
5. Succession takes place by will (testate), or by operation of law (intestate),
takes place on the death of a person. It is the substitution of a
or partly by will and partly by operation of law (mixed).
decedent or deceased person by a living person in all the
property, rights, and obligations which in life belonged to the
Kinds of Succession
former.
As to its origin
Derived from two Latin words:
Testamentary Legal or intestate Mixed Compulsory
1. Sub - under
2. Cedere - to transfer, cede, transmit, pass, surrender That which results That which takes That effected Succession to
"To pass under" from the designation place by partly by a valid legitimes
Under Roman Law, a person occupies space (like under a house), this is of an heir, made in a operation of law will and partly by
his legal personality. When he dies, the land did not leave the space valid will executed in in default of a operation of law Prevails over all
vacant. Instead a successor will occupy the space. A successor, passes the form prescribed will (partakes the other kinds
under that space or fill that space. In effect, the space or personality is by law character of both
always occupied. testamentary and Note:
legal succession) Compulsory generosity death without the intention to
succession is lose the thing or its free
Combination of not under disposal in case of survival
any two or all of intestate Donor Valid even if the donor should Void should the donor survive
the other three succession survives done survive the done the donee
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kinds. because the Formalities of donations Formalities of a valid will, for it
latter operates is in reality a legacy or devise;
only in default Formalities
otherwise it is void and cannot
of a valid will transfer ownership
whereas a Must be accepted by the Can only be accepted after the
legitime donee during donor's lifetime donor's death (acceptance
operates Acceptance
during donor's lifetime yields
whether or not no legal effect)
there is a will. Cannot be revoked except for Revocable at any time and for
grounds provided for by law in any reason before the donor's
As to effectivity Revocation Arts. 760 and 765 (NCC) (Once death
Inter vivos Mortis causa accepted, can no longer be
That which takes effect during the That which takes effect after the death revoked.
lifetime of the source of the property of the source of the property The right to dispose of the This right is retained by the
property is completely donor while he is still alive (Full
As to its extent Right to conveyed to the donee and naked ownership is
Universal Particular dispose (although certain reservations retained by the donor)
That which covers all the property, That which is limited to certain specific as to possession and
rights, and obligations of the decedent, items. enjoyment may be made)
that is , all the relations in which the Devise: specific real property Tax Subject to donor's tax Subject to estate tax
decedent was involved Legacy: specific personal property

As to part of property transmitted


Forced or compulsory Voluntary
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That which takes place with respect to That which takes place with respect to Article 748. The donation of a movable may be made orally or in writing. An oral
the legitime the free portion donation requires the simultaneous delivery of the thing or of the document
representing the right donated. If the value of the personal property donated
Succession Inter Vivos vs. Succession Mortis Causa exceeds five thousand pesos, the donation and the acceptance shall be made in
Succession Inter Vivos Succession Mortis Causa writing. Otherwise, the donation shall be void.
Takes effect during the Takes effect upon the death of
lifetime of the donor, the donor testator, so that Article 749. In order that the donation of an immovable may be valid, it must be
independently of his death, nothing is conveyed to or made in a public document, specifying therein the property donated and the value
Effectivity of the charges which the donee must satisfy. The acceptance may be made in the
even if the actual execution acquired by the donee until his
may be deferred until said death. same deed of donation or in a separate public document, but it shall not take effect
death. unless it is done during the lifetime of the donor. If the acceptance is made in a
Consideration Made out of the donor's pure Made in contemplation of his separate instrument, the donor shall be notified thereof in an authentic form, and
this step shall be noted in both instruments.
Donation inter vivos/in prasaenti: When the donor intends that the donation shall heirs, one of its purposes being to determine the legitime and the free portion. If
take effect during the lifetime of the donor, though the property shall not be there is no compulsory heir, there is no legitime to be safeguarded.
delivered till after the donor's death. The decedent not having left any compulsory heir who is entitled to any
The fruits of the property from the time of the acceptance of the legitime, he was at liberty to donate all his properties, even if nothing was left
donation, shall pertain to the donee, unless the donor provides for his siblings-collateral relatives to inherit. His donation to petitioner,
otherwise. assuming that it was valid, is deemed as donation made to a "stranger,"
chargeable against the free portion of the estate.
Designation given to donations not conclusive There being no compulsory heir, however, the donated property is not subject
Provisions like "to take effect at the death of the donor" and similar to collation.
statements are not controlling criteria.
Such statements are to be construed together with the rest of Classification of compulsory heirs
the instrument in order to give effect to the real intent of the 1. Primary: Those who have precedence over and exclude other compulsory
transferor. heirs
When some provisions are inconsistent, they must be harmonized with 2. Secondary: Those who succeed only in the absence of the primary heirs
the other stipulations in the instrument. 3. Concurring: Those who succeed together with the primary or the
Majority of the provisions should be taken into account at arriving at a secondary compulsory heirs
conclusion. The inconsistent ones must be disregarded.
Love and affection: The fact that the donation is given in consideration of Primary Secondary Concurring
love and affection or past or future services is not an exclusive Legitimate children Legitimate parents Illegitimate children
characteristic of donations inter vivos. Descendants Ascendants Surviving spouse
A transfer mortis causa may be made also for those reasons.
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In case of doubt: donation mortis causa! Second issue: Whether the property of the estate should have been ordered
If the doubts refer to incidental circumstances of a gratuitous equally distributed among the parties. YES.
contract, the least transmission of rights and interests shall The decedents remaining estate should thus be partitioned equally among his
prevail. (Art. 1378, NCC) heirs-siblings-collateral relatives, herein petitioner and respondents, pursuant to
the provisions of the Civil Code:
1. Art. 1003. If there are no descendants, ascendants, illegitimate children,
Arellano v. Pascual, Dec. 15, 2010 or a surviving spouse, the collateral relatives shall succeed to the entire
First issue: Whether the property donated to petitioner is subject to collation. NO. estate of the deceased in accordance with the following articles.
Two concepts of collation: 2. Art. 1004. Should the only survivors be brothers and sisters of the full
1. It is a mere mathematical operation by the addition of the value of blood, they shall inherit in equal shares.
donations made by the testator to the value of the hereditary estate.
2. It is the return to the hereditary estate of property disposed of by Del Rosario v. Ferrer, Sept 20, 2010
lucrative title by the testator during his lifetime.
This case pertains to a gift, otherwise denominated as a donation mortis causa,
Purpose of collation: to secure equality among the compulsory heirs in so far as is
which in reality is a donation inter vivos made effective upon its execution by the
possible, and to determine the free portion, after finding the legitime, so that
donors and acceptance thereof by the donees, and immediately transmitting
inofficious donations may be reduced.
ownership of the donated property to the latter, thus precluding a subsequent
When does collation take place: Collation takes place when there are compulsory
assignment thereof by one of the donors.

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However, in the case of Puig v. Peaflorida, the Court said that in case of doubt, Title of the document: "Donation Mortis Causa"
the donation is deemed inter vivos to avoid uncertainty to the ownership of the Salient provisions:
land. 1. that this Donation Mortis Causa shall be irrevocable
2. that anyone surviving spouse reserves the right, ownership, possession
and administration of this property herein donated and accepted and this What kind of donation? DONATION MORTIS CAUSA
Disposition and Donation shall be operative and effective upon the death
of the DONORS. The nature of the donations as mortis causa is confirmed by the fact that the
donations do not contain any clear provision that intends to pass proprietary rights
What kind of donation? DONATION INTER VIVOS to petitioners prior to Cabatingan's death. The phrase "to become effective upon
Characteristics of DMC: the death of the DONOR" admits of no other interpretation but that Cabatingan did
1. It conveys no title or ownership to the transferee before the death of the not intend to transfer the ownership of the properties to petitioners during her
transferor; or, what amounts to the same thing, that the transferor should retain lifetime.
the ownership (full or naked) and control of the property while alive;
2. That before his death, the transfer should be revocable by the transferor The herein subject deeds expressly provide that the donation shall be rescinded in
at will, ad nutum (instantly; with the agreement of); but revocability may be case petitioners predecease Conchita Cabatingan.
provided for indirectly by means of a reserved power in the donor to dispose of the If she really intended that the donation should take effect during her
properties conveyed; and lifetime and that the ownership of the properties donated be transferred
3. That the transfer should be void if the transferor should survive the to the donee or independently of, and not by reason of her death, she
transferee. would have not expressed such proviso in the subject deeds.

Discussions: The subject donation is void because it did not comply with the formalities of a will
The express "irrevocability" of the donation is the "distinctive standard under Art. 728 of NCC.
that identifies the document as a donation inter vivos." Here, the donors
plainly said that it is "our will that this Donation Mortis Causa shall be Austria-Magat v. CA, Feb 1, 2002
irrevocable and shall be respected by the surviving spouse." Title: "Kasulatang sa Kaloobpala"
But would the donors reservation of the beneficial use of the property Salient provisions:
make the donation mortis causa? NO, such reservation (reddendum) in 1. (I)binibigay ko at ipinagkakaloob ng ganap at hindi mababawi sa naulit na
the context of an irrevocable donation simply means that the donors apat na anak ko at sa kanilang mga tagapagmana, ang aking lupang
parted with their naked title, maintaining only beneficial ownership of residential o tirahan sampu ng aking bahay nakatirik doon na nasa
the donated property while they lived. Bagong Pook din, San Antonio, Lungsod ng Kabite
Acceptance clause in DIV: An acceptance clause indicates that the 2. Na ang Kaloob palang ito ay magkakabisa lamang simula sa araw na akoy
donation is inter vivos, since acceptance is a requirement only for such pumanaw sa mundo,
kind of donations. Donations mortis causa, being in the form of a will, 3. Na ang titulo numero TCT-T-2260 (RT-4036) ng Lungsod ng Kabite, bahay
need not be accepted by the donee during the donors lifetime. sa loteng tirahan ng Bagong Pook na nababanggit sa nasabing kasulatan,
ay mananatili sa poder o possesion ng Ina, na si Basilisa Comerciante
Maglasang v. Heirs of Cabatingan, June 2, 2002 habang siya ay nabubuhay at
Title: "Deed of Conditional Donation Inter Vivos for House and Lot" 4. Gayon din ang nasabing Titulo ay hindi mapapasangla o maipagbibili ang
Salient provision: lupa habang maybuhay ang nasabing Basilisa Comerciante.
"That for and in consideration of the love and affection of the DONOR for the
DONEE, x x x the DONOR does hereby, by these presents, transfer, convey, by way What kind of donation? DONATION INTER VIVOS
of donation, unto the DONEE the above-described property, together with the Proof of DIV:
buildings and all improvements existing thereon, to become effective upon the 1. The irrevocable character of the donation (provi 1)
death of the DONOR; PROVIDED, HOWEVER, that in the event that the DONEE The express irrevocability of the same (hindi na mababawi) is the
should die before the DONOR, the present donation shall be deemed automatically distinctive standard that identifies that document as a donation
rescinded and of no further force and effect; x x x" inter vivos.
2. The acceptance clause therein of the donees Vitug v. CA, 183 S 755
An acceptance clause is a mark that the donation is inter vivos. The Court held that the amount subject of a survivorship agreement became the
Acceptance is a requirement for donations inter vivos. On the other separate property of the surviving wife upon the death of her husband (in
hand, donations mortis causa, being in the form of a will, are not accordance with the said agreement), and the same did not form part of the
required to be accepted by the donees during the donors lifetime. latter's estate.
Important: Acceptance clause is only subordinate with respect to
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other requirements of donation, it must be related to other Survivorship agreement is an aleatory contract
provisions of the deed of donation (notes) Survivorship agreement is in reality a contract with a term, the term
being death.
Bonsato v. CA, 95 P 481 The fulfillment of an aleatory contract depends on either the happening
Where the donation per the deed of donation would also take effect upon the of an event which is (1) "uncertain," (2) "which is to occur at an
death of the donor with reservation for the donor to enjoy the fruits of the land, indeterminate time."
the Court held that the said statements only mean that after the donors death, SA when valid: But although the survivorship agreement is per se not
the donation will take effect so as to make the donees the absolute owners of the contrary to law its operation or effect may be violative of the law. For
donated property, free from all liens and encumbrances; for it must be instance, if it be shown in a given case that such agreement is a mere
remembered that the donor reserved for himself a share of the fruits of the land cloak to hide an inofficious donation, to transfer property in fraud of
donated. creditors, or to defeat the legitime of a forced heir, it may be assailed and
annulled upon such grounds. No such vice has been imputed and
established against the agreement involved in this case.

Reyes v. Mosqueda, 187 S 661 Survivorship agreement in this case valid: There is no demonstration here that the
Applying the above principles to the instant petitions, there is no doubt that the so- survivorship agreement had been executed for such unlawful purposes, or, as held
called DONATION MORTIS CAUSA is really a donation inter vivos. by the respondent court, in order to frustrate our laws on wills, donations, and
The donation was executed by Dr. Pascual in favor of his sister Ursula conjugal partnership.
Pascual out of love and affection as well as a recognition of the personal
services rendered by the donee to the donor. Survivorship agreement not a DMC: The conveyance in question is not, first of all,
The transfer of ownership over the properties donated to the donee was one of mortis causa, which should be embodied in a will. A will has been defined as
immediate and independent of the death of the donor. "a personal, solemn, revocable and free act by which a capacitated person disposes
The provision as regards the reservation of properties for the donor's of his property and rights and declares or complies with duties to take effect after
subsistence in relation to the other provisions of the deed of donation his death."
confirms the intention of the donor to give naked ownership of the
properties to the donee immediately after the execution of the deed of
donation Survivorship agreement not a DIV:
1. It was to take effect after the death of one party.
Contractual Succession 2. It is not a donation between the spouses because it involved no
No form of contractual succession in our legal system conveyance of a spouse's own properties to the other.
What about Art. 84 of FC? x x x Donations of future property shall be
governed by the provisions on testamentary succession and the
formalities of wills. 3
Article 2010. By an aleatory contract, one of the parties or both reciprocally bind
This is not contractual succession as it is still under themselves to give or to do something in consideration of what the other shall give
testamentary succession (notes) or do upon the happening of an event which is uncertain, or which is to occur at an
indeterminate time.
Note: Survivorship agreement ruling in this case is pro hac vice (law of the case). Rule: The absentee is deemed to have died at the time of the expiration
Thus, must not be applied with other survivorship agreement. (notes) of the period designated by the law.
XPN: If the absentee disappeared under danger of death, he is deemed to
Balane: The survivorship agreement circumvents the law on legitimes. It may have died at the time when he disappeared.
deprive the compulsory heirs of legitimes by making the money subject of Question: What if the absentee suddenly appears after the partition?
survivorship agreement which will allow the transfer of property(money) to the Answer: The original value of the property must be returned to the
survivor and not to the estate. owner, exclusive of the fruits thereof.

No succession takes place without the object of succession.


Elements of Succession Mortis Causa Atty. Reyes Hereditary estate: all properties, rights and obligations that survived the
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1. Simply a mode of transmitting title or ownership of property. death of the decedent that are transmissible.
2. Takes place upon the death of the owner of the property, right or Inheritance: universality of all the property and transmissible rights and
obligation. obligations constituting the patrimony of the decedent which are not
3. No succession takes place without the object of succession. extinguished by his death and which are available for distribution among
4. No succession takes place without the proper parties because it involves those who are called to succeed after settlement or liquidation. It
simultaneous transmission and acquisition includes:
1. All the decedents property which are existing at the time of his
Succession takes place upon the death of the owner of the property, right or death.
obligation. 2. All of his transmissible rights and obligations which are existing at
The heirs cannot sell the property they are about to receive before the the time of his death.
death of the decedent, neither can they demand. Because prior to death, 3. All of the property and rights which may have accrued to the
there is a mere expectancy/inchoate right to the inheritance. hereditary estate since the opening of the succession.
Actual death: one that is officially announced. Rules:
Presumptive death 1. Rights relative to persons and family or purely personal rights are, by
GR: In order that an absentee is presumed dead for the their very nature, intransmissible in character.
purpose of opening his succession, it is necessary that he must 2. Rights relative to property or patrimonial rights are generally
have been absent for at least ten years, it being unknown transmissible in character.
whether or not he still lives. XPN: Those which are expressly made intransmissible by
XPN: operation of law such as personal and legal usufructs and
1. If the absentee disappeared after the age of seventy five personal easements.
years, in which case an absence of five years shall be 3. Rights arising from obligations or rights of obligations, whether
sufficient in order that his succession may be opened; and contractual or otherwise, are generally transmissible in character.
2. If the absentee disappeared under any one of the three Those arising from contracts which by their very nature are
circumstances enumerated in Art. 391, in which case an intransmissible, those which are expressly made intransmissible
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absence of four years shall be sufficient. by agreement of the parties, and those which are expressly
made intransmissible by operation of law.

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Art. 391. The following shall be presumed dead for all purposes, includ ing the has been in danger of death under other circumstances and his existence has not
division of the estate among the heirs: (1) A person on board a vessel lost during a been known for four years.
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sea voyage, or an aeroplane which is missing, who has not been heard of for four Article 1311. Contracts take effect only between the parties, their assigns and
year since the loss of the vessel or aeroplane; (2) A person in the armed forces who heirs, except in case where the rights and obligations arising from the contract are
has taken part in war, and has been missing for four years; and (3) A person who not transmissible by their nature, or by stipulation or by provision of law. XXX
Purely personal rights/obligations:
1. Rights and obligations between husband and wife. Pasco v. Heirs of De Guzman, July 26, 2010
2. Property relations between husband and wife. The Court held that the proceeds of the loan should be released to Filomenas heirs
3. Action for legal separation. only upon settlement of her estate.
4. Action to compel acknowledgment of a natural child. Filomena's heirs certainly have an interest in the preservation of the
5. Action to obtain judicial declaration of illegitimate filiation of an estate and the recovery of its properties, for at the moment of
illegitimate child who is not natural. Filomenas death, the heirs start to own the property, subject to the
6. Parental authority or patria potestas. decedent's liabilities. In this connection, Article 777 of the Civil Code
7. Rights of a guardian. states that the rights to the succession are transmitted from the
8. Right to receive and the obligation to give support. moment of the death of the decedent.
9. Right to hold a public office as well as the right to exercise a But to allow the release of the funds directly to the heirs would amount
profession or vocation. to a distribution of the estate; which distribution and delivery should be
10. Right of usufruct. made only after, not before, the payment of all debts, charges, expenses,
11. Right of personal easement. and taxes of the estate have been paid.
12. Rights and obligations arising from a contract of partnership.
13. Rights and obligations arising from a contract of agency. Balus v. Balus, January 15, 2010
14. Criminal responsibility. Since Rufo (decedent) lost ownership of the subject property during his lifetime
(evidenced by a Deed of Sale), it only follows that at the time of his death, the
No succession takes place without the proper parties because it involves disputed parcel of land no longer formed part of his estate to which his heirs may
simultaneous transmission and acquisition. lay claim. Stated differently, petitioner and respondents never inherited the subject
Decedent: the person whose property is transmitted through succession, lot from their father.
whether or not he left a will, is called the decedent.
Testator: the person whose property is transmitted through succession, if Dela Merced v. Dela Merced, 303 S 683
he left a will. Iron barrier rule: An illegitimate child has no right to inherit ab intestato from the
Heir: is a person called to the whole or to an aliquot portion of the legitimate children and relatives of his father or mother; nor shall such children or
inheritance either by will or by operation of law. relatives inherit in the same manner from the illegitimate child. (Art. 992 NCC)
Devisee is a person to whom a gift of real property is given by virtue of a Article 992 of the New Civil Code is not applicable because involved here
will. is not a situation where an illegitimate child would inherit ab intestato
Legatee: is a person to whom a gift of personal property is given by virtue from a legitimate sister of his father. Rather, it is a scenario where an
of a will. illegitimate child inherits from his father, the latters share in or portion
Voluntary heir: called to succeed to the whole or an aliquot part of the of, what the latter already inherited from the deceased sister, Evarista.
disposable free portion of the hereditary estate by virtue of the will of Since Evarista died ahead of her brother Francisco, the latter inherited a
the testator portion of the estate of the former as one of her heirs. Subsequently,
Compulsory heir: called by law to succeed to a portion of the testators when Francisco died, his heirs, namely: his spouse, legitimate children,
estate known as the legitime. and the private respondent, Joselito, an illegitimate child, inherited his
Legal or intestate heir called to succeed by operation of law when legal (Franciscos) share in the estate of Evarista.
or intestate succession takes place. May inherit by his own right of by It bears stressing that Joselito does not claim to be an heir of Evarista by
right of representation. right of representation but participates in his own right, as an heir of the
Right of representation: right created by fiction of law where the late Francisco, in the latters share (or portion thereof) in the estate of
representative is raised to the place and degree of the person Evarista.
represented, and acquires the rights which the latter would have if
he were living or could have inherited.
Opulencia v. CA, July 30, 1998
Opulencia was an heir of the decedent. During probate proceedings, she executed property (their father died before the said date). Was the statement tenable?
a Contract to Sell a parcel of land included in the subject estate. NO. Petitioners-sellers in the case at bar being the sons and daughters of
the decedent Constancio P. Coronel are compulsory heirs who were
Contract to sell valid: The Court held that petitioner entered into the Contract to called to succession by operation of law. Thus, at the point their father
Sell in her capacity as an heiress, not as an executrix or administratrix of the estate. drew his last breath, petitioners stepped into his shoes insofar as the
In the contract, she represented herself as the lawful owner and seller of the subject property is concerned, such that any rights or obligations
subject parcel of land. She also explained the reason for the sale to be difficulties pertaining thereto became binding and enforceable upon them. It is
in her living conditions and consequent need of cash. These representations expressly provided that rights to the succession are transmitted from the
clearly evince that she was not acting on behalf of the estate under probate when moment of death of the decedent.
she entered into the Contract to Sell.
Petitioners claim that succession may not be declared unless the creditors have
Administration of the estate was not prejudiced by the contract to sell been paid is rendered moot by the fact that they were able to effect the transfer of
Petitioner contends that "to sanction the sale at this stage would bring the title to the property from the decedents name to their names on February 6,
about a partial distribution of the decedents estate pending the final 1985.
termination of the testate proceedings." Was the contention tenable?
NO. The Contract to Sell stipulates that petitioners offer to sell Paulmitan v. CA, 215 S 866
is contingent on the complete clearance of the court on the Facts:
Last Will Testament of her father. Consequently, although the Agatona died leaving two lots of land to her children, Donato and Pascual.Donato
Contract to Sell was perfected between the petitioner and and Pascual were co-owners of the estate left by their mother as no partition was
private respondents during the pendency of the probate ever made.
proceedings, the consummation of the sale or the transfer of
ownership over the parcel of land to the private respondents is When Pascual died intestate, his children, the respondents, succeeded him in the
subject to the full payment of the purchase price and to the co-ownership of the disputed property. Pascual Paulmitan's right of ownership over
termination and outcome of the testate proceedings. an undivided portion of the property passed on to his children, who, from the time
Therefore, there is no basis for petitioners apprehension that of Pascual's death, became co-owners with their uncle Donato over the disputed
the Contract to Sell may result in a premature partition and decedent estate.
distribution of the properties of the estate. Indeed, it is settled
that the sale made by an heir of his share in an inheritance, Petitioner Juliana (daughter of Donato) claims ownership over Lot No. 1091 by
subject to the pending administration, in no wise stands in the virtue of two transactions, namely: (a) the sale made in her favor by her father
way of such administration. Donato; and (b) her redemption of the land from the Provincial of Negros
Occidental after it was forfeited for non-payment of taxes.
Coronel v. CA, Oct. 7, 1996
Important facts: When Donato Paulmitan sold on May 28, 1974 Lot No. 1091 to his daughter Juliana
1. On January 15, 1985, Coronels, heirs of the decedent, sold a parcel of P. Fanesa, he was only a co-owner with respondents and as such, he could only sell
land to Alcaraz while the title was still registered under their father's that portion which may be allotted to him upon termination of the co-ownership.
name. The sale did not prejudice the rights of respondents to one half (1/2) undivided
2. On February 6, 1985, the property originally registered in the name of the share of the land which they inherited from their father. It did not vest ownership
Coronels father was transferred in their names. in the entire land with the buyer but transferred only the seller's pro-indiviso
3. On February 18, 1985, the Coronels sold the same property Mabanag. share in the property and consequently made the buyer a co-owner of the land
until it is partitioned.
Petitioners argued that there could been no perfected contract on January 19,
1985 because they were then not yet the absolute owners of the inherited As to the lot sold by Pascual to Juliana
Rule: Since a co-owner is entitled to sell his undivided share, a sale of the
entire property by one co-owner without the consent of the other co- Emnace v. CA, 370 S 431
owners is not null and void. However, only the rights of the co-owner- From the very moment of Vicente Tabanaos death, his rights insofar as the
seller are transferred, thereby making the buyer a co-owner of the partnership was concerned were transmitted to his heirs, for rights to the
property. succession are transmitted from the moment of death of the decedent.
The sale by petitioner Donato Paulmitan of the land to his daughter, BUT only PROPRIETARY rights are transmissible upon the death of the
petitioner Juliana P. Fanesa, did not give to the latter ownership over the decedent-partner.
entire land but merely transferred to her the one half (1/2) undivided Obviously, the right to represent the partner is not transmissible.
share of her father, thus making her the co-owner of the land in question
with the respondents, her first cousins.
Limjoco v. Fragrante, 80 P 776
As to the lot redeemed by Juliana from the government A Certificate of Public Convenience was granted to Fragrante after his death. Did
SC held that the redemption of the land made by Fanesa did not the heirs inherit franchise?
terminate the co-ownership nor give her title to the entire land subject NO. Heirs own the operation of the franchise, and not the franchise itself.
of the co-ownership. (notes)
Although petitioner Fanesa did not acquire ownership over the entire lot
by virtue of the redemption she made, nevertheless, she did acquire the The certificate of public convenience once granted "as a rule, should descend to his
right to be reimbursed for half of the redemption price she paid to the estate as an asset". Such certificate would certainly be property, and the right to
Provincial Government of Negros Occidental on behalf of her co-owners. acquire such a certificate, by complying with the requisites of the law, belonged to
Until reimbursed, Fanesa hold a lien upon the subject property for the the decedent in his lifetime, and survived to his estate and judicial administrator
amount due her. after his death.
Such rights and obligations as survive after death have to be exercised
Rioferio v. CA, January 13, 2004 and fulfilled only by the estate of the deceased.
Do the heirs have legal standing to prosecute the rights belonging to the deceased
subsequent to the commencement of the administration proceedings? Arayata v. Joya, 51 P 654
YES. Pending the filing of administration proceedings, the heirs without Being a matter of law, the defendants-appellants cannot plead ignorance of the
doubt have legal personality to bring suit in behalf of the estate of the fact that until a judicial partition of the property left by Cecilio Joya is made, said
decedent in accordance with the provision of Article 777 of the New Civil property belongs to the latter's estate and it together with its products, is subject
Code that (t)he rights to succession are transmitted from the moment of to the payment of the testator's debts, if any. Only after judicial partition has been
the death of the decedent. made do they acquire the title to their respective legacies, if the latter are valid.
GR: The heirs have no legal standing to sue for the recovery of the
property of the estate during the pendency of the administration In conclusion, the defendants are not entitled to the possession of the lands in
proceedings, question or their products, and they are bound to return them to the herein
XPN: plaintiff-appellant, after deducting the necessary expenses for cultivation and
1. If the executor or administrator is unwilling or refuses to bring suit; preservation.
2. When the administrator is alleged to have participated in the act In other words, no heir can enjoy fruits of the property until the debts of
complained of and he is made a party defendant; or decedent are paid thru liquidation. (notes)
3. When there is no appointed administrator (as in this case).
Property fraudulently registered in favor of another (like when paramour Alvarez v. IAC, 185 S 8
registered a land owned by decedent in her favor) still forms part of the estate of Petitioners being the heirs of the late Rosendo Alvarez, they cannot escape the
the decedent. (notes) legal consequences of their father's transaction, which gave rise to the present
claim for damages.
That petitioners did not inherit the property involved herein is of no
moment because by legal fiction, the monetary equivalent thereof The foregoing principles apply with greater force in this case because the parties
devolved into the mass of their father's hereditary estate, and we have expressly stipulated in the March 31, 1978 Agreement that Romeo, as lessee, shall
ruled that the hereditary assets are always liable in their totality for the transfer all his rights and interests under the lease contract with option to renew
payment of the debts of the estate. in favor of the party of the Third Part (Orlando), the latters heirs, successors and
It must, however, be made clear that petitioners are liable only to the assigns indicating the clear intent to allow the transmissibility of all the rights and
extent of the value of their inheritance. interests of Orlando under the lease contract unto his heirs, successors or assigns.
Accordingly, the rights and obligations under the lease contract with option to
Lim v. CA, 323 S 102 renew were transmitted from Orlando to his heirs upon his death on November 7,
Include in the deceased's estate: 1983.
Shares of stock of corporation, not the corporation itself nor the
properties owned by the corporation. DKC Holding Corp v. CA, 329 S 666
Inasmuch as the real properties included in the inventory of the estate of Whether or not the Contract of Lease with Option to Buy entered into by the late
the late Pastor Y. Lim are in the possession of and are registered in the Encarnacion Bartolome with petitioner was terminated upon her death or whether
name of private respondent corporations, which under the law possess a it binds her sole heir, Victor, even after her demise.
personality separate and distinct from their stockholders, and in the
absence of any cogency to shred the veil of corporate fiction, the NO. It has also been held that a good measure for determining whether a contract
presumption of conclusiveness of said titles in favor of private terminates upon the death of one of the parties is whether it is of such a character
respondents should stand undisturbed. that it may be performed by the promissors personal representative.
Contracts to perform personal acts which cannot be as well performed by
Piercing the veil of corporate fiction: When the fiction is urged as a means of others are discharged by the death of the promissor. Conversely, where
perpetrating a fraud or an illegal act or as a vehicle for the evasion of an existing the service or act is of such a character that it may as well be performed
obligation, the circumvention of statutes, the achievement or perfection of a by another, or where the contract, by its terms, shows that performance
monopoly or generally the perpetration of knavery or crime, the veil with which by others was contemplated, death does not terminate the contract or
the law covers and isolates the corporation from the members or stockholders who excuse nonperformance.
compose it will be lifted to allow for its consideration merely as an aggregation of
individuals. Lease as property right: the subject matter of the contract is likewise a lease,
which is a property right. The death of a party does not excuse nonperformance of
Estate of Llenado v. Llenado, March 4, 2009 a contract which involves a property right, and the rights and obligations
Are the rights and obligations under the lease contract transmissible to heirs? YES! thereunder pass to the personal representatives of the deceased. Similarly,
nonperformance is not excused by the death of the party when the other party has
A contract of lease is generally transmissible to the heirs of the lessor or lessee. It a property interest in the subject matter of the contract.
involves a property right and, as such, the death of a party does not excuse non-
performance of the contract. The rights and obligations pass to the heirs of the San Agustin v. CA, 371 S 348
deceased and the heir of the deceased lessor is bound to respect the period of the Deed of Absolute Sale provision: the vendee shall not sell, convey, lease or
lease. sublease, or otherwise encumber the property in favor of any other party within
five (5) years from the date final and absolute ownership thereof becomes vested
The same principle applies to the option to renew the lease. As a general rule, in the vendee, except in cases of hereditary succession or resale in favor of the
covenants to renew a lease are not personal but will run with the land. vendor.
Consequently, the successors-in-interest of the lessee are entitled to the benefits,
while that of the lessor are burdened with the duties and obligations, which said The contract of sale (over the subject land and part of the estate) remains valid
covenants conferred and imposed on the original parties. between the parties, unless and until annulled in the proper suit filed by the
rightful party, the GSIS. For now, the said contract of sale is binding upon the heirs
of Macaria Vda. de Caiquep, including petitioner who alleges to be one of her heirs, Legitime/legal portion: portion of the hereditary estate over which the testator
in line with the rule that heirs are bound by contracts entered into by their has no testamentary control because the law has already reserved it for certain
predecessors-in-interest. heirs who are, therefore, called compulsory heirs, and which, consequently, cannot
be disposed of by will in favor of any other person.
Aggabao v. RTC, Feb. 23, 2004
it is clear that Juliana Ortaez, and her three sons, Jose, Rafael and Antonio, all Disposable free portion: portion of the hereditary estate over which the testator
surnamed Ortaez, invalidly entered into a memorandum of agreement has absolute testamentary control and which, consequently, may be disposed of by
extrajudicially partitioning the intestate estate among themselves, despite their will in favor of any person not disqualified by law to succeed.
knowledge that there were other heirs or claimants to the estate and before final
settlement of the estate by the intestate court. Since the appropriation of the Manongsong v. Estimo, June 25, 2003
estate properties by Juliana Ortaez and her children (Jose, Rafael and Antonio We likewise find no basis for the trial courts declaration that the sale embodied in
Ortaez) was invalid, the subsequent sale thereof by Juliana and Jose to a third the Kasulatan deprived the compulsory heirs of Guevarra of their legitimes. As
party (FLAG), without court approval, was likewise void. opposed to a disposition inter vivos by lucrative or gratuitous title, a valid sale for
valuable consideration does not diminish the estate of the seller. When the
Heir can sell pending administration: An heir can sell his right, interest, or disposition is for valuable consideration, there is no diminution of the estate but
participation in the property under administration under Art. 533 of the Civil Code merely a substitution of values, that is, the property sold is replaced by the
which provides that possession of hereditary property is deemed transmitted to equivalent monetary consideration.
the heir without interruption from the moment of death of the decedent.
Sps. Buenaventura v. CA, November 20, 2003
Part to be alienated: However, an heir can only alienate such portion of the estate Petitioners do not have any legal interest over the properties subject of the Deeds
that may be allotted to him in the division of the estate by the probate or intestate of Sale. As the appellate court stated, petitioners right to their parents properties
court after final adjudication, that is, after all debtors shall have been paid or the is merely inchoate and vests only upon their parents death. While still living, the
devisees or legatees shall have been given their shares. parents of petitioners are free to dispose of their properties. In their
This means that an heir may only sell his ideal or undivided share in the estate, not overzealousness to safeguard their future legitime, petitioners forget that
any specific property therein. In the present case, Juliana Ortaez and Jose Ortaez theoretically, the sale of the lots to their siblings does not affect the value of their
sold specific properties of the estate (1,014 and 1,011 shares of stock in parents estate. While the sale of the lots reduced the estate, cash of equivalent
Philinterlife) in favor of petitioner FLAG. This they could not lawfully do pending the value replaced the lots taken from the estate.
final adjudication of the estate by the intestate court because of the undue
prejudice it would cause the other claimants to the estate, as what happened in Concept of legitime
the present case. 1. As a property: It is the part of the testator's property referred to in the
law which is adjudicated to the compulsory heirs during the partition of
Juliana Ortaez and Jose Ortaez sold specific properties of the estate, without the state which may be real or personal, tangible or intangible.
court approval. It is well-settled that court approval is necessary for the validity of 2. As a right: It is the right of a compulsory heir to succeed to said portion of
any disposition of the decedents estate. the testator's property
3. As a fraction: It is the aliquot protion set forth by law and given to a
FORCED SUCCESSION/LEGITIMES particular class of compulsory heirs.

Purpose of legitime
Forced succession: superior of all kinds of succession under the legal system. It Main purpose: To protect said heirs from the unjust ire or weakness, or
requires that a certain portion of the hereditary estate be reserved for compulsory thoughtlessness of the parent or spouse.
heirs.
A limitation upon freedom of the testator to dispose of his property by No Deprivation:
will. GR: It is beyond the power of the testator to deprive the compulsory
heirs of their legitime. Act made by the decedent while alive that would
Nature of legitime have the effect of totally depriving the compulsory heir of his legitime is
Standard or measure: The standard or measure for its determination is null and void.
fixed by law. XPN:
Quantity or amount: The quantity or amount may vary according to the 1. Intentional or unintentional preterition does not affect the
value of the property, the number and relation of the compulsory heirs to rights of compulsory heirs to their legitime; preterition of
the testator, and the shares assigned to them by law. compulsory heir would annul the institution of heirs in the will.
Rule: No compulsory heirs, no legitimes 2. Disinheritance in a will for causes expressly stated by law.
3. Operation of law in cases of unworthiness to succeed.
Fixed and variable legitimes, distinguished
Fixed legitime Variable legitime Preterition
When the quantity or amount does not When the quantity or amount changes The total omission, generally due to mistake or oversight by the testator
change regardless of whether depending on the compulsory heirs who in his will, of one, some or all of the compulsory heirs in the direct line
compulsory heirs concur or not. concur. living at the time of the testator's death.
Legitime of LCD and LPA is fixed by law Legitimes of surviving spouse, Rule: Total omission is preterition when purpose to disinherit is not
at 1/2 of the estate. illegitimate children and the parents of expressly made or is not at least manifest.
illegitimate child Presumption of involuntary omission: Preterition may be voluntary but
the law presumes that the omission of the compulsory heir was
Intangible rights to the legitime involuntary and due merely to mistake or inadvertence on the part of the
1. No deprivation testator.
2. No condition/substitution Manresa: Preterition consists in the omission of an heir in the will, either
3. No compromise or waiver because he is
4. No impairment NOT NAMED ALTHOUGH NAMED
He is not named in the will. He is neither:
Art. 904. The testator cannot deprive his compulsory heirs of their legitime, 1. instituted as an heir
except in cases expressly specified by law. 2. expressly disinherited
3. assigned any part of the
Neither can he impose upon the same any burden, encumbrance, condition, or estate
substitution of any kind whatsoever. In all of these cases: Heir is tacitly deprived of his right to legitime

Disposition of property to compulsory heirs for valuable consideration not Castan: Preterition is the omission in the will of any of the compulsory
prohibited heirs without being expressly disinherited.
Reason: No diminution of the estate but merely a substitution in value.
Rule in sale to CH: The transfer must not be less than an adequate and What is the proper definition of preterition?
full consideration, otherwise, the amount by which the fair market value For there to be preterition, the compulsory heir in question must have
of the property exceeds the value of the consideration shall, for purpose received absolutely nothing from the testator either by way of:
of the law, be deemed a donation subject to imputation of legitime. 1. Testamentary succession
Rule in donation: Donations and other dispositions by gratuitous title 2. Legacy or devise
must be included in the computation. 3. Donation inter vivos
4. Intestacy
Balane: It is not really an omission in the will. The mention or non- 3. If the heir had earlier received a donation inter vivos from the testator.
mention is not constitutive of preention. Then what? (Donation inter vivos are treated as an advance on legitimes)
Pretention must be a total omission from the inheritance. 4. If not all of the estate is disposed of by the will, and the heir is still not
mentioned in the will, nor earlier been a recipient of a donation inter
When is there preterition? vivos. (The omitted heir would still receive something by way of
Only in case of testamentary succession! intestacy, from the vacant or remaining portion, undisposed by the will).
You cannot have preterition in intestacy. (Remedy: completion of legitime)

Distinguish disinheritance from preterition Reyes v. Baretto


Preterition Disinheritance The fact that Milagros was allotted in her father's will a share smaller than her
Total omission from the inheritance, A testamentary disposition expressly legitime does not invalidate the institution of Salud as heir, since there was no
without the heir being expressly depriving any compulsory heir of his preterition, or total omission for a forced heir.
disinherited share in the legitime for a cause
authorized by law There is no preterition where there is no total omission, inasmuch as the heir
May be intentional but is presumed to Always voluntary received something from the inheritance.
be involuntary
The law presumes that there has been There is some legal cause or reason The heir's remedy is not for the annulment of the other instituted heir, but for the
merely some mistake or oversight completion of legitime in Arts. 906-907.
The nullity of the institution (in a will) is The nullity is partial i.e. only insofar as it
total resulting in total intestacy, except may prejudice the heir disinherited. Aznar v. Duncan
devises and legacies Any compulsory heir to whom the testator has left by any title less than the
The omitted compulsory heir gets his If valid, the compulsory heir is excluded legitime belonging to him (as in devise or legacy), may demand that the same may
share from the entire estate i.e. not from the inheritance and if defective, be fully satisfied.
only his share of the legitime but also the compulsory heir is merely restored
of the free portion not disposed of by to this legitime, and testamentary In this case, the testator expressly denied his relationship with Helen, but still left
way of devises and legacies dispositions which are inofficious are her a legacy nevertheless, although less than the amount of her legitime. The
reduced testator refused to acknowledge Helen as his natural daughter and just gave her a
A compulsory heir in the direct line is Any compulsory heir may be share to a legacy.
omitted disinherited though not in the direct line
Query: In his will, Gru states: "I institute my two (minion) children Larry The heir could not ask that the institution of heirs be annulled entirely when he
and Jerry as my sole heirs to my entire estate, and to Dave, my other was left a legacy worth less than the legitime, and even if said legatee is not
(minion) child, I give nothing." Disinheritance or preterition? referred to as an heir or even a relative. Should the value of the legacy or devise be
A: Disinheritance! Here Gru makes it known that the really had less than the recipient's claimed legitime, her remedy is only for the completion of
no intention to give any part of his estate to Dave. If the legitime.
disinheritance is improper, Dave can still get his legitime. The
institution of Larry and Jerry remains valid. Compulsory heirs that may be preterited
Under the Art. 854, one, some or all of the compulsory heirs in the direct
When is there no preterition? line.
1. If the heir instituted in the will receives a portion less than his legitime. 1. Children or descendants, and parents or ascendants.
(Remedy: completion of legitime) 2. Manresa: Illegitimate descendants and ascendants are also
2. If the heir is given a legacy or devise. (Remedy: completion of legitime) protected (since there is no distinction as to legitimacy)
3. Adopted children are also included and may claim preterition.
It excludes the surviving spouse, although she is also a compulsory heir, Opening of legacies: The effect of annulling the institution of heirs will be
she is not in the direct line and therefore cannot claim to be preterited. the opening of intestacy, except that proper legacies and devises must be
(unfair to the wife, this article must be extended to all compulsory heirs!) respected.

What happens in case the preterited compulsory heirs predeceases the testator? Does preterition result to intestacy?
Rule: If the omitted compulsory heirs should die before the testator, the NO. It does not automatically result in intestacy because IF there are
institution shall be effectual, without prejudice to the right of devises and legacies, they are considered valid, insofar as they do not
representation. impair legitimes.
The question of preterition becomes MOOT. The institution of other heirs
remains valid. Nuguid v. Nuguid
if the omitted compulsory heir had heirs of his own, such heir may In this case, a one-sentence will institutes the petitioner (sister) as the sole heir,
himself be entitled to succeed by virtue of representation, unless such nothing more. No specific legacies or bequests were provided. The omission of the
heir is also himself completely preterited. parents as forced heirs in the direct line results in preterition. And the nullity of the
institution is complete.
Acain v. IAC
Preterition consists in the omission in the testator's will of the forced heirs either Legacies and devises merit consideration only when they are so expressly given as
because they are not mentioned therein, or although mentioned, they are neither such in a will, in so far as they are not inofficious.
instituted as heirs nor are expressly disinherited.
The will here does not expressly disinherit the parents, the forced heirs. It simply
Even if a surviving spouse (widow) is a compulsory heir, there is no preterition even omitted their names. Such is preterition rather than an ineffective disinheritance.
if she is omitted from the inheritance, for she is not in a direct line.
The Court repeated, the preterition shall annul the institution of heir. This
Note: An adopted daughter was totally omitted and preterited in the will. An annulment is in toto, unless in the will there are additional testamentary
adopted child is included in the "compulsory heir in the direct line." If totally dispositions in the form of legacies and devisees.
omitted in the inheritance, then preterited.

