1

TITLE IV – SUCCESSION
CHAPTER I

GENERAL PROVISIONS

What are the modes of acquiring ownership?

a. Occupation
b. Intellectual creation
c. Law
d. Donation
e. Testate and intestate succession
f. Tradition (In consequence of certain
contracts)
g. Prescription 1

Thus, under the Civil Code, succession is one of the

modes of acquiring ownership.

The first three are original and the last four are
derivative.

Theory of mode and title

Mode is a way or process of acquiring or transferring

ownership; while title refers to the juridical act or deed which
is not sufficient by itself to transfer ownership but it provides
a juridical justification for the effectuation of a mode.
Consequently, mode directly produces a real right, while title
serves only to produce a means or occasion for its acquisition.
In other words, mode is the cause, while title is the means.

Thus, if a seller sells his car to a buyer, the sale is

the title while the delivery (tradition) is the mode which
makes the buyer the owner of the ring. A title merely creates
a personal right which could real right if followed with
delivery.

MODE TITLE

OCCUPATION SEIZURE PROPERTY SEIZED IS

WITHOUT A KNOWN
OWNER

1
Article 712 NCC
 2

INTELLECTUAL EMERGENCE OR ORIGINALITY OR

CREATION DISCOVERY NOVELTY
LAW FORCE OF LAW CONCURRENCE OF
PREREQUISITE
CONDITIONS
DONATION FORMALITIES/DELIVERY AGREEMENT OF
PARTIES

SUCCESSION DEATH LAW OR WILL

TRADITION DELIVERY AGREEMENT OF THE

PARTIES

PRESCRIPTION LAPSE OF PRESCRIBED POSSESSION IN THE

PERIOD CONCEPT OF AN OWNER
Note that in the law on succession, the title is also
the mode. Hereditary rights are transferred from the moment
of death of the decedent (Article 777). Delivery (tradition) is
not a condition pre-requisite to transfer ownership. Actual
possession, however, may be exercised only upon actual
delivery (Article 1089; 1091).

What is succession?

Succession is a mode of acquisition by virtue of

which the property, rights and obligations to the extent of the
value of the inheritance, of a person are transmitted through
his death to another or others either by will or by operation of
law. 2 This is hereditary succession.

What are the elements of succession as defined

by the Civil Code?

1. It is a mode or way of acquiring ownership;

2. There is transmission of property, rights and obligations
to another or others;
3. As to transmission of obligations, it is only to the extent
of the value of the inheritance;
4. The cause of transmission is the death of the decedent;
5. The procedure of transmission may be by will or
operation of law;
6. The acceptance of the inheritance by the heir which is
understood even if not expressly stated in the Article. 3

2
Article 774 NCC
3
Article 533 NCC: “The possession of hereditary property is
deemed transmitted to the heir without interruption, and from
the moment of death of the decedent, in case the inheritance
 3

When are successional rights vested?

Successional rights are transmitted as of the

moment of death of the decedent. 4 Successional rights are
therefore vested as of the moment of death of the decedent.

What law governs distribution of estate?

The law in force at the time of death of the deceased

shall govern the distribution of his estate and not the law at
the time of distribution.

What is the difference between a decedent and

a testator?

a. Decedent – This term is used in Civil Law when reference

is made to a person who died with property to transmit to
his heirs through succession. The word is applicable
whether or not the deceased executed a will. Hence
“decedent” is a general term for both situations.

b. Testator – This term is used only in reference to a

decedent who left a valid will. A decedent who did not
leave any will cannot be called a testator.

What includes inheritance?

a. Property;
b. Transmissible rights (those not extinguished by death);
c. Transmissible obligations (those not extinguished by
death); and
d. All property which have accrued thereto since the
opening of the succession (death of the decedent). 5

The latter refers to after-acquired property, that is,

not only property acquired between the period of the
execution of the will and the death of the testator, but also
accruing property until the distribution of the estate.

Note however that if the decedent died with a valid

will, the after-acquired property shall not pass to the
designated heir unless the same is expressly stated in the will

is accepted. One who validly renounces an inheritance is

deemed never to have possessed the same.”
4
Article 777 NCC
5
Article 781 NCC
 4

or the intention clearly appears.6 When the testator used

general terms in the disposition of his property such as “ my
entire estate”,
estate”, “all
“all my property”,
property”, etc. the intention to pass
after-acquired property is deducible in the absence of the
contrary context.

What are examples of after-acquired

properties?

a. Alluvial deposits
b. Interests on credits

These are accretions and accessions. However, they

are not strictly inherited for they form part of the estate only
after the heirs become the owners thereof, hence, properly
speaking, they are acquired by accretion as an incident of
ownership under the law, and not by succession. Property
acquired by the testator between the time the will is made
and the time he dies, is not given to the designated heir
unless the contrary has been expressly provided. Such
property is acquired prior to the death, not afterwards.

What are intransmissible rights?

They are rights extinguished upon the death of the

decedent. The heirs could not succeed to intransmissible
rights.

What are the examples of intransmissible

rights and obligations?

a. The right to receive support;

b. The obligation to give support;
c. The right of usufruct;
d. Criminal liability;
e. Political position;
f. The right of parental authority; and
g. Marital rights.

What are the criteria in determining

intransmissible rights?

a. When the rights are purely personal in nature such as the

discharge of public office; and

6
Article 793 NCC
 5

b. When rights are expressly made intransmissible by law

like usufruct. 7

Are heirs liable for the personal debts of the

decedent? Up to what extent may an heir inherit
obligations of his predecessor-in-interest?

The heirs are only entitled to get what remains in the

inheritance after payment of all obligations. However, the
heirs are not liable for the debts of the decedent which debts
must be paid or charged against the property left by the
deceased. And if this property is not enough to defray all the
indebtedness, the heirs are not liable to pay the balance.
(Pavia vs. Dela Rosa, 8 Phil. 70; Suilong & Co. vs. Chio –
Tayson, 12 Phil. 1; Centeneral vs. Sotto, 78 Phil. 432)
432) Thus,
the heir may inherit obligations but only to the extent of the
value of the inheritance. The heir cannot be required to pay
more than what he gets. (Nacar
(Nacar vs. Nistal, 119 SCRA 29)
29) It is
the estate of the decedent, instead of the heirs, who is vested
and charged with his rights and obligations, which survive
after his death. For this purpose, it has been held that it is the
estate, rather than the heir, which must be considered the
decedent’s personality.

Are monetary obligations which the decedent

incurred during his lifetime transmissible to the heirs
so that the latter may be charged directly for the
payment thereof?

No. Such monetary obligations are intransmissible.

They must be liquidated in the testate or intestate
proceedings (Rule 87, Section 5, Rules of Court) While the
decedent is dead, nevertheless, his estate is considered a
juridical person with the right to sue and be sued through the
executor or administrator as the case may be. Heirs are the
continuity of the juridical personality of the decedent and as
such can file an action to protect the latter’s estate.

Literally construed, however, money obligations of

the deceased, under Article 774, pass to the heirs, to the
extent that they inherit from him. Seemingly, therefore, this
article mandates that the heirs receive the estate, and then
pay off the creditors. Philippine procedural law, however,
influenced by the common-law system, has laid down a
different method for the payment of money debts, which is
found in Rules 88 to 90 of the Rules of Court. It is only after
7
Article 603, par 1 NCC
 6

the debts are paid that the residue of the estate is distributed
among the successors. 8

In our system, therefore, money debts are, properly

speaking, not transmitted to the heirs nor paid by them. The
estate pays them; it is only what is left after the debts are
paid that are transmitted to the heirs.

Are contractual obligations transmissible?

Generally, unless otherwise provided in the contract,

contractual obligations are transmissible. Thus, if the
decedent is the lessor in a contract of lease with a definite
period, his heirs will inherit the obligation to respect the
lease. Similarly, in a contract of sale, the heirs are obligated
to deliver the property sold by their predecessor – in –
interest to the buyer. (Pamplona
(Pamplona vs. Moreto, 96 SCRA 725)
725) 9

8
“Rule 90, Sec. 1. When the order for the distribution of
residue made. – When the debts, funeral charges, and
expenses of administration, the allowance to the widow, and
inheritance tax, if any, chargeable to the estate in accordance
with law, have been paid, the court, on the application of the
executor or administrator, or of a person interested in the
estate, and after hearing upon notice, shall assign the residue
of the estate to the person entitled to the same, naming them
and the proportions, or parts, to which each is entitled, and
such persons may demand and recover their respective
shares from the executor or administrator, or any other
person having the same in his possession. If there is a
controversy before the court as to who are the lawful heirs of
the deceased person or as to the distributive shares to which
person is entitled under the law, the controversy shall be
heard and decided as in ordinary cases.
No distribution shall be allowed until the payment
of the obligations above mentioned has been made or
provided for, unless the distributes, or any of them, give a
bond, in a sum to be fixed by the court, conditioned for the
payment of said obligations within such time as the court
directs.”
9
“Article 1311. Contracts take effect only between the
parties, the assigns and heirs, except in case where the rights
and obligations arising from the contract are not transmissible
by their nature, or stipulation or by provision of law. The heirs
are not liable beyond the value of the property received from
the decedent.”
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In the case of Estate of Hermandy vs. Luzon Surety

Co., Inc., 100 Phil. 389,
389, it was held that:

“The binding effect of contracts

upon the heirs of the deceased party is not
altered by the provision of our Rules of
Court that money debts of a deceased must
be liquidated and paid from his estate
before the residue is distributed among said
heirs (Rule 89). The reason is that whatever
payment is thus made from the estate is
ultimately a payment by the heirs or
distributes, since the amount of the paid
claim in fact diminishes or reduces the
shares that the heirs would have been
entitled to receive. Under our law,
therefore, the general rule is that a party’s
contractual rights and obligations are
transmissible to the successors. It must,
however, be made clear that the heirs are
liable only to the extent of the value of their
inheritance.”

What is meant by inheritance? Distinguish it

from succession.

The inheritance may be defined as the universality of

all properties, rights and obligations constituting the
patrimony of the decedent which are not extinguished by his
death and which are available for distribution among his heirs
after settlement or liquidation.

Succession is the legal mode by which such property,

rights and obligations are transmitted. In other words, the
inheritance is merely the objective element of succession.

Inheritance distinguished from succession and

patrimony

Inheritance refers to the totality of the decedent’s

property, rights and obligations transmitted to his successor,
while succession refers to the legal mode or manner by which
they are acquired or transmitted, thus the first is the
objective of the second.

Patrimony refers to the aggregate of all juridical

relations of a person susceptible of economic valuation, while
inheritance refers to the mass or totality of the patrimony of
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the decedent, which is not extinguished by his death, thus the

first is broader than the second.

What are the requisites for an effective

transmission by succession? (Requisites before rights
may be transmitted mortis causa)
causa)

a. Death, whether actual or presumptive 10 (ordinary –

10, 5 years; extra ordinary – 4 years) (Succession takes
place at the time of disappearance, however, actual
division takes place at the end of the required period);
b. The express will of the testator calling certain
persons to succeed him or in default thereof, the
provision of law prescribing the successor;
c. Rights or properties are transmissible;
d. Transferee must be alive (not predeceased), willing
(no repudiation) and capacitated (no disinheritance) to
inherit.

When is the moment of transmission of rights?

Rights to the succession are transmitted from the

very moment of death of the decedent. 11 It is understood of
course that there is acceptance of the inheritance. 12

The time of death is the determining point when the

heirs acquire a definite right to the inheritance whether such
right be pure or conditional.

Observations:

 The right to the succession is not transmitted;

transmitted; it
becomes vested.
vested. To say that it is transmitted upon death
implies that before the decedent’s death, the right to the
succession was possessed by the decedent (which is
absurd). To say it vests upon death implies that before
the decedent’s death the right is merely inchoate (which
is correct).
 Article 777 merely specifies the time of vesting of
the successional right. It presumes that the person
succeeding 1) has a right to succeed by legitime
(compulsory succession), or by law (intestate

10
Article 391 NCC
11
Article 777 NCC
12
Vide Article 533 NCC
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succession); 2) has the legal capacity to succeed; and 3)

accepts the successional portion.

 The vesting of the right occurs immediately upon the

decedent’s death; i.e. without a moment’s interruption.
From this principle, obvious consequences flow, thus:

a. During the lifetime of the decedent, the right of the

heirs is a mere expectancy. Until the death had
supervened, the right to succession is merely speculative
for in the meantime, the law may change, the will of the
testator may vary, or the circumstances may be modified
to such an extent that he who expects to receive
property may be deprived of it. Indeed, the moment of
death is the determining point when an heir acquires a
definite right to the inheritance;
b. The right of the heirs is vested from the moment of
death even before judicial declaration;
c. Previous declaration of heirship is not essential;
d. Liquidation is not necessary;
e. Tax obligations accrue at the moment of death of the
decedent;
f. The law in force at the time of the decedent’s death
will determine who the heirs should be. (Vide:
(Vide: Uson vs.
Del Rosario, 92 Phil. 530);
530); 13
13
Facts: Maria Uson was the lawful wife of Faustino Nebreda
who upon his death in 1945 left five parcels of land. Faustino
Nebreda left no other heir except his widow, Maria Uson.
Defendant Maria Del Rosario was the common law wife of
Nebreda with whom she has several illegitimate children, the
other defendants. Maria Uson file the present action for the
recovery of the ownership and the possession of said lands
claiming that when Nebreda died his common law wife took
possession of said lands. The defendant contended that under
the new Civil Code, which took effect in 1950, the illegitimate
children are given the status and rights of natural children
and are entitled to the successional rights which the law
accords to the latter and because these successional rights
were declared for the first time in the new Civil Code, they
shall be given retroactive effect even though the even which
gave rise to them may have occurred under the prior
legislation.
Ruling: There is no merit in this claim. Article
2253 above referred to provides indeed that rights which are
declared for the first time shall have retroactive effect even
though the event which gave rise to them may have occurred
under the former legislation, but this is so only when the new
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g. Ownership passes to the heir at the very moment of

death, who therefore, from that moment acquires the
right to dispose of his share (Vide:
(Vide: Jose de Borja vs.
Tasiana vda de Borja, 46 SCRA 577);
577); and
h. The heirs have the right to be substituted for the
deceased as party in an action that survives ( Vide:
Bonilla vs. Barcena, 71 SCRA 491).
491).

Illustrations:

X, Y, Z are the heirs of A who died, leaving an

estate of ten hectares. Before partition, can X sell his
share without the consent of Y and Z? Why?

Yes, because his hereditary share was transmitted

from the moment of death of A. There is no legal bar
therefore, for X to sell his share immediately even if the
actual extent of his share has not been determined. (Testate
(Testate
Estate of Tangco; Jose de Borja vs. Tasiana vda de Borja, 46
SCRA 577)
577)

A died without a will in 1960, survived by three

legitimate children B, C and D. Immediately, upon the
death of A, B sold his entire right to the inheritance to
X, a third person for 20, 000.00. Is the sale valid?

Yes.

Suppose that the hereditary estate was finally

partitioned in 1962. According to the project pf
partition, B, C and D shall be entitled to 30, 000.00

rights do not prejudice any vested or acquired right of the

same origin. Thus, said article provides that “if a right should
be declared for the first time in this Code, it shall be effective
at once, even though the act or event which give rise thereto
may have been done or may have occurred under the prior
legislation, provided said new right does not prejudice or
impair any vested or acquired right of the same origin.” As
already stated in the early part of this decision, the right of
ownership of Maria Uson over the lands in question became
vested in 1945 upon the death of her late husband and this is
so because of the imperative provision of the law which
commands that the rights to succession are transmitted from
the moment of death. The new right recognized by the new
Civil Code in favor of the illegitimate children of the deceased
cannot, therefore, be asserted to the impairment of the
vested right of Maria Uson over the lands in dispute.
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each. D however repudiated his share of the

inheritance. Under the law, the 30, 000.00, which
would have passed to him, shall now accrue to B and C
in equal shares. Who shall now be entitled to the 15,
000 accruing to B?

X is now entitled to the 15, 000.00.In other words,

he can now compel the estate of A to pay to him not only 30,
000 to which B is entitled as a legal heir, but even the 15, 000
to which B is entitled by right of accretion. This is because of
the principle of retroactivity as applied to acts and acceptance
or repudiation (Art. 1042 NCC).

What are the kinds of succession?

a. Compulsory – succession to the legitime (this

prevails over all kinds);
b. Testamentary – which results from the designation of
an heir made by the testator in a will;
c. Legal or intestate – where the decedent did not
execute a will; or if there was a will, it is void; or there
may be succession by operation of law;
d. Mixed –that which is effected partly by will and partly
by operation of law; and
e. Contractual – that which is effected when the future
spouses donate to each other in their marriage
settlement their future property to take effect upon the
death of the donor to the extent laid down by the
provisions of the civil code relating to testamentary
succession. This is by way of exception of par. 2, Article
1347. 14 However, it should be executed by the formalities
of a will. 15

Are nuncupative wills allowed?

14
Article 1347. x x x “No contract may be entered into upon
future inheritance except in cases expressly authorized by
law.
15
Article 84. “If the future spouses agree upon a regime other
than the absolute community of property, they cannot donate
to each other in their marriage settlements more than one-
fifth of their present property. Any excess shall be considered
void.
Donations of future property shall be governed by
the provisions on testamentary succession and the formalities
of wills.”
 12

Nuncupative or orals wills are not allowed in the

Philippines. A tape- recorded will is still a nuncupative will

What is the difference between an heir, devisee

and legatee?

Heir – a person called to the succession either by the

provision of a will or by operation of law. They succeed by
universal title, that is, to all or fraction or aliquot part of the
properties, rights and obligations.

Devisee – a person to whom gifts of particular real

properties are given by virtue of a will (devises).

Legatees – a person to whom gifts of particular

personal properties are given by virtue of a will (legacies).

What is the importance of the distinction

between heirs on the one hand, and legatees and
devisees on the other?

a. In the case of preterition (omission of a compulsory

heir in the inheritance), an instituted voluntary heir gets
nothing, but a devisee or legatee still gets the property
given as long as the legitime is not impaired;

b. While there can be heirs in either testate, legal or

mixed succession, legatees and devisees can exist in
testamentary succession;

c. The heir represents the juridical personality of the

deceased so that he acquires not only his property and
rights but also his obligations not extinguished by death
but only to the extent of the value of their inheritance,
while a devisee or legatee does not represent the
personality of the deceased regardless of the quantity or
value pf the devise or legacy;

d. The heir inherit an indeterminate quantity of

inheritance the value of which cannot be determined or
fixed until the inheritance is liquidated, while the devisee
succeeds to a determinate thing or amount;

e. The heir succeeds to the remainder of the estate

after all debts, devises and legacies have been paid,
while a devisee succeeds only to the definite thing or
amount bequeathed;
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f. The heir succeeds by general right, while the devisee

succeeds by special or particular title; and

g. The heir who succeeds by operation of law must be a

relative while the devisee may be a relative or not.

CHAPTER 2

TESTAMENTARY SUCCESSION

Section I. WILLS

Subsection 1. WILLS IN GENERAL

What is a will?

A will is an act whereby a person is permitted, with

the formalities prescribed by law, to control to a certain
degree the disposition of his estate, to take effect after his
death. 16

What are the essential elements of a will?

1. The making of a will is a statutory (not a natural)

right;
2. It is a unilateral act. (Thus no acceptance by the
transferees is needed while the testator is still alive);
3. It is a solemn or formal act; 17
4. There must be animus testandi;
5. The testator must be capacitated to make a will; 18
6. The will is strictly a personal act in all matters that
are essential; 19
7. Is effective mortis causa; 20
8. It is essentially revocable or ambulatory; 21
9. It is free from vitiated consent; 22
10. It is an individual act (as distinguished from a joint
act); 23 and

16
Article 783 NCC
17
Vide Article 783 NCC
18
Articles 769 – 798 NCC
19
Article 784 NCC
20
Article 777 NCC
21
Article 828 NCC
22
Article 839 NCC
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11. It disposes of the testator’s estate (whether totally

pr partially) in accordance with his wishes.

Why does the law use the word “permitted”?

Because the making of a will is merely a statutory

right conferred by law. It must be considered subordinated to
law and public policy. And the making thereof must conform
to the formalities prescribed by law.

Why is it that the law says the testator can only

control to a certain degree the disposition of his
estate?

Because the right to make a will, as conferred by

law, is not absolute, thus, if there are compulsory heirs, the
power of the decedent to dispose if his estate is limited to the
free disposable portion because of the system of legitime.

What are the characteristics of a will?

1. Purely personal (Articles 784 – 785; 787)

2. Free and intelligent (Article 839)
3. Solemn and formal (Articles 804 – 814; 820 – 821)
4. Revocable and ambulatory (Article 828)
5. Mortis causa (Article 783)
6. Individual (Article 818)
7. Executed with animus testandi (Article 783)
8. Executed with testamentary capacity (Articles 796 –
803)
9. Unilateral (Article 783)
10. Dispositive of property (Article 783)
11. Statutory (Article 783)

Other characteristics of a will:

Though not explicit in Article 783, a will has also the

following implied characteristics:

1. It is a written act (Articles 805 and 810);

2. It can be executed only by a capacitated person,
meaning one who is of age 24 and of sound mind
(Articles 796-798)

Is Jose Rizal’s poem “Ultimo Adios” a will?

23
Vide Articles 818 and 819.
24
Under R.A. No. 6809 (1989) legal age is now 18 years.
 15

The crucial words are found in the poems 13th

stanza: “Ahi te todo, mis padres, mis amores” (To you I leave
everything, my parents, my loves.) Declared the Supreme
Court: It is a literary piece of work and was so intended. If it
were intended as a will the poem would have been entitled
“Ultimo Voluntas” and not “Ultimo Adios” His poem merely
expresses a thought of parting and not of bequeathing.
Besides, at that time, he knows that he has no known
property. Therefore an instrument which merely expresses a
last wish as a thought or advice but does not contain a
disposition of property and was not executed with animus
testandi, cannot be legally considered a will in a judicial
sense. (Montinola v. Herbosa, 3 C.A. Rep. (2nd S) p. 377)

What provisions in a will cannot be left to the

discretion of a third person?

1. The duration or efficacy of the designation of heirs,

devisees or legatees; or
2. The determination of the portions which they are to
take, when referred to by name. 25
3. The determination on whether or not the
testamentary disposition is to be operative. 26 (The heir,
however, is free to accept or renounce the testamentary
benefit.)

What provisions in a will that can be entrusted

to a third person?

1. The manner of distribution of specific property or

sums of money that he may leave in general to specified
classes or causes; and
2. The designation of the persons, institutions or
establishments to which such property or sums of money
are to be given or applied. 27

Here, there is no delegation of the will of the

testator. The testator has already expressed his will and has
entrusted merely to the third person the execution of the
same so as to carry out his purpose. However, under this
provision, two things must be determined by the testator:

25
Article 785 NCC
26
Article 787 NCC
27
Article 786 NCC
 16

a. The property or amount of money to be

given; and
b. The class or the cause to be benefited.

What is the distinction between the two

Articles?

In Article 786 there are no particular names

designated, whereas in Article 785, the recipients of the
bounty of the testator are specified either individually or as a
group. In the latter Article, the third person simply
implements the details of the testamentary dispositions made
by the testator.

Illustration: A testator segregated P1 Million for the

relief of the victims of Mt. Pinatubo. He designated a third
person to carry out this testamentary disposition. The third
person will now make the necessary distribution of the money
to the said victims. Third is a valid delegation of power –
which involves the implementation of the disposition as willed
by the testator.

What are the kinds of ambiguity in a will? 28

1. Latent or intrinsic ambiguity – this ambiguity is

hidden because it does not appear on the face of the will
(not obvious on the face of the will), and is discovered
only by extrinsic evidence.

Examples:

Latent as to person – “I institute to ¼ of my

estate my first cousin Jose” (and the testator has more
than one first cousin named Jose).

Latent as to property – “I devise to my cousin

Pedro my fishpond in Gingoog City” (and the testator has
more than one fishpond in Gingoog City).

2. Patent or extrinsic ambiguity – this ambiguity

appears on the face of the will. It is apparent and not
hidden (obvious on the face of the will); in other words,
by examining the provisions itself, it is evident that it is
not clear.

Examples:
28
Article 789 NCC
 17

Patent as to person – “I institute to ¼ of my

estate some of my first cousins”

Patent as to property – “I bequeath to my cousin

Pedro some of my cars.”

Matters covered by the Article

The situations covered are:

a. There is an imperfect description of the heir,

legatee, or devisee;
b. There is an imperfect description of the gift
given; or
c. A description to which no person or property
exactly answers; or
d. An uncertainty arising upon the face of the
will.

How may the ambiguities be cured? 29

a. By examining the will itself

b. The extrinsic or parol evidence of the
testator
c. Testimonial evidence excluding the oral
declarations of the testator is inadmissible.

Illustrations:

The testator in his will gave his friend X a specified

parcel of land. It turned out that he has 2 friends by
that name. However, while making the will, the
testator orally stated that he was referring to his
neighbor X, but among his files was found a letter
stating that he wanted to give the land to X of
Malaybalay City.

a. What kind of ambiguity is this?

This is a latent or intrinsic ambiguity, because

the provision is clear by itself, the doubt arising only
because of circumstances outside of the will.

29
Article 789 NCC
 18

b. Is the testator’s oral declaration admissible?

The testator’s oral declaration is extrinsic

evidence but should not be admitted, by express
provision of the law, in order to discourage perjury.

c. To whom should the land be given?

The house should be given to X of Malaybalay

City in view of the written memorandum, which is indeed
admissible extrinsic evidence.

What is the effect if the ambiguity could not be

explained?

If the ambiguity cannot be explained or is too

doubtful and beyond construction despite resort to parol
evidence, it becomes incurable. The testamentary provisions
shall then be inoperative.

What are the rules on interpretation of words?

What are the exceptions? 30

1. Ordinary words have their ordinary meanings

(understood in its layman’s sense or meaning). (For
instance, a “natural child” is understood to be a child
born to his parents by nature as distinguished from an
adopted child.) Exception – If there is a clear intention
that another meaning was used– provided that other
meaning can be determined.

2. Technical words have technical meanings (a word

which has its own meaning as defined in the rules or laws
of a certain subject, discipline, science and the like).
(Thus, a “natural child” in civil law has a meaning
different from its ordinary sense. It means a child born to
parents who at the time of its conception, were
capacitated to marry but did not marry each other)
Exceptions – (1) if there is a contrary intention; or (2) if
it appears that the will was drafted by the testator alone,
who did not know the technical meaning.

What is the presumption in the making of a

will?

30
Article 791 NCC
 19

When a testator makes a will, the presumption is

that he intends to dispose of all his property. There is no
presumption to die intestate as to any portion of his estate
when the language used can clearly cover the entire estate.

The presumption against intestacy is so strong that

probate courts will adopt any reasonable construction of a will
to make it effective and avoid intestacy. (Booth vs. King, 368
III. 487, 14 N.E. [2nd] 645)

What is the effect of invalidity of one of several

provisions? 31

1. Even of one disposition or provision is invalid, it does

not necessarily follow that all others are also invalid.

2. Exception – when the various dispositions are

indivisible in intent or nature.

What is the rule respecting after acquired

properties? What are the exceptions? 32

1. What are given by will are only those properties

already possessed and owned by the testator at the time
the will was made, not those acquired after (after-
acquired properties). Properties acquired after the
making of the will do not pass to the instituted heirs.

2. Exceptions:

a. If it expressly appears in the will that it was

the intention to give such “after-acquired”
properties;

b. If the will is republished or modified by a

subsequent will or codicil (in which case, the
properties owned at the time of such
republication or modification shall be given. 33

c. If at the time the testator made the will he

erroneously thought that he owned certain
properties, the gift of said properties will not be

31
Article 792 NCC
32
Article 793 NCC
33
Article 836 NCC
 20

valid, unless after making the will, said

properties will belong to him.34

d. Legacies of credit or remission are effective

only as regards that part of the credit or debt
existing at the time of the death of the testator.
35

In every devise or legacy, what is the general

rule as to what interest of the testator may be disposed
of? What are the exceptions? 36

1. General rule: In a legacy or devise the testator gives

exactly the interest he has in the thing. 37The entire
interest of the testator in the property is given – not
more, not less.

2. Exceptions:

a. He can convey a lesser interest if such intent clearly

appears in the will;

b. He can convey a greater interest, thus the law

provides “if the testator … owns only a part of, or an
interest in the thing bequeathed, the legacy or devise
shall be understood limited to such part or interest,
unless the testator expressly declares that he gives the
thing in its entirety. 38 In this case, if the person owning
the interest to be acquired does not wish to part with it,
the solution in Article 931 can be applied; i.e. the legatee
or devisee shall be entitled only to the just value of the
interest that should have been acquired.

c. He can even convey property which he very well

know does not belong to him 39 provided that it also does
not belong to the legatee or devisee. 40 (If the testator
thought the property was his, although it is not really his,

34
Vide Article 930 NCC
35
Article 935, par. 1 NCC
36
Article 794 NCC
37
Real properties are enumerated in Article 415 and personal
properties in Articles 416 and 417 NCC
38
Article 929 NCC
39
Vide Articles 930 and 931 NCC
40
Vide Article 937 NCC
 21

the legacy or devise is void, unless the property

subsequently becomes his.41)

What law shall determine the validity of a will

as to its form? 42

A. Aspects of validity of wills

1. Extrinsic validity – refers to the requirement of form

(formal validity)

a. Governing law as to time

a) For Filipinos – the law in force

when the will was executed.
b) For foreigners – same rule
(Note: The assumption here, of course, is that
the will is being probated here.)
b. Governing law as to place

a) For Filipinos –

(1) Law of citizenship – If the

testator is a Filipino, he can observe
Philippine laws; 43 or
(2) Law of domicile – laws of the
country where “he may be”; 44 or
(3) Law of residence; or
(4) Law of place of execution –
law of the country where he executes the
will; 45 or
(5) Philippine law

b) For foreigners –

(1) If the testator is an alien

who is abroad, he can follow the law of
his domicile, or his nationality or

41
Vide Article 930 NCC
42
Article 795 NCC
43
Articles 804- 814 NCC
44
Article 815 NCC
45
Article 17 NCC (Lex loci celebrationis or locus regit actum)
 22

Philippine laws 46 or where he executes

the will. 47
(2) If the testator is an alien
in the Philippines, he can follow the law
of his nationality 48 or the laws of the
Philippines, since he executes the will
here. 49

2. Intrinsic validity – refers to the substance of the

provisions (substantive validity)

a. Governing law as to time – successional

rights are governed by the law in force at the time of the
decedent’s death. 50

a) For Filipinos – the law as of the

time of death (Article 226351)
b) For foreigners – depends on their
personal law (Article 16, par. 2; 52 Article 1039
53
)

46
Article 816 NCC
47
Article 17 NCC
48
Article 817 NCC
49
Article 17 NCC
50
Vide Article 2263 NCC
51
Article 2263. Rights to the inheritance of a person who
died, with or without a will, before the effectivity of this Code,
shall be governed by the Civil Code of 1889, by other
previous laws, and by the Rules of Court. The inheritance of
those who, with or without a will, die after the beginning of
the effectivity of this Code, shall be adjudicated and
distributed in accordance with this new body of laws and by
the Rules of Court; but the testamentary provisions shall be
carried out insofar as they may be permitted by this Code.
Therefore, leitimes, betterments, legacies and bequests shall
be respected; however, their amount shall be reduced if no
other manner can every heir be given his full share according
to this Code.
52
Article 16. Par. 2 x x x However, intestate and testamentary
succession, both with respect to the order of succession and
the amount of successional rights and the intrinsic validity of
testamentary provisions, shall be regulated by the national
law of the person whose succession is under consideration,
whatever may be the nature of the property and regardless
wherein said property may be found.
 23

b. Governing law as to place

a) For Filipinos – the national law

(Philippine law) of the decedent, that is, the
law of his country or nationality 54 - regardless
of the place of execution. However, if the
conflict rules under the national law of the
deceased refer the matter to the law of the
domicile and the foreigner was domiciled in
the Philippines at the moment of death, our
courts will have to apply the Philippine
international law on succession (Renvoi
doctrine).

b) For foreigners – their national

law (Article 16, par. 2; Article 1039)

Illustration:

X executed a holographic will in 1923. It was

presented for probate in 1946. It was allowed in 1952.
Was the allowance valid?

No, because there was no law authorizing the

execution of a holographic will in 1923. The law says that the
validity of a will depends upon the observance of the law at
the time it is made. 55

Problems:

a. X made a will instituting his friend Y as

his only heir. He had no legitimate descendants or
ascendants or wife. He had a recognized spurious
child Z. X died in 1949. Can Z inherit?

Z cannot inherit because the father died in 1949

(under the old Civil Code). The intrinsic validity of a will is
governed by the law in force at the time of the testator’s
death. 56 Although Article 2253 provides indeed that
rights which are declared for the first time shall have
retroactive effect even though the event which gave rise

53
Article 1039. Capacity to succeed is governed by the law of
the nation of the decedent.
54
Article 16 NCC
55
Vda de Enriquez vs. Miguel Abadia, L-7188, August 9, 1954
56
Article 2263 NCC
 24

to them may have occurred under the former legislation,

but this is so only when the new rights do not prejudice
any vested or acquired right of the same origin. Thus,
said article provides that “if a right should be declared for
the first time in this Code, it shall be effective at once,
even though the act or event which give rise thereto may
have been done or may have occurred under the prior
legislation, provided said new right does not prejudice or
impair any vested or acquired right of the same origin.”
the right of ownership of Y became vested in 1949 upon
the death of the testator and this is so because of the
imperative provision of the law which commands that the
rights to succession are transmitted from the moment of
death. The new right recognized by the new Civil Code in
favor of the illegitimate child of the deceased cannot,
therefore, be asserted to the impairment of the vested
right of Y.

b. An American executed a will in the Philippines,

observing Philippine laws, and distributing his
estate in accordance with Philippine laws. Is the
will valid?

The provision is void, because the estate must

be distributed in accordance with the laws of his country,
and not the law of the Philippines. Article 16 provides:
“Real property as well as personal property is subject to
the law of the country where it is situated. However,
intestate and testamentary succession both with respect
to the order of succession n the amount of successional
rights and the intrinsic validity of testamentary provisions
shall be regulated by the national law of the person
whose succession is under consideration, whatever may
be the nature of the property, and regardless of the
country wherein said property may be found.”

c. X, an American had a legitimate child Y. X made a

will in the Phil observing Phil solemnities. In his
will, he gave all his properties found here in the
Phil to his friend Z without giving anything to Y. In
the USA, there are no compulsory heirs. Can Y
insist that he be given a share?

Since under America law as assumed in the

problem a child is not a compulsory heir, it follows that Y
cannot insist that he be given a share. It was valid for the
testator to disregard him.
 25

May a will void at the time of execution

validated by subsequent law changing the formalities
required?

A will which is void for failure to observe the

formalities required at the time of its execution cannot be
validated by the passage of a new law changing the
formalities which now suits its form.

Subsection 2. – TESTAMENTARY CAPACITY AND INTENT

Distinguish between testamentary capacity and

testamentary power.

Testamentary capacity – as used in the new Civil

Code, is the right to make a will provided certain conditions
are complied with.

Testamentary power – is the statutory right to

dispose of property by acts effective mortis causa)

Who have testamentary capacity?

1. All natural persons, unless

disqualified by law. Juridical
persons are not granted
testamentary capacity;
2. Persons 18 years or over; and
3. Persons of sound mind at the time
the will is made.

Who are disqualified persons?

1. Those under 18; 57 and

2. Those of unsound mind; 58

A, a minor, executed a last will and testament.

He died at the age of 21, after which his will was
submitted to probate. If you were the judge, would you
approve it?

No, because the will is void. Under the law, a person

who is a minor cannot execute a will. His supervening
capacity cannot validate a void will.
57
Article 797 NCC
58
Article 798 NCC
 26

Note: In the computation of age of the testator,

Article 13 of the Civil Code shall govern. A year consists of
365 days. The last day of the required year (18 th) should have
already passed to qualify a person to make a will. Our law
does not recognize fractions of a day.

Does the extra day in a leap year affect the

computation of the age of the testator? Yes, because Article
13 speaks of a year as containing 365 days. This is a “legal
year” which is not a calendar year. The legal year and
calendar year do not coincide because Article 13 does not
recognize a leap year. The legal year must always be 365
days.

What is unsoundness of mind (insanity)?

This is defined by the Code only by indirection

because only soundness of mind is defined. (Article 799)

What is soundness of mind (sanity)?

Negatively:

 Not necessary that the testator be in full possession of

reasoning faculties;
 Not necessary that the testator’s mind be wholly
unbroken, unimpaired, unshattered by disease, injury, or
other cause.
Positively:

Ability to know three things:

1. Nature of the estate to be disposed of;

2. Proper objects of one’s bounty; and
3. Character of the testamentary act. (It is not
required, in order for this requisite to be
present, that the testator knows the legal nature
of the will with the erudition of a civilest. All that
he needs to know is that the document he is
executing is one that disposes of his property
upon death.

What is the presumption as to soundness of

mind?
 27

General rule – rebuttable presumption of sanity

(Article 800)

Exceptions – two instances of rebuttable

presumption of insanity:

1. When the testator, one month or less, before the

execution of the will was publicly known to be
insane (Article 800); and
2. When the testator executed the will after being
placed under guardianship or ordered
committed, in either case, for insanity (under
Rules 93 and 101, respectively, of the Rules of
Court), and before said order has been lifted.

What is the time for determining mental

capacity?

It is the time of execution of the will; no other

temporal criterion is to be applied (Article 801).

At the time A executed his will, he was sane.

One day thereafter, he became insane. What is the
effect of A’s subsequent insanity?

The will is not avoided. The rule is that supervening

incapacity does not invalidate an effective will. (Art. 801)

Can a death convict make a will?

A death convict, before his execution is expressly

allowed by law to make a will. A convict under civil
interdiction is allowed to make a will because the civil
interdiction prohibits a disposition of property inter vivos , not
mortis causa.

SUBSECTION 3. – FORMS OF WILLS

What are the kinds of wills allowed in the

Philippines?

a. Ordinary or notarial will – that which

requires, among other things, an attestation
clause, and acknowledgment before a
notary public.
 28

b. Holograph or holographic will – the most

important feature of which is its being
written entirely, from the date to the
signature, in the handwriting of the testator.
Here, neither an attestation clause nor an
acknowledgment before a notary public is
needed.

What are the common requirements of a will

laid down by Article 804?

1. In writing; and
2. In a language or dialect known to the testator.

Notes:

 Oral wills are not recognized in the Code.

