WIlls and Succession 2

WILLS AND SUCCESSION
ATTY. RONEY JONE P. GANDEZA

Professor of Law
University of the Cordilleras
Gov. Pack Road, Baguio City 2600
2
SUCCESSION
Mode of acquisition (of
ownership) 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. (Art. 774,
CC)
3
ASPECTS OF SUCCESSION
• mode of acquisition of ownership.
• involves a transmission of property,

rights, and obligations.
• opens through death.
• takes place by will or by operation

of law (Art. 774)
4
MODES OF ACQUISITION
OF OWNERSHIP
• Donation
• Prescription
• Intellectual Creation
• Succession
• Tradition
• Occupation
• Law (Art. 712, CC)
D PISTOL
5
IMPORTANCE OF DISTINCTIONS
INTER VIVOS AND MORTIS CAUSA
Distinctions are important to determine -

• Effectivity of the donation
• Transfer of ownership
• Revocability of the donation
• Predecease of the donee
• Formalities required by law
6
EFFECTIVITY OF DONATION
INTER VIVOS: takes effect during the
lifetime of the donor.
MORTIS CAUSA: takes effect upon the
death of the donor.
TRANSFER OF OWNERSHIP
INTER VIVOS: Donee becomes owner
of property before the death of the
donor.
MORTIS CAUSA: Donee becomes
owner of property only upon the
death of the donor.
7
PREDECEASE OF DONEE
INTER VIVOS: valid even if the donor
survives the donee.
MORTIS CAUSA: void if the donor
survives the donee.
REVOCABILITY OF DONATION
INTER VIVOS: essentially irrevocable.
MORTIS CAUSA: always revocable.
FORMALITIES
INTE VIVOS: Arts. 748, 749 Civil Code.
MORTIS CAUSA: Formalities of wills.
8
PROBLEM:
Abe is to be operated on for a cancerous
tumor. Before the operation, he delivers an
envelope to his friend, Rey. The envelope
contains a letter saying, “I realize my days are
numbered, and I want to give you this check
for P1 million in the event of my death from
this operation.” Rey cashes the check.
The surgeon performs the operation and
removes the tumor. Abe recovers fully.
Several months later, Abe dies from a heart
attack that is totally unrelated to the
operation. Upon Abe’s death, the
administrator of his estate immediately
commences an action to recover from Rey
the P1 million. Will the suit prosper?
9
ANSWER:
Yes. The donation to Rey is a donation
mortis causa, not inter vivos. It is a mortis
causa donation because Abe intended it
to take effect upon his death, i.e. “in the
event of my death from this operation.”
That Abe died from a cause unrelated to
the operation does not detract from the
fact that Abe’s death is the operative
cause that would have conveyed
ownership of the P1 million given to Rey.
Since the donation was not expressed in
accordance with the formalities of wills,
the donation is void.
10
QUESTION:
Article 777 of the Civil Code
specifically provides that death is
the operative act that opens the
estate of a deceased person to
succession.
Is the rule absolute?
ANSWER:
No. There are two exceptions:
• presumed death of a person.
• “judicial death” of marriage.
11
PRESUMPTIVE
DEATH
ORDINARY ABSENCE:
• If absentee persons disappear under
normal conditions (there being no
danger of death), they are presumed
dead for the opening of their
succession at the end of TEN YEARS.
• If they disappear at age 75, they are
presumed dead at the end of FIVE
YEARS.
EXTRAORDINARY ABSENCE:
• This is absence coupled with

great probability of death.
• An absence of FOUR YEARS is

sufficient for a person to be
presumed dead.
PRESUMPTION OF DEATH DUE
TO EXTRAORDINARY ABSENCE
• A person on board a missing vessel or a
missing airplane, who has not been heard
of for FOUR YEARS since the loss of the
vessel or airplane.
• A person in the Armed Forces who has
taken part in war, and has been missing
for FOUR YEARS.
• A person who has been in danger of death
under other circumstances and his
existence has not been known for FOUR
YEARS.
QUESTION:
Suppose a person disappears with great
probability of death, when should he be
presumed dead?
ANSWER:
The person is presumed to have died at the
time of the disappearance (or at the time of
the calamity, not at the end of four years)
The presumption of death will arise that
death had occurred four years before.
15
NOTE:
• While succession really took place

