Wills Transcription 1 PDF

SUCCESSION
Lecture By: Dean Navarro
TABLE – OF – CONTENTS
BASIC PRINCIPLES ............................................................ 2 DISPOSITIONS with a TERM ...………………………….. 44
WILLS LEGITIMES ………………………………………………… 49
Wills in General ......................................................... 6 Reserva Troncal …………………………………….. 51
Testamentary Capacity and Intent .......................... 8 Collation …………………………………………….. 57
Form of Wills DISINHERITANCE ………………………………………… 63
Notarial Will ................................................. 10 LEGACIES and DEVISES …………………………………. 67
Holographic Will .......................................... 17 LEGAL or INTESTATE SUCCESSION ………….............. 72
Witnesses to Wills ...................................................... 22 Right of Representation ……………………………. 73
Codicil and Incorporation by Reference .................. 23 Intestate Shares ……………………………………... 75
Revocation .................................................................. 25 PROVISIONS COMMON to TESTATE
Republication and Revival ........................................ 28 and INTESTATE SUCCESSIONS ………………………... 78
Allowance and Disallowance ..................................... 29 Right of Accretion …………………………………... 78
INSTITUTION of HEIRS ...................................................... 32 Capacity to Succeed ………………………………… 82
SUBSTITUTION of HEIRS ................................................... 37 Acceptance and Repudiation ………………………. 86
CONDITIONAL DISPOSITIONS and PARTITION and DISTRIBUTION of ESTATE ………….. 87
Transcribed by: Bjone Favorito Page 1

BASIC PRINCIPLES The law says it is a mode of acquisition. Therefore it is, by
itself, a separate distinct mode of acquiring ownership. That being
the case, succession is sufficient to transfer, convey and vest
One of the Basic Principles in Succession is the Primacy of ownership in a person.
the Decedent or the Will. To a certain extent, that is somehow 774 also say there is transmission through his death. You
mitigated by the provisions on legitime. Because while, generally only have succession, testate or intestate, if and when there has
speaking, the testator has the right to give his property to anyone he already been death. Hence, death is essential for there to be either
wants and do with it as he pleases, to a certain extent, that right is testate or intestate succession.
mitigated by the provisions on legitime – kung meron ka compulsory
heirs, you cannot simply dispose of your entire estate in favor of any But what is death? When is a person considered dead? For
one whom you choose. The law reserves a certain part of your estate our purposes, a person is considered dead when there has been a
for your compulsory heirs. That’s the reason why, as a general rule, total permanent irreversible cessation of essential bodily
Testacy is preferred over Intestacy. functions. From the point of view of the law, there is no such thing
as temporary death.
Theories in Succession
If a person is rushed to the hospital at 7:00am caused by a
 One theory is that succession is simply an Extension of the
massive heart-attack and two doctors proclaimed him dead – DOA.
Right of Ownership. In other words, if you are the owner of
The doctors signed the death certificate, and the person was taken
the property, you should also have the right, not only during
home by his relatives. At 11:00am the same morning, he suddenly
the lifetime but even after death, to determine who will
sits up and ask for food. Was there succession from 7:00am to
benefit from your properties.
11:00am when he appeared to be dead? NO, no such thing as
 Another theory is that succession is based on the Right of
temporary death.
the Family. The basis is Family Co-ownership. As we
acquire properties, we have our families with us, who helped
us amassed wealth.
 The third theory is a combination of both theories.
What is Succession? The law gives us a codal definition in

Art. 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.

In succession, there are so-called Subjective and Objective been compulsory heirs entitled to legitimes, that’s a different story.
Elements. You would then have to go through the process of collation.
Subjective – the person who died, and those who succeed
him (the heirs, legacies, devises). For there to be succession, it is not always required that you
Objective – the inheritance actually see the person lying in estate. Sometimes, there can be
succession even in the basis of Presumptive death.
In this connection, remember the very important article – We remember the situations when a person is presumed dead
777: The rights to the succession are transmitted from the moment of for purposes of succession:
the death of the decedent. If a person dies at 7:00pm, from that very
moment, succession rights are already transmitted. We have Ordinary Absence and Extraordinary Absence.
Best illustration of principle is the old case of Lorenzo vs. Ordinary – after an absence of 10 years, the absentee is
Posadas – a person died, and in his will he said “I give all my presumed dead. However, there is a provision intended for senior
properties to my nephew, but only after 10 years from the time of my citizens – if you disappear after the age of 75, presumed dead only
death”. At the mean time, his properties will be administered by his in 5 years.
executor. The question which arose is: in determining the amount of Extraordinary – situation where a person disappears under
the taxes due, which should be used as basis? The value of the circumstances where there is great danger or risk of death (Art.
properties at the time of death, or at the end of the 10-year period? 391), only 4 years.
Applying 777, it should be the value at the time of death, because it
is at that moment when there is a transmission of successional rights. Once the presumption has arisen, when is death deemed to have
occurred?
Of more recent vintage, there is the case of Locsin vs CA – Ordianry – at the end of the period
this is much in resemblance with the case involving the estate of Extraordinary – at the start of the period
Do a Chito Madrigal. In both cases, the survivors were only Whether ordinary or extraordinary, you have to wait for the period
nephews and nieces. During the lifetime of the decedent, practically to expire before the presumption would arise.
all of the properties were disposed of. Nung namatay, konting konti
nalang natira sa estate. Sabi ng mga heirs “paano naman kami? Example: A rode an airplane on January 1. The flight is supposed to
Wala nang natira, if those properties had not been disposed of be from Manila to Davao, but never reached Davao, and had been
during the lifetime, we would have inherited them”. Their problem is missing ever since its departure. Despite searches conducted, it
Art.777 – they are only entitled to such estate as existed as the could not be found. For purposes of succession, A is presumed dead
moment of death, because it is only at that moment where there is a after 4 years. If asked “kailan kaya namatay ‘to?” chances are, he
transmission of successional rights. However, if the survivors had died on the same day, January 1, because an airplane cannot remain
indefinitely flying in the air. So the rule is based on common sense.

Succession may be Testate, Intestate or Mixed. Under the same provision, however, legacies and devises
Testate – if it is based on a will. will be respected as long as they are not inofficious. So, kung
Intestate – if there is no will, or the same is void based on nagkaroon ng Preterition, and you happen to be an heir, patay kang
the provisions of the law on intestate succession. bata ka, wala kang mamanahin. But if you happen to be a legatee or
Mixed – if partly by will, and partly by operation of law as devisee, meron ka parin makukuha.
where the testator did not dispose of his entire estate by will. He
disposed only 40% of his properties by will, the rest had no Illustration: Assume X has one legitimate child - S. He dies with a
provision covering them in the will. Thus, the 60% will be will where there are only two provisions: (1) “I give my friend F
governed by intestate succession, the 40% percent, by his will. P10,000; (2) I give the rest of my estate to my friend G.” X’s total
hereditary estate is P120,000 and S is not mentioned in the will.
Tandaan, wala na ngayon yung Contractual Succession, Assume further that during the lifetime of X, he had given nothing to
with the advent of the Family Code. It was called as such because S. How do we distribute the estate? Since there is preterition, we
it allowed the future spouses to give to each other properties mortis have to apply article 854.
causa through their marriage settlement. The settlement is a In the case of F, he is obviously a legatee. Therefore, under
contract, and yet under the old civil code, they were allowed to 854, his legacy will be respected if it is not inofficious. Out of
give properties through each other. Wala na yan, yung tatlo nalang P120,000, the legitime of S is P60,000. The other half is the free
(Testate, Intestate and Mixed). portion. A legacy or devise will be considered inofficious if it
exceeds the free portion. The legacy of F is thus valid, as there
Remember the distinctions between Heirs on the one hand, would still remain P50,000 in the free portion. But to whom will the
and Legatees and Devisees on the other. Why? Because under remaining P50,000 go? To G, as provided in the will? Or to S?
certain provision of succession, they are treated differently. So we Answer: To S. Why? Because under 854, once there is preterition, it
must know, is he an heir, legatee or devisee? will result in the annulment of the institution of heirs. It is as if
nobody was instituted as an heir. Therefore G has no legal basis for
receiving anything, he ends up with nothing because he is considered
Some provisions where they are treated differently, and where the an heir.
legal consequences would be radically different:
Most important is Preterition under art. 854 – the omission

of one, some or all of the compulsory heirs in a direct line will
result in the annulment of the institution of heirs.

When is a person considered an Heir? If he is given the Note that the general rule in 793 applies only to legacies
entire estate or a fractional or aliquot part of the estate. and devises. It does not apply to instituted heirs. Therefore, if the
He is considered a Legatee if he is given, by way of will, a testator says in his 1985 will “I leave my entire estate to my friend
specific or determinate item of personal property; and a Devisee if F” and at that time his entire estate consisted of 5 cars. When he
what is given is a determinate item of real property. died 20 years later, his entire estate consisted of 5,000 cars. How
many cars is F entitled to? 5,000 because in this case, F is not a
In case there is preterition, I would rather be a legatee or mere legatee or devisee, but an instituted heir.
devisee, rather than an heir. However, it does not mean it is always
better to be a legatee or devisee.
When would it be better to be an heir? In cases of after-

acquired properties, for example. These are the properties referred
to in article 793 – those acquired after the execution of the will and
before the death of the testator. What is the rule? After-acquired
properties shall only pass thereby as if the testator had possessed
them at the time he made his will if it expressly appears upon the
face of the will that such was his intention.
Thus, the General Rule: they do not go to the testamentary

beneficiary concered. Exception: express provision of the will to
the contrary effect.
Suppose, in the will of X he said “I give to my friend F, all

of my cars”. At that time, he had 5 cars. Upon death, F is entitled to
5 cars. Suppose that after making the will, X acquired 4,995
additional cars, how many cars will F be entitled to? Still 5 cars,
applying the general rule. If X provided to give all his cars, as well
as any other cars which he may hereafter acquire, then it clearly
appears on the face that his intention is to give even the after-
acquired cars.

WILLS in GENERAL necessary, and to distribute the same to the street children of
Manila.” Hindi pwede yan, it must be specific property or sums of
What is a Will? Article 783 gives a codal definition – it is an act money.
whereby a person is permitted, with the formalities prescribed by
law, to control to a certain degree the disposition of his estate, to However, the moment that the testator refers by name the
take effect after his death. testamentary beneficiaries, forget about 786. You apply 785 – the
duration or efficacy of the designation of heirs, legatees and devisees
From the provisions, we can deduce certain fundamental or the determination of the portions which they are referred to take,
characteristics of a will: when referred to by name, cannot be delegated to a third person.
It is a strictly personal act – we have to do it personally and So remember, in 786 – the beneficiaries are specified cause
cannot delegate its making to another, even with an expressed
or class. In 785 – the beneficiaries are specific names of institutions
power of attorney. It cannot be accomplished through the or individuals.
instrumentality of an agent or attorney. The testamentary Thus, You cannot say “I hereby bequeath P100 M to San
disposition should come from the testator himself. As a matter of Beda, UP and Ateneo, and I leave it to my executor to determine
fact, the testator is prohibited from making testamentary
how much will be given to each of them.” Because the beneficiaries
dispositions whose validity or compliance will depend upon the will were referred by name, 785 prohibits leaving to the discretion of a
of another person. For example, in article 787 – the testator cannot third person the duration or efficacy of the designation or the
make a disposition in such a way that another person will have the determination of the portions which the named beneficiaries will get.
power to determine whether it shall be operative or not. You cannot
say in the will “I hereby give my house and lot and farm in Bulacan
to my brother, provided my wife will agree”.
There are two general types of ambiguity:
Note the provisions of 786 – the testator is permitted by the Patent – ambiguity which is obvious or apparent from a mere
law to give in general specific property or sums of money to a class reading of the testamentary provision.
or a cause, and also to delegate the actual distribution to a third Ex.: (1) “I give to two of my five brothers my house and lot
person. in Quezon City” Malabo agad, sino dun? He did not even bother to
name who these two brothers are. Whatever happens, the principal
You can say “I leave the amount of P100M for the street
rule in testamentary succession is always the ascertainment of the
children of Metro Manila. I leave the distribution of that amount to intention of the testator.
my executor.” Then the executor by himself can determine who the What is the solution? Intrinsic evidence, as well as
specific street children to be benefited. But I cannot say “I authorize Extrinsic evidence, but excluding the oral declarations of the
my executor to get from my estate as much as he may deem testator. Intrinsic – those found in the will itself, like the other

provisions of the will. Extrinsic – evidences other than the will itself, subsequent changes in the law, they will generally not affect the
but excluding the oral declarations of the testator. Hindi pwedeng validity of the will.
during the contest as to who the “two brothers” are, all five bothers Exception – if the subsequent law provides for retroactivity.
will be presenting 100 witnesses each, because it will be hearsay and Exception to the exception – even if retroactivity is provided for, if
fundamentally dangerous and risky. At that point, the testator is dead in the mean time, prior to the effectivity of the new law, the testator
and in no position to object the witnesses. has died. Why? Because in that case, we apply 777, upon the death
What about letters? Pwede yan. of the testator, successional rights would have been transmitted and
are already in the nature of vested rights, which cannot be impaired
Latent – those that are not obvious by a subsequent change in the law even where retroactivity is
Ex.: “I give my first cousin Jose Santos my house and lot in provided for.
Quezon city”. The provision is very clear. But assume, however, that
after the death lima pala ang first cousin n’ya na pare-pareho
pangalan Jose Santos? In some families there are certain favorite
names. What now? Same solution – intrinsic evidence – you read the
other provisions which may clarify the ambiguity. Or you may resort
to extrinsic evidence, but then again, excluding oral declarations of
the testator.
You give the words of the will their ordinary grammatical

sense. Technical words, you give them their technical sense
UNLESS it is clear that the will was prepared by the testator all by
his lonesome self and that he used certain technical words without
realizing the technical meaning of those words.
Recall the general rule that testacy is preferred over

intestacy. If there are two ways of interpreting a will, you avoid the
one which will result in intestacy. You always try to have testacy.
Note in 785 – the validity of a will as to its form depends

upon the law in force at the time of execution. If there are

TESTAMENTARY CAPACITY and INTENT
The presumption is always on the soundness of mind. We
can always invoke that presumption in our favor. But that is a
disputable presumption and may sometimes be reversed. When
Basic Requirements:
will this be? If the testator, one month or less prior to the making of
At least 18 years of age – hindi pwedeng kulang kahit na the will, was publicly known to be insane. Then, the presumption is
ilang araw lang. The testator must have already celebrated his 18th that he was not of sound mind, and he who alleges otherwise would
birthday. If the testator made his will two days before his 18th have the burden of proof. In the same line, if the testator made his
birthday, that is not a valid will. will after he has already been placed under guardianship precisely
because of unsoundness of mind, then the presumption is that he did
Must be of Sound Mind – remember the codal definition of not have soundness of mind at the time of execution of his will.
“soundness of mind” under 799, specially paragraph (2) – to be of
sound mind, all that the law requires is that the testator, at the time Proper Objects of his Bounty – means that at the time of
he makes his will, should know: the execution of the will, the testator must still know who are persons
(1) the Nature of the estate to be disposed of; closest to him, his close relatives, the individuals who, by nature of
(2) the Proper objects of his bounty; and their close relationship to the testator, would have the natural right
(3) the Character of the testamentary act. to expect something from him.
As long as the testator knows all of these three, at least in a general If at the time of execution, the testator could not even
way, then he has testamentary capacity. recognize his own wife and children, then he would no longer be
capacitated to make a valid will.
The law is even more categorical in paragraph 1, it is not
required that the mind be wholly uninjured or unimpaired by Character of Testamentary Act – he must know that he is
disease or any other cause. In other words, kahit na may konting making a last will and testament. That it is this document which will
topak, pwede parin, as long as he satisfies the minimum be used as basis for distributing his estate when he dies. He should
requirements in 799. know that it should be within his power as testator to revoke his will
anytime before his death.
Nature of the estate – the testator must know, in at least a
general way, what his properties are. He may remember that he has a Supposing that a person believes in the existence of unseen
house and lot in Quezon City, even if he cannot remember the exact beings, for example dwarves or elves and even claims that he talks to
address, it will be sufficient. He remembers that he has a substantial these creatures. Is he necessarily incapacitated to make a will? I do
deposit in a certain bank. He may not remember the exact amount, as not think so. Mere belief in the existence of these unseen spiritual
long as he knows that it is quite substantial, that should be
considered sufficient.

beings will not necessarily render a person incapacitated to make a
will.
There is minimum, but no maximum age in making a will,

just like in marriage. Even if the testator is already 110 years old,
amoy lupa na, he can still make a valid will. He may be suffering
from a host of diseases, lahat ng klaseng sakit nasakanya –
pneumonia, diabetes, heart condition, hypertension – that does not
incapacitate him to make a valid will, as long as he is still able to
meet the basic requirements under 799.
How about drug addicts? YES, as long as at the time of

execution of the will, they still knew the nature of the estate to be
disposed of, proper objects of their bounty and character of the
testamentary act. The same thing may be said with respect to
alcoholics.
The capacity to make a will must be possessed at the time of

execution. As long as the testator was capacitated to make a valid
will at the time of execution, his will is valid, even if he subsequently
becomes incapacitated.
If X made a will at the age of 22, and at that time he was of

sound mind, but 2 years thereafter he became insane and had died in
the state of insanity, his will should be allowed. What matters is
when he made the will, he was fully capacitated to make one.
Conversely, if at the time of execution, the testator did not
have capacity, even if he subsequently acquires capacity, his will
remains invalid.
If X made his will at the age of 17, and he died 10 years later
at the age of 27, his will is invalid.

FORM of WILLS If there is a dispute later on, the people opposing the probate
of the will says “this will is in English, the testator does not know
English.” That would necessitate the presentation of evidence, which
First rule is in 804. We do not have oral wills. All wills must can come from the outside, not necessarily from the will itself. The
be in writing. The law does not specify the material to be used. In petitioner may present witnesses who will testify that the testator
actually knew and spoke English – that is admissible. Though not
the case of a holographic will, any material may be used. You may
write it on a piece of paper, on the ceiling, on a wall, anything, even necessary for the validity of the will, it would not harm to include a
sa balat ng pakwan. statement which reads “I hereby publish this last will and testament
I remember a case in US, where there was a farmer tilling his in English, a language known to me.”
farm with a tractor. Perhaps the slope was just too much that the
tractor overturned and the farmer was pinned down and he realized
he was dying. And so, he got a sharp object and scratched on a metal
part of the tractor “everything to my wife”, placed a date and signed.
That is a valid holographic will.
With the technological advances we have, practically every
household has a video camera. Even then, it is not sufficient for a
person to simply dictate his will in a recorded video.
In 804, the law is categorical when it said that the will must
be executed in a language or dialect known to the testator.
Therefore, if the will was written in English but the testator knew
only Filipino, but the lawyer who drafted the will fully explained,
translated and interpreted everything to the testator completely – that
remains an invalid will. The law is not satisfied with mere
translations or interpretations. It must be in a language or dialect
known to the testator. Reason? No matter how good the interpreter or
translator may be, certain nuances of language are always lost in the
process of translation or interpretation.
It is not necessary, however, that the will itself should
contain a statement to the effect that it is in a language or dialect
known to the testator.

Notarial Will
If the testator is Juan Santos, and the person requested by
Found in 805 – every will, other than a holographic will, him to write his name is Pedro Santiago, how should the latter
must be subscribed at the end thereof by the testator himself or by comply with 805?
the testator’s name written by some other person in his presence and He should not forget to write the testator’s name – yun ang
by his express direction, and attested and subscribed by three or pinaka importante. So, pwede nyang isulat “Juan Santos - by Pedro
more credible witnesses in the presence of the testator and of one Santiago”
another. If he wrote “by Pedro Santiago” only, without “Juan Santos”
The first important thing we should remember in paragraph 1 that is NOT VALID. Maliwanag ang batas – tastator’s name.
is that: it tells us, in very clear language, that it must be subscribed If he wrote only “Juan Santos” and did not bother to write his own
name, that is VALID, as long as in the attestation clause, the fact that
at the end thereof by the testator himself or by the testator’s
Pedro Santiago wrote the testator’s name in his presence and by his
name written by some other person in his presence and by his
express direction. The requirement, therefore, for the subscription express direction is stated. Otherwise, without this statement of fact
or signing at the end of the will, is an essential requirement for in the attestation clause, the will is VOID.
validity. The testator is the one required to sign his will at the end and
If the will is 5 pages, and the testator affixed his signature in on the left margin of all of the pages of the will. In signing his will,
each and every page thereof in the left margin, but did not sign at the the testator may use his usual signature. He can also use his initials –
end of the will, that is NOT a valid will, because it fails to comply pag maraming pages yung dokumento, usually you don’t use your
full signature in authenticating the pages of the document, you
with an essential requirement.
Where is the end of the will? When the law mentions the simply use shortcuts like the initials.
“end of the will”, it refers not to the physical end but to the logical If the testator happens to be a writer or artist, he can use his
end. Meaning, after the last testamentary disposition. penname. Or if he is a movie star, he can use his screen name rather
So if there are 10 testamentary dispositions, the end of the than his legal name – that is permitted.
will is after disposition number 10. Sa baba nun is the end of the Can the testator use a nickname? For example the testator
will, that is where the testator should affix his signature. only has 9 fingers because sinalag nya yung bolo nung kaaway nya,
and since then he was known as “putol”. Can he use that nickname
The law allows the affixing of the testators name by a third in the will? Yes. In the law on wills, “signature” is taken from the
person, but remember the two requirements: word Signum which means “sign” or “mark”.
(1) it must be done in the presence of the testator; Can the testator sign the will with his thumb mark?
(2) and by his express direction Pwedeng pwede yan. Kung gusto nyang medyo maiba, yung mark of
Both requisites must concur, otherwise the will is void.