 In Suroza vs. Honrado, 110 SCRA 388, the will

was declared void because in the opening
paragraph of the will, it was stated that English
was a language “understood and known” to the
testratrix (the testatrix was illiterate). But in its
concluding paragraph, it was stated that the will
was read to the testratrix “and was translated
into Filipino language. That could only mean that
the will was written in a language not known to
the illiterate testratrix and, therefore, it is void
because of the mandatory provision of Article
804 of the Civil Code. Translation of the
language used will not cure the defect

 Rule in attestation clause is different: The

language or dialect need not be known to the
testator. The attestation clause of the ordinary
or notarial will need not be known to the
testator. This is not a part of the testatmentary
disposition.

 Even the witness to the will need not know the

language or dialect used in the attestation
clause. The law, however requires that it be
interpreted to them, if they do not know it.
(Article 805, par. 4)

 Presumption of compliance: It may sometimes

be presumed that the testator knew the
 29

language in which the will was written. On the

authority of Abangan vs. Abangan, 40 Phil. 476,
and Gonzales vs. Laurel, 46 Phil. 750, it seems
that, in order for the presumptions to apply, the
following must appear:

1. The will must be in a language or dialect

generally spoken in the place of execution;
and
2. The testator must be a native or resident of
said locality.

What are the requisites of a notarial will?

Aside from the fundamental requisites that the

testator be at least 18 years old, and possessed of a sound
mind:

a. The will must be in writing. There can be no

oral will
b. It must be executed in a language or dialect
known to the testator.
c. 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 or direction
d. It must be attested and subscribed by three
or more credible witnesses in the presence
of the testator and of one another
e. It must be signed on each and every page
thereof by the testator and the witnesses,
except the last page, on the left margin
f. All pages must be numbered correlatively in
letters placed on the upper part of each
page
g. The attestation shall state the number of
pages used upon which the will is written,
and the fact that the testator signed the will
and every page therefore, or caused some
other person to write his name, under his
express direction, in the presence of the
instrumental witnesses, and that the latter
witnessed and signed the will and all the
pages thereof in the presence of the
testator and of one another
h. It must be acknowledged before a notary
public by the testator and the witnesses.
 30

Notes:

 Some discrepancies:

1) Par. 1, Article 805 – No

statement that the testator must
sign in the presence of the
witnesses.

2) Par. 2, Article 805 0 No

statement that the testator and
the witnesses must sign every
page in one another’s presence.

These two things, however, are required to be stated

in the attestation clause. The only conclusion, therefore, is it
cannot be presumed that the attestation clause was meant to
tell a lie.

3) On the other hand, the

attestation clause is not required
to state that the agent signed in
the testator’s presence – a
circumstance mandated by the
first and second paragraph of the
article.

 Indication of date – There is not requirement that an

attested will should be dated, unlike a holographic
will.

 “Subscribed by the testator” – The article uses two

words, referring to this requirement, apparently
interchangeably: subscribe and sign. Strictly
speaking, they are not exactly synonymous. To
subscribe necessarily denotes writing, more
precisely, to write under; to sign simply means to
place a distinguishing mark. Thus, signing has a
broader meaning than subscribing; not every
signature is necessarily a subscription; not every
distinguishing mark is a writing.

Is placing of the testator’s thumb mark or

thumbprint a signature within the contemplation of this
article? Does it comply with the statutory requirement?
 31

In Matias vs. Salud, L-10751, 23 June 1958, it was

held that the requisite that the will should be signed by the
testator is satisfied by a thumbprint or other mark affixed by
him (De Gala vs. Ona, 53 Phil. 104; Dolar vs. Diancin, 55
Phil. 479; Neyra vs, Neyra, 42 O.G. 2817; Lopez vs. Liboro,
46 O.G. [Supp. To No1]); and that where such mark is affixed
by the decedent, it is unnecessary to state in the attestation
clause that another person wrote the testator’s name at his
request (Payad vs. Tolentino, 62 Phil. 849).

Is a cross as a signature sufficient?

A sign of the cross, placed by the testator does not

comply with the statutory requirement of signature, unless it
is the testator’s usual manner of signature or one of his usual
styles of signing. (Garcia vs. Lacuesta, 90 Phil. 489)

What are the requisites for signing by the

agent of the testator?

Two requisites for signing by the agent:

1. The agent must sign in the

testator’s presence; and
2. It must be done by his express
direction.

What must the agent write?

It is unimportant whether the person who writes the

name of the testator signs his own or not. The important
thing is that it clearly appears that the name of the testator
was signed at his express direction in the presence of three
witnesses and that they attested and subscribed it in his
presence. That is all the statute requires. There is no
necessity, so far as the validity of the will is concerned, for
the person who writes the name of the principal in the
document to sign his own name also. (Barut vs. Cabacungan,
21 Phil. 461)

May the agent be one of the attesting

witnesses?

If there are more than three witnesses – Yes.

If there are only three – Debatable.

Is it necessary that the will is signed at the

end?
 32

If the will contains only dispositive provisions, there

will be no ambiguity as to where the end of the will is.

If, however, the will contains non-dispositive

paragraphs after the testamentary dispositions, one can refer
to two kinds of end:

the physical end – where the writing stops; or

the logical end – where the last testamentary
disposition ends.

Surely, signing at the physical end is always

permissible, but equally permissible is signing at the logical
end. The non-dispositive portions are not essential parts of
the will.

Note: Signing before the end invalidates not only the

dispositions that come after, but the entire will, because then
one of the statutory requirements would not have been
complied with.

Is it required that the witnesses actually saw

the testator affixed his signature in the will?

No, because the phrase “in the presence” does not

necessarily require actual seeing, but only the possibility of
seeing without physical obstruction. In Jaboneta vs. Gustilo, 5
Phil. 541, it was said that if a witness merely turned his back,
the signing is still considered in his presence. (Could have
seen it had he chosen to)

What is the true test to determine the presence

of the testator and the witnesses in the execution of a
will?

In Nera vs. Rimando, 18 Phil. 451, it was held that

the true test of presence of the testator and the witnesses in
the execution of a will is not whether they actually saw each
other sign, but whether they might have seen each other
sign, had they chosen to do so, considering their mental and
physical condition at the moment of inscription of each
signature.

But it is especially to be noted that the position of

the parties with relation to each other at the moment of the
subscription of each signature, must be such that they may
see each other sign of they choose to do so. It does not
 33

depend upon proof of the fact that their eyes were actually
cast upon the paper at the moment of its subscription by each
of them, but that at the moment of its subscription and their
position with relation to each other were such that by merely
casting their eyes in the proper direction they could have
seen each other sign. Thus, actual seeing is not required, but
the ability to see each other by merely casting their eyes in
the proper direction.

A executed a will. At the time he affixed his

signature in the will, X, one of the three instrumental
witnesses, was outside of the room, talking to a friend.
When the will was submitted to probate, it was
opposed on the ground that the will is void, as one of
the witnesses was not present when the testator
affixed his signature in the will. Will you approve the
will, if you were the judge?

No, because the will was not signed in the presence

of one of the instrumental witnesses. The law requires that at
the time the testator or all the instrumental witnesses affixed
their signatures, the same must be done in the presence of
one another. Since X was out of the room, he could not be
considered as present and could not have seen the signing of
the document, as there was physical obstruction. (Nera vs.
Rimandi, 18 Phil. 450)

What are the two distinct things required of the

witnesses?

1. Attesting – which is the act of witnessing; and

2. Subscribing – which is the act of signing their
names in the proper places of the will.

Both must be done.

What is attestation clause?

The attestation clause is a record or memorandum of
facts wherein the instrumental witnesses certify that the will
has been executed before them and that it has been executed
in accordance with the formalities prescribed by law. (Toray
vs. Abaja, 47 Off. Gaz. 327)

 Attestation clause is mandatory. – A will

without an attestation clause is void and
 34

cannot be probated. (In re Estate of

Neumark, 46 Phil. 841)

What is the purpose of the attestation clause?

Its purpose is to preserve in permanent form a

record of the facts attending the execution of the will so that
in case of failure if memory of the witnesses or in case they
are no longer available, such facts may still be proved.
(Leynes vs. Leynes, 68 Phil. 745)

Is there any difference between attestation and

subscription?

Attestation and subscription differ in meaning.

Attestation is the act of the senses, while subscription is the
act of the hand. The former is mental the latter is mechanical,
and to attest a will is to know that it was published as such,
and to certify the facts required to constitute an actual and
legal publication; but to subscribe a paper published as a will
is only to write on the same paper the names of the
witnesses, for sole purpose of identification. (Caneda vs.
Court of Appeals, 222 SCRA 781)

In Toboada vs. Rosal, it was held that attestation

consists in witnessing the testator’s execution of the will in
order to see and take note mentally that those things are
done which the statute requires for the execution of a will and
that the signature of the testator exists as a fact. On the
other hand, subscription is the signing of the witnesses’
names upon the same paper for the purpose of identification
of such paper as the will which was executed by the testator.
As it involves a mental act, there would be no means,
therefore of ascertaining by a physical examination of the will
whether the witnesses had indeed signed in the presence of
the testator and of each other unless this is substantially
expressed in the attestation.

Should the attestation clause be written in a

language or dialect known to the testator?

The attestation clause need not be written in a

language or dialect known to the testator since it does not
form part of the testamentary disposition. (Caneda vs. Court
of Appeals, 222 SCRA 781)
 35

Should the language used in the attestation

clause be known to the attesting witnesses?

The language used in the attestation clause need not

be known to the attesting witnesses. The last paragraph of
Article 805 merely requires that, in such a case, the
attestation must be interpreted to the witnesses. (Caneda vs.
Court of Appeals, 222 SCRA 781)

What are the essential facts which must be

stated in the attestation clause?

1. The number of pages used upon which the

will is written;
2. That the testator signed, or expressly
caused another to sign, the will and every
page thereof in the presence of the
attesting witnesses; and
3. That the attesting witnesses witnessed the
signing by the testator of the will and all its
pages, and that said witnesses also signed
the will and every page thereof in the
presence of the testator and of one another.

What is the effect of lack of the above

statements in the attestation clause?

Under the third paragraph of Article 805, such a

clause, the complete lack of which would result in the
invalidity of the will. (Caneda vs. Court of Appeals, 222 SCRA
781)

In Uy Coque vs. Sioca, it was held that when the

attestation clause failed to state the number of sheets or
pages upon which the will was written, the will cannot be
probated (In re Will of Andrada, 42 Phil. 180). Such
statement is mandatory. Non-compliance therewith
invalidates the will. Such fact cannot be proven by evidence
aliunde.

 When the testator had expressly directed

another to sign the former’s name in the
will, this fact must be stated in the
attestation clause. Otherwise, the will is
fatally defective. (Garcia vs. Lacuesta, 90
Phil. 489)
 36

The signatures of the witnesses are on top or at

the right or bottom margin. Is the will valid? Why?

Yes, because there was substantial compliance with

the law. The purpose of the law is merely to identify the
pages used and to prevent fraud. (Avena vs. Garcia, 42 Phil.
145)

There is a mandatory and a directory part to this

requirement:

The mandatory part – the signing on every page in

the witnesses’ presence.

The directory part – the place of the signature, i.e.

the left margin; the signature can be affixed anywhere.

A executed a will consisting of ten pages. At

the probate, B, one of his children interposed an
opposition on the ground that A and one of the
witnesses has not signed one of the pages of the same.
Rule on the opposition and cite your reasons for your
ruling.

As a rule, the testator and the instrumental

witnesses must sign the will on each and every page thereof.
The defect is fatal if there is failure to have the original
signatures. (Estate of Tampoy vs. Alberastine, L-14322, Feb.
25, 1960). However, if there was a mere inadvertence of one
of the three witnesses or even the testator, where he forgot
to sign on one of the pages, the will must be admitted to
probate because of the application of the liberality rule. The
will must be respected, rather than having the testator die
intestate. (Icasiano vs. Icasiano, L-18979, June 30, 1964)

May the notary public himself be a witness in a

last will and testament? Why?

No, because the notary public cannot be considered

as third instrumental witness since he could not have
acknowledge before himself his having signed the will. He
cannot split his personality into two so that one will appear
before the other to acknowledge his participation in the
making of the will. To permit such a situation to obtain would
be sanctioning a sheer absurdity. (Cruz vs. Villasor, 54 SCRA
31)
 37

What is the purpose of the law in requiring that

the pages of the will be numbered?

The purpose is to prevent fraud, and to afford means

of preventing substitution of the will. (Lopez vs. Leboro, 81
Phil. 429)

The attestation clause of X’s will does not

contain his signature. At its probate, it is being
opposed on that basis. Is the opposition correct? Why?

No, because the attestation clause is not an act of

the testator. It is an act of the instrumental witnesses. The
testator’s failure to sign it is not fatal; it is immaterial.
(Abangan vs. Abangan, 40 Phil. 467; Estate of Paula Tray, L-
2415, July 31, 1950; Fernandez vs. Vergel de Dios, 46 Phil.
922)

Suppose the attestation does not state the

number of pages, is the will valid? Why?

Yes. In Taboada vs. Hon. Rosal, 48 SCRA 195, the

Supreme said that even the attestation clause does not state
the number of pages, if the same can be determined from the
will, it is valid. This is because of the liberality rule or that
there was substantial compliance with the law. (Singson vs.
Florentino, Oct. 25, 1952; Perez vs. Rosal, 118 SCRA 195)

What is the effect if the instrumental witnesses

did not sign the attestation clause? Why?

The will is void, because the total absence of the

signature of the witnesses shows their non-participation. (In
re: Testate of Vicente Cagro, April 29, 1953[92 Phil. 1032])
The attestation clause must be signed by the witnesses at the
bottom thereof, and not on the left hand margin, otherwise, it
would be easy to add such clause to a will on a subsequent
occasion and in the absence of the testator and any or all of
the witnesses.

If the entire document consists of only two sheets,

the first containing the will and the second, the attestation
clause, there need not be any marginal signatures at all
(Abangan vs. Abangan, 40 Phil. 476)

Suppose the attestation clause does not state

that the will was signed by the testator in the presence
of the witnesses, is the will valid? Why?
 38

As a rule, it is void, except if such statement is made

in some other parts of the will. (Gil vs. Murciano, L-3362,
March 1, 1951; Singson vs. Florentino, Oct. 25, 1952; Perez
vs. Rosal, 118 SCRA 195)

If the acknowledgment of the will was not

signed by the notary public in the presence of the
testator and the witnesses, is the will valid?

The notary public need not be present at the time of

the execution of the will. In Javellana vs. Ledesma, 97 Phil.
258, it was held that whether or not the notary signed the
certification of acknowledgment in the presence of the
testator and the witnesses does not affect the validity of the
will. A comparison of Articles 805 and 806 of the new Civil
Code reveals that while the testator and witnesses must sign
in the presence of each other. All that is thereafter required is
that “every will must be acknowledged before a notary public
by the testator and the witnesses: (Article 806); i.e. that the
latter should avow to the certifying officer the authenticity of
their signatures and the voluntariness of their actions in
executing the testamentary dispositions. The subsequent
signing and sealing by the notary of his certification that the
testament was duly acknowledged by the participants therein
is no part of the acknowledgment itself nor of the
testamentary act. Hence, their separate execution out of the
presence of the testator and his witnesses can not be said to
violate the rule that testaments should be completed without
interruption.

Thus, the certification of acknowledgment need not

be signed by the notary in the presence of the testator and
the witnesses. Article 806 does not require that the testator
and the witnesses must acknowledge on the same day that it
was executed. Neither does the article require that the
testator and the witnesses must acknowledge in one
another’s presence. However, if the acknowledgement is done
by the testator and the witnesses separately, all of them must
retain their respective capacities until the last one has
acknowledged.

 However, the execution of the will must be

done in one occasion. (Andalis vs.
Pulgueras, 59 Phil. 643)
 39

 A notarial will although notarized is not

considered a public document because the
notary is not required to retain a copy
thereof or to file a copy with the office of
the Clerk of Court where copies of
documents notarized by notaries are
submitted every month. The rationale
behind is to keep the contents of the will
secret so that the testator may not be
unduly pressured or influenced to change
his will by unscrupulous relatives or
interested persons. The notary public is not
even allowed to read the will unless
permitted by the testator. The only time the
notary public is required to read the will is
when the will is executed by a blind person.
(Article 808)

Can the notary public be counted as one of the

attesting witnesses?

In Cruz vs. Villasor, 54 SCRA 31, the notary public

before whom the will was acknowledged cannot be considered
as the third instrumental witness since he cannot
acknowledge before himself his having signed the will.
Consequently, if the third witness was the notary public
himself, he would have to avow, assent, or admit his having
signed the will in front of himself. This cannot be done
because he cannot split his personality into two so that one
will appear before the other to acknowledge his participation
in the making of the will. To permit such a situation to obtain
would be sanctioning a sheer absurdity.

 Note that the affixing of documentary stamp is not

required for validity.

What are the two special requirements for handicapped

testator?

A. For deaf / deaf – mute testator:

1. If able to read – he must read the will

personally;
2. If unable to read – he must designate two
persons to read the will and communicated to
him in some practicable manner its contents.
 40

B. For blind testator:

The will must be read to him twice, once by

one of the subscribing witnesses, and another time
by the notary.

What is the effect of failure to comply with the

requisites of reading the will under Article 808?

If the will was not read twice by the persons

mentioned in the will, the will is void.

Provision of Article 808 is mandatory. This provision

is also applicable when the testator is incapable of reading the
will himself (as when he is illiterate) (Garcia vs. Vasquez, 32
SCRA 489); or due to poor, defective or blurred vision
(Alvarado vs. Gaviola, Jr. 226 SCRA 348).

What are the distinctions between Articles 807

and 808?

1. In Article 807 (deaf or deaf-mute testator) –

if the testator is literate, he must personally
read the will. In Article 808 (blind testator)
– whether literate or not, the will must be
read ti him because he cannot see.
2. In Article 807 – if illiterate, the will must be
read by two persons designated by the
testator. In Article 808 – whether literate or
not, the will must be read twice. The
reading shall be done by one of the
subscribing witnesses and by the notary
public before whom the will is
acknowledged.
3. In Article 807 – reading by the two
designated persons is not enough. They
must communicate the contents to the
testator. In Article 808 – reading is enough
because the testator can hear and listen.

What is the effect of substantial compliance of

the formal requisites?

In the absence of bad faith, forgery, or fraud, or

undue influence and improper pressure and influence, defects
and imperfections in the form of attestation or in the
language used therein shall not render the will invalid if it is
proved that the will was in fact executed and attested in
 41

substantial compliance with all the requirements of Article

805. (Article 809)

 Note that the article speaks only of defects and

imperfections in the form of the attestation or in the
language used therein. It does not cover the
substance or the basic elements of an attestation
clause which are mandatory. If the basic
requirements are omitted, like the absence of an
attestation clause, absence of the signatures of the
required number of witnesses on the attestation
clause, the absence of a statement that the testator
signed the will in the presence of the instrumental
witnesses, will invalidate the will. No amount of
liberal interpretation would save the will.

What is the test in determining substantial

compliance?

In determining whether the statements made in the

attestation clause comply substantially with what the law
requires, the correct rule is that omissions which can be
supplied by an examination of the will itself, without resorting
to extrinsic evidence, will not be fatal; but omissions which
cannot be supplied except by presenting evidence aliunde will
invalidate the attestation clause.

 There must be a strict compliance with the

substantial requirements of an attestation clause of
the will to insure its authenticity but formal
imperfections which do not affect the will, must be
disregarded so as not to defeat the testator’s wishes.

How can substantive defect be cured? (Article

809)

Defects of substance can be cured only by evidence

within the will itself – not by evidence aliunde (extrinsic
evidence).

What is a holographic will?

A holographic will is one entirely written, dated and

signed by the hand of the testator.

State the formalities of a holographic will.

 42

A holographic will must be:

a. In a language known to the testator;

b. Entirely written in the handwriting of the testator;
c. Completely dated;
d. Signed by the testator;
e. With animus testandi;
f. Executed at the time holographic wills are allowed.

The holographic will of A has no date except

the one found on the second page of the same. Is the
will valid? Why?

Yes, since the law does not specify any particular

location where the date should be placed. (Labrador vs. CA,
184 SCRA 170)

X executed a holographic will dated Christmas

Day 1990”. Is the will valid? Why?

Yes, because it was completely dated, written and

signed by the testator. The date Christmas day 1990 is a
substantial compliance with the requirements of the law.
(Roxas vs. De Jesus, Jr. G.R. No. 38338, Jan. 28, 1985[ 134
SCRA 245]) The law has a tender regard for the will of the
testator expressed in his last will and testament because the
testator’s disposition is better than that which the law can
make.

Where the date written is “Feb/61” without the

specific date of the month having been indicated, the probate
of the holographic will was allowed following the rule of
substantial compliance.

Where should the testator sign the holographic

will?

The testator should sign at the end of the will. This is

inferable from the wordings of Article 812. Any additional
provision after the signature of the testator must further be
signed and dated. Clearly then, the signature must be placed
at end of the dispositions.

What is the concept of probate of holographic

wills?
 43

Probate is the allowance of a will after proving before

a competent court:

1. Its due execution by the testator; and

2. Its compliance with the solemnities
prescribed by law.

Unless a will is allowed probate, it shall not pass any

property. And the effect of the probate of a will I that
“it is conclusive to its due execution.” Probate is
limited however to the formal or extrinsic validity of
the will.

 The probate of notarial wills is governed by Article

838.

What are the issues to be resolved in the

probate of a holographic will?

In a petition to admit a holographic will to probate,

the only issues to be resolved are the following:

1. Whether the instrument submitted

is, indeed the decedent’s last will
and testament;
2. Whether said will was executed in
accordance with the formalities
prescribed by law;
3. whether the decedent had the
necessary testamentary capacity at
the time the will was executed; and
4. Whether the execution of the will
and its signing were the voluntary
acts of the decedent. (Ajero vs. CA)

In the probate of a holographic will, how many

witnesses must be presented?

It shall be necessary that at least one witness who

knows the handwriting of the testator explicitly declare that
the will and the signature are in the handwriting of the
testator. If the will is contested, at least three of such
witnesses shall be prepared.

In the absence of a competent witness, and if the

court deem it necessary, expert testimony may be resorted
to.
 44

Can a holographic will be probated upon the

testimony of witnesses? Is it necessary to produce the
document itself? (Can a lost holographic will be
probated?)

In Gan vs. Yap, 104 Phil. 509, if the holographic will

has been lost or destroyed and no other copy is available, the
will cannot be probated because the best and only evidence is
the handwriting of the testator in said will.

Can it be proven by a photostatic or Xerox

copy?

A photostatic or Xerox copy of the holographic will

may be allowed because a comparison can be made with the
standard writings of the testator. (Rodelas vs. Aranza, 119
SCRA 16). In Gan vs. Yap, the Court ruled that “the execution
and the contents of a lost or destroyed holographic will may
not be proved by the bare testimony of witnesses who have
seen and/or read such will. The will itself must be presented;
otherwise, it shall produce no effect. The law regards the
document itself as material proof of authenticity. But in
Footnote 8 of said decision, it says that “Perhaps it may be
proved by a photographic or photastatic copy. Even a
mimeographed or carbon copy; or by other similar means, if
any, whereby the authenticity of the handwriting of the
deceased may be exhibited and tested before the probate
court.”

What are the formal requirements for

additional dispositions in a holographic will?

4. Signature; and
5. Date

What are the rules when there are several

additional dispositions?

1. Signature and date; or

2. Each additional disposition signed and undated,
but the last disposition signed and date.
3. If, in the case of several additional dispositions
the additional ones before the last are dated but
not signed, only the last will be valid, provided
the last is signed and dated.
 45

What are the rules for curing defects? (Article

813)

 If the last disposition is signed

and dated –

a. Preceding dispositions which are signed but not

dated are validated.
b. Preceding dispositions, which are not signed but
dated, are void.
c. Preceding dispositions which are not signed and not
dated are void, unless written on the same date and
occasion as the latter disposition

 The discussion above

presupposes that the latter
disposition was dated and signed
by the testator himself.

Therefore;

a. If done by another, without the testator’s

consent, same will not affect the previous
dispositions, which remain void if in
themselves void; and remain valid if in
themselves valid.
b. If done another with the testator’s consent,
same effects in (d), because the latter
disposition is not really holographic (not
done by the testator himself.)

Suppose there is an alteration without the full

signature, is the whole will void? (Article 814)

No, only the alteration is void. However, if what was

altered was the date or the signature, the alteration without
the full signature makes the whole will void.

Note:

 Full signature does not necessarily mean the

testator’s full name; it rather means his usual and
customary signature.

A executed a holographic will in 1962. He

authenticated or signed the will with his initials. In
addition, there is an inserted testamentary disposition
 46

found in page two of the will also authenticated with

his initials. Are such authentications valid?
We must distinguish. The act of A in signing the will
with his initials is a valid authentication. This is clear from
Article 810. The law merely requires that the will must be
entirely written, dated and signed by the hand of the testator
himself. However, the act of A in authenticating the inserted
testamentary disposition with his initials is not a valid
authentication. This is clear from Article 814, which declares
that in case of any insertion, cancellation, erasure or
alteration in a holographic will, the testator must authenticate
the same by his full signature.

Give the rules governing the formal validity of wills.

Articles 815, 816 and 817 lay down the rules of formal
validity of wills:

1. A Filipino abroad (Article 815)

2. An alien abroad (Article 816)
3. An alien in the Philippines (Article 817)

 Not covered is a situation of a Filipino executing a

will in the Philippines

Every testator, whether Filipino or alien, wherever he

may be, has five choices as to what law to follow for the form
of his will:

1. The law of his citizenship (Articles 816 and 817 for

aliens; applying to Filipinos by analogy, Article 15)
2. The law of the place of execution (Article 17)
3. The law of his domicile (Article 816 for aliens abroad;
applying to aliens in the Philippines and to Filipinos
by analogy)
4. The law of his residence (Same basis as [3])
5. The Philippine law (Articles 816 and 817 for aliens,
Article 15, applying to Filipinos by analogy)

Thus:

1. If the testator is a Filipino and the will is

executed in the Philippines, then its formal
validity is governed by the Civil code of the
Philippines (Article 17).
 47

2. If the testator is a Filipino and the will is

executed in a foreign country, then its formal
validity is governed either (a) by the law of the
place where the will is made, or (b) by the Civil
Code of the Philippines. It must be observed
that Article 815 of the New Civil code does not
state that a will made by a Filipino in a foreign
country may be executed in accordance with the
formalities prescribed by the Civil Code of the
Philippines. In spite of the omission, however, it
is submitted that such a will may still be
admitted to probate in the Philippines. Not to
grant this concession to Filipino citizens would
be illogical and unfair considering the fact that it
is even granted to foreigners. (Artcile 816)
3. If the testator is a foreigner and the will is
executed in the Philippines, then its formal
validity is governed either (a) by the Civil Code
of the Philippines (Article 17), or (b) by the law
of his own country (Article 817).
4. If the testator is a foreigner and the will is
executed in a foreign country, then its formal
validity is governed either (a) by the law of the
place where the will is made (Article 17), or by
the law of his own country (Article 816), or by
the law of the country where he resides, or (d)
by the Civil Code of the Philippines.

What is a joint will? Distinguish it from mutual

and reciprocal wills.
A joint will is a single testamentary instrument which
contains the wills of two or more persons jointly executed by
them, either for their reciprocal benefit or for the benefit of a
third person.
Mutual wills are wills executed pursuant to an
agreement between two persons to dispose of their property
in a particular manner, each in consideration of the other.
Reciprocal wills are wills in which the testators name
each other as beneficiaries under similar testamentary plans.
It is clear from these definitions that a joint will may
either be mutual or reciprocal, although it is not necessary so,
just as mutual or reciprocal wills may be joint of they are
contained in a single testamentary instrument.
 48

Are joint wills allowed?

1. If executed by Filipinos in the Philippines

(Article 818) – void.
2. If executed by Filipinos abroad (Article 819)
– void even if authorized by the law of the
place of execution (an exception to the
permissive provision of Articles 17 and 815)
3. If executed by aliens abroad – governed by
Article 816.
4. If executed by aliens in the Philippines –
controverted: One view – void; because of
public policy; Another view – Article 817
governs.
5. If executed by a Filipino, always void; as to
the alien, [3] or [4] would apply.

SUBSECTION 4. WITNESSES TO WILLS

What are the six qualifications for witnesses to

notarial wills?

At the time of attesting, they must;

a. be of sound mind
b. be at least 18 years of age
c. be able to read and write
d. not be blind, deaf, or dumb
e. be domiciled in the Philippines
f. not have been convicted (by final judgment)
of falsification of a document, perjury, or
false testimony

How is competence distinguished from

credibility (of a witness)?

In Gonzales vs. CA, 90 SCRA, 183, it was held that in

the strict sense, the competency of a person to be an
instrumental witness to a will is determined by the statute,
that is Articles 820 and 821, whereas his credibility depends
on the appreciation of his testimony and arises from the belief
and conclusion of the Court that said witness is telling the
 49

truth. Competency as a witness is one thing, and it is another

to be a credible witness, so credible that the Court must
accept what he says. Trial courts may allow a person to testify
as a witness upon a given matter because he is competent,
but may thereafter decide whether to believe or not to believe
his testimony.

Thus, the rule is that the instrumental witness in

order to be competent must be shown to have the
qualifications under Articles 820 and none of the
disqualifications under Article 821 and for their respective
testimony to be credible, that is worthy of belief and entitled
credence, it is not mandatory that evidence be first
established on record that the witnesses have a good
standing in the community or that they are honest and
upright or reputed to be trustworthy and reliable, for a person
is presumed to be such unless the contrary is established
otherwise. In other words, the instrumental witnesses must
be competent and their testimonies must be credible before
the court allows the probate of the will they have attested.

 The term “credible witness or witnesses” means

competent witnesses and not those who testify to
facts from or upon hearsay evidence.

 Capacity to be a witness in court (Rule 130, Section

20, Revised Rules of Evidence) 59 is different from
capacity to be a witness in wills. The latter has more
restrictions.

Is it a requirement that the witnesses can

speak and write the very language in which the will
was written? Is it essential for the witnesses to know
the language in which the attestation has been
written?

No, since after all, the witnesses do not even have to

know the contents of the will. It is not even essential for the
witnesses to know the language in which the attestation has
been written. It is sufficient that the same be interpreted to
him.

59
Section 20. Witnesses; their qualifications. – Except as
provided in the next succeeding section, all persons who can
perceive, and perceiving, can make known their perception to
others, may be witnesses.
 50

What is the effect of the subsequent incapacity

of a witness?

It shall not prevent the allowance of the will. But of

course the said witness cannot testify. This does not mean
however that the validity of the will is impaired by such fact.

X made a notarial will with A, B and C as

witnesses. Aside form the other testamentary
provisions in the will, A was given a piece of land as a
devise. Is the will valid?

The will is valid, since there were three credible

witnesses. However, while A is capacitated as a witness, he is
incapacitated to receive the devise, hence the provision
regarding said devise should be disregarded, the rest of the
will being valid.

To whom does the disqualification extend to?

1. the witness;
2. the spouse of the witness;
3. the parent of the witness;
4. the child of the witness;
5. anyone claiming the right of said witness, spouse,
parent or child (ex. The creditor of the witness if the
said creditor has not been paid.)

What is the purpose of the law in making this

disqualification?

To prevent undue influence

What is the effect of this disqualification if the

witness is a compulsory heir?
The said heir is still entitled to the legitime.

Can creditors of the estate of the testator act

as instrumental witnesses to a will?

Yes. But he is disqualified to inherit. However, he is

qualified to receive his credit, which after all cannot be
considered a gift.

Can a witness who is disqualified to inherit

under Article 824 still be a witness in court?
 51

Yes. He is disqualified to inherit but not to testify. He

can attest to the due execution of the will at the probate
hearing. He will be admitted as a witness as if the devise or
legacy had not been made or given.

SUBSECTION 5. CODICILS
AND INCORPORATION BY REFERENCE

How is a codicil distinguished from a

subsequent will?

A codicil, by definition, explains, adds to, or alters a

disposition in a prior will; while a subsequent will makes
independent and distinct dispositions.

The distinction, however, is purely academic because

Article 826 requires the codicil to be in the form of a will
anyway.

What requirements must be complied with in

order that a codicil may be effective?

It is required that the codicil be executed as in the

case of a will (Article 826). This means that the testator must
also possess testamentary capacity and must comply with the
formalities prescribed by law in the execution of a will.

What is the rule in case of conflict between a

will and a codicil?

The codicil should prevail, it being the later

expression of the testator’s wishes.

Is there an exception to the rule that if an

instrument is not executed with all the formalities of a
will, it cannot be admitted to probate?

The general rule is that an instrument which is not

executed in accordance with the formalities of a will shall not
be probated. The exception is given in Article 827 which
permits incorporation by reference provided the requisites
enumerated are present.

What are the requisites for the validity of

documents incorporated in a will by reference?
 52

1. The document or paper must referred to in

the will must be in existence at the time of
the execution of the will;

2. The will must clearly describe and identify

the same, stating among other things the
number of pages thereof;

3. It must be identified by clear and

satisfactory proof as the document or
papers referred to therein;

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.

 Comments on the foregoing requisites:

1. In No. (1), if the document or paper was prepared

after the execution of the will, the validity of the will
is not affected. The reference to the writing must
appear on the face of the will. That the document
was in existence at the time the will was made can
be proved by extrinsic evidence.

2. In No. (2), the pages must be stated even if the

writing consists of voluminous books of accounts or
inventories mentioned in No. (4). The description
and identification of the writing, and the statement
of the number of pages thereof must likewise appear
on the face of the will.
3. In No. (3), the identification of the writing may be
shown by extrinsic evidence.

 Note that Article 827 can refer only to such

documents as inventories, books of accounts,
documents of title, and papers of similar nature; the
document should, under no circumstances, make
testamentary dispositions, for then the formal
requirements for will would be circumvented.

 In the signing of documents or papers (when not

voluminous), there is no need to make an attestation
clause. The attestation clause on the will is enough.
(Unson vs. Abella, 43 Phil. 494)
 53

Can holographic will incorporate documents by

reference?
The test of Article 827 suggests a negative answer.
Paragraph 4 of the article requires the signatures of the
testator and the witnesses on every page of the incorporated
documents (except voluminous annexes). It seems, therefore,
that only attested will can incorporate documents by
reference, since only attested wills are witnesses (unless, of
course, the testator executes a holographic will, and
superfluously, has it witnessed).

Also, a holographic will requires that its contents be

in the handwriting of the testator, thus if the other instrument
is not entirely in the handwriting of the testator, it is
submitted that there can be no valid incorporation by
reference in a holographic will.

Must the codicil conform to the form of the will

to which it refers? (That is, a holographic codicil for a
holographic will, and notarial codicil for a notarial
will?)

The law does not require this. Thus, an attested will

may have a holographic codicil; a holographic will may have
an attested codicil. It is enough that the codicil has the
formalities of a will. Article 826 requires that the codicil be
executed as in the case “of a will”, not “of the will”.

SUBSECTION 6. – REVOCATION OF WILLS

AND TESTAMENTARY DISPOSITIONS

What are the conflicts rules for revocation of

wills?

a. For revocation outside the Philippines:

(1) If not domiciled in the

Philippines:

a) follow the law of the place

where the will was made;
or

b) follow the law of the place

where the testator was
domiciled at that time.
 54

(2) If domiciled in the Philippines

(this situation is not covered by
Article 829):

a) follow the law of the

Philippines (since his
domicile is here); or

b) follow the general rule of

lex loci celebrationis of the
revocation; or

c) follow the law of the place

where the will was made
(by analogy with the rules
on revocation where the
testator is a non-
Philippine domiciliary)

b. If revocation is in the Philippines, follow

Philippine law.

What are the modes of revoking a will under

Philippine law?
1. By implication of law;
2. By a subsequent will or codicil, or other writing done
with the formalities of a will; and
3. By overt acts of physical destruction. (Article 830)

What are examples of revocation by implication

or operation of law?

1. Preterition (Article 854);

2. Legal separation (Article 63, FC)
3. Unworthiness to succeed (Article 1032);
4. Transformation, alienation, or loss of the object
devised or bequeathed (Article 957);
5. Judicial demand of a credit as a legacy (Article 936).

What are the requisites for a valid revocation by a

subsequent instrument?

1. The subsequent instrument must comply with the

formal requirements of a will; (Molo vs. Molo, 90
Phil. 37)

2. The testator must possess testamentary capacity;

 55

3. The subsequent instrument must either contain an

express revocatory clause or be incompatible with
the prior will (Article 831) [Revocation by a
subsequent instrument may be express or implied].

 Like any other will, such wills must be

probated in order to take effect. (Molo vs.
Molo)

What are the four ways of destroying a will?

1. Burning;
2. Tearing;
3. Canceling; or
4. Obliterating.

What are the requisites for revocation by overt

act?

1) There must be an overt act specified by the law;

2) There must be a completion at least of the subjective
stage;
3) There must be animus revocandi or intent to revoke;
4) The testator at the time of revoking must have
capacity to make a will;
5) The revocation must be done by the testator himself,
or by some other person in his presence and by his
express direction.

 Thus there must be corpus – the physical

destruction itself; there must be evidence of
physical destruction; and animus – the
capacity and intent to revoke.

 Corpus and animus must concur. One

without the other will not produce
revocation.

 Even if the testator shall state that his will is

irrevocable, such provision will have no
binding effect on him because “any waiver
or restriction of this right is void” (Article
828).

Is the mere intent to revoke sufficient to effect

revocation of a will?
 56

No, intent to revoke is not sufficient. This is only one

of the elements. There must be overt act of burning, tearing,
obliterating, or canceling by the testator or any one under his
express direction. (Manaloto vs. Ca, GR No. 76464, February
29, 1988)

T, the testator, threw his will on a stove but it

was not burned because H, one of the heirs tried to
recover it from the stove. Was the will revoked?

No, because there was no physical destruction.

However, the heir who saved it is not entitled to inherit due to
unworthiness (Article 1032).

T executed a will in 1990 with his nephew N

who was living with him as a principal beneficiary. In
1991, with intent to revoke the will, he sent N to get it
from the safe so that he can destroy it; however,
knowing of the intent of his uncle, substituted another
paper inside the envelope and hid the real will. It was
this envelope which he gave to the testator. The latter,
without investigating the contents, subsequently
destroyed it by burning. After his death in 1992, N
presented the will, which was hidden, for probate. Is
there a revocation in this case?

There is no revocation by burning because although

there was intent to revoke, yet there was no actual physical
destruction. Not all the intention in the world without
destruction can revoke a will; and not all the destruction in
the world without the intention can revoke a will. The two
must always go together. However, the heir who saved it is
not entitled to inherit due to unworthiness (Article 1032).