Balane: "Acain" logic is the soul of simplicity; since an adopted child is give by law Summary of preterition
the same rights as la legitimate child, in relation to the adopter, then the adopted Preterition abrogates the institution of heir but respects the legacies and
child can invoke Art. 854 in the same manner that a legitimate child can. devises insofar as these do not impair the legitimes.
Preterition annuls the institution of an heir and annulment throws open
What is the effect of preterition? What does the remedy of preterition do? to intestate succession the entire inheritance including the free portion.
Annuls institution of an heir: Preterition annuls the institution of an heir The only provisions that do not result in intestacy are the
and throws open the entire inheritance to intestate succession. legacies and devises made in the will for they should stand valid
The only provisions that do not result in intestacy are the and respected, except insofar as the legitimes are concerned.
legacies and devises made in the will, for they should stand Devises and legacies vis-a-vis preterition: The DL are subordinate to the
valid and respected, except in so far as the legitimes are legitimes. The DL must not eat up the shares or legitimes of compulsory
concerned. heirs -> 1/2 of estate
Total abrogation of will: It results in the total abrogation of the will or Two situations (with respect to DL):
the nullification of the institution of heirs. 1. If the will contains only institutions of heirs and there is
As if nothing was written: If there are no other testamentary dispositions preterition, total intestacy will result.
like legacies or devises, it amounts to a declaration that nothing at all was 2. If there are legacies and devises and there is preterition, the
written. legacies and devises will stand, to the extent of the free
portion. -> The DL will be reduced and not set aside if the The owner of property may enter into a partition inter vivos: an
legitimes are impaired. The institution of heirs will be swept adjudication or assignment of specific property belonging to the owner in
away. favor of his heirs during lifetime.
A deed of conveyance or transfer executed while the owner is still
No Condition/Substitution alive will vest ownership to the heir.
Rule: Testator cannot impose any burden, condition, or substitution on LMTN: It should include only (?) compulsory heirs and must not
legitime impair the legitimes.
Reason: because the rights of compulsory heirs to their Renunciation or compromise as regards a future legitime
legitime cannot be reduced. Rule: Prohibited and declared null and void.
Such burden shall be considered as NOT IMPOSED; it may only Reasons for rule:
be imposed on the FREE PORTION. 1. The right to a future legitime is merely an inchoate right or
expectancy to an inheritance which does not vest in the heir until
What are the prohibitions on the part of the testator regarding legitimes? the moment of the death of the testator.
1. Prohibition to deprive the compulsory heirs of legitimes 2. It contravenes the freedom of testator in disposing his property by
The legitime is not within the testator's control, it passes to the will
compulsory heirs by strict operation of law. 3. No contract may be entered into upon future inheritance except in
XPN: In case of disinheritance -> the law allows the testator to deprive cases expressly authorized by law.
the compulsory heirs by strict operation of law. Effects:
1. Since compromise is void, the compulsory heir can still claim his
2. Prohibition to impose burdens on legitimes legitime upon the death of the testator or the person owing it.
XPN: 2. If the compulsory heir has received anything from the testator
1. Art. 1083(1): The testator may prohibit partition of the because of the renunciation or compromise, he is bound to collate
inheritance (applies to legitime only) for a period not exceeding the same or its value as it is chargeable to or deductible from his
20 years. share.
2. Art. 1080 (2): A parent may order that legitime be paid in cash JLT Agro v. Balansag, March 11, 2005
(as when parent desires to keep any agricultural, industrial, or All things, even future ones, which are not outside the commerce of man may be
manufacturing enterprise intact). the object of a contract. The exception is that no contract may be entered into with
3. Art. 159 FC: The family home should continue despite death of respect to future inheritance, and the exception to the exception is the partition
spouses, as long as there is a minor beneficiary. The court inter vivos referred to in Article 1080.
cannot partition the same without court order
4. Art. 891: Reserva Troncal For the inheritance to be considered "future," the succession must not have been
5. The testator may impose conditions either with respect to the opened at the time of the contract.36 A contract may be classified as a contract
institution of heirs or to the designation of devisees or legatees, upon future inheritance, prohibited under the second paragraph of Article 1347,
or subject such institution or designation for a certain purpose where the following requisites concur:
or cause, or to a term or period.
(1) That the succession has not yet been opened;
No Compromise or Waiver (2) That the object of the contract forms part of the inheritance; and
Art. 905: Every renunciation or compromise as regards a future legitime (3) That the promissor has, with respect to the object, an expectancy of a right
between the person owing it and his compulsory heirs is void, and the which is purely hereditary in nature.
latter may claim the same upon the death of the former; but they must
bring to collation whatever they may have received by virtue of the The first paragraph of Article 1080, which provides the exception to the exception
renunciation or compromise. and therefore aligns with the general rule on future things, reads:
This article applies only to compromises or renunciation between the
ART. 1080. Should a person make a partition of his estate by an act inter vivos, or predecessor and the prospective compulsory heir.
by will, such partition shall be respected, insofar as it does not prejudice the Note: There is also a prohibition between a prospective compulsory heir
legitime of the compulsory heirs. and another prospective compulsory heir, or a prospective compulsory
heir and a stranger
Blas v. Santos, March 29, 1961
Future inheritance is any property or right not in existence or capable of When is the prohibition not applicable?
determination at the time of the contract, that a person may in the future acquire 1. Renunciations or compromises made after the death of the testator.
by succession 2. Donations or remissions made by the testator to the compulsory heirs as
advances of the legitime, for the law allows the testator to give to
We do not think that Exhibit "A" is a contract on future inheritance. it is an compulsory heirs donations which are chargeable to their legitimes.
obligation or promise made by the maker to transmit one-half of her share in the
conjugal properties acquired with her husband, which properties are stated or No Impairment
declared to be conjugal properties in the will of the husband. The conjugal Art. 906: Any compulsory heir to whom the testator has left by any title
properties were in existence at the time of the execution of Exhibit "A" on less than the legitime belonging to him may demand that the same be
December 26, 1936. As a matter of fact, Maxima Santos included these properties fully satisfied.
in her inventory of her husband's estate of June 2, 1937. The promise does not Impairment: is tantamount to reduction in the quantity and quality of a
refer to any properties that the maker would inherit upon the death of her legitime delivered to an heir.
husband, because it is her share in the conjugal assets. Any testamentary disposition that encroaches on the legitime of
compulsory heirs is null and void to the extent of such impairment.
Ferrer v. Sps. Diaz, April 23, 2010 To prevent impairment, in the distribution of the hereditary estate, the
There is no question that at the time of execution of Comandantes Waiver of legitimes of the compulsory heirs should be paid first before the
Hereditary Rights and Interest Over a Real Property (Still Undivided), succession to voluntary heirs.
either of her parents properties has not yet been opened since both of them are
still living. With respect to the other two requisites, both are likewise present When will this provision apply?
considering that the property subject matter of Comandantes waiver concededly 1. Art. 855: When the title by which the testator transmitted property is
forms part of the properties that she expect to inherit from her parents upon their intestate succession. This article is a true case of completion of legitime
death and, such expectancy of a right, as shown by the facts, is undoubtedly purely 2. Arts. 909 and 910: Donation inter vivos to compulsory heirs are
hereditary in nature. imputable to their legitimes
GR: In both cases, anything that the compulsory heir receives by
From the foregoing, it is clear that Comandante and petitioner entered into a gratuitous title from the predecessor is considered as an advance on the
contract involving the formers future inheritance as embodied in the Waiver of legitime and should be deducted therefrom.
Hereditary Rights and Interest Over a Real Property (Still Undivided) executed by XPN: (when not counted as legitime)
her in petitioners favor. a) Art. 1062: When the donation inter vivos was given with the
express provision by the testator that it should not be charged
to the legitime of the donee-compulsory heir
What is the duty to collate? b) Art. 1063: Testamentary dispositions even to a compulsory heir
Any property which the compulsory heir may have gratuitously received (unless testator expressly provides that it should be counted as
from his predecessor will be considered as an advance on his legitime legitime)
and must be duly credited.
Imperial v. CA, October 8, 1999
What is the scope of prohibition?
When Victor substituted Leoncio in Civil Case No. 1177 upon the latters death, his (2) the value of all donations subject to collation would be added to it.
act of moving for execution of the compromise judgment cannot be considered an
act of renunciation of his legitime. He was, therefore, not precluded or estopped In this case where the collatable property is an immovable, what may be received
from subsequently seeking the reduction of the donation, under Article 772. Nor is:
are Victors heirs, upon his death, precluded from doing so, as their right to do so is (1) an equivalent, as much as possible, in property of the same nature, class and
expressly recognized under Article 772, and also in Article 1053: quality;
(2) if such is impracticable, the equivalent value of the impaired legitime in cash or
If the heir should die without having accepted or repudiated the inheritance, his marketable securities; or (3) in the absence of cash or securities in the estate, so
right shall be transmitted to his heirs. much of such other property as may be necessary, to be sold in public auction.

What is brought to collation is not the donated property itself, but the value of Dorotheo v. CA, December 8, 1999
the property at the time it was donated. The rationale for this is that the donation It does not necessarily follow that an extrinsically valid last will and testament is
is a real alienation which conveys ownership upon its acceptance, hence, any always intrinsically valid. Even if the will was validly executed, if the testator
increase in value or any deterioration or loss thereof is for the account of the heir provides for dispositions that deprives or impairs the lawful heirs of their legitime
or donee. or rightful inheritance according to the laws on succession, the unlawful
provisions/dispositions thereof cannot be given effect. This is specially so when
Under Article 1144 of the Civil Code, actions upon an obligation created by law the courts had already determined in a final and executory decision that the will is
must be brought within ten years from the time the right of action accrues. Thus, intrinsically void. Such determination having attained that character of finality is
the ten-year prescriptive period applies to the obligation to reduce inofficious binding on this Court which will no longer be disturbed. Not that this Court finds
donations, required under Article 771 of the Civil Code, to the extent that they the will to be intrinsically valid, but that a final and executory decision of which the
impair the legitime of compulsory heirs. party had the opportunity to challenge before the higher tribunals must stand and
should no longer be reevaluated. Failure to avail of the remedies provided by law
Private respondents are also guilty of estoppel by laches. It may be recalled that constitutes waiver. And if the party does not avail of other remedies despite its
Leoncio died on January 8, 1962. Fifteen years later, Victor died, leaving as his sole belief that it was aggrieved by a decision or court action, then it is deemed to have
heir Ricardo Villalon, who also died four years later. While Victor was alive, he gave fully agreed and is satisfied with the decision or order.
no indication of any interest to contest the donation of his deceased father. As we
have discussed earlier, the fact that he actively participated in Civil Case No. 1177 Francisco v. Francisco-Alfonzo, March 8, 2001
did not amount to a renunciation of his inheritance and does not preclude him We find it incredible that engaging in buy and sell could raise the amount of
from bringing an action to claim his legitime. These are matters that Victor could P10,000.00, or that earnings in selling goto could save enough to pay P15,000.00, in
not possibly be unaware of, considering that he is a lawyer. Ricardo Villalon was cash for the land.
even a lessee of a portion of the donated property, and could have instituted the
action as sole heir of his natural son, or at the very least, raised the matter of The testimonies of petitioners were incredible considering their inconsistent
legitime by way of counterclaim in an ejectment case filed against him by statements as to whether there was consideration for the sale and also as to
petitioner in 1979. Neither does it help private respondents cause that five years whether the property was bought below or above its supposed market value. They
have elapsed since the death of Ricardo in 1981 before they filed their complaint could not even present a single witness to the kasulatan that would prove receipt
with the RTC. of the purchase price.

Before any conclusion as to the legal share due to a compulsory heir may be Since there was no cause or consideration for the sale, the same was a simulation
reached, the following steps must be taken: and hence, null and void.
(1) the net estate of the decedent must be ascertained, by deducting all the
payable obligations and charges from the value of the property owned by the Even if the kasulatan was not simulated, it still violated the Civil Code19 provisions
deceased at the time of his death; insofar as the transaction affected respondent's legitime. The sale was executed in
1983, when the applicable law was the Civil Code, not the Family Code. 2. System of total reservation: The testator cannot freely dispose of any
portion of his estate as long as there are compulsory heirs for whom the
Obviously, the sale was Gregorio's way to transfer the property to his illegitimate law reserves his estate.
daughters20 at the expense of his legitimate daughter. The sale was executed to He has free disposition only when he has no compulsory heirs
prevent respondent Alfonso from claiming her legitime and rightful share in said 3. System of partial reservation: A certain portion of the estate is reserved
property. Before his death, Gregorio had a change of heart and informed his by law for compulsory heirs and the rest is the free portion over which
daughter about the titles to the property. the testator has absolute freedom of disposition.

Ramirez v. Vda. de Ramirez, February 15, 1982 Kinds of compulsory heirs


6
It is the one-third usufruct over the free portion which the appellants question and Primary Those who exclude the LCD including legitimated and
justifiably so. It appears that the court a quo approved the usufruct in favor of secondary heirs and are never adopted children
Marcelle because the testament provides for a usufruct in her favor of one-third of excluded by other compulsory
the estate. The court a quo erred for Marcelle who is entitled to one-half of the heirs or by each other.
estate "en pleno dominio" as her legitime and which is more than what she is given Secondary Those who are entitled to LPAs and parents of
under the will is not entitled to have any additional share in the estate. To give legitime only in the absence of illegitimate children
Marcelle more than her legitime will run counter to the testator's intention for as the primary compulsory heirs.
stated above his dispositions even impaired her legitime and tended to favor Concurring Those who succeed together Surviving spouse, illegitimate
Wanda. with the primary or secondary children
compulsory heirs.
Concepcion v. Sta. Ana, December 29, 1950
The reason why a forced heir has the right to institute an action of rescission is that Primary forced heirs: entitled to the legitime whenever they survive and are
the right to the legitime is similar to a credit of a creditor. XXX "The rights of a qualified to inherit from the decedent or testator:
forced heir to the legitime are undoubtedly similar to a credit of a creditor in so far 1. Legitimate children of the decedent and their descendants
as the rights to the legitime may be defeated by fraudulent contracts, and are No distinction must be made among them even if there are several
superior to the will of those bound to respect them. marriages.
Presumption of law is on legitimacy.
Therefore, as the plaintiff in the present case, not being a forced heir of the late Descendant inherits only by right of representation.
Perpetua Concepcion, can not institute an action to annul under article 1300 or to Right of representation: right created by fiction of law where the
rescind under article 1291 (3) of the Civil Code the contract under consideration representative is raised to the place and degree of the person
entered into by the deceased with the defendant. represented, and acquires the rights which the latter would have if
he were living or could have inherited.
Applies when:
Completion of legitime Preterition 1. The compulsory heir predeceased his/her descendant.
Testator who left some property in his The pretended heir gets nothing from 2. The compulsory heir is incapacitated/disqualified or
will less than the legitime to which a the hereditary property either because disqualified to inherit.
compulsory heir is entitled he is totally omitted from the will or 3. The compulsory heir is validly disinherited.
although he is mentioned in the will, he Applies further in the legitimate descending line.
is not given anything.

Systems of distribution of hereditary property


6
1. System of absolute freedom of disposition: The testator may freely According to Atty. Lulu, LCDs are classified as first class of primary forced heirs,
dispose of his property without any limitation imposed by law. while the surviving spouse an ILC are classified as secondary forced heirs.
The representatives who are qualified inherit only per stirpes: not validly transfer it to the petitioners.
the total of the shares of the representatives must not go
beyond the per capita share. Vizconde v. CA, February 11, 1998
GR: Illegitimate children are subject to the iron-barrier rule. Art. 1061. Every compulsory heir, who succeeds with other compulsory heirs, must
XPN: Descendants of a recognized illegitimate child of the bring into the mass of the estate any property or right which he may have received
decedent are not subject to the iron-barrier rule. from the decedent, during the lifetime of the latter, by way of donation, or any
Example: The decedent, who is a recognized illegitimate child is other gratuitous title, in order that it may be computed in the determination of the
survived by his legitimate child and another child who is a legitime of each heir, and in the account of the partition.
recognized illegitimate child.
o Question: Who among the children of the decedent may Collation is the act by virtue of which descendants or other forced heirs who
exercise the right of representation? intervene in the division of the inheritance of an ascendant bring into the common
o Answer: Both of them may exercise the right of mass, the property which they received from him, so that the division may be made
representation. The illegitimate child of the decedent is according to law and the will of the testator.
not subject to the iron-barrier rule because the decedent
is a recognized illegitimate child. Collation is only required of compulsory heirs succeeding with other compulsory
2. Widow/widower heirs and involves property or rights received by donation or gratuitous title during
3. Illegitimate children, filitation with decedent is proved or established the lifetime of the decedent.

Sps. Tumbokon v. Legaspi, August 12, 2010 The purpose is to attain equality among the compulsory heirs in so far as possible
The petitioners adduced no competent evidence to establish that Victor Miralles, for it is presumed that the intention of the testator or predecessor in interest
the transferor of the land to Cresenciana Inog (the petitioners immediate making a donation or gratuitous transfer to a forced heir is to give him something
predecessor in interest) had any legal right in the first place to transfer ownership. in advance on account of his share in the estate, and that the predecessor's will is
He was not himself an heir of Alejandra, being only her son-in-law (as the husband to treat all his heirs equally, in the absence of any expression to the contrary.
of Ciriaca, one of Alejandras two daughters). Thus, the statement in the deed of
absolute sale (Exhibit B) entered into between Victor Miralles and Cresenciana Secondary forced heirs: inherit the legitime on default of another class of
Inog, to the effect that the parcel of land was inherited from the deceased compulsory heirs:
Alejandra Sespee by Victor Miralles being the sole heir of the said Alejandra 1. Legitimate parents or ascendants
Sespee, having no other brothers or sisters, was outrightly false. Rule of proximity: the nearest exclude the more remote ones.
If there are several of equal proximity to the decedent, divide between
Only two forced heirs survived Alejandra upon her death, namely: respondent the maternal and paternal line equally.
Apolonia, her daughter, and Crisanto Miralles, her grandson. The latter succeeded There is no right of representation in the ascending line.
Alejandra by right of representation because his mother, Ciriaca, had predeceased 2. Illegitimate parents
Alejandra. Representation is a right created by fiction of law, by virtue of which the If the decedent/testator is an illegitimate child, only the recognizing
representative is raised to the place and the degree of the person represented, and parents may inherit from him/her in the direct ascending line. (iron
7
acquires the rights which the latter would have if she were living or if she could barrier rule)
have inherited. Herein, the representative (Crisanto Miralles) was called to the
succession by law and not by the person represented (Ciriaca); he thus succeeded Note: Brothers and sisters whether legitimate or not are not compulsory heirs to
Alejandra, not Ciriaca. each other.

With Victor Miralles lacking any just and legal right in the land, except as an heir of 7
Prohibits absolutely a succession ab intestate between the illegitimate child and
Ciriaca, the transfer of the land from him to Cresenciana Inog was ineffectual. As a
the legitimate children and relatives of the father or mother of the said illegitimate
consequence, Cresenciana Inog did not legally acquire the land, and, in turn, did
child.
the notarized deed of sale, which is only 2/11 of Lot No. 1-P.
Legitimate children:
1. Born or conceived during a valid marriage between the parents Concepcion v. CA, August 31, 2005
2. Born and conceived out of wedlock but legitimated upon valid marriage The status and filiation of a child cannot be compromised. XXX A child who is
so long as upon conception, no legal impediment is existing XPN: conceived or born during the marriage of his parents is legitimate.
Minority
3. Adopted Article 167. The child shall be considered legitimate although the mother may have
4. Children from marriages declared void under art 36 declared against its legitimacy or may have been sentenced as an adulteress.
5. Children from marriages declared void for failure to comply to art 52 and
53 in rel to art 35 (6) Only Ma. Theresas husband Mario or, in a proper case, his heirs, who can contest
Sps. Bolaos v. Bernate, November 17, 2010 the legitimacy of the child Jose Gerardo born to his wife. Impugning the legitimacy
However, the above deed of absolute sale that Flavia A. Zuiga executed was valid of a child is a strictly personal right of the husband or, in exceptional cases, his
and effective only to the extent of her ideal share in Lot No. 1-P. The validity of the heirs. Since the marriage of Gerardo and Ma. Theresa was void from the very
other deed of absolute sale Cresencia Zuiga-Echague executed in favor of the beginning, he never became her husband and thus never acquired any right to
spouses Mariano and Emma Bolaos is limited to her ideal share and the other impugn the legitimacy of her child.
ideal share she acquired from Flavia A. Zuiga. In effect[,] the spouses Mariano
and Emma Bolaos acquired the ideal shares of the sisters Flavia A. Zuiga and The presumption of legitimacy proceeds from the sexual union in marriage,
Cresencia Zuiga-Echague. particularly during the period of conception. To overthrow this presumption on the
basis of Article 166 (1)(b) of the Family Code, it must be shown beyond reasonable
The claim by the spouses Mariano and Emma Bolaos that they were purchasers in doubt that there was no access that could have enabled the husband to father the
good faith has little relevance. Lot No. 1-P appears as [an] unregistered lot, and child. Sexual intercourse is to be presumed where personal access is not disproved,
thus they merely step into the shoes of the seller. They cannot acquire [a] property unless such presumption is rebutted by evidence to the contrary.
interest greater tha[n] Cresencia Zuiga- Echagues.
The presumption is quasi-conclusive and may be refuted only by the evidence of
Considering that Roman died on August 9, 1976, the provisions of the Civil Code on physical impossibility of coitus between husband and wife within the first 120 days
succession, then the law in force, should apply, particularly Articles 979 and 980, of the 300 days which immediately preceded the birth of the child.
viz.
To rebut the presumption, the separation between the spouses must be such as to
Art. 979. Legitimate children and their descendants succeed the parents and other make marital intimacy impossible. This may take place, for instance, when they
ascendants, without distinction as to sex or age, and even if they should come from reside in different countries or provinces and they were never together during the
different marriages. x x x. period of conception.[33] Or, the husband was in prison during the period of
conception, unless it appears that sexual union took place through the violation of
Art. 980. The children of the deceased shall always inherit from him in their own prison regulations.
right, dividing the inheritance in equal shares.
The law itself establishes the status of a child from the moment of his birth.
Thus, the RTC correctly ruled that Lot No. 1-P rightfully belongs to the 11 children Although a record of birth or birth certificate may be used as primary evidence of
of Roman, seven (7) from his first marriage with Flavia and four (4) from his second the filiation of a child, as the status of a child is determined by the law itself, proof
marriage with Ceferina, in equal shares. As there was no partition among Romans of filiation is necessary only when the legitimacy of the child is being questioned, or
children, the lot was owned by them in common. And inasmuch as Flavia did not when the status of a child born after 300 days following the termination of
successfully repudiate her sale of her aliquot share to Cresencia, the transfer stands marriage is sought to be established.
as valid and effective. Consequently, what Cresencia sold to petitioner spouses
was her own share and Flavias share in the property that she acquired by virtue of Joaquino v. Reyes, July 13, 2004
Matters relating to the rights of filiation and heirship must be ventilated in the simulation of the child's birth or falsification of his or her birth certificate, which is a
proper probate court in a special proceeding instituted precisely for the purpose public document.
of determining such rights. Sustaining the appellate court in Agapay v. Palang, this
Court held that the status of an illegitimate child who claimed to be an heir to a Isabel Chipongian had to implore and supplicate her husband to give appellee
decedents estate could not be adjudicated in an ordinary civil action which, as in although without any legal papers her properties when she dies, and likewise for
this case, was for the recovery of property. her husband to give Marissa the properties that he would inherit from her (Isabel),
since she well knew that Marissa is not truly their daughter and could not be their
Considerations of due process should have likewise deterred the RTC from ruling legal heir unless her (Isabel's) husband makes her so. the totality of contrary
on the status of petitioners children. It is evident from the pleadings of the parties evidence, presented by the private respondents sufficiently rebutted the truth of
that this issue was not presented in either the original or the Supplemental the content of petitioner's Certificate of Live Birth. of said rebutting evidence, the
Complaint for reconveyance of property and damages; that it was not pleaded and most telling was the Deed of Extra-Judicial Settlement of the Estate of the
specifically prayed for by petitioner in her Answers thereto; and that it was not Deceased Isabel Chipongian (Exh. "E") executed on July 20, 1982 by Vicente
traversed by respondents Reply to the Supplemental Complaint. Neither did Benitez, and Dr. Nilo Chipongian, a brother of Isabel. In their notarized document,
petitioners Memorandum,[46] which was submitted to the trial court, raise and they stated that "(they) are the sole heirs of the deceased Isabel Chipongian
discuss this issue. In view thereof, the illegitimate filiation of her children could not because she died without descendants or ascendants". In executing this Deed,
have been duly established by the proceedings as required by Article 887 of the Vicente Benitez effectively repudiated the Certificate of Live Birth of petitioner
Civil Code. where it appeared that he was petitioner's father. The repudiation was made
twenty-eight years after he signed petitioner's Certificate of Live Birth.
Benitez-Badua v. CA, January 24, 1994
Petitioners' recourse to Article 263 of the New Civil Code [now Article 170 of the Rivera v. Heirs of Villanueva, July 21, 2006
Family Code] is not well-taken. This legal provision refers to an action to impugn The mere registration of a child in his or her birth certificate as the child of the
legitimacy. It is inapplicable to this case because this is not an action to impugn the supposed parents is not a valid adoption, does not confer upon the child the status
legitimacy of a child, but an action of the private respondents to claim their of an adopted child and the legal rights of such child, and even amounts to
inheritance as legal heirs of their childless deceased aunt. They do not claim that simulation of the child's birth or falsification of his or her birth certificate, which is a
petitioner Violeta Cabatbat Lim is an illegitimate child of the deceased, but that she public document.
is not the decedent's child at all. Being neither legally adopted child, nor an
acknowledged natural child, nor a child by legal fiction of Esperanza Cabatbat, It is well-settled that a record of birth is merely a prima facie evidence of the facts
Violeta is not a legal heir of the deceased. contained therein. It is not conclusive evidence of the truthfulness of the
statements made there by the interested parties. Following the logic of Benitez,
For if Vicente's wife Isabel, who wads already 36 years old at the time of the child's respondent Angelina and her co-defendants in SD-857 should have adduced
supposed birth, was truly the mother of that child, as reported by Vicente in her evidence of her adoption, in view of the contents of her birth certificate. The
birth certificate, should the child not have been born in a hospital under the records, however, are bereft of any such evidence.
experienced, skillful and caring hands of Isabel's obstetrician-gynecologist Dr.
Constantino Manahan, since delivery of a child at that late age by Isabel would There are several parallels between this case and Benitez-Badua that are simply too
have been difficult and quite risky to her health and even life? How come, then, compelling to ignore. First, both Benitez-Badua and respondent Angelina submitted
that as appearing in appellee's birth certificate, Marissa was supposedly born at the birth certificates as evidence of filiation. Second, both claimed to be children of
Benitez home in Avenida Rizal, Nagcarlan, Laguna, with no physician or even a parents relatively advanced in age. Third, both claimed to have been born after
midwife attending? their alleged parents had lived together childless for several years.

The mere registration of a child in his or her birth certificate as the child of the There are, however, also crucial differences between Benitez-Badua and this case
supposed parents is not a valid adoption, does not confer upon the child the status which ineluctably support the conclusion that respondent Angelina was not
of an adopted child and the legal rights of such child, and even amounts of Gonzales' daughter, whether illegitimate or adopted. Gonzales, unlike Benitez-
Badua's alleged mother Chipongian, was not only 36 years old but 44 years old, and for the following:
on the verge of menopause at the time of the alleged birth. Unlike Chipongian who
had been married to Vicente Benitez for only 10 years, Gonzales had been living (i) a former Filipino citizen who seeks to adopt a relative within the fourth (4th)
childless with Villanueva for 20 years. Under the circumstances, we hold that it was degree of consanguinity or affinity; or
not sufficiently established that respondent Angelina was Gonzales' biological (ii) one who seeks to adopt the legitimate son/daughter of his/her Filipino
daughter, nor even her adopted daughter. Thus, she cannot inherit from Gonzales. spouse; or
Since she could not have validly participated in Gonzales' estate, the extrajudicial (iii) one who is married to a Filipino citizen and seeks to adopt jointly with
partition which she executed with Villanueva on August 8, 1980 was invalid. his/her spouse a relative within the fourth (4th) degree of consanguinity or affinity
of the Filipino spouse; or .
Babiera v. Catotal, June 15, 2000 (c) The guardian with respect to the ward after the termination of the
Article 171 of the Family Code is not applicable to the present case. A close reading guardianship and clearance of his/her financial accountabilities.
of this provision shows that it applies to instances in which the father impugns the
legitimacy of his wifes child. The provision, however, presupposes that the child Husband and wife shall jointly adopt, except in the following cases:
was the undisputed offspring of the mothet. XXX The prayer herein is not to
declare that petitioner is an illegitimate child of Hermogena, but to establish that (i) if one spouse seeks to adopt the legitimate son/daughter of the other; or
the former is not the latter's child at all. Verily, the present action does not impugn (ii) if one spouse seeks to adopt his/her own illegitimate son/daughter: Provided,
petitioners filiation to Spouses Eugenio and Hermogena Babiera, because there is However, that the other spouse has signified his/her consent thereto; or
no blood relation to impugn in the first place. (iii) if the spouses are legally separated from each other.chan robles virtual law
library
Adopted children
RA 8552: Domestic Adoption Act of 1998 In case husband and wife jointly adopt, or one spouse adopts the illegitimate
Sec. 7. Who May Adopt. The following may adopt: son/daughter of the other, joint parental authority shall be exercised by the
spouses.
(a) Any Filipino citizen of legal age, in possession of full civil capacity and legal
rights, of good moral character, has not been convicted of any crime involving Sec. 8. Who May Be Adopted. The following may be adopted:
moral turpitude, emotionally and psychologically capable of caring for children, at
least sixteen (16) years older than the adoptee, and who is in a position to support (a) Any person below eighteen (18) years of age who has been administratively
and care for his/her children in keeping with the means of the family. The or judicially declared available for adoption;
requirement of sixteen (16) year difference between the age of the adopter and (b) The legitimate son/daughter of one spouse by the other spouse;
adoptee may be waived when the adopter is the biological parent of the adoptee, (c) An illegitimate son/daughter by a qualified adopter to improve his/her status
or is the spouse of the adoptee's parent; to that of legitimacy;
(d) A person of legal age if, prior to the adoption, said person has been
(b) Any alien possessing the same qualifications as above stated for Filipino consistently considered and treated by the adopter(s) as his/her own child since
nationals: Provided, That his/her country has diplomatic relations with the Republic minority;
of the Philippines, that he/she has been living in the Philippines for at least three (e) A child whose adoption has been previously rescinded; or
(3) continuous years prior to the filing of the application for adoption and (f) A child whose biological or adoptive parent(s) has died: Provided, That no
maintains such residence until the adoption decree is entered, that he/she has proceedings shall be initiated within six (6) months from the time of death of said
been certified by his/her diplomatic or consular office or any appropriate parent(s).
government agency that he/she has the legal capacity to adopt in his/her country,
and that his/her government allows the adoptee to enter his/her country as his/her Sec. 9. Whose Consent is Necessary to the Adoption. After being properly
adopted son/daughter: Provided, Further, That the requirements on residency and counseled and informed of his/her right to give or withhold his/her approval of the
certification of the alien's qualification to adopt in his/her country may be waived adoption, the written consent of the following to the adoption is hereby required:
nature of public documents must be sustained in the absence of strong, complete
(a) The adoptee, if ten (10) years of age or over; and conclusive proof of its falsity or nullity."
(b) The biological parent(s) of the child, if known, or the legal guardian, or the
proper government instrumentality which has legal custody of the child; Doribel's legitimacy cannot be questioned in a complaint for partition and
(c) The legitimate and adopted sons/daughters, ten (10) years of age or over, of accounting but in a direct action seasonably filed by the proper party.
the adopter(s) and adoptee, if any;
(d) The illegitimate sons/daughters, ten (10) years of age or over, of the adopter In consequence of the above observations, we hold that Doribel, as the legitimate
if living with said adopter and the latter's spouse, if any; and daughter of Teodoro and Isabel Sayson, and Delia and Edmundo, as their adopted
(e) The spouse, if any, of the person adopting or to be adopted. children, are the exclusive heirs to the intestate estate of the deceased couple,
conformably to the following Article 979 of the Civil Code:
Rivera v. Ramirez, June 27, 2012
But, whether or not the late Rosita had judicially adopted Raymond as her child is a Art. 979. Legitimate children and their descendants succeed the parents and other
question of fact that had neither been considered nor passed upon by the RTC in a ascendants, without distinction as to sex or age, and even if they should come from
direct challenge to the claim of Eleuterio and Rositas other collateral relatives that different marriages.
they have the right to inherit from her. The relevant issue before the RTC was only
whether or not the duly appointed administrator of Rositas estate had the right to An adopted child succeeds to the property of the adopting parents in the same
the production and examination of the documents believed to be in Roberts manner as a legitimate child.
possession. Indeed, one of the reasons Robert brought the special civil action of
certiorari before the CA is that Eleuterio had no right to inspect the requested While it is true that the adopted child shall be deemed to be a legitimate child
documents and have access to Adolfos estate when Eleuterios authority as and have the same right as the latter, these rights do not include the right of
administrator extended only to Rositas estate. representation. The relationship created by the adoption is between only the
adopting parents and the adopted child and does not extend to the blood
Sayson v. CA, January 23, 1992 relatives of either party.
When Doribel was born on February 27, 1967, or about TEN (10) days before the
issuance of the Order of Adoption, the petitioners could have notified the court In Re Adoption of Stephanie Garcia
about the fact of birth of DORIBEL and perhaps withdrew the petition or perhaps Adoption is defined as the process of making a child, whether related or not to the
petitioners could have filed a petition for the revocation or rescission of the adopter, possess in general, the rights accorded to a legitimate child. It is a juridical
adoption (although the birth of a child is not one of those provided by law for the act, a proceeding in rem which creates between two persons a relationship similar
revocation or rescission of an adoption). The court is of the considered opinion that to that which results from legitimate paternity and filiation.
the adoption of the plaintiffs DELIA and EDMUNDO SAYSON is valid, outstanding
and binding to the present, the same not having been revoked or rescinded. One of the effects of adoption is that the adopted is deemed to be a legitimate
child of the adopter for all intents and purposes.
A no less important argument against the petitioners is that their challenge to the
validity of the adoption cannot be made collaterally, as in their action for partition, Being a legitimate child by virtue of her adoption, it follows that Stephanie is
but in a direct proceeding frontally addressing the issue. entitled to all the rights provided by law to a legitimate child without discrimination
of any kind, including the right to bear the surname of her father and her mother,
Mauricio's testimony that he was present when Doribel was born to Edita Abila was as discussed above. .
understandbly suspect, coming as it did from an interested party. The affidavit of
Abila 10 denying her earlier statement in the petition for the guardianship of Additionally, as aptly stated by both parties, Stephanies continued use of her
Doribel is of course hearsay, let alone the fact that it was never offered in evidence mothers surname (Garcia) as her middle name will maintain her maternal lineage.
in the lower courts. Even without it, however, the birth certificate must be upheld
in line with Legaspi v. Court of Appeals, where we ruled that "the evidentiary It is to be noted that Article 189(3) of the Family Code and Section 18, Article V of
RA provide that the adoptee remains an intestate heir of his/her biological
parent. Hence, Stephanie can well assert or claim her hereditary rights from her Legitimate Parents and Ascendants
natural mother in the future. Nuguid v. Nuguid, june 23, 1966
The deceased Rosario Nuguid left no descendants, legitimate or illegitimate. But
Since there is no law prohibiting an illegitimate child adopted by her natural father, she left forced heirs in the direct ascending line her parents, now oppositors Felix
like Stephanie, to use, as middle name her mothers surname, we find no reason Nuguid and Paz Salonga Nuguid. And, the will completely omits both of them: They
why she should not be allowed to do so. thus received nothing by the testament; tacitly, they were deprived of their
legitime; neither were they expressly disinherited. This is a clear case of preterition.
Lim v. IAC, October 18, 1988
The record of birth certificates of Pangasinan Provincial Hospital for the years 1947 The one-sentence will here institutes petitioner as the sole, universal heir
and 1948 does not carry the birth certificate of defendant Violeta Cabatbat and the nothing more. No specific legacies or bequests are therein provided for. It is in this
only birth certificate in the file of birth certificates of the hospital for May 26, 1948 posture that we say that the nullity is complete. Perforce, Rosario Nuguid died
is that of Baby Girl Lastimosa whose mother's name is Benita Lastimosa. intestate.

Furthermore, the absence of a record of the birth of petitioner Violeta Cabatbat in There is no other provision in the will before us except the institution of petitioner
the Office of the Civil Registrar General, puts a cloud on the genuineness of her as universal heir. That institution, by itself, is null and void. And, intestate
Exhibit 5. succession ensues.The will here does not explicitly disinherit the testatrix's parents,
the forced heirs. It simply omits their names altogether. Said will rather than be
Petitioners' recourse to Article 263 of the New Civil Code is not well-taken. This labeled ineffective disinheritance is clearly one in which the said forced heirs suffer
legal provision refers to an action to impugn legitimacy. It is inapplicable to this from preterition.
case because this is not an action to impugn the legitimacy of a child, but an
action of the private respondents to claim their inheritance as legal heirs of their The will here does not explicitly disinherit the testatrix's parents, the forced heirs. It
childless deceased aunt. They do not claim that petitioner Violeta Cabatbat Lim is simply omits their names altogether. Said will rather than be labeled ineffective
an illegitimate child of the deceased, but that she is not the decedent's child at disinheritance is clearly one in which the said forced heirs suffer from preterition.
all. Being neither a legally adopted child, nor an acknowledged natural child, nor
a child by legal fiction of Esperanza Cabatbat, Violeta is not a legal heir of the Legal spouse: one with whom the decedent or testator had a valid marriage before
deceased. the time of death.
Note: There must not have been an adjudicated legal separation decree
Teotico v. Del Val, March 26, 1965 between the married parties. If there is any, the surviving spouse must
The relationship established by the adoption, however, is limited to the adopting not be the guilty spouse, otherwise, he/she is disqualified to inherit.
parent, and does not extend to his other relatives, except as expressly provided by
law. Thus, the adopted child cannot be considered as a relative of the ascendants Valid marriage: one that has complied with the essential and formal requisites of
and collaterals of the adopting parents, nor of the legitimate children which they the family code.
may have after the adoption, except that the law imposes certain impediments to
marriage by reason of adoption. Neither are the children of the adopted Enrico v. Heirs of Sps. Medinaceli, September 28, 2007
considered as descendants of the adopter. The relationship created is exclusively A.M. No. 02-11-10-SC (took effect on 15 March 2003)
between the adopter and the adopted, and does not extend to the relatives of
either. The marriage of petitioner to Eulogio was celebrated on 26 August 2004, and it
squarely falls within the ambit of A.M. No. 02-11-10-SC.
Relationship by adoption is limited to adopter and adopted, and does not extend to
other members of the family of either; but the adopted is prohibited to marry the Section 2. Petition for declaration of absolute nullity of void marriages.
children of the adopter to avoid scandal. (a) Who may file. A petition for declaration of absolute nullity of void
marriage may be filed solely by the husband or the wife. (a) Who may file. A petition for declaration of absolute nullity of void marriage
may be filed solely by the husband or the wife.
Such petition cannot be filed by compulsory or intestate heirs of the spouses or by
the State. The Committee is of the belief that they do not have a legal right to file A remand of the case to the trial court for reception of additional evidence is
the petition. Compulsory or intestate heirs have only inchoate rights prior to the necessary to determine whether respondent Orlando was granted a divorce decree
death of their predecessor, and hence can only question the validity of the and whether the foreign law which granted the same allows or restricts remarriage.
marriage of the spouses upon the death of a spouse in a proceeding for the
settlement of the estate of the deceased spouse filed in the regular courts. If it is proved that a valid divorce decree was obtained and the same did not allow
respondent Orlandos remarriage, then the trial court should declare respondents
They can still protect their successional right, XXX compulsory or intestate heirs can marriage as bigamous and void ab initio but reduce the amount of moral damages
still question the validity of the marriage of the spouses, not in a proceeding for from P300,000.00 to P50,000.00 and exemplary damages from P200,000.00 to
declaration of nullity, but upon the death of a spouse in a proceeding for the P25,000.00. On the contrary, if it is proved that a valid divorce decree was obtained
settlement of the estate of the deceased spouse filed in the regular courts. which allowed Orlando to remarry, then the trial court must dismiss the instant
petition to declare nullity of marriage on the ground that petitioner Felicitas Amor-
Catalan v. CA, February 6, 2007 Catalan lacks legal personality to file the same.
Divorce means the legal dissolution of a lawful union for a cause arising after
marriage. But divorces are of different types. The two basic ones are: Quita v. CA, December 22, 1998
(1) absolute divorce or a vinculo matrimonii and When asked whether she was an American citizen petitioner answered that she
(2) limited divorce or a mensa et thoro. was since 1954.[19] Significantly, the decree of divorce of petitioner and Arturo
was obtained in the same year. Petitioner however did not bother to file a reply
The first kind terminates the marriage, while the second suspends it and leaves the memorandum to erase the uncertainty about her citizenship at the time of their
bond in full force. A divorce obtained abroad by an alien may be recognized in our divorce, a factual issue requiring hearings to be conducted by the trial court.
jurisdiction, provided such decree is valid according to the national law of the
foreigner. However, before it can be recognized by our courts, the party pleading it We emphasize however that the question to be determined by the trial court
must prove the divorce as a fact and demonstrate its conformity to the foreign law should be limited only to the right of petitioner to inherit from Arturo as his
allowing it, which must be proved considering that our courts cannot take judicial surviving spouse. Private respondent's claim to heirship was already resolved by
notice of foreign laws. the trial court. She and Arturo were married on 22 April 1947 while the prior
marriage of petitioner and Arturo was subsisting thereby resulting in a bigamous
Without the divorce decree and foreign law as part of the evidence, we cannot rule marriage considered void from the beginning under Arts. 80 and 83 of the Civil
on the issue of whether petitioner has the personality to file the petition for Code. Consequently, she is not a surviving spouse that can inherit from him as this
declaration of nullity of marriage. status presupposes a legitimate relationship.

A petition to declare the nullity of marriage, like any other actions, must be Illegitimate children:
prosecuted or defended in the name of the real party in interest27 and must be 1. Born and conceived out of wedlock between parents who are
based on a cause of action. incapacitated to marry each other
2. Born and conceived out of wedlock between parents who are capacitated
Significantly, Section 2(a) of The Rule on Declaration of Absolute Nullity of Void but are not married
Marriages and Annulment of Voidable Marriages, which took effect on March 15, 3. Born and conceived during a void marriage except under art 36 and 35 (6)
2003, now specifically provides: of the Family Code

SECTION 2. Petition for declaration of absolute nullity of void marriages.