his bigtoe ang ginamit nya – pwede rin yan. Extreme example: each page has the marginal signature of the testator and the three
Supposing he is very romantic fellow, and he uses his lips with the witnesses.
intent to sign the will with the imprint of his lips. Would that be a
valid will? Yes, as long as it can be established that he intended to Supposing that it is a 5-page will which is perfectly
use that as his sign or mark. executed, except that on page 3, you don’t find the signature of the
testator on any of the margins. Should the will be allowed?
A Notorial Will should have three or more credible
witnesses. In this connection, you have the case of Icasiano vs
The law uses the adjective “credible” – is it necessary, Icasiano. In the case, the oppositor practically threw everything
during the probate of the will, that there must first be preliminary against the petitioner. On page 3 of the original will, there was a
proof that the witnesses are credible individuals in the sense that they missing signature – that of one of the witnesses. The oppositor
enjoy a high degree of respectability, reputation of probity and claims forgery on the signature of the testator, undue influence, fraud
honesty in the community? No. the SC held: when the law says and failure to comply with the formalities because the one witness
“credible witnesses”, it simply means qualified or competent. So had no signature on page 3. The petitioner presented the duplicate
there is no need for a preliminary proof as to the reputation of the original, and such was perfectly signed by the testator and the
witnesses. witnesses in all the places required. They contended that if the
Can there be more than three witnesses? Yes, even more original cannot be probated, then let’s just probate the duplicate
than 10, but should not be less than three. If it only has two original. The SC said: we are not convinced that the will is a forgery.
witnesses, that is not a valid will. The mere fact that the oppositors alleged both fraud and undue
influence in one and the same opposition, simply shows how weak
Paragraph 2 states that: the testator or the person requested by him to their position is, because these two are mutually exclusive – they
write his name shall also sign, as aforesaid, each and every page cannot exist together. If they are opposing the allowance of the will
thereof, except the last, on the left margin, and all the pages shall be because of the absence of signature of one of the witnesses on page
numbered correlatively in letters placed on the upper part of each 3, there is no reason why they should also oppose the probate and
page. allowance of the duplicate original, which, after all, contains all the
required signatures at all of the appropriate places. It would seem,
The testator and the witnesses are required to sign each and under the circumstances, that the failure of one of the witnesses to
every page of the will, except the last, on the left margin. sign on page 3 was simply due to inadvertence caused by the
Supposing they wanted to be different, they signed on the simultaneous lifting of two pages.
right margin. Pwede ba ‘yon? Oo, pwede yon. They signed on the Now, if you’re asked a problem where page 3 of a 5-paged
bottom margin, or at the top margin – pwede parin ‘yon, as long as will does not have the marginal signature of either one of the
witnesses or the testator, should the will be allowed? I submit that

the ruling in Icasiano should be limited only to the precise Why? Because even if page 1 is not numbered, there can be no doubt
circumstances which are obtained in that case, and the more which is page 1 – it contains the title of the document
important thing in the case is that there was a duplicate original.
There can be no doubt that there was a validly executed will because
of such duplicate original. The witnesses are required to sign, among other things, on
If, on the other hand, you only have one copy of the will, and the left margin of each and every page of the will. Just like the
that single original copy lacks one of the required marginal signature, testator, the witnesses can also sign with their nicknames, thumb
I submit, following earlier rulings of the SC, the will should be marks, etc.. as long as in reality, they know how to read and write
disallowed. In other words, the ruling in Icasiano has not done away because one of the requirements for witnesses is that they should
with the previous rulings of the SC in many cases where the will was know how to read and write.
invalidated because of the absence of the required marginal
signatures. It should not be interpreted to mean that we can now do Would it make any difference if the witnesses signed the will
away with the requirement of marginal signatures on each and every ahead of the testator? Example, the testator asked the witnesses to
page, as expressly mandated in 805. sign ahead, and they all did, including in the attestation clause. Only
after they had signed, did the testator sign the will. Should that be a
valid will? I think the better view is that: as long as there is no
interruption, as long as everyone signed during one single continuous
All of the pages should be numbered correlatively in occasion, the will should be VALID. Actually, the thrust of those
letters placed on the upper part of each page. who believe otherwise is that: if the witnesses signed ahead of the
The precise location of the numbering is NOT essential for testator, they are actually attesting to a falsehood because they will
validity. If they placed the numbering on the lower part, left margin be signing in the attestation clause that “the foregoing will was,
or right margin, ok yun basta may numbering. among other things, signed in our presence by the testator.” Eh hindi
What is meant by “numbering correlatively in letters”? pa naman nagaganap yun because the testator has not yet signed. I
You spell out, instead of simply writing the Arabic numeral. If you repeat, the better view, and the SC said so in Caneda vs CA, as long
want to follow the provision literally, you write the word “one”, next as everyone signed during one single uninterrupted continuous
page “two” – yan ang correlative numbering in letters. occasion, the will should be considered valid.
If the testator wrote the Arabic numeral “1” and “2”, pwede
rin yan. That will not affect the validity of the will, you can even use
roman numerals, even letters of the alphabet, as long as there is If, however, the testator invited the witnesses to his
correlative numbering. residence on January 1, and asked them to sign his will without his
Supposing that it is a 5-page will, pages 2, 3, 4 and 5 are signature yet thereon. He then said “let’s meet again on January 6”.
numbered. Page 1 is not numbered, should the will be allowed? Yes. And it was on January 6 only when he signed the will. I submit, in

that case, the will should not be allowed because it is clear that when Supposing the testator was really very sick, he dictated to his
the witnesses attested the execution of the will, they were attesting to lawyer the provisions of his will and the latter drafted. He then said
a falsehood because the testator had clearly not yet signed as of “Atty, I want you to sign the will for me.” The lawyer encoded the
January 1. will in his office and rushed back to the hospital with the finished
print, but upon return, the testator was already unconscious and sunk
If a third person has been asked by the testator to write his into a comma. Inside the room of the testator, and with the three
name on the will under his express direction and in his presence, the witnesses, the lawyer affixed the testator’s name as was earlier
mere silence of the testator or his failure to object to the signing by a instructed to him. Is that a valid will? NO, because while it was done
third person is NOT the express direction contemplated by law. in close proximity to the testator, the requirement of presence was no
longer satisfied. Why? The testator was no longer conscious of what
was going on. “Presence” requires not just physical proximity, the
If the testator is very sick, and his lawyer, who had earlier
drafted the will in accordance with his instructions, told the testator, absence of any obstruction, but also requires a consciousness or
in the presence of the three witnesses “Mr. Testator, I don’t think awareness of what is going on.
you are in a position to sign this will yourself. Unless you have an
objection, I will sign this will for you”. Later on, the testator just
stared at the lawyer. Sabi ng lawyer “O, wala syang objection, so I The presence of the notary public is not required at the time
will sign the will for him”. That is NOT a valid will, there is no of the actual signing of the will by the testator and the witnesses.
express direction. Mere failure to object and mere silence is not When it comes to the acknowledgement of the will, syempre
express direction. nandun na yung notary public.
The express direction, however, need not be done verbally. 805 provides, in paragraph 3, the matters which are required to be
If the lawyers asks the testator “Mr. Testator, do you want me to sign stated in the attestation clause. So what are these?
this will for you?” and the testator nodded – pwede na ‘yon. That is (1) the number of pages used upon which the will is
already an express direction. written;
(2) the fact that the testator signed the will and every page
It must be done in the presence of the testator. If the thereof or caused some other person to write his name under his
testator orders his lawyer “Atty, ipirma mo na pangalan ko dyan.” express direction in the presence of the instrumental witnesses;
And the three witnesses were there, but it was too crowded in that and;
small hospital room so the lawyer and the witnesses went to another (3) the fact that the instrumental witnesses signed the will
room to sign. That is not a valid will because the signing by the third and all the pages thereof in the presence of the testator and of one
person must be done in the presence of the testator. another.

Supposing that an essential fact required is not stated in the appears on each page beside the signature of the witnesses will NOT
attestation clause, as it does not state the total number of pages of the prove that the testator affixed his signature in the presence of the
will – is it necessarily invalid? Or is it still possible to probate that witnesses.
will? If what is missing in the attestation clause can be found in
another part of the will, it may still be allowed. As long as what is If, for example, the testator invites the three witnesses to his
missing can be found in another part of the will. residence on January 1, tells them “I will make my will, and I want
For example: total number of pages is not stated in the you to be my witnesses. Here is my will, I already signed it, here is
attestation clause, but in the notarial acknowledgement, it is stated – my signature on each page and at the end.” Is that a valid will? NO,
that is substantial compliance. the mere admission or acknowledgement by the testator that the
signatures already appearing on the will are his, is not enough. The
law requires that the signature of the testator be affixed in the
Supposing that the total number of pages is not stated in the presence of the witnesses.
attestation, but in the last paragraph of the will, just above the
testator’s signature, it says “..my last will and testament consisting of
5 pages...”, can the will be allowed? Yes, because while an element When is there Presence? When there is close physical
is missing in the attestation clause, it is nonetheless, found in another proximity and the parties are situated in such a way that there is no
part of the will itself. In other words, there is no need to introduce physical obstruction which would prevent one from seeing the other
extrinsic evidence. by simply turning his gaze to the proper direction.
Supposing that the attestation clause does not categorically
state that the testator signed each and every page of the will, but I am signing the will in this table, you are one of the
provides only that “the foregoing will was signed by the testator”. witnesses and you happen to be standing by the door inside the room,
Can the will be allowed? Yes, as long as each and every page of and there was a commotion going on in the hall way, so you were
the will, in fact, contains the testator’s signature. The failure to looking out. Is there signing in your presence? Yes. The law does not
state expressly that the testator signed every page of the will may be require the testator and witnesses to actually see each other sign to
deemed cured if, upon examination of the will, each and every page satisfy presence. All that is required is that they could have seen
thereof bares the signature of the testator. each other sign, there being NO physical obstruction, by simply
turning their gaze towards the proper direction.
But if what is lacking in the attestation clause is the fact that
the testator signed in the presence of the witnesses, that defect will If the testator signed the will in the same room with the three
NOT be cured even if you find the testator’s signature appearing on witnesses, but while the testator was signing, one of the witnesses
each and every page of the will side by side with that of the was busy watching a movie in the television or was busy texting so
witnesses. Because the mere fact that the signature of the testator

the testator signed without him looking. Is there signing in the the page containing the clause. Should the will be allowed? NO. It is
presence of that witness? YES. clear in Azuela case. As pointed out by the SC: without the
witnesses’ signature at the end of the attestation clause, the will is
void because the requirement for marginal signatures is a separate
If the testator is blind, how do we satisfy the requirement of distinct requirement from the requirement that there should be an
presence? Through the use of other senses. What other senses can attestation clause. The signatures of the witnesses simply comply
you possibly use? with the requirement for marginal-signature. That is not compliance
Sense of touch – Hindi naman kelangan akapin ng testator with the requirement that there should be an attestation clause. An
yung witness habang pumipirma. He may hold the will while it is attestation clause not signed by the witnesses is not valid – the will
being signed by the witness, and sense, through his fingertips, the should also be considered invalid.
action being done by the witness. Or the witness may give him a
running account of what is going on.
The will must be acknowledged before a notary public.

You don’t have a valid notarial will without this.
805 says – if the attestation clause is in a language not known to the The notary public need not be present at the time of actual
witnesses, it shall be interpreted to them. signing of the will by the testator and the witnesses. As a matter of
Supposing that the attestation clause is in a language not fact, it is perfectly valid if the date of the execution of the will stated
therein is different from the date of acknowledgement. The will can
known to the testator, should the will be allowed? YES. While it is
not possible to have a notarial will without an attestation clause, be made today, and acknowledged a week later – that does not affect
nonetheless, the fact remains that the attestation is the act of the the validity of the will.
witnesses, not of the testator. The notary public, before whom the will is acknowledged,
must be properly authorized to act. If the will is acknowledged
Assume a 5-page will. Page 5 contains only the attestation
clause. The testator signed at the end of the will on page 4, and also, before a notary public in Quezon city, but his notarial commission is
together with the witnesses, on the left margin of pages 1-4. On page for the area of Caloocan, that is not a valid will. Wala kang
5, however, you only find the signatures of the witnesses. Should the karapatan mag notaryo sa labas ng teritoryo mo, otherwise the will
will be allowed? Yes. Since page 5 contains only the attestation is void. This is because a notary public is bereft of power to perform
clause, the testator has nothing to do with that page. any notarial act outside the area of his notarial commission.
Nangyari na ito in the case of Guerrero, the notarial
Assume again a 5-page will. The testator and the witnesses commission was in Caloocan and it was acknowledged before him in
signed on the left margin of pages 1-5. The witnesses, however, did Quezon city – that is clearly VOID.
not sign below the attestation clause, but only on the left margin of

The notary public is not required to retain a copy of the persons. And while the law does not categorically so state, it is
will or file one with the office of the Clerk of Court. Ordinarily, understood that the two individuals will communicate the contents
when you acknowledge a document before a notary public, the latter one after the other. Hindi naman pwedeng sabay yung dalawang
will get at least two copies. One, for his own file, the other to be tao nag kukumpas sa testator – isa isa lang.
submitted to the Clerk of Court which issued its notarial commission.
The purpose is to preserve the secrecy of the will.
Not just the testator, but the witnesses as well, must If the testator is blind, the will must be read to him twice –
acknowledge before the notary public. However, they are not the law even specifies who should do the reading – once, by one of
required to do so in each others’ presence, unlike in execution the witnesses, an again, by the notary public before whom the will is
where everyone must sign in the presence of each other. acknowledged.
The testator can acknowledge on Jan.1, one witness on Jan.2, If the will is read only once to the testator, it is not a valid
another on Jan.3 – still valid because presence is not required. will. It is not for the testator to waive a second reading – that is a
mandatory requirement which must be complied with, otherwise
If one of the three witnesses is also a notary public who the will is invalid. The purpose is to prevent the commission of
notarized the will, that is not a valid will. Because the notary public fraud.
cannot dichotomize himself and assume two different personalities,
one as a witness, and another as the notary public. If the testator is illiterate, walang specific na provision, but I
If there are 4 witnesses, and the will is acknowledged before submit: the same rule should be applied as with blind testators. Kase
one of them, then it can be valid because there are three other ang illiterate testator, para din bulag yan. Kahit na ipag wagwagan
witnesses to the execution of the will. mo sa harap ng mata nyan yung will, hindi nya mababasa. Those are
just meaningless signs and symbols as far as he is concerned. So, the
will must be read to him twice.
If the testator is deaf or a deaf-mute, 807 applies – he must Remember the case of Alvarado where the testator was
personally read the will, if able to do so; otherwise, he shall blind. The will was read only once. Not only that, it was not read by
designate two persons to read the will, and to communicate to him in the notary public nor by one of the witnesses. Ang nag basa was the
some practicable manner the contents thereof. lawyer who drafted it, and yet the will was allowed. Why? Because
It is the testator who will designate the two people who will while the lawyer was reading the will, they were all sitting around
read the will, and thereafter, communicate to him the contents the table – the notary public and the three witnesses – and they each
thereof. had a copy of the will, so they were following the lawyer’s reading
The law somehow assumes that some mode of word for word. After reading, the testator said “that is my will”, so it
communication is possible between the illiterate testator and the two was signed accordingly and acknowledged before the notary public.

The Court said there was substantial compliance with the
requirement of the law, walang duda.
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 the requirements of 805 – that is the
Doctrine of Liberal Interpretation.

Holographic Will You also remember the requirements when it comes to the
probate of a holographic will as to the number of witnesses. You’ll
find this in 811 – if there is no opposition, at least one witness who is
A Holographic Will must be entirely written, dated and signed by familiar with the handwriting and signature of the testator must be
the hand of the testator. presented to identify the will. If there is an opposition, at least three
such witnesses shall be presented.
If the testator does not have hands, and he uses his mouth to
write, can he make a holographic will? YES, “hand of the testator” In an earlier case, the SC has considered the requirement of
should not be taken literally. three witnesses as merely directory. In the case of Azuala, three
If he uses his foot to write, it is still a valid holographic will. witness rule in case of opposition is not mandatory. Why? Because
the availability of three witnesses who are all familiar with the
Remember that you cannot have a valid holographic will handwriting and signature of the testator is something which is not
unless it is dated. It is not valid without a date. totally within the control of the petitioner. For all you know, even if
Ideally, it should have a complete date, with month, day and the petitioner looks far and wide for such witnesses, he may not be
year. But, as already been held by the SC, even if only the month and able to locate three who can truthfully assert under oath that they are
the year is indicated, that it sufficient, in the absence of any familiar with the handwriting and signature of the testator. That is
indication of bad faith, forgery or fraud. the reason why the law allows for the presentation of expert
witnesses.
In one case, the date was written only as “Feb/61” – that was
considered as valid date. In the later case of Codoy and Ramunal, however, the SC,
The problem is when, supposing the testator made two wills basing its decision on the use of the word “shall”, held that the
in the same month, parehong “Feb” ang date. How do you requirement was mandatory.
determine which is the later will? No problem if the provisions are
You cannot probate a holographic will unless you can
consistent with each other. But supposing they are inconsistent?
present either an original copy, or at least a photocopy. Why?
The date may be placed anywhere in the will. Because the only guarantee of authenticity of a holographic will is
In the case of Labrador, there was not even a separate date. the fact that it is supposed to be entirely written, dated and signed by
It was simply mentioned in passing in one of testamentary the hand of the testator. The court, therefore, must always be given
provisions. The SC said it was sufficient, the fact remains that there the opportunity to examine the will and determine whether it is in
was a date although it was simply mentioned in passing. fact in the handwriting and signature of the testator.
Can a blind man make a holographic will? YES, as long as he knows

how to write.

If the one and only copy of a holographic will has already Why? Because it says dispositions in a holographic will appearing
been lost, so that there is no existing copy, notwithstanding that it or written below the signature of the testator must be dated and
only had one provision and a number of people had seen it, forget signed in order to be valid as testamentary dispositions.
about the probate of that will. You need at least a photocopy, In other words, the law assumes that the last thing you will
otherwise forget about probate. find in a holographic will is the testator’s signature. That is the
reason why the law makes the testator’s signature the point of
The testator may sign his holographic will, just like a reference in so far as additional dispositions are concerned.
notarial will, with his full signature, initials, nickname, stage name,
etc. So, just like a notarial will, although the law does not
specifically states, the testator should also sign at the end of the
holographic will or after the last testamentary disposition.
When it comes to any Alterations or Insertions, however, If the testator made the following will:
the law is categorical when it requires – for any insertion or May 7, 1985
cancellation or alteration in a holographic will, it must be “I give everything to Sheryll Gonzales”
authenticated with the full signature of the testator. Signed: Bjone Favorito
Therefore, insertions, alterations or cancellations cannot be That would be a valid holographic will.
authenticated by using any other signature than the testator’s full If he makes additional dispositions
signature. “I give P10,000 to Aldrian David”
“Full signature” means the usual customary signature of the “I give my house to Cromwell Recto”
testator. It does not necessarily have to include the complete name These two additional dispositions are NOT valid. Why?
and surname – only the usual and customary, as opposed to the Because the law requires that they should be dated and signed. The
fact that they are not valid, however, does not affect the validity of
initial or shortened version.
the will – it remains valid.
Supposing that the first and second disposition is signed but

Remember the provisions of 812 and 813 – if the testator only the second is dated. Both dispositions are valid. Since the
makes additional dispositions in a holographic will, the additional preceding disposition is signed but not dated, the date appearing on
dispositions must be signed and dated; otherwise they are not valid. the last disposition will operate to validate the former. Reason? The
law can assume that these two dispositions were actually made at the
Where should the testator sign his holographic will? The law
same time.
does not categorically state, unlike with notarial will, where the
signature must be. But 812 indicates where the testator should sign.

If the preceding disposition, however, is dated but not If a third person makes an insertion in a holographic will, what will
signed, and the last disposition has both a date and a signature, only be the consequence?
the last disposition is valid. The former will not be validated. Tolentino says there are four possible scenarios:
The provision provides – if the preceding disposition is (1) Insertion is without the knowledge and consent of the
signed but not dated, and the last disposition has both a date and a testator – you simply ignore the insertion, as if it was not written
signature, all of the preceding dispositions signed but not dated, will and the will remains valid
be validated. (2) Insertion is with the consent of the testator – the will
The reverse is not true – if the preceding dispositions are remains valid but the insertion is void.
dated but not signed, the last disposition, even if both dated and (3) Insertion is with consent and was authenticated by the
signed, will not validate the former. Why? Because in this case, the testator with his signature – the entire will is void.
law cannot assume that they were made at the same time – may Reason – by authenticating the insertion made by the third person,
kanya kanyang petsa. the insertion becomes a part of the will, thus, will no longer satisfy
the fundamental requirement that it should be entirely written by the
hand of the testator
(4) Insertion is simultaneous with the execution of the will
As previously mentioned, any insertions or cancellations in a
holographic will must be authenticated with a full signature of the – the entire will is void; same reason as (3).
testator. If a holographic will has some provisions which contains
In our previous example, let us assume that Bjone crossed alterations that are not duly authenticated, you only invalidate the
out the name of Sheryll and inserted “Anne”, ang lumalabas, he affected provisions or the particular insertions concerned. The other
wants his heir to be Anne Gonzales instead of Sheryll. However, he provisions which are not altered will remain valid.
does not authenticate it with his full signature. Who will be
considered as the duly instituted heir? Answer is NEITHER of them.
Why? In the case of the insertion of “Anne”, that is an obvious
invalid insertion because of the absence of authentication. So can’t
we consider the cancellation of Sheryll’s name an invalid
cancellation and treat it as if she is still the instituted heir? The point
is that the principle rule in testamentary succession is always the
ascertainment of the intention of the testator. If we give the entire
estate to Sheryll by invalidating the cancellation for lack of
authentication, we will be ignoring the obvious “change of heart” on
the part of the testator, and that cannot be done.

With respect to the applicable law – if a Filipino wants to What is a Joint Will? It is a single will executed by two or
make a will here in the country, he can only follow one law – the more testators. The use of a single sheet of paper does not
Civil Code of the Philippines. necessarily make it a joint will.
If a Filipino is abroad and he wants to make a will, what If H wrote his will on a paper, and on the back page, his wife
formalities can he observe? He can observe the law of the place of W wrote her will, that is not a joint will. Those are two separate
execution – Lex Loci Celebracionis – applying 17 and 815 of the distinct wills. But if they wrote only one will and they both signed it,
NCC: the forms and solemnities of contracts, wills, and other public it is prohibited and void for Filipinos, even if you execute it at a
documents shall be governed by the law of the place where they are place where joint wills are allowed.
executed.
Assume that spouses H and W executed a joint will while in
If the Filipino is abroad, can he make his will in accordance Brazil where joint wills are valid for spouses. Valid? Nope, void.
with the formalities prescribed by the Civil Code? Yes. The Code Supposing, however, that W is a Brazilian model and H is a
does not categorically and expressly authorize Filipino citizens Filipino. While in Brazil, they made a joint will. Is it still void? Valid
abroad to make their wills abroad in accordance with the formalities in so far as W is concerned, but void as to H.
prescribed by Philippine laws, but it allows foreigners who are If both of them are Brazilians, we can recognize the joint
abroad to make their wills in accordance with the formalities will.
prescribed by Philippine laws. If foreigners are allowed to make their If both of them are Brazilians but they made the joint will
wills abroad as such, there is no reason why Filipino citizens abroad here in the Philippines, can we recognize it? Two views: (1) Void for
should not be allowed to do the same. being contrary to public policy; (2) Valid – NCC allows foreigners in
the Philippines to make a will in accordance with their national laws.
If an alien is here in the Philippines and he wants to make a
will, what formalities can he follow? Those prescribed by Philippine What about the intrinsic validity of wills? It is always the
laws or those of his own country. national laws of the decedent which must be followed.
Remember the four aspects of succession which are
An alien abroad, however, has four choices: (1) laws of his ALWAYS governed by the national law of the decedent:
nationality; (2) those of his domicile; (3) laws of the place of The first three in Art.16, the fourth in Art.1039: (1) order of
execution; or (4) those prescribed by Philippine laws. succession; (2) amount of successional rights; (3) intrinsic validity of
However, when it comes to Filipino citizens, regardless of testamentary provisions; and (4) capacity to succeed.
where they may be, they can never make a joint will. Basta pinoy ka, Regardless of what the testator may say in his will – if, for
kahit sang lupalop ka pa ng mundo mag punta. example, a Korean testator wants his estate to be distributed under
Philippine laws, it will still be Korean Law which will govern.

WITNESSES to WILLS an heir. There would, just the same, be the temptation to testify
falsely because he would have an economic interest in the allowance
of the will.
What are the Qualifications? The enumeration of the persons in 823 is exclusive. Sino
(1) Sound Mind lang yan? – the witness, his spouse, parent or child.
(2) Not less than 18 years of age
(3) Able to read and write If, instead, his grandfather was the one given a legacy or
(4) Not blind, deaf or dumb devise – that should be considered valid.
(5) Domiciled in the Philippines
(6) Not previously convicted of falsification, perjury or false
testimony
823 – if there is a legacy or devise in a will given to one of the

witnesses to that will, or to his parent, spouse or child, that legacy or
devise is considered void, insofar as that witness, his spouse, parent,
child or anyone claiming under them, is concerned; unless there are
three other competent witnesses to the execution of the will.
If A, B and C are the witnesses to the execution of the will of

X, and in that will, X gave A a legacy of P50M – the will is valid.
A remains a qualified witness pero sorry nalang sya, he will not be
able to get that legacy even assuming that the estate has sufficient
assets. Under 823, that legacy is considered void.
The purpose is to remove any temptation on the part

witnesses, who may have been given something under the will, to
testify falsely.
Supposing that instead of being given a legacy or devise, one

of the three instrumental witnesses is instituted as an heir. In the
previous example X says “I give A 1/8 of my estate.” Will A be able
to get his share? He will not. Although the law expressly mentions
only legacy or devise, there is no reason why 823 should not apply to

CODICIL and INCORPORATIONS by REFERENCE Remember the requisites for a valid incorporation by reference:
(1) the paper or document to be incorporated must already be
in existence at the time of the execution of the will;
Ano yang Codicil na yan? It is a supplement or addition to (2) the will must clearly describe the paper or document,
a will, whereby the provisions in an earlier will are added to or stating, among other things, the number of pages thereof;
(3) it must be established, by clear and satisfactory
modified, altered or explained.
You only make a codicil if you already have a will. The evidence, as the paper or document referred to in the will;
execution of a codicil presupposes that there is a previously existing (4) the paper or document must be signed by the testator
will, which you then supplement through such codicil. and the witnesses on each and every page, except in the case of
voluminous books of accounts and inventories.
Formalities? Same as with wills. Therefore, you can either
make a Notarial Codicil or a Holographic Codicil. Because of the fourth requirement, the question has arisen:
Can there be incorporation by reference in a holographic will? Some
If the will which you want to alter is notarial, it does not say NO, because there are no witnesses in a holographic will. But
necessary follow that the codicil should also be notarial. what if there are witnesses? It’s possible for a holographic will to
A notarial will can be modified by a holographic codicil and vice have witnesses, and their presence does not invalidate it and merely
versa. considered as surplusage.
Still, others maintain: while it is possible to have
Ano naman itong Incorporation by Reference? This is incorporation by reference in a holographic will, it is necessary that
merely for the convenience of the testator. Lalo na yung the paper and document should also be entirely in the handwriting of
‘sangkatutak ang mga pagmamayari. If they already have existing the testator. Upon incorporation, the paper or document will be taken
lists or inventories of properties with proper descriptions, they don’t as part of the will. If what is incorporated is not in the testator’s
have to actually reproduce this long list in their last will and handwriting, it may affect even the validity of the holographic will
testament. They can simply incorporate them by reference under the itself.
provisions of 827. At any rate, that is one of the open questions and disputed
points in succession.

