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Succession Tips (Justice Hofilena

By: Butch Ramiro

SUCCESSION [in general]

For Intrinsic Validity

Succession: Succession is a mode of acquisition by virtue of which the property, rights and
obligations to the extent of the value of his inheritance of a person are transmitted through his
death to another or others either by his will or by operation of law
Money claims: Creditor must pursue money claims in testator’s settlement proceedings.
Law in force at the time of the decedent’s death will determine who the heirs should be

As to time
As to place

Characteristics of wills: [PREFES-MUDIS]




Extrinsic Validity [GR: Art 795: The validity of a will as to its form depends upon the observance
of the law at the time it is made]
As to time
As to place

Law in force at the time will was
executed [Art 795]
Art 815-817 provide:

Same, assuming it was probated

Filipino’s Will Abroad: Authorized to make a will in any of the forms
established by the law in the country where he is. It may be probated in the
Alien’s Will Abroad: Authorized to make a will abroad and will produce effect
in the Philippines IF:
i.) Formalities prescribed by law of the place of his residence is
complied with
ii.) Formalities prescribed by law of his country is complied with
(e.g. Ukrainian making a will in US)
iii.) Formalities prescribed by Philippine law (805) is complied with
Alien’s will in the Philippines: Alien may make a will in the Philippines and it
will produce effect here IF:
i.) Will is executed according to the laws of his country
ii.) Will might be probated and allowed in his country

Depends on their personal law
Their national law

Formal requisites of ATTESTED WILL

Purely personal
Executed with animus testandi [intent to make a will]
Free and intelligent
Executed with testamentary capacity
Solemn and formal
Mortis causa

Law in force at the time of death
Philippine law


In writing
In language or dialect known to testator
Subscribed at the end thereof by the testator or by his agent in his presence and by his
express direction in the presence of witnesses
Subscribed and attested by at least 3 credible witnesses in the presence of the testator and
of one another
The testator or his agent by his express direction must sign the will and every page thereof
except the last on the left margin in the presence of the witnesses
The witnesses must sign the will and every page thereof except the last on the left margin
in the presence of the testator and of one another
Every page must be numbered correlatively
An attestation clause, signed by the witnesses, stating:
a) # of pages of the will
b) The fact that the testator or his agent by his express direction signed the will and
every page thereof in the presence of the witnesses
c) That the witnesses signed and witnessed the will and every page thereof in the
presence of the testator and of one another
The will must be acknowledged before a notary public by the testator and the witnesses

Difference of subscription, attestation and the attestation clause
Act of the hand

Act of senses (Act of attesting)

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

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 law requires for
the execution of a will and that
the signature of the testator
exists as a fact

Attestation Clause
Refers to that part of the
will whereby the attesting
witnesses certify that there
was compliance with the
essential formalities
required by law
Mandatory part of the will
Must state:


# of pages
Fact that
testator/agent under
his direction signed
the will and its every
page in presence of
Witnesses witnessed
and signed the will
and its every page in
the presence of the
testator and of one