8
Proof of illegitimate filiation : Art. 285. The action for the recognition of natural children may be brought only
1. Record of birth, provided no fraudulent entry is made therein during the lifetime of the presumed parents, except in the following cases:
2. Final judgment j declaring the child as illegitimate
3. Written admission/acknowledgement of paternity or filiation in a public (1) If the father or mother died during the minority of the child, in which case the
or private instrument, as long as signed by the parent latter may file the action before the expiration of four years from the attainment of
4. Open and continuous possession of the status of an illegitimate child his majority;
5. Other means allowed by Revised Rules of Court
De Jesus v. Estate of Dizon, October 2, 2001
Question: Can a DNA evidence be still admitted after the death of the in an attempt to establish their illegitimate filiation to the late Juan G. Dizon,
putative father? petitioners, in effect, would impugn their legitimate status as being children of
Answer: This remains unsettled. Danilo de Jesus and Carolina Aves de Jesus. This step cannot be aptly done because
How many ascendants can a person have? the law itself establishes the legitimacy of children conceived or born during the
Answer: If recognized illegitimate, only the mother and father. If marriage of the parents. The presumption of legitimacy fixes a civil status for the
unrecognized illegitimate (has no paternal relatives), mother takes it child born in wedlock, and only the father, or in exceptional instances the latters
all. heirs, can contest in an appropriate action the legitimacy of a child born to his wife.
Thus, it is only when the legitimacy of a child has been successfully impugned that
Aruego, Jr. v. CA, March 13, 1996 the paternity of the husband can be rejected.
The right of action of the minor child has been vested by the filing of the complaint
in court under the regime of the Civil Code and prior to the effectivity of the Family The rule that the written acknowledgment made by the deceased Juan G. Dizon
Code. XXX The fact of filing of the petition already vested in the petitioner her right establishes petitioners alleged illegitimate filiation to the decedent cannot be
to file it and to have the same proceed to final adjudication in accordance with the validly invoked to be of any relevance in this instance. This issue, i.e., whether
law in force at the time, and such right can no longer be prejudiced or impaired by petitioners are indeed the acknowledged illegitimate offsprings of the decedent,
the enactment of a new law. cannot be aptly adjudicated without an action having been first been instituted to
impugn their legitimacy as being the children of Danilo B. de Jesus and Carolina
The action brought by private respondent Antonia Aruego for compulsory Aves de Jesus born in lawful wedlock. Jurisprudence is strongly settled that the
recognition and enforcement of successional rights which was filed prior to the paramount declaration of legitimacy by law cannot be attacked collaterally, one
advent of the Family Code, must be governed by Article 285 of the Civil Code and that can only be repudiated or contested in a direct suit specifically brought for
not by Article 175, paragraph 2 of the Family Code. The present law cannot be that purpose.
given retroactive effect insofar as the instant case is concerned, as its application
will prejudice the vested right of private respondent to have her case decided Guy v. CA, September 15, 2006
under Article 285 of the Civil Code. The Release and Waiver of Claim does not state with clarity the purpose of its
execution. It merely states that Remedios received P300,000.00 and an educational
The action was not yet barred, notwithstanding the fact that it was brought when plan for her minor daughters "by way of financial assistance and in full settlement
the putative father was already deceased, since private respondent was then still a of any and all claims of whatsoever nature and kind x x x against the estate of the
minor when it was filed, an exception to the general rule provided under Article late Rufino Guy Susim." Considering that the document did not specifically mention
285 of the Civil Code. private respondents' hereditary share in the estate of Sima Wei, it cannot be
construed as a waiver of successional rights.
Book I, Title VIII of the Civil Code on PERSONS:
Even assuming that Remedios truly waived the hereditary rights of private
respondents, such waiver will not bar the latter's claim. Article 1044 of the Civil
8
In items 1 to 3, filiation must be established during the lifetime of the child. In Code, provides:
items 4 to 5, filiation must be establisged during the lifetime of the putative parent.
ART. 1044. Any person having the free disposal of his property may accept or as being the children of Buevaventura Cristobal with his first wife. Testimonies of
repudiate an inheritance. witnesses were also presented to prove filiation by continuous possession of the
Any inheritance left to minors or incapacitated persons may be accepted by their status as a legitimate child.
parents or guardians. Parents or guardians may repudiate the inheritance left to
their wards only by judicial authorization. In contrast, it bears to point out that private respondents were unable to present
any proof to refute the petitioners claim and evidences of filiation to
Not having been judicially authorized, the Release and Waiver of Claim in the Buenaventura Cristobal.
instant case is void and will not bar private respondents from asserting their rights
as heirs of the deceased. The foregoing evidence thus suffice to convince this Court that petitioners are,
indeed, children of the late Buenaventura Cristobal during the first marriage.
Waiver is the intentional relinquishment of a known right. Where one lacks
knowledge of a right, there is no basis upon which waiver of it can rest. Ignorance Heirs of Maramag v. Maramag, June 5, 2009
of a material fact negates waiver, and waiver cannot be established by a consent Petitioners are third parties to the insurance contracts with Insular and Grepalife
given under a mistake or misapprehension of fact. and, thus, are not entitled to the proceeds thereof. Accordingly, respondents
Insular and Grepalife have no legal obligation to turn over the insurance proceeds
In the present case, private respondents could not have possibly waived their to petitioners. The revocation of Eva as a beneficiary in one policy and her
successional rights because they are yet to prove their status as acknowledged disqualification as such in another are of no moment considering that the
illegitimate children of the deceased. Petitioner himself has consistently denied designation of the illegitimate children as beneficiaries in Loretos insurance
that private respondents are his co-heirs. It would thus be inconsistent to rule that policies remains valid. Because no legal proscription exists in naming as
they waived their hereditary rights when petitioner claims that they do not have beneficiaries the children of illicit relationships by the insured, the shares of Eva in
such right. Hence, petitioner's invocation of waiver on the part of private the insurance proceeds, whether forfeited by the court in view of the prohibition
respondents must fail. on donations under Article 739 of the Civil Code or by the insurers themselves for
reasons based on the insurance contracts, must be awarded to the said illegitimate
While the original action filed by private respondents was a petition for letters of children, the designated beneficiaries, to the exclusion of petitioners. It is only in
administration, the trial court is not precluded from receiving evidence on private cases where the insured has not designated any beneficiary, or when the
respondents' filiation. Its jurisdiction extends to matters incidental and collateral to designated beneficiary is disqualified by law to receive the proceeds, that the
the exercise of its recognized powers in handling the settlement of the estate, insurance policy proceeds shall redound to the benefit of the estate of the
including the determination of the status of each heir.20 That the two causes of insured.
action, one to compel recognition and the other to claim inheritance, may be
joined in one complaint is not new in our jurisprudence. Maloles II v. Phillips, January 31, 2000
Even if petitioner is the nearest next of kin of Dr. De Santos, he cannot be
Cruz v. Cristobal, August 7, 2006 considered an "heir" of the testator. It is a fundamental rule of testamentary
In this case, the baptismal certificates of Elisa, Anselmo, and the late Socorro were succession that one who has no compulsory or forced heirs may dispose of his
presented. Baptismal certificate is one of the acceptable documentary evidence to entire estate by will. Thus, Art. 842 of the Civil Code provides:
prove filiation in accordance with the Rules of Court and jurisprudence. In the case
of Mercedes, who was born on 31 January 1909, she produced a certification One who has no compulsory heirs may dispose by will of all his estate or any part of
issued by the Office of the Local Civil Registrar of San Juan, Metro Manila, attesting it in favor of any person having capacity to succeed.
to the fact that records of birth for the years 1901, 1909, 1932 to 1939, 1940, 1943,
and 1948 were all destroyed due to ordinary wear and tear. One who has compulsory heirs may dispose of his estate provided he does not
contravene the provisions of this Code with regard to the legitimate of said heirs.
Petitioners likewise presented Ester Santos as witness who testified that
petitioners enjoyed that common reputation in the community where they reside Petitioner, as nephew of the testator, is not a compulsory heir who may have been
preterited in the testators will. Surviving spouse 1/8 of the estate

Distribution of Legitimes Surviving spouse alone GR: of the estate


Legitimate children alone of the estate divided equally XPN: 1/3 if marriage is in articulo mortis
and has been living together as husband
Legitimate children of the estate divided equally and wife for less than five year, and the
Surviving spouse Share equal to that of one legitimate decedent died within three months
child after the celebration of the marriage
XPN to XPN: if marriage is in articulo
One legitimate child of the estate divided equally mortis and has been living together as
Surviving spouse of the estate husband and wife for five years or more

Legitimate children of the estate divided equally Surviving spouse 1/3 of the estate
Illegitimate children Share equal to of one legitimate Illegitimate children 1/3 of the estate
child, each
Surviving spouse of the estate
Legitimate children of the estate divided equally Illegitimate parents of the estate
Illegitimate children (subject to Share equal to of one legitimate child,
reduction) each Illegitimate children alone of the estate
Note: Totality of the inheritance must
not exceed the free portion Illegitimate parents alone of the estate
Surviving spouse (preferred) Share equal to that of one legitimate
child Rights involving compulsory heirs
Right to accept or reject inheritance: Acceptance depends solely upon
One legitimate child of the estate divided equally the will of the heir
Illegitimate children (subject to Share equal to of one legitimate child, There are no obligation on the part of a compulsory heir to
reduction) each receive the legitime.
Note: Totality of the inheritance must Right to intervene in proceedings involving the inheritance: Only
not exceed the free portion compulsory heirs whose rights have been injured or prejudiced would be
Surviving spouse (preferred) of the estate entitled to intervene in a case involving said property to protect their
interests.
Legitimate parents alone of the estate Vested right to acquire the legitime: From the time of his birth, a person
has a vested right to acquire the inheritance from his ascendants.
BUT the transmission of rights to succession are transmitted
Legitimate parents of the estate
from the moment of death of decedent.
Illegitimate children of the estate
Right to demand payment of legitime in form of property: Compulsory
heir has no right to demand that his legitime be paid in the form of
Legitimate parents of the estate
property, real or personal, instead of being paid in cash, when no
Surviving spouse of the estate property is available for the purpose.
Value when payment in cash: Reckoned from the value at the
Legitimate parents of the estate moment of death of decedent.
Illegitimate children of the estate
In accordance with law, therefore, Anacleto Maalac was obliged to reserve the
Compulsory heir can claim only what is Heir is entitled to ask, not merely for portion he had thus inherited from his daughter, for the benefit of appellees, Leona
lacking, to fully satisfy such legitime. the completion of his legitime, but for and Evarista Aglibot, aunts of Juliana on the maternal side and who are, therefore,
the annulment of the institution of heir. her relative within the third degree belonging to the line from which said property
He cannot ask for annulment of the will came.
itself except dispositions to the extent
that they are inofficious. Solivio v. CA, February 12, 1990
The property of the deceased, Esteban Javellana, Jr., is not reservable property, for
9
RESERVA TRONCAL (Lineal, familiar, extraordinaria or semitroncal) Esteban, Jr. was not an ascendant, but the descendant of his mother, Salustia
Solivio, from whom he inherited the properties in question.
Art. 891: The ascendant who inherits from his descendant any property which the
latter may have acquired by gratuitous title from another ascendant, or a brother Therefore, he did not hold his inheritance subject to a reservation in favor of his
or sister, is obliged to reserve such property as he may have acquired by aunt, Celedonia Solivio, who is his relative within the third degree on his mother's
operation of law for the benefit of relatives who are within the third degree and side. The reserva troncal applies to properties inherited by an ascendant from a
who belong to the line from which said property came. descendant who inherited it from another ascendant or 9 brother or sister. It does
not apply to property inherited by a descendant from his ascendant, the reverse of
Purpose of reserva troncal the situation covered by Article 891.
1. It is a special rule designated to assure the return of reservable property
to the third degree relatives belonging to the line from which the Requisites of reserva troncal
property originally came, and to avoid its being dissipated by the relatives 1. A property (reservable property) was acquired or inherited by a
of the inheriting ascendant. descendant by gratuitous title (i.e. by donation or succession, testate or
2. It is to avoid the danger that property existing for many years in the intestate) from an ascendant or by an individual from a (half) brother or
family's patrimony might pass gratuitously to outsiders through the (half) sister (source or origin)
accident of marriage and untimely death. 2. The descendant or individual (prepositus) died without legitimate issue or
3. It is to bring back the property back to the line of origin. heir in the direct descending line
4. It operates as a form of compensation for the lack of representation in 3. The property was inherited by another ascendant of the descendant or
the ascending line. by an ascendant of the individual, belonging to another line, by operation
of law (i.e. by intestate succession or by way of legitime in testamentary
Aglibot v. Maalac, April 25, 1962 succession)
The land in question is reservable property in accordance with the provisions of 4. There are relatives within the third degree from the descendant
Article 811 of the Spanish Civil Code (Art. 891 of the New Civil Code). Both parties belonging to the "line from which said property came."
now admit that the entire parcel covered by Original Certificate of Title No. 10
belonged to the conjugal partnership of the spouses Anacleto Maalac and Maria Three transmissions involved
Aglibot; that upon the death of the latter on October 2, 1906, their only daughter, 1. First transmission: By gratuitous title, from an ascendant or (half) brother
Juliana Maalac, inherited one-half of the property, the other pertaining to her or sister to the decedent (descendant/ brother or sister)
father as his share in the conjugal partnership; that upon the death of Juliana 2. Second transmission: Posterior transmission by operation of law, from
Maalac on October 2, 1920 without leaving any descendant, her father inherited the decedent in favor of another ascendant or an ascendant belonging to
her one-half portion of said property. another line, which two transmissions precede the reservation.
3. Third transmission: Transmission of the same property from the reservor
to the reservee or reservees.
9
For precise and concise discussion on reserve troncal, read Gonzales v. CFI, May
19, 1981 When is there reserva troncal?
b) By any kind of succession
Note: No inquiry is to be made beyond the ORIGIN. It does not matter
who the owner of the property was before it was acquired by the Origin.
1. The 2. That said person dies without legitimate issue/descendants
prope Only a legitimate descendant will prevent the legitimate ascendant from
rty inheriting by operation by law.
was 3. That the property is inherited by another ascendant (RESERVISTA)
acquir By operation of law (Second transfer)
ed by a) By legitimes
a b) By intestacy
perso Note: It is the Second transfer that creates the reserve
n 4. That there are relatives (RESERVATARIOS) within the 3rd degree (from
(PREP prepositus) belonging to the line from which said property came.
OSITU Note: Here, there is a Third transfer as the effect of reserve
S) 5. Note: All the relationships among the parties must be legitimate. The
from provisions of Art. 891 apply only to legitimate relatives.
an
ascen Who are the parties involved in the reserva troncal?
dant, ORIGIN
broth The transferor in the first transfer
er or The ascendant, brother or sister of the prepositus
sister
(ORIGI Note: In case of brother or sister, there are two schools of thought:
N) 1. That the relationship must be half-blood because if it is full-blood, it
By would not be possible to identify the line of origin, either paternal or
gratui maternal.
tous 2. There is no need to distinguish between full or half-blood brother or
title sister.
(First
transf PREPOSITUS
er) The first transferee
a) B The descendant, brother or sister of the origin
y Receives the property from the origin by gratuitous title
While the property is with the prepositus, there is still no reserva
d He is the arbiter of the reserva (Sanchez Roman)
o
n He still has all the rights of ownership and may prevent the reserva from arising by:
a 1. Substituting or alienating the proeprty
t 2. Bequeathing (through a will) or devising it to either the potential
i reservista or to 3rd persons
o 3. Partitioning it and assigning it to parties other than the potential
n reservista
RESERVISTA Rule: Reservatarios need not be alive when the reserva is created. This is because
The other ascendant of the prepositus of whatever degree the reserva is in favor of a class.
He is the one obliged to reserve As long as the reservatario is alive at the time of the reservista's death,
The reserva arises only at the time the reservista receives the property even if conceived and born after the prepositus' death.
from the prepositus.
Upon the reservista's death, the property passes by strict operation of From whom do reservatarios inherit?
law according to the rules of intestate succession to the proper Prepositus not reservista
reservatarios
Nieva v. Alcala, October 27, 1920
What is the nature of reservista's right? Issue: Whether or not an illegitimate relative within the third degree is entitled to
1. The reservista's right over the property is one of ownership. the reserva troncal provided for by article 811 of the (Old) Civil Code.
2. The ownership is subject to a resolutory condition: the existence of
reservatarios at the time of the reservista's death Persons in whose favor the reservation is established. XXX The reservation is
The right of reservista terminates upon the happening of the established in favor of the parents who are within the third degree and belong to
resolutory condition. the line from which the properties came.
3. The right of ownership is alienable (subject to the same resolutory
condition) "It treats of blood relationship, which is applicable to questions on succession,
4. The reservista's right of ownership is registrable. according to articles 915 to 920. It could not be otherwise, because relationship by
affinity is established between each spouse and the family of the other, by
Edroso v. Sablan, September 13, 1913 marriage, and to admit it, would be to favor the transmission of the properties of
The reservista obtains absolute ownership over the reservable property if: the family of one spouse to that of the other, which is just what this article intends
1. There be NO relatives within the 3rd degree in the line from which the to prevent.
property came, OR
2. Said relatives die before the reservista (subject to right of representation "It also treats of legitimate relationship. The person obliged to reserve is a
within 3rd degree) legitimate ascendant who inherits from a descendant property which proceeds
from the same legitimate family, and this being true, there can be no question,
Gonzales v. CFI because the line from which the properties proceed must be the line of that family
Does the reservista have the power to appoint, by will, who among the and only in favor of that line is the reservation established. Furthermore, we have
reservatarios will get the reservable property? already said, the object is to protect the patrimony of the legitimate family,
following the precedents of the foral law. And it could not be otherwise. Article 943
NO, because the reserved property does not form part of her estate. denies to legitimate parents the right to succeed the natural child and vice versa,
THUS the reservista may not convey by will to the reservatarios within from which it must be deduced that natural parents neither have the right to
the 3rd degree and bypass the reservatarios within 2nd degree the inherit from legitimate ones; the law in the article cited establishes a barrier
reserved property. between the two families; properties of the legitimate family shall never pass by
10
operation of law to the natural family."
RESERVATARIOS
The relatives benefited Tioco v. Camacho, Sept. 24, 1986
The reserva is in favor of a class collectively ISSUE: Whether Camacho (niece of the prepositus) excluded the plaintiffs (aunt and
Two requisites: uncles of the prepositus) in inheriting over the reservable property.
1. Must be within the 3rd degree of consanguinity from the prepositus
2. Must belong to the line from which the property came. 10
Ruled in the advent of the Old Civil Code.
operation of law the owner of the reserved property without need of estate
YES. The Court held that defendant-appellant Dalisay Tongko-Camacho is entitled proceedings.
to the entirety of the reversionary property to the exclusion of the plaintiffs-
appellees. What is the nature of resarvatarios right?
1. The resarvatarios have a right of expectancy over the property
Reversion of the reservable property being governed by the rules on intestate 2. The right is subject to a suspensive condition (the expectancy will ripen
succession, the plaintiffs-appellees must be held without any right thereto because, into ownership only if the resarvatarios survive the reservista)
as aunt and uncles, respectively, of Faustino Dizon (the praepositus), they are 3. The right is alienable (subject to the same suspensive condition)
excluded from the succession by his niece, the defendant-appellant, although they 4. The reservatarios right is registrable
are related to him within the same degree as the latter.
Sienes v. Esparcia
Other discussions: The reserva constitutes a real right which the reservatarios may alienate and
Reserva vis-a-vis intestate succession: The stated purpose of the reserva is dispose of, conditionally, the condition being that the alienation shall transfer
accomplished once the property has devolved to the specified relatives of the line ownership to the buyer if and only if the reservatarios survive the reservista.
of origin. But from this time on, there is no further occasion for its application. In
the relations between one reservatario and another of the same degree there is no Any sale made by the reservatario prior to the death of the reservista became
call for applying Art. 891 any longer; wherefore, the respective share of each in the effective because of the occurrence of suspensive condition (survival of the
reversionary property should be governed by the ordinary rules of intestate reservatarios)
succession.
Is there a preference among reservatarios?
Right of representation in RT: The right of representation cannot be alleged when YES, the rules of intestate succession are followed, the reservations
the one claiming same as a reservatario of the reservable property is not among nearer in degree to the prepositus will exclude those more remotely
the relatives within the third degree belonging to the line from which such related.
property came. Relatives of the fourth and the succeeding degrees can never be There is no equal sharing in the class
considered as reservatarios, since the law does not recognize them as such.
Padura v. Baldovino
There is right of representation on the part of reservatarios who are within the Upon the death of the ascendant reservista, the reservable property should pass,
third degree mentioned by law, as in the case of nephews of the deceased person NOT to ALL the reservatarios as a class, but only to those nearest in degree to the
from whom the reservable property came. descendant-prepositus, excluding the reservatarios of a more remote degree.

Summary: The reserva troncal merely determines the group of relatives Note: The reserva troncal merely determines the group of relatives (r'ios) to whom
reservatarios to whom the property should be returned; but within that group, the the property should be returned, but within that group, the individual right to the
individual right to the property should be decided by the applicable rules of property should be decided by the applicable rules of ordinary intestate succession
ordinary intestate succession, since Art. 891 does not specify otherwise. since Art. 891 does not specify otherwise

Cano v. Director Can there be representation among r'ios?


The resarvatarios are not the reservista's successors. The reservatarios receive the Yes.
property as a conditional heir of the prepositus since the property is merely Tip: There is only one instance of representation among r'ios. What? In
reverting to the line of origin from which it had temporarily and accidentally case of the prepositus being survived by his brother or sister and children
strayed during the reservista's lifetime. of a predeceased or incapacitated brother or sister.

Since the reservatarios nearest to the prepositus becomes automatically and by Florentino v. Florentino
The right of representation cannot be alleged when the one claiming the same as a
reservatario is not among the relatives within 3rd degree belonging to the same As to the sale of subject properties, the Court affirmed the order of lower courts
line from which the property came. against plaintiff Agro Industrial Coconut Cooperative to convey the subject
properties back to reservatarios. The Court held that there is sufficient proof that
There is a right of representation on the part of the reservatarios who are within the petitioners had actual knowledge of the reservable character of the properties
3rd degree, as in the case of nephew and nieces of the deceased from whom the before they bought the same from Consuelo as evidenced by the Deed of Sale
reservable property came. executed by the parties.

Gonzales v. CFI Moreover, the Court a quo found that the petitioners and private respondents
The reservatarios do not inherit from he reservista but from the descendant were long time acquaintances and that they knew all along that the properties
prepositus, of whom the reservatarios are the heirs mortis causa, subject to the litigated in this case were inherited by Raul Balantakbo from his father and from his
condition that they must survive the reservista. maternal grandmother, and that Consuelo Vda. de Balantakbo inherited these
properties from his son Raul.
What kind of property may be included in the reserva troncal?
Any kind. Other discussions:
Movable or immovable, fungible or infungible, fruit-bearing or not, Nature of reservable character: The reservable character of a property is but a
corporeal or incorporeal. resolutory condition of the ascendant reservor's right of ownership.
Money? YES, provided it is in a form of deposit.
If condition is fulfilled: If the condition is fulfilled, that is, if upon the ascendant
May the property be substituted? reservor's death there are relatives having the status provided in Article 811 (Art.
NO. If the prepositus substitutes the property (by selling, barter or 891, New Civil Code), the property passes, in accordance with this special order of
exchange), then the substituted property will not be reservable. succession, to said relatives, or to the nearest of kin among them.
After all the prepositus has the power to decide if a reserva will arise.
The prepositus has plenary powers of ownership. If condition not fulfilled: But if this condition is not fulfilled, the property is
Remember: The reserva commences only when the property is received released and will be adjudicated in accordance with the regular order of
by the reservista. succession. The fulfillment or non-fulfillment of the resolutory condition, the
efficacy or cessation of the reservation, the acquisition of rights or loss of the
Sumaya v. IAC, 201 S 178 vested ones, are phenomena which have nothing to do with whether the
ISSUE: Whether or not the affidavit of self-adjudication executed by Consuelo reservation has been noted or not in the certificate of title to the property.
stating the source of the properties thereby showing the reservable nature of the
properties is sufficient annotation of the reservable nature of the same. Purpose of annotation:
1. The purpose of the notation is nothing more than to afford to the
NO. The Court disagreed with the disposition of the appellate court that there is no persons entitled to the reservation, if any, due protection against any act
need to register the reservable character of the property, if only for the protection of the reservor, which may make it ineffective.
of the reservees (reservatarios), against innocent third persons. 2. The act of registration shall be the operative act to convey or affect the
land insofar as third persons are concerned.
In this case, the affidavit of self adjudication executed by Consuelo vda. de
Balantakbo which contained a statement that the property was inherited from a Purchaser in value, effect: The reservable character of a property may be lost to
descendant, Raul, which has likewise inherited by the latter from another innocent purchasers for value.
ascendant, was registered with the Registry of Property. The failure of the Register
of Deeds to annotate the reservable character of the property in the certificate of Right of reservatarios commences: The cause of action of the reservees (R's) did
title cannot be attributed to Consuelo. not commence upon the death of the propositus Raul Balantakbo on June 13, 1952
but upon the death of the reservor (R's) Consuelo Vda. de Balantakbo on June 3, 2. There is a mixture of properties: there is left in prepositus' estate, upon
1968. his death, property reservable and property not reservable

Right of ownership over reserved properties: Example:


No right of ownership during the lifetime of the reservor. If the prepositus institutes the reservista, who is also a compulsory heir
Only when the reservista should die before the reservees will the latter to 1/2 of his (P) estate but his estate has mixed properties. Note that P
acquire the reserved property, thus creating a fee simple, and only then has no legitimate issue but he has reservatarios such as brothers or
will they take their place in the succession of the descendant of whom sisters.
they are relatives within the third degree In that case, 1/2 of P's estate goes to the reservista as legitime, the other
1/2 goes to reservista by virtue of the will. In effect, the whole estate is
RT extinguished: The reserva is extinguished upon the death of the reservor, as it given to the ascendant-reservista.
then becomes a right of full ownership on the part of the reservatarios, who can However, note that prepositus has mixed properties. The problem arises
bring a reivindicatory suit therefor. as to which the properties the reserva is created.

Gonzales v. CFI, 104 S 179 RESERVA MAXIMA RESERVA MINIMA


ISSUE: Whether Mrs. Legarda, as reservor, could convey the reservable properties The property from the Origin (the Take the proportion from both kinds of
by will or mortis causa to the reservees within the third degree (her sixteen whole of which) s subject to reserva. properties (both from the Origin and his
grandchildren) to the exclusion of the reservees in the second degree, her three You have to fit as much of the own Acquisition).
daughters and three sons. reservable property into the 1/2
legitime. 1/2 from the Origin's property and 1/2
NO. Mrs. Legarda could not convey in her holographic will to her sixteen from own-acquired property.
grandchildren the reservable properties which she had inherited from her daughter As much as of the potentially Every single property (regardless if
Filomena because the reservable properties did not form part of her estate. The reservable property as possible must be origin or own-acquired) will pass partly
reservor cannot make a disposition mortis causa of the reservable properties as deemed included in that part that by operation of law, and partly by the
long as the reservees survived the reservor. passes by operation by law. will, in the same proportion that the
part given by the will bears in relation to
Article 891 clearly indicates that the reservable properties should be inherited by the part not given.
all the nearest relatives within the third degree from the prepositus who in this
case are the six children of Mrs. Legarda. She could not select the reservees to Note: There may be other portions
whom the reservable property should be given and deprive the other reservees of reservable depending on how much the
their share therein. prepositus institutes in favor of the
ascendant reservista.
To allow the reservor in this case to make a testamentary disposition of the
reservable properties in favor of the reservees in the third degree and, Reserva Minima is more accepted in the
consequently, to ignore the reservees in the second degree would be a glaring Philippines
violation of article 891.
Rights of reservista
RESERVA MAXIMA & RESERVA MINIMA 1. He has the legal title and dominion to the property
2. He has the right of full use and enjoyment of the property during his
Requisites: lifetime
1. If the prepositus makes a will instituting the ascendant-reservista to the 3. He may alienate or encumber it subject to reservation
whole or part of the free portion; AND
Effects of alienation by the reservista 3. To alienate his rights as reservatario by an act inter vivos or mortis causa
1. The alienation of reservista transmits only his revocable and conditional Note: As long as the reservista is alive, they cannot impugn any alienation
ownership. or encumbrance effected by him.
When revoked: The transferee's rights are revoked upon the
survival of the reservees at the time of the death of the After the death of reservista
reservor 1. To take the reservable property, if he is the reservee nearest in the
When indefeasible: When all the reservees predecease the degree of relationship to the prepositus
reservista subject to right of representation when proper 2. To recover the property from the transferee chargeable with knowledge
2. If the reservable property is registered land and its reservable character is of its reservable character
not annotated, the transferee in good faith and for value acquires a 3. To hold the reservista's estate liable for loss or deterioration of the
good title free from the reserva without prejudice to the right of reservee property or any damage to it due to the fault of the reservor
to be indemnified by the reservor's estate. 4. To foreclose the mortgage or go after any bond or security, if any, that
3. If there are no reservees at the time of the reservor's death, the has been given by the reservor
transferee's title would become absolute. 5. In the case of nephews and nieces of the prepositus, to have the right of
4. Where the reservor caused the registration of an affidavit of self- representation
adjudication of the property in question upon the death of the prepositus
and later sold the property, the purchaser cannot be considered an Other effects of reservista's death
innocent purchaser for value. 1. The ownership and enjoyment of the property are consolidated in the
reservee.
Obligations of reservista The rules on usufruct may be applied with respect to
1. To make an inventory of the reservable property, indicating its condition improvements existing on the property at the termination of
and value the reserva.
2. To annotate the reservable character of real property in the Registry of 2. The inchoate right to property of the reservee becomes a definite and
Deeds within 90 days from the time he receives the inheritance or from perfect right over it.
the judicial adjudication to him of the property Intestacy is not necessary since transmission takes place by
3. To furnish a bond, security or mortgage to answer the return of property operation of laws.
or its value (caucion) 3. Obligation to deliver the property to the reservee was transferred to the
4. To preserve the property for the reservatarios heirs of reservor
4. The property ceases to be part of the reservor's estate
Rules as to preservation 5. The reserva is extinguished and reservee acquired full right of ownership
1. The reservista may not dispose the reservable property mortis causa so
long as there are reservatarios existing. How is reserva troncal extinguished?
2. Neither may he substitute or exchange it 1. Death of reservista
XPN: Except when absolutely inevitable like if property consists 2. Death of all reservatarios prior to death of reservista.
of fungible goods or things which deteriorate Absolute title consolidates to reservista (from the date of death
of last reservatario)
Rights of reservatarios 3. Renunciation by ALL the reservatarios (but a future reservatarios is not
bound by such renunciation THUS conditional extinguishment)
Before the death of the reservista 4. Total loss of the reserved property (whether fortuitous or not)
1. To compel the annotation of the reservable character of real property if IF with fault or negligence of the reservista: obligation to
the reservor had failed to register the same within 90-day period deliver the reserved property is converted to obligation to pay
2. To demand the giving of security (caucion) by the reservor indemnity (or forfeit caucion)
IF loss due to exercise of eminent domain: just compensation
substitutes the property thus the same is reservable
Testamentary succession takes place by way of a valid will.
5. Confusion or merger of rights between reservista and reservatarios
Must comply on the rules on legitime.
6. Prescription or adverse possession
Prescriptive period only runs at the moment of death of
reservista Art. 783. A will is an act whereby a person is permitted, with the formalities
Immovable property prescribed by law, to control to a certain degree the disposition of his estate, to
a) GF - 10 years take effect after his death.
b) BF - 30 years A will is an instrument of conveyance of property.
Movable property In this kind of succession, persons not entitled by law to inherit, may inherit.
11
a) GF - 4 years Characteristics of a will:
b) BF - 8 years 1. It is a strictly personal act;
Rules: 2. It is an individual and unilateral act;
a) If 3rd person - can be GF or BF 3. It is a free and voluntary act;
b) If heirs of reservista - always BF 4. It is a formal and solemn act;
7. Conveyance to an innocent purchaser for value in good faith 5. It is a disposition of property;
Failure to annotate extinguishes reserva to an innocent 3rd 6. It is an act mortis causa; and
person who is a purchaser in value. 7. It is ambulatory and revocable during the testators lifetime.
12
Characteristics of testamentary act: ability of making a will
Chua v. CFI, August 31, 1977 1. It is a mere statutory right.
Proceeds only from recognition accorded by law to the owner of the
It must be remembered that the petitioners herein are claiming as reservees did
property.
not arise until the time the reservor, Consolacion de la Torre, died in March 1966.
The making of a will is with strict requirements as to form and
When the petitioners therefore filed their complaint to recover the one-half (1/2)
substantial requirements as to stipulations.
portion of Lot 399, they were very much in time to do so.
2. It is a free and voluntary act.
To make a will, one must be legally capacitated whose consent was
Other discussion:
not vitiated at all at the time execution.
3. It is ambulatory.
"The transmission is gratuitous or by gratuitous title when the recipient does not
The will is revocable during the lifetime of the testator.
give anything in return." It matters not whether the property transmitted be or be
4. It is effective mortis causa.
not subject to any prior charges; what is essential is that the transmission be made
Prior to death and even in the presence of a completed will, the
gratuitously, or by an act of mere liberality of the person making it, without
heirs mentioned do not acquire actual right until the death of the
imposing any obligation on the part of the recipient; and that the person receiving
testator.
the property gives or does nothing in return.
Acceptance made by an heir during the lifetime of the testator is
without effect.
It does not matter if later the court orders one of the heirs, in this case Juanito Frias
5. The making of a will must be attended with animus testandi.
Chua, to pay the Standare oil co. of New York the amount of P3,971.20. This does
Animus testandi: intent to dispose of property effective after death.
not change the gratuitous nature of the transmission of the property to him. This
Gratuitous intent on the part of the testator to transmit title or
being the case the lot in question is subject to reserva troncal under Art. 891 of the
ownership effective mortis causa.
New Civil Code.

TESTAMENTARY SUCCESSION 11
12
Jurado.
From Atty. Reyes discussion.
No property belonging to the estate or any portion thereof may be whole property of the spouses both conjugal and paraphernal goes to the survivor,
conveyed in the absence of animus testandi. may be tempted to kill or dispose of the other.
6. It is a unilateral act.
Expressive of the sole intent and discretion of the testator as to how De La Cerna v. Potot, December 23, 1964
the property shall be distributed and disposed of after his demise. The appealed decision correctly held that the final decree of probate, entered in
Consent of another is totally unnecessary in will making. 1939 by the Court of First Instance of Cebu (when the testator, Bernabe de la
Joint will: a will of two or more persons by the same action, in the Cerna, died), has conclusive effect as to his last will and testament despite the fact
same instrument, simultaneously executed either for their mutual or that even then the Civil Code already decreed the invalidity of joint wills, whether
reciprocal benefit or for the benefit of a third person, and is in favor of the joint testators, reciprocally, or in favor of a third party (Art. 669, old
considered void whenever executed Civil Code). The error thus committed by the probate court was an error of law,
o Rationale for prohibition: that should have been corrected by appeal, but which did not affect the jurisdiction
a) To protect creditors; and of the probate court, nor the conclusive effect of its final decision, however
b) To protect one of the parties from being unduly influenced erroneous.
or coerced into the making thereof.
o It would entail unnecessary expense and inconvenience to have But the Court of Appeals should have taken into account also, to avoid future
the will submitted ofr probate. misunderstanding, that the probate decree in 1989 could only affect the share of
o If solemnized validly abroad, lex loci celebrationis will not the deceased husband, Bernabe de la Cerna.
apply.
NOT joint wills: It follows that the validity of the joint will, in so far as the estate of the wife was
1. Those made on a single sheet of paper, the first on the front, the concerned, must be, on her death, reexamined and adjudicated de novo, since a
second on the reverse side (there are two wills here). joint will is considered a separate will of each testator. Thus regarded, the holding
2. Those made even on the same page with or without a dividing line of the court of First Instance of Cebu that the joint will is one prohibited by law was
between them, but neither combining the signature of BOTH correct as to the participation of the deceased Gervasia Rebaca in the properties in
together (there are two wills here which are independent of each question.
other.
The undivided interest of Gervasia Rebaca should pass upon her death to her heirs
Dacanay v. Florendo, September 19, 1950 intestate, and not exclusively to the testamentary heir, unless some other valid will
The prohibition of article 669 of the Civil Code is directed against the execution of a in her favor is shown to exist, or unless she be the only heir intestate of said
joint will, or the expression by two or more testators of their wills in a single Gervasia.
document and by one act, rather than against mutual or reciprocal wills, which may
13
be separately executed. 7. It is a purely personal act.
The making of a will is expressive of the intent and desire of the
The provision of article 669 of the Civil Code prohibiting the execution of a will by testator, thus it cannot be delegated to a third person.
two or more persons conjointly or in the same instrument either for their If delegated to another person, the provision shall be invalid.
reciprocal benefit or for the benefit of a third person, is not unwise and is not The following cannot be delegated:
against public policy. The reason for this provision, especially as regards husband a) The determination/designation of the heirs who will inherit.
and wife, is that when a will is made jointly or in the same instrument, the spouse b) The determination of the efficacy/duration of such
14
who is more aggressive, stronger in will or character and dominant is liable to designation.
dictate the terms of the will for his or her own benefit or for that of third persons
whom he or she desires to favor. And, where the will is not only joint but 13
Art. 784. The making of a will is a strictly personal act; it cannot be left in whole
reciprocal, either one of the spouses who may happen to be unscrupulous, wicked,
or in part to the discretion of a third person, or accomplished through the
faithless or desperate, knowing as he or she does the terms of the will whereby the
instrumentality of an agent or attorney.
c) The determination as to whether or not the testamentary ascertained from the words of the Will, taking into consideration the circumstances
15
provision shall be operative. under which it was made. Such construction as will sustain and uphold the Will in
d) The determination of the portions that will be given to an heir if all its parts must be adopted.
named or designated an specific property left to a group or
class identified by the testator. Subject Codicil provides that the instituted heir is under obligation to deliver One
The following can be delegated: Hundred (100) piculs of sugar yearly to Marlena Belleza Coscuella. Such obligation
a) The mechanical act of drafting a notarial will. is imposed on the instituted heir, Dr. Jorge Rabadilla, his heirs, and their buyer,
o This presupposes that the notarial will is expressive of the lessee, or mortgagee should they sell, lease, mortgage or otherwise negotiate the
desire of the testator. property involved. The Codicil further provides that in the event that the obligation
b) The act of signing or the affixing of the signature of the testator to deliver the sugar is not respected, Marlena Belleza Coscuella shall seize the
in notarial will if for some reason, the testator cannot property and turn it over to the testatrix's near descendants. The non-performance
personally sign. of the said obligation is thus with the sanction of seizure of the property and
o The testator is authorized by law to appoint someone to reversion thereof to the testatrix's near descendants. Since the said obligation is
sign in the presence of the testator under the direction of clearly imposed by the testatrix, not only on the instituted heir but also on his
the latter. successors-in-interest, the sanction imposed by the testatrix in case of non-
c) The determination of the distribution and delivery of the fulfillment of said obligation should equally apply to the instituted heir and his
property given by the testator to a person or a group of successors-in-interest.
16
persons.
o The determination of who belongs to the group may Similarly unsustainable is petitioner's submission that by virtue of the amicable
designated by the testator to another person, or in default settlement, the said obligation imposed by the Codicil has been assumed by the
thereof, by the ad hoc committee of three: (1) lessee, and whatever obligation petitioner had become the obligation of the lessee;
Municipal/city mayor; (2) M/C treasurer; (3)Judge that petitioner is deemed to have made a substantial and constructive compliance
d) The determination of the specific portions that will pass to a of his obligation through the consummated settlement between the lessee and the
particular person or heir belonging to the same group or class. private respondent, and having consummated a settlement with the petitioner, the
o The testator has already completed the testamentary act of recourse of the private respondent is the fulfillment of the obligation under the
making a will; what he entrusts to the third person are merely amicable settlement and not the seizure of subject property.
the details thereof in order to make the devise or legacy more
effective. Suffice it to state that a Will is a personal, solemn, revocable and free act by
which a person disposes of his property, to take effect after his death.25 Since
Rabadilla v. CA, June 29, 2000 the Will expresses the manner in which a person intends how his properties be
In the interpretation of Wills, when an uncertainty arises on the face of the Will, as disposed, the wishes and desires of the testator must be strictly followed. Thus, a
to the application of any of its provisions, the testator's intention is to be Will cannot be the subject of a compromise agreement which would thereby
defeat the very purpose of making a Will.
14
Art. 785. The duration or efficacy of the designation of heirs, devisees or
Reyes v. CA, October 20, 1997
legatees, or the determination of the portions which they are to take, when
We agree with the Court of Appeals that the trial court relied on uncorroborated
referred to by name, cannot be left to the discretion of a third person.
15 testimonial evidence that Asuncion Reyes was still married to another during the
Art. 787. The testator may not make a testamentary disposition in such manner
time she cohabited with the testator. The testimonies of the witnesses were
that another person has to determine whether or not it is to be operative.
16 merely hearsay and even uncertain as to the whereabouts or existence of Lupo
Art. 786. The testator may entrust to a third person the distribution of specific
Ebarle, the supposed husband of Asuncion. Thus:
property or sums of money that he may leave in general to specified classes or
causes, and also the designation of the persons, institutions or establishments to
The foregoing testimony cannot go against the declaration of the testator that
which such property or sums of money are to be given or applied.
Asuncion "Oning" Reyes is his wife.
Art. 788. If a testamentary disposition admits of different interpretations, in case
Considering that the oppositors never showed any competent evidence, of doubt, that interpretation by which the disposition is to be operative shall be
documentary or otherwise during the trial to show that Asuncion "Oning" Reyes' preferred.
marriage to the testator was inexistent or void, either because of a pre-existing
marriage or adulterous relationship, the trial court gravely erred in striking down Rule: Testacy is preferred to intestacy, since testacy is the express will of
paragraph II (a) and (b) of the subject Last Will and Testament, as void for being the decedent, while intestacy is merely implied.
contrary to law and morals. Said declarations are not sufficient to destroy the Ut res magis valeat quam pereat: That the thing may rather be effective
presumption of marriage. Nor is it enough to overcome the very declaration of the than be without effect.
testator that Asuncion Reyes is his wife. Applicability of rule: This rule applies only in case of doubt.
It is beyond the power of the Court to inquire into the fairness
A will is the testator speaking after death. Its provisions have substantially the or unfairness of any bequest nor sit in judgment upon the
same force and effect in the probate court as if the testator stood before the motives and sentiments of the testator (subject to rules on
court in full life making the declarations by word of mouth as they appear in the legitimes)
will. That was the special purpose of the law in the creation of the instrument If will plainly illegal: Where the disposition is clearly illegal, the
known as the last will and testament. Men wished to speak after they were dead courts are not permitted to read into it a meaning contrary to
and the law, by the creation of that instrument, permitted them to do so. . . . All its plain and ordinary sense in order to save it from nullity.
doubts must be resolved in favor of the testator's having meant just what he said.
Art. 789. When there is an imperfect description, or when no person or property
Petitioners tried to refute this conclusion of the Court of Appeals by presenting exactly answers the description, mistakes and omissions must be corrected, if the
belatedly a copy of the marriage certificate of Asuncion Reyes and Lupo Ebarle. error appears from the context of the will or from extrinsic evidence, excluding
Their failure to present the said certificate before the probate court to support the oral declarations of the testator as to his intention; and when an uncertainty
their position that Asuncion Reyes had an existing marriage with Ebarle constituted arises upon the face of the will, as to the application of any of its provisions, the
a waiver and the same evidence can no longer be entertained on appeal, much less testator's intention is to be ascertained from the words of the will, taking into
in this petition for review. consideration the circumstances under which it was made, excluding such oral
declarations.
Castaeda v. Alemany, March 19, 1904
The evidence in this case shows to our satisfaction that the will of Doa Juana Ambiguity
Moreno was duly signed by herself in the presence of three witnesses, who signed Capable of more than one meaning
it as witnesses in the presence of the testratrix and of each other. It was therefore
executed in conformity with law. Two kinds of ambiguity
Latent or Intrinsic Ambiguity Patent or Extrinsic Ambiguity
There is nothing in the language of section 618 of the Code of Civil Procedure which Latere: to be hidden Patere: to be open, obvious, evident
supports the claim of the appellants that the will must be written by the testator Ambiguity that s not obvious on the Ambiguity that is obvious in the face of
himself or by someone else in his presence and under his express direction. That face of the will the will
section requires (1) that the will be in writing and (2) either that the testator sign it Examples: Examples:
himself or, if he does sign it, that it be signed by someone in his presence and by 1. When there is an imperfect 1. Devise of a parcel of land
his express direction. Who does the mechanical work of writing the will is a matter description (devise of a parcel without any description
of indifference. The fact, therefore, that in this case the will was typewritten in the of land located at Despicable 2. To "two of my four brothers"
office of the lawyer for the testratrix is of no consequence. Street to my nephew Gru, and
it turned out that the testator
Rules in the interpretation of wills has two parcels of land in the
said street or two nephews Intent of the testator to govern
named Gru) Cardinal rule in the construction of wills: The intent of the testator.
2. When no person or property Intent is the "life and soul of a will."
exactly answers the It must govern in the interpretation of his will and testament provided it
description (Gru is a is not contrary to law, good customs, public order, or public policy.
grandchildren and not Ordinary words: Should be taken in their ordinary and grammatical sense
nephew, or the land area of unless the meaning intended by the testator is otherwise and that
property described is 106 meaning can be ascertained.
sq.m. instead of 160 sq.m.) Technical words: To be taken in their technical sense unless a contrary
IN EITHER CASE, the ambiguity of a will is NOT a ground to avoid it. It must be intention clearly appears or the will (holographic will) was drafted by the
cleared up and resolved, not stricken down. testator alone who was not familiar with such technical sense.
Testacy is preferred to intestacy. We must give effect to the testamentary
disposition. What is the effect if a will is drafted by a lawyer?
How to deal with ambiguities: The will is to be construed by some strictness, attributing to the words
Ascertain the intention of the testator their accepted technical legal meaning, the testator being presumed to
Any admissible and relevant evidence may be used to clear up the have acted in the light of the settled meaning which the law has attached
meaning and discover the intention of the testator EXCEPT oral to his words.
declarations of testator.
Use extrinsic (parol) evidence or intrinsic evidence Circumstances surrounding the execution of will
Where the language of the will is ambiguous or doubtful, the Court
What happens if in spite of the evidence the ambiguity remains? should take consideration the situation of the testator and the facts and
The will is VOID. circumstances surrounding him at the time the will was executed.