What is the effect of crumpling of a will?

Crumpling of a will is not equivalent to tearing. There

us no revocation of the same. However, in Roxas vs. Roxas,
48 Phil., the Supreme Court said that crumpling with intent to
revoke constitutes revocation.

What is the effect of tearing of the will up to

the signature only?

If the testator tears the will up to the signature,

there is revocation because to goes to the heart of the will.
However, if it is only the signature of the witness, there is no
revocation.
 57

X made a will making Y his heir. X then learned

that Y was dead, so he made another will instituting Z
as heir. If Y turns out to be still alive, who inherits?

Y inherits, because the revocation was based on a

false cause.

What if the testator states in his second will: “I

am not sure whether Y is dead or still alive. However, I
hereby revoke the legacy to him which I made in my
first will.” Is there a revocation of the legacy?

Yes, for here, he cannot be said to be proceeding

upon an error.

If a will is destroyed without the testator’s

express direction, can the will still be established and
the testator’s estate distributed in accordance
therewith?

Yes, but the same must be proved in accordance

with the rules of evidence: a) the contents of the will; b) its
due execution; and the fact of its unauthorized destruction,
cancellation, or obliteration.

Can there be revocation by oral declaration?

Revocation cannot be done by mere parol. Generally

speaking, revocation of a written will can be accomplished by
the testator only by another writing, by destruction of the
instrument, or by some act manifest thereon, except where,
under the doctrine of implied revocation by a change in
circumstances, he may revoke his will indirectly by some act
which results in such a change.

If a subsequent will which revokes a prior will

and the said subsequent will becomes inoperative by
reason of the incapacity of or repudiation by the heirs
designated therein, does this fact affect the revocation?
(Will the revocation made by the testator in said
subsequent will remain effective?)

A revocation made in a subsequent will shall take

effect, even if the new will should become operative by
reason of the incapacity of the heirs, devisees, or legatees
designated therein, or by their renunciation (Article 832). The
reason is that the act of revoking a will is entirely distinct,
 58

separate and independent from the testamentary disposition

contained in the subsequent will. Moreover, the incapacity of
or repudiation by, the heirs is beyond the control of the
testator, but the act of revocation is within his absolute
control.

What is the doctrine of dependent relative

revocation?

The failure of the new testamentary disposition,

upon whose validity the revocation depends, is equivalent to
the non-fulfillment of a suspensive condition, and hence
prevents the revocation of the original will. But a mere intent
to make at some time a will in place of that destroyed will not
render the destruction conditional. It must appear that the
revocation is dependent upon the valid execution of a new
will.

This doctrine is not limited to the existence of some

other document and has been applied where a will was
destroyed as a consequence of a mistake of law.

What is the effect of implied revocation?

It only annuls such dispositions in the prior will as

are inconsistent with or contrary to those contained in the
later will. (Article 831)

What is the effect of revocation on the

recognition of an illegitimate child?

The recognition of an illegitimate child does not lose

its legal effect, even though the will wherein it was made
should be revoked. (Article 834)

SUBSECTION 7. – REPUBLICATION
AND REVIVAL OF WILLS

What is republication?

It is the process of re-establishing a will, which has

become useless because it was void, or had been revoke.

How may republication be made?

 59

1. Express republication or republication by re-

execution of the original will – the testator
reproduces in a subsequent will the dispositions
contained in a previous one which is void as to its
form (the original provisions are copied); and
2. Implied republication or republication by reference –
the testator executes a codicil referring to a
previously revoked will which is valid as to its form,
or to a will which is void not as to its form but for
other causes, such as want of testamentary capacity.

What are the requisites in republication by re-

execution?

1. The original will must be void as its form;

2. All the testamentary dispositions in the original will
must be reproduced (not merely referred to) in the
subsequent will;
3. The new will must be executed in accordance with
the formalities required by law.

What are the rules in republication?

1. To republish a will void as to its form, all the

dispositions must be reproduced in the new or
subsequent will.

2. To republish a will valid as its form but already

revoked, the execution of a codicil which makes
reference to the revoked will is sufficient.

What are the effects of republication by virtue of a

codicil?

1. The codicil revives the previous will.

2. The old will is republished as of the date of the

codicil – makes it speak, as it were, from the new
and later date.

3. A will republished by a codicil is governed by a

statute enacted subsequent to the execution of the
will, but which was operative when the codicil was
executed.
What are the requisites in republication by reference?

1. The will must be void for causes other than as to its

form;
 60

2. The codicil must refer to the previous will; and

3. It must be executed as in the case of a will.

What is revival of wills?

Revival is the restoration or re-establishment of a

revoked will or revoked provisions thereof, to effectiveness,
by virtue of legal provisions.

What is the difference between republication and

revival?

1. Republication of wills is an the act of the testator.

2. Revival is one that takes place by operation of law.

What are examples of revival by operation of law?

1. By implication of Article 837 if the second will merely

impliedly revoked the first will, and the second will
was itself revoked, the first will is automatically
revived.

2. If a compulsory heir in the direct line is omitted, the

institution of heir is annulled; but should the omitted
heir die before the testator, the institution is revived,
without prejudice to the right of representation
(Article 854).

Application:

1. T executed two wills. Under the first will, A is

the only beneficiary, while under the second
will, B is the only beneficiary. Subsequently, he
executed a codicil wherein he expressly
revoked the second will. May the first will now
be admitted to probate as his last will and
testament?

Yes. Express revocation is superior to implied revocation.

When T expressly revoked his second will by a codicil, the
effect is that the will ceases to exist and is as inoperative
as if it has never been written. Consequently, there is
now only one will of T which remains – the first will which
was executed. In reality, the first will was not considered
revived since it has never been validly revoked in the first
place.
 61

2. T made 3 wills. Will No. 2 expressly revoked

Will No. 1. Will No. 3 revoked Will No. 2. Is Will
No. 1 revived?

No, by express provision of Article 837. The rule is

based on the principle that the revocatory clause of the
second will took effect immediately or at the instant the
revoking will was made. (This is the principle of instanter)

3. T made 3 wills. Will No, 2 is completely

inconsistent with, and therefore, impliedly
rpeals Will No. 1. Later, will No. 3 revokes Will
No. 2. Is the Will No. 1 revived?

Yes. This is a clear inference from Article 837. Since

the Article uses the word “expressly”, it follows that in case of
an “implied” revocation by the second will, an automatic
revival of the first occurs. Apparently, the reason is the fact
that an “implied revocation” is ambulatory, the consistency
being truly and actually apparent only mortis causa, when the
properties are distributed.

4. T made Will No. 1, then Will No. 2 expressly

revoking the first. Then he destroyed Will No.
2, and orally expressed his desire that his first
will be followed. Should this be allowed?

No, the oral expression of the desire to revive cannot

be given effect. He should have made a new will or codicil.

Subsection 8. – ALLOWANCE AND DISALLOWANCE

OF WILLS (PROBATE)

What is probate?

It is the act of proving before a competent court the

due execution of a will by a person possessed of testamentary
capacity, as well as approval thereof by said court.

What are the kinds of probate?

1. Probate during the lifetime of the testator (ante-

motem); and
2. Probate after the testator’s death (post motem).

Why is there a need for probate?

 62

1. It is essential because under the law, “no will shall

pass either personal or real property unless it is
proved and allowed in accordance with the Rules of
Court (Rule 75, Section 1).
2. Probate proceeding which is in rem cannot be
dispensed with and substituted by any other
proceeding, judicial or extra-judicial; and
3. Suppression of a will from probate is contrary to law
and public plociy.

 Purpose of probate of a will: To establish conclusively

against everyone, once and for all, the facts that the
will was executed with the formalities required by
law and that the testator was in a condition to make
a will, is the purpose of the proceedings for the
probate of a will. The judgment in such proceedings
determines and can determine nothing more. In
them the court has no power to pass upon the
validity of any provisions made in the will. It can not
decide, for example, that a certain legacy is void and
another one valid. Such question must be decided in
some other proceeding. (Castaneda v. Alemany, 3
Phil. 426) This is so because although the allowance
of a will is conclusive as to its due execution, it is not
so as to intrinsic validity of the provisions made
therein, which is covered by substantive law relative
to descent and distribution. The probate of a will
does not effect the legitimate rights of the heirs at
law or of the widow in the estate.

What are the two parts of post-mortem probate?

1. The probate proper, which deals with extrinsic

validity, that is, proof of testamentary capacity and
due execution are presented, and the court then
issued an order allowing or disallowing the will;
2. The inquiry into intrinsic validity and the distribution
itself of the properties.

What are the issues to be resolved in probate

proceedings?

1. Whether the instrument submitted is, indeed, the

decedent’s last will and testament; in other words,
the question is one of identity;
 63

2. Whether the said will was executed in accordance

with the formalities required by law; in other words,
the question is one of due execution;
3. Whether the decedent had the necessary
testamentary capacity at the time the will was
executed; in other words, the question is one of
capacity;
4. Whether the execution of the will and its signing
were the voluntary acts of the decedent. (Ajero vs.
Ca, supra.)

When probate court may determine matters other

than the due execution:

 In exceptional cases, as where the defect is apparent

on its face, the probate court may determine the
intrinsic validity of the will even before the formal
validity of the will is established, as the probate of a
will may become a useless ceremony if the will is
intrinsically invalid. (Balanay, Jr. vs. Martinez, L-
39247, June 27, 1975), as where the devise was
intrinsically invalid since the will itself stated that the
devisee was the paramour of the testator.

 Where 2 successive inconsistent wills were presented

for probate and the issue of filiations was squarely
raised by the pleadings and had to be decided in
order to determine whether the testator intended
really to revoke the first will. When the issue is
revocation, it is the function of the court to examine
the words of the will. (Rarreto v. Reyes, 98 Phil.
996)

 It can inquire as to whether the disinheritance by the

testator of an heir is legal, and receive evidence
during the hearing in support of the validity of the
provision of disinheritance. As a matter of fact even
the question of the status of a natural child is an
issue which is completely not germane to the main
question of probate, could be decided in a probate
proceeding when it is raised in conjunction therewith.
(Severino vs. Severino, 44 Phil. 343, Hilado v. Ponce
de Leon, 50 O.G. 222)

 The general rule is that questions of title to property

cannot be passed upon in testate or intestate
proceedings. The probate court can decide only
 64

provisionally questions of title to property for the

purpose of inclusion into, or exclusion from the
inventory, without prejudice to a final determination
of the question in a separate action. It is only when
the parties interested are all heirs and they agree to
submit to the probate court the question as to title of
property that the probate court may definitely pass
judgment thereon. (Alvarez vs. Espiritu, G.R. No. L-
18833, Aug. 14, 1965)

 The successional rights of an oppositor to the

probate of a will may be inquired in a probate
proceeding. Said the Supreme Court: “It is urged
that as probate is only concerned with the due
execution of a testament, any ruling on the
successional rights of the oppositors is premature.
Inquiry into the hereditary rights of the oppositors is
not premature, if the purpose is to determine
whether their opposition should be excluded in order
to simplify and accelerate the proceedings. If the
oppositors can not gain any hereditary interest in the
estate, whether the will is probated or not, their
intervention would merely result in unnecessary
complication. (Cach v. Udan, No. L-19996, April 30,
1950)

Does the probate court have jurisdiction to

decide questions on ownership?

Generally no, except:

1. When the parties voluntarily

submit this matter to the court;
2. When all the claimants have
legal interests in the property,
and with their consent, they
submit the question of ownership
to the probate court and the
interest of third persons are not
prejudiced (Baybayan vs.
Aquino, 149 SCRA 186; Sanches
vs. CA, GR 108947, September
29, 1997).
3. When provisionally, ownership is
passed upon to determine
whether or not the property
involved is part of the estate.
 65

[The court may only provisionally

pass upon titles of properties to
be included in the inventory of
estate properties, subject to final
decision in a separate action to
resolve the question of
ownership.]

In probate proceedings, in what instances, if

any, may proof of filiation be allowed and for what
purpose?

1. If it is essential to establish which of the two wills

has been revoked;
2. To give prima facie proof whether or not an oppositor
or intervenor who claims to be related to the
testator, can be allowed to intervene in the probate
proceedings for the purpose of protecting his rights.

 Note however, that the final decision on the

matter of relationships can be threshed out
either in another case, or even in the later
stages of the settlement proceedings, the
stage when the declaration of heirship is
made, and only after the probate order has
abeen made.

What is the prescriptive period for instituting

probate proceeding?

Prescription is not applicable. The Statute of

Limitations fixes time limits for the filing of civil actions but
not in special proceeding of which probate is admittedly one.
This is because probate proceedings are not exclusively
established in the interest of the surviving heirs but primarily
for the protection of the testator’s expressed wishes that are
entitled to respect as an effect of ownership and of the right
of disposition. If the probate of validly executed wills is
required of public policy, the State could not have intended
the statute to defeat public policy.

Is estoppel applicable to probate proceedings?

No, it does not apply to probate proceedings for they

are vested with public interest, and if estoppel would be a
applied, the ascertainment of the truth may be blocked. This
should be avoided for the primary purpose of a probate
 66

proceeding is not the protection of the interest of living

persons.

Notes:

 The provision made by the testator that his “Last Will

and Testament shall not be ventilated in court”,
cannot deprive the courts of their authority to
determine if his will referred to should be allowed or
not. It is not the parties interested in one way or
another in a case that can confer or take away from
the courts the jurisdiction and authority to resolve
and decide what the law itself desires to be resolved
and decided. However, an instrument which neither
disposes of property, as it only appoints an executor,
not being testamentary in character, is not entitled to
probate, although executed with all the formalities
required by law.

 A codicil should be probated, even though it contains

nothing but the revocation of a former will.

In the case of a holographic will, and there is

no contest, how many witness is required to testify?

Only one witness is required, and in his absence,

expert evidence may be resorted to.

If the testator himself testifies, what must he

prove?

He needs merely affirm his handwriting and

signature.

If a holographic will is contested, how many

witnesses are needed?

3 witnesses must be presented.

What is the requisite quantum of evidence to

prove a lost or destroyed notarial will?

b) In the absence of contest – 2 credible

witnesses, who do not need to be the
attesting witnesses, must clearly establish:
 67

1. The due execution and formal

validity of the will
2. The existence of the will at the
time of the death of the testator
or its fraudulent or accidental
destruction in the lifetime of the
testator and without his
knowledge
3. The provisions of said will.

c) If contested – all the subscribing witnesses

and the notary public who must testify on
the facts mentioned above.

 This applies only to a lost or destroyed notarial will

and not to a holographic will. A lost or destroyed
holographic will cannot be proved by the bare
testimony of witnesses who have seen and/ or read
such will as the probate thereof requires
identification of the handwriting and signature of the
testator (Section 5, 11 and 12, Rule 76),
presupposing the availability of the holographic will
in court. The Supreme Court however, intimated that
perhaps it may be proved by photostatic,
photographic or carbon copies.

What are the requirements before the

distribution of the properties?

1. There must be a decree of

partition allocating property to
each heir;
2. Then payment of the estate tax;
and
3. Finally, the distributive shares
may be delivered.

How is a probate proceeding terminated?

1. Upon approval of the project of partition;

2. The granting of the petition to close the proceedings;
and
3. The consequent issuance of the orders of distribution
directing the delivery of the properties to the heirs in
accordance with the adjudication made in the will.
 68

What evidence are necessary for the allowance

of wills which have been probated outside of the
Philippines?

1. The due execution of the will in accordance with the

foreign laws;
2. That the testator has his domicile in the foreign
country, and not in the Philippines;
3. That the will has been admitted to probate in such
country;
4. The fact that he foreign tribunal is a probate court;
and
5. The laws of a foreign country on procedure and
allowance of wills.

What is the effect of the allowance of a will?

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.

PERTINENT PROVISIONS

 RULE 75

Section 1 – No will shall pass real or personal estate

unless it is proved and allowed in the proper court.
Subject to the right of appeal, such allowance of the will
shall be conclusive as to its due execution.

 RULE 76

Section 5 – X X X X If no person appears to contest

the allowance, the court may grant allowance thereof on
the testimony of one of the subscribing witness only, if
such witness will testify that the will was executed as is
required by law.

In the case of a holographic will, it shall be

necessary that at least one witness who knows the
handwriting and signature of the testator explicitly
declare that the will and the signature are in the
handwriting if the testator. In the absence if any such
competent witness, and if the court deem it necessary,
expert testimony may be resorted to.
 69

Section 11 – If the will is contested, all the

subscribing witnesses and the notary public in the case of
wills executed under the Civil Code of the Philippines, if
present in the Philippines and not insane, must be
produced and examined, and the death, absence, or
insanity of any of them must be satisfactorily shown to
the court. If all or some of such witnesses are present in
the Philippines but outside the province where the will
has been filed, their deposition may be taken. If any or
all of them testify against the due execution of the will,
or do not remember having attested to it, or are
otherwise of doubtful credibility, the will may,
nevertheless, be allowed if the court is satisfied from the
testimony of other witnesses and from all the evidence
presented that the will was executed and attested in the
manner required by law.

If a holographic will is contested, the same shall be

allowed if at least 3 witnesses who know the handwriting
and signature of the testator explicitly declare that the
will and the signature are in the handwriting of the
testator, in the absence of any competent witness, and if
the court deem it necessary, expert testimony may be
resorted to.

Section 12 – Where the testator himself petitions for

the probate of his holographic will and no contest is filed,
the fact that he affirms that the holographic will and the
signature are in own handwriting, shall be sufficient
evidence of the genuineness and due execution thereof.
If the holographic is contested, the burden of disproving
the genuineness and due execution thereof shall be on
the contestant. The testator may, in his turn, present
such additional proof as may be necessary to rebut the
evidence for the contestant.

What are the grounds for the disallowance of a

will?

1. If the formalities required by law have not been

complied with;
2. If the testator was insane, or otherwise mentally
incapable of making a will, at the time of its
execution;
3. If the will was executed through force or duress, or
under the influence of fear, or threats;
 70

4. If it was procured by undue and improper pressure

and influence on the part of the beneficiary or some
other person;
5. If the signature of the testator was procured through
fraud;
6. If the testator acted by mistake or did not intend
that the instrument he signed should be his will at
the time of affixing his signature thereto; and
7. If the will was expressly revoked (Article 839).

 Note: The grounds are exclusive (Ajero

(Ajero vs.
CA, GR No. 106720, September 15, 1994).
1994).

What is the difference between the 5th and 6th

ground?

Under the 5th ground, the testator is aware that he is

signing a will but was tricked into signing said will, that is,
that although the testator knows it is a will, the contents
thereof are not according to his wishes and he would not have
signed the will were it not for the fraud employed on hi.

The 6th ground, on the other hand, contemplates the

situation where the testator did not intend to sign a will but
some other document as happens when, for example, the
testator believes he is signing a promissory note or a contract
but in lieu thereof, a will is substituted. There is no intent,
therefore, to make or sign a will but some other document
under the 6th ground.

SECTION 2. - INSTITUTION OF HEIR

What is institution of heirs?

Institution of heirs is one where the testator

designates in his will the person or persons to succeed him in
his property and transmissible rights and obligations. (Article
840)

This simply means the designation of the testator in

his will of the person or persons who are going to succeed
him in his property and transmissible rights and obligations.

Give the rules on institution of heirs.

 71

1. Being a voluntary heir of the testator, it

cannot affect the legitime, otherwise, the
compulsory heirs would be unduly
prejudiced;
2. It is applicable only in testate succession;
3. It affects only the free portion.
4. A conceived child may be instituted if the
conditions in Articles 40 and 41 are present.
(Art. 1025)

What are the restrictions imposed by law upon

the power of the testator to dispose of his property?

a. Liability of estate for testator’s obligations –

His estate is liable for all legal obligations
incurred by him. This restriction takes
precedence over the right of compulsory
heirs to their legitime.

b. Right of compulsory heirs to their legitime –

The testator cannot dispose of or encumber
the legal portion due to his compulsory
heirs by force of law.

What is the extent of the freedom of disposition

of the testator?

The testator is free to dispose of the free portion of

his estate to anyone who is qualified to succeed. The free
portion is the remainder of the estate after all the legitimes of
the compulsory heirs had been satisfied.

Concept of compulsory or forced heirs:

They are those for whom legitimes are reserved and

they succeed to the inheritance regardless of the wishes of
the testator and cannot be deprived of their legitimes except
by valid disinheritance.

Compulsory heirs are not however compelled to

accept their legitimes because they may reject them. They
are called compulsory because they could not be disregarded
by the decedent. Their legitimes are forced, so to speak,
against the estate. 60
60
Article 887 enumerates the compulsory heirs –
1. Legitimate children and descendants, with
respect to their legitimate parents and ascendants;
 72

Concept of legitime:

Legitime is that part of the testator’s property which

he cannot dispose of because the law has reserved it for
certain heirs whom he cannot disregard known as compulsory
or forced heirs.

 Only compulsory or forced heirs can

question the institution.

May an unborn child be instituted as an heir?

It depends. A child already conceived at the time of

death of the decedent is capable of succeeding; provided, it
be born later under the condition prescribed in Article 41 of
the Code 61 (Article 1025, second paragraph). Otherwise, the
institution is void because the foetus did not become a
person.

What if the testator wants to dispose all his

properties onerously during his lifetime, can he do so
even if he has compulsory heirs?

What are the characteristics of an instituted

heir?

1. He is a testamentary heir as
distinguished from a legal or intestate
heir. He is also different from a devisee
or legatee.

2. In default of the foregoing, legitimate

parents and ascendants, with respect to their
legitimate children and descendants;
3. The widow or widower;
4. Acknowledged natural children, and natural
children by legal fiction;
5. Other illegitimate children referred to in
Article 287; Compulsory heirs mentioned in Nos. 3, 4
and 5 are not excluded by those in Nos. 1 and 2;
neither do they exclude one another.
61
Article 41. For civil purposes, the foetus is considered born
if it is alive at the time it is completely delivered from the
mother’s womb. However, if the foetus had an intra-uterine
life of less than seven months, it is not deemed born if it dies
within twenty four hours after its complete delivery from the
maternal womb.
 73

2. He continues the juridical personality of

the testator but only in relation to the
inheritance without being personally
liable for the testator’s debts.
3. He is a natural person (Art. 40 to 42),
even if only a conceived child, but not a
child not yet conceived. However,
testamentary dispositions may be made
in favor of a juridical person, except
those not permitted by law to succeed.
4. He acquires rights which are limited to
the disposable portion of the inheritance
and cannot impair that portion known as
legitime.
5. He is presumed to have been instituted,
where there are several heirs, equally,
individually and simultaneously with the
others, unless the contrary intention
appears.

May a will be valid even if it does not institute

heirs?

Yes. A will shall be valid even though (1) it should

not contain an institution of an heir, or (2) such institution
should not comprise the entire estate, and even though (3)
the person so instituted should not accept the inheritance or
(4) should be incapacitated to succeed. (Art. 842, par 1)

 If the designated heir repudiates the inheritance or is

incapacitated, the inheritance will devolve by
accretion on the qualified heirs, if any (Article 1016).

 In legal succession, the share of the person who

repudiates the inheritance shall always accrue to his
co-heirs (Article 1018).

If a will does not institute an heir, is there a

need to probate the will?

No, except:

a. When the will recognizes an

illegitimate child;
b. When it disinherits a compulsory
heir;
c. When it instituted an executor.
 74

What are the requisites in general for a valid

and effective institution of heirs?

1. That the testator has the capacity to make the

institution;
2. That in making the institution of heir the testator is
not subjected to any vice that vitiates consent;
3. That the institution is made in a will;
4. That the institution is made personally by the
testator without leaving it to the will or discretion of
a third person;
5. That the person instituted is identified or identifiable
in the will with sufficient clarity to leave no doubt as
to the testator’s intention, since the institution of an
unknown heir is void;
6. That there be no preterition of a compulsory heir in
the direct line.

State the rules in the designation of the heirs.

1. The testator shall designate the heir by name and

surname;
2. When there are two or more persons having the
same names, he shall indicate some circumstances
by which the instituted heir may be known;
3. Even though the testator may have omitted the
name of the heir, should he designate him in such a
manner that there can be no doubt as to who has
been instituted, the institution shall be valid (Art.
843)
4. An error in the name, surname or circumstances of
the heir shall not vitiate the institution when it is
possible, in any other manner, to know with certainty
the person instituted;
5. If among persons having the same names and
surnames, there is a similarity of circumstance in
such a way that even with the use of other proof, the
person instituted cannot be identified; none of them
shall be an heir. (Art. 844);
6. Disposition in favor of an unknown person shall be
void, unless by some event or circumstance his
identity becomes certain. (Art. 845);
7. A disposition in favor of a definite class or group
shall be valid. (Art. 845, par 2);
8. The designation of name and surname is directory.
What is required is that the identity of the
designated successor be sufficiently established. If
 75

there is ambiguity in the designation, the ambiguity

should be resolved in accordance with Art. 789.

How much can be disposed of by will?

1. If the testator leaves no compulsory heirs – the

entire estate.
2. If the testator leaves compulsory heirs – the
disposable portion, that is, the net hereditary estate
minus the legitime.

 Note: The amount of the legitmes depends

on the kinds and number of compulsory
heirs. Various combinations are possible.
Consequently, the amount of the disposable
portion is also variable.

What is the effect of omission of the name of

the heirs?

If by inadvertence or for any reason the name of the

heir designated is omitted in the institution, but nevertheless
he is described in such a manner that there is no doubt as to
the identity of the said heir, the institution is valid.

What is the effect of error in the name or

circumstances of the heir?

Errors in the spelling of the name, surname or in the

circumstances of the heir shall not invalidate the institution
when the identity of the heir designated could still be
ascertained in some other manner.

How is the testator’s intention in case of

ambiguity ascertained?

1. By examining the will itself;

2. The extrinsic or parol evidence of the testator;
3. Testimonial evidence excluding the oral declarations
of the testator is inadmissible.

Can extrinsic evidence be admissible to

determine the identity of the heir?

Imperfect description may be corrected by extrinsic

evidence but not the testimony regarding the oral declaration
of the testator.
 76

What is the effect of ambiguity resulting in the

non-identification of the heir?

If there is doubt and ambiguity on the identity of the

person instituted as heir by reason of the fact that there are
persons of similar names, surnames and similarity of
circumstances, none of them shall inherit.

What is the effect of any disposition in favor of

an unknown person?

The disposition is void and ineffectual – unless by

some event or circumstance his identity becomes certain. This
event or circumstance can happen in the future or after the
death of the testator.

Can the testator give his entire free portion to a

person he does not personally know?

Yes, the unknown person referred to in Article 845

refers to one who cannot be identified and not to one whom
the testator does not personally know. The basis of the nullity
is the incapability of determination of the intention of the
testator.

Is the designation valid if the identity is not

known at the time of making of the will?

Yes, provided the said identity can be known in the

future by some circumstance. How? By establishing certain
criteria at the proper time, e.g. “First Filipino who wins a gold
medal in the Olympics”.

What are the limitations of the rule that an heir

may be validly instituted if by some future event his
identity may be known?

1. Where the determination of the heir is delegated to

another, the disposition is void under Article 785;
thus, the testator cannot validly provide “I hereby
institute as my heir the person whom my brother
Juan may designate.”

2. Where the instituted heir when identified does not

have the capacity to succeed at the time of the death
of the testator, the disposition is void under Article
1025; thus if the testator provides, “I institute as my
 77

heir the first child of my brother Juan” and the said

child is conceived and born after the death of the
testator.

What are the classes or groups who can be

instituted as heirs?

1. Article 848 – Brothers and sisters, some of

the full blood, others half blood;
2. Article 849 – A person and his children;
3. Article 959 - The testator’s relative (nearest
in degree);
4. Article 1030 – The poor in general living in
the domicile of the testator or the poor in a
definite locality.

The testator provides: “I give 1/3 of my estate

to A, B and C. C is a class of people. How do you divide
the estate?
It is not to be interpreted as 1/3 to A, B and class C.
Rather, the 1/3 of the estate should be divided equally among
A, B and the members of class c. Why? Because the
presumption is that the members of C were individually
designated.

If the testator says, “I give 1/3 of my estate to

A, B and class C as a unit, then 1/3 will be divided
equally among A, B and class C.

If it is not possible to resolve the ambiguity, the

testator’s intent becomes indeterminable and, therefore,
intestacy as to that portion will result.

If there are several heirs who were instituted

but there is no designation of their respective shares,
what rule shall apply?

Institution of heirs without designation of shares

shall effect in the heirs inheriting in equal parts. (Belen vs.
BPI, L- 14470, Oct. 31, 1960)

There is, however an exception to the rule. If of the

persons instituted, one is a compulsory heir, the rule would
not apply. The legitime of that heir has to be removed first;
otherwise, he would be unduly prejudiced.
 78

 This article will apply only in testamentary

succession, that is to say, only among testamentary
heirs. It will not apply to an heir who is both a
compulsory and a testamentary heir, for in that case
the heir will get his legitime and his testamentary
portion.

 This presumption should not be interpreted in an

absolute manner but should be limited to the cases
where all the heirs are of the same class or juridical
condition so that, in case the testator should
institute one who is a compulsory heir and another a
voluntary one without designating the portion which
each one may receive, the share of both shall not be
the same because the compulsory heir shall first be
entitled to what corresponds to him as a legitime,
and then the balance shall be divided by him and the
voluntary heir in equal portions.

A instituted B, his friend, and the latter’s

children C and D. State the rule.

When the testator calls to the succession a person

and his children, they are all deemed to have been instituted
simultaneously and not successively. (Art. 849)

 The word descendants includes children and

grandchildren. They succeed per capita (per person),
and not per stirpes (by groups).

What are the governing principles in institution

of heirs?

1. Equality – the heirs instituted without designation of

shares inherit in equal parts.
2. Individuality – the presumption is that heirs
collectively designated are considered individually
instituted unless the contrary appears.
3. Simultaneity – The presumption is that several heirs
are instituted simultaneously and not successively
unless the contrary appears.

A had 3 legitimate children B, C, and D. D,

however died in 2000, survived by 2 legitimate
children, E and F. A died in 2002 with a will. In the will
he made the following institution of heirs: “I designate
as my heirs B and C, and the children of D.” The net
 79

remainder or residue of the estate of A is P120, 000.00.

How shall the distribution be made?

There are 2 provisions of the Civil Code, which must

be applied, Articles 846 and 847. Where there are compulsory
heirs among the heirs instituted, or where all of them are
compulsory heirs, the provision of Art. 846 should be applied
only to the free or disposable portion. Consequently, the
distribution shall be made as follows:

First, satisfy the legitime of B, C, E and F. B and C

shall be entitled to 20, 000.00 each in their own right, while E
and F shall be entitled to 10, 000.00 each by representation.
Then the free portion of 60, 000 shall be divided among all of
them in equal parts in accordance with Art. 846. Therefore,
the shares of each will be:
B – 35, 000.
C – 35, 000
E – 25, 000
F – 25, 000

 For mass institution, see Articles 786, 843 (brothers

and sisters), 849 (designation of a person and his
children), 1029 (prayers and pious works for the
benefit of his soul), and 1030 (poor).

X without any compulsory heirs executed a will

and gave all his properties to Y, a friend. Is the will
valid?

Yes, because one who has no compulsory heirs may

dispose by will of all his estate or any part of it in favor of any
person having capacity to succeed. (Article 842, par. 1)

State the effect if a testator instituted his

brothers and sisters of the full and half blood.

The inheritance shall be distributed equally, unless a

different intention appears. (Article 848)

Note:

a. In testamentary succession – equality of shares

of full and half blood brothers and sisters, unless
the testator provides otherwise.
 80

b. In intestacy – proportion of 2:1 between full

and half blood brothers and sisters (Article
1006), and only if the qualification in Article 992
does not apply. (Article 992 – An illegitimate
child has no right to inherit ab intestato from the
legitimate children and relatives of his father or
mother, nor shall such children or relatives
inherit in the same manner from the illegitimate
child.)

Does Article 848 apply even to illegitimate

brothers and sisters in cases where the testator is of
legitimate status and vice versa?
Yes, because Article 848 makes no distinction.

X instituted the following as his heirs: His full

brother, his half brother, his stepbrother, his brother in
law and his illegitimate brother. How much will each
get if the estate is 20, 000?

Each gets 20, 000. While the law mentions only full
and the half-brother, it is evident that the others may be
considered in the same category as strangers, making Article
846 applicable.

State the effect of a statement of a false cause

in the institution of heirs.

It shall be considered as not written, unless it

appears from the will that the testator would not have made
such institution if he had known the falsity of such cause.
(Article 850)

 A false cause refers to the erroneous reason for the

institution of an heir.

Note:

The general rule – The falsity of the stated cause for

the testamentary institution does not affect the validity or
efficacy of the institution. Reason: Testamentary dispositions
are ultimately based on liberality.

Exception – The falsity of the stated cause for

institution will set aside the institution, if certain factors are
present.
 81

Before the institution of heirs may be annulled

under Article 850, what are the requisites that must
concur?

1. The cause for the institution of heirs must be stated

in the will;
2. The cause must be shown to be false;
3. It must appear from the face of the will that the
testator would not have made such institution of he
had known the falsity of the cause. (Austria vs.
Reyes, 31 SCRA 754)

Note: This article does not restrict the operation of

Article 1028 in relation to Article 739 declaring void certain
testamentary dispositions, be reason of public policy. The
annulling factor in those 2 articles is not falsity but illegality.

A is the tallest in the class. I give him ½ of my

estate. If A is not the tallest, is the institution
ineffective?

No, follow the general rule because the real cause

was not the height but the liberality of the testator.

 If I institute my brother X as my heir because he

saved my son’s life, the falsity of this cause will be
merely incidental and will not vitiate the institution of
X since the fundamental reason for the institution is
his blood relationship to me. But if in the above
example, X should be a total stranger, then the fact
that he did not save my son’s life would annul his
institution because there would be no reason for my
instituting a total stranger as my heir were it not for
the fact that he saved my son’s life.

What is the effect if the cause is contrary to

law?

The same will not be considered as written unless

such illegal cause appears to be the sole reason for the
institution of the heir.

X institutes Y because he wants him to kill Z. Is

the institution valid?

No, it is void since the real motive is illegal.

 82

X institutes Y because during the last election,

he was a flying voter. Is the institution valid?

Yes, because the real motive here is generosity,

liberality or affection and the illegal cause is only incidental.

In Articles 852 and 853, what are the requisites

in order that the said articles will apply?

1. There are more than one instituted heir;

2. The testator intended them to get the whole estate
or the whole disposable portion, as the case may be;
3. The testator has designated a definite portion for
each heir;
4. The total of portions is less or more than the whole
estate or free portion as the case may be.

Note: In Article 852, the total of all the portions is

less than the whole estate or the whole disposable portion.
Therefore, a proportionate increase is necessary. The
difference cannot pass by intestacy because the intention is
clear to give the instituted heirs the entire amount.

In Article 853, the reverse occurs. The total exceeds

the whole estate or the whole disposable portion. Thus a
proportionate reduction must be made.

Application:

1. The value of the estate of T is P1, 200, 000. He

specifically provides in his will that a specific
car valued at 200, 000 goes to A; a specific
parcel of land worth 300, 000 to B; and all the
other properties to C. How will the estate be
divided?

A gets the car plus 200, 000; B gets the

land plus 300, 000 and C gets 700, 000

2. T institutes X, Y and Z as his sole heirs giving

each of them an aliquot part of his estate of
360, 000 as follows:

X- 1/3 (P120, 000)

Y- ¼ (P90, 000)
Z- 1/6 (P60, 000)
P270, 000
 83

Balance: P90, 000 will be distributed as

follows:
12/27 x 90, 000 = P 40, 000
9/27 x 90, 000 = P30, 000
6/27 x 90, 000 = P20, 000
P90, 000

3. Suppose in the preceding example, the aliquot

parts given to X, Y and Z are as follows:

X- ½ (180, 000)
Y- 1/3 (120, 000)
Z- ¼ (90, 000)
390, 000
Excess: 30, 000

X – 18/39 x 30, 000 = P13, 846

Y – 12/39 x 30, 000 = P 9, 231
Z – 9/39 x 30, 000 = P 6, 923
P 30, 000

4. The testator has no compulsory heirs. He

indicates in the will his intention to give his
entire estate to his heirs. He gives ¼ to A, 1/6
to B and 1/3 to C. The estate is worth 120, 000,
therefore, A gets 30, 000, B gets 20, 000 and C
gets 40, 000.00 or a total of 90, 000. Since the
estate is 120, 000, what will you do with the
remaining 30, 000?

a. Get the least common denominator: 12.

A= 3/12
B= 2/12
C=4/12

b. Get the ratio of the shares with each other.

A(3) : B(2) : C(4)

3+2+4=9

c. Multiply the remainder (30, 000) by the

share of each heir with respect to the ratio
in (b).

For A; 3/9 x 30, 000 = 10, 000.

(3 x 30, 000 = 90, 000 / 9 = 10,
000.)
 84

For B: 2/9 x 30, 000 = 6, 666.67

(2 x 30, 000 = 60, 000 / 9 = 6,
666.67)

For C: 4/9 x 30, 000 =

13.333.33 (4 x 30, 000 = 120,
000 / 9 = 13, 333.33)

d. Add the result to what they originally

received and the sum will complete their
inheritance.

For A: 30, 000 + 10, 000 = 40,

000

For b: 20, 000 + 6, 666.67 = 26,

666.67

For C: 40, 000 + 13, 333.33 =

53, 333.33

e. Add your figures in (d) to make sure that it

equals to the value of the entire estate (To
make sure that you did not make a mistake)

40, 000 + 26, 666.67 + 53,

333.33 + 120, 000.

f. If you want to get the inheritance of each

right away, multiply the ratio in (c) with the
value of the whole estate.

For A: 3/9 x 120, 000 = 40, 000.

For B: 2/9 x 120, 000 = 26,

666.67

For C: 4/9 x 120, 000 = 53,

333.33

You get the same result but

faster.

5. If A institutes as his sole heirs X, Y and Z, X to

¼ and Y to ¼ and Z to 1/3 of the estate and
the total estate is 12, 000, then according to
the disposition, X will receive 3, 000, Y 3, 000
 85

and Z 4, 000 thereby leaving a balance of 2,

000 undisposed of. This balance will be given to
the heirs proportionally. X, therefore, will get
furthermore 3/10 x 2, 000 or 600, Y will get
the same and Z will have 4/10 x 2,000 or 800,
thus X will get a total of 3, 600, Y 3, 600 and Z
4, 800 or a total of 12, 000.