2. AC does not have to state that an agent signed in the testator’s presence If testator thumbmarked each page and asked her attorney to write her name under the thumbmark. 18 and above Sound mind Not blind. 7. made after its execution. witnesses and testator declare that the signing/execution were of their own free act. 4. deaf or dumb Able to read and write Domiciled in the PH Must not have been convicted of: a) Falsification of a document b) Perjury c) False testimony Codicil: A supplement or addition to a will.Succession Tips (Justice Hofilena) By: Butch Ramiro Difference of acknowledgement and Jurat Requisites of HOLOGRAPHIC WILLS: A will which does not contain an acknowledgement but a mere jurat is fatally defective because “acknowledged” is different from “subscribed and sworn to. blindness. Will: I leave my house to A. the document was subscribed and sworn to. in her presence and in the presence of the witnesses to the will’s execution If testator signs at the end of the will but the witnesses signed at the left margin. It shall be sufficient if at the time of making the will. 6. 2. 3. Abella: “neither senile debility. there is substantial compliance because the # of pages can still be seen elsewhere (within the will) “In the presence of testator and of one another” is complied with if at the moment of the subscription of each signature. to be taken as a part of such will It either: o Adds to a disposition (e.g.” 1. 3. Will: I leave 50 hectares of my 100 hectare land to Y. witnesses signing the attestation clause SIGNATURES ON LEFT HAND signifies that the witnesses are aware that the page they are signing forms part of the will SIGNATURES ON ATTESTATION CLAUSE the witnesses are referring to the statements contained in the attestation clause itself OBITER in Cagro v. Codicil: Oops. poor memory is BY ITSELF sufficient to establish unsound mind when there is sufficient evidence of his mental sanity at the time of the will’s execution” 2 . Jurat That part of an affidavit where the notary certifies that before him/her. Cagro: “Will could have been valid had the witnesses signed the attestation clause BUT not the left-hand margin of the page containing such clause”  will is invalid even if there are left hand signatures by witnesses but AC was not signed by them Summary of /examples of substantial compliance as regards formal requirements of a will 1. This declaration is under pain of perjury. there is substantial compliance although ideally.g. 3. His relatives in the closest degrees 3. 5. Codicil: I also leave the lot where the house is to A) o Explains a disposition o Alters a disposition (e. Through this. 4. 6. Estate to be disposed of 2. 25 hectares na lang pala) Difference of revocation of wills and nullity of wills Revocation of a will An act of a testator Presupposes a valid act Takes place during testator’s lifetime Testator cannot renounce his right to revoke Nullity of a will Provided for by law Inherent in the testament Invoked after testator’s death by his heirs Heirs may disregard by still complying with the testamentary dispositions Quoting Sancho v. 5. he knows: 1. 4. that the decedent and the witnesses executed or subscribed the will as their own free act. Survivorship agreements Reciprocal wills in separate instruments Separate documents each serving as one independent will Requisites to be a witness to a will 1. Acknowledgement Act of one who has executed a deed in going before the notary or court and declaring it to be his own act or deed. The character of the testamentary act Entirely handwritten In a language or dialect known to the testator Signed by testator Dated by testator Possible exceptions to joint wills: 1. deafness. a thumbmark still satisfies signing requirement It is immaterial who writes the testator’s name provided it is done with the testator’s request. signing requirement is fulfilled (no need for AC to state that testator had an agent sign testator’s name) Even if testator is healthy enough to sign. Requisites for having a sound mind: It is not necessary that the testator be fully physically and mentally healthy.     It is a supplement of addition to a will It is made after the execution of such will It is annexed to the will. witnesses should also sign at the end of the will If AC fails to state # of pages but acknowledgement states the number of pages. 3. 2. Difference of witnesses signing at the left margin vs. It is incomplete as it does not present any textual proof. 2. the parties are positioned in such a way that they can see each other sign if they chose to do so.

2. devise. is it still valid? Technically yes. Break down the provision: Decree of probate is conclusive as to the will’s formal validity Court may however. shall annul the institution of heir. as universal heir” It does not appear the face of the will that the fact that X was adopted was a determining factor in his institution. 5. Tolentino says “When there is no disposition of property. it does not have to be probated. 6. Reyes provides: Before the institution of heirs may be annulled under Art 850. duress.Succession Tips (Justice Hofilena) By: Butch Ramiro Effect of a lost attested will: The presumption that the will was revoked will arise when: 1. some or all of the compulsory heirs in the direct line. Cause must be shown to be false 3. SC held that though evidence shows that there was intent to revoke. my adopted child. When a will does not contain any dispositive portions. by will (though less than legitime). Preterition applies w/n CH is: 1) Living at the time of execution of the will 2) Born after the execution of the will 3) Born after the execution of the will and even after testator’s death No heir considered instituted. Note:   INSTITUTION OF HEIRS Art 850: The statement shall be considered as not written unless it appears from the will that the testator would not have made such institution had he known of the falsity of such cause. It must appear on the face of the will that testator would not have made the institution if he had known of the falsity of the cause Note: Intent of testator must also be taken into consideration. in Estate of Adriana Maloto: When a will was alleged to have been destroyed but afterwards. pass upon intrinsic validity of a will if the invalidity of the dispositions can be readily seen in th will Preterition or omission of one. The cause for institution must be stated in the will 2. but devises and legacies are valid insofar as they do not impair the legitime Note: As long as compulsory heir in the direct line got something by way of donation inter vivos (considered advance on the legitime). Intestacy will occur Institution of heir may be annulled and testamentary succession may occur. without prejudice to the right of representation. Will was last seen in the possession of the testator but subsequently cannot be found after his death 2. if he states in the will “I institute X. 818-819. whether living at the time of the execution of the will or born after the death of the testator. fear or threats [force] If executed by undue and improper pressure and influence on the part of the beneficiary of some other person [undue influence or pressure] If signature is procured by fraud [signature fraud] If the testator acted by mistake and did not intend for the instrument he signed to be his will [mistake] Whether living at the time of the execution of the will or born subsequently. the institution shall be effectual. 820-821] If testator was insane or mentally incapable of making the will at the time of its execution [insane] If executed through force. PRETERITION The preterition or omission of one. 4. parents or ascendants) This includes illegit/legit/adopted child Surviving spouse not included. three requisites must concur: 1. Formalities not complied with [formalities: 804-814. if a compulsory heir is validly disinherited in the will. some or all of the compulsory heirs in the direct line Grounds for disallowance of wills: [FIFUSM] 1. PROBATE PROCEEDINGS Rule: No will shall pass any property unless it is proved and allowed in accordance with the Rules of Court. 3. Austria v. its actual physical destruction was not proven. Testator had ready access to the will and it cannot be found after his death However. An example would be a recognition of a natural child” HOWEVER. For example. there is no preterition 3 . although the instrument may still be considered as a will. legacy. a carbon copy of the will was found with the testator’s attorney. the will has to be probated because it has the effect of a testamentary disposition. but the devises and legacies shall be valid insofar as they are not inofficious. testate succession. Surviving spouse can be preterited and the institution of heir would still be valid. even after the testator’s death (better definition) Shall annul the institution of heir Devises and legacies shall be valid insofar as they are not inofficious Compulsory heirs in direct line: Children or other descendants (in default of them. If the omitted compulsory heirs should die before the testator.