Parol Evidence Rule Doubtful language to be subordinated to intention


It allows parol evidence to explain an intrinsic (not extrinsic) ambiguity in Requisites: Intention clear, language obscure.
a will.
BUT testimonial evidence regarding the oral declarations of the testator Rodriguez v. CA, 27 S 546
as to his intention is NOT admissible. Rule: The language will be subordinated to the intention, and in order to give
effect to such intention, as far as possible, the court may depart from the
Art. 790. The words of a will are to be taken in their ordinary and grammatical strict wording and read a word or phrase in a sense different from that which
sense, unless a clear intention to use them in another sense can be gathered, and is ordinarily attributed to it, and for such purpose may mold or change the
that other can be ascertained. language of the will, such as restricting its application or supplying omitted
words or phrases.
Technical words in a will are to be taken in their technical sense, unless the
context clearly indicates a contrary intention, or unless it satisfactorily appears Intention of the testator to be gathered from entire instrument
that he was unacquainted with such technical sense. A will must be interpreted as a whole and the intention of the testator be
gathered not from particular words or phrases but from the entire
Art. 791. The words of a will are to receive an interpretation which will give to instrument.
every expression some effect, rather than one which will render any of the
expressions inoperative; and of two modes of interpreting a will, that is to be Art. 792. The invalidity of one of several dispositions contained in a will does not
preferred which will prevent intestacy. result in the invalidity of the other dispositions, unless it is to be presumed that
the testator would not have made such other dispositions if the first invalid
disposition had not been made.
Art. 795. The validity of a will as to its form depends upon the observance of the
Severability principle; rule and exception law in force at the time it is made.
GR: If one provision of a will is invalid, such fact will not affect the validity
of other provisions which may exist separately from said invalid Aspects of validity of will
provision. EXTRINSIC/FORMAL VALIDITY INTRINSIC/SUBSTANTIVE VALIDITY
XPN: When it can be presumed from the language of the will that the Refers to the requirement or form Refers to the substance of the provision
testator would not have made the valid provision without the invalid one. Refers to forms and solemnities(e.g. Refers to the contents or provisions of a
form of instrument, whether public or will which must be allowed under the
Art. 793. Property acquired after the making of a will shall only pass thereby, as if private, number of witnesses, capacity law to make them valid or legal.
the testator had possessed it at the time of making the will, should it expressly of testator, qualifications of witnesses)
appear by the will that such was his intention. that must be complied with to make
them valid.
Property acquired by the testator after making a will GOVERNING LAW
Rule: Said properties will only pass if such is the testator's intention as EXTRINSIC/FORMAL VALIDITY INTRINSIC/SUBSTANTIVE VALIDITY
expressly appears in his will. As to time
If no such express statement in the will, the properties shall For Filipinos: at the time of execution of For Filipinos: time of death
pass by intestate succession unless a subsequent will or codicil will (at the time the will is made) Reason: Successional rights
is made disposing go said properties. vest only at the moment of
Rule: This article applies ONLY to devisees and legatees. For aliens: same death
Problem with this article: For aliens: personal law
1. It makes the will speak as of the time it is made, and not at the As to place
time of the decedent's death. Filipinos
2. Obviously the effects of a will operate only at the time of the In the Phil: Philippine law Philippine law
death, because you do not make a will to take effect NOW! Abroad: Phil. Law OR Philippine law
LEX LOCI CELEBRATIONIS
Art. 794. Every devise or legacy shall cover all the interest which the testator
Aliens
could device or bequeath in the property disposed of, unless it clearly appears
In the Phil: law of domicile, national National law of testator
from the will that he intended to convey a less interest.
law, Phil law, lex loci celebrationis
Abroad: national law, lex loci BUT if with conflict of law, law of
Rule as to what a devisee or legatee can get domicile
celebrationis
GR: In legacy or devise, the testator gives exactly the interest he has in
the thing.
Palaganas v. Palaganas, January 26, 2011
XPN: He can give a lesser interest (Art. 794) or a greater interest (Arts.
Probate of foreign will for the first time in our court is allowed: Our laws do not
929 and 931)
Greater interest: prohibit the probate of wills executed by foreigners abroad although the same
1. A testator may bequeath a thing in its entirety to a devisee or have not as yet been probated and allowed in the countries of their execution. A
legatee even if he owns only a part of or an interest in the thing foreign will can be given legal effects in our jurisdiction. Article 816 of the Civil
bequeathed. (Art. 929) Code states that the will of an alien who is abroad produces effect in the
Philippines if made in accordance with the formalities prescribed by the law of the
2. A testator may bequeath a thing belonging to another by
ordering that it be acquired in order that it be given to a place where he resides, or according to the formalities observed in his country.
devisee or legatee. (Art. 931)
Our rules require merely that the petition for the allowance of a will must show, so Art. 799. To be of sound mind, it is not necessary that the testator be in full
far as known to the petitioner: possession of all his reasoning faculties, or that his mind be wholly unbroken,
1. The jurisdictional facts; unimpaired, or unshattered by disease, injury or other cause.
2. The names, ages, and residences of the heirs, legatees, and devisees of
the testator or decedent; It shall be sufficient if the testator was able at the time of making the will to
3. The probable value and character of the property of the estate; know the nature of the estate to be disposed of, the proper objects of his bounty,
4. The name of the person for whom letters are prayed; and and the character of the testamentary act.
5. If the will has not been delivered to the court, the name of the person
having custody of it. Art. 800. The law presumes that every person is of sound mind, in the absence of
proof to the contrary.
Jurisdictional facts refer to the fact of death of the decedent, his residence at the
time of his death in the province where the probate court is sitting, or if he is an The burden of proof that the testator was not of sound mind at the time of
inhabitant of a foreign country, the estate he left in such province. The rules do not making his dispositions is on the person who opposes the probate of the will; but
require proof that the foreign will has already been allowed and probated in the if the testator, one month, or less, before making his will was publicly known to
country of its execution. be insane, the person who maintains the validity of the will must prove that the
testator made it during a lucid interval.
Vda De Perez v. Tolete, 232 S 722
Requirements for reprobate of wills Art. 801. Supervening incapacity does not invalidate an effective will, nor is the
The evidence necessary for the reprobate or allowance of wills which have been will of an incapable validated by the supervening of capacity.
probated outside of the Philippines are as follows:
1. The due execution of the will in accordance with the foreign laws; Art. 802. A married woman may make a will without the consent of her husband,
2. The testator has his domicile in the foreign country and not in the and without the authority of the court.
Philippines;
3. The will has been admitted to probate in such country; Art. 803. A married woman may dispose by will of all her separate property as
4. The fact that the foreign tribunal is a probate court, and well as her share of the conjugal partnership or absolute community property.
5. The laws of a foreign country on procedure and allowance of wills
Testamentary capacity: refers to the ability as well as the power to make a will.
Renvoi doctrine It must exist at the time of the execution of the will.
The process by which a court adopts the rules of a foreign jurisdiction Who can make a will?
with respect to any conflict of laws that arises. All natural persons who are not expressly prohibited by law may make a
In some instances, the rules of the foreign state might refer the court will.
back to the law of the forum where the case is being heard. A convict under civil interdiction is allowed to make a will because civil
interdiction prohibits disposition of property inter vivos and not mortis
Testamentary Capacity causa.
Spendthrifts, prodigals, and those under guardianship, can make a will
Art. 796. All persons who are not expressly prohibited by law may make a will. provided they are at least 18 years old and are of sound mind.

Art. 797. Persons of either sex under eighteen years of age cannot make a will. Requisites of Testamentary Capacity
1. At least 18 years old at the time of execution
Art. 798. In order to make a will it is essential that the testator be of sound mind Thus, minors die intestate.
at the time of its execution. 2. Soundness of Mind: means ability of the testator mentally to understand
in a general way the nature and extent of his property, his relation to
those who naturally have a claim to benefit from the property left by 1. Old Age
him, and a general understanding of practical effect of the will as Mere senility or infirmity of old age does not necessarily imply that a
executed. person lacks testamentary capacity.
Supervening incapacity will not affect the validity of a prior will. Senile Dementia: a particular decay of the mental faculties whereby
Supervening capacity will not change the nullity of a prior will. a person is reduced to a second childhood, produces testamentary
o Will remains void even if the testator executes a document incapacity.
affirming the contents of a prior will. 2. Infirmity or Disease
o Remedy: Make another will. Physical infirmity or disease is not inconsistent with testamentary
Presumption of Soundness of Mind: the law presumes that the capacity.
testator is of sound mind. It is only when the testator is in a comatose or semi-comatose
o Thus, the burden of proof that the testator was not of sound condition that he is incapacitated to make a will.
mind at the time of the making of his will is on the person who Stomach cancer, dyspepsia do not affect testamentary capacity.
opposes the probate of the will. 3. Mental disease or Insanity
Question: When is there an inversion of the presumption? There may be mental incapacity to make a will without actual
o Answer: (1) The testator, one month or less, before making his insanity.
will, was publicly known to be insane; (2) He was under Persons suffering from idiocy (those congenitally deficient in
guardianship at the time of making of the will; (3) If the testator intellect) and imbecility (those who are mentally deficient as a result
made the will after he had been judicially declared to be insane of disease) do not possess the necessary mental capacity to make a
and before such judicial order has been set aside. will.
Rule: It is not necessary that the testator be in full possession of all Brain aneurysm under comatose, brain paralysis deprive the testator
his reasoning faculties, or that his mind be wholly unbroken, of testamentary capacity.
unimpaired, or unshattered by disease, injury or other cause. o Thus, the signature of the testator appearing in the will is a
It is sufficient that if at the time of the making of the will, he knows: forgery.
a) The nature and extent of the estate to be disposed of (he is 4. Mental Delusion
giving away his property). An insane delusion which will render one incapable of making a will
b) The proper objects of his bounty (giving it to someone he may be defined as a belief in things which do not exist, and which no
knows and intended). rational mind would believe to exist.
c) The character of the testamentary act (it is effective mortis To justify the setting aside of a will, it must be shown that the will
causa). was the product of the delusion, or at least, was influenced by such
Whenever the mental condition of the testator is placed at issue delusion.
during probate proceedings, the probate court must focus its 5. Belief in Supernatural
investigation on the effects of the illness etc. on the mind of the Belief in spiritualism is not in itself a sufficient evidence of
testator. testamentary capacity.
However, a will executed by one under such an extraordinary belief
Circumstances that do not affect testamentary capacity in spiritualism that he follows blindly and implicitly supposed
1. Civil interdiction directions of spirits in constructing his will is NOT admissible to
2. Prodigality probate.
3. Insolvency 6. Drunkenness
4. Alienage GR: the admission of a will to probate will not be denied merrily on
5. Other of similar nature proof that the testator was addicted to the excessive use of alcoholic
liquors or drugs
Effect of Certain Infirmities
XPN: if at the time of the making of the will, the testator was so Anywhere written, by a typewriter, in pad paper, even in a wall.
much under the influence of the intoxicants or drugs as to be unable Oral or nuncupative wills are not allowed, except for Muslims.
to bring to the business at hand the calm judgment that the law
requires of a testator. Second requirement: Language or dialect known
7. Deaf-mute and Blind Person can make a will. Language: anything that may be written. Ilocano is a language. It has
grammar, it has literature. It need not be a national language.
Forms of Will Dialect: does not have a written form, no literature.
Presumption of compliance: That the testator knew the language in
Kinds of wills which the will was written.
NOTARIAL/ATTESTED WILLS HOLOGRAPHIC WILLS Presumption of knowledge of language: The testator need not be
That which requires, in order to be valid, That which is entirely written, dated proficient in the language or dialect used.
compliance with the formalities prescribed and signed by the hand of the 3. It is sufficient that the can make known his testamentary act through the
under Arts. 805 and 806 regarding: testator himself. language or dialect employed by him.
1. Signing by testator
2. Attestation by the witnesses It does not require attestation by the Suroza v. Honrado
3. Acknowledgment by the testator witnesses. Administrative action against a judge who admitted to probate a will where it was
and attesting witnesses before a written in English, but admits in the latter paragraphs that it was translated in
notary public. Filipino for the benefit of the testator, and admits that the testator was illiterate.
Common requirements: Both kinds must be in writing and executed in a language
or dialect known to the testator. That could only mean that the will was written in a language not known to the
illiterate testator and is therefore void because of mandatory provision of Art. 804.
Note: The will itself need not state that the language is known to the testator.
Compliance with the language requirement may be shown by extrinsic evidence. Acop v. Piraso, 52 P 660
Where the will was drawn up in Baguio City where the testator lived and died, and
The testator also need not know the language of the attesting clause, since the the record contained proof that he knew no other language than the Igorot dialect,
attestation clause is the affair of witnesses only. but the will was written in English.
The testator need not perform the Necessarily be written personally by the
mechanical work of writing the will, so testator. The will cannot be probated because it was not written in the language known by
long as the will is signed by him or by the testator.
someone else in his presence.
Testate Estate of Javellana v. Javellana
Objective of formalities Where the will was executed in Manila City by the testator, a Visayan residing in
Liberalization of the manner of their execution with the end in view of San Juan, Rizal at the time of his death, but the will was drawn up in Spanish and
giving the testator more freedom in expressing his last wishes, but with there was no evidence that it was the language currently used in either place.
sufficient safeguards and restrictions to prevent the commission of fraud
and the exercise of undue and improper pressure and influence upon the No presumption can arise that the testator knew Spanish.
testator.
Abangan v. Abangan
Art. 804. Every will must be in writing and executed in a language or dialect Will written in Cebuano dialect and executed in Cebu by the testator.
known to the testator.
In the absence of proof to the contrary, there is a presumption that she knew this
First requirement: In writing dialect in which the will was written. For the presumption to apply, it must appear
that:
1. The will was executed in a language generally spoken in the place of Notarial Wills
execution; AND
2. The testator must be a native or resident of such locality Art. 805. Every will, other than a holographic will, must be subscribed at the end
thereof by the testator himself or by the testator's name written by some other
Caneda v. CA, 222 S 781 person in his presence, and by his express direction, and attested and subscribed
Various participants signed will on various days evidenced that the execution was by three or more credible witnesses in the presence of the testator and of one
not a one continuous act. another.

Six pages of the will were signed on the margin by the testator and two of the The testator or the person requested by him to write his name and the
witnesses on January 4, the remaining three pages were signed by the testator and instrumental witnesses of the will, shall also sign, as aforesaid, each and every
the three attesting witnesses on January 11, and the third attesting witness then page thereof, except the last, on the left margin, and all the pages shall be
signed the first six pages. numbered correlatively in letters placed on the upper part of each page.

Such an execution of the will was held NOT in conformity with the law under The attestation shall state the number of pages used upon which the will is
which the execution of a will is supposed to be one act and cannot be legally written, and the fact that the testator signed the will and every page thereof, or
effective if the various participants sign on various days and in various caused some other person to write his name, under his express direction, in the
combinations of those present. presence of the instrumental witnesses, and that the latter witnessed and signed
the will and all the pages thereof in the presence of the testator and of one
More than one pen used by attesting witnesses evidenced that execution is not another.
one continuous act
If the attestation clause is in a language not known to the witnesses, it shall be
Where the will and its codicil show that more than one pen was used by the interpreted to them.
attesting witnesses thereto, in the absence of any explanation for the different-
colored signatures thereon, this fact justifies a finding, that the said testamentary Formal requirements of an ordinary (notarial will): Aside from the requirements
documents were not subscribed and attested by the instrumental witnesses mentioned in Art. 796 (18 years old, sound mind) and Art. 804 (in writing, language
during a single occasion contrary to Art. 805 which requires that the witnesses or dialect known)
must sign the will in the presence of the testator and of one another. 1. It must be subscribed at the end thereof by the testator himself or by the
testator's name written by some other person in his presence, and by his
Date of the will express direction.
Presumption: A will is presumed to have been executed on the day of its 2. It must be attested and subscribed by three or more credible witnesses in
date. the presence of the testator and of one another.
When date required: A date is not an essential element of a valid will, 3. It must be signed by the testator or the person requested by him to write
except, in the case of holographic wills, and an erroneous date will not his name and the instrumental witnesses of the will, each and every page
vitiate the instrument. thereof, except the last, on the left margin.
Importance of date in ordinary will: It is necessary to ascertain the date 4. All the pages must be numbered correlatively in letters placed on the
of an ordinary will in order to determine which of two or more upper part of each page.
instruments is the last will of the testator. 5. It must contain an attestation clause stating the matters mentioned in
4. The date in this case may be established by extrinsic evidence Art. 805.
Conflict of date in a notarial will: The same does not invalidate the 6. It must be acknowledged before a notary public by the testator and the
document, because the law does not require that a notarial will be witnesses.
executed and acknowledged on the same occasion.
Allowed omissions testator affixed of a sheet are
1. Omission of some relatives does not affect the due execution of a will. such. used, then
2. In notarial will, omission to state the date or place of execution or an By the agent 1. Name of testator must both sides
error in such statement will not invalidate the will. appear should bear
5. BUT a holographic will must be dated, else it is VOID. Conditions: 2. Must be written by the signatures
1. In the testator's agent at the place of the testator
Interpretation of the requirements presence required by law and each of
Equal importance of requirements: All the requirements stand as of 2. By the testator's the witnesses.
equal importance, and courts cannot add other conditions or dispense express direction Example: (proper way
with those enumerated in the law. 3. In the presence of according to SC)
Purpose of prescribing solemnities: the witnesses For the testator
1. To insure and safeguard their authenticity X, by Y
2. The courts, in deciding the various cases that may present Note: Such fact must be
themselves on this matter, must not lose sight of this object of mentioned in the Note: It may be wise as a
the law. attestation clause practical manner that the
Liberal not strict: Courts must adopt a liberal, rather than a strict one who signs the testator's
interpretation of the legal formalities in the execution of wills. name sign also his own but
6. When an interpretation assures such end, any other interpretation it is not essential to the
whatsoever adds nothing but demands more requisites entirely validity of the will.
unnecessary, useless, and frustrative of the testator's last will, must be
disregarded. BUT if the agent wrote only
his signature, and omits
SUMMARY OF REQUIREMENTS (from Atty. Reyes' discussions) that of the testator, the will
is VOID.
SUBSCRIPTION
WHO HOW WHERE Subscribed by the testator
By the testator 1. Full signature: 1. Logical end Purpose of subscription
full name, logical 1. For identification
readable conclusion of 2. Intent to be bound
the will (after Sufficiency of signature: The use of any signature intended by the
2. Customary signature testamentary testator to authenticate the instrument, renders the will sufficiently
curves, edges, provisions) signed by the testator.
strokes 2. Left margin of each
and every page Subscribing is not the same as signing
3. Mark or symbol not a strict 7. To subscribe = to write under
Thumbmark? 'X', rule as to 8. To sign = to simply place a distinguishing mark
'+'? Valid position; can 9. Signing is broader than subscribing
provided that be placed at Is the law limited to subscribing? NO, include signing.
affixed by testator the top, This accommodates signing by thumbmark.
with animus bottom, or A thumbmark is not a subscription but is a valid signing.
testandi and with right margin The testator's thumbprint is always valid and sufficient
justification why If both pages signature.
The validity of thumbmarks is NOT limited only to cases of Only the signatures of witnesses are necessary; signature of testator is
illness or infirmity. mere surplusage.
Signature affixed by die or stamp Purpose: To preserve in permanent form, a record of the facts attending
A testator may use an engraved die or a rubber stamp in the execution of the will, so that in case of death, absence, or failure of
affixing his signature. the memory of the subscribing witnesses, or other casualty, the due
What if testator ordered other to stamp his name therein? execution may still be proved.
VALID! Language used: The attestation clause may be in any language or dialect
although it is not known or understood by the witnesses or the testator.
Barut v. Cabacungan The law merely requires the language to be interpreted to
It is immaterial as to who writes the name of the testator, provided that the witnesses.
testator's name is written at the testator's request and in the testator's presence,
and in the presence of all the witness to the execution of the will. Contents of attestation clause
1. The number of pages used upon which the will is written
It is unimportant whether the person who writes the name of the testator signs his 2. The fact that the testator signed the will and every page thereof, or
own or not. It may be wise and practical that the one who signs the testator's name caused some other person to write his name under his express direction
also sign his own, but that is not essential to the validity of the will. 3. The signing by the testator or by the person requested by him, was in the
presence of the instrumental witnesses
Warning: No Champ notes below! Read the same 7 times! :) 4. The instrumental witnesses witnessed and signed the will and all the
pages thereof in the presence of the testator and of one another.
PAGINATION
Rule: All the pages of the will must be numbered correlatively in letters Necessity of attestation clause
(i.e. One, Two, Three) place on the upper part of each page. Absence of ANY of these contents invalidates not only the attestation
Substantial compliance is sufficient (i.e, '1,2,3' or 'A,B,C' or 'I, II, III') clause but also the ENTIRE WILL.
NOTE: Pages with testamentary provisions MUST be with page number What if the will did not contain a separate attestation clause but the
Sequential numbering MAY NOT be placed in the page where concluding paragraph thereof was expressed in the form of an attestation
the attestation clause is written. clause setting forth the matters required by law. Valid?
What will happen if one page containing testamentary provisions has no YES. The attestation clause contained in the body of the will
page number? ENTIRE will is VOID. and signed by the witnesses is valid, although it was in the first
Error in numbering: If by the provisions of the will, the sequence can be person and signed by the testator.
analyzed then error in numbering in the will will not invalidate it. Important: An attestation clause and an acknowledgement may not be
merged in one statement.
Purpose of pagination
1. To safeguard the document from the possibility of the interpolation of Attestation vs Subscription
additional pages or the omission of some of the pages actually used. Attestation Subscription
2. To prevent the number of sheets of the will from being unduly increased Consists of witnessing the testator's Signing of the witnesses' names upon
or decreased. execution of the will. the same paper for the sole purpose of
3. To avoid substitution of wills and testaments. identification for such paper as the will
which was executed by the testator.
ATTESTATION CLAUSE Mental, the act of senses Mechanical, the act of the hand
Definition: That clause of an ordinary will wherein the witnesses certify Purpose: To render available proof of Purpose: Identification, and thus
that the instrument has been executed before them, and the manner of the authenticity of the will and its due indicates that the will is the very
the execution of the same. execution. instrument executed by the testator and
attested to by the witnesses 1. Test of sight: The testator and the witnesses actually saw each other sign
or that their eyes are actually cast upon the instrument at the moment of
What subscribing witnesses (instrumental witnesses) attest to? subscription by each of them.
1. The do not merely attest to the genuineness of the signature of the 2. Test of position: Whether they might have seen each other, had they
testator but also to the due execution of the will as embodied in the chosen to do so, considering their position with relation to each other at
attestation clause. the moment of inscription of each signature.
2. Subscribing witnesses are much relied upon to establish the due They can see the act of signing so long as there is no physical
execution of will. impediment blocking their sight.
The testimony of persons accidentally present, who had nothing to 3. Test of knowledge: For as long as the witness and testator are physically
do with the transaction (not instrumental witnesses) cannot be present in the same room or location, and they know that they are
given equal consideration. signing a will (knowledge that signing is being done)
3. The instrumental witnesses must know that they are attesting a will for Note: Where there are more than three witnesses and one of them did not see the
the attestation clause must state that they "witnessed and signed the others sign, the requirement is complied with.
will."
In re Will Siason, 10 P 504
Number of pages in attestation clause Where the testatrix was ill and confined to her house, the execution of the will
Rule: The absence of such a statement is a fatal defect. taking place in the sala where she lay upon a sofa.
Substantial compliance:
VALID.
Singson v. Florentino, 92 P 161
If the last part of the body of the will contains a statement that it is composed of Yaptua v. Yap Ka Kuan
eight pages, and the will itself shows without need of proof aliunde, that it is really Where one part of the room where the will was executed was one or two steps
and actually composed of eight pages duly signed y the testator and his lower than the floor of the other, the table on which the witnesses signed the will
instrumental witnesses, the will complies with the intention of the law. was located on the lower floor of the room, and the testatrix was lying in bed from
where it was possible for her to see the table.
Therefore, the will is valid even if its attestation clause does not state the number
of pages or sheets upon which the will is written. VALID. The actual seeing of the signature is not necessary. It is sufficient if the
testator and the witnesses may see each other sign if they choose to do so.
Taboada v. Rosal, 118 S 196
Where the first page which contains the entirety of the testamentary dispositions is Jabonela v. Gustillo
signed by the testatrix at the end or at the bottom while the instrumental Where one witness left the room after signing but before he turned his back and
witnesses signed at the left margin and the other page which is marked as "Pagina left, he saw J, the last witness moving his hand and pen in the act of signing, but
dos" comprises the attestation clause and the acknowledgment itself and states the latter's signature was not yet completed.
that "This last will and testament consists of two pages including this page," the
failure of the attestation clause to state the number of pages is not fatal defect VALID. The witness could see everything which took place by merely casting his
since such number is discernable from the entire will that it is really and actually eyes in the proper direction, and without any physical obstruction to prevent him
composed of only two pages duly signed by the testatrix and her instrumental doing so.
witnesses.
Vera v. Rimando
ONE CONTINUOUS ACT IN THE PRESENCE OF EACH OTHER Where one witness was in one room, while the testator and other witnesses were
in another room separated by a curtain which obstructed the view outside.
Three tests
Will is VOID. Art. 806. Every will must be acknowledged before a notary public by the testator
and the witnesses. The notary public shall not be required to retain a copy of the
will, or file another with the Office of the Clerk of Court.
Statement of signing will in each other's presence
Purpose: To certify that the testator signed the will, this being the most ACKNOWLEDGMENT
essential element of the clause. To acknowledge: to own as genuine, to assent to, to avow or admit.
Rule: This requirement is MANDATORY, without it the WILL is void. Applies only to ORDINARY wills.
Must contain date and place: An ordinary will need not be dated but it
Interpretation as to defective attestation clause; rules must be signed by the testator and his witnesses. The notarial
1. As to number of pages: There can be substantial compliance BUT if there acknowledgement however will necessary have to mention the date and
is no number of pages OR there is error in pagination then will is VOID. place of the acknowledgment.
2. As to other contents of attestation clause: ALWAYS STRICT Note: The law does not disqualify a notary public who is related to any of
COMPLIANCE. the parties interested in the will.
Reason: Facts cannot be readily shown by physical scrutiny of
the instrument. Guerrero v. Bihis, 521 S 394
Proof aliunde or even judicial finding based upon such proof An acknowledgment is the act of one who has executed a deed in going before
are not admissible to prove such requirements. some competent officers and declaring it to be his act and died. In the case of a
notarial will, that competent officer is the notary public.
STRICT COMPLIANCE in attestation clause (if absent, will is void)
1. The content requirements Outside the place of his commission, a notary public is bereft of power to perform
2. Signature of the witnesses at the end of attestation clause any notarial act. An acknowledgment taken outside the territorial limits of the
officer's jurisdiction is VOID.
SUBSTANTIAL COMPLIANCE in attestation clause
1. Language used Acknowledgment may not be in the presence of each other
2. Form used The testator and the witnesses do not have to make the acknowledgment
3. Matters that can be readily seen by physical cursory or examination of contemporaneously or in the presence of one another, which is required
the instrument in the attestation clause.
"Language written in Filipino" but in reality it is in English, valid? However, both the testator and the witnesses must acknowledge the will
YES, ok lang! :) before a notary public.

Examples of fatal defects in attestation clause Acknowledgment may be subsequent to execution


1. That the will was signed by the witnesses in the presence of each other. There is nothing in Art. 806 requiring that the testator and the witnesses
2. That the will was signed on every page thereof on the left margin and in should acknowledge a will on the same day or occasion that it was
the presence of the testatrix. executed.
3. That the testator and witnesses signed all the pages(or every page) of
the will. Signing by notary public may be subsequent to acknowledgment
4. That the witnesses signed in the presence of the testator Whether or not the notary public signed the certification of
notwithstanding that oral evidence admitted without opposition on the acknowledgment in the presence of the testator and the witnesses does
part of the opponent proved such fact. not affect the validity of the will.
5. That the witnesses signed in the presence of the testator and of each
other. Can the notary public be the third witness in the will?
NO. He may be present at the execution of the will if he wants to but he testators, but also for those who are incapable
cannot be one of the instrumental witnesses since he cannot Two persons of reading their wills.
acknowledge before himself his having signed the will. must be familiar
The function of the notary public is, among others, to guard against any with sign In Alvarado v. Gaviola, Alavarado was not
illegal and immoral arrangements. language. totally blind at the time the will was executed.
If he would be one of the instrumental witnesses, he would be He was capable of counting fingers at 3 feet,
interested in sustaining the validity of the will as it directly hence merely poor eyesight.
involves himself and the validity of his own act. Note: It is not required that compliance with Arts. 807 and 808 be stated in the
attestation clause or notarial acknowledgment.
No requirement to retain a copy of will or file another with the office of the Clerk It would be sufficient if it is established in the probate proceedings.
of Court
Reason for rule: A will is of a personal character and the testator may Art. 809. In the absence of bad faith, forgery, or fraud, or undue and improper
want to keep secret the contents of his will during his lifetime. pressure and influence, defects and imperfections in the form of attestation or in
A notarial will, therefore, is not a public instrument notwithstanding that the language used therein shall not render the will invalid if it is proved that the
it is acknowledged. will was in fact executed and attested in substantial compliance with all the
requirements of Article 805.
Art. 807. If the testator be deaf, or a deaf-mute, he must personally read the will,
if able to do so; otherwise, he shall designate two persons to read it and Rule in interpreting this provision according to JBL Reyes:
communicate to him, in some practicable manner, the contents thereof. If the defects or imperfections can be supplied by an examination of the
will itself, and it is proved that the will was in fact executed and attested
Art. 808. If the testator is blind, the will shall be read to him twice; once, by one in substantial compliance with all the requirements of Art. 805 then WILL
of the subscribing witnesses, and again, by the notary public before whom the is VALID.
will is acknowledged. Examples:
1. If the attestation clause fails to state the fact that the testator signed
Capacity of a deaf, deaf-mute, or blind person to make a will each and every page thereof, BE LIBERAL! You can easily verify these
They can make a will provided they satisfy the requirements of age and facts upon visual examination of the will.
soundness of mind. 2. If the attestation clause fails to state that the witnesses signed in
BUT, generally, they cannot be witnesses in the execution of wills. each other's presence. This is a FATAL flaw.

DEAF OR DEAF-MUTE BLIND Caneda v. CA


IF able to IF unable to 1. Two readings Art. 809 must be limited to disregarding only those defects that can be supplied by
read read Substantial compliance: an examination of the will itself, such as:
He must He shall One reading is enough BUT 1. Whether all the pages are numbered
personally designate two the reading must be done 2. Whether the signatures appear in each and every page
read the will. persons to read aloud in the presence of 3. Whether the subscribing witness were really three
and the testator, instrumental 4. The will itself notarized
communicate witnesses, and the notary
to him, in some public All these are facts that the will itself can reveal, and the defects or even omissions
practicable 2. Readings by witness and notary concerning them in the attestation clause can safely be disregarded.
manner, the public
contents BUT:
thereof. Note: Art. 808 applies not only to blind 1. Whether the total number of pages, and
2. Whether all persons required to sign did so in the presence of each other
(even if three persons signed, it is not sure if they signed in the presence Gonzales v. CA
of one another) There is no mandatory requirement that the witness testify to his good standing in
the community.
Omissions which can be supplied by mere examination of will itself, without the
need of resorting to extrinsic evidence is NOT fatal. The rule is that the instrumental witness in order to be competent must be shown
to have the qualifications under 820 and none of the disqualifications under 821.
Omissions which cannot be supplied except by evidence aliunde, would result in For their testimony to be credible, it only needs to be worthy of belief and entitled
the invalidation of the attestation clause, and ultimately the will itself. to credence, it is not mandatory that the evidence be first established on record
that the witnesses have a good standing in the community or that they are honest
and upright. For the person is presumed to be such unless the contrary is
Witnesses to Wills established.

Art. 820. Any person of sound mind and of the age of eighteen years or more, and No other qualifications required for a witness
not bind, deaf or dumb, and able to read and write, may be a witness to the Relationship not required: The relation of employer and employee, or
execution of a will mentioned in Article 805 of this Code. being a relative to the beneficiary in a will does not disqualify one to be a
witness in a will.
Art. 821. The following are disqualified from being witnesses to a will: Acquaintance not required: It is unnecessary for a witness to a will to
(1) Any person not domiciled in the Philippines; have known the testator previous to the time when he subscribed to the
(2) Those who have been convicted of falsification of a document, perjury or will.
false testimony. BUT attesting witness must satisfy to himself as to the identity
of the testator for purposes of attestation.
Six qualifications of a witness Language may not be known: It is not essential to the validity of a will
1. Sound mind that the attesting witnesses know the contents of the instrument.
Reason: Because attestation is an act of the senses (mental act) Although they must know that they are attesting a will.
2. At least 18 years old
3. Not blind, deaf or dumb Art. 822. If the witnesses attesting the execution of a will are competent at the
Dumb here means MUTE or someone having no capacity to time of attesting, their becoming subsequently incompetent shall not prevent the
express what they perceived. allowance of the will.
4. Able to read and write
5. Domiciled in the Philippines When should the witness be qualified?
Citizenship is not a factor At the time of attesting
Reason: Because of the great probability of being called by the Juridical capacity of the witnesses are determined at the time of the act
court to be a witness
IF not domiciled in the Philippines, he is outside the jurisdiction Art. 823. If a person attests the execution of a will, to whom or to whose spouse,
of Philippine courts or parent, or child, a devise or legacy is given by such will, such devise or legacy
6. Must not have convicted of falsification of document, perjury, or false shall, so far only as concerns such person, or spouse, or parent, or child of such
testimony person, or any one claiming under such person or spouse, or parent, or child, be
Conviction has to be by final judgment void, unless there are three other competent witnesses to such will. However,
These are crimes affecting the credibility/trustworthiness of a such person so attesting shall be admitted as a witness as if such devise or legacy
person had not been made or given.
So if convicted with rape or murder, ok lang! :)
Devisees or legatees as witnesses Art. 814. In case of any insertion, cancellation, erasure or alteration in a
1. If there are ONLY THREE witnesses including the devisee or legatee holographic will, the testator must authenticate the same by his full signature.
The will is valid (with respect to other testamentary provisions)
Devisee or legatee still competent to testify to its execution Holographic will: a will entirely written, dated and signed by the hand of the
But the particular disposition in favor of the devisee/legatee- testator himself, without the attestation of any witness nor acknowledgment
witness is VOID. before a notary public.
Reason: Conflict of interest
2. If there are THREE OTHER witness aside from the devisee or legatee Requirements of HW
witness 1. Entirely written
The devise or legacy is VALID. 2. Signed personally by the testator
3. Certain or at least ascertainable date
Heirs as instrumental witnesses 4. It must be written in a language or dialect known to him
Effect if heir qualified as instrumental witness: Disqualified from 5. It must e made with animus testandi
accepting devise and legacy
Legitimes impaired? NO. Will is not necessary in getting Entirely written
legitimes. If any part of the holographic will is not handwritten, the same is VOID.
Disqualification refers only to the free portion if the witness is a
compulsory heir. Signed personally by the testator
Who: Testator only
Art. 824. A mere charge on the estate of the testator for the payment of debts How: Full or customary signature
due at the time of the testator's death does not prevent his creditors from being Thumbmark of the testator will not be sufficient as it is not in
competent witnesses to his will. his handwriting.
Where:
Creditors as witnesses 1. Logical end
A person is not rendered an incompetent witness to the execution of a 2. Every erasure, insertion or cancellation
will by the mere fact that he is a creditor of the testator or his estate. 3. At the end of each postscript (P.S.) disposition
No need to sign on every margin
Holographic Wills
Signature every after erasure, insertion or cancellation
Art. 810. A person may execute a holographic will which must be entirely written, Purpose: Authenticate such interpolation
dated, and signed by the hand of the testator himself. It is subject to no other Effect if no signature appeared: If there are several other testamentary
form, and may be made in or out of the Philippines, and need not be witnessed. provisions, only those with erasures without signatures are invalidated;
others remained to be valid.
Art. 812. In holographic wills, the dispositions of the testator written below his
signature must be dated and signed by him in order to make them valid as Signature after each postscript disposition
testamentary dispositions. Postscripts appear after the signature of the testator at the logical end
Implies that the testator has change of mind or wants to add
Art. 813. When a number of dispositions appearing in a holographic will are beneficiary
signed without being dated, and the last disposition has a signature and a date, Important: In notarial will, there is no testamentary provisions
such date validates the dispositions preceding it, whatever be the time of prior after the signature of the testator at the logical end. It is not
dispositions. allowed!
Reason for PSD: Testamentary provision may be added even after the 3. At the body of the will
will.
PSD is valid even made on different date. Rules for Curing Defects
Requirement for validity: If the last dispositions which are SIGNED and dated (this presupposes that it is
1. PSD must be signed by the testator (whether full or customary by the testator himself):
signature) Preceding dispositions which are SIGNED but NOT DATED are validated.
2. PSD must be dated in the handwriting of the testator Preceding dispositions which are NOT SIGNED but DATED are void.
o It is not required that each and every additional Preceding dispositions which are NOT SIGNED and NOT DATED are void
disposition be dated, for Art. 813 says that the date of unless it is written on the same date and occasion as the latter
the last disposition validates the preceding ones, disposition.
whatever be the time of such prior dispositions.
Effects of Insertions or Interpolations by Third Persons
Effect of last PSD which is BOTH signed and dated 1. If the insertion was made after the execution of the will, but without the
Effect to signed It will validate all preceding dispositions which are signed consent of the testator, such insertion is considered as not written, because
but undated but undated. the validity of the will cannot be defeated by the malice or caprice of a third
The date of the last disposition cures the defect. person.
Effect to unsigned It will NOT validate the preceding dispositions 2. If the insertion was made after the execution of the will with the consent of
but dated the testator, the will remains valid but the insertion is void.
Effect to unsigned 3. If the insertion was made after the execution of the will, and such insertion is
and undated validated by the testator by his signature thereon, it becomes part of the will,
and therefore, the entire will becomes void, because of failure to comply with
What if the last disposition was signed and dated by a third person? the requirement that it must be entirely written by the hand of the testator.
1. The insertion is void, regardless if with or without the consent 4. If the insertion was made contemporaneous to the execution of the will, then
of the testator, and so the preceding dispositions will remain the will is void because it is not entirely written by the hand of the testator.
valid or void, as the case may be.
2. Authenticated by testator: If the insertion was authenticated Authentication of Correction by Full Signature
by the testator, the entire will is invalidated. Full signature here means the full or usual or customary signature and not
Reason: It is not entirely written by the testator. (Huli ka necessarily the full name.
boy!) However, if both the first and second names are merely initials, it is believed
that this would be contrary to the intent of the law.
Date of will
Certain: With month, day and year Art. 811. In the probate of a holographic will, it shall be necessary that at least
Identifiable: one witness who knows the handwriting and signature of the testator explicitly
1. "My 69th birthday" declare that the will and the signature are in the handwriting of the testator. If
2. "50th wedding anniversary" the will is contested, at least three of such witnesses shall be required.
If no date, then will is VOID.
Date must be in the will itself and that it be executed in the hand of the In the absence of any competent witness referred to in the preceding paragraph,
testator and if the court deem it necessary, expert testimony may be resorted to.