6. The testator has no compulsory heirs. He

indicates in the will his intention to give his
entire estate to his heirs. He gives ½ to A, 1/3
to B and 1/4 to C. The estate is worth 30, 000,
therefore, A gets 15, 000, B gets 10, 000 and C
gets 7, 500 or a total of 32, 500 Since the
estate is 30, 000, what will you do with the
excess of 2, 500?

1. Get the least common

denominator: 12

A = 6/12
B = 4/12
C = 3/12

2. Get the ratio of the shares with

each other.

A(6) : B(4) : C(3)

6 + 4 + 3 = 13

3. Multiply the excess by the share of

each heir in the ration in (ii).

For A: 6/13 x 2, 500 = 1, 153.84

For B: 4/13 x 2, 500 = 769.23

For C: 3/13 x 2, 500 = 576.93

4. Subtract the results in (iii) from

what each heir was to receive
initially.

For A: 15, 000 – 1, 153.84 = 13,

846.16
 86

For B: 10, 000 – 769.23 = 9,

230.77

For C: 7, 500 – 576.93 = 6,

923.07

5. Add the figures in (iv) to make

sure it equals to the value of the
whole estate.

13, 846.16 + 9, 230.77 + 6,

923.07 = 30, 000.
6. If you want to get the inheritance
of each right away, multiply the
ratio in (iii ) by the value of the
estate.

For A: 6/13 x 30, 000 = 13,

846.16

For B: 4/13 x 30, 000 = 9, 230.77

For C: 3/13 x 30, 000 = 6, 923.07

7. If the testator has instituted as heirs, X, Y and

Z and he gives X ½, to Y 1/3 and Z another 1/3
and the estate or the available free portion
amounts to 12, 000, then in that case, X should
get 6, 000, Y 4, 000 and Z 4, 000 which will
total 14, 000 or more than the estate available.
The excess is 2, 000. This shall be divided
proportionally among the heirs. Thus, since X
gets ½ or 3/6, Y 1/3 or 2/6 and Z another 1/3
or 2/6, the proportion is 3:2:2. Therefore, X’s
share in the 2, 000 shall be 3/7, Y’s share will
be 2/7 and Z’s share will also be 2/7 or x will
get 857.14 2/7, Y will get 571.42 6/7 and Z
571.42 6/7. These amounts shall be deducted
from that which they ought to receive.

What is preterition and its effects?

Preterition or omission of one, some or all of the

compulsory heirs in the direct line, whether living at the time
of the execution of the will or born after the death of the
testator, shall annul the institution of heir. Devises and
 87

legacies are valid insofar as they are not inoficious. (Article

854)

What are the three kinds of preterition?

1. Preterition or omission of a compulsory heir in the

direct line covered by Article 854;
2. Preterition or omission of a property, objects or
securities in the project of partition covered by
Article 1103;
3. Preterition or omission of an heir in the project of
partition submitted to the court for approval
covered by article 1104.

What are the requisites of preterition?

1. The heir omitted must be a compulsory heir in the

direct line (legitimate, illegitimate and adopted
children included)
2. The omission from the inheritance must be total and
complete in character;
3. The compulsory heir omitted should survive the
testator, or there is a right of representation.

 The law considers as preterition the

omission of a compulsory heir in the direct
line, whether living at the time of the
execution of the will or born after the death
of the testator. Also evidently included are
those born after the execution of the will
and before the death of the testator so long
as they are alive at the time of the death of
the testator. However, should the
compulsory heir predecease the testator,
“the institution shall be effectual’ i.e., it is
the same as if there had been no
preterition. But if the preterited heir has
legitimate children and descendants who
have preferential right of succession by
right of representation (Article 970), the
institution will be annulled, just the same
i.e., preterition will still result
notwithstanding that the preterited heir died
before the testator.

Should the compulsory heirs omitted,

however predecease the testator, there is
 88

no preterition unless there is a right of

representation in which case preterition will
still result notwithstanding the predecease
of said compulsory heir.

Where is there no omission:

1. If the heir in question is instituted in the will but the

portion given to him by the will is less than his
legitime inasmuch as the heir received something
from the inheritance. The heir’s remedy is not found
on Article 854 but in Articles 906 and 907 for the
completion of their legitime.

2. If the heir is given a legacy or devise. Should the

value of the legacy or devise be less than the
recipient’s legitime, his remedy is for completion of
his legitime under Articles 906 and 907.

3. If the heir had received a donation inter vivos from

the testator – the donation inter vivos is treated as
an advance on the legitime under Articles 906, 909,
910 and 1062.

4. If the heir is not mentioned in the will nor was a

recipient of a donation inter vivos from the testator,
but not all of the estate is disposed of by will. The
omitted heir in this instance would receive something
by intestacy, from the portion not disposed of by will.
The right of the heir, should the vacant portion be
less than his legitime, will simply to demand
completion of his legitime under Article 906 and 907.

NOTE: For there to be preterition, there, the heir in

question must have received nothing from the testator by
way of:

a. Testamentary succession,
b. Legacy or devise,
c. Donation inter vivos, or propter nuptials,
d. Intestacy.

Preterition means total omission in the inheritance.

Summarizing therefore, total omission means that

the omitted compulsory heir receives nothing under the will,
whether as heir, legatee or devisee, has received nothing by
 89

way of donation intervivos or propter nuptials, and will

receive nothing by way of intestate succession.

What are the effects of preterition?

1. The institution of heirs is annulled, that is, by force

or operation of law;
2. The devises and legacies shall be valid, unless
inofficious; this simply means they are reducible to
preserve the affected legitimes;
3. If the compulsory heirs would predecease the
testator, the institution of heir shall be effectual, but
the omitted heir would be represented by his heirs,
when representation is proper.

Other effects:

1. If the omitted heir is not in the direct line (like a

spouse), only his legitime is given to him and the
institution of heir is annulled up to that extent only.
2. As intestacy results, the previous appointment of the
executor is rendered moot and academic. The
appointment of an administrator becomes necessary.

Who are included within the term of the

article?

1. Compulsory heirs in the direct line – covers children

or descendants, and in proper cases, in default of
children or descendants, parents or ascendants;
2. Illegitimate descendants or ascendants;
3. Quasi-posthumos children.

 There is a flaw in the wording of the Article.

The phrase “whether living at the time of
the execution of the will or born after the
death of the testator” does not, by its
terms, include those compulsory heirs in the
direct line born after the execution of the
will but before the testator’s death (los
cuasi postumos) Such children are, without
doubt, to be included within the purview of
the protection of this Article. This gap is
merely the result of careless drafting
(according to Manresa)

4. Adopted children.
 90

How do you distinguish preterition from

disinheritance?

i. Preterition may be intentional but

is presumed to be involuntary,
while disinheritance is always
voluntary.

ii. In preterition, the law presumes

that there has been merely some
mistakes or oversight, while in
disinheritance, there is some legal
cause or reason.

iii. In preterition, the nullity of the

institution is total resulting in
intestacy, saving devises and
legacies, while in disinheritance,
the nullity is partial, i.e. not only
insofar as it may prejudice the heir
disinherited.

iv. In preterition, the omitted

compulsory heir gets his share
from the entire estate, i.e. not only
his share of the legitime but also of
the free portion not disposed of by
way of devises and legacies, while
in disinheritance, if valid, the
compulsory heir is excluded from
the inheritance and if defective, the
compulsory heir is merely restored
to his legitime, and testamentary
dispositions which are inofficious
reduced.

v. In pretertion, a compulsory heir in

the direct line is omitted, while in
disinheritance, any compulsory heir
may be disinherited though not in
the direct line.

 The express deprivation of

the legitime constitutes
disinheritance. The tacit
deprivation of the same is
 91

called preterition. This is

not to say however, that
disinheritance and
preterition are the same.
Disinheritance consists
precisely in the
deprivation of a
compulsory heir of his
legitime by virtue of a just
cause provided for by law,
and since disinheritance is
always express, it is
always voluntary.
Preterition, on the other
hand, is the omission of
an heir in the will.
Consequently, preterition
may also be voluntary but
the law presumes that it is
voluntary

Application:

1. In his will, X stated: “I instituted my 2 children

A and B as my sole heirs to my entire estate,
and to C, my other child, I give nothing. Is
there preterition here?

There is disinheritance (Article 918), not

preterition. Here X makes it known that he really had
no intention to give any part of his estate to C. If the
disinheritance is improper, C can still get his legitime.
The institution of A and B remains valid.

2. X institutes his sons A and B, and a friend C.

His 3rd son D was omitted. If the entire estate is
90, 000.00, how should his estate be
distributed?

Since the institution is annulled, it is as if

there was no institution, hence, intestate succession
takes place. A, B and D will get 90, 000. C, the
friend gets nothing.

3. X had 2 sons, A and B. In X’s will, he gave C a

friend a legacy of 10, 000 out of an estate of
100, 000. A and B were omitted. How should
the estate on X’s death be distributed?
 92

Since the estate is worth 100, 000, the free

portion is 50, 000. Therefore, the legacy of 10, 000
is not inofficious and should remain effective. The
remaining 90, 000 should be divided equally
between the 2 estate.

4. X had 2 legitimate sons A and B. In X’s will, he

gave a friend C a legacy of 10, 000. He also
instituted A as heir and deliberately omitted B.
If the estate is 100, 000, how should the estate
be distributed on X’s death?

In view of the preterition, the institution of

A is not valid, but the legacy is effective for the
legitime has not been impaired. Therefore, the
remaining 90, 000 shall be divided intestate between
A and B.

5. In the problem above, suppose the legacy is

60, 000, how would the estate be distributed?

The estate being 100, 000, the free portion

is only 50, 000, hence, the legacy of 60, 000 is
inofficious and should be reduced by 10, 000, leaving
A and B 25, 000 each.

6. X instituted Y a friend as heir to an estate of

100, 000. Y dies ahead of X but leaves a son Z.
Upon X’s death, will Z get anything?

No, because Y the father was a voluntary

heir who predeceased the testator. The estate should
therefore go to the intestate heirs of X.

7. T has three legitimate children, X, Y and Z. He

institutes in his will X, Y and his cousin C. The
estate is 150, 000.

The institution is totally annulled. There is

total intestacy. Thus, X, Y and Z will get 50, 000
each and C gets nothing

8. In the same example, T gives instead to C a

devise of real property worth 30, 000.

The remaining 120, 000 of the estate shall

be distributed 40, 000 each to X, Y and Z.
 93

9. In the preceding example, the legacy given to C

is 100, 000.

The legacy is inofficious by 25, 000. The

estate shall be distributed be distributed as follows:
75, 000 to C, 25, 000 equally X, Y and Z.

10. Suppose, in the first example, Z is given 15,

000.

Z will be entitled to his full legitime of 25,

000 (he gets additional 10, 000). The balance of
125, 000 shall be distributed equally between X, y
and z.

11. Same, but T gives to C his cousin 50, 000, X and

Y 100, 000 to be divided equally between them,
out of his entire estate of 150, 000.

There is no preterition. Z is entitled only to

get his share of the legitime of 25, 000. C will get
the 50, 000 as it is not inofficious and the remainder
of 75, 000 shall be divided equally between X and Y.
The presumption is that T wants Z to receive only his
share of the legitime.

12. Suppose in the first example, Z is the wife of T.

Is there preterition?

There is no preterition because Z is not a

compulsory heir in the direct line. Z shall be merely
restored to her legitime to be taken from the free
portion. Under Article 892 (par, 2), it shall be equal
to the legitime of each pf X and Y. The legitme of X
and Y is ½ of the hereditary estate or 75, 000 (Art.
888, [par. 1]. They get 37, 500 each. So, Z also gets
37, 500. The remainder shall go to C.

Can there be preterition of an adopted child?

Yes, because an adopted child has the same rights as
a legitimate child. (Acain vs. IAC, Oct. 27, 1987)

X objected to the will of Y, his son, on the

ground that (a) He has not been instituted, he being
the only heir of his son; and (b) That even if he is
instituted, his share is less than Z, his wife, as the free
portion was left to Z.
 94

Rule on X’s objections.

a. His objection is proper if the parents of Y

are the only nearest relatives, Y having no
issues. (Nuguid vs. Nuguid, 17 SCRA 449).
There is preterition if the parents, who are
the only closest relatives of the decedent
are not instituted, because while the law
mentions of “direct line”, it does not make a
distinction, whether ascending or
descending.

b. The will is still valid even if the share of one

of the heirs is less than the other. Variation
in the shares of the heirs is normal and is
the essence of the law. (Heirs of Montinola-
Samson vs. CA, G.R. No. 76648, Feb. 26,
1988)

If a sister of the decedent is not instituted, can

she oppose the probate of the will on the ground of
preterition?

No, because a sister is not a compulsory heir in the

direct line. She is a relative in the collateral line. (Article 854;
Ventura vs. Ventura, April 27, 1988)

X, the daughter-in-law of A, opposed the will of

the latter contending that X was not instituted as an
heir, hence, there is preterition. Is X’s contention
correct? Why?

No. Preterition of a daughter-in-law does not annul

the institution of heirs because she is not a compulsory heir in
the direct line of her mother-in-law. (Rosales vs. Rosales,
Feb. 27, 1987)

During the lifetime of A, he executed a last will

and testament instituting his parents X and Y. At the
probate of the will, B, an illegitimate son of A, opposed
on the ground of preterition. Will the contention of B
prosper?

Yes, because there was preterition of a compulsory

heir in the direct descending line. The law does not make a
distinction whether the heir is legitimate or illegitimate.
 95

Suppose that it is the husband or the wife who

is omitted in the testator’s will, would there be a
preterition, which would have the effect of annulling
the institution of heirs?

No, because a husband or wife is not a compulsory

heir in the direct line. However, such husband or wife would
still be entitled to his or her legitime, in other words, there
would be an annulment of the institution of heirs but only to
the extent that the legitime of such husband or wife is
prejudiced.

Is there any difference as to effect between the

omission of a forced heir by mistake or inadvertence
and voluntary or intentional omission?

Yes, in Acain vs. IAC, G.R. No. 72706, Oct. 27, 1987,
it was held that if preterition is by mistake or inadvertence,
there is true preterition and total intestacy results. The
reason for this is the inability to determine how the testator
would have distributed his estate if none of the heirs had
been omitted or forgotten.
If the omission is intentional, the effect would be a
defective disinheritance covered by Article 918, in which case
the institution of heirs is not wholly void but only insofar as it
prejudices the legitime of the person disinherited. The nullity
is partial unlike in true preterition where the nullity is total.
Preterition is presumed to be only an involuntary
omission; that if the testator had known of the existence of
the compulsory heir at the time of the execution of the will,
he would have instituted such heir. On the other hand, if the
testator attempts to disinherit a compulsory heir, the
presumption of the law is that he wants such heir to receive
as little as possible from the estate.

What is the right of the preterited heir or heirs?

They are entitled not only to their shares of the

legitime but also to those of the free portion which was not
expressly disposed of by the testator by way of devise and
legacies, unlike in the case of improper disinheritance or
incomplete legitime wherein their right is limited to the
completion of their legitime.

If the omitted heir is not in the direct line, the

institution of heir is annulled only to the extent that it impairs
the legitime. This is not true preterition.
 96

If an heir was omitted, from where will his

share be taken?

i. The estate not disposed of by will;

or
ii. Proportionately from the shares of
the other compulsory heirs, if the
first is not enough. (Art. 855)

Outline of the rules under Article 856:

Kind of Predecease Incapacity Renunciation Disinheritanc

heir e
Compulsor Transmits Transmits Transmits Transmits
y nothing nothing nothing nothing
Representatio Representatio No Representatio
n n representatio n
n
Voluntary Transmits Transmits Transmits Not
nothing nothing nothing applicable
No No No
representation representation representatio
n
Legal Transmits Transmits Transmits Not
nothing nothing nothing applicable
Representatio Representatio No
n n representatio
n

Application:

1. A and B are legitimate children of X. C is a

legitimate child of A. The estate is worth 100,
000. A and B were instituted heirs.

i. If A dies before X, how much will C and B get?

A was a compulsory heir to the legitime of 25,

000. Therefore, C will get only 25, 000 in representation of
A. The remaining 75, 000 will all go to B.

ii. If A is incapacitated?

The same answer as (i).

iii. If A renounces the inheritance?

 97

C gets nothing since a person who renounces an

inheritance cannot be represented. Therefore, everything
goes to B.

2. T has two legitimate children, X and Y. X has a

child C. Y is childless. T institutes X, Y and F (a
friend) as heirs and gives a legacy of 10, 000 to
L. The value of the estate is 100, 000.

a. X predeceases T – Since X is a compulsory

heir instituted in a will, he can be
represented with respect to the legitime
only. As to the free portion, he is a
voluntary heir. Hence C gets only 25, 000. Y
and F get the undisposed portion of 65, 000
equally. L will get the 10, 000. In testate
succession, the right of representation
pertains only to the legitime.

If T dies without a will, and X and Y

are the sole heirs, c will get 50, 000 by right
of representation of x. In intestate
succession, the right of representation
covers the whole share of the person
represented.

b. Y predeceases T – X and F get 90, 000

equally, L gets 10, 000

c. F predecease T – Since he is a voluntary

heir, he cannot be represented. He
transmits absolutely nothing to his heirs. X
and Y get 90, 000 equally, L will get 10,
000. In testate succession, only compulsory
heirs may be represented.

d. L predeceases T – Since he, as legatee, is

not a compulsory heir, he cannot also be
represented. X, Y and F get the entire
inheritance equally.

e. If Y renounces the inheritance, how much

would C get?

C will get nothing.

Notes:
 98

 When there is right of representation, the

representative inherits directly, not from the person
represented (the one who predeceases, becomes
incapacitated, or has been disinherited), but from
the one whom the person represented would have
succeed, i.e., the testator or decedent whose estate
is inherited.

 In the case of representation, the heir represented

does not transmit his rights to the heir representing
him; the representative acquires directly from the
decedent or testator the rights which the person
represented would have received if he had inherited.
Article 971 provides: “The representative does not
succeed the person represented but the one whom
the person represented would have succeed.

 As Mr. Justice J.B.L. Reyes says, “The code in fact

recognizes no exceptions to this rule. The right of
representation does not constitute an exception,
because the one representing does not acquire the
inheritance from the one represented. This is
expressly recognized by Article 971. Hence the
representation does not imply that the one
represented acquires and transmits rights to his
representative.”

 Thus, the phrase “except in cases expressly provided

for in this Code” in the second paragraph of Art. 856
does not really provide exceptions to the three
situations mentioned in the said Article. It is still true
that the heir or person transmits nothing to heirs
having acquired none.

 There is only representation with regard to the

legitime because the compulsory heir is only one
with regard to the legitime and is a voluntary heir
with regard to the free portion. The right of
representation exists only in case of predecease,
incapacity and disinheritance but does not exist in
repudiation. Therefore, if the heir is voluntary and he
predeceases or repudiates or is incapacitated to
succeed, he transmits nothing to the heirs absolutely
because there is no right of representation as to the
voluntary heir. In the case of the compulsory heir he
transmits no rights to his heirs in case of
 99

predecease, incapacity, repudiation or disinheritance

without prejudice to the right of representation
which, however, may exist only in case of
predecease, incapacity or disinheritance but never
when there is repudiation.

 Note that a compulsory heir in the ascending line

cannot be represented (Article 977). In the collateral
line, it takes place only in favor of nephews and
nieces of the deceased when they survive with
brothers and sisters of said decedent.

 An heir, even though a compulsory one, who has

repudiated his share of the inheritance may not be
represented. (Art. 977) because one who validly
renounces an inheritance is deemed never to have
received the same (Art. 533, par. 2). The rule is
absolute. But a person may represent him whose
inheritance he has renounced. (Art. 976) Thus a son
who renounced the inheritance from his father may
represent the father in the inheritance from the
latter’s father.

 Thus, in testate succession, the right of

representation covers only the legitime. In intestate
succession, it covers the entire share of the person
represented. The whole inheritance would descend
by the rules of intestate succession.

SECTION 2. - SUBSTITUTION OF HEIRS

Define substitution of heirs.

Substitution is the appointment of another heir so

that he may enter into the inheritance in default of the heir
originally instituted.

What rules on institution of heir are made

applicable in substitution?

Since substitution is merely a second institution, the

principles and rules on institution of heir are applicable to
substitution, except in so far as they may be modified by the
express provisions on substitution. Thus –
 100

a. The substitution can affect only that portion

of the inheritance for which institution can
be made; namely, the free portion where
there are compulsory heirs and the entire
estate when there are none.
b. The manner in which the testator should
designate and identify the substitute is
governed by the pertinent rules on
institution (Articles 843 to 845)
c. If two or more persons are substituted for
another, their shares are to be determined
by the same rules which apply to the
institution of several heirs (Articles 846 to
849, and 851 to 853).
d. A substitute who dies before the testator, or
who is incapacitated to succeed, or who
repudiates the inheritance, does not
transmit rights to his own heirs (Article
856).

What property of the testator may be the

subject of substitution?

Substitution can never refer to the legitime because

the law prohibits the testator from imposing any burden,
encumbrance, condition or substitution of any kind
whatsoever on the legitime. Therefore, substitution may refer
only to the free portion.

Can there be substitution in devises and

legacies?

There can be substitution in devises and legacies

because there is no prohibition in our law regarding
substitution and it may be justified under the principle of
disposition of the testator.

How is substitution distinguished from

accretion?

Accretion is a right by virtue of which when two or

more persons are called to the same inheritance, devise or
legacy, the part assigned to the one who renounces or cannot
receive his share, or who died before the testator, is added or
incorporated to that of his co-heirs, co-devisees, or co-
legatees. As in substitution, therefore, a vacant portion of the
inheritance goes to another heir.
 101

In case of conflicting claims between a substitute

and an heir entitled to accretion, the former should be
preferred, because his right from the express will of the
testator while that of the latter is derived only from a will
presumed by law.

What are the purposes of substitution?

1. To prevent the property from falling into the

ownership of people not desired by the testator;
2. To prevent the effects of intestate succession;
3. To allow the testator greater freedom to help or
reward those who by reason of services rendered to
the testator, are more worthy of his affection and
deserving of his bounty than intestate heirs.
4. It is designed for the prosperity and heritage of the
family.

What is the nature or character of substitution?

1. Substitution obtains only in testate succession,

hence, there is no substitution in intestate
succession;
2. It is a consequence of the principle of freedom of
disposition, which is recognized in favor of the
testator;
3. it is nothing more than a subsidiary or secondary
institution of a second or subsequent heir, hence,
Section 2 on Institution of Heir also applies
except insofar as its provisions ma be modified
by those on substitution;
4. It is really a conditional institution, involving as it
does a suspensive conditional for the substitute
heir, hence the provisions on conditional
substitution are also suppletorily applicable;
5. It may refer only to the free portion because the
law prohibits the testator from imposing any
burden, encumbrance, condition, or substitution
of any kind whatsoever on the legitime (Article
872, 904); and
6. It has preference, after institution of heir, over
right of representation, right of accretion and
intestacy.

What is the order of priority in case of

institution, substitution, representation, accretion and
intestacy?
 102

1. Institution – if there is a valid and effective

institution of heirs, the institution shall be followed (Article
840). The instituted heirs shall inherit even if there is a
provision for substitution.
2. Substitution – If there is a provision for substitution,
the substitute/s will inherit if the instituted heir/s become
incapacitated, or repudiated the inheritance or predeceased
the decedent and there are no available representatives.
Substitution is conditional institution.
3. Representation – If there is no provision for
substitution, the instituted heir/s who could not inherit will be
represented by their descendant/s or representative/s if
representation is proper and applicable (Article 970).
However, a repudiating heir cannot be represented (Article
977)
4. Accretion – If the instituted heir predeceased the
decedent, or was incapacitated and representation is not
proper and applicable, or if he repudiated the inheritance, his
share which becomes a vacant portion of the inheritance shall
be inherited by his co-heirs, co-devisees or co-legatees by
accretion (Article 1015).
5. Intestacy – If institution, substitution, representation
and accretion all failed, intestacy will set in. The estate will be
divided in accordance with the rules on intestacy (Article 960
to 1014).

What are the kinds of substitution of heirs?

1. Simple or common (vulgar);

Where the testator designates one or more persons

to substitute the heir or heirs instituted in case of (1)
predecease; (2) renunciation or repudiation; and (3)
incapacity.

2. Brief or compendious (brevilocua / compendiosa);

Where two or more persons are substituted for one

(brief substitution), and one person for two or more heirs
(compendious substitution)

3. Reciprocal (reciproca)

Where the instituted heirs are also made the substitute of

each other.

4. Fideicommissary (fideicommisaria).
 103

Where the testator institutes a first heir, and charges

him to preserve and transmit the whole or part of the
inheritance later on to a second heir.

Note: In reality, there are only two kinds of

substitution: the simple and the fideicommissary. These two
are mutually exclusive, i.e., a substitution must be one or the
other, and cannot be both at the same time.

The other two enumerated – the brief or

compendious and the reciprocal are mere variations of either
the simple of fideicommissary.

What are the causes of simple substitution?

a. Predecease of the first heir

b. Renunciation of the first heir;
c. Incapacity of the first heir.

How may the testator provide for simple

substitution with all three causes?

a. By specifying all the three causes;

b. By merely providing for a substitution.

How may restricted simple substitution be

made?

By specifying only one or two of the three causes.

X instituted A and B as substitute. X did not

state the causes for which the substitution may be
made. What should these causes be?

All or any of the three cases, unless X has provided

otherwise.

If the second heir (or the substitute) enters

into the inheritance, does he do so because he
succeeds from the first heir?

No. The second heir succeeds from the testator and

not from the first heir.

Note: It may happen that the heir for whom a

substitute is appointed is a compulsory heir of the testator. In
such case, the substitution cannot affect the legitime,
 104

because the law prohibits the testator from imposing any

charges, conditions, or limitations upon that part of his
inheritance. Besides, the power to appoint a substitute
emanates only from the freedom to dispose by will; since the
legitime is not subject to the free disposal of the testator,
there is nothing to justify his right to order vulgar substitution
as to such part.

What are the instances when the substitution is

extinguished?

a. When the substitute predeceases the

testator;
b. When the substituted is incapacitated;
c. When the substitute renounces the
inheritance;
d. When the institution of heir is annulled by
preterition;
e. When the institution or the substitution is
revoked by the testator;
f. When the will is void or disallowed or
revoked.

In case of simple or vulgar substitution, the same is

extinguished:

a) By the nullity of the will;

b) By the annulment of the institution of
heir;
c) By the death of the substitute before
the testator;
d) When the substitute himself is
incapacitated to succeed the testator,
and
e) When the substitute repudiates or
renounces the inheritance.

If the substitution is conditioned

upon the renunciation of the inheritance by
the first heir, the substitution is
extinguished by the death of the substitute
before the repudiation by the instituted heir.
Such substitution is essentially a conditional
institution of the second heir. Therefore, the
second heir must have the capacity at the
time the condition (renunciation by first
heir) happens. To have capacity, the second
heir must be living at that time (Article
 105

1025); hence, if he had died prior to the

happening of the condition, or the
renunciation, he cannot succeed because of
want of capacity. The capacity must be
determined, not only at the time of the
testator’s death but also when the condition
happens (Article 1034, par. 3).

X made a will instituting A as heir, and B as

substitute. In 1995, B died, leaving C, his child. In
2000, X died but B is incapacitated to inherit. Can C
inherit from X?

No, because B is a voluntary heir and since he

predeceased the testator, he transmits nothing to his own
heirs.

X made a will instituting B as heir, and B as

substitute. X died in 2000. B renounced the inheritance
in 2001. B died in 2002. Can C, the child of B inherit
from X’s estate?

Yes, because this is not a case of predecease on the

part of B, who after all survived the testator, and immediately
inherited from X, subject to the condition of B’s non-
inheritance. Since the condition was fulfilled, B inherited. C
gets the estate not as an heir of X but as an heir of B.

X institutes A to 120, 000, B to 20, 000, and C

to 40, 000. The estate is 180, 000. A made the
substitute of B or C; B and C are substitutes of A. A
predeceased B and C. How much will B and C get?

B gets 60, 000. (20, 000 by institution, 40, 000 by

substitution)
C gets 120, 000. (40, 000 by institution, 80, 000 by
substitution)

X makes the following provisions in his will: “I

institute A and B to 1/3 of my estate and nominate C as
their substitute.” If A predeceases B, will the 1/3
portion go to C?

No, the 1/3 portion goes to B. There is no

substitution by C. Substitution occurs only of both A and B
are disqualified. (The obvious exception to this is a case
where the testator provides for substitution in the event of
 106

the death (or renunciation or incapacity) of any one of the

original heirs.)

Note: If one is substituted for two or more original

heirs - effect of default of one but not all of the original heirs:
substitution will not take place; the share left vacant will
accrue to the surviving co-heir or co-heirs. Substitution will
take place only if all the original heirs are disqualified.

A, B and C are instituted, respectively, to ½,

1/3 and 1/6 of the estate. Should A predecease the
testator, how much would B and C get?

B and C will acquire A’s ½ portion in the proportion

of 2:1 (since their testamentary shares are 1/3 and 1/6).

Should B predecease, how much would A and C

get?

A and C will get B’s 1/3 portion in the proportion of

3:1 (corresponding to the testamentary shares of ½ and 1/6).

Should C predecease, How much would A and B

get?

A and B will share C’s 1/6 portion in the proportion of

3:2, by the same logic.

Note: If heirs instituted in unequal shares should be

reciprocally substituted shall acquire the share of the heir who
dies, renounces, or is incapacitated, unless it clearly appears
that the intention of the testator was otherwise. If there are
more than one substitute, they shall have the same share in
the substitution as in the institution.

“I institute A, B and C to 1/3 of my estate and

in case they all die before me, I institute D by way of
simple substitution.” If A and B predeceases the
testator, will D get any share?

No, the substitution will take effect only upon the

death of all the three. However, if what was stated was “any
or … all die before me”, then D will get A and B’s share.

“I institute A to 1/3, B to 1/6, and C to ½ of

my estate and by way of simple substitution, I institute
them as substitutes of one another.” If C predeceases
 107

the testator, how will his share be divided if the estate

is worth 60, 000?

A = 1/3 = 20, 000

B = 1/6 = 10, 000
C = ½ = 30, 000

a. Get the LCD of the remaining heirs : 6

A = 2/6
B = 1/6

b. Get the ratio between the remaining heirs

and the sum of the ratios:

2:1 = 3
A = 2/3
B = 1/3

c. Multiply the original share of C by the ratio

in (b)

A = 2/3 x ½ = 2/6
B = 1/3 x ½ =1/6

d. Add the result in (c) to their original shares

A = 2/6 + 2/6 = 4/6

B = 1/6 + 1/6 = 2/6

e. Multiply the result in (d) by the value of the

estate

A = 4/6 x 60, 000 = 40, 000

B = 2/6 x 60, 000 = 20, 000

Article 866 provides that “the second heir shall

acquire a right to the succession from the time of the
testator’s death, even though he should die before the
fiduciary. The right of the second heir shall pass to his
heir.” Is it possible that the second heir has no heirs?

That the second heir has no heirs is impossible. His

heirs are: descendants, ascendants, and collateral relatives to
the fifth degree, then the state.

What is the effect of the charges and conditions

imposed on the substitution?
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General rule: If the substitute inherits, he must fulfill

the conditions imposed on the original heir.

Exceptions:

1. If the testator has expressly provided the contrary

(which must appear in the will);
2. If the charges or conditions are personally applicable
only to the heir instituted.

Distinguish between a fideicommissary

substitution from a simple substitution.

While in the simple substitution, only one of the heirs

inherits, in the fideicommissary, both inherit the property or
right simultaneously, although the enjoyment and possession
are successive.

What are the requisites of the fideicommissary

substitution?

a. There must be a first heir called primarily to

the enjoyment of the property
b. There must be an obligation clearly imposed
upon him to preserve and transmit to a
third person the whole or part of the
inheritance;
c. There must be a second heir;
d. The first and second heirs must be only one
degree apart;
e. Both heirs must be alive or at least
conceived at the time of the testator’s
death;
f. It must be made in an express manner;
g. It must not burden the legitime (it must be
imposed on the free portion only); and
h. It must not be conditional.

What does the requirement “one degree”

mean?

There is no question that only one transmission is

allowed in fideicomisoria, from the first heir to the second
heir. But, on top of that, does the term “one degree” mean
that the second heir must be in the first degree of relationship
with the first heir, as the word “degree” is used in Article 963,
 109

964 and 966? In other words, must the second heir be either
a child or a parent of the first heir?

Yes, ruled the Supreme Court in Palacios vs.

Ramirez, 111 SCRA 704.

Manresa, Morell and Sanchez Roman construe the

word “degree” as generation, and the present Code has
obviously followed this interpretation, by proving that the
substitution shall not go beyond one degree ‘from the heir
originally instituted.’ The Code thus clearly indicates that the
second heir must be related to and be one generation from
the first heir.

From this, it follows that the fideicommissary can

only be either a child or a parent of the first heir. These are
the only relatives who are one generation or degree from the
fiduciary.

What is the tenure of fiduciary?

Primary rule – the period indicated by the testator

Secondary rule – if the testator did not indicate a
period, then the fiduciary’s lifetime.

What does the requisite “that both heirs must

be living and qualified to succeed at the time of the
testator’s death” mean?

Living – this requisite is defined in Articles 40-41

Qualified – Articles 1024-1034

This two-fold requirement is to be met only upon the

testator’s death, and this applies not only to the fiduciary but
to the second heir as well. Thus, the second heir need not
survive the first heir; the second heir’s own heirs merely take
his place.

What is the nature of the rights of the fiduciary

heir and the fideicommissary substitute with respect to
the property which is the subject matter of the
substitution?

Upon the death of the testator or fideicomitente, the

fiduciary heir acquires all the rights of a usufructuary until the
moment of delivery to the fideicommissary substitute. In
other words, pending the transmission or delivery, he shall
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possess the beneficial ownership of the property, although the

naked ownership is vested in the fideicommissary substitute.

What are the obligations of the fiduciary heir?

1. Preservation of the property. Corollary to this

obligation is the obligation to make an inventory of
the property. Because of this obligation to preserve,
he cannot alienate the property itself, although he
may alienate his right to the property;
2. Transmission of the property to the fideicommissary
substitute. The time of transmission shall depend on
the will of the testator. If the time is not designated,
then the transmission shall take place upon the
death of the fiduciary heir.

Is a fiduciary bound to furnish a bond?

A fiduciary, being considered in the same situation as

a usufructuary, is not bound to furnish a bond.

In a fideicommissary substitution, no period

was fixed by the testator as when the property shall be
transmitted to the second heir. What rule shall apply?

In the absence of a period fixed by the testator, the

inheritance is supposed to be delivered at the death of the
first heir.

X devised a land to A. He provided in the will

that A would enjoy the land as long as A lived, bit after
his death, the same should go to B. Is there a
fideicommissary substitution here?

No, because there was no obligation to preserve.

X instituted A as the first heir, and B (A’s

brother), as second heir in a fideicommissary
substitution. When X dies, A got the property. Will B
now get the property?

No, because the fideicommissary substitution was

not valid, B, being a relative of the second degree of A.
Consequently, A’s heirs get the property.

X instituted A as first heir, B (A’s son) as

second heir; and C (B’s mother) as third heir in a
fideicommissary substitution. Is this valid?
 111

It is valid insofar as A will get and then B. But on

death’s, C does not get the property as a result of the
fideicommissary substitution because C is not one degree
apart for A.

X instituted a as first heir, A’s third child as

second heir. If A does not still have a child at the time
X dies, can the fideicommissary substitution be given
effect?

No, for the second heir was not yet living or

conceived at the testator’s death. This is so even if at the
time A dies, the third child already exists.

X institutes A as first heir, B as second heir. B

dies in 2000; X dies in 2001. In 2002, does A inherit?

Yes, for while the substitution is not valid, the

institution remains valid.

How much should be delivered to the second

heir?

1. The general rule is that the fiduciary should deliver

the property intact and undiminished to the
fideicommissary heir upon the arrival of the period.

2. The only deductions allowed, in the absence of a

contrary provision in the will are:

1. Legitimate expenses – like

necessary repairs for the
preservation of the
property
2. Legitimate credits;
3. Legitimate improvements
– necessary and useful
improvements

What is the rule on damage or deterioration?

1. If caused by a fortuitous event or ordinary wear and

tear – fiduciary not liable.
2. If caused by fiduciary’s fault or negligence – fiduciary
liable.
 112

X instituted A as first heir, and B as second

heir. X died in 2000. B died in 2001, leaving a son C. On
A’s death, will C get the property?

Yes. On X’s death in 2000, A got the property and on

A’s death, same should go to the heirs of B. B really had
already inherited from X since he acquired the right from X’s
death; and his right goes to C, his heir, even if B predeceased
the fiduciary A. Had B predeceased X, B would never have
acquired any right to the property and would not be able to
transmit same to his own heir.

What provisions shall not take effect?

1. Fideicommissary substitutions which are not made in

an express manner, either by giving them this name,
or imposing upon the fiduciary the absolute
obligation to deliver the property to a second heir.

[Note that the lack of this element does not,

by the fact alone, nullify the institution. It only
means that the institution is not a fideicomisaria. It
could; however be something else, as was the case
in PCIB v. Escolin]

2. Provisions which contain a perpetual prohibition to

alienate, and even a temporary one, beyond the limit
fixed in Article 863.

[If there is fideicomisaria, the limit is the

first heir’s lifetime. If there is no fideicomisaria, the
limit is 20 years.]

3. Those which impose upon the heir the charge of

paying to various persons successively, beyond the
limit fixed in Article 863, a certain income or pension

[Conformably to the limits set in Article 863,

there can only be two beneficiaries of the pension,
one after the other, and the second must be one
degree from the first. There is no prohibition,
however, on simultaneous beneficiaries.]

4. Those, which leave to a person the whole or part of,

the hereditary property in order that he may apply or
invest the same according to secret instructions
communicated to him by the testator.
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[The ostensible heir is in reality only a

dummy, because in reality, the person intended to be
benefited is the one to whom the secret instructions
refer.]

If the testator imposes a longer period than 20

years, is the prohibition valid?

Yes, but only for 20 years.

If there is a fideicommissary substitution, can

the testator impose a period longer than 20 years?

Yes, because the limitation will not apply. Rather,

Article 863 will apply, which allows, as a period, the lifetime of
the first heir.

X devised a land to A and prohibited him never

to sell the property. Is the prohibition valid?

Strictly speaking, the prohibition is of no effect, but

considering Article 870, the same would be valid, but only for
the first twenty years.

X instituted A as first heir, and B as second heir

in a fideicommissary substitution. X died and A got the
property. If A lives for 50 years more, can A sell the
property?

No, he must preserve the property till his death,

then B takes the property.