827 or incorporation by reference should never be used for the
purpose of incorporating testamentary provisions for they must
always be contained in the will itself. Those will not be valid
testamentary provisions.
Example, you typed testamentary provisions which you

intent to include in your will. 10 years later, you decide to finally
make your will. So you went to your lawyer and said “gagawa tayo
ng will, ito na mga provisions na gusto ko, nagawa ko na dati pa.”
Sabi ni lawyer “Sige, let’s just incorporate them by reference.” – that
is not a valid incorporation. Those provisions are invalid because
when it comes to testamentary provisions, they must be contained in
the will itself.

REVOCATION In case there is unworthiness under 1032 – the unworthy
heir cannot inherit. The provisions in his favor are rendered
ineffective.
The right to revoke a will is one of the basic prerogatives of When both spouses contract the marriage in bad faith
a testator. A will is essentially revocable being ambulatory in under 44 of the Family Code.
When the marriage is declared void ab inito under 50 of FC.
character. As long as the testator lives, he can revoke it anytime and
he does not even need any reason for it. All that is necessary is that By another will – if you execute another will expressly revoking a
he intends and actually revokes his will. previous will or if there are inconsistencies between an earlier will
There are various ways of revoking a will: and a subsequent will.
(1) By implication of law; By the physical acts of destruction –
(2) By executing another will or codicil or other writing there must always be the corresponding intent to revoke. A
executed as in the case of wills; physical act of destruction without a corresponding intention to
(3) By physical act of destruction coupled with intent to revoke will not produce a valid revocation.
revoke – Animus Revocandi. And the law specifies four physical acts
of destruction: (a) burning; (b) tearing; (c) cancelling; and (d) If the testator, while looking for something to start the fire in
obliterating. The enumeration is exclusive. his kitchen in order to cook, inadvertently burned his will – that is
not a valid revocation, there is no intent to revoke.
By implication of Law – you find these instances scattered in the
provisions of the Civil Code and Family Code. Conversely, not all of the intention, without the
Examples: corresponding physical act of destruction, will produce a valid
Legal separation – the provisions in the will of the innocent revocation.
spouse in favour of the guilty spouse are revoked by operation of
law, but not vice-versa. If the testator, fuming mad and angry with his heir, calls his
In preterition – the institution of heirs is revoked or neighbors and says “I am, as of this moment, revoking this will. My
annulled where there is complete omission of one, some or all of the heir will not inherit under this will.” Dinuraan pa nya yung will, and
compulsory heirs in the direct line. then he suddenly collapse suffering a massive heart attack – there is
In legacy of a credit or remission of a debt and the testator no valid revocation. He may have the intention but it must always be
brings an action against the debtor, the legacy of credit or remission coupled with the physical act of destruction of burning, tearing,
of the debt is revoked. cancelling or obliterating.
In case of transformation, alienation or loss of the thing
If the testator, with all due solemnity, gathers all his friends
under 957 – that results in the legacy or devise becoming ineffective. and says “I am revoking this will. Patay na ‘ito. Ililibing natin

ngayon.” and he digs a hole and buried the will. Is there a valid In connection with revocation, it is entirely possible that the
revocation? NO, there is no physical act of destruction. Burying is testator may have made several copies of his will, which is usually
not one of the acts mentioned. the case. If he wants to revoke his will, does he have to retrieve all
Although in one case, the SC considered the act of copies? No, he can simply destroy the copy that he has – that will
crumpling the will and throwing it as sufficient to produce a produce a valid revocation.
revocation. But civilists have agreed, the enumeration is really
exclusive. Supposing that the testator changes his mind while revoking
his will. He has instituted you as heir to the bulk of his estate. When
To revoke a will by burning, you don’t have to completely you visited him to have a chat, you started discussing but at a certain
burn the will. Even if only the edges are burnt in such a way that not point you disagreed to something – kung mas masarap kainin ang
a single word of the will was affected by the fire – that is considered isda kung may kamatis o sibuyas. Before you knew it, you were both
already as sufficient to revoke. shouting at each other. Napikon ang testator, he got his will, waived
it in front of you and said “you are not going to inherit a single
When it comes to tearing, the slightest tear is sufficient as centavo from me.” He tore the will once, then threw the pieces to the
long as it is coupled with the necessary intent to revoke. Even if the floor. At that point you realized what had happened, so you begged
tear extended only up to the margins, and not a single word was for forgiveness and said “Please do not revoke your will”. The
affected by the tearing – that will produce a valid revocation. testator had reconsidered and said “sige pulutin mo yung will and lets
Instead of tearing, you can use a paper shredder – revocation use scotch tape to paste them together”. Can that will still be
din yan, or you can use a pair of scissors. allowed? NO, because when the testator changed his mind, the act
was already subjectively complete. His act of throwing the will to
How do you revoke a will by cancelling? By crossing out
the lines. How does cancelation differ from obliteration? In the the floor shows that, insofar as he is concerned, consumatum est –
latter, the words can no longer be read – binubura. In cancellation, natapos na, he did not intend to go any further, thus, it is already a
they are simply crossed out with whatever lines you may use – criss- completed act. If he changes his mind at that point, it is too late. You
crosses, spirals, etc. cannot restore validity to a will, which has already been revoked by
tearing, by simply taping the pieces together – Humpty Dumpty rule.
As a matter of fact, one of the simplest ways of revoking a
will through cancellation is by crossing out the signature of the Supposing, however, that the testator was still in the process
testator at the end of the will. In a very real sense, you strike at the of revoking his will, tearing the will three times and about to make a
heart of the will – that will operate to revoke the entire will. fourth one when you pleaded to him, and he stops. He forgives you
However, writing the word “cancelled” along the margin of and said “let’s tape the pieces together”. Can that will still be
the will is revocation not by cancellation, but through “other allowed? YES, because the act was not yet subjectively complete
writing.” when the testator changed his mind. He intended to tear it the fourth

time when he was prevailed upon not to do so. Therefore, if the revoked it by destroying the original copy. The SC held: even
testator changes his mind at the time the act was not yet subjectively assuming that the oppositor’s claim was true, under the doctrine of
complete, there is no valid revocation. dependent relative revocation, it should be understood and presumed
that the revocation of the 1918 will was conditioned upon the
effectivity of the 1939 will. Since the later will failed to take effect, it
is presumed that the husband would have preferred his 1918 will to
Another rule we have to remember is the Doctrine of Dependent
Relative Revocation. intestacy.
If the testator revokes a will with the present intention of Another point – sometimes revocation may be presumed
making a new one immediately and as a substitute, and he is unable depending on the circumstances.
For example: There is evidence to the effect that the will was
to make the new will or, able to do so, but the same fails to take
effect for any reason or cause, it is presumed, in the absence of in the possession of the testator. After the death of the testator, the
evidence to the contrary, that the testator would have preferred his will is found among his possessions in a tattered and torn condition.
old will rather than intestacy. The presumption is that the testator revoked his will.
In other words, when the testator revokes his will under this Or if, after his death, the will could not be found, and there
doctrine, he does so conditionally. Ano ang condition? That a new was evidence that he was the one in possession of it, it may be
one will be effective. Kaya kung hindi sya nakagawa ng bagong will, presumed that the testator revoked his will.
or if the new will fails to take effect, then it is presumed that he You also remember 833 – a revocation based on a false or illegal
would rather die with his old will than to die intestate. cause is not valid.
Best illustration is the case of Molo vs Molo, which is a very The important thing here is that: before you can invoke 833,
old case but up to now is still the best illustration of this doctrine. it is necessary that the cause for the revocation must be stated in
the will.
Here was a man who made his first will in 1918. In that will,
he gave practically his entire estate to his wife. In 1939, he made If the testator simply revokes a will, even assuming that the
another will where he expressly revoked his earlier will but still cause for the revocation is false or illegal, but did not state the cause
giving the bulk of his estate to his wife. After he died, the wife in the will itself, there will be no basis for any invocation of 833.
presented his 1939 will for probate. Unfortunately it was disallowed Example: The testator instituted his friend X as heir to the
bulk of his estate in his 1995 will. 10 years later, the testator heard
by the probate court for failing to comply with the formalities
prescribed by law. She then returned with the 1918 will, but could that X was already long dead. Thinking that this was true, he makes
not present the original copy. The best she could produce was a another will in 2005 and said “I hereby revoke my 1995 will.” After
duplicate thereof. The oppositors claims that the reason why she the death of the testator, X appears and learns of the revocation, and
could not present the original was because her husband already was told by the testator’s close friends that the only reason why the

testator revoked his old will was because of the erroneous belief that
X was already dead. Can X question the validity of the revocation?
NO, there is no basis, because the testator simply revoked his will
without stating the cause therefore, thus, no basis for invoking 833.
Even if a will is revoked, any recognition of an illegitimate

child contained in that will is not affected, because the recognition of
an illegitimate child is not in the nature of a testamentary disposition
subject to the sole will of the testator. Recognition creates a status,
thus, there must be a certain element of stability, insofar as the status
of individuals is concerned.

REPUBLICATION and REVIVAL and the 1990 will, which is to be given effect? The 1985 will,
because it is now the later expression of the testator’s will due to
republication.
Republication is brought about by the act of the testator, while Remember that republication through a codicil is not possible if the
Revival is brought about by the law. earlier will is void because of form.
Remember the two ways of republishing a will: Thus, in the previous example, if the testator made his 1985
(1) By executing a codicil to the will being republished – will when he was only 16 years old. In 1992, he makes a codicil
the will is republished as modified by the codicil. modifying the 1985 will. Is the 1985 will republished? YES, it is not
(2) By reproducing the provisions of an earlier will in a defective or void as to form, only the capacity is the problem. The
subsequent will. If the previous will is void as to form, the only way republication is valid.
of republishing the provisions contain therein is by copying them in a If, however, the 1985 will does not contain an attestation
new will. You cannot republish the provisions contained in a will clause, it is not possible to republish it through a codicil. Kung gusto
which is void as to form by simply executing a codicil to that will. mo i-republish, you’ll have to copy those provisions in a subsequent
What is the effect of republication? will.
A will which is republished by a codicil speaks as of the date
of the codicil. In other words, it is as if the will was made at the time
of the execution of that codicil, and that may have some legal When it comes to revival, isa lang naman provision dyan, yung 837.
consequences. The only thing you ask yourself is this: How was the first
will revoked by the second will? If the first will was expressly
Let’s assume that the testator made his will in 1985. He revoked by a second will, forget about revival. Even if the second
makes another will in 1990. Further assume that the provisions of will is itself revoked by a third will, the first will not be revived.
these two wills are inconsistent with each other. If the testator dies
with these two wills, which one will be given effect? Of course, the If, however, the first will is merely impliedly revoked by a
1990, because it is the later expression of the testator’s intent. second will, then the moment the second will is revoked by a third
will, the first is revived.
Let’s assume, however, that in 1992, the testator made a
codicil saying “I hereby modify the following provisions in my 1985
will”. What is the effect? The mere execution of the codicil has the
effect of republishing the 1985 will as modified. This means, it is as
if the 1985 will was actually made in 1992. Assuming there are still
irreconcilable conflicts between the provisions of the modified will

ALLOWANCE and DISALLOWANCE At that point, it is not proper for the probate court to inquire
into the intrinsic validity of the testamentary provisions.
Under exceptional circumstances, however, the SC has

There are some important points which I want to emphasize: allowed a departure from that general rule. When would that be?
1. Probate is mandatory – as long as person dies leaving a will, the Where it is obvious that a testamentary provision is clearly void, and
a probate would be a waste of time because the only provision in the
probate of that will is mandatory. An unprobated will does not
produce any effect. Why mandatory? It is a matter of public policy will happens to be void.
designed to protect not only the interest of the heirs and other The best example is the case of Nugid – the testatrix, in a
beneficiaries under the will, but also to protect the interest of the very simple will, gave her entire estate to one of her siblings. Yun
testator. If it is not mandatory, nobody will bother to make a will lang ang provision. The parents of the testatrix were still alive and
anymore if your relatives can simply disregard the will and you’ll not were not mentioned in the will, they were clearly preterited. The SC
be in any position to protest, you are 6 feet below the ground. held that it is useless to go ahead with the probate of this will
2. Probate is imprescriptible – there is no time limit for the because it is already clear that the only provision in that will is not
institution of probate proceedings because the law itself mandates the effective for preterition. Bakit pa tayo mag sasayang ng oras? You
probation for being a matter of public policy, thus, the same law might as well decide, on the basis of what appears in the face of the
could not have set any time limit. Otherwise, that public policy will, whether or not the institution of that heir is valid.
would be defeated. Another illustration is the case of Nepomuceno – here was a
3. There are only three matters which can be properly inquired married man. The problem was that he had a mistress of long
into by the probate court during the probate proceeding proper: standing for about 20 years. When he made his will, he named his
(1) Capacity – Did the testator possess the necessary mistress and gave her certain properties. The order of the court for
the probate of the will was appealed. CA held: the will is valid, but
capacity when he made the will?;
(2) Identity – Is this document really the last will and this provisions in favor of the mistress are void. The mistress went to
testament of the testator?; the SC, claiming that the CA was erroneous because at this point
(3) Due Execution – Were the formalities prescribed by law only, they should not be resolving the instrinsic validity of the
for the valid execution of a will followed? provisions in her favor. The SC held: the CA did not commit an error
Yan lang tatlong bagay ang pwedeng pagusapan during the probate because it was plain, upon the face of the will, that the provisions in
proper. favor of the mistress are null and void. Under 739, you cannot donate
to people whom you are guilty of adultery or concubinage, and that
article has been incorporated by reference in the law on testamentary
dispositions.

Probate may be Post-Mortem – during the lifetime of the testator, or the will is the expression of the intention of the testator as to the
Anti-Mortem – after his death. manner in which he wants his property to be disposed of. His wishes
must be strictly followed. If a compromise agreement will be
allowed, providing for a different manner of division, that will defeat
There are certain advantages and disadvantages in both. the purpose of making a will.
If you probate your will during your lifetime, the advantage is that if
there are any defects in the will, you can still correct your will or
make a new will if what you had done turns out to be invalid. The
disadvantage, however, is that there is premature disclosure of the Grounds for Disallowance of a Will
testamentary dispositions. So yung mga kamag-anak mo malalaman These grounds provided under 839 is exclusive. There are no other
na kung ano lamang ng will mo, and if some of them feel that they
grounds aside from those mentioned therein.
have not been given a fair share, baka mapadali ang meeting mo
with the Lord. In connection with undue influence, when is this present?
You will notice that this is also a cause for vitiation of consent in
Once a will has been allowed, or the allowance of the will contracts.
has attained finality, that is conclusive as to its due execution. If you look at the decisions of the SC, it is very difficult to
Meaning, it cannot be disputed later on, whether it is invalid or a find a case where they actually found undue influence.
forgery. In succession, as far as I know, there was only one case
Classic illustration of the application of this principle is
where they found undue influence. I refer to the case of Revilla vs
Mercado vs. Santos – there was woman who died. Her husband CA, which I can be discussing later. Why is this so? Because man is
presented her will for probate and was allowed by the probate court. a social being, we do not live in isolation from each other. As a result
16 months later, the relatives of the wife instituted criminal of our daily interaction with different people, we are bound to
proceedings against the husband, alleging that he is guilty of
influence other people in the same way that other people are bound
falsification for forging the will of his wife. The SC held: it is too to exercise some measure or degree of influence over us. But as long
late in the day, because the probate of the will is conclusive as to its as the influence does not overpower our own will, and it is not
due execution. That means it necessarily includes the authenticity of subjugated by the will of another, there is no undue influence.
all the signatures appearing in that will.
A father has four children – A, B, C and D. After his death,
it is discovered that in his will he gave A, B and C only their
The provision of a will cannot be the subject of a compromise legitimes and gave the rest to his youngest, D. The distribution is
agreement. obviously unequal. Will the mere inequality of distribution, by itself,
The Court made it clear in Rabadilla vs. CA. Why? Because prove undue influence? NO. The SC had pointed it out in Icasiano.

Why? Because the principal reason why people make wills, is the old man. And that undue influence was, in turn, used by him to
precisely because they do not want their legal heirs to inherit equally. foist the fraud upon the old man, to make him sign that supposed
If you are a parent who wants your children to inherit equally, why second will, without the old man realizing that he was signing
bother to make a will? You might as well die intestate because, under another last will and testament. Moral of the story? Moderate your
the rules of intestacy, your children will inherit equally. greed.
Supposing in the previous example that it can be proved,

through the testimony of neighbors, that the testator made his will
while he was living with his youngest son D. There is even testimony There was this rather humorous case where a will was
to the effect that the neighbors would constantly hear D pleading disallowed. Kaso ng katangahan. I refer to Calde vs CA – a will was
with his father to give him more than his brothers. Will that establish presented for probate. Of course, in probate, the three witnesses were
undue influence? NO, as long as there is no evidence that would called to testify. All three witnesses were asked how many pens were
show that the father lost his freedom of choice. used in signing the will. All of them, one after the other, answered
“just one”. The will was disallowed because, looking at its face,
In the case of Revilla, was an old man, Don Cayetano kitang kita mo na iba’t ibang tinta ang pinang pirma dun sa will, e
Revilla, who was the owner of valuable pieces of real estate here in hindi ba naman katangahan yun? What was the consequence? The
Metro Manila. He was not married, and his closest relatives were his Court said those three witnesses were not really present when the
nine nephews and nieces who were all siblings. Don Cayeto made a will was signed, otherwise they would have known that more than
will which was presented for probate and allowed during his lifetime. one pen was used.
In that will, everything was divided fair and square, he gave each of
his nephews and nieces 1/10 of his estate, the remaining 1/10 was
dedicated for the upkeep and maintenance of a chapel in Bulacan.
After his death, the eldest nephew suddenly came out with a
supposed second will where Don Cayetano supposedly gave the
eldest nephew anything, and nothing to any of his siblings, not even
for the chapel. However, it was established that at a certain point,
that eldest nephew was able to take full control over Don Cayeto.
There even was a point when he isolated the old man from his
brothers and sisters, took him to a certain residence where no one
could not visit him. The other siblings, at a certain point, even had to
secure a court order to visit him. The SC held: here is a case where
there was undue influence when the eldest nephew took control of

INSTITUTION of HEIRS You remember that under 786, the testator can make a
disposition of specific property or sums of money in favor of a class
or a cause.
You can have a valid will even if nobody is instituted as heir. “I leave P50M for the charitable institutions in Metro Manila” –
In other words, you can simply give out your properties through pwede yan.
“I give P10M for the street children of Manila” – pwede yan.
legacies and devises. But of course, it is always better if you institute
somebody as an heir, especially to the net remainder of your estate, Remember the rule of equal division under 846 – heirs instituted
because you can never anticipate what your properties will be at the without designation of shares will inherit equally.
time you die. If you make a will, you do not die the next day. It However, the legitimes should always be protected.
would probably take another 10 or 20 years before you finally kick
the bucket. In the mean time, you may acquire other properties, so Assume that X, the testator, says in his will “I hereby
you could not properly foresee exactly what properties you may institute A, B and C as my heirs.” X does not have any compulsory
acquire later. Otherwise, there is a great possibility that several of heirs. The estate is P120,000. Since A, B and C had been instituted
your properties will pass to your legal heirs through intestate as heirs without designation of shares, we apply the rule on equal
succession. division. They will inherit equally – P40,000 each.
Suppose that A is actually a legitimate child of the X. In that
To have a valid institution of heirs, it is not really essential case, do not make the mistake of applying 846 directly, otherwise it
that you include the complete name and surname of the heir. The will result in the impairment of the legitime of A.
rule of thumb is: as long as it is possible to determine the identity As a compulsory heir, A is entitled to ½ of the estate – P60,000.
of the heir by some event or circumstance – that would be a valid What do you do with the P60,000 free portion? That is where you
institution. apply the rule on equal division – P20,000 each for A, B and C.
For example “I give the entire free portion of my estate to
the incumbent president of Lex Leonum Fraternitas at the time of my If X institutes “A, B, C and the children of D” as heirs, and
death” Sino yun? Hindi naten alam. But there is an event or D happens to have 3 children – E, F and G, the heirs collective
circumstance by which the identity may become known. designated are considered individually instituted. Meaning, you
divide P120,000 by 6. Each of them receives 1/6, because although
Supposing that the institution is super malabo – “I give ½ of E, F and G have been collectively designated, they are deemed
my estate to some Leonum members” sino yung “some” na yun? individually instituted.
That is considered as a disposition in favor of an unknown person.
That disposition is void, and the properties given to these unknown
persons will instead be merged with the mass of the estate and given
to the legal or intestate heirs of the testator.

Let us assume that X says “I institute A, B, C and D as my papaano ang proportional increase? In forming your fractions, you
heirs. A will get ½, and B will get ¼ of my estate.” How will we start by following what the will said:
distribute the P120,000? Since he specified the shares of A and B,
then we follow the will – A will get P60,000, B will get P30,000. You give ½ to A – P60,000. ¼ for B – P30,000.
We apply the rule of equal division to the remainder – the remaining
*(This portion is slightly different from the actual audio, as Dean’s
P30,000 will go to C and D in the amounts of P15,000 each.
explanation is difficult to translate because he was illustrating with
Supposing that X says “I institute A, B, C and D as my heirs. the board while lecturing this part.)
A will get ½, B will get ¼, and C will get ¼.” He did not specify the What you want to get is their proportional or pro rata share. To get
share of D. In this case, again we follow what he specifically states their ratio, first we add their shares to arrive at the Total which will
in the will. A gets P60,000, B gets P30,000, C gets P30,000 and D be your denominator:
gets nothing. It turns out parang binola lang siya when he was A – P60,000
instituted, because when X specified the shares of A, B and C, it B – P30,000
already covered the entire estate. Total is P90,000.
We then get their ratio by dividing their original share by the total:
If X says “I hereby give A ½ of my estate. I give B ¼ of my A – 60,000 / 90,000 = 6/9
estate.” Again, we follow the will – A will get P60,000, and B will B – 30,000 / 90,000 = 3/9
get P30,000. There remains P30,000, to whom should this go? It It would be easier if you can simplify the fractional share. In this
should go to the legal heirs. If the testator, in instituting the heirs, case, the simple form is: A – 2/3, B – 1/3. In other words, their ratio
stated their fractional parts, and such parts together do not cover the is 2:1 or “2 is to 1” for A and B, respectively.
entire estate, then the part not disposed of by will should go the legal Now that we have their ratio, we apply it to the remaining portion by
heirs, subject to their legitime. multiplying it so that we can arrive at the proportional increase:
A – 6/9 (or 2/3) x 30,000 = 20,000
It is different if there is a clear intention to give the entire
B – 3/9 (or 1/3) x 30,000 = 10,000
estate to the instituted heirs. but the fractional parts do not seem to
We add this increase to their original share, thus, what they will
cover the entire estate. That is time when you go into a proportional
ultimately get is:
increase.
A – 60,000 + 20,000 = P80,000
If X says “I give my entire estate to A and B. A will get ½, B – 30,000 + 10,000 = P40,000
and B will get 1/4.” That is a very clear indication that his intention
The proportional decrease is just the opposite – napasobra.
is to give the entire estate to A and B. Nakalimutan nya ang kanyang
“A is given ½, B is given another ½, and C is given ¼”. In that case
fractions, akala nya ½ and ¼ will already cover the entire estate. So
you go into a proportional decrease, again, according to their share.

