Atty. Myra Angeli A.

Gallardo-Batungbakal
Article 774. Succession is a mode of
acquisition by virtue of which the property,
rights and obligations to the extent of the
value of the inheritance, of a person are
transmitted through his death to another or
others either by his will or by operation of the
law.
 Decedent
 Testator/Testatrix
 Administrator/Administratrix
 Executor/Executrix
 Inheritance – property or right acquired
 Succession – a mode of acquisition
 Legatees
 Devisees
 Compulsory heir
 Voluntary heir
 Acticle. 783. A will is an act whereby a
person is permitted, with the formalities
prescribed by law, to control to a certain
degree the disposition of his estate, to take
effect after his death.

The making of a will is a statutory right.

 Allows the testator “to control to a certain degree
the disposition of his estate after his death.”
Article 777. The rights to the succession are
transmitted from the moment of death of the
decedent.

Requisites for Succession Mortis Causa:

1. death (actual or presumed)
2. rights or properties that are
transmissible
3. transferee (must be living, i.e.no
predecease; no repudiation; no
incapacity)
Ordinary presumption of death (no probability
of death) – 10 years
- absentee disappears under normal
conditions – 10 years; 5 years if the
person aged 75 disappears

Extraordinary presumption of death or

Qualified absence (with probability of
death) – 4 years (missing airplane, lost
vessel, military missing because of war,
etc.)
 In case the person reappears, he recovers his
property/properties but not the fruits or rent
thereof.
 Prior to a person’s death, his heirs merely
have an inchoate right to his property.
Therefore, during his lifetime, the heirs have
no right of disposition or alienation over said
properties. Tordilla v. Tordilla, 60 Phil 162

 Q: Can an heir dispose of his share in the

estate pending liquidation?
 A: Yes. The property is no longer “future
property.”
 NOTE: FUTURE INHERITANCE CANNOT
BE SOLD.
 Q: Is the donation of property after the
decedent’s death but before a judicial
declaration of heirship valid?

 A: Yes, it is not a donation of future

inheritance. Osorio vs. Osorio and Ynchausti,
41 Phil 531
 When does estate tax accrue?

Q: Is it at the moment of decedent’s

death or at the time the heirs
possess the property/ies?

A: At the time of decedent’s death.

NOTE: The date the inheritance tax (now referred to as

estate tax) is distinct from the date on which it must be
paid. (Lorenzo vs. Posadas, 64 Phil. 353)
 Q: Wife and children survive the decedent.
Wife sells conjugal property. Valid?

 A: Yes, but only insofar as her share is

concerned. As to the shares of her children,
sale is invalid. Reason: children acquired the
properties at the moment of decedent’s death
(and not at the time of the judicial
declaration of heirship). Ibarie vs. Po. L-
5046, Feb. 27, 1953
Article 778. Succession may be:
1. Testamentary;
2. Legal or intestate; or
3. Mixed

NOTE: 2 more kinds of succession:

4. Compulsory or forced succession –

where the decedent is compelled to give the
heirs their legitimes; heirs, however, are free
to refuse
5. Contractual succession
Article 783. A will is an act whereby a person
is permitted, with the formalities prescribed
by law, to control to a certain degree the
disposition of his estate, to take effect after
his death.
 1. Making a will is a statutory right.

- Testator is allowed “to control to a

certain degree the disposition of is
estate after his death.”

2. It is a unilateral act.

3. It is a solemn or formal act.

4. There must be animus testandi.

5. Testator must be capacitated.

6. It is a personal act.

7. It is effective mortis causa.

8. It is revocable or ambulatory.

9. It disposes of the estate

partially or totally.
Rabadilla v. CA, 113725, June 29, 2000

- A will cannot be subject of a

compromise agreement as it defeats
the purpose of making a will.

- Testator’s wishes must be strictly

followed.
By: EXTRINSIC EVIDENCE
ONLY WHEN THE WILL IS
VALID.
 Article 793. Property acquired after the making
of a will shall only pass thereby, as if the testator
had possessed it at the time of making the will,
should it expressly appear by the will that such
was his intention.

Ex. In 2010 T made a will disposing of all his five

(5) beach resorts and giving the same to his
mentor. From 2010 to 2014, T acquired four (4)
more beach resorts. T died in January of 2015.
How many beach resorts will the mentor get?
Answer: Only 5. The other 4 are after acquired
properties. These properties will go to the
compulsory heirs by intestate succession.
 Article 794. Every devise or legacy shall convey
all the interest which the testator could devise or
bequeath in the property disposed of, unless it
clearly appears from the will that he intended to
convey a less interest.

Note: The entire interest of the Testator in the

property is conveyed.

