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ARTICLE 774-782

General Provisions
Article 774
Succession is a mode of acquisition by virtue of which the
property, rights and obligations to the extent of the value
of the inheritance, of a person are transmitted through
his death to another or others either by his will or by
operation of law.

What does inheritance include?


a.
b.
c.

What is the difference between heirs and


devisees/legatees, as to the extent of the inheritance?
An heir inherits an aliquot part of the indeterminate
portion of the estate, while, the inheritance of a
devisee/legatee must be specified by the testator.

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 is transmitted through his
death to another or others, either by will or by operation
of law.

What are the elements of Succession?


1.

2.

3.

The right to dispose private property. The will is


merely a causal instrument for the conveyance.
This is the basis of testamentary succession.
Family Co-ownership. The testator recognizes
that the family is the heart and soul of the
society. The idea of succession must revolve
around it. The is the basis of intestate
succession.
Eclectic Theory. The purpose of succession is to
perpetuate the testators patrimony beyond his
existence, giving greater stability to his family
and society. It is a merger of individual and social
principles.
Article 775

Subjective Elements
a.
b.
c.
d.

What is the Basis of Succession?


1.

property
rights not extinguished by death
obligations not extinguished by death (to the
extent of the value of the inheritance)

2.

Objective Element
a.

3.

Testator
Heirs
Devisees or
Legatees

Inheritance

Causal Element
The transmission of property by will and
death as the condition.

What is the distinction between Inheritance and


Succession?
Inheritance refers to the universality of all the property,
rights and obligations constituting the partrimony of the
decedent, which are not extinguished by his death.

In this Title, "decedent" is the general term applied to the


person whose property is transmitted through succession,
whether or not he left a will. If he left a will, he is also
called the testator.

Succession is the legal mode by which such property,


rights and obligations are transmitted.

Define the term Decedent.

It refers to all the properties of the decedent at the time of


his death. They may be residual or accrued properties.

Decedent is the general term applied to the persons


whose property is transmitted through succession,
whether or not he left a will. If he left a will he is called,
testator.

What is the extent of inheritance?

*Corpse of the decedent is not included.


Are all the obligations of the deceased part of his
inheritance?

Article 776
The inheritance includes all the property, rights and
obligations of a person which are not extinguished by his
death.

The inheritance includes all the property, rights and


obligations of a person which are not extinguished by his
death. Hence, not all obligations shall be part of the
decedents inheritance.
Example: Those obligations which are purely personal.
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Give examples of rights which are extinguished by death,


and which, therefore, are not part of the estate?
1.

2.

instransmissible personal rights because of their


nature (such as those appertaining to family
rights, marital and parental authority, support,
action for legal separation, partnership agency,
life annuity)
right to hold public/private office or job (Hu Niu
vs Collector of Customs, 36 Phil 433)

Given an example of rights not extinguished by death,


and which, therefore, are part of the estate?

X died leaving debts amounting to P5M. Will the heirs of


X, be answerable for such debts?
No. The remedy of the creditors would be to proceed
against the estate of X as a separate juridical person.
Monetary obligations are not part of the deceased
inheritance.
Is the body of the decedent part of the inheritance?
No. Because it is not a property (Jurado and Paras). Refer
to the special law on the matter.
Is an action to claim ones legitimacy transmissible?
(Article 173 Family Code)

1.

2.

right to bring or continue an action for forcible


entry or unlawful detainer
right to compel the execution of a document
necessary for the convenience, provided that the
contract is valid and enforceable under the
Statue of Frauds.

The action to claim legitimacy may be brought by the child


during his or her lifetime and shall be transmitted to the
heirs should the child die during minority or in a state of
insanity. In these cases, the heirs shall have a period of five
(5) years within which to institute the action.
Is an action to claim ones illegitimacy transmissible?

*When asked for example about rights and obligations


which are transmissible and non-transmissible, be
particular whether it is an obligation or a right.
A father was a defendant in a civil case. During its
pendency, he died, and his children were substituted as
defendants. If judgment is rendered against the
defendant, can the children be held personally liable with
their own individual properties?
No. The children cannot be held personally liable, despite
the substitution. The remedy of the plaintiff-creditor is to
proceed against the estate of the deceased. (Viardo vs
Belmonte, 21 August 1962)
*While the debts of the deceased still remain unpaid, no
residue may be divided among the heirs, legatees and
devisees. Instead, the court may order the sale of sufficient
properties for the satisfaction of the debts and the heirs
cannot question this. Such a step is necessary for the
eventual partition of the estate. (Lao vs Dec, 23 January
1952)
*A creditor of an heir (who is not a creditor of the
deceased), who intervenes in the estate proceedings,
cannot ask the court to sell the properties, which the heirdebtor expects to receive. This is because the debts of the
deceased himself, must first be paid. Then and only then,
we can determine, if there is a sufficient residue left for the
heirs or for the heirs creditor. (Lintonjua vs Montilla, 31
January 1952)

(Article 175 Family Code)


Illegitimate children may establish their illegitimate
filiation in the same way and on 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 (An admission of
legitimate filiation in a public document or a private
handwritten instrument and signed by the parent
concerned.), in which case the action may be brought
during the lifetime of the alleged parent.
What is the restrictive nature of inheritance?
1.

before death, it is a mere hope

2.

after death, it cannot be distributed unless, all


the claims against the estate of the decedent are
liquidated. The purpose of which is to
determine, what assets are left to be
transmitted to the heirs.

*Under the Rules of Procedures, liquidation is necessary in


order to determine whether or not the decedent has left
any liquid assets which maybe transmitted to the heirs.
*Estate is a legal exigency created by law, so that the heirs
will not be bothered by the claims of other persons against
the decedent. Estate is the continuation of the decedents
personality.

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Article 777
The rights to the succession are transmitted from the
moment of the death of the decedent.

Can an heir sell his future inheritance?


No. Because the heir has no vested right over the
inheritance yet. Therefore, the object, which is the
inheritance, is not yet determined nor certain.

When is the right to succession transmitted?


It is transmitted at the moment of the death of the
decedent.
*Death is a condition that effects transmission of the
decedents assets. The express will of the decedents
presumed will as provided by law is the cause. Before
death, the heir only have a mere hope or expectancy. It is
not a vested right, for a will maybe changed, either
because of:
1.
2.
3.

causes of disinheritance
acts of incapacity/unworthiness
revocation of the will

What is the decisive moment, when the heirs acquire a


definite right to the inheritance?
The decisive moment is death. It is upon the death of the
decedent that the heirs acquire a definite right over the
inheritance, whether such right is pure, conditional or with
a term.
What is death?
Death is the permanent cessation of all the bodily
functions which terminates a persons judicial capacity and
capacity to act.

What are the cases when there is no transmission of


right?
1.
2.
3.

repudiation made by the heir


heirs predeceased the decedent/testator
incapacity of the heir to succeed

Upon the death of the testator, is it necessary to deliver


the properties to the heir in order to acquire ownership?
No. Because the right to the inheritance is transmitted
from the moment of the death of the decedent. Tradition
or delivery is not essential for the acquisition of properties
of the decedent because succession is an independent
mode.
If a decedent dies January 1, 1999 and the property is
actually delivered only on March 1, 1999, when does the
heir become an owner of the property?
He became an owner of the property beginning January 1,
1999. This is because it is not tradition (delivery) that
transfer ownership here but succession. The effects of an
acceptance of the inheritance retroacts to the moment of
death.
If on the other hand, there is repudiation, it is as if, the
heir never owned the property. This is because of the
retroactive effect of repudiation.

What does presumed will mean?


The will of the decedent to transfer the properties to the
heirs is presumed by law. The rule laid down by law is
based on human experience, as may be gleaned from the
order of those who may inherit intestate succession.
What are the conditions before the rights of the heirs are
transmitted?
1.

death of the decedent/testator (either actual or


presumed)

2.

the rights or properties are indeed transmissible

3.

heirs must survive the decedent (no


predecease); be willing (no repudiation); be
capacitated to inherit

*These are also the requisites for succession mortis causa.

*No matter when/what time the heir, devisee or legatee


enters into the possession of the inheritance, devise or
legacy, acquisition always retroact to the moment of
death, in accordance with Article 1042 (The effects of the
acceptance or repudiation shall always retroact to the
moment of death of the decedent.)
*After the death of the decedent, anyone of the heirs may
enter into a contract with respect to his share in the
inheritance, even before the partition has been effected
the right to the inheritance is already in the nature of a
vested right upon the death of the decedent. Thus, the heir
may:
1. sell his undivided share in the inheritance
2. donate it
Before death, the heirs have only a mere hope of
expectancy absolutely inchoate in character, to their share
in the inheritance. Hence, any contract entered into with
respect to the inheritance, would have no object
whatsoever, therefore inexistent from the beginning.
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Article 777 provides that the right to succession are


transmitted from the moment of death of the decedent.
Does this principle apply only to actual death?
No. The principle under this Article applies to both actual
death and presumptive death. This is clear from the
provisions of Article 390 and 391.
What are the rules on presumptive death as to the
opening of succession?
1.

2.

3.

ten (10) years absence, it being unknown,


whether or not the absentee still lives
five (5) years, if the absentee disappeared after
the age of seventy-five (75)
four (4) years, if the absentee disappeared under
any of the circumstances enumerated in Article
391

When or at what precise moment will there be a


transmission of successional rights in case of a
presumptive death?
As to ordinary absence of ten (10) or five (5) years if the
absentee is more than seventy-five (75) years old at the
expiration of the period designated by law.
As to extra-ordinary absence under Article 391 at the
time of the disappearance, because the absentee
disappeared under the danger of death.
*Although the rule says, that there will be transmission of
successional rights at the time of the disappearance of the
absentee, we must still wait for a period of four (4) years
from the time the absentee disappeared. Thereafter, if the
absentee does not appear within four (4) years, there will
be transmission of successional rights and it will retroact
from the time the absentee disappeared. Reason: the
absentee disappeared under danger of death.

Extra-ordinary presumptive death:


1.
2.

What is the effect in case a person presumed to be dead


returns?
There will be a recovery of properties, or a return of their
value, if they were already alienated except for the fruits.
*The exception lies in the case when prescription occurs
due to lack of title.
Can there be succession without death?
As a general rule, there can be no succession without
actual death. However, the law provides succession in
cases of presumptive death. In this case, the death of a
person is merely presumed and conditioned on the fact of
death.
X had two (2) children, Y and Z. X suffered a heart attack
on January 1, 2002 and was pronounced dead on the
same day. On January 2, 2002, X regained consciousness.
Y and Z claimed to have succeeded X in his properties,
when he was pronounced dead on January 1, 2002. Is the
claim valid?
No. There is no succession because there was no death.
Death must be permanent because a person can only die
once.
Article 778
Succession may be: (1) Testamentary; (2) Legal or
intestate; or (3) Mixed.
What are the kinds of succession?
1.
2.
3.

What are the kinds of death in succession?


1.

actual death

2.

presumptive death
a. ordinary
b. extra-ordinary

What are the rule used to determine the precise time of


death of a decedent in presumptive death?
Ordinary presumptive death:
1.
2.

rules of evidence
in the absence of evidence, expiration of period
provided for by law

rules of evidence
in the absence of evidence, at or about time of
disappearance

testate
legal or intestate
mixed

*Contractual Succession has been omitted by the Family


Code.
What are the different modes of testamentary
succession?
1.
2.

will or codicil
will or codicil maybe:
a.
b.

notarial (ordinary attested)


holographic (handwritten by the
testator from the beginning to end,
complete with date and signature)

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*In case of doubt, testamentary succession is preferred


over legal or intestate succession.
What are the kinds of testate and intestate succession?
1.
2.

Article 779
Testamentary succession is that which results from the
designation of an heir, made in a will executed in the
form prescribed by law.

voluntary and compulsory


by right and representation

What is testamentary succession?

Article 780
Mixed succession is that effected partly by will and partly
by operation of law.

It is one, which results from the designation of an heir,


made in a will and executed in the form prescribed by law.
When does intestate succession occur?
Intestate succession is effected by operation of law, in
default of a will. Intestate succession occurs when the
testator has not made a will or even if he made one, such
will has not been made in accordance with the formalities
prescribed by law. In this case, the presumed will as
provided by law, shall govern the distribution of his
hereditary estate after his death.
What is mixed succession?

Article 781
The inheritance of a person includes not only the property
and the transmissible rights and obligations existing at
the time of his death, but also those which have accrued
thereto since the opening of the succession.
What does the inheritance of a person include?
It includes not only the property and the transmissible
rights and obligations existing at the time of his death, but
also those which have accrued thereto since the opening
of the succession.

It is one that is effected partly by will and partly by


operation of law.

Article 782

When does mixed succession occur?

An heir is a person called to the succession either by the


provision of a will or by operation of law.

It occurs when the testator makes a will but fails to


dispose all of his properties by means of such will. The
succession partakes of the nature of both testamentary
and legal succession.

Devisees and legatees are persons to whom gifts of real


and personal property are respectively given by virtue of
a will.

What is contractual succession?


It is the act of future spouse of giving or donating to each
other, in their marriage settlements, their future property,
which is to take effect, upon the death of the donor and o
the extent laid down by the Civil Code relating to
testamentary succession. This succession is not allowed
anymore, for it was not expressly provided for in the
Family Code.
What are the kinds of heirs in testamentary succession?
Define each.
Voluntary an heir is called to succeed to the whole or an
aliquot part of the disposable free portion of the
hereditary estate by virtue of the will of the testator.
Compulsory an heir is called to succeed to a portion of
the testators estate, known as legitime.

Who is an heir?
An heir is a person called to the whole or an aliquot
portion of the inheritance, either by will or by operation of
all. An heir succeeds by universal title.
*Heirs may be compulsory (if entitled to the legitime) or
voluntary (like a friend).
Who is a devisee?
A devisee is a person to whom a gift of real property is
given, by virtue of a will.
What is legatee?
A legatee is a person to whom a gift of personal property is
given, by virtue of a will.

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What are distinctions between heirs, devisees and


legatees?
As to the title:
1.

Devisees or legatees are always called to


succeed to individual items of the property.

2.

Heirs are always called to succeed to an


indeterminate or aliquot portion of the
decedents hereditary estate.

3.

Devisees or legatees succeed by a particular title,


while heirs succeed by universal title.

As to the portion of the estate: The devise or legacy which


is given to the devisee or to the legatee by means of a will,
is, as a rule, a chare against the free portion of the
testators property. However, if the testator is not survived
by compulsory heirs, his entire property is considered as
free property. In such case, the devise and legacy can be
charged against the entire property.
In the case of heirs, a distinction must be made between
heirs in the estate succession (compulsory and voluntary)
and heirs in intestate succession (legal or intestate heirs).
As to the means of succession: Devisee or legatee are
always called to succeed by means of a will.
Heir are called to succeed, either by means of a will
(voluntary) or by operation of law (compulsory and legal).
May a person be compulsory and voluntary heir at the
same time, in the same will? Otherwise stated, is there a
possibility of a dual status of an heir?
Yes. If in a will a compulsory heir is given more than his
legitime, he is assumes a dual status. Insofar as his legitime
is concerned, he is a compulsory heir. Insofar as the excess
is concerned, he is a voluntary heir.
*The aforementioned distinction is important because if a
compulsory heir dies ahead of the testator, his legitime is
inherited by his own child (by right of representation). On
the other hand, the child of a voluntary heir who
predeceases or dies ahead the testator gets nothing from
the said testator (Article 856).
Suppose the only properties left by the decedent are his
three (3) cars. The decedent gave you 1/3 of his estate,
which is, one car. As a beneficiary, are you considered as
an heir?
Yes. Because an aliquot part (1/3 thereof) of the estate
was given to me, not a specific part thereof.

The answer would have been different if the decedent had


given me a specific car. In this case, I would have been a
legatee, having succeeded a personal property, by a
particular title.
X made a will designating A as heir of his entire estate.
However, since X was a gambler, the only property left to
him when he died was a Honda civic car. Is A an heir or a
legatee?
A is still an heir for the purpose of giving effect to Xs will.
The fact that the only personal property left by the
decedent is a personal property is immaterial. The
designation of A, as an heir, still controls.
Give the importance of the distinction between voluntary
heirs, devisees and legatees.
In case of preterition/permission in testators will of one,
some, or all of the compulsory heirs in the direct line, the
effect is to annul entirely the institution of heirs. But
legacies and devisees shall be valid insofar as they are not
inofficious (Article 854).
In case of imperfect or defective inheritance, the effect is
to annul the institution of heirs to the extent that the
legitime of the disinherited heir is prejudiced. But devises
and legacies shall be valid, insofar as they are not
inofficious.
In case of properties acquired by the testator after the
execution of the will, such properties are not as a rule,
included among the property disposed of, unless, it should
expressly appear in the will itself that such was the
testators intention. This rule applies only to legacies and
devises and not to the institution of heirs.
X designated A to of his estate. He also designated B
his car plate number GVG 101. Who is the heir or
legatee?
A is an heir because she will succeed an indeterminate
portion of the estate (1/2 of Xs estate).
B is a legatee because she will succeed to a specific
property (a car with plate number GVG 101).
X executed a will in 1985. He died in 1995. In his will X
have Y all of his cars. At the time of the execution of the
will, X only had two (2) cards. Assuming that in 19995, he
already has 200 cars. How many cars will Y inherit?
Y will only get two (2) cars, because the remaining are
after-acquired properties. Y is merely a legatee because he
does not succeed to a portion of the estate.

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If in the will X stated to give of his estate to Y, what is


the effect?
Y is now an heir, because he is to succeed to a portion of
the estate. Therefore, in the preceding problem. If the only
estate is 200 cars, Y will get 100 cars.
What are the advantages and the disadvantages
between a devisee, legatee and heir? (see Jurado)
Effect of preteririon
Effect of imperfect disinheritance
Effect of self-acquired properties
How do you determine an heir from a legatee or devisee?
If the property is a particular item of the estate, the
receiver is a devisee or legatee, as the case may be
(whether that particular item is personal or real).
Otherwise, he is an heir.
Article 783 to Article 787
Wills in General

If the will does not dispose of property, such as when a


person is merely named as executor, or when a natural
child is recognized, can it still be considered as a will?
If we follow the strict legal definition of the will, it would
seem that it does not contain a disposition of property, it
cannot be considered a will. But in some jurisdiction and
jurisprudence, it may still be called a will.
Paras: It may still be called a will, although such will need
not be probated for under our law it would seem that the
probate is needed only if the property is to be conveyed by
a testamentary succession (see Article 838). Furthermore,
it has been held that for purposes of recognizing a natural
child by virtue of a will, the will need not be probated,
thought it must of course still be a valid will.
In Xs will, A was given a house, effective immediately.
Is the disposition by virtue of a will?
No. Since it is supposed to take effect immediately. There
was therefore no animus testandi insofar as this provision
is concerned.
Is he entitled to get the house now or immediately?

Article 783
A will is an act whereby a person is permitted, with the
formalities prescribed by law, to control to a certain
degree the disposition of this estate, to take effect after
his death.
What are the different modes of testamentary
succession?
1.

will or codicil

3.

will or codicil maybe:


a. notarial (ordinary attested)
b. holographic (handwritten by the
testator from the beginning to end,
complete with date and signature)

* In case of doubt, testamentary succession is preferred to


legal or intestate succession.

No. Unless, he signifies his acceptance in the form


prescribed by law for donations and unless the instrument
be notarized as a public instrument (Article 749).
How will the house be disposed of?
In accordance with the rules on legal succession, in case
the donation is not effective (Article 960).
What are the characteristics of a will?
1.
2.
3.
4.
5.
6.
7.
8.

strictly personal act


am individual and unilateral act
free and voluntary act
a formal and solemn act
a disposition of property
an act mortis causa
ambulatory
revocable during the lifetime of the testator

What is a will?

Why a personal act?

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


formalities prescribed by law, to control a certain degree
the disposition of his estate, to take care after his death
(Article 783)

Because its execution cannot be left to the discretion of


third person.

Is the right to make a will a natural right?

Because it does not need the approval of any other


person.

Why unilateral?

The act of making a will is not a natural right because not


all persons can make a will. It is not a statutory right.
Simply means, that not all persons are qualified to make a
will.
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Why a formal and solemn act?


Because it must comply with the formalities prescribed by
law.
Why an act mortis causa?
Because it takes effect only after the death of the testator.

money, it should be wiser to employ one whenever the


whole estate is involved (57 Am.Jur., Sec 21).
Moreover, if an attorney drafts a will and is present at the
time of its execution, there is a strong presumption that
the will was regularly made.
Is a lawyer prohibited from assisting a person making a
will?

Why ambulatory?
Because the testator can revoke it at any time before his
death.

If the lawyer does only a mechanical act of writing the will,


then, he is not prohibited. Otherwise, the will would be
invalid.

Article 784

Article 785

The making of a will is a strictly personal act; it cannot be


left in whole or in part of the discretion of a third person,
or accomplished through the instrumentality of an agent
or attorney.

The duration or efficacy of the designation of heirs,


devisees or legatees, or the determination of the portions
which they are to take, when referred to by name, cannot
be left to the discretion of a third person.

X made his last will and testament and authorize you to


execute it. Is it valid?
No. The making of a will is strictly a personal act. It cannot
be left in whole or in part to the discretion of a third
person or accomplished through the instrumentality of an
agent or attorney.
Can a testator designate to a third person the typing of
his last will and testament?
Yes. The mechanical act of drafting may be entrusted to
another, as long as the disposition itself expresses the
testators desire and all the formalities of the law are
complied with.

Article 786
The testator may entrust to a third person the
distribution of specific property or sums of money that he
may leave in general to specified classes or causes, and
also the designation of the persons, institutions or
establishments to which such property or sums are to be
given or applied.
What are the acts in making a will that cannot be
designated to a third person?
1.

the duration or efficacy of the designation of


heirs, devisees and legatees

2.

determination of the portions of which they are


to take, provided that they are referred to by
name

What is the meaning of the expression a strict personal


act?
It means that, it cannot be left in whole or in part to the
rd
discretion of a 3 person or accomplished through the
instrumentality of an agent or attorney.

Why is that the acts provided for under Article 785 cannot
rd
be designated by testator to 3 persons?
1.

those acts are testamentary in character, and


therefore, they cannot be designated, in whole
rd
or in part, to 3 persons (making of a will is a
strictly personal act)

2.

to prevent 3 persons from substituting his own


intentions to that of the testator

However, the mere act of drafting/writing a will does not


fall within the purview of the prohibition. Thus, it has been
held that he who does the mechanical work of writing the
will, is a matter of indifference.
The fact therefore that the will was typewritten in the
office of a lawyer is of no consequence (Castaneda vs
Alemmany, 3 Phil 426; Bagtas vs Paguio 22 Phil 227).
Is it advisable to employ an attorney in making a will.
What are its advantages?

rd

X executed a Special Power of Attorney (SPA) authorizing


his lawyer to make a will. Is the SPA valid?
No. Because the making of the will is purely a personal act.

In making a will it is advisable to employ an attorney, for if


we employ an attorney in so many cases involving little
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X ordered his lawyer to execute the distribution of the


properties in his will in favor of the heirs. Is the act/will
valid?

Under Article 786, the property or the amount of money to


given must be specified by the testator, in addition to the
requirement that it must be for a specified class or cause.

No. Because the determination of the portions to be given


rd
lies in the 3 person. The properties to be distributed and
the receivers must already be specified. The lawyer must
only execute the distribution, without the possibility of
substituting his own intentions over that of the testator.

X ordered Y to distribute P50T from his estate, for


whatever good cause he may think. Is the act valid?

X stated in his will I give P1M to be distributed to


charitable institutions devoted to unwed mothers, and, I
hereby designate Y to take care of the distribution of the
said amount. Is the act valid?

X bequeaths the amount of P5M for Metro Manila. He


authorized his executor, Y, to distribution the amount. Is
the act valid?

rd

Yes. The testator may entrust to a 3 person; the may


distribution of specific property or sums of money that he
may leave in general to specified classes or caused and
also the designation of the persons, institutions or
establishments to which such property or sums of money
are to be given or applied.
X, testator said to his lawyer, you may take whatever
amount from my estate to be distributed to the street
children of Manila. Is this valid?
No. because although there is a specified class (the street
children of Manila), the amount to be given is not
specified. The amount is termed as whatever amount.
In the preceding question, what if X said to his lawyer, I
give P10M to be given to the street children of Manila
and I hereby designate you to take care of the
distribution of the said amount. Is this valid?
Yes. Article 786 applies: street children (specified class);
P10M (specific sum of money).
What if X said, I hereby make the children of Hospicio de
San Jose as my legal heirs and declare my lawyer to
determine the amount which they are to receive. Is the
will valid?
No. Article 785 applies. Because the heirs were referred to
by name: the children of the Hospicio de San Jose.
Furthermore, the amount was not specified by the
testator. It is the lawyer who determines the amount.
In the preceding question, what if the testator said, I
hereby make the 2002 graduating class of SBC as my
legal heirs in the amount of P10M and declare my lawyer
to determine the amount which they are to receive. Is
this valid?
Yes. The beneficiary was a specified class the graduating
class of 2002.

No. Because the recipient of the act is not a specified


group or class. Article 786 does not apply.

rd

Yes. The testator may entrust to a 3 person the


distribution of specific property or sums of money, that he
may leave in general to specified classes or causes, and,
also the designation of the persons, institutions or
establishments to which such property or sums of money
are to be given or applied (Article 786).
In this case, X has already completed the testamentary act
of making a will. What he delegated to Y was merely the
details thereof, on order to make the devise or the legacy
more effective.
*The determination of the amount which the heirs,
devisees and legacies are to take is a testamentary act
rd
which cannot be delegated to a 3 person, which such
heirs, devisees or legatees are referred to by name. This
prohibition is intended to discourage the illegal delegation
of testamentary powers (Article 785).
Take note however, that the prohibition provided for under
Article 785 is different from the rule enunciated under
Article 786.
Under Article 786, it involves beneficiaries, who are not
referred to by name, but are referred to by specific classes
or causes.
X stated in his will, I give the amount of P50M, for the
benefit of SBC, CEU, LCC and PHS schools and I leave the
distribution of the amount thereof to my lawyer. Is the
provision valid.
No. Although they belong to a specified class, the heirs
were referred to by name. So Article 785 applies and not
Article 786. The heirs were specifically named and were
not merely a particular class.
Suppose the testator stated in his will that I will give the
amount of P50M to all the college schools in Manila and I
leave the distribution of the amount thereof to my
lawyer. Is the provision valid?
Yes. Because the schools are of a particular class. The third
person can distribute the amount by himself.
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by kotch.agcaoili.agudo

*While Article 785, enumerates in absolute terms, the


different things which the testator cannot do, Article 786
enumerates by way of exception the different things which
the testator may do.
rd

Thus, the testator is allowed to entrust to a 3 person:


1.

2.

the power to distribute specific property or sums


of money, which he may have left in general to
specific classes or causes
the power to designated the persons,
institutions, to which such property or sums of
money are to be given or applied

What is contemplated under Article 786 is that, the


testator has already completed the testamentary act of
rd
making a will. What is entrusted to a 3 person are merely
the details thereof, in order to make the devise or legacy
more effective.
Example: A testator may bequeath P1M to a specified
class, such as, the different charitable institutions of
Manila, or to a specified cause, such as, the cause of labor,
entrusting the same time, to the executor of his estate,
the power to designate the different institutions or
organizations to whom the said amount shall be given.
Article 787
The testator may not make a testamentary disposition in
such manner that another person has to determine
whether or not it is to be operative.
*The act determining whether a testamentary disposition
is to be operative or not, is not exactly testamentary in
rd
character. But the delegation of such act to a 3 person
would be tantamount to allowing the testator to substitute
rd
the will of a 3 person, for his own, which precisely, what
the law intends to prevent, when it states that the making
of a will cannot be left, in whole or in part, to the discretion
rd
of a 3 person.
Suppose it is stated in Mr Xs will I will give my house
and lot to F, if my wife will agree. Is the provision valid?
rd

No. Because it is subject to the 3 persons determination.


Under Article 787, the testator may not make a
testamentary disposition in such a manner that another
person has to determine whether or not it is to be
operative.

What are the aspects of a will governed by the law of the


decedent?
1.
2.
3.
4.

order of succession
and amount of succession
intrinsic validity of testamentary provisions
capacity to succeed (Article 1039)

*Article 1039 Civil Code: Capacity to succeed is governed


by the law of the nation of the decent.
What is the Rule on the interpretation and construction
with respect to testate succession?
The rule is to ascertain and give effect to the intention
and desires of the testator, provided, they are not contrary
to law.
Article 788
If a testamentary disposition admits of different
interpretations, in case of doubt, that interpretation by
which the disposition is to be operative shall be
preferred.
What if the provision of the will admits of different
interpretations, which shall be preferred?
If a testamentary disposition admits of different
interpretations, in case of doubt, that interpretation by
which the disposition is to be operative shall be preferred.
The reason is that, testate succession, provided the will is
valid, is preferred to intestacy. If no doubt exist and the
disposition is clearly illegal, the same should not be given
effect.
Article 789
When there is an imperfect description, or when no
person or property exactly answers the description,
mistakes and omissions must be corrected, if the error
appears from the context of the will or from extrinsic
evidence, excluding the oral declarations of the testator
as to his intention; and when an uncertainty arises upon
the face of the will, as to the application of any of its
provisions, the testator's intention is to be ascertained
from the words of the will, taking into consideration the
circumstances under which it was made, excluding such
oral declarations.
What are the kinds of ambiguities/validities in the
formalities of the will?

In the preceding, is the entire will invalid?


No. The only provisions whose effectivity depend upon the
rd
determination of the 3 peson (Xs wife) will be
invalidated.

1.
2.

latent or intrinsic ambiguities


patent or extrinsic ambiguities

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What is latent or intrinsic ambiguities?


That which does not appear on the face of the will and is
discovered only the extrinsic evidence.
Example: I institute my brother-in-law.
When it is discovered, that there are 2 brothers-in-law.
This ambiguity is not found in the will itself. The doubt
arises only because of the things outside the will.

How can the identity of the property devised be


determined?
Under Article 789, Marc may avail himself of either
intrinsic or extrinsic evidence or of both, in order to
ascertain the testatorial intention.
Can Marc testify or present witnesses, who will testify to
the effect that during his lifetime, the testator, X, verbally
declared or revealed the identity of the property he
intended to devise?

In a will, this kind of ambiguity arises:


1.

when there is an imperfect description of the


heir, legatee or devisee

2.

when there is an imperfect description of the gift


being given

3.

when only one recipient is designated, but it


turns out that there are two or more, who fit the
description

What is patent or extrinsic ambiguity?


That which appears on the face of the will itself, in other
words, by examining the provision itself, it is evident that
it is not clear.
Example: I hereby institute some of my 7 brothers.
It is evident here, that we do not know how many of the
brothers are being instituted.
In this case, extrinsic evidence, as well as the will itself may
be examined (but not the oral declarations of the testator)
to ascertain the testators intent, but if after everything
has been done, the doubt still remains, not one of the
seven brothers will inherit as instituted heirs, because
then, the heirs will be considered as unknown persons
nd
under Article 844, 2 paragraph.
What is the remedy if there is a latent/intrinsic ambiguity
in the provisions of the will?

No. Such testimony would be hearsay, and therefore,


inadmissible as evidence.
Suppose that the will states I give to my first cousin
Anne Ekaterina Navarro my house and lot in Quezon
City. But three (3) first cousins are named Anne
Ekaterina Navarro. What kind of defect is this? What is
the remedy?
Latent. Same as patent.
What is the remedy if there is a patent/extrinsic
ambiguity in the provision of the will?
The same as lantent/intrinsic ambiguity. Ascertain the
testatorial intention by using either or both:
1.
2.

intrinsic evidence
extrinsic evidence

The oral declarations of the testator as to his intentions


must be excluded.
Why is oral declaration of the testator in determining the
ambiguities in the will not allowed?
1.

it is merely a hearsay, and therefore,


inadmissible as evidence

2.

the testator is already dead by the time the


ambiguities of the will are questioned, and
therefore, he can no longer refute the
testimonies of lying witnesses

Ascertain the testatorial intention by using either or both:


1.
2.

intrinsic evidence
extrinsic evidence

Testator will give his house and lot to two (2) of his five
(5) brothers. What king of ambiguity is this? Is the
disposition valid?

The oral declarations of the testator as to his intentions


must be excluded.

Patent/Extrinsic. It is evident from the face of the will


itself.

Example: X, owns a two (2) parcels of land in a certain


province, has devised one of them to his cousin, Marc.
During the testate proceedings, a question arouse as to
the identity of the land devised because of the imperfect
description of the property in the will.

It depends. Yes, if the identity of the two (2) brothers


referred to in the will can be ascertained by extrinsic or
intrinsic evidence. No, if the identity cannot be
determined. In this case, the law on intestate succession
shall apply.
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Principal Rule in Interpretation of Wills


1.
2.
3.
4.

determine the testatorial intention


consider the provisions altogether
avoid provisions which shall render the will
ineffective
testacy is always preferred
Article 790

The words of a will are to be taken in their ordinary and


grammatical sense, unless a clear intention to use them
in another sense can be gathered, and that other can be
ascertained.
Technical words in a will are to be taken in their technical
sense, unless the context clearly indicates a contrary
intention, or unless it satisfactorily appears that he was
unacquainted with such technical sense.
Article 791
The words of a will are to receive an interpretation which
will give to every expression some effect, rather than one
which will render any of the expressions inoperative; and
of two modes of interpreting a will, that is to be preferred
which will prevent intestacy.
What is the effect if the will of the testator is not
followed? Or if the will is void?
Intestate succession occurs.
*Intestacy is not preferred because it is merely presumed.
Testate succession is the general rule because it the
express will of the testator. Exception: if the will not valid
or when the will is void.
Article 792
The invalidity of one of several dispositions contained in a
will does not result in the invalidity of the other
dispositions, unless it is to be presumed that the testator
would not have made such other dispositions if the first
invalid disposition had not been made.
Will the invalidity of one of several dispositions contained
in a will result in the invalidity of the other dispositions?
No. It will not result in the invalidity of the other
dispositions, which are otherwise valid, unless, it is to be
presumed that the testator would not have made such
dispositions, if the first invalid disposition had not been
made.
*Even if one disposition or provision is invalid, it does not
necessarily follow that all the others are also invalid. The

exception occurs when the various dispositions are


indivisible in intent or nature.
Article 793
Property acquired after the making of a will shall only
pass thereby, as if the testator had possessed it at the
time of making the will, should it expressly appear by the
will that such was his intention.
After Acquired Properties
Under Article 793, property acquired during the interval
between the execution of the will and the death of the
testator, are not as a rule, included among the properties
disposed of, unless, it should expressly appear in the will
itself, that such is the intention of the testator.
Example: If the testator made a will in 1980, disposing his
properties in the form of gifts or bequests of specific or
determinate real and personal properties, and
subsequently, during the period from 1980 to the time of
his death in 1990, he is able to acquire other properties.
According to Article 793, the will shall only pass to those
properties, which he had at the time of its execution in
1980, but not those, which he had acquired subsequent
thereto.
It is clear however, that Article 793 applies only to devises
and legacies and not to the institution of heirs. This can be
inferred from the provisions of Article 776 and 781
regarding the extent of inheritance.
X executed a will in 1980 instituting his three (3) children,
A, B and C, as his universal heirs. A shall be entitled to ,
B to and C the remainder. X died in 1990, leaving
considerable properties, most of which were acquired
during the period between 1980 and 1990. How will the
estate be distributed? Or what part of the estate will be
distributed?
The division of the estate as dictated in the will shall be
applied not only to those properties existing at the time of
the execution of the will on 1980, but even to those that
were acquired subsequent thereto, because A, B and C are
instituted as legatees/devisees.
Why does the provision of after acquired properties apply
only to legatees and devisees?
It does not apply to heirs, because the heirs inherit
everything at the time of the testators death. The extent
of the inheritance includes those properties acquired even
after the execution of the will. The time of death is the
determining point of the properties, which the heirs will
inherit, not the making of the will.

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The provision applies only to the legatees and devisees


because the intention of the will is a complete act.
*Do not confuse Article 793 with Article 781. Taje note of
the difference between after acquired property (those
acquired between the making of the will and the testators
death) and the property accruing since the opening of the
succession (or the property added after the death of the
decendent, referred to under Article 781).
Article 794
Every devise or legacy shall cover all the interest which
the testator could device or bequeath in the property
disposed of, unless it clearly appears from the will that he
intended to convey a less interest.
What is the general rule as to the interest may be
disposed of?

The formal validity of the will is to be judged not by the


law in force at the time of (a) the testators death, or (b)
the supposed will is presented in the court for probate, or
(c) when the petition is decided by court, but at the time
the instrument was made.
Reason: The testators wishes regarding the disposition of
his estate among his heirs, devisees and legatees are given
solemn expression at the time the will is executed, and
thus becomes a complete act (Enriquez vs Abadia, 50 OG
4185; In re: Will of Riosa, 39 Phil 23). Furthermore, a
testator cannot be expected to know the future, hence, it
is enough that he follows the law in force at the time he
makes the will.
What is the effect of a new law changing the formalities
of a will?
1.

after the death of the testator, the rules have no


effect because the heirs already have a vested
right

2.

before the death of the testator, the rules have


no effect

The entire interest of the testator in the property is given


not more or less.
Example: The owner of the house who devises the same,
transfers ownership over the entire house. If he (owner)
were a mere co-owner or a usufructuary, he conveys his
share in the co-ownership, or his usufructuary rights, no
more, no less.

Exception: if a new law expressly provides for a


retroactive application
Exception to the exception: when the heirs
already have a vested right

What are the exceptions to the aforestated rule?


See Paras discussion under Article 792.
Article 795
The validity of a will as to its form depends upon the
observance of the law in force at the time it is made.

In the preceding problem, does the exception (with


respect to retroactive application of the Law) violate
the constitutional prohibition regarding the
deprivation of property without due process of law?
No. It does not violate the constitutional prohibition
regarding the deprivation of property, because:

What law governs the intrinsic validity of a will?


1.

the statute is enacted before the death of the


testator, and as a consequence

2.

no rights are yet vested in the persons called to


the inheritance either as heirs, devisees or
legatees

The law at the time of the death of the decedent.


Kinds of validity with respect to wills:
1.

extrinsic validity

2.

refers to the forms and solemnities needed


maybe seen from the viewpoint of time and
place

Furthermore, the will is still revocable. Thus, if the testator


has made a will and a new law is passed affecting the will,
the testator may still changed the will to conform to the
new law.

intrinsic validity
What then is the rule under Article 795?

refers to the legality of the provisions in an


instrument, contract or will
may be seen from the viewpoint of time
and place

A will perfectly valid at the time of its execution cannot be


invalidated by a law enacted after the death of the
testator; neither can a will totally void at the time of its
execution be validated by such subsequent legislation.
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Suppose X executed his last will and testament in


September 13, 1999. The law at the time it was executed,
requires three (3) witnesses. But the time X executed his
last will and testament, only two (2) were present. A
month thereafter, a new law was passed requiring only
one (1) witness. Should Xs will be given effect?
No. Because the validity of the will as to its form depends
upon the observance of the law in force at the time it is
made. The formal validity of the will is to be judged, not
only by the law in force at the time of the supposed will is
presented in court for probate, or when the petition is
decided by court, but also at the time the instrument was
executed. Although the will operates only after the death
of the testator, in reality, his wishes regarding the
disposition of his estate among his heirs, devisees and
legacies, are given solemn expression at the time the will
was executed. It is also during that same time, that will
becomes a completed act.
Suppose at the time of the execution of the will, the law
required three (3) witnesses. The will was executed by X,
complying with such requirement. Thereafter, a
subsequent law reduced the required number of
witnesses, until the time X dies. Is the will valid?

Matthew Hanley. However, it also provides that all the real


estate shall be placed under the management of the
executors for a period of ten (10) years. After the
expiration of which, the properties shall be given to
Matthew Hanley.
Plaintiff contends that the inheritance tax should be based
upon the value of the estate at the expiration of the tenyear period, which according to the testators will, the
property could be and is to be delivered to the instituted
heir, and not upon the value thereof, at the time of the
death of the testator.
HELD: Whatever may be the time when actual
transmission of the inheritance takes place, succession
takes place in any event at the moment of death of the
decedent.
Death is the generating source from the power of the State
to impose inheritance taxes takes it being. Hence, if upon
the death of the decedent, succession takes place and the
right of the State to tax vest instantly, the tax should be
measured by the value of the estate as it stood at the time
of the decedents death, regardless of any subsequent
contingence affecting value or any subsequent increase or
decrease in value.

Yes. Although, the will did not comply with the formalities
prescribed by law, enacted after the execution of the will,
yet, it can still be admitted to probate because it had
complied with all of the formalities in force at the time of
its execution.
Is the rule enunciated in Article 795 absolute?
No. The validity of a will as to its form depends upon the
observance of the law in force at the time it is made.
Except, if a subsequent law allows or required
retroactivity. A latter law may allow for express
retroactivity as implied from the language used therein.
Suppose X died before effectivity of a new law, but
probate of the will was initiated after the effectivity of
the law. Will the new law be given retroactive effect?
No. The new law must be given retroactive effect, as this
will violate the vested rights of the heirs.
Why?
Because the rights are transmitted at the time of the death
of the decedent.
Lorenzo vs Posadas (64 Phil 353)
FACTS: Thomas Hanley died, leaving a will and some
personal and real properties. The will, which was duly
admitted to probate, provides among other things, that all
the properties of the testator shall pass to his nephew,
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Article 796 to Article 800


Testamentary Capacity and Intent
Testamentary Capacity refers to the ability, as well as,
the power to make a will.

does not affect the will because its invalidity is determined


at the time of the execution of the will.
In the preceding problem, what if X believed in good faith
that he is already eighteen (18) years of age, is the will
valid?

Article 796
No. Good faith is immaterial.
All persons who are not expressly prohibited by law may
make a will.

Suppose that X is already ninety-five (95) years old, can


he still make a will?

Who may execute a will?


Yes.
All persons who are not expressly prohibited by law to
make a will.

What if X suffers from tubercolosis, diabetis, SARS, AID,


etc?

Is the right to make a will a natural right?


He may still make a valid will.
No. Because not all persons are qualified to make a will.
The law provides some requirements before a person can
execute a will.

What if X does not remember that he has a wife and a


children?

It is purely a creature of statute, and as such, is subject


matter of legislative control.

No. Because he does not know the proper object of his


bounty.

Article 797
Persons of either sex under eighteen years of age cannot
make a will.
What are the minimum requirements for persons in
making a will?

What is X knows he has a BPI Bank Account, but does not


know the exact amount or he knows he has a lot in QC
but he does not know the exact address?
He may still make a valid will for as long as he knows the
nature and extent of his estate.
Pointers:

1.
2.
3.

must be 18 years old


must be of sound mind
must not be expressly prohibited by law

1.

The law prescribed no limit in point of age by


which a person cannot dispose of his property by
will. Hence, mere senility or infirmity of old age
does not necessary imply that a person lacks
testamentary capacity.

A person is said to have reached the age of eighteen (18)


only at the commencement of the day which is popularly
known as his birthday.

2.

A person is considered to have reached the age


st
of eighteen (18) on the 1 hour of his birthday.

*eighteen (18) years of age

3.

Neither physical infirmity or disease is


inconsistent with testamentary capacity. The
usual test must still be applied.

4.

Senile dementia produces a testamentary


incapacity. It is defined as the peculiar decay of
the mental faculties, whereby the person
afflicted is reduced to a second childhood.

5.

The fact that the testator is under the immediate


influence of intoxicating liquor or drugs at the
time he performs the testamentary act, does not
invalidate his will, on the ground of lack of
testamentary capacity, provided he meets the
three (3) requirements.

When does a person become eighteen (18)?

minimum age required


as long as it is made before the decedent
reaches the age of eighteen (18) the will is
void
good faith is immaterial
the law does not fix a maximum age

X made a will when he is only seventeen (17). He died


without changing the will. Is the will valid?
No. X has no testamentary capacity at the time of the
execution of the will. Supervening capacity or incapacity

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6.

An insane delusion, which will render one


incapable of making a will, may be defined as a
belief in things, which do not exist, and which,
no rational mind would believe to exist.

7.

A belief in spiritualism is not itself a sufficient


evidence of testamentary incapacity. However, a
will executed by one under such extraordinary
belief in spiritualism, that he follows blindly and
implicitly, the supposed direction of the spirits in
constructing the will, is not admissible to
probate.

Suppose X suffered a stroke and part of his brain was


damaged. Can he still be considered to be of sound mind
for purposes of executing a will?
It depends.

Example: Belief in angels/dwarfs


a. if no angel delusion
b. if there is angel undue pressure and influence
or even threat
Article 798
In order to make a will it is essential that the testator be
of sound mind at the time of its execution.

If the brain damage sustained by X is so severe, that it


deprives him, at the time of making the will, to know the
nature of the estate to be disposed of, the proper object
of his bounty, and the character of his testamentary act,
then, X cannot be considered to be of sound mind.
But is the brain damage sustained by X is not so severe,
that at the time of making the will he is able to know the
nature of the estate to be disposed of, the proper object
of his bounty and the character of his testamentary act,
then X can still be considered to be of sound mind.
What are the requisites in order that a testator be
considered to be of sound mind?
The testator must be able, at time of the making of the
will, to know:

Article 799

To be of sound mind, it is not necessary that the testator


be in full possession of all his reasoning faculties, or that
his mind be wholly unbroken, unimpaired, or unshattered
by disease, injury or other cause.
It shall be sufficient if the testator was able at the time of
making the will to know the nature of the estate to be
disposed of, the proper objects of his bounty, and the
character of the testamentary act.
When is a person of a sound mind? What is the definition
of a sound mind as applied in the making of the will?
To be of sound mind, it is not necessary that the testator
to be in full possession of all his reasoning faculties or that
his mind be wholly unbroken, unimpaired or unshattered
by disease, injury or other cause.
It shall be sufficient if the testator was able at the time of
making the will to know the nature of the estate to be
disposed of, the proper objects of his bounty, and the
character of the testamentary act.
*Soundness of mind is the ability of the testator mentally
to understand in a general way, the nature and extent of
his property, his relation to those who naturally have a
claim, to benefit from his property left by him (proper
bounty), and a general understanding of the practical
effect of the will as executed (must be aware that his act is
revocable and must be aware of the effects of his act of
making a will).

1.
2.
3.

the nature of the estate to be disposed of


the proper objects of his bounty
the character of his testamentary act

What does nature of estate mean?


It refers to the character and the testators ownership of
what he is giving. Knows the properties but not necessarily
all the details of the properties.
X decided to make a will. He knows he has properties in
Manila, but he does not know the exact address. Is the
disposition valid?
Yes. Because the law merely requires that the testator
knows, in a general way the nature and the extent of his
properties. In this case, X is of sound mind when he
executed the will.
X made a will in 1990. He knew he has money in the bank
and house in Manila but he forgot the specific detail
concerning his properties. Is the will valid?
Yes. Because X knows the extent of his properties in a
general way. He is of sound mind.
What does the proper objects of his bounty mean?
It refers to the testators relation to those who would
naturally have a claim or to those who would benefit from
the property left by the testator. In short, it refers to the
persons who for some reason expect to inherit something
from the testator.
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Example: testators children

2.

if the testator made the will after he had been


judicially declared to be insane, and before such
judicial order has been set aside (Torres vs Lopez,
48 Phil 772)

3.

if the testator makes a will at the time he is still


under guardianship

Is it necessary that the testator should know the


beneficiaries of the will?
As a general rule, yes. Because the law requires the
testator to be aware of the proper objects of his bounty,
except in Article 786 which provides that the testator may
designate only a specific class or cause in his will, and that
the third person shall be responsible in allocating the
specific portion to its members.
What does testator is able to know the character of the
testamentary act mean?
It means that the testator knows that it is really a will, that
it is a disposition mortis causa, that it is essentially
revocable. In short, the testator must have a general
understanding of the practical effect of the will as
executed.

What is the reason for the inversion of the rule when a


person who made the will is under guardianship?
A prima facie presumption of mental incapacity, when a
person is under guardianship.
If during the probate of the will, there is a question as to
the soundness of mind of the testator. Oppositors to the
will presented the attending physician. Whose testimony
shall be given weight, the attending physician or the
doctor who renders the medical speculation?
Attending physician.

Can a drug addict make a valid will?


As a general rule, yes. A drug addict can make a will as
long as he is in his lucid mind and he complies with the
nd
requisites provided for under Article 799, 2 paragraph.
The exception lies when the effect of drugs are so strong
as to render him of unsound mind.

Navarro: I suggest that you get the following as


witnesses to the execution of a will:
1.
2.
3.

priest or minister highly credible


doctor attending physician
lawyer- familiar with the law

Article 800
The law presumes that every person is of sound mind, in
the absence of proof to the contrary.
The burden of proof that the testator was not of sound
mind at the time of making his dispositions is on the
person who opposes the probate of the will; but if the
testator, one month, or less, before making his will was
publicly known to be insane, the person who maintains
the validity of the will must prove that the testator made
it during a lucid interval.
Under Article 800, the law presumes that every person is
of sound mind, in the absence of proof to the contrary.
What are the instances when this presumption is
inverted? Or what are the instances when the testator is
presumed to be mentally unsound?
There are at least three (3) instances:
1.

when the testator, one (1) month or less, before


making his will was publicly known to be insane
*Instead of presumption of mental capacity,
there is a presumption of mental incapacity. The
burden of proof is shifted to the proponents of
the will.

What is the effect of infirmity or disease on the testators


testamentary capacity?
Physical infirmity or disease of the testator will not affect
his testamentary capacity as long as the tests/requisites
are complied with.
X executed a will. In order for her to sign the will, it is
necessary for Y, a minor, to guide her hands. Does X still
has testamentary capacity?
Yes. As long as the three (3) requisites/tests are complied
with.
*Mental insanity refers to any disorder of the mind
resulting from disease or defect of the brain, whereby
mental freedom may be perverted, weakened or
destroyed. This is sometimes used as the equivalent of
mental incapacity to make a will. But there may be mental
incapacity to make a will without actual insanity.
Person suffering from:
1.
2.
3.

idiocy
imbecility
senile dementia

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do not posses the necessary mental capacity to make a will


since these are absolute and permanent forms of mental
disease or insanity.
Idiocy refers to those who are mentally deficient in
intellect.
Imbecility refers to those who are mentally deficient as a
result of a disease.
But there are other forms or degrees of mental
disease/weakness which do not necessarily negate
testamentary capacity.
Under our law, to be of sound mind, it is not necessary that
the testator be in full possession of all his reasoning
faculties or that his mind be wholly unbroken, unimpaired
or unshattered by disease, injury or other cause (Article
799).
Hence, mental aberrations, which do not result in such
impairment of the faculties as to render the testator
unable to know or understand the nature of his estate to
be disposed of, the proper objects of his bounty and the
character of the testamentary act, will not destroy
testamentary capacity.
Article 801
Supervening incapacity does not invalidate an effective
will, nor is the will of an incapable validated by the
supervening of capacity.
*Supervening capacity or incapacity does not affect the
will because its validity is determined at the time of the
execution of the will

How many times can a person make a will?


There is no limit as to how many times a person can make
a will, as long as, he has the capacity to do it. Once a
person is eighteen (18) years old the law presumes
capacity. So even if the testator is already one hundred
(100) years old the will is still valid, unless otherwise
proven.
Does the law prescribe a limit in point of age by which a
person can dispose of his property by will?
No. As long as the testator passes the test of sound mind,
provided under Article 799. That is, that the testator, at
the of the making of the will, is able to know:
1.
2.
3.

nature of the estate to be disposed of


the proper objects of his bounty
the character of the testamentary act

What is the reason why a person below eighteen (18)


years of age is incapacitated to make a will?
The law presumes mental incapacity.
Why is a person too old still allowed to make a will?
It has been justly said, that the will of an aged (old) person,
should be regarded with tenderness, provided, that he
passes the three (3) tests of possessing a sound mind.
Article 802
A married woman may make a will without the consent
of her husband, and without the authority of the court.
Article 803

Does the supervening incapacity of the testator


invalidate an effective will? Or is the will of an incapable
validated by the supervening capacity?

A married woman may dispose by will of all her separate


property as well as her share of the conjugal partnership
or absolute community property.

No. (See Article 801 in relation to Article 795)


X made a will when he was only seventeen (17) years old.
He died at the age of twenty-seven (27) without changing
the will. Is the will valid?

Why is there no provision about married men on laws of


testamentary capacity and intent?
Because there is no doubt as to the rights of men in
succession. Unlike women due to the Old Civil Code.

No. X has no testamentary capacity at the execution of the


will. Supervening capacity or incapacity does not affect the
will because its validity is determined at the time of the
execution of the will.

Can a married woman execute her last will and


testament without the consent of her husband and
without authority from the court?

Suppose X made a will in 1975 when he was twenty-five


(25) years old. In 1997, he became insane. He died in
1999. Is the will valid?

Yes. A married woman may execute a will without the


consent of her husband and without authority from the
court. (Article 802)

Yes. Subsequent incapacity of the testator does not


invalidate a valid will.
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What are the properties which a married woman may


dispose of by will?
A married woman may dispose by will all of her separate
property, as well as, her share of the conjugal partnership
or absolute community property.
What if the husband objects? Can she still make a valid
will?
Yes. Article 802 is very clear on this. A married woman may
make a will without the consent of her husband. Aside
from the minimum requirement that she must be:
eighteen (18) years old and be of sound mind, nothing
more is needed for a married woman to validly make a
will.