four years before or on the day of
the disappearance, actual division
will only be at the end of four years.
• From the beginning of the four
years, the heir shall be considered
the owner and possessor of the
property, and not only from the end
thereof.
16
PROBLEM:
Wife files a petition seeking a judicial
declaration of presumptive death of her
husband who has been missing and
unheard of since 2005.
Will the petition prosper?
ANSWER:
No, because the presumption is already
established by law.
A judicial declaration of presumptive
death is required only for purposes of
remarriage under Article 41 of the
Family Code.
17
QUESTION:
Suppose a missing person was 76
years old when he disappeared in
2005, when shall he be presumed
dead for the opening of his
succession?
a. 2009
b. 2010
c. 2012
d. 2015
18
QUESTION:
What is freak succession?
ANSWER:
Freak succession is succession without
the triggering effect of death.
Article 50 of the Family Code gives

two instances which require the
payment or delivery of presumptive
legitimes before the actual death of
the person who is obliged to pay it.
19
DIFFERENT KINDS OF HEIRS
• COMPULSORY HEIRS
- primary compulsory heirs

- secondary compulsory heirs
• VOLUNTARY HEIRS
- also known as instituted heirs.
• INTESTATE HEIRS
20
DISTINCTIONS BETWEEN
HEIRS LEGATEES AND
DEVISEES
21
DEVISEES/LEGATEES are always called
to succeed to individual items of
property.
HEIRS are called to succeed to an
indeterminate, fractional or aliquot
portion of the decedent’s estate.
DEVISEES/LEGATEES succeed by
particular title.
HEIRS succeed by universal title.
DEVISEES/LEGATEES are always called to
succeed by will.
HEIRS are called to succeed either by will
or by operation of law.
22
QUESTION:
What is the importance of the distinction
between heirs on the one hand and
legatees/devisees on the other?
ANSWER:
GENERAL RULE: There is no difference in
their capacity, effect and solemnities.
EXCEPTION: Distinction is important in:

• PRETERITION
• IMPERFECT DISINHERITANCE.
23
WHAT IS
PRETERITION?
PRETERITION (PRETERMISSION) is
the omission in the testator’s will
of one, some or all of the
compulsory heirs in the direct
line whether living at the time of
the execution of the will or born
after the death of the testator. (Art.
854, CC)
REQUISITES OF
PRETERITION
FIRST: There is a total omission in the
inheritance.
SECOND: The omission must be of a

compulsory heir.
THIRD: The compulsory heir omitted

must be in the direct line.
25
FIRST REQUISITE: TOTAL
OMISSION
IN THE INHERITANCE
THERE IS PRETERITION even if a
compulsory heir is named in the will,
but he is not given any share, the heir
not having been expressly
disinherited.
REASON: Preterition involves an

omission in the inheritance, not in the
will.
26
NO PRETERITION if a compulsory heir is
given a share in the inheritance no
matter how small.
REASON: The heir is entitled only to the
completion of his legitime. (Art. 906, CC)
NO PRETERITION even if a compulsory
heir is not given anything in the will, but
he had already received a donation
from the testator.
REASON: A donation to a compulsory
heir is considered as an advance of the
legitime. (Art. 1073 CC)
27
NO PRETERITION if a compulsory heir
is given a legacy, even if less than his
legitime.
REASON: Remedy of the aggrieved
heir is to demand completion of his
legitime.
NO PRETERITION if part of the estate has
been given to a compulsory heir, whether
indicated in the will or not.
28
SECOND REQUISITE: OMITTED
HEIR MUST BE A COMPULSORY
HEIR
THERE IS NO PRETERITION of
voluntary heirs or instituted heirs.
NEITHER IS THERE PRETERITION