Ex. T bequeaths to A his car. A conveys

ownership of the car and not mere usufruct.
EXTRINSIC VALIDITY INTRINSIC VALIDITY

 Refers to the form • Refers to the legality of

the terms/provisions

 Ex. Need for a valid • Ex. Provisions must not

attestation clause impair legitimes

NB: Law at the time of NB: Law at the time of

the Execution of the Will the Testator’s Death
1. T is a FILIPINO
a) Philippine Laws
- [Arts. 804- 814]
b) Country where he may be
- [Art. 815]
c) Country where he executes
the will
- [Art. 17 lex loci
celebrationis]
AS TO FORMALITIES
EXTRINSIC
VALIDITY
 2. T is an ALIEN ABROAD

a) Law of his domicile

b) national law
c) Philippine law [Art. 816]
d) Law of the place of execution
(Art. 17, par 1)/
Lex loci celebrationis

Mnemonic: Di Na Po Love
Do Not Leave Please

AS TO FORMALITIES
EXTRINSIC
VALIDITY
3. T is an ALIEN IN THE
PHILIPPINES

a) Law of his nationality

b) Philippine law

Remember: MVP Stephen Curry,

Katy Perry, or George Clooney
AS TO FORMALITIES
EXTRINSIC VALIDITY
An Australian, domiciled in France,
is en route to Switzerland. He has
a 5 hour lay over in Spain. While
in the airport (Spain), he makes a
will. What country’s/countries’
formalities should he observe to
make sure that the will is valid as
to its form?
This is a case of an ALIEN ABROAD. He can
apply the formalities prescribed in the
following places. Hence, apply Di Na Po Love.
:

1. France (Domicile)
2. Australia (Nationality)
3. Philippines
4. Spain (Lex loci celebrationis)
 A Korean who has a Korean Restaurant in
Manila has been residing in the Philippines
for 15 years now. She intends to make a will.
What country’s/countries’ formalities must
she observe?

1. Korea (nationality) [Art. 817 – lex

nationalii

2. Philippines [Art. 17 – lex loci]

 NATIONAL LAW
of the Testator
governs
[regardless of the place of execution
of the law of the place of death of
the Testator].
AS TO LEGALITY OF PROVISIONS
INTRINSIC VALIDITY
Facts: T was a citizen and resident of Texas who had illegitimate
children in the Philippines. He had two wills, one disposing of
his properties in Texas and the other disposing of his properties
in the Philippines. He had recognized illegitimate children in
the Philippines but were not given anything in the will. Texas
had no conflict of law rules. Also, Texan law did not have
compulsory heirs. His will stated that the Philippine properties
be distributed in accordance with Philippine laws and not with
his own national law.

Issue: W/N said provision is valid.

Held: Not valid. It is void. Said provision

contravenes Art/ 16, par.2 of the NCC.
Facts: Edward Christensen was born in NY
but acquired citizenship in CA when he
resided there from 1904-1913. He came to
the Philippines and resided here despite
frequent visits to CA.

He executed a will in Manila on

March 5, 1951. He had a lone
acknowledged natural child named Maria
Lucy Christensen who was deprived of
legitime per Christensen’s will.
Issue: What law should
govern the intrinsic
validity of the will in
the light of the renvoi
doctrine, CA law or
Philippine law?
Held: “Reason demands that We should enforce
the California internal law prescribed for its
citizens residing therein, and enforce the conflict
of law rules law for the citizens domiciled
abroad. If we must enforce the law of California
as in comity we are bound to do so, as so
declared in Art. 16 of our Civil Code, then we
must enforce the law of California in accordance
with the express mandate thereof and as above
explained, i.e., apply the internal law for
residents therein, and its conflict of laws rule for
those domiciled abroad.
The conflict of law rule in California, Article 946,
Civil Code, precisely refers back the case, when a
decedent is not domiciled in California, to the law
of his domicile, the Philippines in the case at bar.
The court of the domicile cannot and should not
refer the case back to California; such action will
leave the issue incapable of determination
because the case will then be like football, tossed
back and forth between the two states, between
the country of which the decedent was a citizen
and the country of his domicile.
The Philippine Court must apply its own law
as directed in the conflict of law rule of the
state of the decedent, if the question has to
be decided, especially as the application of
the internal law of California provides no
legitime for children while the Philippine
law, Arts. 887 (4) and 894, Civil Code of the
Philippines, makes natural children legally
acknowledged forced heirs of the parent
recognizing them.” (Christensen Case)
Art. 818. Two or more persons
cannot make a will jointly, or
in the same instrument, either
for their reciprocal benefit or
for the benefit of a third
person.
 Joint wills are VOID whether they are
reciprocal or not.

 If the will is executed by Filipinos,

regardless where they execute the same,
the will is VOID due to public policy.

If foreigners execute a joint will abroad

and it is valid in the place of execution in
accordance with Art. 816, the same shall
be considered valid here.

 If foreigners execute a joint will in the

Philippines, the will is VOID.
Requisites of Testamentary Capacity:

1. T not prohibited by law to make a will

[Art. 796];
2. T is at least 18 years of age [Art. 797];
and
3. T is of sound mind at the time of the
execution of the will [Art. 798]
Article 799. To be of sound mind, it is not
necessary that the testator be in full possession
of all his reasoning faculties, or that his mind be
wholly unbroken, unimpaired, or unshattered by
disease, injury or other cause.

It shall be sufficient if the testator was able at

the time of making the will to know the nature of
estate, proper objects of his bounty, and
character of the testamentary act.
 1) nature of the estate – what the T is giving

 2) proper objects of his bounty – recipients

of T’s bounty; persons to whom T is
giving

 3) character of the testamentary act –

ambulatory and revocable
 “Between the highest degree of soundness of mind and
memory which unquestionably carries with it full
testamentary capacity, and that degrees of mental aberration
generally known as insanity or idiocy, there are numberless
degrees of mental capacity or incapacity and while on one
hand it has been held that mere weakness of mind, or partial
imbecility from disease of body, or from age, will not render a
person incapable of making a will; a weak or feebleminded
person may make a valid will, provided he has understanding
and memory sufficient to enable him to know what he is
about to do and how or to whom he is disposing; it is not
necessary that the mind be unbroken or unimpaired or
unshattered by disease or otherwise. It has been held that
testamentary capacity does not necessarily require that a
person shall actually be insane or of unsound mind.” Ortega
vs. Valmonte, G.R. No. 157451, December 16, 2005 citing
Alsua Betts vs. CA , 92 SCRA 332 (1979)
 Article 800. The law presumes that every person
is of sound mind, in the absence of proof to the
contrary.