One of the important points in institution of heirs, if not the my love and affection from here until eternity.” That is still
most, is Article 854 – Preterition. There is preterition if a preterition basta walang binigay. Binanggit ka nga, wala naman
compulsory heir in the direct line is completely omitted in the will, binigay sa’yo.
and nothing has been given to him by the testator by gratuitous title
even during his lifetime. The compulsory heir who is omitted must be a compulsory
heir in the direct line. If you omit your spouse, sinadya mong
What is the purpose of this rule? Why did the law says that walang ibigay sa asawa mo, that is not preterition. Because your
if there is preterition, the institution of heirs is annulled? Bakit hindi spouse, although a compulsory heir, is not in the direct line.
nalang sinabi “if somebody is omitted, the omitted heir will still get When do you say that you belong to the direct line? If you are related
his legitime.” But no, the law said complete annulment of heirs. to each other as parent or child, or as ascendant or descendant –
The original concept of preterition was that this was simply due to yun lang ang direct line, lolo, apo, etc. – direct line yan, asawa
forgetfulness – nakalimutan lang ng testator yung compulsory heir, hindi.
hindi sinadya. Therefore, the law assumes that if the testator had
simply remembered that heir, he would not have made the kind of If the omitted compulsory heir is an adopted child –
institution of heirs that he did. The question is: What if the omission maliwanag, preterition yan. Because an adopted child has basically
was done intentionally? Can that still be considered as preterition? the same rights and position in the law as a legitimate child.
The Court answered in Ventura vs. Ventura, where the If the omitted child is an illegitimate child, that is also
decision was divided 3-2. The majority said: Intentional omission is preterition. Because even illegitimate children are compulsory heirs
still preterition. What happened in the case was – Gregorio Ventura in the direct line.
had 2 legitimate children by a previous marriage. Later on, Gregorio If there are no children, especially legitimate ones, but the
and his 2 children from the first marriage had a grave dispute, parents are alive, the parents, in that case, are compulsory heirs.
reaching a point where Gregorio even denied paternity to them, but
And if they are omitted, that is preterition.
the two was still able to establish their legitimate filiation. In the
meantime, Gregorio made a will which he presented for probate
during his lifetime. In that will, he did not give anything to his two
children. Therefore, omission of the two was clearly intentional. The
question was, is that preterition? The SC anwered in the affirmative,
even when it was done intentionally. The dissenters in the decision
says that is no longer preterition, but rather imperfect disinheritance.
If a compulsory heir in the direct line is mentioned in the

will, for example the testator said “I give my youngest son D, all of

The omission must be total and complete – kahit na ano, walang been made to him during the lifetime of X. A’s omission, being a
naibigay gratuitously to the omitted heir. compulsory heir in the direct line, is total and complete, thus, is a
clear case of preterition. Applying 854, what will be the effect? The
If a compulsory heir in the direct line is completely omitted institution of G is annulled. The legacy in favor of F will be
in the will of the testator, but during his lifetime he had donated respected insofar as it is not inofficious.
something to that compulsory heir, there is no preterition.
For the same reason, if the omitted heir in will stands to receive When is a legacy considered inofficious? If it exceeds the free
something by way of intestate succession, there is no preterition. portion.
For example, A is the child of the testator X. In his will he Legitime of A is P60,000, the free portion is the other
said “I give my friend G 9/10 of my P120,000 estate.” A was not P60,000. The P10,000 legacy given to F can be contained in the free
portion, there is even an excess of P50,000 – this will go also to A. G
mentioned. Is there preterition? None. Why? The law said: If the will
does not dispose of the entire estate, what do you do with the part not ends up with 0 because his institution as heir has been annulled by
disposed? You give it to the legal or intestate heirs. There is an reason of preterition.
indisposed portion of 1/10, so kahit anong mangyari may If the omission is not total and complete, there will be no
preterition, thus, you don’t apply 854
matatanggap pa si A – that prevents preterition. Of course A will be
entitled not just to 1/10, but also to the completion of his legitime,
which is ½ of the estate. In this case, you apply 855.
What is the effect of the predecease of the omitted heir?
Supposing in the same case, X said “I give A, by way of Lets assume that X has 2 children, A and B. B has a son, C.
legacy, P5,000, the rest of my estate to G as my heir.” Is there In the will of X, he said “I give my entire P120,000 estate to my son
preterition? None. Because the omission, again, is not total and A.” B is not mentioned and nothing has been given to him, therefore,
complete. There is a legacy of P5,000 – that prevents preterition. But he is preterited. However, B dies ahead of X. What is the effect?
again, also subject to A’s entitlement of his legitime. Paragraph (2) of 854 – if the omitted heir should die ahead of the
testator, the institution of heir shall be effectual, without prejudice to
the right of representation. The last phrase is subject to two varying
What is the effect of preterition? interpretations:
It will annul the institution of heirs, but legacies and First view – C, the child of B, will be entitled to the legitime.
devises will be respected insofar as they are not inofficious. The rest of the estate will go to A. So, legitimes here is ½ of
P120,000. Meaning the P30,000, which B would have received, will
Using the previous example, X dies with a will with only now go to C. The rest of the estate of P90,000 will go to A.
two provisions “I give my friend F P10,000, the rest of my estate to
my friend G.” A, X’s son was not mentioned, and no donations had

Second view – there is still preterition in this case, which testator. In the case of the purely voluntary heirs, they get
will annul the institution of heirs. Why? Applying the principle in everything because of the will, so if there is anyone who should
777 – the rights of succession is transmitted from the moment of suffer a reduction, it should be them.
death, you determine the person’s compulsory heirs as of the But again, if it is clearly a preterition, you cannot apply 855.
moment of death because it is at that moment when there is
transmission of successional rights. Thus, at the moment of X’s
death, who were his compulsory heirs? A and C. You don’t talk of B Remember the basic principle under 856 – a voluntary heir who dies
anymore, he is already dead. C is a compulsory heir in the direct line, ahead of the testator transmits nothing to his own heirs.
and his complete omission in the will gives rise to preterition, which
should result in the annulment of the institution of A. Therefore, the Let’s assume that X has no compulsory heirs, and then says
estate should be distributed P60,000 each to A and C, by intestate in his will “I give my entire estate to my friend F.” And F happens to
succession. I submit, that is the better view. have 2 children, A and B. However, F dies before X. What rights, if
any, will A and B get? Nothing, because F is purely a voluntary heir.
If there is an omission of a compulsory heir, but such
omission does not amount to preterition, you don’t apply 854, you
apply 855.
Unfortunately, 855 seems to be one of the more problematic

provisions in the Civil Code as a result of faulty codification. Why?
Because it only says – 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
will. Question: Supposing that the omitted compulsory heir is not a
child or descendant? What rule are you going to apply if not 855? It
should have been – the share of a compulsory heir omitted in a will...
– hindi lang child or descendant, must first be taken from the part of
the estate not disposed of. If that is not sufficient, so much as may be
necessary, shall be taken proportionally from the shares of the other
compulsory heirs. Why take it from the compulsory heirs only?
Supposing there are voluntary heirs together with the compulsory
heirs instituted by the testator? If there is anyone who should suffer a
reduction, it should be the voluntary heirs. Because compulsory heirs
get their legitimes from force of law, not by reason of the will by the

SUBSTITUTION of HEIRS by the testator. Thus, if the testator says “I institute A as my heir, and
I designate B as his substitute in case A should predecease me.”
Then it is understood that there will be substitution only if A
We have said that testacy is preferred over intestacy, and the predeceases. If not, and instead, A repudiates, will there be
law, as much as possible, would want to give primacy to the will of substitution? There will be none, because the testator specified that
substitution will take place only in case of predecease.
the testator.
As part of the right of disposition of the testator, the law If there are several heirs, and they are, at the same time,
allows the testator to designate substitutes. designated as reciprocally the substitutes of each other, and a
The testator may institute someone as an heir, and at the vacancy occurs, 863 provides – the substitutes shall, at the same
share as the substitution, as in the institution. Ano ibig sabihin non?
same time, is allowed to designate somebody as substitute. Para
kung may mangyaring aberya sa instituted heir, or legatee or devisee They will have the same proportional shares.
concerned, somebody will be able to take his place. Let’s assume that X has no compulsory heirs and says “I
There are various types of substitution: institute as my heirs A, B and C, but A will get ½, B and C will get
(1) Simple – one on one. Ex.: A is instituted as heir, B is ¼ each; and at the same time, I designate them reciprocally as the
designated as substitute. substitutes of each other.” Assuming that the estate is P600,000, A
(2) Brief – there are 2 or more substitutes for a single heir. gets P300,000, B and C gets P150,00 each. Assume further that B
predeceases, so substitution will now take place. The law provides
Ex.: testator institutes A as heir, and designates B and C as his
substitutes. that they will have the same share in the substitution as in the
(3) Compendious – one substitute for 2 or more heirs. institution – that simply means they will have the same proportional
(4) Reciprocal – For example: A, B and C are instituted as shares.
The proportion between A and C is “2 is to 1” (2:1).
heirs, and at the same time, shall reciprocally be the substitutes of
each other. If anyone of them predeceases, repudiates, or becomes Meaning, 2/3 of P150,000 will go to A, the 1/3 to C – P100,000 to A
incapacitated, the other two will be the substitutes. and P50,000 to C.
(5) Fideicommissary – to be discussed later on.
If the testator does not specify the causes for the substitution,
it is understood that substitution will take place in case of RIP
(repudiation, incapacity, predecease).
The testator may specify, and in such case, substitution will
only take place upon the occurrence of the particular cause specified

One important thing in substitution ay yung tinatawag na Finally, the SC held in Ramirez vs. Ramirez, that “one
Fideicommissary substitution. degree”, in fideicommissary substitutions, means relationship. That
When will this happen? When the testator institutes a first should have completely settled the whole thing.
heir, known as the fiduciary heir, and imposes upon him the There came the case of Aranas vs Aranas, which is being
absolute obligation to preserve and transmit the properties given invoked by some in saying that the ruling in Ramirez has already
to a second heir, known as the fideicommisary substitute. been abandoned. I will explain later on.
Both the first and the second heir must be living at the time of death
of the testator, and the substitution should not go beyond one degree Let’s assume that X has no compulsory heirs and says “I
from the heir originally instituted. give my entire estate to my friend A as my universal heir. But I order
him to preserve all of the properties I’m giving him, and to transmit
The basic concept and requirements for a valid these properties to his son C.” Assume that C has 2 children, D and
fideicommissary substitution are found in 863 – the substitution must E. That would be a fideicommissary substitution. A is the fiduciary
not go beyond one degree from the heir originally instituted. heir, and C is the fideicommissary substitute. The testator has
What is meant by one degree? imposed upon A the absolute obligation to preserve and to transmit
To the so-called traditionalists, one degree means blood the properties intact to a second heir. C is also a first degree relative
relationship. Thus, you can only have a fideicommissary of A, so it is valid. Upon the death of X, all his properties will go to
substitution if the fideicommissary substitute is either the parent or A – the fiduciary heir. What is the nature of the right of A over these
the child of the fiduciary heir, because only the parent or a child can properties? Basically, the rights of a mere usufractuary. Pwede
satisfy the one-degree limitation. nyang gamitin, he can gather the fruits, etc., but he cannot alienate or
Under this view, there can be several transfers of the dispose.
property, as long as all of these subsequent transferees are first
degree relatives of the first heir. For how long will A hold these properties? If the testator
For example: first transfer would be to the father of the specified the period, that should be followed.
fiduciary heir. The next transfer would be to a son of the fiduciary For example, the testator says “A will only hold the
heir. The next will be the mother. then to the daughter.
properties for 5 years, and, thereafter, shall be transmitted to C.”
Under the so-called modern view, “one degree” means If the testator did not specify as, example, he simply said “A
transfer. Under that view, there can only be one transfer. You don’t should preserve and transmit these properties to his son C.” Then the
have to be related by blood to each other, basta isang transfer ok time of transmission would depend upon A. If, after holding for only
yan. 2 years, he already wants to transmit, ok lang walang problema, it all
depends upon him.
The longest period that A can hold these properties would
only be up to the time of his death.

Supposing, using again the previous example, that C died in not have any properties other than those which came from X under
1995 and A dies in 1998. In other words, C, the fideicommissary the fideicommissary substitution. Can B, the other son of A, claim
heir, died ahead of the fiduciary heir. What will now happen? The part of those properties as his legitime from A? NO. Those properties
rights of C would now pertain to D and E, provided that A and C were given to A under a fideicommissary substitution, therefore,
were alive when X died. Because, remember, in a fideicommissary those properties should go only to C.
substitution, it is expressly required in 863 that both the first and the
second heir should be alive at the time of death of the testator. Why? Suppose that A has many unpaid debts when e died. Can his
Because in a fideicommissary substitution, both the first and the creditors run after those properties? NO. At best, all that A has over
second heir inherit directly from the testator. Never make the those properties would be the rights of a usufructuary.
mistake of thinking that the second heir inherits from the first heir – Assume that what X said was “I give all of my properties to
that is wrong. And when does the second heir inherit from the
A but , upon his death, whatever shall remain of those properties
testator? At the moment of the testator’s death. shall go to his son C.” Is that a case of fideicommissary substitution?
So even if the second heir, the fideicommissary substitute, NO. Why? There is an implied authority to dispose. There is no
dies ahead of the first heir, it is not a problem because the second obligation to preserve and transmit all of the properties.
heir actually acquires rights from the moment of death of the testator, That is what happened in the case of PCIB vs Escolin – the
and he is able to transmit them to his own heirs– that is made clear in testatrix died with a will where she said “I give all of my properties
866. to my husband, except for a certain one in Texas. Whatever will
Take note that a fideicommissary substitution cannot remain in the properties I am giving to my husband will pass to my
burden the legitime. If the first heir happens to be a compulsory relatives.” That is not a fideicommissary substitution because there is
heir, a fideicommissary substitution can only be established with no obligation to preserve. As a matter of fact, there is an implied
respect to his share of the free portion. Pag dating sa kanyang authority to dispose.
legitime, hindi pwedeng subject to a fideicommissary substitution. Supposing that what happened was that the testator gives ½
Why? Because the legitime is something which goes to a compulsory of a parcel of land to a niece, and the other half to the brothers of the
heir not because of the will, but by force of law – it is something testator. He also said “upon the death of my niece, whether before or
beyond the power of the testator to control. That is the reason why after my own death, the ½ given to her will pass to my brothers or, if
the legitime cannot be made subject to any condition, encumbrance
they are dead, to their own heirs.” Is there a fideicommissary
or substitution. substitution? There is none.
Suppose that X is the testator. A had two sons, B and C. In The facts are similar to Crisologo vs Singson – in the case
X’s will, A was instituted as a fiduciary heir and C is a the SC held: there is no fideicommissary substitution because you
fideicommissary substitute. Let’s assume that when A died, he did

can only have such in either of two ways: (1) by expressly calling it consider it as a simple substitution, and as such, if the instituted heir
by that name; (2) by imposing upon the first heir the absolute dies ahead of the testator, the substitute takes his place.
obligation to preserve and transmit the properties to a second heir.
Outside of these two situations, there is no fideicommissary Always remember the restrictions and limitations under 863
substitution. Then what kind of substitution is this? That should be – (1) one degree; and (2) the first and second heir must be living at
considered as a simple substitution. the time of death of the testator. These are incorporated by reference
in other provisions. For example, in 869 – if the testator gives the
Let’s assume that X institutes A and B as the heirs in a naked ownership of a property to one person, and he gives the
fideicommissary substitution, saying “I institute A as fiduciary heir, usufruct of the same property to several persons not simultaneously
and B as the fideicommissary substitute.” B dies in 1995. X dies but successively, it should not go beyond the limits set in 863.
1998. In other words, when X died, B was already dead. Is there a
fideicommissary substitution in this case? NO. Remember one basic Thus, if the testator says “i give my farm in Bulacan to my
requirement in 863 is that both the first and second heir must be friend F. But I give the usufrucuary of that farm to A for a period of
living at the time of the testator’s death. The question is, will A be 5 years, to A’s son B for another period of 5 years, and to C, the son
able to inherit? YES. Why? Because of 868 – the nullity of the of B, for another period of 5 years.” Here, naked ownership of that
fideicommissary substitution does not prejudice the right of the first farm has been given to F, but the usufruct has been given to several
heir to inherit. The fideicommissary clause will simply be persons successively, therefore, it cannot go beyond the limit set in
disregarded 863. How do we apply the restrictions? All of the must be living at
the time of death of the testator, and it cannot go beyond one degree
Supposing that it is the other way around. It was the first heir from the heir originally instituted. Therefore, only A and B will get
who died ahead of the testator. When X died, only B was alive. Can to enjoy the usufruct because C is already two degrees away from A.
B inherit? Strictly speaking, B cannot, because there is no provision
in favor of the second heir similar to 868. But I submit, the better The same restrictions and limitations are imposed to 867.
view is that B should be allowed to inherit. We consider this as no For example, if the testator gives his estate or a part thereof to an
longer a case of fideicommisary substitution because it was no heir, but orders him to give to several persons successively a certain
longer valid, and thus shall be considered as merely a simple income or pension – it cannot go beyond the limits set in 863.
substitution. Why? Go back to a basic principle – in testamentary So if the entire estate is given to F but was ordered to give A
succession, the principal guide is always the intention of the testator.
P10,000 monthly for 5 years, then P10,000 monthly to B for another
When the testator designated A and B as heirs in a fideicommissary 5 years, and another to C – only A and B will be entitled to the
substitution, what was his intention? That the properties will income. C is already two degrees away from A, the first beneficiary.
ultimately end up with B. The first heir only has temporary rights
over the property. Thus, the intention will best be served if we

The maximum period that the testator can order indivision one of the children of my brother Carmelo, to be chosen by Carmelo,
or prohibit alienation is 20 years. A testator is not allowed to and if Carmelo is already dead, his children will select from among
perpetually prohibit the alienation of property themselves who will take the place of Vicente.” Upon the death of
Fr. Aranas, some of the relatives questioned the validity of this
Supposing that the testator prohibits perpetually, stating “I provision on the ground that it violates 870 because according to
my entire estate to my friend F, but I prohibit him, as well as any of them, it amounts to a perpetual prohibition to alienate. The SC held:
his heirs, from ever disposing any of the properties forever.” That is there is no violation of 870. There is nothing which prevents Vicente
not a valid provision. But for the first 20 years at least, that should of disposing of the fruits or even of transferring his rights as
be respected. After 20 years, it can be disregarded. usufructuary. At any rate, Vicente is still alive and still willing to
However, if the property is given under a fideicommissary serve as administrator-usufructuary, thus, the provision should be
respected. If Vicente dies, that is the time when the properties can be
substitution, the 20 year limitation does not apply. Meaning, if X
says “I give my entire estate to A, but I order him to preserve and properly disposed of subject to the limitations under 863 on
transmit the properties to his son B.” X has already died more that 20 fideicommissary substitution. How does this relate to
years ago, but A was still holding the properties. Can A dispose of fideicommissary? Remember in the case of Ramirez, the SC
categorically said the meaning of “one degree” is relationship by
the properties? NO. Even if more than 20 years had elapsed, there is
the overriding prohibition based on fideicommissary substitution. blood. If we consider 869, this is obviously a case of successive
He is obligated to continue preserving intact all of the properties. usufructs. Between Vicente and any of the children of Carmelo, they
are not first degree relatives. Thus, if it would be allowed that the
next usufructuary will be one of Carmelo’s children, it would change
the meaning of “one degree”. That is the reason why some had raised
870 was the principal bone of contention in the case of some doubts as to the continued validity of the Ramirez ruling. But I
Aranas vs Aranas, which I earlier mentioned. In the case, there was have always maintained: one degree is still relationship. Why? Hindi
a catholic priest, Fr. Aranas. He died with a will wherein he disposed naman yan ang pinag talunan ditto e, the issue here was whether or
of his properties in favor of his relatives. However, there was a not there was a violation of 870, not the meaning of one degree.
certain group of properties which he particularly emphasised saying Moreover, I do not think my reading of Aranas tells me that the court
“with respect to these properties, they will be under the did not categorically rule that the next usufructuary can actually be
administration of my nephew Vicente. As administrator, Vicente will one of the children of Carmelo, because what the court said was that
be entitled to ½ of the fruits of the properties.” Vicente, in reality, Vicente was still alive and that only upon his death can the properties
was made a usufructuary in that sense. The will further provides be disposed of, subject to the limitations of 863. In effect, the SC
“Vicente will continue as such administrator until he dies, or until his said “Buhay pa naman. Saka na naten pag usapan kung pwede yan
refusal to go on as administrator. Upon the death of Vicente, or upon pag namatay”.
his refusal to continue as administrator, the next administrator will be

CONDITIONAL TESTAMENTARY DISPOSITIONS and dispositions are simply ignored and disregarded. Same rule as in the
TESTAMENTARY DISPOSITIONS with a TERM case of donations, because testamentary dispositions and donations
are essentially predicated upon the generosity or liberality of the
donor or testator.
A Condition is a future and uncertain fact or event. A
term or period is something which will necessarily come to pass,
although we may not exactly know when. There is a special rule when it comes to a condition of an
absolute prohibition to contract marriage:
Kinds of Condition: (1) First marriage – an absolute prohibition to contract a
(1) Potestative – if the fulfillment of the condition depends first marriage cannot be validly imposed – yung hindi pa nakatikim,
upon the sole will of a party; hindi pwedeng pag bawalan in an absolute manner. If it is a relative
(2) Casual – if the fulfillment depends upon the will of a prohibition, pwede yan. Examples:
third person or upon chance; A is instituted as heir subject to the condition that he will not
(3) Mixed – depends partly upon the will of a party, and marry until he reaches the age of 25 – pwede yan.
party upon the will of a third person and/or chance. Maria is given ¼ of the estate subject to the condition that
The testator is allowed to impose conditions. It is part of his she will not marry until reaching the age of 75 – hindi pwede yan,
right of disposition. An heir may be instituted, or a legacy be given, kahit na mayroong termino. Pag pinag antay mo ang babae
hanggang 75 bago mag asawa, para ka narin nag prohibit absolutely
subject to a condition. The condition, however, cannot be an
impossible or illegal condition. – the circumstances must be considered.
My friend F is given ½ of the estate subject to the condition
Supposing that the condition imposed is impossible, what is that he will not marry a Bicolana – pwede, relative ‘yon.
the effect? No effect, the heir will still inherit.
There is just one situation that I have always maintained that
For example, the testators says “I give my best friend F ½ of an absolute prohibition may be considered valid:
my estate subject to the condition that within 6 months from the time For example, I have a priest friend – bawal mag asawa mga
of my death, he will demonstrate his ability to fly without using any ‘yan diba? And I said “I hereby institute my friend Fr. P as heir,
mechanical devise.” F does not have to kill himself trying to fulfill subject to the condition that he will never marry.” I think that is a
that condition. He will still inherit. valid condition. Why? I am not imposing anything new burden on
him. I am simply asking him to remain where he has voluntarily
Would it make any difference if the testator says “In no case placed himself, and I assume he voluntarily undertook that burden
can F inherit unless he demonstrates his ability to fly.”? It does not. when he had himself ordained.
The rule is – impossible conditions attached to testamentary

(2) Second marriage – mga nakatikim na, gusto tumikim
ulit. General Rule: an absolute prohibition cannot be validly
imposed. Kung walang kadala dala, gusto ulit – edi sige.
Exception: only certain individuals are allowed to validly
impose the absolute prohibition. Sino? The deceased spouse, his or
her ascendants and descendants. Why are they allowed? That is very
Now, W2 has just died. Of course, there is no question that
understandable – kung ikaw ba naman may asawa, malamang ayaw
W2 is just allowed to impose the prohibition on H, being the
mong mag asawa ulit yung asawa mo pag namatay ka.
deceased spouse. If C should make a will wherein he gives a
This reminds me of a story. There was a golfer, so he had a property to X, can he also impose that condition? YES.
lot of golf sets. When he was dying, he told his wife “honey, when I What about F and I, can they also impose that condition on
am gone, I want you to marry again.” “No, I don’t want to; you are their father? YES, as descendants of the deceased.
the only love of my life” said the wife. “But I want you to be happy, What about B? NO. He is the ascendant of the surviving
and I want someone to take care of you. You can even give your new spouse, not of the deceased spouse.
husband my gold sets.” The wife replied “the problem is you are What about D and E? They cannot impose the prohibition
right handed, but he is left handed.” anymore, because it is no longer W1 who is deceased here. As a
matter of fact, nakapag asawa na nga ulit si H.
So why are they allowed? Because the law gives due
consideration to the sensibilities not only of the deceased spouse, but Assume that H and W2 did not have any children and C is
also to his or her ascendants and descendants, who may not want already dead. In other words, upon death of W2, only H is the
another person to take the place of the deceased spouse. compulsory heir. If W2 said in her will “I give my entire estate to my
husband H, but I do not want him to marry again.” However, 6
Let’s assume that H had two wives W1 and W2, one after months after, H contracted another marriage. Did he violate any
the other. The parent of W1is A, the parent of H is B, the parent of condition? NO. A mere expression of a wish or a desire does not
W2 is C. During the first marriage, they had two children, D and E. amount to the imposition of a condition.
The children during the second marriage was F and I. Of course, H
married W2 after the death of W1. Using the same facts of the immediately preceding example,
assume instead that W2 said “I give my entire estate to my husband,
subject to the condition that if he marries again, he will lose
everything.” Is there a valid imposition of a condition? YES. If H
marries again, will he lose everything? NO. Why not? Remember, he
was given the entire estate. He gets part of it as legitime – such part
cannot be subject to any condition, encumbrance or substitution.