of intestate heirs, unless they are
compulsory heirs.
29
THIRD REQUISITE: COMPULSORY
HEIR OMITTED IS IN THE DIRECT
LINE
• NO PRETERITION of a surviving spouse.
• Although a compulsory heir, the spouse

is not an heir in the direct line.
30
EFFECTS PRETERITION
31
FIRST EFFECT
The institution of heirs is

automatically annulled without
need of court action.
INTESTACY RESULTS.
PROBLEM:
T has three legitimate children, A,
B and C.
T made a will instituting his
children, A and B, and a friend, F,
as his sole heirs.
C was omitted in the inheritance.
Estate is 90,000.
How should the distribution be
made?
33
90,000
A B C F
Instituted Instituted Preterited Instituted
ANSWER:
The preterition of C annuls the

institution of A, B and F as T’s
heirs. Intestacy results.
A, B and C will each get 30,000.
The friend, F, gets nothing.
35
90,000
A B C F
Instituted Instituted Preterited Instituted
30,000 30,000 30,000 0
PROBLEM:
T executed a will containing only

one provision whereby he
instituted his sister, S, as his only
heir.
Surviving T when he died were his
parents, F and M, and his sister, S.
How shall T’s estate of 50,000 be

distributed upon his death?
37
M
T S
50,000 Instituted
38
ANSWER:
The omission of F and M constitutes

preterition which will result in the
annulment of the institution of S.
Consequently, the entire will is void;

estate is to be distributed as in
intestacy.
39
SECOND EFFECT
Although the institution of heirs is

annulled, the legacies and devises
shall remain valid insofar as they
are not inofficious.
In other words, they are not
voided, but they are merely
reducible if the legitime has been
impaired.
40
PROBLEM:
In T’s will, he gives F, a friend, a
legacy of 10,000; institutes his son,
A, as heir; and deliberately omits his
other son, B.
If the estate is 100,000, how should
the estate be distributed on T’s
death?
41
T 100,000
A B F
Instituted Preterited Legatee
10,000
42
ANSWER:
The preterition of B renders the
institution of heirs void.
The legacy is effective for the
legitime has not been impaired.
Therefore, the remaining 90,000 will
be divided intestate as follows:
A = 45,000
B = 45,000
F = 10,000
43
PROBLEM:
In T’s will, he gives his friend, X, a
legacy of 60,000; institutes A and
another friend, Y, as heirs; and
deliberately omits B.
If the estate is 100,000, how should

the estate be distributed on T’s
death?
44
T 100,000
A B X Y
Instituted Preterited Legatee Instituted
60,000
45
ANSWER:
The preterition of B renders void the
institution of A and Y.
The legacy to X, though valid, is reducible
because it impairs the legitime of A and B.
A = 25,000
B = 25,000
X = 50,000
Y=0
46
QUESTION:
What is ineffective disinheritance?
ANSWER:
1. Without specification of the cause.
(no cause stated)
2. Cause denied by the heir and not
proved by the instituted heir.
(false cause)
3. Cause not given by law.
(illegal cause)
47
QUESTION:
What are the legal effects of ineffective,
imperfect or invalid disinheritance?
ANSWER:
FIRST EFFECT: The institution of heirs is
annulled insofar as it may prejudice the
person disinherited, or insofar as the
legitime of said heir is impaired.
SECOND EFFECT: The devises, legacies and

other testamentary dispositions shall be
valid to such extent as it will not impair the
legitime. 48
PROBLEM:
Testator T has three legitimate
children: A, B, and C.
In his will, T disinherited A and instituted
B and C as his heirs. The disinheritance
of A was invalid because it was for a
cause not provided by the law.
If the hereditary estate is 90,000,
how shall the distribution be made?
49
T 90,000
A B C
Ineffectively Instituted Instituted
Disinherited
50
ANSWER:
The institution of B and C remains
valid, but their shares are to be
reduced to give A his legitime.
Had there been preterition here, each
would receive 30,000 each. Therefore:
A - 15,000
B - 37,500 (15,000 plus 22,500)
C - 37,500 (15,000 plus 22,500)
51
PROBLEM:
Estate is 100,000. T gave a legacy of