The burden of proof that the testator was

not of sound mind at the time of the making
of the dispositions is on the person who
opposes the probate of the will, but if the
testator, one month or less, before making
the will was publicly known to be insane, the
person who maintains the validity of the will
must prove that the testator made it during
a lucid interval.
 Article. 801. Supervening incapacity does not
invalidate an effective will, nor is the will of
an incapable validated by the supervening of
capacity.
1. Ordinary or Notarial Will – with an
attestation clause and acknowledgment
before a notary public

2. Holographic Will – entirely handwritten,

dated, and signed by the T
Requirements of a Notarial Will

1. In Writing;

2. In a Language known to the

testator;
 This need not be indicated on the
face of the will.
3. Subscribed by the testator himself or
by the testator’s name written by
another person in his presence, and by
his express direction.

 T must sign at the logical end

 First name only – valid (Yap Tua vs. Yap
Ka Kuan, 27 Phil. 579)
 Thumbmark, cross, initials – Valid
provided the T intends this to be his
signature

If T cannot write his name, another

person may do so provided: 1) it is done
in the presence of T; and 2) it is by T’s
express direction.

- person should not be one of

the three instrumental
witnesses; person does not
have to sign his/her own
name; cannot put his/her
name instead of the T’s
4. Attested and subscribed by three or more
witnesses in the presence of the testator
and of each other

 Attest – to affirm to be true or genuine; to

authenticate officially
 Subscribe – to write one’s name underneath
 In the presence – not physical presence but
POSSIBILITY OF SEEING WITHOUT PHYSICAL
OBSTRUCTION

- different scenarios (curtain, hallway, looking

at a passing celebrity)
5. Marginal Signatures. The testator or
the person asked by him to write his
name AND the instrumental witnesses
shall sign each and every page of the
will except the last, on the left margin.
 Signatures appear on the last page already.
 Failure to comply with this is a FATAL DEFECT
and renders the will VOID. (See In re; Will of
Prieto, 46 Phil 700)
 The purpose of this requirement is to
PREVENT FRAUD.
 T signs second page but fails to sign the first
page. Will is VOID. (Estate of Tampoy vs.
Albertine, Feb. 25, 1960)
If the whole will is only on one page, no
need for marginal signatures (See
Abangan vs. Abangan, 40 Phil. 476)

 If the signatures appear on the right,

upper, or lower margin – VALID; purpose
is nonetheless served – FRAUD is
prevented. (See Nayue vs. Mojal, 47
Phil. 152)
 6. Numbered correlatively in letters on
the upper part of each page

Prescribed:
One, Two, Three, etc.

Substantial Compliance:
Page 1, Page 2, Page 3, etc.
1, 2, 3, etc.
 7. Attestation Clause must include the ff. info:

i. Number of pages (know

substantial compliance)

ii. That the testator signed the will

in the presence of the
instrumental witnesses

iii. That the witnesses signed the

will in the presence of the
testator and of one another
 Absence of the Attestation Clause
FATAL DEFECT --- Will is VOID.

 Attestation clause not signed by the

witness at the bottom --- FATAL
DEFECT --- Will is VOID

 Failure to state number of pages ---

FATAL DEFECT- VOID
Gen: Rule : No. of pages not stated – VOID

Exception: When there is substantial

compliance.

There is substantial compliance

when the number of pages can be
found somewhere else in the will
itself. There should be no need
for evidence aliunde.
 1) To preserve in permanent form a record
of the facts attending to the execution of
the will….(Leynes vs. Leynes, 40 O.G. No. 7,
p. 51)

 2) Proof of compliance with the statutory

requisites for the execution of the will.

 3) To minimize commission of FRAUD.

1) Q: Attestation clause fails to state that the
T signed in the presence of the three
witnesses. Is the will valid?

2) Q: Attestation clause states that the

witnesses signed in the presence of
the T but is quiet as to whether or
not the witnesses signed in the
presence of each other. Is the will
valid?
NOTA BENE:
COMMIT TO MEMORY
ARTS. 804-809 NCC
FOR REQUISITES OF A
NOTARIAL WLL.
– partakes of the nature of
testamentary provisions (Art.
728). Thus, requisites of a
notarial will must be complied
with. (See Maglasang, et al. vs.
Heirs of Cabatingan, June 5,
2002)
Article 810. A person may
execute a holographic will which
must be entirely written, dated,
and signed by the hand of
testator himself. It is subject to
no other form, and may be made
in or out of the Philippines, and
need not be witnessed.
Vda. De Enriquez vs. Abadia, et al., L-7188, August
9, 1954

- 1923 Sancho Abadia executed a

holographic will. Holographic will were not
allowed in 1923.

- In 1946, the will was presented for probate.

- On August 30, 1950, the NCC was adopted,

thereby allowing execution of holographic
wills.

- In 1952 the trial court allowed probate.

Q: Should the court have allowed probate of the
holographic will?