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Article 804 to Article 814


Formalities of Wills

1.
2.
3.

to close the door against bad faith and fraud


to avoid substitution of wills and testaments
to guarantee their truth and authenticity

Article 804
What are the formalities of an ordinary/notarial will?
Every will must be in writing and executed in a language
or dialect known to the testator.
Article 805
Every will, other than a holographic will, must be
subscribed at the end thereof by the testator himself or
by the testator's name written by some other person in
his presence, and by his express direction, and attested
and subscribed by three or more credible witnesses in the
presence of the testator and of one another.
The testator or the person requested by him to write his
name and the instrumental witnesses of the will, shall
also sign, as aforesaid, each and every page thereof,
except the last, on the left margin, and all the pages shall
be numbered correlatively in letters placed on the upper
part of each page.
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 thereof, 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.
If the attestation clause is in a language not known to the
witnesses, it shall be interpreted to them.
Article 806
Every will must be acknowledged before a notary public
by the testator and the witnesses. The notary public shall
not be required to retain a copy of the will, or file another
with the Office of the Clerk of Court.
What are classifications of wills?
1.
2.

ordinary/notarial
holographic

What is a holographic will?


It is a written will which must be entirely written, dated
and signed by the hand of the testator himself without the
necessity of any witness.
What is the object of the solemnities surrounding the
execution of will?

Article 804 to Article 809


What are the formalities of a holographic will?
Article 810 to Article 814.
Can there be an oral will?
No. Article 804 expressly provides, every will must be in
writing.
X, knowing that he was about to die, dictated in front of
a video camera his last will and testament. Is the will
valid?
No. The will is invalid. Article 804 expressly provides that
every will must be in writing.
What does language must be known mean, as provided
for under Article 804?
It means that the language of the will must ne personally
known to the testator whether he is illiterate or not. That
it will be communicated only to him without changing any
intent therein if he is blind, deaf-mute or deaf.
Example: If the testator is an illiterate and he speaks
tagalong only, the will must be in tagalong.
Does the aforementioned rule apply also to the
witnesses?
No. The witnesses need not know the language of the will
or attestation clause. This is the reason why the law
requires it to be interpreted to them and not merely
communicated.
X speaks and understands Tagalog only. He does not
understand a single English word. His lawyer, Atty.
Sobrang Yabang wanted to impress X. So, he wrot Xs will
in English. However, Atty. Sobrang Yabang translated
and explained the will word for word to X. Is the will
valid?
No. Because the law requires that the will shall be written
in the language known to the testator.
*This rule applies even if the person is blind, deaf, deafmute.
In the preceding problem, why is it required to be written
in a language known to the testator?
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Because a will is a personal act concerning a disposition of


ones properties.
What about if the translator is the best translator that
the world can offer?
The will is till invalid. No matter how good the translator
can be, something may be lost in the process of
translation.
Is it necessary for the validity of the will that it is stated,
that the will was executed in a language or dialect known
to the testator?
No.
*It is a matter that may be established by extrinsic
evidence.
Can a will be written in Latin?

Yes. As long as it is entirely written, dated and signed by


the hand of the testator. Hence, it can be written on any
material.
How about if the will is written on a wall?
Yes. The will may be valid, provided it complies with all the
requisites.
X executed his holographic will on a watermelon leaf. Is
the will valid?
Yes. As long as it complies with all the requirements for
the valid execution of a holographic will. Article 810
provides that a person may execute a holographic will
which must be entirely written, dated and signed by the
hand of the testator himself. It is subject to no other form
and may be made in or out of the Philippines, and need
not be witnessed.
The will therefore, remains to be valid although it has
been written on a watermelon leaf.

Yes. As long as it is known to the testator.


Can a will be written in several languages?
Yes. As long as the languages used are known to the
testator.
When X executed his will, it contained ten (10)
dispositions. Each of the ten (10) dispositions was written
in different dialects and languages. X used French,
Spanish, Latin, English, Tagalog, Bikol, Cebuano, Waray,
Ilonggo and Hiligaynon, so that these languages and
dialect correspond to the aforementioned ten (10)
dispositions in the will. Is the will valid?
It depends. If X knows all those languages and dialects,
then, the will is valid. The only requirement as to the
language or dialect used in the making of the will, is that, it
must be known to the testator. Otherwise, the will is
totally invalid.
In the preceding problem, what if X only knows English?

*The law does not specify that the testator himself must
perform the act of writing. However, in case of holographic
wills, the will must be entirely written, dated and signed by
the hand of the testator himself.
Consequently, it is only in ordinary/notarial wills that
whoever performs the mechanical act of writing or
drafting the will becomes a matter of indifference.
What constitutes a sufficient signature to a will?
It depends largely on the custom of the time and place,
the habit of the individual, and the circumstances of each
particular case. But, it should be manifest, that whatever is
used is actually intended as a signature.

What is meant by a signature?


It is a sign, token or emblem and what that shall be,
depends upon the custom of the time and place, and on
the habit or whim of the individual.

The will is totally invalid.


Can the testator make a valid will using any kind of
material?
Yes.
Can there be a valid notarial will on a material other than
a paper?
Yes.
If the testator executed his holographic will on a
blackboard or a tree leaf, is the will valid?

The material thing is that the testator made the mark to


authenticate the writing as his will and whatever he puts
on it for that purpose, will suffice.
*1. Subscription is the manual act of the testator and also
the instrumental witnesses of affixing their signatures to
the instrument.
2. The purpose of the signature as applied to the testator
are:
a.

to identify the testator

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b.

authenticate the document

3. The test of sufficient signature is if the testator


intended it as his signature.
4. The testator may use as his signature the following:
a.
b.
c.
d.
e.
f.
g.

first name
assumed name
name different from the one used to
designate him as a testator in the will
name misspelled or abbreviated
rubber stamp/engraved mark
thumb mark
cross against his name

Provided that, any of the aforementioned was


intended by the testator to be his signature.
5. With respect to the use of a mere cross (x) as a
signature:

Yes. As long as the witnesses intended it to be his


signature.
Suppose it is not customary used by him?
Even the law does not provide that he sign with what he
customarily uses as his signature.
Can the testator sign with his thumb mark even if he
knows how to write?
Yes.
Can the testator sign with his foot mark even if he knows
how to write?
Yes.
Can the testator sign with any mark even if he knows
how to write?
Yes.

a.

b.

it is not sufficient as a signature without any


proof that the testator intended it to be his
signature
if proof is presented that the testator
intended a mere cross (x) to be his
signature, then it may be considered as a
valid signature in a will

Garcia vs Lacuesta, 90 Phil 489


The X mark was not allowed by the court because there
was no proof that it was the customary signature of the
testator, or one of the ways by which he signed his name.
In this case, the mark was questioned because the will was
executed by a lawyer, and such fact, that is was under the
express direction of the testator was not stated in the will.
Can the testator sign with his stage name?
Yes.
Can the testator sign with his nick name?

*Any mark or combination of marks placed on a will by the


testator as his signature is a sufficient compliance with a
statute requiring a will to be subscribed by the testator.
It the testator has been in the habit of using a rubber or
engraved dye, in making his signature, he may properly
use the same in signing his will.
The testator sign at the beginning of the will. Is the will
valid?
No. Article 805 provides every will, other than a
holographic will, must be subscribed at the end thereof by
the testator or by the testators name written by some
other person in his presence, and by his express direction
xxx.
Suppose X signed his will in the middle, is the will valid?
No. Because of the express requirement under Article 805,
which requires the subscription at the end.
*End refers to the logical end of the will, not the wills
physical end.

Yes.
*Generally speaking, the use of any signature intended by
the testator to authenticate the instrument renders the will
sufficiently signed by the testator.
Hence, a complete signature is not essential to the validity
of a will, provided that, the part of the name written was
affixed to the instrument with intent to execute it as a will.
Can the witnesses sign the will and attestation clause
with a footmark or a thumb mark?

Logical end is the portion after the last testamentary


provision.
X died with a will. When the will was presented for
probate, it was readily apparent that it was signed in
each and every page and in the left margin, but not the
end. Should the will be allowed?
No. The law requires that the will be subscribed at the end
of the will.
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Is it a fatal defect?

before them and that it has been executed in accordance


with the formalities prescribed by law.

Yes.
Is the attestation clause part of the will?
Why require that the signature must be at the end of the
will?
The purpose of the requirement is not only to show that
the testamentary purpose therein expressed is completed,
but also to prevent any opportunity for fraud or
interpolations between the written matter and the
signature.
*Another essential requirement for the validity if an
ordinary will is the attestation clause. Absence of this
clause will render the will a nullity. Therefore it is
mandatory.
Attestation

No. It is separate and distinct from the testamentary


dispositions, which were executed by the testator. It is a
separate memorandum executed by the witnesses stating
that they witnessed the execution of the will and that it is
in accordance with the formalities of the law.
But it can be incorporated in the will.
What is the purpose of the attestation?
To render available proof during the probate of the will,
not only to the authenticity of the will, but also its due
execution.

Subscription
Where should the attestation clause be place?

1. an act of the senses

1. an act of the hand

2. a mental act

2. a mechanical act

3. the purpose is to render


available proof during the
probate of the will, not only
of the authenticity of the
will, but also its due
execution

3. the purpose is
identification/ to identify
that it is really the will of
the testator

Suppose X executed a notarial will, the attestation clause


of which is in Spanish, X knows English but not Spanish? Is
it a valid will?
Yes.
Can there be a valid will without an attestation clause?
None.
When then should an attestation clause in a language
not known to the testator be permitted?
The attestation clause is a declaration made by the
witnesses, not by the testator.
What is the purpose in requiring the witnesses to attest
and subscribe to the will?
1.
2.
3.

to identify the instrument


to protect the testator from fraud and deception
to ascertain the testamentary capacity of the
testator

What is an attestation clause?


It is a memorandum or record of facts, wherein, the
witness certify that the instrument has been executed

The attestation clause may be written immediately after


the signature of the testator at the end of the will.
What if it is place at the beginning of the will?
The will would still be valid. The present form is only for
convenience.
*The law does not require the attestation to be contained
in a single clause. Thus, where a will did not contain a
separate and independent attestation clause, but the
concluding paragraph of the body of the will was written in
the tenor of an attestation, stating the facts required by
law to be set forth in an attestation clause, and the
ultimate paragraph of the will stated the number of pages
use, it was stated that there was a sufficient attestation
clause.
If there is a separate attestation clause, it need not be
written on the very same page where the dispositions of
the will ends, even if, there should be sufficient space in
which to begin the said clause.
Is it necessary that the attestation clause be after the
testamentary disposition?
No. The current form is only for convenience.
What must be stated in the attestation clause?
Article 805, paragraph 3.
Give an example of an attestation clause.
We witnesses, do hereby certify: (a) that the will of Mr A
consists of five (5) pages including (b) the page that Mr A
executed his signature and every page thereof in our
presence, (c) that we witnessed the execution of the will
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and signed each and every page thereof, in the presence


of Mr A and each other. (Signatures must follow.)
Suppose that the phrase each and every page thereof
was not included. Should the will be allowed?
Yes. Compliance with the requirement each and every
page thereof be signed, may be proved by the marginal
signatures in each and every page of the will.

Exception: Applying the doctrine of liberal interpretation/


construction, the failure to state in the attestation clause
of the number of pages used, is not fatal. Hence, the will
may still be valid, provided, that it can be established or
deduced from an examination of the will itself, that all the
statutory requirements have been complied with.

Suppose that it is the phrase in our presence which was


deleted. Should the will be allowed?

*The doctrine of liberal interpretation cannot be applied if


the omission consists of the failure to state that the
witnesses and the testator signed in the presence of one
another. Reason: this omission cannot be remedied by an
examination of the will itself.

No. There would be nothing in the will that will prove the
compliance thereto.

Can a testator ask a third person to sign for him even if


he is physically able to do so?

Is it tenable that the signature of for the clause be found


in other parts of the page?

Yes.

No. In Cargo vs Cargo, it was held that the signatures must


be after the clause, to show that the clause was indeed
executed by the witnesses. Non-appearance of the
signature will negate the declaration that they saw the due
execution of the will.
*The ruling applies despite the fact that the case was
decided under the old rules of succession.
If the attestation clause failed to state the (a) number of
pages; (b) the fact that it was signed by the testator in
the presence of the witnesses; or (c) the fact that it was
signed by the testator. Is the will valid?
(a) General rule, the will is not valid. Exception: if the
number of pages is stated in the will itself or
acknowledgment (Taboado vs Rosal).

If the third person is not capacitated, would the will be


allowed?
Yes. The will remains to be valid. What is material is the
capacity of the testator, not that of the third person.
Why should the third person sign in the presence of the
testator?
Because it is the testator himself who is signing. The third
person is merely an extension of the physical self of the
testator.
Five (5) paged will. All pages are not numbered. Is the will
valid?
No. The law provides that all the pages of the will should
be numbered correlatively in letters.

*But this exception must be received with caution because


in the case of Taboado, there were only two (2) pages in
the will, including the acknowledgment. This rule applies
also if the pages are not correlatively numbered but only in
cases when the will does not exceed two (2) pages.

Suppose that even if it is not numbered, the total number


of pages is stated in the attestation clause?

(b) The will is void without any exceptions even if the will
contains the signature of the witnesses. The omission
cannot be determined by the examination of the will itself.
Extrinsic evidence is inadmissible.

Five (5) paged will. Only page 1 (one) is not numbered. Is


it a valid will?

(c) The will is void. Exception: the doctrine of liberal


interpretation shall be applied, if there are indeed
signature present.
Suppose the attestation clause does not state the number
of pages used, is the will valid?

It still remains invalid. The requirement of numbering each


and every page of the will is mandatory.

Yes. Because the authenticity of the first page is easy to


determine. It can easily be ascertained from the face of
the will itself, that indeed it is the first page. From the face
of the will, it is readily ascertainable that the page, which
contains the header Last Will and Testament is the first
page.
Suppose that page three (3) was not numbered, but all
the pages were numbered. Is the will valid?

General rule: No
No. In this case, it would be hard to determine the
authenticity of the said page.
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Suppose X executed a five (5) paged will, but it was


numbered not on the upper part, instead, it was
numbered on the lower part of the page. Is the will valid?

Suppose that a four (4) page will was contained in two


(2) sheets. Page two (2), which was at the back, was not
signed. Should the will be allowed?

Yes. In this case, there is sufficient compliance with the


requirement. The place where the numbering was made is
not fatal to the validity of the will.

No. The law requires that the will must be signed in each
and every page thereof. The law expressly refer to page
and not to the sheet or leaf or folio.

What do you understand by correlatively numbered in


letters?

*A sheet has two (2) pages, the front and the reverse. If
both pages of the sheet or lead are used, it is necessary
that both front and reverse sides should bear the
signatures of the testator and each of the witnesses. In
other words, every page used in the will should be signed
on the left margin.

One, Two, Three, Four and so on and so forth The


number must be spelled out.
In the preceding problem, what is the purpose of the
requirement?
To forestall any attempt to suppress or substitute any of
the pages of the will. This requirement is mandatory.
*The requirement in the preceding problem is not
necessary when all the dispositive parts of a will are
written on one (1) sheet only. Neither is it necessary that
the pages of the will be numbered correlatively in letters
such as one, two or three. According to the weight of
authority, substantial compliance with the requirement is
sufficient.

Suppose that in a four (4) paged will, the attestation


clause did not state all the number of pages used. But the
last paragraph states that the will is comprised of four (4)
pages including the attestation clause, should the will be
allowed?

Can we number the pages in other manner?

Yes. Following the doctrine of liberal interpretation, there


is substantial compliance of the requirements. That is, the
failure of the instrumental witnesses to state one or some
of the essential facts which, according to the law, must be
stated in the attestation clause would not be fatal,
provided, it can be established or deduced from the
examination of the will itself that all of the statutory
requirements have been complied with.

Yes. We can use Arabic or Roman Numerals, even letter


like a, b, c, etc.

Take note, that in this case, the body of the will states that
it is composed of four (4) pages.

Five (5) paged will. Page five (5) contains only the
attestation clause. Only the attesting witnesses signed
below the attestation. The testator did not sign on left
margin of page five (5). Is the will valid?

Taboada vs Rosal, 118 SCRA 195

Yes. Attestation is the act of the witnesses alone. The law


does not require that the testator should sign on the left
margin thereof.
Five (5) paged will, third page does not contain the
signature of the testator on the left margin. Is the will
valid?

FACTS: The attestation clause of a notarial will failed to


state the number of pages thereof. However, it is
discernible from the entire will that it really consists of two
(2) pages only: the first, containing the provisions; and the
second, both the attestation clause and the
acknowledgment. Besides, the acknowledgement itself
states that this Last Will and Testament consists of two
(2) pages including this page.
HELD: Under the circumstances, the will should be allowed
probate. After all, we should approach the matter liberally.

The will is invalid. Exception: Icasiano vs Icasiano


Suppose that in a four (4) paged will the testator sign at
the end and also on the left margin of each and every
page. In page one (1) to three (3), the three (3) witnesses
signed the left margins and the end of the will, but did
not sign page four (4). Should the will be allowed?

Is there a need to interpret the Attestation Clause to the


testator?
No. The attestation clause is the act of the witnesses
alone.
Test of Presence

No. Attestation clause was left unsigned by the witnesses.


1.

There is presence if the parties could have seen


each other, if they have simply chosen to do so,

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by turning their backs to each other. There must


be no physical obstruction of their line of sight.
2.

To satisfy the test of presence it is essential that


the testator and the witnesses should be:
a.
b.

3.

conscious
aware of what is happening

It the testator is blind, the sense of sight to


determine presence is not to be used. In this
case, other senses, such as hearing or touch, can
be used.

What is the test of presence in the execution of the


will?
The testator and the witnesses need not actually see each
other signing. It is sufficient that they could have seen
each other sign if they choose to do so, taking into
consideration/circumstances, the mental and physical
conditions of the parties and their proximity from each
other.
They must be aware that each other are signing a will and
their view must be unimpeded. So that, they will see the
will if they choose to see it. (Jaboneta vs Gustillo; Nera vs
Rimando)
Does the law require physical proximity in order to have a
valid presence?
Not necessarily. The test of valid presence does not
necessarily require actual seeing but the possibility of
seeing without any physical obstruction.
1.

2.

When a person merely has his back turned, the


signing is done in his presence, since, he could
have cast his eyes to the proper direction.
If there is a curtain separating the testator and
some witnesses from the other witnesses, there
would be a physical obstruction, and the will
cannot be valid.

What are the reasons why the will must be executed in


the presence of each other the testator and the
witnesses?
1.

2.

to prevent false testimonies between the


principal and the executors of the will
to obtain a permanent record of the events that
transpired, in case the memory of the executor
fails

The testator signed the will on January 1, 2002. The


witnesses signed the will on the following day. The
testator acknowledged that the signature was valid. Is
this valid?
No. The law requires that the will be signed in the
presence of each other. The acknowledgement made by
the testator did not cure the defect. The purpose of the
requirement is to prevent the substitution of surreptitious
will.
While the testator was signing the will, the witness
looked out the window. Is the will valid?
Yes. Because the witness could have seen the act, had he
chose to do so, considering their mental and physical
condition.
X executed his will in another room, while the witnesses
A,B and C played hide and seek in another room, where
X executed his will, they saw X signing the last two (2)
pages of the will. Is the will valid?
No. Because the will was not signed in the presence of
each other.
*The aforementioned problem is different from the case of
Jaboneta vs Gustillo. In this case, the witnesses were in fact
leaving the room but they saw their fellow witnesses
signing the will. They knew that the paper being signed is
the will. Hence, the test of presence was satisfied.

Suppose the testator is blind, how do you satisfy the


requirement of presence?
Test of available senses: touch and hearing.
Must the witnesses see the testamentary dispositions for
the valid execution of the will?
No. Because the law merely requires them to attest to the
execution of the will, provided however, that they are
aware that they are signing the will. Otherwise, it is not
valid.
X executed a notarial will with A, B and C as the
instrumental witnesses. X did not allow A, B and C to read
the will. Is the will valid?
Yes. The law does not require that the instrumental
witnesses should read the will for its validity.
In the preceding problem, suppose X did not even allow
A, B and C to read the attestation clause. X simply asked
them to sign. Is the will valid?
No. The instrumental witnesses should read the
attestation clause because it is their act.
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X signed the will on January 1. The next day, the


instrumental witnesses came to sign the will. Is the will
valid?

X authorized his lawyer, Atty. Y, to sign his will. However,


when Atty. Y was signing the will, X was sleeping beside
him. Is the will valid?

No. There is no unity of act.

No. Because the testator must be conscious that the


lawyer was signing the will for him. In this case, although
the testator was present when his lawyer was signing the
will, he was not aware of it. The test of presence was not
satisfied.

Third person signing in favor of the testator persons


signing must be:
1.
2.

under the express direction of the testator


under the testators presence

In this case, it refers not only to the physical presence of


the testator, but the testator must also be conscious and
aware of what is happening.
Is it necessary that the person signing in favor of the
testator must have a testamentary capacity?

The testator need not need to be physically incapacitated


to ask the third person to sign the will for him, provided
that, the fact of the signing by the third person in his
presence and under his express direction shall be stated in
the attestation clause (Garcia vs Lacuesta).
Suppose the testator was already sick and asked his
lawyer to sign his will, in a separate room. Is the will
valid?

No. Because the persons act is merely an extension of the


testators act. What is material is the capacity of the
testator, provided however, that the signing must be
under the express direction and presence of the testator.

No. Because the signing was not made in the presence of


the testator.

*Even a fifteen (15) years old person may sign in the


presence of the testator.

If the testator, upon the return of his lawyer was already


unconscious and the lawyer signed in the same room
where the testator was and in the presence of the
instrumental witnesses. Is the will valid?

X executed a will. The will was subscribed by writing at


the end thereof the name of X. But Xs name was written
by Y. Is the will valid?
Yes. As long as, the name of X was written by Y in the
presence of X and under his express direction and is
attested and subscribed by three (3) or more credible
witnesses in the presence of the testator and of one
another and such fact was mentioned in the attestation
clause.
Suppose in the preceding problem, Y omitted the name of
X and instead place his own name. Is the will valid?
No. Because this would no longer be the testators (X) act.
The law requires that the name of the testator must be
written.
If one (1) of the three (3) witnesses signed the will in
behalf of the testator, is the will valid?
No. The will is not valid because there is a conflict between
his duty to the testator and his duty as an attesting
witness. This rule applies to the notary public who
functions as an attesting witness or a third person signing
in behalf of the testator.

No. Because the testator is not aware. It is therefore not


considered to be signed in the presence of the testator.
*To satisfy the test of presence, the testator must be
aware that another person is signing the will.
If the testator dictated the provisions of the will to the
lawyer and since the testator can no longer sign, the
lawyer suggested that he will sign it for the testator. Is
the will valid?
No. Because the law requires that the third person should
sign by the express direction of the testator.
In the preceding problem, what if the testator nodded his
head. Is the will valid?
Yes. Nodding of the head is considered to be an express
direction.
*Express direction may be made by action or conduct. Such
as by nodding of the head.
The law requires three (3) witnesses in the execution of
the will. Is the will valid if there are only two (2)
witnesses?
No. The will is not valid if there are only two (2) witnesses.
The law expressly requires three (3) witnesses.
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What about if there are more than three (3) witnesses in


the execution of the will? Is the will valid?
Yes. Article 805 provides, xxx and attested and
subscribed by three (3) or more credible witnesses xxx.
The excess shall only be considered as a mere surplus but
it will not affect the validity of the will.

Attesting witnesses are different from acknowledging


witnesses. Failure of one witness to acknowledge the will
before the notary public renders the will void.
How do you acknowledge before a notary public?
To acknowledge means to avow, to own as genuine the
document presented.

Note:
1. Lack of signatures in the left margin is fatal unless, there
is a duplicate copy of the original. (Icasiano vs Icasiano)
2. The ruling in Icasiano vs Icasiano should not be applied
in all cases, when the signature of the witnesses do not
appear on the margin of the will. It can be applied only if
there is a duplicate original copy of the will. In this case,
there was no issue on the validity of the will due to the
presence of the copy.
3. The requirement regarding the location (left margin) of
the marginal signatures is not mandatory in character,
provided that, such signatures are present in every page of
the will (except the last page). So, the marginal signatures
may be found on the right margin and the will is still valid.

Should the notary public be present at the time execution


of the will?
No. The law requires only that the will be acknowledged
before him.
May the notary public be one of the subscribing
witnesses?
No. To allow the notary public to act as one (1) of the
three (3) attesting witnesses would have the effect of
having only two (2) attesting witnesses to the will.
In the preceding problem, are there exceptions? What are
they?
Yes.

Is it necessary for the validity of an ordinary/notarial will


that it is dated?
No. The notarial will is still valid despites the fact there is
no date in the will.
The notarial will must be acknowledged. In this case, the
date of the acknowledgment can supply the date of the
execution of the will itself.
Why must a holographic will be dated?
Unlike a notarial will, a holographic will is not
acknowledged or witnessed. So, if the capacity of the
testator is questioned, there is no date in which we can
determine whether the testator was capacitated to
execute the will at the time.

1.

If there are more than three (3) witnesses.

2. If the will is not acknowledged before him.


Is it necessary that acknowledgment of the will be made
by the testator and all of the witnesses at the same time?
No. The law does not require simultaneous
acknowledgment, neither does the law require that the
acknowledgment be made by the testator and the
witnesses in the presence of one another, provided that all
of the parties acknowledge in from of the notary public,
and provided further, that all the parties has the
testamentary capacity at the time of the acknowledgment.
May the testator and the witnesses acknowledge the will
in separate occasions?

What is the effect if the will is not acknowledged?


It will not enjoy the presumption of regularity. In short it is
void.
A will is not a public instrument that is why the law does
not require a notary public to keep a copy or to transmit a
copy to the clerk of court.
*As a general rule, witnesses in the execution of a will
should also acknowledge the will before a notary public.
This is because witnesses are also principal participants in
the execution of the will.

Yes. The law does not require simultaneous


acknowledgment neither does the law require that the
acknowledgment be made by the testator and the
witnesses in the presence of one another, provided that all
of the parties acknowledge in front of the notary public
and provided further, that all the parties has the
testamentary capacity at the time of acknowledgment.
*The two (2) immediately preceding problems are the
same. The questions were rephrased to as elicit either a
negative or positive answer. But the reasons are the same.

This is different from other ordinary contracts, which


requires only the contracting parties.
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Suppose the testator died before the will may be


acknowledged. Can the will be allowed?

moments as to prevent fraud. This is the purpose of the


communication.

No. The will lacks one of the formalities required by law


testamentary capacity of the testator, since, he is already
dead.

X, a blind person, had the will read by his three (3)


witnesses at separate moments. The next day, he went to
the notary public, stating that there is no need for the
latter to read the will for him. Is the waiver of this rule
valid?

Article 807
If the testator be deaf, or a deaf-mute, he must
personally read the will, if able to do so; otherwise, he
shall designate two persons to read it and communicate
to him, in some practicable manner, the contents thereof.
Article 808

No. The testator cannot waive the rule provided by law


because the right to make a will is merely a statutory right
regulated by law. It is a privilege to be complied with.
*Substantial Compliance Rule may apply, but it shall apply
only if the circumstances fall under the case of Alvarado vs
Gaviola:

If the testator is blind, the will shall be read to him twice;


once, by one of the subscribing witnesses, and again, by
the notary public before whom the will is acknowledged.

1.

the will must be read by the person who drafted


the will

Can an illiterate person make a notarial will?

2.

the will must be read in the presence of the


witnesses, while the notary public is reading it
simultaneously in silence

Yes.
In the preceding problem, would there be an additional
requirement?
Yes. The same with a blind testator, double reading
requirement.
If the testator is illiterate or blind, is it permissible that
the language of the will is not known to him but merely
interpreted to him?
No.
Even if the interpreter is the best interpreter that the
world can offer?
Yes. Because no matter how good the interpreter is,
somehow, something may be lost in the process of
translation.
How many times should a will read to a blind person?
Twice. Exception: if he understands the contents thereof
on the first reading (Alvarado vs Gaviola).
This aforementioned rule applies if a person is illiterate
because under the law, he is in the same condition as a
blind person. He does not know what the symbol on the
will stands for.
Is it necessary that the reading of the will to the blind be
simultaneous?
No. This will just confuse the blind person. The
communication of the contents must be at separate

Suppose that the testator is blind and the witnesses did


not read the will to him because the contents and the due
execution of the will was acknowledged by the testator
and he said not to bother with the reading anymore?
No. Testamentary capacity is a statutory right. The testator
has no right to waive the requirement thereto.
Alvarado vs Gaviola Jr, 226 SCRA 347
FACTS: That Article 808 was not followed strictly is beyond
cavil. Instead of the notary public and an instrumental
witness, it was the lawyer who drafted the eight (8)
paged will and the five (5) paged codicil, who read the
same aloud to the testator and read them only once, not
twice as the law requires.
HELD: The will is valid. Substantial compliance is
acceptable where the purpose of the law has been
satisfied. The reason being that the solemnities
surrounding execution of the wills are intended to protect
the testator from all kinds of fraud and trickery. They are
never intended to be so rigid and inflexible as to destroy
the testamentary privilege.
In this case, private respondent read the testators will and
the codicil aloud, in the presence of the testator, his three
(3) instrumental witnesses and the notary public. Prior and
subsequent thereto, the testator affirmed upon being
asked whether the contents read, corresponded with his
instruction. The is no evidence and the petitioner does not
contend that the will and the codicil were not sufficiently
made known and communicated to the testator.
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Moreover, the notary public and the three (3) instrumental


witnesses, likewise, read the will and the codicil, albeit
silently. With four (4) persons following the reading word
for word with their own copies, it can be safely concluded
that the testator was reasonably assured that what read to
him were the terms actually appearing on the typewritten
documents.
Note: Dean Navarro emphasized that the application of
the aforesaid ruling must be limited to cases of similar
facts.
If the attestation clause does not state the fact that the
will was communicated to the blind or deaf-mute, the will
is still valid because it is not one of the requisites required
by law to be stated in the clause. This fact may be
determined by extrinsic evidence.
What is the doctrine of liberal interpretation?
It provides that, in the absence of bad faith, forgery or
fraud or undue influence, defects and imperfections in the
form of the 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 substantial
compliance with all the requirements of Article 805.
Is the doctrine of liberal interpretation applicable to
holographic wills?
No. The doctrine does not apply because of the nature of
the will, which is simple and easy to forge.
Article 809
In the absence of bad faith, forgery, or fraud, or undue
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 substantial compliance with all the requirements of
Article 805.

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Article 810 to Article 814


Holographic Wills

How would you compare the advantages and


disadvantages between a holographic will and a notarial
will?

Article 810
The answer us found just after this problem.
A person may execute a holographic will which must be
entirely written, dated, and signed by the hand of the
testator himself. It is subject to no other form, and may
be made in or out of the Philippines, and need not be
witnessed.

What are the advantages of a holographic will?


I.

1. easier to make
2. easier to revise
3. easier to keep a secret

II.

1. no witnesses are required


2. no marginal signatures on the pages are
required
3. no acknowledgment is required

Article 811
In the probate 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 of the testator.
If the will is contested, at least three of such witnesses
shall be required.
In the absence of any competent witness referred to in
the preceding paragraph, and if the court deem it
necessary, expert testimony may be resorted to.
Article 812
In holographic wills, the dispositions of the testator
written below his signature must be dated and signed by
him in order to make them valid as testamentary
dispositions.
Article 813
When a number of dispositions appearing in a
holographic will are signed without being dated, and the
last disposition has a signature and a date, such date
validates the dispositions preceding it, whatever be the
time of prior dispositions.
Article 814
In case of any insertion, cancellation, erasure or
alteration in a holographic will, the testator must
authenticate the same by his full signature.
What are the formalities of a holographic will?
1.

the will must entirely written by the hand of the


testator himself

2.

the will must be entirely dated by the hand of


the testator himself

3.

the will must be entirely signed by the hand of


the testator himself

4.

the will must be executed in a language or


dialect known to the testator

What are the disadvantages of a holographic will?


1.

easier to forge by expert falsifiers

2.

easier to misunderstand, since, the testator may


have been faulty in expressing his last wishes

3.

no guaranty that there was no fraud, force,


intimidation, undue influence and no guaranty
regarding the testators soundness of minds

If you were to make a will, what would you make, a


holographic will or a notarial will?
Personally, I will make a holographic will.
1.
2.
3.
4.
5.
6.

easier to make
easier to revise
easier to keep a secret
no witnesses are required
no marginal signatures on the pages are
required
no acknowledgment is required

*You can answer a notarial will and state your own reason.
You may cite the disadvantsges of a holographic will.
May an illiterate person executed a holographic will?
No. It is required that a holographic will must be entirely
written by hand of the testator himself. An illiterate
person is presumed not to be able to read and write.
What if an illiterate person copies what his friend wrote,
would the will be valid?
No. Because it is not the product of his independent
thinking.

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What if the testator uses his foot to write? Is the will


valid?
It is valid. As long as the testator has found an effective
substitute for his hands, so that he can still write, there is
no reason why he cannot execute a holographic will.
What about a blind person, can he execute a holographic
will?
Yes. A blind testator can execute a holographic will, if he
can still write despite his blindness (Braile System).
Suppose the holographic will was signed by the testator
with his first name only, is the will valid?

authenticity of the holographic will, it will also serve to


deter or prevent any possible insertion or interpolation by
others or any possible forgery.
Where should the testator sign the holographic will?
The law does not specifically require the place, where the
signature be placed. However, it is logical to place it at the
end thereof.
*Tolentino: We believe that under the law the signature
must be at the end of the will. This can be inferred from
Article 812 by the reference to dispositions written below
his signature. This phrase implies that the signature is at
the end of the will and any dispositions below it must
further be signed and dated.

Yes.
Can the testator sign with his thumb mark?
Can the testator sign with his nickname?
Yes.
*The signature required for holographic will is not the
simple handwriting of name and surname in a habitual
manner. Generally, the signature includes a persons name
and surname. But, it is not necessary that the full name be
written, if the habitual signature does not include the full
first name or surname.

Yes. In the law of succession, signature denotes a sign,


token or emblem and what that shall be depends upon the
custom of the time and place, and on the habit or whim of
the individual.
The material thing is that, the testator made the mark to
authenticate the writing as his will and whatever he puts
on it for that purpose, will suffice.
*Jurado says otherwise.

Suppose it is not his usual signature?


Should a holographic will be witnessed?
The will is still valid.
Suppose it is not his full signature?

No. It need not be witnessed. The presence of witnesses,


however, will not render the will invalid. Witnesses shall
be merely considered as surplus.

The will is still valid.


What is the rule on the date of a holographic will?
Can you make your holographic will in the form of a
letter?
Yes. As long as it is entirely written, dated and signed by
hand of the testator himself.
Can a blind person make a holographic will?
Yes, if he knows how to write.
X executed a holographic will. While writing the will with
his own hand, he got tired, that he decided to type the
other part of the will. Is the will valid?
No. The will is not valid. The law expressly provides that it
must be entirely written by the hand of the testator
himself.
*The word entirely modifies not only the word written but
also the words dated and signed. The purpose of the law is
obvious. In addition to insuring and safeguarding the

General Rule: the month, day and year must be stated, to


avoid conflict between other holographic wills.
Exception: The Supreme Court did not follow this rule in
Roxas vs De Jesus. There was no exact date of the day in
the will.
*The ruling in Roxas vs De Jesus has been criticized
because it gives rise to problems if there are two (2) wills. If
it happens:
1.

it cannot be determined which of the two wills,


should govern

2.

there is no means to determine if the testator


has the testamentary capacity at the time of the
execution of the will

Where must the date be placed?


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The law does not provide for the place where the date
must be placed. Hence, the date may be placed at the end
or at the beginning of the will, or in the body thereof,
although its normal location should be after his signature.
If a holographic will has no date, is it valid?
No. The law requires that it must be dated.

Suppose the testator wrote the day when my boyfriend


and I broke up, is the will valid?
No. In this case, the exact date cannot be determined.
Confusion will follow as to which boyfriend, and in case of
multiple break-ups, in what instance.
Suppose the will is dated as follows: Rizals birthday,
1990. Is this valid?

If a notarial will has no date, is it valid?


Yes.
Why is a date necessary in a holographic will, but not in a
notarial will?
In a notarial will, it would still be dated in its notarial
acknowledgment while in a holographic will, the date is
necessary because the testator may make more than one
will and it might happen that the testator was
incapacitated during the execution of the first will and
capacitated during the execution of the second will.

Yes. So long as the designation of the date leaves no room


for doubt as to the exact date. In this case, the date is
December 30, 1990.
Can an illiterate person execute a holographic will?
No. Because an illiterate is a no read, no write person. This
rule applies even if he orders another person to execute
the will or write the will while copying.
*Tolentino says:
1.

The law does not require that the will be


completely executed on a single day, at one time,
and in the same ink, because unity of act is not a
requisite for holographic wills.

2.

The day and month may be indicated by


implications, as long as the designation leaves no
room for doubt as to the exact date.

Must the date be in month, day and year?


Generally, yes.
Roxas vs de Jesus, 134 SCRA 245
FACTS: Generally, the date must be in month, day and
year. But in this case, the SC allowed the date
(February/61).
Navarros Opinion: Conflicts may arise if such date is
allowed because what if two (2) wills are made and dated
(February/16), which should prevail.
Suppose that the testator used the page of his
diary/planner, which already has a date? Is the will valid?
No. Because the law provides that it must be entirely
dated by the hand of the testator himself.
*The doctrine of liberal interpretation and substantial
compliance as applied to ordinary or notarial wills cannot
be applied to holographic wills.

Suppose that the testator wrote, Xmas 99. Is the will


valid?

If the probate of a holographic will is contested, is it


necessary to have three (3) witnesses? Or, is the three (3)
witness rule under Article 811 mandatory?
Yes. In Codoy vs Calugay, the SC says it is mandatory.
*Navarro said: By reading Article 811, the three (3)witness rule (if probate of holographic will is contested)
should merely be permissive. Dean Navarro subscribes to
Azoala vs Singson, where the court ruled that the said
requirement is merely permissive. But for purposes of our
present study, we adhere to Codoy vs Calugay, since this is
the most recent case.
If a holographic will is lost or destroyed, can it be
probated?
No.
Gan vs Yap, 104 Phil 509

Yes. Because there can be no other date for a Xmas Day.


Suppose the testator wrote Easter Sunday, 1998. Is the
will valid?

FACTS: The will was not presented for probate, instead, the
petitioner tried to establish its due execution and contents
by the testimony of witnesses, who declared that they had
seen the will and had read its contents.

Yes. Because although Easter Sunday is a changeable date,


the exact date can still be determined.
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HELD: In the matter of holographic wills, no guarantees of


truth and veracity are demanded, since, they need no
witnesses; provided however, that they are entirely
written, dated and signed by the hand of the testator
himself.
The law regards the document itself as a material proof of
authenticity and as its own safeguard, since, it could at any
time, be demonstrated to be or not to be, in the hand of
the testator himself.
Suppose that a photocopy was presented, should the will
be allowed?
Yes. The will may be allowed for probate because there is
a document from which the hand writing of the testator
may ascertained from.
In the probate of a holographic will, may a photocopy or
a mimeographed or a carbon copy suffice for the original
copy that was lost or destroyed?
Yes. Because the requirements under Article 811 may still
be complied with. The authenticity of the hand writing and
the signature of the testator may still be examined from
the photocopy or mimeographed or carbon copy. The
xerox copy, etc., may still be shown as a material proof of
the authenticity of the testators hand writing and
signature.
*If the testator asks for the probate of his will, his
testimony is more than sufficient.
As to the signatures the provisions for notarial will,
expressly provide that the signature must be at end of the
dispositions. In holographic wills, there is no categorical
statement. But it can be deduced from Article 812, that the
dispositions written below the signature of the testator will
not be considered a valid testamentary disposition unless it
is dated and signed by him.
As to the date. Date is not essential for the validity of
notarial wills, because the will must acknowledge. In this
case, the date of the acknowledgment will supply the date
of the will. Furthermore, there are all of the witnesses to
prove the date of the execution. This is different from
holographic wills, where no acknowledgment and
witnesses are required. Hence, a holographic will must be
dated.
Read the case of Kalaw vs Relova, 132 SCRA 241
Pointers: Holographic wills:
1. dated but not signed several subsequent disposition
under the signature of the testator in a holographic will
which are not signed but dated are void. The fact that the
last disposition was signed and dated does not cure the

defect because the presence of the date renders the will


void on separate dates and not in its entirety.
Each disposition precludes the other because it is the fact
that they were not executed simultaneously. In this case,
the last disposition is valid.
2. signed but not dated. Article 813 applies only for
dispositions that are signed but not dated because the
presumption is that they were executed entirely and not
on separate dates.
Suppose on additional disposition, in a holographic will,
does not contain a date. Is it a valid disposition?
No. It is not a valid disposition. The disposition written
below the testators signature in the will is considered as
independent of the will itself. Hence, it must be signed and
dated by the testator. If one is not dated, even if signed,
that particular disposition is void without affecting the
validity of other dispositions or the will itself. And as an
unsigned and undated postscript to a holographic will, it is
invalid as a testamentary disposition (Article 812).
Suppose that after the last disposition made in the will,
another disposition was written, what must be done?
It must be dated and signed by the testator in order that it
will become a valid testamentary disposition.
In a holographic will, only the first disposition was dated,
but the second disposition was both dated and signed by
the testator. What is the effect?
The first disposition is void.
*Article 813 does not apply because Article 813 refers to
preceding dispositions which are signed but not dated.
Suppose a prior disposition was unsigned and undated,
and the next disposition was signed and dated by the
testator, what is the effect.
The first disposition is validated by the subsequent
disposition, which was dated and signed. In this case,
there arises a presumption that all the dispositions were
made simultaneously.
* With respect go the preceding problem, Dean Navarro is
of the opinion that the first disposition is validated by the
second disposition. The reason is that, it can be inferred
that the testator intended the two (2) dispositions to be
valid, the last being the final disposition.
What is the rule in insertions and cancellations in a
holographic will?
1.

if made after the execution of the will, but


without the consent of the testator, such

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insertion are not considered as written because


the validity of the will cannot be defeated by the
malice or caprice of a third person
2.

3.

4.

if made after the execution of the will with the


consent of the testator, the will remains valid
but the insertions are void
if made after the execution of the will and
validated by the testator by his signature
thereon, it becomes part of the will, and
therefore, the entire will becomes void, because
of the failure to comply with the requirement
that it must be entirely written by the hand of
the testator
if made contemporaneously/ simultaneously
with the execution of the will, then the will is
void because it is not entirely written by the
hand of the testator

Can a testator authenticate an alteration with his


nickname?

The insertions become part of the will and thereon, the


entire will becomes void. Because of the failure to comply
with the requirements that it must be entirely written by
the hand of the testators.
While X was midway writing his will, Y arrived. Seeing X
getting tired of writing the will, Y volunteered to write it,
with dictations from X. What is the effect?
The whole will is void because it is not entirely written by
the hand of the testator.
Suppose the will was altered without the full signature, is
the whole will void?
No. Only the alteration is void. However, if what was
altered was the dated or the signature, the alteration
without the full signature makes the whole will void.
Illustration I: Holographic will
(A)

January 3, 1995

I give everything to Maria Jose.


No. Full signature of the testator is required. However, full
signature does not mean the testators full name (first and
last name).

(Sgd.) Manuel Jose


(B)

*Dean Navarros opinion: To certain extent, the


aforementioned creates absurdity, considering the fact
that the authentication execution of the will is certainly
more important than the authentication of a mere
insertion, cancellation, erasure or alteration.

I give everything to Pedro Santos.


January 10, 1996

(C)
Why is there a need for authentication?
I give my house and lot in QC to Juan Santos.
Because with respect to insertions on holographic will,
fraud can easily be committed.

January 10, 1998


(Sgd) Manuel Jose

X executed a holographic will. Thereafter, Y


surreptitiously made an insertion thereon. What is the
effect?

Is the illustrated holographic will, is the disposition under


letter (A) valid?

The insertion made by Y will not considered written. The


will remains valid.

Yes. It is valid. It is entirely written, dated and signed by


the hand of the testator himself.

After X has executed the will, Y approached X and asked


him if he can make some insertions on the will. Y said
Okey, be my guest!. What is the effect?

What about under letter (B)?

The will remains valid, but the insertions are void.


Although X has consented to the insertion.

*Several subsequent dispositions under the signature of


the testator in a holographic will, which are not signed but
dated are void. The fact that the last disposition was
signed and dated does not cure the defect because of the
presence of the date renders the will void on separate
dated and not in its entirety.

In the preceding problem, what if X has affixed his


signature to the insertions? What is the effect?

The disposition is invalid. It was not signed by the testator.

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What about letter (C)?

Article 815 to 819


Laws Which Govern the Formal Validity of Wills

Valid.
Article 815
Illustration II. Holographic will
January 3, 1995
I give everything to Maria.

When a Filipino is in a foreign country, he is authorized to


make a will in any of the forms established by the law of
the country in which he may be. Such will may be
probated in the Philippines.

(Sgd) Manuel Jose


Is the disposition valid?
Yes.
Holographic will

Article 816
The will of an alien who is abroad produces effect in the
Philippines if made with the formalities prescribed by the
law of the place in which he resides, or according to the
formalities observed in his country, or in conformity with
those which this Code prescribes.

January 3, 1995

Article 817

Clara
I give everything to Maria. (Thereafter, the name Maria
was altered and the name Clara was written, but the
testator did not affixed his full signature.)

A will made in the Philippines by a citizen or subject of


another country, which is executed in accordance with
the law of the country of which he is a citizen or subject,
and which might be proved and allowed by the law of his
own country, shall have the same effect as if executed
according to the laws of the Philippines.

(Sgd) Manuel Jose


In the aforementioned problem, who will inherit?
None. Neither Clara nor Mara will inherit.
Clara will not inherit because the alteration was not
authenticated by Manuel Jose with his full signature.

Article 818
Two or more persons cannot make a will jointly, or in the
same instrument, either for their reciprocal benefit or for
the benefit of a third person.
Article 819

Maria will not inherit because it is clear from the alteration


that the testator intended to replace Maria as an heir.
Illustration III: Holographic will

Wills, prohibited by the preceding article, executed by


Filipinos in a foreign country shall not be valid in the
Philippines, even though authorized by the laws of the
country where they may have been executed.

I give my car to Pedro Santos.


(Sgd) Manuel Jose
I gave my house and lot to Pedro Santos.
Janury 20, 1998
(Sgd) Manuel Jose

Are the aforementioned dispositions valid?


Yes. Both dispositions are valid. Under Article 813 when a
number of dispositions appearing in a holographic will are
signed without being dated and the last disposition has a
signature and a date, such date validates the dispositions
preceding it, whatever be the time of prior dispositions.

Note: The aspect of a will governed by the national law of


the decedent are the following:
1.
2.
3.
4.

intrinsic validity
capacity to succeed
order of succession
amount of successional rights

*As a general rule, the formal validity of a will shall be


governed by the law of the country in which it is executed.
This rule is expressed in the first paragraph of Article 17
which provides that the forms and solemnities of
contracts, wills and other public instruments shall be
governed by the laws of the country in which they are
executed. This rule however, is reiterated or
supplemented by the provisions of Article 815 to 819 as
discussed hereunder.
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What are the rules governing the formal validity of a


will?
1.

If the testator is a Filipino and the will is


executed in the Philippines, its formal validity is
governed by the Civil Code of the Philippines.

2.

If the testator is a Filipino and the will is


executed in a foreign country then its formal
validity is governed by either:
a.
b.

3.

If the testator is foreigner and the will is


executed in the Philippines, then its formal
validity is governed by either:
a.
b.

4.

by the law of the place where the will


was made
by the Civil Code of the Philippines

by the Civil Code of the Philippines


by the law of his country

If the testator is a foreigner and the will is


executed in a foreign country, then its formal
validity is governed by either:
a.
b.
c.
d.

by the law of the place where the will


was made
by the law of his own country
by the law of the country where he
resides
by the Civil Code of the Philippines

*With respect to the aforementioned Rule # 2. It must be


observed that Article 815 does not state that a will made
by a Filipino in a foreign country may be executed in
accordance with the formalities prescribe by the Civil Code.
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.
X, a Filipino citizen, executed a will while he was on a
vacation in Japan. What law will govern the formalities
of the will?
The place of the execution (Japan) or Philippine laws
(Article 815).
X is a Japanese citizen but he resides in England. He
executed a will in Indonesia. May such will be probated in
the Philippines and his estate located in the Philippines
be distributed in accordance with the provisions of the
will?
Yes. It can be probated and his estate may be distributed
in accordance with the provisions of the will, provided,

that the said will was executed in accordance with the


formalities prescribe by any of the following laws:
1.
2.
3.
4.

the law of the place where X resides (England)


the law of his own country (Japan)
the Philippine laws (Civil Code)
the law of the place where the will was made
(Indonesia)

*The national law of the decease shall govern the intrinsic


validity of wills.
Under Article 819, whether or not the Filipino testator is in
the Philippines, he cannot execute a joint will even if
authorized by the country of execution because under
Article 17 of the Civil Code, prohibited acts of the country
of nationality are not waived by mere agreement,
convention or laws of a foreign country.
This rule applies if the testator is also an alien, by reason
of public policy. Except, if such alien is abroad.
What is a joint will?
It is defined as a single testamentary instrument which
contains the wills of two (2) or more persons jointly
executed by them, either for their reciprocal benefit or for
the benefit of a third person.
What is the nature of a joint will?
It is a single will with two (2) testators.
*Even if only a single sheet was used, there is no joint will if
the two (2) wills are identifiable from each other.
Illustration:
Last Will and Testament of Mr. X
Provisions
and
dispositions,
etc

.
(Sgd) Mr.X (husband)

Last Will and Testament of Mrs. Y


Provisions
and
dispositions,
etc

. .
(Sgd) Mrs. Y (wife)

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Is the above illustrated will valid?


Yes. The wills of the husband and the wife are easily
identifiable from each other. They made separate wills and
not a joint one.
* The illustration above shows two (2) wills which are both
complete in themselves.
There are really two (2) separate instruments, which are
independent of each other.
Reciprocal wills between husband and wife are valid as
long as they are not made jointly. This is true even if the
same witnesses are used.
In the preceding problem, what about if the will of the
wife is written at the back page, while that of the
husband is on the front page, is it valid?
Yes. There are two (2) separate wills.
What are the reasons why joint will are prohibited?
1.

To allow as much as possible, secrecy. A will


being a purely personal act.

2.

To prevent undue influence by the more


aggressive testator on the other.

3.

In case of death of the testators at different


times, probate would be harder.

4.

To protect the right of the testator to revoke his


will at any time.

5.

In case of husband and wife, one may be


tempted to hasten the life of the other.

*Reciprocal wills between husband and wife, as long as not


made jointly, are valid (Araneta vs Rodriguez). This is true
even if the same witnesses are used.
H and w are Argentinian citizens. Joint wills are allowed
and valid in their country. They executed a joint will in
Argentina. Is the will valid here in the Philippines?
Yes. The prohibition on joint wills does not apply to
foreigners.
In the preceding problem, what if they executed the will
here in the Philippines? Should the will be allowed
probate in the Philippines?

2.

The will should not be allowed by reason of


public policy.

*By public policy, it means, if joint wills are prohibited in


the Philippines, then any joint will executed here must not
be allowed probate even if it is executed by foreigners.
Under Article 819, joint wills executed by Filipinos in a
foreign country shall not be valid in the Philippines, even
though authorized by the laws of the country where they
may have been executed. This rule is an exception to the
rule stated in Article 815 which provides when a Filipino is
in a foreign country, he is authorized to make a will in a
forms established by the law of the country in which he
may be. Such will, may be probated in the Philippines. The
rule under Article 819 is in conformity with provisions of
the third paragraph of Article 17 which states: Prohibitive
laws concerning persons, their acts or property and those
which have for their object public order, public policy and
good custom shall not be rendered ineffective by laws or
judgments promulgated or by the determinations or
conventions agreed upon in foreign country.
H is married to W. H is Filipino while W is a foreigner.
Suppose that while Ws country which permits joint wills,
the couple executed a joint will. What is the status of the
will?
The will as it pertains to H is void but valid as it pertains to
W.
What are he provisions of the will which are governed by
the national law of the testator?
1.
2.
3.
4.

order of succession
amount of successional rights
capacity to succeed
intrinsic validity

*The intrinsic validity of a will is governed by the national


law of the person whose succession is under consideration.
This is the precept or principle which is enshrined in the
second part of Article 16. According to this provision:
intestate and testamentary succession, both with respect
to the order of succession and amount of successional
rights and to the intrinsic validity of the 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.
Article 1039 : Capacity to succeed is governed by the law
of the nation of the decedent.

There are two (2) views:


Miciano vs Brimo, 50 Phil 867
1.

It should be allowed because prohibition on joint


wills does not apply to foreigners.