The legitime goes to the compulsory heir not because of the will, but the condition to be fulfilled again. UNLESS the condition is of such
because of the law. In that case, H will only lose the free portion, he nature and character that once fulfilled, it cannot be done again.
retains the legitime.
For example, the condition is “to be an heir, my friend must
earn a master’s degree.” At that time, the testator knew that his
friend already has such degree. Should his friend earn another
Remember what a Disposition Captatoria is – if the testator master’s degree? YES.
gives property to an heir subject to the condition that he (the heir), in
his own will, makes a disposition either in favor of the testator or a Supposing the testator said “I give my friend F ½ of my
third person, such condition is null and void. This is because estate as heir, subject to the condition that not later than 5 years after
succession cannot be the object of a contract. You are not allowed to my death, he should take and pass the Bar Exams.” The testator
control the will of another person by imposing that kind of a knew that his friend was is already a lawyer, gusto nya ulit pakunin
condition. ng Bar – ay hindi na pwede. The condition is not possible of
fulfillment again, the Supreme Court will not allow you.
If the testator imposed a potestative condition, when should

the condition be fulfilled? Since the fulfillment depends upon the
sole will of the heir, it may fulfilled as soon as the heir learns of the
death of the testator. After all, it depends upon his sole will.
If the condition, on the other hand, is casual or mixed, when

should it be fulfilled? It may be at any time before or after the
death of the testator.
If, during the execution of the will, the testator did not know
that the casual or mixed condition he imposed has already been
fulfilled, what is the rule? Does it have to be fulfilled again? NO. It
is already deemed complied with.
If instead, at the time the testator made his will, he knew that
the casual or mixed condition he was imposing has already been
fulfilled but he imposed it anyway, it can only mean that he wants

Will the recognition of a legitimate child stated in a will Disposition made by a testator subject, not to a condition,
still be effective when said will is disallowed? It would depend upon but to a suspensive term or period. Example:
the reason for the disallowance.
“I give my friend A ½ of my properties as heir, but he will
If, for example, it was disallowed because it was proved that get it only after 5 years from the time of my death.” That is subject
it was a complete forgery and was not really executed by the to a suspensive period. What is suspended is merely the
supposed testator, then I do not think that that recognition can be demandability, not the effectivity of the insituttion.
given any effect – that is not a recognition effected by the testator
himself. But if it is an authentically signed recognition made by a Consequently, even if the instituted heir dies before the
person, you can consider the will as an authentic document instead of arrival of the suspensive term or period, he would already have
considering it as a last will and testament. There are various ways of acquired rights which he can transmit to his own heirs.
effecting recognition. During the term or period of suspension, what will be done
Assume there are two wills, the second will expressly with the property in the mean time? For example: The testator said “I
revokes the first – that implies that the second will, where the give ½ of my estate to my friend F, but only after 5 years from my
express revocation is contained, is a valid will. Therefore, there is no death.” While you are waiting for the expiration of the period, what
room for the application of dependent relative revocation. will you do with the properties? There is a conflict between 880 and
On the other hand, if there is merely an implied revocation, it also 885.
implies that you have two valid wills, the provisions of which are
According to 880 – if the institution is subject to a
inconsistent with each other – that also necessarily implies that both suspensive term or condition, the property will, in the mean time, be
wills are valid. Otherwise, if the second will is not valid, then you placed under administration.
don’t even talk of an implied revocation. However, according to 885 – if the institution is subject to a
The doctrine would more specifically apply to revocations suspensive term, the property will, in the mean time, be given to the
effected through physical acts of destruction coupled with intent to legal heirs of the testator.
revoke. Because if you are talking of revocation effected through Alin ba talaga kuya? It should be 885. As long as the
another will, that implies that the second will is a valid will. But the institution is subject to a term or period, whether suspensive or
basis of the doctrine is that the revocation is dependent upon the resolutory, the applicable provision is 885. The references to a term
validity of the second will, or the ability to make a second will. or period in 880 is erroneous. To borrow the language of Justice
J.B.L. Reyes, “these references to a term or conflict in 880 were
inserted by an unknown genius in the code commission (he was very
sarcastic about it) and thereby creating an irreconcilable conflict with
885.”

So, applying 885, since the period is suspensive, during the 5-year What is the legal consequence? How does this work?
period, the legal heirs will get to enjoy the property having the same
rights as usufructuaries. Upon arrival of the 5th year, it will be given If the institution is modal, the instituted heir is immediately
to the instituted heir. entitled to the properties given to him under the will even before he
has satisfied the charges or object specified by the testator.
Under 885 – before the legal heirs can take possession of the
properties, they are required to post a security in order to guarantee For example the testator says “I give my best friend F the
that the properties will be transmitted intact to the instituted heir entire free portion of my estate, but I order him to use 20% of the
upon arrival of the term or period. income of these properties for the purpose of putting up and
maintaining a charity clinic.” That is a modal institution. The testator
On the other hand, if the institution of the heir is subject to a specified the object of the institution, as well as the charges imposed
resolutory term or period, as for example, the testator instead said “I on the heir. So upon the testator’s death, F will immediately be
give my properties to my friend F, but he will enjoy it only for a entitled to the properties given to him even before he puts up the
period of 5 years.” Upon the death of the testator, the instituted heir clinic. He is required, however, to post a security to answer for the
will get the properties. And upon the arrival of the resolutory term or return of the property, as well as all the fruits and interests due
period, his rights are extinguished – the properties will now go the thereon, in case he does not comply with the wishes of the testator.
legal or intestate heirs of the testator.
If you are instituted under a suspensive condition, apply 880

– prior to the fulfillment of the condition, while waiting if whether or Remember the difference between a mode and a condition:
not the condition will be fulfilled, what will be done with the Mode – obligates but does not suspend. You are obligated to
properties? Under administration ‘yan. The heir is not allowed to comply with the orders of the testator but you are immediately
secure the properties even if he is able and willing to post a security. entitled to the properties, subject to the posting of a security.
Condition – suspends but does not obligate.
A good illustration of a modal institution is Rabadilla vs.

What is a Modal Institution? You have the provisions of CA. In that case, the testatrix executed a codicil to her will wherein
882. When is it considered modal? If the testator specifies the: she said “I give a parcel of land to Dr. Rabadilla, but I order him to
(1) object of the institution, give to my relatives 100 piculs of sugar annually.” – that is,
(2) charges to be satisfied by the heir; or according to the SC, a modal institution.
(3) application of the property.
The moment the testator specifies these three, that will be a

modal institution.

LEGITIMES the only compulsory heir. It does not matter that the marriage lasted
only for several hours, because it was not in articulo mortis.
The dying party should be the one who actually dies.

Rules of thumb: Example, H and W were married in articulo mortis on January 1, W
(1) Legitimates are always entitled to ½ was dying. Even the doctor said that she can die any minute.
(2) Any class surviving alone – ½ - basta walang kahati, Syempre hindi sila nag honeymoon on January 1, himamatayin nga
isang klase lang si W. In the mean time, H nursed W back to health. By Feb.14, W
(3) Spouse surviving alone – ½ - kung walang ibang was well enough in perfect health, so they finally had their
compulsory heirs. honeymoon. That evening of Feb14, H suffered a heart attack and
died. What is the legitime of W? still ½, because it was W who was
Exception to (3) – If the marriage was solemnized in
articulo mortis, and the testator died within 3 months, the law looks dying during the celebration of marriage but it was H who died
with suspicion at that marriage and reduces the legitime of the within 3 months. Kelangan yung himamatayin yung mamatay
surviving spouse to only 1/3. Why? During the marriage, the testator otherwise you don’t apply the exception.
is at the point of death. (Take note, articulo mortis is at the point of
death, not merely with a danger of dying – there is a difference) Kase
baka naman kaya mo lang pinakasalan ‘yan dahil alam mo na isang The presence of legitimate children and descendants, even
bulate nalang ang ‘di pumipirma bago mamatay ‘yan. Thus, the an adopted child, excludes the legitimate parents and other
marriage might have been impelled by economic considerations ascendants.
lalo na kung mayaman yung himamatayin, para kang nanalo sa lotto
nyan. Survivors – Legitimate parents, Illegitimate children and Spouse:
½ to the legitimate parents;
Exception to the exception – even if the marriage was ¼ to the illegitimate children;
contracted in articulo mortis and the testator died within 3 months, if only 1/8 to the spouse.
the parties has been living together as husband and wife for at least Medyo agrabyado ang spouse. Nagka anak sa labas na nga asawa
5 years, the law raises back the legitime to ½. Baka naman totoong nya, mas malaki pa minana. The reason is that something must be
may pag ibig because of their cohabitation. left for the free disposal of the testator. Between the spouse and the
illegitimate children, the law would rather give a larger share to the
For the exception to apply, it is necessary that the marriage illegitimate children because, chances are, marami yan at maghahati
is in articulo mortis. If H and W were married healthy in 7:00am, hati pa sila, isa lang naman ang surviving spouse.
and during the honeymoon at 7:00pm of the same day, H suffered a
massive heart attack and dies, the legitime of W is ½ assuming she is

Survivors – Illegitimate children and Spouse: the legitimate children, you then give to the surviving spouse – the
1/3 for both same as one legitimate child, thus, also P30,000.
Under the Family Code, C, D, E, F, G and H are supposed to
Survivors – Illegitimate parents and Spouse: get ½ of the share of a legitimate child. So theoretically, they each
¼ for both should get P15,000. However, you have P30,000 left in the estate.
What is the net consequence? They would just have to share the
Survivors – Illegitimate grandparents and Spouse:
the illegitimate grandparents are not compulsory heirs, P30,000, thus, since there are 6 of them, they each get P5,000.
½ for the surviving spouse. Survivors – One legitimate child and Spouse:
Remember that, whether under the law on legitimes or in ½ to the legitimate child
¼ to the spouse.
intestate succession, in the direct ascending line, in case the
decedent is an illegitimate person, succession stops at the Thus, there will be a free disposal of ¼.
illegitimate parents. Survivors – Illegitimate children:
Let us assume GF, the illegitimate grandfather of X, died. ½ - any class surviving alone
Can X inherit from GF? YES. An illegitimate descendant can inherit. Survivors – 2 legitimate children and Spouse:
But suppose it is GF who survived the death of X, can GF inherit ½ for legitimate children to be divided equally to them.
from X? NO, ang state ang makikinabang dyan. After determining the share of each child, give the same to
So I repeat – in illegitimate persons, succession in the direct the spouse
ascending line stops at the illegitimate parents. Quick Summary:
Under the Family Code, illegitimate children are entitled to a
legitime which is ½ of that given to the legitimates. However, it may
happen that they may end up with less than ½ - kung makulay ang
buhay ng decedent.
For example: X is survived by W – his wife, A and B – his

legitimate children, and C, D, E, F, G and H – illegitimate children.
The estate is P120,000. How much would be the legitimes? When it
comes to distribution, always give preference to the legitimate
children. You give first to the legitimate children their ½ legitime,
which is P60,000 – thus, A and B gets P30,000 each. After satisfying

Reserva Troncal Therefore, the purpose of Reserva Troncal is to return the
property back to the line from where it originally came – ibalik dun
What is Reserva Troncal? It is a reservation established by sa pamilyang pinanggalingan yang naliligaw na pagmamay ari na
law for the benefit of certain relatives within the 3rd degree who ‘yan.
belong to the line from which the property came.
Using the same illustration, the land is subject to a
The purpose is to return property, which was somehow reservation established by law in favor of the relatives of X within
strayed from one family to another, back from where it originally the 3rd degree, and who belonged to the line from which the property
came. came.
Assume: A and B are married; C and D married; E and F are G is the Reservista – the person obliged to reserve;
the children of A and B; G and H are the children of C and D. F and X is the Propositus – the descendant from whom the
G got married and had a child, X. thereafter, F died. ascendant acquired property by operation of law, which property
previously came by gratuitous title from another ascendant, brother
or sister.
A is the Origin – The person from whom that property
originally came.
The reservation is established in favor of Reservatarios – the
relatives of X within the 3rd degree, and belonging to the line from
which the property came.
A, the grandfather, donated a parcel of land to X, his
So, who are qualified reservatarios in this case? C and D,
grandson. Later on, X died intestate. His entire estate, including the
while they are 2nd degree relatives of X, are out – they obviously do
land from A, went to G, his mother. Without Reserva Troncal, who
not belong to the line from which the property came.
will get the land if G dies? C and D, and upon their death, it will go
to H and down his line. How do you count the number of degrees? You simply count
the generations for those in the direct line. For those who belong in
In other words, without Reserva Troncal, that parcel of land,
the collateral line, you ascend to the common ascendant before
which might have belonged to the family of A since time in
going to the collateral relative concerned.
memorial, would be forever lost and would now belong to another
family simply because of the accident of death – that I died intestate In this case, who is the common ascendant of X and H? Si C
ahead of G, without any legitimate issues. at si D. So counting up to C and D, then down, H is thus a 3rd degree

relative, but still out as reservatario for not belonging in the line
from which the property came.
Therefore, I submit that to be qualified as a Reservatario,
If A, the origin, is still alive, can he be a reservatario? YES. you must satisfy a dual blood relationship:
That is in fact the most ideal situation – walang duda that the (1) you must either be the origin yourself, or related by
property had “come home” if it returns to the origin. So A is blood to the origin.
qualified if still living. (2) you must be related by blood within 3 degrees to the
descendant propositus.
What about E? YES. He belongs to the line from which the
property came because he is the son of the origin, and he is a 3rd
degree relative of X.
Before there can be a reserva, there must be at least two
What about B, the grandmother of X? There are actually two transfers of property:
views, but I submit that the better view is that B is not qualified as The first transfer is from the ascendant, brother or sister, to
a reservatario. Why? The purpose of Reserva Troncal is to return the the descendant propositus. That first transfer must be by gratuitous
property back to the family from where it originally came – that’s the title – donation, succession, basta libre.
family of A. The second transfer is from the descendant propositus to
Assuming that A died. If we consider B as a qualified the ascendant reservista. This time, the transfer must be by
reservatario, then upon the death of G survived by B and E, B will operation of law – this can only be had in either of two ways: first,
be the one entitled to the property. Because in determining who if the ascendant inherits property as his legitime; second, if the
among the reservatarios will get the property, we apply the other ascendant inherits property by intestate succession. Those are the
rules of succession such as “nearer excludes the further,” “direct line only two possible ways by which an ascendant can acquire property
preferred over the collateral line.” B is a 2nd degree relative in the by operation of law from a descendant.
direct line, while E is only a 3rd degree relative in the collateral line. It is only when an ascendant has acquired property from a
The problem is if lola B, may asim pa, nag asawa ulit kay descendant by operation law that the reserva starts.
Mr.Z, at nagka anak pa, which is not an entirely impossible thing –
you can become a grandmother at the age of 42 or 45, pwede pa The first transfer from ascendant is either downwards or
manganak ‘yan. If she is considered as a qualified reservatario and horizontal. If the origin is an ascendant, pababa ‘yan. If the origin is
gets the land, and later on she dies, there is a possibility that the land a brother or sister, horizontal ‘yan.
will pass to Z and Z’s children. Has it returned to the family from The second transfer, from the descendant propositus to the
which it came? NO, the purpose of reserva troncal will not be ascendant reservista by operation of law, is always upwards.
served.

If in the previous illustration, X is still alive, is there already To illustrate, using the previous case: if X had a legitimate
a reserva? None yet. Thus, while X is the owner of the land, it is child, G will not be entitled to a legitime. The same thing may be
considered a completely free property not subject to any reservation said in the case of intestate succession – if X dies leaving a
and totally in the control of X. He may sell, alienate or otherwise legitimate child, his entire estate will go to that child by operation of
dispose of it because there is no reservation yet. law, none to G.
Assume X sells that land, after it was donated to him by his That is the reason why according to some, one of the
grandfather, to Carlo for P5M, and just 3 days after the sale X dies. requisites of a reserva troncal is that the descendant must leave no
Having died intestate, his entire estate including the P5M was legitimate issues – because there is no way that an ascendant can
inherited by his mother G. Will there be a reserva over the P5M? acquire property from him by operation of law if he has legitimate
NO. We do not allow substitution in reserva troncal. In other words, issue of his own.
unless it is the very same property which previously came from an
ascendant, brother or sister by gratuitous title, which is subsequently It is only when G acquires the property (the parcel of land)
inherited by operation of law by another ascendant, there is no from X by operation of law that the reserva starts automatically.
reserva troncal. But there may be a reserva regardless of what kind While the property is in the possession of the reservista and
of property it may be – even on money, as long as it is the very same is already reserved for A and E, what is the nature of the right of
property which previously came by gratuitous title from an such reservista? Is he just like the fiduciary heir in a
ascendant, brother or sister and which had subsequently been fideicommissary substitution, having the rights of a usufractuary?
acquired by another ascendant through operation of law. NO. The reservista is actually the owner of the property under
reserva troncal. But that ownership is subject to the threat of
Therefore, if X is still alive and still has that land, it is within extinction subject to a resolutory condition. What is the resolutory
his power to determine whether or not there will be a reserva troncal condition? If there are, at the moment of death of the reservista,
later on. As said by some civilists: the descendant is the arbiter of surviving reservatarios.
the reserva. He has the power of life and death over the reserva. If
he does not want the reserva to arise later on, he can simply dispose If, at the time of death of G, there are surviving
the property – that will effectively prevent the reserva because it will reservatarios, then the rights of G are extinguished and transferred to
no longer be the very same property. If he gets married and he has a the reservatarios.
legitimate issue, for example he had a child; reserva troncal is no
Can G, the reservista, sell the reserved property during his
longer possible. Why? Because if the descendant has a legitimate lifetime? YES. But that sale is subject to the same resolutory
issue, there is no way that his ascendant can acquire property from condition.
him by operation of law.

What about the reservatarios? During the lifetime of G, can actually get the property once the reservista dies, we apply the other
A and E also sell the property? YES. But that sale is subject to a rules of succession such as “rule of preference between lines” or
suspensive condition. “rule of proximity” or even “representation” provided that the
representative is himself a relative within 3 degrees counted from the
So, if in one sale G the reservista sold the property reserved descendant propositus.
to Lito, and on the other hand, the reservatarios sold the same
property to Tolits, who will have better rights as between Lito and
Tolits? The answer would be: “it depends” kung sino mas magaling
mag dasal. Why? In the case of Lito, he will have to pray hard that G Diagram for the next illustration:
will outlive all the reservatarios. In the case of Tolits, he will pray
that any of the reservatarios will outlive the reservista.
Assuming the previous illustrative facts, will there be any

difference if the land in the estate of X originally belonged to D? For
example, it turns out A and D were childhood sweethearts before.
Long time ago, D actually donated the land to A, never imagining
that someday their children would marry each other, and that they
would have a common grandchild, and the facts of the original
illustration then ensued. The question is, will there be a reserva
troncal? YES. Will there be a change in the reservatarios? NO. The
same reservatarios – A and E. Why? In reserva troncal, we do not
concern ourselves with the remote source of the property. Our
inquiry only goes back to the origin – wala na tayo pakialam kung Let us assume that B married twice. First marriage was with
saan nanggaling yan before the origin, thus, no change in the A, and they had three children, the second marriage is with C also
qualified reservatarios. with three children. The parent of A is D, the parent of B is E, and
the parent of C is F. B is dead. E donated a parcel of land to J. Later
on, J died intestate, and his entire estate, including that land from E,
was inherited by his mother C. Is there reserva troncal? YES. There
In reserva troncal, the reservation is established by law in had been two transfers – the first is from an ascendant to a
favor of a class. Who are included in that class? All relatives of the descendant through gratuitous title, and the second is from the
descendant propositus within 3 degrees and who belong to the line descendant upwards to the ascendant by operation of law, thus, the
from which the property came. land is covered by reserva troncal.
In determining who among the members of that class will

If C dies, and E is still alive, the property will go to E. Why? be inheriting in their own right. As such, the division will be per
Although J has many relatives within 3 degrees, E will exclude all of capita, not per stirpes, but still applying the rule of double share for
them. Rule of preference between lines – direct ascending line is ful-blood collaterals. The latter rule applies not only to brothers and
preferred over the collateral line. sisters, but also to nephews and nieces – hanggang dun lang, grand
nephews and nieces – hindi na yan. Thus, S, T and U will get twice
Let’s assume that E is dead. If C dies, who gets the property? as much as M, N, O, P, Q and R – 1/12 for each of the half-blood
All the relatives of J within 3 degrees and who belong to the line nephews and 2/12 for each of the pure-blood nephews and nieces.
from which the property came are considered qualified reservatarios
– G, H, I, K, and L are 2nd degree relatives. Same thing with M, N, If M is dead but is survived by V, and U is dead survived by
O, P, Q, R, S, T, and U because they are 3rd degree relatives. Do they W, V and W will no longer participate. They cannot represent M and
all belong to the line from which the property came? YES. G, H, I, K U. Why? There is no right of representation in favor of grand
and L are all descendants of E – their common grandparent. Thus, nephews and grand nieces. Moreover, the reservation is established
they will divide the property. In dividing the property, distribution is only in favor of the relatives of J within 3 degrees – V and W are
not equal because among the reservatarios, the other rules of already 4th degree relatives, thus, cannot participate anymore.
succession will apply. What specific rule will apply here? The rule of
double share for full-blood collaterals – full-blood brothers and
sisters are entitled to twice as much as half-blood siblings. Thus, Let’s go back to the previous illustration where X is the
each of the half-blood siblings of J will get 1/7, while each of the descendant propositus. Let us further assume that when X died
full-blood siblings will get 2/7. intestate, his entire estate was worth P10M comprising of the land
If G and L is dead, M and U can represent them. Even in donated by A which was worth P4M and other properties from other
reserva troncal, representation is allowed, as long as the sources worth P6M. Thus, the entire P10M is inherited by G. Will
representative is himself a relative within 3 degrees of the there be reserva troncal? YES. Will the reserva cover the entire
descendant propositus. Thus, the 1/7 of G will go to M and the 2/7 of estate? NO, the other properties did not come from an ascendant,
L will go to U – they inherit by representation. By the way, this is the brother or sister by gratuitous title, and only the land will be covered
only situation where there is representation in the collateral line. by the reserva. Will the reserva cover the entire land? YES. Why? X
Generally, there is no representation in the collateral line and this is died intestate, meaning the entire estate passed by operation of law to
the only exception – when nephews and nieces survive with at least G. Therefore, every single item within that estate which previously
one uncle or aunt. M and U are nephews who survived with their came through gratuitous title from an ascendant, brother or sister will
uncles and aunts H, I and K. be completely covered by the reserva. You don’t apply the reserva
minima and maxima if the descendant propositus died intestate. You
If all of the siblings of J are dead, the only survivors would only apply either reserva maxima or reserva minima if the
be the nephews and nieces. This time, the nephews and nieces will descendant propositus died with a will.