A: No, the holographic will should not have been

allowed probate.
Under Article 795 “The validity of a will as to
its form depends upon observance of the law in
force at the time it is made.” Here, the
holographic will was made in 1923 when there
was no law allowing holographic wills. Applying
Art. 795, as there was yet no law at the time the
holographic will was made, the will then is
extrinsically VOID. Hence, it should not be
allowed probate.
 In the probate of a holographic will

◦ uncontested – 1 witness who knows the

handwriting of the Testator
(not necessarily the
subscribing witnesses)

◦ contested - at least 3 identifying witnesses

Re: Lost or destroyed holographic will without
intent to revoke CANNOT be probated as
there is no comparison as to T’s handwriting.

Re: Photostatic copy of the holographic will

may be allowed as there can now be
comparison as to T’s handwriting.
Holographic will can
be made in the
Philippines or outside
the Philippines.
Article 820. Any person of
sound mind and of the of
eighteen years or more, and
not blind, deaf or dumb, and
able to read and write, may be
a witness to the execution of a
will mentioned in Article 805
of this Code.
1. of sound mind [Art. 820]
2. at least 18 years old [Art. 820]
3. not deaf, blind or dumb [Art. 820]
4. able to read and write [Art. 820]
5. domiciled in the Philippines [Art. 821]
6. not convicted by final judgment of
FALSIFICATION of a document; PERJURY;
or FALSE TESTIMONY [Art. 821]
Article 821. The following are disqualified
from being witnesses to a will:

1. Any person NOT DOMICILED in the

Philippines;

2. Those who have been CONVICTED of

FALSIFICATION OF DOCUMENT, PERJURY
or FALSE TESTIMONY.
 The notary public before whom the
notarial will is acknowledged is
disqualified to be a witness to said
will. It would be absurd for him (as a
witness) to be acknowledging
something before himself (as notary
public). Cruz v.Villasor, et al., L-32213,
November 26, 1973
Article 825. A codicil is a supplement or
addition to a will, made after the execution of
a will and annexed to be taken as a part
thereof, by which any disposition made in the
original will is explained, added, or altered.

Forms of Codicils:

1. Notarial or Ordinary Codicils

2. Holographic Codicils
When made/Purpose: When the T wants to incorporate in his
will certain documents only by reference without need of
copying or attaching said documents to the will.

Requisites per Art. 827:

1. Document in existence at the time of the execution of
the will.

2. The will must clearly describe and identify the

document incorporated by reference.

3. The document incorporated by reference should be

identified by clear and satisfactory proof.

4. It must be signed by the testator and the witnesses on

each and every page thereof, except when in case of
voluminous books of account or inventories.
Modes of Revocation enumerated in Art. 830.

Article 830. No will shall be revoked except

in the following cases:

1. By implication of law;

2. By some will, codicil, or other writing

executed as provided in case of wills;
or
3. By burning, tearing, cancelling, or obliterating
the will with the intention of revoking it, by the
testator himself, or by some other person in his
presence, and by his express direction. If
burned, torn, cancelled, or obliterated by some
other person, without the express direction of
the testator, the will may still be established, and
the estate distributed in accordance therewith, if
its contents, and due execution, and the fact of
its unauthorized destruction, cancellation, or
obliteration are established according to the
Rules of Court.
1. By Implication of the Law

 Testator sells or donates the property after

making the will. [Art. 957]

 Heir (compulsory or voluntary) commits an act or

unworthiness. [Art. 1032]
3. Revocation by Overt Act

Requisites:
i. Overt act
ii. Completion, at least of the
subjective phase
iii. animus revocandi
2. By a revoking will or codicil

 A will may be revoked by a subsequent will or codicil. It

may either be notarial or holographic.

 The revoking will must be VALID.

 Revocation must be definite.

 However, conditional revocation is allowed, i.e. revocation

takes place when a condition is fulfilled. This is called
conditional revocation or dependent relative revocation.
BURNING

 The will need not be burned entirely.

 If burning of the will is accidental, there is no
revocation as there is no animus revocandi.
Remember the requisites for this act:
a) there be an overt act;
b) animus revocandi
Situations
TEARING

Document need not be torn into pieces.

Slight tearing is sufficient to constitute an overt act.
Subject phase (as to the T’s intention) must
completed.
Cutting is construed tearing.
Situation: T tears will. X is able to stop T from
tearing the will. Is there valid
revocation?
OBLITRATING or CANCELLING

Cancelling is made by putting lines across the

disposition. The disposition, however, can still be
read.

Obliterating renders the text no longer legible.

Article 833. A revocation of a will
based on a false cause or an
illegal cause is null and void.
Example: T made a 1st will giving P10 M to Juan. Then
he learned that Juan figured in a vehicular accident and
died. T then made a second will bequeathing the P10M
to Juana. A year later, T learned that Juan simply joined
the underground movement and was in reality still alive.
Who inherits, Juan or Juana?

Answer: Juan. The revocation was based on false cause

and is therefore void as provided by Art. 833.
Article 834. The recognition of an illegitimate
child does not lose its legal effect, even
though the will wherein it was made should
be revoked.
Definition:

To republish a will is to REESTABLISH the

same as it was either void or has been already
revoked.

How is republication done?

1. By re-execution (copying the same)
2. By codicil (implied republication)
Article 837. If after making the will, the
testator makes a second will revoking the
first, the revocation of the second will does
not revive the first will, which can be revived
only by another will or codicil.