Where should date appear? Probate of holographic will


1. At the beginning of the holographic will, OR Only issue: The identity of the handwriting and signature of the testator
2. After the signature at the logical end, OR How many witnesses?
Uncontested: 1 witness a supplement or addition to a will, made after the execution of a will and
Contested: 3 witnesses annexed to be taken as a part thereof, by which disposition made in the
When contested? That which a ground for opposition is based on the original will is explained, added to, or altered.
allegation that the will is not written by the testator himself. It is some addition to or qualification to one's last will and testament.
It does NOT refer to grounds of fraud or vitiation of consent. It has the effect of republishing and ratifying so much of the prior will as
it does not alter or modify.
Who is competent to testify? (aside from expert witness) Derived from Latin word "codex" which means "little will."
People who have seen testator write May a codex be longer than the will it supplements? Yes!
Register of Deeds qualified? NO, he never saw testator write or sign as his
only basis is a signed document. Codicil and subsequent will, distinguished
Codicil Subsequent Will
Must the will itself be produced in probate? Similarities
YES. 1. Both are made and presuppose a prior will.
What if will was lost or destroyed? The same can be probated provided 2. They take precedence over the prior will, where their provisions are
that: inconsistent with those inthe latter.
1. There is photograph or carbon copy of the will Differences
2. There is testimony of witness who has actually or personally Forms part of the original will New or separate will
seen the will itself and prove that it was in testator's Supplements the original will, Makes dispositions without reference to
handwriting explaining, adding to, or altering any of and independent of the original will.
BOTH requirements must be present; otherwise, probate will its dispositions.
be DISMISSED. It does not, as a rule, revoke entirely If it provides for a full disposition of the
the prior will testator's estate (although inconsistent
Rodelas v. Aranza, 119 S 171 merely in par with the prior will) may
A photostatic copy or xerox copy of the holographic will may be allowed because revoke the whole prior will by
comparison can be made with the standard writings of the testator. substituting a new and last disposition
for the same
In Footnote 8 of Gan v. Yap ruling, it says that "Perhaps it may be proved by a A will and codicil thereto, being A prior will and a subsequent will, being
photographic or photostatic copy. Even a mimeographed or carbon copy; or by regarded as a single instrument (except two separate wills, may be construed
other similar means, if any, whereby the authenticity of the handwriting of the where a manifest intention requires independently of each other.
deceased may be exhibited and tested before the probate court," otherwise), are to be construed
together
Hence, the photostatic or xerox copy of the lost or destroyed holographic will may
be admitted because then the authenticity of the handwriting of the deceased can Purpose of codicil (notes)
be determined by the probate court. 1. To explain the original will or any part thereof (explanatory or
clarificatory purpose)
2. To add to the original will
CODICILS AND INCORPORATION BY REFERENCE Codicil may elaborate by adding heirs or property to be given
to specified heirs, or both
Art. 825. A codicil is a supplement or addition to a will, made after the execution 3. To alter, change or amend in whole or in part the original will (revocatory
of a will and annexed to be taken as a part thereof, by which disposition made in in intent)
the original will is explained, added to, or altered.
Codicil, defined Reiterative provision in codicil
Rule: If a codicil is reiterative of some or all the provisions of a will, the considered a part of the will unless the following requisites are present:
same has effect of republishing a will thus after-acquired property shall
pass to the designated heir. (notes) (1) The document or paper referred to in the will must be in existence at the time
of the execution of the will;
(2) The will must clearly describe and identify the same, stating among other
Clause: "I will things the number of pages thereof;
give to X all (2001) -Execution of (2011) -Execution of (2012) -Death of D (3) It must be identified by clear and satisfactory proof as the document or paper
my cars." will codicil D still has 15 cars referred to therein; and
D has 2 cars only. D has 15 cars already. when he died.
(4) It must be signed by the testator and the witnesses on each and every page,
except in case of voluminous books of account or inventories.
Can X demand the 13 after-acquired cars?
GR: No. Incorporation by reference
XPN: Yes, provided that in the codicil in 2011, there was an express Generally: "Attached as Annex 'A'"
provision that D "will give all his cars to X," thus reiterating the clause in Meaning: It is the incorporation of an extrinsic document or paper into a
the prior will. will by reference therein so as to become a part thereof and probated as
such.
Rule: Incorporation by reference is allowed only with respect to
provisions in a will that are not in the nature of testamentary dispositions
Art. 826. In order that a codicil may be effective, it shall be executed as in the such as:
case of a will. 1. Conditions or burdens imposed by the testator
2. Recognition of an illegitimate child
Formalities of a codicil 3. Those which may be incorporated to the will merely for
Rule: To be effective or valid, a codicil must be executed in the form of convenience or reference such as detailed description of
an ORDINARY or NOTARIAL will following the requirements under Arts. property disposed of by will
805 and 806, or HOLOGRAPHIC will under Art. 810. Example: I hereby give to X a parcel of land with CTC No. 123 as
No need to be in same form as prior will: The form of the codicil need described under "Annex A."
not follow the form of the prior will to which it relates.
Hence, a notarial codicil can modify a holographic will, or a Observance of formalities of instruments
holographic codicil, a notarial will. GR: An instrument which is not executed in accordance with the
formalities of a will shall not be admitted to probate.
Requirement of a testamentary character XPN: Under Art. 827 which permits incorporation by reference provided
GR: Only instruments of a testamentary character are entitled to probate the requisites enumerated are present.
applies to codicil. IF all the requirements are not complied, then the testimonial
XPN: A codicil may depend upon the will to which it refers for provision is VOID or INOPERATIVE.
testamentary character.
An instrument, although not in itself of testamentary character, Requisite # 1: The document or paper referred to in the will must be in existence
may be entitled to probate where it is construed to be a codicil at the time of the execution of the will (it must ante-date the will)
to an existing instrument that is clearly of testamentary Rule: The incorporated document must be attached SIMULTANEOUS to
character. the execution of the will, unlike in codicil which is SUBSEQUENT.
Effect if document incorporated in the future: The document is
Art. 827. If a will, executed as required by this Code, incorporates into itself by VOID.
reference any document or paper, such document or paper shall not be
Effect to will if inexistent during execution of will: If the document or The incorporated document or paper must not make testamentary
paper was prepared after the execution of the will, the validity of the will dispositions -> only a will can do so.
is NOT affected.
Where must appear: The reference to the writing must appear on the Can holographic wills incorporate documents by reference?
FACE of the will. It seems not.
May the fact that the document was existing at the time the will was Since the article requires the signatures of the testator AND the
made be proved using EXTRINSIC evidence? YES! witnesses on EVERY page of the incorporated document, it seems that
only attested wills can incorporate documents by reference since only
Requisite # 2: The will must clearly describe and identify the same, stating among attested wills are witnessed.
other things the number of pages thereof
Rule: The description and identification of the writing, and the statement REVOCATION OF WILLS AND TESTAMENTARY DISPOSITIONS
of the number of pages thereof must be stated and appear on the face
of the will. Art. 828. A will may be revoked by the testator at any time before his death. Any
Note: All incorporated documents must be described in the will. waiver or restriction of this right is void.
May the page number be omitted in case of voluminous books of
accounts or inventories? NO! Revocation
Definition: An act of the mind terminating the potential capacity of the
Requisite # 3: It must be identified (during probate) by clear and satisfactory will to operate at the death of the testator, manifested by some outward
proof as the document or paper referred to therein and visible act or sign, symbolic thereof.
Rule: There must be a SUNSTANTIAL and CONVINCING proof that Note: The testator must have testamentary capacity at the time of
documents incorporated are the same as those being probated. revocation.
Note: The identification of the writing may be shown by EXTRINSIC The same degree of mental capacity is necessary to revoke a
evidence. will as to make one.

Requisite # 4: It must be signed by the testator and the witnesses on each and May a will be revoked by the testator?
every page, except in case of voluminous books of account or inventories. Yes, at his pleasure during his lifetime.
XPN: In the case of voluminous books of account or inventories because Rule: There is no such thing as an irrevocable will.
it is not practicable for the testator and witness to sign every page No waiver of right: The right to revoke cannot be waived by the testator.
thereof. No waiver or restriction can be made as to the absolute
So no signature at all is needed? NO, sufficient number of freedom of the testator to revoke a will he has previously made
pages must still be signed to guarantee authenticity. for any reason or cause.
Signature must appear on integral and important parts like first,
last page and somewhere in between. (notes) Why is revocation allowed?
Rule: Where in a will which has an attestation clause that meets the Because under Art. 777, successional rights vest only upon death.
requirements of the law, a reference is made to an inventory of Will is ambulatory: Until the death of the testator, the will is said to be
properties attached to a will, NO separate attestation clause is needed ambulatory and may be revoked by him at will at any time with or
for said inventory. without reason.
Note: After a will is probated during the lifetime of the testator, it does
Requisite # 5: The documents, inventories, books of accounts, document of titles not necessarily mean that he cannot alter or revoke the same.
and other papers of similar nature should under no circumstances, make
testamentary dispositions Art. 829. A revocation done outside the Philippines, by a person who does not
have his domicile in this country, is valid when it is done according to the law of
the place where the will was made, or according to the law of the place in which 3. By burning, tearing, cancelling, or obliterating the will with intent to
the testator had his domicile at the time; and if the revocation takes place in this revoke (animo revocandi)
country, when it is in accordance with the provisions of this Code. By physical destruction

Law governing revocation What is revocation by operation of law?


(REVOCATION ) MADE MADE OUTSIDE THE PHILIPPINES This kind of revocation occurs when certain acts or events take place
INSIDE THE PHILIPPINES subsequent to the execution of a will from which the law infers or
Follow Philippine law Domiciled in RP Not Domiciled in RP presumes that the testator intended a change, either total or partial, in
Whether or not the (Resident Filipino or (Non-resident Filipino the disposition of his property.
domicile of the alien) or alien) Revoked because of intervening changes in
testator is in the Follow RP law Follow law of place a) Condition of property
Philippines AND (being the place of of execution b) Relations of testator and beneficiary
regardless of the his domicile) (where the will c) Presumed intent of the testator
place where the will Follow law of place was made) Note: A revocation may occur by intendment of law contrary to the
is made. of revocation (not Follow law of place actual intent of the testator.
Relate: National law where the will is where testator is 1. Preterition of compulsory heirs in the direct line
of the testator which made) domiciled at the Even if compulsory heir is: (notes)
is primarily applicable time of revocation a) Born after the execution of the will
as regards the making b) Recognized after the execution of the will
of wills, never 2. Commission by the offending (guilty) spouse of some ground for legal
governs in case of separation decreed by the court
revocation. Even if at the time of the execution of the will, spouse is NOT
YET guilty. (notes)
3. Commission by an heir, devisee or legatee of an act of unworthiness
Art. 830. No will shall be revoked except in the following cases: 4. Transformation, alienation, loss of object bequeathed (legacy or devise)
(1) By implication of law; or subsequent to the execution of the will
(2) By some will, codicil, or other writing executed as provided in case of wills; or 5. Judicial demand of credit given as legacy
(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 What is revocation by subsequent will? (Requisites)
by his express direction. If burned, torn, cancelled, or obliterated by some other 1. The subsequent will must comply with the format requirement of a will
person, without the express direction of the testator, the will may still be 2. The testator must possess testamentary capacity
established, and the estate distributed in accordance therewith, if its contents, 3. The subsequent will must either contain
and due execution, and the fact of its unauthorized destruction, cancellation, or a) express revocatory clause, or
obliteration are established according to the Rules of Court. b) implied (or be incompatible with the prior will) -> see Art. 831
4. That such subsequent will be also probated (Molo v. Molo)
Modes of revocation of a will 5. Requisite under Art. 832
1. By implication of law Effect of probate of will: The probate of will is bar to the allowance of
By operation of law another will subsequently discovered provided the latter is proved to be
2. By some will, codicil, or other writing executed as provided in case of posterior to the one already probated or in the contrary case (i.e.
wills anterior to probated will) if the two wills could stand together.
By subsequent will or codicil
Manner of revocation
Express When the instrument contains an express clause of revocation
Implied When it can be gathered from its general tenor as where the Requisites of revocation
testator makes a disposition so inconsistent with that made 1. The testator must have testamentary capacity at the time of performing
the act.
2. The act must be any of the overt acts specified.
What is revocation by physical destruction? Objective phase of act of revocation
1. Burning 3. It must be a completed act, i.e. actually carried out.
There must be at least a burning of part of the paper on which Rule: It must be at least complete in the mind of the testator
the will is written, although a very slight burn will suffice. 4. It must have been with the intent of revoking the will
Even if burned parts are the corners of paper only. (lagot yung Subjective phase of act of revocation
mga nagdedesign ng paper!) 5. It must have been done by the testator himself, or by some other person
2. Tearing by his express direction.
Includes cutting Note: A person guilty of interfering with the will of testator is
A slight act of tearing is generally held sufficient, although the disqualified from inheriting from the decedent.
greater degree of tearing the stronger is the presumption that Rule: The concurrence of BOTH the objective and subjective phase is a
the instrument was torn animo revocandi. MUST.
Crumpling of paper in the heat of anger is considered as
revocation. Total and partial revocation of will
3. Cancelling Cancelling or obliterating may result to total or partial revocation of will
To cancel is to make marks or lines across the written part of Partial revocation, example: If only on a particular provision of will with
the instrument. other provisions being unaffected.
Slight acts of cancelling, with the purpose of revoking a will, Total revocation, examples: Cancellation or obliteration of
may be sufficient for that purpose. 1. Everything or every provision
4. Obliterating 2. Signature of testator or any of the witnesses
To obliterate is to blot out so that the words affected are 3. Signature of testator on page 2 only
rendered illegible. 4. Date in a holographic will
It is not necessary that every word be obliterated.
Cancellation and obliteration of notarial in relation to holographic will How do you show the testator's intention to revoke by physical destruction?
Holographic will: Must be countersigned Corpus a) The physical destruction itself
Notarial will: Need not be countersigned as the law does not b) There must be evidence of physical destruction
require it BUT in reality, it is practicable for the testator to sign Animus a) Capacity or intent to revoke
to avoid fraud. b) The testator must have completed everything he
intended to do
Note: This includes the entire gamut of destruction like nuclear bomb, A completed and finished intention such as
flushing in the toilet or swallowing the said will :) throwing it in the trash can (nothing left for him
How must physical destruction be done? It must be done with the to do)
intention of revoking it Rule: The corpus and animus must concur to produce a valid revocation by physical
a) The testator himself, or destruction
b) By some other person, in his presence and by his express
direction What is the effect of the voluntary arrest or stoppage of revocation of will by
Effect: The effect of revocation is final. To re-establish the will, the testator?
testator MUST execute a new one. It will NOT give rise to revocation; no animus revocandi
EVEN if the will is totally burned if there is change of mind then the same
can be proven by testimonial evidence (notes) Estate of Maloto v. CA
It is clear that the physical destruction of a will, like burning in this case, does not
What is the effect of unauthorized physical destruction? per se constitute an effective revocation, unless the destruction is coupled with
If burned, torn, cancelled or obliterated without the express direction of animus revocandi on the part of the testator. It is not imperative that the physical
the testator: destruction be done by the testator himself. It may be performed by another
1. The will may still be established person but under the express direction and in the presence of the testator.
2. The estate distributed in accordance therewith provided that
the contents, due execution and the fact of its unauthorized In this case, the animus revocandi, or intention to revoke is only one of the
destruction, cancellation or obliteration are established necessary elements for the effective revocation of wills. The intention to revoke
according to the Rules of Court. must be accompanied by the overt physical act of burning, tearing, obliterating or
cancelling the will.
So the physically destroyed will may still be probated?
YES. But Art. 830 only refers to an ATTESTED WILL. It was not sufficiently established that the papers burned by the maid was a will of
the deceased. Even so, the burning was not proven to be done under the express
LOST OR UNAUTHORIZED DESTRUCTION direction of the testator and not in her presence.
Attested Will Holographic Will
May still be established by secondary GR: May no longer be probated (Gan v. Presumption and proof of revocation
evidence according to Rules of Court Yap) General presumption: A duly executed will has not been revoked.
XPN: Unless a copy survives (Rodelas v. Burden of proof of revocation: upon the opponent of will
Aranza) But if presumption of revocation arises, burden of proof: Proponent of
the will
Reason: Because the best and only
evidence is the HANDWRITING of the Instances where there is presumption of revocation
testator in said will. 1. Where a will which cannot be found is shown to have been in the
possession of the testator, when last seen, the presumption is, in the
Proof of loss of destroyed will absence of other competent evidence, that he destroyed it, animo
Rule 130, Sec. 4 RC: Upon proof of the execution and loss or destruction revocandi
of the original will, secondary evidence may be introduced to prove its 2. Where the testator had ready access to the will and it cannot be found
contents by: after his death.
1. A copy of will
2. Recital of its contents in some authentic document Gago v. Mamuyac
3. Recollection of witnesses Is there a presumption of revocation?
YES, as in this case.
Ratification of unauthorized destruction
Rule: The ratification or adoption by the testator of the prior destruction The law does not require any evidence of the revocation or cancellation to be
or mutilation of his will, with the intent on his part to revoke the preserved. It therefore becomes difficult at times to prove the revocation and
instrument, accomplishes a revocation, although the destructive act was cancellation of wills. The fact that such cancellation or revocation has taken place
not performed in the first instance in the presence of the testator or with must be inferred from evidence showing that after due search, the original will
his knowledge or consent. cannot be found.
XPN: Where the testator merely acquiesced to destruction without
making a new will is not sufficient to establish ratification. Where a will which cannot be found is shown to have been in the possession of the
testator, when last seen, the presumption is, in the absence of other competent When implied revocation present: If after the attempts of
evidence, that the same was cancelled or destroyed. The same presumption arises reconciliation there are still irreconcilable differences, the later
where it is shown that the testator had ready access to the will and it cannot be will impliedly revoked the prior one.
found after his death. (PRESUMPTION OF REVOCATION)
Illustration
Note that the force of the presumption of cancellation or revocation is NOT 2010: I give my entire hereditary estate 2013: I give my entire hereditary estate
conclusive, it may be overcome by proof that the will was NOT destroyed or solely to X solely to Y
revoked by the testator with the requisite intention. Total revocation
Y alone will inherit in this case
2010: I give X my entire hereditary 2013: I give my entire hereditary estate
Art. 831. Subsequent wills which do not revoke the previous ones in an express estate subject to a devise to Z consisting to Y
manner, annul only such dispositions in the prior wills as are inconsistent with or of my condo unit under CCT No. 123.
contrary to those contained in the latter wills. Partial revocation
Reason: The change is only with respect to the universal heir and not on
Complete revocation by a subsequent will devise.
It results when the general tenor of the later will shows clearly that the
testator so intended, or the two instruments are so plainly inconsistent as
to be incapable of standing together. What is the effect of revocation by subsequent will?
1. The first remains revoked.
Partial revocation by a subsequent will 2. Revocation is an absolute provision.
So much only of the will as is inconsistent with a later will or codicil is 3. It is independent of the acceptance or capacity of the new heirs.
deemed revoked. 4. The efficacy of the revocatory clause does not depend on the
GR: The earlier will is deemed to be revoked only to the extent necessary testamentary dispositions of the revoking will, unless the testator so
to give the later one effect, and both instruments are to be admitted to provides.
probate as constituting together the last will and testament of the
decedent. Doctrine of absolute revocation (GR)
XPN: If two instruments are so inconsistent as to be incapable of Rule: A probated new will, although valid, may become inoperative or
stand\\ing together in any of their parts. ineffective due to the incapacity of the heirs, devisees, or legatees or by
their renunciation or repudiation. This fact notwithstanding, the
Art. 832. A revocation made in a subsequent will shall take effect, even if the new revocation of the previous will remains effective.
will should become inoperative by reason of the incapacity of the heirs, devisees Reason: The revoking will is valid except that it was rendered inoperative
or legatees designated therein, or by their renunciation.
Doctrine of relative revocation (XPN)
Revocation by subsequent will Rule: The original will should remain in full force on the theory that the
1. EXPRESS: Express revocatory clause usually placed at the beginning of the testator meant the revocation of the old will to depend upon the efficacy
revoking will of the new will.
2. IMPLIED: Needs to be probated with prior and later wills for purposes of Note: The revoked will may be probated only if the subsequent revoking
comparison will is disallowed.
Probate court must determine whether or not testamentary This rule applies where the testator cancels or destroys a will or executes
provisions can be reconciled. an instrument intended to revoke a will with a present intention to make
a new testamentary disposition as a substitute for the old, and the new
disposition is not made, or, if made, fails to effect for some reason.
and void.
Summary
GR: The prior will is forever revoked. Falsity or illegality of cause
XPN: When the testator provides in the subsequent will that the revocation of the In this article, the revocation is made under the mistaken belief that the
prior one is dependent on the capacity or acceptance of the H,D,L instituted in the cause is true or legal but which turns out to be false or illegal.
subsequent will -> first will is not necessarily revoked. (dependent relative
revocation or conditional revocation) Manners of revocation vis-a-vis falsity or illegality of cause
REVOCATION BY SUBSEQUENT REVOCATION BY ACT
Molo v. Molo INSTRUMENT
What is the Dependent Relative Revocation (DRR)? Rule: The effect of a revocation clause Rule: If revocation by physical
The failure of the new testamentary disposition, upon whose validity the is not to be avoided by showing that it destruction under misapprehension of
revocation depends, is equivalent to the non-fulfillment of a suspensive was inserted in the will by mistake of law or fact:
condition, and hence, prevents the revocation of the original will. the testator, in any case where the 1. The revocation is NULL and
The revocation of the first will is considered conditional and dependent upon ground upon which the testator VOID, and
the efficacy of the new disposition. If for any reason the new will intended to proceeded does not appear in the 2. Parol evidence is admissible to
be made as a substitute becomes inoperative, the revocation fails, and the instrument itself. show that the testator would
original will remains in full force. Such would involve an not have revoked the will had
alteration of a will by parol. he not labored under such a
What is essential for the applicability of DRR? misapprehension.
It applies only if the testator intended his act of revocation to be conditioned But what if the revoking will reveals
on the making of a new will or on its validity or efficacy. the premise upon which the Example: A will destroyed with intent to
revocation was declared? revoke it under the mistaken belief of
Is DRR applicable in cases of revocation by physical destruction? the testator that in the event of his
In this case, the Court held in obiter, that the physical destruction of the will Rule: Proof that the testator was dying intestate, his wife would be
did revoke it (meaning first will subsists), on the inference drawn by the Court mistaken in the premises thus assumed entitled to the whole property, SHOULD
that the testator meant the revocation to depend on validity of a new one. by him to be true is not deemed an BE ADMITTED to probate upon proof of
alteration of the will by parol evidence. its contents.
Diaz v. De Leon It does not matter if the
The testator, shortly after the execution of the first will in question, asked that the mistake is one of law or fact.
same be returned to him. The instrument was returned to the testator who
ordered his servant to tear the document. Example: Where a testator by a codicil
or later will revokes a devise or legacy
The intention of revoking the will is manifest from the fact that the testator was in his will, expressly grounding such
anxious to withdraw or change the provisions he had made in his first will. The revocation on the assumption that the
original will herein presented for probate has been destroyed with animus legatees named in the will are dead,
revocandi. when, in fact, they are living, the
revocation does not take effect.
Balane: In order to revoke the first will, the second or subsequent will must be
valid and probated. A revoking will must be probated. Where rule not applicable: Where from
the instrument of revocation the
testator intended to determine for
Art. 833. A revocation of a will based on a false cause or an illegal cause is null himself the existence or non-existence
of the grounds of revocation. 2. Revoked will:
Where the testator was not a) Subsequent codicil/will
assuming the truth of Note: the earlier revoked will can just be incorporated by
information given to him by reference
others, but acted No need to go through entire ceremony of notarial will.
notwithstanding his doubts Shorter will is enough. Just republish and incorporate by
as to the verity of the ground reference the prior will.
stated, or where he must b) Re-execution
have known whether or not
the ground of revocation What if the testator lacks testamentary capacity during execution of the will, can
stated was true. it be republished?
NO! You cannot republish a VOID will. Just execute a new one (as if it is
Summary the first time)
Are wills revocable?
YES, wills are revocable ad nutum, at the pleasure of the testator. Art. 834. The recognition of an illegitimate child does not lose its legal effect,
even though the will wherein it was made should be revoked.
Must the testator have reason for revoking?
GR: NO, he need not have a reason or cause for revoking. Recognition of an illegitimate child in a revoked will
XPN: When there is a false or illegal cause Rule: The part of the will wherein the testator acknowledges an
1. The revocation is not given effect illegitimate child is NON-REVOCABLE.
2. The revocation is null and void Note: Recognition is an IRREVOCABLE act.
3. The first will subsists Even if the will is revoked, such recognition remains effective.
Reasons:
What are the requisites for the nullification of the revocation? 1. Recognition is not a testamentary disposition, and hence,
1. The cause must be concrete, factual and NOT purely subjective it takes effect not upon the death of the testator, but upon
This means that to have a valid revocation, the cause must be totally the execution of the will.
subjective 2. Recognition once made is irrevocable unless there be
2. The cause must be false vitiation of consent as where the revoking will was shown
3. The testator must not know its falsity to have been made under threat, violence, or undue
4. It must appear from the will that the testator s revoking because of the pressure or influence.
false cause
5. The illegal cause must be stated in the will as the cause of revocation REPUBLICATION AND REVIVAL OF WILLS

How about revocation by physical destruction? Art. 835. The testator cannot republish, without reproducing in a subsequent will,
If the revoked will is holographic, the revocation is invalid, and hence the dispositions contained in a previous one which is void as to its form.
preserving the first will.
BUT probate of the first will will still NOT be possible, unless a copy Art. 836. The execution of a codicil referring to a previous will has the effect of
survives. republishing the will as modified by the codicil.

Art. 835 Art 836


Important: Applicability of mode of republication Void as to form Void as to:
1. Void as to form: re-execution only 1. Non-formal defect
2. Previously revoked Hence, property acquired between the making of the first will and
How to republish How to republish the second will form part of the inheritance.
1. Execute new will 1. Execute new will or codicil 3. Dispositions shall be governed by the law enacted subsequently to the
2. Copy out the provisions from 2. Simply make references to the execution of the original will but was operative when the re-execution
original void will original void will was made.
Reference to original insufficient Reference to original sufficient Note: But the rule that a codicil draws a will down to its own date is
subject to the limitation that the intention of the testator must not be
defeated by its application.
Republication and revival, defined It does not operate to revive a devise or legacy which has been
REPUBLICATION REVIVAL satisfied.
The re-establishment by the testator of The re-establishment to validity by
a previously revoked will or one invalid operation of law of a previously Reminder: The date of the republication is the date of execution.
for want of proper execution as to form revoked will.
or for the other reasons, so as to give Illustration
validity to said will. Invalid execution: X inherits 3 parcels Re-execution: X inherits 200 parcels of
of land land
Kinds of republication This is controlling, X gets 200
REPUBLICATION BY RE-EXECUTION REPUBLICATION BY REFERENCE parcels of land
Express republication Implied republication
The testator reproduces in a The testator executes a codicil referring Republication by reference
subsequent will the dispositions to a previously revoked will which is Requisites
contained in a previous one which is valid as to its form, or to a will which is 1. The will must be void for causes other than as to its form
void as to its form. void not as to its form but for other 2. The codicil must refer to the previous will; and
causes, such as want of testamentary 3. It must be executed as in the case of a will
capacity.
Note: There is nothing wrong if the codicil reproduces the provisions of the
Republication by re-execution previous will instead of merely referring to it.
Note: The idea here is to oblige the testator to restate the dispositions contained in
his previous will. Reconstruction of a revoked will
Rules:
Requisites 1. A will which has been revoked is a nullity.
1. The original will must be void as to its form. 2. It cannot be revived except by republication
2. All the testamentary dispositions in the original will must be reproduced Example: A will is torn into pieces by testator. The same cannot be
(not merely referred to) in the subsequent will; and re-establish by just pasting the fragments or piece of papers. It must
3. The new will must be executed in accordance with all the formalities be republicated.
required by law.
Effects
Effects 1. A codicil revives a will previously revoked.
1. It operates to revive the previous will. 2. A codicil validates alterations made in the will subsequent to its
2. The dispositions in the original will are deemed to have been made as of execution but prior to the execution of the codicil.
the date of the latter will which should stand on its own merits. 3. A codicil may itself operate as revocation of the intervening will.
Effect: W3 revoking W2 will not Effect:
Art. 837. If after making a will, the testator makes a second will expressly revive W1 GR: W3 revoking W2 revives W1.
revoking the first, the revocation of the second will does not revive the first will, XPN:
which can be revived only by another will or codicil. W1 expressly revoked by W2, W2 1. W3 itself is inconsistent
revoked by W3 with W1.
Second will expressly revoking the first, revoked by third "Instanter" an express 2. When W2 is holographic
Rule: The revocation of the second will does not revive the first. revocation is immediately final and it is revoked by physical
The revival must be by republication, ether expressly or impliedly and executory. destruction, probate is no
(execution of another will or codicil). In this case, if the only longer possible unless a
testamentary provision in W3 is copy survives
Illustration revocation of W2 then the
Will 1 -> Will 2 -> Will 3 decedent died intestate.

Effect: The revocation of Will 2 will not revive Will 1. PROBATE: ALLOWANCE AND DISALLOWANCE OF WILLS

Reason for non-revival of first will Art. 838. No will shall pass either real or personal property unless it is proved and
Theory of instant revocation: The revocation of a will by a later will is allowed in accordance with the Rules of Court.
effective immediately (that is inter vivos) upon the execution of the later The testator himself may, during his lifetime, petition the court having
will jurisdiction for the allowance of his will. In such case, the pertinent provisions of
Once a will has been revoked, it cannot be considered as having the Rules of Court for the allowance of wills after the testator's a death shall
either a present or potential existence as a will, even though it is govern.
preserved.
Accordingly, revoked will is not revived in the absence of some act of The Supreme Court shall formulate such additional Rules of Court as may be
the testator which adopts it as his present will necessary for the allowance of wills on petition of the testator.
Theory inconsistent with rule: But this theory is inconsistent with the
principle that wills take effect only upon death. Subject to the right of appeal, the allowance of the will, either during the lifetime
of the testator or after his death, shall be conclusive as to its due execution.
Balane's comment
This is a funny provision! Why? Probate, defined
Because in order for the revocation of W1 to be effective, W2 must be The act or process of proving before a competent court the due
probated. But W2 has already been revoked by W3. execution of an instrument purported to be the last will and testament of
It suggests that revoked wills (W2) are still submitted for probate. a deceased person for its allowance by the said court, that is, for its
official recognition and the carrying out of its provisions insofar as they
Exception to non-revival: Does this provision apply to all kinds of revocation of are in accordance with law.
W2? It is the statutory method of establishing in court the proper execution of
NO. This provision applies only if the revocation of W1 by W2 is express an instrument and adjudging it as the valid will of a deceased person.
(express revocation). Balane: It is a judicial proceeding where the will is "tested" for its
If W1 is revoked by W2 only impliedly: the revocation of W2 by W3 compliance with the formal validity of wills.
revives W1, unless W3 itself is inconsistent or incompatible with W1. It is the FIRST PART of two stages in a settlement proceeding.
1. Probate of will -> extrinsic validity
W1 REVOKED BY W2 EXPRESSLY W1 REVOKED BY W2 IMPLIEDLY 2. Settlement proper -> intrinsic validity
Art. 837 applies. Art. 837 does NOT apply. The probate of wills is MANDATORY.
b) Any heir named in the will
Contest of the will, defined c) Any heir having interest in the estate
An attempt to defeat an instrument offered as a will on the ground of its d) Actual custodian of the will even if not named as executor
invalidity. Rule: ANY person with interest can file a petition for probate, even if
custodial of the will disagrees.
Nature of probate proceedings It is sufficient that he shows prima facie evidence of his or her
1. Special proceeding relationship to the testator, or his right to latter's estate.
The court should relax the rules on evidence Precedence of testate over intestate proceedings: Even if court takes
2. Testamentary proceeding cognizance of intestate proceedings, a probate proceeding will prevail;
3. Proceeding in rem the former may be dismissed since testacy is favored over intestacy.
Notice by publication is sufficient. Personal notice upon heirs is Who can oppose?
only a matter of satisfying due process. a) Those with interest under the will
When probate is granted, it is binding upon everybody even b) Those with interest under the law
against the State Strangers CANNOT oppose the probate of a will.
4. Proceeding in which the area of inquiry is limited to an examination of,
and resolution on, extrinsic or formal validity of the will. 2. Ante-mortem probate: That which is had upon petition by the testator
5. Proceeding required by public policy himself during his lifetime.
The statute of limitations and rule of estoppel are NOT
applicable to probate proceedings. Advantages of ante-mortem probate
BUT once probated: The annulment of the will may be barred 1. Easier for the court to determine the mental condition of the testator
by prescription and res judicata. (since he is still alive)
When there is estoppel to contest provisions of will: When the 2. Fraud, intimidation and undue influence are minimized.
contestant has already accepted benefits under the same will.\ 3. Lessens the number of contests upon the wills

Necessity for probate Disadvantages of ante-mortem probate


1. Because the law expressly provides that "no will shall pass either real or Even after probate, testator can change the same.
personal property unless it is proved and allowed in accordance with
Rules of Court." Matters to be resolved by probate court: EXTERNAL VALIDITY only
2. Because the probate of will, which is a proceeding in rem, cannot be 1. Due execution of a will: It refers to the formal or extrinsic validity of the
dispensed with and substituted by any other proceeding, judicial or will
extra-judicial. 2. Age and mental capacity of testator
3. Because public policy requires it for unless the will is probated and notice 3. Signing of document by the testator
thereof given to the whole world, the right of a person to dispose his 4. Acknowledgment of the instrument by him in the presence of the
property by will may be rendered nugatory. required number of witness
4. Because absent legatees and devisees, or such of them as may have no Only purpose of probate: To establish conclusively the fact that a will
knowledge of the will, could be cheated of their inheritance, thru the was executed with the formalities and solemnities required by law for the
collusion of the heirs. validity of the will and that the testator was in a condition to make a will.

Kinds of probate Matters outside the authority of probate court


1. Post mortem probate: That which is had after the testator's death. 1. Declaration of heirs
Who can file? 2. Ruling on the filiation of the decedent
a) Executor named in the will 3. Intrinsic validity or legality of the provisions of the will
a) That a certain legacy is void and another one is valid conjugal partnership in order to determine the estate
b) That a certain person has been disinherited of the decedent which is to be distributed to the
c) That a certain person has a right or no right to an inheritance heirs.
4. Adjudicate on title of properties claimed to part of the estate
5. Other matters of legal relationship such as validity of marriage, filiation of Requirements before probate court acquires jurisdiction over the will
children or qualification of heirs There must be evidence showing that:
Effect of decision on these matters: The ruling of the probate court on a) That a person died leaving a will
these matters is mere PROVISIONAL and NOT BINDING. b) If resident citizen: he died in the province where the court
exercises territorial jurisdiction
EXCEPTION: When probate court can decide on intrinsic matters of will If non-resident citizen: he has left an estate in the province
GR: The court does not determine nor even by implication prejudge the where the court is situated
validity or efficacy of the testamentary provisions of a will. c) Last will of deceased has been delivered to the probate court
Note: The question of intrinsic validity of a will normally comes
only after the court has declared that the will has been duly Actions by court in probate proceedings
authenticated. 1. The probate of the will of the decedent
XPN: (Intrinsic validity of will passed upon) 2. Grants letter of administration to the party best entitled or to any
a) The appellate court can meet the issue of the validity of the qualified applicant
provisions of the will even before it is probated. 3. Supervises and controls all acts of administration
o Occurs when the parties shunted aside the question 4. Hears and approves claims against the estate of the deceased
of allowance of will and travelled on issue of intrinsic 5. Orders payment of lawful debts
validity, and the probate court rejects the will 6. Authorizes sale, mortgage, or any encumbrance of real estate
b) Will void on its face 7. Directs the delivery of the estate to those entitled thereto
i. There is preterition
ii. All properties in the will does not belong to the Witnesses to probate: NO OPPOSITION TO WILL*
testator Notarial will: Only one of the subscribing witnesses only, if such witness
c) Ownership of property disposed of in issue testifies that the will was executed as required by law.
o Where the decedent was not the sole owner of the Holographic will: At least one witness who knows the handwriting and
property conveyed by him in his will, the disposition signature of the testator.
of the whole property to the prejudice of the other He must explicitly declare that will and signature are in the
co-owners may be declared invalid. handwriting of the testator.
If no witness: Then EXPERT WITNESS.
Authority of probate court to adjudicate title to property
GR: Question of ownership is a matter which the probate court cannot Witnesses to probate: WILL IS CONTESTED
resolve with finality. Notarial will, GR: All subscribing witness and notary public
XPN: (Probate court may pass upon issue of ownership) XPN: If witness is dead, insane or not residing in the
a) Where interested parties are all heirs, and rights of third Philippines, the court may admit witnesses to prove the due
persons are not impaired, it is optional to them to submit to execution of the will and the sanity of the testator
the probate court a question as to title of property. Holographic will: At least three witnesses who know the handwriting and
b) When the controversy is whether the property in issue belongs signature of the testator
to the conjugal partnership or conclusively to the decedent. If no 3 witnesses: Then EXPERT WITNESS
Reason: The same is within the jurisdiction of the Note: In HW, it is not necessary that witnesses first be
probate court which necessary has to liquidate the presented before expert testimony may be resorted to.
o In the contrary case, if the two wills could stand
Characteristics of probate of will* together.
1. Mandatory b) If a will is already probated during the lifetime of the testator,
2. Imprescriptible can he make another will thereafter? YES, he can revoke the
3. Proceeding in rem probated will and create a new will before his death.
4. Court can proceed to partition in accordance with will, legitime.
Probate of will: MANDATORY Parties can even petition to extrajudicial partition.

Guevara v. Guevara, 74 P 479 Dela Cerna v. Potot


If the decedent left a will and no debts and the heirs and legatees desire to make The final decree of probate has conclusive effect as to his last will and testament,
an extrajudicial partition of the estate, they must first present that will to the court despite the fact that even then the Civil Code already decreed the invalidity of joint
for probate and divide the estate in accordance with the will. They may not wills.
disregard the provisions of the will unless those provisions are contrary to law.
The lower court committed error in allowing the joint will but having given a final
The suppression of wills is contrary to law and public policy, because unless the judgment on the probate, the same is binding upon the whole world. It does not
will is probated and notice thereof given to the whole world, the right of a person affect the conclusiveness of its final decision, however erroneous.
to dispose of his property by will may be rendered nugatory, as is attempted to be
done in the instant case. Absent legatees and devisees, or such of them as may The courts have spoken with finality when the will was probated.
have no knowledge of the will, could be cheated of their inheritance thru the
collusion of some of the heirs who might agree to the partition of the estate among Matters rendered final, conclusive and res judicata by the probate of will
themselves to the exclusion of others. Gallanosa v. Arcangel
The decree of probate is conclusive as to the due execution or formal validity of the
The probate of a will is a proceeding in rem, and cannot be dispensed with and will. It means that:
substituted by any other proceeding, judicial or extrajudicial, without offending 1. Testator: of sound and disposing mind at the time when he executed the
public policy. will
2. Testator: not acting under duress, menace, fraud, or undue influence
What is a decree of probate? 3. Will: is signed by him in the presence of the required number of
A declaration of the court that the will in question conforms to the witnesses
requirement for formal validity. 4. Will: is genuine and not a forgery

Effects of probate of will* These facts cannot be questioned again in a subsequent proceeding. After the
1. It is res judicata finality of the allowance of will, the issue as to voluntariness of its execution cannot
2. Conclusive as to the due execution of the will be raised anymore. It was rendered in a proceeding in rem and binding upon the
3. Conclusive that the testator was of sound and disposing mind at the time whole world.
when he executed the will and not acting under violence, intimidation,
fraud, or undue influence. Probate of will: IMPRESCRIPTIBLE
XPN to the finality of probate decree Can even be filed after the death of testator
a) Allowance of subsequent will: The probate of will is no bar to Effect of belated discovery of will and the estate was already divided pursuant to
the allowance of another will subsequently discovered, intestacy:*
provided: 1. Any prior partition pursuant to intestacy is deemed VACATED.
o The latter is proved to be posterior to the one already 2. Probate of newly discovered will will have MODIFICATORY effect with
probated; or respect to third person who acquired the property even in good faith.
3. If the transfer to third person has no right under the will, such transfer is Influence by kindness and affection NOT undue influence: Influence gained by
NULL and VOID even if the third person is purchaser in good faith. kindness and affection will not be regarded as 'undue,' if no imposition or fraud be
practiced, even though it induces the testator to make an unequal and unjust
Probate of will: PROCEEDING IN REM disposition of his property in favor of those who have contributed to his comfort
Order by the court binding upon all third persons (not just creditors, or and ministered to his wants, if such disposition is voluntarily made.
heirs)
Notes: No undue influence because there is NO MORAL ASCENDANCY.
Jurisdictional facts in probate
1. Death (in case of post-mortem probate) 5TH GROUND: Fraud
2. Publication The testator knew that he was signing a will but through fraud or trickery
3. Copies of petition were served to all interested parties if ordered by the he was misled or deceived as to the contents of the document.
Court Burden of proof: The party challenging bears the burden to prove fraud.
4. Will itself
6TH GROUND: Mistake
Art. 839. The will shall be disallowed in any of the following cases: The testator did not intend to sign a will, as when, he believed that he
was signing a deed of sale in lieu of which the will was substituted.
(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 ADD 7TH GROUND: When will is revoked.
the time of its execution;
th
(3) If it was executed through force or under duress, or the influence of fear, or ADD 8 GROUND: Joint will.
threats;
(4) If it was procured by undue and improper pressure and influence, on the part Revocation and disallowance, distinguished
of the beneficiary or of some other person; REVOCATION DISALLOWANCE
(5) If the signature of the testator was procured by fraud; Made by the voluntary act of the Made by means of a judicial decree
(6) If the testator acted by mistake or did not intend that the instrument he testator himself
signed should be his will at the time of affixing his signature thereto. Can be made with or without cause Must always be for any of the causes
provided by law
The grounds for disallowance are EXCLUSIVE. May be partial or total Generally total except where the fraud
Effects if any of these grounds is present or undue influence affects only a part of
Will is VOID. the will
Note: Wills are either valid or void only. There is no such thing Takes place during the lifetime of the Usually invoked after the testator's
as a voidable will even if the ground is vitiated consent. testator death
BOTH presuppose an existing will and both render the affected will null and void.
4TH GROUND: Undue influence
Rule: Mere general or reasonable influence over a testator is not INSTITUTION OF HEIR
sufficient to invalidate a will.
Guideline: To be sufficient to avoid a will, the influence exerted must be
Intrinsic Validity
of a kind that so overpowers and subjugates the mind of the testator as Involves naming of heir and giving of property
to destroy his free agency and make him express the will of another,
Testamentary act of testator in naming and designating testamentary
rather than his own. heirs who will benefit from the will.
Purpose: To prevent unintended persons from acquiring property from
Coso v. Deza, 42 P 596 the FDP of the estate.
If the testator intends an unequal apportionment, he should
Art. 840. Institution of heir is an act by virtue of which a testator designates in his specify
will the person or persons who are to succeed him in his property and Example: "I give to A & B my parcel of land."
transmissible rights and obligations. Note:
1. This article applies only in testamentary succession among
Institution of heir, definition heirs, devisees and legatees
An act by virtue of which a testator designates in his will the person or 2.
persons who are to succeed him in his property and transmissible rights What if one of the two testamentary heirs is a compulsory heir?
and obligations. The legitime of the compulsory heir must be respected first and set aside,
Note: In general, the provisions on institution of heir are applicable to the thereafter the remainder or FDP shall then be equally divided between
designation of devisees and legatees. the said heirs.

Characteristics of an instituted heir Institution in favor of class or group of heirs


1. A testamentary heir In the absence of contrary intent , the testator, by designating a class or
2. He continues the judicial personality of the testator group, intended all members thereof to succeed per capita.
BUT only to the extent of inheritance
3. Can be natural or judicial persons Institution of brothers and sisters
If natural: at least conceived Whether the brothers and sisters are all half blood or full blood,
If juridical: must not be prohibited to succeed under the law legitimate or illegitimate, the inheritance shall be distributed equally.
4. He acquires rights which are limited to the FDP Note: The same is NOT true in intestate succession, there is a proportion
5. He is presumed to have been instituted of 2:1 between the full and half blood brothers and sisters.

Kinds of Institution INDIVIDUALITY


1. Universal: inherit a fraction or aliquot part or whole portion of the Art. 847. When the testator institutes some heirs individually and others
estate collectively as when he says, "I designate as my heirs A and B, and the children of
2. Devise or Legacy: inherit an individualized item from estate C," those collectively designated shall be considered as individually instituted,
Important: Devisee or legatee are preferred over universal heirs unless it clearly appears that the intention of the testator was otherwise.