70,000 to a friend, X. Y, a legitimate
child, was ineffectively disinherited.
How much should X and Y get?
52
T
Y X
53
ANSWER:
X (legatee) gets only 50,000. The

legacy to him is reducible by 20,000
so as not to impair Y’s legitime.
Y (disinherited heir) gets his

legitime of 50,000.
54
QUESTION:
In his will, testator T:
a) disinherits his daughter, A, because “she
married a good for nothing gigolo despite
my repeated warnings that she shouldn’t
marry him.”
b) omits his wife, W.
c) leaves a legacy of 10,000 to his mistress,
M, and 5,000 to his driver, E. and
e) institutes his son, B, as his sole heir.
Distribute T’s estate of 100,000.
55
T W
A B M E
56
ANSWER:
The disinheritance of A was ineffective
because the ground relied upon by T
does not constitute a valid ground for
disinheritance under Article 919 of the
Civil Code. Hence, the testamentary
provisions in the will shall be annulled
but only to the extent that A’s legitime
was impaired.
57
The total omission of W does not
constitute preterition because she is not
a compulsory heir in the direct line. Only
compulsory heirs in the direct line may
be the subject of preterition. Not having
been preterited, she is entitled to her
legitime.
The legacy in favor of M is void under

Article 1028 of the Civil Code for being in
consideration of her adulterous relations
with T. She is, therefore, disqualified to
receive the legacy of 10,000.
58
The legacy of 5,000 in favor of E is not
inofficious because it does not exceed the
free portion. Hence, E shall be entitled to
receive it.
The institution of B, which applies only to
the free portion, shall be respected.
In sum the estate of T will be distributed
as follows:
A 25,000
B 45,000
W 25,000
E 5,000
M 0
T W
A B M E
60
QUESTION:
If all other facts in the previous

problem are the same, except that the
disinheritance of A was for a valid
cause, how shall T’s estate be
distributed?
61
T W
A B M E
62
ANSWER:
A 0
B 50,000 (legitime)
20,000 (by institution)
W 25,000 (legitime)
E 5,000 (legacy)
M 0
63
EFFECTS OF A VALID
DISINHERITANCE
• Heir is deprived of his legitime.

• Children of the disinherited child
can represent the latter, but the right
of representation extends only to
the legitime. (Art. 923, CC)
• There is no right to represent a

disinherited spouse or disinherited
parent.
64
FORMALITIES OF A WILL
65
WHAT IS A WILL?
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 (Art.

783, CC)
QUESTION:
What are the ambiguities in a will?
ANSWER:
1. Intrinsic (Latent) ambiguity.

2. Extrinsic (Patent) ambiguity.
67
INTRINSIC AMBIGUITY
INTRINSIC AMBIGUITY is ambiguity

which does not appear on the face
of the will. It is is discovered only
by extrinsic evidence.
EXAMPLE: “I institute as heir my

friend, Rod.” Testator has two
friends named Rod.
CASES OF INTRINSIC AMBIGUITY
• when there is an imperfect description
of the heir, legatee or devisee.
• when there is an imperfect description

of the gift being given (“a house”)
• when only one recipient is

designated, but it turns out that there
are two or more who fit the
description. (Art. 789, CC)
EXTRINSIC AMBIGUITY
• appears on the face of the will.

• by examining the provision
itself, it is evident that it is not
clear.
EXAMPLE: “I institute some of

my brothers and some of my
sisters as my heirs.”
HOW MAY AN AMBIGUITY
IN A WILL BE CURED?
No difference in curing intrinsic or

extrinsic ambiguities.
FIRST, examine the will itself.