Scenario: 1st will is made. T makes a 2nd will

revoking the 1st will. T makes a 3rd will
revoking the 2nd will. Is the 1st will
revived/reestablished?
Answer: No. The 1st will remains revoked.
The 1st will can only be given effect by way of:

1. Republication (re-execution and

by codicil) – made by the T

2. Revival – by operation of the law

1st Will 2nd Will 3rd Will

- revokes 1st will - revokes 2nd

Will

Q: Is the 1st Will required?

A: No. The 1st will was revoked immediately by

2nd Will. The Principle of Instanter applies. The
second will took effect immediately. While a will
takes effect mortis causa, the revocation takes
effect inter vivos.
1st Will 2nd Will 3rd Will

- inconsistent with - Revokes

1st Will 2nd Will

Q: Is the 1st will revived?

A: Yes. The second will impliedly revoked

the 1st will. 1st will is automatically revived.
 General Rule: Questions as to title of
property cannot be passed upon in testate or
intestate proceedings, except where one of
the parties prays merely for the inclusion or
exclusions from the inventory of the
property, in which case the probate court may
pass provisionally upon the questions without
prejudice to its final determination of the
question in a separate action. [Alvarez v, Espiritu,
August 14, 1965]
Uriarte v. Uriarte, et al., May 29, 1970

1. Motion for Intervention

2. Petition to Reopen Proceedings

 Article 839. The will shall be disallowed in any of the
following cases:

 1. If the formalities required by law have not been

complied with;

 2. If the testator was insane, or otherwise mentally

incapable of making a will, at the time of its execution;

 3. If it was executed through force or under duress, or

the influence of fear, or threats;

 4. It it was procured by undue and improper pressure

and influence on the part of the beneficiary or of some
other person;
 5. It the signature of the Testator was
procured by fraud;

 6. It the testator acted by mistake or did not

intend that the instrument he signed should
be his will at the time of affixing his signature
thereto.
 Institution refers to devisees and legatees

Requisites for a Valid Institution:

1. Will is extrinsically valid.

2. The institution is valid intrinsically.

3. The institution must be effective (no

predecease, no repudiation by the heir,
no incapacity of the heir)
 Institution of legatees and devisees

 Institution of classes (class institutions)

T can entrust to a third person the distribution of a

specific property of sums of money that he may leave
in general to specified classes.
 COMMIT TO MEMORY:

1. There is only institution of heirs in

testate succession.

2. Institution of heirs refer only to the

Free Portion.

3. Legacies and Devises must not

impair the legitimes.
Article 854. The preterition or omission of one,
some, or all the compulsory heirs in the direct
line, whether living at the time of the execution
of the will or born after the death of the testator,
shall annul the institution of heir, but the devises
and legacies shall be valid insofar as they are not
inofficious.

If the omitted compulsory heirs should die before

the testator, the institution shall be effectual,
without prejudice to the right of representation.
 1. TOTAL OMISSION in the inheritance

 2. of a COMPULSORY HEIR

 3. compulsory heir must be in the DIRECT

LINE

 Spouse cannot be preterited as he/she is not

in the direct line.
The institution of heirs is annulled. Annulment of
the institution is automatic; there is no need for
legal action. In brief, preterition renders the
institution of the legatees and devisees void.

Mario has three children Apple, Banana, and

Carrot. Mario made a will instituting Apple,
Banana, and Dean Lawiswis. Carrot was
completely omitted. How is the P30 M estate
divided?

A: Apple, Banana, and Carrot shall share P10

M each. Nothing for Dean Lawiswis.
Q: Can a spouse be preterited?
A: No. A spouse is not in the direct line.

Q: Can a brother or a sister be preterited?

A: No. Neither is in the direct line.

Q: Can an ascendant be preterited?

A: Yes, if the ascendant is the nearest relative
surviving.

Q: Can an adopted child be preterited?

A: Yes. An adopted child has the same rights as that of
the legitimate child.
Q: Can an illegitimate child be preterited?
A: Yes. He is a compulsory heir in the direct
line. The law does not distinguish
between legitimate children and
illegitimate children.
 BY MISTAKE OR  VOLUNTARY OR
INTENTIONAL
INADVERTENCE
 Considered defective
disinheritance
 Considered true
preterition  Institution of heirs is not
wholly void but only
insofar as it prejudices
 Total intestacy results the legitime of the
person disinherited
 Nullity of the institution
is only partial

Acain vs. IAC, GR 72706 Oct. 27, 1987

A voluntary heir who predeceases the T
transmits nothing to his heirs.

A voluntary heir cannot be represented.

 Article 875. Any disposition made upon the
condition that the heir shall make some
provision in his will in favor of the testator or
any other person shall be void.

 This is void as it makes the execution of a the

will a contractual act.

 Disposition captatoria vs. Reciprocal

Succession
Substitution is the designation
by the testator of a person or
persons to take the place of
the heir or heirs first
instituted. Rabadilla vs.
Villacarlos, June 29, 2000
1. Simple or common

2. Brief or compendious

3. Reciprocal

4. Fideicommissary

Mnemonic: So Brief a Rendevous my Friend

1. Simple Substitution – one takes the place of
another

in case of: PIR/RIP

i. Predecease
ii. Incapacity
iii. Repudiation
2. Brief or compendious

Brief – two or more take the place of one

Ex. Annie is the instituted heir.

Buknoy and Charie are her
substitutes.

Compendious – one takes the place of two

or more

Ex. Buknoy and Charie are the instituted heirs.