FACTS: The deceased was a Turkish subject, but disposed


that his property should be distributed according to
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Philippine laws. He named legatees, including oppositors


Brimo, on condition that they should respect the testator;s
will, as to the manner that his property will be distributed.
HELD: If this condition as it is expressed where legal and
valid, any legatee who fails to comply with it, as herein
oppositor has done, who by his attitude in this proceeding
has not respected the will of the testator, as expressed, is
prevented from receiving his legacy. The fact however is
that, the said condition is void, being contrary to law
because it ignores the testators national law.
Article 820 to Article 824
Witnesses to Wills
Article 820
Any person of sound mind and of the age of eighteen
years or more, and not bind, deaf or dumb, and able to
read and write, may be a witness to the execution of a
will mentioned in Article 805 of this Code.
Article 821
The following are disqualified from being witnesses to a
will: (1) Any person not domiciled in the Philippines; (2)
Those who have been convicted of falsification of a
document, perjury or false testimony
Article 822
If the witnesses attesting the execution of a will are
competent at the time of attesting, their becoming
subsequently incompetent shall not prevent the
allowance of the will.
Article 823
If a person attests the execution of a will, to whom or to
whose spouse, or parent, or child, a devise or legacy is
given by such will, such devise or legacy shall, so far only
as concerns such person, or spouse, or parent, or child of
such person, or any one claiming under such person or
spouse, or parent, or child, be void, unless there are three
other competent witnesses to such will. However, such
person so attesting shall be admitted as a witness as if
such devise or legacy had not been made or given.
Article 824
A mere charge on the estate of the testator for the
payment of debts due at the time of the testator's death
does not prevent his creditors from being competent
witnesses to his will.
What the qualifications of witnesses?
1.

2.
3.
4.

he must be eighteen (18) years of age or more


he must not be blind, deaf or dumb
he must be able to read and write

*The first two (2) qualifications are also necessary for the
making of a will. In the case of instrumental witnesses, the
law adds two (2) additional qualifications. The reason for
this is evident: during the probate of the will, the testimony
of the witnesses is required. Certainly, it will be quite
difficult for an illiterate witness to give an intelligent
testimony. The same thing can be said of a deaf-mute, or a
person who is either blind, deaf or dumb.
What is a dumb person?
It refers to a mute person, one who cannot speak.
What are the disqualifications of witnesses?
1.
2.
3.
4.
5.
6.

any person not domiciled in the Philippines


those who have been convicted of falsification of
a document, perjury or false testimony
any person who is not of sound mind
any person less than eighteen (18) years old
any person who is blind, deaf or dumb
any person who cannot read and write

Is a person qualified to make a will, also qualified to


witness to the will of another?
A person who is qualified to make a will is not necessarily
qualified to be a witness to the will of another.
Example: A blind person may be qualified to make a will, if
he knows how to write, but he cannot be a witness to a
will.
*The law does not require a testator to be intelligent.
Witnessed must be domiciled in the Philippines, in order to
increase the probability of them to be present during the
probate of the will.
Capacity of the witnesses must exist at the time of the
execution of the will. Any supervening incapacity or
capacity does not cure any defect or invalidate the will.
Is it necessary that the witnesses must know the contents
of the will?
No. The law does not require it. All that the law requires is
that, they must attests and subscribe the will in the
presence of the testator and of one another. To attest and
subscribe do not mean that they must read the will or
comprehend the contents thereof. Hence, even if the will
is written in a dialect or language unknown to them, the
requirements of the law are still complied with.

he must be of sound mind


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What are the reasons why a person not domiciled in the


Philippines and a convict are disqualified as witnesses of
the will?

Yes. The conviction happened two (2) years after the


execution of the will. Capacity is determined at the time
the will is executed.

A person not domiciled in the Philippines will practically be


useless during the probate proceeding. While a person
convicted of falsification of a document, perjury and false
testimony is unworthy of credence. The latter are not
considered as credible witnesses.

Suppose that at the time of the execution of the will, one


(1) of the witnesses was already convicted, but was
subsequently acquitted on appeal. Can the will be valid?

If a Filipino in the US wants to execute a notarial will in


accordance with the Philippine laws, must his witnesses
be domiciled in the Philippines?

*Conviction must be by final judgment in order to be


disqualified as witness.

Paras said: No. After all, the will is to be executed in the


US.
Dean Navarro: Witnesses must be domiciled in the
Philippines because the law does not provide for an
exception. Besides, Article 810 provides for a holographic
will, which can be executed without witnesses. Therefore,
if a Filipino is abroad, why not chose to execute a
holographic will, so that, he will not be burdened with thre
requirement of witnesses?
Why does the law require that the witnesses be domiciled
in the Philippines?
1.

The assurance that the witness will be available


at the will is presented for probate.

2.

The likeness of personal acquaintance with the


testator. Hence, there is a greater credibility as a
witness.

Suppose that X executed a will with A, B and C as his


witness. All the three (3) possessed all the qualifications
and none of the disqualifications. Two (2) years after the
execution of the will, A, B and C migrated to Canada. Can
the will be allowed?
Yes. The competency of the witness to a will is to be
determined as of the time of the execution of the
instrument and not at the time when the will is presented
for probate.
Suppose that A, B and C are all Chinese citizens, can the
will be allowed?
Yes. No particular citizenship is required by the law,
provided, they are domiciled here in the Philippines.
Suppose that at the time of the execution of the will,
there were (3) witnesses, one of whom is already accused
of perjury. Subsequently, he was convicted two (2) years
after the execution of the will. Can the will be allowed?

Yes. As there was no final conviction yet.

Only three (3) crimes have been mentioned: falsification of


a document, perjury and false testimony. Conviction of any
other crime is not a disqualification.
When X executed his will, one (1) of the three (3)
witnesses was A who was only seventeen (17) years old.
Two (2) years after, Xs will was presented for probate.
Should the will be allowed?
No. Because one of the witnesses was only seventeen (17)
years old at the time of the execution of the will. The
supervening capacity of A, when he became eighteen (18)
years old, will not cure the defect or validate the will.
Suppose in the preceding problem, A was convicted in the
RTC for falsification of documents. But his case was still
pending execution. May he still qualify as a witness?
Yes. Conviction must be by final judgment in order that a
person may be disqualified from being a witness to the
will. Hence, considering that As case or conviction is still
pending execution, there is yet, no final judgment to speak
of.
Suppose after becoming a witness to the will, A was
subsequently convicted by final judgment, what is the
effect?
The will is still valid. The subsequent incompetence of A to
become a witness to the will did not affect the validity of
the will.
Suppose in the preceding problem, B was actually
convicted by final judgment of a crime of falsification of
documents, but this fact was unknown to X at the time of
the execution of the will, is the will valid?
Yes. The will is still valid, provided that C exercised all
efforts to ascertain the competence of B.
*Transcribers Warning: If strict compliance is required, the
will should have been void.

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Why is the notary public before whom the will was


acknowledged disqualified to be a witness of the said
will.
It would be absurd for him as a witness to acknowledge
something before himself as a notary public. The notary
public cannot have a split personality.

In the preceding problem, may the witnesses be able to


get the device?
The answer is still contested.
1.

Yes. Because the other three (3) witnesses may


stand as witness, with respect to the devise
given to each one of them.

2.

Navarro said: Since the purpose of the law is to


remove any pecuniary interest, they should not
be allowed to get the devise

What do credible witness mean?


In Gonzales vs CA, credible witness refers to competent
witness that posses and have all the qualifications and
none of the qualifications provided by law. The courts
have duty to determine the credibility of the witnesses
and they cannot do this unless the witnesses are
competent.

Pointers:
1.

The term, three (3) other witnesses refers to


uninterested persons in the execution of the will.

2.

The law speaks only of legatees and devisees.


We believe however, that even an instituted heir
or his/her spouse, parent or child is disqualified.
The disqualification applies to one who succeeds
by will. It is not material in what concept her
succeeds.

3.

The disqualification extends to:

Is there a difference between competency and credibility


of witnesses?
The rule is that the instrumental witnesses in order to be
competent must be shown to have all the qualifications
and none of the disqualifications provided by law and for
the testimony to be credible, that is worthy of belief and
entitled to 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. (Gonzales vs CA, 900 SCRA 183)
Suppose X made a notarial will with A, B and C as
witnesses. In the will, A was given a piece of land as a
devisee. Is the will valid?
Yes. Because there are three (3) credible witnesses, A
being one of the.

a.
b.
c.
d.
e.

the witness
the spouse of the witness
the parent of the witness
the child of the witness
anyone claiming the right of the said
witness, spouse, parent or child (e.g.
the creditor of the witness, if said
creditor has not been paid his credit)

However, while A is capacitated as a witness, he is


incapacitated to receive the devise because it does not
comply with the requirement that it should have three (3)
witnesses. In the given case, only B and C stood as
witnesses with respect to the devise. Hence, the provisions
regarding said devise should be disregarded, the rest of
the will (other provisions and dispositions) are valid.
In the preceding problem, suppose there were three (3)
other witnesses aside from A. May A be entitled to
receive the land devise to him?
Yes. The other three (3) witness can stand as witnesses
with respect to the land given to A.
In the preceding problem, suppose that all four (4)
witnesses were designated s devisees, can the will be
allowed?
Yes.
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Articles 825 to Article 827


Codicils and Incorporation by Reference
Article 825
A codicil is supplement or addition to a will, made after
the execution of a will and annexed to be taken as a part
thereof, by which disposition made in the original will is
explained, added to, or altered.

to the will, but this is no longer necessary; when they are


separate documents, the codicil referring to and ratifying
the will may be said to incorporate the will by reference, or
to republish the will. In order to operate as republication of
the will, it is sufficient that the codicil refers to the will in
such way as to leave no doubt as to the identity of that
instrument. A reference to the will in the codicil constitutes
a sufficient identification of the will.
What are the formalities in executing a codicil?

Article 826
The same as holographic and notarial wills.
In order that a codicil may be effective, it shall be
executed as in the case of a will.
Article 827
If a will, executed as required by this Code, incorporates
into itself by reference any document or paper, such
document or paper shall not be considered a part of the
will unless the following requisites are present:
(1) The document or paper referred to in the
will must be in existence at the time of the
execution of the will;
(2) The will must clearly describe and identify
the same, stating among other things the
number of pages thereof;

What is the difference between a will and a codicil?


Codicil, adds to or alters the original provisions of a will. It
is not independent to the prior will and it is always
executed after a will.
If there is a conflict between a codicil and a will, which
one will prevail?
The codicil shall prevail, it being the later expression of the
testators wishes.
Can there be a holographic codicil?
Yes. As long as it is entirely written, dated and signed by
the hand of the testator.
May a holographic will be amended by a notarial codicil?

(3) It must be identified by clear and


satisfactory proof as the document or paper
referred to therein; and
(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.
What is a Codicil?
It is a supplement or addition to the will made after the
execution of a will and annexed to be taken as a part
thereof, by which any disposition made in the original will
is explained, added to or altered.
How is a codicil executed?
It shall be executed as in the case of wills in order that the
codicil may be effective.
*Article 825 enunciates the definition of a codicil, while
Article 826 gives the requisites in order that the codicil may
be effective.

Yes. A notarial will may be revoked by either a notarial or


holographic codicil. A holographic will may be revoked by
either a holographic or notarial codicil.
X executed a notarial will in 1985. Subsequently, X
executed a holographic codicil. Can the notarial will be
modified or revoked by the holographic codicil?
Yes. Because any codicil, whether holographic or notarial,
may modify a previous will. Thus, a notarial will may be
modified or revoked by a notarial or holographic will. In
the same way that a holographic will may be modified by a
notarial or holographic will. The only requirement is that
the codicil must be executed in accordance with the
formalities by law, it is void and it cannot be revoked by
will.
*If a codicil is not executed with the formalities of will, said
codicil is void.
A valid will can never be revoked, expressly or impliedly by
an invalid codicil.

The word codicil imports a reference to some prior paper


as a will. There may, however, be a valid codicil to a
revoked will. At first codicils were writing actually attached
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How do you identify a codicil?


A codicil refers to the original will. If there is entirely no
reference at all, it is considered to be a new will.

Exception:
1.
2.

May a codicil be made before the execution of the will?


No. Because a codicil refers to a will. It cannot be made
before the execution of a will.
What are the requisites for incorporation by reference?
Article 827.
What is the purpose of the aforementioned incorporation
by reference?
To provide for those cases where a testator wishes to
incorporate to his will by reference, voluminous
documents. Hence, the testator is able to save time and
energy.
Are the witnesses required to agree with testator for the
incorporation of the reference?
No. It is an act of the testator alone.
In the preceding problem, should the list be attested by
the attesting witnesses?
No. Under Article 827, said documents or inventories
when referred to in a notarial will do not need an
attestation clause because the attestation of the will itself
is sufficient.
In case of the voluminous books of accounts or
inventories, does the testator and the witness have to
sign each and every page thereof?
No. It need not be signed on each and every page thereof.
Take note however that the exception refers only to the
signing of all the pages thereof. Thus, while not every page
has to be signed, there must be signed on at least several
pages thereof, for the purpose of identifying the same as
the document really referred to.
Can there be an incorporation by reference with respect
to holographic wills?
As a rule: NO, Article 824 (4), provides 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 From this provision it can be deduced that as
a rule, incorporation by reference may be applied only on
notarial wills.

If a holographic will happens to have at least


three (3) credible witnesses; and
(Having no witnesses) it refers to a document
entirely written, dated and signed by the hand of
the testator, there can also be a proper
incorporation by reference.

As regards proof as to the identity of the document as


incorporated, can evidence aliunde be admitted?
Yes. Parole or extrinsic evidence (evidence aliunde). Can be
admitted. It is even necessary on this situation.
*Stated generally, the doctrine is that a will duly executed
and witnessed according to statutory requirements, may
incorporate into itself by an appropriate reference a
written paper or document which is in existence at the
time of the execution of the will, irrespective of whether
such document is one executed by the testator or a third
person, whether it is in and of itself a valid instrument,
provided that the document referred to is identified by
clear and satisfactory proof. So incorporated, the extrinsic
paper takes effect as part of the will and is admitted as
probate of such.
Can a document which is incorporated by a reference to a
will, refer to papers, which may be made only in the
future?
No. The incorporation will be invalid, but the will remains
valid. The will must refer to papers which have been made
already. It is not enough to state that it is already in
existence.
Suppose that in 1985, X typed a document which he
intended to be used in the future as his last will and
testament. In 1995, X made a will and incorporated the
1985 document. Is there a valid incorporation?
No. The 1985 document was a testamentary provision. So
it must be made into a will. Article 827 refers only to
references such as inventory.
The purpose of incorporation by reference is merely for
convenience. It cannot be done to incorporate
testamentary provisions.
*Article 827 refers to non-testamentary dispositions. So, if
they are testamentary, one must use a codicil or a will, not
an incorporation of reference.

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Can a will be a document, which is incorporated in


another will?
No. The law allows incorporation only if what is
incorporated in a will, is not in itself a will (another will so
to speak).
Article 828 to Article 834
Revocation of Wills
Article 828
A will may be revoked by the testator at any time before
his death. Any waiver or restriction of this right is void.
Article 829
A revocation done outside the Philippines, by a person
who does not have his domicile in this country, is valid
when it is done according to the law of the place where
the will was made, or according to the law of the place in
which the testator had his domicile at the time; and if the
revocation takes place in this country, when it is in
accordance with the provisions of this Code.
Article 830
No will shall be revoked except in the following cases:
(1) By implication of law; or

Article 833
A revocation of a will based on a false cause or an illegal
cause is null and void
Article 834
The recognition of an illegitimate child does not lose its
legal effect, even though the will wherein it was made
should be revoked.
What do you mean by revocation as applied to wills?
It is an act of the mind terminating the potential capacity
of the will to operate at the death of the testator,
manifested by some outward or visible act or sign,
symbolic thereto.
Can the testator waive the right to revoke?
No. It is a void waiver. The law provides that the right of
the testator to revoke cannot be restricted.
In 1985, in paragraph 10 of his will, it is stated, This is
my last will and testament, and I do not intend to change
any of the provisions in it. I therefore waive my right of
revocation. In 1995, he changed his mind. Can X still
revoke his 1985 will?
Yes.

(2) By some will, codicil, or other writing


executed as provided in case of wills; or
(3) By burning, tearing, cancelling, or obliterating the will
with the intention of revoking it, by the testator himself,
or by some other person in his presence, and by his
express direction. If burned, torn, cancelled, or
obliterated by some other person, without the express
direction of the testator, the will may still be established,
and the estate distributed in accordance therewith, if its
contents, and due execution, and the fact of its
unauthorized destruction, cancellation, or obliteration
are established according to the Rules of Court.
Article 831
Subsequent wills which do not revoke the previous ones
in an express manner, annul only such dispositions in the
prior wills as are inconsistent with or contrary to those
contained in the latter wills.
Article 832
A revocation made in a subsequent will shall take effect,
even if the new will should become inoperative by reason
of the incapacity of the heirs, devisees or legatees
designated therein, or by their renunciation.

Even if he expressly waived his right to revoke the will?


Yes. A will may be revoked by the testator at any time
before his death. Any waiver or restriction of the right is
void.
Can the oppositor contests the probate of a will, by the
mere fact that the said will contains an irrevocable
clause?
Yes. Because this is an indication that the testator did not
understand the character of the testamentary act at the
time of the execution of the will. Furthermore, said
irrevocability clause is void under Article 828.
How may a will be revoked?
1.
2.

By implication of law.
By some will, codicil, or other writing executed
as provided in case of wills.

3.

By burning, tearing, cancelling, or obliterating


the will with the intention of revoking it, by the
testator himself, or by some other person in his
presence, and by his express direction.

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When is there a revocation by implication of law?


The revocation is to be implied from certain changes in the
family or domestic relations of the testator, or his
property, or one involving the beneficiaries of the will,
from which the law infers or presumes that he intended a
change, either total or partial, in the disposition of the
property.
What are the instances of revocation by implication of
law?
1.

When there is a decree of legal separation.

2.

Where the is 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. In such case, the preterition shall annul
the institution of heirs.

3.

4.

5.

6.

7.

When in a testators will there is a legacy or


credit against a third person or of the remission
of a debt of the legatee, and subsequently, after
the execution of the will, the testator brings an
action against the debtor for the payment of his
debt. In such case the legacy is revoked.
When the testator transforms the thing
bequeathed in such a manner that it does not
retain either the form or denomination it had, or
when he alienates by any title or for any cause
the thing bequeathed, or when the thing
bequeathed is totally lost during the testators
life or after his death without the heirs fault. In
such cases, the legacy is revoked.
When the heir, devisee or legate commits any of
the acts of unworthiness, which by express
provision of law will incapacitate a person to
succeed. In such case, any testamentary
disposition in favor of the devisee or legatee is
revoked.
Article 44 of the Family Code. It both spouses of
the subsequent marriage acted in bad faith, said
marriage shall be void ad initio and all donations
by reason of marriage and testamentary
dispositions made by one in favor of the other
are revoked by operation of law.
Article 50 of the Family Code. In cases of
marriages which are declared void ab initio or
annulled by final judgment.

*In legal separation, a spouse may still inherit from the


other spouse, unless, found guilty of the legal grounds of
legal separation, he/she is disqualified from.

If there is a legal separation, suppose the wife was


instituted not as an heir, but as legatee, will the effect of
revocation be the same?
Yes. In case of legal separations, provisions in favor of the
offending spouse shall be revoked by operation of law.
Hence, it is not material in what concept the provision was
made.
Suppose that in a 1985 will, X stated that he is
bequeathing the entire free portion of his estate to his
wife. In 1990, X and his wife were granted a legal
separation on the ground of Xs adultery. Thereafter, X
died. May Xs wife still inherit based on the 1985 will?
Yes. It is the provision in favor of the offending spouse and
not of the innocent, which shall be revoked.
Suppose Mr X made a notarial will in 1985. There is only
one (1) copy of the said will. X died in 1995. The will was
stolen after Xs death and was destroyed. Would it still be
possible to admit the will to probate?
Yes. If burned, torn, cancelled or obliterated by some
other person, without the express direction of the
testator, the will may still be established, and the estate
distributed in accordance therewith, if its contents and
due execution and the fact of its unauthorized destruction,
cancellation and obliteration are established according to
the Rules of Court.
In the preceding problem, what if it was a holographic
will?
No. Because there would be no document which may be
examined to verify the authenticity of the testators
handwriting.
Exception: existence of photocopy or mimeo copy.
To revoke a will be an overt act, what are the requisites?
Or what are the requisites of revocation by physical
destruction?
1.

There must be an overt act specified by law


(burning, tearing, cancelling or obliterating).

2.

There must be an animus revocandi or intent to


revoke.

3.

There must be a completion of at least


subjective phase of the overt act.

4.

The testator at the time of revoking the will must


have capacity to make a will.

5.

The testator must do the act of revocation


himself, or by some other persons in his

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presence and by his express direction


(ratification of an unauthorized destruction is,
however, permissible, provided that, sufficient
proof of this is presented).
* The intention to revoke must concur with an overt act,
manifesting the intention. Neither destruction without
intention nor intention without destruction would revoke
the will.
Suppose X made five (5) copies of his will and he gave
four (4) of them to his friends for safe keeping. In 1985,
he revoked his will by burning it. Is it necessary that for
the validity of the revocation, that X retrieve all the
copies of the will?
No.
X made a will in 1998. In 2001, with an intent to revoke
the will, X threw the will out of the window. Is there a
valid revocation of the will?
No. Because there was no actual and physical destruction
of the will.
X made a will in 1998. Thereafter, he placed the will
inside the drawer. In 2001, the house of X was razed by
fire. The drawer where the will was placed was also
consumed by fire. Obviously, the will perished with it. Is
the will revoked?

Yes. There was a valid revocation. A very slight burn on the


paper on which the will was written will suffice.
X wanted to revoke his will so he threw the same into the
stove, where it would be burned later, if a fire would be
lighted on the stove. However, A the son of X, removed
the will from the stove before the stove was lighted. Is
there a revocation?
No. While there was an intent to revoke, there never was
an overt act of burning.
In the preceding problem, will A be able to inherit being
the son of the testator himself, and therefore, entitled to
his legitime?
It is submitted, that by preventing the revocation of the
will, A would not be able to inherit not because of the
revocation by means of an overt act (for there was no
overt act), but because of revocation by implication of law.
A is considered incapacitated to inherit by reason of act of
unworthiness.
How many times should a testator tear his will in order
that there may be a valid revocation?
There is no number required by law.
Is a slight tear sufficient?
Yes. If the subject phase of the act has been completed.

No. Despite the actual and physical destruction of the will,


there was no valid revocation. Because, there was no
intent to revoke the will. Intention and destruction must
go hand in hand.
* If the will is contained in an envelope and the latter was
burned without the contents included, the will is not
revoked.

Suppose that Mr X had violent altercation with his


instituted heir. In front of the heir, he tore the will three
(3) times with intent to revoke the will. He was on the act
of tearing the will for the fourth time when his heir
pleaded with him not to tear the will. He stopped and
placed the pieces together. Is there a valid revocation.

X executed a will and placed it inside an envelope. With


the will inside the envelope, he threw the same into a
fire. However, the only thing burned was the envelope,
while the will was kept intact. Later, X died and the will
was discovered. Is the will revoked?

None.

No. To constitute a revocation by burning, there must be


at least a burned part of the paper on which the will is
written, otherwise, there is no revocation

Yes.

A very slight burn on the paper on which the will was


written will suffice. In this case, since the will was intact
and was recovered, there is no revocation.

X threw his will into the fire with intent to revoke. The
will was slightly burned without affecting a single word.
Is there a valid revocation.

In the preceding problem, suppose that Mr X tore the will


just once and threw it in the waste basket. Is there a valid
revocation?

What is the difference between the two (2) immediately


preceding problems?
In the first instance, the will is still valid because the
subjective phase of the overt act was not yet completed. It
is evident in the first instance that the testator still has the
intention to tear the will for the fourth time so as to
revoke it.
In the second instance, there was already a completion of
the subjective phase of the overt act.
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Dean Navarro: The question must be asked is: Was the act
subjectively complete? If yes, then even if there is a
subsequent desistance, there arises a valid revocation.
Suppose that Mr X with an intent to revoke the will, tore
the will just once and threw it in the waste basket.
Thereafter, he changed his mind and pasted back the
will? Is the will valid?
No. There was already a completion of the subjective
phase of the overt act. Therefore, the will was already
revoked. The subsequent pasting it back did not restore
the validity of the will.
When is the act deemed to be still in its subjective phase?
If the testator still intends to do a further act.
What if instead of tearing it himself, Mr X used shredding
machine. Is there a valid revocation?
Yes.
Notes:
1. Tearing includes cutting. A clause may be revoked by
cutting the same from the will.
2. The mere act of crumpling or the removal of the
fastener binding the pages of a will does not constitute a
revocation, even though there be animo revocandi.
Reason: Crumpling is not one of the overt acts provided by
the law.
However, in Roxas vs Roxas, 48 OG 2177, the court
impliedly allowed crumpling as one of the overt acts,
provided, there is animo revocandi.
3. Tearing of even the signature alone constitute
revocation, provided, the other requisites are present. This
is because the signature goes to the very heart of the will.
4. Humpty Dumpty Rule: Once a will has been torn and
revoked, it can no longer be revived by putting the pieces
together.
Suppose X dug a place in his yard and buried the will
there, is there a valid revocation?

X made a one (1) page notarial will and took pictures of


the said will. Therefore, X had the pictures developed and
distributed copies of it to his friends while retaining some
copies to himself. After one (1) year, X burned one (1) of
the pictures with the intent to revoke. Is there a valid
revocation?
First View: There was a valid revocation because the
testator need not burn all the pictures of the will in order
to constitute a complete revocation.
Second View: There was no valid revocation, since what
was burned was the mere reproduction.
According to Jurado, citing American jurisprudence, to
constitute a revocation by burning there must be at least a
burning part of the paper on which the will was written.
Although a slight burn will suffice. Hence, this would imply
the exclusion of mere burning of the reproduced copy.
X executed his last will and testament. He made five (5)
copies of his notarial will, one original, and the other four
(4) as duplicate copies. The original plus the three (3)
duplicate copies were given by X to his friend, F. X
retained one (1) duplicate copy. Thereafter, X revoked his
will by tearing the said duplicate copy. Is there a valid
revocation?
Yes. Since all the requisites for a valid revocation by an
overt act were present. There is a valid revocation of the
will, even if other copies of the said will are still existing.
Furthermore, a duplicate original, a carbon copy or a
duplicate executed at the same time as the original is a as
good as the original and produces the same effect, as
though the original has been revoked.
*A duplicate original is a reproduction, but it is considered
as the same as the original itself. That is why, its
destruction, cancellation of obliteration will suffice as a
revocation of the will itself.
With respect to the pictures, although it is also a
reproduction of the will, it cannot be considered the same
as the original itself, that is why its destruction may not be
considered as sufficient revocation of the will.
Transcribers Warning: The aforementioned comparison
refers to the two (2) immediately preceding problems is
the transcribers opinion. Dean Navarro did not say
anything on the matter.

No. Since there was no physical destruction.


Is it sufficient under Article 830 to destroy a reproduction
(reproduced copy) of a will for its valid revocation?
A symbolic destruction, cancellation, obliteration will not
suffice. However, since a duplicate original has a genuine
signature, it is deemed that its destruction is a sufficient
revocation.
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X had four (4) copies of his will. He burned the first copy
with an intent to revoke. Can the heirs have the
remaining three (3) copies probated?
No. It is evident that X has decided to revoke the will.
There was a complete act of actual and physical
destruction of the will, notwithstanding that there were
other three (3) copies. Further, there is an intention on the
part of the testator to revoke the will. What is controlling
here, is the intent of revocation. In the main, destruction
of a copy of the will is a sufficient revocation, despite the
presence of other copies, if there is an intention on the
part of the testator to revoke the will.

Suppose that the testator could no longer stand and so he


asked his housemaid to get his will and burn it for him.
The housemaid burned the will in the kitchen and
returned with the ashes. Is there a valid revocation?
None. Since it was not done in the presence of the
testator.
What about the fact that he saw the ashes?
It is immaterial since, there is no guarantee that the said
ashes are those of the will.
Define Revocation by Obliteration?

Suppose that the testator simply crumpled his will and in


the presence of his beneficiary, orally declared his
intentions to revoke the will. Is it a valid revocation?
No. It is not a valid revocation. The mere act of crumpling
or the removal of the ring or fastener, binding the pages of
a will does not constitute a revocation, even though there
be animo revocandi. Crumpling is not one of the overt acts
provided for by the law. Inclusio Unius et Exlusio Alrerisus.
The overt acts specified are exclusive, notwithstanding the
ruling in the case of Rosa vs Rosa, where the court
impliedly allowed crumpling as one of the overt acts. The
intention to revoke must concur with the overt acts
expressly specified.
Suppose that the testator merely spat on the will. Is there
a valid revocation?
No. The revocation of the will is a matter of mental
process demonstrated by some outward and visible sign. A
mere symbolic destruction will neither suffice. There must
be a physical act (neither symbolic, nor verbal), as well as
an intention.
Suppose the testator buried the will?
Mere burying is construed as a mere symbolic act of
destruction, hence, there is no valid revocation. Take note,
in burning, even a slight burn is deemed sufficient.
Suppose X threw his will from the window of his office
building with intent to revoke it. It was picked up by a
Metro Aide who threw it in a fire. Is there a valid
revocation?
None. Since in cases where the physical destruction is
made by a third person, it must be performed in the
presence of the testator and under his express direction.

It is one effected by erasing or scrapping off any record or


disposition which the testator intends to revoke. In this
case, the words are rendered ineligible.
Define Revocation by Cancellation?
It is one effected by diagonal or horizontal lines, or crisscrosses written upon the face of the will or upon any part
thereof. In this case, the words are still legible.
Notes:
1. Either of the two (2) (obliteration or cancellation)
revokes a will, totally or partially.
2. If all parts are cancelled or obliterated, or if the
signature is cancelled or obliterated, the whole will is
revoked, the reason in the case of the signature being that
the act strikes at the existence of the whole instrument.
3. Cancellation or obliteration of non-vital parts leaves the
other parts in force.
4. If a will is mutilated by error, there being no animo
revocandi, there is no revocation.
X executed a holographic will with A,B and C as
witnesses. Thereafter, X cancelled the signature of the
three (3) witnesses. Is the will revoked?
No. Because cancellation of the signature of witnesses to a
holographic will leaves the will valid, since no witnesses
are after all required.
Suppose that the testator wrote cancelled on the left
margin of the will. Is there a valid revocation?
No. Even if there is an intent to revoke since the testator
must have caused some physical defacement of the will to
give expression to that purpose.

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In the preceding problem, suppose that the testator


wrote the word cancelled, signed and dated it. Is there a
valid revocation?
Yes. Since having been executed in accordance with all the
formalities prescribed by law for the execution of wills,
there would be a revocation, not by cancellation but by a
non-testamentary writing executed as provided in case of
wills.
*Revocation by will or by codicil or other non-testamentary
writing:

not in fact a will, be erroneously characterized a will, in


order to be effective as a revoking instrument. Thus, a will
may be revoked by express words of revocation contained
in a deed of trust or in a letter, signed by the testator and
executed in accordance with the formalities prescribed by
law for the making of the wills. The exact wording of a
revocatory writing is not so important, if the intent to
revoke the will is clear from the language used, and the
formalities of execution are observed.
Only a valid will can revoke a valid will.
What is the doctrine of independent revocation?

1.

2.

It is express when in a subsequent will or codicil


or other non-testamentary writing executed as
provided in the case of wills, there is a revocatory
clause expressly revoking the will or a part
thereof.
It is implied when the provisions of the
subsequent will or codicil are partially or
absolutely inconsistent with those of the previous
will.

Under this doctrine, the established rule is that, if the


testator revokes a will with a present intention of making a
new one immediately and as a substitute, and the new will
is not made or if made, fails of effect for any reason, it will
be presumed that the testator preferred the old will
instead of intestacy, and the old one will be admitted for
probate in the absence of evidence overcoming the
presumption, provided its contents can be ascertained.
Vda de Molo vs Molo, 90 Phil 37

Can there be a revocation which is done impliedly?


Yes. Implied revocation consists in complete inconsistency
between two (2) wills.
But, as long as a possibility for a reconciliation between
the two (2) conflicting dispositions can be made, then,
there is no implied revocation.
How is an implied revocation effected?
It is effected only by a subsequent will or a codicil. It is
evident that it cannot be effected by a non-testamentary
writing executed as provided in the case of wills, since
such non-testamentary writing does not contain any
affirmative disposition of property which can be said to be
inconsistent with the disposition contained in the previous
will.

FACTS: After the death of Mariano Molo, his widow filed a


second petition for the probate of a copy of another will
executed by the deceased on June 20, 1939. This will was
denied probate on the ground that it was not executed in
accordance with the formalities prescribed by law.
In view of the disallowance, the widow filed a second
petition for the probate of another will executed by the
deceased on August 17, 1918. This will was admitted to
probate in spite of the opposition of the oppositorsappellants. The widow is the instituted heiress in both wills.
The oppositprs contend among others, that the will of 1918
cannot be given effect because there is a presumption that
the testator, after executing the will in 1939, and with full
knowledge of the revocatory clause contained in the said
will, deliberately destroyed and revoked the original will of
1918.

How is an express revocation effected?


It is effected through a subsequent will, a codicil or a nontestamentary writing executed as provided in the case of
wills.
*In order to be an express revocation, there must be a
revocatory clause in a subsequent will, codicil, or other
writing. The intention of the testator to revoke the
previous will must be clearly and unmistakably manifested.
As regards revocation by a non-testamentary writing
executed, as provided in the case of wills, it is not essential
that the writing should contain any affirmative disposition
of property. Neither is it essential that a writing which is

HELD: Granting for the sake of argument that the earlier


will was voluntarily destroyed by the testator after the
execution of the will, which revoked the first, could there
be any doubt that said earlier will was destroyed by the
testator, in the honest belief, that is was no longer
necessary because he had expressly revoked said will in
1939? In other words, can we not say that the destruction
of the earlier will was but the necessary consequence of
the testators belief, that the revocatory clause contained
in the subsequent will was valid and the latter would be
given effect?
If such is the case, then it is our opinion that the earlier
will can still be admitted to probate, under the doctrine.
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*False cause or illegal cause must be stated in the


subsequent will that the revocation was due to such cause.
The purpose is for contesting the will.
X instituted F as heir for half of the free portion of her
estate. X subsequently revoked the will:
a.
b.
c.
d.

I revoke the will for F.


I revoke the will for F, because he is dead.
I revoke the will for F, because I have a crush
on him, but he wouldnt court me.
I revoke the will for Martin because he is a
Bicolano and I hate Bicolanos.

Can F contest the revocation?


Except for revocation under (B), F cannot contest the
revocation because the will is essentially revocable,
regardless, whether the revocation is whimsical or not.
Under (B) it may turn out that F is alive and the cause of
revocation is untrue. In this case the revocation is null and
void, and will not take effect.
*The rule under Article 833 is also known as a revocation
by mistake. Thus, where a testator, by codicil or a latter
will, revokes a devise or legacy in his will, expressly
grounding such revocation on the assumption of a fact,
which turn out to be false, as where it is stated that the
legatees or devisees named in the will are dead, when in
fact, they are living, the revocation does not take effect.
The revocation which is based on a false cause or an illegal
cause, must be stated in the codicil or a later will, so that it
may be contested. If the same is not stated, it cannot be
assailed.
Suppose that X in his 1985 will, instituted A as his heir. In
1995, believing that A was already dead, X revoked As
institution. But A did not state in the will/revocation that
the reason was due to his belief that A was already dead.
After Xs death, A discovered that the revocation was due
to Xs false belief that he was already dead. Can the
revocation be questioned?

In the preceding problem, what if X stated in the later


will, that I am revoking the institution of A as heir
because he is already dead. Can A contest the
revocation?
Yes.
*Under Article 834, the revocation of the will where an
illegitimate child is acknowledge by the testator as his
natural child, will not affect the validity of the recognition
or acknowledgment. This rule is logical, considering the
fact, that even if the will is revoked, the instrument still
constitutes an authentic instrument within the meaning of
Article 278 of the Civil Code, which states that recognition
of natural children shall be made in the record of birth or in
a will or in a statement before a court of record or in
authentic writing.
X executed a will in 1985. In the said will, he also
acknowledged A as his illegitimate child. In 1995, X
revoked his 1985 will. What is the effect on the
recognition of A as an illegitimate child in 1985 will,
considering that the same was revoked?
The recognition of an illegitimate child does not lose its
legal effect even though the will where it was made should
be revoked.
Reason: Because the recognition is not a testamentary
disposition. It takes effect upon the execution of the will
and not upon the death of the testator. Hence, the childs
right is already vested upon the execution of the will.
Furthermore, even if the will has been revoked, the
instrument still constitute an authentic instrument within
the meaning of Article 278 of the Civil Code, which states
that recognition of natural child shall be made in a record
of birth, or in a will, or in a statement before a court of
record, or in an authentic writing.
Article 835 to Article 837
Republication and Revival of Wills
Article 835

No. The revocation of a will based on a false cause or an


illegal cause shall be rendered null and void only when the
said cause is expressly stated in the codicil or a later will.
In this case, X did not state in the later will that the
revocation was due to his false belief that A was already
dead.

The testator cannot republish, without reproducing in a


subsequent will, the dispositions contained in a previous
one which is void as to its form.
Article 836
The execution of a codicil referring to a previous will has
the effect of republishing the will as modified by the
codicil.

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Article 837
If after making a will, the testator makes a second will
expressly revoking the first, the revocation of the second
will does not revive the first will, which can be revived
only by another will or codicil.
What is republication as applied to wills?
It is an act of the testator whereby he reproduces in a
subsequent will the dispositions contained in a previous
will, which is void as to its form or executed a codicil to his
will.
Notes: With respect to republication:
1. It is express republication, if the testator reproduces in
a subsequent will, the dispositions contained in a previous
will, which is void as to its form. (Article 835)
2. It is a constructive republication if the testator for some
reason or another executes a codicil to his will. (Article
836)
3. Revival is the restoration to validity of a previously
revoked will by operation of law.
Republication
Takes place by an act of the
testator.
Corrects extrinsic and
intrinsic defects.

Revival
Takes place by operation of
law.
Restores a revoked will.

Suppose that X had made a notarial will in 1985. He


made it when he was sixteen (16) years old. X executed a
codicil in 1995 modifying the will of 1985. Would the
codicil act as a republication of the 1985 will?
Yes. Because a referral was made modifying the 1995 will.
Hence, the intrinsic defect has been cured. Article 836
applies.

No. There is no proof that the whole will was reproduced


correcting the void provisions. The latter was merely as
codicils.
The 1985 will as void as to its form because it has only two
(2) witnesses and therefore Article 235 should apply. The
testator must reproduce in a subsequent will the
dispositions contained in the 1985 will. He cannot merely
use a codicil.
Suppose that when X made his will in 1985 he was twenty
(20) years old. The will did not contain an attestation
clause. In 1995, he makes a codicil. Is there a valid
republication?
No. Because the first will was not valid to its form. X must
copy the contents of the 1985 will as provided for under
Article 835.
Notes:
1. If the defect of the will is as to its form, apply Article
835.
2. If the defect is not with respect to its form, a codicil
may be made with effect of republishing the will. This is
under Article 836.
3. A will which is republished in a codicil speaks as it were
from the new and later date, i.e., the date of the codicil.
X made a notarial will in 1999, with only two (2) attesting
witnesses. It is clear that the will is void as to its form,
and is therefore, useless. If he so desires to give life to the
will, say, in 2000, (a) What should he do? (b) How? (c)
What is the effect?
(a) He must republish the 1999 will.
(b) By executing a new will in 2000, copying all the
provisions in the 1999 will, but this time, he must use
three (3) attesting witnesses.

If he dies, should the will be allowed?

(c) The effect is as if, he made the will not in 1999 but in
2000.

Yes. Because there was proof that the codicil intends to


cure the intrinsic defect, for he referred to the 1985 will
using the codicil.

In other words, the will becomes a re-established act, and


therefore, the will governs property he had acquired up to
2000.

*Under Article 836, intrinsic defects of the will are cured by


mere referral to the codicil.

Example: If in 1999, X gave all of her cars to F, and at the


time (1999), X had two (2) cars, but in 2000 he had
republished the will, and by that time (2000), X had
already five (5) cars. How many cars will F get? F will get all
the cars.

Suppose that X made a notarial will in 1985, but only two


(3) witnesses were present. In 1995, he modified by will
by codicil. If he dies, should the will be allowed?

*Observe that under Article 793, had the original will been
valid, and no republication was made, F could get two (2)
cars, even if by the time of Xs death, the latter already had
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five (5) cars, unless, there was an express contrary


provision in the will.
When X made a notarial will in 1999, there were only two
(2) witnesses (it is clear that the will is valid or invalid). In
2001, she modified the 1999 will by a codicil. She died in
2002. Can the will be allowed?
No. Because there was no proof that the whole will was
reproduced, correcting the void provision of the 1999 will.
The latter instrument was merely a codicil. Article 835
applies, not Article 836. Republication (implied) by mere
reference to a previous will, as contemplated by Article
836, is not sufficient because the will was void as to its
form. Therefore, republication by reproduction or reexecution (Article 835) of the dispositions contained in the
previous will must be made.
X made a notarial will in 1995. He made it when he was
sixteen (16) (it is clear that the will is invalid). In 2001, he
executed a codicil modifying his will, which he made in
1995. She died in 2002. May the will be allowed?
Yes. Because there was proof, that the codicil intends to
cure the intrinsic defect. The reason is that, the codicil was
used to refer to the 1995 will. The intrinsic defect in the
1995 will was the fact that X was only sixteen (16) when he
made the will. Article 836 applies.
*Do not confuse the two (2) immediately preceding
problems with each other. The former problem
contemplates a situation where the will is void as to its
form because there were only two (2) attesting witnesses
and therefore, Article 835 applies.
The latter problem contemplates a situation where the will
is invalid because the testator (only 16) lacks testamentary
capacity, thus, Article 836 applies. It is void because the
defect (lack of testamentary capacity) is not a defect in
form. Take note that a will not void as to its form can be
cured by executing a codicil referring to a previous will.
Article 836 applies.
The query therefore is, how will we know if the will is
void as to its form (and therefore Article 835 applies); or
the will is void as to its form (and therefore Article 836
applies)?

b.
c.
d.

undue influence
the testator was under eighteen (18)
the testator was insane

In this case, the will may be republished by mere reference


in a codicil.
X revoked his will by cutting out his signature in the will,
with animo revocandi. Later, he changed his mind and
pasted back his signature in its previous position. Does
the revocation remain or has there been a republication?
The will remains revoked. The attempted republication has
not complied with the legal requirements for
republication.
What are the effects of republication by virtue of a
codicil?
a.

The will revives the previous will.

b.

The old will is republished as of the date of the


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

c.

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.

*A duly executed codicil operates as an republication of the


original and makes it speak from the new date, in so far as,
it is not altered or revoked by the codicil, although, such
codicil is not physically annexed to the will, and although
the will is not in the presence of the testator at the time
executing the codicil to which such codicil refers. If a codicil
revokes some portions of the will, it republishes the will as
of the date of the codicil, with respect to all the parts not
revoked.
What do you understand by the principle of instanter?
It is based on the principle that the revocatory clause of
the second will takes effect immediately.
Notes:
1. Express Revocation

Paras: Article 835 refers to such things or defects covered


by Article 805 like defects in the number of witnesses, lack
of or fatal defects in the attestation, lack of
acknowledgement, etc. Therefore, if these defects are
present, Article 835 applies.

Where the second will expressly revokes the first will; the
first will is not revived by the revocation of the second will,
unless, such revival is provided in another will or codicil.

On the other hand, it is submitted that Article 836 will


apply if the will was invalid due to:

Basis: This is based on the theory that the revoking clause


in the second will is not testamentary in character, but
operates to revoke the first will instant upon the execution
of the second will containing the revocatory clause.

a.

fraud or force
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Hence, the revocation of the second will does not revive


the first will, which has already become a nullity.
2. Implied Revocation
Where there is merely an inconsistency between the two
(2) wills, but there is no revoking clause; it has been held in
common law, that upon the destruction of the second will,
the first was automatically revived, regardless of the
intention of the testator, provided, the first will has been
preserved undestroyed and uncancelled.
Basis: It is based on the ground that while the inconsistent
provisions of the second will, clearly manifest an intention
on the part of the testator to revoke the prior will, yet this
intent, purely testamentary in character, can have no
effect until the death of the testator, and, if the
instrument containing it is destroyed before the testators
death, this recovery intent is, for legal purposes, as though
it had never been and the first will, being cancelled, takes
effect.
Give examples of revival?
1.

While omission of a compulsory heir in the


institution of heirs annuls the institution, still if
he omitted heir dies ahead of the testator, the
institution is revived, without prejudiced to the
right of representation.

2.

If after the making of the will, the testator makes


a will impliedly revoking the first, the revocation
of the second will revives the first will
(Implication from Article 837).

X made three (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 takes effect immediately or at the instant the revoking
will is made.
This is the principle of instanter. Thus, we say, the clause
revoked the first will that contains said clause, In other
words, the theory is that death does not have to come
before giving effect to a revocatory clause. Stated
otherwise, while a will is a disposition mortis causa, an
express revocation takes effect inter vivos.
X made a will in 1990 and in 1995 with inconsistent
provisions, and therefore, the 1995 will impliedly revoked
the 1990 will. In 2000, X made a will revoking the 1995
will. Is the 1990 will revived?
Yes. The 1990 will is revived. This is clear 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 (these provisions do not revoke
the other provisions instantly. They take effect only after
death), the inconsistency being truly and actually apparent
only mortis causa, when the properties are distributed.
Does implied revocation take effect during the lifetime of
the testator?
No. Because the revoking clause are testamentary in
character. They merely provide inconsistency between the
two wills, but they do not expressly revoke the prior will.
Suppose that X made a will in 1985 and in 1990, with
inconsistent provisions. In 1995, X made a will revoking
the 1990 will. What is the effect of the revocation?
The 1985 will is revived. The principle of instanter does not
apply because the 1990 will only impliedly revoked the
1985 will.
*In an implied revocations, the first will is not revoked by
the second will because the testamentary dispositions of
the latter do not take effect immediately. They only take
effect after the death of the testator. So, if the second will
was expressly revoked by the third will, the first will
governs, for there is no more inconsistency.
X made Will No 1, then he executed Will No 2 expressly
revoking Will No 1. Thereafter, Martin destroyed Will No
2 and orally expressed his desire that the 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
(Article 837).
Article 838 to Article 839
Allowance and Disallowance of Wills
Article 838
No will shall pass either real or personal property unless
it is proved and allowed in accordance with the Rules of
Court.
The testator himself may, during his lifetime, petition the
court having jurisdiction for the allowance of his will. In
such case, the pertinent provisions of the Rules of Court
for the allowance of wills after the testator's a death
shall govern.
The Supreme Court shall formulate such additional Rules
of Court as may be necessary for the allowance of wills on
petition of the testator.

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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.
What is the concept of probate of wills?

Why?
1.

The law expressly requires it (Article 838).

2.

Probate is a proceeding in rem and therefore, it


cannot be dispensed with or substituted by any
other proceeding, judicial or extra-judicial
without offending public policy.

3.

The right of a person to dispose of his property


by virtue of a will may be rendered nugatory.

4.

The absent legatees and devisees or such of


them, as may have no knowledge of the will
could be cheated of their inheritance, through
the collusion of some of the heirs, who might
agree to the partition of the estate among
themselves to the exclusion of others.

It is a special proceeding for establishing the validity of a


will.
*Probate may also be identifies as a special proceeding for
the purpose of proving that the instrument offered to
probate is:
1.

the last will and testament of the testator

2.

that it has been executed in accordance with the


formalities prescribed by law

3.

that the testator had the necessary capacity at


the time of the execution of the will

Is there a period to file a petition for probate?

When may the probate of the will be commenced?

Twenty (20) days under the Rules of Court.

The probate of a will may be commenced either during the


lifetime of the testator or after his death. In the first, it is
the testator himself who files the petition for the probate
of the will. In the second, it is any person interested in the
estate. Thus, they may be classified as, probate ante
mortem and probate post mortem.

Notes:

What is the nature of a probate proceeding?


It is an action in rem. Thus, the decree of probate is held
binding on all persons in interest, whether they appear to
consent the probate or not.
Suppose the testator instituted only heir for his whole
estate. Should the will still be probated?
Yes. There must still be a judicial order of adjudication.
Suppose that in his will, X declared: I will give my house
and lot in Makati to A, and my house and lot in Quezon
City to B and after Xs death, A and B agreed to follow
his will to the letter. Should the will still be probated?
Yes. No judicial approval can be given to an extrajudicial
partition based on a will, unless, the will is first probated,
*Under our legal system, the probate of a will is
mandatory.
Is probate proceedings mandatory?
Yes.

1. Rule 75 Section 02. If the will has been placed in


custody of another person, the latter must, within twenty
(20) days, after he knows of the death of the testator,
deliver the will to the court having jurisdiction, or to the
executor named in the will.
2. Rule 75 Section 03. A person named as executor in a will
shall, within twenty (20) days after he knows of the death
of the testator, or within twenty (20) days after knows that
he is named executor if he obtained such knowledge after
the death of the testator, present such will to the court
having jurisdiction, unless the will has reached the court in
any other manner, and shall, within such period, signify to
the court in writing his acceptance of the trust or his
refusal to accept it.
After the aforementioned period, can the will no longer
be probated?
The will may still be probated, as probate proceedings are
imprescriptible.
Guevarra vs Guevarra, 98 Phil 259
The applicability of the statute of limitations to probate
proceedings must be rejected on the ground, that such
proceedings are not established in the interest of the
surviving heirs, but, primarily for the protection of the
testators expressed wished. That is, it seeks to uphold the
intent of the testator and his right of ownership.

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What is the effect of allowance of the will?


A judgment or decree, which admits the will to probate, is
conclusive upon the validity of the will. It is not subject to
collateral attack, but stands as final, it is not modified, set
aside, or revoked by a direct proceedings or reversed on
appeal to a higher court.

2.

within six (6) months after such order or


judgment was entered

Is the probate of the will by final judgment prior to that


of the codicil thereof, a bar to the probate of the codicil?
This question was resolved in the negative by the Supreme
Court in the case of Macam vs Gatmaitan.

Mercado vs Santos, 66 Phil 215


FACTS: The petitioner filed a petition for the probate of the
will of his deceased wife. The will was duly probated.
Sixteen (16) months after the probate of the will, the
petitioner was prosecuted for falsification or forgery of the
will, which was probated.
ISSUE: May a crime of forgery lie against a person based
on will which has been duly probated?
HELD: No. the probate of the will is considered as
conclusive as to its due execution and validity, and is also
conclusive that the testator was of sound mind and
disposing mind at the time when he executed the will and
was not acting under duress, menance, fraud or undue
influence, and that the will is genuine and not a forgery.
The will in question having been probated by a competent
court, the law will not admit any proof to overthrow the
legal presumption, that it is genuine and not a forgery.
Criminal action will not lie against a forger of a will, which
has been duly authorized to probate.

Is it necessary that the will and the codicil be probated


simultaneously?
No. The codicil may be concealed by an interested party
and it may not be discovered until after the will has
already been allowed.
They may be presented and probated one after the other,
since the purpose of the probate proceedings is merely to
determine whether or not the will and the codicil meet all
the statutory requirements for their validity, leaving the
validity of their provisions for further consideration.
Failure to oppose the will does not prevent one from
opposing the codicil.
What are the questions determinable by the probate
court during the probate proper?
1.

Identity whether or not the instrument, which


is offered for probate, is the last will and
testament of the decedent.

2.

Due Execution whether or not the will has


been executed in accordance with the
formalities prescribed by law.

3.

Capacity whether the testator had


testamentary capacity at the time of the
execution of the will.

When may the allowance of a will be set aside?


Since a proceeding for the probate of a will is essentially
one in rem, a judgment allowing a will shall be conclusive
as to its due execution.
Consequently, no question as to the validity of the will
could thereafter be raised, except:
1. By means of an appeal.
2.

By means of a petition for relief from the


judgment by reason of fraud, accident, mistake
or excusable negligence.

3.

By means of a petition to set aside the judgment


by reason of lack of jurisdiction or lack or
procedural process.

4.

By means of an action to annul judgment by


reason of extrinsic or collateral fraud.

*The aforementioned refer to the intrinsic validity of the


will. Consequently, the probate court cannot inquire into
the intrinsic validity of the testamentary dispositions.
Can the probate court, during the probate properly
inquire into the intrinsic validity of the will.
As a general rule, the probate court cannot inquire into
the intrinsic validity of the will.
Exception: if it is to prevent multiplicity of suits.

*Any petition must be done in the reglementary period:


1.

within sixty (60) days after the petitioner learns


the judgment or order to be set aside

Nugid vs Nugid, 17 SCRA 449


When practical considerations demand that the intrinsic
validity of the will be passed upon, before it is probate, the
Court should meet that issue.
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In the case at bar, if the case were to be remanded for


probate of the will, nothing will be gained. On the contrary,
this litigation would be protracted. And for aught that
appears in the record, in the event of probate or if the
court rejects the will, probability exists that the case will
come up once before us on the same issue of the intrinsic
validity or nullity of the will. Result: waste of time, effort,
expense, plus added anxiety.

No. For this does not concern the extrinsic validity of the
will.

Do you think the Court would have ruled otherwise, if


besides the institution of an heir, there were also
legatees and devisees?

No. The court cannot inquire into the intrinsic validity of


the testamentary provisions. Mere moderate entreaties on
the part of the testator, or the fact that the heirs are
omitted does not result into an undue influence that the
will justify an inquiry into the intrinsic validity of the will.

Yes. If such is the case, then it will not be a futile exercise


to remand the case for probate of the will, since, there
would be more than one provision, which shall be decided
upon by the court.
Nepomuceno vs CA, 139 SCRA 207
The court ruled that, the court can inquire as to the
intrinsic validity of the will because there was an express
statement that the beneficiary was a mistress.