Principle of Equality and Individuality of Designation


Principles of Institution GR: Following the rule of equality in 846, there is also a presumption that
heirs collectively referred to are designated per capita along with those
EQUALITY separately designate.
Art. 846. Heirs instituted without designation of shares shall inherit in equal XPN: If the testator intended a block designation, he should specify
parts. Example: I give X and all my nieces 1M.
If there are 19 nieces, then they will all (19 nieces + X) receive
Art. 848. If the testator should institute his brothers and sisters, and he has some their inheritance equally as if they are all named individually.
of full blood and others of half blood, the inheritance shall be distributed equally Another example: I institute A and B as my heirs, and all members of
unless a different intention appears. Power Class 3A.
The total will not be 3 because you will have to count all the
Rule: Unless testator specified otherwise, two or more heirs named shall members of Power Class 3A, including yours truly :)
inherit in equal shares. IF "I give to all my relatives 1M"
Different rule: Apply rule of proximity thus not all relatives will 3. The instituted heir repudiate or be incapacitated to accept the
inherit inheritance (VALID but inoperative)

SIMULTANEITY Second requisite: INSTITUTION PERSONALLY DONE BY TESTATOR


Art. 849. When the testator calls to the succession a person and his children they
are all deemed to have been instituted simultaneously and not successively. Important provisions to remember:
1. Art. 784: The making of a will is a strictly personal act; it cannot be left in
Institution of a person and his children whole or in part of the discretion of a third person, or accomplished
When testator calls to inheritance a person and his children, they must through the instrumentality of an agent or attorney.
inherit equally. 2. Art. 785: The duration or efficacy of the designation of heirs, devisees or
Example: I give to X and his 7 children my parcel of land legatees, or the determination of the portions which they are to take,
X cannot claim alone; they all inherit equally when referred to by name, cannot be left to the discretion of a third
Note: This also illustrates the principle of equality and individuality (per person.
capita). 3. Art. 787: The testator may not make a testamentary disposition in such
manner that another person has to determine whether or not it is to be
Requisites of valid and effective institution (VPA-CAA) operative.
1. Valid will Note: The testator may make a testamentary disposition of specific
2. Institution of heirs personally done by the testator property or sums of money in favor of specified classes (e.g. mental
3. Institution within the authority given by law to the testator retardees, poor) or causes (e.g. peace in our country, campaign against
4. True and genuine cause drug addiction).
5. Heir is certain or at least ascertainable in identity The testator then can entrust to a third person named in the
6. Heir is alive, willing, capacitated and NOT disqualified to inherit will not only the distribution (partition and delivery) of the
7. No preterition/pretermission (see earlier discussion on preterition) property or money BUT also the designation of beneficiaries to
which the same will be given or applied.
First requisite: VALID WILL
Art. 841. A will shall be valid even though it should not contain an institution of Third requisite: FREEDOM OF DISPOSITION BY TESTATOR
an heir, or such institution should not comprise the entire estate, and even Art. 842. One who has no compulsory heirs may dispose by will of all his estate or
though the person so instituted should not accept the inheritance or should be any part of it in favor of any person having capacity to succeed.
incapacitated to succeed.
One who has compulsory heirs may dispose of his estate provided he does not
In such cases the testamentary dispositions made in accordance with law shall be contravene the provisions of this Code with regard to the legitime of said heirs.
complied with and the remainder of the estate shall pass to the legal heirs. If the testator has no compulsory heirs, his freedom of disposition is absolute
in character. The whole estate is disposable.
Valid will He can, therefore, dispose of the whole of his estate or any part of it in
It must meet the requirements for probate or allowance favor of any person, provided that such person has the capacity to
succeed.
Will is still valid even if: If the testator has compulsory heirs, his freedom of disposition shall extend
1. It does not institute an heir as where the will merely disinherits a only to the disposable free portion of his estate, but not to the legal portion of
compulsory heir or acknowledges an illegitimate child. his legitime.
2. The institution does not cover the entire estate (result to mixed Restrictions on Disposition
succession) 1. The estate of the testator shall be liable for the latters obligations; and
2. The testator cannot dispose of or encumber the legitime of the inheritance, and the parts together exceed the whole inheritance, or the whole
compulsory heirs free portion, as the case may be, each part shall be reduced proportionally. (n)

Art. 843. The testator shall designate the heir by his name and surname, and Art. 854. The preterition or omission of one, some, or all of the compulsory heirs
when there are two persons having the same names, he shall indicate some in the direct line, whether living at the time of the execution of the will or born
circumstance by which the instituted heir may be known. 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.
Even though the testator may have omitted the name of the heir, should he
designate him in such manner that there can be no doubt as to who has been If the omitted compulsory heirs should die before the testator, the institution
instituted, the institution shall be valid. (772) shall be effectual, without prejudice to the right of representation. (814a)

Art. 844. An error in the name, surname, or circumstances of the heir shall not Art. 855. The share of a child or descendant omitted in a will must first be taken
vitiate the institution when it is possible, in any other manner, to know with from the part of the estate not disposed of by the will, if any; if that is not
certainty the person instituted. sufficient, so much as may be necessary must be taken proportionally from the
shares of the other compulsory heirs. (1080a)
If among persons having the same names and surnames, there is a similarity of
circumstances in such a way that, even with the use of the other proof, the Art. 856. A voluntary heir who dies before the testator transmits nothing to his
person instituted cannot be identified, none of them shall be an heir. (773a) heirs.

Art. 845. Every disposition in favor of an unknown person shall be void, unless by A compulsory heir who dies before the testator, a person incapacitated to
some event or circumstance his identity becomes certain. However, a disposition succeed, and one who renounces the inheritance, shall transmit no right to his
in favor of a definite class or group of persons shall be valid. (750a) own heirs except in cases expressly provided for in this Code.

Art. 850. The statement of a false cause for the institution of an heir shall be FOURTH REQUISITE: The institution must be based on true or genuine cause
considered as not written, unless it appears from the will that the testator would GR: No need to state reason for it is a pure gratuity even if it is remunerative.
not have made such institution if he had known the falsity of such cause. (767a) XPN: If the cause is found to be false, the institution is rendered void;
requisites:
Art. 851. If the testator has instituted only one heir, and the institution is limited 1. The testator instituted heirs;
to an aliquot part of the inheritance, legal succession takes place with respect to 2. The cause for the institution is expressed in the will;
the remainder of the estate. 3. The cause is subsequently found to be untrue;
4. There is proof that the institution would not have been made had
The same rule applies if the testator has instituted several heirs, each being the testator known the truth.
limited to an aliquot part, and all the parts do not cover the whole inheritance.
(n) FIFTH REQUISITE: Heir must be certain or ascertainable by (a) name or (b) by
description
Art. 852. If it was the intention of the testator that the instituted heirs should Dispositions in favor of an unknown person shall be void, unless through some
become sole heirs to the whole estate, or the whole free portion, as the case may event or circumstances, his identity becomes certain.
be, and each of them has been instituted to an aliquot part of the inheritance and The institution of an unknown person will still be void even if by some
their aliquot parts together do not cover the whole inheritance, or the whole free future event he can be determined when the determination of the heir is
portion, each part shall be increased proportionally. (n) delegated by the testator to another.
The disposition in favor of a defined class or group is valid.
Art. 853. If each of the instituted heirs has been given an aliquot part of the If unknown despite description, effects:
a. The institution is invalidated; but The omission of the surviving spouse does not constitute preterition
b. Those valid provisions are not invalidated. because s/he is not a compulsory heir in the direct line.
Therefore, the only effect of her omission is a partial annulment of
Forms of Institution the institution of heirs to the extent that her legitime is not
The testator shall designate the heir by his name and surname. However, this prejudiced.
form is not mandatory. The designation may be made in any other form, as 2. One, some, or all of them are omitted in the inheritance.
long as there is no doubt as to the identity of the heirs instituted 3. The omission is total which means that nothing at all has been giving in
favor of the omitted compulsory heir by way of an advance or that
Tests to Determine the Validity of Institution nothing is left in the hereditary estate after the institution of the heir
The proper test to determine the validity of the institution is the possibility of Remedy of affected heir is omission is not total: completion of
finally ascertaining the identity of the instituted heir either by intrinsic or legitime.
extrinsic evidence. The test is specifically applicable to the following cases: 4. The omitted heir is alive at the making of the will and/or at the opening
1. If the name and surname of the instituted heir has been omitted by the of succession
testator. Note: only those who is entitled to inherit in their own right may question the
2. If there has been an error with respect to the name, surname, or other will on the ground of preterition.
circumstances of the instituted heirs. Note: The share of the compulsory heir omitted in a will must first be taken
3. If the name, surname, and circumstances of the instituted heir are the from the part of the estate not disposed of by the will, if any; if that is not
same as those of other persons sufficient, so much as may be necessary must be taken proportionally from
4. If an unknown or uncertain person has been instituted. the shares of the other heirs given to them by will
Note: if the doubt as to who is instituted cannot be resolved, then it is the Effects:
same as if the testator has not expressed the same in his will. 1. If the omission is unintentional:
o Institution of universal heir is annulled.
SIXTH REQUISITE: The instituted heir is alive, capacitated, willing, and qualified o Institution of devisee or legatee is valid insofar as they are
This means that there is no predecease, renunciation, or incapacity of the heir not inofficious.
to inherit 2. If the omission is intentional:
In case of predecease or incapacity: o The institution is valid subject to the legitime of the
1. The voluntary heir who dies ahead of the testator transmits nothing omitted compulsory heir.
to his own heirs. 3. If the omitted compulsory heir dies before the testator,
2. The compulsory heir who dies ahead of the testator transmits his institution shall be effectual, without prejudice to the right of
rights to his representatives (in the direct descending line and representation.
collateral line; none in the ascending line). 4. Intestacy ensues.
3. Here, the representative inherits not from the person represented
but form the one whom the person would have succeeded. SUMMARY OF RULES in EQUALITY, INDIVIDUALITY, SIMULTANEITY
In case of renunciation: 1. If the shares of some heirs are designated, while those of others are not,
1. An heir who renounced his inheritance, whether compulsory or those parts designated shall be given to their owners, and the balance
voluntary, does not transmit any right to his own heirs. shall be divided equally among those whose shares are not designated
2. But he who repudiated may represent the person whose inheritance 2. If the shares of those whose portions are designated should consume the
he renounced. entire estate, those whose shares are not designated will inherit nothing
3. When there is no designation of shares but the testator has provided that
SEVENTH REQUISITE: There is no preterition specific things be given to each heir, and such things form only a portion
Preterition, requisites: of the estate, the institution must be considered as one without
1. There are compulsory heirs in the direct line; designation of shares and the heirs will divide the estate equally, but the
value of the specific things assigned to each must be included in the 2. To allow the testator to reward the various persons desired to acquire
amount that should pertain to each. subsequent benefit from the estate.
3. To avoid intestacy in any part of the hereditary estate.
INSTITUTION OF BROTHERS AND SISTERS in case some are of the full-blood and To prevent the inheritance from passing by operation of law to those to
others are of the half-blood whom the same would pass either by right of representation, or by right
1. In case of TESTATE succession, the inheritance shall be distributed equally of accretion, or by right of intestate succession, were it not for the
unless a different intention appears substitution.
2. In case of INTESTATE succession, those of the full-blood shall be entitled
to a share double that of those of the half-blood Article 859. The testator may designate one or more persons to substitute the
heir or heirs instituted in case such heir or heirs should die before him, or should
INSTITUTION ON ALIQUOT PARTS not wish, or should be incapacitated to accept the inheritance. A simple
Rule if the entire inheritance is not covered: substitution, without a statement of the cases to which it refers, shall comprise
a. Testator has no intention to make heirs as sole heir Apply the three mentioned in the preceding paragraph, unless the testator has
Mixed Succession otherwise provided.
b. Testator has intention to make heirs as sole heirs each part
is increased proportionately Article 860. Two or more persons may be substituted for one; and one person for
Rule if more than the inheritance is covered: each part is reduced two or more heirs.
proportionately
Article 861. If heirs instituted in unequal shares should be reciprocally
Thus, substituted, the substitute shall acquire the share of the heir who dies,
a. If there is only one heir, deliver the entire/fraction of/property to him renounces, or is incapacitated, unless it clearly appears that the intention of the
subject to any reduction testator was otherwise. If there are more than one substitute, they shall have the
b. If there are two or more heirs under the same testamentary provision, same share in the substitution as in the institution.
1. Apply the allocation prescribed by the testator
2. If silent, equal shares Article 862. The substitute shall be subject to the same charges and conditions
imposed upon the instituted heir, unless and testator has expressly provided the
SUBSTITUTION OF HEIRS contrary, or the charges or conditions are personally applicable only to the heir
instituted.
Article 857. Substitution is the appointment of another heir so that he may enter Kinds of substitution of heirs
into the inheritance in default of the heir originally instituted. 1. Vulgar substitution: that which takes place when the testator designates one
or more persons to substitute the heir or heirs instituted in case such heir or
Article 858. Substitution of heirs may be: (1) Simple or common; (2) Brief or heirs should die before him, or should not wish, or should be incapacitated to
compendious; (3) Reciprocal; or (4) Fideicommissary. accept the inheritance.
Substitution of heirs: another heir or heirs who will inherit in default of the first General Limitation: If the heir for whom a substitute is appointed is a
original heir intended. compulsory heir, the rule is that the substitution cannot affect the
Testator also permitted by law to make a second or subsequent designation in legitime of such heir.
case the heirs, devisees or legatees originally appointed should die before him The testator designates a second heir who will inherit in case the first heir
or should not want or cannot accept the inheritance. instituted either of the following:
Question: Why does the law allows substitution of heirs? a. dies ahead of the testator (predeceased) or;
Answer: b. refuses or repudiates the inheritance or;
1. To allow the Testator greater freedom in identifying persons or persons c. declared incapacitated or disqualified
who will benefit from the estate.
In the same testamentary disposition, there are actually two heirs named
the first heir and the substitute heir. Article 867. The following shall not take effect:
The substitute heir will only inherit if the first or original heir does not by
reason of the cause or causes stated in the will. Such causes are limited (1) Fideicommissary substitutions which are not made in an express manner,
these are predeceased, incapacity or repudiation. either by giving them this name, or imposing upon the fiduciary the absolute
Thus vulgar substitution is actually a form of alternative succession obligation to deliver the property to a second heir;
provided only one will inherit.
Therefore as far as the substitute heir is concerned his or her institution (2) Provisions which contain a perpetual prohibition to alienate, and even a
is subject to suspensive condition. temporary one, beyond the limit fixed in article 863;
nd
Question: What is the suspensive condition imposed upon the 2 heir?
Answer: That the first heir dies ahead or becomes incapacitated or (3) Those which impose upon the heir the charge of paying to various persons
repudiates. successively, beyond the limit prescribed in article 863, a certain income or
If the substitute inherits, as a rule, the substitute is subject to the same pension;
conditions or burdens imposed by the testator on the original heir unless
otherwise stated. (4) Those which leave to a person the whole or part of the hereditary property in
Example: I hereby give to A 1M provided he passes the Bar. B can order that he may apply or invest the same according to secret instructions
substitute A in case of predecease, incapacity or repudiation. communicated to him by the testator. (785a)
If B substitutes, B must also pass the Bar.
If he does not pass, the substitution is rendered INEFFECTIVE. Article 868. The nullity of the fideicommissary substitution does not prejudice the
XPNs validity of the institution of the heirs first designated; the fideicommissary clause
1. When the testator has expressly provided the contrary; or shall simply be considered as not written. (786)
2. When the charges or conditions are personally applicable only to the
heir instituted. Article 869. A provision whereby the testator leaves to a person the whole or part
of the inheritance, and to another the usufruct, shall be valid. If he gives the
Article 863. A fideicommissary substitution by virtue of which the fiduciary or usufruct to various persons, not simultaneously, but successively, the provisions
first heir instituted is entrusted with the obligation to preserve and to transmit to of article 863 shall apply. (787a) Article 870. The dispositions of the testator
a second heir the whole or part of the inheritance, shall be valid and shall take declaring all or part of the estate inalienable for more than twenty years are void.
effect, provided such substitution does not go beyond one degree from the heir (n)
originally instituted, and provided further, that the fiduciary or first heir and the 2. Fideicommissary substitution/indirect substitution: the testator designates a
second heir are living at the time of the death of the testator. (781a) first heir known as the fiduciary who is imposed the obligation to observe and
then later transmit the same inheritance to a second heir also known as
Article 864. A fideicommissary substitution can never burden the legitime. (782a) fideicommissary substitute.
Both fiduciary and fideicommissary substitute inherit simultaneously
Article 865. Every fideicommissary substitution must be expressly made in order from the testator. There is simultaneous succession from the moment of
that it may be valid. The fiduciary shall be obliged to deliver the inheritance to death of the testator.
the second heir, without other deductions than those which arise from legitimate However the inheritance of the fideicommissary substitute is subject to a
expenses, credits and improvements, save in the case where the testator has suspensive period which is the death of the fiduciary or arrival of the time
provided otherwise. (783) fixed by the testator in the will.

Article 866. The second heir shall acquire a right to the succession from the time Requisites of a valid fideicommissary substitution:
of the testator's death, even though he should die before the fiduciary. The right 1. The fideicommissary substitution must be expressed in the will.
of the second heir shall pass to his heirs. (784) By calling it fideicommissary substitution.
But if not specifically called as such, it should be construed as such for as Fiduciary heir has the obligation to preserve the property but that obligation is
long as the testator imposes the obligation to preserve and later convey co-extensive only to the value of the inheritance and make an inventory.
or transmit the property to another. At the time of death of the testator, fiduciary can make improvements,
Example: (1) Keep the property unimpaired so that it will pass to another; can explore, exploit or abuse the property for as long as he does not
(2) Not to alienate so that it may be passed to another. alter the substance of the property in usufruct same as fiduciary.
2. The fiduciary and the fideicommissary substitute must NOT go beyond one Question: When can the fiduciary transmit the inheritance to the
degree. fideicommissary heir?
One degree means one transfer. The transfer must be from fiduciary to Answer:
the fideicommissary substitute. 1. Period stated by the testator in the will.
nd
If the testator imposss upon the fiduciary and the 2 heir the perpetual However if the fideicommissary substitution imposes the absolute
obligation to keep transmitting the property to some other person or to prohibition to sell or alienate it cannot go beyond 20 years.
several persons successively then it is void beyond one degree. 2. If no period is specified, then the obligation to transmit will arise upon
If the gift refers to income or usufruct, or to pension imposed by the the death of the fiduciary
testator to the first heir, the provision is valid within one degree. Even if it takes MORE THAN 20 years.
One degree is also one degree of relationship. Its the heirs of the fiduciary who has the obligation to transmit.
o The transfer cannot also go beyond parent and child. The fiduciary can deliver earlier than the period stated or prior to
Exception: The second heir is the CATHOLIC CHURCH. death voluntarily.
Except for the Catholic Church, juridical persons cannot be instituted
under a fideicommissary substitution because they do NOT have children Rights of the fideicommissary substitute:
or parents. 1. While the fiduciary is enjoying the inheritance, the fideicommissary
Question: Can it be between husband and wife? substitute may protect the right by seeking inscription or annotation of
Answer: No. They are strangers. No related to each other by one degree. the right in the appropriate registry.
3. Both the fiduciary and the fideicommissary heir must be alive, willing and 2. Upon the death of the fiduciary or upon the period stated by the testator,
capacitated to inherit at the time of death of the testator. the fideicommissary may compel delivery or consolidation of the title.
The fiduciary acquires only the beneficial interest over the inheritance. Note: The operations of a fideicommissary substitution is similar to reserva
The fideicommissary substitute acquires naked title or ownership at the troncal except that reserva troncal is by operation of law
time of death of the testator.
4. The substitution must not burden the legitime of compulsory heirs. Whether vulgar or fideicommissary substitution, the substitution may be the
Thus, if the testator institutes his own son as the first heir or fiduciary following:
nd st
imposing upon him the obligation to preserve and to transmit to the 1. Ordinary: if there is only one substitute or 2 heir or one original or 1
second heir or fideicommissary the whole or part of the inheritance, the heir.
substitution shall be understood to refer only to the disposable free 2. Brief: implies a plurality of substitutes whereby in the will, two or more
st
portion of such inheritance. substitutes were named by the testator to the original or 1 heir.
3. Compedious: implies a plurality of heirs to be substituted.
Effect of Death Example: A and B are the original heir; their substitute is C.
1. If the fiduciary died before the testator, treat it as vulgar substitution. If A cannot inherit then C can take his share; if B cannot inherit then
2. If the fideicommissary substitute dies ahead of the testator it is as if there C will get his share.
was no substitution, similar to institution of heirs. If both A and B cannot inherit, then C will get the entire inheritance.
3. If both of them died ahead, the testamentary disposition will now 4. Reciprocal: most effective in vulgar substitution whereby the heirs
become inoperative and it will pass by intestacy. instituted become the substitute of one another.
Example:
1. I hereby give to A and B 1M, to substitute each other.
If A dies ahead, becomes incapacitated or repudiates, B gets whatsoever upon the legitimes prescribed in this Code. Should he do so, the same
the share of A. shall be considered as not imposed. (813a)
Therefore B will inherit 500K as the original heir and because of
the default on the part of A, B also gets the share of A as Article 873. Impossible conditions and those contrary to law or good customs
substitute. shall be considered as not imposed and shall in no manner prejudice the heir,
2. I hereby give to a A 1/4 and B , and both shall substitute one even if the testator should otherwise provide. (792a)
another.
If A cannot inherit then, B will get 750K as original heir and Article 874. An absolute condition not to contract a first or subsequent marriage
250K as substitute. shall be considered as not written unless such condition has been imposed on the
3. I hereby leave with A,B and C a parcel of land and should any of widow or widower by the deceased spouse, or by the latter's ascendants or
them die ahead, become incapacitated, or repudiates they shall descendants.
be substitute one another.
They are presumed to inherit equally. What if A does not Nevertheless, the right of usufruct, or an allowance or some personal prestation
inherit, how much will B and C inherit? may be devised or bequeathed to any person for the time during which he or she
B will get his original 1/3 of land plus the 1/3 of the 1/3 of A should remain unmarried or in widowhood. (793a)
because the share in the substitution is the share in the
institution. Article 875. Any disposition made upon the condition that the heir shall make
C will get his original share 1/3 plus 1/3 of the 1/3 of A. some provision in his will in favor of the testator or of any other person shall be
The 1/3 of the 1/3 of A will pass to intestacy unless the testator void. (794a)
states otherwise. Classification of testamentary dispositions:
1. Pure institution: does not contain a period or cause or a motive or a
Substitutions that are considered void or ineffective condition.
1. Substitution that is not express and clear as to the intent of the testator. The heir instituted inherits immediately upon the moment of death of
2. A fideicommissary substitution which goes beyond one degree. the testator.
3. Perpetual prohibition to alienate the property imposed by the testator in 2. Conditional institution: the right to inherit is subject to a suspensive or
the will. resolutory condition
4. One that allows a specified to person to use the inheritance in
accordance to some secret instruction purportedly left by the testator. a. Must be espressly stated in the will.
So that it may not be applied for purposes which are illegal or illicit Otherwise the will would be interpreted as a mere order or as a mode
or in order that it may not pass to those who are incapacitated to imposed by the testator.
inherit from the testator. The consequence in case of violation of the condition must also be stated
Here, there is no fideicomissary substitution since there is no duality If there is NO CONSEQUENCE, its NOT A CONDITIONAL INSTITUTION .
of heirs.
There is a simple institution of heirs, but the inheritance is not for b. Must NOT be contrary to law, public policy, public order, morals and good
the benefit of the instituted heir since it will be applied or invested customs.
according to the secret instructions which had been communicated Sabinian doctrine: the condition itself must not be contrary to law, public
to such heir by the testator. policy, public order, morals and good customs.
Under the Sabinian Doctrine, the following testamentary conditions are NULL
Article 871. The institution of an heir may be made conditionally, or for a certain AND VOID:
purpose or cause. (790a) 1. A Testamentary condition in the will shall be governed by a particular law.
2. A No contest and forfeiture clause is also null and void
Article 872. The testator cannot impose any charge, condition, or substitution
Provides that should any of the heirs named in the will question or c. Must observe the principle of the untouchability of the legitime of
contest the will for any ground then they will forfeit their inheritance. compulsory heirs, save only the testator declares that the hereditary estate
It suppresses the truth surrounding the execution of the will. shall not be partitioned for a period which shall not exceed twenty years.
It is simply disregarded as if it were not written.
3. Testamentary condition requiring that the will is implemented immediately d. Must not be an impossible one.
without necessity of a probate. It is not possible of realization because it is contrary to either, physical,
Note: Probate is mandatory. juridical or moral laws, it shall be considered as not imposed.
4. Disposicion Captatoria
This is an absolutely void testamentary disposition and therefore anyone Article 876. Any purely potestative condition imposed upon an heir must be
named under cannot inherit. fulfilled by him as soon as he learns of the testator's death.
A testamentary disposition requiring the heir named therein the will to
also institute the testator in the formers will. This rule shall not apply when the condition, already complied with, cannot be
Testamentary succession is an act of liberality, not a contractual fulfilled again. (795a)
agreement.
5. An absolute condition not to marry or not to re-marry Article 877. If the condition is casual or mixed, it shall be sufficient if it happen or
Contrary to morals and public policy because it would deprive a person of be fulfilled at any time before or after the death of the testator, unless he has
one of his inherent or inalienable rights the right to choose his own provided otherwise.
status.
Considered as not imposed. Should it have existed or should it have been fulfilled at the time the will was
Heir is prohibited by the testator to get married to anyone at anytime executed and the testator was unaware thereof, it shall be deemed as complied
and anywhere. with.
Condition not to contract subsequent marriage
Valid when: If he had knowledge thereof, the condition shall be considered fulfilled only when
1. When it is imposed by the deceased spouse himself; it is of such a nature that it can no longer exist or be complied with again. (796)
2. When it is imposed by the ascendants of the deceased spouse; and
3. When it is imposed by the descendants of the deceased spouse. Article 878. A disposition with a suspensive term does not prevent the instituted
When validly imposed, resolutory in character. heir from acquiring his rights and transmitting them to his heirs even before the
The child here is the child of the widow or widower. arrival of the term. (799a)
BUT this only affects the free disposable portion.
If it a mere it is a mere relative condition not to marry it is a VALID ONE. Article 879. If the potestative condition imposed upon the heir is negative, or
A generic condition to contract marriage; consists in not doing or not giving something, he shall comply by giving a security
A specific condition to contract marriage with a determinate person that he will not do or give that which has been prohibited by the testator, and
(Jurado); and that in case of contravention he will return whatever he may have received,
A specific condition not to contract marriage with adeterminate person. together with its fruits and interests. (800a)
Example: If the disposition imposed WHEN to get married or WHOM to
marry It is valid. Ex. I hereby give to X 10M provided he does not marry Article 880. If the heir be instituted under a suspensive condition or term, the
Y. She can get married to anyone except Y. estate shall be placed under administration until the condition is fulfilled, or until
The violation of that would result to forfeiture of the inheritance. it becomes certain that it cannot be fulfilled, or until the arrival of the term.
If forced to marry someone, then it is null and void because it would
amount to coercion (MLR). The same shall be done if the heir does not give the security required in the
preceding article. (801a)
Article 881. The appointment of the administrator of the estate mentioned in the 2. If the condition is casual or mixed, may be fulfilled before or after the
preceding article, as well as the manner of the administration and the rights and testators death, unless he has provided otherwise.
obligations of the administrator shall be governed by the Rules of Court. (804a) a. If the condition had already been fulfilled at the time of the execution of
the will and the testator was unaware thereof, it shall be deemed to have
Purely potestative condition: is one whose fulfillment depends exclusively been complied with.
upon the will of the heir, devisee or legatee. b. If the condition has already been fulfilled at the time of the execution of
Casual condition: is one whose fulfi llment depends exclusively upon chance the will and the testator had knowledge thereof, the condition shall, as a
and/or upon the will of a third person. rule, still have to be complied with, unless it is of such a nature that it can
Mixed condition: is one whose fulfi llment depends jointly upon the will of the no longer exist or be complied with again.
heir, devisee or legatee and upon chance and/or the will of a third person.
Article 885. The designation of the day or time when the effects of the institution
Suspensive conditional institution: the heir inherits not at the moment of death of of an heir shall commence or cease shall be valid.
the testator BUT at the time of the fulfillment of the condition.
Therefore the heir subject to the suspensive condition must be alive, willing In both cases, the legal heir shall be considered as called to the succession until
and qualified to inherit at both times at the time of death AND at the time of the arrival of the period or its expiration. But in the first case he shall not enter
the fulfillment of the condition. into possession of the property until after having given sufficient security, with
If the conditional heir died before having fulfilled the condition but after the the intervention of the instituted heir. (805)
death of the testator, the testamentary disposition is INOPERATIVE.
Vacancy filled by: 3. Testamentary disposition with a term
1. Substitute Affects not the right to inherit but the demandability of the inheritance.
2. Co-heir The right to inherit is vested from the death of the testator.
3. Intestacy
Pending the happening of the suspensive condition, the property should be Suspensive period (ex die): the heir can only demand the inheritance only upon
placed under administration until such time that the condition is fulfilled or the expiration of the said period.
until it becomes certain that it cannot be fulfilled (or until the arrival of the The property must be placed under administration by the intestate heirs until
term, in case of suspensive term) the suspensive period arises.
Heir can demand delivery only at the happening of the condition. The intestate heir that is under administration that will pay for the bond
Heir has a mere hope or expectancy protected by law. because they are the ones enjoying the property while the period is being
awaited
Resolutory conditional institution: the conditional heir inherits immediately at the Resolutory period (in diem): the arrival of the period extinguished the very right of
moment of death but the right to the inheritance is extinguished upon the the inheritance itself in which case the inheritance must be returned.
happening of the resolutory condition. Heir must pay a bond in favor of a substitute or the intestate heirs
Heir must pay a caucion muciana or a bond to answer for the failure to deliver If the instituted heir or the devisee or legatee should die after the death of the
the property in case the condition already exists. testator, before the expiration of the suspensive term or period, his right to
the inheritance, devise or legacy shall be transmitted to his own heirs the heir.
Time of fulfillment, rule
1. If the condition is purely potestative, the heir must fulfill it as soon as he Article 882. The statement of the object of the institution, or the application of
learns of the testators death. the property left by the testator, or the charge imposed by him, shall not be
Not applicable when the condition already complied with, cannot be considered as a condition unless it appears that such was his intention.
fulfilled again.
That which has been left in this manner may be claimed at once provided that the
instituted heir or his heirs give security for compliance with the wishes of the
testator and for the return of anything he or they may receive, together with its Unless it can be clearly shown that the testator would not have designated
fruits and interests, if he or they should disregard this obligation. (797a) or instituted the heir if the testator had known of the falsity of the cause.

Article 883. When without the fault of the heir, an institution referred to in the Collation
preceding article cannot take effect in the exact manner stated by the testator, it
shall be complied with in a manner most analogous to and in conformity with his Art. 905. Every renunciation or compromise as regards a future legitime between
wishes. the person owing it and his compulsory heir is void, and the latter may claim the
same upon the death of the former; but they must bring to collation whatever
If the person interested in the condition should prevent its fulfillment, without they may have received by virtue of the renunciation or compromise.
the fault of the heir, the condition shall be deemed to have been complied with. The prohibition cannot be applied to donations inter vivos made by the
(798a) testator to a compulsory heir. Such donations, which are presumed to be
advances of the legitime, are allowed by the law but subject to collation.
Article 884. Conditions imposed by the testator upon the heirs shall be governed
by the rules established for conditional obligations in all matters not provided for Art. 906. Any compulsory heir to whom the testator has left by any title less than
by this Section. (791a) the legitime belonging to him may demand that the same be fully satisfied.
Right of action to the compulsory heir who is prejudiced to demand for the
4. Modal/Sub Modo institution completion of his legitime.
Mode: the statement of the object of the institution, or the application of the If the heir cannot lose his legitime, neither can he demand more than what it
property left by the testator, or the charge imposed by him not conditional in amounts to.
character. By any title: the property which the testator had given to the compulsory
The burden shall not exceed the value of the inheritance. heir, and which is not sufficient to cover the legitime of such heir, might not
Rules: have been disposed of by the will itself, but by some other gratuitous title,
1. The doubt as to whether the testamentary disposition is conditional or such as by way of donation, during the lifetime of the testator.
modal, the doubt must be in favor of a modal institution because the
modal institution is less cumbersome or less onerous upon the heir Art. 907. Testamentary dispositions that impair or diminish the legitime of the
2. A modal institution obligates the heir but does not suspense the right to compulsory heirs shall be reduced on petition of the same, insofar as they may be
inherit. inofficious or excessive.
3. In case the mode specified by the testator in the will is violated by the Refers not only to those dispositions in favor of voluntary heirs, but also to all
heir, the heir may be compelled to return not just the capital but all the legacies, devises, and other charges which are chargeable against the
fruits and interest derived there from the moment that the heir acquired disposable free portion of the hereditary estate.
the property. Considered inofficious if they are in excess of the disposable free portion of
4. Violation of a modal institution operates as a resolutory condition upon the hereditary estate thus resulting in the impairment of the legitime of
the heir. compulsory heirs.
Effect: They shall be reduced on petition of the compulsory heirs who are
5. Subdemonstratione/motivated institution: testator expresses in the will, the prejudiced.
reason, the motive or cause for the designation of the heir.
If the institution is based on a cause or motive that cause or motive must be Art. 908. To determine the legitime, the value of the property left at the death of
a true and lawful one. the testator shall be considered, deducting all debts and charges, which shall not
If the cause in the will is illicit, the institution is INVALIDATED. include those imposed in the will.
On the other hand if the cause ort motive is stated in the institution is FALSE
as a general rule, simply disregard the cause and the institution operates as To the net value of the hereditary estate, shall be added the value of all
a pure one as if no cause at all. donations by the testator that are subject to collation, at the time he made them.
3. Reduction or Return: Actual act of restoring to the hereditary estate that
Art. 909. Donations given to children shall be charged to their legitime. part of the donation which is inoffi cious in order not to impair the legitime
of compulsory heirs.
Donations made to strangers shall be charged to that part of the estate of which To protect the legitime of compulsory heirs.
the testator could have disposed by his last will. The law gives an option to the donee to choose between a collation of
value or a collation in kind.
Insofar as they may be inofficious or may exceed the disposable portion, they Based on the three meanings of collation ultimately the purpose is to protect
shall be reduced according to the rules established by this Code. the legitime of the compulsory heirs.
Purpose is to resolve any conflict that may rise between or among the
Art. 910. Donations which an illegitimate child may have received during the compulsory heirs as against the rights of the transferees of property by way of
lifetime of his father or mother, shall be charged to his legitime. donation inter vivos or of other gratuitous forms of conveyances.

Should they exceed the portion that can be freely disposed of, they shall be Steps in Collation
reduced in the manner prescribed by this Code. This is only necessary when there is donation inter vivos or some form of
gratuitous transfer made by the testator.
Collation is understood in three senses or meanings: 1. Determination of the gross value of the estate at the time of the death of the
testator.
1. Computation: Fictitious mathematical process of adding the value of the In case of administration proceedings, the executor or administrator,
thing donated to the net value of the hereditary estate. within three months after his appointment, shall return to the court a
To compute the legitime of compulsory heirs true inventory or appraisal of all the real and personal estate of the
2. Imputation: Charging or imputing such value against the legitime of the deceased which have come to his possession or knowledge.
compulsory heir to whom the thing was donated. No administration proceeding, it is the actual value of the estate which
To take the donations in the account of the partition in order to should be taken into consideration, and not the sentimental value.
equalize the shares of the compulsory heirs as much as possible. The valuation or appraisal may even be made by common agreement.
If the donor has expressly provided either in the deed of donation or in Include all void or simulated deed of sale made to strangers.
his will that the donation given 2. Determination of all debts and charges which are chargeable against the
to a compulsory heir shall not be collated, the value of such donation shall be estate.
imputable against the disposable portion and not against the legitime of such 3. Determination of the net value of the estate by deducting all of the debts and
heir. charges from the gross value of the estate.
a. Charged against the legitime of the compulsory heirs If the estate is insolvent, there can be no collation because the heir
Based on the principle that if a compulsory heir is a beneficiary of a cannot be made liable for the debts of the testator/decedent.
donation inter vivos, the latter is an advance of the legitime. 4. Collation or addition of the value of all donations inter vivos to the net value
b. Charged against the free disposable portion (made to strangers) of the estate.
This is applicable only for donation inter vivos made to non- The value to be collated or added is the value of the thing donated at the
compulsory heirs. time when the donation was made.
Those donations inter vivos are advances from the free disposable Any loss, deterioration, or improvement of the thing donated from the
portion. time when the donation was made up to the time of the settlement of
Thus, in imputing the same, the value of the donation inter vivos at the donors estate shall be for the account or for the benefit of the
the time of the donation shall be subtracted. donee.
Therefore if as a result of the collation as imputation, there is an Donation was made to a compulsory heir or to a stranger.
excess given to the compulsory heir-donee then the excess shall 5. Determination of the amount of the legitime from the total thus found in
now be further charged against the free disposable portion. accordance with the rules (Arts. 888-903) established in the Civil Code.
In order to distribute the hereditary estate in accordance with the will of the pro rata, after first satisfying all of those which the testator has declared to be
testator, two more steps are added to the above steps. preferential.
6. Imputation of the value of all donations inter vivos made to compulsory heirs
against their legitime and of the value of all donations inter vivos made to Art. 912. If the devise subject to reduction should consist of real property, which
strangers against the disposable free portion and restoration to the hereditary cannot be conveniently divided, it shall go to the devisee if the reduction does
estate if the donation is inofficious. not absorb one-half of its value; and in a contrary case, to the compulsory heirs;
7. Distribution of the residue of the estate in accordance with the will of the but the former and the latter shall reimburse each other in cash for what
testator. respectively belongs to them.

Art. 911. After the legitime has been determined in accordance with the three The devisee who is entitled to a legitime may retain the entire property, provided
preceding articles, the reduction shall be made as follows: its value does not exceed that of the disposable portion and of the share
pertaining to him as legitime.
(1) Donations shall be respected as long as the legitime can be covered, reducing
or annulling, if necessary, the devisees or legacies made in the will; Art. 913. If the heirs or devisees do not choose to avail themselves of the right
(2) The reduction of the devises or legacies shall be pro rata, without any granted by the preceding article, any heir or devisee who did not have such right
distinction whatever. may exercise it; should the latter make use of it, the property shall be sold at
If the testator has directed that a certain devise or legacy be paid in preference to public auction at the instance of any one of the interested parties.
others, it shall not suffer any reduction until the latter have been applied in full to (MLR) Rules on reduction of devise consisting of real estate/immovables
the payment of the legitime. 1. If the reduction absorbs at least half or more than half of the value of the real
(3) If the devise or legacy consists of a usufruct or life annuity, whose value may estate then the property itself must be given to the CH but the CH will have to
be considered greater than that of the disposable portion, the compulsory heirs pay in cash the reduced value of the devisee to the heir.
may choose between complying with the testamentary provision and delivering 2. If the reduction is less than half of the value of the realty, the devisee is
to the devisee or legatee the part of the inheritance of which the testator could entitled to the property subject to payment to the CH of their legitime in cash.
freely dispose. 3. Divide the land if physically viable.
DIV preferred over DMC
Legacies or devises, are the first to be reduced or even suppressed if Rules in reduction of legacies and devises:
necessary. 1. If the reduction of the devise does not absorb one-half of the value of the
If after such suppression, the value of the donations inter vivos cannot still be property, said property shall go to the devisee, but with the obligation of the
covered by the disposable portion, then such value shall be reduced in order latter to reimburse the compulsory heirs in cash for what pertains to them by
to preserve the legitime of compulsory heirs. virtue of the reduction.
DUV are irrevocable by their very nature 2. If the reduction absorbs more than one-half of the property, said property
PRIORITY IN TIME IS PRIORITY IN RIGHT shall go to the compulsory heirs. The latter, however, shall reimburse the
devisee in cash in order to cover up the reduced amount of the devise
Order of Preference Formula:
1. Legitime of compulsory heirs; second Reduced legacy___ Legacy to be reduced
2. DIVs Disposable portion Total of all legacies
3. Preferred legacies
4. All other legacies or devises. (MLR) Determination of the value of the usufruct in a property
If after satisfyin the legitime of compulsory heirs, the disposable portion is By ANNUAL NET INCOME multiplied by the REMAINING LIFESPAN OF THE
sufficient to cover donations inter vivos, but not sufficient to cover the REMAINING USUFRUCTUARY or PERIOD OF USUFRUCT IF ANY WAS
legacies and devises, the rule is that such legacies and devises will be reduced AGREED UPON.
Compute the reasonable annual value that may be derived from the use of and descendants, legitimate as well as illegitimate.
the usufructuary of the property. So if it is presently used for agriculture
then determine the net value of the harvest of such agricultural land (1) When a child or descendant has been found guilty of an attempt against the
delivered to usufructuary and then multiply it to the remaining lifespan of life of the testator, his or her spouse, descendants, or ascendants;
the latter. (2) When a child or descendant has accused the testator of a crime for which the
In insurance, the expected lifespan of a human being is 80. law prescribes imprisonment for six years or more, if the accusation has been
found groundless;
Disinheritance (3) When a child or descendant has been convicted of adultery or concubinage
with the spouse of the testator;
Art. 915. A compulsory heir may, in consequence of disinheritance, be deprived (4) When a child or descendant by fraud, violence, intimidation, or undue
of his legitime, for causes expressly stated by law. 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
Art. 916. Disinheritance can be effected only through a will wherein the legal disinherits such child or descendant.
cause therefor shall be specified. (6) Maltreatment of the testator by word or deed, by the child or descendant;
(7) When a child or descendant leads a dishonorable or disgraceful life;
Art. 917. The burden of proving the truth of the cause for disinheritance shall rest (8) Conviction of a crime which carries with it the penalty of civil interdiction.
upon the other heirs of the testator, if the disinherited heir should deny it. Ground #1:
Attempted or frustrated parricide the law requires
Art. 918. Disinheritance without a specification of the cause, or for a cause the There must have been a previous criminal conviction
truth of which, if contradicted, is not proved, or which is not one of those set No previous criminal conviction needed if the attempt is made against the life
forth in this Code, shall annul the institution of heirs insofar as it may prejudice of the testator, will constitute a valid ground for disinheritance, provided that
the person disinherited; but the devises and legacies and other testamentary it falls within the scope or purview of maltreatment of the testator by word
dispositions or deed
shall be valid to such extent as will not impair the legitime. If the conviction by final judgment took place after the death of the testator
Disinheritance: act of the testator in depriving a compulsory heir of his legitime for give it a retroactive effect.
causes expressly stated by law The conviction by final judgment must be for the appropriate kind.
Requisites: The attempt on the life must be intentional one.
1. The disinheritance must be for a cause expressly stated by law; If consummated, the ground is disqualification or incapacity, not
2. The disinheritance must be effected only through a valid will; disinheritance.
No tacit/implied disinheritance.
3. The legal cause for the disinheritance must be specified in the will itself; Ground #2:
4. The cause for the disinheritance must be certain and true; Accusation includes not only the act of the disinherited heir of instituting
the burden of proving the truth of the cause for disinheritance shall the criminal action, but also any act of intervention such as being a witness for
rest upon the other heirs of the testator if the disinherited heir the prosecution, by which he accuses the testator of having committed the
should deny it. crime charged.
5. The disinheritance must be total; and Imputation alone is not the cause for disinheritance, it is the subsequent
6. The disinheritance must be unconditional. finding that the accusation was false.
7. The cause of the disinheritance was already, existing at the time of the Baseles if the accused is acquitted by reason of non-authorship.
execution of the will or codicil (MLR).
Ground #3
FInal judgment of conviction is an essential requisite.
Art. 919. The following shall be sufficient causes for the disinheritance of children
Even without a previous criminal conviction, adultery or concubinage with the (3) When the parent or ascendant has accused the testator of a crime for which
spouse of the testator may be a ground for disinheriting the child or the law prescribes imprisonment for six years or more, if the accusation has been
descendant, provided that it falls within the scope or purview of living a found to be false;
disgraceful or dishonorable life (4) When the parent or ascendant has been convicted of adultery or concubinage
To disinherit the spouse, the ground there is giving cause for legal with the spouse of the testator;
separation. (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;
Ground #4 (6) The loss of parental authority for causes specified in this Code;
There was vice of consent. (7) The refusal to support the children or descendants without justifiable cause;
For the CH to be validly and effectively disinherited, the will executed through (8) An attempt by one of the parents against the life of the other, unless there
force etc. should be annulled or disallowed for probate. has been a reconciliation between them.
Ground #1
Ground #5 Abandonment within the meaning of the law refers to the failure of the
Food, clothing shelter, medical assistance, transportation parents to give to their children due care, instruction and support.
Requisites: No need for final conviction arriving thereof.
a) First if there is a legal obligation to provide for such support. Legal Attempted against their virtue: committed acts of lasciviousness, rape,
obligation because its imposed by the Family Code. seduction etc.
b) The Testator must have demanded such support. Either judicial or extra-
judicial. Ground #6
c) That the CH has sufficient means to provide such support Willful and deliberate acts
d) That the CH refused or rejected such demand. Two Grounds for loss of Parental Authority:
Under the Family Code, the need of the payee and the means for the payor a) Death
must be balanced. b) Abandonment
What if there is restoration of the parental authority?
Ground #6 Two Views:
Either verbal or physical abuse upon the testator. 1. The restoration of parental authority deprives the testator of the right to
It is sufficient but it must be an intentional or deliberate act. disinherit because there would be no more ground for the disinheritance.
Not negligence or reckless imprudence. 2. The restoration will not deprive the testator of the right to disinherit
because it is founded on the character of the heirs itself.
Ground #7
There is no hard and fast rule for acts that would constitute acts that would Ground #8
lead for these grounds of disinheritance. A final judgment of conviction is not an essential requisite.
This is dependent on the perception of the testator and the public as far as the
act of the child is concerned. Art. 921. The following shall be sufficient causes for disinheriting a spouse:

Art. 920. The following shall be sufficient causes for the disinheritance of parents (1) When the spouse has been convicted of an attempt against the life of the
or ascendants, whether legitimate or illegitimate: testator, his or her descendants, or ascendants;
(2) When the spouse has accused the testator of a crime for which the law
(1) When the parents have abandoned their children or induced their daughters prescribes imprisonment for six years or more, and the accusation has been
to live a corrupt or immoral life, or attempted against their virtue; found to be false;
(2) When the parent or ascendants has been convicted of an attempt against the (3) When the spouse by fraud, violence, intimidation, or undue influence causes
life of the testator, his or her spouse, descendants, or ascendants; the testator to make a will or to change one already made;
(4) When the spouse has given cause for legal separation;
(5) When the spouse has given grounds for the loss of parental authority;
(6) Unjustifiable refusal to support the children or the other spouse. Rules on validity and effect of legacy or devise
Ground #4
Ground for legal separation LEGACY OR DEVISE OF A THING BELONGING TO ANOTHER
a. Repeated physical violence Testator erroneously believed that the property
Void
b. Moral Pressure belonged to him
c. To Compel to change religion The thing bequeathed afterwards becomes his by
Valid
d. Inducement to engage in bigamy whatever title
e. Bigamous marriage LEGACY OR DEVISE OF THING ALREADY BELONGING TO THE LEGATEE OR DEVISEE
f. Homosexuality The thing already belongs to the legatee or devisee
g. Sexual infidelity Void
at the time of the execution of the will (Art. 932, CC)
h. Attempt on the life of the spouse The thing is subject to an encumbrance or interest of Valid only as to the interest
i. Drunkenness another person (Art. 932, CC) or encumbrance
j. Abandonment for one year Legatee or devisee subsequently alienates the thing
However if the decree of legal separation by operation of law, the guilty Void
(Art. 933,CC)
spouse is disqualified to disinherit. After alienating the thing, the legatee or devisee
Void
subsequently reacquires it gratuitously (Art. 933,CC)
Art. 922. A subsequent reconciliation between the offender and the offended After alienating the thing, the legatee or devisee Legatee or devisee can
person deprives the latter of the right to disinherit, and renders ineffectual any acquires it by demand reimbursement
disinheritance that may have been made. onerous title (Art. 933, CC) from the heir or estate
Resumption of cordial relations.