Annie is the substitute.
3. Reciprocal Substitution

Tatang instituted Alhambra to 4/5 of the

property and Buknoy to 1/5. If Alhambra
predeceases, is incapacitated, or
renounces, her share of 4/5 goes to
Buknoy. If Buknoy predeceases, is
incapacitated, or renounces, his share of
1/5 goes to Alhambra.
4. Fideicommissary Substitution

- where the first heir called the fiduciary

preserves and transmits to the second heir
called the fideicommissary the inheritance.
Requisites:

1. 1st heir (with right to usufruct)

2. 1s heir to preserve and transmit
property
3. 2nd heir (naked owner, with full right of
ownerhship upon transmission of
property to him; he inherits
from the T)
4. 1st and 2nd heir must be one degree
apart
Article 870. The disposition of the testator
declaring all or part of the estate inalienable
for more than twenty years is void.
1. Origin

2. Prepositus

3. Reservor/Reservista

4. Reservees/Reservatarios
Q: What happens if the reservista sells the
property, is the sale valid?

A: Yes, the sale is valid subject to a resolutory

condition. The buyer then acquires a revocable
title.

After the death of the reservista, the

reservatorios may rescind the contract because
the resolutory condition to which the reserva is
subject has already been fulfilled. Sumaya vs. IAC,
Sept. 2, 1991.
Q: Assuming that at the time of the reservista’s
death, there are no reservatarios, happens?

A: The property is released from reserva troncal

and becomes part of the estate of the reservista.

“If there are no reservatarios, the property

subject of reserva troncal is released and will be
adjudicated in accordance with the regular order
of succession.” Sumaya vs. IAC, Sept. 2, 1991
Q: Must there be annotation/registration?
A: Yes, if only to protect the rights of the
reservatarios against buyers in good faith
and for value.

Q: Can the reservista dispose of the property

in his will?
A: No for as long as the reservatarios are
living. The property is not his. The
reservatarios are the heirs mortis causa.
(See Tioco de Papa vs. Camacho, Sept. 24, 1986)
 Article 886. Legitime is that part of the
testator’s property which he cannot dispose
of because the law has reserved it for certain
heirs who are, therefore called compulsory
heirs.
 Article 887. The following are the
compulsory heirs:

1. Legitimate children and descendants, with

respect to their legitimate parents and
ascendants;

2. In default of the foregoing, legitimate

parents and ascendants, with respect to
their legitimate children;
 3. Widow or widower;

 4. Acknowledged natural children, and

natural children by legal fiction;

 5. Other illegitimate children referred to in

Article 287.

 xxx
NOTA BENE: An illegitimate
child gets half of what a
legitimate child gets.
 Article 919. The following shall be sufficient
cause for the disinheritance of children and
descendants, legitimate as well as illegitimate:

 1. When a child or descendant has been found

guilty of an attempt against the life of the
testator, his or her spouse, descendants, or
ascendants;

 2. When a child or descendant has accused the

testator of a crime for which the law prescribes
imprisonment for six years or more, if the
accusation has been found groundless;
 3. When a child or descendant has been
convicted of adultery or concubinage with the
spouse of the testator;

 4. When a child or descendant by fraud,

violence, intimidation, or undue influence causes
the testator to make a will or to change one
already made;

 5. A refusal without justifiable cause to support

the parent or ascendant who disinherits such
child or descendant;
 6. Maltreatment of the testator by word or
deed by the child or the descendant;

 7. When a child or descendant leads a

dishonorable, disgraceful life;

 8. Conviction of a crime which carries with it

the penalty of civil interdiction.
Article 920. The following shall be sufficient
causes for the disinheritance of parents and
ascendants, whether legitimate or
illegitimate;

1. When the parents have abandoned their children

or induced their daughters to live a corrupt or
immoral life, or attempted against their virtue;

2. When the parent or ascendant has been convicted

of an attempt against the life of the testator, his
or her spouse, descendants of ascendants;
3. When the parent or ascendant has
accused the testator or a crime for which
the law prescribes imprisonment for six
years or more, if the accusation has
been found to be false;

4. When the parent of ascendant has been

convicted of adultery or concubinage with
the spouse of the testator;
 5. When the parent or ascendant by fraud,
violence, intimidation, or undue influence
causes the testator to make a will or to
change one already made;

 6. The loss of parental authority for causes

specified in this code;

 7. The refusal to support children or

descendants without justifiable cause;
 8. An attempt by one of the parents against
the life of the other, unless there has been a
reconciliation between them.
Article 921. The following shall be sufficient
causes for disinheriting a spouse:

1. When the spouse has been convicted of an

attempt against the life of the testator, his or
her descendants, or ascendants;

2. When the spouse has accused the testator

of a crime for which the law prescribes
imprisonment for six years or more, and the
accusation has been found to be false;
 3. When the spouse by fraud, violence,
intimidation, or undue influence causes the
testator to make a will or to change one
already made;

 4. When the spouse has given cause for the

legal separation;

 5. When the spouse has given grounds for

the loss of parental authority;
 6. Unjustifiable refusal to support the children or
the other spouse.

 Notes:
 In case of reconciliation between the parties, the
offended person loses his right to disinherit. Any
disinheritance is rendered ineffectual by a
reconciliation.