X made a will instituting A as a universal heir. But he a B,


one thousand (1,000). He gave one (1) hectare lot to C.
But, he did not give anything to his son S. Can the court
inquire into the intrinsic validity of testamentary
provisions of Xs will?

Revocation
Voluntary act of the
testator.
With or without cause
Maybe partial or total.

Under the law it is illegal to give anything to a mistress, for


that is a cause for disqualification in donations.
The court held that the institution of the mistress is void.
However, the will remains valid.
What are the two (2) kinds of probate proceedings?
1.

2.

Ante Mortem that which is had during the


lifetime of the testator.
Post Mortem that which is had after the death
of the testator.

If you are the testator, which would you prefer? Ante


Mortem or Post Mortem?
Ante Mortem.
Why?
1.

It is easier for the courts to determine the


mental condition of a testator during his lifetime,
than after his death.

2.

Fraud, intimidation and undue influence are


minimized.

3.

If a will does not comply with the requirements


provided by law, it may be corrected at once.

Disallowance
Given by judicial order.
Must always be for a legal
cause.
As a rule: always total
(except, when the ground
of fraud or undue influence
for example, affects only
certain portions of the will).

A holographic will was destroyed without authority. Can


these be probated under Article 839?
General rule: No.
Exceptions:
1.

If there is a photocopy/Xerox of the will.

2.

Testimony of the testator.

What if the will is notarial will? Can it be probated under


Article 839, if it was destroyed or lost?
Yes. Because there are solemnities designed to prove the
will, whenever it is lost or destroyed, such as, witnesses,
notary public and parole evidence.
What are the requisites before a will can be allowed if it
was destroyed or lost?
1.

contents must be proven

2.

due execution must be proven

3.

unauthorized destruction must be proven

In a will, a husband appointed his wife as guardian of his


childrens properties. In the probate order, may the court
pass upon the validity of the appointment?
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Article 839
The will shall be disallowed in any of the following cases:
(1) If the formalities required by law have not
been complied with;
(2) If the testator was insane, or otherwise
mentally incapable of making a will, at the time
of its execution;
(3) If it was executed through force or under
duress, or the influence of fear, or threats;
(4) If it was procured by undue and improper
pressure and influence, on the part of the
beneficiary or of some other person;
(5) If the signature of the testator was procured
by 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.
What are the grounds for disallowance of a will?
Article 839.
*The grounds given in Article 839 are exclusive. Thus, no
other grounds can serve as to disallow a will.
If at the time of the execution of the will, the signature
was procured by fraud and such fraud came not from the
heir, but from a third person, should the will be allowed?
No. The law does not make a distinction as to the who the
author of the fraud is.
Undue Influence?
There is undue influence when a person takes advantage
of his power over the will of another, depriving the latter
of a reasonable freedom of choice.
*In Pascual vs CA, the court held that undue influence
must:

4.

the burden is on the person asserting the


existence of undue influence

5.

not merely a moderate solicitations to the


testator

Intimidation?
There is intimidation when the testator is compelled by a
reasonable and well-grounded fear of an imminent and
grave evil upon his person or property, upon the person or
property of his spouse, descendants or ascendants to
execute the will.

Fraud?
Fraud is present to invalidate a will, if by
misrepresentation and deception, the testator is lead into
making a will, different from what he would have made,
but for misrepresentation and deception.
Violence?
Violence is present, when, in order to compel the testator
to make a will, serious and irresistible force is employed.
*There is no undue influence just because a testator made
his mistress, or his illegitimate child by her, the heir to the
entire free portion. Mere affection, even if illegitimate, is
not undue influence, as long as the giving was voluntary.
(Coso vs Fernandez Deza, 42 Phil 596).
Remember however, that although such will may be
admitted to probate because of the absence of undue
influence, still under our law, a mistress is incapacitated to
inherit. (See Article 1029 in relation to Article 739)
Bugnao vs Ubag, 14 Phil 163
FACTS: X made a will giving all his property to his widow
and leaving nothing to his brothers and sisters. X had no
parents or children. The brothers and sisters opposed the
will on the ground of lack of testamentary intent as well as
undue influence, for it was inherently improbable that a
man would make so unnatural and unreasonable will. It
was proved however, that they had a bitter religious
quarrel with the testator, so bitter that they did not even
attend the funeral of the deceased, despite the fact they
were full grown men and women.

1.

destroy the free agency of the testator

ISSUE: Is there an undue influence?

2.

it must be substantial based on evidence

HELD: No. As a matter of fact, the quarrel gives the reason


for their being excluded from the inheritance.

3.

it must not be a mere conjecture

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Can a fraud and undue influence co-exist?


As a general rule, they cannot co-exist because they are
repugnant to each other. Fraud in the sense of deceit is a
ground of contest separate and distinct from undue
influence.
Exception: In the case of Revilla vs CA, 217 SCRA 583),
undue influence and fraud were found to have existed
together because they are used on different parties
concurrently.

Suppose that Mr X had four (4) legitimate children. In his


will, he stated that A, B and C shall be entitled to their
legitime and D, his youngest son, will get the rest of his
estate. It was later on proved that D, with whom Mr X
had been living had often pleaded with Mr X that he
should be given more than his siblings. Can the will be
disallowed on the ground of undue influence?
No. There was only moderate solicitation or persuasion,
which the testator could have simply refused.
In the preceding problem, what about the fact that D
would always plead to be given more?

Revilla vs CA, 217 SCRA 583


The employment of undue influence by Heracio was not
mutually repugnant to fraud as the petitioner insists, for it
was the means employed by Heracio to defraud his
brothers and sisters of their rightful shares.
There was fraud because Don Cayetano was not appraised
that the document he was signing was a second will,
revoking the disposition of property that he made in the
first will.
Notes:
1. To make a case of undue influence, the free agency of
the testator must be shown to have been destroyed; but
to establish a ground of contest based on fraud, the free
agency of the testator need not be shown to have been
destroyed.
2. It has been observed that fraud and undue influence are
usually the very opposites of each other.
Undue influence compels the testator to yield through
fear and make a will, which he would instantly repudiate if
free and unconstrained, while fraud, although it may
poison the mind of the testator, leads him to use his
testamentary power not only willingly, but often with
pleasure and satisfaction, to disinherit persons who have
the strongest natural claims upon his affections.
3. Concisely stated, fraud willfully deceived free agency,
while undue influence overmasters it.

It is immaterial, for mere inequality in the distribution of


the estate does not by itself prove that there is undue
influence.
*In fact, diversity of apportionment is the very reason for
making a testament, otherwise, the decedent might as well
die intestate.
X executed a will in favor of his friend F, mainly because
the latter asked the former to execute the will, thru a
friendly persuasion. Later, X repented having executed
said will, but did nothing about it. Is there an undue
influence?
No. Apparently, the will can be admitted to probate there
being no undue influence before or after the making of the
will. Subsequent repentance is not one of the grounds
given by the law.
X made a will giving everything to his younger brother A.
Thereafter, it was established that it was A himself, who
made the will. Is this fact, to disallow the will for undue
influence>
No. Refer to the rules.
When there is a mistake?
There is a mistake if the testator did not intend that the
instrument he signed should be his will at the time of
affixing his signature thereto.

4. The intent to deceive the decedent is an essential


element of fraud, avoiding a will, in the absence of any
element of undue influence. Moreover, to invalidate a will,
it must have affected the testator in the very act of making
his will and at the time the will was executed.

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Article 840 to Article 856


Institution of Heirs
Article 840
Institution of heir is an act by virtue of which a testator
designates in his will the person or persons who are to
succeed him in his property and transmissible rights and
obligations.
What is institution of heirs?
It is an act by virtue of which, a testator designates in his
will the person or persons who are to succeed him in his
property and transmissible rights and obligations.
What is the fundamental basis of the law on
testamentary succession?
The fundamental basis is the doctrine, that the will of the
testator, freely expresses in his last will and testament, is
as a general rule, the supreme law which governs the
succession.
What are the requisites for a valid institution?
1.

The will must be extrinsically valid.

2.

The institution must be valid intrinsically (e.g.


the legitime of the heir must not be impaired;
the heir must be certain or ascertainable; there
should be no preterition).

3.

The institution must be effective (e.g. no


predecease, no repudiation by the heir, no
incapacity of the heir).

Notes: Some principles respecting institution of heirs:


1.

Institution being a voluntary act cannot be


allowed to affect the legitime.

2.

In general, the provisions on institution are


applicable to devises and legacies.

3.

There can be an instituted heir only in


testamentary succession (for the heir in intestate
succession is called legal or intestate heir).

4.

A conceived child may be instituted, if the


conditions in Articles 40 and 41 are present
(Article 1025).

Article 841
A will shall be valid even though it should not contain an
institution of an heir, or such institution should not
comprise the entire estate, and even though the person
so instituted should not accept the inheritance or should
be incapacitated to succeed.
In such cases the testamentary dispositions made in
accordance with law shall be complied with and the
remainder of the estate shall pass to the legal heirs.
What is the effect if the will does not contain an
institution of heir?
The rule under Article 841 is that, the will is still valid
although it may not contain an institution of heir.
*Refer this to the immediately preceding problem.
The same is true in case of a partial institution or in case of
a vacancy in the inheritance due to repudiation or
incapacity. The effect in all of these cases is that the
testamentary dispositions, which are made in accordance
with the law, shall be complied, while the remainder shall
pass to the legal heirs in accordance with the law of
intestate succession.
A will, unless otherwise defective is valid even if:
a.

There is no institution of heirs.

b.

The instituted heir is given only a portion of the


estate. (Reason: mixed succession is allowed. See
Escuin vs Escuin, 11 Phil 839).

c.

The heir instituted should repudiate or be


incapacited to inherit.

Would it be advantageous if there is an institution of an


heir?
Yes. It lessens and prevents the effects of intestacy by
giving to those persons who are close to the testator, but
cannot inherit legally.
*The concept of an heir as the continuation of the
personality of the testator has disappeared. An heir is now
in the same position as the legatee or devisee, in the
succession. As such, the institution of heirs should be
understood as applicable to the designation of legatees
and devisees.

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Article 842

Article 844

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.

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.

One who has compulsory heirs may dispose of his estate


provided he does not contravene the provisions of this
Code with regard to the legitime of said heirs.
Is the testators freedom of disposition absolute in
character?
It depends upon whether or not he has compulsory heirs.
When is the freedom of disposition absolute and when is
it not?
It is absolute when the testator has no compulsory heirs.
Thus, the whole estate is disposable. He can therefore,
dispose of his whole estate or any part of it in favor of any
person, provided that such person has the capacity to
succeed (Pecson vs Coronoel, 45 Phil 216).
The testators freedom of disposition is not absolute in
character, if he has compulsory heirs. This is so, because
there is always a portion of the testators estate known as
the legitime which is reserved by operation of law for the
benefit of certain heirs, who are therefore called
compulsory heirs and over which the testator, as a general
rule, can have no testamentary control. Thus, the
testators freedom of disposition extends only to the
disposable free portion of his estate.

If among persons having the same names and surnames,


there is a similarity of circumstances in such a way that,
even with the use of the other proof, the person
instituted cannot be identified, none of them shall be an
heir.
*Article 843 is not mandatory. The designation may be
made in any form, so as long as, there will be no doubt as
to the identity of the heir or heirs instituted.
Is the first name and the last name needed in the
institution of the heir?
Generally, yes. However, the first name or the last name
may be omitted as long as they are determinable by other
circumstances.
Suppose X stated in his will: I hereby institute as heir to
the free portion of my estate the incumbent rector of SBC
at the time of my death. Is the institution valid?
Yes. Because the heir can be determined with certainty.
Testator said, I hereby give 3M to some artists. Is the
institution valid?
It depends.

Is there a necessity for a judicial order of adjudication


even if only one heir is instituted?
Yes. The order of adjudication is the judicial recognition
that in instituting the heir, the deceased did not
contravene the law and that the heir was in no way
disqualified to inherit.
Article 843
The testator shall designate the heir by his name and
surname, and when there are two persons having the
same names, he shall indicate some circumstance by
which the instituted heir may be known.
Even though the testator may have omitted the name of
the heir, should he designate him in such manner that
there can be no doubt as to who has been instituted, the
institution shall be valid.

Yes. If intrinsic and extrinsic evidence can prove which


artists the testator were referring to.
No. If intrinsic and extrinsic evidence cannot prove which
artists the testator were referring to. In this case, no one
will inherit and intestate succession shall apply.
What is the effect if there is doubt as to the institution of
the heir?
Nobody will inherit and intestate succession shall apply.
X executed a will, stating: to my friend, Ronald, who is
taking up law in SBC. It turned out that there are two (2)
Ronalds taking up law studies in SBC and both friends of
X. Who will inherit?
The one which the intrinsic or extrinsic evidence will refer.
In the preceding problem, what about if there is
uncertainty as to the real heir?
Nobody will inherit.
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In the preceding problem, why not give each other of


the inheritance?
This is not possible because only one was intended by the
testator to inherit. To divide the inheritance would be to
frustrate to the testators intention. Moreover, we would
be giving something to a person which the testator
intended to give nothing.
*The provisions of Article 843 and 844 should be applied in
relation to provision of Article 789. From these provisions,
it is clear that the proper test in order to determine the
validity of an institution of her is the possibility of finally
ascertaining the identity of the instituted heir, either by
extrinsic or intrinsic evidence. This test is specially
applicable on the following cases:
1.

If the name and surname of the instituted heir


has been omitted by the testator.

2.

If there has been an error with respect to the


name, surname or circumstances of the
instituted heir.

3.

If the name, surname and circumstances of the


instituted heir are the same as those of other
persons.

4.

If an unknown or uncertain person has been


instituted.
Article 845

Every disposition in favor of an unknown person shall be


void, unless by some event or circumstance his identity
becomes certain. However, a disposition in favor of a
definite class or group of persons shall be valid.

But three (3) months before the death of X, SBC was


totally destroyed by an earthquake. Is the provision still
valid?
No. Because the unknown person can no longer be
determined.
*It is clear that before the disposition can be considered
valid, it is indispensable that the identity of the beneficiary
can be ascertained, either by a past, present or future
event or circumstance. It must, however, be noted that this
requisite is predicated on the fact that the beneficiary must
be in existence at the time of the testators death.
Otherwise, even if it would be possible to determine his
identity by some event or circumstance, the disposition
would still be ineffective on the ground of absolute
incapacity.
Dispositions in favor of a definite class or group of persons
are of course valid, although the particular persons
comprising the specified class or group may be unknown.
The second sentence of Article 845, which recognizes the
validity of such dispositions, is contemplated by provisions
of Article 786 and Article 1030 of the Civil Code.
What are the cases that will invalidate a provision in
favor of an unknown person, but determinable by an
event or circumstance?
1.
2.
3.

designation by a third person


non-existing beneficiary
incapacity or inherit on the part of the
beneficiary
Article 846

Heirs instituted without designation of shares shall


inherit in equal parts.

What is a person incieria (unknown person)?


A person incieria (unknown person) is one who is not
determined or individualized and therefore, cannot be
identified.
*Under Article 845 a disposition in favor of such person
shall be void unless by some event or circumstance his
identity becomes certain.
X stated in his will, I will give P100.00 to the person who
will graduate valedictorian of SBC Law, after my death.
Is the provision valid?

What is the effect if several heirs are instituted as heirs


without designation of shares?
They shall inherit in equal parts.
*The rule under Article 846 should not be interpreted in an
absolute manner. It should be limited only in cases where
all of the heirs are of the same class or juridical condition.
Where there are compulsory heirs among the heirs
instituted, the rule should be applied only to the disposable
free portion.

Yes. Because it refers to an unknown person who can be


determined by an event or circumstance. In this case, the
person is already existing but not yet determined.

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Suppose that it is stated in Xs will, I give A and B and C


my entire estate as my heirs. The net value of such
estate is P120,000.00. How much is each entitled?

Article 848
If the testator should institute his brothers and sisters,
and he has some of full blood and others of half blood,
the inheritance shall be distributed equally unless a
different intention appears.

A
=
P40,000.00
B
=
P40,000.00
C
=
P40,000.00
__________________________
P120.000.00

Article 849

In the preceding problem, would it make any difference if


A is the legitimate son of X, while B and C are merely his
friends?

When the testator calls to the succession a person and his


children they are all deemed to have been instituted
simultaneously and not successively.
Notes:

Yes. Even if the law does not say so it is believed that the
rule in Article 846 cannot be applied absolutely in case one
of those instituted is a compulsory heir, inasmuch as
institution in general refers merely to the free portion.
Therefore, the legitime must be first removed and what
remains will be divided equally.

1. Article 847 deals on individual and collective


institutions. The rule is in the absence of a more specific
designation, the law presumes that those who are
collectively designated shall be considered as individually
instituted in accordance with the presumed will of the
testator.

Hence, the distribution will be as follows:


A

P60,000.00
P20,000.00
B
=
P20,000.00
C
=
P20,000.00
__________________________
P120,000.00

as compulsory heir
as voluntary heir
as voluntary heir
as voluntary heir

*Must be understood as referring to heirs who are of the


same class or juridical condition and, to the portion of the
inheritance of which the testator can freely dispose.
Article 847
When the testator institutes some heirs individually and
others collectively as when he says, "I designate as my
heirs A and B, and the children of C," those collectively
designated shall be considered as individually instituted,
unless it clearly appears that the intention of the testator
was otherwise.
Testator said in his will, I hereby give my entire estate to
A and B and the children of C (D and E). The net value of
the estate is P120,000.00. How much is each entitled?
A
=
P30,000.00
B
=
P30,000.00
D
=
P30,000.00
E
=
P30,000.00
__________________________
P120,000.00

2. Under Article 849, whenever the testator institutes as


his heir a certain person and his children, such institution
must be interpreted to mean, that they are called to
succession simultaneously and not successively. Thus, of
the testator institutes A and his five (5) children as his
heirs with respect to the disposable free portion of the
inheritance, it is clear that such disposable free portion
shall be divided equally among A and the five (5) children.
Take note that the disposition refers to the disposable free
portion.
Testator said in his will I hereby give my entire estate to
C and his children D and E. Net estate is P120,000.00.
How much is each entitled?
C
=
P40,000.00
D
=
P40,000.00
E
=
P40,000.00
__________________________
P120,000.00
*Rule: If the shares of some heirs are designated, while
those of others are not those parts designated shall be
given to their owners and the balance shall be divided
equally among those whose shares are not designed.
Testator said in his will, I hereby institute A,B,C and D as
my heirs. I hereby order that of my estate would be
given to A and of my estate to B. The net value of the
estate is P120,000.00. How much is each entitled?
A
B
C
D

= (1/2 of P120,000.00)
=(1/4 of P120,000.00)
=
=

P60,000.00
P30,000.00
P15,000.00
P15,000.00

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*Rule: If the shares of those whose portions are designated


should consume the entire estate, those whose shares are
not designated will inherit nothing.
Testator said in his will I hereby institute A,B,C and D as
my heir. A would receive of my estate, B and C .
The net value of the estate is P120,000.00. How much
each is entitled to?
A
=(1/2 of P120,000.00)
B
=(1/4 of P120,000.00)
C
=(1/4 of P120.000.00)
D gets nothing

P60,000.00
P30,000.00
P30,000.00

*Rule: Where there is no designation of shares but the


testator has provided that specific things be given to each
heir and such things from only a portion of the estate, the
institution must be considered as without the designation
of shares and the heirs will divide the estate equally, but
the value of the specific things assigned to each must be
included in the amount that should pertain to each.
Article 848 provides if the testator should institute his
brothers and sisters and he has some full blood and others
of half blood, the inheritance shall be distributed equally
unless a different intention appears.
Incase of intestate succession, however, should brothers
and sisters of the full blood survive together with brothers
and sisters of the half blood, the former shall be entitled to
a share double than that of the latter (Article 1006).
Article 850
The statement of a false cause for the institution of an
heir 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.

testator knows that Ms F is not a surgeon but an


embalmer. In short, the testator knows the falsity of the
cause when he instituted Ms F as an heir, yet he instituted
Ms F as an heir (Article 850). Sabi nga nila, in this case, just
ignore the false cause.
Testator said, I hereby institute Dr A to of my entire
free portion because he save my life by operating on me.
It turned out that it was not Dr A who operated on him. Is
this valid?
No. Because it is the fact of saving the testators life that
the testator instituted Dr A as an heir. There was a false
cause that appeared in the face of the will itself.
Testator said, I give of my estate to Dr A. He thought
it was Dr A who saved his life but he did not state this in
the will. Is this valid?
Yes. Because there was no proof of false cause. The reason
for the institution was not mentioned in the will.
*Before the institution of heirs may be annulled under
Article 850, the following requisites must concur:
1.

the cause for the institution of the heir 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 if
he had known of the falsity of the cause

Consequently, where the testators will does not state in a


specific or unequivocal manner the case of such institution,
the annulment of such institution cannot be availed of.
Article 851

Article 850 provides, the statement of a false cause for


the institution of an heir 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.
Consequently, if the validity of an institution of heir is
attacked on the ground that it is based on a false cause, it
is clear that the test which must be applied in order to
resolve the question, is to determine from the will itself
whether or not the testator would not have made the
institution he had known the falsity of such cause.
Testator said, I institute my best friend, Ms F, as heir of
the free portion of my estate because she is a brilliant
surgeon. It turned out that she was not really a surgeon
but an embalmer. Is the provision valid?
Yes. From the fact of the case, it is stated that Ms F is the
testators best friend. So, it can be presumed that the

If the testator has instituted only one heir, and the


institution is limited to an aliquot part of the inheritance,
legal succession takes place with respect to the
remainder of the estate.
The same rule applies if the testator has instituted
several heirs, each being limited to an aliquot part, and
all the parts do not cover the whole inheritance.
Article 852
If it was the intention of the testator that the instituted
heirs should become sole heirs to the whole estate, or the
whole free portion, as the case may be, and each of them
has been instituted to an aliquot part of the inheritance
and their aliquot parts together do not cover the whole
inheritance, or the whole free portion, each part shall be
increased proportionally.
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Testator stated in his will, I institute A and B as my heir.


A to of my estate and B of my estate. What is the
effect of such disposition?
A will get of the testators estate.
B will get of the testators estate.
Legal succession would operate on the remaining .
In the preceding problem, would it make any difference if
A and B were designated as sole heirs?
Yes. In this case, each of their shares will be increased
proportionally as to the remaining free portion.

X institutes A to 1/3, B to and C with the intention


that all of them shall become sole heirs of the whole
estate. The net value of the estate is P120,000.00. How
will you distribute?
First step:
i. A(1/3 of P120,000.00)
=
P40,000.00
B(1/4 of P120,000.00)
=
P30,000.00
C(1/4 of 120,000.00)
=
P30,000.00
_________________________________________
Aggregate share of all the heirs
P100,000.00
ii. net estate

=
P120,000.00
(minus)
aggregate share of all the heirs
P100,00.00
________________________________________
Remaining free portion =
P20,000.00

In the preceding problem, suppose that the net value of


the estate is P120,000.00. How would you distribute the
estate?
First step:
i. A(1/2 of P120,000.00)
=
P60,000.00
B(1/4 of P120,000.00)
=
P30,000.00
________________________________________
Aggregate share of all the heirs
P90,000.00

*The remaining free portion of P20,000.00 shall be


distributed proportionally to the shares of each heirs.
Second step:
Formula:

=
P120,000.00
(minus)
Aggregate share of all the heirs
P90,000.00
_________________________________________
Remaining free portion
P30,000.00

NE x share of each heir___


Aggregate share of all heirs

ii. net estate

*The remaining free portion of P30,000.00 shall be


distributed proportionally to the share of each heirs.

P120,000.00 x P30,000.00
P100,000.00

Second step:

P36,000.00

NE x share of each heir______


Aggregate share of all the heirs

P120,000.00 x P30,000.00
P10,000.00

P120,000.00 x P60,000.00
P90,000.00

P36,000.00

Formula:

P120,000.00 x P40,000.00
P100,00.00
P48,000.00

P80,000.00

Hence, the final distribution is:

P120,000.00 x P30,000.00
P90,000.00

P40,000.00

A
=
P48,000.00
B
=
P36,000.00
C
=
P36,000.00
___________________________
P120,000.00

Hence, the final distribution is:


A
B

=
=

P80,000.00
P40,000.00
___________
P120,000.00

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Article 853
If each of the instituted heirs has been given an aliquot
part of the inheritance, and the parts together exceed the
whole inheritance, or the whole free portion, as the case
may be, each part shall be reduced proportionally.
Testator stated in his will, I will give A of my estate; B
and C . Suppose that the net estate is worth
P120,000.00. Distribute the estate.

CHART:
Amount Received As Instituted

Deduction = Amount Actually


Received

A=P60,000.00
- P12,000.00 =
P48,000.00
B=P60,000.00
- P12,000.00 =
P48,000.00
C=P30,000.00
- P6,000.00 =
P24,000.00
______________________________________________
P150,000.00
- P30,000.00 =
P120,000.00

First step:
Article 854
i. A(1/2 of P120,000.00)
=
P60,000.00
B(1/2 of P120,000.00)
=
P60,000.00
C(1/4 of P120,000.00)
=
P30,000.00
_________________________________________
Aggregate share of all heirs
P150,00.00
ii. net estate

=
P120,000.00
(minus)
Aggregate share of all heirs
P150,000.00
__________________________________________
Excess
= (negative) P30,000.00

*The excess of P30,000.00 shall be deducted proportionally


from the shares of each heir.
Second step:
Formula:

NE x share of each heir____


Aggregate share of all heirs

P120,000.00 x P60,000.00
P150,000.00

P48,000.00

P120,000.00 x P60,000.00
P150,000.00

B
C

=
=

P48,000.00
P120,000.00 x P30,000.00
P150,000.00

P24,000.00

Hence, the final distribution is:


A
B

=
=

P48,000.00
P48,000.00

The 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; but the
devises and legacies shall be valid insofar as they are not
inofficious.
If the omitted compulsory heirs should die before the
testator, the institution shall be effectual, without
prejudice to the right of representation.
*Pretirition must not be confused with disinheritance. The
latter refers to the deprivation of a compulsory heir of his
legitime, for cause expressly stated by law. The essential
difference between the two, consists in the fact, that in
pretirition, the deprivation of a compulsory heir of his
legitime is tacit or implied while in the disinheritance the
deprivation is express.
What must be the character of the omitted heir in order
that there will be preterition?
The heir omitted must be a compulsory heir in the direct
line.
*Article 854 does not make any qualification or distinction
whatever. Thus, it is immaterial whether the heir omitted
in the testators will is legitimate or illegitimate.
Consequently, the preterition of an acknowledged natural
child shall result in the total annulment of the institution of
the heir. (Lajom vs Leuterio, 107 Phil 651)
Who are those considered as compulsory heirs in the
direct line?
1.

Legitimate children and descendants with


respect to their legitimate parents and
ascendants.

2.

Legitimate parents and ascendants with respect


to their legitimate children and descendants.

3.

The father or mother of an illegitimate children.

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What must be the character of omission in order that


there will be preterition?

Is there preterition when the omitted heir is the surviving


spouse?

The omission of the compulsory heir must be complete


and total in character, so that, he receives nothing from
the testator at all. Consequently, if the testator leaves any
property to the heir who is alleged to have been omitted,
by any title whatsoever, there can be no preterition. This is
true even when he leaves to such compulsory heir a share
which is less than his legitime. In this case, Article 906 of
the Code applies, the heir can ask for the completion of his
legitime (Amar vs Duncan, 17 SCRA 590).

No. A spouse although considered a compulsory heir, is


not compulsory heir in the direct line
(ascendant/decendant).

What is the effect if preterition occurs?


According to Article 854, the preterition of a compulsory
heir in the direct line, shall have the effect of annulling the
institution of heir but the devises and legacies shall be
valid, insofar as they are not inofficious.
What is inofficious?
That amount which can be contained within the free
portion.
What is preterition?
It is the omission in testators will 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.
Requisites:
1.

The heir omitted must be compulsory heir in the


direct line.

2.

The omission must be complete and total in


character in such a way that the omitted heir
does not and has not received anything at all
from the testator by any title whatsoever.

3.

The compulsory heir omitted should survive the


testator.

Is there preterition when the omitted heir is an adopted


child?
Yes. The adopted child is by legal fiction considered as a
compulsory heir in the direct
Moreover, under the law, the adopted child has the same
right as that of a legitimate child (Family Code and the
1998 Domestic Act).

What about a parent of testator is he a member of the


direct line?
Yes. An Ascendant.
Suppose that an heir of the direct line dies ahead of the
testator, is there preterition?
Jurado: There is no preterition. The institution shall be
effectual, but it is without prejudice to the right of
representation when it properly takes place.
Tolentino: If the compulsory heir who has been preterited
dies before the testator, it is the same as if there had been
no preterition.
However, the right of representation should not be lost
sight of. Thus, if the preterited heir has legitimate children
and descendants entitled to represent him and they have
also been left out in the will, the institution of heirs shall
be annulled just the same, even if the preterited heir died
before the testator. (Aptly stated, there is preterition in
the right of representation because the preterition is
determined at the time of death of the testator.)
This means that preterition must always be determined in
relation to the persons, who are compulsory heirs at the
time of the death of the testator and not in relation to
those who never became such.
Transcribers Opinion: Jurado and Tolentinos view may be
reconciled.
There will be no preterition if the omitted compulsory
heir, is not survived by his compulsory heirs in the direct
line.
But, there will be preterition in the right of representation
if the omitted compulsory heir is survived by his
compulsory heirs in the direct line.
Suppose that the testator in his last will said, I have two
(2) children, A and B. I give A of my estate. There is
nothing in the will which expressly preterited B. Is there
preterition?
No. Since, there is still of the estate that is left and such
remaining portion can be applied to Bs legitime/share.
The omission must be complete and total in character, so
that, the omitted receives nothing from the testator.
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In the preceding problem, how will the estate be


distributed?
B can ask for the completion of his legitime (Article 906).
Suppose that A was designated as the sole heir. B was
not mentioned. During the lifetime of the testator he
donated to B a land worth P10,000.00. Is there
preterition?
No. Because B has received something from the testator
(the land worth P10,000.00).
Moreover, a donation inter vivos actually given to a
compulsory heir is considered as an advance on his
inheritance.
Suppose that T said in his will, I hereby give my son A
1/10 of my estate. Nothing was mentioned about the
rest of the 9/10. Is there preterition?

d.

How will you distribute the estate?


Legitime

Voluntary Share

Amount Received

A: P20,000.00 + P10,000.00
= P30,000.00
B: P20,000.00 + P10,000.00
= P30,000.00
C: P20,000.00 + P10,000.00
= P30,000.00
G:
+ P30,000.00
= P30,000.00
F: instituted is annulled
____________________________________________
P60,000.00
P60,000.00
P120,000.00

Explanation: As per computation, due to the preterition of


C, Fs institution is annulled. Hence, a will get his legitime
of P20,000.00 plus his voluntary share of P10,000.00; B
and C will get the same amount as A. G will get his legacy
of P30,000.00

No. Since, there is still the remaining 9/10 of the Ts estate


for the share of his other compulsory heirs.

Testator has three (3) legitimate children A, B and C. In


his will he provided I hereby give of my estate to A,
1/10 to b and of my estate to my friend, F. Suppose
that the net estate is P120,000.00. Is there a preterition?

Suppose that T in 1985 said in his will, I give my entire


estate to my sons A and B. T died in 1995, four (4)
months later, Ts wife gave birth to C. Is there a
preterition?

None. Since there is still a portion (1/10) of the estate


from which the share of C may be taken from.
Article 855

Yes. Compulsory heir in the direct line may be living at the


time of the execution of the will or born after the death of
the testator.
X has three (3) legitimate children, A, B and C. When he
executed his will, X instituted as heirs to his entire estate,
A and B and his friend, F. He also gave a legacy of
P30,000.00. The value of the net estate is P120,000.00
a.

What is the effect of preterition on the


institution of heirs?

The institution of F will be annulled.


c.

In the preceding problem, how should the estate be


distributed?

Is there preterition?

Yes. Because C was not mentioned in the will nor was he


given anything.
b.

The share of a child or descendant omitted in a will must


first be taken from the part of the estate not disposed of
by the will, if any; if that is not sufficient, so much as may
be necessary must be taken proportionally from the
shares of the other compulsory heirs.

What about the legacy given to G?

The legacy given to G is effective because it can be


contained within the free portion.

Under Article 855, the share of a child or descendant


omitted in a will must first be taken from the part of the
estate not disposed of by the will, if any; if that is not
sufficient, so much as may be necessary must be taken
proportionally from the shares of the other compulsory
heirs.
Tolentino: The law should have stated the share of the
compulsory heir omitted in a will must be first taken from
the part of the estate not disposed of by the will if any; if
that is not sufficient, so much as may be necessary must
be taken proportionally from the shares of the other heirs
given to them by will.

In this case, the free portion (1/2 of P120,000.00)


P60,000.00. Hence, the legacy given to G in the amount of
P30,000.00 can be contained therein. (P60,000.00
P30,000 = P30,000.00 free portion).
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Institution

Reduction/
Increase
-P1,428.57

P30,000.00
(-P10,000.00)

B
C

P12,000.00
None

+P8,000.00
+P20,000.00

P60,000.00

-P8,571.43

To be Received
P20,000.00 (legitime)
+
P8,571.43 (DFP)
= P28,571.43
P20,000.00 (legitimte)
P20,000.00
(legitimate)
P51,428.57

X said in his will, I give to S my legitime son, his legitime


and I give the entire free portion to my friend, F. F has a
legitimate son B. F died a day before X. Can be get of
the estate?
No. A voluntary heir does not transmit any right, if he
predecease the testator.
In the preceding problem, suppose that F died a day after
X. Is B now entitled to of the estate?

*Proportional decrease on As share is only P10,000.00


because of his legitime.

Yes. In this case, ownership has been vested upon F at the


time of Xs death.

Procedure as to the reduction of the heirs share.

Suppose S dies ahead. Are the heirs of S entitled to


anything?

Legitime

Voluntary

Amount to be Reduced

A=P20,000.00
P10,000.00 / (1/7) 10 = P1,428.57
B=P20,000.00
C=P20,000.00
F=
P60,000.00 / (6/7) 10 = P8,571.43
______________________________________________
P60,000.00 + P70,000.00 = P130,000.00 (Aggregate
Amount)
- P120,000.00 (Net Estate)
_____________________
P10,000.00 (Amount to
be Reduced)
Formula:
Voluntary Share x Amount to be Reduced
Aggregate Amount of Voluntary Share
A=

P10,000.00 x P10,000.00
P70,000.00

A=

P1,428.57

F=

P60,000.00 x P10,000.00
P70,00.00

F=

P8,571.43

A + F = P1,428.57 + P8,571.43 = P10,000.00


Article 856
A voluntary heir who dies before the testator transmits
nothing to his heirs.
A compulsory heir who dies before the testator, a person
incapacitated to succeed, and one who renounces the
inheritance, shall transmit no right to his own heirs
except in cases expressly provided for in this Code.

Yes.
The rule is different in case of a compulsory heir. In this
case, there is a right of representation. However, what is
transmitted to the representatives of the compulsory heir,
is his right to the legitime, and not upon the free portion, if
he has also been instituted by the testator to the whole or
aliquot part of such free portion.
Notes:
1. Thus, the general rule is, an heir who dies before the
testator, shall transmit no right to his own heirs. A
distinction, however, must be made between the case of a
voluntary heir and the case of a compulsory heir.
2. The rule is absolute with respect to a voluntary heir.
Reason: Since the right of representation does not apply
to the heirs of a voluntary heir, it necessarily follow, that
when a voluntary heir predeceases the testator or
incapacitated, or renounces the inheritance he cannot
transmit any right to the heirs. The same is true when a
person is designated as a devisee or legatee, with respect
to a determinate property. Since, a devise or legacy is a
charge upon the free portion of the inheritance, it
necessarily follows, that when the designated devisee or
legatee dies before the testator, no right whatsoever is
transmitted to the heirs of such devisee or legatee.
3. It is different in the case of a compulsory heir. It is
nd
evident from the provision of the 2 paragraph of Article
856. The exception referred to is of course the right of
representation. It must be noted, however, that what is
transmitted to the representatives of the compulsory heir
is his right to the legitime and not to the free portion in
case he has also been instituted by the testator, to the
whole or to an aliquot part of such free portion. This is so,
because of the principle that in testamentary succession,
the right of representation pertains only to the legitime
and not to the free portion.
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What is the effect of incapacity?


Incapacity has the same effect as predecease. A voluntary
heir, who is incapacitated to succeed from the testator
shall transmit no right whatsoever to his own heirs.
A compulsory heir on the other hand may be represented
but only with respect to his legitime (Article 1035). The
same is true in case of disinheritance.
What is the effect of repudiation?
The heir who repudiates his inheritance whether he is
voluntary or a compulsory heir cannot transmit any aright
to his own heirs. As enunciate under Article 977, heirs who
repudiate cannot be represented.
Article 857 to Article 870
Substitution of Heirs
Article 857
Substitution is the appointment of another heir so that he
may enter into the inheritance in default of the heir
originally instituted.
Article 858
Substitution of heirs may be:
(1) Simple or common;

Article 861
If heirs instituted in unequal shares should be reciprocally
substituted, the substitute 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.
Article 862
The substitute shall be subject to the same charges and
conditions imposed upon the instituted heir, unless and
testator has expressly provided the contrary, or the
charges or conditions are personally applicable only to
the heir instituted.
Article 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, shall be valid and
shall take effect, provided such substitution does not go
beyond one degree from the heir originally instituted,
and provided further, that the fiduciary or first heir and
the second heir are living at the time of the death of the
testator.
Article 864

(2) Brief or compendious;

A fideicommissary substitution can never burden the


legitime.

(3) Reciprocal; or

Article 865

(4) Fideicommissary

Every fideicommissary substitution must be expressly


made in order that it may be valid.

Article 859
The testator may designate one or more persons to
substitute the heir or heirs instituted in case such heir or
heirs should die before him, or should not wish, or should
be incapacitated to accept the inheritance.
A simple substitution, without a statement of the cases to
which it refers, shall comprise the three mentioned in the
preceding paragraph, unless the testator has otherwise
provided.
Article 860
Two or more persons may be substituted for one; and one
person for two or more heirs.

The fiduciary shall be obliged to deliver the inheritance to


the second heir, without other deductions than those
which arise from legitimate expenses, credits and
improvements, save in the case where the testator has
provided otherwise.
Article 866
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 heirs.

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Article 867
The following shall not take effect:

Is it advisable to include a substitution in a will?


Yes. Because it:

(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;

1.

prevents the effect of the preterition

2.

prevents the falling of property into the wrong


hands

(2) Provisions which contain a perpetual prohibition to


alienate, and even a temporary one, beyond the limit
fixed in article 863;

3.

awards those who are good to the testator, but


are not compulsory heirs.

(3) Those which impose upon the heir the charge of


paying to various persons successively, beyond the limit
prescribed in article 863, a certain income or pension;
(4) Those which leave to a person the whole 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.
Article 868
The nullity of the fideicommissary substitution does not
prejudice the validity of the institution of the heirs first
designated; the fideicommissary clause shall simply be
considered as not written.

What are the kinds of substitution?


Substitution of heirs may be:
1.

simple or common (vulgar)

2.

brief or compendious

3.

reciprocal

4.

fideicomissary (Article 858)

Simple or common that which takes place when the


testator designates one or more persons to substitute the
heir or heirs instituted, in case such heir should:
a.

die before him, or

Article 869

b.

should not wish to accept the inheritance, or

A provision whereby the testator leaves to a person the


whole or part of the inheritance, and to another the
usufruct, shall be valid. If he gives the usufruct to various
persons, not simultaneously, but successively, the
provisions of Article 863 shall apply.

c.

should be incapacitated to accept the


inheritance

Article 870
The dispositions of the testator declaring all or part of the
estate inalienable for more than twenty years are void.
General Limitation: If the heir for whom a substitute is
appointed is a compulsory heir, the rule is that, the
substitution cannot effect the legitimate of such heir.
Since the right to appoint a substitute for the heir
instituted is based on the testators freedom of
disposition, the same limitation which is imposed upon
such freedom of disposition must also be imposed upon
such freedom to appoint a substitute. This is clear from
the provisions of Article 842, 864, 872 and 904.

Brief or Compendious
Brief when the testator designates two (2) or more
persons to substitute for only one (1) heir.
Compendious when there is only one (1) person
designated by the testator to substitute for two (2) or
more persons.
Reciprocal when two (2) or more persons are not only
instituted as heirs, but there are also designated mutually
as substitutes for each other.
Fideicomissary that which takes place, when 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, provided that such
substitution:
a.

Does not go beyond one (1) degree from the heir


originally instituted?

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b.

The fiduciary or first heir, and the second heir


are living at the time of the death of the testator.

X said in his will, I hereby institute my friend A as heir


and B as substitute in case A predecease me. A did not
die, but was incapacitated. Can B inherit?
No. Since it was expressly stated that the substitution shall
take place only in case a predeceases X.
In this case, A did not predecease X. He was instead
incapacitated.
X said in his will, I hereby institute A as heir and B as
substitute. A repudiated. Can B inherit?
Yes. Where the simple substitution is without any
statement of the cases to which it refers, it shall comprise
the three:
1.

the death of the heir

2.

incapacity

3.

repudiation

X said in his will, I institute A to of my estate, B to


and C to . I hereby designate all of them as reciprocal
substitutes of each other. B predeceased X. The value of
the net estate is P600,000.00. Distribute.
Instituted Amount + Share from Substitution = Amount Received

A=P300,000.00 + P100,000.000
= P400,000.00
B=P150,000.00 +P50,000.00
=P200,000.00
_____________________________________________
P400,000.00 +P150,000.00
=P600.000.00
(NE)

(Instituted Amount)

(Amount to be Shared)

P60,000.00 P450,000.00

=P150,000.00

Formula:
Share of Heir x Amount to be Shared
Aggregate Amount of Institution
A

P300,000.00 x P150,000.00
P450,000.00

P100,000.00

Thus, any of the three instances may be a cause for


substitution.

P150,000.00 x P150,000.00
P450,000.00

*With respect to reciprocal substitutions, the following


rules as to the shares of the substitute is given by Jurado:

P50,000.00

1.

2.

If there are only two (2) instituted heirs and they


are designated mutually as substitutes for each
other, the substitute shall acquire the entire
share of the heir who dies, renounces or is
incapacitated, even if the shares of both are
unequal. Thus, if A is instituted to 2/3 of the
entire inheritance and B is instituted to 1/3, and
A dies before the testator, or is incapacitated to
inherit, B will acquire the 2/3 portion which is
rendered vacant as a substitute and the
remaining 1/3 as an instituted heir.
If there are three (3) or more instituted heirs and
they are designated mutually as substitute for
each other, the substitutes shall have the same
share in the substitution as in the institution.

What are the effects of substitution?


The effects once the substitution has taken place are the
following:
1.

The substitute shall take over the share that


would have passed to the instituted heir.

2.

The substitute shall be subject to the same


charges or conditions imposed upon such
instituted heir.

*The rule provided under number 2 that the substitute


shall be subject to the same charges or conditions imposed
upon such instituted heir as aforementioned, is subject to
the following exceptions:
1.

When the testator has expressly provided the


contrary.

2.

When the chargers or conditions are personally


applicable only to the heir instituted.

Thus, if the testator has imposed upon his nephew, whom


he had instituted as his heir to the entire free portion of his
estate, the condition is that he shall get married to a
certain girl and a niece of the testator is substituted for the
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nephew, it is evident that the condition is personally


applicable only to such nephew.

the requirement that there must be a duality of heirs or


double institution of heirs in the substitution.

When is the fideicomissary substitution?

Since, both the fiduciary and the fideicomissary are true


heirs of the testator, it is essential that in order to be
capacitated to inherit, that both of them must be living at
the moment the succession opens.

It takes place whenever the testator institutes a person as


heir, entrusting him with the obligation to preserve and to
transmit to a second heir, the whole or part of the
inheritance.

From whom does the fideicomissary inherit? Is it from the


testator (fideicomitente) or from the fiduciary?

It exists with the concurrence of the three (3) persons:


1.

Fideicomitente the testator who orders the


substitution.

2.

Fiduciary the first heir charged with the


preservation and the transmission of the
inheritance (heredero fiduciaro).

3.

Fideicomissary the second heir to whom the


inheritance is transmitted (heredero
fideicomissario).

*A fideicomissary substitution can never burden the


legitime. Thus, it must be taken from the free portion of
the estate.
What are the requisites of a fideicomissary substitution?
1.

There must be a fiduciary and fideicomissary.

2.

Obligations to preserve and transmit on the part


of the fiduciary.

3.

They must be one (1) degree apart in


relationship.

4.

Both must be living at the time of the death of


the testator.

It is evident from the provision of Article 866 that the


fideicomissary acquires a right over the inheritance from
the moment of death of the testator. Thus, the
fideicomissary inherits from the testator (fideicominente)
and not from the fiduciary.
How may a fideicomissary substitution be made
expressly?
1.

By giving it the name of fideicomissary


substitution; or

2.

By imposing upon the fiduciary the absolute


obligation to preserve and to deliver the
property to a second heir.

T said in his will I institute my friend F as a fiduciary heir


and S as fideicomissary. Is there a fideicomissary
substitution?
Yes. As they are designated as such by name.
In the preceding problem, upon the death of T, F will get
the property. When is F supposed to transmit the
property to S?
1.

If T designates a day for the transmission or


delivery by limiting the period, in which the
fiduciary heir may enjoy the property or
inheritance, such designation shall be respected.

2.

If he does not fix a period for the transmission or


delivery, it is presumed that he leaves the matter
to the discretion of the fiduciary.

3.

If there is a doubt or litigation regarding the time


for such transmission or delivery, it is presumed
that it would be made after the death of such
fiduciary.

*Limitation to a Fideicomissary Substitution


1.

The substitution must not got beyond one (1)


degree from the heir originally instituted.

2.

The fiduciary and the fideicomissary must be


living at the time of the death of the testator.

3.

The substitution must not burden the legitimate


of compulsory heirs.

4.

The substitution must be made expressly.

Why must both heir be living?


Because of the duality of the inheritance. The rule that
both the fiduciary and the fideicomissary must be living at
the time of the death of the testator, is in conformity with

What are the rights of the fiduciary?


He acquires upon the death of the fideicomitente all of the
rights of a usufruactuary, until the moment of delivery to
the fideicomissary.

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Pending the transmission or delivery, he possesses the


beneficial ownership of the property although the naked
ownership is vested in the fideicomissary.

In the preceding problem, why is there such an


imposition?
1. To give more impetus to the socialization of the
ownership of property.

Can a fiduciary alienate the property?


2.
No. He has no power of alienation but he may alienate his
right of usufructuary over the property.
Suppose the fiduciary has creditors, can they run after the
properties subject to fideicomissary substitution?

To prevent the perpetuation of large holdings


which give rise to agrarian trouble.

Under Article 867, give the provisions which shall not


effect?
Article 867.

No. However, the creditors may recover the fruits of the


property while the same is still in the hands of the
fiduciary.
T said in his will, I designate as my heir Mr Ricalde and
Mr Horia as fideicomissary. Is there a fideicomissary
relationship?
No. Mr Ricarde and Mr Horia are not related by one
degree.
What is meant by one degree?
There are two (2) views with respect to the meaning of
one degree, but the court construed it as referring
generation.
First view: it is limited only to degrees in relationship or it
refers to generation. So, it is only between parents and
children

If there are provisions in the will which perpetually


prohibits alienation. Is it valid?
Under Article 867(2), if the prohibition is perpetual or even
if temporary beyond the limit set forth in Article 863 (the
limit here refers to one(1) degree, the same shall not take
effect.
Moreover, following Article 870, if the testator prohibits
alienation for a definite period of time, it cannot exceed
twenty (20) years.
In the preceding problem, why the prohibition?
To prevent the entail of property or its withdrawal from
circulation.
X instituted his friend F to the free portion of his estate,
with a perpetual prohibition to alienate. Is the
prohibition valid?

Second view: it refers to transmission of property


No. Article 870.
*In the case Ramirez vs Ramirez, the Supreme Court
st
adopted the 1 view. The court held, degree must be
construed as generation. Hence, the Code should be
construed as that, the second heir must be related to and
be one generation from the first heir.
In the case of Arenas vs Arenas, the substitution would
have been void because the fideicomissary was not one (1)
degree apart from fiduciary. However, the Supreme Court
deferred to rule on such matter. The court allowed Vicente
to administer the property and left the question as to one
degree issue for further consideration.
Suppose that a condition was imposed that
fideicomissary can dispose of the property only after
twenty one (21) years. Is the condition valid?

Will F inherit?
Yes.
In relation to Article 876 (2), is it possible to violate
Article 863?
Yes. The limitation as to the one degree limitiation.
Article 863 (2) provision which contain:
1.

a perpetual prohibition to alienate

2.

even a temporary one, beyond the limit fixed in


Article 863

No it is void. Article 870 provides, the dispositions of the


testator declaring all or part of the estate inalienable for
more than twenty (20) years are void.

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X instituted F to the free portion of his estate. X also


provided that the land shall be alienable for a period of
twenty (20) years after his death. C died in 1980, ten (10)
years after F died leaving the property to his son A. After
two (2) years, A died leaving the property to his son B.
Three (3) years after, B died leaving the property to C.

Illustration:
X

five (5) years

five (5) years

five (5) years

five (5) years

Illustration:
X

ten (10) years

two (2) years


Is it valid?

three (3) years

two (2) years

The obligation to pay is valid only from F to B. When it


comes to C, D and A, it is no longer obliged to pay,
considering that C is already two (2) degrees away from F,
while D is three (3) degrees away.

Can F alienate the property?

Article 869

No.

X said, I give my property in Manila to my friend A, but F


will have the usufruct for ten (10) years, Fs son B for two
(2) years and Bs son C for two (2) years.

What about A?
A cannot alienate because only twelve (12) years have
passed from the death of X.

Illustration:
X

ten (10) years

two (2) years

three (3) years

What about B, can he alienate the property?


Yes. B can now alienate the property. While it is true that
only twelve (12) years have passed since the death of X
(the prohibition to alienate is twenty (20) years), B can
now alienate the property, otherwise the one degree
limitation (Article 867 (2) in relation to Article 863) will be
violated.
In this case, B is already two (2) degrees away from the
heir (F) originally instituted.
*Article 867 (2) in relation to Article 863, Provisions which
contain a perpetual prohibition to alienate and even a
temporary one, beyond the limit fixed in Article 863. No
author has fully explained as to what does the phrase,
and even a temporary one, beyond the limit fixed in
Article 863 or if it they have ever explained it, the
accuracy of their explanation is doubtful. Nevertheless,
Dean Navarrosaid, the phrase refer to one degree
limitation.

Is the aforementioned valid?


The usufruct is valid only from F to B. When it comes to C,
the usufruct is no longer valid considering that C is already
two (2) degrees away from F.
Therefore, after Bs death, the ownership of the property
will now be consolidated to A. C will no longer enjoy the
usufruct.
*Article 869, A provision whereby the testator leaves to a
person the whole or part of the inheritance and to another
the usufruct, shall be valid. If he gives the usufruct to
various persons simultaneously, the provisions of Article
863 shall apply.

Article 867 (3)


X said, I give the free portion of my estate to my friend A,
but he shall pay the ten percent (10%) of its fruits to F for
five (5) years, to Fs son B for five (5) years, to Bs son C
for five (5) years and to Cs son D for another five (5)
years.

Hence, in the preceding problem, the one degree


limitation shall also be applied.

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PCI Bank vs Escolin


The provision in question is a simple case of simultaneous
institution of heirs, whereby the institution of Hodges is
subject to a partial resolutory condition, the operative
contingency of which is coincidental with that of the
suspensive condition of the institution of his brothers and
sisters-in-law, which manner of institution is not prohibited
by law.
Crisologo vs Singson
The testamentary clause under consideration does not call
the institution of fideicomissary substitution nor does it
contain a clear statement that Consolacion enjoys only a
usufructuary right, the naked ownership being vested in
the brother of the testatrix.
The will, therefore, establishes a simple or common
substitution, the necessary result of which is that, upon the
death of the testatrix, Consolacion became the owner of an
undivided half of the property. She can therefore, demand
partition.
Can there be several transfers?
Yes. It is possible to establish fideicomissary substitution in
favor of an unlimited number of persons, provided that, all
of them are one generation from the first heir and are
living at the time of the death of the testator.
Hence, the testator may institute X and provide that the
property shall be preserved and upon Xs death shall be
transmitted to P (father of X); and after two (2) years, to M
(mother of X); after five (5) years, to A (son of X); and after
another five (5) years, to B (daughter of X).
Take note that all of them is one degree removed from X,
the first heir.
*There are as many substitute in fideicomissary
substitution, as long as they are one degree apart in
relationship (e.g. father to son, father to daughter and
vice-versa, or mother to son, mother to daughter or viceversa).

Illustration:
X

A (fiduciary)

(fideicomissary) B

D and E. B as fideicomissary substitute, or a second heir,


acquired a right to the subject property upon the death of
X in 1985. When B died in 1988, his right over the subject
property passed to his children D and E. Therefore, D and E
are now entitled to the subject property, to the exclusion
of all others.
Article 866 provides, 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 heirs.
In the preceding problem, what about if C claims that the
subject property is part of As (his father) estate,
therefore he is entitled to his legitime. Is Cs claim
tenable?
No. C cannot claim his right of legitime because the
subject property is not part of As estate. A has only a
beneficial ownership (usufructuary) over the property. It is
B who has the naked ownership (legal title). Therefore,
only D and E are entitled to it.
Suppose B died ahead X. Will D and E still inherit?
No. D and E will not inherit. In order that the transmission
of the rights of the fideicomissary to his own heirs may
take place, it is necessary that he should survive testator. If
he dies before the testator, the substitution is
extinguished.
Suppose A predeceased X. Can B inherit from X?
There are two views.
Strictly speaking : No.