X instituted A as first heir, and B as second heir

in a fideicommissary substitution. X ordered A not to
sell the property for 30 years, and after said period to
deliver the property the property to B. Is this a valid
stipulation?

Yes, even if the period exceeds 20 years, for after

all, at the end of the 30 years, A cannot give the property to
anybody except B. Moreover, if the first heir can be prohibited
to alienate as long as he lives in order that the same could be
delivered to the second heir, why not for a period of 30 years?
Of course, even if 30 years have not elapsed yet, if the first
heir has already died, the property should be given to B by
virtue of the fideicommissary substitution.
 114

X instituted A as his only heir but prohibited

him and all who may subsequently inherit form him to
dispose of the property for a period of 20 years. X died.
If A dies 3 years after X, will A’s son B still bound to
respect the temporary prohibition?

Yes, for the next 17 years.

Suppose B died after 10 years more, and the

property is in turn inherited by C who is his son, is C
bound not to alienate for the remaining 7 years?

No more, because although a total of 13 years has

lapsed, still to impose the prohibition for the remaining 7
years on C would be beyond the limits of Article 863, since C
is not a first degree relative of A who originally inherited the
property.

[In case there is no fideicommissary substitution, the

testator can prohibit an heir, and all those who may inherit
from the latter, for a total period of 20 years, provided the
same prohibition will not go beyond the limits imposed by
Article 863 (does not go beyond one degree from the heir
originally instituted)]

X died in 1952 with a will. In the will, he

devised a house and lot to A as fiduciary heirs and to
the latter’s son, C, as fideicommissary substitute,
declaring that said property shall not be alienated for
100 years. A died in 1962. May B now validly alienate
the property?

No. 3 of article 867 provides that provisions which

contain a perpetual prohibition to alienate, and even a
temporary one, beyond the limit fixed in Article 863 shall not
take effect. There are only two limitations stated in Article
863. They are: first that the substitution must not go beyond
one degree from the heir originally instituted; and second,
that both the first heir and the second heir must be living at
the time of the death of the testator. It is evident that in
testamentary dispositions, which contain a perpetual
prohibition to alienate, neither one nor the other can possibly
be violated. He only limitation, which is violated, is that
provided in Article 870. The prohibition to alienate is good for
20 years. Beyond that, it is void. Therefore, in the instant
problem, C must still have to wait for 1972 before he can
validly alienated the property.
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What is the effect of the nullity of the

fideicommissary substitution?

It does not prejudice the validity of the institution of

the heirs first designated; the fideicommissary clause shall
simply be considered as not written.

X instituted A as first heir, and B as second

heir. If B predeceases X, will A still inherit?

Yes, as instituted heir, notwithstanding the invalidity

of the fideicommissary substitution. The clause on
substitution is simply considered as not written.

X in his will gave to A the naked ownership of

his house and B the usufruct over the same. Is this
allowed?

Yes, because the naked ownership of the property is

really distinct and severable from the use of fruits (the
beneficial ownership) thereof.

May the usufruct be given to B and D, a

stranger simultaneously?

Yes, and in such a case, B and C would be co-owners

of the usufruct and of the usufructuary rights.

X disposed of his house in a will giving the

naked ownership of the same to A; and to B and C,
successively, the usufruct. This means that B first gets
the usufruct, and after B dies, the usufruct goes to C. Is
this disposition of the usufruct valid?

Yes, provided that B is a first degree relative of C;

and both B and C are alive at the time X dies.

A was given his legitime in the form of a house

in the will but was prohibited to sell the same within a
period of 10 years. Can A sell the house even before the
expiration of said period?

Yes, the prohibition, even if less than 20 years

cannot be applied to the legitime.

What are the purposes of the prohibition of the

alienation of the estate for more than 20 years?
 116

a. To give more impetus to the socialization of

ownership;
b. To prevent perpetuation of large holdings.

Summary:

1. Prohibition to alienate applies to

voluntary heirs for a period of not
exceeding 20 years. Exception:
Fideicommissary substitution.

2. Prohibition to alienate cannot be

imposed on the legitime. Article
904 provides that “No burden,
encumbrance, condition or
substitution of any kind whatsoever
can be imposed on legitime. The
only condition that can be validly
imposed on a legitime is the
prohibition to partition which shall
not exceed 20 years (Article 1083
in relation to Article 494) which
provides that a donor or testator
may prohibit partition for a period
which shall not exceed 20 years.

3. Substitution as to legitime – It is
not only fideicommissary
substitution that cannot be
established with respect to the
legitimes of compulsory heirs; all
kinds of substitutions are prohibited
in so far as legitimes are
concerned. If the testator provides
for a substitution in relation to a
legitme, the substitution is
considered as not imposed.

SECTION 4

CONDITIONAL TESTAMENTARY DISPOSITIONS

AND TESTAMENTARY DISPOSITIONS WITH A TERM

What are kinds of testamentary dispositions?

 117

1. Conditional dispositions (Articles 873, 874, 875, 876,

883 (par. 2), 879, 880, 881 and 884);
2. Dispositions with a term (Articles 878 and 885); and
3. Dispositions with a mode (modal dispositions)
(Articles 882 and 883 (par. 1).

How are conditions classified?

1. By the form of its establishment into express or tacit

Express conditions are those which are

imposed explicitly; tacit conditions are those which
are not expressly stated but which are understood or
which can be inferred logically and juridically from
the expression of the will of the testator.

2. By its effect into suspensive and resolutory

Suspensive conditions are those which

prevent the effectivity of the right which they affect
until the fulfillment of the condition imposed;
resolutory conditions are those which extinguish on
their fulfillment the right created, which right exists
until then, thereby restoring the things which are the
object of the right.

3. By reason of its fulfillment into potestative, casual or

mixed

Potestative conditions are those which

depend for their fulfillment on the will of the heir or
legatee; casual conditions are those which depend
on chance or an event; and mixed conditions are
those which depend at the same time on the will of
the heir and chance or on the will of the heir and a
third person.

4. By reason of the nature of the fact into positive and

negative

Positive conditions are those which are

fulfilled by giving or doing something and negative
conditions are those which are fulfilled by abstaining
from doing something.

5. By reason of its adaptation to the technical concept

of condition into proper or improper.
 118

Included in the improper conditions are the

following:

i. Impossible conditions – those

which cannot be fulfilled either
because they are contrary to the
laws of nature, to morals or to law.

ii. Ambiguous conditions – which

because of their defective
statement are obscure and
unintelligible.

iii. Captatroy conditions – which are a

species of those contrary to
morals. They impose on the heir
the condition that he should
provide for the testator or a third
person as a condition of being
named as heir.

GENERAL PROVISIONS

What is the general rule on the testamentary

freedom of the testator (Article 871)?

GENERAL RULE: The right of the testator to impose

conditions, terms and modes springs from the testamentary
freedom. If he has the right to dispose of his estate mortis
causa, then he has the right to make the dispositions subject
to a condition, term or mode.

What is the exception to this testamentary

disposition (Article 872)?

EXCEPTION: The legitime passes by strict operation

of law, independently of the testator’s will. This is the logical
consequence of the principle that the testator cannot impose
any charge, condition or substitution whatsoever upon the
legitimes, and should he do so, the same shall be considered
as not written. Therefore, the condition can be imposed only
on the free portion and never on the legitme.

EXCEPTION TO THE EXCEPTION: Article 1083 - The

testator can validly impose a prohibition against the
PARTITION of the legitime (not disposition), for a period not
exceeding 20 years. This is the only prohibition or condition
that can affect or burden the legitme.
 119

CONDITIONS

What are the general rules on imposition of

conditions?

1. The conditions to affect the disposition must

appear in the language of the will and
cannot be presumed. Parol evidence to
prove the existence of oral or other
conditions cannot be allowed. However, if
the condition appears in a document
incorporated by reference into the will, it is
proper to consider said condition.

2. Impossible conditions and those contrary to

law or good morals shall be considered as
not imposed and shall in no manner
prejudice the heir, even if the testator
should provide otherwise (Article 873).

This rule is also applicable in

donations. However, the rule in civil
obligations is different, in that impossible
conditions shall annul the obligation which
depends upon them. This is so because the
condition that is imposed becomes an
integral part of the causa of the obligation
and the elimination of that condition for
being impossible or illegal results in a failure
of cause. On the other hand, testamentary
dispositions and donations are both
gratuitous and liberal; thus, the imposition
of the condition does not displace liberality
as the basis of the grant.

The rule under Article 873

therefore, departs from the general rule in
obligations where the impossibility of the
condition annuls the obligations dependent
on them.

What are the kinds of conditions?

1. Suspensive condition - If an heir is instituted subject

to a suspensive condition, what is acquired is only a
hope or expectancy. It is however a hope or
expectancy that is protected by law. The inheritance
 120

shall be placed under administration until the

condition is fulfilled, or it becomes certain that it
cannot be fulfilled.

2. Resolutory condition - If an heir is instituted subject

to a resolutory condition, he acquires a right to the
inheritance immediately upon the testator’s death.
This right, however, is subject to the threat of
extinction. If the condition is fulfilled or voided, such
right is extinguished.

3. Conditions prohibiting marriage.

The prohibition is against first marriage

when the heir or legatee is single. The prohibition is
against a subsequent marriage when it refers to the
surviving spouse or to one who is a widow or
widower.

What are the rules on conditions prohibiting

marriage?

1. If a first marriage is prohibited – the condition is

always considered as not imposed.
2. If a subsequent marriage is prohibited (remarriage):

a. Absolute prohibition – when the heir or

legatee is forbidden to marry any person at
any time or place or when he or she is
required to remain unmarried or in
widowhood.

Effect: Void as it is contrary to morality and

public policy.

Exceptions:

a) If imposed by the
deceased spouse or by his
ascendants or
descendants – condition is
valid.
b) If imposed by anyone else
– condition is considered
as not written.

b. Relative prohibition (to marry or remarry) –

when it refers only to a particular persons
 121

or group of persons or when it refers only to

a particular period or places.

Effect: Valid, unless it becomes so onerous

or burdensome

What are the rules in order that the absolute

condition not to contract a subsequent marriage be
valid and enforceable?

1. In order, however, that the absolute condition not to

contract a subsequent marriage imposed by the
deceased spouse on the surviving spouse be valid, it
must be expressly stated in the will and the condition
cannot be implied from the context of the will.

2. This absolute prohibition to contract a second

marriage is only applicable to the free portion which
is given to the surviving spouse but cannot apply to
the legitime of the widow or widower because as
regards legitime, the law prohibits any condition
from being imposed upon it.

Are the following conditions valid and

enforceable?

1) Condition to contract marriage -

This condition is valid as there is no

prohibition on the imposition of a condition to marry,
either with reference to a particular person or not.

2) Usufruct or allowance under certain conditions

–

The law allows in the second paragraph of

Article 874 the right of usufruct or an allowance or
some personal prestation to be bequeathed to any
person during the time he or she should remain
unmarried or in widowhood.

3) Relative prohibition, e.g., “Not marry a lawyer”

– valid
4) Condition to renounce a religion – not valid
5) Condition to enter into a religious life – valid
6) Condition to leave priesthood/religious life –
debatable, as the same can be considered not valid
as being contrary to public policy.
 122

Conditions not covered by the prohibition:

The following conditions are not included in

the article and therefore implicitly allowed:

a. The generic condition imposing marriage

b. The specific condition of marrying a
particular person
c. The specific condition of not marrying a
determinate person

 With regard to the conditions imposing

marriage, the same are valid provided that
they are susceptible of performance. But if
they are impossible of performance, they
shall be deemed as an impossible condition
and, therefore, considered as not written.
The heir or legatee will then be deemed
instituted without a condition.

What is scriptura captatoria or disposition

captatoria?

Article 875 provides: “Any disposition made upon the

condition that the heir shall make some provision in his will in
favor of the testator or of any other person shall be void.
Is scriptura captatoria or disposition captatoria
allowed?

Scriptura captatoria (or disposition captatoria) is

prohibited. Note that what is declared void here is not merely
the condition but the testamentary disposition itself which
contains the condition.

What are the reasons why scriptura captatoria

or disposition captatoria is not allowed?

1. The captatoria converts

testamentary grants
into a contractual
transaction;
2. It deprives the heir of
testamentary freedom;
3. It gives the testator the
power to dispose mortis
causa not only for his
 123

property but of his

heirs.

Note: If the favor to be done by the heir will not be

made in a will, both the disposition and the condition should
be considered valid.

What are potestative, casual and mixed

conditions?

1. Potestative condition – one that

depends solely on the will of the
heir
2. Casual condition – one that
depends on the will of a third
person or on chance
3. Mixed – one that depends partly on
the will of the heir and partly on
the will of a third person or chance

State the rules.

A. Potestative (Article 876)

a. Positive:

1. General rule – must be fulfilled as soon as

the heir learns of the testator’s death

2. Exceptions –

a. If the condition was already

complied with at the time the heir
learns of the testator’s death; and

b. If the condition is of such nature

that it cannot be fulfilled again

3. Constructive compliance (Article 883 par 2)

– condition is deemed fulfilled.

b. Negative:

The heir must give security to guarantee

(caucion muciana) the return of the value of the
property, fruits, and interests, in case of
contravention.
B. Casual or mixed (Article 877)
 124

a. General rule – may be fulfilled at any time,

before or after the testator’s death, unless the
testator provides otherwise.

b. Qualifications – if already fulfilled at the time of

the execution of the will:

(1) If the testator was unaware of the fact of fulfillment –

the condition is deemed fulfilled.

(2) If the testator was aware of the fact of fulfillment:

i. If can no longer be fulfilled again –

condition is deemed fulfilled.

ii. If it can be fulfilled again – the condition

must be fulfilled again

State the rules on constructive compliance

(Article 883, par 2).

1. If casual – not applicable;

2. If mixed:

a. If dependent partly on chance – not applicable

b. If dependent partly on the will of a third party:
c. If third party is an interested party – applicable
d. If third party is not an interested party – not
applicable.

Pending the fulfillment of the suspensive

condition, what must be done with the property?
(Article 880 and 881)

Between the time of the testator’s death and the

time of fulfillment of the suspensive condition or the certainty
of its non-occurrence, the property must be place under
administration. The property shall be in the executor’s or
administrator’s custody until the heir furnishes the caucion
muciana. The procedural rules governing the appointment of
administrator is governed by Rules 77-90 of the Rules of
Court.

State the effects of the fulfillment or non-

fulfillment of the suspensive condition.
 125

1. If the condition happens – the property will be

turned over to the instituted heir;
2. If it becomes certain that the condition will not
happen – the property will be turned over to a
secondary heir, and if there is none, to the intestate
heirs.

Note that this article is not applicable to institutions

with a term despite the wording of the article. Institution with
a term is governed by Article 885, par. 2. To do otherwise
would result to an irreconcilable conflict with that article,
which mandates that before the arrival of the term, the
property should be given to the legal heirs.

TERMS

What are the different terms?

1. Suspensive term (Article 878)

A suspensive term is one that merely

suspends the demandability of a right. It is sure to
happen. A suspensive condition, on the other hand
suspends, not merely the demandability, but even
the acquisition itself of the right.

The heir’s rights vests upon the testator’s

death. Therefore, should the heir die before the
arrival of the suspensive term, he merely transmits
his rights who can demand the property when the
term arrives. The rule in this article is similar to a
fideicommissary substitution.

State the rules:

1. The right of the instituted heir is

suspended until the arrival of the
term.
2. The instituted heir acquires his
rights after the testator’s death
but even before the arrival of the
term.
3. Should the instituted die before
the arrival of the term. He
transmits his rights to his own
heirs.
4. Before the arrival of the
suspensive term, the property
 126

should be delivered to the

intestate heirs. A caucion
muciana has to be posted by the
intestate heirs. The intestate
heirs here are merely considered
a usufructuary because they
have the obligation of preserving
the property until the arrival of
the term when they must
turnover the property to the
second heir

Note: If the heir is instituted to a suspensive

condition and he dies after the testator but before the
fulfillment of the condition, he does not transmit his rights to
his own heirs, for he never inherited.

2. Resolutory term

Rules:

1. The rights of the instituted heir are

immediately demandable, although they are
extinguished upon the arrival of the date or
time designated by the testator.
2. Therefore, before the arrival of the term,
the property should be delivered to the
instituted heir.
3. When the term arrives, he must give it to
the intestate heirs.
4. No caucion muciana is required.

MODES (Article 882)

What is a mode?

A mode (institucion sub modo) is an obligation

imposed upon the heir, without suspending (unlike in a
conditional disposition), the effectivity of the institution.

State the rules:

A mode must be clearly imposed as an obligation in

order to be considered as one. Mere preferences or wishes
expressed by the testator are not modes.

Requisites:
 127

a. The testator states the object of the

institution
b. The testator states the purpose or
application of the property left
c. The testator states the charge impose by
him upon the heir. (Johnny Rabadilla vs.
CA, GR No. 113725, June 29, 2000)
d. Caucion muciana should be posted by the
instituted heir.

Distinguish between modal institution and

conditional testamentary disposition.

1. A mode imposes an obligation upon the heir or

legatee but it does not affect the efficacy of his
rights to the succession; while in a conditional
testamentary disposition, the condition must happen
or be fulfilled in order for the heir to be entitled to
succeed to the testator.

2. The condition suspends but does not obligate; while

the mode obligates but does not suspend. To some
extent, it is similar to a resolutory condition. (Johnny
Rabadilla vs. CA, ibid.)

Principles:

 When in doubt as to whether there is a condition or

merely a mode, consider, consider them as a mode.
 When in doubt as to whether there is a mode or
merely a suggestion, consider same only as a
suggestion.

CAUCION MUCIANA

What is caucion muciana?

It is a security to be put up to protect the rights of

the heirs who would succeed to the property, in case the
condition, term or mode is violated.

What are the instances where caucion muciana

is needed?

1. Suspensive condition (Article 885)

2. Negative potestative condition (Article 879)
3. Modal institution (Article 882, par. 2)
 128

SUBSTANTIAL COMPLIANCE
What are the rules in substantial compliance?

1. If the instituted heir, without his fault cannot comply

with the condition exactly in the manner imposed by
the testator, it shall be complied with in a manner
most analogous to and in conformity with his wishes.
2. If the person interested in the condition (like the
intestate heir) should prevent its fulfillment, the
condition shall be deemed to have been complied
with, provided that the instituted heir is without
fault.
3. When applicable:

1) If casual – not applicable;

2) If mixed:

a. If dependent partly on chance – not

applicable
b. If dependent partly on the will of a third
party:

1. If third party is an interested party –

applicable
2. If third party is not an interested party
–not applicable.

PLACING OF ESTATE UNDER ADMINISTRATION

What are the instances when the estate is

placed under administration?

1. When the heir is instituted under a suspensive

condition.
2. Where the heir instituted is subject to a negative
potestative condition and he does not give a security
when demanded by the heirs entitled to the same.

SECTION 5. LEGITIME

What is legitime?

Legitime is that part of the testator’s property which

he cannot dispose of because the law has reserved it for
certain heirs who are, therefore, called compulsory heirs
(Article 886).
 129

The legitime consists of a part or fraction of the

entirety of the hereditary estate, and not a specific or
determinate property.

From the definition of legitime in Article 886, it is

patent that the portion of the hereditary estate called legitime
is to a certain extent withdrawn from the patrimony if the
testator thus preventing him from disposing it by gratuitous
title. Of course, he can still enjoy the same because it is still
his. It is only upon his death that his heirs become entitled
thereto (Article 777).

The legitimes are translated into properties only

upon the delivery if the properties to the heirs, which is
usually done after all claims against the estate ahs been
settled.

A testator who has compulsory or forced heirs

cannot impair the legitimes of the latter (Article 842).
Accordingly, if he has no forced or compulsory heirs, he may
dispose of all his estate or any part of it in favor of any
persons having capacity to succeed (Ibid.).

Can the testator deprive his compulsory heirs

of their legitime?

No, the testator cannot deprive his compulsory heirs

of their legitme, except in cases expressly specified by law
(Article 904).

Does the testator have the power to impose

burdens on legitime? Why?

No, the testator cannot impose upon the legitime any

burden, encumbrance, condition or substitution of any kind
whatsoever (Article 904). This is so because of the principle
that the legitime passes by strict operation of law.

Can the owner dispose of the legitime by

onerous title?
 130

Yes because in such a case, the alienated property is

substituted by an equivalent. However, his power of disposal
by gratuitous title, whether inter vivos or mortis causa is
limited.

What is the instance in which the law allows

the testator to deprive a compulsory heir of his
legitime?

The only instance in which the law allows the

testator to deprive the compulsory heirs of their legitimes is
disinheritance (Articles 915-923), the grounds of which are
set forth in Articles 919-921.

Are there instances in which the law grants the

testator some power over the legitime?

Yes, the following laws grant the testator some

power over the legitime:

1. Article 1080, par. 2 – partition inter vivos of

a will.

“A parent who, in the interest of his

heirs or her family, desires to keep any
agricultural, industrial, or manufacturing
enterprise intact, may avail himself of the
right granted him in this article, by or
ordering that the legitime of the other
children to whom the property is not
assigned, be paid in cash.”
2. Article 1083, par 1 – Indivision for 20 years.

“Every co-heir has a right to demand

the division of the estate unless the testator
should have expressly forbidden its
partition, in which case the period of
indivision shall not exceed twenty years as
provided in Article 494. This power of the
testator to prohibit applies to legitime.”
 131

Are there restrictions on the legitime imposed

by law?

Yes, the following are restrictions imposed by law on

legitime:

1. Article 159 of the Family Code – family home shall

continue for 10 years.

“The family home shall continue despite the

death of one or both spouses or of the unmarried
head of the family for a period of 10 years or for as
long as there is a minor beneficiary, and the heirs
cannot partition the same unless the court finds
compelling reasons therefore. This rule shall apply
regardless of whoever owns the property or
constituted the family home.”

2. The reserva troncal (to be discussed separately).

What are the possible ways of disturbing the

legitimes of compulsory heirs?

The legitime of a compulsory heir may be disturbed

in any of the following way:

1. By preterition of a compulsory heir in the direct line

(Article 854);
2. By not giving the full legitime of the heir to which he
is entitled (Article 906);
3. By imperfect or defective disinheritance of the
compulsory heir (Article 918). (The disinheritance is
imperfect when it does not follow the requisites
prescribed by law);

Under the above circumstances, the

compulsory heir does not lose his legitime although
there is disturbance.

4. By validly disinheriting the compulsory heir (Article

915). This is a case of deprivation of legitme which is
expressly allowed (Article 904).
 132

What are the factors that determine the

amount of legitime of an heir?

The amount of legitme of an heir is determined by several

factors, particularly:

1. The amount of the property;

2. The number of compulsory;
3. The relations of such heirs to the testator; and
4. The percentage of shares assigned to them by law.

What are the kinds of heirs?

1. Compulsory heirs- they are those for whom

the law reserves a portion of a decedent’s
estate by way of legitime.
2. Voluntary, testamentary, or testate heirs-
they are so called to the succession by
virtue of the expressed will of the testator;
3. Legal or intestate heirs- They are those
called to the succession by operation of law
in the absence of voluntary heirs designated
by the testator.

Who are compulsory heirs? (Article 887)

(2) Legitimate children and descendants, with respect to

their legitimate parents and ascendants;
(3) In default of the foregoing, legitimate parents and
ascendants, with respect to their legitimate children
and descendants;
(4) The widow or widower;
(5) [Acknowledged natural children, and natural children
by legal fiction];
(6) [Other illegitimate children referred to in Article
287].62

Compulsory heirs mentioned in Nos. 3, 4 and 5 are

not excluded by those in Nos. 1 and 2; neither do they
exclude one another.

In all cases of illegitimate children, their filiation

must be duly proved.
62
Paragraphs 4 and 5 [bracketed] are deemed
deleted by Article 165, EO No. 209 {Family Code}, and to
read “illegitimate children”.
 133

The father or mother of illegitimate children of the

three classes mentioned, shall inherit in the manner and to
the extent established by this Code.

Amendment to Article 887: The Family Code

which became effective on August 3, 1988, classified all kinds
of illegitimate children (natural and spurious) into one general
group – illegitimate children. The distinction between the
different kinds of illegitimate children under the Civil Code
had been abolished (Article 165 FC). The legitimes of
illegitimate children have also been fixed by the Family Code
into one- half (1/2) of the legitime of a legitimate child
(Article 176 FC).

Thus, under the law now, there are only four (4)
groups of compulsory heirs:

1. First, legitimate children and descendants, with

respect to their legitimate parents and ascendants;
2. Second, in default of the foregoing, the legitimate
parents and ascendants, with respect to their
legitimate children and descendants;
3. Third, the widow or widower (Article 887);
4. Fourth, the illegitimate children (Article 165 FC)

What are the classes of compulsory heirs?

1. The primary compulsory heirs – they are the

legitimate children and/or descendants. They are
preferred over, and exclude, the secondary
compulsory heirs.
2. The secondary compulsory heirs – they are the
legitimate parents and/or ascendants; illegitimate
parents. They receive legitime only in default of the
primary compulsory heirs.
3. The concurring compulsory heirs – they are the
surviving spouse, illegitimate children and/or
descendants. They succeed as compulsory heirs
together with the primary or secondary heirs, except
only that illegitimate children/descendants exclude
illegitimate parents.

What does the term legitimate child or

legitimate children and legitimate parents
include?
 134

1. A legally adopted child pursuant to Art. 189 FC; 63

2. Legitimated children;
3. In proper cases, legitimate descendants other than
legitimate children;
4. The term legitimate parents includes, in proper
cases, legitimate ascendants other than parents.

What is the condition before illegitimate

children could become compulsory heirs?

There must be recognition of the illegitimate

relationship. Articles 172 and 175 of the Family Code provide
the rules on establishment of filiation. 64

What are the different computations for the

legitimes of each compulsory heir?

 LC alone –

63
Section 18. Succession. – In legal and intestate
succession, the adopter(s) and the adoptee shall have
reciprocal rights of succession without distinction from
legitimate filiation. However, if the adoptee and his/her
biological parent(s) left a will, the law on testamentary
succession govern (R.A. No. 8552).
64
Article 172. The filiation of legitimate children is
established by any of the following:
1. The record of birth appearing in the civil
register or final judgment;
2. An admission of legitimate filiation in a
public instrument or a private handwritten
instrument and signed by the parent concerned;
In the absence of the foregoing evidence, the
legitimate filiation shall be proved by:
1. The open and continuous possession if the
status of a legitimate child; or
2. Any other means allowed by the Rules of
Court and special laws (Family Code).
Article 175. Illegitimate children may
establish their illegitimate filiation in the same way and the
same evidence as legitimate children.
The action must be brought within the same
period specified in Article 173, except when the action is
based on the second paragraph of Article 172, in which case
the action may be brought during the lifetime of the alleged
parent (Family Code).
 135

½ of the estate.

 LC and SS –

LC: ½ of the estate;

SS: a share equivalent to 1 child.

 1LC and SS –

LC: ½ of the estate;

SS: ¼ of the estate.

 LC and IC –

LC: ½ of the estate;

IC: ½ share of 1LC.

 LC, IC, and SS –

LC: ½ of the estate;

IC: ½ of share of 1LC;
SS: a share equal to 1LC (the share of SS is
preferred over those of the IC which shall
be reduced if necessary).

 1LC, IC and SS –

LC: ½ of the estate

IC: ½ of share of 1LC;
SS: ¼ (preferred) of the estate.

 LP alone –

½ of the estate.

 LP and IC –
LP: ½ of the estate;
IC: ¼ of the estate.

 LP and SS –

LP: ½ of the estate;

SS: ¼ of the estate.

 LP, IC and SS –

LP: ½ of the estate;

 136

IC: ¼ of the estate;

SS: 1/8 of the estate.

 SS alone –

½ of the estate (1/3 of the estate if

marriage is in articulo mortis; ½ of the
estate if living together for 5 years).

 SS and IC –

SS: 1/3 of the estate;

IC: 1/3 of the estate.

 SS and IP –

SS: ¼ of the estate;

IP: ¼ of the estate.

 IC alone –

½ of the estate.

 IP alone –

½ of the estate.

LEGITIME OF SURVIVNG SPOUSE IN

TESTAMENTARY SUCCESSION (TESTACY)

Concurring Legitime Free Article

Heirs Portion

Spouse alone ½; 1/3; ½ ½ Art. 900

Spouse ¼ ¼ Art. 892

1 leg. Child ½

Spouse Same share of Remainder Art. 898

1 leg. child
2 or more leg.
children ½

Spouse Same share of Remainder Art. 897

 137

Leg. Children 1 leg. child Art. 895

Illeg. Children ½ Art.176,
FC. 65
Remainder not
to exceed free
portion

Spouse ¼ ¼ Arts.889 &

893
Leg. Parents ½

Spouse ¼ ½ Art. 903

Illeg. Parents ¼

Spouse 1/3 1/3 Art. 894

Illeg. Children 1/3

Spouse 1/8 1/8 Art. 899

{Cf. Art
Leg. parents ½ 1000}
Illeg. Children ¼

Spouse ½ ½ Art. 900

Brothers and None 66

sisters, nephews
and nieces

LEGITIMES OF CHILDREN/PARENTS AS SOLE HEIRS IN

TESTAMENTARY SUCCESSION (TESTACY)

Heirs Share Free Article

Portion

Legitimate Alone – ½ Article

65
Applies if free portion is sufficient, otherwise, free
portion will be divided equally. (Unless otherwise specified by
the testator, sharing in the available free portion is equal
[Article 846].
66
Reason:: They are not compulsory heirs. Hence,
they are not entitled to legitime. They can become heirs only
in intestat4e succession (Article 1001 and 994) or if
designated as devisees or legatees, i.e. as voluntary heirs.
 138

child/children ½ 888

Illegitimate Alone – ½ Article

child/children ½ 901

Legitimate parents Alone – ½ Article

½ 889

Illegitimate parents Alone – ½ Article

½ 903

LEGITIMES OF ILLEGITIMATE CHILDREN/LEGITIMATE

PARENTS OR CHILDREN IN TESTAMENTARY
SUCCESSION (TESTACY)

Heirs Share Free Article

Portion

Legitimate ½ ¼ Arts. 888

parents & 896
¼
Illegitimate
children

Legitimate ½ Remainder, if Arts.

children any 176(FC)
½ of share of
Illegitimate 1 leg. child
Children

Illegitimate ½ ½ Art. 903

children
None (being
Illegitimate excluded)
parents

Article 887 mentions of “children and

descendants” and “legitimate parents and ascendants”;
does it mean that they all automatically succeed to the
inheritance?
 139

No, in their category as compulsory heirs, the rule is

that the nearer excludes the more remote, except in cases
where the right of representation is proper. This is known as
the rule of “proximity”.

May a compulsory heir renounce or

compromise his future legitime? What are its
consequences?

No, every renunciation or compromise as regards

future legitime between the person owing it and his
compulsory heirs is void, and the latter may claim the same
upon the death of the former (Article 905).

What are the consequences in case there is

renunciation or compromise?

a. The compulsory heir may claim his legitime

upon the death of the person owing it;
b. But the compulsory heir must bring to
collation whatever he may have received by
virtue of the renunciation or compromise
(Article 905). That is, any property, which
the compulsory heir may have gratuitously
received from his predecessor by virtue of
the renunciation or compromise, will be
considered an advance of his legitime and
must be duly credited.

What is the reason of the foregoing rule?

a. Before the predecessor’s death, the heir’s

right is simply inchoate which does not vest
in the heir until the moment of the death of
the testator. (Article 777)
b. Such renunciation or compromise
contravenes the policy of the law which
seeks to secure to the testator the greatest
possible freedom in disposing of his
property by will (Article 783), and to
prevent the utilization of the will form as a
 140

vehicle fro imposing contractual obligations

on the testator.
c. A future legitime involves future
inheritance, and under Article 1347, par. 2,
“no contract may be entered into upon
future inheritance except in cases expressly
authorized by law.

As worded, the article refers to transactions of

compromise or renunciation between a prospective
compulsory heir and the predecessor. Is a transaction
between the prospective compulsory heir and another
prospective compulsory heir, or between a prospective
compulsory heir and a stranger prohibited?

Yes, pursuant to Article 1347, which provides that

“No contract may be entered into upon future inheritance
except in cases expressly authorized by law?

What is the scope of prohibition?

1. Any renunciation of future legitimes, whether for a

valuable consideration or not, made unilaterally or
otherwise;
2. The waiver of the right to ask for the reduction of an
officious donation either by the heir’s express
declaration or by consenting to the donation (Article
772); and
3. Article 1347. 67

What are the instances where the prohibition is

not applicable?

67
Article 1347. All things which are not outside the
commerce of men, including future things, may be the object
of a contract. All rights which are not intransmissible may also
be the object of contracts.
No contract may be entered into upon
future inheritance except in cases expressly authorized by
law.
 141

1. Renunciations or compromises made after the death

of the testator, for in such a case, the right to
legitime being already an acquired right and no
longer an expectancy;
2. Donations or remissions made by the testator to the
compulsory heirs as advances of the legitime. Their
acceptance does not amount to renunciation of
future legitime

The rule is that anything that a compulsory heir

receives by gratuitous title from the predecessor is
considered an advance on the legitme and is deducted
there from. Are there exceptions to this rule?

Yes, they are:

1. Article 1062 – If the predecessor gave the

compulsory heir a donation inter vivos and provided
that it was not to be charged against the legitime;
2. Article 1063 – Testamentary dispositions made by
the predecessor to the compulsory heir, unless the
testator provides that it should be considered part of
the legitime.

What is the remedy of the compulsory heir to

whom the testator has left any title less than the
legitime belonging to him?

He may demand that the same be fully satisfied

(Article 906).

What is meant “by any title” referred to in the

article?

It applies to transmissions by gratuitous title. It also

includes donation inter vivos, which are considered advances
on the legitime.
 142

What is the remedy of the compulsory heir if

there are testamentary dispositions that exceed the
disposable portion?

The compulsory heir may petition that the same be

reduced to the extent that the legitmes may have been
impaired, in so far as they may be inofficious or excessive
(Article 907).

Distinguish completion of legitime from

preterition.

1. In case of preterition, ignorance or faculty memory

on the part of the testator can be presumed but such
presumption does not lie in case the compulsory heir
has been given something.
2. In the former, the compulsory heir is not totally
deprived of his legitime. Thus, the compulsory heir
does not lose his legitime but on the other hand, he
cannot claim more than his legitime. He has
therefore a right to claim what is lacking, that is, the
completion of the portion that by law belongs to him.
However, in the case of preterition, the compulsory
heir who was totally omitted has the right to demand
his legitime and also demand that the institution of
heirs be annulled except the devises and legacies.

How is legitime determined?

The value of the property left at the death of the

testator shall be considered, deducting all debts and charges,
which shall not include those imposed in the will. To the net
value of the hereditary estate, shall be deducted the value of
all donations by the testator that are subject to collation at
the time he made them (Article 908).

FORMULA: Property left – debts and charges + value

of collationable donations = net hereditary estate.
 143

What are the seven distinct steps in the

distribution of the hereditary estate in testamentary
succession?

1. The determination of the value of the estate at the

time of the testator’s death;
2. The determination of all deductible debts and
charges which are chargeable to the testator’s
estate;
3. The determination of the net hereditary estate by
deducting all of the debts and charges from the
value of the estate;
4. The collation or addition of the value of all donations
inter vivos to the net value of the estate;
5. The determination of the amount of the legitime
from the total thus found in accordance with the
rules established in Article 888 to Article 903 of the
Civil Code;
6. Imputation of the value of the donation inter vivos
against the legitime of the donee, if made to a
compulsory heir, or against the free portion, if made
to a stranger; and finally,
7. Distribution of the net estate in accordance with the
will of the testator.

What are the steps/ manner of computing the

hereditary estate?

3 steps:

1. Inventory of all existing assets –

(1) This will involve an appraisal / valuation of

these existing assets at the time of the
decedent’s death.
(2) These assets include only those property
and obligations that survive the decedent;
i.e., those, which are not extinguished by
his death.
(3) The value determined by this inventory will
constitute the gross assets.
 144

2. Deducting unpaid debts and charges –

(1) All unpaid obligations of the decedent

should be deducted from the gross assets.
(2) Only those obligations with monetary value,
which are not extinguished by death, are
considered here. Thus, those obligations,
which are purely persona; are not taken
into account.
(3) The difference between the gross assets
and th unpaid obligations will be available
assets.

3. Adding the value of donations inter vivos –

(1) To the available assets should be added all

the inter vivos donations made by the
decedent.
(2) The donations inter vivos shall be valued as
of the time they were respectively made.
Any increase or decrease in value from the
time they were made to the time of the
decedent’s death shall be for the donee’s
account, since donation transfers ownership
to the donee.
(3) The sum of the available assets and all
donations inter vivos is the net hereditary
estate.

NOTES:

 Collation is not necessary when

there are no compulsory heirs
for the reason that there is no
legitime to be determined.

 The value of the donations shall

be determined as of the time
they were made and not at the
time of the death of the testator.
 145

 The collation of the donation

does not mean that the
properties donated shall be
brought back to the estate but
only the value thereof,
determined as of the time they
were made, should be added to
the net value of the estate to
determine the whole estate of
the testator.

What is the rule as to donations inter vivos to

compulsory heirs?

They shall be imputed to his legitime; i.e.,

considered as an advance to his legitime (Article 909, par. 1).

Is there an exception to this rule?

Yes, this rule of imputation to the legitime will not

apply of the donor provided otherwise (Article 1062), in which
case the donation will be imputed to the disposable portion of
the estate.

What is the rule as to donations inter vivos to

strangers?

1. A stranger is anyone who does not succeed as a

compulsory heir;
2. Donations inter vivos to strangers are necessary
imputed to that part of the estate which the testator
could have disposed by his last will (the disposable
portion) (Article 909, par. 2).
3. In so far as they may be inofficious or may exceed
the disposable portion, they shall be reduced (Article
909, par. 3).

Summary of donations:
 146

a. Donation to a child, whether legitimate or

illegitimate

General rule – charged to legitime

Exceptions –

1. If the donee who is a child without

descendant predecease the testator, is
incapacitated or is disinherited;
2. In case the donee-child repudiates the
inheritance;
3. In case the donor-testator has
expressly provided that there shall be
no collation unless it impairs the
legitime.

b. Donation to parents or ascendants (Article

1062) 68 –

General rule – charged to legitime

Exceptions –

1. When the testator provides otherwise;

2. When they are not compulsory heirs.

c. Donation to spouse –

General rule – not allowed.

68
NOTE: The donations made to legitimate parents
or ascendants or to the parents of illegitimate children should
only be charged to their legitime when they are compulsory
heirs, since they are not primary compulsory heirs but only
secondary and, therefore, may not always be compulsory
heirs if there are present the primary compulsory heirs.
 147

Exception – gifts of moderate value; treat

the same as a donation to a compulsory
heir.

d. Donation to strangers – charged to free

portion.