 Disinheritance covers both the legitime and the free

portion. The person is completely disinherited.
 Article 950. If the estate should not be sufficient
to cover all legacies or devises, their payment
shall be made in the following order:

◦ 1. Remuneratory legacies and devises;

◦ 2. Legacies or devises declared by the testator to be
preferential;
3. Legacies for support;
4 Legacies for education;
5. Legacies or devises of a specific or determinate thing
which forms a part of the estate;
6. All others, pro rata.
Article 956. If the legatee or devisee cannot or
is unwilling to accept the legacy or devise, or
if the legacy or devise for any reason should
become ineffective, it shall be merged into
the mass of the estate, except in cases of
substitution and of the right of accretion.
 Example: T has a brother Jun but instead
instituted Ime, her best friend, as a legatee. Ime
has two children Ian and Zara. If Ime repudiates,
neither Ian nor Zara can represent her as there is
no right of representation as to voluntary heirs.

 As there is no substitute and accretion under the

given facts, as provided by Art. 956, the legacy
shall be merged into the mass of estate, and will
therefore go to Jun as the nearest intestate heir.
Accretion Defined:

Article 1015. Accretion is a right by virtue

of which, when two or more persons are
called to the same inheritance, devise or
legacy, the part assigned to the one who
renounces, or cannot receive his share, or
who died before the testator, is added or
incorporated to that of his co-heirs, co-
devisees, co-legatees.
 Representation Defined:

Article 970. Representation is a right

created by fiction of law, by virtue of which
the representative is raised to the place and
the degree of the person represented, and
acquires the rights which the latter would
have if he were living or if he could have
inherited.
There is no will.

Principle of Nearer Excludes the Farther

1. Car dies intestate leaving Ghia a daughter and a

niece Chiclet. Only Ghia inherits because the nearer
excludes the farther. Chiclet does not inherit.

2. Froilan dies without a will and leaves behind a

grandmother and a sister. Only the grandmother
inherits. Although Froilan and his sister are two
degrees apart just like Froilan and his grandmother,
the direct line is preferred over the collateral line.
NOTA BENE:

1. The right of representation takes place in

the direct descending line, but never in the
ascending line. [Art. 972, par. 1]

Lola has a child called Mother. Mother has

a child called Son. Mama passes away. Son
represents Mama and inherits from Lola.
2. In the collateral line, the right of
representation takes place only in favor of the
children of brothers or sisters, whether they be
of full or half blood. [Art. 972, par. 2]

Angie has brother named Jun and a sister named

Joy. Jun has a daughter named Juna. Joy has a
daughter named Angel. Angel has a daughter
named Angelina. Angie died intestate. Jun, Joy,
and Angel pass away, too. Only Juna and
Angelina survive. Who of them, if any inherit
from Angie?
 Answer: Only Juna inherits from Angie.
Under Art. 972, in the collateral line, it takes
place only in favor of children of brothers or
sisters, whether they be full or half-blood.
Representation in the collateral line is limited
then to nieces and nephews. Since Juna is a
child of a brother and is a niece of Angie, she
is the only one who inherits. Angelina does
not inherit as she is not a child or a brother
or sister. Her relation to Angie is that of a
grandniece. In gist, only Juna inherits.
Inheritance Per Stirpes

PER STIRPES inheritance by GROUP. All those in

the group inherit in equal shares. In Per Stirpes,
heirs inherit by way of representation.

Angie had a brother named Jun. Jun has two children Earl and
Juna. Angie’s sister Joy only has one child named Angel. Angie
passed away. Jun also passed away. Estate of Angie is P1M.
Divide. Jun’s children represent him. Juna’s and Earl’s share
partake that of their father’s share. Joy gets P500T and Juna and
Earl get the other P500T.
 Per Capita – Heirs inherit in their own right

In the problem given above, if Jun and Joy

also pass away, how will the estate be
divided?

A: Angel, Juna, and Earl will divide the P1M

among themselves. They inherit per capita.
Article 975. When children of one or more
brothers or sisters of the deceased survive,
they shall inherit from the latter by
representation, if they survive with their
uncles or aunts. But if they alone survive,
they shall inherit in equal portions.

1st part – Per Stirpes – by group

2nd part – Per capita – by their own right
 Right of Representation exists in the
following cases:

1. predecease (testate and intestate)

2. incapacity (testate and intestate)
3. disinheritance (this happens only in
the case of testate succession)

- In testate succession, the right of

representation covers only the legitime. [Art.
806 and 1035]
 Case;

Bagunu vs. Piedad, Dec. 8, 2000

 The right of representation in the collateral line
does not extend to the 5th civil degree.

Dela Rosa vs. Damian, 480 SCRA 334 (2006)

 Right of representation does not extend to
grand nephews and nieces, only to nieces and
nephews (children of brothers and sisters)
 Under the Art. 189, FC

Adoption shall have the following effects:

1. For civil purposes – adopted shall be

deemed to be the legitimate child of
the adopter or adopting parent;

2. Parental authority of the natural parents

is lost and transferred to the adopting
parents;

3. Adopted shall remain an intestate heir

of his parents and other blood relatives.
Article 190. Legal or intestate succession to estate of
the adopted shall be governed by the following rules:

1. Legitimate and illegitimate children and

descendants of the surviving spouse of the adopted
shall inherit from the adopted, in accordance with the
ordinary rules of legal or intestate succession;

2. When the parents, legitimate or illegitimate or the

legitimate ascendants of the of the adopted concur
with the adopters, they shall divide the entire estate
in equal shares, one-half to be inherited by the
spouse or the illegitimate children of the adopted and
the other half, by the adopters;
 3. When the surviving spouse or the illegitimate
children of the adopted concur with the adopters,
they shall divide the entire estate in equal shares,
one-half to be inherited by the spouse or the
illegitimate children of the adopted and the other
half, by the adopters.