R If heir renounces TN. Escolin. NR TN. NR If heir is disinherited TN. NR TN. the rules on representation shall apply 5. transmits nothing to his heirs in case of predecease. isn’t instituted as an heir) Legal cause is present Presumed by law to be a mere oversight What are the elements of a FC? (memorize) Even a compulsory heir may be totally excluded Compulsory heir is merely restored to his legitime 1. there was instead a simultaneous institution. and provided further. 4. incapacity. 3. R – representation rules apply. A voluntary heir who dies before the testator transmits nothing to his heirs. in case of predecease or incapacity of compulsory or legal heirs. shall be valid and shall take effect. A first heir who takes the property [whole or part of inheritance] upon the testator’s death A second heir [fideicommissary] who takes the property subsequently from the fiduciary The second heir must be one degree from the first heir The first heir is absolutely obliged to preserve the property and transmit it after the lapse of the period to the fideicommissary heir Both heirs (first and second) must be living and qualified to succeed at the time of the testator’s death In PCIB v. Art 856/857 2. as well as disinheritance of compulsory heirs. voluntary or legal. NR N/A (because DH is for CH/LH) N/A 4 . it was held that since there was no absolute obligation to preserve and to transmit. NR – no representation Kind of heir Compulsor y Voluntary Legal If heir predeceases testator TN. Institution of heir subject to a resolutory condition and the other institution subject to a suspensive condition. and one who renounces the inheritance shall transmit no right to his own heirs except in cases expressly provided for” Balane provides a complete statement of the rule (memorize): “An heir. R If heir incapacitated TN. A compulsory heir who dies before the testator. renunciation or disinheritance. R TN. TN – transmits nothing. R TN. a person incapacitated to succeed. that the fiduciary or first heir and the second heir are living at the time of the death of the testator Express deprivation of legitime Implied deprivation of legitime Always voluntary May also be voluntary but is presumed to be involuntary (as it’s an omission to mention as an heir or though mentioned. whether compulsory. R TN. NR TN. provided such substitution does not go beyond one degree from the heir originally instituted. However.Succession Tips (Justice Hofilena) By: Butch Ramiro FIDEICOMMISSARY SUBSTITUTION Difference of preterition and disinheritance Disinheritance Preterition Art 863: A fideicommissary substitution by virtue of which the fiduciary or first heir instituted is entrusted with the obligation to preserve and to transmit to a second heir the whole or part of the inheritance.