X instituted his friend A as a fiduciary and B as


fideicomissary. F has two (2) children, B and C. B on the
other hand, has two (2) children, D and E. X died in 1985,
B died in 1988, while A died in 1999. D and E as against C
are now claiming that they have a sole right to the
property subject of the fideicomissary substitution. Who
will inherit?

Liberally speaking : Yes. Because ultimately, the project


subject of fideicomissary substitution will go to the
fideicomissary.
The fiduciary has only a temporary possession.
Furthermore, the same may now be considered as simple
substitution

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T said in his will, I give my property, a farm in Bulacan,


to my friend A and its usufructuary to B for five (5) yeas.
After which, C, Bs son will have the usufruct for five (5)
years and on to D for another five (5) years. Who holds
the naked ownership of the property?
A holds the naked ownership of the property.
Under Article 869, A provision whereby the testator
leaves to a person the whole or part of the inheritance, and
to another the usufruct, shall be valid. If he gives the
usufruct to various persons, not simultaneously, but
successively, the provisions of Article 863 shall apply.
Tolentino: When the testator leaves his property in naked
ownership to one person and in usufruct to another, upon
the expiration of the latters right the former acquires such
usufruct, thereby consolidating the absolute ownership
himself. But he should be considered as a mere substitute
or second heir of the usufructuary, inasmuch as high right
springs from an independent institution and not merely in
subrogation of the usufructuary. There would be a real
substitution however, when the testator calls a third
person to succeed the usufructuary. If more than one
person is called successively all of them must be living at
time of the testators death and they must not be beyond
one degree.
Since the heir instituted to the naked ownership, upon
consolidating absolute title at the expiration of the
usufructuary, does not succeed the latter as substitute, it
is clear that he is a first heir. Being so, the testator, may
also provide that after the consolidation of ownership in
such heir, he may still be substituted by others within the
limits of Article 863 (one degree limitation).

In the aforementioned case, the applicable provision is


Article 870, which provides, that the prohibition, must not
exceed twenty (20) years. The substitution in this case is
not fideicomissary.
The answer would have been different if G was obliged to
preserve and transmit the property to his children.
Vda de Arenas vs Arenas
The substitution would have been void because the
fideicomissary was not within one degree away from
fiduciary. However, the court deferred the rule on such
matter, because the issue considered was, whether or not
the prohibition to alienate was void. In this case, it was not
because there was no permanent prohibition. It was
subject to the nephews death or renunciation.
X instituted his father A as fiduciary and B as a substitute.
A has two (2) sons, B and C. B has a son, D. B died in
1989, while X died in 1990. Is there a valid
fideicomissary?
Illustration:
X (+1990)

(fideicomissary + 1989)

A (fiduciary)

Can D enjoy the usufruct?

No. Because the fideicomissary or the second heir died


ahead of the testator. The law requires that both the
fiduciary and the fideicomissary must be living at the time
of the testators death.

No. D is not one degree in relationship from B.

In the preceding problem, will A inherit?

T said in his will, I give my estate to G with his children


as substitute provided that they cannot alienate the
property for twenty (20) years. T died. After five (5)
years G died. Gs children held the property for ten (10)
years. Can they now alienate the property?

Yes. Article 868 provides, the nullity of the


fideicommissary substitution does not prejudice the
validity of the institution of the heirs first designated; the
fideicommissary clause shall simply be considered as not
written.

No. Because the prohibition is twenty (20) years from


death. They only possessed the property for fifteen (15)
years.

What if it was A who died ahead of X, will B (the


fideicomissary) inherit? Or is there a valid fideicomissary
substitution?

The prohibition is valid. Under Article 870, the prohibition


must not exceed twenty (20) years.

Strictly speaking No.

The prohibition against permanent or temporary


alienation under Article 867 (2) (one degree limitation)
applies only to fideicomissary substitution.

Liberally speaking: Yes. Because ultimately, the proper


subject of fideicomissary will go to the fideicomissary.
The fiduciary has only a temporary possession.

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Furthermore, the same may now be considered as a


simple substitution.
Navarro on the Arenas Case:
Does not the special administration of Vicente of
rd
the property (3 group of properties) violate the
prohibition of Article 870?
The Supreme Court said no. Because:
1.

It is subject to Vicentes death or


refusal; and

2.

Vicente has a right to alienate the fruits


of the properties; while, the children of
Carmelo, who has the naked ownership
over the property, can alienate them.

Distinguish this case with the case of Ramirez


with respect to the one degree issue dahil sabi
ng court hayaan na muna si Vicente na magadminister, after that, saka na lang pag-usapan.

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Article 871 to Article 885


Conditional Testamentary Dispositions and
Testamentary Dispositions with a Term
Article 871
The institution of an heir may be made conditionally, or
for a certain purpose or cause.
Article 872
The testator cannot impose any charge, condition, or
substitution whatsoever upon the legitimes prescribed in
this Code. Should he do so, the same shall be considered
as not imposed.
Article 873
Impossible conditions and those contrary to law or good
customs shall be considered as not imposed and shall in
no manner prejudice the heir, even if the testator should
otherwise provide.
Article 874
An absolute condition not to contract a first or
subsequent marriage shall be considered as not written
unless such condition has been imposed on the widow or
widower by the deceased spouse, or by the latter's
ascendants or descendants.
Nevertheless, the right of usufruct, or an allowance or
some personal prestation may be devised or bequeathed
to any person for the time during which he or she should
remain unmarried or in widowhood.
Article 875
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.
Article 876
Any purely potestative condition imposed upon an heir
must be fulfilled by him as soon as he learns of the
testator's death.

Article 877
If the condition is casual or mixed, it shall be sufficient if
it happens or be fulfilled at any time before or after the
death of the testator, unless he has provided otherwise.
Should it have existed or should it have been fulfilled at
the time the will was executed and the testator was
unaware thereof, it shall be deemed as complied with.
If he had knowledge thereof, the condition shall be
considered fulfilled only when it is of such a nature that it
can no longer exist or be complied with again.
Article 878
A disposition with a suspensive term does not prevent
the instituted heir from acquiring his rights and
transmitting them to his heirs even before the arrival of
the term.
Article 879
If the potestative condition imposed upon the heir is
negative, or consists in not doing or not giving
something, he shall comply by giving a security that he
will not do or give that which has been prohibited by the
testator, and that in case of contravention he will return
whatever he may have received, together with its fruits
and interests.
Article 880
If the heir be instituted under a suspensive condition or
term, the estate shall be placed under administration
until the condition is fulfilled, or until it becomes certain
that it cannot be fulfilled, or until the arrival of the term.
The same shall be done if the heir does not give the
security required in the preceding article.
Article 881
The appointment of the administrator of the estate
mentioned in the preceding article, as well as the manner
of the administration and the rights and obligations of
the administrator shall be governed by the Rules of Court.

This rule shall not apply when the condition, already


complied with, cannot be fulfilled again.

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Article 882
The statement of the object of the institution, or the
application of the property left by the testator, or the
charge imposed by him, shall not be considered as a
condition unless it appears that such was his intention.
That which has been left in this manner may be claimed
at once provided that the instituted heir or his heirs give
security for compliance with the wishes of the testator
and for the return of anything he or they may receive,
together with its fruits and interests, if he or they should
disregard this obligation.
Article 883
When without the fault of the heir, an institution
referred to in the preceding article cannot take effect in
the exact manner stated by the testator, it shall be
complied with in a manner most analogous to and in
conformity with his wishes.
If the person interested in the condition should prevent its
fulfillment, without the fault of the heir, the condition
shall be deemed to have been complied with.
Article 884
Conditions imposed by the testator upon the heirs shall
be governed by the rules established for conditional
obligations in all matters not provided for by this Section.
Article 885
The designation of the day or time when the effects of
the institution of an heir shall commence or cease shall be
valid.
In both cases, the legal heir shall be considered as called
to the succession until the arrival of the period or its
expiration. But in the first case he shall not enter into
possession of the property until after having given
sufficient security, with the intervention of the instituted
heir.
When a testamentary disposition conditional?
A testamentary disposition is conditional, when its
effectivity is subordinated to the fulfilment or non
fulfilment of a future and uncertain fact or event.

What is a condition?
A condition is a future and uncertain fact or event upon
the fulfilment of which the testamentary disposition is
made to depend.
* The testator cannot impose any charge, condition, or
substitution whatsoever upon the legitimes prescribed in
this Code. Should he do so, the same shall be considered as
not imposed.
Exception: That the hereditary estate shall not be
partitioned of a period of twenty (20) years. Under Article
1083, this power of the testator to prohibit the division of
the estate applies even to the legitime of the compulsory
heirs.
The rule just stated is a reiteration of the untouchability of
the legitime of the compulsory heirs.
When is a condition impossible?
A condition is impossible when it is not possible of
realization because it is either contrary to physical,
juridical or moral laws.
What is the effect if the impossible conditions and those
contrary to law or good customs are imposed by the
testator?
It shall be considered as not imposed and it shall not affect
the heir (also the legacy or devisee) even if the testator
should otherwise provide.
There is a presumption in this case that the condition is
due to a mistake or oversight or merely a whim or caprice
of the testator. Consequently, it must be disregarded as a
matter of justice to the instituted heirs, devisees or
legatees.
X said in his will, I hereby institute my friend B, subject
to the condition that he will be able to show his ability to
fly in six (6) months. Suppose B was not able to comply
with the condition, can B inherit?
Yes. Since it is an impossible condition, it shall be
considered as not imposed and shall in no manner
prejudice the heir.

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Even if expressly stated?


Yes. The law here presumes that the condition is an error
or oversight of the testator or a mere whim or caprice and
it would not be just to give it effect to the prejudice of the
heirs, devisees and legatees.
On the condition that he can make Ms Nuval pregnant,
one (1) year after my death?

What time shall be considered in determining whether


the condition is imposed or not?
According to Sanchez Roman, there is only one time to
consider, and that is, the time when the condition is to be
fulfilled.
Rules on Marriage:
1.

The prohibition is void only when it is absolute;


that is, when the heir, devisee or legatee is
forbidden to marry any person at any time or
place or when is required to remain unmarried
or in widowhood.

2.

A prohibition on first marriage is always void and


the condition containing it will be considered as
not written.

3.

When the prohibition refers to subsequent


marriages, the general rule is that, it is void, but
it is valid when imposed upon a widow or
widower by:

Void. It is contrary to good customs, hence, the heir may


inherit.
On the condition that he will convert to the Mormon
religion within one (1) year after my death?
Void. Deemed contrary to public policy of respecting
freedom of religion.
Testator said, I will give Father Pio of my estate on the
condition that he will marry within two (2) years. Void or
valid?
Void. Contrary to morals and good customs.

a.
b.
c.

On the condition that he will not marry Ms. Nuval?


Valid, since it is just a relative prohibition. (Security is
need.)
On the condition that he will not marry an Ilocana?
Valid, since it is just a relative prohibition. (Security is
need.)
X died with a will instituting A, as heir to of the entire
estate, provided that before he gets his share, A must
kill B first. If A did not kill B, can he still inherit?
Yes. Because the condition which is unlawful is deemed
not imposed in the will.
If the condition imposed in the will is impossible or
contrary to law, what is the effect?

4.

the deceased spouse; or


ascendants of the deceased spouse; or
descendants of the deceased spouse

When the prohibition refers only to particular


persons or to particular periods or places, it is
not absolute but only relative, and therefore,
valid. However, when by its terms the
prohibition appears to be relative, it will be
understood as absolute, if the conditions
requires by the testator practically render it
impossible for the heir or legatee to get married
at all.

X instituted his daughter A as heir to the free portion of


his estate subject to the condition that she remains single
all her life. Thereafter, A married B. Can A still inherit the
free portion of the estate?
Yes. Because the institution of A, as an heir to the free
portion of the estate remains valid, despite her marriage
to B. The condition imposed is considered as not written.
Thus, the validity of the institution of A, as an heir is not
affected.

It is deemed not imposed.


What is the reason for this rule?
The law presumes that the condition were imposed by
mere oversight.

If the spouse was prohibited to marry until he or she


reaches the age of 80, is the prohibition valid?
Although the condition is relative, yet it is void because its
effects are very onerous on the part of the surviving
spouse.

page | 80 .
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by kotch.agcaoili.agudo

When W1 died, H married W2. W1 is the daughter of A.


He is the son of B, while W2 is the daughter of C. W1 and
H had two (2) children, D and E. W2 and H also had 2
children, F and G. W2 had a child from a previous
marriage with Y, named I.

Both the common children of the deceased and the


surviving spouse and the legitimate children of the spouse
in a prior marriage are given the right as the law does not
make any distinction. The reason for upholding the
prohibition is the same in either case.

Illustration:

What are the reasons for upholding the prohibition?

W1

W2

If W2 died, can she validly impose a condition in her will


that H cannot contract another marriage as soon as
condition for giving properties to H?

1.

Conjugal and family affection as a means of


securing more fidelity, even beyond grave.

2.

In order to avoid the consequence that the


property coming from the deceased spouse,
should be enjoyed, through a subsequent
marriage, by a person, who with more or less
offense to the memory of the deceased, has
taken his/her place in the family.

Why cannot A, D and E have the same right?


A is the W1s ascendants.

Yes (deceased spouse).


D and E are W1s descendants.
Will H not inherit everything, if H contracts another
marriage?
No. Only the free portion if H was also instituted to it is
affected. But H is still entitled to his legitime.
If W2 said in her will, I give to H, in addition to his
legitime, the entire free portion of my estate. However, I
wish that H will not contract another marriage. H
subsequently remarried. Can he inherit?
Yes. Mere expression of the will does not constitute a
prohibition. The prohibition must be clearly imposed as a
condition in the will; otherwise, it does not affect the
rights of the widow or the widower.
If W2 said in her will, I give to H, in addition to his
legitime, the entire free portion of my estate, subject to
the condition that he will not remarry. H subsequently
remarried. Can he inherit?
No. In this case, the prohibition was clearly imposed as a
condition. (Note: disinheritance refers only to the free
portion. The ligitime is not affected. Hence, H may still get
his legitime, but not the free portion.
Who can impose absolute prohibition with respect to
W2?
F,G,C and I.

Why cannot B have the same right?


B is Hs ascendant.
*It would be absurdity. Why would B prohibit his own son
to marry? There is no need to protect his own properties
anyway.
What is Disposition Captoria?
It is 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.
Is Disposition Captoria valid?
No. It is deemed void. Not only it is the condition void but
the disposition. Hence, the same has no effect and nobody
inherit therein.
It is void because it renders a will a contractual agreement.
Thus it will bind both the parties.
This cannot be because a binding contract is contrary to
the essence of a will which is revocable.
The reason for the precept is that testamentary succession
is an act of liberality, not a contractual agreement.
Besides, to permit it would impair the heirs freedom of
testamentary disposition with respect to his own property
as well as to allow the testator to dispose of the property
of another after the latters death.
page | 81 .
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What is a Modal Substitution or Institucion Sub Modo?

What is the purpose of the security?

It is one where the testator states:

So that the heir/devisee/legatee may comply with the


wished of the testator and for the return of anything he
may receive, together with its fruits and interests, if he
should be disregard the obligation.

1.
2.
3.

the object of the institution; or


the purpose of the application of the property
left by the testator upon the heir; or
the charge imposed by the testator upon the
heir.

*Those persons, for whose benefit the obligation has been


imposed upon the heir, may demand its compliance.

T said in his will, I hereby institute X to one half () of


my estate, but I order him to use twenty five percent
(25%) of it for the purpose of building a clinic for the
poor. Is it a Modal Institution?

What is the difference between a mode and a condition?

Yes.

In general, mode is obligatory, except when it is imposed


for the purpose of the heir or legatee himself.

A mode obligates but it does not suspend. A condition


suspends but it does not obligate.

In the preceding problem, is the condition valid?


Yes.
T will give one half (1/2) of he estate to X, if X uses the
income for the construction of mental hospital. What
kind of institution is this?
It is a modal institution.
T stated, I will give X one half (1/2) of my estate, if he
passes the bar examination in his first attempt. Is the
institution modal or conditional?
It is conditional, since, the right of A as well as its
demandability is suspended until he passes the bar
examination in his first attempt.
What if T stated, I will give X P10,000.00 (a legacy), one
half (1/2) of the amount of which must be five for
masses, prayers and other pious words. Is the legacy
subject to a mode or condition?

The condition is fulfilled in order to acquire a perfect right


as heir or legatee while a mode is complied with because
of being already an heir or legatee.
*Following the principle that the testamentary dispositions
are generally acts of liberality, an obligation imposed upon
the heir or legatee should not be considered a condition,
unless, it clearly appears from the will itself, that such was
the intention of the testator.
In case of doubt, the institution should be considered as
modal and not conditional.
Kind of Condition:
1.

Potestative Condition one which depends


exclusively upon the will of the heir, devisee or
legatee and must be performed by him
personally.

2.

Casual - one that does not depend upon the will


of the heir, devisee or legatee, but upon chance
and/or upon the will of a third person.

3.

Mixed when it depends jointly upon the will of


the heir, devisee or legatee and upon chance/ or
the will of a third person.

It is subject to a mode.
*It should not be understood, however, that every
expression of wish of the testator not constituting a
condition should be considered as a mode. The testator
may make indications, suggestions, etc., which do not have
a coercive or obligatory force.
In case of doubt, the statement of the testator should be
considered as a mode, which imposes an obligation, but
merely a suggestion which the heir or legatee may follow
or not.
In the preceding problem, can X demand for the property
immediately after Ts death?

Suppose that T imposes a condition potestative in his will,


when must it be fulfilled?
After Ts death, except, when it has already been fulfilled
and is of such a nature that it cannot be fulfilled again.
*The aforementioned rule is applicable only when the
potestative condition is of a positive not of a negative
character.

Yes. Provided that he gives a security.


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If the condition is casual or mixed, when shall it be


fulfilled?
It shall be sufficient if it happens or be fulfilled at any time
before or after death of the testator, unless he has
provided otherwise.
Should it have existed or should it have been fulfilled at
the time the will was executed and the testator was
unaware thereof, it shall be deemed as complied with.
If the testator had knowledge thereof, it must be fulfilled
again unless such a condition can no longer exist or cannot
be complied again.
Why after death in cases of potestative condition?
This is inasmuch as the potestative condition is to be
performed by the heir, devisee or legatee in obedience to
the wishes of the testator. Since, the testator may still
change his will at any time before the moment of his
death, there is really no testamentary disposition that the
heir, devisee or legatee should obey until such death.
What about casual or mixed?
In cases of casual or mixed conditions, where the will of
the heir, devisee or legatee is limited or without
intervention, it is immaterial to the testator when the
condition happens, unless, he knew at the time he made
his will, that the condition already happened, it is
presumed that he wants it to be fulfilled anew. But,
despite his will, the condition will be considered fulfilled, if
it cannot be repeated or if it cannot exist anew.
X instituted A as his heir, with a condition that A must get
married first to B. At the time of the execution of the will,
A and B were already married. But this fact was unknown
to X. What is the effect?
The condition shall be deemed to have been complied
with.
What if in the preceding problem, X instituted A as an
heir, subject to the condition that he must first get
married, when in fact, X is well aware that at the time of
the execution of the will, a is already married to B. What
is the effect?
It is evident in this case that the condition is of such nature
that it cannot be complied with again. Consequently, it is
considered fulfilled.
However, if A becomes a widower before the death of X,
then the general rule will still have to be applied. In other
words, in order to be entitled to the inheritance, A must
get married again.

* Article 879 refers to potestative conditions which are


negative in character. In other words, it refers to those
potestative conditions, which consists in not doing or not
giving something, as distinguished from positive
conditions, which consist in doing or giving something.
According to Manresa, if the potestative condition is
negative in character there is neither reason nor motive for
delaying the delivery of the property to the heir, devisee or
legatee does not have to depend upon any act of the latter
nor upon the fulfillment of any other requisite.
The heir, devisee or legatee whose institution is subject to
a negative potestative condition, acquires a right, as a
matter of course, without any limitation other than that of
not doing or not giving something, upon the death of the
testator. However, in order that such heir, devisee or
legatee shall not perform or give that which is prohibited,
he is required to give a security or bond. In case the
mandate or order of the testator is violated, the heir,
devisee or legatee shall return whatever he may have
received, together with its fruits and interest. In case he
cannot, the security shall have to answer for deficiency.
Until the condition is violated he shall continue in the
possession and enjoyment of the property.
T said in his will, I hereby give one half (1/2) of my
estate to M subject to the condition that for one (1)
whole year after my death, he will not smoke. Is the
condition valid?
Yes. It is a negative potestative condition.
In the preceding problem, can M immediately demand
the property after Ts death?
Yes. He gets the inheritance right away, but he must first
give a security to guarantee (caution muciana) that he
would not smoke for one (1) year after Ts death.
In case he smokes within the said period, he should return
whatever he may have receive, together with its fruits and
interest.
If the condition is negative potestative condition and
is an impossible condition, is there a need for a
bond?
(Transcribers Opinion)
Hindi na siguro. Because such a condition is deemed
not written. Consequently, if it is deemed not written
because it is an impossible condition, then there is no
need to comply with the condition and no need for a
bond.
The instituted heir, devisee or legatee will inherit the
property without filing a bond and fulfilling the
condition.
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What is a suspensive condition as applied to succession or


to a testamentary disposition?
It is a condition upon the fulfillment of which, successional
rights arising from an institution of heir or from a devise or
legacy are acquired.
What is a resolutory condition as applied to succession or
to a testamentary disposition?
It is a condition upon the fulfillment of which rights
already acquired by virtue of an institution of heir or of a
devise or legacy are extinguished or lost.
What is the difference between a suspensive and a
resolutory condition?
In a suspensive condition the effectivity of the institution
of heir, devise or legacy depends upon the fulfillment of
the condition, while in resolutory condition, the
testamentary disposition is already effective, but subject
to the threat of extinction or being lost.
If the institution is subject to a suspensive condition,
what is the nature of the right of the instituted heir,
devisee or legatee if the condition is not yet fulfilled?
It is mere hope and expectancy. Thus, pending the
fulfillment of the suspensive condition, the heir, devisee or
the legatee cannot yet demand for the delivery of the
inheritance.
On the condition, that M will become a lawyer five (5)
years after my death. Is the condition valid?
Yes. It is a suspensive condition.
Can M immediately demand the property after Ts death?

T said in his will, I hereby give M one half (1/2) of my


estate subject to the condition that he will acquire it only
after five (5) years after my death. Can M immediately
demand for the property?
No. Because it is subject to a suspensive term.
What about if M is willing to post a bond?
It is immaterial because filing of the bond is not even
required.
What will be done to the property?
It shall be placed under usufructuary of the heirs.
In the preceding problem, are the legal heirs required to
post a security?
Yes.
T said in his will, I hereby give one half (1/2) of my
estate to M, but only for five (5) years after my death. Is
this valid?
Yes. It is subject to a resolutory term/period.
In the preceding problem, is the filing of bond by the legal
heirs required?
No.
In the immediate preceding problem, why the difference?
Because in an institution ex-die (suspensive term), the
legal heirs, who are called to the property until the day
arrives, are not merely administrators who must account;
but, usufructuaries who have the right to enjoy the fruits
of the property.

No. When the institution is under suspensive condition,


the right of the heir is not transmitted to him, until the
condition is fulfilled.

* With respect to terms and conditions

In the preceding problem, can M not demand the


property, even if he posts a bond?

2. Ex die (suspensive term) when the institution is from


a day certain. The testator may designate a person, who
will enjoy the property, until the day comes when the
instituted heir shall take it.

Yes. It is immaterial, because the filing of the bond is not


even required.
What will happen to the property?
Since between the death of the testator and the
happening of the condition, it is uncertain whether the
heir would get the property or not the property will be
placed under administration.

1. Suspensive condition, apply Article 885 not Article 888.

3. In diem (resolutory term) when the institution is to a


day certain. The testator may appoint another to succeed
the instituted heir.
Hence, Article 885 should be considered merely as
suppletory. Apply it only, when the testator has not
provided otherwise.

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Why is a legal heir required to post a bond in suspensive


and not in resolutory conditions under Article 885?
If it involves a suspensive condition, a bond is necessary
because the legel heir may alienate the property causing
injury to the instituted heir.

a. The condition is deemed fulfilled, if such third party has


an interest in the fulfillment or non fulfillment of the
condition.
b. Otherwise, the condition cannot be considered as
fulfilled, and the institution is annulled.

If it is a resolutory condition, there is no need for the legal


heir to post a bond because after the resolutory condition
is fulfilled or has occurred, ownership is consolidated on
the legal heirs. So there is no need for protection.
T said in his will, I hereby give one half (1/2) of my
estate to M, subject to the condition that is able to grow
his hair up to his knees within a period of four (4) years.
Ts closest relative cut-off the hair of M, so that it reaches
only his waist. Can M inherit?
Yes.
Subject to the condition that M will marry Ms. Vizconde
within five (5) years. Suppose Ms. Vizconde refused, can
M inherit?
No. Because the inheritance is subject to the occurrence of
a mixed condition.
In the preceding problem, suppose Ms. Vizconde is Ts
nearest relative, can M inherit?
Yes. In this case, it is not the fault of M, that the condition
did not occur because Ms. Vizconde prevented it from
happening, so that, she will inherit more.
*Constructive compliance
1. In case of potestative conditions
Since, the performance does not depend on the will of the
heir, devisee or legatee, there must always be fulfillment
as a fact or actual compliance.
2. In case of potestative conditions
It may happen that the heir, devisee or legatee is willing to
obey the wishes of the testator, doing all that is in his
power towards the realization of the condition, which,
however, is not fulfilled for reasons nor imputable to the
fault or neglect of such heir, devisee or legatee. In such
case, the condition should be considered as fulfilled.
3. In case of mixed conditions
Since the will of a third party intervenes, a distinction
should be made. If the heir, devisee or legatee has done
everything within his power towards the fulfillment of the
condition, but, this is not fulfilled because of the failure of
the third party to comply with what is expected of him:
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Article 886 to Article 914


Legitime

The children or descendants may freely dispose of the


other half, subject to the rights of illegitimate children
and of the surviving spouse as hereinafter provided.

Article 886
Legitime is that part of the testator's property which he
cannot dispose of because the law has reserved it for
certain heirs who are, therefore, called compulsory heirs.
Articke 887
The following are compulsory heirs:
(1) Legitimate children and descendants, with respect to
their legitimate parents and ascendants;
(2) In default of the foregoing, legitimate parents and
ascendants, with respect to their legitimate children 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.
In all cases of illegitimate children, their filiation must be
duly proved.
The father or mother of illegitimate children of the three
classes mentioned, shall inherit from them in the manner
and to the extent established by this Code.
Article 888
The legitime of legitimate children and descendants
consists of one-half of the hereditary estate of the father
and of the mother.
The latter may freely dispose of the remaining half,
subject to the rights of illegitimate children and of the
surviving spouse as hereinafter provided. (808a)
Article 889
The legitime of legitimate parents or ascendants consists
of one-half of the hereditary estates of their children and
descendants.

Article 890
The legitime reserved for the legitimate parents shall be
divided between them equally; if one of the parents
should have died, the whole shall pass to the survivor.
If the testator leaves neither father nor mother, but is
survived by ascendants of equal degree of the paternal
and maternal lines, the legitime shall be divided equally
between both lines. If the ascendants should be of
different degrees, it shall pertain entirely to the ones
nearest in degree of either line.
Article 891
The ascendant who inherits from his descendant any
property which the latter may have acquired by
gratuitous title from another ascendant, or a brother 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 and who belong to the
line from which said property came.
Article 892
If only one legitimate child or descendant of the
deceased survives, the widow or widower shall be
entitled to one-fourth of the hereditary estate. In case of
a legal separation, the surviving spouse may inherit if it
was the deceased who had given cause for the same.
If there are two or more legitimate children or
descendants, the surviving spouse shall be entitled to a
portion equal to the legitime of each of the legitimate
children or descendants.
In both cases, the legitime of the surviving spouse shall
be taken from the portion that can be freely disposed of
by the testator.
Article 893
If the testator leaves no legitimate descendants, but
leaves legitimate ascendants, the surviving spouse shall
have a right to one-fourth of the hereditary estate.
This fourth shall be taken from the free portion of the
estate.

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Article 894

Article 899

If the testator leaves illegitimate children, the surviving


spouse shall be entitled to one-third of the hereditary
estate of the deceased and the illegitimate children to
another third. The remaining third shall be at the free
disposal of the testator. (n)

When the widow or widower survives with legitimate


parents or ascendants and with illegitimate children, such
surviving spouse shall be entitled to one-eighth of the
hereditary estate of the deceased which must be taken
from the free portion, and the illegitimate children shall
be entitled to one-fourth of the estate which shall be
taken also from the disposable portion. The testator may
freely dispose of the remaining one-eighth of the estate.

Article 895
The legitime of each of the acknowledged natural
children and each of the natural children by legal fiction
shall consist of one-half of the legitime of each of the
legitimate children or descendants.
The legitime of an illegitimate child who is neither an
acknowledged natural, nor a natural child by legal
fiction, shall be equal in every case to four-fifths of the
legitime of an acknowledged natural child.
The legitime of the illegitimate children shall be taken
from the portion of the estate at the free disposal of the
testator, provided that in no case shall the total legitime
of such illegitimate children exceed that free portion, and
that the legitime of the surviving spouse must first be
fully satisfied.
Article 896
Illegitimate children who may survive with legitimate
parents or ascendants of the deceased shall be entitled to
one-fourth of the hereditary estate to be taken from the
portion at the free disposal of the testator.
Article 897
When the widow or widower survives with legitimate
children or descendants, and acknowledged natural
children, or natural children by legal fiction, such
surviving spouse shall be entitled to a portion equal to
the legitime of each of the legitimate children which must
be taken from that part of the estate which the testator
can freely dispose of.

Article 900
If the only survivor is the widow or widower, she or he
shall be entitled to one-half of the hereditary estate of
the deceased spouse, and the testator may freely dispose
of the other half.
If the marriage between the surviving spouse and the
testator was solemnized in articulo mortis, and the
testator died within three months from the time of the
marriage, the legitime of the surviving spouse as the sole
heir shall be one-third of the hereditary estate, except
when they have been living as husband and wife for more
than five years. In the latter case, the legitime of the
surviving spouse shall be that specified in the preceding
paragraph.
Article 901
When the testator dies leaving illegitimate children and
no other compulsory heirs, such illegitimate children shall
have a right to one-half of the hereditary estate of the
deceased.
The other half shall be at the free disposal of the testator.
Article 902
The rights of illegitimate children set forth in the
preceding articles are transmitted upon their death to
their descendants, whether legitimate or illegitimate.
Article 903

Article 898
If the widow or widower survives with legitimate
children or descendants, and with illegitimate children
other than acknowledged natural, or natural children by
legal fiction, the share of the surviving spouse shall be the
same as that provided in the preceding article.

The legitime of the parents who have an illegitimate


child, when such child leaves neither legitimate
descendants, nor a surviving spouse, nor illegitimate
children, is one-half of the hereditary estate of such
illegitimate child. If only legitimate or illegitimate
children are left, the parents are not entitled to any
legitime whatsoever. If only the widow or widower
survives with parents of the illegitimate child, the
legitime of the parents is one-fourth of the hereditary
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estate of the child, and that of the surviving spouse also


one-fourth of the estate.

Insofar as they may be inofficious or may exceed the


disposable portion, they shall be reduced according to the
rules established by this Code.

Article 904
Article 910
The testator cannot deprive his compulsory heirs of their
legitime, except in cases expressly specified by law.
Neither can he impose upon the same any burden,
encumbrance, condition, or substitution of any kind
whatsoever.
Article 905
Every renunciation or compromise as regards a 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; but they must bring to collation
whatever they may have received by virtue of the
renunciation or compromise.
Article 906
Art. 906. Any compulsory heir to whom the testator has
left by any title less than the legitime belonging to him
may demand that the same be fully satisfied.
Article 907
Testamentary dispositions that impair or diminish the
legitime of the compulsory heirs shall be reduced on
petition of the same, insofar as they may be inofficious or
excessive.
Article 908
To determine the legitime, 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 added
the value of all donations by the testator that are subject
to collation, at the time he made them.
Article 909
Donations given to children shall be charged to their
legitime.
Donations made to strangers shall be charged to that
part of the estate of which the testator could have
disposed by his last will.

Donations which an illegitimate child may have received


during the lifetime of his father or mother, shall be
charged to his legitime.
Should they exceed the portion that can be freely
disposed of, they shall be reduced in the manner
prescribed by this Code.
Article 911
After the legitime has been determined in accordance
with the three preceding articles, 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.
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.
(3) 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 912
If the devise subject to reduction should consist of real
property, which cannot be conveniently divided, it shall
go to the devisee if the reduction does not absorb onehalf of its value; and in a contrary case, to the compulsory
heirs; but the former and the latter shall reimburse each
other in cash for what respectively belongs to them.
The devisee who is entitled to a legitime may retain the
entire property, provided its value does not exceed that
of the disposable portion and of the share pertaining to
him as legitime.

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Article 913
If the heirs or devisees do not choose to avail themselves
of the right granted by the preceding article, any heir or
devisee who did not have such right may exercise it;
should the latter not make use of it, the property shall be
sold at public auction at the instance of any one of the
interested parties.

3.
4.

Who are the compulsory heirs in the direct line?


1.
2.
3.
4.

Article 914
The testator may devise and bequeath the free portion as
he may deem fit.

the widow or widower


illegitimate children

legitimate children and descendants


illegitimate children
in default of the foregoing, parents by nature,
and
the widow or widower

Are there any compulsory heirs in the direct line?


No.

What is a legitime?

Is a brother a compulsory heir?

Legitime is the part of the testators property, which he


cannot dispose of, because the law has reserved it for
certain heirs who are, therefore, called compulsory heirs.

No. A brother is neither an ascendant nor descendant in


the direct line. A brother belongs to the collateral line.

What are the kinds of legitime?


1. Fixed if the aliquot part of the testators estate, to
which a certain class of compulsory heirs are entitled, is
always the same, whether they survive alone or with other
compulsory heirs.
2. Variable if the aliquot part changes, depending upon
whether they survive alone with other classes of
compulsory heirs.
Define compulsory heirs?
Compulsory heirs are those heirs, for whom the law has
reserved that part of the testators estate known as the
legitime. As such, the testator cannot disregard them.
What are the kinds of compulsory heirs?
1. Primary those who have precedence over and exclude
other compulsory heirs.

What about an uncle?


No. An uncle belongs to the collateral line.
A grandfather?
He becomes a compulsory heir, in default of an ascendant
(parents).
Is an illegitimate grandfather a compulsory heir?
No.
*Presence of descendants excludes the ascendants.
Presence of children excludes the descendants. The same
rule applies to parents and ascendants.
Legitimate children or descendants includes:
1.
2.
3.

legitimate children or descendants proper


legitmated childred or descendant, and
adopted children

2. Secondary those who succeed only in the absence of


the primary heirs (legitimate parents and ascendants).

What is the extent of the successional rights of adopted


children?

3. Concurring those who succeed together with the


primary or the secondary compulsory heirs (illegitimate
children and surviving spouse).

As a rule, adopted children are entitled to same


successional rights as legitimate children.

Who are the compulsory heirs if the testator is a


legitimate person?
Under Article 887, his compulsory heirs are the following:
1.
2.

*If the adopter dies before his legitimate parent or


ascendant or is incapacitated to inherit from such parent,
ascendant or descendant, unlike a legitimate child, the
adopted child cannot inherit by right of representation
from the parent or ascendant.

legitimate children and descendants


in default of the foregoing, legitimate parents
and ascendants
page | 89 .
copied and modified from ALLIANCE FOR ALTERNATIVE ACTION
by kotch.agcaoili.agudo

What is the basis of the aforementioned rule?


The basis is that, adoption merely creates a relationship
similar to that of legitimate paternity and filiation,
between the adopter and the adopted child. It does not
create any relationship, between the adopted child and
the legitimate relatives of the adopter.
Is a widower a compulsory heir?
Yes. Under the present law, a widow or a widower is now
entitled to all the rights of a primary compulsory heir.
Is a surviving spouse a compulsory heir of her or his
parent-in-law under Article 887 (3)?

estate, except, when they have been living as husband and


wife for more than five (5) years, in which case, the
legitime of the surviving spouse is again one half (1/2) of
the estate.
2. Surviving with Legitimate Descendants
One fourth (1/4) of the estate, if there is only one (1) child.
The same of that of each child, if there are two (2) or more
children.
3. Surviving with Ascendants
One fourth (1/4) of the estate.
4. Surviving with Illegitimate Children

No. The aforesaid provision refers to the estate of the


deceased spouse, in which case, the surviving spouse is a
compulsory heir. It does not apply to the estate of the
parents-in-law.
How does the law classify legitimate parents and
descendants as heirs?
They are classified as secondary compulsory heirs, because
they cannot inherit from their child or descendants , if
they concur with legitimate children or descendants of the
latter.
Can legitimate parents or ascendants be excluded by the
presence of the adopted children?

One third (1/3) of the estate.


5. Surviving with Legitimate Descendants and Illegitimate
Children
One fourth (1/4) of the estate, if there is only one (1)
legitimate child. The same as that of each legitimate child,
if there are two (2) or more legitimate children.
6. Surviving with Legitimate Ascendants and Illegitimate
Children
One eight (1/8) of the estate.
Husband died, survived only by his wife. Legitime?

Yes. As a rule, adopted children are entitled to the same


successional rights as legitimate children (Domestic
Adoption Act).
How can you classify illegitimate parents as heirs?
They are secondary compulsory heirs because they cannot
inherit from the illegitimate child if they concur with
children or descendants of the latter, whether legitimate
of illegitimate.
How do you classify an adopter as an heir of the
adopted?
Secondary compulsory heir if the natural parents are dead,
otherwise, they are excluded.

Wife one half (1/2) of the estate


Free Portion one half (1/2) of the estate
In the preceding problem, what if the marriage between
husband and wife was solemnized in articulo mortis, and
the testator died within three (3) months from the time of
such marriage, what is the legitime of the wife?
Wife one third (1/3) of the estate
Free Portion two thirds (2/3) of the estate
Why is it in the preceding problem, the wife only gets one
third (1/3) as legitime?
In order to prevent the possibility that the marriage was
contracted for financial gain.

Summary of the legitime of the surviving spouse:


1. Surviving Alone

The law considers such marriage as scandalous and for the


sole purpose of inheriting form the sick spouse.

One half (1/2) of the estate, unless, the marriage between


the surviving spouse and the testator was solemnized in
articulo mortis and the testator died within three (3)
months from the time of such marriage, in which case, the
legitime of the surviving spouse is one third (1/3) of the
page | 90 .
copied and modified from ALLIANCE FOR ALTERNATIVE ACTION
by kotch.agcaoili.agudo

What if the spouses lived for five (5) years, before the
marriage in articulo mortis, what is the legitime of the
surviving spouse?

a) Survivors are 1LC and SS


1LC one half (1/2) of the estate
SS one fourth (1/4) of the estate

Wife one half (1/2) of the estate


Free Portion one half (1/4) of the estate
b. 2LC and SS
What is the reason in the preceding problem?
1LC one half (1/2) of the estate
1LC one half (1/2) of the estate
SS same share as one LC

The law considers that there has been affection for such a
length of time, as is sufficient to erase suspicion that the
marriage has been contracted exclusively for inheriting.

c. LP, IC and SS
*The rule on articulo mortis will apply, when the deceased
is the spouse, who was at the point of death at the time of
marriage; hence, it will not apply when the spouse who
was at the point of death, at the time of the marriage, is
the one who survives, and the other, is the one who dies
within three (3) months after the marriage.

LP one half (1/2) of the estate


IC one fourth (1/4) of the estate
SS one eight (1/8) of the estate
Why only one eight (1/8) for the SS?

H married W last January 01, 2000. On January 02, 2000,


H died. What is the legitime of W?

Intended to punish the SS for those sleepless


nights, that he should find comfort with another.

One half (1/2). There is no indication that the marriage


was in articulo mortis.

d. LP and IC

What about if W married H on January 01, 2000 because


H was dying of cancer. On January 02, 2000, H died of
cardiac arrests? What is the legitime of W?
One half (1/2). The dying spouse must die of cancer
because it is the one under consideration. In this case, H
died of cardiac arrest, hence, the one third (1/3) rule will
not apply.

LP one half (1/2) of the estate


IC one fourth (1/4) of the estate
e. 2LC, IC and SS
1LC one half (1/2) of one half (1/2) of the
estate
1LC one half (1/2) of one half (1/2) of the
estate
SS same share as 1LC
IC one half (1/2) of the share of 1LC

In the preceding problem, what about if H died of cancer,


what is the legitime of W?
One half (1/2).

* The share of IC (one half [1/2] of the share of 1LC), is not


an iron clad rule. IC may get less than one half (1/2) of the
legitime of 1LC

Give the legitime of the following survivors.


Legend:
LC Legitimate Children
SS Surviving Spouse
LP Legitimate Parent/s
IP/A Illegitimate Parent/s or Ascendant/s
AC Adopted Child/ren
LPGF Legitimate Paternal Grandfather
LPGM Legitimate Paternal Grandmother
LMGF Legitimate Maternal Grandfather
LMGM Legitimate Maternal
Grandmother
* Illegitimate grandparents are not compulsory heirs.

X is survived by two (2) legitimate children, A and B, his


wife W and six (6) illegitimate children, C, D, E, F, G and
H. The value of the net estate is P120,000.00. Distribute.
X

C
D

W
A

E
F

G
H

A of P60,000.00
=
P30,000.00
B of P60,000.00
=
P30,000.00
SS same share as ILC =
P30,000.00
__________________________________________
Total

P90,000.00

page | 91 .
copied and modified from ALLIANCE FOR ALTERNATIVE ACTION
by kotch.agcaoili.agudo

In this case, the Net Estate is P120,000.00 P900,000.00 =


P30,000.00. The remaining amount is P30,000.00 for the
illegitimate children to divide (P30,000.00/6 = P5,000.00)

l. LC and IC
LC one half (1/2)
IC one half (1/2) of the share of LC, hence, one
fourth (1/4)

Hence,
m. SS and full blood brothers
C
D
E
F
G
H

=
=
=
=
=
=

P5,000.00
P5,000.00
P5,000.00
P5,000.00
P5,000.00
P5,000.00

SS one half (1/2)


Full blood brothers one half (1/2)
n. IP and SS
IP one fourth (1/4)
SS one fourth (1/4)

* Note:
1. In no case shall the total legitime of the illegitimate
children exceed the free portion, and the legitime of the
surviving spouse must first be give, before giving any to
the illegitimate children.

o. IC and SS

2. The share of the legitimate children cannot be reduced


due to preference. The share of the illegitimate children
are reduced first.

p. LP only

3. The presence of several illegitimate children results to


the division of the legitime equally among them, if such
exceeds the free portion.

q. Illegitimate grandparents and SS

f. SS and IC?
SS one third (1/3) of the estate
IC one third (1/3) of the estate

IC one third (1/3)


SS one third (1/3)

LP one half (1/2)

Illegitimate grandparents are not entitled to any legitime


because inheritance is only up to the illegitimate parents.
Illegitimate grandparents are not considered as
compulsory heirs.
SS gets one half (1/2) of the estate, except if articulo
mortis rule applied.

g. IP/A and IC?


IP/A excluded
IC one half of the estate
h. IP/A and SS?
IP/A - one fourth (1/4)
SS one fourth (1/4)

r. Net Estate is P120,000.00. Survivors are LPGF, LPGM,


LMGF and LMGM?
LPGF P15,000.00
LPGM P15,000.00
LMGF P15,00000
LMGM P15,000.00
s. LPGF, LPGM and LMGF

i. AC and LP
AC one half (1/2)
LP excluded
j. AC and LC
AC one half (1/2) of one half (1/2) of the estate
LC same share as the LC
k. LP, SS and AC

LPGF P15,000.00
LPGM P15,000.00
LMGF P30,000.00
*If the testator leaves neither father nor mother, but is
survived by ascendants of equal degree of the paternal and
maternal lines, the legitime shall be divided equally
between both lines. If the ascendants should be different
degrees, it shall pertain entirely to the ones nearest in
degree to either lines.

LP excluded
AC treated as LC, hence, one half (1/2)
page | 92 .
copied and modified from ALLIANCE FOR ALTERNATIVE ACTION
by kotch.agcaoili.agudo

How shall the legitime (1/2 of the estate) reserved for the
legitimate parents be divided?
It shall be divided between them equally.
In the preceding problem, what if one of the parents died
already?
The whole (1/2) of the estate shall pass to surviving
spouse.
A has an illegimate child named B. B on the other hand,
has an illegitimate child named C.
Illustration:
A

6.
7.

th

Collateral, 5 Degree
State

Pero sabi ni Jurado, if the heir cannot give security,


follow Artcile 888.
What is Reserva Troncal?
It may be defines as the reservation by virtue of which an
ascendant who inherits from his descendant any property
which the latter may have acquired by gratuitous title
from another ascendants or a brother or a 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 and who belong to the line from which
the said property came.
What is the purpose of Reserva Troncal?
To return property, which by accident will go to another
family. Hence, its purpose is to return the property to the
family where it originally came from.

What are the requisites of Reserva Troncal? When is


there a Reserva Troncal?

In the preceding problem, what if one of the parents have


died already?

1.

The property should have been acquired by


operation of law by an ascendant from his
descendant upon the death of the latter.

2.

The property should have been previously


acquired by gratuitous title by the descendant
from another ascendant or from a brother or a
sister.

3.

The descendant should have died without any


legitime issue in the direct descending line, who
could inherit from him.

No. Because he is excluded by C, the illegitimate child of B.


In the preceding problem, what if C dies, will A be able to
inherit from C?
No. Illegitimate ascendants are not considered as
compulsory heirs, unless, A is instituted as a voluntary
heir.
In the preceding problem, if A dies, will C be able to
inherit from A?
Yes. One way. In succession, it is usually two-way.

A donated a parcel of land to I. I, a bachelor, died


intestate. The land was inherited by G.

Application of Article 885

Illustration

If the condition is condition is subject to suspensive


condition:

B
E

Time of death

D
G

5 years
I
Legal heirs to give security

In the illustration, if not for Article 891, who will inherit


upon Gs death?

If legal heirs cannot give security:


1.
2.
3.
4.
5.

LC/D
LP/A
ILC/D
SS
B/S

By ordinary succession, C and D will inherit the property. If


this happens, the parcel of land, which belongs to the
family of A will forever be lost to the family of C and D.
Origin (A) source of the property
Propositus (I) to whom the land was given
page | 93 .
copied and modified from ALLIANCE FOR ALTERNATIVE ACTION
by kotch.agcaoili.agudo

Reservista (G) obliged to reserve


Reservatio beneficiaries

2.

Ascending/descending line is preferred over


collateral relatives
A, therefore, is entitled to the land

Who are reservation?


rd

A relative within the third (3 ) degree from the


propositus.
In the preceding problem, why from the propositus?
It is from the propositus that reservatios inherit/succeed.
*There is only one reserve when property strays by
operation of law to the reservista.
In the preceding problem, who are relatives by blodd,
rd
within the third (3 ) degree?

Rule of preference

What about if the property donated by A to I, was in fact


previously donated by D to A? Will there be a Reserva
Troncal?
Yes. It is immaterial where A got the property. Besides, our
inquiry ends with A.
In the preceding problem, who is entitled to the land?
Still A.
What about if I sold the land to Z for P5M. Two (2) days
after, I died. Hence, G inherited the P5M. Will there be a
reserva troncal with respect to the P5M?

A, B, E, C, D and H.
Are all aforementioned qualified to be reservatios?

No. There can be no substitution in reserva troncal. The


property acquired by the propositus must be the same
property acquired by the reservista.

No.
Who are qualified to be reservatios?

Hence, there can be no reserva troncal because the land


was substituted with money.

A and E.
*A, who is the origin of the property, can qualify as
reservation. There is no prohibition under the law.

Is I a mere usufructuary?
No. He can even dispose the property.

What about B?
Is G (reservista) a mere usufructuary?
He cannot be a reservation. In order to be reservatio, one
must be (a) a relative of P (propositus in this case is I) and
(b) must belong to the same line where the property
came. In this case B, does not belong to the same line (As
line) where the property came from. (Asawa lang si B.)

He is the absolute owner subject to a resolutory condition.


Is G a mere trustee?
No. G acquires the property subject to a resolutory
condition, that there exist reservatios at the time of his
(Gs) death.

Why?
The purpose of the law is to return the property, which by
accident will go to another family. In this case, if B qualifies
as a reservation, and assuming that A died ahead of B,
then it is possible that the property will go to Bs new
family.
As aforestated, A and E qualify as reservations. Who
between them is entitled to the land?

May the reservation sell the property at Gs lifetime?


Yes. But it is subject to a suspensive condition that such
reservatios survive the reservista (G).
If both G (reservista) and A (reservation) sold the land to
different owners, who among the two (2) buyers has a
better right?

Observing the rules of succession:


It depends on who is going to survive the other (G or A)
1.

The rule of proximity


nd

A second (2 ) degree from I


rd
E third (3 ) degree from I

If G survives A, then Gs buyer has a better right.


Otherwise, As buyer has a better right over the land.

page | 94 .
copied and modified from ALLIANCE FOR ALTERNATIVE ACTION
by kotch.agcaoili.agudo

*Two (2) kinds of transfer in Reversa Troncal?


st

1.

First (1 ) transfer from ascendants/ brother/


sister to propositus by gratuitous title.

2.

Second (2 ) transfer from propositus to


ascendant reservista by operation of law.

nd

A donate a land to I, worth P5M. During Is lifetime, he


acquired properties from other sources worth P5M also.
When I died, G inherited all the properties of I. Assuming
that Reversa Troncal exist:
a.

When is the transfer gratuitous?

P5M Land property donated by A to I


P5M Properties of I from other sources.
_____________________________________
P10M Gs inheritance

If the transfer is free or without monetary or other


considerations (example: donation or succession testate or
intestate).
When is the transfer by operation of law?
If the transfer occurs by source of law or as mandated by
law (example: intestate succession and testamentary
succession with respect to the legitime.
Why would the presence of descendants prevent reserva?
Where there are descendants, there is no way that the
ascendant can inherit the property by operation of law.
Can an origin be a reservista?
No. Article 891 provides that it must be another
ascendant.
*The origin however, may be reservation. There is nothing
in the law, which prohibits, the source from being a
reservation.
To determine whether reserve troncal exists, look for the
two (2) figures, either V or capital letter L. If you see either
of these two (2) figures, chances are, there exist a reserve
tronca.
Illustration:

How will you determine the property subject to


the Reserva Troncal?

Since, I died without a will, we do not apply Reserva


Maxima and Reserva Minima. The whole land worth P5M
is a reservable property. It is covered by reserva troncal
because the entire estate passed by operation of law to G.
b.

What about if I died with a will?


P5M Land property donated by A to I
P5M Properties of I from other sources.
_____________________________________
P10M/2 P5M

Reserva Maxima so much as the reservable property of


the entire land contained in the legitimate is subject to
reserve tronca. Hence, under this rule, the entire land
donated by A to I is subject to reserve.
Reserva Minina all of the property of I passed to G partly
by will and partly by operation of law.
One half (1/2) of land passed by will.
One half (1/2) of land passed by operation of law.
One half (1/2) of other properties passed by will.
One half (1/2) of other properties passed by will.
Hence, under the rule of reserva minima, only one half
(1/2) of the land, donated by A to I is a reservable
property.

V Figure
Ascendant

Ascendant

*Reserva Maxima and Reserva Minima do not apply if the


testator died without a will.

Propositus
OR L Figure
Ascendant

Brother

Propositus

page | 95 .
copied and modified from ALLIANCE FOR ALTERNATIVE ACTION
by kotch.agcaoili.agudo

Illustration:
D

K = 2/7
L = 2/7
G = 1/7
H = 1/7
I = 1/7
___________
7/7

L
In the preceding problem, what if G died? What will
happen to his share?

M N OP Q R

U V
The 1/7 share of G will go to M by right of representation.

What about if K died also?


The 2/7 share of K will go to T and U by right of
representation.

In the preceding illustration, D donated a parcel of land


to J. J died intestate. The entire inheritance, including the
land donated by D to J was inherited by C, the mother of
J. Is there a reversa troncal?
No. Because D is not an ascendant of J. Had D been a
brother or sister, yes.

*General Rule There is no right of representation in the


collateral lines
Exceptions Nephews, nieces and only if, they survive or
concur with at least one (1) uncle or aunt.

In the preceding problem, what if it was E who donated


the land to J? Will there be RT?

If the nephews and nieces do not survive their uncles or


aunts, there is no right of representation. They inherit in
their own right.

Yes. Because E is now an ascendant of J. All the requisites


for reserve troncal are present.

What about if all of the brothers and sisters of J (G, H, I, K


and L) died?

In the preceding problem, assuming that E has already


passed away, who are the reservatios?

M, N, O, P, Q, R, T, U and V will qualify as reservatios.

G,H,I,K and L

In this case, they inherit in their own right but, the full and
half-blood rule will still apply.

Will they divide the property equally?