What is the order of priorities to be observed in

the reduction of the testator’s gratuitous dispositions?

After the legitime has been determined in accordance

with Articles 908 to 910, the reduction shall be made as
follows:

1. Donations shall be respected as long as the legitime

can be covered, reducing or annulling, if necessary,
the devises or legacies made in the will;
2. The reduction of the devises or legacies shall be pro
rata, without any distinction whatever;
3. If the testator has directed that a certain devise or
legacy be paid in preference to others, it shall not
suffer any reduction until the latter have been
applied in full to the payment of the legitime;
4. If the devise or legacy consists of a usufruct or life
annuity, whose value may be considered greater
than that of the disposable portion, the compulsory
heirs may choose between complying with the
testamentary provision and delivering to the devisee
or legatee the part of the inheritance of which the
testator could freely dispose (Article 911).

What are methods [rules] of reduction?

1. First, reduce pro rata the non-preferred legacies and

(Art. 911 [2]), and the testamentary dispositions
(Art. 907). Among these legacies, devises, and
testamentary dispositions there is no preference;
2. Second, reduce pro rata the preferred legacies and
devises (Art. 911, last par.);
3. Third, reduce the donations inter vivos according to
the inverse order of their dates (i.e., the oldest is the
 148

most preferred) (Art. 773). If the donations were

made with the same date, they shall be reduced pro
rata.

Note: These reductions shall be to the extent

required to complete the legitimes, even if in the process the
disposition is reduced to nothing.

How is Article 911 reconciled with Article 950?

Article 911 provides that if the devise or legacy must

be reduced the reduction shall be pro rata without distinction
whatever; whereas Article 950 provides an order of
preference in the reduction of the devises and legacies.
Although seemingly contradictory, these articles can be
reconciled by applying Article 911 to those cases where the
legacy or devise must be reduced (1) because it is necessary
to preserve the legitime and (2) when although the legitime is
unimpaired, reduction is necessary because there are
donations and the donations and the legacies together exceed
the free portion. While Article 950 will be applied when the
reduction is between the legacies themselves alone because
there are no compulsory neither heirs; nor donation inter
vivos, or there being compulsory heirs their legitimes are
unimpaired and there are no donations.

What is the order of payment from the

hereditary estate?

1. The legitimes shall first be paid;

2. Then the donations inter vivos;
3. Next, the preferred devises and legacies; and
4. Lastly, the other devises and legacies and all other
testamentary dispositions to take effect mortis
causa, shall be reduced pro rata, without distinction,
in case the free portion is not sufficient.

The value of the testator’s estate at the time of

his death is P40, 000. However, the claims against his
estate based on obligations incurred by him during his
lifetime amounted to P10, 000. During his lifetime, he
 149

had also made two donations – P15, 000 to a legitmate

child “A”, and another P15, 000 to a friend “F”. In his
will, he instituted his two legitimate children, A and B,
as his heirs. How shall his estate be distributed?

1. P40, 000 – P10, 000 = P30, 000

2. P30, 000 + P15, 000 + P15, 000 = P60,
000
3. Determine the legitime of A and B = P15,
000 each
4. Determine the free disposable portion =
P30, 000
5. Give the legitimes: B = P15, 000; A = P15,
000 [the donation to A of P15, 000 shall be
imputed to his legitime]
6. Give P15, 000 donation to F from the free
disposable portion
7. Balance of the hereditary estate is P15,
000, which shall be divided equally to A,
and B; thus, each shall get P22, 500.00
each. [P15, 000 + 7, 500]

Testator X dies with 2 legitimate children A and

B; and one acknowledged child C. While alive, X made a
donation of P10, 000 to A; P10, 000 to C and another
P10, 000 to a total stranger. His gross estate is P30,
000 and his debts and liabilities are P10, 000. Divide
the estate of X.

1. P30, 000 – P10, 000 = P20, 000

2. P20, 000 + P10, 000 + P10, 000 + P10, 000
(donations) = P50, 000.
3. Determine the legitimes: P25, 000 to A and B or
P12, 500 each.
4. Free disposable is P25, 000.
5. Get C’s legitime from free disposal: P6, 250.
6. Balance of free disposal – P18, 750.
7. Donation of P10, 000 made to A shall be
imputable to his legitime of P12, 500.
8. The donation of P10, 000 made to C shall be
imputable to his legitime of P6, 250, there is
therefore an excess of P3, 750 which shall be
imputed to the free portion.
 150

9. The donation of P10, 000 made to d shall be

charged to the free portion.
10. The free portion amounts to P18, 750 and the
donations imputed to it are the excess of P3,
750 in the donation to c and the whole donation
of P10, 000 to D or a total of P13, 750.

Testator X dies leaving his legitimate children A

and B, surviving spouse S and one acknowledged
natural child C. While alive X donated P5, 000 to A in
1995, another P5, 000 to C in 1998 and P10, 000 to D a
very good friend in 1993. His gross estate at the time
of his death if P20, 000. His debts and liabilities
amount to P15, 000. Divide the estate:

1. P20, 000 – P15, 000 = P5, 000

2. P5, 000 + P5, 000 + P5, 000 + P10, 000 = P25, 000
3. P12, 500 is the legitime of A and B or P6, 250 each.
4. Free portion is P12, 500 – legitime of S P6, 250 and
legitime of C P3, 125.
5. Free disposal [balance] – P3, 125.
6. Donation of P5, 000 to A shall be imputed to his
legitime of P6, 250
7. Donation to C of P5, 000 shall be imputed to his
legitime of P3, 125 and therefore exceeds the same
by P1, 875 which together with the P10, 000
donation to D or a total of P11, 875 shall be charged
to the free portion which amounts only to P3, 125
and should be reduced.
8. The reduction shall be based on the dates of the
donation in the inverse order of dates.
9. Since the donation to D is earlier than that of C, the
whole donation of C, which is P1, 875 will be revoked
and then the donation of D will furthermore be
reduced by P6, 875. Hence C will return to the estate
P1, 875 and D will return 6, 875.

If the devise has to be reduced because it is

inofficious and the thing given, as devise is indivisible,
what are the rules?

1. If the extent of reduction is less than ½ of the value

of the thing – it should be given to the devisee.
 151

2. If extent of reduction is ½ or more of the value of

the thing – it should be given to the compulsory heir.
3. In ether case, there should be pecuniary
reimbursement to the party who did not get his
physical portion of the thing devised (Article 912).

If neither party elects to exercise this right,

how should the thing devised be disposed of?

1. Any other heir or devisee, who elects to do so, may

acquire the thing and pay the parties (the
compulsory heir and the devisee in question) their
respective shares in money.
2. If no heir or devise elects to acquire it, it shall be
sold at a public auction and the net proceeds
accordingly divided between the parties concerned
(Article 913).

Summary of the limitations of the power of the

testator to dispose of as he may deem fit the free
portion:

1. The free portion must be absolutely free portion i.e.,

the remainder of the estate after all legitimes have
been deducted.
2. The absolutely free portion, which can be freely
disposed of, does not include those properties
governed by special laws such as the friar lands.
3. The person to whom it is bequeathed must have the
capacity to succeed the testator.

RESERVA TRONCAL (Article 891)

What is the doctrine of reserva troncal?

It is a system of reserve by virtue of which an

ascendant who inherits from his descendant any property
which the latter may have acquired by gratuitous title from
another ascendant, or a brother or sister, is obliged to reserve
such property as he may have acquired by operation of law
for the benefit of relatives who are within the third degree
 152

and who belong to the line from which the said property
came.

Illustration and diagram:

Reservatorio

O (Origin) R (Reservista)

P (Prepositus)
P (prepositus) inherits a piece of land from his father,
O (origin). Subsequently, P dies intestate, single and without
issue, and the land is in turn inherited by his mother R
(reservista). R is now required to reserve the property in
favor of P’s paternal relatives within the third degree
(rerservatorios).

What are the three transmissions are involved

in a reserva troncal?

1. First transmission by gratuitous title from an

ascendant or brother or sister to the
decedent;
2. A posterior transmission by operation of
law, from the decedent in favor of another
ascendant belonging to another [Operation
of law: 1) compulsory succession; 2)
intestate succession. Cannot be: 1) testate
succession, 2) donation];
3. A third transmission of the same property
from the reservoir or reservista to the
reservatorio.

RESERVISTA

3RD DEGREE (RESERVATORIOS)

RELATIVES DESCENDANT (PREPOSITUS) LEG. RELATIVES
1. RECEIVES PROPERTY BY
GRATUITOUS TITLE
2. DIED WITHOUT ISSUE ASCENDANT
ASCENDANT (RECEIVES BY LAW)
 153

What are the purposes of reserve troncal?

1. To prevent certain properties from passing from one

family to the other or from one trunk or from one
line to the other through accident of lack of heir;
2. To maintain as absolute as possible, with respect to
the property to which it refers, a separation between
the paternal and maternal line so that property of
one line may not pass to the other or through them
to strangers.

Who are the persons involved in a reserva

troncal?

1. Origin or mediate source - the ascendant,

brother or sister, known as the origin, from
whom the descendant-propositus acquired
the property by gratuitous title.
2. Reservista - the ascendant acquired the
property by operation of law;
3. Prepositus - the descendant who acquired
the property by gratuitous title from an
ascendant;
4. Reservatorio - the relatives of the
propositus, who are within the third degree
and who belong to the line from which the
property came and for whose benefit the
reservation is constituted.

What are the requisites in reserva troncal?

1. The property was acquired by a person from

an ascendant or from a brother or sister by
gratuitous title;
2. Property was inherited by operation of law
by an ascendant from a descendant upon
the death of the latter;
3. Descendant should have died without any
legitimate issue in the direct descending line
who could inherit from him;
4. There must be relatives of the descendant
who are within the third degree and who
belong to the line from which the property
came.

Notes:
 154

 All relationship must be legitimate. In effect, this

requirement punishes legitimate relations because if
the relation is illegitimate, there is no obligation to
reserve. However, it does not necessarily mean that
all four are related to each other, for the ascendant-
reservista may not be related at all to the ascendant
from where the property originated. It only means
that the parties are related to the prepositus
legitimately. The point of reference is the prepositus.

 The term descendant should read person, because if

the grantor is a brother or sister, the one acquiring
obviously is not a descendant.

 That the descendant died without legitimate issue,

because only legitimate descendants will prevent the
property from being inherited by the legitimate
ascending line by operation of law.

 Transmission by operation of law is limited to

succession, either to the legitime or by intestacy.

What is the meaning of the term “dying without

issue”?

The issue of a person consists of his children,

grandchildren, and all other lineal descendants. It means
dying without issue (descendants) in the lifetime or at the
death of the party and not an indefinite failure of issue.

Can there be reserve if the prepositus is an

adopted child?

Under the old rule: No, because adoption only

creates a personal relationship between the adopter and the
adopted; hence, there are no relatives of the adopted or
adopter by adoption. For the same reason, an adopted child
cannot claim the benefit of reserva troncal, and therefore
cannot be a reserve through adoption.

Under the new rule: Yes. The adopted may represent

the adopter in the inheritance of the latter’s parents (Section
17, R.A. No. 8552 [1988]). 69

69
Section 17. Legitimacy. – The adoptee shall be considered
the legitimate son/daughter of the adopter(s) for all intents
 155

Suppose that there are several persons who

can qualify as reservatorios, to whom shall the
reservable property be adjudicated?

In such a case, the rules of intestate succession shall

apply. This is because Article 891 merely determines the
group of relatives to whom the reservable property should be
returned; it is silent with regard to the individual right of such
relatives to the property. Thus, the following principles of
intestate succession still apply:

1. The principle of preference – relatives of the

prepositus in the direct ascending line shall exclude
his relatives in the collateral line; grandparents are
preferred over brothers and sisters. [Relatives in the
direct ascending shall exclude relatives in the
collateral lines.];
2. If all claimants belong to the same line, the principle
of proximity shall apply – relatives of the prepositus
nearest in degree shall exclude the more remote
ones;
3. Principle of representation – provided that the
representatives are relatives of the prepositus within
the third degree;
4. If all of the claimants are brothers and sisters of the
prepositus and some of the half blood and others of
the full blood, the principle of double share for the
full blood collaterals shall apply – those of the full
blood shall be entitled to double the share of those of
the half blood.

What is the meaning of “line” in reserva

troncal?

The term “line” is not used in the juridico-

geometrical sense of direct or collateral lines, but in the
familiar sense of paternal and maternal lines. Exception:
When the origin is a full-blood brother or sister, who comes
from the same common parents, the line would be the same.

Can money be reserved?

and purposes and as such is entitled to all the rights and

obligations provided by law to legitimate sons/daughters born
to them without discrimination of any kind. x x x x )R.A. No.
8552: Domestic Adoption Act of 1988).
 156

Yes. In money, the property is the purchasing power

and not the bills. As such, the value of the money can be
reserved.
The origin/mediate source:

He is either an ascendant or a brother or sister of the

prepositus:

1. If an ascendant – he may be any degree of ascent;

2. If a brother/sister – there are 2 schools of thought:

a. If the origin is a brother/sister, the

relationship must be of the half blood,
because otherwise the property would not
change lines in passing to a common
ascendant of the prepositus and the brother.
There should, in other words be no reserve
if the fraternal relationship is of the full
blood for them it would not be possible to
identify the line of origin-whether paternal
or maternal (JBL Reyes);
b. It does not matter whether the fraternal
relationship is of the full- or the half-blood.
In either case a reseva may arise. Since the
law makes no distinction, we should not
make one (Manresa).

The prepositus or propositus:

He is either a descendant or a brother/sister of the

origin, who receives the property from the origin by
gratuitous title. Thus, in the scheme of the reserva troncal, he
is the first transferee of the property.

He is the point of reference of the 3rd degree

relationship.

While the property is still with the prepositus there is

as yet no reserve. During the lifetime of the prepositus, he is
the full owner of the property. He can therefore alienate the
property and defeat the seeds of reserva troncal at this point
of time. He can even prevent the supposed reservor from
receiving it (by operation of law) causing its partition. The
reserve arises only upon the second transferor.

The origin must be a legitimate relative because

reserva troncal exists only in the legitimate family. The
 157

prepositus must be a legitimate descendant or a legitimate

half brother of the origin of the property.

The reservista or reservor

He is an ascendant of the prepositus by whatever

degree. The reservista must be an ascendant other than the
origin; otherwise, if the two parties are the same person,
there would be no reserva troncal.

He must be another ascendant other than the

mediate source, if the mediate source is an ascendant.

The reservor must have inherited the property by

operation of law (as share in legal succession or as legitime in
testamentary succession). If he acquire it through other
means, there is no obligation to reserve.

Reserva troncal begins once the reservista inherits

the property. He is bound by the obligation.
The ownership of the reservoir over the property is
full ownership subject, however, to two (2) resolutory
conditions: (1) his death; and (2) on his death, the presence
of relatives of the prepositus who are within the third degree
of consanguinity. Upon the death of the reservor, his
ownership is terminated and the same is transferred to the
reserves.

Should the origin and the reservista belong to

different lines?

Query illustrated: A receives by donation a parcel of

land from his paternal grandfather X. Upon A’s death, the
parcel passes by intestacy to his father Y (X’s son). The
property never left the line. Is Y obliged to reserve?

One view: No, because “another ascendant is one

belonging to a line other than that of the reservista”.

Another view: Yes, because: 1) the law makes no

distinction, and 2) the purpose of the reserve is not only
curative, but also preventive; i.e. to prevent the property
from leaving the line. This is the view accepted by the
majority.

May the reservista sell the reservable property?

If so, what is the nature of the sale?
 158

Yes, because he acquired ownership of the

reservable property upon the death of the descendant
propositus. The sale, however, is subject to the resolutory
condition that there must exist, at the time of his death,
relatives of the descendant who are within the third degree
and who belong to the line from which the property came. In
this case, the buyer acquires a limited and revocable title.
After the death of the reservista, the reservatorios may
rescind the contract because the resolutory condition to which
the reserve is subject has already been fulfilled.

If the reservor has alienated the property, his estate

will reimburse the reserves for the value of the reserved
properties which were alienated (Lunsod vs. Ortega, 46 Phil.
664).

Can the reservista execute a will disposing of

the reservable property?

No, because the reservable property does belong to

him or his estate. The property belongs to the reservatorios if
they are existing upon the reservista’s death.

The reservoir cannot dispose of the reservable

property by acts mortis causa because upon his death, the
property does not belong to his estate. Automatically, and by
operation of law, the reserves if there are any, become the
owners thereof.

Is the reserved property part of the reservista’s

estate which can be transmitted to his heirs or which
may be used to pay the debts of his estate?

A reservista is nothing but a life usufructuary or a

fiduciary of the reservable property received.

Reservable property neither comes, nor falls under

the absolute dominion of the ascendant who inherits and
receives same from descendant, therefore does not form part
of his property nor become the legitime of his forced heirs. It
becomes his own property only in case that all relatives of his
own descendant shall have died in which case said reservable
property losses such character [Florentino vs. Florentino, 40
Phil. 480].

The reserved property is not part of the reservista’s

estate upon his death. It does not even answer to the debts
 159

of the latter [Cano vs. Director, 105 Phil. 1]. The reservable
property cannot be transmitted by a reservista to his or her
own successors mortis causa so long as a reservatorio within
the 3rd degree from the propositus are in existence when the
reservista dies.

Consequently, the creditors of the reservor cannot

attach or levy on execution a reservable property temporarily
held by the reservor.

Can the property reserved be substituted?

The very same property must go to the process of

transmissions in order for the reserve to arise. Thus, the
same property must come from the mediate source, to the
prepositus by gratuitous title, and to the reservista by
operation of law. If the prepositus substitutes the property by
selling, bartering, or exchanging it, the substitute cannot be
reserved, since while the property is with the prepositus,
there is yet no reserve, which commences only when the
property is received by the reservista. Consequently, the
prepositus has, over the property, plenary powers of
ownership, and he may exercise these powers to thwart a
potential reserve. This refers to all kinds of properties – real
or personal, fungible or non fungible.

What is the nature of reservista’s right?

1. The reservista’s right over the reserved

property is one of ownership;
2. The ownership is subject to a resolutory
condition, i.e. the existence of
reservatorios at the time of the
reservista’s death;
3. The right of ownership is alienable, but
subject to the same resolutory
condition;
4. The reservista’s right of ownership is
registrable.

Can the reservista, by will, prefer some

reservatorios over the others?

They have no power to appoint by will such

reservatorios who would get the reserved property.

Suppose the reservista is survived by the

uncles and aunts and by nephews and nieces of the
 160

prepositus, who shall be entitled to the property

reserved?

The uncles and aunts shall not share in the

reservable property, since under the law of intestate
succession, a decedent’s uncles and aunts may not succeed
ab intestate so long as nephews and nieces of the decedent
survive and are willing and qualified to inherit.

The reservatorios or reservees:

They are usually the following:

1. 1st degree – father, mother;

2. 2nd degree – grand parents of the line from
which the properties originated and the
brothers of double relationship or the half
blood coming form the source of the
property;
3. 3rd degree – great grandparents from said
line, the 1st degree uncles and the nephews,
children of the brothers or half brothers of
the descendant as the case may be.

The reserve is in favor of a class, collectively referred

to as the reservatorios.

What are the requirements to be a

reservatorio?

1. The reservee (reservatorio) must have double

relations of consanguinity;
2. He must be related by blood to the descendant –
prepositus or to the other ascendant, or brother or
sister (origin) from whom the property came;
3. He must be within the third degree from the
prepositus;
4. He must belong to the line from which the property
came. This is determined by the origin/mediate
source;
5. They must be legitimate relatives of the origin and
prepositus;
6. They must be living at the time of the death of the
reservista though may not have existed yet at the
time of death of the propositus.
 161

Must the reservatorio also be related to the

mediate source?

One view: No, the article only speaks solely of two

lines, the paternal and the maternal of the descendant,
without regard to substitutions.

Another view: Yes, otherwise, results would arise

completely contrary to the purpose of the reserve, which is to
prevent property from passing to persons not of the line of
origin.

Reserva in favor of reservatorios, as a class –

consequence: To be qualified as a reservatorio, is it
necessary that one must already be living when the
prepositus dies?

The better opinion seems to be that this is not

required, because the reserve is established in favor of a
group or class; the relatives within the third degree-not in
favor of specified individuals, as long as one belongs to the
class when the reservista dies, then one is a reservatorio.

As long therefore as the reservatorio is alive at the

time of the reservista’s death, he qualifies as such, even if he
was conceived and born after the prepositus death.

What are therefore the only requisites for the

passing of the title from the reservista to the
reservatorio?

They are (1) death of the reservista; and (2) the fact
that the reservatorio has survived the reservista.

From whom do the reservatorios inherit?

They inherit from the descendant propositus and not

from the reservista, of whom the reservatorios are the heirs
mortis causa, subject to the condition that they must survive
the reservista. The reservable property is not part of the
estate of the reservista, who may not dispose of it by will, as
long as there are reservatorios existing.
Is there preference among the reservatorios?

They are beneficiaries in equal shares, regardless of

the difference in degree of relationship with the prepositus.

Is there representation among reservatorios?

 162

As in intestate succession, the rule of preference of

degree among reservatorios is qualified by the rule of
representation.

If the claimants of the property after the death of the

reservor are brothers and sisters of the prepositus and
nephews and nieces (children of other brothers and sisters
who have predeceased the reservoir), the right of
representation is applicable as long as the representatives are
relatives to the prepositus within the third degree (Florentino
vs. Florentino, 40 Phil. 489).

What are the reservatorio’s rights?

(1) The reservatorios have a right of expectancy

over the property;
(2) The right is subject to a suspensive condition,
i.e. the expectancy ripens into ownership if the
reservatorios survive the reservista;
(3) The right is alienable, but subject to the same
suspensive condition;
(4) The right is registrable.

Can the reservatorio (reservee) alienate his

right of expectancy during the lifetime of the reservor?

The Supreme Court answered in the negative in the

case of Edroso vs. Sablan, 24 Phil. 295, decided on
September 13, 1913. Later, the Supreme Court in the case of
Sienes vs. Esparcia, 1 SCRA 750 decided on March 24, 1961
abandoned the Edroso doctrine holding that the reservee may
alienate the reservable property during the lifetime of the
reservor subject to the resolutory condition that he would
survive the reservor. If he does not survive the reservor, the
ownership of the latter becomes fixed and consolidated
rendering ineffective the sale made by the reservee.

Under the new Civil Code, “future property” or

“thereafter-acquired property” which is merely an expectancy
can be sold (Articles 1461 and 1462). 70
Reserva Maxima and Reserva Minima
70
Article 1461. Things having potential existence
may be the object of the contract of sale.
The efficacy of the sale of a mere hope or
expectancy is deemed subject to the condition that the thing
will come into existence.
 163

What are reserva maxima and reserva minima?

Reserva maxima is a principle which provides that

the reserva applies to all the property gratuitously acquired
from the ascendant, brother or sister which could be included
within the legitime of the reservor received from the estate of
the prepositus.

Reseva minima, on the other hand provides that all

property passing to the reservor must be considered as
passing partly by operation of law and partly by will of the
prepositus. Resultingly, one-half of the property acquired
gratuitously by the prepositus should be reservable property
and the other half should be free and remain in the estate of
the reservor.

Illustration:

A died leaving a will. C received P1, 000, 000

from A by virtue of the latter’s will. C in his own right,
acquired properties worth P2, 000, 000. C died without
issue. In his will, he gave the entirety of his estate (P3,
000, 000) to B. One-half of this P3 Million was received
by B by operation of law (i.e. legitime) and the other
half by will as voluntary heir.

When B died, there is a surviving relative who

qualified as a reservee (D).

Is the entire property (P3, 000, 000) received

by B reservable?

The reservable property refers only to the P1 Million

received by C from A and not the entire P3, 000, 000.

The sale of a vain hope or expectancy is

void.
Article 1462. The goods which form the
subject of a contract of sale may be either existing goods,
owned or possessed by the seller, or goods to be
manufactured, raised, or acquired by the seller after the
perfection of the contract of sale, in this Title called “future
goods”.
There may be a contract of sale of goods,
whose acquisition by the seller depends upon a contingency
which may or may not happen.
 164

Out of this P1 Million, how much is the

reservable portion?

1. Based on the principle of reserva maxima, the

reservable portion of the estate of C shall include all
properties or money which can be comprised within
the one-half of the inheritance constituting the
lgitime of the reservor (B). Since the legitime of B in
the entire estate of C is P1, 500, 000. It is clear that
the P1, 000, 000 received by C gratuitously from A
can be contained within that legitime. Hence, this P1,
000, 000 is totally reservable.
2. Based on the principle of reserva minima, the
reservable property is only P500, 000. This is
premised on the fact that only one-half of the P1,
000, 000 was received by B (reservor) as legitime
which is by operation of law, because the other half
(P500, 000) was received by will by B as voluntary
heir.

Suppose C died intestate and B is his only

intestate heir, how much is the reservable property?
All the amount received from A is reservable
property because all was received by operation of all.

Note: The principles of reserva maxima and reserva

minima are advocated by Manresa and Scaevola. These
principles or theories need not be followed in the Philippines.
They will only complicate the already complicated reserva
troncal. The law must be interpreted to mean that the entire
property actually received by the prepositus be considered
reservable. The phrase “by operation of law” should not be
considered in its technical sense. It should be read simply to
mean “inherited” by the reservor. Otherwise, if some part of
the property will be retained by the reservor, the intention to
return the property to the “trunk” where it came from is
partly defeated. Therefore, if reserva troncal is applicable, the
problem will just be a matter of identifying the property or
knowing its value and which must be transmitted to the
reservees, if there are any. If there are none, the property
shall remain part of the estate of the reservor and shall pass
to his own heirs.

Extinguishment

How may the reserva be extinguished?

1. The death of the reservor or reservista;

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2. The death or incapacity of all the would-be

reservatorios or reservees during the
lifetime of the reservor or reservista ;
3. Renunciation or waiver by all the
reservatorios of their right to the reserva
made subsequent to the death of the
reservor, provided that no other
reservatorio is born subsequently;
4. Total fortuitous loss or destruction of the
reserved property without any fault or
negligence on the part of the reservor or
reservista ;
5. Confusion or merger of rights, as when the
reservatorio acquire the reservista’s right by
a contract inter vivos;
6. Prescription of action to recover property
from the estate of the reservor or adverse
possession. Prescription is ten years.
7. Registration of the reserved property under
the Torrens System as free from the
reservation and its subsequent alienation to
a third party who got it in good faith (De los
Reyes vs. Paterno, 34 Phil. 470);
8. Estoppel and laches (Arroyo vs. Gerona, 58
Phil. 266).

What are the rights and obligations of the

parties?

a. Rights of the reservatorios:

(1) To demand inventory and appraisal of

movables;
(2) To demand annotation of reservable
character of the immovable within 90
days;
(3) To demand security and bond.

b. Obligations of the reservistas:

(1) To inventory and appraise movables

within 90 days;
(2) To annotate reservable character of the
immovable within 90 days;
(3) To give security and bond;
(4) He must not substitute the reservable
property with another.
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SECTION 6. DISINHERITANCE

Define disinheritance

It is the process or act, thru a testamentary

disposition of depriving in a will any compulsory heir of his
legitime for true and lawful causes.

What are the requisites of a valid

disinheritance?

1. It must be made in a will (Article 916);

1.1 The will must be formal and

valid;
1.2 The will must not have been
revoked – at least in so far as
the disinheritance is
concerned.

2. Disinheritance must be expressly made, that is, the

identity of the heir must be identified;

3. It must specify the cause (Articles 916-918);

3.1 Article 919 for descendant;

3.2 Article 920 for ascendant; and
3.3 Article 921 for surviving spouse

4. It must be for a cause specified by law [for a legal

cause] (Article 916 in relation to Articles 919-921);

4.1 The cause must be stated in the will.

5. It must be unconditional and absolute;

6. It must be total or complete disinheritance;

7. The cause must be certain and true (Article 918);

7.1 It must be for an existing cause – its

existence must be proved by evidence.

7.2 If the truth of the cause is denied, it

must be proved by the proponent
(Article 917)
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Who has the burden of proving the truth of the

cause for disinheritance?

If there is a testamentary disposition whereby a

compulsory heir is being disinherited for a cause mentioned in
the law, but the said heir denies the truth of the alleged
cause, the burden of proof rests upon the heirs (not
necessarily forced heirs) who wish to sustain the
disinheritance (Article 917). If they cannot prove the truth or
existence of the cause, the disinheritance is void and the
compulsory heir could not be deprived of his legitime.
Preponderance of evidence is enough in proving the truth of
the cause for disinheritance.

A was disinherited by his father on the ground

of refusal without justifiable cause to support him. He
denied it. What is the effect of such denial?

The other heirs should then prove the truth of the

cause for disinheritance. Under the law, the burden of proving
the truth of the cause of the disinheritance shall rest upon the
other heirs of the testator, if the disinherited heir should deny
it (Article 917). Proponent of disinheritance has the burden of
proof. There is no presumption that the cause is true. The
presumption is falsehood.

What is the effect of disinheritance?

The effect of disinheritance is not just deprivation is

not just deprivation of the legitime but the total exclusion of
the disinherited heir, from the inheritance. Thus, the
disinherited heir forfeits:

a. His legitime;
b. His intestate portion; and
c. Any other testamentary disposition made in a prior
will of the disinheriting testator.

What is ineffective disinheritance?

It is disinheritance which lacks one or other of the

requisites, either because it is:

1. Without a specification of the cause, or

2. For a cause the truth of which, if contradicted, is not
proved, or
3. The cause of which is not one of those set forth in
the Civil Code (Article 918).
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What is the effect of ineffective disinheritance?

1. It shall annul the institution of heirs insofar as it may

prejudice the person disinherited;
2. But the devises and legacies and other testamentary
dispositions shall be valid to such extent as will not
impair the legitime (Article 918);
3. The effect of a defective or imperfect disinheritance
is the same as that of preterition of a compulsory
heir (Article 854).

If there is ineffective or imperfect

disinheritance, will the heir in question get any part of
the free portion other than his legitime?

The heir in question gets his legitime, but as to

whether he will also get any part if the intestate portion or
not, depends on whether the testator gave away the free
portion through testamentary dispositions. If he did, these
dispositions are valid and the compulsory heir improperly
disinherited gets his legitime. If the testator did not, the
compulsory heir will be entitled to his corresponding share of
the free portion as well.

What is the difference between imperfect

disinheritance and preterition?

In preterition, the institution of heirs is completely

annulled, while in imperfect disinheritance, the institution
remains valid, but must be reduced insofar as the legitime
has been impaired.

What are the sufficient causes for the

disinheritance of children and descendants, legitimate
as well as illegitimate?

1. When a child or descendant has been found

guilty of an attempt against the life of the
testator, his or her spouse, descendants, or
ascendants;
2. When a child or descendant has accused the
testator of a crime for which the law prescribes
imprisonment for six years or more, if the
accusation has been found groundless;
3. When a child or descendant has been convicted
of adultery or concubinage with the spouse of
the testator;
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4. When a child or descendant by fraud, violence,

intimidation, or undue influence causes the
testator to make a will or change one already
made;
5. A refusal without justifiable cause to support the
parent or ascendant who disinherits such child
or descendant;
6. Maltreatment of the testator by word or deed,
by the child or descendant;
7. When a child or descendant leads a dishonorable
or disgraceful life;
8. Conviction of a crime which carries with it the
penalty of civil interdiction (Article 919).

NOTE: Enumeration is exclusive. The list is an

exclusive list and not illustrative.

What does the term children and descendants

include in Article 919?

The children or descendants referred to in the Article

include the legitimate and illegitimate (recognized) children
and include grandchildren, great-grandchildren and so on.
They are compulsory heirs.

Can an intestate heir who is not a compulsory

heir be the subject of disinheritance?

Intestate heirs who are not compulsory heirs (not

entitled to legitime) cannot be the subject of disinheritance.
The right to disinherit must be exercised through a will where
the specific cause for disinheritance must be specifically
stated.

Re: Par. 1 (Attempt against the life of

testator)

 The word attempt is used non-technically and should

not be construed to limit the provision to the
attempted stage of the felony. All stages of
commission are included – whether attempted,
frustrated or consummated.

 The felony must be an intentional one – the intent to

kill must be present, thus reckless imprudence
resulting in homicide is not covered.
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 Final conviction is required.

 If the child or descendant participated in the

commission of the crime as an accomplice, he can
still be disinherited, But if he is just an accessory
after-the-fact, as his participation was subsequent to
the commission of the crime, he could not be
disinherited.

 If after having been found guilty as a principal or an

accomplice, the child or descendant is granted
executive clemency or pardon, he may still be
disinherited.

 The disinheritance is personal to the testator. He has

the prerogative to exclude a person from his estate if
there is a valid ground.

Re: Par. 2 (Groundless or baseless

accusation against the testator)

 The word accused is generically, and will include

filing of the complaint before the prosecutor, or
presenting incriminating evidence against the
testator, or even suppressing exculpatory evidence.

 The accusation must be in connection with a criminal

case. The accusation must be for a crime which
carries a penalty of at least six years imprisonment
(afflicitive penalty).

 The testator must be acquitted.

 The accusation must be found groundless, i.e., the

judgment of acquittal must state either that no crime
was committed or that the accused did not commit
the crime. An acquittal on reasonable doubt will not
be a ground for disinheritance.

Re: Par. 3 (Conviction for adultery or

concubinage with the spouse of the
testator)

 Final conviction is required.

 The guilty spouse is deemed disinherited by

operation of law in case of a legal separation decreed
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by the court (Article 63 [par. 4] FC). This is

disinheritance without formal disposition in a will.

 If both the child and the spouse happen to be

compulsory heirs of the testator, he could disinherit
them together in his will. But there must first be
conviction if the basis is Article 919 (par. 3). Under
Article 921 (par. 4), conviction is not required. It is
enough to prove the adultery or concubinage during
the testate or intestate proceedings.

Re: Par. 4 (Causing the testator to make a

will or change already made)

 Does not mention prevent, but prevention is a

ground for unworthiness (Art. 1032) which has the
same effect as disinheritance.

Re: Par. 5 (Unjustifiable refusal to give

support)

 There must have been a need and a demand for

support either judicially or extra-judicially.

 The demand must have been unjustifiably refused.

Re: Par. 6 (Maltreatment of the testator)

 This will include a wide range of misdeeds, but it is

required that the act of verbal or physical assault be
of a serious nature.

 Maltreatment could be by word or by deed.

 All acts of physical violence against the testator but

not sufficient to kill are encompassed in
maltreatment. Otherwise, the act or acts may fall
under paragraph 1.

 Example: The son shoots his father. The father is

wounded but recovers. The father does not want a
scandal so he does not file charges against his son.
So he disinherits his son not under No. 1 but under
No. 6.

 No conviction is required; in fact, it is not even

required that any criminal case be filed
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Re: Par. 7 (Leading a dishonorable or

disgraceful life)

 The operative word here is ‘lead’. There must be a

habituality, continuity and constancy to the conduct
to make it fall under this paragraph

 The dishonorable or disgraceful conduct need not be

sexual in nature; drug pushing or smuggling is
included.

Re: Par. 8 (Conviction for a crime with civil

interdiction)

 Final conviction is required.

Summary:

1. Conviction is required in Nos. 1, 2, 3 & 9.

2. Common causes: Paragraphs 1, 2, 3, 4, 5 of Article
919 are also among the causes for disinheriting
parents and ascendants (Vide: Paragraphs 2, 3, 4, 5
and 7 of Article 920).
3. Paragraphs 1, 2, 3 and 4 are among the causes
which constitute acts of unworthiness which
disqualify an heir, devisee or legatee from
succeeding the testator (Vide: Paragraphs 2, 3, 5
and 6 of Article 1032)

Can an adopted child be disinherited by the

adopting parent?

Under the Domestic Adoption Act of 1988 (R.A.) No.

8552 approved on February 25, 1988), adopted children can
be disinherited by the adopting parents (Section 19, R.A.
8552). The reason for this is that, the right of the adopting
parent to rescind the adoption authorized under Article 192 of
the Family Code had been abrogated by the new law. Instead
of rescission, the new law simply authorized the adopting
parents to disinherit the adopted if any of the causes for
disinheritance under Article 919 exists. This new provision is a
complementary to the prevailing jurisprudence that adopted
children, if preterited in a will, shall cause the nullification of
the institution if heirs (Acain vs. IAC, 155 SCRA 500).
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If the adopter died intestate, no disinheritance could

be effected because disinheritance can apply only in
testamentary succession.

Under the new law, the adopted child is impliedly

given the right of representation which right was not accorded
to him before (Section 17, R.A. No. 8552).

What are the sufficient causes for the

disinheritance of parents or ascendants, whether
legitimate or illegitimate?

1. When the parents have abandoned their children

or induced their daughters to live a corrupt or
immoral life, or attempted against their virtue;
2. When a parent or ascendant has been convicted
of an attempt against the life of the testator, his
or her spouse, descendants, or ascendants;
3. When the parent or ascendant has accused the
testator of a crime for which the law prescribes
an imprisonment for six years or more, if the
accusation has been found to be false;
4. When the parent or ascendant has been
convicted of adultery or concubinage with the
spouse of the testator;
5. When the parent or ascendant by fraud,
violence, intimidation, or undue influence causes
the testator to make a will or change one
already made;
6. The loss of parental authority for causes
specified in this Code;
7. The refusal to support the children or
descendants without justifiable cause;
8. An attempt by one of the parents against the life
of the other, unless there has been reconciliation
between them (Article 920).

NOTES:

 Enumeration is exclusive.
 Nos. 2, 5 & 7 are the same as the grounds in Art.
919.
 Exception to par. 6: Adoption, age of majority.
 The loss of parental authority should have been
effected either:
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i. By final judgment in a criminal

case, or
ii. By final judgment in a legal
separation proceeding, or
iii. By judicial order due to excessive
harshness, corrupting orders or
examples or counsels, making the
child beg, or abandonment.

 Relatedly, those found guilty of adultery or

concubinage with one another cannot donate
properties to each other (Article 739). Neither can
they succeed each other (Article 1028).
 Exception to par. 8: If the offended parent has
forgiven the offending parent or if reconciliation has
been reached between them, the disinheritance of
the former will not be sanctioned by law.

What are the sufficient causes for disinheriting

of a spouse?