Let us assume that X died with a will stating “I give my (3) Loss of the property without the fault of the reservista.
entire estate to my mother G.” Under the theory of Reserva Maxima (4) Waiver by all of the reservatarios – if for example there
– as much of the reservable property as can be contained in the are 10 qualified reservatarios and 9 of them had already waived, but
legitime. In other words, hangga’t kakasya yang land sa legitime, there remains one who does not want to waive, the reserva troncal
isaksak mo sa legitime. So the legitime of G is ½ of P10M or P5M continues in its entirety.
and the land which is P4M can be contained in the legitime. So, (5) Prescription
under the theory of reserva maxima, the entire land is reservable. (6) If the reserved property is somehow registered as a free
The Reserva Minima takes into account the fact that all of property as when the reserva was not annotated in the title,
these properties passed to G partly by will, and partly by especially so when it has already been acquired by innocent
operation of law. So, ½ of the land passed by will and the other half purchasers for value who had relied on the certificate of title.
passed by operation of law. Therefore, under the theory of Reserva
Minima, only ½ of the land is subject to the reserva.
Which is the better view? On one hand, Maxima would

better serve the purpose of Reserva Troncal because the entire
property can return to the blood-line from which it came. But
Minima, on the other hand, is more fair and reasonable as it does not
ignore the fact that the properties had been transmitted partly by will
and partly by operation of law.
Just remember, these two theories are relevant only when

the descendant propositus dies with a will. Otherwise, or if he dies
intestate, forget about maxima and minima.
How is the Reserva extinguished?
(1) Death of the reservista – the rights of the reservista is

terminated and passed to the reservatarios.
(2) Death of all of the reservatarios – kailangan lahat
mamatay, pag may isang matira sakanya mapupunta yung reserved
property.

Collation Thus, we concern ourselves with only the first two meaning
of collation – in the sense of addition, and in the sense of charging or
imputation.
Recall the provisions of 905 – there can be no waiver of In collation as a process of addition, the purpose of adding
future legitime, and there can be no valid compromise with respect the value of all gratuitous dispositions made by the decedent during
to future legitime. Any such waiver or compromise is considered to his lifetime to his estate is to determine the total hereditary estate
be void, but the compulsory heir concerned is obliged to bring to which will, in turn, be the basis for determining the legitimes of the
collation whatever he may have received by virtue of the waiver or compulsory heirs.
compromise.
The Civil Code gives us specific rules on collation. I refer to
This brings us to the concept of Collation – ano ba ito? 1061 to 1077.
When a person dies, whether with a will or intestate, there is always
a process of collation. There are actually three meanings of the term, Practically all gratuitous dispositions are subject to collation.
as used in the Civil Code. There is only one situation where certain gratuitous dispositions
made are completely not subject to collation, I refer to the provisions
First meaning: collation as Addition – meaning, the value of of 1067 – ‘yan lang. In the other provisions within 1061 to 1077, if
all properties which were gratuitously disposed of by the the law says “shall not be subject to collation” it only means that it
descedent during his lifetime are added to the estate. In other words, will not be charged against the legitime, but it will still be collated in
it is the mathematical process of adding the value of such properties the sense of addition. It is only in 1067 that the law means exactly
to the estate. and absolutely not subject to collation.
Second meaning: collation as Charging or Imputation – all So what are these items under 1067?
gratuitous dispositions made in favor of compulsory heirs are (1) Support;
generally charged against their legitimes and considered as an (2) Education;
advance of the legitime. Gratuitous dispositions made in favor of (3) Medical attendance, even in the case of extra-ordinary
third persons who are not compulsory heirs are, on the other hand, illness;
charged against the free portion. (4) Apprenticeship;
Third meaning: collation as the Actual Restoration of the (5) Customary gifts; and
property. But commentators and civilists are practically unanimous (6) Ordinary equipment
in saying that this is not really collation. This happens only when a This means, if you are confined in a hospital and got
donation is held to be totally inofficious, the property itself would admitted in ICU, and your father spent P3M for the hospitalization,
then had to be returned.

the P3M will not be considered in the distribution of the estate when ‘yan, milyon ang ibibigay dyan. Election expenses are charged
your father dies. It will not be added to the value of the estate, and against the legitime of the child concerned. Same thing with fines
will completely be ignored. and indemnities paid by the parents for their children.
Lahat ng nakain mo, kahit malakas ka pa kumain simula Donations given to a daugther-in-law or a son-in-law are
nung maliit ka, support ‘yan – not covered by collation, you don’t charged against the free portion. This is because an in-law,
have to worry. regardless of the fact that you are the favorite in-law, is not
considered an heir and not entitled to any legitime.
Customary gifts like yearly birthday gifts and pamasko –
those will not be subject to collation. Donations given to grandchildren, you remember the
special rule – Assume that X has two children A and B, then B had a
Pag dating sa Education, we distinguish between tertiary or son C. X donated a parcel of land to his son B, and also donated to
college and the education before that. 1067 covers only up to high- his grandson C a car. X dies. The value of the land will have to be
school level, this will completely not be subject to collation. Pero collated together with the value of the car. When the time to charge
yung na gastos sa’yo pagdating mo ng college, that is covered not by or impute the donations has come, the value of the land will be
1067 but 1068 – expenses incurred by the parents in giving their imputed or charged against the legitime of B. The value of the car
children professional, vocational or other career. So even then, will be charged against the free portion. This is because C will not
you don’t have to worry. In other words, the value or the amount inherit – buhay pa yung tatay nya.
spent by your parents in sending you to college will be added to the Let us assume, however, that B sold the land to Z. After
estate, but when it comes to charging or imputation, that is not selling the land, he spent the entire proceeds thereof in just one
considered as an advance on your legitime. That is chargeable whole night at the casino – ubos yung P10M, and then he dies. C will
against the free portion. Kasama dyan yung incidental expenses, not now be inheriting from X. Under this situation, even if C did not
just the tuition. Like yung mga nagastos sa pag bili ng mga libro for benefit from that land, he is obliged to bring into collation not only
example, is generally not chargeable to the legitime but rather the value of the car, but also the value of the land – that is the rule
against the free portion, UNLESS otherwise provided by the parent, for grandchildren. In this regard, you have the provisions of 1064.
in which case, whatever the parent would have spent if the child
simply stayed at home will be taken into account; or UNLESS there Remember also the special rule for wedding gifts consisting
is a clear impairment of the legitime of other compulsory heirs. of jewelry, clothing and outfits under 1070 – to the extent that they
do not exceed 10% of the free portion, these wedding gifts consisting
of jewelry, clothing and outfit will be charged against the free
May mga magulang na mahilig magpa kandidato ng portion. Any excess over the 10% limitation will be charged against
kanilang mga anak kahit wala naman kapana-panalo. Gagastahan the legitime of the child concerned.

Take note that if the testator had donated a property to a value of the property at the time of the donation. Any subsequent
compulsory heir, and in the deed of donation he said “This donation increase or diminution will be for the account of the donee.
is irrevocable.” That donation is still subject to collation. This was
made clear by the SC in Deroma vs CA. So we add P110,000 to the net of P500,000, arriving at a
total hereditary estate of P610,000.
Next step: after determining the total hereditary estate, you

Let’s assume that X has four legitimate children: A, B, C and are now ready to determine the legitimes of the compusolry heirs
D. W is the wife of D, and E is the son of B. During the lifetime of based on the total hereditary estate which was arrived at only after
X, he made the following dispositions and incurred the following collation. Thus, the legitime of the legitimate children – ½ of
expenses: P610,000. A, B, C and D will each be entitled to P76,250.
(1) spent P300,000 for the hospitalization of A; Since the legitime is half, the other P305,000 is our free
(2) spent P30,000 for the campaign of B in running for portion.
public office;
(3) gave to grandson E a ring worth P10,000; Next step: collation again. This time, in the sense of
(4) gave to daughter-in-law W a bracelet worth P20,000; imputation or charging. We will go through one by one the items
(5) gave D jewelry worth P40,000 on account of wedding; which we had earlier collated.
(6) spent P10,000 for C’s college education. Election expense for B – charge to legitime, thus deduct
P30,000 from the P76,250. This is considered an advance to his
X died with a will wherein he said “I institute my four legitime.
children as my heirs.” His gross estate is P1M, and had debts P10,000 worth ring of E – B is still alive, thus, the value of
amounting to P500,000. So what should be done in distribution? the ring will be charged against the free portion.
The bracelet given to W – basta in-law, considered a
First step: deduct the debts and other charges from the donation to a stranger. Charge again against the free portion.
gross estate. You are then left with a net estate of P500,000. Wedding gift of jewelry to D – under 1070, up to 10% of the
Next is collation in the sense of addition – you add the free portion is charged against the free portion, the rest will be
value of all gratuitous dispositions. Applying 1067, we completely against the legitime of the heir concerned. The 10% is P30,500 and
ignore item (1). Thus we only collate (2) to (6), the total amount of the value of the gift is P40,000 resulting to an excess of P9,500. That
which is P110,000. excess will be charged against D’s legitime.
C’s college education – we apply 1068, meaning we
Supposing that the bracelet given to W, although worth generally charge it to the free portion, unless otherwise provided by
P20,000 only before, is now worth P200,000, what amount should be the parent or unless impairment of legitimes.
collated? Remember, when it comes to collation, it is always the

After all of these deductions, we are left with P234,500 in Let’s assume that X has two legitimate children A and B,
the free portion. What do we do with this? Divide by four – giving us one illegitimate child C, and a surviving spouse W. Further assume
P58,625, which will be added to each of their legitime. The total that sometime in 1975, A, the eldest, demanded from his father his
amount to be received by all of them is P500,000, which must inheritance. X relented and agreed, giving A a parcel of land at
always be equal to the Net Estate. which time was worth P20,000 evidenced by a compromise
agreement between the two of them wherein A waived his right to
Summary: any future inheritance from X. When X died subsequently, he left a
will where he said “I institute as my universal heirs my children B
and C.” W and A were not mentioned. Before proceeding, is there
preterition? NO, because A already had received something and W is
not a compulsory heir in the direct line. At his death, X’s gross estate
was P200,000 and debts amounting to P100,000, thus, having a net
estate of P100,000. We then collate the value of the land donated in
1975. If that land is already worth P2M, we still collate only
P20,000. Therefore, our total hereditary estate is P120,000. Having
determined the THE, we now determine the legitimes. Kasama parin
si A sa pag determine ng legitimes becaue that waiver or
compromise is not valid. A and B is therefore entitled to P30,000
each as a legitimate child by way of legitime. The surviving spouse
is entitled to the same share as one legitime child, thus, also P30,000.
Being illegitimate, C is entitled to ½ of the share of a legitimate child
or P15,000. The remaining P15,000 will go to whom? That will go to
B and C because they are the instituted heirs. Thus, they both get an
additional P7,500.
We also collate, in the sense of charging or imputation, the

value of P20,000 which was earlier donated to A. Therefore, while A
is entitled to a legitime of P30,000, what will actually be given to
him is only P10,000, kasi matagal na nya natanggap yung P20,000 –
yan ang ibig sabihin ng charging or imputation.

Summary: Second, they come ahead in time than the legacies and devises –
priority in time is priority in right. Thus, only after you have
charged the donations inter vivos against the free portion, should you
attempt to satisfy the legacies and devises in the will.
As among the legacies and devises, what is the order of

preference in satisfying them? This is very simple: You first satisfy
those which are expressly declared preferencial by the testator.
Second, all others pro rata – yun lang.
How do we apply these rules? Example: Let us assume that

X has three legitimate children A, B and C, and W as the surviving
spouse. During his lifetime, he made the following donations inter
vivos:
1975 – a parcel of land worth P20,000 to his son A;
1988 – another parcel of land worth P70,000 to his friend F;
X made a will wherein he instituted A, B, C and W as his heirs. In

In distributing the estate, the principal provision or rule to
the same will, he made the following legacies and devises:
take into account is 911. Whatever happens, the legitimes of the
House and lot worth P70,000 to friend G;
compulsory heirs will always have to be protected.
Car worth P30,000 to friend H;
If, in the will of the decedent, there are legacies and devises, P60,000 Cash to friend I.
and during his lifetime he also made various donations inter vivos, Total legacies and devises is P160,000.
and the free portion is not sufficient to completely cover the value of
When X died, he had a gross estate of P400,000 and debts
all legitimes and the legacies and devises, what is the rule?
amounting to P40,000, thus, net estate is P360,000.
Preference is given to the donations inter vivos. Before you even
attempt to charge the legacies and devises against the free portion to Again, next step is collation as addition. Do not ever make
satisfy them, unahin mo muna i-charge sa free porions yung the mistake of collating legacies and devises, nasa will ‘yan e, hindi
donations inter vivos? Why are they preferred as against legacies and pa naibigay ‘yan. We collate only the two donations, giving us a
devises? First, because donations inter vivos are basically total hereditary estate of P450,000.
irrevocable. You cannot allow the testator to, in effect, revoke his
earlier donations by simply giving so many legacies and devises.

For the legitimes, half of the THE is P225,000, divded by This illustration brings us to 912 – if the devise consists of
three, giving us P75,000 for each of the legitimate children and real property which cannot be conveniently divided, it shall go to the
P75,000 also for W having the same as one legitimate child. Thus, devisee if the reduction does not absorb ½ of its value. In a contrary
total legitimes is P300,000. case, it will go to the compulsory heirs, with the corresponding
obligation to reimburse each other.
If we deduct the total legitimes from the THE, we will be left
with a free portion of P150,000. Having the reduction of exactly ½, the question now is who
will get the house and lot? Will it go the heirs of X with the
We now go through collation as imputation. Against what obligation to pay P35,000 to G, or vice-versa? If we apply 912
part of the estate do we charge the donations given to A? To the literally, it would seem that the property should go to the heirs. 912
legitime, thus, while his legitime is P75,000, he will now get only says that it will go to the devisee if the reduction does not absorb ½
P55,000. The next is the P70,000 land donated to F – this is of its value. Thus, if it is exactly ½ literally, dapat mapunta sa heirs.
chargeable against the free portion, leaving it with a balance of only But I think the better view expressed by Justice Paras and Tolentino
P80,000. is that: if the reduction is exactly ½, it should go to the devisee.
Note what I said earlier – before we even attempt to satisfy Why? We go by the intention of the testator, and such intention is
the legacies and devises, inuuna natin i-charge against the free obviously that the house and lot to go to the devisee. As much as
portion the donations inter vivos. This is what I meant when I said possible, we should respect that intention.
earlier that donations inter vivos are preferred over legacies and What about the car? It is personal property, not real, but
devises. then again, it is also a property which cannot be conveniently
The P80,000 remainder will be given to the legacies and divided. What rule would apply? Although 912 mentions only
devises. Obviously they cannot all be fully satisfied, and since the devises of real property, I do not see any reason why the same rule
should not also be applied to legacy of personal property which
testator did not express any of them to be preferred, they all be
reduced proportionately. If the testator had said that the legacy in cannot be conveniently divided. Otherwise, what rule are you going
favor of I is a preferred legacy, then you give P60,000 to I and the to apply? Thus, 912 applies will equal force to a legacy of personal
remaining P20,000 ang pag hahatian ni G and H. In the absence of property which cannot also be conveniently divided.
any express preference, all of them will be reduced proportionately.
As a matter of fact, it is very clear that reduction is exactly ½
because from a needed P160,000, only P80,000 is available. So, the
P70,000 is reduced to P35,000 and so on.

DISINHERITANCE daughter because she is living a dishonorable and disgraceful life. If,
however, she should mend her ways, leave that man, and return to
our home and serve me well, then this disinheritance shall be
You can only deprive a compulsory heir of his legitime revoked.” Is there a valid disinheritance? YES, because there, what is
through a valid disinheritance, and you can only have a valid conditional is not the disinheritance itself, but the revocation.
disinheritance through a valid will. A disinheritance cannot be partial. Why? Because
Suppose a father gets very angry at his son because of the disinheritance is based on the offense committed against the
latter doing something terribly wrong, he said “You will not inherit testator. The testator is offended or he is not, hindi pwede sabihin na
anything from me. I am disinheriting you.” – wala ‘yon. A “half-offended” lang. A father cannot say “I disinherit my son
because he maltreated me, and I deprive him with respect to ½ of his
disinheritance can be made only through a valid will.
legitime.” – that is not a valid disinheritance, the son will still be able
The cause for the disinheritance should be stated in the will to inherit.
and must be one recognized by law. For example, a father said in his
will “I disinherit my youngest son because he looks more like our By the way, who has the burden of proof if the disinherited
neighbor than me” – that is not a valid disinheritance. heir questions the validity and basis of the disinheritance? It is on the
other heirs who wants to uphold the disinheritance.
The disinheritance must be based on an existing cause, it
must already be committed. It cannot be made conditional or upon
the happening of an event. You find the Grounds for a valid Disinheritance in 919 for
children or descendants, 920 for parents or ascendants, and 921 for a
For example, the father says “If my daughter should live a
dishonorable and disgraceful life, she will be disinherited.” E wala spouse. Let us go over some of these grounds, anyway many of them
pa naman ginawang anomalya yung kanyang anak. But three months are common grounds.
later, the daughter eloped with the family driver who is a married One of the grounds for children or descendant – if the child
man, and they started cohabiting. Is there a valid disinheritance? NO. or descendant has been found guilty of an attempt on the life of the
When the disinheritance was made, there was no existing cause. Of testator, his spouse, ascendants or descendants.
course, it must also be a true cause. “Found guilty” implies that there is a conviction by final
While a disinheritance cannot be made conditionally, the judgement. Mere attemept is sufficient. If you try to kill your
brother and you are found guilty therefor, your father can disinherit
revocation of the disinheritance may be made conditional. For
example, the daughter has eloped with a married man and is you because you are guilty of an attempt against the life of a
cohabiting with him. So the father says “I hereby disinherit my descendant of the testator.

Supposing you are extended an absolute presidential If a child or descendant, without justifiable cause, refuses to
pardon, can you still be disinherited? YES. The absolute pardon support the parent or ascendant who disinherits him – if you look at
does not erase the offense which you have already committed this provision, at first glance, it appears that this ground is useless.
against the testator. Why? What is the basis of support? Necessity as well as the
corresponding ability on the part of the person who is obliged. In
You attempted to kill your father, but you were not other words, a parent can demand support from a child only if the
prosecuted because your family wanted to avoid a scandal. Can you parent does not have money to support himself, and the child, on the
be validly disinherited? YES. Not because of conviction, but for other hand, has the means to provide support. Otherwise, if the
maltreatment which can be by means of either words or deeds. parents have money, he would not even have the right to demand
Minura mura mo yung tatay mo sa harap ng maraming tao – that is support from the child because the basis of support is necessity.
maltreatment, you can be validly disinherited.
Example, your father does not have any money, thus,
demanded support from you. Without justifiable cause, you refuse to
Another ground – if a child or descendant accuses the support him, so he disinherits you. Anong nawala sa’yo? Wala
testator of a crime for which the law prescribes imprisonment of six naman siya pera e, ikaw yung mayroon, so may nawala ba? Meron
years or more, and the accusation has been found to be groundless din, for all you know, maybe the following week he wins P200M in
If you testify in a criminal case against your father, and your the lotto, tapos ka, you are validly disinherited. Therefore, it is not an
father is subsequently acquitted by the court because of reasonable entirely useless ground. There is the risk of losing inheritance to
doubt, can you be validly disinherited? I do not think so because subsequently acquired properties.
acquittal based on reasonable doubt means that the accusation is not
entirely groundless.
Leading a dishonorable or disgraceful life – in this
connection, remember that this ground requires the element of
Another is – when a child or descendant is convicted of habituallity or continuity. A child or descendant cannot be
adultery or concubinage with the spouse of the testator – Let’s say disinherited with this ground upon the testimony of a single act.
you are 26 years old. Your father, who is a widower, marries a sweet For example a father comes home unexpectedly early one
young thing of 21, at tinalo mo yung step mother mo and you are afternoon, and, to his shock, he caught his favorite daughter having
convicted. That case is covered in the provision – it does not the time of her life in her own bed with the family driver who is a
necessarily involve incest. married man. There is no basis for disinheriting that daughter – it is
only a single act. Ibang usapan na if the daughter actually cohabits

with that married man – that is already leading a dishonorable or unless there has been a reconciliation between the two of them.
disgraceful lfe. “You cannot be more popish than the pope.”
Mere conviction of an offense which carries with it civil If, however, after your father tried to kill your mother, he
interdiction – the offense need not be committed against the testator was prosecuted and convicted by final judgement, I submit that
or any close family member, it may have been done against a total despite the reconciliation between them, you can still disinherit your
stranger. What is the reason for this? Because civil interdiction is father. Not on the basis of (8) of 920, but on (2) – on the basis that
merely an accessory penalty attached only to afflictive penalties. the parent or ascendant had been convicted of an attempt against the
When you are convicted of an offense which carries with it civil life of a testator, his spouse, ascendants or descendants UNLESS,
interdiction, that means you must have done something terribly there has been a reconciliation between your father and yourself.
wrong, and having committed a very serious offense, there is deemed Because then, the general rules on reconciliation under 922 would
to be a very wide moral chasm which separates you from your apply – reconciliation will deprive the offended party of the right to
parent. disinherit, and will also render ineffective any disinheritance
previously made. When is there reconciliation? Reconciliation is
much more than mere pardon. A lot of people on their death beds
When a child or descendant, by fraud, violence, intimidation would generally extend an absolute general pardon to all the people
or undue influence, causes the testator to make a will or to change who may have offended them which is quite natural for persons who
one already made. are at the brink of death – that is not the reconciliation contemplated
of. Reconciliation means that the pardon is extended to the offender
and the offender accepts the pardon, and there is a restoration of the
former relations between the parties – that is reconciliation.
The first one in the grounds for parents and ascendants is –
when the parents have abandoned their children or induced their
daughters to lead a corrupt or immoral life or had attempted against
their virtue Remember one of the grounds of disinheriting a spouse is if
With respect to abandonment, it applies to both male and a spouse has given cause for legal separation – this used to be under
female members of the family. The second part, inducement to lead the Civil Code, but now under 55 of the Family Code, sangkatutak
a corrupt or immoral life or attempt against their virtue, applies only ang grounds for legal separation. Even mere alcoholism, repeated
to female members of the family – daughters and granddaughters. physical violence or even grossly abusive conduct are grounds for
disinheritance. Mahilig ka makipag inuman sa kabarkada mo sa
Mere attempt of one parent against the life of the other – bahay ninyo, at pag lasing ka na tatawagin mo asawa mo “Hoy
gives the children and descendants the right to disinherit the parent. tabachoy, lagyan mo nga ng pulutan dito” pag paulit-ulit ‘yan
If your father tried to kill your mother, you can disinherit your father, grossly abusive conduct na ‘yan. You can be disinherited for giving

cause for legal separation. Just have a run down on the grounds for this case, D will not just get his legitime. He will share together with
legal separation, as there is nothing complicated about them A, B and C the P120,000 by way of intestacy, thus, each of them gets
P30,000.
I call your attention to 923 – if a person is disinherited, but
he happens to have children and descendants, his children and Let us assume this time that the testator said “I disinherit my
descendants will be able to get at least the legitime. What is the son D.” without specificying the cause, and “I give my entire estate
reason for this? The law is just being fair and equitable and even to my children A, B and C.” so there is no preterition. This is where
compassionate to the children of a validly disinherited heir. If your D would be limited to his legitime. Legitime for the children is ½ of
grandfather validly disinherits your father, it means your father must the estate, which is P60,000, thus, each of them is entitled to a
have done something terribly wrong, mabibigat yang grounds for legitime of P15,000. The other P60,000 in the free portion, under the
disinheriting a child or descendant especially in a Filipino or Asian testament of X, shall go to A, B and C only, thus, each of the three
culture. It also means you are very unfortunate that you have that will get a total of P35,000, while D only gets P15,000.
kind of father. If the law would not allow you to inherit, not even the
legitime, that’s double jeopardy – sobra sobrang parusa ‘yun. As it Supposing that D is validly disinherited – he does not get
is, you are already unfortunate for having that kind of a parent, so the anything. But if he has two children E and F, the legitime of P15,000
law allows you to get the legitime that your father would have will go to them under 923.
inherited.
If a compulsory heir is invalidly disinherited, what does he

inherit? The usual answer is, he still gets his legitime. An
imperfectly disinherited heir is entitled at least to his legitime. But
there may be situations where he will get something more than his
legitime. When would that be? If the testator did not validly dispose
of his free portion. In that case, the imperfectly disinherited heir will
get not just his legitime, but also his entire intestate share.
Let’s assume that X has four legitimate children A, B, C and

D. He says in his will “I disinherit my son D.” without saying why –
that is imperfect. Then he says “I institute as my sole and universal
heirs my children A and B.” C is not mention, he is obviously
preterited. He leaves an estate of P120,000, how do we distribute? In