Hence, the distribution is as follows:

No. In this case, we should apply the full blood/half blood


rule. Brothers and sisters of the full blood will receive a
double share as against the brothers and sisters of the
half-blood.
Hence, the distribution is:
K = 2
L = 2
G = 1
H = 1
I = 1
___________
7

M= 1
N = 1
O = 1
P = 1
Q = 1
R = 1
T = 2
U = 2
V = 2
___________
12

page | 96 .
copied and modified from ALLIANCE FOR ALTERNATIVE ACTION
by kotch.agcaoili.agudo

M = 1/12
N = 1/12
O = 1/12
P = 1/12
Q = 1/12
R = 1/12
T = 2.12
U = 2/12
V = 2/12
________________
12/12
In the preceding problem, what if M and V died, will S
and W inherit by representation?
No. S and W are not entitled to inherit because they are
already grand nephews. They are relatives of J in the
th
fourth (4 ) degree.
*The right to represent Reversa Troncal applies only to
rd
those within the third (3 ) degree from the Propositus. If
the Reservatios are half-blooded siblings, the degree shall
be determined using the common parent, as a reference
point.
What are the obligations of the Reservista?
1.

to make an inventory of all reservable property;

2.

to appraise the value of all reservable movable


property;

3.

to annotate in the Registry of Property the


reservable character of all reservable immovable
property;

4.

to secure by mortagage:
a. the restitution of movable property not
alienated

2.

to ask for the appraisal of all reservable movable


property;

3.

to ask for the annotation in the Registry of


Property of all the reservable character of all
reservable immovable property;

4.

the constitution of necessary mortagage.

Can a Reservatio alienate his expectation to the property


during the pendency or lifetime of the Reserva?
In Sienes vs Esparia, 1 SCRA 750, the Supreme Court ruled
that a reservation may dispose of his expectancy to the
reservable property during the pendency of the Reserva in
its uncertain and conditional form. If the reservation dies
before the reservista, the former has not transmitted any
thing, but if he survives the reservista, the transmission
shall become effective.
What is the nature of the right of the Reservatio over the
reservable property?
It is a mere hope or expectancy.
When does the expectancy of the Reservatio over the
reservable property become perfected?
The reservatios mere hope or expectancy over the
reservable property is finally converted into a perfect right
upon the concurrence of the following requisites:
1.
2.

What are the causes for the extinguishment of the


reserve?
1.

death of the ascendant-reservista;

2.

c. the return of the price which he has received


for movable property alienated, or the
payment of its value at the time of its
alienation, if such alienation was made by
gratuitous title;

death of all the relatives of the descendantrd


propositus within the third (3 ) degree, who
belong to the line from which the property
came. In such case, the active subject of the
reserve disappears, as a consequence of which
the resolutory condition which limits the title of
the reservista also disappears;

3.

loss of the reservable property for causes not


due to the fault or negligence of the reservista;

d. the payment of the value of immovable


property validly alienated.

4.

waiver or renounciation by the reservatios;

5.

prescription of the right of the reservatios,w hen


the ascendant-reservista holds the property
adversely against them in the concept of an
absolute owner.

b. the payment of damages caused or which


may be cause by his fault or negligence

What are the rights of Reservatios?


1.

upon the death of the reservista


survival of the reservation.

to ask for the inventory of all reservable


property from the ascendants-reservista;

page | 97 .
copied and modified from ALLIANCE FOR ALTERNATIVE ACTION
by kotch.agcaoili.agudo

X was survived by (a) his widow, (b) 2 legitimate children,


a and B, (c) 2 grandchildren, D and E, children of Xs
legitimate child, C. The net value of Xs estate is
P60,000.00. Ascertain their respective legitimes.

of the estate, or P20,000.00 in this case. While, that of A


and B, is also one third (1/3) or P20,000.00, which, shall be
divided equally between A and B. Therefore, A and B gets
P10,000.00 each. The free portion is also one third (1/3) or
P20,000.00 (Article 894).

The legitimes are:


A P10,000.00
- legitime
B P10,000.00
- legitime
D P5,000.00
- legitime by representation
E P5,000.00
- legitime by representation
W P10,000.00
- legitime
Free portion P20,000.00
________________________________________________
P60,000.00

*The rule that the illegitimate child inherits one fourt (1/4)
is misleading. This applies only if there is only a single
legitimate child because the illegitimate child inherits one
half (1/2) of the share of the legitime, that is one half (1/2)
of the estate. Hence, one fourth (1/4) of the estate goes to
the illegitimate. If there are several legitimate children, it
should be half of the share of each legitimate child because
if the one fourth (1/4) rule is to be followed, there is the
possibility that the legitimate child inherits less than the
illegitimate.

The legitime of W is only P10,000.00 because she survived


together with two (2) other children. Thus, W, gets only
the same amount as the legitime of the children (Article
892 paragraph 2). While, D and E gets only P5,000.00 each
because they have to divide the legitime of their father, C,
which is P10,000.00 (Article 970,972 and 974). Thus,
leaving a portion of P20,000.00

Since the law already reserved one half (1/2) of the


hereditary estate for the legitimate children or
descendants, the legitimate of illegitimate children shall be
taken from the free portion of the estate, provided that in
no case, shall the total, exceed such free portion.

X survived by (a) his wife, and (b) his legitimate parents, F


and M. Net value of the estate is P60,000.00. Ascertain
the legitime.
The legitimes are:
A P15,000.00
- legitime
F P15,000.00
- legitime
MP15,000.00
- legitime
Free portion P15,000.00
_________________________________
P60,000.00
The share of W in the estate is one fourth (1/4) or
P15,000.00 (Article 893). That of F and M (legitimate
parents of X) is one half (1/2) of the estate or P30,000.00,
which will be divided equally between F and M (Article
889). Thus, leaving a free portion of P15,000.00
X survived by (a) his wife, W and (b) 2 illegitimate
children, A and B. The net estate of X is P60,000.00
Ascertain the legitime.
The legitimes are:
W P20,000.00
- legitime
A P10,000.00
- legitime
CP10,000.00
- legitime
Free portion P20,000.00
_________________________________
P60,000.00
The legitime of the surviving spouse, is she (W) survived
only with illegitimate children of testator is one third (1/3)

If the testator is an illegitimate person and he is survived


by his illegitimate parents and illegitimate children, the
former are not entitled to any legitime, because they are
excluded by the presence of the latter. In such case, the
legitime of the illegitimate children shall consists one half
(1/2) of the hereditary estate.
What is the legitime of a widow or widower if he/she
survives with legitimate children or descendants and
acknowledged natural children by legal fictiob
The widow or widower shall be entitled to a portion equal
to the legitime of each of the legitimate children which
must be taken from that part of the estate which the
testator can freely dispose of (Article 897).
What is the legitime of a widow/widower is he/she
survives with legitimate children or descendants and
illegitimate children other than acknowledge natural or
natural children by legal fiction?
The widow or widower shall be entitled to a portion equal
to the legitime of each of the legitimate children, which
must be taken from that part of the estate, which the
testator can freely dispose of (Article 8998).
X is survived by (a) 2 legitimate children, A and B, (b) 2
illegitimate children, C and D, (c) and his widow.
Ascertain the legitime, if the net estate is P72,000.00
The legitime of A and B, consists of one half (1/2) of the
estate or P36,000.00 which shall be equally divided
between them (Article 888). They are, therefore, entitled
to P18,000.00 each.
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The legitime of W consists of a portion equalt to the


legitime of each legitime children (Article 897 and 898).
She is therefore, entitled to P18,000.00, which must be
taken from the free portion.
The legitime of C and D shall consists of one fourth (1/4)
of the legitime of each legitimate children (Article 895,
paragraph 1). They are therefore, entitled to P9,000.00
Thus,
A P18,000.00
B P18,000.00
WP18,000.00
C P9,000.00
D P9,000.00
Free portion none
_________________________________
P72,000.00

X is survived by (a) 2 legitimate children, A and B, (b) 4


illegitimate children, C, D, E and F and (c) his widow, W.
Xs estate is P72,000.00. Ascertain the legitime.
Since the legitime of A and B consists of one half (1/2) of
the hereditary estate (Article 888), they shall, therefore be
entitled to P36,000.00 or P18,000.00 each. Therefore, the
remaining free portion, from the legitimes of the other
survivors shall be satisfied, is P36,000.00
However, if we are going to satisfy the legitimes of such
other survivors, in accordance with the general rule
prescribed for in the Code, the amount of P36,000.00 will
not be sufficient. Thus, Article 895, paragraph 3 is
applicable in this situation, in no case shall the total
legitime of such illegitimate children exceed that free
portion, and that the legitime of the surviving spouse must
first be fully satisfied.
Therefore, since the legitime of the surviving spouse is
equal to that of each of the legitimate children (Article 897
and 898) W shall be entitled to P18,000.00. There will,
therefore, be P18,000.00 left in the free portion, which will
be divided equally among the illegitimate children.
Thus, the legitimes are:
A B WC D E -

P18,000.00
P18,000.00
P18,000.00
P4,500.00
P4,500.00
P4,500.00

F P4,500.00
___________________
P72,000.00
*The share of legitimate children cannot be reduced due to
preference. The share of illegitimate children are reduced
first.
What is the legitime of the surviving spouse, if he/she
survives with legitimate parents of ascendants and with
illegitimate children?
The surviving spouse shall be entitled to one eight (1/8) of
the estate (Article 899).
X is survived by (a) his wife, (b) legitimate parents, F and
M, and (c) 2 illegitimate children, A and B. Ascertain the
legitime.
The legitimes are:
W
F and M A and B Free portion -

1/8 of the estate


of the estate
of the estate
1/8 of the estate

Or more specifically,
W
F
M
A
B
Free portion -

1/8 of the estate


of the of the estate
of the of the estate
of the of the estate
of the of the estate
1/8 of the estate

What is the legitime of the illegitimate children, if there is


no compulsory heirs?
Illegitimate children of the estate
Free portion of the estate (Article 901)
X died survived only by his illegitimate children, A and B,
ascertain the legitime, is the estate of X is P60,000.00
A and B P30,000.00 (1/2 of the estate)
Free portion P30,000.00 (1/2 of the estate)
Or more specifically,
A
P15,000.00 (1/2 of of the estate)
B
P15,000.00 (1/2 of of the estate)
Free portion P30,000.00 (1/2 of the estate)
______________________________________________
P60,000.00

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If an illegitimate child dies before the testator, can his


right to the legitime which had been reserved for him by
law be transmitted to his own descendants?

Illegitimate parents are considered as secondary heirs.


However, the illegitimate grandparents and other
ascendants are not considered compulsory heirs.

Yes. It will be transmitted upon their death to their


descendants, whether legitimate or illegitimate (Article
902).

Can the testator deprive his compulsory heirs of the


legitime?

Rules with respect to a legitimate and an illegitimate


person to be represented:
1.

2.

If the one who died ahead of the testator is an


illegitimate child (decedent) his right over his
legitime, shall be transmitted to his descendants,
whether legitimate or illegitimate (Article 902).
Therefore, the legitimate or illegitimate children
of an illegitimate decedent may represent the
latter in the inheritance. However, a legitimate
child shall get a share twice than that of the
illegitimate child.
If the one who died ahead of testator is a
legitimate child (decedent), his right over his
legitime shall be transmitted only to his
legitimate children. Therefore, even if the
decedent has illegitimate children, the latter
cannot represent the former in the inheritance.
This is clear from the provisions of Article 992,
which enunciates the rule, known as the
principle of absolute separation between the
legitimate family and the illegitimate family.
Article 992 provides, an illegitimate child has no
right to inherit ab intesato from the legitimate
children and relatives of his father or mother;
xxx.

What is the legitime of the parents who have an


illegitimate child, and when such child leaves neither
legitimate descendants nor a surviving spouse, nor
illegitimate children?

As a general rule, No. The exceptions are those expressly


provided for by law in Articles 919, 920 and 921.
Can a testator impose upon the legitime any burden,
encumbrance, condition or substitution of any kind?
As a general rule, No (Article 904 paragraph 2). Except
only, when the testator expressly prohibits the partition of
the hereditary estate for a period which shall not exceed
twenty (20) years (Article 1083).
*There are other instances when a charge or burden is
imposed upon the legitime of compulsory heirs, such as in
the case of:
1.
2.

reserva troncal (Article 891), or


when the estate consists of a family home
(Article 238)

But in this cases, the charge is imposed by law and not by


the testator.
If the testator deprives a compulsory heir of his legitime in
violation of the principle declared in Article 904, the effect
of such deprivation, must be distinguished or qualified.
There are four (4) possible ways, by which a testator may
attempt to deprive a compulsory heir of his legitime. They
are:
1.

by a valid disinheritance;

2.

by an imperfect disinheritance;

3.

by preterition of compulsory heirs in the direct


line;

4.

by leaving the compulsory heir, by any title any


property or amount which is not sufficient to
satisfy the legitime, to which such heir is entitled
by law. In such a case, the heir can ask for the
completion of his legitime.

One half (1/2) of the estate (Article 903).


In the preceding problem, what if the spouse of the
illegitimate person, survives with the parents of such
illegitimate person, what are their respective legitimes?
They are:
Parents of the estate
Spouse of the estate
*Illegitimate parents are classified as compulsory heirs of
the illegitimate children, but only in default of children or
descendants, whether legitimate or illegitimate.

Can there be a valid compromise on legitimes?


None.
What are the reasons why a renunciation or a
compromise as regards a future legitime is void?
The reasons are:
1. The rights of the heirs with respect to their legitime
are merely inchoate or prospective, because such
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rights are perfected at the moment of death of the


testator (Article 777). Hence, before the death of
the testator, there can be nothing to renounce or
to compromise.
2. No contract may be entered into with respect to
future inheritance, except in the cases expressly
provided by law (Article 1347).
*The only exceptional cases, where a contract may be
entered with respect to future inheritance, would be those
contemplated in Articles 130 and 1080 of the Civil Code.
It is clear that all agreements between the testator and a
compulsory heir which partake of the nature of a
renunciation or compromise with regard to the future
legitime of the heir would be void under this Article. As a
matter of fact, the rule can be extended to any contract
with regard to the future legitime, entered into, not only
between the testator and the heir, but also among the heir
themselves, or between the heirs and third persons. This is
by virtue of the provision of Article 1347 of the Code. It
must be noted, however, that the prohibition cannot be
applied to donations inter vivos, made by the testator to a
compulsory heir. Such donations, which are presumed to
be advances of the legitime are allowed by law, but subject
to collation.
What is the effect of a renunciation or a compromise as
regards a future legitime, between the testator and his
compulsory heir?
Under Article 905, such renunciation or compromise is
void.
Who can claim the nullity of the renunciation or
compromise?
It may be claimed either by the compulsory heir who made
it or by another compulsory heir, who is prejudiced by
such renunciation or compromise.
*If the nullity is claimed after the death of the testator, it is
required that the heir who is filing the claim must bring to
collation whatever he might have received by virtue of the
compromise. The reason for this, is that, it would be unjust
if such heir is allowed to claim his legitime and still retain
what he had received.
What is the remedy of a compulsory heir who has been
given a lesser legitime than that which belongs to him?
He may demand that the same be fully satisfied (Article
906).
*See Jurado for complete discussion of the effect of an
incomplete legitime as distinguished from preterition; and
also the discussion of inofficious testamentary disposition.

When are testamentary dispositions considered as


inofficious?
They are considered as inofficious if they are in excess of
the disposable free portion of the hereditary estate. Thus,
resulting in the impairment of the legitime of the
compulsory heirs.
What is the effect of inofficious testamentary
dispositions?
They shall be reduced with regard to the excess, on
petition of the compulsory heirs who are prejudiced.
*Take note that the rule on reduction applies to inofficious
donation inter vivos. Under Article 771 donations inter
vivos, which are inofficious bearing in mind the estimated
net value of the donors estate at the time of his death
shall be reduced with regard to the excess.
The procedure for reductions stated in Articles 771 and 907
shall be regulated by Articles 911-912 of the Code.
What is the reason why an inofficious testamentary
disposition and inofficious donation inter vivos shall be
reduced?
The reason is the very concept of legitime itself. Under our
system of compulsory succession, the testators freedom
of disposition is limited by the fact that he cannot make
any gratuitous disposition of his property whether by an
act inter vivos or by an act mortis causa, which would
impair the legitime of his compulsory heirs.
This principle in Article 904 is complemented by Article
752, which declares that no person can give by way of
donation more than he can dispose by will.
*Article 771 refers to donations inter vivos, while, Article
907 refers to donations mortis causa.
Article 908 to Article 910
Determination of the Legitimes of Compulsory Heirs
What is collation?
A fictitious mathematical process of adding the value of
the thing donated to the net value of the hereditary estate
(Article 908 paragraph 2) for the purpose of computing the
legitime of the compulsory heirs.
It is an act of charging or imputing the value of the
donations against the legitime of the compulsory heir to
whom the thing was donated (Article 1061), for the
purposes of equalizing the shares of the compulsory heirs
as much as possible.

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It refers to the actual act of restoring the hereditary


estate, that part of the donation which is inofficious, in
order not to impair the legitime of the compulsory heirs.

If the free portion is not sufficient to cover the donations


inter vivos, legacies and devises, which should be given
preference?

What is included in the gross estate?

Donation inter vivos.

All property left at the time of the death of the testator.

Why?

May sentimental value be considered in the


determination of the gross value of the estate?

1.

Donation inter vivos are by nature irrevocable,


save in cases provided by law. Hence, to allow
their annulment or reduction by the subsequent
making of legacies and bequests, in excess of the
free portion, would be in effect allowing the
revocation of the donation to depend upon the
will of the donor-testator.

2.

The donation requires for its validity the


acceptance of the donee. Hence, it is a bilateral
act produced by the agreement of the parties.
Therefore, it should have preference over a
testamentary dispositiob which is purely
unilateral.

No. Only the actual value.

X is survived by four (4) children, A, B, C and D. Twenty


(20) years before his death, he donated a land worth
P20,000.00 to F. At the time of his death, said property is
worth P120,000,000.00. What amount should be
collated?
P20,000.00
Why?

The donation as soon as accepted produces


all its legal effects, and the property passes
from the possession of the donor to the
donee. It would create a greater
disturbance of property rights to annul the
donation or reduce it outright.

The value to be collated or added is the value of the thing


donated at the time when the donation is made.
This is because when a donation is made, ownership is
transferred over the same, once the donation is accepted.
The increase in value should therefore, be given to the
donee.
In the same way, in case of loss, whether by force majeure
or through negligence or wanton destruction, the donee
must first suffer in accordance with the rule of res perit
domino.

3.

Following the maxim priority in time is priority in


right.

Steps in Distribution of the Estate


1.

Determination of the gross value of the estate at


the time of the death of the testator.

Are all dispositions in favor of a compulsory heir always


chargeable to the legitime?

2.

Determination of all debts and charges which are


chargeable against the estate.

No. Such shall be charged against the free portion of the


hereditary estate:

3.

Determination of the net value of the estate by


deducting all the debts and charges from the
gross value of the estate.

4.

Collation or addition of the value of all donations


inter vivos to the net value of the estate.

5.

Determination of the amount of the legitimes


from the total thus found.

6.

Imputation of the value of all donation inter


vivos made to compulsory heirs against their
legitime and of the value of all donation inter
vivos made to strangers against the disposable
free portion, and the restoration to the
hereditary estate if the donation is inofficious.

1.
2.
3.

in case of the excessive portion;


if the testator should provide; and,
in case of repudiation

After the death of the testator, the heir renounced his


legatine but the testator gave him a donation during his
lifetime. Where shall this donation be charged?
It will be charged to the free portion because renunciation
of the legitime made the heir a stranger. So, the donation
made to him shall be charged against the free portion.
*Dispositions in favor of strangers are chargeable to the
free portion of the hereditary estate.

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7.

Distribution of the residue of the estate in


accordance with the will of the testator.

X is survived by two (2) legitimate children, A and B, and


his wife W. In his will, he made the following dispositions:
a house and lot worth P10,000.00 to G and a car worth
P40,000.00 to H. During his lifetime he made a donation
of a parcel of land worth P20,000.00 in favor of his friend,
E. At the time of his death, said land is worth
P200,000.00. His estate is worth P120,000.00 with debts
amounting to P40,000.00. Distribute.
Gross Estate (GE)
Legacy (car)
Devise (house and lot)
Donation inter vivos (DIV)
Debts

P120,000.00
P40,000.00
P10,000.00
P20,000.00
P40,000.00

i) Net Estate (NE)

As aforementioned, there is a remaining P50,000.00 as FP.


From such amount we deduct the legitime of W which is
P25,000.00 (same amount as that of one legitimate child)
and the DIV in favor of F, in amount of P20,000.00
(P50,000.00 P25,000.00 P20,000.00 = P5,000.00).
Therefore, only P5,000.00 is left available for distribution
for G and H.
v) Distribution of Residue of the Estate
Amount left for distribution Amount of Devise/Legacy (D/L)
G
P10,000.00
H
P40,000.00
______________________________
P50,000.00 (aggregate amount of
D/L)

P120,000.00
GE
(-) P40,000.00
Debts
__________________________________________
P80,000.00

Formula:

ii) Collate Donations

P80,000.00
(+) P20,000.00
DIV
__________________________________________
P100,000.00 (amount from which we
determine legitime)

iii) Determination of Legitime

Simplified Formula:

Legitime is of P100,000 or P50,000.00

G =
H =

A
B
FP

P25,000.00
P25,000.00
P50,000.00

The legitime of A and B is (1/2 of P100,000.00) P50,000.00,


or P25,000.00 each.

P5,000.00

Amount of D/L x Amount Left for Distribution


Aggregate Amount of D/L
P10,000.00 x P5.000.00
P50,000.00
P1,000.00
P40,000.00 x P5,000.00
P50,000.00
P5,000.00

1/5 x P5,000.00 = P1,000.00


4/5 x P5,000.00 = P4,000.00
_________
P5,000.00

As per computation, the amount left available for


distribution is only P5,000.00. The testator in his will made
the following legacy and devise: House and Lot worth
P10,000.00 to G and a car worth P40,000.00 to H.

iv) Imputation
P50,000.00
FP
(-)
P25,000.00
Ws legitime
P20,000.00
DIV
____________________________________________
P5,000.00 (amount left for distribution to
legatees and devisees)
In his lifetime, X made a donation inter vivos, in favor of F.
Hence, the same shall be imputed against the FP. The
legitime of W shall also be imputed against the free
portion.

The amount of P5,000.00 will be distributed to G and H in


proportion to the amount given to them.
vi) Final Distribution:
A
=
P25,000.00
Legitime
B
=
P25,000.00
Legitime
W
=
P25,000.00
Legitime
G
=
P1,000.00
Devise
H
=
P4,000.00
Legacy
__________________________________________
P80,000.00
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F on the other hand, retains the donation (worth


P20,000.00) because it is not inofficious.
In the preceding problem, would it make a difference if X
stated in his will that the legacy in favor of G is preferred
legacy?

The amount left to be distributed is only P15,000.00. This


amount shall be given equally to B and C, since they are
instituted as universal heirs. Hence, (15,000.00/2 =
7,500.00), B and C will receive P7,500.00 each, in addition
to their legitimes.
v) Final Distribution

Yes. In this case, the remaining P5,000.00 will go to G.


A =
Suppose that X is survived by his legitimate children, A
and B, and his illegitimate child C, and his surviving
spouse W. In 1975, X and his son A, entered into a
compromise, whereby A, waived his legitime in
consideration of a parcel of land worth P20,000.00. X
died in 1995 with a will, which instituted A and B as
universal heirs. His estate is worth P200,000.00 with
debts amounting to P100,000.00. Distribute.
i) NE

(-)

(P20,000.00)
Advance Legitime
(+) P10,000.00
To complete his legitime
____________________________________________
P30,000.00
B =

P30,000.00
Legitime
P7,500.00
Voluntary Heir
____________________________________________
P37,500.00
C =

P200,000.00
P100,000.00

GE
Debts

ii) Collate Donations

W =

P30,000.00

iii) Determination of the Legitime

*In the preceding problem, it does not matter that C is an


illegitimate child, when it comes to the distribution of the
free portion. After all, he was instituted as universal heir
also.
Suppose that X had two (2) legitimate children A and B. In
1975, he donated a parcel of land worth P40,000.00 to F.
In 1985, he donated a parcel of land worth P60,000.00 to
G. X died in 1995. His estate was worth P100,000.00 with
debts amounting to P200,000.00. Distribute.

Legitime is of P120,000.00 or P60,000.00

i) NE

A =
B =
FP =

P100,000.00
GE
(-) P200,000.00
Debts
________________________________________
Zero

(+)

P100,000.00
P20,000.00
DIV
__________________________________
P120,000.00 (Amount from
which we
determine the

P15,000.00
Legitime
P7,500.00
Voluntary Heir
____________________________________________
P22,500.00

legitime)

P30,000.00 (P20,000.00 + P10,000.00)


P30,000.00
P60,000.00

The legitime of A and B is (1/2 of P120,000.00) P60,000.00


or P30,000.00 each. Take note, that A was already given an
advance of his legitime in the form of a parcel of land
worth P10,000.00. Hence, what shall be given to him only
is the amount of P10,000.00 to complete his legitime.
iv) Imputation
P60,000.00
FP
(-) P30,000.00
Ws legitime
P15,000.00
C
____________________________________________
P15,000.00
Remaining FP

ii) Collate Donations


P40,000.00
DIV
(+) P60,000.00
DIV
_________________________________________
P100,000.00
- (amount from which
we determine the
legitime)
iii) Determination of Legitime
Legitime is of P100,000.00 or P50,000.00
A
B

=
=

P25,000.00
P25,000.00

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iv) Imputation/Restoration

Suppose that G is insolvent, what is the remedy of the


heirs?

P50,000.00 must be restored by G


The amount to be returned by the insolvent donee must
be borne and paid by those whose donations are within
the free portion.

v) Distribute
Assets available

P50,000.00 from G

Payments to be made
A
=
P25,000.00
legitime
B
=
P25,000.00
legitime
_________________________________________
P50,000.00
In the preceding problem, why should preference be
given to F?
Article 773 provides that if there being two (2) or more
donations, the disposable portion is not sufficient to cover
all of them, those of the more recent dates shall be
suppressed or reduced with regards to the execess.
What about the creditors, can they ask for collation?
The creditors cannot ask for collation as it is available only
for the benefit of the heirs.
When can the creditors sue for rescission of donations?
When the donation has been made in fraud of creditos.
When is donation considered in fraud of creditors?
When at the time thereof, the donor did not reserve
sufficient property to pay his debts prior to the donation.
*Article 758
*Article 759
In the preceding problem, would it make a difference if
the donation was made one (1) year before Xs death and
at the time the debts are already existing?
If X did not leave sufficient assets to answer for debts, it
would be presumed that the said donation was made in
fraud of the creditors.
In the aforementioned problem, G is supposed to return
P50,000.00 to the estate. What is the effect if the
rd
property donated to G has been alienated to a third (3 )
person?
rd

Upon its alienation to a third (3 ) person, the latter


acquires it free from any conditions or susceptibility to
revocation as inofficious. Hence, the donee should be
made to respond for the value of the excess or inofficious
part of the donation.

As between the compulsory heirs, whose rights are


derived from law, and the donees, whore rights spring
from the will of the deceased, the former should be
protected from impairment of their share.
Hence, the heirs may go after the P40,000.00 donated to
F. The heirs cannot recover more than P40,000.00 from F,
because it could not be more than the value of the
property or cash donated.
X is survived by his (a) legitimate children A, B and C; and
wife, B. During his lifetime he made the following
donations: (a) parcel of land to A worth P20,000.00; and
a (b) house and lot to his friend F, worth P70,000.00.
When X died, he made the following dispositions in his
will: (a) a house and lot to G worth P70,000.00; (b) a car
to H worth P20,000.00; and (c) cash to I in the amount of
P60,000.00. The value of the estate is P400,000.00.
Distribute.
i) NE
P400,000.00
GE
(-) P40,000.00
Debts
_________________________________________
P360,000.00
NE
ii) Collation
P360,000.00
NE
(+) P20,000.00
DIV
P70,000.00
DIV
_______________________________________
P450,000.00 (Value from which we
determine the amount of the
legitime)
iii) Determination of Legitime
The legitime is one half (1/2) of P450,000.00 or
P225,000.00. Hence the legitime of A, B and C is
P225,000.00 or P75,000.00 each. But, since A has already
received P20,000.00 (DIV of parcel of land), he will only be
given P55,000.00 to complete his legitime.
W, on the other hand, will get P75,000.00 as her legitime,
which under the law must correspond to the amount of
the legitime received by one (1) legitimate child. The
legitime of W is deducted from the FP.

page | 105 .
copied and modified from ALLIANCE FOR ALTERNATIVE ACTION
by kotch.agcaoili.agudo

Hence,

vi) Final Distribution of Estate

P450,000.00
- Hereditary Estate
(-) P225,000.00
- A, B and Cs Legiitmes
____________________________________________
P225,000.00
- Free Portion
(-) P75,000.00
- Ws Legitime
____________________________________________
P150,000.00
- Free Portion
iv) The amount available for distribution is P150,000.00
from which we deduct the DIV made by X to F, in the
amount of P70,000.00.
Hence,
P150,000.00
- Free Portion
(-) P70,000.00
- DIV to F
___________________________________________
P80,000.00
- Free Portion
v) The amount left representing the FP is only P80,000.00.
The devises and legacies made by the testator cannot
contain it. The total amount of D/L is P160,000.00 (D/L: [a]
a house and lot to G worth P70,000.00; [b] a car to H
worth P30,000.00; and [c] cash to I amounting to
P60,000.00 = P160,000.00)
Hence, the remaining free portion of P80,000.00 shall be
distributed pro-rata among G, H and I.
Hence,

Amount of D/L x Amount Left for Distribution


Aggregate Amount of D/L

G=
H=
H=
I =
I =

A
B
C
W
F
G
H
I

20T

70T

90T

+
+
+
+
+
+
+
+

Completion/
Legitime
55T
75T
75T
75T

280T

D/L
+
+
+
+
+
+
+
+

35T
15T
30T
80T

=
=
=
=
=
=
=
=

Amount
Received
75,000/00
75,000.00
75,000.00
75,000.00
70,000.00
35,000.00
25,000.00
30,000.00
450,000.00

In the preceding problem, who will get the house and lot
devised to G? G or the compulsory heir?
Following strictly the provision of the law (Article 912), the
compulsory heirs should get the house and lot and they
should pay G the amount of P35,000.00
However, one author (Tolentino) said, in case the devise
cannot be reduced conveniently and the amount of
reduction is equal, the property shall be given to the
devisee.
In this case, the devisee, shall pay the compulsory heirs,
the amount of the reduction.
The above opinion is logical because after all, the testator
wants to give the real property to the devisee.
What about the car? Who among H and the compulsory
heirs will get it?

Formula:

G=

DIV

P70,000.00 x P80,000.00
P160,000.00
P35,000.00
P30,000.00 x P80,000.00
P160,000.00
P15,000.00

Although there is no provision under the law with respect


to personal property, following the reasoning in the
preceding problem, C should be entitled to the car.
*In case, the devise cannot be reduced conveniently, and
the amount of reduction is equal, the property shall be
given to the devisee (Tolentino).

P60,000.00 x P80,000.00
P160,000.00
P80,000.00

page | 106 .
copied and modified from ALLIANCE FOR ALTERNATIVE ACTION
by kotch.agcaoili.agudo

TABLE OF LEGITIMES UNDER THE NEW CIVIL CODE

SURVIVORS

(1)
LEGITIMATE
DESCENDANTS

(3)
SURVIVING
SPOUSE

1/2

Excluded

1/4

1/2

Excluded

Equal to that of a LD

1/2*

1/8

1/2**

1/2***

1/3

Any Class Alone


A
B
C
D
E
F
G

1/2
All Classes but only one (1)
legitimate descendant
All Classes but several legitimate
descendants
(a) Legitimate Ascendants
(b) Surviving Spouse
(c) Illegitimate Children
(a) Legitimate Ascendants
(b) Surviving Spouse
(a) Legitimate Ascendants
(b) Illegitimate Children
(a) Surviving Spouse
(b) Illegitimate Children

(4)
(5)
ACKNOWLEDGED
ACKNOWLEDGE
NATURAL AND/OR
ILLEGAL CHILDREN
NATURAL CHILDREN
NOT NATURAL
BY LEGAL FICTION
Unless, the testator and the surviving spouse were married in articulo mortis and the testator died
within three (3) months from the time of such marriage, in which case the legitime of the spouse as
sole heir is one-third (1/3)
(2)
LEGITIME
ASCENDANTS

1/2 of that of a LD

2/5 of that of a LD

1/4
(5:4)
1/4
(5:4)
1/4
(5:4)
1/3
(5:4)

* If the portion available for distribution is not sufficient, it shall be distributed among the acknowledged natural children or natural children by legal fiction and the spurious
children in the proportion of 5:4.
** If the testator is an illegitimate person, his natural parents are excluded by presence of illegitimate children
*** If natural parents concur with the surviving spouse, the legitime of the former is 1/4, while the latter is also 1/4.

page | 107 .
copied and modified from ALLIANCE FOR ALTERNATIVE ACTION
by kotch.agcaoili.agudo

TABLE OF LEGITIMES UNDER THE FAMILY CODE

B
C
D
E
F
G

SURVIVORS

(1)
LEGITIMATE
DESCENDANTS

Any Class Alone

1/2

All Classes but only one (1)


legitimate descendant
All Classes but several legitimate
descendants
(a) Legitimate Ascendants
(b) Surviving Spouse
(c) Illegitimate Children
(a) Legitimate Ascendants
(b) Surviving Spouse
(a) Legitimate Ascendants
(b) Illegitimate Children
(a) Surviving Spouse
(b) Illegitimate Children

(2)
(3)
(4)
LEGITIME
SURVIVING
ILLEGITMATE
ASCENDANTS
SPOUSE
CHILDREN
Unless, the testator and the surviving spouse were married in articulo
mortis and the testator died within three (3) months from the time of
such marriage, in which case the legitime of the spouse as sole heir is
one-third (1/3)

1/2

Excluded

1/4

1/2 of that of a LD*

1/2

Excluded

Equal to that of a LD

1/2*

1/8

1/2**

1/4

1/2***

1/3

1/3

* If the portion available for distribution is not sufficient, it shall be distributed among the illegitimate children equally
** If the testator is an illegitimate person, his natural parents are excluded by presence of illegitimate children
*** If natural parents concur with the surviving spouse, the legitime of the former is 1/4, while the latter is also 1/4.

page | 108 .
copied and modified from ALLIANCE FOR ALTERNATIVE ACTION
by kotch.agcaoili.agudo

-SUCCESSION(Dean Navarro)
Article 915 to Article 923
Disinheritance

(5) A refusal without justifiable cause to support the


parent or ascendant who disinherits such child or
descendant;

Article 915
A compulsory heir may, in consequence of disinheritance,
be deprived of his legitime, for causes expressly stated by
law.
Article 916
Art. 916. Disinheritance can be effected only through a
will wherein the legal cause therefor shall be specified.
Article 917
The burden of proving the truth of the cause for
disinheritance shall rest upon the other heirs of the
testator, if the disinherited heir should deny it.
Article 918
Disinheritance without a specification of the cause, or for
a cause the truth of which, if contradicted, is not proved,
or which is not one of those set forth in this Code, shall
annul the institution of heirs insofar as it may prejudice
the person disinherited; but the devises and legacies and
other testamentary dispositions shall be valid to such
extent as will not impair the legitime.
Article 919
The following shall be 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;

(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 920
The following shall be 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 the 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
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 to 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 a reconciliation between
them.

(4) When a child or descendant by fraud, violence,


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

page | 109.
copied/modified from: ALLIANCE FOR ALTERNATIVE ACTION
by: kotch agcaoili agudo.

-SUCCESSION(Dean Navarro)
Article 921
The following shall be sufficient causes for disinheriting a
spouse:
(1) When the spouse has been convicted of an attempt
against the life of the testator, his or her descendants,
or ascendants;
(2) When the spouse has accused the testator of a crime
for which the law prescribes imprisonment of six years
or more, and the accusation has been found to be false;
(3) When the spouse by fraud, violence, intimidation, or
undue influence cause the testator to make a will or to
change one already made;
(4) When the spouse has given cause for legal
separation;

What are the requisites for a valid disinheritance?


The following requisites must concur for a valid
disinheritance:
1.
2.
3.
4.
5.
6.
7.
8.

9.

must be made in a valid will


must be express
must be for a legal cause
must be for a true cause
must be for an existing cause
must be total or complete
the cause must be stated in the will itself
the disinherited heir must be designated by
name or in such manner as to leave no room for
doubt as to who it is intended
the will must have been revoked, at least insofar
as the disinheritance is concerned

Who has the burden of proving the truth of the cause of


disinheritance?

(5) When the spouse has given grounds for the loss of
parental authority;

The burden of proof rests upon the other heirs of the


testator if the disinherited heir should deny it.

(6) Unjustifiable refusal to support the children or the


other spouse.

Mr X had a daughter D. Mr X said in his will, I hereby


disinherit my daughter, who is a living disgraceful life,
insofar as one half (1/2) of here legitime is concerned. Is
there a valid disinheritance?

Article 922
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 923
The children and descendants of the person disinherited
shall take his or her place and shall preserve the rights of
compulsory heirs with respect to the legitime; but the
disinherited parent shall not have the usufruct or
administration of the property which constitutes the
legitime.

None. Because the disinheritance is not total.


Why must the disinheritance be total?
Because the offense is one. It cannot be separated into
component parts.
The injury to the feeling is also one. It cannot be erased in
one part and contained in another part of the heart. The
testator cannot be partly offended and partly not.
Suppose X said in his will, I hereby disinherit my
daughter if she elopes with another man. Is there a valid
disinheritance?
None. Because it is conditional.

What is disinheritance?
It is an act of the testator in depriving a compulsory heir of
his legitime for causes expressly stated by law.
What is the purpose of disinheritance?
The purpose of disinheritance is not vengeance but
retribution. Inasmuch as there can be no feelings of
vengeance between parents and children or between
husband and wife at the supreme hour of death.

Suppose X said in his will, I hereby disinherit may


daughter D because she eloped and is now living with a
married one. But if she returns to the family fold, this
disinheritance would be void. Is there a valid
disinheritance?
Yes. Because the disinheritance itself is not conditional. It
is the revocation of the disinheritance which is conditional.

page | 110.
copied/modified from: ALLIANCE FOR ALTERNATIVE ACTION
by: kotch agcaoili agudo.

-SUCCESSION(Dean Navarro)
Why must the disinheritance be unconditional?
Because the disinheritance must be for an existing cause.
A person cannot be deprived of his legitime for an act
which is not yet done. Disinheritance is a form of penalty,
so the cause must have already been committed.
Suppose X stated in his will that should hi son S, maltreat
him, S shall be disinherited. Thereafter, S maltreated X.
Can S B disinherited?
No. He cannot be disinherited because the disinheritance
was conditional. X should have made another will
disinheriting S, due to maltreatment.

may be reprehensible or unconventional will not be


sufficient.
*This question needs clarification as one student argued.
The above stated answer according to him is acceptable
because the student who recited was a female.
But what about if the student who recited was a male?
Would you have the same answer? According to him, the
answer would be different, if a male student was asked the
same question, because, if you are a male and you had sex
with your family driver (man to man), that could be
considered dishonorable life.

X stated in his will, If my son S will reform his ways, he


will inherit. Is this provision valid?

If you were disinherited by your father because you


married a man which your father greatly disliked, is there
a valid disinheritance?

Yes. For this provision is a revocation of disinheritance, so,


it can be conditional.

None. It is not one of the causes provided by law for valid


disinheritance.

Why is civil interdiction included?

If you were disinherited by your father because you


become a mormon and he is a devout catholic, is there a
valid disinheritance?

Because it reflects the immorality of the child and is a


source of dishonor to the family. Besides, succession is
granted by law. So, if there is civil interdiction, the rights of
the heir are suspended, because succession is a statutory
right and not a natural right.
*Civil interdiction is imposed in crimes punishable by
death, reclusion perpetua and temporal.

None. It is not one of the causes provided by law for valid


disinheritance.
If you were convicted by final judgment for your attempt
to kill your uncle, the brother of your father, and you
were sentenced of imprisonment for six (6) years and one
(1) day, can you be validly be disinherited by your father?

When is there maltreatment?


1. maltreatment by deed
Covers all acts of violence against the person of the
testator, short of an attempt to take his life, whether
physical injuries are produced or not.

NO. The law speaks only of an attempt against the life of


the testator, his or her spouse, descendants or ascendants.
A brother is not included in the aforementioned
enumeration. A brother is merely a collateral blood
relative.

2. maltreatment by word

What if the conviction carries with it the penalty of civil


interdiction?

Amounts to slander, addressed directly and personally


against the testator himself.

Then there will be a valid disinheritance, under No 8 of


Article 919.

S tried to kill his father X by strangling. To prevent a


scandal, no charge was filed against S. Can X disinherit
him?

X has two sons named A and B. A attempted to kill his


brother B. Charges were filed against A. Can X disinherit
A?

Yes. On the ground of maltreatment by deed.

Yes. Because X is a descendant of B.

Will there be a valid disinheritance if you were


disinherited by your father because you had sexual
intercourse with the family driver?

In the preceding problem, suppose the RTC convicted A


but the CA reversed the decision. Can X still disinherit A?

None. The words leading a dishonorable or disgraceful life


implies continuity. Hence, a single or an isolated act which

No. Because the prosecution is dismissed even if it is


provisional in nature.

page | 111.
copied/modified from: ALLIANCE FOR ALTERNATIVE ACTION
by: kotch agcaoili agudo.

-SUCCESSION(Dean Navarro)
T disinherited his son, S because he looks more like his
neighbor than him. Is this valid?
No. Because it is not one of the ground expressly provided
for by law for disinheriting a child.
Can you be validly disinherited if you attempted to kill
your father but the family did not file charges?
Yes. On the ground of maltreatment by deed.
What about if you stabbed your and was convicted of the
crime, but thereafter, pardoned by the President. Can you
still be validly disinherited?
Yes. Even if there is a pardon, disinheritance is still proper.
Exception: if the pardon is based on the heirs complete
innocence.
Suppose that your father tried to kill your mother, but
they subsequently reconciled, can you validly disinherit
your father?
No. The reconciliation between the parents deprives the
child of the right to disinherit the offending spouse.
Reason: The child concerned should not more severe than
the spouse who had been offended.

a.

If the acquittal was beyond reasonable doubt,


the accusation is groundless. Consequently, it
can be the basis of disinheritance.

b.

If the acquittal is not beyond reasonable doubt,


the accusation may not be groundless. So it
cannot be a basis for disinheritance.

Suppose X has two (2) children, a son and a daughter. X


induced his daughter to become a prostitute, but the
daughter flatly refused. May X be validly disinherited by
his daughter?
Yes. On the ground that the parent induced his daughter
to live a corrupt or immoral life. Even if the inducement
was unsuccessful. Mere attempt to induce is a sufficient
ground.
If it was a brother who induced his sister to be prostitute,
may the sister disinherit his brother?
No. After all, there would be no need to disinherit the
brother because he is not a compulsory heir of his sister.
In the preceding problem, suppose that it was the son
who was induced by the father to become a callboy. May
the son disinherit his father?
No. But this may be a ground for loss of parental authority.
Once parental authority is lost, disinheritance shall apply.

In the preceding problem, suppose that your mother filed


charges and your father was convicted, but there was
subsequently reconciliation, can you validly disinherit
your father?

In the preceding problem, may the daughter disinherit his


father?

Yes. On the ground of conviction of an attempt against the


life of an ascendant of the testator.

No. Because the term daughter refers only to female


descendants. But this cat may be a ground for loss of
parental authority. Once parental authority is lost,
disinheritance shall apply.

Suppose that you testified against your father on charges


of murder, but he was subsequently acquitted based on a
reasonable doubt. Can your father disinherit you?

Suppose it was the grandfather who induced his


granddaughter?

No. Lack of proof beyond reasonable doubt or lack of


criminal intent does not necessarily mean that the
accusation was groundless.

Yes.

X was charged with murder. One of the witnesses who


testified against him during the trial was his son S. X was
convicted. Can X disinherit S?

No.

Suppose that it was the grand son?

*Although the law mentions only daughters, it must be


construed to mean all female descendants.

No. Because the charge was not groundless.


Can there be a valid disinheritance?
Suppose X was acquitted, can he disinherit his son S?
No.
The answer needs to be qualified:

page | 112.
copied/modified from: ALLIANCE FOR ALTERNATIVE ACTION
by: kotch agcaoili agudo.

-SUCCESSION(Dean Navarro)
Suppose that T stated in his will, I disinherit my son X.
But T did not give any reason as to the cause of the
disinheritance. Is there a valid disinheritance?

*A petition for legal separation may be filed on the


following grounds:
1.

repeated physical violence or grossly abusive


conduct directed against the petitioner, a
common child or a child of the petitioner

2.

physical violence or moral pressure to compel the


petitioner to change religious or political
affiliations

3.

attempt of the respondent to corrupt or induce


the petitioner or a common child or a child of the
petitioner to engage in prostitution or
connivance in such corruption or inducement

4.

final judgment sentencing the respondent to


imprisonment for more than six (6) years, even if
pardoned

5.

drug addiction or habitual alcoholism of the


respondent

6.

lesbianism or homosexuality of the respondent

7.

contracting by the respondent of a subsequent


bigamous marriage, whether in the Philippines or
abroad

8.

sexual infidelity or perversion

9.

attempt of the respondent against the life of the


petitioner

No. Causes must be stated in the will.


When is there an ineffective disinheritance?
There is an ineffective disinheritance when:
1.

there is no cause stated

2.

the cause was denied by the heir concerned and


not proved by the instituted heir

3.

the cause is not one of those provided for by


law.

Suppose that X in his 1985 will, said I gravely resent the


conduct of my son, S, who has maltreated me. Then in a
1995 will, X said, I disinherit my son S for the cause
which I have stated in the 1985 will. Is there a valid
disinheritance?
Yes. There is a valid disinheritance even if the cause for it
has been expressed in one testament and the
disinheritance is made in another provided that the
necessary connection between the cause and the
disinheritance is clearly established.
In the preceding problem. Would it make a difference if in
his 1995 will, X merely said, I hereby disinherit my son S
without mentioning the 1985 will?
Yes. In this case, there is absolutely no connection
between the two (2) statements and the disinheritance
affected can be considered as without legal cause and
therefore, ineffective.

10. abandonment if petitioner by respondent


without justifiable cause for more than one (1)
year
What is the effect of reconciliation?

Suppose that you are married to Ms Roque. You tried to


kill her, but she did not file any charges. Can Ms Roque
validly disinherit you?
Yes. Because I have given a cause for legal separation.
(Refer to the immediately preceding question.) Even if
there is no criminal conviction on your part?

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.
When is there reconciliation?
When there is resumption of friendly relations.

Yes. Because the fact of having given a cause for legal


separation it s sufficient ground for disinheriting a spouse.

Is reconciliation the same as pardon?

Supposed that Ms Roque chanced upon you having sexual


intercourse with the housemaid?

No. Pardon is a unilateral act, while reconciliation is a


bilateral act that needs to be accepted by the offender.

There can be a valid disinheritance for it constitutes an act


of sexual infidelity which is one of the grounds of legal
separation.

If a compulsory heir is validly disinherited, can he still


inherit from the testator?
Yes. If there is a revocation of the disinheritance.
page | 113.
copied/modified from: ALLIANCE FOR ALTERNATIVE ACTION
by: kotch agcaoili agudo.

-SUCCESSION(Dean Navarro)
What are the causes of revocation of disinheritance?
1.

subsequent reconciliation

2.

subsequent institution of the disinherited heir

3.

nullity of the will containing the disinheritance

If the disinherited heir has his own children, may the


children inherit from the testator?
Yes. The children and the descendants of the disinherited
heir shall take his/her place and shall so preserve the
rights of the compulsory heirs with respect to the legitime.
Bu the disinherited parent shall not have usufruct or the
administration of the property which constitutes the
legitime.

Effects of Disinheritance:
1. It deprives the compulsory heir, who is disinherited,
from participating in the inheritance, including his
legitime.
2. If the compulsory heir who is disinherited, has children
or descendants, such children or descendents shall take
his/her place and shall preserve his/her right with respect
to the legitime, although the disinherited parents shall
have no right of usufruct or administration of the property,
which constitutes the legitime. (This is by virtue of
representation. Applies only in the direct descending line,
but never in the ascending.)
X disinherited D without specifying the cause. He
instituted B and C as his sole heirs. The net estate of X is
P120,000.00. Distribute.

If an heir is imperfectly disinherited can he inherit from


the testator?

Yes.
A

Can the imperfectly disinherited heir inherit more than his


legitime?
E

It depends.
No. Where the testator has made dispositions of the entire
estate, the nullity or ineffectiveness of the disinheritance
produces the annulment of testamentary dispositions only
insofar as it prejudices the legitime of the disinherited
heir. It does not affect the dispositions of the testator with
respect to the free portion.
Yes. But if the testator did not dispose of the free portion,
in his will, to others and the disinherited heir is also an
intestate heir, then, by the nullity or ineffectiveness of the
disinheritance, the disinherited heir must receive not only
his legitime but everything that he is entitled to get by the
laws of intestacy.
And if in a previous will there are testamentary
dispositions affecting the free portion in favor of the
compulsory heir, the nullity of the subsequent
disinheritance restores the effectiveness of such
testamentary dispositions in his favor.
As to the representatives: If the testator has not disposed
of the free portion to others and has merely provide for
the disinheritance of a child or a descendant, who has an
intestate heir is entitled to more than the legitime, the
representation should extend to everything that would
have passed to the disinherited heir by operation of law.
This includes the amount that pertains to him, as an
intestate heir and not only that as compulsory heir.

Take note that in the problem, A was preterited because


he was not given anything, B on the other hand, was
imperfectly disinherited.
Since there was a preterition of A, D will still be able to get
the whole legitime and all that he his entitled under the
law of intestacy.
Reason: Preterition of A will annul the imperfect
disinheritance of D, therefore, intestacy will follow.
Hence,
Legitime + Intestate Share = Amount Received
A = 15,000.00 + 15,000.00
= 30,000.00
B = 15,000.00 +
15,000.00
= 30,000.00
C = 15,000.00 +
15,000.00
= 30,000.00
D = 15,000.00 + 15,000.00
= 30,000.00
_______________________________________________
60,000.00
60,000.00
120,000.00
In the preceding problem, suppose D was validly
disinherited. Distribute.
In this case, D will not be entitle to anything, but his
children E and F will represent D with respect to his
legitime. The remaining P60,000.00 will then be divided
equally among A, B and C.

page | 114.
copied/modified from: ALLIANCE FOR ALTERNATIVE ACTION
by: kotch agcaoili agudo.

-SUCCESSION(Dean Navarro)
Hence,
Legitime + Intestate Share = Amount Received
A = 15,000.00 + 20,000.00
= 35,000.00
B = 15,000.00 +
20,000.00
= 35,000.00
C = 15,000.00 +
20,000.00
= 35,000.00
E = 7,5000.00 +
= 7,500.00
F = 7,500.00 +
= 7,500.00
_______________________________________________
60,000.00
60,000.00
120,000.00

Article 924 to Article 959


Legacies and Devises

shall be understood limited to such part or interest,


unless the testator expressly declares that he gives the
thing in its entirety.
Article 930
The legacy or devise of a thing belonging to another
person is void, if the testator erroneously believed that
the thing pertained to him. But if the thing bequeathed,
though not belonging to the testator when he made the
will, afterwards becomes his, by whatever title, the
disposition shall take effect.
Article 931

Article 924
Art. 924. All things and rights which are within the
commerce of man be bequeathed or devised.
Article 925
A testator may charge with legacies and devises not only
his compulsory heirs but also the legatees and devisees.
The latter shall be liable for the charge only to the extent
of the value of the legacy or the devise received by them.
The compulsory heirs shall not be liable for the charge
beyond the amount of the free portion given them.
Article 926

If the testator orders that a thing belonging to another


be acquired in order that it be given to a legatee or
devisee, the heir upon whom the obligation is imposed or
the estate must acquire it and give the same to the
legatee or devisee; but if the owner of the thing refuses
to alienate the same, or demands an excessive price
therefor, the heir or the estate shall only be obliged to
give the just value of the thing.
Article 932
The legacy or devise of a thing which at the time of the
execution of the will already belonged to the legatee or
devisee shall be ineffective, even though another person
may have some interest therein.

When the testator charges one of the heirs with a legacy


or devise, he alone shall be bound.

If the testator expressly orders that the thing be freed


from such interest or encumbrance, the legacy or devise
shall be valid to that extent.

Should he not charge anyone in particular, all shall be


liable in the same proportion in which they may inherit.

Article 933

Article 927
If two or more heirs take possession of the estate, they
shall be solidarily liable for the loss or destruction of a
thing devised or bequeathed, even though only one of
them should have been negligent.
Article 928
The heir who is bound to deliver the legacy or devise shall
be liable in case of eviction, if the thing is indeterminate
and is indicated only by its kind.
Article 929
If the testator, heir, or legatee owns only a part of, or an
interest in the thing bequeathed, the legacy or devise

If the thing bequeathed belonged to the legatee or


devisee at the time of the execution of the will, the legacy
or devise shall be without effect, even though it may have
subsequently alienated by him.
If the legatee or devisee acquires it gratuitously after
such time, he can claim nothing by virtue of the legacy or
devise; but if it has been acquired by onerous title he can
demand reimbursement from the heir or the estate.
Article 934
If the testator should bequeath or devise something
pledged or mortgaged to secure a recoverable debt
before the execution of the will, the estate is obliged to
pay the debt, unless the contrary intention appears.

page | 115.
copied/modified from: ALLIANCE FOR ALTERNATIVE ACTION
by: kotch agcaoili agudo.