1. When the spouse has been convicted of an

attempt against the life of the testator, his or
her descendants, or ascendants;
2. When the spouse has accused the testator of a
crime for which the law prescribes imprisonment
for six years or more, and the accusation has
been found to be false;
3. When the spouse by fraud, violence, intimidation
or undue influence causes the latter to make a
will or to change one already made;
4. When the spouse has given grounds for legal
separation;
5. When the spouse has given grounds for the loss
of parental authority;
6. Unjustifiable refusal to support the children or
the other spouse (Article 921).

Note: A decree of legal separation is not required.

What is the effect of subsequent reconciliation?

A subsequent reconciliation between the offender

and the offended person deprives the latter of the right to
disinherit and renders ineffectual any disinheritance that may
have been made (Article 922)
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Therefore, if reconciliation occurs before the

disinheritance is made – right to disinherit is extinguished. If
it occurs after the disinheritance is made – disinheritance is
set aside. In this case, no revocation of the will is needed.
The reconciliation itself repudiates the will.

What are the other ways of lifting or revoking

disinheritance?

1. Nullification of the will of the testator.

2. The subsequent institution of the disinherited heir in
a subsequent will.

What is the effect of setting aside the

disinheritance?

a. The disinherited heir is restored to his

legitime;
b. If the disinheriting will did not dispose of
the disposable portion, the disinherited heir
is entitled to his proportionate share (in
intestacy), if any, of the disposable portion.
c. If the disinheriting will disposed of
disposable portion in favor of testamentary
heirs, such dispositions remain valid.

Note: There is no required form of reconciliation. It

may be express or implied. In fact, the mere act of living
together in the same house is sufficient.

Is there a right of representation in

disinheritance?

The right of representation is granted to descendants

of disinherited descendants only (Article 972 provides that the
right of representation takes place in the direct descending
line, but never in the ascending line).

Thus, a disinherited child will be represented by his

children or other descendants. However, if the heir
disinherited is a parent/ascendant or spouse, the children or
descendants of the disinherited heir do not have any right of
representation.

The very property which the children and

descendants have received as legitime in representation of
the disinherited heir cannot be administered by the
 176

disinherited heir; neither can he exercise any right of usufruct

over the same (Article 923).

What is the extent of representation?

The representative takes the place of the disinherited

heir not only with respect to the legtime but also to any
intestate portion that the disinherited heir would have
inherited, if the free portion was not disposed in favor of
testamentary heirs.

Representation, therefore, occurs in compulsory and

intestate succession.

SECTION 7. LEGACIES AND DEVISES

What is legacy?

It is a testamentary disposition of personal property

by particular title.

What is devise?

It is a testamentary disposition of real property by

particular title.

Distinguish legatee and devisee from an

ordinary heir.

Essentially, the difference is that an heir receives an

aliquot or fractional part of the inheritance, whereas a legatee
or devisee receives specific or generic personalty or realty,
respectively.

What is the importance of the

definition/distinction?

To distinguish it from a testamentary disposition to

an heir because of the effects of preterition.

What can be devised or bequeathed?

Anything within the commerce of man. It is not

required that the thing devised or bequeathed belong to the
testator.

What is the limitation on the legacy or devise?

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It should not impair the legitime.

Who is charged with the payment or delivery of

a legacy or devise?

General rule – the estate.

However, the testator may impose the burden on a

testamentary heir or a legatee or devisee, who shall be bound
thereby. This will be in the nature of a subsidiary legacy or
devise, and as far as the heir, legatee or devisee, it will be a
mode.

What is the extent of liability of heir, devisee or

legatee in case of subsidiary legacies or devises?

The value of the benefit received by the testator.

What is the liability of two or more heirs who

take possession of the estate for the loss or destruction
of a thing devised or bequeathed?

They shall be solidarily liable, even though only one

of them should have been negligent. The liability imposed
here is based on malice, fault or negligence.

Who is liable for eviction?

General rule – the estate.

In case of a subsidiary legacy or devise – the heir,

legatee, or devisee charged.

State the rule if the testator, heir or legatee

owns only a part of, or an interest in the thing
bequeathed.

General rule – conveys only the interest or part

owned by the testator.

Exception – if the testator provides otherwise.

State the rule if the testator conveys more than

he owns.

The estate should try to acquire the part or interest

owned by the other parties.
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If the other parties are unwilling to alienate, the

estate should give the legatee/devisee the monetary
equivalent.

State the rule when the legacy/devise of a

thing belongs to another.

1. If the testator ordered the acquisition of the thing –

the order should be complied with. If the owner is
unwilling to part with the thing, the legatee/devisee
should be given the monetary value.
2. If the testator erroneously believed that the thing
belonged to him –legacy/devise is void.
3. Exception – if subsequent to the making of the
disposition, the thing is acquired by the testator
onerously or gratuitously, the disposition is validated.

State the rule if the legacy/devise of a thing

already belonged to the legatee/devisee.

1. The legacy of devise shall be void; and

2. It shall not be validate by an alienation by the
legatee/devisee subsequent to the making of the will

State the rule if the thing was owned by

another person at the time of making of the will and
acquired thereafter by the legatee/devisee.

1. If the testator erroneously believed that it belonged

to him – the legacy/devise is void.
2. If the testator was not in error –

a. If the thing was acquired onerously by the

legatee/devisee – the latter is entitled to
reimbursement;
b. If the thing was acquired gratuitously by the
legatee/devisee – nothing more is due;
c. If the thing was owned by the testator at
the time of making of the will and acquired
thereafter from him by the legatee/devisee
– Articles 932 and 933 are silent on this,
but Article 957, par. 2 can be applied and
the legacy/devise should be deemed
revoked.
State the rules in legacy of credit or
remission.
 179

1. It applies only to amount still unpaid at the time of

the testator’s death;
2. It is deemed revoked if testator subsequently sues
the debtor for collection;
3. If generic, it applies only to those existing at the
time of the execution of the will, unless otherwise
provided.

State the rule if the legacy/devise is to a

creditor.

General rule – treated like any other legacy/devise

and therefore will not be imputed to the debt.

Exception – imputed to the debt of the testator so

provides, and if the debt exceeds the legacy/devise, the
excess may be demanded as an obligation of the estate.

Define alternative legacies/devises.

One which provides that, among several things

mentioned, only one is to be given.

Who has the right of choice?

1. In a direct legacy/devise – the estate, through the

executor or administrator;
2. In a subsidiary legacy/devise - the heir, legatee or
devisee charged.

What are the rules if the person who is to

choose dies before choice is made?

1. If the choice belonged to executor or administrator –

the right is transmitted to his successor-in-interest;
2. If the choice belongs to an heir, legatee, or devisee –
the right is transmitted to his own heirs.

 Finality of choice – choice is irrevocable.

What is the rule on validity of generic

legacies/devises?

1. Generic legacy – valid even if no such movables exist

in the testator’s estate upon his death. The estate
will simply have to acquire what is given by legacy.
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2. Generic devise – valid only if there exists such an

immovable in the testator’s estate at the time of his
death.

What is the duration and amount of legacy for

education?

1. Duration – age of majority (18) or the completion of

a professional, vocational, or general course
whichever comes later;
2. Amount –

a. Primarily – that fixed by the

testator
b. Secondarily – that which is
proper, as determined by (i)
the social standing and
circumstances of the legatee,
and (ii) the value of the
disposable portion of the
estate

What is the duration and amount of legacy

for support?

1. Duration – the legatee’s lifetime, unless the testator

provides otherwise.
2. Amount –

a. Primarily – that fixed by the testator;

b. Secondarily - that which the testator
during his lifetime used to give the
legatee by way of support, unless
markedly disproportionate to the value
of the disposable portion;
c. Tertiarily – that which is reasonable, on
the basis of (i) the social standing and
circumstances of the legatee, and (ii)
the value of the disposable portion.

When is a legacy of periodical pension

demandable?

Upon the death of the testator, and the succeeding

ones at the beginning of the period without duty to reimburse
should the legatee die before the lapse of the period.

When is a devise/legacy demandable?

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1. If pure and determinate – upon the testator’s death.

2. If pure and generic – upon the testator’s death.
3. If conditional (suspensive) – upon the happening of
the condition.

When does ownership of the devise/legacy

vest?

1. If pure and determinate – upon the testator’s death.

2. If pure and generic –

a. If from testator’s estate – upon testator’s

death.
b. If acquired from a third person – upon
acquisition.

3. If with suspensive term – upon arrival of the term

but right to it vests upon the testator’s death.
4. If conditional (suspensive) – upon the testator’s
death, if the condition is fulfilled.

When shall the devisee/legatee entitled to the

fruits of the devise/legacy?

1. If pure and determinate – upon the testator’s death.

2. If pure and generic – upon determination, unless
testator provides otherwise.
3. If with a suspensive term – upon the arrival of the
term.
4. If conditional suspensive – upon the happening of
the condition, unless the testator provides otherwise.

If the estate should not be sufficient to cover

all the legacies or devise, what is the order payment
that must be followed?

1. Remuneratory legacies and devises;

2. Legacies or devises declared by the testator to be
preferential;
3. Legacies for support;
4. Legacies for education;
5. Legacies or devises of a specific, determinate thing
which forms a part of the estate;
6. All other pro rata.

What are the rules on acceptance and

repudiation of legacies/devises?
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General rule - acceptance may be total or partial.

Exception – if the legacy/devise is partly onerous

and partly gratuitous, the recipient cannot accept the
gratuitous part and renounce the onerous part. Any other
combination however is permitted.

If the legatee/devisee dies before accepting or

renouncing the legacy/devise, who can exercise such
right to accept or renounce?

His heirs as to their pro-indiviso share.

What are the rules in case there is repudiation

by or incapacity of legatee/devisee?

1. Primarily – substitution;
2. Secondarily – accretion;
3. Tertiarily – intestacy.

When may a legacy or devise be revoked by

operation of law?

1. Transformation of the thing;

2. Alienation;
3. Total loss;
4. If the legacy is a credit against a third person or the
remission of debt, and the testator, subsequent to
the making of the will, brings an action against the
debtor for payment.

CHAPTER 3. INTESTATE SUCCESSION

What is legal or intestate succession?

It is one, which takes place by operation of law in

the absence of a valid will.

When does legal or intestate succession take

place?

1. If a person dies without a will, or with a void will, or

one which has subsequently lost its validity;
2. When the will does not institute an heir to, or
dispose of all the property belonging to the testator.
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In such a case, legal succession shall take place only

with respect to the property of which the testator
has not disposed;
3. If the suspensive condition attached to the institution
of heir does not happen or is not fulfilled, or if the
heir dies before the testator, or repudiates the
inheritance, there being no substitution and no right
of accretion;
4. When the heir instituted is incapable of succeeding,
except in cases provided in the Civil Code;
5. When there is preterition of a compulsory heir in the
direct line;
6. If the testamentary disposition is subject to a
resolutory condition and such condition is fulfilled;
7. If the testamentary disposition is subject to a
resolutory term and such term expires;
8. In case of ineffective dispositions (Articles 960 &
854).

What are the three basic rules of intestacy?

1. The rule of preference of lines;

2. The rule of proximity; and
3. The rule of equality among relatives of the same
degree.

What is meant by the principle of preference of

lines in intestate succession?

It refers to the principle by virtue of which relatives

of the decedent who are in the direct descending line shall
exclude those who are in the direct ascending or in the
collateral line, while those who are in the direct ascending
line, on the other hand, shall exclude those who are in the
collateral line.

What is meant by the principle of proximity?

It refers to the rule by virtue of which relatives of the

decedent nearest in degree shall exclude the more remote
ones. (Article 962) This rule, however, presupposes the fact
that all the relatives involved should belong to the same line.
In other words, it is subject to the principle of preference
between lines.

Is there an exception to the principle of

proximity?
 184

There is one exception to this rule and that is when

the right of representation properly takes place. The reason
for this is that in representation, the representative is raised
by legal fiction to the place and degree of the person
represented so that he acquires the rights which the latter
would have of he were living or if he could have inherited.

What are the exceptions to the rule that

relatives in the same degree shall inherit in equal
shares?

1. The rule of division by line in the ascending line

(Article 987), that is, when the inheritance is divided
between paternal and maternal grandparents. In this
case, if two grandparents survive the decedent in the
paternal line and by one grandparent in the maternal
line, one-half shall pass to the surviving grandparent
in the maternal line.
2. The distinction between full-blood and half-blood
relationships among brothers and sisters, as well as
nephews and nieces (Articles 1006 & 1008), that is,
when the inheritance is divided among brothers and
sisters, some of whom are of the full blood and
others of the half blood. In this case, those of the full
blood shall be entitled to double the share of those of
the half blood. (NOTE: This distinction is important
only with reference to brothers and sisters and
nephews and nieces, because there is a ratio of 2:1
for full-blood and half-blood relationship respectively.
But with respect to other collateral relatives, the full-
blood and half-blood relationship is immaterial.)
3. In certain cases when the right of representation
takes place. In this case, the division of the
inheritance is per stripes and not per capita. (Article
974).
4. The rule of preference of lines.
5. The distinction between legitimate and illegitimate
filiations (the ratio under the present law is 2:1
(Article 983, in relation to Article 895 as amended by
Article 176, Family Code).

What is meant by degree? How is proximity of

relationship determined?

Proximity of relationship is determined by the

number of generations. Each generation forms a degree
(Article 963).
 185

What is meant by line?

Line refers to a series of degrees, which may be

either direct or collateral.

Define the different kinds of lines.

1. A direct line is that constituted by the series of

degrees among ascendants and descendants. There
is no legal limit to the number of degrees for
entitlement to intestate succession.
2. A collateral line, on the other hand, is that
constituted by the series of degrees among persons
who are not ascendants and descendants, but who
come from a common ancestor. (Article 964)
Computation of degrees is particularly important in
the collateral line because intestate succession
extends only to the 5th degree of collateral
relationships.
3. The direct line, in turn, may either be descending or
ascending. The former unites the head of the family
with those who descend him. The latter binds a
person with those from whom he descends. (Article
965)

Who are collaterals by degrees?

1. First degree – none

2. Second degree – brothers and sisters
3. Third degree –
3.1 Uncles and aunts
3.2 Nephews and nieces
4. Fourth degree –
4.1 First cousins
4.2 Brothers and sisters of grandparent
(Granduncles and grandaunts)
4.3 Grandchildren of a brother or sister
(Grandnephews and grandnieces)
5. Fifth degree –
5.1 A child of a first cousin
5.2 First cousin of a parent
5.3 Brothers and sisters of a great-grandparent
5.4 Great grandchildren of a brother or sister.

Define representation.

It is a right crated by fiction of law, by virtue of

which the representative is raised to the place and degree of
 186

the person represented, and acquires the rights, which the

latter would have if he were living or if he could have
inherited (Article 970).

Is there accretion in intestacy?

There is accretion in intestacy among heirs of the

same degree, in case of predecease, incapacity, or
renunciation of any one of them. Relatives must be in the
same kind of relationship to the decedent.

This is because of the principle of preference of lines

in intestate succession, thus there can be no accretion among
a grandchild, a grandparent and a brother of the decedent,
even if they are all related to him in the second degree,
because they are not inheriting together in the first place.

Exception – when there is no accretion:

In case of predecease or incapacity, representation if

proper, will prevent accretion from occurring (Article 968).

What is the effect of renunciation by all in the

same degree?

The right of succession should first be passed on the

heirs in succeeding degrees (in successive order) before the
next line can succeed, because of the rule if preference of
lines. Thus:

1. The descending line first – if all the descendants of a

certain degree renounce, succession passes to the
descendants of the next degree, and so on;
2. The ascending line next – should no one be left in
the descending line, the heirs in the ascending line
acquire the right of succession, again in order of
degrees of proximity;
3. The collateral line last – only if all the descendants
and ascendants renounce will the collateral relatives
acquire the right to succeed. (Article 969)

Notes:

 They inherit in their own right and cannot represent

the person repudiating the inheritance.
 187

 Representation does not apply in cases of universal

renunciation outlined above, because there is no
representation in renunciation.

What is representation?

Representation is a right created by fiction of law, by

virtue of which the representative is raised to the place and
the degree of the person represented, and acquire the rights,
which the latter would have if he were living, or if he could
have inherited (Article 970).

The representative is called to the succession by law

and not by the person represented. The representative does
not succeed the person represented but the one whom the
person represented would have succeeded (Article 971).

In order that representation may take place, it is

necessary that the representative himself be capable of
succeeding the decedent (Article 973)

In what kinds of succession do representation

operate?

a. Legitime; and

b. Intestacy.

In what line or lines shall the right of

representation take place?

1. It takes place in the direct descending line, but never

in the ascending line (Article 972).
2. In the collateral line, it takes place only in favor of
the children of brothers or sisters, whether they be
of the full or half blood (Article 972).
3. When children of one or more brothers or sisters of
the deceased survive, if they survive with their
uncles or aunts. But if they alone survive, they shall
inherit in equal portions (Article 975).

When does the right of representation take place?

What are the instances when representation operates?

1. In testamentary succession:
 188

a. In case a compulsory heir in the direct

descending line dies before the testator
survived by his children or descendants
(Article 856);
b. In case a compulsory heir in the direct
descending line is incapacitated to succeed
from the testator and has children and
descendants (Articles 856, 1035);
c. In case a compulsory heir in the direct
descending line is disinherited and he has
children or descendants (Article 923).

2. In intestate succession:

a. In case a legal heir in the direct descending

line dies before the decedent survived by
his children or descendant (Articles 981,
982), or in the absence of other heirs who
can exclude them from the succession, a
brother or sister dies before the decedent
survived by his or her own children (Articles
972, 975);
b. In case a legal heir in the direct descending
line is incapacitated to succeed from the
decedent (Articles 1035) and he has
children or descendants, or in the absence
of other heirs who can exclude them from
the succession, a brother or sister is
incapacitated to succeed from the decedent
and he or she has children. (Articles 972,
975, 1035).

Can an heir who repudiates his inheritance be

represented?

No, because an heir who has repudiated his

inheritance may not be represented (Article 977).

Can a voluntary heir or legatee or devisee who

dies before the testator or who is incapacitated to
succeed be represented?

No, since in testamentary succession, the right of

representation is a right, which pertains only to the legitime
of compulsory heirs (Article 856).

What are the different limitations imposed by

law to the right of representation in the collateral line?
 189

(1) The right can be exercised only by nephews

and nieces of the decedent (Articles 792,
975);
(2) The right can be exercised by nephews and
nieces of the decedent only if they concur
with at least one brother or sister of the
decedent (Article 975). Otherwise, if they
are the only survivors, they shall inherit in
their own right and not by right of
representation.
(3) The right of representation in the collateral
line is possible only in intestate succession;
in other words, it cannot possibly take place
in testamentary succession. In
testamentary succession, only compulsory
heirs may be represented (Article 856). It
is, of course, obvious that brothers and
sisters are not compulsory heirs. If
instituted, they are classified as mere
voluntary heirs.

Can an illegitimate person be represented?

If the child to be represented is legitimate – only

legitimate children/descendants can represent him (Article
992).

If the child to be represented is illegitimate – both

legitimate and illegitimate children/descendants can represent
him (Articles 902, 989, 990)

Is there representation by a renouncer?

Although a renouncer cannot be represented, he can
represent the person whose inheritance he has renounced
(Article 976). The reason is in Article 971 “The representative
does not succeed the person represented but the one whom
the person represented would have succeeded.

How does representation operate?

Per stirpes – the representative receives only what

the person represented would have received. If there are
more than one representative in the same degree, then the
portion is divided equally, without prejudice to the distinction
between legitimate and illegitimate children, when applicable.

What are the rules on qualification?

 190

1. The representative must be

qualified to succeed the decedent
(Article 973).
2. The representative need not be
qualified to succeed the person
represented (Article 971).
3. The person represented need not
be qualified to succeed the
decedent – in fact, the reason
why representation is taking
place is that the person
represented is not qualified,
because of predecease, or
incapacity, or disinheritance.

What is the share, which is given to a person

who inherits by right of representation?

In testamentary succession, the share which is given

to the representative is the legitime of the compulsory heir
who is represented, while in intestate succession, it is the
entire share of the legal heir who is represented.

What is the difference in the rule in case of

representation by grandchildren and representation by
nephews and nieces?

1. If all the children are disqualified

– the grandchildren still inherit
by representation (Article 982)
(Per stirpes).
2. If all the brothers and sisters are
disqualified – the nephews and
nieces inherit per capita (Article
975).

Who are intestate heirs?

1. Legitimate children/
descendants;
2. Illegitimate
children/descendants;
3. Legitimate parents/ascendants;
4. Illegitimate parents;
5. Surviving spouse;
6. Brothers, sisters, nephews,
nieces;
 191

7. Other collaterals – to the 5th

degree;
8. State.

What is the order of intestate succession?

1. If the decedent is a legitimate

person:

(1) Legitimate children or descendants.

a. Exclude parents,
collaterals and state.
b. They concur with
surviving spouse and
illegitimate children.
c. They are excluded by no
one.

(2) Legitimate parents or ascendants.

a. Exclude collaterals and

state
b. Concur with illegitimate
children and surviving
spouse
c. They are excluded by
legitimate children

(3) Illegitimate children.

a. Exclude illegitimate
parents, collaterals and
state
b. Concur with surviving
spouse, legitimate
children and legitimate
parents
c. They are excluded by no
one

(4) Illegitimate parents.

a. Exclude collaterals and

state
 192

b. Concur with surviving

spouse
c. They are excluded by
legitimate children and
illegitimate children

(5) The surviving spouse.

a. Excludes collaterals other

than brothers, sisters,
nephews and nieces and
state
b. Concurs with legitimate
children, illegitimate
children, legitimate
parents, illegitimate
parents, brothers, sisters,
nephews and nieces
c. Excluded by no one.

(6) Brothers and sisters, nephews and nieces.

a. Exclude all other

collaterals and the state
b. Concur with surviving
spouse
c. Are excluded by legitimate
children, illegitimate
children, legitimate
parents, and illegitimate
parents.

(7) Other collateral relatives within the fifth degree.

a. Exclude collaterals in
remoter degree and the
state
b. Concur with collaterals in
the same degree
c. Are excluded by legitimate
children, illegitimate
children, legitimate
parents, illegitimate
parents, surviving spouse,
brothers and sisters, and
nephews and nieces.

(8) State.
 193

a. Excludes no one
b. Concurs with no one
c. Is excluded by everyone

2. If the decedent is an illegitimate

person:

[For rules of exclusion and

concurrence, see above]

(1) Legitimate children and descendants;

(2) Illegitimate children;
(3) Natural or spurious parents;
(4) The surviving spouse subject to the concurrent right
of brothers and sisters, nephews and nieces;
(5) Brothers and sisters, nephews and nieces;
(6) State.

Who among the legal heirs enumerated above

cannot be excluded from the succession?

(1) Legitimate children or descendants;

(2) Illegitimate children; and
(3) Surviving spouse.

What are the different combinations in

intestate succession (Articles 978 to 1011)?

1. Legitimate children alone (Article 979) –

The whole of the estate, divided equally.

2. Legitimate children and illegitimate children (Articles

983 and 176 FC) –

The whole estate, each illegitimate child

getting ½ the share of one legitimate child.

3. Legitimate children and surviving spouse (Article

996) –

The whole estate, divided equally (the

surviving spouse counted as one legitimate
child).

4. Legitimate children, surviving spouse and illegitimate

children (Articles 999 and 176, FC) –
 194

The whole estate, the surviving spouse

being counted as one legitimate child and
each illegitimate child getting ½ of the
share of one legitimate child.

5. Legitimate parents alone (Article 985) –

The whole estate, divided equally.

6. Legitmate ascendants (other than parents) alone
(Article 987) –

The whole estate, observing, in proper

cases, the rule of division by line.

7. Legitimate parents and illegitimate children (Article

991) –

Legitimate parents – ½ of the estate;

Illegitimate children – ½ of the estate.

8. Legitimate parents and surviving spouse (Article

997) –

Legitimate parents – ½ of the estate;

Surviving spouse – ½ of the estate.

9. Legitimate parents, surviving spouse, illegitimate

children (Article 1000) –

Legitimate parents – ½ of the estate;

Surviving spouse – ¼ of the estate;
Illegitimate children – ¼ of the estate.

10. Illegitimate children alone (Article 988) –

The whole of estate, divided equally.

11. Illegitimate children and surviving spouse (Article

998) –

Illegitimate children - ½ of the estate;

Surviving spouse – ½ of the estate.

12. Surviving spouse alone (Article 994 & 995) –

The whole of the estate.

 195

13. Surviving spouse and illegitimate parents –

(No article governing)

Surviving spouse – ½ of the estate;

Illegitimate parents – ½ of the estate by
analogy with Article 997.

14. Surviving spouse and legitimate brothers and sisters,

nephews and nieces (Article 1001) –

Surviving spouse – ½ of the estate;

Legitimate brothers, sisters, nephews and
nieces – ½ of the estate (the nephews and
nieces inheriting by representation, in
proper cases).

15. Surviving spouse and illegitimate brothers and

sisters, nephews and nieces (Article 994) –

Surviving spouse – ½ of the

estate;
Illegitimate brothers, sisters,
nephews, nieces – ½ of the estate
(the nephews and nieces inheriting
by representation, in proper
cases).

16. Illegitimate parents alone (Article 993) –

The whole estate.

17. Illegitimate parents and children of any kind (Article

993) –

Illegitimate parents – excluded;

Children – inherit in accordance
with Nos. 1, 2 & 10, supra.

18. Legitimate brothers and sisters alone (Articles 1004

& 1006) –

The whole estate, with a

brother/sister of the half-blood
inheriting ½ the share of a
brother/sister of the full-blood;
 196

Legitimate brothers and sisters,

nephews and nieces (Article 1005
& 1008) – the whole of the estate,
observing the 2:1 proportion of
full- and half-blood fraternity (No.
18, supra) and the nephews and
nieces inheriting by representation
in proper cases.

19. Nephews and nieces with aunts and uncle (Article

1009 by inference) –

Uncles and aunts – excluded;

Nephews and nieces – inherit in
accordance with No. 22, infra.

20. Illegitimate brothers and sisters alone (no article

governing) –

The whole estate, observing the

2:1 proportion of full- and half-
blood fraternity – by analogy with
No. 18, supra.

21. Illegitimate brothers, sisters, nephews, and nieces

(no article governing) –

The whole estate, as in No. 19,

supra, by analogy.

22. Nephews and nieces alone (Article 975 & 1008) –

The whole estate, per capita, but

observing the 2:1 proportion for
the full- and the half-blood.

23. Other collaterals (Article 1009 & 1010) –

The whole estate, per capita, the

nearer in degree excluding the
more remote.

24. State (Article 1011) –

The whole estate, assigned and

disposed as follows:
 197

a. If decedent is a resident of the Philippines

at any time:

1. Personality property – to
municipality of last
residence
2. Real property – where
situated

b. If decedent never a resident of the

Philippines:

1. Personal property and real

property – where
respectively situated.

c. How property is to be used:

1. For the benefit of public

education and charitable
institutions in the
respective
municipalities/cities
situated.
2. Alternatively, at the
instance of an interested
party, or motu propio,
court may order creation
of a permanent trust for
the benefit of the
institution concerned.

What are the successional rights of illegitimate

children in intestate succession?

a. If they survive alone as a class – they are

entitled to the entire estate. (Articles 988,
989, 990, 983)

b. If they survive with legitimate descendants

– estate shall be divided with the proportion
of 2:1. (Articles 895, 983)

c. If they survive with ascendants – if

decedent is legitimate, the legitimate
ascendants are entitled to ½ of the estate,
while the illegitimates are entitled to the
other ½. (Article 991) If the decedent is
 198

illegitimate, ascendants are excluded;

consequently, the illegitimates are entitled
to the entire estate. (Article 993)

d. If they survive with spouse – the

illegitimates are entitled to ½ of estate,
while the surviving spouse is entitled to the
other ½ (Article 998)

e. If they survive with legitimate descendants

and spouse – estate shall be divided in the
proportion of 2”1, with the surviving spouse
getting the same share as that of a
legitimate child. (Article 999, 983)

f. If they survive with ascendants and spouse

– if decedent is legitimate, the legitimate
ascendants are entitled to ½ of the estate;
the illegitimates are entitled to ¼. (Article
1000)If the decedent is illegitimate, the
parents are excluded; consequently, the
illegitimates are entitled to ½ of estate,
while the surviving spouse is entitled to the
other ½. (Article 993, 994)

Can an illegitimate child inherit ab intestato

from the legitimate children and relatives of his father
or mother, and vice versa?

No, an illegitimate child has no right to inherit ab

instestato from the legitimate children and relatives of his
father or mother; nor shall such children or relatives inherit in
the same manner from the illegitimate child (Article 992).

This is the well known, and much criticized,

successional barrier between legitimate and the illegitimate
relatives of a decedent.

What are the successional rights of the

surviving spouse in intestate succession?

(1) If he or she survives alone – he or she is entitled to

the entire estate (Article 995);
(2) If she or he survives with legitimate descendants –
he or she shall have the same share as that of each
legitimate child (Article 996);
(3) If he or she survives with ascendants – if decedent
is legitimate, the legitimate ascendants are entitled
 199

to ½ of estate, while he or she is entitled to the

other ½. (Article 997) If decedent is illegitimate,
the same rule applies (Article 994);
(4) If he or she survives with illegitimate children – the
illegitimates are entitled to ½ of the estate, while
she or he is entitled to the other ½ (Article 998);
(5) If she or he survives with brothers and sisters,
nephews and nieces – he or she is entitled to ½ of
the estate, while brothers and sisters, nephews and
nieces are entitled to the other ½ (Article 1001);
(6) If he or she survives with legitimate descendants
and illegitimate children – estate shall be divided in
accordance with the proportion of 2:1, with the
surviving spouse getting the same share as that of a
legitimate child (Article 999, 983);
(7) If he or she survives with ascendants and
illegitimate children – if decedent is legitimate, the
legitimate ascendants are entitled to ½ of estate,
the illegitimates are entitled to ¼, and the surviving
spouse is entitled to ¼. (Article 1000) If decedent is
illegitimate, the parents are excluded; consequently,
the illegitimates are entitled to ½ of estate, while
the surviving spouse is entitled to the other ½.
(Article 993, 994)

INTESTACY: INTESTATE SHARE OF SURVIVING SPOUSE

SPOUSE AND SHARE ARTICLE

CONCURRING
HEIRS

1. Spouse alone 1. All Articles 995

& 996

1. Spouse 1. ½ Article 996

2. 1 leg. Child 2. ½

1. Spouse Divide the estate by total Article 996

number of legitimate
2. 2 or more leg. children plus the spouse.
children Spouse is considered as
one child.

1. Spouse 1. Same share as one Articles 999

legitimate child & 176 FC 71
 200

2. 2 shares each
2. Leg. Children 3. 1 share each
3. Illeg. children

1. Spouse 1. ½ Article 997

2. Leg. parents 2. ½

1. Spouse 1. ½ Article 991

(by
2. Illeg. parents 2. ½ analogy)
Article 889
(by
analogy)

1. Spouse 1. ½ Article 998

2. Illeg. children 2. ½

1.Spouse 1. ¼ Article 1000

2. Leg. parents 2. ½
3. Illeg. Children 3. ¼

1. Spouse 1. ½ Articles
1001 & 994
2. Brothers & 2. ¼
sisters, nephews &
nieces

Special case not included in the chart on

intestacy:

Article 999 does not cover the situation where the

mere survivors are (1) one legitimate child; (2) one or more
illegitimate children; and (3) spouse.

71
Formula: The legitimate and illegitimate children will divide
the estate in the proportion of 2:1. The surviving spouse will
be considered as one legitimate child. If due to the number of
illegitimate children, the legitimes of the legitimate children
and the spouse are impaired, the illegitimate children will
receive only what is the equivalent of the free portion in
testamentary succession.
 201

If the surviving spouse is given a share equivalent to

the share of the legitimate child (which is one-half of the
estate), nothing would be left to the illegitimate children.

In order not to deprive the illegitimate children of

their legitimes, the fair solution is to apply by analogy the
provisions of Article 892 under Testamentary Succession (See
par. 2 Chart on Testacy). In which situation, the surviving
spouse will get a share equivalent to ¼ of the estate. The
other ¼ will go to the illegitimate children.

What conditions must exist in order that the

estate of the decedent shall be escheated in favor of
the state?

a. First, the decedent must have died

intestate;
b. Second, he dies seized of real and/or
personal properties in the Philippines; and
c. Third, he leaves no heir or person entitled
to such real and personal properties.

What are the rules on adopted children?

The present rules are contained in Article 189 of the

Family Code:

“The adopted child inherits from his adopter in

exactly the same way and to exactly the same extent as a
legitimate child”

The adopted child remains an heir (both compulsory

and intesate) of his parents and blood relatives, as if he had
not been adopted. See R.A. No. 8552.

What are the rules on succession to the estate

of an adopted child?

1. Legitimate and illegitimate children and

surviving spouse - Same as Nos. 1, 2,
3, 4, 10, 11 and 12, supra.
2. Biological parents

Parents/ascendants – ½ of the
estate
Adopter – ½ of the estate
 202

3. Surviving spouse or illegitimate children

+ adopter

Spouse or illegitimate children – ½

of the estate
Adopter – ½ of the estate

4. Surviving spouse and illegitimate

children + adopter

Spouse – 1/3 of the estate

Illegitimate children – 1/3 of the
estate
Adopter – 1/3 of the estate

5. Adopter alone – the whole estate

6. Collateral blood relatives alone – Civil

Code on intestacy applies. See Nos. 18
to 24, supra.

CHAPTER 4. – PROVISIONS COMMON TO TESTATE

AND INTESTATE SUCCESSION

SECTION 1. RIGHT OF ACCRETION

Define accretion

Accretion is a right by virtue of which, when two or

more persons are called to the same inheritance, devise or
legacy, the pat assigned to the one who renounces or cannot
receive his share, or who died before the decedent, is added
or incorporated to that of his co-heir, co-devisee, or co-
legatee (Article 1015).

When does the right of accretion take place?

a. In case of testamentary succession:

1) Predecease of the instituted heir

2) Incapacity of the instituted heir
3) Repudiation by the instituted heir
4) Non fulfillment of the suspensive
condition imposed upon the
instituted heir
5) Ineffective testamentary
dispositions
 203

NOTE: There must be renunciation, predecease, or

incapacity of one (or more but less than all) of the instituted
heirs.

b. In case of intestate succession:

1) Predecease
2) Incapacity
3) Repudiated

What are the requisites, which must concur in

order for accretion to take place in testamentary
succession?

a. Two or more persons are called to the same

inheritance, legacy or devise jointly or pro indiviso;
b. There is a vacancy in the inheritance, legacy or
devise as a result of predecease, incapacity,
repudiation, or some other cause (Article 1016).

In intestate succession, only one requisite is

necessary – that there must be a vacancy in the inheritance
as a result of predecease.

Distinguish representation from accretion.

I. In testamentary succession:

a. As to legitime:

i. In case of prerdecease of
an heir, there is
representation if there are
children or descendants; if
none, the other heirs
inherit in their own right.
ii. In case of incapacity of an
heir, the results are the
same as in predecease.
iii. In case of disinheritance
of an heir, the results are
the same as in incapacity
or predecease.
iv. In case of repudiation by
an heir, the other heirs
inherit in their own right;
no accretion.
 204

b. As to the free portion:

Accretion takes place when the requisites in Article

1016 are present, provided that there is no substituted, but if
such requisites are not present, the other heirs inherit in their
own right.

II. In intestate succession:

a. In case of predecease, there is representation if

there are children or descendants; if none, the heirs
inherit in their own right, the result being the same
as accretion.
b. In case of incapacity, there is representation if there
are children or descendants; if none, accretion takes
place.
c. In case of repudiation, there is always accretion.

NOTE: In intestacy, accretion is subordinate to

representation. In testamentary succession, accretion is
subordinate to substitution, if the testator so provides. This
is because substitution is the testator’s express intent,
whereas accretion is merely his implied intent.

Article 1020 provides that the heirs whom the

inheritance accrues shall succeed to al the rights and
obligations which the heir who renounced or could not
receive it would have had. What are the exceptions to
this rule?

a. In testamentary succession, if the testator provides

otherwise;
b. If the obligation is purely personal, and hence
intransmissible.

Among compulsory heirs, when does the right

of accretion take place?

“Among compulsory heirs the right of accretion shall

take place only when the free portion is left to two or more of
them, or to any one of them and to a stranger.” (Article 1021,
par 1)

Is there accretion in legitime?

 205

No, Article 1021, par. 2 provides that should the part

repudiated be the legitime, the other co-heirs shall succeed to
it in their own right, and not by accretion.

State the basic rules in legal succession.

a. The share of the person who repudiates the

inheritance shall always accrue to his co-heirs.
(Article 1018)
b. The share of the person who repudiates shall go to
his co-heirs by their own right in the same
proportion they inherit (Article 1019)
c. The heirs inherit all the rights and obligations (Article
1020)
d. Among the compulsory heirs the right of accretion
shall take place only when the free portion is left to
two or more of them, or to any one of them and to a
stranger.” (Article 1021, par 1)
e. Should the part repudiated be the legitime, the other
co-heirs shall succeed to it in their own right, and
not by accretion. (Article 1021)

Is there accretion if the renunciation of

inheritance was made during the lifetime of the
decedent?

No, said renunciation is void, having been done

during the lifetime of the decedent. Renunciation of future
inheritance is void. (Article 905). Accretion takes place when
there is renunciation after the decedent’s death, because the
heir who renounced already acquired a vested right over his
share.

Suppose that the person who is incapacitated

to inherit has children, will his share accrue to his co-
heirs?

No, because accretion applies only if the right of

representation would not take place. (Article 968).

SECTION 2. CAPACITY TO SUCCEED

BY WILL OR BY INTESTACY

In order that a person can inherit either by will

or by intestacy, what requisites must concur?
 206

a. That the heir, legatee or devisee must be

living or in existence at the moment the
succession opens;
b. That such heir, legatee or devisee must not
be incapacitated or disqualified by law to
succeed. (Articles1024, 1025)

Can a thing or an entity which is neither natural

nor a juridical person inherit by will?

As a general rule, a thing or an entity, which is

neither a natural nor a juridical person, cannot inherit by will.
This is apparent from Article 1025, which declares that in
order to be capacitated to inherit, the heir, legatee or devisee
must be living at the moment the succession opens. There
are however some well known exceptions, such as those
organizations or associations for religious, scientific, cultural,
educational, or charitable purposes mentioned in Article 1026
or the poor in general contemplated in Article 1030.

Give and define the different kinds of

incapacity.

Incapacity to succeed may either be:

a. Absolute incapacity – the incapacity of a

person, whether natural or juridical, to
succeed any person in any form with regard
to any property.
b. Relative incapacity – the incapacity of a
person, whether juridical or natural, to
succeed by reason of a special relation
which he has to the decedent or to other
persons, or to the property disposed of.