 4. When the adopters concur with the

illegitimate children and the surviving spouse of
the adopted, they shall divide the entire estate in
equal shares, one third to be inherited by the
illegitimate children, one third by the surviving
spouse, one third by the adopters.
 5. When only the adopters survive, they shall
inherit the entire estate.

 6. When only blood collateral blood relatives

of the adopted survive, then the ordinary
rules of legal or intestate succession.
Ex. Airos is an adopted child. Her parent by
nature is Richard. She is adopted by Grace
and Noel. Airos passes away leaving behind
Richard, Noel, and Grace. Divide the estate
the estate of P2M.

A: Richard gets P1M. Noel and Grace share

the P1M or P500T each.
Ex. Danz is an adopted child leaving behind
her three children and her husband. The
estate is P4M. Divide the estate.

All children get P1M each. The surviving

spouse gets the share equal to the share of
each child. Hence, husband gets P1M.
Article 977. Heirs who repudiate their share
may not be represented.

NB: A renouncer may represent [Art. 976] but

may not be represented [Art. 977].
 Rationale of the Iron Bar Rule:

The illegitimate child is disgracefuly looked

upon by the legitimate family; the legitimate
family is in turn, hated by the illegitimate child;
the latter considers the privileged condition of
the former, and the resources of which it is
thereby deprived; the former, in turn sees in the
illegitimate child nothing but the product of sin,
palpable evidence of a blemish broken in life; the
law does no more that recognize this truth by
avoiding further grounds of resentment. ( 7
Manresa 10 cited in Grey v. Fabie)
 Article 970. Representation is a right created
by fiction of law, by virtue of which the
representative is raised to the place and the
degree of the person represented, and
acquires the rights which the latter would
have if he were living or he could have
inherited.
Re: Adopted Child

An adopted child cannot represent and cannot be

represented.
 Article 992. An illegitimate child has no right
to inherit ab intestato from the legitimate
children and relatives of his father or mother;
nor shall such children or relatives inherit in
the same manner from the illegitimate child.

 See Diagram on the board.

 The share of the person who repudiates shall
accrue to his co-heirs. Art. 1018 NCC

 Among the compulsory heirs the right of accretion

shall take place only when the free portion is left to
two or more of them, or to any one of them and to
a stranger. [Art. 1021, par. 1]

 Accretion shall take lace among devisees, legatees,

and usufructuaries under the same conditions
established for heirs. [Aft. 1023, NCC]
Q: Melle and Tris are married. They have
three children, Agnes, Coco, and Frances.
During the lifetime of Tris, Agnes renounced
her inheritance from her father. Upon Tris’
death, will the right of accretion apply?

A: No, the right of accretion will not apply.

Agnes renounced her inheritance during the
lifetime of her father. Renunciation of future
inheritance is thus void. Renunciation must
be done after the death of the Tris.
1. Parents who have abandoned their children or
induced their daughters to lead a corrupt or
immoral life, or attempted against their virtue;

2. Any person who has been convicted of an

attempt against the life of the testator, his or
her spouse, descendants, ascendants;

3. Any person who has accused the testator of a

crime for which the law prescribes
imprisonment for six years or more, if the
accusation has been found to be groundless;
4. Any heir of full age who, having
knowledge of the violent death of the
testator, should fail to report it to an officer
of the law within a month, unless the
authorities have already taken action; this
prohibition shall not apply to cases wherein,
according to law, there is no obligation to
make an accusation.
5. Any person convicted of adultery or concubinage
with the spouse of the testator.

6. Any person who by fraud, violence, Intimidation, or

undue influence should cause the testator to make
a will or to change one already made;

7. Any person who by the same means prevents

another from making a will, or from one revoking
on already made, or who supplants, conceals, or
alters the latter’s will;

7. Any person who falsifies or forges a supposed will

of the decedent. [Art. 1032, NCC]
 Acceptance and repudiation retroact to the date
of death of the decedent.

 Acceptance may be express (in writing; private of

public) or tacit (resulting from acts that imply
acceptance).

 Repudiationof an inheritance shall be made in a

public or authentic instrument, or by petition
presented to the court having jurisdiction over
the testamentary or intestate proceedings. [Art.
1051, NCC]
 Definition:

Computing or adding certain values to the

estate and charging the same to the legitime.
 Duty to collate:

Every compulsory heir, who succeeds with

other compulsory heirs, must bring into the
mass of the estate any property or right
which he ma have received form the
decedent, during the lifetime of the latter, by
way of donation or any other gratuitous title,
in order that it may be computed in the
determination of the legitime of each heir,
and in the account of the partition.
Not subject to collation
1. expenses of education (elementary and secondary),
support, medical needs, customary gifts (Art. 1067)

2. for professional, vocation, re career (Art.1067)

3. wedding gifts except when they exceed 1/10 of the

sum disposable by will (Art. 1070)

4. donation to the spouse of the child (Art. 1066)

5. parents are not obliged to bring to collation in

the inheritance of their ascendants any property which
may have been donated by the latter to their children (Art.
1065)
 If there is only one heir, there is no need for a
judicial declaration of heirship. He may
execute an affidavit entitled Self-Adjudication
and have it registered with the Registry of
Property.

 Requisites of Extrajudicial Settlement:

◦ 1. no will
◦ 2. no debt
◦ 3. heirs of legal age
◦ 4. public instrument
MARAMI PONG SALAMAT!!!

myragallardo@yahoo.com