-SUCCESSION(Dean Navarro)
The same rule applies when the thing is pledged or
mortgaged after the execution of the will.

more than the amount thereof is ordered paid, the excess


is not due, unless a contrary intention appears.

Any other charge, perpetual or temporary, with which


the thing bequeathed is burdened, passes with it to the
legatee or devisee.

The foregoing provisions are without prejudice to the


fulfillment of natural obligations.
Article 940

Article 935
The legacy of a credit against a third person or of the
remission or release of a debt of the legatee shall be
effective only as regards that part of the credit or debt
existing at the time of the death of the testator.
In the first case, the estate shall comply with the legacy
by assigning to the legatee all rights of action it may
have against the debtor. In the second case, by giving the
legatee an acquittance, should he request one.

In alternative legacies or devises, the choice is presumed


to be left to the heir upon whom the obligation to give
the legacy or devise may be imposed, or the executor or
administrator of the estate if no particular heir is so
obliged.
If the heir, legatee or devisee, who may have been given
the choice, dies before making it, this right shall pass to
the respective heirs.
Once made, the choice is irrevocable.

In both cases, the legacy shall comprise all interests on


the credit or debt which may be due the testator at the
time of his death.
Article 936

In the alternative legacies or devises, except as herein


provided, the provisions of this Code regulating
obligations of the same kind shall be observed, save such
modifications as may appear from the intention
expressed by the testator.

The legacy referred to in the preceding article shall lapse


if the testator, after having made it, should bring an
action against the debtor for the payment of his debt,
even if such payment should not have been effected at
the time of his death.

A legacy of generic personal property shall be valid even


if there be no things of the same kind in the estate.

The legacy to the debtor of the thing pledged by him is


understood to discharge only the right of pledge.

A devise of indeterminate real property shall be valid only


if there be immovable property of its kind in the estate.

Article 937

The right of choice shall belong to the executor or


administrator who shall comply with the legacy by the
delivery of a thing which is neither of inferior nor of
superior quality.

A generic legacy of release or remission of debts


comprises those existing at the time of the execution of
the will, but not subsequent ones.

Article 941

Article 942
Article 938
A legacy or devise made to a creditor shall not be applied
to his credit, unless the testator so expressly declares.

Whenever the testator expressly leaves the right of


choice to the heir, or to the legatee or devisee, the former
may give or the latter may choose whichever he may
prefer.

In the latter case, the creditor shall have the right to


collect the excess, if any, of the credit or of the legacy or
devise.

Article 943

Article 939

If the heir, legatee or devisee cannot make the choice, in


case it has been granted him, his right shall pass to his
heirs; but a choice once made shall be irrevocable.

If the testator orders the payment of what he believes he


owes but does not in fact owe, the disposition shall be
considered as not written. If as regards a specified debt
page | 116.
copied/modified from: ALLIANCE FOR ALTERNATIVE ACTION
by: kotch agcaoili agudo.

-SUCCESSION(Dean Navarro)
Article 944
A legacy for education lasts until the legatee is of age, or
beyond the age of majority in order that the legatee may
finish some professional, vocational or general course,
provided he pursues his course diligently.
A legacy for support lasts during the lifetime of the
legatee, if the testator has not otherwise provided.
If the testator has not fixed the amount of such legacies,
it shall be fixed in accordance with the social standing
and the circumstances of the legatee and the value of the
estate.

From the moment of the testator's death, the thing


bequeathed shall be at the risk of the legatee or devisee,
who shall, therefore, bear its loss or deterioration, and
shall be benefited by its increase or improvement,
without prejudice to the responsibility of the executor or
administrator.
Article 949
If the bequest should not be of a specific and determinate
thing, but is generic or of quantity, its fruits and interests
from the time of the death of the testator shall pertain to
the legatee or devisee if the testator has expressly so
ordered.
Article 950

If the testator or during his lifetime used to give the


legatee a certain sum of money or other things by way of
support, the same amount shall be deemed bequeathed,
unless it be markedly disproportionate to the value of the
estate.

If the estate should not be sufficient to cover all the


legacies or devises, their payment shall be made in the
following order:

Article 945

(1) Remuneratory legacies or devises;

If a periodical pension, or a certain annual, monthly, or


weekly amount is bequeathed, the legatee may petition
the court for the first installment upon the death of the
testator, and for the following ones which shall be due at
the beginning of each period; such payment shall not be
returned, even though the legatee should die before the
expiration of the period which has commenced.

(2) Legacies or devises declared by the testator to be


preferential;

Article 946
If the thing bequeathed should be subject to a usufruct,
the legatee or devisee shall respect such right until it is
legally extinguished.
Article 947
The legatee or devisee acquires a right to the pure and
simple legacies or devises from the death of the testator,
and transmits it to his heirs.
Article 948
If the legacy or device is of a specific and determinate
thing pertaining to the testator, the legatee or devisee
acquires the ownership thereof upon the death of the
testator, as well as any growing fruits, or unborn
offspring of animals, or uncollected income; but not the
income which was due and unpaid before the latter's
death.

(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 others pro rata.
Article 951
The thing bequeathed shall be delivered with all its
accessories and accessories and in the condition in which
it may be upon the death of the testator.
Article 952
The heir, charged with a legacy or devise, or the executor
or administrator of the estate, must deliver the very thing
bequeathed if he is able to do so and cannot discharge
this obligation by paying its value.
Legacies of money must be paid in cash, even though the
heir or the estate may not have any.
The expenses necessary for the delivery of the thing
bequeathed shall be for the account of the heir or the
estate, but without prejudice to the legitime.
page | 117.
copied/modified from: ALLIANCE FOR ALTERNATIVE ACTION
by: kotch agcaoili agudo.

-SUCCESSION(Dean Navarro)
Article 953
The legatee or devisee cannot take possession of the
thing bequeathed upon his own authority, but shall
request its delivery and possession of the heir charged
with the legacy or devise, or of the executor or
administrator of the estate should he be authorized by
the court to deliver it.
Article 954
The legatee or devisee cannot accept a part of the legacy
or devise and repudiate the other, if the latter be
onerous.
Should he die before having accepted the legacy or
devise, leaving several heirs, some of the latter may
accept and the others may repudiate the share
respectively belonging to them in the legacy or devise.

shall be without effect only with respect to the part thus


alienated. If after the alienation the thing should again
belong to the testator, even if it be by reason of nullity of
the contract, the legacy or devise shall not thereafter be
valid, unless the reacquisition shall have been effected by
virtue of the exercise of the right of repurchase;
(3) If the thing bequeathed is totally lost during the
lifetime of the testator, or after his death without the
heir's fault. Nevertheless, the person obliged to pay the
legacy or devise shall be liable for eviction if the thing
bequeathed should not have been determinate as to its
kind, in accordance with the provisions of Article 928.
Article 958
A mistake as to the name of the thing bequeathed or
devised, is of no consequence, if it is possible to identify
the thing which the testator intended to bequeath or
devise.

Article 955

Article 959

The legatee or devisee of two legacies or devises, one of


which is onerous, cannot renounce the onerous one and
accept the other. If both are onerous or gratuitous, he
shall be free to accept or renounce both, or to renounce
either. But if the testator intended that the two legacies
or devises should be inseparable from each other, the
legatee or devisee must either accept or renounce both.

A disposition made in general terms in favor of the


testator's relatives shall be understood to be in favor of
those nearest in degree.

Any compulsory heir who is at the same time a legatee or


devisee may waive the inheritance and accept the legacy
or devise, or renounce the latter and accept the former,
or waive or accept both.
Article 956
. If the legatee or devisee cannot or is unwilling to accept
the legacy or devise, or if the legacy or devise for any
reason should become ineffective, it shall be merged into
the mass of the estate, except in cases of substitution and
of the right of accretion.
Article 957
The legacy or devise shall be without effect:
(1) If the testator transforms the thing bequeathed in
such a manner that it does not retain either the form or
the denomination it had;

What is a legacy?
It is a testamentary disposition by virtue of which a person
is called by the testator to inherit an individual item of
personal property.
What is a devise?
It is a testamentary disposition by virtue of which a person
is called by the testator to inherit an individual item called
real property.
*Legacy is bequeathed, while a devise is devised.
Who are the persons that may be charged with legacies
and devises?
The following may be expressly charged by the testator
with the payment or delivery of a legacy or devises?
1. any compulsory heir
2. any voluntary heir
3. any legatee or devisee
4. the estate represented by the executor or administrator

(2) If the testator by any title or for any cause alienates


the thing bequeathed or any part thereof, it being
understood that in the latter case the legacy or devise
page | 118.
copied/modified from: ALLIANCE FOR ALTERNATIVE ACTION
by: kotch agcaoili agudo.

-SUCCESSION(Dean Navarro)
X said in his will, I hereby give my house and lot located
at 123 Manila to Mr Santos. The house and lot is
actually owned by Mr Ramos. However, X thought that
he owns the house and lot. Is the disposition valid?

Sub Legacy
1.

No. The devise is void.

2.

In the preceding problem, why does the law nullify such


disposition?
Because it is presumed that had the testator known of his
non-ownership, the likelihood is that he would not have
given the devise or legacy.

Duty is on the heir I hereby institute X as


heir. However, he must give P100,000.00 to
I.
Duty is on the legatee or devisee I
hereby give my car to P. But I want him to
give P500,000.00 to A.

*A legatee who is bound to give a sub legacy only to the


extent of the legacy given to him.
A compulsory heir is bound to give a legacy, only insofar as
his legitime is not impaired.

What is wrong with that?


Because you cannot give something to someone, which
you do not possess.

X said in his will, Although I own only one half (1/2) of


the house and lot in 123 Manila, the other half being
owned by Mr Ramos, I give it to Ms Santos. Is this valid?

Can a testator validly dispose something which he does


not own?

Yes. But it is understood to cover only one half (1/2) of the


property.

Yes. That is when the testator orders acquisition of such


thing.

In the preceding problem, suppose prior to Xs death, the


co-ownership is terminated. The property was assigned
to Mr Ramos with X being reimbursed in money for his
share. Subsequently, X died. Will Ms Santos receive
anything?

X said in his will, I hereby give the house and lot located
at 123 Manila presently owned by Mr Ramos to Mr
Santos. Is this a valid disposition?
Yes. In this case, there is a presumption that the testator
orders the acquisition of said thing in order that the same
may be given to Mr Santos.

No. In view of the alienation of Xs halfs share in the


property of Mr Ramos. Xs consent to the adjudication of
the house and lot to Mr Ramos has the effect of alienation
of a legacy by operation of law.

*The order to acquire may be expressed or implied, since,


the law does not distinguish, it may be implied because
when the testator showing of anothers ownership, gives
the property to the legatee or devisee, there exists a
presumption that the testator really wants the gift to be
effective, and from there, it can be inferred that he desires
the acquisition of such property.

In the preceding problem, will it make any difference if X


said in his will, I hereby give the whole of the house and
lot located in 123 Manila to Ms Santos even if a only own
half of it.

In the preceding question, even if the testator did not


expressly state his order to acquire the property?

In the preceding problem, suppose prior to Xs death, the


co-ownership was terminated. The property was assigned
to Mr Ramos, with X being reimbursed in money for his
share (1/2 of the property). Subsequently, X died. Will Ms
Santos receive anything?

Yes. Because the order may be implied.


Suppose that after Xs death, Mr Ramos refuses to sell
the property, will there be a valid disposition?
Yes. The rule in this case is that, when the owner of the
thing refuses to alienate the same or demands an
excessive price thereof, the heir or the estate shall only be
obliged to give the just value of the property.

Yes. In this case, it is understood to cover the whole house


and lot.

Yes. In this case, Ms Santos will get of the house and lot,
the part which pertains to Mr Ramos.
Why?
It is true that in consenting to be reimbursed of his share,
X in effect had alienated his share to Mr Ramos, and thus,
revoked by operation of law the legacy, insofar as the
original share (1/2 of the share of Mr X) was concerned.

page | 119.
copied/modified from: ALLIANCE FOR ALTERNATIVE ACTION
by: kotch agcaoili agudo.

-SUCCESSION(Dean Navarro)
However, inasmuch as he has given the whole house and
lot to Ms Santos, it follows that there is no revocation
insofar as the other half (share of Mr Ramos) is concerned.

If the acquisition of Mr Ramos after the execution of the


will ad been from X himself, would the devise be void?
No. The devise would still remain valid.

Does it mean that upon Xs death, Mr Ramos and Ms


Santos will now be co-owners of the house and lot?
No. It is still subject to the subsequent acquisition of the
estate or the heir. (?)
X said in his will, I give the house and lot located at 123
Manila to Mr Ramos. After Xs death, his children, A, B
and C took possession of the property. Due to the
negligence of B, the property is burned. What is the
remedy of Mr Ramos?
Mr Ramos can go after the children. In this case, the
liability of the children is solidary. Hence, Mr Ramos ca
demand reimbursement from any of them (A,B and C).
X said in his will, I give the house and lot located at 123
Manila to Mr Ramos. At the time of the execution of the
will, Mr Ramos is the owner of the property. Is it a valid
disposition/devise?
No. The devise is void, since the property already belonged
to Mr Ramos at the time of the execution of the will.
In the preceding problem, would it make any difference if
one (1) year before Xs death Mr Ramos sold the property
to Mr Santos and Mr Santos owned the property until the
death of X?

While it is true that ordinarily the alienation by the


testator revokes the legacy, the exception is when the
alienation is in favor of the legatee himself.
Hence, since the law does not distinguish, the devisee
would still be entitled to a reimbursement from the estate
of the testator if the acquisition by onerous title.
*If the acquisition of Mr Ramos from X was gratuitous,
there can be no reimbursement.
In his will, T gave his car to L. Later, T sold the car to S
who subsequently sold the same to L. L remained the
owner of the car until Ts death. Is L entitled to
reimbursement?
No. Because the legacy has already been revoked from the
very moment the car was sold to S. It does not matter
anymore that L subsequently acquired from S by onerous
title.
Rule if the thing devised or bequeathed is pledged or
mortgaged:
1. The estate must free the property given by:
a.
b.

No. The devise is still ineffective and void, since the


property belonged to Mr Ramos at the time of the
execution of the will. Its subsequent alienation is
immaterial.
In the preceding problem, would it make any difference if
one (1) year before his death, X bought the property from
Mr Ramos?

c.

2. What cannot be eliminated:


a.
b.
c.
d.

Yes. In this case, there is a presumption that X bought the


property from Mr Ramos in order to give effect to the
devise/disposition.
Suppose that Mr Ramos acquired the property only after
the execution of the will, would he be entitled to
anything?

pledges
mortgages it is immaterial whether before
or after the execution of the will
any other encumbrance or lien, like
antichresis, if given to secure or guarantee a
recoverable debt.

easements
usufructs
leases which are real rights
any other charge, whether perpetual or
temporal, with which the thing bequeathed
or devised is burdened.

Testator devised a property at 123 Espanya Manila to Mr


Ramos. Thereafter, testator loaned from a bank and
mortgaged the devised property. IS the devise still valid?

Yes. He is entitled to a reimbursement for what he paid for


the property.

Yes.

Suppose that Mr Ramos acquired the property by means


of donation. Will he be entitled to anything?

In the preceding problem, is the estate obliged to pay the


mortgaged debt?

No. Because the acquisition was gratuitous.

Yes.
page | 120.
copied/modified from: ALLIANCE FOR ALTERNATIVE ACTION
by: kotch agcaoili agudo.

-SUCCESSION(Dean Navarro)
Would it make any difference if it was mortgaged before
the execution of the will?

Is it the same with remission?


Yes.

No. Whether the mortgaged was made before or after the


execution of the will where the devise was made, the
devise remains valid and the estate is obliged to pay the
mortgaged debt, so that the devisee will get the property
free of mortgaged debts.

What is the duration for support?


A legacy for support lasts during the lifetime of the
legatee, if the testator has not otherwise provided.

What is legacy of credit?


What is a legacy of condonation?

If it is a legacy for support, how is the amount


determined?

(See Paras)

If the testator has not fixed the amount of such legacies, it


shall be fixed in accordance with the social standing and
the circumstances of the legatee and the value of the
estate.

If X indebted to Y for P5,000.00 and in his will be


bequeaths P3,000.00 to him. How much W is entitled to?
He is entitled to P8,000.00. The general rule is that a
legacy or devise made to a creditor shall not be applied to
his credit.
In the preceding problem, would it make a difference if X
stated in his will, I give Y P5,000.00 in payment of the
P5,000.00 which I borrowed from him in 1970.
Yes.
The exception to the rule is when the testator expressly
declares that the legacy or devise must be applied to the
credit.
In this case, Y gets nothing but the payment of his credit.
Suppose that Y bequeathed P10,000.00 and the debt is
only P5,000.00 and X declared in his will that the legacy
shall be applied to the payment of the debt. How much is
Y entitled to?
Y is entitled to the payment of his credit (P5,000.00) and
he can still collect the excess of P5,000.00 by way of
legacy.
If the debt is P5,000.00 and legacy is P7,000.00, how
much can Y collect?
Y can still collect the balance of P2,000.00 by way of
legacy.
Suppose Y owe X P100,000.00. In his will, he said, I
hereby give Z the legacy of credit to Y. One (1) year
before his death, X sent Y a letter demanding payments.
Is it a valid disposition?
Yes. In order for the legacy to be revoked, the demand
must be made judicially. Therefore, a mere extrajudicial
demand is not sufficient.

If the testator during his lifetime used to give the legatee a


certain sum of money or other things by way of support,
the same amount shall be deemed bequeathed, unless it
be marked disproportionate to the value of the estate.
What is the duration for education?
A legacy for education lasts until the legatee is of age or
beyond the age of majority, in order that the legatee may
finish some professional vocational or general course,
provided, he pursues his course diligently.
When does the legatee acquire the right over the legacy?
The right over the legacy or devise is vested at the
moment of the testators death.
What about if the legacy or devise is subject to a
condition?
From the moment of the death also, provided, that the
condition is fulfilled.
What about if it is subject to a term?
If the gift is subject to a suspensive term, the right also
vests from the moment of the testators death, although,
it does not become effective, until after the arrival of the
suspensive term.
If the gift is with a resolutory term, the right also vests
form the moment of the testators death but will end
when the resolutory term arrives.
When does the legatee or devise acquire ownership over
the thing?
If its is pure and simple and it is owned by the testator at
the time of his death, then the ownership of the thing is
acquired at the moment of the death of the testator.
page | 121.
copied/modified from: ALLIANCE FOR ALTERNATIVE ACTION
by: kotch agcaoili agudo.

-SUCCESSION(Dean Navarro)
If the thing is owned by a third person, ownership over the
thing is acquired upon the acquisition by the estate, of
such property, from the third person.
X said in his will, I hereby give Y a car. Suppose there is
no car in the estate, is the disposition valid?
Yes. In the case of generic personal property, it remains
valid even if there is none in the estate. In this case, it is
evident that the estate is being required to get one so that
it can be given to Y.

If both be gratuitous, can he accept one and renounce the


other?
Yes. He shall be free to accept or renounce both or to
renounce either.
Article 911 and 950 mentioned an order of preference
when do you apply them?
Apply Article 950 only when the reduction concerns the
legacies and devises.

X stated in his will, I give M ten (10) hectares of coconut


land. Suppose that none can be found in the estate, but
the (10) hectares of fishpond. Is there a valid disposition?

When the legitime is impaired or when there are


donations inter vivos chargeable to the free disposal, apply
Article 911.

None.

*Article 950 applies in all cases where the conflict is


exclusively among the legatees and the devisees
themselves. This is possible in either two (2) cases:

In the two immediately preceding problems, why the


difference?
The genus in personal property is determined by nature so
that the substitution of individuals by others of the same
kind within the genus of species is possible, while such
substitution is not possible in case of real property,
because their limits and individualization depend upon the
will of man.
Suppose that the testator bequeathed a partly onerous
and partly gratuitous gift to Y. Can Y accept the
gratuitous one?
No. The legatee or devisee cannot accept a part of the
legacy or devise and repudiate the other, if the latter be
onerous.
Reason: Because of the presumption that the testator
would not have given the gratuitous devise or legacy
without the onerous one.
If X give two (2) legacies to Y, one onerous and one
gratuitous. Can Y revoke the onerous one?
No.
In the preceding problem, can Y accept the onerous one
and reject the gratuitous one?
Yes. There is no prohibition under the law.
If both be onerous, can he accept one and renounce the
other?
Yes. He shall be free to accept or renounce both or to
renounce either.

1. when there are no compulsory heirs and the


entire estate is distributed by the testator as
legacies or devises
2. when there are compulsory heirs, but their
legitime has already been provided for by the
testator and there are no donation inter vivos
Article 911 applies in the following cases:
1. when the reduction is necessary to preserve
the legitime of the compulsory heirs from
impairment, whether there are donations
inter vivos or not
2. when although the legitime has been
preserved by the testator himself by leaving
the compulsory heirs sufficient property to
cover their legitime, there are donations inter
vivos concurring with the legacies and devises
within the free portion
Article 950. If the estate should not be sufficient to cover
all the legacies or devises, their payment shall be made in
the following order:
1. remuneratory legacies or 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
things which forms a part if the estate
6. all others pro- rata

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-SUCCESSION(Dean Navarro)
When is there a transformation?

A bracelet was melted and made into a necklace, is there


an implied revocation?

When the testator transforms the thing bequeathed in


such a manner that it does not retain either the form or
the denomination it had.

Yes. Because there is a change on form and denomination.

What are the different causes of implied revocation of


legacies and devises?

X stated in his will, I give my friend F, five (5) hectares of


land for services rendered in the past. Thereafter, X sold
two (2) hectares of the portion devised to F. What is the
effect?

They are the following:


1.

2.

3.

revocation by transformation if the testator


transforms the thing bequeathed in such a
manner that it does not retain both the form and
the denomination it had.
revocation by alienation if the testator by any
title whether by sale or any other act of
disposition inter vivos alienates the thing
bequeathed or any part thereof.
revocation by loss or destruction if the thing
bequeathed is totally lost during the lifetime of
the testator or after his death without the heirs
fault.

*The aforementioned instances of revocation are examples


of what is known as revocation my implication of law
within the meaning of No.1 of Article 830. They take effect
automatically and by operation of law.
What is essential in order that revocation by
transformation may take effect?
The transformation must be both with respect to the form
and the denomination. Transformation with respect to the
form only is not sufficient. Neither is transformation with
respect to the denomination but not with respect to the
form.
What is form as applied to the thing bequeathed or
devised?
It refers to the external appearance of the thing.
What is denomination with respect to the thing
bequeathed or devised?

The devise shall take effect on the remaining three (3)


hectares. In this case, there is only a partial revocation.
(Article 957[2])
What if in the preceding problem, X has reacquired the
two (2) hectare land. Will the devise be revived? Or will
Martin be entitled again to the original devise, which is
five (5) hectares of land?
No. Except only of the reacquisition was made by X by
virtue of the exercise of the right of repurchase (Article
957[2]). This is only the exception. This must not be
confused with Article 930.
X gave his house and lot located in 123 Espanya, Manila
to Mr Santos, three (3) years after the execution of the
will, X sold it to Mr Ramos. A year later, X filed an
annulment of sale of the ground that he was induced by
fraud. The court nullified the sale. Is the devise valid?
Yes. Nullity of contract refers to acts that are considered
as voluntary alienation. Nullity of contracts does not
include fraud. In this case, the devise is valid because there
is no consent. Hence, there was no alienation. Therefore,
the devise remains valid.
*Do not confuse the immediately preceding problem with
the rule, that the only exception in order to have a revival
of the devise, in cases of alienation is, when the testator
has reacquired the thing alienated by virtue of the exercise
of his right of repurchase. In this case, there is really an
intention to alienate.
On the other hand, in the problem presented in the
immediately preceding problem, there was no intention to
alienate because of the presence of fraud or the consent is
vitiated. Thus, the problem presented is not really an
exception, but the devise remains valid.

It refers to the name by which the thing is known.


X stated in his will, I devised my fishpond to my friend
F. One (1) thereafter, X transformed the fishpond into a
basketball court. Is there an implied revocation?

(Bakit valid pa rin kung hindi pala exception? Eh kasi nga


wala naman talagang intention na ibenta ng testator yung
devise. Talagang naloko lang siya. Kaya hindi naapektuhan
yung devise at walang implied revocation by operation of
law.)

Yes. Because both the form and the denomination has


been changed. There is an implied revocation by
transformation.
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-SUCCESSION(Dean Navarro)
th

What if the preceding problem, X donated the house and


lot to Mr Ramos. Thereafter, X recovered the donation
from Mr Ramos. Is the devise still valid?

2. Relatives must be within the fifth (5 ) degree. Relatives


affinity are excluded. Hence, W cannot inherit for more
then her legitime.

No. From the moment X donated the house and lot to Mr


Ramos, the devise in favor of Mr Santos was automatically
revoked. The subsequent recovery of the donated
property did not revived the devise. The consent to
alienate in this case was voluntary. (Article 957[2]).

3. Rule of proximity the nearest degree excludes the


father.
4. There is no right of representation.
5. No preference between the lines.

What is the consequence if there is a mistake as to the


name of the thing bequeathed or devised?
A mistake in the name of the thing bequeathed or devised
is of no consequence if it is possible to identify the thing
which the testator intended to bequeath or devised.
(Article 958)

6. If a testator gives some of his properties and uses the


words, to all who are entitled thereto, Article 959 cannot
be applied because the clause evidently refers to intestate
heirs and not to the testators relative.

How shall a disposition made in general terms, in favor of


the testators relatives be understood?
It shall be understood to be in favor of those nearest in
degree. (Article 959)
*There is only one (1) rule that will apply in Article 959 and
that is the rule of proximity. Consequently, the other rules
of intestate succession, such as, the rule of preference
between lines, the right of representation and the rule on
double share for full-blood collaterals are not applicable.
See Paras for illustrative examples.
X said in his will, I give the entire free portion of my
property to my relatives. He was survived by two (2)
brothers and his grandfather, a nephew by a deceased
brother and his wife.
Illustration:
GF
F (+)

C(+) X

D
In the preceding problem, who can inherit from X?
Grandfather (GF), A and B.
Note:
1. A disposition made in general terms, in favor of the
testators relatives shall be understood to be in favor of
those nearest in degree.
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-SUCCESSION(Dean Navarro)
Article 960 to Article 1014
Legal or Intestate Succession
Article 960 to Article 962
General Provisions
Article 960
Legal or intestate succession takes 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. In such case,
legal succession shall take place only with respect to the
property of which the testator has not disposed;

Article 964
A series of degrees forms a line, which may be either
direct or collateral.
A direct line is that constituted by the series of degrees
among ascendants and descendants.
A collateral line is that constituted by the series of
degrees among persons who are not ascendants and
descendants, but who come from a common ancestor.
(916a)
Article 965
The direct line is either descending or ascending.

(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
takes place;

The former unites the head of the family with those who
descend from him.

(4) When the heir instituted is incapable of succeeding,


except in cases provided in this Code. (912a)

Article 966

Article 961

In the line, as many degrees are counted as there are


generations or persons, excluding the progenitor.

In default of testamentary heirs, the law vests the


inheritance, in accordance with the rules hereinafter set
forth, in the legitimate and illegitimate relatives of the
deceased, in the surviving spouse, and in the State.
(913a)

In the direct line, ascent is made to the common ancestor.


Thus, the child is one degree removed from the parent,
two from the grandfather, and three from the greatgrandparent.

Article 962
In every inheritance, the relative nearest in degree
excludes the more distant ones, saving the right of
representation when it properly takes place.
Relatives in the same degree shall inherit in equal shares,
subject to the provisions of article 1006 with respect to
relatives of the full and half blood, and of Article 987,
paragraph 2, concerning division between the paternal
and maternal lines. (912a)
Article 963 to Article 969
Relationships
Article 963

The latter binds a person with those from whom he


descends. (917)

In the collateral line, ascent is made to the common


ancestor and then descent is made to the person with
whom the computation is to be made. Thus, a person is
two degrees removed from his brother, three from his
uncle, who is the brother of his father, four from his first
cousin, and so forth. (918a)
Article 967
Full blood relationship is that existing between persons
who have the same father and the same mother.
Half blood relationship is that existing between persons
who have the same father, but not the same mother, or
the same mother, but not the same father. (920a)

Proximity of relationship is determined by the number of


generations. Each generation forms a degree. (915)

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Article 968

Article 974

If there are several relatives of the same degree, and one


or some of them are unwilling or incapacitated to
succeed, his portion shall accrue to the others of the same
degree, save the right of representation when it should
take place. (922)

Whenever there is succession by representation, the


division of the estate shall be made per stirpes, in such
manner that the representative or representatives shall
not inherit more than what the person they represent
would inherit, if he were living or could inherit. (926a)

Article 969

Article 975

If the inheritance should be repudiated by the nearest


relative, should there be one only, or by all the nearest
relatives called by law to succeed, should there be
several, those of the following degree shall inherit in their
own right and cannot represent the person or persons
repudiating the inheritance. (923)

When children of one or more brothers or sisters of the


deceased survive, they shall inherit from the latter by
representation, if they survive with their uncles or aunts.
But if they alone survive, they shall inherit in equal
portions. (927)

Article 970 to 977


Right of Representation
Article 970
Representation is a right created by fiction of law, by
virtue of which the representative is raised to the place
and the degree of the person represented, and acquires
the rights which the latter would have if he were living or
if he could have inherited. (942a)
Article 971

Article 976
A person may represent him whose inheritance he has
renounced. (928a)
Article 977
Heirs who repudiate their share may not be represented.
(929a)
Article 978 to Article 984
Order of Intestate Succession
Descending Direct Line

The representative is called to the succession by the 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. (n)

Succession pertains, in the first place, to the descending


direct line. (930)

Article 972

Article 979

The right of representation takes place in the direct


descending line, but never in the ascending.

Legitimate children and their descendants succeed the


parents and other ascendants, without distinction as to
sex or age, and even if they should come from different
marriages.

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. (925)
Article 973
In order that representation may take place, it is
necessary that the representative himself be capable of
succeeding the decedent. (n)

Article 978

An adopted child succeeds to the property of the


adopting parents in the same manner as a legitimate
child. (931a)
Article 980
The children of the deceased shall always inherit from
him in their own right, dividing the inheritance in equal
shares. (932)

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Article 981
Should children of the deceased and descendants of
other children who are dead, survive, the former shall
inherit in their own right, and the latter by right of
representation. (934a)

half to the maternal ascendants. In each line the division


shall be made per capita. (937)
Article 988 to Article 994
Illegitimate Children
Article 988

Article 982
The grandchildren and other descendants shall inherit by
right of representation, and if any one of them should
have died, leaving several heirs, the portion pertaining to
him shall be divided among the latter in equal portions.
(933)
Article 983
If illegitimate children survive with legitimate children,
the shares of the former shall be in the proportions
prescribed by Article 895. (n)
Article 984
In case of the death of an adopted child, leaving no
children or descendants, his parents and relatives by
consanguinity and not by adoption, shall be his legal
heirs. (n)
Article 985 to Article 987
Ascending Direct Line

In the absence of legitimate descendants or ascendants,


the illegitimate children shall succeed to the entire estate
of the deceased. (939a)
Article 989
If, together with illegitimate children, there should
survive descendants of another illegitimate child who is
dead, the former shall succeed in their own right and the
latter by right of representation. (940a)
Article 990
The hereditary rights granted by the two preceding
articles to illegitimate children shall be transmitted upon
their death to their descendants, who shall inherit by
right of representation from their deceased grandparent.
(941a)
Article 991

Article 985

If legitimate ascendants are left, the illegitimate children


shall divide the inheritance with them, taking one-half of
the estate, whatever be the number of the ascendants or
of the illegitimate children. (942-841a)

In default of legitimate children and descendants of the


deceased, his parents and ascendants shall inherit from
him, to the exclusion of collateral relatives. (935a)

Article 992

Article 986
The father and mother, if living, shall inherit in equal
shares.

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. (943a)
Article 993

Should one only of them survive, he or she shall succeed


to the entire estate of the child. (936)
Article 987
In default of the father and mother, the ascendants
nearest in degree shall inherit.

If an illegitimate child should die without issue, either


legitimate or illegitimate, his father or mother shall
succeed to his entire estate; and if the child's filiation is
duly proved as to both parents, who are both living, they
shall inherit from him share and share alike. (944)

Should there be more than one of equal degree belonging


to the same line they shall divide the inheritance per
capita; should they be of different lines but of equal
degree, one-half shall go to the paternal and the other
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Article 994

Article 1000

In default of the father or mother, an illegitimate child


shall be succeeded by his or her surviving spouse who
shall be entitled to the entire estate.

If legitimate ascendants, the surviving spouse, and


illegitimate children are left, the ascendants shall be
entitled to one-half of the inheritance, and the other half
shall be divided between the surviving spouse and the
illegitimate children so that such widow or widower shall
have one-fourth of the estate, and the illegitimate
children the other fourth. (841a)

If the widow or widower should survive with brothers and


sisters, nephews and nieces, she or he shall inherit onehalf of the estate, and the latter the other half. (945a)
Article 995 to Article 1002
Surviving Spouse
Article 995
In the absence of legitimate descendants and
ascendants, and illegitimate children and their
descendants, whether legitimate or illegitimate, the
surviving spouse shall inherit the entire estate, without
prejudice to the rights of brothers and sisters, nephews
and nieces, should there be any, under article 1001.
(946a)
Article 996
If a widow or widower and legitimate children or
descendants are left, the surviving spouse has in the
succession the same share as that of each of the children.
(834a)
Article 997
When the widow or widower survives with legitimate
parents or ascendants, the surviving spouse shall be
entitled to one-half of the estate, and the legitimate
parents or ascendants to the other half. (836a)

Article 1001
Should brothers and sisters or their children survive with
the widow or widower, the latter shall be entitled to onehalf of the inheritance and the brothers and sisters or
their children to the other half. (953, 837a)
Article 1002
In case of a legal separation, if the surviving spouse gave
cause for the separation, he or she shall not have any of
the rights granted in the preceding articles. (n)
Article 1003 to Article 1010
Collateral Relatives
Article 1003
If there are no descendants, ascendants, illegitimate
children, or a surviving spouse, the collateral relatives
shall succeed to the entire estate of the deceased in
accordance with the following articles. (946a)
Article 1004
Should the only survivors be brothers and sisters of the
full blood, they shall inherit in equal shares. (947)

Article 998
Article 1005
If a widow or widower survives with illegitimate
children, such widow or widower shall be entitled to onehalf of the inheritance, and the illegitimate children or
their descendants, whether legitimate or illegitimate, to
the other half. (n)

Should brothers and sisters survive together with


nephews and nieces, who are the children of the
descendant's brothers and sisters of the full blood, the
former shall inherit per capita, and the latter per stirpes.
(948)

Article 999
Article 1006
When the widow or widower survives with legitimate
children or their descendants and illegitimate children or
their descendants, whether legitimate or illegitimate,
such widow or widower shall be entitled to the same
share as that of a legitimate child. (n)

Should brother and sisters of the full blood survive


together with brothers and sisters of the half blood, the
former shall be entitled to a share double that of the
latter. (949)

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Article 1007
In case brothers and sisters of the half blood, some on the
father's and some on the mother's side, are the only
survivors, all shall inherit in equal shares without
distinction as to the origin of the property. (950)
Article 1008
Children of brothers and sisters of the half blood shall
succeed per capita or per stirpes, in accordance with the
rules laid down for the brothers and sisters of the full
blood. (915)
Article 1009
Should there be neither brothers nor sisters nor children
of brothers or sisters, the other collateral relatives shall
succeed to the estate.
The latter shall succeed without distinction of lines or
preference among them by reason of relationship by the
whole blood. (954a)

If the deceased never resided in the Philippines, the


whole estate shall be assigned to the respective
municipalities or cities where the same is located.
Such estate shall be for the benefit of public schools, and
public charitable institutions and centers, in such
municipalities or cities. The court shall distribute the
estate as the respective needs of each beneficiary may
warrant.
The court, at the instance of an interested party, or on its
own motion, may order the establishment of a
permanent trust, so that only the income from the
property shall be used. (956a)
Article 1014
If a person legally entitled to the estate of the deceased
appears and files a claim thereto with the court within
five years from the date the property was delivered to the
State, such person shall be entitled to the possession of
the same, or if sold the municipality or city shall be
accountable to him for such part of the proceeds as may
not have been lawfully spent. (n)

Article 1010
The right to inherit ab intestato shall not extend beyond
the fifth degree of relationship in the collateral line.
(955a)
Article 1011 to Article 1014
The State
Article 1011
In default of persons entitled to succeed in accordance
with the provisions of the preceding Sections, the State
shall inherit the whole estate. (956a)
Article 1012
In order that the State may take possession of the
property mentioned in the preceding article, the
pertinent provisions of the Rules of Court must be
observed. (958a)
Article 1013
After the payment of debts and charges, the personal
property shall be assigned to the municipality or city
where the deceased last resided in the Philippines, and
the real estate to the municipalities or cities, respectively,
in which the same is situated.
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-SUCCESSION(Dean Navarro)
TABLE OF INTESTATE SUCCESSION UNDER THE FAMILY CODE
SURVIVORS
1. Any class alone

Whole Estate

SHARE

2. (a) Legitimate Children


(b) Legitimate Parents
3. (a) Legitimate Children

Whole Estate
Excluded
Concurrence or

DIVISION
Rule of Proximity (Article 962, New Civil
Code
Rule of Proximity (Article 962, New Civil
Code
Concurrence Theory Satisfy legitime
and then distribute the disposable
portion, if any, pro rata (10:5).
(Articles 895,983,996,999 New Civil Code)

(b) Illegitimate Children


4. (a) Legitimate Children

(b) Surviving Spouse


5. (a) Legitimate Children

Exclusion Theory
Surviving spouse entitled to the same
share as each legitimate child

Concurrence or

Exclusion Theory Satisfy their legitime


and then give the disposable portion. If
any, to the preferred heir in the order of
intestate succession. (Articles
895,961,983,996,999 New Civil Code)

(b) Illegitimate Children

Exclusion Theory

(c) Surviving Spouse

Note: The legitime of each illegitimate


child shall consists of one half (1/2) of the
legitime of a legitimate child (Article 176,
Family Code)
One half (1/2)

6. (a) Legal Parents

(b) Illegitimate Children

One half (1/2)

7.

(a) Legitimate Parents

One half (1/2)

8.

(b) Surviving Spouse


(a) Legitimate Parents

One half (1/2)


One fourth (1/4)

(b) Illegitimate Children

One fourth (1/4)

(c) Surviving Spouse


(a) Illegitimate Children

One half (1/2)

9.

(b) Surviving Spouse


(a) Surviving Spouse

One half (1/2)

10.

(b) Brothers and Sisters,


Nephews and Nieces
11. Collaterals

Whole Estate
Whole Estate

If decedent is an illegitimate person, his


natural parents are excluded by presence
of illegitimate child (Article 991).
Same share even if decedent is an
illegitimate person (Article 997, New Civil
Code).

Article 176, Family Code


Article 176, Family Code

Article 1001, New Civil Code

Articles 1003-1010, New Civil Code


Principle of Proximity
Articles 1011-1014, New Civil Code
Escheat Proceedings

12. State

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What is a legal or intestate succession?
It is that which is effected by operation of law in default if
a will.
Why is it that the designation made by the law of the
person/s who shall succeed the decedent, in cases of legal
or intestate succession is considered as the presumed will
of the decedent?

4.

for the State

*The order of intestate succession is prescribed by law.


Hence, any agreement or partnership contract entered into
by the parties cannot affect the hereditary rights which
belong to the relatives of the deceased predecessor-ininterest, not alter the order prescribed by law for intestate
succession.
What is the rule of preference between lines?

It proceeds on the principle that if the decedent had made


a will, he would have provided, first for his children or
descendants; second for his parents or ascendants and
third, for his collaterals.
Human experience taught us that if the testator was able
to execute a will, he would have provided for those
persons in the order of succession provided for by law.
What is the most essential feature of legal or intestate
succession?
It is the law which operates not the will of the decedent.
When is there intestate succession?

Those in the direct descending line shall exclude in the


succession those in the direct ascending and collateral
lines and those in the direct ascending line shall in turn
exclude those in the collateral line.
Example: Although the son and the father of the decedent
are both one (1) degree removed from the latter, the son
shall exclude the father.
The grandson is two (2) degrees removed from the
decedent, a brother is also two (2) degrees removed from
the decedent, but the grandson shall exclude the
decedents brother in the succession.
*Article 962 paragraph 1 states the rule of proximity,
paragraph 2 thereof states the rule of equal division.

See Article 960.


What are the other causes of intestacy other than those
enumerated under Article 960?

In every inheritance whether testamentary or intestate,


the relatives nearest in degree to the decedent shall
exclude the more distant ones.

They are:
1.

when there is preterition in the testators will of


one or some or all of the compulsory heirs in the
direct descending line

2.

when the testamentary disposition is subject to


a resolutory condition and such condition is
fulfilled

3.

when a testamentary disposition is subject to a


term or period and such term or period expires

4.

when a testamentary disposition is impossible of


compliance or is ineffective.

What is the order of intestate succession?


In default of testamentary heirs, it is presumed that he
would have provided:
1.
2.
3.

What is the rule of proximity?

for the legitimate relatives


for the illegitimate relatives
for the surviving spouse

Example: Son excludes the grandson, a father excludes the


grandfather a brother excludes the nephew.
*It is presumed that the rule of proximity presupposes that
all of the relatives belong to the same line. In other words,
the rule of proximity is subordinated to the rule of
preference between lines by virtue of which those in the
direct descending line shall exclude those in the direct
ascending line and collateral line while those in the direct
ascending line shall exclude those in the collateral line
(refer to example previously given under the rule of
preference between lines and the rule of proximity).
Rule of Proximity nearest relatives excludes the father
relatives. This is without prejudice to the right of
representation because by virtue of representation, the
farther relatives becomes just as near as the nearest
relatives.
X has two (2) sons named A and B. B on the other hand
has two (2) sons named C and D. In 1985, B died.
Thereafter, X died survived by his son A and his
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grandsons C and D. Can A exclude C and D in the
succession by virtue of the rule of proximity?
No. C and D cannot be excluded by A. In the succession,
of the rule of proximity. By virtue of the right of
representation, they are raised to the degree of their
deceased father.

Can the grandchildren inherit in their own right?


Yes. If all the children of the testator repudiate the
inheritance. (Article 969).
X had two (2) sons A and B. B has a son named C. C has a
son named D.
Illustration:

*The right of representation also apply in case B was


incapacitated or disinherited on the above example.

X (+1999)

What is the rule of equal division?

The relatives of the same degree shall inherit in equal


shares. (Like the rule of proximity, this rule also
presupposes that all relatives belong to the same line.
What are the exceptions to the rule of equal division?
1.

when the inheritance is divided between


paternal and maternal grandparents

2.

when the inheritance is divided among brothers


and sisters, some of whom are full blood and
others of half blodd

3.

in cases when the right of representation takes


place.

Can there be a right of representation?


No.
Is there a right of representation on the direct descending
line?
Yes.
Is there a right of representation in the collateral line?
General Rule: No.

B (+1997)
C
D

In the preceding illustration, if B dies in 1997 but C


repudiates his share. Later X dies in 1999, can C still
inherit from X?
Yes. C can still inherit from X by representing B.
In the illustration, when C repudiated his inheritance from
B, can D represent C in the inheritance from B?
No. D cannot represent C in the inheritance from B
because heirs who repudiated their share may not be
represented.
*Article 976. A person may represent him whose
inheritance he has renounced.
Heirs who repudiate their share may not be represented.
What are the consequences of the principle that the
representatives inherit from the decedent and not from
the person represented?
They are:

Exception: It takes place in cases when the nephews and


nieces survive with at least one (1) uncle or auntie

1.

What about if the nephews and nieces are the only


survivors? How will they inherit?

the representatives must be capable of


succeeding the decedent (Article 973)

2.

even if the representative is incapable of


succeeding the person represented he can still
inherit by right of representation so long as, he is
capable of succeeding the decedent

3.

even if the representative had repudiated his


inheritance coming from the person
represented, he can still inherit from the
decedent by right of representation (Article 976).

They inherit in their own right and not by right of


representation.
Is there a right or representation in grandchildren?
Yes. There is no limit as to the degree in the direct
descending line.

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From whom does the representative inherit? From the
decedent or from the person represented?
The representative inherits from the decedent and not
from the person represented. In other words, the
represented does not succeed the person represented but
the one from whom the person represented would have
succeeded.

As an exception, representation takes place also in the


collateral line, but it takes place only in favor of the
children of brothers or sisters, whether they be full or half
blood (Article 972 paragraph 2).
When does the right of representation in the direct line
takes place?
It takes place in the following cases:

Example: A grandson is called to succession by law


because of blood relationship. A grandson does not
succeed his father (the person represented) who
predeceased his grandparent. The grandson succeeds his
grandparent, whom his father would have succeeded.
(Rosales vs Rosales, GR No. 400789, 27 February 1987).

1.

when the children concur with grandchildren,


the latter being the children of other children
who died before the decedent, or who are
incapable of succeeding the decedent

2.

when all the children are dead or are incapable


of succeeding the decedent, and the
grandchildren concur with the greatgrandchildren, the latter being the children of
other grandchildren, who died before the
decedent or are incapable of succeeding the
decedent

3.

when all children are dead or are incapable of


succeeding the descendant, leaving children or
descendants of the same degree.

What is the concept of the right of representation?


By virtue of this right, the relative nearest in degree does
not exclude the more remote one because by fiction of
law, more distant relatives belonging to the same class as
the person represented are raised to the place and degree
of such person and acquire the rights which the latter
would have acquired, if he is alive or if he could have
inherited.
When does representation take place?
In testamentary succession, the right of representation
takes place in the following cases:
1.

when the person represented dies before the


testator

2.

when the person represented is incapable of


succeeding the testator

3.

when the person represented is disinherited by


the testator

What are the limitations in the exercise of the right of


representation in the collateral line?
They are:
1.

The right can be exercised only by the nephews


and nieces of the decedent. This is clear from the
provisions of Article 972 and Article 975.
Consequently, it cannot be exercised by
grandnephews and grandnieces.

2.

The right can be exercised by the nephews or


nieces of the decedent if they will concur with at
least one (1) brother or sister of the decedent.
This limitation is expressly provided for in Article
975. Otherwise, if they are the only survivors,
they shall inherit in their right and not by the
right of representation. (Pavia vs Hurrald, 5 Phil
176, Sarita vs Candia 23 Phil 443)

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 all the above cases, since, there is a vacancy in the


inheritance, the law calls the children or descendants of
the person represented to succeed by right of
representation.
In legal or intestate succession, the right of representation
takes place only in the following cases:
1.

when the person represented dies before the


decedent

2.

when the person represented is incapable of


succeeding the decedent

What is the rule in representation?


As a rule, the right of representation takes place only in
the direct descending line, but never in the ascending
(Article 972 paragraph 1).

In succession by representation, how shall the estate be


divided?
The division of the estate shall be made per stirpes, in such
a manner that the representatives shall not inherit more
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than what the person they represent could inherit, if he
were living or could inherit. (Article 974)
*As a consequence of representation, the representative is
subrogated to all the rights to which the person
represented would have been entitled by operation of law,
if he were living or if he could inherit.

pF has two (2) children, one (1) is legitimate names X, the


other is illegitimate named Y. X has two (2) children, one
legitimate named A and the other illegitimate named B.
Illustration:
F

Take note however, that, in testamentary succession the


representatives acquire all of the rights which the person
represented had, with respect to his legitime.
In legal or intestate succession, the representative acquires
all of the rights which the person represented had with
respect to his entire legal portion.
In both cases, according to Article 974, the division of the
estate shall be made per stirpes. In such a manner, that the
representative/s shall not inherit more than what the
person they represent would inherit.

In the illustration, if A dies, can B inherit?


No. The barrier applies.
If B dies, can A inherit?
No. The barrier also applies.
If by will, may neither of them inherit?

What do you understand by the principle, barrier


between the legitimate and the illegitimate?
Under this principle, an impassable barrier exist separating
or dividing the members of the legitimate family from
those of the illegitimate family.

Yes. The testator may institute in his will an illegitimate


relative as his heir.
*The barrier only applies in intestate succession.
Can B inherit from Y?

*This principle applies only to intestate succession because


an illegitimate child may inherit by last will and testament.

No. In the irregular order of succession, collateral relatives


cannot inherit.

What is the reason for the aforementioned principle?


The intervening antagonism and incompatibility between
the members of the legitimate and illegitimate family.
The members of the legitimate family always look down at
the illegitimate children as the product of sin, a palpable
evidence of a blemish upon the honor of the family. The
illegitimate children, in turn, always look up with envy at
the privileged position of the members of the legitimate
family.

Is this an absolute rule for collateral relatives?


No. Brothers and sisters, nieces and nephews of the
illegitimate decedent may inherit.
(dela Merced vs dela Merced)
F has four (4) legitimate children named A, B, C and D. B
has an illegitimate child named X.
Illustration:
F (+1985)
A

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In the preceding illustration, F died in 1985. As a result,
his estate where inherited by his four (4) children. If B
died, will X be able to inherit the properties which B
inherited from his father F?

Is a father/daughter-in-law an intestate heir of a


deceased parent-in-law?

Yes. In this case Article 992 does not apply. It is Article 777
that does.

*If the legislative intended to make the surviving spouse an


intestate heir of the parent-in-law, it would have so
provided in the Code (Rosales vs Rosales, GR No. 40789,
February 27, 1987).

Hence, X may inherit such properties because he is


inheriting from his father and not from F.
In the preceding problem, suppose A died ahead of B and
B inherited some properties from A. After Bs death, will X
inherit the properties which B inherited from A?
Yes. In this case, again Article 992 does not apply. It is
Article 777 that does.
Hence, X may inherit such properties because he is
inheriting from his father and not from A.
In Article 777, the right of succession are transmitted from
the moment of death.
However, when F and A died, B has immediately
succeeded them and their properties now belonged to B.
X, therefore inherits from B and not from F or A.
What is the regular order of intestate succession?
The order is as follows:
1.
2.
3.
4.
5.
6.
7.

legitimate children or descendants


legitimate parents or ascendants
illegitimate children or descendants
surviving spouse
brothers and sisters, nephews and nieces
th
other collateral relatives within the 5 degree
the state

What is the irregular order of intestate succession?


(illegitimate decedent)
1.
2.
3.
4.
5.
6.

legitimate children or descendants


illegitimate children of descendants
illegitimate parents
surviving spouse
brother and sisters, nephews and nieces
the state

*The regular order of succession refers to the order of


succession if the decedent is a legitimate person. The
irregular order of the succession refers to the order of
succession if the decedent is an illegitimate person.

No.

*Although Article 978 declares that succession pertains, in


the first place, to those in the direct descending line, this
rule must be understood to be without prejudice to the
concurrent rights of illegitimate children or descendants
and the surviving spouse.
st

Can a grandson of a first (1 ) cousin inherit?


th

No. He is already 6 degree removed from the decedent.


Why does the law does not permit relatives beyond the
th
6 degree?
It is in accordance with national economy and social
welfare, more in keeping with the underlying philosophy
of socialization of ownership of property.
The relationship is already so remote that it would be
stretching human nature to much to presume that the
decedent can still be bound by the love and affection of
such relatives.
*See Problem No. 2 page 408 of Jurado as to the
application of the exclusion theory and concurrence theory
in intestate succession. If the decedent survived by both
legitimate and illegitimate children, these heirs are
important.
Suppose that X is survived by four (4) legitimate children
and two (2) legitimate children and surviving spouse. The
net estate is P120,000.00. Distribute.
Legitime of four (4) children if one half (1/2) of
P120,000.00 or P60,000.00, therefore P15,000.00 each.
Legitime of surviving spouse is the same as that of one of
the legitimate child. Thus, she will get P15,000.00.
Legitime of an illegitimate child is one half (1/2) of the
legitime of a legitimate child. Thus, each of the illegitimate
child gets P7,500.00 or a total of (P15,000.00)

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Hence,
Each legitimate childrens legitime
- P60,000.00
Wifes legitime
- P15,000.00
Each illegitimate childrens legitime
- P15,000.00
___________________________________________
P90,000.00

F =
G =
H =

1
2
2

Therefore,
D, E and F
G and H

= 1/7 each
= 2/7 each

Hence,
H, D and F are dead. What happens?
P120,000.00
- Net Income
P 90,000.00
- Total Amount of Legitime
________________________________________________
P 30,000.00
- Remaining Estate
Following the concurrence theory: Each of the four (4)
legitimate children will get additional P5,000.00. The wife
will get and additional P5,000.00. Each of the two (2)
illegitimate children will get an additional P2,500.00 each.

I, J, L, M, N and Q shall inherit by right of representation


because they are survived by their uncles E and G.
In the preceding problem, will the inheritance be per
capita or per stirpes?
Per stirpes, but still adhering to the full and half blood rule.
Hence,

Following the exclusion theory: The remaining amount of


P30,000.00 shall be divided equally among the four (4)
legitimate children and the wife. Two (2) illegitimate
children shall be excluded. Hence, the four (4) legitimate
children and W, will get additional P6,000.00 each.
Double share of full blood collaterals as against the single
share of half blood collaterals: The computation
hereunder refer to the rule on full blood and half blood
collaterals. Do not confuse this with legitimate and
illegitimate issues.
Illustration:
A

M NO P

E
=
I and J =
L, M and N =
G
=
Q
=

1/7
1/7
1/7
2/7
2/7

Thereafter, E and G died also. What happens?