Art. 923. The children and descendants of the person disinherited shall take his or Order of payment if free disposable portion is not sufficient to cover all legacies
her place and shall preserve the rights of compulsory heirs with respect to the and devises
legitime; but the disinherited parent shall not have the usufruct or administration ORDER OF PREFERENCE
of the property which constitutes the legitime.30 Art. 911 Art. 950
Effects of disinheritance 1. Legitime of compulsory heirs 1. Remuneratory legacy/devise
1. Deprivation of the compulsory heir who is disinherited of any participation in 2. Donation inter vivos 2. Preferential legacy/devise
the inheritance including his legitime. 3. Preferential legacies or 3. Legacy for support
2. If the compulsory heir has children or descendants of his own, such children or devises 4. Legacy for education
descendants shall take his or her place and shall preserve his or her right with 4. All other legacies and devises 5. Legacy/devise of specific,
respect to the legitime, although the disinherited parents shall not have the pro rata determinate thing which forms
usufruct or administration of the property which constitutes the legitime. a part of the estate
6. All others pro rata
LEGACY OR DEVISE WHEN APPLIED
o When the reduction is necessary o When there are no compulsory
What is a legacy? to preserve the legitime of heirs and the entire estate is
o A gift of personal property given in a will compulsory heirs from distributed by the testator as
impairment whether there are legacies or devises; or
What is a devise? donations inter vivos or not; or o When there are compulsory heirs
o A gift of real property given in a will
o When, although, the legitime has but their legitime has already been payment of natural obligations
been preserved by the testator provided for by the testator and o The choice is with the heir, or the
himself there are donations inter there are no donations inter vivos. executor or administrator
vivos. o If the heir, legatee or devisee dies
Alternative legacies and devises
IMPORTANT the right passes to their heirs
Art. 911, CC governs when there is a Art. 950, CC governs when the question o Once made, the choice is
conflict between compulsory heirs and of reduction is exclusively among irrevocable
the devisees and legatees. legatees and devisees themselves o Legacy is valid even if there are no
things of the same kind in the
Different Objects of Legacies and Devises (Art. 934-944,CC) estate
1. Legacy of a thing pledged or mortgaged to secure a debt (Art 934, CC) o Devise of indeterminate real
2. Legacy of credit, or remission or release of a debt (Art 935 CC) Legacy of generic personal property or property valid only if there are
3. Legacy to the debtor of thing pledged by him (Art 936, CC) indeterminate real property immovable property of the same
4. Legacy or devise to a creditor if the testator orders the payment of a debt kind in the estate
(Art 939, CC) o The choice belongs to the heir,
5. Alternative legacies and devises (Art 940, CC) legatee or devisee or the executor
6. Legacy of generic personal property or indeterminate real property (Art or administrator
941, CC) o Lasts until the legatee is of age or
7. Legacy of education (Art 944, CC) beyond the age of majority in order
8. Legacy of support (Art 944, CC) that he may finish some
professional, vocational or general
LEGACY / DEVISE EFFECTS course provided he pursues his
o Estate is obliged to pay the debt Legacy of education course diligently
Thing pledged or mortgaged to secure o If testator did not fix the amount it
o Other charges pass to the legatee
a debt
or devisee is fixed in accordance with the
o Effective only as regards the credit social standing and circumstances
or debt existing at the time of the of the legatee and the value of the
testators death estate
o Legacy lapses if the testator later o Lasts during lifetime of legatee
Credit or remission or release of a debt
brings action against the debtor o If the testator used to give the
o If generic, comprises all legatee a sum of money for
credits/debts existing at time of support, give the same amount
execution of will unless it is markedly
o Only the pledge is extinguished; the Legacy of support disproportionate to the estate
Thing pledged by debtor o If testator did not fix the amount it
debt remains
o Shall not be applied to his credit is fixed in accordance with the
To a creditor social standing and circumstances
unless the testator so declares
o If testator does not really owe the of the legatee and the value of the
debt, the disposition is void estate
Order of payment of a debt o If the order is to pay more that the
debt, the excess is not due How shall legacy or devise be delivered?
o This is without prejudice to the 1. The very thing bequeathed shall be delivered and not its value
2. With all its accessions and accessories increase in each heir's shares in order not to exceed the total estate of Grey
3. In the condition in which it may be upon the death of the testator (assuming no legitimes were impaired)?
4. Legacies of money must be paid in cash
ORIGINAL INCREASE ACTUAL SHARE
What are the grounds for revocation of legacies and devises? (refer to formula) (Original Share +
1. Testator Transforms the thing such that it does not retain its original form Increase )
or denomination Karev 1/4 of is 6M 6M/20M x 4M = 7.2M
2. Testator Alienates the thing by any title or for any cause. Reacquisition of 24M 1,200,000
the thing by the testator does not make the legacy or devise valid, unless Yang 1/3 of Is 8M 8M/20M x 4M = 9.6M
it is effected by right of repurchase. 24M 1,600,000
3. Thing is totally Lost during the lifetime or after the death of the testator Bailey 1/4 of Is 6M 6M/20M x 4M = 7.2M
4. Other causes: nullity of will, non-compliance with suspensive condition, 24M 1,200,000
sale of the thing to pay the debts of the deceased during the settlement TOTAL 20M TOTAL = 4M TOTAL = 24M
of his estate. DEFICIENCY 4M

Examples: Napoles died testate, survived by her only acknowledged illegitimate child, Jeane.
The following are the testamentary dispositions found in her will:
Original Share a) A condo unit worth 6M to Enrile
FORMULA FOR of Heir b) Amorsolo painting worth 20M to Revilla (painting was stolen by Lupin
Excess /
DEDUCTION / Total x from the National Museum and bought by Napoles)
Deficiency
INCREASE Disposed c) A car worth 3M to Estrada
Share d) Jewelries worth 6M to Lapid
e) Drilon as universal heir
Grey died testate, leaving a total estate of P24M. According to her will, Karev gets At the time of death, Napoles had 60M worth of estate and 10M debt. Distribute
1/2, Yang 1/3 and Bailey 1/4. How do you reduce each heir's share in order not to the estate
exceed the total estate of Grey (assuming no legitime is impaired)?
60M Estate
ORIGINAL DEDUCTION ACTUAL SHARE LESS 10M Debt
(refer to formula) (Original Share - 20M Amorsolo painting (not part of Napoles' estate)
Deduction ) 30M Net estate
Karev 1/2 of is 12M 12M/26M x 2M = 11,076,923.08 LESS 15M Legitime of Jeane
24M 923,706.92 15M Free disposable portion
Yang 1/3 of Is 8M 8M/26M x 2M = 7,384,615.39 LESS 6M Devise of Enrile
24M 615,384.62 3M Legacy of Estrada
Bailey 1/4 of Is 6M 6M/26M x 2M = 5,538,461.53 6M Legacy of Lapid
24M 461,538.46 0
TOTAL 26M TOTAL = 2M TOTAL = 24M
EXCESS 2M In addition to the foregoing facts, what if the parent of Napoles, Gloria survived
her. Distribute.
Grey died testate, leaving a total estate of P24M. According to her will, Karev gets 60M Estate
1/4 of FDP, Yang 1/3 and Bailey 1/4. How will you compute the proportional LESS 10M Debt
20M Amorsolo painting (not part of Napoles' estate) Example:
30M Net estate If shares of the heirs in the will are as follows:
LESS 15M Legitime of Gloria a) Walter - 1/8
7.5M Legitime of Jeane b) Peter - 5/8
7.5M Free disposable portion c) William - 2/8
LESS 3M Devise of Enrile The value of the estate is P80,000. If William repudiates his 2/8 share thereby
1.5M Legacy of Estrada leaving a vacant P20,000 which shall go to Walter and Peter by accretion. The
3M Legacy of Lapid proportion is 1:5
0 ORIGINAL SHARE SHARE BY ACCRETION TOTAL SHARE
Walter 10,000 1/6 of 20,000 = 3,333.33 13,333.33
Note: We computed the amount to be given to legatees and devisee by using this Peter 50,000 5/6 of 20,000 = 16,666.67 66,666.67
formula:
Original Value
of L/D
Remaining INTESTATE SUCCESSION
LEGACY/DEVISE x Portion of
Total Value of
Estate Legal or Intestate Succession is that which is effected by operation of law in
L/D
default of a will
Enrile 6M/15M * 7.5M = 3M 10. It is legal because it takes place by operation of law.
Estrada 3M/15M * 7.5M = 1.5M 11. It is intestate because it takes place in the absence or in default of a last will of
Lapid 6M/15M * 7.5M = 3M the decedent
12. It is the law which operates, not the will of the decedent, but even when it is
In addition to the foregoing facts, it was discovered that Napoles made a donation the law which designates the persons who are to succeed, the basis of the
inter vivos in favor of Jeane worth 5M. Distribute. designation is the presumed will of the decedent.
6. In the absence of the persons for whom the decedent would have
60M Estate provided, it is presumed that he would have desired his property to pass
to the State.
LESS 10M Debt
20M Amorsolo painting (not part of Napoles' estate)
Art. 960. Legal or intestate succession takes place:
ADD 5M DIV to Jeane
(1) If a person dies without a will, or with a void will, or one which has
35M Net estate
subsequently lost its validity;
LESS 15M Legitime of Gloria
(2) When the will does not institute an heir to, or dispose of all the property
7.5M Legitime of Jeane (deliver only 2.5M)
belonging to the testator. In such case, legal succession shall take place only with
12.5M Free disposable portion
respect to the property of which the testator has not disposed;
LESS 5M Devise of Enrile (3) If the suspensive condition attached to the institution of heir does not happen
2.5M Legacy of Estrada or is not fulfilled, or if the heir dies before the testator, or repudiates the
5M Legacy of Lapid inheritance, there being no substitution, and no right of accretion takes place;
0 (4) When the heir instituted is incapable of succeeding, except in cases provided
in this Code.
Accretion
Under the law, the heirs to whom the portion goes by the right of accretion take it Without a will, the entire hereditary estate will pass through intestacy.
in the same proportion that they inherit.
Even where he has made a will there is always the possibility that it is void Beneficiaries are those in the direct Beneficiaries are not just in the direct
because of the existence of any of the grounds for the disallowance of wills line and the spouse. line but relatives by consanguinity in the
th
enumerated in Art. 839, NCC. collateral line up to the 5 degree.
7. Thus, it cannot be admitted to probate by the probate court. In the absence thereof, the Republic of
8. Only valid insofar as an acknowledgment of paternity in a will is the Philippines.
concerned.
A will subsequently lose its validity before the testators death when there is a Basic Rules:
revocation. 1. Only relatives by consanguinity can inherit from the decedent, except the
Mixed succession: will executed that does not cover the entire hereditary spouse.
estate. Step siblings are not entitled to inheritance.
It includes a case where the institution of heirs is void with respect to the 2. Among siblings, although equal in degree to the decedent, half-blood
disposition of certain properties but valid with respect to the disposition siblings inherit lesser than the full-blood. Also, iron-barrier rule must be
of other properties. observed.
Another cause of intestacy is if a testamentary disposition becomes ineffective 3. By special provision of the law, nieces and nephews exclude uncles and
or inoperative. aunts.
The condition which is attached is fulfilled or not fulfilled.
When the instituted heir, or legatee, or devisee dies before the testator, Rule on Equality: among those entitled to the hereditary estate, apply equality for
or is incapacitated to inherit from such testator, or repudiates his as long as they belong to the same class or group of intestate heirs.
inheritance, legacy or devise. Subject to: Divide the estate equally among them.
1. The right of the substitute if one has been designated by the XPNs:
testator; 1. Illegitimate children will not inherit equally with legitimate children.
2. The right of representation when it properly takes place; and 2. Among siblings, half-blood siblings inherit less than the full blood and are
3. The right of accretion when it properly takes place. subject to the iron-barrier rule.
If a testamentary disposition is made to depend upon the fulfillment of a 3. Nephews and nieces exclude uncles and aunts.
suspensive condition and such condition does not happen or is not
fulfilled. Principle of exclusion
If the testamentary disposition is subject to a resolutory condition and 1. In case of a legitimate decedent, LPAs cannot inherit for as long as there
such condition is fulfilled,the result is that the right of the heir, legatee or are LCDs.
devisee which he had already acquired at the time of the death of the 2. In case of an illegitimate decedent, LCDs or ICDs will bar :Pas from
testator is extinguished. inheriting.
Other casuses of intestacy: 3. The presence of relatives in the direct line exclude those in the collateral
When there is a preterition in the testators will of one, or some, or all of the line.
compulsory heirs in the direct line. 4. Within each class, apply the rule on proximity.
When a testamentary disposition is subject to a resolutory condition and such
condition is fulfilled, or Art. 961. In default of testamentary heirs, the law vests the inheritance, in
When a testamentary disposition is subject to a term or period and such term accordance with the rules hereinafter set forth, in the legitimate and illegitimate
or period expires relatives of the deceased, in the surviving spouse, and in the State.
When a testamentary disposition is impossible of compliance or is ineffective. Rule of preference between lines
Those in the direct descending line shall exclude in the succession those in the
FORCED SUCCESSION LEGAL/INTESTATE SUCCESSION direct ascending and collateral lines.
Superior over intestate succession. Subordinate to both forced and Those in the direct ascending line shall, in turn, exclude those in the collateral
testamentary succession. line.
descendants.
Art. 962. In every inheritance, the relative nearest in degree excludes the more
distant ones, saving the right of representation when it properly takes place. A collateral line is that constituted by the series of degrees among persons who
are not ascendants and descendants, but who come from a common ancestor.
Relatives in the same degree shall inherit in equal shares, subject to the
provisions of Article 1006 with respect to relatives of the full and half blood, and Art. 965. The direct line is either descending or ascending.
of Article 987, paragraph 2, concerning division between the paternal and
maternal lines. The former unites the head of the family with those who descend from him.
Rules of Proximity
In every inheritance, whether testamentary or intestate, the relatives nearest The latter binds a person with those from whom he descends.
in degree to the decedent shall exclude the more distant ones.
This rule presupposes that all of the relatives belong to the same line. Art. 966. In the line, as many degrees are counted as there are generations or
Rule of proximity is subordinated to the rule of preference between lines persons, excluding the progenitor.
.
XPN: Right of representation (see discussion on Art. 970) In the direct line, ascent is made to the common ancestor. Thus, the child is one
Rule of Equal Division degree removed from the parent, two from the grandfather, and three from the
Relatives of the same degree shall inherit in equal shares. great-grandparent.
This rule presupposes that all of the relatives belong to the same line.
XPNs: In the collateral line, ascent is made to the common ancestor and then descent is
1. When the inheritance is divided between paternal and maternal made to the person with whom the computation is to be made. Thus, a person is
grandparents. two degrees removed from his brother, three from his uncle, who is the brother
o When the decedent is survived by two grandparents in the paternal of his father, four from his first cousin, and so forth.
line and by one grandparent in the maternal line, the inheritance Computation of Degrees
shall be divided in such a way that one-half shall pass to the
grandparents in the paternal line, while the other one-half shall pass
to the surviving grandparent in the maternal line.
2. When the inheritance is divided among brothers and sisters, some of
whom are of the full blood and others of the half blood.
o Those of the full blood shall be entitled to double the share of those
of the half blood.
3. In certain cases when the right of representation takes place.
o Whenever there is succession by representation, the division of the
estate shall be made per stirpes, in such manner that the
representatives, although of the same degree, shall not inherit more
than what the person they represent would inherit, if he were living
or could inherit.
Art. 963. Proximity of relationship is determined by the number of generations.
Each generation forms a degree.

Art. 964. A series of degrees forms a line, which may be either direct or collateral.
1. E is the decedent.
A direct line is that constituted by the series of degrees among ascendants and 2. The first degree relatives are: B, I and J.
3. The second degree relatives are: F, M, N and A. RIGHT OF REPRESENTATION
4. The third degree relatives are: C, D, and K.
5. The fourth degree relatives are: G and H. Art. 970. Representation is a right created by fiction of law, by virtue of which the
6. The fourth degree relative is: L. 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
Art. 967. Full blood relationship is that existing between persons who have the have inherited.
same father and the same mother.
Art. 971. The representative is called to the succession by the law and not by the
Half blood relationship is that existing between persons who have the same person represented. The representative does not succeed the person represented
father, but not the same mother, or the same mother, but not the same father. but the one whom the person represented would have succeeded.
Rule on Proximity: the relative nearest in degree excludes the more remote
Art. 968. If there are several relatives of the same degree, and one or more of ones.
them are unwilling or incapacitated to succeed, his portion shall accrue to the By virtue of right of representation, the relative nearest in degree does not
others of the same degree, save the right of representation when it should take always exclude the more remote ones.
place. By fiction of law, more distant relatives belonging to the same class as the
person represented, are raised to the place and degree of such person,
Art. 969. If the inheritance should be repudiated by the nearest relative, should and acquire the rights which the latter would have acquired if he were
there be one only, or by all the nearest relatives called by law to succeed, should living or if he could have inherited.
there be several, those of the following degree shall inherit in their own right and Characteristics:
cannot represent the person or persons repudiating the inheritance. 1. It is a right of subrogation.
In case of incapacity 2. It constitutes an exception to the rule of proximity and the rule of equal
The share or shares of the heir incapacitated to inherit are rendered vacant division among relatives of the same class and degree.
shall pass to the co-heirs of the incapacitated heir or heirs by right of 3. The representative is called to the succession by the law and not by the
accretion. person represented.
If the incapacitated heir happens to be a child or descendant of the 4. The representative succeeds the decedent and not the person
decedent and he has children or descendants of his own, then the share represented.
which is rendered vacant by reason of incapacity shall pass to such o Rules:
children or descendants by right of representation a) The representative must be capable of succeeding the decedent.
The inheritance shall be distributed among them per stirpes b) Even if the representative is incapable of succeeding the person
In case of repudiation represented, he can still inherit by right of representation so long as
Repudiation by one or some of the relatives he is capable of succeeding the decedent.
The share or shares which are rendered vacant shall pass to the co-heirs c) Even if the representative had repudiated his inheritance coming
of the renouncer or renouncers by right of accretion. from the person represented, he can still inherit from the decedent
Rule is absolute even assuming that the renouncer is a child or by right of representation.
descendant of the decedent and he has children or descendants of his 5. It can only take place when there is a vacancy in the inheritance brought
own. An heir who repudiates his inheritance may not be represented about by either predecease, or incapacity, or disinheritance of an heir.
Question: What is the effect of this total vacancy? 6. As a general rule, the right can be exercised only by grandchildren or
Those of the following degree shall inherit in their own right. They cannot descendants of the decedent.
inherit by right of representation because of the principle that an heir When right of representation takes place:
who repudiates his inheritance may not be represented. 1. When the person represented dies before the testator;
The inheritance shall be distributed among them per capita. 2. When the person represented is incapable of succeeding the testator;
and
3. When the person represented is disinherited by the testator. In all of representatives is the right to the to the legal portion which is rendered
these cases, since there is a legitime of the compulsory heir who vacant by reason of the fact that the
It cannot take place in the free disposable portion because in is a form of dies before the testator, or who is legal heir dies before the decedent or is
succession by operation of law. unworthy to succeed, or who is unworthy to succeed.
disinherited.
Art. 972. The right of representation takes place in the direct descending line, but
never in the ascending. Art. 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
In the collateral line, it takes place only in favor of the children of brothers or their uncles or aunts. But if
sisters, whether they be of the full or half blood. they alone survive, they shall inherit in equal portion.
When right of representation in the direct line takes place
1. When children concur with grandchildren, the latter being the children of Art. 976. A person may represent him whose inheritance he has renounced.
other children who died before the decedent or who are incapable of The provision of Art. 976 is a necessary consequence of the rule stated in Art.
succeeding the decedent. 971.
2. When all the children are dead or are incapable of succeeding the The representative does not inherit from the person represented; he inherits
decedent and grandchildren concur with great-grandchildren, the latter from the decedent or the
being the children of other grandchildren who died before the decedent person from whom the person represented would have inherited if he were
or are incapable of succeeding the decedent. living or had the capacity to succeed.
3. When all children are dead or are incapable of succeeding the decedent What is material, therefore, is his capacity to inherit from the decedent
leaving children or descendants of the same degree. and his acceptance of the inheritance coming from such decedent.
Representation in collateral line, limitations Example: If a child renounces or repudiates his inheritance when his father
1. The right can be exercised only by nephews and nieces of the decedent. died, he may still represent the latter, when subsequently his grandfather
Consequently, it cannot be exercised by grandnephews and dies.
grandnieces.
2. The right can be exercised by the nephews or nieces of the decedent if Art. 977. Heirs who repudiate their share may not be represented.
they will concur with at least one brother or sister of the decedent. When an heir called either by will or by law to succeed repudiates his
If they are the only survivors, they shall inherit in their own right. inheritance, he deprives, by his own positive act, his children or descendants
of the right of representation.
Art. 973. In order that representation may take place, it is necessary that the A person cannot transmit a right which he does not have.
representative himself be capable of succeeding the decedent. The basis of the exercise of the right of representation by the children or
Even if the representative is incapable of succeeding the person represented, descendants of the person who dies before the decedent, or is unworthy to
he can still inherit by right of representation, provided that he is capable of succeed, or is disinherited is the fact that the person represented is dead or, at
succeeding the decedent. least, presumed to be dead as far as the decedent is concerned.
This is not possible in case of renunciation or repudiation, because, in this
Art. 974. Whenever there is succession by representation, the division of the case, by renouncing the right which the law has accorded to him, he gives a
estate shall be made per stirpes, in such manner that the representatives shall positive proof of his existence.
not inherit more than what the person they represent would inherit, if he were The share which is rendered vacant as a consequence of such repudiation
living or could inherit. shall pass to the other heirs by right of intestate succession or by right of
accretion depending upon the circumstances of each case.
17
Right of Representation in Intestate Right of Representation in Summary of Rules:
Succession Testamentary Succession
The right which is acquired by the The right which is acquired is the right 17
By Atty. Reyes
1. If there is only one legitimate child who should inherit and he repudiates, inherited had he survived, which shall be equal to the shares of her grandparents'
the grandchild cannot represent but will inherit in his own right. other children.
2. If there are several children and all of them repudiate, the grandchildren
cannot represent but will inhrit in their own right. But a different conclusion must be reached in the case of Delia and Edmundo, to
3. If there are several children and only one or some repudiate, the whom the grandparents were total strangers. While it is true that the adopted
repudiated share shall pass as follows: child shall be deemed to be a legitimate child and have the same right as the
a) To the co-heirs of the same class by right of accretion. latter, these rights do not include the right of representation. The relationship
created by the adoption is between only the adopting parents and the adopted
Bagunu v. Piedad, December 8, 2000 child and does not extend to the blood relatives of either party.
Can petitioner, a collateral relative of the fifth civil degree, inherit alongside
respondent, a collateral relative of the third civil degree? Elsewise stated, does the In sum, we agree with the lower courts that Delia and Edmundo as the adopted
rule of proximity in intestate succession find application among collateral relatives? children and Doribel as the legitimate daughter of Teodoro Sayson and Isabel
Bautista, are their exclusive heirs and are under no obligation to share the estate of
YES. Respondent, being a relative within the third civil degree, of the late Augusto their parents with the petitioners. The Court of Appeals was correct, however, in
H. Piedad excludes petitioner, a relative of the fifth degree, from succeeding ab holding that only Doribel has the right of representation in the inheritance of her
intestato to the estate of the decedent. grandparents' intestate estate, the other private respondents being only the
adoptive children of the deceased Teodoro.
The provisions of Article 1009 and Article 1010 of the Civil Code
Bicomong v. Almanza, November 29, 1977
"Article 1009. Should there be neither brothers nor sisters nor children of brothers In the absence of defendants, ascendants, illegitimate children, or a surviving
or sisters, the other collateral relatives shall succeed to the estate. spouse, Article 1003 of the New Civil Code provides that collateral relatives shall
succeed to the entire estate of the deceased.
"The latter shall succeed without distinction of lines or preference among them by
reason of relationship by the whole blood." Decedent survived by the collateral relatives:
1. the daughter of her sister of full blood
"Article 1010. The right to inherit ab intestato shall not extend beyond the fifth 2. the ten (10) children of her brother and two (2) sisters of half blood
degree of relationship in the collateral line." -
Since the decedent was not survived by any of her brothers or sisters, whether half
invoked by petitioner do not at all support her cause. The law means only that or full blood, the nephews and nieces are entitled to inherit in their own right.
among the other collateral relatives (the sixth in the line of succession), no
preference or distinction shall be observed "by reason of relationship by the Under the same provision, Art. 975, which makes no qualification as to whether
whole blood." In fine, a maternal aunt can inherit alongside a paternal uncle, and a the nephews or nieces are on the maternal or paternal line and without
first cousin of the full blood can inherit equally with a first cousin of the half blood, preference as to whether their relationship to the deceased is by whole or half
but an uncle or an aunt, being a third-degree relative, excludes the cousins of the blood, the sole niece of whole blood of the deceased does not exclude the ten
decedent, being in the fourth-degree of relationship; the latter, in turn, would nephews and niece of half blood.
have priority in succession to a fifth-degree relative.
The only difference in their right of succession is provided in Art. 1008, NCC in
Sayson v. CA, January 23, 1992 relation to Article 1006 of the New Civil Code, which provisions, in effect, entitle
There is no question that as the legitimate daughter of Teodoro and thus the the sole niece of full blood to a share double that of the nephews and nieces of
granddaughter of Eleno and Rafaela, Doribel has a right to represent her deceased half blood.
father in the distribution of the intestate estate of her grandparents. Under Article
981, quoted above, she is entitled to the share her father would have directly Abellana de Bacayo v. Ferraris-Borromeo, Aug. 31, 1965
The sole issue to be resolved in this case is: Who should inherit the intestate estate
of a deceased person when he or she is survived only by collateral relatives, to wit Article 980. The children of the deceased shall always inherit from him in their
an aunt and the children of a brother who predeceased him or her? Otherwise, will own right, dividing the inheritance in equal shares.
the aunt concur with the children of the decedent's brother in the inheritance or will
the former be excluded by the latter? Article 981. Should children of the deceased and descendants of other children
who are dead, survive, the former shall inherit in their own right, and the latter
Under our laws of succession, a decedent's uncles and aunts may not succeed ab by right of representation.
intestato so long as nephews and nieces of the decedent survive and are willing
and qualified to succeed. Article 982. The grandchildren and other descendants shall inherit by right of
representation, and if any one of them should have died, leaving several heirs,
ORDER OF INTESTATE SUCCESSION the portion pertaining to him shall be divided among the latter in equal portions.

18
The regular order of intestate succession is as follows: Article 983. If illegitimate children survive with legitimate children, the shares of
1. Legitimate children or descendants; the former shall be in the proportions prescribed by article 895.
2. Legitimate parents of ascendants;
3. Illegitimate children or descendants; Article 984. In case of the death of an adopted child, leaving no children or
4. Surviving spouse; descendants, his parents and relatives by consanguinity and not by adoption,
5. Brothers and sisters, nephews and nieces; shall be his legal heirs.
6. Other collateral relatives within the fifth degree; and
7. The State. Ascending Direct Line
19
The irregular order of intestate succession is as follows:
1. Legitimate children or descendants; Article 985. In default of legitimate children and descendants of the deceased, his
2. Illegitimate children or descendants; parents and ascendants shall inherit from him, to the exclusion of collateral
3. Illegitimate parents; relatives.
4. Surviving spouse;
5. Brothers and sisters, nephews and nieces; and Article 986. The father and mother, if living, shall inherit in equal shares.
6. The State.
Should one only of them survive, he or she shall succeed to the entire estate of
the child.
Descending Direct Line
Article 987. In default of the father and mother, the ascendants nearest in degree
Article 978. Succession pertains, in the first place, to the descending direct line. shall inherit.

Article 979. Legitimate children and their descendants succeed the parents and Should there be more than one of equal degree belonging to the same line they
other ascendants, without distinction as to sex or age, and even if they should shall divide the inheritance per capita; should they be of different lines but of
come from different marriages. equal degree, one-half shall go to the paternal and the other half to the maternal
ascendants. In each line the division shall be made per capita.
An adopted child succeeds to the property of the adopting parents in the same
manner as a legitimate child. Illegitimate Children

18
Article 988. In the absence of legitimate descendants or ascendants, the
That of a legitimate decedent illegitimate children shall succeed to the entire estate of the deceased.
19
That of an illegitimate decedent
ascendants, the surviving spouse shall be entitled to one-half of the estate, and
Article 989. If, together with illegitimate children, there should survive the legitimate parents or ascendants to the other half.
descendants of another illegitimate child who is dead, the former shall succeed in
their own right and the latter by right of representation. Article 998. If a widow or widower survives with illegitimate children, such widow
or widower shall be entitled to one-half of the inheritance, and the illegitimate
Article 990. The hereditary rights granted by the two preceding articles to children or their descendants, whether legitimate or illegitimate, to the other
illegitimate children shall be transmitted upon their death to their descendants, half.
who shall inherit by right of representation from their deceased grandparent.
Article 999. When the widow or widower survives with legitimate children or
Article 991. If legitimate ascendants are left, the illegitimate children shall divide their descendants and illegitimate children or their descendants, whether
the inheritance with them, taking one-half of the estate, whatever be the number legitimate or illegitimate, such widow or widower shall be entitled to the same
of the ascendants or of the illegitimate children. share as that of a legitimate child.

Article 992. An illegitimate child has no right to inherit ab intestato from the Article 1000. If legitimate ascendants, the surviving spouse, and illegitimate
legitimate children and relatives of his father or mother; nor shall such children children are left, the ascendants shall be entitled to one-half of the inheritance,
or relatives inherit in the same manner from the illegitimate child. and the other half shall be divided between the surviving spouse and the
illegitimate children so that such widow or widower shall have one-fourth of the
Article 993. If an illegitimate child should die without issue, either legitimate or estate, and the illegitimate children the other fourth.
illegitimate, his father or mother shall succeed to his entire estate; and if the
child's filiation is duly proved as to both parents, who are both living, they shall Article 1001. Should brothers and sisters or their children survive with the widow
inherit from him share and share alike. or widower, the latter shall be entitled to one-half of the inheritance and the
brothers and sisters or their children to the other half.
Article 994. In default of the father or mother, an illegitimate child shall be
succeeded by his or her surviving spouse who shall be entitled to the entire Article 1002. In case of a legal separation, if the surviving spouse gave cause for
estate. the separation, he or she shall not have any of the rights granted in the preceding
articles.
If the widow or widower should survive with brothers and sisters, nephews and
nieces, she or he shall inherit one-half of the estate, and the latter the other half. Collateral Relatives

Surviving Spouse Article 1003. If there are no descendants, ascendants, illegitimate children, or a
surviving spouse, the collateral relatives shall succeed to the entire estate of the
Article 995. In the absence of legitimate descendants and ascendants, and deceased in accordance with the following articles.
illegitimate children and their descendants, whether legitimate or illegitimate,
the surviving spouse shall inherit the entire estate, without prejudice to the rights Article 1004. Should the only survivors be brothers and sisters of the full blood,
of brothers and sisters, nephews and nieces, should there be any, under article they shall inherit in equal shares.
1001.
Article 1005. Should brothers and sisters survive together with nephews and
Article 996. If a widow or widower and legitimate children or descendants are nieces, who are the children of the descendant's brothers and sisters of the full
left, the surviving spouse has in the succession the same share as that of each of blood, the former shall inherit per capita, and the latter per stirpes.
the children.
Article 1006. Should brother and sisters of the full blood survive together with
Article 997. When the widow or widower survives with legitimate parents or brothers and sisters of the half blood, the former shall be entitled to a share
double that of the latter. property shall be used.

Article 1007. In case brothers and sisters of the half blood, some on the father's Article 1014. If a person legally entitled to the estate of the deceased appears and
and some on the mother's side, are the only survivors, all shall inherit in equal files a claim thereto with the court within five years from the date the property
shares without distinction as to the origin of the property. was delivered to the State, such person shall be entitled to the possession of the
same, or if sold, the municipality or city shall be accountable to him for such part
Article 1008. Children of brothers and sisters of the half blood shall succeed per of the proceeds as may not have been lawfully spent.
capita or per stirpes, in accordance with the rules laid down for brothers and
sisters of the full blood. Rule: a legal heir who is also a primary compulsory heir at the same time is always
entitled to the legitime which the law has reserved for him. Such legitime to which
Article 1009. Should there be neither brothers nor sisters nor children of brothers he or she is entitled in testamentary succession is the irreducible minimum to
or sisters, the other collateral relatives shall succeed to the estate. which he or she is entitled in intestate succession

The latter shall succeed without distinction of lines or preference among them by Legitimate Children/Descendants
reason of relationship by the whole blood. The first in the order of intestate succession are legitimate children or
descendants.
Article 1010. The right to inherit ab intestato shall not extend beyond the fifth Includes not only legitimate children or descendants proper, but also
degree of relationship in the collateral line. legitimated children or descendants and adopted children.
Without prejudice to the concurrent rights of illegitimate children or
SUBSECTION 6. The State descendants and the surviving spouse.
Division of the inheritance if the decedent is survived by legitimate children
Article 1011. In default of persons entitled to succeed in accordance with the or descendants
provisions of the preceding Sections, the State shall inherit the whole estate. 1. If all of the survivors are legitimate children, such children shall inherit in
their own right.
Article 1012. In order that the State may take possession of the property The inheritance shall be divided among them per capita or in equal
mentioned in the preceding article, the pertinent provisions of the Rules of Court shares.
must be observed. 2. If some of the survivors are legitimate children and the others are
legitimate descendants of other legitimate children who died before (or
Article 1013. After the payment of debts and charges, the personal property shall who are incapable of succeeding) the decedent, the former shall inherit
be assigned to the municipality or city where the deceased last resided in the in their own right and the latter shall inherit by right of representation.
Philippines, and the real estate to the municipalities or cities, respectively, in The inheritance shall be divided among them per stirpes.
which the same is situated. 3. If all of the survivors are legitimate grandchildren, such grandchildren
shall inherit by right of representation.
If the deceased never resided in the Philippines, the whole estate shall be If some of the survivors are legitimate grandchildren and the others
assigned to the respective municipalities or cities where the same is located. are legitimate children or descendants of other legitimate
grandchildren who died before or who are incapable of succeeding
Such estate shall be for the benefit of public schools, and public charitable the decedent, such grandchildren and descendants shall inherit by
institutions and centers, in such municipalities or cities. The court shall distribute right of representation.
the estate as the respective needs of each beneficiary may warrant. In both cases, the inheritance shall be divided among them per
stirpes.
The court, at the instance of an interested party, or on its own motion, may order
the establishment of a permanent trust, so that only the income from the Legitimate Children/Ascendants + Illegitimate Children/Descendants
The inheritance shall be divided among them in accordance with the Note: Distinguish from: If the person to be represented is
proportion 10:5. legitimate, then it is indispensable that the representative must also
The share of an illegitimate child is 1/2 of that of a legitimate child. be legitimate.
Note: The legitime of compulsory heir must never be impaired.
The legitime of survivors must first be satisfied. Illegitimate Children and Legitimate Ascendants
The share of the former shall be 1/2, while the share of the latter shall also be
Legitimate Parents or Ascendants 1/2.
The second in the order of intestate succession The number of legitimate ascendants or illegitimate children is immaterial.
They are called to the succession only in default of legitimate children or
descendants. Iron-Barrier Rule; Principle of absolute separation between the legitimate family
They cannot be excluded by an adopted child. and the illegitimate family
Although they can exclude collaterals, they cannot exclude illegitimate Illegitimate child cannot inherit by intestate succession from the legitimate
children and the surviving spouse children or relatives of his father or mother; neither can such legitimate
Rules of Division children or relatives inherit in the same manner from the illegitimate child
1. In default of the father and mother, the rule of proximity shall be applied, When not applicable: Illegitimate children can represent their parents who
the ascendants nearest in degree shall inherit. ate also illegitimate.
2. Should there be more than one equal degree belonging to the same line
they shall divide the inheritance per capita. Surviving Spouse
3. Should they be of different lines but of equal degree, one-half shall pass Fourth in the order of intestate succession
to the paternal and the other half to the maternal lines.
4. In each line the division should be per capita. Surviving Spouse + Legitimate Descendants
Example: If the decedent is survived only by A, paternal grandfather, and B The share of the widow or widower shall be the same as the share of each of
and C, maternal grandparents, 1/2 of the entire inheritance shall be given to the children
A, while the other half shall be given to B and C, which they shall divide per This is controversial at present. There are different views.
capita. Surviving Spouse + Legitimate Ascendants
1/2 shall be given to the former, while the other 1/2 shall be given to the
Illegitimate Children latter
The third in the order of intestate succession
Even in the presence of legitimate children or descendants or legitimate Surviving Spouse + Illegitimate Children or their descendants
parents or ascendants or the surviving spouse, such children, under the 1/2 shall be given to the former, while the other 1/2 shall be given to the
principle of concurrence, always participate in the division of the latter.
inheritance.
Like legitimate children or descendants and legitimate parents or Surviving Spouse + Legitimate + Illegitimate Descendants.
ascendants, they exclude collaterals. The proportions are 10 for the legitimate child, 10 for the widow or widower,
Rules of Division 5 for the illegitimate child.
1. If illegitimate children should survive alone as a class, the entire Division is subject to the principle of compulsory succession by virtue of which
inheritance shall pass to the illegitimate children. the legitime of compulsory heirs must never be impaired.
2. Descendants of illegitimate children can inherit by right of
representation. Surviving Spouse + Legitimate Ascendants + Illegitimate Children
The word descendant can refer to any kind of descendant, The surviving spouse is placed in the same level or category as the illegitimate
whether legitimate or illegitimate. children.
What is material is that the person to be represented is illegitimate. The division is , , respectively.
If the only survivors are nephews and nieces of the full or of the half blood,
Surviving Spouse + Brothers and Sisters, Nephews and Nieces such nephews and nieces shall
The division is , respectively. succeed to the entire inheritance in their own right.
The division of the estate shall be per capita.
Note: In case of a legal separation, if the surviving spouse gave cause for the If some of them are of the full blood and the others are of the half blood,
separation, he or she shall not have any of the right granted in the preceding those of the full blood shall be entitled to a share double that of those of
articles. the half blood

Collateral relatives Solivio vs. CA, February 12, 1990


Shall succeed to the entire estate in the absence of legitimate descendants, Since the deceased, Esteban Javellana, Jr. died without descendants, ascendants,
legitimate ascendants, illegitimate children, and the surviving spouse. illegitimate children, surviving
XPN: When brothers and sisters, nephews and nieces concur with the spouse, brothers, sisters, nephews or nieces, what shall apply in the distribution of
surviving spouse. his estate are Arts. 1003 and 1009 of the Civil Code.
Rules:
1. When the law speaks of collateral relatives, it can only refer to those Therefore, the Court of Appeals correctly held that: Both plaintiff- appellee and
within the fifth degree. defendant-appellant being relatives of the decedent within the third degree in the
2. Where two or more collateral relatives concur in the succession, the rule collateral line, each, therefore, shall succeed to the subject estate without
of proximity by virtue of which the nearest in degree shall exclude the distinction of line or preference among them by reason of relationship by the
more remotes ones is applicable. whole blood, and is
3. As an exception to the rule of proximity, the right of representation is entitled to one-half (1/2) share and share alike of the estate.
also recognized, but it is a right which is extended only to nephews and
nieces. Note: The right to inherit ab intestato shall not extend beyond the fifth degree of
4. Where the survivors are of the same degree, the rule of preference by relationship in the collateral line.
reason of relationship by the whole blood is also recognized, but it is a
rule which can be applied only to brothers and sisters or nephews and The State
nieces and not to other collaterals. In default of legitimate children or descendants, legitimate parents or
Should the only survivors be brothers and sisters of the full blood, they shall ascendants, illegitimate children or descendants, the surviving spouse, and
inherit in equal shares or per capita. collateral relatives within the fifth degree, the State shall inherit the whole
The same rule shall also apply should the only survivors be brothers and estate.
sisters of the half blood. The State is a legal heir called to the succession by operation of law as in
Should brothers and sisters survive together with nephews and nieces, who the case of other legal heirs.
are the children of the decedents brothers and sisters of the full blood, the
20
former shall inherit per capita, and the latter per stirpes. Summary of Rules: Order of Intestate Succession of a Legitimate Decedent
The former shall inherit in their own right, while the latter shall inherit by
st
right of representation. 1 order: LCDs + Sp + ICDs
The same rules shall also be applied should brothers and sisters of the half Minimum share: legitime
blood survive together with nephews and nieces, who are the children of the Remainder: 10:10:5
decedents brothers and sisters of the half blood
If some of the survivors are brothers and sisters of the full blood and the nd
2 order: LCDs + Sp or LCDs + ICDs
others are brothers and sisters of the half blood, the former shall be entitled 10:10 respectively; 10:5 respectively
to a share double that of the
latter. 20
By Atty. Reyes
4. Surviving spouse
3rd order: LCDs alone as a class Shall succeed to the entire estate, subject to the concurrent rights of
Entire estate divided equally brothers and sisters, nephews and nieces
One-half shall be given to the brothers and sisters, nephews and
th
4 order: LPAs + Sp + ICDs nieces.
, , respectively 5. Illegitimate brothers and sisters, nephews and nieces
Refers to illegitimate brothers and sisters as well as to the children,
th
5 order: LPAs + Sp or LPAs + ICDs whether legitimate or illegitimate, of such brothers and sisters.
, respectively Other collaterals are not allowed to inherit by intestate succession
from the illegitimate child.
th
6 order: LPAs alone or ICDs alone 6. The State.
Entitled to whole hereditary estate
21
Summary of Rules: Order of Intestate Succession of an Illegitimate Decedent
th
7 order: Sp alone + Brothers/sisters alone or Nephews/nieces alone
st
, respectively 1 order: LCDs + Sp + ICDs
Minimum share: legitime
th
8 order: Sp alone Remainder: 10:10:5
Entitled to whole hereditary estate
nd
2 order: LCDs + Sp or LCDs + ICDs or ICDs + Sp
th
9 order: Brothers/sisters alone or Nephews/nieces alone 10:10 respectively; 10:5 respectively; . respectively
Divide equally subject to 2:1 rule.
Full blood inherit as much as (legitimate) half blood 3rd order: LCDs alone as a class or ICDs alone as a class
Nephews and nieces exclude uncles and aunts even if they are in the Entire estate divided equally
same degree.
th
4 order: Sp + IP
th
10 order: Other collateral relatives , respectively
Divide equally among them
th
Subject to the rule on proximity 5 order: IP alone
Entitled to whole hereditary estate
th
11 order: State Father must acknowledge
th
If the decedent is an illegitimate person, the order of intestate succession; 6 order: Sp + Brothers/sisters or Nephews/nieces
irregular order of intestate succession or respectively
1. Legitimate children or descendants
th
2. Illegitimate children 7 order: Sp alone, Brothers/sisters alone or Nephews/nieces alone
If the decedent is survived by his illegitimate children and his Entitled to whole hereditary estate
illegitimate parents, the latter are excluded by the former.
th
3. Illegitimate parents 8 order: State
Without prejudice to the concurrent rights of the surviving spouse.
Right is subject to proof of filiation.
Other ascendants are not considered as legal or intestate heirs of
the illegitimate child. 21
By Atty. Reyes
Rules governing the legal or intestate succession to the estate of the adopted 1/3, 1/3, 1/3 respectively
under Art. 190 of the Family Code
th
5 order: Adopter alone
(1) Legitimate and illegitimate children and descendants and the surviving Whole hereditary estate
spouse of the adopted shall inherit from the adopted in accordance with the
th
ordinary rules of legal or intestate succession; 6 order: Biological/Adopting parents + Collateral relatives by consanguinity
Order of preference:
(2) When parents, legitimate or illegitimate, or the legitimate ascendants of the 1. Brothers/sisters
adopted concur with the adopters, they shall divide the entire estate, one-half to 2. Nephews/nieces
th
be inherited by the parents or 3. 4 degree relatives
th
ascendants and the other half by the adopters; 4. 5 degree relatives
th
(3) When the surviving spouse or the illegitimate children of the adopted concur 7 order: State
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;
PROVISIONS COMMON TO
(4) When the adopters concur with the illegitimate children and the surviving BOTH TESTATE AND INTESTATE SUCCESSION
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, and one-third by the adopters;
Right of Accretion
(5) When only the adopters survive, they shall inherit the entire estate; and