LEGACIES and DEVISES Supposing that I give you, by way of devise, the building
located at 1710 Donada St., Pasay, which I knew was owned by
Mr.ODC – alam kong s’ya at hindi ako ang may ari. Is there a valid
Can the testator give, by way of a valid legacy or devise, devise? YES. There is an implicit order for my estate to acquire it
something which he does not own? YES, as long as the testator from Mr. ODC so that it can be given to you. But what if Mr. ODC
does not want to sell it? You will just be given the value of the
knows that he is not the owner. If the testator gives out, by way of
legacy or devise, something which he erroneously thought he property.
owned, the legacy or devise is void, UNLESS he subsequently I say in my will “although I am the owner of only ½ of the
acquires the thing by whatever title. building at 1710 Donada St., Pasay, the other half belonging to Mr.
ODC, I give the entire property to my friend Eugene.” Is there a
If I said “By way of legacy, I give you my building at 1710
Donada Street, Pasay.” Akala ko saakin, hindi pala. Is there a valid valid devise? YES. Does the devise cover the entire property? YES.
devise? NO. But two years after the execution of the will, I bought With respect to the ½ already belonging to me, there is no problem.
that building from the owner, and I remained the owner thereof until To the half belonging to Mr. ODC, there is an implied order to
my death. Is there now a valid devise? YES. My subsequent acquire that ½ so that it can also be given to you.
acquisistion has cured the defect. Supposing that before my death, the co-ownership is
terminated and, in the agreement I entered with Mr. ODC, we agreed
that the entire property will belong to him and I was paid the value of
The testator cannot also give something which already my ½ interest, thus, when I died, the entire property belonged to Mr.
belongs to the legatee or devisee. For example “I give X, by way of ODC. Is there still a valid devise in favor of Eugene? YES. There is
legacy, the car with the plate PUO-117” when I made my will, he still a valid devise with respect to the ½ belonging to Mr. ODC. With
was already the owner of that car – there is no valid legacy. Would it respect to the ½ I used to own, there is no longer a valid devise
make any difference if after I executed my will, X sold the car to a because there has been a revocation by alienation when I agreed
third person? NO. The legacy remains void even if the legatee or that the entire property will be given to Mr. ODC.
devisee subsequently alienates the thing, UNLESS the legatee or
devisee alienates the thing in favor of the testator himself. The By way of devise, I give you the building in 1710 Donada
subsequent acquisition of the testator should be considered as a clear St., Pasay, which I knew is currently owned by Mr. ODC. You did
indication of his intention to validate his legacy or devise. not know that I had that provision in my will and you bought that
property from Mr. ODC two years after the execution of my will, so
after my death, you were already the owner of the building. Would
you have any rights under such circumstances? YES. Since you
bought the property, you are entitled to reimbursement of the price

you paid for your purchase. If, however, Mr. ODC simply donated There must have been an actual case filed, hindi pwedeng
that property to you, you have no right to claim any reimbursement demand letter lang.
because your acquisition would have been by gratuitous title.
D owes me P1M and I say in my will “I hereby give D, by
way of legacy, the condonation of his debt of P1M.” That is a legacy
of condonation. If I bring an action against him, that is also rendered
If the property given is pledged or mortgaged to secure a ineffective.
recoverable debt, regardless of whether the pledge or mortgage was
constituted before or after the execution of the will, the estate is
obliged to pay the debt and to free the property from that pledge or
mortgage – Although 934 mentions only pledge or mortgage, the If the testator is a debtor, and he gives a legacy to his
same rule applies in the case of antichresis where the security given creditor, the latter will be entitled to collect not just his credit but
for a loan is real properties delivered to the creditor, and the creditor also the legacy.
is allowed to gather the fruits with the obligation to apply the fruits I owe you P40,000. In my will, I said “I am giving you, by
to the payment of principal and interest, pursuant to a written way of legacy, P30,000.” How much can you collect all in all from
agreement. the estate? P70,000 – you can collect your credit of P40,000, and the
Any other charge on the property will go with it. So if there legacy of P30,000.
are easements existing on the property – not covered by 934, so no
Supposing that I said in my will “I order that the legacy of
obligation on the part of the estate to work for the extinguishment of P30,000 be applied to your credit.” How much can you collect then?
the easement. 934 covers only those encumbrances which are P40,000 – only the amount of the credit. Even if you are able to
constituted on property to secure a recoverable debt. collect the P30,000 legacy, you should apply it to your credit, thus,
you are still entitled to P10,000.
In case of a legacy of a credit or a condonation of a debt,

remember the rule – these legacies are rendered ineffective the You distinguish the rules applicable to a legacy of generic
moment the testator brings an action for the recovery of the debt. personal property and a devise of a generic real property – If the
For example, D owes me P1M and I said in my will “I give testator gives, by way of legacy, generic personal property, and after
my friend F by way of legacy my credit of P1M against D.” that is a his death, it is discovered that the estate did not own any property of
legacy of a credit. If I bring an action for collection against D prior to
that kind, there is still a valid legacy.
my death, the legacy is rendered ineffective.

For example the testator said “I give my friend F, by way of In 911, we discussed earlier that if the free portion is not
legacy, a car.” After the death of the testator, wala naman pala syang sufficient to cover all the legacies and devises, what is the order of
kotse. Is there a valid legacy? YES. The estate will simply acquire a preference? First, the preferential legacies and devises, and second,
car and give it to F. all others pro rata. In 950, however, we come across another order of
preference which is quite longer. The order is:
In the case of a devise of a generic real property, if there is (1) Remuneratory legacies and devises;
no property of that kind in the estate, the devise is void. (2) Preferential legacies and devises;
For example, the testator said “I give my friend F, by way of (3) Legacies for Support;
devise, 10 hectares of rice land.” After the testator’s death, it is (4) Legacies for Education;
discovered that, while he owns hundrends of hectares of sugar and (5) Legacies and devises of specific and determinate things
which form part of the estate; and
coconut land, he did not own a single square meter of rice land – the
devise is void, applying the provisions of 941. (6) All others pro rata.
The question is, when do you apply the order of preference

in 950? Only when the conflict is exclusively among the legacies
Remember the rules for legacies for support and education and devises. In other words, when there are no legitimes to be
– a legacy for education lasts even beyond the age of majority, until protected and no donations inter vivos, at puro sa legacies at devises
the legatee is able to finish some professional or other course, lang ang conflict – that’s the time you apply 950. Otherwise, if there
provided he pursues his studies diligently. are donations inter vivos, you apply 911.
– a legacy for support lasts during the entire lifetime of the legatee.
By the way, when is a legacy or devise considered
When does a legatee or devisee acquire a right? With respect remuneratory? The same concept with remuneratory donation – if it
to pure and simple legacies and devises, the legatee and devisee is intended to recompense previous services which does not
acquires a right from the moment of death of the testator. constitute demandable debts.
For example pinamanahan mo yung kaklase mo na palagi
But what about ownership, as distinguished from the right? nag didikta sa’yo pag nag rerecite ka – that is remunatory.
When does the said legatee or devisee acquire ownership of the Yung kapit-bahay mong doktor na palagi mo kinukunsulta sa
thing? Again, if the legacy or devise is pure or simple, and the thing umaga, at dahil kapit-bahay nireresetahan ka ng walang bayad – if
given belongs to the testator, then ownership should be considered you give him something by way of your will, that will be
acquired also at the moment of the testator’s death. remuneratory in character.

957 gives us three situations or causes which would render When it comes to alienation, the only question you ask is:
the legacy or devise ineffective: Did the testator intend to permanently part with the ownership of
(1) Transformation; the thing? If the answer is YES – forget about the legacy or devise, it
(2) Alienation; and has been rendered ineffective.
(3) Loss.
When is there transformation? If the thing given by way of

legacy or devise is changed in such a way that it has not retained its If the Loss took place during the lifetime of the testator, the
form or denomination. In these sense, the meaning of form is legacy or devise is ineffective regardless of the cause of the loss.
physical appearance, and denomination is the name by which the For example, the testator gives you, by way of legacy, a
thing is called.
grand piano. One day before his death, because of his frustrations
For example, if a table has been given to you by way of ibinalibag nya yung piano or he burned the piano. Regardless of the
legacy, but before the testator’s death, the testator used the table as cause of the loss, as long as it took place during the lifetime of the
wood material in making a chair – that is transformation, there is a testator, it will render the bequest in your favor ineffective.
change in the physical appearance and in the denomination. If the loss occurred after the death of the testator, you
The testator gave you, by way of devise, his farm in should determine the cause.
Bulacan. Before his death, he converted that farm into a resort If the loss is caused by a Fortuitous event, without the fault
wherein he constructed pools and cottages – that is also of the heirs, it renders the bequest in your favor ineffective.
transformation which renders the devise ineffective. But if the loss happened because of the fault of any of the
heirs, you can recover the value of the property. As a matter of fact,
You were given, by way of legacy, a ring with a diamond that is one of the circumstances under the law where solidarity is
piece. Before the death of the testator, he had that ring converted into imposed. Thus, if several heirs take possession of the hereditary
a necklace or pendant – your legacy has been rendered ineffective. estate after the death of the testator, they are solidarily liable for any
loss.
If the testator gives you something in his will, and later on he

sells that thing – the legacy or devise in your favor is rendered
ineffective by alienation. UNLESS the alienation is temporary in
character, as in the case of a sale with a right to repurchase and he
in fact repurchased it.

Last point under this topic is 959 – a disposition made in Notice that neither did we apply the preference between
general terms in favor of the testator’s relatives shall be understood lines. Ordinarily in succession, the ascending line is preferred over
to be in favor of those nearest in degree. the collateral line. But as said, other rules are not applicable, only
The only rule applicable here is the rule on proximity, the proximity find application in 959.
other rules like preference between lines or representation does not
find applicability here. You simply count the number of degrees,
whoever are the nearest relatives in terms of degrees, whether in the
direct or collateral line, sya ang mag mamana.
However, be careful in applying this provision. If, for

example, the testator X says in his will “I give my house and lot in
Quezon City to those who are entitled thereto.” You do not apply
959 in this case. What do you apply? You give it to those who are
entitled thereto under intestate succession.
If, however, he instead said “I give my house and lot in

Quezon City to my relatives.” 959 would be applicable. Assume
further that his relatives are the following:
His father (F)is dead but his Grandfather (GF) is still alive;
His Uncle (U), the brother of his father, is also alive;
A and B, his two brothers are still alive;
His third brother C is dead, but is survived by a son D; and
His wife (W) is still alive.
Applying 959, we consider those who are nearest in degree,

thus, we simply count each of their degrees:
GF – 2 degrees
A and B – 2 degrees
U – 3 degrees
D – 3 degrees
So who will inherit? GF, A and B. What about D, can he not
represent C? NO, there is no representation under 959.

INTESTATE SUCCESSION
Intestate Succession is much simpler than Testamentary

Succession. You just remember certain important points.
Remember the rule on Preference between lines – that is an

underlying principle in intestate succession – the direct descending
line is preferred over the direct ascending line. On the other hand,
the direct ascending line is preferred over the collateral line. This is
the reason why if there are legitimate children or descendants, the
legitimate parents or ascendants are excluded.
If there are no children and descendants but there are parents

and ascendants together with brothers and sisters of the deceased, the
parents and ascendants exclude the brothers and sisters, who are
Thus, numbers (1), (4) and (5) are common in both orders.
merely collateral relatives.
The irregular order is shorter by one number. After number
(5), the next is already the (6) State. In the regular order, number (6)
Also remember the rule on Proximity – the nearer relatives is other collateral relatives within the 5th degree, the state is only
exclude the more distant ones. This rule, however, must always yield number (7).
to the order of intestate succession. Kahit na mas malapit ka, kung
In the regular order, number (2) is the legitimate parents
meron mas mataas ang rango sa’yo in the order of intestate
and ascendants, then number (3) is the illegitimate children and
succession, sorry ka.
other descendants. Itong parents at illegitimate children,
Thus, we should also remember the Order of Intestate magkabaliktad ang position sa irregular order. But take note, in
Succession – there are two: the regular and the irregular order. number (3) of the irregular order, only the illegitimate parents are
You apply the regular order if the deceased is a legitimate person. considered legal heirs, the other ascendants are not considered – the
Irregular order, on the other hand, is for an illegitimate person. same rule as I earlier said in legitime. Pag ang namatay ay
illegitimate person, the direct ascending line is hanggang illegitimate
parents lang ang rights.

Some of these heirs can concur, pwede mag sabay, while classes are in the 3rd degree, the uncle is excluded by the presence of
some exclude the others. C and D – proximity yields to the order of succession.
The legitimate children and other descendants excludes the In connection with proximity, we also have to take into
legitimate parents and other ascendants, but they do not exclude the account the rules of Representation. Why? Because by the right of
illegitimate children and the surviving spouse. representation, a further relative becomes just as near.
The surviving spouse does not exclude the brothers and

sisters. If the survivors are the spouse, brothers and sisters, what is
the distribution? ½ for each class. But the surviving spouse excludes Right of Representation
the other collaterals, as well as the state. What are the rules of representation?
Brothers, sisters, nephews and nieces exclude the other (1) There is representation not just in intestate succession,
collateral relatives. If you die being survived by your brother and by
but even in testamentary succession, but in the latter case,
a first cousin, the first cousin is excluded. representation applies only to the legitime.
The presence of illegitimate children in the irregular order is If a compulsory heir is given a part of the free portion and he
enough to exclude the illegitimate parents. If the person who dies is dies ahead of the testator, leaving his own children and descendants,
illegitimate, and he is survived by his illegitimate children, his he cannot be represented by such children and descendants insofar as
illegitimate parents are excluded. the free portion is concerned. But he can be represented by those
children and descendants insofar as his legitime is concerned.
(2) There is representation only in the direct descending

We previously said that the rule of proximity yields to the line, and NEVER in a direct ascending line. Your grandfather
order of succession. Let’s assume that X is the decedent and he dies cannot represent your father.
intestate. He is survived by his uncle U, his two nephews C and D –
the children of his predeceased brothers A and B. If you count the (3) There is no representation in the collateral line,
number of degrees separating U, as well as C and D, from X, you EXCEPT when only the nephews and nieces survive with at least
will notice that they are all three degrees away. Ordinarily, if you are one uncle or aunt.
separated with the same number of degrees from the decedent, you (4) There is no representation in case of Repudiation. An
should all inherit equally. But the fact remains that under the order of heir who repudiates cannot be represented. If your father repudiates
intestate succession, C and D belongs to category (5). The uncle,
an inheritance from your grandfather, you cannot represent your
although also a 3rd degree relative, belongs to category (6). The
presence of category (5) excludes those in (6). Thus, although both

father. However, an heir may represent him whose not allowed, you have the barrier between legitimates and
inheritance he has previously repudiated. legitimates under 992 – an illegitimate child cannot inherit ab
intestato from the legitimate children or the other relatives of his
To illustrate: X dies survived by his children A and B, and parent, neither can those relatives inherit from him.
by C his grandson with B. Subsequently, B repudiates his inheritance
from X, thus, C cannot represent B and everything will go to A. In the case of E and F, they can both represent B because B
is himself illegitimate. In the case of this line, according to Justice
Let’s assume that B predeceased X. When B died, C Jurado, F is a son of a gun, B is a bigger son of a gun, and X is the
repudiated the inheritance from B. Later on, X dies. Can C represent biggest son of a gun of them all, so no problem, there is no barrier.
B insofar as the inheritance from X is concerned? YES. An heir can
represent him whose inheritance he has earlier repudiated. But even in the exercise of a right of representation, do not
forget, the ratio of “two is to one” (2:1) should always be observed
between legitimates and illegitimates.
Another important point – if the person to be represented is Thus, if B is supposed to receive P30,000 – P20,000 will go
a legitimate, the representative must also be legitimate. On the other to E, while F will only get P10,000. The ratio should always be
hand, if the person to be represented is an illegitimate, the maintained.
representative may either be legitimate or illegitimate.
Grandchildren always inherit by right of representation,

EXCEPT if all of the children repudiates – that is the only time
when grandchildren can inherit in their own right, applying the
provisions under 969. Kapag lahat ng anak nag repudiate, at ang
natira puro mga apo, applying 969, they are the next in degree, thus,
Let’s assume that X has two children: A is legitimate; and B they will inherit in their own right, not by right of representation.
is an illegitimate. A has two children of his own: C who is Therefore, the distribution will not be by stirpes but per capita.
legitimate; and D who is illegitimate. B also has two children: E who
is legitimate; and F who is illegitimate. A and B both died ahead of
X, thus, when X died, he was survived by C, D, E and F. Who can
I have earlier mentioned 992 – the barrier between
inherit by representation?
legitimates and illegitimates, and that the reason is that there is
In the case of A, only C can represent him because he is a supposed to be an animosity between them where the former looks
legitimate, therefore his representative must also be legitimate. D is down on the latter as a “product of sin” while the latter looks with

envy upon the former. However, the barrier applies only in intestate Survivors – Spouse and Brothers & Sisters, Nephews &
succession. If you have an illegitimate half-brother, there is nothing Nieces
which can prevent you from instituting him as an heir. ½ to Spouse
½ to Brothers & Sisters, Nephews & Nieces
Also be careful on instances like the case of DelaMerced –
in that case, there were brothers and sisters A, B, C and D. B had an Basta sa intestate succession, walang matitira, unlike in the
illegitimate son S. Upon the death of A, his siblings B, C and D case of legitimes. This is somewhat similar to a “closing-out sale” –
inherited his estate. Later on, B died, and upon his death, his son was everything must go.
claiming his entire estate. C and D opposed and said “teka muna,
karamihan ng properties dyan ay galing kay A. You are illegitimate, Survivors – One legitimate child and Spouse:
you cannot inherit these properties.” Would they be correct, applying ½ to each of them.
992? NO. Instead, what should apply here is 777 – from the moment Survivors – Illegitimate children and Spouse:
of death of A, successional rights were transmitted to B, C and D. ½ to Illegitimate children, and other half to the spouse.
Thus, when B died, the properties which he inherited from A were
already his own. S is not inheriting from the legitimate relatives of Survivors – Legitimate children and Illegitimate children:
his father B, but from his own illegitimate parent, thus, he is clearly For the distribution in this case, you have two theories – the
entitled to inherit. concurrence and the exclusion. I suggest you follow the former.
Let’s assume that X dies with two legitimate children A and

B, and two illegitimate children C and D. The estate is P120,000. X
Intestate Shares dies intestate. Whether it is concurrence or exclusion, the safe thing
Rule of Thumb: the legitimates always get ½, whether they for you to do is first give them their legitimes – always make sure
be legitimate children or, in their absence, legitimate parents and that the legitimes are not impaired. We know that the ratio between
ascendants. legitimates and illegitimates is “2:1”, but do not apply this ratio
directly. Why? If you do so, there would be a possibility that the
Survivors – Legitimate parents, Illegitimate children and legitime of the legitimates might be impaired in cases where there
Spouse: are numerous illegitimates and only few legitimates. So to make sure
½ to Legitimate parents there will be no impairment, you first give them their legitimes.
¼ to Illegitimate children Thus, ½ of P120,000 is P60,000 – A and B are entitled to P30,000
¼ to surviving spouse each. Under the Family Code, the illegitimates are entitled to ½ of
that of the legitimates, thus, P15,000 each for C and D. There would

then be a remainder of P30,000. This remainder is where with respect to the part of the estate not disposed of by will, intestate
concurrence and exclusion would vary. succession will govern.
Under the exclusion theory, the P30,000 shall go to A and B Without the legacy of P10,000, the distribution would have
to the exclusion of C and D. Why? Because they are first in the order been: ½ or P60,000 to A and B; ¼ or P30,000 to C and D; and
of intestate succession. Thus, A and B gets an additional P15,000 another ¼ will go to W.
each. The problem with the existence of the legacy is the question
of where to get this P10,000? From whose share? Remember the rule
Under the concurrence theory, the P30,000 will be spread in a situation such as this – you satisfy the legacy by deducting it
out among all of them following the proportion of 2:2:1:1 to A, B, C from the intestate share of the legal heir whose intestate share is
and D, respectively. Thus, 1/6 or P5,000 each would go to C and D, bigger than his legitime.
and 2/6 or P10,000 each would go to A and B. Therefore, A and B
will end up with P40,000 each; C and D will end up with P20,000 One by one, we first go to the legitimate parents. The
each. Note that the ratio of 2:1 is maintained – that is the legitime of A and B is ½ or P60,000, while their intestate share is
concurrence theory, which, I submit, is the better theory because it also ½, thus, hindi natin pwede bawasan because A and B are
takes into account the ratio which is established by law between entitled to nothing less than that ½. We cannot just deduct the
legitimates and illegitimes. P10,000 from P120,000 then simply distribute the remainder
according to ½, ¼ and ¼ – mali ‘yon. Anything less than P60,000
would amount to an impairment of legitime.
When it comes to Adopted children, just treat the adopted Let’s go now to the illegitimate children. Their legitime is ¼
child just like a legitimate child. or P30,000, while their intestate share is also ¼, thus, hindi ulit
pwede bawasan.
Another point I want to stress is the problem of Partial To the surviving spouse this time. W’s legitime is only 1/8
Intestacy or Mixed Succession. or P15,000, while her intestate share, however, is ¼ or P30,000. If
we deduct the P10,000 legacy from her intestate share, she will still
Let’s assume that X dies with a will that has only one receive P20,000 which is still more than her legitime. Thus, this is
provision wherein he said “I give P10,000 to my friend Kiko.” He how we satisfy the legacy, because her legitime would not be
dies with an estate of P120,000. He is survived by his legitimate impaired even after the charge.
parents A and B, his wife W, and his two illegitimate children C and
D. This is obviously a case of mixed succession, because, while he
had a will, it did not dispose of the entire estate. Thus, the rule is –

Recall the rule of double share for full-blood collaterals
which we discussed earlier in reserva troncal – full-blood brothers,
sisters, nephews and nieces gets twice as much as that of the half-
blood brothers, sisters, nephews and nieces.
Remember that this rule applies only to brothers, sisters,
nephews and nieces, and does not apply with other collateral
relatives such as grandnephews, grandnieces, first-cousins, etc. – pag
dating sa mga ‘yan there is no distinction between full-blood and
half-blood.

PROVISIONS COMMON to TESTATE and INTESTATE or to the same portion thereof, pro indiviso; and
SUCCESSION (2) that there is a vacancy caused by RIP (Repudiation,
Incapacity or Predecease)
When is there Accretion in Intestate Succession? The law

provides in 1018 – in legal succession, the share of the person who
One of the most common here would be Accretion. repudiates shall always accrue to his co-heirs. But what about
What is the Right of Accretion? incapacity and predecease in intestate succession? Is there also a
As defined in 1015 – it is a right by virtue of which, when right of accretion? Actually it is a disputed point. In one school of
there is a vacancy in inheritance caused by predecease, incapacity thought – there is accretion, applying 1016 by analogy. The other
view is that there is no accretion in intestate succession in case of
or repudiation, in case two or more persons are called to the same
inheritance, legacy or devise, the vacant portion is given to his co- incapacity and predecease. Why? 1018 mentions only repudiation. If
heirs, co-legatees or co-devisees. the intention is to include predecease and incapacity, the law would
have expressly mentioned them too. Moreover, some civilists like
Illustration: Justice Jurado says “In reality, there is no vacancy in intestate
I said in my will “I give my house and lot in Leonumville to succession in the case of predecease and incapacity, but only in
my friends A, B and C.” In this case, there is unity of object – only repudiation.”
one property is given, and plurality of subjects – it is given to more
than one individual.
If A should predecease me, his 1/3 share will go by Can there be accretion if what is given is money or other
accretion to his co-devisees B and C. fungible things? YES. As long as there has been no ear-marking –
this means physical segregation.
Thus, if I say in my will “I give the balance of my savings

I said in my will “I give the entire free portion of my estate account in BPI to my friend A, the balance of my current account in
to A, B and C.” But A is incapacitated, or later on repudiates. His 1/3 Metrobank to my friend B, and to C the money which I keep in my
share will thus go the B and C by right of accretion. filing cabinet at home.” If A dies ahead of me, will there be an
accretion in favor of B and C? NO, because there had been ear-
marking.
1016 gives us the Requisites for Accretion for
Testamentary Succession -
(1) two or more persons are called to the same inheritance

There problem arises in determining when to apply However, the legitime cannot be made subject to any
accretion, and when to apply the other rules of succession in dealing substitution, condition or any encumbrance. Thus, if there is a
with vacancies. vacancy caused by RIP, insofar as the legitime is concerned, there
can be no substitution. Instead, what you can apply are the rules of
In order for us to discuss further, we need to briefly go over representation. When it comes to other portions such as the free
everything that we had discussed so far and look at the subject portion or legacies and devises purely voluntarily given, substitution
Succession at a higher vantage point. ang iaapply mo.
What is the underlying principle in the law of Succession? If representation is not proper under the circumstances, or if
Based on one of the theories, succession is merely an extension of there is no substitute, and there came a vacancy, what is your next
the rights of ownership. Consequently, another basic underlying option? Dyan papasok ang accretion – give it to the co-heirs, co-
principle which actually permeates the law on succession is the legatees or co-devisees.
primacy of the will of the testator. Because of this, it is testacy
rather than intestacy which the law categorically prefers. But what if there are no more qualified co-heirs, what are
you supposed to do with the vacancy? The last option is always
Therefore, the first thing to do in succession is simply to intestate succession – give it to the legal or intestate heirs.
determine the will or intention of the testator. Applying that
criterion, we first follow the will. Thus, we give the properties to Is it still possible that there be no more legal or intestate
those instituted as heirs, given legatees or devisees – that is the heirs left? NO. Remember that in both regular and irregular order,
number 1 rule, sundin ang gusto ng testator. nasa buntot ang ating kabalikat sa kaunlaran – the State is always
there. For example, in the case of a legitimate person, if you do not
Legitimes are, however, off-limits to the testator – hindi nya have any relative left within 5 degrees from you, the State will
pwedeng pakialaman ‘yan. The only way that he can legally prevent inherit your estate.
a compulsory heir from inheriting is through a valid disinheritance.
But generally, the legitime is beyond the reach of the testator.
Thus, after giving what is due to the instituted heirs, legatees

and devisees, we give the legitime to the compulsory heirs.
The power of disposition of the testator includes not only the

power to institute or designate his heirs, legatees and devisees, but is
also given by law the right to name the substitutes in case of RIP.