I,J,K,L,M,N,O,P and Q shall inherit in their own right. The
distribution shall be per capita but the full and half blood
rule will still be applied.
Hence,
I,J,K,L,M and N
O,P and Q

=
=

1/12 each
2/12 each

K and Q died, will R and S inherit?


No. R and S cannot inherit. There is no right of
representation as to the grandnephews and grandnieces.
Hence,

In the preceding illustration, suppose that A, B and C are


dead. Who can inherit from X?
D, E, F, G and H will inherit from X. The 2:1 ratio shall be
applied because they are Xs brothers and sisters of the full
blood and of the half blood. Those of the full blood get
twice as much as the half blood.
Hence,
D
E

=
=

O and P
I,J,L,M and N

2/9 each
1/9 each

The aforementioned are all dead, may R and S now


inherit?
Yes. (double share rule will not apply)
*Rules in testate succession: Double share rule
1.

1
1

=
=

applies only to brothers and sisters, nephews


and nieces

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2.

does not apply to grandnephews and


grandnieces. They shall inherit for as long as they
are of the same degree.

How will you distribute?


R and S shall divide the estate of X equally regardless of
the source of property and whether of the full or half
blood.
The rule on double share does not apply to them. It applies
only to nephews and nieces.

In the preceding illustration, X was survived by F,M,A, B


and W. The only disposition in his will is, I give my friend
P, a legacy of P5,000.00. Distribute.
In partial intestacy, the heir whose share in bigger than his
legitime, must be reduced in order to satisfy the legacy.
*The legtitime must never be impaired.
Hence,
Testate Share

Illustration:

F and M (1/2)
W
(1/8)
A and B (1/4)

A (adopter)

B (adopted)

C
In the preceding illustration, suppose B predeceased A.
Can C inherit from A by right of representation?
No. Despite the 1988 Domestic Adoption Act, the Sayson
case still applies.
Adoption has created only a legal relationship between the
adopter and the adopted. It does not extend to their other
relatives.
If A predecease B, can B inherit from F?

P60,000.00
P15,000.00
P30,000.00

Intestate Share
F and M (1/2)
W
(1/4)
A and B (1/4)

P60,000.00
P30,000.00
P30,000.00

Hence, as shown above, Ws legitime is only P15,000.00.


But, her intestate share is P30,000.00. Thus, following the
rule, we will deduct the legacy to P from Ws share.
Final Distribution
F and M
=
P60,000.00
W
=
P25,000.00
A and B
=
P30,000.00
P
=
P 5,000.00
___________________________________
P120,000.00
Illustration:

No. The same reason as aforestated.

What is the rule on partial intestacy?

In partial intestacy, the legacy shall be deducted from the


share of the legal heir whose intestate share is more than
his legitime.

C
E

Set I
F

M
In the preceding illustration, If G died will C inherit?
X

W
Yes.

B
What about F?

Net Estate: P120,000.00


No. Because of the barrier between an legitimate and
illegitimate family.
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What about A?

Article 1016

No. Because an illegitimate grandparent is not a legal heir.


Only the illegitimate parents are the legal heirs.
What about E, D and B?
No. Because of the barrier.
Suppose that C died ahead of G. After Gs death, who will
inherit?
The State.

In order that the right of accretion may take place in a


testamentary succession, it shall be necessary:
(1) That two or more persons be called to the same
inheritance, or to the same portion thereof, pro indiviso;
and
(2) That one of the persons thus called die before the
testator, or renounce the inheritance, or be incapacitated
to receive it. (928a)
Article 1017

Set II
In the illustration, what if it B and C died ahead of A.
After As death, will D inherit from A?

The words "one-half for each" or "in equal shares" or any


others which, though designating an aliquot part, do not
identify it by such description as shall make each heir the
exclusive owner of determinate property, shall not
exclude the right of accretion.

Yes. By right of representation.


In case of money or fungible goods, if the share of each
heir is not earmarked, there shall be a right of accretion.
(983a)

What about E?
No. Because of the barried.
What about F and G?
Yes. By right of representation. But as between F and G,
the 2:1 ratio shall be applied.
Suppose that the Net Estate is P90,000.00, how will you
distribute?
B = P60,000.00 ------------- D = P60,000.00
C = P30,000.00 ------------- F = P20,000.00
G =P10,000.00
____________________________
P90,000.00

Article 1015 to Article 1105


Provisions Common to Estate and Intestate Succession
Article 1015 to Article 1023
Right of Accretion
Article 1015
Accretion is a right by virtue of which, when two or more
persons are called to the same inheritance, devise or
legacy, the part assigned to the one who renounces or
cannot receive his share, or who died before the testator,
is added or incorporated to that of his co-heirs, codevisees, or co-legatees. (n)

Article 1018
In legal succession the share of the person who
repudiates the inheritance shall always accrue to his coheirs. (981)
Article 1019
The heirs to whom the portion goes by the right of
accretion take it in the same proportion that they inherit.
(n)
Article 1020
The heirs to whom the inheritance accrues shall succeed
to all the rights and obligations which the heir who
renounced or could not receive it would have had. (984)
Article 1021
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.
Should the part repudiated be the legitime, the other coheirs shall succeed to it in their own right, and not by the
right of accretion. (985)

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Article 1022

Article 1027

In testamentary succession, when the right of accretion


does not take place, the vacant portion of the instituted
heirs, if no substitute has been designated, shall pass to
the legal heirs of the testator, who shall receive it with
the same charges and obligations. (986)

The following are incapable of succeeding:

Article 1023
Accretion shall also take place among devisees, legatees
and usufructuaries under the same conditions established
for heirs. (987a)
Article 1024 to Article 1040
Capacity to Succeed by Will or by Intestatcy
Article 1024
Persons not incapacitated by law may succeed by will or
ab intestato.
The provisions relating to incapacity by will are equally
applicable to intestate succession. (744, 914)

Article 1025
In order to be capacitated to inherit, the heir, devisee or
legatee must be living at the moment the succession
opens, except in case of representation, when it is proper.
A child already conceived at the time of the death of the
decedent is capable of succeeding provided it be born
later under the conditions prescribed in article 41. (n)
Article 1026
A testamentary disposition may be made to the State,
provinces, municipal corporations, private corporations,
organizations, or associations for religious, scientific,
cultural, educational, or charitable purposes.
All other corporations or entities may succeed under a
will, unless there is a provision to the contrary in their
charter or the laws of their creation, and always subject
to the same. (746a)

(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
the 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 a will, the
spouse, parents, or children, or any one claiming under
such witness, spouse, parents, or children;
(5) Any physician, 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. (745, 752, 753, 754a)
Article 1028

The prohibitions mentioned in article 739, concerning


donations inter vivos shall apply to testamentary
provisions. (n)
Article 1029
Should the testator dispose of the whole or part of his
property for prayers and pious works for the benefit of his
soul, in general terms and without specifying its
application, the executor, with the court's approval shall
deliver one-half thereof or its proceeds to the church or
denomination to which the testator may belong, to be
used for such prayers and pious works, and the other half
to the State, for the purposes mentioned in Article 1013.
(747a)

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Article 1030
Testamentary provisions in favor of the poor in general,
without designation of particular persons or of any
community, shall be deemed limited to the poor living in
the domicile of the testator at the time of his death,
unless it should clearly appear that his intention was
otherwise.
The designation of the persons who are to be considered
as poor and the distribution of the property shall be made
by the person appointed by the testator for the purpose;
in default of such person, by the executor, and should
there be no executor, by the justice of the peace, the
mayor, and the municipal treasurer, who shall decide by
a majority of votes all questions that may arise. In all
these cases, the approval of the Court of First Instance
shall be necessary.
The preceding paragraph shall apply when the testator
has disposed of his property in favor of the poor of a
definite locality. (749a)
Article 1031
A testamentary provision in favor of a disqualified
person, even though made under the guise of an onerous
contract, or made through an intermediary, shall be void.
(755)
Article 1032
The following 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;

(5) Any person convicted of adultery or concubinage with


the spouse of the testator;
(6) Any person who by fraud, violence, intimidation, or
undue influence should cause the testator to make a will
or to change one already made;
(7) Any person who by the same means prevents another
from making a will, or from 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. (756, 673, 674a)
Article 1033
The cause of unworthiness shall be without effect if the
testator had knowledge thereof at the time he made the
will, or if, having known of them subsequently, he should
condone them in writing. (757a)
Article 1034
In order to judge the capacity of the heir, devisee or
legatee, his qualification at the time of the death of the
decedent shall be the criterion.
In cases falling under Nos. 2, 3, or 5 of Article 1032, it
shall be necessary to wait until final judgment is
rendered, and in the case falling under No. 4, the
expiration of the month allowed for the report.
If the institution, devise or legacy should be conditional,
the time of the compliance with the condition shall also
be considered. (758a)
Article 1035

(2) Any person who has been convicted of an attempt


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

If the person excluded from the inheritance by reason of


incapacity should be a child or descendant of the
decedent and should have children or descendants, the
latter shall acquire his right to the legitime.

(3) Any person who has accused the testator of a crime


for which the law prescribes imprisonment for six years or
more, if the accusation has been found groundless;

The person so excluded shall not enjoy the usufruct and


administration of the property thus inherited by his
children. (761a)

(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;

Article 1036
Alienations of hereditary property, and acts of
administration performed by the excluded heir, before
the judicial order of exclusion, are valid as to the third
persons who acted in good faith; but the co-heirs shall

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-SUCCESSION(Dean Navarro)
have a right to recover damages from the disqualified
heir. (n)

descendants; if none, the others inherit in their


own right.

Article 1037

b.

In case of incapacity of an heir, the results are


the same as in predecease.

The unworthy heir who is excluded from the succession


has a right to demand indemnity or any expenses
incurred in the preservation of the hereditary property,
and to enforce such credits as he may have against the
estate. (n)

c.

In case of disinheritance of an heir, the results


are the same as in predecease.

d.

In case of repudiation by an heir, the heirs


inherit in their own right.

Article 1038

2.

Disposable free portion

Any person incapable of succession, who, disregarding


the prohibition stated in the preceding articles, entered
into the possession of the hereditary property, shall be
obliged to return it together it its accessions.
He shall be liable for all the fruits and rents he may have
received, or could have received through the exercise of
due diligence. (760a)

Accretion takes place when the requisites stated in


Article 1016 are present, but if such requisites are not
present, the other heirs inherit in their own right.
B. In intestate succession
1.

In case of predecease, there is representation if


there are children or descendants, if none, the
other heirs inherit in their own right.

Article 1039

2.

In case of incapacity, the results are the same as


in predecease.

Capacity to succeed is governed by the law of the nation


of the decedent. (n)

3.

In case of repudiation, there is always accretion.

Article 1040

What is accretion?

The action for a declaration of incapacity and for the


recovery of the inheritance, devise or legacy shall be
brought within five years from the time the disqualified
person took possession thereof. It may be brought by any
one who may have an interest in the succession. (762a)

It is a right by virtue of which, when two (2) or more


persons are called to the same inheritance, devise or
legacy, the part assigned to the one 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 colegatees.

Division in case of conflict of rights


Legitime
Predecease
Incapacity
Disinheritance
Repudiation

1. R
2. IS
Same
Same
IS

Free
Portion
1. A
2. IS
Same
Same
A

Intestate
Succession
1. R
2. IS
Same
Same
A

Summary
A. In testamentary succession:

In testamentary succession, when there may be


accretion?
In order that the right of succession may take place in
testamentary succession, it shall be necessary:
1.

that two (2) or more persons are called to the


same inheritance or the same position thereof,
pro indiviso, and

2.

that one of the persons thus called, died before


the testator or renounce the inheritance or be
incapacitated to receive it.

1.

Legitime

Can there be accretion when what is given is money or


other fungible goods?

a.

In case of predecease of an heir, there is


representation if there are children or

Yes. Provided that the share of each heir is not earmarked.


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-SUCCESSION(Dean Navarro)
When can you say that they are earmarked?

Illustration:

If they are particularly designated or physically segregated


from all others of the same class.
If X says in his will, I give my house and lot located at
123 Espanya Street, Manila to my friends A, B and C. A
predeceased X. Will there be an accretion?

D
E

Yes.
Why?
Because all the requisites for accretion in testamentary
succession to arise are present.
If X says in his will, I give the balance of my savings
account with BPI to A, the balance of my Prudential Bank
to B, and I give my cash which I kept in my drawer to C.
C predeceases, will there be accretion in favor of A and B?
None. Because the share of each has been earmarked.
Testator said in his will, I give the entire free portion of
my estate to A, B and C. C repudiated. Will there be an
accretion?
Yes. There will be an accretion in favor of A and B.
In the preceding problem, will there be a difference if the
testator instead stated in his will, I hereby give the
entire free portion of my estate to A, B and C. But, I
hereby designate Y as a substitute for any or all of them.
Will there be accretion? (Note: C repudiated)
No. There will be no accretion. The share of C will go to Y
because substitution takes precedence over accretion. The
former being the expressed will of the testator, while the
latter is based only on the presumed will of the testator.
What happens when the share of each is earmarked, in
case of money or fungible goods are given?
There will be no accretion in case there is a vacancy. The
share rendered vacant goes to the mass estate of the
decedent and the same will be distributed to the heirs of
the decedent in accordance with the rules of intestate
succession.
X has three (3) legitimate children, A, B and C. A has four
(4) legitimate children, D,E,F, and G. B has two (2)
legitimate children, H and I. C has two (2) legitimate
children, J and K. X died intestate leaving a net estate of
P120,000.00. A predecease, B is incapacitated to inherit
while C repudiated. How will you distribute the estate?

If A did not predeceased, B was not incapacitated and C


did not repudiate, the distribution would have been:
A =
B =
C =

P40,000.00
P40,000.00
P40,000.00

But since A predeceased, B was incapacitated and C


repudiated the inheritance, the distribution will be:
Share by +
Right of
Representation

Cs Share = Amount Received

D = P10,000.00 + P5,000.00 = P15,000.00


E = P10,000.00 + P5,000.00 = P15,000.00
F = P10,000.00 + P5,000.00 = P15,000.00
G = P10,000.00 + P5,000.00 = P15,000.00
H = P20,000.00 + P10,000.00 = P30,000.00
I = P20,000.00 + P10,000.00 = P30,000.00
____________________________________________
P80,000.00
P40,000.00
P120,000.00
As computed above, since A predeceased his father X, his
legitimate children D, E, F and G will represent him in the
succession. The same is true in the case of B, who will be
represented by H and I, because B is incapacitated to
inherit.
It is different in the case of C who repudiated his share.
Under the law, an heir who repudiates cannot be
represented. Therefore, the portion rendered vacant by
Cs repudiation shall now accrue to his co-heirs. B is
incapacitated, there can be no accretion.
In this case, the vacant portion shall pass to the legal heirs
of the decedent. These legal heirs are D,E,F,G, H and I who
will divide such portion per stirpes because they inherit by
representation.
Will there be a difference in the preceding problem if all
of them (A,B and C) repudiate the inheritance?
Yes. In this case, E,F,G,H,I,J and K will inherit in their own
right.

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-SUCCESSION(Dean Navarro)
The law provides that if the inheritance should be
repudiated by the nearest relative, should there be only
one or by all the nearest relatives called by law to succeed
should there be several of them, those of the following
degree shall inherit in their own right.

Legal heir of X with respect


to the legitime which was
repudiated by D
_______________________________________________
P50,000.00
Total Amount Received

Hence, D, E, F, G, H,I, J and K being the ones next in degree


shall now inherit in their own right. The estate will
therefore be distributed as follows:

B-

P15,000.00
P15,000.00
P7,500.00
P7,500.00
P5,000.00

E -

P7,500.00
P2,500.00

D
=
P15,000.00
E
=
P15,000.00
F
=
P15,000.00
G
=
P15,000.00
H
=
P15,000.00
I
=
P15,000.00
J
=
P15,000.00
K
=
P15,000.00
___________________________
P120,000.00

X has four (4) legitimate children, A, B, C and D. C has two


(2) legitimate children, E and F. D has one (1) legitimate
child, G. In his will, X instituted A, B, C and D as his heirs.
However, C predeceased, while D repudiated. The net
income is P120,000.00. How will you distribute the
estate? (This one is testate)
Illustration

Representative of C
Legal heir of X with respect
to the legitime repudiated by
D
_______________________________________________
P10,000.00
Total Amount Received
F P7,500.00
Representative of C
P2,500.00
Legal heir of X with respect
to the legitime repudiated by
D
_______________________________________________
P10,000.00
Total Amount Received

Because the law has reserved the same to the compulsory


heir.

The first requisite for accretion to arise in testamentary


succession is absent. A, B, C and D are not called to the
same legitime. Only D was called to it. Hence, when D
repudiated his share/legitime, there is no accretion.
Instead, Ds legitime will be distributed to the legal heirs of
X in accordance with the rules of intestate succession.

If C did not predecease X, and D did not repudiate the


inheritance, the distribution would have been as follows:
+

Voluntary =
Amount Received
Share
A P15,000.00 + P15,000.00
=
P30,000.00
B P15,000.00 + P15,000.00
=
P30,000.00
C P15,000.00 + P15,000.00
=
P30,000.00
D P15,000.00 + P15,000.00
=
P30,000.00
___________________________________________
P60,000.00 + P60,000.00 =
P120,000.00
However, since C predeceased and D repudiated his
inheritance, the distribution of the estate is as follows:
P15,000.00
P15,000.00
P7,500.00
P7,500.00

TOTAL AMOUNT RECEEIVED

In the preceding problem, why is there no accretion with


respect to Ds legitime?
C

A-

Legitime
Voluntary share
ROA from Cs voluntary share
ROA from Ds voluntary share
Legal heir of X with respect
to the legitime which was
repudiated by D
_______________________________________________
P50,000.00
Total Amount Received

P120,00.00
X

Legitime

P5,000.00

Legitime
Voluntary share
ROA from Cs voluntary share
ROA from Ds voluntary share

Besides, the law has reserved the legitime for the


compulsory heirs.
In the preceding problem, what if X died intestate?
If C did not predeceased and D did not repudiate, the
estate would have been distributed as follows:
A
B
C
D

=
=
=
=

P30,000.00
P30,000.00
P30,000.00
P30,000.00

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-SUCCESSION(Dean Navarro)
But since C predeceased and D repudiated, the distribution
is as follows:

But since F repudiated, his share will now accrue to his coheirs. Hence, the estate will be distributed as follows:

Intestate share +As Rep of C + ROA

Legal heir
Intestate
Share

= Amount
Received
A P30,000.00 +
+P15,000.00 =P45,000.00
B P30,000.00 +
+P15,000.00 =P45,000.00
E
+P15,000.00 +
=P15,000.00
F
+P15,000.00 +
=P15,000.00
______________________________________________
P60,000.00 +P30,000.00 +P30,000.00 =P120,000.00
As computed above:
A will get P30,000.00 as legal heir and P15,000.00 by right
of accretion with respect to Ds share (P30,000.00 +
P15,000.00 = P45,000.00)
B will get the same share as A
E will get P15,000.00 as Cs representative.
F will also get P15,000.00 as Cs representative.
X died intestate survived by: (a) his parent F and M; (b)
two (2) illegitimate children, A and B; and (c) W, his wife.
The net estate is P120,000.00. Distribute if F repudiated
his share.
F

+ ROA from F = Amount Received

M-P30,00.00 +(2/6xP30T)10T = P40,000.00


M-P30,00.00 +(2/6xP30T)10T = P40,000.00
M-P15,00.00 +(1/6xP30T)10T = P20,000.00
M-P15,00.00 +(1/6xP30T)10T = P20,000.00
______________________________________
P90,000.00 + P30,000.00 = P120,000.00
In the preceding problem, what if instead of repudiation,
F predeceased? How will you distribute the estate?
M =
P60,000.00
W =
P30,000.00
A =
P15,000.00
B =
P15,000.00
______________________________________
P120,000.00
Capacity to Succeed
Can a dead person inherit?
No. In order that a person may inherit, he must be living or
in existence at the moment the succession opens. In short,
he must have capacity.

If F did not repudiate his share, the distribution would


have been as follows:
F =
P30,000.00
M=
P30,000.00
W=
P30,000.00
A =
P15,000.00
B =
P15,000.00
______________________________________
P120,000.00

May a person who is not yet born during the death of the
decedent inherit?
Yes. If such person has already been conceived at the time
of the death of the decedent, and provided, it be born
later under the conditions prescribed in Article 41 of the
Civil Code
*Under Article 41 of the Civil Code, the following are
considered born and capacitated to succeed:
1.

a fetus who is alive after it is completely


delivered from the mothers womb

2.

a fetus having an intra-uterine life of less than


seven (7) months, if it survives twenty-four (24)
hours and more, after its complete delivery from
the maternal womb

3.

under Article 43, If there is a doubt, as between


two (2) or more persons who are called to
succeed each other, as to which of them died
first, whoever alleges the death of one prior to
the other, shall prove the same; in the absence of
proof, it is presumed that they died at the same
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-SUCCESSION(Dean Navarro)
time and there shall be no transmission of rights
from one to the other.
In the case of other than natural persons it is necessary
that there will be juridical personality for them to be
capacitated to inherit?
General rule: Yes
Exception: Associations for religious, scientific, cultural,
educational and charitable purposes are allowed by law to
inherit, although these associations are not juridical
persons and therefore, has no juridical capacity.
Who are those incapacitated to succeed?

X made a will in 1985, in that will he gave his friend,


Father F a legacy. Ten (10) years later in 1995, during the
last illness of X, he confessed to Father F and then he
died. Can Father F inherit?
Yes. The purpose of the law incapacitating a priest from
inheriting if he heard the confession form the testator
during his last illness, is the possibility of undue influence.
Hence, the law refers to a will executed by the testator
during his last illness, for it is at this time that undue
influence that could have been exercised.
Therefore, if the testamentary disposition or the will was
executed long before the last illness, the same is
considered valid, for there could not have been any undue
influence.

See Article 1027.


Notes:
*The provisions under Article 1027 refer only to the free
portion. Hence, if the person concerned is a compulsory
heir, only the free portion given to him is affected his
legitime is not affected.
Example: If the priest to whom the testator confessed
during his last illness is his own son, the priest can only get
his legitime. He is only incapacitated to inherit to the free
portion, if he is also instituted to it.

1. If the testamentary disposition or will was made long


after the last illness, such that, there was time to reflect on
the wisdom of the testamentary disposition, the
qualification does not apply.
2. Scaevola says: For the disqualification to attach, not
only must the will have been made during the last illness,
it must have been made also after the confession.
Therefore, if it is made during the last illness, but before
confession, the reason for the law does not exist.

During the last illness of Mr X, he was visited almost daily


by his friend, Father F. in the will of Mr X, which he
executed that same period, he gave Father F a legacy.
Will Father F inherit?
Yes. The incapacity extends only to the act of the priest
hearing the confession of the testator during his last
illness.
In this case, Father F merely visited Mr X. Thereof, Father F
may inherit.
Suppose during the last illness of Mr X, he confessed to
three (3) priest, Fathers A, B and C. Mr X confessed first to
A, and then to B and his last confession was with Father
C. Will all of them (the priests) be incapacitated to
inherit?

3. All the priest who heard the confession of the testator


during his last illness are all incapacitated because the
confession need not be the last. As long as, the confession
was made during the last illness. But the priest must have
actually heard the confession. If the priest merely does the
following, he is not disqualified to inherit from the
testator:
a.
b.
c.
d.

administer an unction to the testator


read the gospel or the bible to the testator
prayed with the testator
any other spiritual aid , which does not
constitute hearing confesion

4. With respect to ministers of the gospel, all acts of


spiritual aid disqualify him from inheriting from the
testator.
Example: The minister read the gospel to the testator.

Yes. All of them will be incapacitated. The confession need


not be the last confession.
As long as the confession was made during the last illness,
the priests who heard the confession will be incapacitated
to inherit from the testator.

During the last illness of X, he was taken care by his son,


Dr A. During this time also, X executed a will instituting
his son Dr A as his heir. Will Dr A inherit?
There are two (2) views on the matter.

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1. Yes. Because such relatives are dictated by human
nature to take care of the testator during his illness. To
disqualify them because of the possibility of undue
influence would be unjust and illogical (Jurado subscribes
to this view).

a.

Father A is incapacitated under Article 1027


(1).
Dr B is also incapacitated under Article
1027(5)
C is also incapacitated because he is a
th
relative of Father A within the fourth (4 )
degree. C is actually two (2) degrees
removed from Father A. So, C is also
incapacitated under Article 1027(2).

b.
c.

2. No. For the law makes no distinction. It could have


provided for an exception, as in the case of guardians.
(Tolentino subscribes to this view. Dean Navarro agrees
with Tolentino.)
In the preceding problem, will Dr A not get anything?
No. Dr A can still get his legitime. The disqualification
applies only to the free portion.
Why does the disqualification effects only the free
portion and not the legitime?
Because the legitime is expressly reserved by law to the
compulsory heirs. The testator cannot even impair or
dispose the legitime.
*Dean Navarro: In connection with Article 1027(4), read in
connection with Article 823.
Article 823 provides for an exception, unless there are
three (3) other competent witnesses to such will.
During Mr X last illness, he confessed to his son Father A.
The doctor who took care of him was his other son, Dr B.
Mr X had three (3) children, A, B and C. In his will he
instituted his three (3) children as heirs. The net estate is
P120,000.00. he died survived by A, B, C and D (the fist
cousin of X). Distribute the estate.
Illustration:
GF

The entire estate of P120,000.00 will go to A, B and C.


1.

2.

The legitimes of A, B and C are not affected.


Hence, they are entitled to their legitime
P60,000.00 or P20,000.00 for each of them.
The issue now is who will be entitled to the free
portion P60,000.00

But granting that A,B and C are all incapacitated to inherit


from X, the free portion will not go to D.
Article 1027 does not prevent an heir who is incapacitated
thereunder from inheriting as an intestate heir. Therefore,
A, B and C will still inherit the free portion because they
are the first in order of the intestate succession.
Hence, A, B and C will divide the free portion P60,000.00
among themselves.
Therefore, the share of each will be as follows:
A -

P20,000.00
As compulsory heir
P20,000.00
As intestate heir
B P20,000.00
As compulsory heir
P20,000.00
As intestate heir
C P20,000.00
As compulsory heir
P20,000.00
As intestate heir
__________________________________________
P120,000.00
Dean Navarros Lecture:
1. Article 1027 (3) Guardians
The law does not distinguish between guardians over the
person or guardians over the property of the ward. Hence,
no matter what kind of guardian you may be, as long as
the disposition is made in your favor before the initial
accounts of guardianship have been approved, the
incapacity under Article 1027 applies.
2. Article 1028
Correlate this with Article 739 concerning donation inter
vivos.
Read the case of Nepomuceno vs Court of Appeals.
3. Article 1029
Apply only the 1/2:1/2 rule (1/2 to the church or
denomination and 1/2 to the government), if the testator:
a.
b.

simply left the property for prayers and pious


works in general terms
without specification of its application
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The moment the testator specifies the application of the
property, do not apply the 1/2:1/2 rule. Follow the
specifications made by the testator.
Example: If the testator leaves P10M and says, I leave
P10M for the benefit of my soul and I order that this
about be spent as follows: (a) there shall be 1,000 masses
every Sunday for the benefit of my souls; (b) there shall be
novena in Baclaran every Wednesday and in Quaipo every
Friday, etc.
4. Article 1032 Memorize
Provides the lists of persons who are rendered incapable
of succedding by reason of unworthiness. Basically, almost
all of these are also grounds for disinheritance.
5. Article 1032 (5)
The spouse of the testator himself/herself is not rendered
unworthy. It is the person convicted of adultery or
concubinage with the spouse of the testator who is
rendered unworthy.
Example: Mr X has just one (1) relative in this whole wide
world his brother B. X married a very beautiful young
lady, W. One quiet afternoon, X comes home early and
finds his own brother and his own wife having the time of
their lives in bed. X files a case for adultery. W and B are
convicted. After the conviction, our Mr X died a broken
heart. If Mr X died intestate, who will get the entire
estate?
W will get the entire estate. B, the brother of X is
incapacitated to succeed by reason of unworthiness
because he is a person convicted of adultery with the
spouse of the testator.
Moral Lesson: You must not die without making a will.
Write even a holographic will expressly disinheriting your
lovely spouse. Otherwise, if you die unexpectedly, you
lovely but unfaithful spouse will inherit the entire estate.
How is unworthiness removed?

Can an express pardon which has already been made be


withdrawn?
No. The moment the testator has expressly condoned the
act of unworthiness, the act of unworthiness is eradicated
or erased.
What about an implied condonation or pardon?
By its very nature, an implied pardon/condonation may be
withdrawn because the testator has the absolute right to
revoke his will, he can revoked his will at any time for no
reason at all.
The moment he revokes his will, wherein the implied
condonation is contained, then there ceases to be any
implied condonation because the will containing it has
ceased to exist.
Suppose that the act is a cause for unworthiness and also
a cause for disinheritance, what rules should be applied?
If the testator submitted himself to the rules of
disinheritance by disinheriting the heir, then the rules on
disinheritance apply.
If he did not disinherit the heir, the rules on unworthiness
apply.
X has a son S. S was convicted of an attempt against the
life of his own father X. Thereafter, X disinherited S
because of the conviction. Before the death of X, there
was a tearful reconciliation between father and son. Can
S inherit from his father X?
Yes. Because when X disinherited S, X submitted himself to
the rules on disinheritance.
One of the rules on disinheritance is reconciliation shall
deprived the offended party of the right to disinherit and it
renders ineffectively any disinheritance previously made.
In the preceding problem, what if X did not disinherit S
and there was a reconciliation between them. Will S
inherit?

By pardon, express or implied.


No. Because S is unworthy to inherit from X.
When is there express pardon?
When the decedent condones the act of the unworthiness
in writing.
When is there implied pardon?
When the testator, knowing the act of unworthiness,
executes a will instituting the person, who has committed
the offense as an heir.

X, in this case, has not submitted himself to the rules on


disinheritance, precisely because X did not disinherit S.
Therefpre, the rules of unworthiness apply.
One of the rules of unworthiness is unworthiness can only
be removed by pardon, express or implied.
When do you terminate the capacity of the heir?
As of the moment of death of the decedent.
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Why?
Because it is only upon the moment of death of the
decedent when there is transmission of successional
rights.
If the institution or the testamentary provision is subject
to a suspensive condition, when should you determine
the capacity of the heir, devisee or legatee?
There are two (2) moments to be considered:
1.

capacity must be possessed at the moment of


death of the decedent, and

2.

at the moment the condition is fulfilled.

If capacity is possessed only at the moment of death of the


decedent, but capacity is no longer possessed at the time
the condition is fulfilled, then the heir or beneficiary
concerned is no longer capacitated to inherit or succeed.

page | 148.
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-SUCCESSION(Dean Navarro)
Article 1041 to Article 1057
Acceptance and Repudiation of the Inheritance

Article 1047

Article 1041

A married woman of age may repudiate an inheritance


without the consent of her husband. (995a)

The acceptance or repudiation of the inheritance is an


act which is purely voluntary and free. (988)

Article 1048

Article 1042
The effects of the acceptance or repudiation shall always
retroact to the moment of the death of the decedent.
(989)
Article 1043
No person may accept or repudiate an inheritance unless
he is certain of the death of the person from whom he is
to inherit, and of his right to the inheritance. (991)
Article 1044
Any person having the free disposal of his property may
accept or repudiate an inheritance.
Any inheritance left to minors or incapacitated persons
may be accepted by their parents or guardians. Parents
or guardians may repudiate the inheritance left to their
wards only by judicial authorization.
The right to accept an inheritance left to the poor shall
belong to the persons designated by the testator to
determine the beneficiaries and distribute the property,
or in their default, to those mentioned in Article 1030.
(992a)
Article 1045
The lawful representatives of corporations, associations,
institutions and entities qualified to acquire property may
accept any inheritance left to the latter, but in order to
repudiate it, the approval of the court shall be necessary.
(993a)
Article 1046
Public official establishments can neither accept nor
repudiate an inheritance without the approval of the
government. (994)

Deaf-mutes who can read and write may accept or


repudiate the inheritance personally or through an agent.
Should they not be able to read and write, the inheritance
shall be accepted by their guardians. These guardians
may repudiate the same with judicial approval. (996a)
Article 1049
Acceptance may be express or tacit.
An express acceptance must be made in a public or
private document.
A tacit acceptance is one resulting from acts by which the
intention to accept is necessarily implied, or which one
would have no right to do except in the capacity of an
heir.
Acts of mere preservation or provisional administration
do not imply an acceptance of the inheritance if, through
such acts, the title or capacity of an heir has not been
assumed. (999a)
Article 1050
An inheritance is deemed accepted:
(1) If the heirs 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 coheirs;
(3) If he renounces it for a price in favor of all his co-heirs
indiscriminately; but if this 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 as accepted. (1000)

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Article 1051

of Court, the heirs, devisees and legatees shall signify to


the court having jurisdiction whether they accept or
repudiate the inheritance.

The repudiation of an inheritance shall be made in a


public or authentic instrument, or by petition presented
to the court having jurisdiction over the testamentary or
intestate proceedings. (1008)

If they do not do so within that time, they are deemed to


have accepted the inheritance. (n)

Article 1052

Article 1058 to Article 1060

If the heir repudiates the inheritance to the prejudice of


his own creditors, the latter may petition the court to
authorize them to accept it in the name of the heir.

Article 1058

The acceptance shall benefit the creditors only to an


extent sufficient to cover the amount of their credits. The
excess, should there be any, shall in no case pertain to the
renouncer, but shall be adjudicated to the persons to
whom, in accordance with the rules established in this
Code, it may belong. (1001)
Article 1053
If the heir should die without having accepted or
repudiated the inheritance his right shall be transmitted
to his heirs. (1006)

All matters relating to the appointment, powers and


duties of executors and administrators and concerning
the administration of estates of deceased persons shall
be governed by the Rules of Court. (n)
Article 1059
If the assets of the estate of a decedent which can be
applied to the payment of debts are not sufficient for that
purpose, the provisions of Articles 2239 to 2251 on
Preference of Credits shall be observed, provided that the
expenses referred to in Article 2244, No. 8, shall be those
involved in the administration of the decedent's estate.
(n)
Article 1060

Article 1054
Should there be several heirs called to the inheritance,
some of them may accept and the others may repudiate
it. (1007a)
Article 1055
If a person, who is called to the same inheritance as an
heir by will and ab intestato, repudiates the inheritance
in his capacity as a testamentary heir, he is understood to
have repudiated it in both capacities.
Should he repudiate it as an intestate heir, without
knowledge of his being a testamentary heir, he may still
accept it in the latter capacity. (1009)
Article 1056
The acceptance or repudiation of an inheritance, once
made, is irrevocable, and cannot be impugned, except
when it was made through any of the causes that vitiate
consent, or when an unknown will appears. (997)
Article 1057

A corporation or association authorized to conduct the


business of a trust company in the Philippines may be
appointed as an executor, administrator, guardian of an
estate, or trustee, in like manner as an individual; but it
shall not be appointed guardian of the person of a ward.
(n)
Article 1061 to Article 1077
Collation
Article 1061
Every compulsory heir, who succeeds with other
compulsory heirs, must bring into the mass of the estate
any property or right which he may have received from
the decedent, during the lifetime of the latter, by way of
donation, or any other gratuitous title, in order that it
may be computed in the determination of the legitime of
each heir, and in the account of the partition. (1035a)
Article 1062
Collation shall not take place among compulsory heirs if
the donor should have so expressly provided, or if the
donee should repudiate the inheritance, unless the
donation should be reduced as inofficious. (1036)

Within thirty days after the court has issued an order for
the distribution of the estate in accordance with the Rules
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Article 1063

Article 1069

Property left by will is not deemed subject to collation, if


the testator has not otherwise provided, but the legitime
shall in any case remain unimpaired. (1037)

Any sums paid by a parent in satisfaction of the debts of


his children, election expenses, fines, and similar
expenses shall be brought to collation. (1043a)

Article 1064

Article 1070

When the grandchildren, who survive with their uncles,


aunts, or cousins, inherit from their grandparents in
representation of their father or mother, they shall bring
to collation all that their parents, if alive, would have
been obliged to bring, even though such grandchildren
have not inherited the property.

Wedding gifts by parents and ascendants consisting of


jewelry, clothing, and outfit, shall not be reduced as
inofficious except insofar as they may exceed one-tenth
of the sum which is disposable by will. (1044)

They shall also bring to collation all that they may have
received from the decedent during his lifetime, unless the
testator has provided otherwise, in which case his wishes
must be respected, if the legitime of the co-heirs is not
prejudiced. (1038)

The same things donated are not to be brought to


collation and partition, but only their value at the time of
the donation, even though their just value may not then
have been assessed.

Article 1065
Parents are not obliged to bring to collation in the
inheritance of their ascendants any property which may
have been donated by the latter to their children. (1039)
Article 1066
Neither shall donations to the spouse of the child be
brought to collation; but if they have been given by the
parent to the spouses jointly, the child shall be obliged to
bring to collation one-half of the thing donated. (1040)

Article 1071

Their subsequent increase or deterioration and even their


total loss or destruction, be it accidental or culpable, shall
be for the benefit or account and risk of the donee.
(1045a)
Article 1072
In the collation of a donation made by both parents, onehalf shall be brought to the inheritance of the father, and
the other half, to that of the mother. That given by one
alone shall be brought to collation in his or her
inheritance. (1046a)
Article 1073

Article 1067
Expenses for support, education, medical attendance,
even in extraordinary illness, apprenticeship, ordinary
equipment, or customary gifts are not subject to
collation. (1041)

The donee's share of the estate shall be reduced by an


amount equal to that already received by him; and his coheirs shall receive an equivalent, as much as possible, in
property of the same nature, class and quality. (1047)
Article 1074

Article 1068
Expenses incurred by the parents in giving their children a
professional, vocational or other career shall not be
brought to collation unless the parents so provide, or
unless they impair the legitime; but when their collation
is required, the sum which the child would have spent if
he had lived in the house and company of his parents
shall be deducted therefrom. (1042a)

Should the provisions of the preceding article be


impracticable, if the property donated was immovable,
the co-heirs shall be entitled to receive its equivalent in
cash or securities, at the rate of quotation; and should
there be neither cash or marketable securities in the
estate, so much of the other property as may be
necessary shall be sold at public auction.
If the property donated was movable, the co-heirs shall
only have a right to select an equivalent of other personal
property of the inheritance at its just price. (1048)
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Article 1075

Article 1080

The fruits and interest of the property subject to collation


shall not pertain to the estate except from the day on
which the succession is opened.

Should a person make partition of his estate by an act


inter vivos, or by will, such partition shall be respected,
insofar as it does not prejudice the legitime of the
compulsory heirs.

For the purpose of ascertaining their amount, the fruits


and interest of the property of the estate of the same
kind and quality as that subject to collation shall be made
the standard of assessment. (1049)
Article 1076
The co-heirs are bound to reimburse to the donee the
necessary expenses which he has incurred for the
preservation of the property donated to him, though they
may not have augmented its value.
The donee who collates in kind an immovable which has
been given to him must be reimbursed by his co-heirs for
the improvements which have increased the value of the
property, and which exist at the time the partition if
effected.
As to works made on the estate for the mere pleasure of
the donee, no reimbursement is due him for them; he has,
however, the right to remove them, if he can do so
without injuring the estate. (n)
Article 1077
Should any question arise among the co-heirs upon the
obligation to bring to collation or as to the things which
are subject to collation, the distribution of the estate
shall not be interrupted for this reason, provided
adequate security is given. (1050)
Partition and Distribution of the Estate
Article 1078 to Article 1090
Article 1078
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 debts of the
deceased. (n)
Article 1079

A parent who, in the interest of his 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 ordering that the legitime of the
other children to whom the property is not assigned, be
paid in cash. (1056a)
Article 1081
A person may, by an act inter vivos or mortis causa,
intrust the mere power to make the partition after his
death to any person who is not one of the co-heirs.
The provisions of this and of the preceding article shall be
observed even should there be among the co-heirs a
minor or a person subject to guardianship; but the
mandatary, in such case, shall make an inventory of the
property of the estate, after notifying the co-heirs, the
creditors, and the legatees or devisees. (1057a)
Article 1082
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, and
exchange, a compromise, or any other transaction. (n)
Article 1083
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 division
applies to the legitime.
Even though forbidden by the testator, the co-ownership
terminates when any of the causes for which partnership
is dissolved takes place, or when the court finds for
compelling reasons that division should be ordered, upon
petition of one of the co-heirs. (1051a)

Partition, in general, is the separation, division and


assignment of a thing held in common among those to
whom it may belong. The thing itself may be divided, or
its value. (n)

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Article 1084

Article 1090

Voluntary heirs upon whom some condition has been


imposed cannot demand a partition until the condition
has been fulfilled; but the other co-heirs may demand it
by giving sufficient security for the rights which the
former 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. (1054a)

Art. 1090. When the title 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, the title shall be
delivered to the one having the largest interest, and
authentic copies of the title shall be furnished to the
other co-heirs at the expense of the estate. If the interest
of each co-heir should be the same, the oldest shall have
the title. (1066a)

Article 1085
In the partition of the estate, equality shall be observed
as far as possible, dividing the property into lots, or
assigning to each of the co-heirs things of the same
nature, quality and kind. (1061)
Article 1086
Should a thing be indivisible, or would be much impaired
by its being divided, it may be adjudicated to one of the
heirs, provided he shall pay the others the excess in cash.
Nevertheless, if any of the heirs should demand that the
thing be sold at public auction and that strangers be
allowed to bid, this must be done. (1062)
Article 1087
In the partition the co-heirs shall reimburse one another
for the income and fruits which each one of them may
have received from any property of the estate, for any
useful and necessary expenses made upon such property,
and for any damage thereto through malice or neglect.
(1063)
Article 1088
Should any of the heirs sell his hereditary rights to a
stranger before the partition, any or all of the co-heirs
may be 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. (1067a)
Article 1089
The titles of acquisition or ownership of each property
shall be delivered to the co-heir to whom said property
has been adjudicated. (1065a)

Article 1091 to Article 1096


Effects of Partition
Article 1091
A partition legally made confers upon each heir the
exclusive ownership of the property adjudicated to him.
(1068)
Article 1092
After the partition has been made, the co-heirs shall be
reciprocally bound to warrant the title to, and the quality
of, each property adjudicated. (1069a)
Article 1093
The reciprocal obligation of warranty referred to in the
preceding article shall be proportionate to the respective
hereditary shares of the co-heirs, but if any one of them
should be 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.
Those who pay for the insolvent heir shall have a right of
action against him for reimbursement, should his
financial condition improve. (1071)
Article 1094
An action to enforce the warranty among heirs must be
brought within ten years from the date the right of action
accrues. (n)
Article 1095
If a credit should be assigned as collectible, 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.
The warranty of the solvency of the debtor can only be
enforced during the five years following the partition.
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Co-heirs do not warrant bad debts, if so known to, and
accepted by, the distributee. But if such debts are not
assigned to a co-heir, and should be collected, in whole or
in part, the amount collected shall be distributed
proportionately among the heirs. (1072a)
Article 1096
The obligation of warranty among co-heirs shall cease in
the following cases:
(1) 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;
(2) When it has been so expressly stipulated in the
agreement of partition, unless there has been bad faith;
(3) 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. (1070a)

Article 1101
The heir who is sued shall have the option of
indemnifying the plaintiff for the loss, or consenting to a
new partition.
Indemnity may be made by payment in cash or by the
delivery of a thing of the same kind and quality as that
awarded to the plaintiff.
If a new partition is made, it shall affect neither those
who have not been prejudiced nor those have not
received more than their just share. (1077a)
Article 1102
An heir who has alienated the whole or a considerable
part of the real property adjudicated to him cannot
maintain an action for rescission on the ground of lesion,
but he shall have a right to be indemnified in cash.
(1078a)
Article 1103

Article 1097 to Article 1105


Rescission and Nullity of Partition
Article 1097
A partition may be rescinded or annulled for the same
causes as contracts. (1073a)

The omission of one or more objects or securities of the


inheritance shall not cause the rescission of the partition
on the ground of lesion, but the partition shall be
completed by the distribution of the objects or securities
which have been omitted. (1079a)
Article 1104

Article 1098
A partition, judicial or extra-judicial, may also be
rescinded on account of lesion, when any one of the coheirs received things whose value is less, by at least onefourth, than the share to which he is entitled, considering
the value of the things at the time they were adjudicated.
(1074a)

A partition made with preterition of any of the


compulsory heirs shall not be rescinded, unless it be
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. (1080)
Article 1105

Article 1099
The partition made by the testator cannot be impugned
on the ground of lesion, except when the legitime of the
compulsory heirs is thereby prejudiced, or when it
appears or may reasonably be presumed, that the
intention of the testator was otherwise. (1075)
Article 1100
The action for rescission on account of lesion shall
prescribe after four years from the time the partition was
made. (1076)

A partition which includes a person believed to be an


heir, but who is not, shall be void only with respect to
such person. (1081a)

General Rule: When acceptance or repudiation is made it


becomes irrevocable.
Exceptions:

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-SUCCESSION(Dean Navarro)
Acceptance and repudiation will always retroact to the
moment of death of the decedent.
Reasons:
1.

2.

it is at that moment when there is transmission


of successional rights
the law wants to avoid any interregnum, in so far
as, ownership of property is concerned

Article 1047
1.

Under the present law, a married woman either


repudiate or accept an inheritance without the
consent of her husband.

2.

There used to be a provision in Article 114 of the


Civil Code wherein, the wife cannot without the
husbands consent acquire any property by
gratuitous title, except from her ascendants,
descendants, parents-in-law and collateral
th
relatives within the fourth (4 ) civil degree. This
provision has been repealed by the Family Code

3.

Right now, a married woman may either accept


or repudiate an inheritance without her
husbands consent.

When is there an express acceptance?


There is an express acceptance when it is made in a public
or private document.
*Take note of the instances when there is an implied
acceptance.
When is there an implied acceptance?
Generally, there is an implied acceptance when one
executes an act by which the intention to accept is
necessarily implied or which one would have no right to do
except in the capacity of an heir.
What are the instances when an inheritance is deemed
accepted?
See Article 1050.
*Acceptance is easier to do, rather than repudiation. One
can even be deemed to have accepted without doing
anything.
Can there be acceptance of inheritance even without
doing anything?

When can the aforementioned happen?


If the heirs, devisees or legatees do not do anything within
a period of thirty (30) days after the court has issued an
order for the distribution of the estate, they are deemed
to have accepted the inheritance.
How do you repudiate?
Repudiation shall be made:
1.
2.
3.

In a public instrument
In an authentic instrument
By a petition presented to the court having
jurisdiction over the testamentary or intestate
proceedings

When an instrument is considered authentic?


If its genuiness cannot be doubted or when it is clearly
established.
When is an instrument public?
When it is acknowledged before a notary public.
*Take note of the rights granted by law to the creditors
under Article 1052. Remember that in no case shall the
excess be given to the repudiating heir, precisely because
he has repudiated.
Collation
General Rule: Donations given to the compulsory heirs are
charged to their legitime.
Exception: If the donor provides otherwise.
Note:
1. Even if the donation made in favor of a compulsory heir
is termed irrevocably granted, this is still subject to
collation.
2. And even if the testator said that it will not be subject to
collation, the point of the matter is that, even if it is not
subject to collation, the same must still be collated in the
sense of addition.
3. Expenses spent by the parent for the college education
of the child, is to be collated. The value shall be added to
the value of the estate, but it shall be charged against the
free portion not against the leigitime, unless otherwise: (a)
provided by the parents, (b) they impair the legitime. (See
Article 1068 on what must be deducted).

Yes.
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4. Article 1066 Donations made to son-in-law or
daughter-in-law are charged to the free portion, because
they are considered strangers.

The aforementioned are not subject to collation. It is not


even added to the value of the estate.
Illustration of Collation:

5. Article 1064 and Article 1065


X
If the grandchildren will be inheriting by right of
representation, the donations given to the grandchildren
are to be brought to collation and charged against what
they may have received by right of representation.
However, if such grandchild/children will not be inheriting
by right of representation because their parents are still
alive, the rule is, the donations will be charged against the
free portion.
6. Article 1069
Any sum paid by a parent in satisfaction of the debt of his
children, election expenses, fines and similar expenses
shall be charged to the legitime.
Exception: if the parents did not give this as something
free, but instead, expected to be paid back by the child, for
whatever amount the parent may have spent.

D
B

E
X has four (4) children, A, B, C and D. D is married to W. B
has a son named E. X died with a net worth of
P500,000.00. During Xs lifetime, he made the following
disposition: He spent P300,000.00 for the medical
expenses of A. He spent P30,000.00 for the election
expenses of B, when he ran for a public office. He gave his
grandson, E, a ring worth P10,000.00. He gave his
daughter-in-law, W, a bracelet worth P20,000.00. When
D got married, X gave D jewelries worth P40,000.00, as a
wedding gift. He also spent P10,000.00 for the college
education of his own son C.
First Step: Collation in the sense of Addition

In this case, while it is not subject to collation, the parent


is considered as an unpaid creditor, who is entitled to the
claim of reimbursement.

A) Net Estate

P500,000.00

Donations:
7. Article 1070 (Wedding Gifts)
Rule: As long as it does not exceed one tenth (1/10) of the
dispositive portion of the decedents estate, they are
charged against the free portion. If there is any excess, the
excess shall be charged against the legitime of the
concerned.

P30,000.00
= Election Expenses of B
P10,000.00
= Ring given to E
P20,000.00
= Bracelet given to W
P40,000.00
= Wedding gift to D
P10,000.00
= College education of C
______________________________________________
P610,000.00
= Total Hereditary Estate

8. Article 1067 and Article 1068


Expenses for (a) elementary and (b) high-school education
are not subject to collation. Not even in the sense of
addition. Only the expenses for tertiary education are
subject to collation in the sense of addition under Article
1068.
7. The enumeration under Article 1067 are absolutely not
subject to collation, not even collation in the sense of
addition:
a.
b.
c.
d.
e.
f.

expenses for support


education (elementary and high school)
medical attendance, even in extraordinary illness
apprenticeship
ordinary equipment
customary gifts

The medical expenses of A is not added, as mentioned in


Article 1067.
B) Hence, the total hereditary estate is P610,000.00. From
this amount, we ascertain the legitime and the free
portion. The legitime of A,B,C, and D is P305,00.00 or
P76,250.00 each. The free portion is P305.000.
Second Step: Collation in the sense of Charging or
Imputation
In this case, determine where to deduct the items.
Whether it should be deducted from the legitime or from
the free portion.

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-SUCCESSION(Dean Navarro)
Legitime

Deductions +
Imputations

FP

= Amount Received

A:P76,250.00 - +P58,625.00 = P134,875.00


B:P76,250.00 - - P30,000.00 +P58,625.00 = P104,875.00
(election expenses)
C:P76,250.00 - +P58,625.00 = P134,875.00
D:P76,250.00 - - P9,500.00 +P58,625.00 = P125,375.00
(excess of wedding gifts)
________________________________________________
P305,000.00 - - P39,500.00 + P234,500.00 = P500,000.00
Deductions/Imputations on the Free Portion
Free Portion

P305,000.00

In this case, charged the P30,500.00 to the free portion


and the P9,500.00 to Ds legitime.
6. The P10,000.00 for the college education of C shall be
charged to the free portion.
Partition
Article 1080
1. Even an invalid will may be conditioned on a valid
partition, it is in fact a partition and the owner allots a
specific properties among the heirs.
2. The heirs under such will or inherited under such will
must be at least be legal heirs.

(-minus)
Why is it necessary that they must be legal heirs?
Ring given to E
P10,000.00
Bracet given to W
P20,000.00
Wedding gift to D
P30,500.00
College Education of C P10,000.00
____________________________________
P70,500.00
____________________________________
Remaining Free Portion P234,500.00
Explanation:
1. The remaining free portion of P234,500.00 will be
divided among A,B, C and D. Hence, each of them will
received P58,625,00
2. As aforementioned, the P30,000.00 election expenses
shall be deducted from Bs legitime, under Article 1069.
3. The P10,000.00 ring given to E shall be deducted from
the free portion because his father B is still alive; hence, he
is considered as a stranger.
4. The bracelet worth P20,000.00 given to W, shall be
deducted from the free portion, under Article 1066.
5. The wedding gift of P40,000.00 in the form of jewelries.
The special rule is, insofar as it does not exceed one-tenth
(1/10) of the free portion, it shall be charged in the free
portion, if it exceeds, the excess shall be charged to the
legitime.

Because the partition is not a mode of acquiring


ownership. There must be a mode of acquiring ownership
and the mode of acquiring ownership can only be the
mode of succession.
Mang Oy vs CA
Dean Navarro: Take note of the decision applying Article
1080, a valid partition may be based on a void will. The
beneficiaries in this case were children of the decedent.
Therefore, they were at least legal heirs
Note:
1. Artcile 1094.
2. Warranty among co-heris with respect to tile and
quality.
3. Article 1102
4. Remember there is no obligation of warranty among c0heirs, in cases provided for under Article 1096. Memorize
the enumeration
5. Article 1104, 1105.
6. Article 1033

Hence,
Free Portion

=P305,000.00

Wedding Gift (Jewelries)


=P40,500.00
(minus)
10% of the FP (10% x P305,000.00)
= P30,500.00
______________________________________________
Excess of 10% of FP
=P9,500.00

Here we are its not a prefect world.


-F4

page | 157.
copied/modified from: ALLIANCE FOR ALTERNATIVE ACTION
by: kotch agcaoili agudo.