(6) When only collateral blood relatives of the adopted survive, then the ordinary Art. 1015. Accretion is a right by virtue of which. When two or more
rules of legal or intestate succession shall apply. persons are called to the same inheritance, devise or legacy, the part
22 assigned to one who renounces or cannot receive his share, or who died
Summary of Rules: Order of Intestate Succession of an Adopted Decedent
before testator, is added or incorporated to that of his co-heirs, co-
st
1 order: LCPs + Sp + ICDs devisees, or co-legatees.
Minimum share: legitime
Remainder: 10:10: resepectively Concept
It is based on the presumed will of the decedent.
nd
2 order: Biological Parents + Adopters When a portion of the inheritance, legacy, devise is rendered
, respectively vacant as a result of predecease, incapacity, or repudiation, in the
rd absence of any expressed will of the decedent, the law presumes
3 order: Sp + Adopters or ICDs +Adopters
that had he been able to expess his will, he would have given such
, respectively
vacant portion to the co-heirs, co-legatees, or co-devisees.
th
4 order: Sp + ICDs + Adopters
Requisites:
22
By Atty. Reyes
1. Two or more persons must have been called to the same inheritance, C ------------P5K
legacy or devise, or to the same portion thereof, pro indiviso; and Since both of the requisites for accretion take
Plurality of subjects and unity of object place in testamentary succession are present, the P5K,
2. There must be a vacancy in the inheritance, legacy or devise caused by which would have gone to C and which is now vacant
a. Predecease because of Cs repudiation, shall be divided between A
b. Incapacity and B in proportion of 4:1. In other words, A shall be
c. Repudiation entitled to 4/5 of P5K or P4K, while B shall be entitled to
d. Nonfulfillment of suspensive condition 1/5 of P5000, or P1K. Consequently, the distribution shall
e. Void or ineffective testamentary dispositions be as follows:
A ---------------------P20K , in his own right
How to Avoid Accretion: P4K, by right of accretion
1. By expressly designating a substitute; and B ---------------------P5K, in his own right
2. By expressly providing that although accretion may take place, P 1K, by right of accretion
still decedent does not want accretion to occur. Total: P30,000.00

Effects of Accretion: Summary


1. The share or portion which is rendered vacant by predecease, A. In testamentary succession:
incapacity or repudiation is added or incorporated to the share of 1. Legitime:
the co-heirs, co-legatees or co-devisees. (a) In case of predecease of an heir, there is representation
2. In testamentary succession, if the share which is rendered vacant if there are children or descendants; if none, the others
happens to be the share of a compulsory heir, only that part of inherit in their own right.
the share which is taken from the disposable free portion shall (b) Incapacity: same results
pass to the co-heirs by rights of accretion. Legitime is not (c) Disinheritance: same results
included. (d) Repudiation, the other heirs inherit in their own right
3. Division in case of Accretion: 2. Disposable free portion
If the right of accretion takes place, the heirs to whom Accretion takes place when the requisites stated in Art. 1016,
the vacant share or portion is assigned shall divide it in NCC, are present; but if such requisites are not present, the
the same proportion that they inherit. other heirs inherit in their own right.
Problem: In his will, the testator instituted his three
nephews, A, B, and C, as his universal heirs A to inherit B. In intestate Succession:
2/3 of the entire estate, B, 1/6, and C, also 1/6. After the 1. Predecease: there is representation if there are children
death of the testator, C repudiated his share. Assuming or descendants; if none, the other heirs inherit in their
that the net remainder of the estate is P30,000, how own right.
shall the distribution be made? 2. Incapacity: same results
Answer: Had C not repudiated his share, the distribution 3. Repudiation: theres always accretion
of the estate would have been as follows:
A ------------P20K Effect of Compulsory Succession
B ------------P5K Art. 1021. Among the CH 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 Capacity is, therefore, the general rule, while incapacity is the
to a stranger. exception.
Should the part repudiated be the legitime, the other coheirs
shall succeed to it in their own right, and not by the right of accretion. Requisites:
1. That the heir, legatee or devisee must be living or in existence at
the moment the succession opens; and
The ISRAI-RP Rule XPN: Art. 1026, 1029 and 1030 of NCC

Also, note that whenever there is vacancy, always follow the following 2. No incapacity or prohibition to succeed expressly provided by law
order in filling up the vacancy: ISRAI-RP
1. Instituted Heir Halili v. CA, March 12, 1998
2. Substitute, ISSUE: Whether or not the sale of the land is null and void.
3. Right of Representation
4. Accretion NO, because the prohibition in the constitution has already been served.
5. Intestacy Article XII, Section 7 provides that Non- Filipinos cannot acquire or hold
6. Republic of the Philippines will inherit title to private lands or to lands of the public domain, In fine, non-Filipinos
cannot acquire or hold title to private lands or to lands of the public
domain, except only by way of legal succession. While it is true that the
GR: The one who will inherit shall be the instituted heir. transfer of Helen of his right to her son who is an American citizen
XPT: in cases of vacancy contradicts the prohibition set forth in the Constitution, the Supreme
If theres a substitute provided in the will of the testator in default Court upheld the subsequent sale of the land to Catanig, a Filipino citizen.
of the instituted heir, the substitute heir shall inherit. If theres no Jurisprudence is consistent that "if land is invalidly transferred to an alien
one provided, then the heirs of the predeceased or incapacitated who subsequently becomes a citizen or transfers it to a citizen, the flaw in
heir shall inherit by right of representation. If no one of the heir the original transaction is considered cured and the title of the transferee
who is given the right of representation elects such, then the is rendered valid."
inheritance shall pass to the co-heir of the predeceased or
incapacitated heir by right of accretion. When there are no co- Intestate Succession: Non-Filipinos cannot acquire or hold title to private
heirs, then the inheritance shall pass by intestacy. And finally, if lands or to lands of the public domain, except only by way of legal
none of the above is present, the Republic of the Philippines shall succession
inherit.
Summary: The defect in the sale of the land to a non-Filipino can be cured
Capacity to Succeed by the subsequent sale of the land to a Filipino citizen.

Concept
Disputable Presumption: Every person, whether natural or
juridical, can succeed either ex testament or ab intestate. Nepomuceno v. CA, Oct. 9, 1985
ISSUE: Whether or not the donation made by the testator in favor of herein
petitioner was valid.
1. Incapacity based on the possibility of undue influence or
NO. There is no question from the records about the fact of a prior interest:
existing marriage when Martin Jugo lived together in an ostensible marital a. Priest who heard the confession of the testator during
relationship for 22 years until his death. The records do not sustain that his last illness, or the minister of the gospel who
she acted in good faith for 22 years in the belief that she was legally extended spiritual aid to him during the same period.
married to the testator, since the last will and testament itself expressly Basis of disqualification: The presumption that
admits indubitably on its face the meretricious relationship between the at the threshold of the death the testator
testator and petitioner, the devisee. The prohibition in Article 739 of the becomes an easy prey to the scheming priest or
Civil Code is against the making of a donation between persons who are minister.
living in adultery or concubinage. It is the donation which becomes void. b. Physician, surgeon, nurse, health officer or druggist who
The giver cannot give even assuming that the recipient may receive. The took care of the testator during his last illness.
very wordings of the will invalidate the legacy because the testator If the one who took care is his spouse,
admitted he was disposing the properties to a person with whom he had ascendant or descendant.
th
been living in concubinage. c. Relatives of such priest or minister within th4 degree,
the church, order, chapter, community, organization or
Summary: Nepomuceno cannot validly inherit from the decedent since institution to which such priest or minister may belong.
Article 739 of the NCC prohibits the making of a donation between persons d. Attesting witnesses to the execution of a will including
who are living in adultery or concubinage. their spouse, parents or children.
This disqualification does not apply when there
Absolute Incapacity are three other competent witnesses to the
The following are absolutely incapacitated to succeed: execution of the will
1. Those who are not living or in existence at the time of the e. Guardian with respect to testamentary dispositions given
death of the decedent by a ward in his favor before the final accounts of the
XPN: Testamentary dispositions in favor of guardianship have been approved, even if the testator
1026: associations for religious, scientific, cultural, should die after the approval thereof.
educational, or charitable purposes. XPN: Any provision made by the ward in favor of
1029: a church or denomination to which the testator may the guardian when the latter is his ascendant,
belong for prayers or pious works. descendant, brother, sister or spouse shall be
1030: poor in general valid.
2. Those who cannot be identified, such as uncertain persons
under Art. 845. 2. Based on Morality or Public Policy
3. Those who are not permitted by law to inherit. a. Those made in favor of a person with whom the testator
was guilty of adultery or concubinage at the time of the
Relative Incapacity making of the will.
Partial in the sense that if the heir who is incapacitated or b. Those made in consideration of a crime of which both
disqualified is a CH, only the free portion given to him is affected, the testator and the beneficiary have been found guilty.
but not his legitime. NOTE: Previous criminal conviction is not
May be classified as follows: necessary in a and b.
c. Those made in favor of a public officer or his spouse,
descendants and ascendants, by reason of his public 1. A testamentary provision in favor of a disqualified person, even
office. though made under the guise of onerous contract, or made through
an intermediary, shall be VOID.
3. Based on Acts of Unworthiness 2. Time to Determine Capacity: At the time of the death of the
a. Parents who have abandoned their children or induced decedent.
their daughters to lead a corrupt or immoral life, or XPN:
attempted against their virtue. a. Those who are disqualified under Nos. (2), (3), and (5) of Art.
b. Any person who has been convicted of an attempt 1032 and No. 2 of Art. 739: it is necessary to wait until final
against the life of the testator, his or her spouse, judgment is rendered
descendants, or ascendants; b. No. 4 of Art. 1032: it is necessary to wait for the expiration of
c. Any person who has accused the testator of a crime for the month allowed for the report
which the law prescribes imprisonment for six years or c. If the institution of heirs, or legacy or devise is conditional,
more, if the accusation has been found groundless; the time of the compliance with the condition shall also be
d. Any heir of full age who, having knowledge of the violent considered.
death of the testator, should fail to report it to an officer 3. Effect of Incapacity upon CH
of the law within a month, unless the authorities have This depends upon the cause of incapacity
already taken action; this prohibition shall not apply to Cause of Incapacity Effect
cases wherein, according to law, there is no obligation to Undue Influence and Morality or Only the free portion given to the
make an accusation; Public Policy heir is incapacitated to succeed as
e. Any person convicted of adultery or concubinage with a voluntary heir or as a legatee or
the spouse of the testator; devisee, but not as a compulsory
f. Any person who by fraud, violence, intimidation, or heir. This is clear not only from the
undue influence should cause the testator to make a will phraseology of the law, but also
or to change one already made; from the very nature and basis of
g. Any person who by the same means prevents another the incapacity itself.
from making a will, or from revoking one already made, Act of Unworthiness Disqualifies a CH from succeeding
or who supplants conceals, or alters the latters will; not only as a voluntary heir but
h. Any person who falsifi es or forges a supposed will of the even to his legitime.
decedent. NOTE: This disqualification is
personal to the heir and thus not
4. By Operation of Law affecting the latters children or
a. Incapacity of the guilty spouse to inherit form the descendant. Consequently the
innocent spouse if there is a decree of legal separation. children or descendant may inherit
b. Incapacity of illegitimate children and legitimate relatives by right of representation.
of the decedent to inherit from each other;
Problem: When the attending physician of X finally informed the latter that
Operations of Incapacity to Succeed he is suffering from the last stages of cancer and that he cannot live longer
than one month, he called up his son A, a priest. It was the latter who Who may file: Anyone who may have an interest in the
heard his last confession. After the confession, he executed a will wherein succession.
he gave the disposable free portion of his estate in the proportion of one
third for each to his two sons, A and B, who are his only compulsory heirs, Restoration of Capacity
and to a friend, F. He died ten days after wards. The net value of his estate
is P120,000. During the administration proceedings, B, who was not in Pardon
good terms with his brother A, contended that the latter is incapacitated Art. 1033. The causes of unworthiness shall be without effect if the
to inherit from the testator pursuant to the provisions of No. 1 of Art. 1027 testator had knowledge thereof at the time he made the will, or if,
of theCivil Code. Is he correct? Reasons. having known of them subsequently, he should condone them in writing.

Answer: B is correct. A is certainly incapacitated under Since acts of unworthiness within the meaning of Act. 1032 are
No. 1 of Art. 1027 of the Civil Code. There can be no question about that. offenses directed against the decedent, only the decedent himself
But B is also incapacitated to inherit from the testator under No. 2 of the and no other can erase the effects of such acts of unworthiness.
same article being a brother of A, and therefore, a collateral relative of the He can do this by pardoning the offense either expressly or
latter within the fourth degree. There can also be no question about that. impliedly.
It must be noted, however, that their legitime will not be affected by their Express Pardon: When the decedent condones the act of
disqualification. What is affected is their share in the disposable free unworthiness in writing.
portion. Such shares shall pass to their coheir, F, by right of accretion Implied Pardon: When the testator, with knowledge of the act of
pursuant to Arts. 1016 and 1017 of the Civil Code. Therefore, A shall still be unworthiness, executes a will instituting the person who has
entitled to his legitime of P30,000; B, to his legitime (Jurado, page 498) committed the offense as an heir.

4. Alienation of disqualified heir: Alienations of hereditary property, and NOTE: According to Jurado (page 493) only the decedent may erase the
sets of administration performed by the excluded heir, before the effects of acts of unworthiness, while Tolentino (page 537) submits that
judicial order of exclusion, are valid as to third persons who acted in executive clemency, or pardon by the President does erase the
good faith; but the co-heirs shall have a right to recover damages from unworthiness or incapacity of the heir.
the disqualified heirs.

5. Liability of excluded heir who entered into possession of the Acceptance and Repudiation
hereditary property:
a. He shall be obliged to return it together with its Acceptance
accessions refers to the act by virtue of which an heir, legatee or devisee
b. He shall be liable for all the fruits and rents he may have manifests his desire in accordance with the formalities prescribed
received or could have received through the exercise of bylaw to succeed to the inheritance, legacy or devise.
due diligence.
6. Prescription of Action for a declaration of Incapacity and for Repudiation
Recovery of the Inheritance: 5 years from the time the disqualified
person took possession thereof.
refers to the act by virtue of which an heir, legatee or devisee b. Tacit Acceptance: one resulting from acts by which
manifests his desire in accordance with the formalities prescribed the intention to accept is necessarily implied or
by law not to succeed to the inheritance, legacy or devise. which one would have no right to do except in the
capacity of an heir.
Characteristics Examples:
1. voluntary and free, If the heir sells, donates or assigns his
2. retroactive, and right to a stranger, or to his co-heirs,
3. once made, it is irrevocable. or to any of them;
If the heir renounces the same, even
Necessity: While it is true that successional rights are transmitted though gratuitously for the benefit of
at the very moment of the death of the decedent, it must be one or more of his co-heirs;
observed that before such transmission can take place, it is If he renounces it for a price in favor
absolutely necessary that those who are called to the succession of all his co-heirs indiscriminately; but
either by will or by operation of law must accept their inheritance, if his renunciation should be
legacy or devise. gratuitous and the co-heirs in whose
favor it is made are those upon whom
Requisites: the portion renounced should devolve
1. As to Capacity by virtue of accretion, the inheritance
Any person having the free disposal of his property may shall not be deemed as accepted.
accept or repudiate an inheritance.
As to minors or incapacitated persons: May be accepted Manner of Repudiation: It shall be made in a public or
by their parents or guardians. Parents or guardians may authentic instrument, or by petition presented to the
repudiate the inheritance left to their wards only by court having jurisdiction over the testamentary or
judicial authorization. intestate proceedings.
Inheritance for the poor: right o acceptance shall o to Guy v. CA, Sept. 15, 2006
the person designated by the testator to determine the ISSUE: Whether or not the private respondents have repudiated their
beneficiaries and distribute the property, or in their inheritance.
default, to those mentioned in Article 1030. NO. They could not have possibly waived their successional rights because
Corporations or Associations: The lawful representatives they are yet to prove their status as acknowledged illegitimate children of
of corporations, associations, institutions and entities the deceased. It would be inconsistent to rule that they waived their
qualified to acquire property may accept any inheritance hereditary rights when petitioner claims that they do not have such right.
left to the latter, but in order to repudiate it, the Hence, petitioner's invocation of waiver on the part of private respondents
approval of the court shall be necessary. must fail.
The Release and Waiver of Claim, the same does not bar private
2. As to Act of Acceptance or Repudiation respondents from claiming successional rights. To be valid and effective, a
a. Express Acceptance: one made in a public or private waiver must be couched in clear and unequivocal terms which leave no
document. doubt as to the intention of a party to give up a right or benefit which
legally pertains to him. A waiver may not be attributed to a person when
its terms do not explicitly and clearly evince intent to abandon a right. The estate. Hence, the quitclaim deeds that she executed eleven years after
Release and Waiver of Claim does not state with clarity the purpose of its she had accepted the inheritance have no legal force and effect.
execution. It merely states that Remedios received P300,000.00 and an
educational plan for her minor daughters "by way of financial assistance Principle enunciated in the case: Once repudiation or acceptance has been
and in full settlement of any and all claims of whatsoever nature and kind made, it cannot be revoked by subsequent acts.
against the estate of the late Rufino Guy Susim." Considering that the
document did not specifically mention private respondents' hereditary
share in the estate of Sima Wei, it cannot be construed as a waiver of Executors and Administartors
successional rights.
Art. 1058. All matters relating to the appointment, powers
Summary: The respondents are not considered t have repudiated their and duties of executors and administrators and concerning the
inheritance despite the execution of Release and Waiver of Claim. To be administration of estates of deceased persons shall be governed by the
valid, a waiver must be couched in clear and unequivocal terms which Rules of Court.
leave no doubt as to interpretation.
Art. 1059. If the assets of the estate of a decedent which
can be applied to the payment of debts are not sufficient for that
Effect of Acceptance and Repudiation: purpose, the provisions of Articles 2239 and 2251 on Preference of
GR: Irrevocable Credits shall be observed, provided that the expenses referred to in
XPN: vitiated consent and appearance of unknown heir. Article 2244, No. 8, shall be those involved in the administration of the
decedents estate.
Republic v. Guzman, Feb. 18, 2000
ISSUE: Whether or not Helen validly repudiated her right to inherit from the Art. 1060. A corporation or association authorized to conduct the
decedent business of a trust company in the Philippines may be appointed as an
executor, administrator, guardian of an estate, or trustee, in like manner
NO. There is no valid repudiation of inheritance as Helen had already as an individual; but it shall not be appointed guardian of the person of a
accepted her share of the inheritance when she, together with David, ward.
executed a Deed of Extrajudicial Settlement of the Estate of Simeon
Guzman in 1970 dividing and adjudicating between the two of them all the Suntay v. Suntay, Oct. 10, 2012
property in Simeons estate. Article 1056 of the Civil Code provides that
the acceptance or repudiation of an inheritance, once made is irrevocable ISSUE: Whether or not the will executed in Amoy, China can still be validly
and cannot be impugned, except when it was made through any of the probated in the Philippines.
causes that vitiate consent or when an unknown will appears. In this case,
there is no showing that Helens acceptance of her inheritance from NO. The fact that the municipal district court of Amoy, China is a probate
Simeon was made through any of the causes which vitiated her consent court must be proved. The law of China on procedure in the probate or
nor is there any proof of the existence of an unknown will executed by allowance of wills must also be proved. The legal requirements for the
Simeon. Thus, pursuant to Article 1056, Helen cannot belatedly execute an execution of the will in China in 1931 should also be established by
instrument that has the effect of revoking or impugning her previous competent evidence. There is no proof on these points. Moreover, it
acceptance of her one-half share of the subject property from Simeons
appears that all the proceedings had in the municipal district court of a chain, with one single objective and guided by the same
Amoy were for the purpose of taking the testimony of two attesting principle.
witnesses to the will and that the order of the municipal district court of
Amoy does not purport to probate the will. The order of the municipal Meaning of Collation by Balane
district court of Amoy, China does not purport to probate or allow the will 1. As computation: a simple accounting or arithmetical process,
which was the subject of the proceedings. In view thereof, the will and the whereby the value of all donations inter vivos made by the
alleged probate thereof cannot be said to have been done in accordance decedent is added to his available assets in order to arrive at
with the accepted basic and fundamental concepts and principles followed the value of the net hereditary estate
in the probate and allowance of wills. Consequently, the authenticated 2. As imputation: the process by which donations inter vivos
transcript of proceedings held in the municipal district court of Amoy, made by the decedent are correspondingly charged either to
China, cannot be deemed and accepted as proceedings leading to the the donees legitime or against the disposable portion
probate of allowance of a will and therefore, the will referred to therein 3. As return: takes place when a donation inter vivos is found to
cannot be allowed, filed and recorded by a competent court of this be inofficious and so much of its value as inofficious is
country. returned to the decedents estate to satisfy the legitimes

. Rule on testamentary dispositions to compulsory heirs


Collation GR: They should not be imputed to the legitime, but to the free
portion; hence the compulsory heir receives the testamentary
Art. 1061. Every compulsory heir, who succeeds with other compulsory disposition in addition to his legitime
heirs must bring into the mass of the estate any property or right which XPN: if the testator provides otherwise, in which case the
he may have received from the decedent, during the lifetime of the testamentary disposition will be merged with the legitime
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 Certain rules on Collation as Imputation
in the account of the partition. 1. Grandchildren inheriting by representation concurrently with children
(uncles and aunts of the grandchildren) who are inheriting in their own
right; the grandchildren have to collate or impute:
Concept
a. Whatever the parent whom they are representing would have
In general, collation may be defined as the act of returning or
been obliged to collate
restoring to the common mass of the hereditary estate, either
b. Whatever they themselves have received from the grandparent
actually or fictitiously, any property which a person may have
by gratuitous title
received from the decedent during the latters lifetime, but which
is understood for legal purposes as an advance from the
2. Parents are not obliged to bring to collation in the inheritance of their
inheritance.
ascendants any property which may have been donated by the latter to
Purpose: to compute the legitime of CH
their children
There are three acts which must always be considered before
3. Neither shall donations to the spouse of the child be brought to
there can be a partition of the estate. They are collation,
collation; but if they have been given by the parent to the spouses
imputation and reduction. Aptly stated, they are the three links in
jointly, the child shall be obliged to bring to collation of the thing 1. Wedding gifts
donated 2. Jewelry
3. Clothing and outfit
4. In the collation of a donation made by both parents, shall be brought
to the inheritance of the father, and the other half, to that of the mother. NOTE: However, the presents should not exceed 1/10 of the sum
That given by one alone shall be brought to collation in his or her disposable by will. If it does exceed, it will be imputed to the
inheritance legitime if a compulsory heir or otherwise as inofficious it if
exceeds 1/10 of the free portion if a stranger
What Would be Collated
Any property received by gratuitous title during the testators lifetime. Equality of heirs
All that they may have received from the decedent during his lifetime. There should not only be equivalence in amount but as far as possible,
All that their parents would have brought to collation if alive. the property should be of the same nature, class and quality
Any sums paid by a parent in satisfaction of the debts of his children, In case no such equality can be effected:
election expenses, fines, and similar expenses. 1. If immovable: equivalent in case of securities; or in its
absence, so much of the other property shall be sold
NOT subject to collation: at public auction
1. Support 2. If movable: right to select an equivalent of other
2. Education (limited to secondary instruction) personal property of the inheritance at its just price
3. Medical attendance (even in extraordinary illness) Both rules above will yield to a contrary agreement among the
4. Apprenticeship heirs
5. Ordinary equipment
6. Customary gifts On Fruits and Interests

Expenses for childs professional, vocational or other career: It shall not pertain to the estate EXCEPT from the day on which
GR: NOT charged against the recipients legitime, but against the the succession is opened
free portion Standard of assessment: fruits and interest of the property of the
XPN: The parents provide otherwise in which case it will be estate of the same kind and quality as that subject to collation
charged against the legitime, but the child is entitled to deduct
from said amount the sum corresponding to what his parents Rules on Expenses when the Donee is Obliged to Return
would have spent on him had he stayed at home 1. The donation is TOTALLY inofficious:
a. Necessary expenses full extent reimbursement
7. Sums paid by a parent for the child: b. Useful expenses full extent provided it is still in existence
a. In satisfaction for the latters debts c. Ornamental expenses no reimbursement, but right of removal
b. Election expenses granted if no injury to the estate will be caused
c. Fines
d. Similar expenses 2. The donation is PARTLY inofficious:
The following items given by ascendants to their descendants are a. Necessary expenses reimbursement is partial, in proportion
exempted from collation: to the value to be returned
b. Useful expenses reimbursement is partial, in proportion to Extra-judicial Patition
the value to be returned 1. By Testator/Decedent during Lifetime/Partition Inter Vivos
c. Ornamental expenses no reimbursement, but right of removal LIMITATION: it must not prejudice the legitime of CH
granted if no injury to the estate will be caused; unless the An exception to the rule declared in the second
property is physically divided and the ornament happens to be paragraph of Art. 1347 of the Code that no person can
located in the portion assigned to him, in which case he will enter into a contract with respect to future inheritance.
have all the rights of ownership May take place in an ordinary public instrument when
such is required In other words, the rules regarding
Administration Proceedings ordinary conveyance of personal and real properties
Should any question arise among the co-heirs upon the obligation must be followed. The partition by will, must, of course,
to bring to collation or as to the things which are subject to collation, the be effected by a valid will duly executed in accordance
distribution of the estate shall not be interrupted for this reason, provided with the formalities prescribe by law.
adequate security is given
Chavez v. IAC, Nov. 8, 1990
Partition and Distribution ISSUE: Whether or not the deeds of sale were considered as a partition by
an act inter vivos.
Art. 1079. Partition, in general, is the separation, division and assignment
of a thing held in common among those to whom it may belong. The YES. Article 1080 of the New Civil Code allows a person to make a
thing itself may be divided, or its value. partition of his estate either by an act inter vivos or by will and such
partition shall be respected insofar as it does not prejudice the legitimate
Art. 1082. Every act which is intended to put an end to indivision among of the compulsory heirs. While the law prohibits contracts upon future
co-heirs and legatees or devisees is deemed to be a partition, although it inheritance, the partition by the parent, as provided in Art. 1080, is a case
should purport to be a sale, an exchange, a compromise, or any other expressly authorized by law. Art. 1080 of the Civil Code clearly gives a
transaction. person two options in making a partition of his estate; either by an act
inter vivos or by WILL. When a person makes a partition by will, it is
Necessity: When there are two or more heirs. imperative that such partition must be executed in accordance with the
Every co-heir has a right to demand division of the estate provisions of the law on wills; however, when a person makes the
XPT: Partition is prohibited by the testator but in no case shall partition of his estate by an act inter vivos, such partition may even be
exceed 20 years. oral or written, and need not be in the form of a will, provided that the
partition does not prejudice the legitime of compulsory heirs.
Who may Effect Partition
1. Decedent himself during his lifetime by an act inter vivos or by Parol Partition: In numerous cases it has been held or stated that parol
will; partitions may be sustained on the following grounds:
rd
2. 3 person designated by the decedent; 1. ground of estoppel of the parties to assert the rights of a tenant
3. Heirs themselves; or in common as to parts of land divided by parol partition as to
4. Competent Court. which possession in severalty was taken and acts of individual
ownership were exercised.
2. the parties thereto have acquiesced in and ratified the partition
by taking possession in severalty, exercising acts of ownership Judicial Partition (Rules of Court)
with respect thereto, or otherwise recognizing the existence of 1. Summary Settlement (Rule 74)
the partition. 2. Regular Administration Proceedings (Rules 79-91)
3. Ordinary Action for Partition (Rule 69)
2. By Person Commissioned by Testator
What is entrusted or delegated is the mere power of Who May Demand Partition:
partition not the power to distribute the hereditary 1. Compulsory Heir;
estate. 2. Voluntary Heir;
The delegation may be made either by an act inter vivos 3. Legatee or Devisee;
such as in a public instrument or any other writing or by 4. Any person who has acquired an interest in the estate.
a will executed in accordance with all of the formalities
prescribed by law. When Partition is Prohibited:
3. By Co-heirs 1. When expressly prohibited by the testator which shall not exceed
Heirs of Teves v. CA, October 13, 1999 20 years;
ISSUE: Should the extrajudicial settlements be upheld? 2. When the co-heirs agreed not to partition for a period not
exceeding 10 years, renewable for another 10 years;
YES. An extrajudicial settlement is a contract and it is a well-entrenched 3. When prohibited by law;
doctrine that the law does not relieve a party from the effects of a 4. When the partition would render the property unserviceable for
contract, entered into with all the required formalities and with full the use for which it is intended.
awareness of what he was doing, simply because the contract turned out
to be a foolish or unwise investment. Therefore, although plaintiffs- Steps in Partition
appellants may regret having alienated their hereditary shares in favor of 1. The debts and obligations of the deceased must first be paid
their sister Asuncion, they must now be considered bound by their own 2. When there are intestate or testamentary proceedings, there may
contractual acts. The subject extrajudicial settlements were never be an ORDER OF DISTRIBUTION before actual partition is made
registered. However, in the case of Vda. de Reyes vs. CA, the Court, The order of distribution, generally based on a project
interpreting Section 1 of Rule 74 of the Rules of Court, upheld the validity of partition, designates the shares which pertain to the
of an oral partition of the decedents estate and declared that the non- heirs, devisees or legatees
registration of an extrajudicial settlement does not affect its intrinsic Partial distribution may be made even before the debts
validity. It was held in this case that - [t]he requirement that a partition be and expenses have been paid, if the distributees give a
put in a public document and registered has for its purpose the protection bond or deposit
of creditors and at the same time the protection of the heirs themselves The order of distribution is conclusive upon all parties
against tardy claims. The object of registration is to serve as constructive who have notice of the proceedings, but does NOT bind
notice to others. Thus, despite its non-registration, the extrajudicial those who have no notice
settlements are legally effective and binding among the heirs of Marcelina
Cimafranca since their mother had no creditors at the time of her death. 3. Partition, or the ACTUAL division of the properties

Extra-judicial Partition: It is valid even if not registered.


Physical division of the property among the beneficiaries 1. If the decedent has made the partition himself
according to their proportions fixed and determined in 2. If the co-heirs agree otherwise
the distribution 3. If it is impossible or impracticable
The thing itself may be divided or its value
Partition ends the co-ownership among the co-heirs as to C. Mutual Accounting
thing partitioned Upon partition, the co-heirs shall render a mutual accounting
of benefits received and expenses incurred by each of them
Period contemplated: between the decedents death and
Certain Rules to Follow partition time.
A. Partition generally a matter of right
GR: any co-heir may demand partition at any time D. Legal Redemption by Co-heir
XPN: Requisites:
1. When forbidden by the testator for a period not 1. That there are several heirs of the common inheritance
exceeding 20 years (this even covers the legitimes) 2. That one of them sells his hereditary rights
XPN to XPN: Hence if the alienation is not a sale, one
a. When any of the causes for the dissolution of requisite is lacking
a partnership occurs Sales can be voluntary or forced (execution
b. When the court finds compelling reasons for sales)
partition 3. That the sale is made to a stranger
All persons who are not heirs by will or law are
NOTE: This shall be made upon petition of one of the co- strangers
heirs The heirs must ACTUALLY succeed
A prohibition of partition imply a prohibition on alienation or 4. That the sale is before partition
any constructive partition To distinguish it from Art. 1620 which applies
where the co-ownership covers specific
2. Balane: when the co-heirs agree on indivision for a period property
not exceeding 10 years renewable for like periods (in This article applies where the co-ownership
accordance with the rules on co-ownership) covers the MASS of the hereditary estate and
presupposes the fact that there has as yet been
B. Equality among co-heirs no distribution of the estate
In the partition of the estate, equality shall be observed as far as
possible 5. That one or more of the co-heirs demand the repurchase within
Quantitative equality the shares of the co-heirs are not a period of 1 month, counted from the time he or they
necessarily equal in value, but are determined by law and by were notified in writing of the sale
will The redemption can be exercised ONLY by a co-heir,
Qualitative equality whatever the aliquot portions be, the law regardless of their number
mandates equality in nature, kind and quality, subject to the A legatee is NOT a co-owner anymore, since she receives
following qualifications: a specific property already
If an heir has himself sold his own right, he is not entitled Two Kinds:
to make the redemption of the right sold by another heir a. Warranty against eviction
to a 3rd party, because he himself ceases to be an heir Action for eviction presupposes that the
after selling his right portion assigned to each heir really
Once subrogation has taken place, the other co-heirs, represented the share which pertained to
even within the period of 1 month, can no longer ask for such heir but that it afterwards suffers
redemption changes through the exercise by a 3rd
The period of 1 month should be counted from the time person of special rights over the property
the that the co-heir is notified IN WRITING of the actual adjudicated
sale The object of this warranty is not to seek a
Garcia: written notice is required, without it the period new partition but merely to compel the
does NOT commence to run registration with the other heirs to make good the damages
Register of Deeds is not sufficient notice most especially suffered by the heir concerned by reason of
because the property involved was unregistered land the eviction
Balane: in 2 recent cases, the Court has relaxed the There is eviction although the heir is not
requirement of written notice and held that actual notice deprived of the ownership of the property
to, o knowledge by the co-heir meets the legal allotted to him, if he is deprived of any
requirement other right, such as usufruct, easement, etc.

6. That the buyer is reimbursed the price of the sale b. Warranty as to quality
This article does NOT apply to sales of property of a decedent by Includes a warranty against hidden defects
the executor or administrator on orders of the probate court The reciprocal obligation of warranty shall
be proportionate to the respective
hereditary shares of the co-heirs
Effects of Partition: Insolvency of one of the obligors: his
portion shall be borne proportionally
1. A partition legally made confers upon each heir the exclusive by all, including the one entitled to the
ownership of the property adjudicated to him warranty
2. The titles of acquisition or ownership of each property shall be Those who pay for the insolvent heir
delivered to the co-heir shall have a right of action against him
When the title comprises 2 or more pieces of land or for reimbursement, should his financial
one piece of land divided between 2 or more co-heirs: condition improve (Except: insolvency
a. Title delivered to the one having the larger interest, judicially declared which extinguishes
and authentic copies of the title furnished to other all obligations)
co-heirs at the expense of the estate; OR NOTE: An action to enforce the warranty among co-heirs must be
b. If the interest of each co-heir should be the same, brought within 10 years from the date the right of action accrues
the oldest shall have the title 4. Credit assigned to a co-heir in partition
3. Warranties
The warranty covers only insolvency of the decedents
debtor at the time of the partition, not subsequent 1. A partition, judicial or extra-judicial, may be rescinded on account of
insolvency, for which the co-heir takes the risk lesion, when any one of the co-heirs received things whose value is
The warranty has a prescriptive period of 5 years LESS, by at least , than the share to which he is entitled, considering
following the partition the value of the things at the time they were adjudicated
Co-heirs do not warrant bad debts of known and XPN: a partition made by the testator himself is not
accepted by the distributee subject to rescission
If bad debts were not assigned to a co-heir, and was XPN to XPN
collected, the amount collected shall be distributed a. Impairment of the legitime (even if lesion is
proportionately less than )
b. Mistake by the testator or vitiation of his
5. The obligation of warranty among co-heirs shall cease when there intent
is:
a. Partition by the testator himself An heir who has alienated the whole or a
Qualifications: considerable part of the real property
i. Unless it appears or it be reasonably presumed his adjudicated to him cannot maintain an action
intention was otherwise for rescission on the ground of lesion, but he
ii. The legitime shall always remain unimpaired shall have a right to be indemnified in cash
b. Agreement among the co-heirs to suppress the warranty
XPN: there was bad faith The action for rescission on account of lesion
c. Supervening events causing the loss or the diminution in shall prescribe after 4 years from the time the
value partition was made
d. Fault of the co-heir
e. Waiver Incompleteness of partition is NOT a ground for
rescission. The remedy is supplemental partition

Rescission and Nullity of Partition


2. Those agreed upon in representation of absentees, if the latter suffer
Causes for annulment the lesion stated in the preceding number
1. Those where one of the parties is incapable of giving consent
2. Those where the consent is vitiated by mistake, violence, 3. Those undertaken in fraud of creditors when the latter cannot in any
intimidation, undue influence or fraud other manner collect the claims due them

NOTE: these are susceptible of ratification 4. Those which refer to things under litigation of they have been entered
into by the defendants without the knowledge and approval of the
Causes for rescission litigants or of competent judicial authority
Rules:
The heir who is sued shall have 2 options:
A partition made with preterition (not that in 854) of any
compulsory heir shall not be rescinded, UNLESS:
1. It was proved there was bad faith
2. It was proved there was fraud
NOTE: On the part of the other persons interested (nevertheless, the latter
shall proportionately pay the person omitted)
A partition which includes a person believed to be an heir, but
who is not, shall be VOID only with respect to such person.
P a g e | 115

(Last Will and Testament)

LAST WILL AND TESTAMENT

KNOW ALL MEN BY THESE PRESENTS

I, _____________, of legal age, (single / married / widow), a citizen of _____________ and currently a
resident of _____________, with sound and disposing mind and memory, and without having been forced,
intimidated or unduly influenced by anybody, have hereby voluntarily executed and proclaimed this instrument,
as my Last Will and Testament, in English, a language I speak and write with and of which I am well conversant:

1. That should I finally rest in eternal peace, it is my wish and desire that internment, vigil and burial be
made in accordance with the customs and traditions of the _____________ Church;

2. That I am the owner of the following properties:

(List and Description of Real and Personal Properties)

3. That should the Lord Almighty finally summon this soul from its earthly abode, it is my wish and desire
to bequeath, grant and devise my properties above-mentioned, as follows:

a) To my beloved (wife/husband) _____________, I hereby bequeath the properties listed as nos.


_______ above;

b) To my beloved children _____________, _____________, and _____________, I hereby bequeath


in equal shares, the properties listed as nos. _______ above;

c) To _____________ who has been my constant companion and nurse in my illness, I hereby devise
the property listed as no. _______ above;

d) To my (brother/sister/friend/etc.) _____________ I give the property listed as no. _______ above;

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4. That should Divine Providence will it that I die ahead of my beloved (wife/husband), I hereby proclaim as Province of ____________________) S.S.
my wish and desire which my heirs, devisees and legatees should respect, that the provisions of the City/Municipality of _____________)
foregoing Paragraph 3, Sub-Paragraphs b, c, and d be rendered temporarily without force and effect, x-----------------------x
and my surviving (wife/husband) shall have full use and enjoyment of all the above-listed properties;
and only upon (his/her) demise shall the provisions of Paragraph 3, Sub-Paragraphs b, c, and d come ACKNOWLEDGMENT
into effect;
BEFORE ME, a Notary Public for and in the (Province/City/Municipality) of _____________, personally
5. That for the purpose of rendering this Last Will and Testament effective thru the proper proceeding in appeared the following persons, with their respective Community Tax Certificates as follows:
Court, I hereby name and constitute _____________ as Executor and Administrator of this Last Will and
Testament, and that in his incapacity, I hereby name _____________ as his substitute; Name C.T.C. No. Date / Place Issued

6. That the Executor and Administrator I hereby nominate shall be excused from posting any bond; 1. TESTATOR _____________ _____________
2. WITNESS _____________ _____________
7. That I hereby revoke, set aside, and annul any other will or testamentary disposition I have made, 3. WITNESS _____________ _____________
signed, or proclaimed. 4. WITNESS _____________ _____________

IN WITNESS WHEREOF, I have hereunto set my this _____________ at _____________, Philippines. known to me and to me known to be the same person who executed the foregoing Last Will and Testament,
which he acknowledged to me to be (his/her) own free and voluntary act and deed and which (he/she) executed
and signed in the presence of the three (3) above-named attesting witnesses, who all signed their names as proof
of their attestation on this page before the Testator _____________ and in the presence of each and everyone of
TESTATOR them, and they acknowledged the same to be their free and voluntary act and deed.

This Last Will and Testament consists of _____________.(______) pages, including the page on which
ATTESTATION CLAUSE the ratification and acknowledgment are written.

WE, the undersigned witnesses, do hereby affirm that the foregoing is the Last Will and 'Testament of WITNESS MY HAND AND SEAL this _____________ at _____________, Philippines.
_____________ and we hereby certify: That (he/she) executed the same while of sound and disposing mind and
memory; That he signed the same in our presence, at the bottom of the last page and on the left hand margin of
each and every page, and we, at his behest, have signed hereunder and on the left hand margin of each and every
page, in (his/her) presence, in the presence of the Notary Public, and in the presence of each and every one of us NOTARY PUBLIC
this _____________ at _____________, Philippines.

WITNESS ADDRESS Doc. No. ______;


Page No. ______;
1. _____________________ ____________________________________ Book No. ______;
Series of ______;
2. _____________________ ____________________________________
HOLOGRAPHIC WILL
3. _____________________ ____________________________________
(NOTE: This should be handwritten)
15, May 2000
I, ____________________, of _____________________ being of sound mind and disposing mind, do
REPUBLIC OF THE PHILIPPINES) hereby declare this to be my last will and testament which I have written in my own handwriting in English, a
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language known to me, and I hereby declare that all my properties shall upon my death be distributed to my wife
__________________ and to my only child ____________________ share and share alike.

Juan Dela Cruz

CUNANAN.DIAZ 2014

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