potestative. 2. conditional institution and institution with a term Important thing to take note of: Modal A mode imposes an obligation upon the heir or legatee but it does not affect the efficacy of his rights to the succession Art 902 903 and 992 PROVIDE the FOLLOWING: 1) object of institution 2) application of left property provided 3) charge is imposed by testator Obligates the heir. iv. should arrive for the heir to be entitled to succeed [may be resolutory or suspensive] Suspends the inheritance (if suspensive) and extinguishes the inheritance (if resolutory) IF SUSPENSIVE: The legal heir must give security in order to enter into possession of property before term arrives. 5. from a person to his descendant. is obliged to reserve such property as he may have acquired by operation of law for the benefit of the relatives who are within the third degree and who belong to the line from which the said property came. no need to give security What is a caucion mauciana? 1. from the transferee in the first transfer to another ascendant. 2013) or in certain cases that day is not uncertain BUT sure to arrive (e. brother or sister SECOND: by operation of law. he will not be allowed to demand his inheritance as long as the condition has not been fulfilled. This creates the reserva THIRD: From transferee in the second transfer to the relatives within the 3rd degree 5 . Art 882: Modal Institutions  modally instituted heir can get the property at once provided he gives security that he will comply with testator’s wishes 3. casual or mixed] Suspends the inheritance and it is not sure if heir will get inheritance Even if the heir wants to give security. TERMS. 3. MODES LEGITIMES Differentiate modal institution. FIRST: by gratuitous title. if they have been living as husband and wife for more than 3 years. When surviving spouse [alone] only entitled to 1/3 of the estate: 1. 2. on dec 12.Succession Tips (Justice Hofilena) By: Butch Ramiro CONDITIONS. iii. The property was acquired by a descendant from an ascendant or from a brother or sister by gratuitous title [transmission by donation or succession by any kind] Descendant died without legitimate issue (single) Property is inherited by a descendant by operation of law [transmission limited succession by legitime or intestacy and not testamentary] That there are relatives within the third degree [from Prepositus] belonging to the line from which the said property came. 3. provided a security is given Conditional The condition must happen or be fulfilled for the heir to be entitled to succeed [condition is a future and uncertain event: may be suspensive. which must necessarily arrive (e. surviving spouse [if alone] will still get 1/2 RESERVA TRONCAL What is the reserva troncal? (memorize) Art 891: The ascendant who inherits from his descendant any property which the latter may have acquired by gratuitous title from another ascendant. heir can surely get the inheritance but he has to return if he does not follow obligations set forth The inheritance can be immediately be demanded. Marriage solemnized in articulo mortis [near death] Testator died within 3 months from celebration of marriage HOWEVER. Term The period. IF RESOLUTORY: The instituted heir immediately entitled to inheritance. when X dies). What are the three transfers that are involved in a reserva troncal 1.g. 6. or a brother or sister. 2. ii. Art 885: Institutions with a term  legal heir can enter into possession of the property before the term arrives provided he gives security The legitimate children of an illegitimate child can represent the illegitimate child (if IC predeceases the testator) The illegitimate children of an illegitimate child can represent the illegitimate child (if IC predeceases the testator) The legitimate children of a legitimate child can represent the legitimate child (if LC predeceases the testator) The illegitimate children of a legitimate child cannot represent the legitimate child (if LC predeceases the testator) Illegitimate parents are excluded by all kinds of children (illegit/legit) Legitimate parents are only excluded by legitimate children i. 4.g. Art 879: In negative potestative conditions (heir obliged not to do or give something)  inheritance can be taken by instituted heir provided he gives the security 2. What are the requisites of the reserva troncal? This is the bond or security required to be given in favor of those who would get the property if the condition is not complied with (intestate heir/substitute) It is required in the following: 1.

Succession Tips (Justice Hofilena) By: Butch Ramiro Who are the parties involved? How is the reserva troncal extinguished? 1. 3. 2. 3. Ownership subject to a resolutory condition. 2. 3. 4. 4. 2. Prep makes a will instituting the reservee-ascendant to a whole or a part of the free portion ii. in addition to the reserved property. 6. 3. which is the existence of reservees at the time of reservor’s death This right of ownership is alienable but subject to the same resolutory condition The right of reservoir is registrable 1. 2. when reservor holds the property adversely against reservee 123. property not reservable Reserva maxima: As much as potentially reservable property must be deemed included in the part that passes by operation of law What are the rights of the reservees? 1. There is left in prep’s estate. 2. upon his death. Explain reserva maxima or reserva minima A problem arises when two circumstances occur: i. 5. brother or sister of origin) Reservor: ascendant obliged to reserve Reservee: relatives benefited (must be within the 3rd degree from prepositus) What are the options of the prepositus to prevent the reserva? 1. Death of reservor Death of all reservees If all entitled reservees renounce and all parties in interest accept such renunciation If reserved property is totally lost by fortuitous event When reservees acquire the reservor’s right [merger/confusion] By prescription. Origin: transferor in the first transfer Prepositus: the first transferee (descendant. Right of expectancy Right subject to suspensive condition (if reservees survive the reservoir) Right is registrable Reserva minima: Every single property in prep’s estate must be deemed to pass. Substitute or alienate the property Bequeath or devise it to the potential reservor Partitioning the property as assign it to parties other than the reservor What are the rights of the reservor? 1. 3. partly by will and partly by operation of law 6 .