SECOND, admit extrinsic evidence.
Testator’s oral declarations are
excluded.
71
PROBLEM:
T instituted “a brother-in-law” as one of his
heirs. When T died, it was discovered that he
has three brothers-in-law: A, B and C.
In making the will, T orally stated that he was

referring to brother-in-law, A, but among T’s
files was found a memorandum that he
wanted brother-in-law, B, to be his heir.
C, the third brother-in-law, states that he was
the one referred to.
What kind of ambiguity is this?
72
ANSWER:
This is intrinsic ambiguity; the

doubt arises because of
circumstances outside the will.
73
QUESTION:
Is T’s oral declaration extrinsic evidence?
ANSWER:
Yes, but it is inadmissible to cure the defect.
74
QUESTION:
Who among the brothers-in-law should
inherit from T?
ANSWER:
B should inherit in view of the written

memorandum which is admissible
extrinsic evidence.
75
AFTER-ACQUIRED PROPERTIES
GENERAL RULE: Property acquired

between the execution of the will and
the death of the testator are not
included among the properties
disposed of.
EXCEPTION: Unless it appears in the
will that such was the intention of the
testator. (Art. 793, CC)
76
PROBLEM:
T made a will in 1998 giving to his friend, F,
all his cars. In 1998, T had three cars, but in
2005, when T died, he had at the time of his
death eight cars.
How many cars will F get?
ANSWER:
Three only.
The rule under Article 793 of the Civil Code
is applicable only to legacies and devises.
As to institution of heirs, Article 781 of the
Civil Code applies.
77
VALIDITY OF WILLS
IN POINT OF TIME
EXTRINSIC VALIDITY Determined by

the law in force at the time the will is
made. (Art. 795, CC)
INTRINSIC VALIDITY Determined by

the law in force at the time of
decedent’s death.
REQUISITES IN THE
EXECUTION OF A WILL
1. Testator be at least 18 years of age.

2. Testator be of sound mind.
79
CAN THERE BE A
VALID ORAL WILL?
No. “Every will must be in writing

and executed in a language or dialect
known to the testator.” (Art. 804, CC)
KINDS OF WILLS
• A will may either be notarial or

holographic depending upon the
formalities or solemnities which
accompanied their execution.
• Regardless of its kind, the

making of a will is ambulatory.
WHAT IS A NOTARIAL WILL?
A notarial will is one which is

executed in accordance with the
formalities prescribed by Arts. 804
to 808 of the Civil Code.
ESSENTIAL REQUIREMENTS
OF A NOTARIAL WILL
1. The will must be in writing.
2. The will must be executed in a language or
dialect known to the testator.
3. The will must be subscribed (signed) at the
end thereof by the testator’s name written by
another person in his presence, and by his
express direction.
4. The will must be attested and subscribed by
three or more credible witnesses in the
presence of the testator and of one another.
5. The testator or the person requested by
him to write his name and the instrumental
witnesses of the will shall also sign and
every page thereof, except the last, on the
left margin.
6. All the pages of the will must be numbered
correlatively in letters placed on the upper
part of each page.
7. The will must contain an attestation clause.
8. The will must be acknowledged before a
notary public by the testator and the
witnesses.
84
TESTATOR IS DEAF OR DEAF-MUTE
9. He must personally read the will, if

able to do so, otherwise, he shall
designate two persons to read it and
communicate to him, in some
practicable manner the contents
thereof.
85
TESTATOR IS BLIND
9. The will shall be read to him twice;

once by one of the subscribing
witnesses, and again, by the
notary public before whom the will
is acknowledged.
86
TRUE OR FALSE: The probate of a
notarial will shall contain a statement
that the language used therein was
known by the testator.
FALSE. There is no law which requires

that the will must expressly state the
language used in the will and that such
language was known by the testator.
What the law requires is that the
language was known by the testator.
(Suroza v. Honrado, 110 SCRA 381)
87
TRUE OR FALSE: The notary public shall be
present when the testator executes his will.
FALSE. There is no requirement under the law that
the notary public be present at the execution of the
will; his presence is required only for the
acknowledgment.
TRUE OR FALSE: The notary public is required to
read the will, or to know the contents thereof,
before he notarizes the same.
FALSE. The notary public is not required, not even
allowed, to read the will or to know the contents
thereof, unless the testator permits him to do so.
The only instance when the notarty public is
required to read the will is in the case
contemplated by Article 808 of the Civil Code --
regarding a blind testator.
TRUE OR FALSE: A person who is a
beneficiary in a will is competent to act
as an instrumental witness in the
execution of a will?
TRUE.
Yes, but his institution as an heir, or the
legacy or devise given to him, shall be
rendered void, unless there are three
other competent witnesses. (Art. 823, CC)
In other words, he is disqualified from
inheriting from the testator. (Art. 1027, CC)
89
MEANING OF “SIGNED IN THE
PRESENCE OF”
“SIGNED IN THE PRESENCE OF” does not