To further simplify the application of rules and provisions in
case of vacancy in succession, consider the following graph:
To illustrate an application of the graph, let’s assume that X

has four legitimate children A, B, C and D. C has two legitimate
children E and F. D has one legitimate child G. X dies with a will
wherein he instituted all his children as his heirs to his entire estate
of P120,000. C, however, predeceased, and D repudiated. How do
we distribute?

Your starting point should always be with “how the predeceased, therefore they will each get P2,500 each to be added to
distribution would have been if there was no vacancy.” their P7,500 share in their represented legitime of C. In the ultimate
account, E and F will end up with P10,000 each, while A and B will
Thus, without vacancy, A, B, C and D would have received end up with P50,000 each.
their legitimes as well as their shares in the free portion because the
entire estate was given to them. Their legitimes would have been
P15,000 each as compulsory heirs and their share in the free portion
as voluntary heirs would have been also P15,000 each, giving them a If it is intestate succession, it will be easier. The starting
total of P30,000 each. point is the same – determine the distribution if there were no
vacancies. Thus, since there are four legitimate children, you simply
Applying the graph, we first deal with C the predeceased. To divide the entire estate by four – each one would have received
whom will his P15,000 legitime go? E and F by way of P30,000 as intestate share.
representation – this is the first applicable rule in legitimes, thus,
P7,500 to each of them. Kanino mapupunta yung P30,000 vacant share of C? It
should go to his representatives. Does he have qualified
What about the P15,000 share of C in the free portion as a representatives? YES, E and F. Thus, by right of representation, each
voluntary heir? Look first if there is a substitute designated by the of them gets P15,000.
testator – wala, so the next option is accretion. Who are the co-heirs
of C? They are A and B, you forget about D because he repudiated. What about the repudiated P30,000 share of D? That belongs
Thus, P7,500 each to A and B by right of accretion. to A and B by right of accretion, thus, P15,000 to each of them.
Next is the share of D in the free portion as a voluntary heir. Therefore, A and B will end up with P45,000 each, while E
Again, is there a substitute? Wala, so accretion tayo, si A and B and F will each get P15,000.
nanaman ang co-heirs. The P15,000 share of D as a voluntary heir It is always much simpler if the vacancy occurs in intestate
will be shared by A and B at P7,500 each by way of accretion. succession because, for one thing, you don’t distinguish between
Finally, the P15,000 legitime of D. An heir who repudiates legitime and free portion but rather to the entire estate.
cannot be represented. Wala din siyang co-heirs, he is the only one
called to that legitime. You have no choice but to give it to the legal
or intestate heirs of X. Who are these? A and B, as well as E and F
by right of representation. Thus, the P15,000 will be divided into
three parts – 1/3 or P5,000 each for A and B, then E and F will
divide the share which would have pertained to C if he did not

CAPACITY to SUCCEED For example, nobody knows who, between the father and the
son, died first, but the son happens to have his own children and
descendants. I submit that the children and descendants, in this case,
In the case of Natural persons, they can only succeed if can inherit from the grandfather by the right of representation.
they were living at the time of the opening of the succession.
Remember, however, that even an unborn but already conceived
child can already inherit, provided that it is born later under the 1027 enumerates certain individuals who are incapacitated to
conditions specified by the law. If the child had an intra-uterine life inherit:
of less than 7 months, it must survive for 24-hours from the time of (1) The priest who heard the confession of the testator
separation from the maternal womb – there is “separation” when the during his last illness, or the minister of the gospel who rendered
umbilical cord is cut. If the child had an intra-uterine life of 7 spiritual aid to him during the same period – the incapacity extends
months or more, all that the law requires is that it should be alive at to the relatives of the priest within the 4th civil degree, as well as to
the time of separation from the maternal womb – even if it dies five the church, chapter and community organization to which he
minutes later. belongs.
With respect to Non-Natural persons or entities and The basis of this prohibition is the possibility of undue
associations, it is possible for them to inherit even if they do not influence.
actually have a separate juridical personality. For example,
associations for religious, scientific, cultural, educational or If the testator confessed to five different priests during his
charitable purposes under 1026 can inherit. There may be last illness, all five becomes incapacitated. In other words, the
dispositions made in general terms for prayers and pious works for confession need not be the last confession. As long as it was made
the benefit of the soul – the “soul” does not have juridical during the last illness, the priest who heard it will be incapacitated.
personality, but it is allowed to actually benefit under a will. There
However, if the priest did not hear the confession, as when
may be provisions in favor of “the poor” in a locality. they would instead pray the rosary or read the bible together during
Recall the provisions of 43 of the Civil Code – if there is a visits, the priest will not be incapacitated. He must have actually
doubt, as between two or more persons who are called to succeed heard the confessions.
each other, as to who died first, whoever alleges the death of one For ministers of other religious denominations, it is
ahead of the other must prove the same. In the absence of proof, it is sufficient that they had extended a spiritual aid to him during the
presumed that they died at the same time and there shall be no same period.
transmission of rights from one to the other. However, this provision
does not preclude the application of the rules of representation.

Thus, if a protestant pastor visited the testator during the (4) Any attesting witnesses to the execution of the will, their
latter’s last illness, and they read the sacred scriptures and prayed spouse, parents or children, or any one claiming under them – this is
together – that will be sufficient to incapacitate the pastor, but not for simply a reiteration of 823, therefore, it should be read in
a catholic priest. conjunction with the latter article. Thus, there should also be an
exception: UNLESS, there are three other competent witnesses to the
Supposing that the testator had a friend who is a priest Fr. P. execution of the will.
He made his will while he was very healthy, wherein he gave part of
his estate to his priest friend. During his last illness, he called his (5) Physicians, surgeon, nurse, health officer or druggist –
friend Fr. P to hear his confession. Can Fr. P still inherit after hearing hindi ‘yan adrug adik o durugista, that is the pharmacicst – if they
his confession? YES, the incapacity would not attach. Why? There is took care of the testator during his last illness – they must have
no possibility of undue influence – matagal na nagawa yung will eh. actually taken care of the testator during that period.
Thus, 1027 does not affect the legitime. If a compulsory If a doctor was simply consulted by the attending physician,
heir is incapacitated under this provision, he can still get his legitime. but not actually treated the testator, he is not incapacitated.
Why? Because there is no possibility of undue influence insofar as
the legitime is concerned. Why not? The legitime is something which There is an interesting question – Suppose that the doctor
is totally beyond the control of the testator, whether he likes it or not who took care of the testator during the last illness was the latter’s
it will go the compulsory heirs. own son, does the incapacity apply to that son? There are two
different views. According to the first view, if the doctor or nurse
1027 does not also apply to intestate succession, but only who took care of the testator during his last illness is a close relative
in testamentary succession. This is because the law repeatedly uses like a son, the incapacity should not apply. Why? The true Filipino’s
the word “testator” and again, there is no possibility of undue first impulse is to rush to the side of a dying parent. If you happen to
influence when it comes to intestate succession. It is the law itself be a doctor or a nurse and you do not take care of your own dying
which mandates how the estate will be distributed depending upon parent, the entire barangay will ostracize you.
who the survivors are.
The other view says that the son, who is also the doctor who
(3) Guardians with respect to their wards, if there are took care of this father during the last illness, is incapacitated. Why?
dispositions made by the ward before the final accounts of the Because there does not seem to be an intention on the part of the
guardianship have been approved – remember that in this provision, legislature to exempt close relatives. In comparison, (3) expressly
there is a built-in exception: any provision made by the ward in favor provided for an exception – that it does not apply to guardians who
of the guardian, when the latter is his ascendant, descendant, are closely related to the ward. If it was intended by the legislature to
brother, sister or spouse, shall be valid. recognize a similar exception in (5), they would have expressly done
so.

Assume that X is survived by the following: soul. In this connection I order that there should be 1,000 masses for
(1) his first cousin FC – a 4th degree relative me everyday all throughout the Philippines in different parishes and
(2) his three children A, B and C churches, there should be special prayers for me every tuesday in St.
Anthony’s shrine, every wednesday in Baclaran, every thursday in
Fr. A is a priest, who heard his father’s confession during St.Jude, and every friday in Quiapo.” Then the entire P100M will be
X’s last illness. The will was made during that period, wherein he spent on what he specified – you do not apply the 50-50 rule.
said “I give my entire estate to my three children, A, B and C.” Dr. B
is a doctor, who took care of his father during the same period. X
died with an estate of P120,000. How do we distribute?
Just to emphasize a point regarding the adopted child.
First point, as I said, 1027 does not affect the legitime. Thus, Generally, you treat an adopted child just like a legitimate child.
there is no question that they will still receive their legitimes despite When it comes to inheritance from the adopted child, will the natural
their incapacity. Bakit si C nasama? He is a relative of the priest parents still inherit anything from him? Actually, this is a disputed
within the 4th degree, hagip din sya nun, pero hindi si FC. Does this point. But, I am inclined towards the view that you still apply the
mean that the entire free portion would go to FC? NO. What are you Family Code provisions despite the very broad language of Sec.18
supposed to do with the vacancies created? You apply the rules of of the Domestic Adoption Law which provides that “all legal
intestate succession, and the first in the order of intestate succession, ties,(xxx) are terminated and they shall have reciprocal rights of
whether regular or irregular, is legitimate children and descendants. succession…” but the heading of that section states “Parental
Thus, the entire estate will still end up with A, B and C. I repeat, Authority” Thus, I submit that the old rule under the Family Code
1027 does not apply and is without prejudice to intestate succession. should still apply – if both adopter and natural parents survive, they
should divide equally. Whatever share that is supposed to go in the
ascending line between the parents, share it 50-50.
In 1029 – a disposition made for prayers and pious works, in Along the same line, I submit that the old rule still holds true
general terms, will mean a 50-50 division. 50% to the church or when it comes to representation. An adopted child cannot represent,
denomination to which the testator may belong, and the other 50% neither can an adopted child be represented. Adoption creates a
will be given to the State for the purposes mentioned in 1013 (for the relationship strictly only between the adopter and the adopted. The
benefit of public schools, charitable institutions,etc.) latter does not become related in any way to the relatives of the
You don’t apply the 50-50 rule if the testator specified the adopter and vice-versa.
application. Thus, if what the testator said was “I leave the P100M
for prayer and pious works for the benefit of my soul.” – you apply
the rule. But he said “I leave P100M for prayers for the benefit of my

The law enumerates in 1032 persons who are considered pardon can only come about if the unworthy heir is instituted in the
incapable of succeeding by reason of Unworthiness. Just go over will of the testator, the latter having full knowledge of the facts
these familiar provisions, many of them are also grounds for constituting the unworthiness. Since there is no express or implied
disinheritance. pardon, S is still unworthy, thus, cannot inherit.
In (5) any person guilty of adultery or concubinage with the Suppose that after the S’ conviction by final judgement, X
spouse of the testator – note that the spouse is not incapacitated to disinherited him. But before the death of X, they was reconciliation
succeed for unworthiness. Frankly, I do not understand why. Assume between them. This time, he can. Why? When the father disinherited
that X has only one living relative, his brother B. X is married to a his son, the father invoked and submitted himself to the rules of
very beautiful lady. He comes home unexpectedly early one disinheritance. One of the principles of disinheritance in 922 is that a
afternoon and catches, in their own conjugal bed, his wife and his reconciliation between the offender and the offended party deprives
only brother having the time of their lives. X files a case against the offended party of the right to disinherit, and renders ineffectual
them and the two are convicted of adultery. Later on, X dies any disinheritance previously made. Thus, in this case, the rule
intestate, leaving millions in money and property. To who will his should apply. But if X did not disinherit, there is no basis for the
estate go? His unfaithful wife will inherit everything, to the application of the rule of disinheritance.
exclusion of his brother. If his brother was not rendered unworthy, he
would have gotten half.
According to some civilists, the reason is that the law As of what moment should the capacity of the heir be
presumes in favor of the solidarity of marriage, and would rather determined? We again use 777 as basis, thus, the heir must be
leave it to the testator to decide whether he will disinherit his spouse capacitated as of the moment of death of the decedent because it is at
– anong solidarity, kinaliwa na nga eh. What’s the moral of the that moment that there is transmission of successional rights.
story? First thing is to make a will disinheriting your spouse.
If, however, the institution, legacy or devise is subject to a
suspensive condition, there will be two moments to consider:
moment of death; and moment of the fulfillment of the condition. In
Supposing that S is the son of X. S was convicted of an that case, capacity should be possessed at both moments. Otherwise,
attempt against the life of his own father X – that is a ground for the heir, legatee or devisee does not inherit.
disinheritance and a cause for unworthiness. X did not disinherit his
son. However, before the death of X, there was a tearful
reconciliation between them. The question is: can S inherit? NO. He
is unworthy. To erase unworthiness, you need an express or implied
pardon. An express pardon must be in writing, while an implied

In 1039, remember the four aspects of succession which are Note 1050 where the law enumerates three situations when
always governed by the National Law of the decedent, regardless of there would be implied acceptance.
where the property may be: under 16 of the Civil Code, (1) Order of (1) if an heir executes an act of ownership – if he sells,
Succession; (2) Amount of Successional rights; (3) Intrinsic validity assigns or donates his share. Hindi nya pwedeng gawin yun if he is
of testamentary provisions; and, under 1039, capacity to succeed. not the owner;
(2) if there are several heirs and one of them renounces his
share gratuitously in favor of one or more but not all of his co-heirs
– again, that is an exercise of an act of ownership because he is
selecting who will benefit from his share. So even if the renunciation
ACCEPTANCE and REPUDIATION is gratuitous, he will be deemed to have accepted the inheritance.
(3) if an heir renounces for a price – binenta nya ‘yun, he is
deemed to have accepted. But if he renounces gratuitously and it is
done indiscriminately in favor of his co-heirs, and his co-heirs are
Just remember that every gratuitous disposition, whether
the very same persons who would have acquired his vacant share
by donation or succession, needs Acceptance. Nobody can force his
under accretion, he is not deemed to have accepted.
generosity down your throat. You may be the poorest man, but if you
do not want to accept the generosity of another, no one can force you One of the rights granted to creditors under 1052 – if an
to do so. The law has some high regard for individual personal heir renounces his share in the inheritance but he has unpaid
dignity. creditors, such creditors are allowed to accept up to the extent of
their respective credits – this is obviously for their protection.
Acceptance and Repudiation should be free and voluntary
acts, and they always retroact to the moment of death. Why? It is easier to accept than to repudiate. You can even accept
Again, because of 777. The law does not want to have any by not doing anything. If an heir does not act within 30 days from an
interregnum insofar as ownership of property is concerned – that is order of distribution, he is deemed to have accepted the inheritance.
the reason for retroactivity.
Acceptance may be express or implied. It can also be either

in a public or private document. Repudiation may be made in a public document or in an
authentic instrument or by filing the corresponding manifestation
with the settlement court.
If an heir executes an act of ownership which otherwise he “Authentic instrument” is one whose genuineness cannot be
could not lawfully do, he is deemed to have impliedly accepted. doubted.

PARTITION and DISTRIBUTION of ESTATE document stating that “We have read the will of our father and we all
agreed to abide by the provisions of that will.” Later on the old man
passed away, and his will was never probated. A problem arose when
Prior to partition, the heirs are actually co-owners of the some of the children wanted to get the properties given to the others,
property which they have inherited. Partition is intended to bring which is one of the tragic things that can happen in any family. Upon
reaching the SC, the Court held: that will is void and ineffective, but
about an end to the state of indivision. It may be done by the heirs
themselves, even extra-judicially under certain conditions. They can it can be considered as a valid partition under what is now 1080.
have an ordinary action for partition or in the settlement Does this mean that we can now safely and conveniently
proceedings. Usually this is the last thing done by the settlement forget about 804 to 814 na pinag hirapan naten memoryahin? Not
court – the approval of the project of partition, sometimes the court necessarily. For a void will to be considered a valid partition under
would even have to appoint a commissioner to make the proposed 1080, two essential conditions must be present:
partition. (1) the will must, in reality, be a partition – meaning the
A testator can make the partition, as a matter of fact, under will must give out specific property to specified heirs or
1080 of the New Civil Code, a person is allowed to make a partition individuals in such a way that if you follow the will, there will be no
of his estate during his lifetime either by will or through an act inter co-ownership.
vivos. As stated by J.B.L. Reyes “this is sui generis – one of a kind” (2) the beneficiaries named in that void will must at least be
if a person makes a partition of his estate while he is still alive, legal heirs – if they are total strangers, there is no way that they can
pambihira yang dokumentong ‘yan. He is free to revoke or change it acquire ownership over the properties given to them under the void
will. Why? Because the law enumerates the modes of acquiring
before his death, but if he does not, that partition is to be respected as
long as the legitimes of the compulsory heirs are not impaired. ownership, and partition is not one of them. You always need a mode
to acquire ownership. If the beneficiaries are at least legal heirs, they
1080 takes on added significance in the light of certain would have a mode of acquiring ownership – that is succession.
decisions of the SC. I refer to those decisions where the Court
considered void wills as valid partitions.
The best example would be the case of Mang Oy vs C.A., a Effects of Partition
ponentia of Justice Isagani Cruz – there was an old igorot man who Upon partition, there is mutual reciprocal warranty among
realized that death was upon him, thus, he decided to make a will. In the heirs with respect to title and quality of the portions allocated to
that will, he distributed specific properties to specific heirs. He then them under the partition.
called his children to read his will and the latter all agreed to comply
with such will. They even went to a notary public and executed a

The action to enforce this warranty prescribes in 10 years Because everything should really go to him – walang karapatan
from the date the cause of action accrues. yung third person.
Remember the three situations where there is no warranty If there are two or more heirs, then a third person gets
among the heirs, which you’ll find in 1096: included in the partition, then the partition is void only with respect
(1) if it was the testator himself who made the partition, to the share given to the third person.
UNLESS there is an impairment of the legitimes of compulsory
heirs, or UNLESS it is clear that his intention is otherwise; Worst case scenario – there are several heirs, one of them is
(2) if there is an express agreement among the heirs that omitted, and his share is instead given to a third person. In this case,
there will be no warranty among them; it does not necessarily follow that the partition will be rescinded in
(3) if the eviction is due to causes which arose after the the absence of bad faith or fraud. The portion given to the third
partition. person should instead be given to the omitted heir. Thus, there will
be a corresponding obligation on the part of the heirs who
participated in the partition to proportionately contribute to the share
of the omitted heir.
A partition is a contract, and just like any other, it is subject
to rescission on the ground of lesion or damage. What is the amount In his connection, remember the case of Viadonon vs CA – a
of the lesion or damage? The same as in ordinary actions for father and three of his children entered into a partition, excluding a
rescission of contracts. If an heir receives property whose value is fourth child who was mentally retarded. Later on, the Court said: it
less by at least ¼ than that which he is legally entitled to, then he does not mean that the entire partition is void under 1104, unless it is
may ask for a rescission. The prescriptive period is 4 years from the clear that there is bad faith or fraud. But the heirs who participated in
time the partition is made, which is the same with that of ordinary that partition is obligated to contribute proportionately to the share of
contracts. the omitted heir.
In 1104 and 1105, what will be the consequences in case an

heir is omitted or a stranger is included in the partition?
If there is only one heir, but somehow he enters into a

partition with a third person, the entire partition is void. Why?

Wills Transcription 1 PDF

Transféré par

Informations du document

Titre original

Copyright

Formats disponibles

Partager ce document

Partager ou intégrer le document

Options de partage

Avez-vous trouvé ce document utile ?

Ce contenu est-il inapproprié ?

Droits d'auteur :

Formats disponibles

Wills Transcription 1 PDF

Transféré par

Droits d'auteur :

Formats disponibles

SUCCESSION

Lecture By: Dean Navarro

Transcribed by: Bjone Favorito Page 1

What is Succession? The law gives us a codal definition in

Transcribed by: Bjone Favorito Page 2

Transcribed by: Bjone Favorito Page 3

Most important is Preterition under art. 854 – the omission

Transcribed by: Bjone Favorito Page 4

When would it be better to be an heir? In cases of after-

Thus, the General Rule: they do not go to the testamentary

Suppose, in the will of X he said “I give to my friend F, all

Transcribed by: Bjone Favorito Page 5

Transcribed by: Bjone Favorito Page 6

You give the words of the will their ordinary grammatical

Recall the general rule that testacy is preferred over

Note in 785 – the validity of a will as to its form depends

Transcribed by: Bjone Favorito Page 7

Transcribed by: Bjone Favorito Page 8

There is minimum, but no maximum age in making a will,

How about drug addicts? YES, as long as at the time of

The capacity to make a will must be possessed at the time of

If X made a will at the age of 22, and at that time he was of

Transcribed by: Bjone Favorito Page 9

Transcribed by: Bjone Favorito Page 10

Transcribed by: Bjone Favorito Page 11

Transcribed by: Bjone Favorito Page 12

Transcribed by: Bjone Favorito Page 13

Transcribed by: Bjone Favorito Page 14

Transcribed by: Bjone Favorito Page 15

The will must be acknowledged before a notary public.

Transcribed by: Bjone Favorito Page 16

Transcribed by: Bjone Favorito Page 17

In the absence of bad faith, forgery or fraud, or undue and improper

Transcribed by: Bjone Favorito Page 18

Can a blind man make a holographic will? YES, as long as he knows

Transcribed by: Bjone Favorito Page 19

Supposing that the first and second disposition is signed but

Transcribed by: Bjone Favorito Page 20

Transcribed by: Bjone Favorito Page 21

Transcribed by: Bjone Favorito Page 22

823 – if there is a legacy or devise in a will given to one of the

If A, B and C are the witnesses to the execution of the will of

The purpose is to remove any temptation on the part

Supposing that instead of being given a legacy or devise, one

Transcribed by: Bjone Favorito Page 23

Transcribed by: Bjone Favorito Page 24

Example, you typed testamentary provisions which you

Transcribed by: Bjone Favorito Page 25

Transcribed by: Bjone Favorito Page 26

Transcribed by: Bjone Favorito Page 27

Transcribed by: Bjone Favorito Page 28

Even if a will is revoked, any recognition of an illegitimate

Transcribed by: Bjone Favorito Page 29

Transcribed by: Bjone Favorito Page 30

Under exceptional circumstances, however, the SC has

Transcribed by: Bjone Favorito Page 31

Transcribed by: Bjone Favorito Page 32

Supposing in the previous example that it can be proved,

Transcribed by: Bjone Favorito Page 33

Transcribed by: Bjone Favorito Page 34

Transcribed by: Bjone Favorito Page 35

If a compulsory heir in the direct line is mentioned in the

Transcribed by: Bjone Favorito Page 36