Who are absolutely incapacitated to succeed?

a. Those not living at the moment the

succession is opened (Article 1025, par. 1);
b. Individuals, associations and corporations
not permitted by law to inherit (Article
1027, par 6); and
c. Uncertain persons. (Article 855)

What are the different kinds of relative

incapacity?
 207

a. Incapacity based on the possibility of undue

influence or on interest (Article 1027)
b. Incapacity based on public policy or morality
(Articles 1028, 739)
c. Incapacity by reason of unworthiness
(Article 1032); and
d. Incapacity by operation of law, such as the
incapacity of the guilty spouse to inherit ab
intestato from the innocent spouse if there
is a decree of legal separation, or the
incapacity of illegitimate children and
legitimate relatives of the decedent to
inherit ab intestato from each other (Article
992)

Who are incapacitated to inherit by will?

1. The priest who heard the confession of the testator

during his last illness, or the minister of the gospel
who extended spiritual aid to him during the same
period.
2. The relatives of such priest or minister of the gospel
within the fourth degree, the church, order, chapter,
community, organization, or institution to which such
priest or minister may belong.
3. A guardian with respect to testamentary dispositions
given by a ward in his favor before the final accounts
of guardianship have been approved, even if the
testator should die after the approval thereof;
nevertheless, any provision made by the ward in
favor of the guardian when the latter is his
ascendant, descendant, brother, sister or spouse,
shall be valid.
4. Any attesting witness to the execution of the will, the
spouse, parents, or children, or any one claiming
under such witness, spouse, parents, children.
5. Any physical, surgeon, nurse, health officer or
druggist who took care of the testator during his last
illness.
6. Individuals, associations and corporations not
permitted by law to inherit. (Article 1027)
7. The person with whom the testator was guilty of
adultery and concubinage at the time of the
execution of the will.
8. Those persons found guilty of the same criminal
offense as the testator, when the inheritance, legacy
or devise is the consideration thereof.
 208

9. A public officer or his spouse, descendants and

ascendants, when the inheritance, legacy or devise is
given to such officer or his spouse, descendants and
ascendants by reason of his office. (Article 739)

NOTE: Those who are disqualified from receiving

donations under Article 739 are likewise disqualified from
receiving testamentary dispositions from the parties specified
in that article. (Article 1028)

In Article 1027, can the incapacitated heir still

entitled to his legitime or to an intestate portion?

Yes, because this article applies only to testamentary

succession. It has no application to the legitime or to
intestacy

Who are incapable of succeeding by reason of

unworthiness?

1. Parents who have abandoned their children or

induced their daughters to lead a corrupt or immoral
life, or attempted against their virtue.
2. Any person who has been convicted of an attempt
against the life of the testator, his or her spouse,
descendants, or ascendants.
3. Any person who has accused the testator of a crime
for which the law prescribes imprisonment of six
years or more, if the accusation has been found
groundless.
4. Any heir of full age, who having knowledge of the
violent death of the testator, should fail to report it
to an officer of the law within a month, unless the
authorities have already taken action; this
prohibition shall not apply to cases wherein,
according to law, there is no obligation to make an
accusation.
5. Any person convicted of adultery or concubinage
with the spouse of the latter.
6. Any person who by fraud, violence, intimidation, or
undue influence should cause the testator to make a
will or to change one already made.
7. Any person who by the same means prevents
another from making a will, from revoking one
already made, or who supplants, conceals, or alters
the latter’s will.
8. Any person who falsifies or forges a supposed will of
the decedent.
 209

What is the effect of unworthiness as to the

successional rights of the heir?

Unworthiness gives rise to total disqualification, i.e.,

the unworthy heir is incapacitated to succeed from the
offended party by any form of succession: the legitime,
testamentary, and intestate. [Thus, unworthiness and
disinheritance have identical effects.]

How may the cause of unworthiness be erased?

1. A written condonation, or
2. The execution by the offended party of a will with
knowledge of the cause of unworthiness.

Since the acts of unworthiness are offenses directed

against the decedent, only the decedent and no other can
erase the effects of such acts of unworthiness. He can do this
by pardoning the offense either expressly or impliedly. There
is an express pardon when the decedent condones the act of
unworthiness in writing. There is an implied pardon when the
testator with knowledge of the act of unworthiness, executes
a will instituting the person who has committed the offense as
an heir. (Article 1033)

What is the effect of incapacity upon

compulsory heirs?

If the heir who is incapable of succeeding is a

compulsory heir, whether or not his right to the legitime is
affected shall depend upon the cause of the incapacity. If the
incapacity is due to any of the causes specified in either
Article 1027 or 1028, only the free portion given to him is
affected, but not his legitime. If the incapacity however, is
due to any of the causes specified in Article 1032, it is clear
that even the legitime of the compulsory heir who has
committed the act of unworthiness is affected.

If an incapacitated heir has already taken

possession of his inheritance after the decedent’s
death, what is the remedy of the other heirs?

Any person who has an interest in the succession

may bring an action against the incapacitated heir for a
declaration of incapacity and for the recovery of the
inheritance, devise or legacy.
 210

Within what period must the action be bought?

The action must be bought within five years from the

time the incapacitated heir took possession thereof. (Article
1040)

When is capacity determined?

1. General rule – the time of the decedent’s death.

Reason: That is when succession vests (Article 777)

2. If institution is subject to a suspensive condition:

a) Time of decedent’s death, and

b) Time of happening of condition

3. If final judgment is a requisite of unworthiness –

time of final judgment.

[Final judgment is required in Pars. 2,3 and 5 of

Article 1032]

Is there representation in unworthiness?

Yes, unworthiness is one of the three occasions for

representation to operate.

What is the extent of representation in

unworthiness?

It extends not only to the legitime, but also to

whatever portion in intestate succession the person
represented

What is the liability of the person who is

incapable of succession who enters into the possession
of the hereditary property?

a. The obligation to return, with accessions;

b. Liability for fruits, which were received and
could have been received.

Note: These are the same rules laid down in Article

549, because he is deemed in bad faith and the law applies to
him the rules on possession of bad faith.
 211

SECTION 3. ACCEPTANCE AND REPUDIATION OF

INHERITANCE

Define acceptance and repudiation.

Acceptance of inheritance is the act by virtue of

which the person called to succeed by universal title by the
testator or by law manifests his will to make as his own the
universality of the rights and obligations which are transferred
to him. Repudiation is the manifestation by such heir his
desire not to succeed to said universality.

Note: In all hereditary succession, three moments

can be distinguished:

a. The opening of the succession;

b. The availability of the same; and
c. The acquisition of the same.

The succession of a person is opened at the moment

of his death; it becomes available from the moment it can be
accepted; and it is acquired through acceptance.

What is the nature of acceptance and repudiation of

inheritance?

It is an act, which is purely voluntary and free.

(Article 1041)

When an heir accepts or repudiates his

inheritance, when will it take effect?

The effects of the acceptance or repudiation shall

always retroact to the moment of the death of the decedent.
(Article 1042)

Consequences:

a. Acceptance – the successor will be deemed to

have owned and possessed the property from
the precise moment of the decedent’s death.
This rule has consequence with respect to
acquisitive prescription, capacity to succeed,
representation, etc.
b. Renunciation – the renouncer is deemed never
to have owned or possessed the property
 212

(Article 533) 72. Consequently, the substitute,

co-heir, or intestate heir who gets the property
in default of the renouncer is deemed to have
owned and possessed it from the moment of the
decedent’s death.
c. Conditional institutions – Even if the institution
is conditional, the principle of retroactivity still
applies. Consequently, upon the happening of
the condition, the property passes to the heir
but with retroactive effect. [This is the same
principle in conditional obligations (Article
1187)] Similarly, if the condition does not
happen, the property goes to the appropriate
successor, with the same retroactive effect.

When may an heir, legatee or devisee accept or

repudiate his inheritance?

When the following requisites are present:

1. He is certain of the death of the person from

whom he is to inherit; and
2. He is certain of his right to the inheritance,
legacy or devise. (Article 1043)

What are the requisites of a valid waiver of

inheritance?

For a waiver to exist, three elements are essential:

1. The existence of a right;

2. The knowledge of the existence thereof;
3. An intention to relinquish such right. [Borromeo-
Herrera vs. Borromeo, G.R. No. 41171, July 23,
1987]

Who may accept or repudiate an inheritance,

legacy or devise?

As a general rule, if the heir, legatee or devisee has

the free disposal of his property [capacity], he himself may
accept or repudiate his inheritance, legacy or devise.
72
Article 533: “The possession of hereditary property is
deemed transmitted to the heir without interruption, and from
the moment of death of the decedent, in case the inheritance
is accepted. One who validly renounces an inheritance is
deemed never to have possessed the same.”
 213

What are the special limitations on acceptance and

repudiation imposed by law on other cases?

1. If the beneficiary cannot freely dispose of his

property as in the case of:
1) Minors
2) Incapacitated parties
3) Deaf mutes who cannot read
and write,
4) An insolvent judicially declared,
5) One under civil interdiction,

They may accept or renounce only through

their guardian or legal representatives. However, for
renunciation, judicial authorization is necessary
[court approval]. (Articles 1044, 1048)

2. If the beneficiary is the poor, the right to accept shall

belong to the persons empowered under Article 1030
[The person authorized by the testator or in his
default, the executor, or in his default, the
administrator]. As far as the right to repudiate is
concerned, it may be exercised only by the
beneficiary themselves once they are finally
determined. (Article 1044) Thus, 1) these authorized
individuals can only accept, not reject the grant; 2)
the person selected as qualified recipients are, for
their own part, free accept or renounce the benefit.
3. If the beneficiary is a corporation, association,
institution or entity, the right to accept or repudiate
belongs to the legal representative, but in case of
repudiation, judicial authorization is necessary.
(Article 1045)

4. If the beneficiary is a married woman of age, she

may repudiate without the consent of her husband.

How may the acceptance of an inheritance,

legacy or devise be made? What are the kinds of
acceptance?

a. Express – one that is made in a public or

private document.
b. Tacit or implied - one resulting from acts by
which the intention to accept is necessarily
implied, or which one would have no right
 214

to do except in the capacity of an heir.

(Article 1049)]
c. Presumed – when the heirs, devisees or
legatees do not signify to the court their
repudiation of the inheritance within thirty
days after the court has issued an order for
the distribution of the estate. (Article 1057)

When is an inheritance deemed accepted?

It is deemed accepted in the following cases:

1. If the heir sells, donates or assigns his right to a

stranger, or to his co-heirs, or to any of them;
2. If the heir renounces the same, even though
gratuitously, for the benefit of one or more of his co-
heir;
3. If he renounces it for a price in favor of all his co-
heirs indiscriminately; but if the renunciation should
be gratuitous, and the co-heirs in whose favor it is
made are those upon whom the portion renounced
should devolve by virtue of accretion, the inheritance
shall not be deemed accepted; (Article 1050)
4. If he performs acts of preservation or administration
from which it can be inferred that he has assumed
the title or capacity of an heir; (Article 1049)
5. If he fails to accept or repudiate within a period of
thirty days after the issuance of the order of
distribution of the estate. (Article 1057)
6. When the heir demands partition of the inheritance.

How may an inheritance, legacy or devise be

repudiated?

Repudiation of an inheritance, legacy or devise must

always be express.

This can be done either:

1. By means of a public instrument, or

2. By means of an authentic instrument, or
3. By means of a petition presented to the court having
jurisdiction over the testate proceedings. (Article
1051)

Note: While acceptance may be tacit or express,

repudiation is always express and never tacit. The law
 215

considers the act of repudiation more solemn that the act of

acceptance.

Suppose that an heir repudiates his inheritance

to the prejudice of his creditors, what is the remedy of
the latter in order to protect their right?

The creditors in such case may petition the court to

authorize them to accept the inheritance, legacy or devise in
the name of the heir. This acceptance, however, shall benefit
them only to the extent sufficient to cover the amount of their
credits. The excess, should there be any, shall in no case
pertains to the renouncer, but shall be adjudicated to the
persons to whom it may belong in accordance with the rules
established in the Civil Code. (Article 1052)

Note: This is an instance of accion pauliana, which is

the right given to creditors to impugn or set aside contracts,
transactions, or dispositions of their debtors which will
prejudice or defraud them

If the heir should die without having accepted

or repudiated the inheritance, is his right to the
inheritance extinguished?

No, if the heir should die without having accepted or

repudiated the inheritance, his right shall be transmitted to
his heirs. (Article 1053) This rule is a consequence of the
principle that the right of succession vests at the moment of
death (Article 777). Therefore, the right of the heir who dies
before accepting or renouncing is already vested and is
transmitted to the heir.

But in order that this be available two requisites

must concur:

a. That the inheritance is either available or

transmissible;
b. The death of the heir without having accepted or
repudiated the inheritance.

What is the effect if a person who is called to

the same inheritance, as an heir by will and ab
intestato, repudiates the inheritance as a testamentary
heir?

He is understood to have repudiated it in both

capacities (Article 1055); that is, if he renounces as
 216

testamentary heir, he is deemed to have renounced as

intestate heir as well.

What is the effect if an heir renounces as an

intestate heir without knowledge of his being a
testamentary heir?

He may still accept it in the latter capacity (Article

1055, 2nd par); that is, he is not deemed to have renounced
as testamentary heir and may therefore accept or renounce
separately in his capacity as a testamentary heir.

Rationale: The testamentary disposition is the

express will of the testator, whereas intestacy is only his
implied will. One who renounces the express will is deemed to
have renounced the implied also, but not the other way
around.

Note: This rule is not applicable to legitime. In view

of the rationale of the rule, should the heir be simultaneously
as compulsory heir and a testamentary heir, he can accept
either or both. The legitime passes not because of any implied
will or wish of the decedent but by strict operation of law,
irrespective of the decedent’s wishes. Thus, the term ab
intestato in this article refers solely to intestate succession.
What is the nature of the acceptance or
repudiation of an inheritance?

The acceptance or repudiation of an inheritance,

once made, is irrevocable, and cannot be impugned (Article
1056).

The exceptions are:

a. When it was made through any of the causes

that vitiate consent. The factors vitiating
consent are: 1) violence, 2) intimidation, 3)
undue influence, 4) mistake, and 5) fraud.
b. Or an unknown will appear. This applies if the
newly discovered will is subsequent to any will,
which may have formed the basis for the
acceptance or renouncement. The new will, if
valid and admitted to probate, reopens the
whole affair and will call for a new acceptance or
renunciation.

SECTION 5. COLLATION
 217

1. What is meant by collation?

It refers to the act of restoring to the common mass

of the hereditary estate, either actually or fictitiously,
any property or right, which a compulsory heir, who
succeeds with other compulsory heirs, may have
received by way of donation or any other gratuitous
title from the decedent, during the lifetime of the
latter, but whish is understood for legal purposes as
an advance of his legitime.

2. What is the object of collation?

Its object is in order that no descendant will be

deprived of his legitime or portions corresponding to
him, and to determine whether the decedent has
disposed properties more than what he can give
away in accordance with law to the prejudice of his
compulsory heirs. Equality among children will thus
be insured.

3. What are the three kinds of collations under the law

on succession? [What are the three general acts
included in collation?]

a. Collation as computation – this is a simple

accounting or arithmetical process, whereby
the value of all donations inter vivos made
by the decedent is added to his available
assets in order to arrive at the value of the
net hereditary estate. (Article 908)

Articles covered: 1061, 1067 (as an

exception to 1061), 1071, and 1072.

b. Collation as imputation – this is the process

by which donations inter vivos made by the
decedent are correspondingly charged
either to the donee’s legitime or against the
disposable portion.

General rule: If compulsory heir, imputable

to the legitime.
Exception: When the testator has provided
otherwise.
 218

Articles covered: 1062, 1063, 1064, 1065,

1066, 1068, 1069, 1071, 1072, and 1073.

c. Collation as return – this takes place when

the donation inter vivos is found to be
inofficious and so much of its value as
inofficious is returned to the decedent’s
estate to satisfy the legitime.

Articles covered: 1075, 1078

4. What is the difference between the collation referred

to in Articles 1061 to 1077 and the collation referred
to in Articles 908 to 910?

Under Articles 908 to 910, collation refers to the

mathematical process of adding the value of the
thing donated to the net value of the hereditary
estate. It is a process, which is applicable to all
donations inter vivos, whether to compulsory heirs or
to strangers. The immediate purpose is to determine
or compute the legitime of compulsory heirs.

Under Articles 1061 to 1077, collation refers to the

subsequent act of charging or imputing the value of
the thing donated against the legitime of the
compulsory heir to whom the donation is made.
Thus, when the Code says that a property or right
which a compulsory heir had received by gratuitous
title from the decedent, during the lifetime of the
latter, must be brought to collation, what is meant is
that the value of such property or right shall be
considered as an advance of his legitime and,
therefore, imputable against it during the partition.
Hence, it is applicable only to donations made to a
compulsory heir who succeeds with other compulsory
heirs.

5. What properties or rights, which a compulsory heir

may have received by gratuitous title form the
decedent, are not subject to collation?

a. Property left by will (Article 1063);

b. Property which may have been donated by

an ascendant of the compulsory heir to the
children of the latter (Article 1065)
 219

Reason: Because the said person is not the

recipient of the conveyance. The donation to
the grandchild should therefore be imputed
to the free portion, since it is a donation to
a stranger.

c. Property donated to the spouse of the

compulsory heir (Article 1066);

The donation here is one made to a

stranger.

If the donation is made to the spouses

jointly, one-half belongs to the donor’s child
and should be treated in accordance with
Article 1062 and the other half is the
property of the donor’s son – or daughter-
in-law and should be treated as a donation
to a stranger.

d. Expenses for support, education, medical

attendance even in extraordinary illness,
apprenticeship, ordinary equipment, or
customary gifts (Article 1067)

Scope of support – the general coverage of

support is defined in Article 194 of the
Family Code. For purposes of this article,
however, support has a more restricted
meaning; it does not include expenses for
the recipient’s professional, vocational, or
other career, because that is governed by
Article 1068)

e. Expenses incurred by parents in giving their

children a profession, vocational, or other
career (Article 1068);

f. Wedding gifts consisting of jewelries,

clothing, and outfit, given by parents or
ascendants, so long as they do not exceed
one-tenth of the disposable portion. (Article
1070)

The gift will be imputed to the free portion

to the extent of one-tenth of the free
portion. Beyond the value, the excess will
be imputable to the recipient’s legitime.
 220

Common exception to all the foregoing:

When the testator provides otherwise.
(Article 1062)

Note: When the law says that the above

properties shall not be brought to collation,
what is meant is that their value shall not
be imputable against the legitime of the
compulsory heir to whom they are given or
donated, but against the free or disposable
portion. It is only in the case of the fourth
that the expenses are not at all imputable,
even against the free or disposable portion.

Therefore, the obligation to bring back

either the property or the value to the mass
of the estate is always present with regard
to properties received by donation or by
gratuitous title. However, there may be
difference in imputation; it is either
imputable to the legitime or the free
portion. Since donations or gifts by
gratuitous title to compulsory heirs are
generally chargeable to the their legitime,
when the testator provides that there be no
collation, the evident meaning is that it
should not be imputed to the legitime but to
the free portion. That is the reason why if it
exceeds the free portion it should be
reduced insofar as it is inofficious.

6. If the owner of a property sells it to his heirs and

transfers them during his lifetime, are these
collationable?

No, because they did not involve gratuitous transfers

of future inheritance, hence, not collationable.
Essentially, collation mandated under Article 1061
contemplates properties conveyed inter vivos by the
decedent to an heir by way of donation or other
gratuitous title.

7. Rules on imputation of donations inter vivos:

a. Donations to compulsory heirs:

 221

1) General rule: Should be imputed

to the heir’s legitime
[considered as an advance on
the legitime]
2) Exceptions [donation will have
to be imputed to the free
portion]:

i. If the donor provides

otherwise; or

ii. If the donee

renounces the
inheritance, because
in this case the donee
gives up his status as
a compulsory heir and
therefore cannot be
considered as one.
(Article 1062)

b. Donations inter vivos to strangers –

imputed to the free portion.

8. What are the instances when donations inter vivos

are to be imputed to the free portion?

a. When made to strangers;

b. When made to compulsory heirs, and the
donor so provides;
c. When made to compulsory heirs who
renounce the inheritance;

d. When in excess of the compulsory heir’s

legitime, as to the excess.

9. What is the obligation of grandchildren who inherit

by representation concurrently with children (uncles
and aunts) who are inheriting in their own right?
(Article 1064)

The grandchildren shall bring to collation:

a. Whatever the parents whom they are

representing would have been obliged to
collate; and
b. Whatever they themselves have received
from the grandparent by gratuitous title
 222

(subject to the same rules and exceptions

laid down in Article 1062).

Cases where the grandchildren inherit in their

own right as would happen in case of
repudiation by the parents - the said
grandchildren shall be bound to collate what
they themselves have received from the
grandparent during his lifetime and not the
donation given to their father since as to that
portion, it is equivalent to a donation made to a
stranger and therefore imputable to the free
portion.

10. What is the rule as to sums paid by a parent in

satisfaction of the debts of his children, election
expenses, fines, and similar expenses? (Article 1069)

They shall be brought to collation, meaning, it should

be imputable to the child’s legitime.

11. What value should be considered in the computation

and imputation? (Article 1071)

Only the value of the thing donated at the time the

donation was made should be considered in the
computation of the donor’s estate.

Reason: Any appreciation or depreciation of the thing

after that time should be for the donee’s account,
since donation transfers ownership to him. Thus any
accretion should belong to him.

12. What are rights of the co-heirs if the donee’s share

shall be reduced by an amount equal to that already
received by him? (Article 1073 and 1074)

a. The donee’s co-heirs shall receive an

equivalent, as much as possible, in property
of the same nature, class and quality.
b. If this is not possible

i. If the property was

immovable:

(1) The co-heirs shall

be entitled to
receive its
 223

equivalent in
cash or
securities, at the
rate of quotation.
(2) Should there be
neither cash nor
marketable
securities in the
estate, so much
of the other
property as may
be necessary
shall be sold to
public autction.

ii. If the property was movable:

(1) The co-heirs shall only

have a right to select an
equivalent of other
personal property of the
inheritance at its just price.

13. Who owns the fruits and interests of collationable

properties? (Article 1075)

a. The entirety of the fruits and interests shall

pertain to the compulsory heir, only if the
donation is totally inofficious.
b. If the donation is only partially inofficious,
the right to the fruits and interests shall be
probated between the compulsory heir and
the donee, in proportion to their respective
interests over the property.

14. If the donation is totally inofficious and the thing has

to be returned in its entirety, what are the
obligations of the co-heirs to the donee? (Article
1076)

a. Reimbursement to the full extent of the

necessary expenses incurred (The same rule
in Article 546, par. 1)73

73
Article 546, par. 1. Necessary expenses shall be refunded to
every possessor; but only the possessor in good faith may
retain the thing until he has been reimbursed therefore.
 224

b. Reimbursement to the full extent of useful

expenses provided that the improvement is
still in existence. (The same rule in Article
546, par. 2)74
c. No reimbursement as to ornamental
expenses, but right of removal is granted if
no injury to the estate will be cause. (Article
548)75

15. If the donation is partially inofficious and the thing

has to be returned only in part, what are the
obligations of the co-heirs to the donee?

a. Partial reimbursement of necessary and

useful expenses, in proportion to the value
to be returned.
b. As to ornamental expenses, the same rule
as in total return applies, unless the
property is physically divided and the
ornament happens to be located in the
portion assigned to him, in which case he
will have all the rights of ownership.

SECTION 6. PARTITION AND DISTRIBUTION OF ESTATE

PARTITION

1. Define partition.

Partition, in general, is the separation, division and

assignment of a thing held in common among those

74
Article 546, par 2. Useful expenses shall be refunded only
to the possessor in good faith with the same right of
retention, the person who has defeated him in the possession
having the option of refunding the amount of the expenses or
of paying the increase in value which the thing may have
acquired by reason thereof.
75
Article 548. Expenses for pure luxury or mere pleasure shall
not be refunded to the possessor in good faith; but he may
remove the ornaments with which he has embellished the
principal thing if it suffers no injury thereby, and if his
successor in the possession does not prefer to refund the
amount expended.
 225

to whom it may belong. The thing itself may be

divided, or its value. (Article 1079)

Every act, which is intended to put an end to

indivision among co-heirs and legatees or devisees,
is deemed to be a partition, although it should
purport to be a sale, an exchange, a compromise, or
any other transaction. (Article 1082)

2. What are the different kinds of partition?

c. As regards its extent:

1) Total – when all the things

comprised in the whole estate
are divided among all of the
participants or co-owners.
2) Partial – when some of the
things are divided among all or
some of the participants or co-
owners, the rest remaining in a
state of indivision or community
ownership.

d. As regards its duration:

1) Provisional – when the division

is merely temporary or
transitory until a final or definite
division is made.
2) Definite – when it is stable, final
and absolute.

e. As regards the manner or method by which

it is done:

1) Extra-judicial – when it is
effected by the testator himself,
or by some person named by
such testator, or by the
participants or co-owners
themselves amicably or by
common accord.

(1) Made by the

testator (Article
1080)
 226

(2) Made by the

decedent in an
act inter vivos
(Article 1080)
(3) Made by the
heirs themselves
(Rule 74, Sec.,
Rules of Court)
(4) Made by a third
person entrusted
by the testator or
decedent (Article
1081, par. 1).

2) Judicial – when the court

intervenes in the division.

3. Under the Rules of Court, there are four ways by

which the estate of the decedent may be partitioned:

c. By extra-judicial settlement (Rule 74, Sec. 1)

d. By ordinary action for partition (Rule 74, Sec. 1)
e. By judicial summary settlement (Rule 74, Sec.
2)
f. By administration proceedings (Rule 79 to Rule
91)

The last three are judicial in character.

4. Who may effect the partition of the decedent’s

estate?

a. By the decedent himself during his lifetime

by an act inter vivos or by will (Article
1080);
b. By a third person designated by the
decedent by means of an act inter vivos or
by will (Article 1081); or
c. By the heirs themselves (Articles 1083,
1084); or
d. By a competent court in accordance with
the Rules of Court (Rules 74-91)

5. If the decedent himself partitions his estate by an

act inter vivos, is a will necessary for the validity of
the partition?
 227

A mere partition inter vivos which does not observe

the formalities of a will cannot, by itself, make
testamentary dispositions, because that would
circumvent the requirement of law that dispositions
mortis causa can be made only by means of a will. A
person cannot, in the guise of making a partition,
make disposition of property to take effect upon his
death.

6. What is the nature of partition made by the causante

(decedent):

a. It takes effect only upon death;

b. It is revocable as long as the causante is
alive; hence the causante can change or
modify it, or even rescind it during his
lifetime.

7. How may the causante make the partition?

d. By will, or
e. By act inter vivos

8. What is the limitation on partition by causante:

The legitimes of the causante’s compulsory heirs

cannot be impaired by partition made by him,
whether in a will or by an act inter vivos.

9. What is the rule as to partition to keep an enterprise

intact?

A parent who, in the interest of his or her family,

desires to keep any agricultural, industrial, or
manufacturing enterprise intact, may partition his or
her estate by an act inter vivos, or by will, by
ordering that the legitime of the other children to
whom the property is not assigned, be paid in cash
(Article 1080).

a. Only the parent is allowed the privilege of

this Article (Article 1080)
b. This privilege can be exercised only if
enough cash or other property is available
to satisfy the legitimes of the other children.
c. Under no circumstances should the
legitimes be impaired.
 228

10. Is it possible for the testator to prohibit the partition

of his entire estate even if there are compulsory
heirs?

Yes, but in such a case the period of indivision shall

not exceed 20 years. This power of the testator
applies even to the legitime of compulsory heirs.
(Article 1083)

11. Who can demand the partition of the decedent’s

estate after his death?

a. By any compulsory heir, or

b. By any voluntary heir, or
c. By any legatee or devisee, or
d. By any person who has acquired an interest
in the estate.

12. When may an heir demand the division of the

estate?

Every co-heir has a right to demand the division of

the estate at any time (Article 1083). This is the
same rule laid down in Article 494, par. 1.76

13. What are the instances when partition cannot be

demanded?

a. When the partition has been expressly

prohibited by the testator for a period which
shall not exceed 20 years (Article 1983)

Exception: Despite this imposed indivision,

partition may be demanded:

i. When any of the causes for the

dissolution of a partnership occurs
(Articles 1830 – 1831)
ii. When the court finds compelling
reason for partition.

76
Article 494, par. 1. No co-owner shall be obliged to remain
in the co-ownership. Each co-owner may demand at any time
the partition of the thing owned in common, in so far as his
share is concerned.
 229

b. When the co-heirs have agreed that the

estate shall not be divided for a period,
which shall not exceed 10 years, renewable
for another 10 years. (Article 494)
c. When the partition is prohibited by law
(Article 494)
d. When to partition the estate would render it
unserviceable for the use for which it is
intended. (Article 494)

14. Where there are two or more heirs, the whole estate
of the decedent is, before its partition, owned in
common by such heirs, subject to the payment of
the debts of the deceased. (Article 1078)

The immediate effect of the decedent’s death is the

vesting of the success ional rights of the successors
because the rights to the succession are transmitted
from the moment of the death of the decedent
(Article 777). The estate however is a mass of
properties. The immediate effect, therefore, of the
decedent’s death is a co-ownership of the heirs over
the entire mass. Partition ends the co-ownership
among the co-heirs as to the thing partitioned.

Kinds of partition:

a. Actual – physical division of the thing

among the co-heirs;
b. Constructive – any act, other than physical
division, which terminates the co-
ownership, such as:
i. Every act which is intended to put
an end to indivision among co-
heirs and legatees or devisees is
deemed to be a partition, although
it should purport to be a sale, an
exchange, a compromise, or any
other transaction (Article 1082)
ii. Sale of the thing and division of the
proceeds among the heirs, resorted
to when the thing is essentially
indivisible or if physical partition
will so diminish its value that it
becomes unserviceable or useless
(Article 1086)
 230

15. In institutions with a suspensive condition, when can

the voluntary heirs demand partition?

a. They cannot demand a partition until the

condition has been fulfilled;
b. But the other co-heirs may demand it by
giving sufficient security for the rights which
the said voluntary heirs may have in case
the condition should be complied with, and
until it is known that the condition has not
been fulfilled or can never be complied with,
the partition shall be understood to be
provisional. (Article 1084)

16. Article 1985 provides for the equality among heirs:

a. Quantitative – the shares of the co-heirs are

not necessarily equal in value, but are
determined by law and by will
b. Qualitative – whatever the aliquot portions
be, however, the law mandates equality in
nature, kind and quality. [Thus if an heir
gets a parcel of land, the other heirs should
also be given parcels of land.]

17. What are the exceptions or qualifications to the

requirement of qualitative equality?

a. If the causante has made the partition

himself;
b. If the co-heirs agree otherwise;
c. If qualitative equality is impossible or
impracticable.

18. If an heir sells his hereditary right to a stranger

before the partition of the decedent’s estate, what is
the right given to the other co-heirs?

The co-heirs in such a case are subrogated to the

rights of the purchaser by reimbursing him for the
price of the sale, provided they do so within the
period of one month from the time they were notified
in writing of the sale by the vendor. (Article 1088)

19. What requisites must concur in order that the right

of legal redemption may be availed of?

a. There must be several co-heirs;

 231

b. One of them sells his hereditary rights

c. The buyer must be a stranger;
d. The sale must be before partition
e. At least one co-heir must demand the
redemption.
f. The right is exercised within a period of one
month to be counted from the time they
were notified in writing by the co-heir
vendor; and
g. The vendee is reimbursed for the price of
the sale.

Note:

>Sale must be made to stranger – a stranger within

the meaning of this article is anyone who is not a co-
heir. (Basa vs, Aguilar, 117 SCRA 128)
>When right of redemption may be exercised – the
right may be exercised only before partition, not
after. (Caro vs, CA, 113 SCRA 10)
>Written notice is required – without it period does
not commence to run (Garcia vs. Calaliman, 172
SCRA 201)

20. What is the rule if a thing is indivisible, or would be

much impaired by its being divided? (Article 1086)

a. The thing may be adjudicated to one of the

co-heirs, provided he shall pay the others
the excess in cash;
b. Sell the thing in a public auction if any of
the heirs should demand that the thing be
sold at public auction, provided that
strangers are allowed to bid.

21. Upon partition, what are the obligations of the co-

heirs among each other? (Article 1087)

The co-heirs shall reimburse one another:

a. For the income and fruits which each one of

them may have received from any property
of the estate
b. For any useful and necessary expenses
made upon such properties
c. For any damage thereto through malice or
neglect.
 232

The same rule in co-ownership (Article 500)

22. To whom shall the title be delivered if it comprises

two or more pieces of land, which have been
assigned to two or more co-heirs, or when it covers
one piece of land, which has been divided between
two or more co-heirs?

a. The title shall be delivered to the one

having the largest interest and authentic
copies of the title shall be furnished to the
other heir at the expense of the estate.
b. If the interest of each co-heir should be the
same, the oldest shall have the title. (Article
1090)

Note: This article only provides for the right over the
document. The co-heirs, however, have the right to
have the title divided into individual titles, separate
for each of the owners to correspond to the separate
portions held by them respectively.

EFFECTS OF PARTITION

23. What is the obligation of the co-heirs after the

partition has been made?

The co-heirs are reciprocally bound to warrant the

title to, and quality of, each property adjudicated.
(Article 1092)

Partition among co-heirs imposes upon them the

same mutual obligation of warranties imposed
among co-owners in general (Article 501)77

Rules on warranties: Articles 1547-1580 (Title on

Sales, insofar as they are not inconsistent with the
rules given in this subsection)

24. What is the extent of liability of the co-heirs on

warranty?

77
Article 501. Every co-owner shall, after partition, be liable
for defects of title and quality of the portion assigned to each
of the co-owners.
 233

The reciprocal obligation of warranty shall be

proportionate to the respective hereditary shares of
the co-heirs. (Article 1093)

25. What is the effect of the mutual warranty of the co-

heirs if any of them is insolvent?

The other co-heirs shall be liable for his part in the

same proportion, deducting the part corresponding
to the one who should be indemnified. (Article 1093)

26. What is the right of the heirs who pay for the
insolvent heir?

Those who pay for the insolvent heir shall have a

right of action against him for reimbursement,
should his financial condition improve. (Article 1093,
par. 2)

Exception [When there is nor right to be reimbursed]

When the insolvency has been judicially declared,

since judicially declared insolvency extinguishes all
obligations.

27. What is the period within which to file an action to

enforce the warranty among co-heirs?

It must be brought within ten years from the right of

action accrues. (Article 1094)

28. If a credit should be assigned as collectible, what is

the effect of the subsequent insolvency of the
debtor’s estate on the co-heirs?

The co-heirs shall not be liable for the subsequent

insolvency of the debtor of the estate, but only for
his insolvency at the time the partition is made
(Article 1095). [The warranty covers only insolvency
of the decedent’s debtor at the time of partition, not
subsequent insolvency, for which the co-heir takes
the risk.]

29. What is the period within which the warranty of the

solvency of the debtor can be enforced?

It can only be enforced during the five years

following the partition. (Article 1095, par. 2)
 234

Warranty for good debts – that the debtor is solvent

at the time of the partition (not later). The warranty
is good for five years following the date of the
partition.

There is no warranty for bad debts – an heir accepts

them at his own risk.

30. Are co-heirs bound to warrant bad debts?

Co-heirs do not warrant bad debts if:

a. So known to the distributee; and

b. Accepted by the distributee. (Article 1095,
par. 3)

31. When may the obligation of warranty among co-heirs

cease?

a. When the testator himself has made the

partition, unless it appears, or it may be
reasonably presumed, that his intention was
otherwise, but the legitime shall always
remain unimpaired;
b. When it has been so expressly stipulated in
the agreement of partition, unless there has
been bad faith;
c. When the eviction is due to a cause
subsequent to the partition, or has been
caused by the fault of the distributee of the
property. (Article 1096)
d. Supervening event causing the loss or the
diminution in value
e. Waiver

RESCISSION AND NULLITY OF PARTITION

32. What are the causes of rescission or annulment of a

partition?

A partition may be rescinded or annulled for the

same causes as contracts. (Article 1097)

a. Causes for annulment: Article 1390

b. Causes for rescission: Article 1381 and
Article 1098 (lesion)
 235

33. When may a partition, judicial or extra-judicial be

rescinded on account of lesion?

When any one of the co-heirs received things whose

value of less, by at least one-fourth, than the share
to which he is entitled, considering the value of the
things at the time they were adjudicated. (Article
1098)

Lesion is economic injury where the party receives

less than he is entitled to receive.

Note the slight variation from pars. 1 & 2 of Article

1381, which specifies more than one-fourth, while
Article 1098, provides for a minimum lesion for
rescission, which is one-fourth (25%). In cases of
partition of the inheritance, Article 1098 applies.

34. What is the exception to the rule that partition can

be impugned on the ground of lesion?

A partition made by the testator himself is not

subject to rescission even in case of lesion in the
amount specified in Article 1098. (Article 1099)

Exceptions:

a. Impairment of the legitime (Even if lesion is

less than one-fourth)
b. Mistake by the testator or vitiation of his
intent. (Article 1099)

35. What is the prescriptive period for the action of

rescission on account of lesion?

Four years from the time the partition was made

(Article 1100). This is the same period laid down in
the general rule of rescission of contracts (Article
1389)

36. What are the options of the heir who is sued for
rescission?

a. To have a re-partition [In which case, the

old partition will not be disturbed in its
entirety but it shall only be between those
who have been prejudiced and those who
 236

have received more than their just share.],

or
b. To indemnify the co-heir the amount of the
lesion suffered, by payment in cash or by
the delivery of a thing in the same kind and
quality as that awarded to the plaintiff
(Article 1101).

Note that it is the co-heir who is sued for rescission

who has the option.

If the property given to the heir demanding the

rescission consists of real property and said heir has
alienated in whole or a considerable part of the real
property, he cannot maintain an action for rescission
on the ground of lesion, but he shall have a right to
be indemnified in cash. (Article 1102)

37. What is the effect if there is a preterition of any of

the compulsory heirs in the partition of the
decedent’s estate?

A partition made with preterition of any of the

compulsory heirs shall not be rescinded, unless it is
proved that there was bad faith or fraud on the part
of the other persons interested; but the latter shall
be proportionately obliged to pay to the person
omitted the share which belongs to him (Article
1104)

38. What is the effect if the partition includes a person

believed to be an heir, but who is not?

A partition, which includes a person, believed to be

an heir, but who is not, shall be void only with
respect to such person. (Article 1105)
237