mean that the testator and the
instrumental witnesses ACTUALLY saw
each other sign.
TRUE TEST: Whether they might have seen

each other sign, had they chosen to do so,
considering their mental and physical
condition and position with respect to
each other at the moment of inscription of
each signature. (Nera v. Rimando, 18 Phil. 450)
90
WHAT IS MEANT BY
“ATTESTATION” OF A WILL?
It is the act of witnessing the execution of a

will by the testator in order to see and take
note mentally that the requirements of the
law for the execution of a will and that the
signature of the testator exists as a fact.
PURPOSE: To render available proof that

there has been compliance with the
statutory requirements for the execution of
a will.
91
ESSENTIAL FACTS TO BE STATED
IN THE ATTESTATION CLAUSE
• Number of pages upon which the will is
written.
• That the testator signed the will and every page
thereof, or caused some other person to write his
name, under his express direction, in the presence
of the instrumental witnesses.
• That the instrumental witnesses witnessed
and signed the will and all the pages thereof
in the presence of the testator and of one
another. (Art. 805, CC)
92
FORMALITIES OF
HOLOGRAPHIC WILL
1. written by the hand of the testator

himself.
2. dated by the hand of the testator
himself.
3. signed by the hand of the testator
himself.
4. executed in a language or dialect
known to the testator.
93
PROBLEM:
T died in 2005, leaving behind a
holographic will which is entirely
written, dated and signed in her own
handwriting.
However, the will contains insertions
and cancellations which are not
authenticated by her signature. For
this reason, the probate of T’s will is
opposed by her relatives who stood
to inherit intestate from her.
May T’s will be probated?
94
ANSWER:
Yes, the will as ORIGINALLY
WRITTEN may be probated. The
insertions and alterations were void
since they were not authenticated
by the full signature of T pursuant
to Article 814 of the Civil Code.
The original will remains valid
because a holographic will is not
invalidated by the unauthenticated
insertions or alterations. (Ajero v.
Court of Appeals, 236 SCRA 468)
95
CONFLICTS RULES IN THE
EXECUTION OF WILLS
TESTATOR IS FILIPINO
• WILL IS EXECUTED IN THE PHILS.

- Phil. Law
• WILL IS EXECUTED ABROAD
- law of the place

- Phil. law (Arts. 815-816, CC)
96
TESTATOR IS AN ALIEN
• WILL IS EXECUTED IN THE PHILS.
- Phil. law (Art. 17, CC)

- national law (Art. 817, CC)
• WILL IS EXECUTED ABROAD

- lex loci (Art. 17, CC)
- national law (Art. 816, CC)
- law of domicile
- Phil. law
97
JOINT WILL
• A single testamentary instrument which
contains the wills of two or more persons
jointly executed by them, either for their
reciprocal benefit or for the benefit of a third
person.
• Whether in the Philippines or abroad, Filipino
citizens are prohibited from executing joint
wills. This is a matter of public policy. (Arts. 818,
819, CC)
• REASON: It may lead to the commission of

parricide.
98
QUESTION:
Is a joint will executed by aliens abroad which is
valid according to their national law and the law
of the place of execution, valid in the Phils.?
ANSWER:
By clear implication under Article 819 of the
Civil Code, the prohibition does not apply to
foreigners, only to Filipinos.
The first paragraph of Article 17 of the Civil
Code applies insofar as alien testators are
concerned.
99
SUBSTITUTION OF HEIRS
SUBSTITUTION OF HEIRS is the

appointment of another heir so
that he may enter into the
inheritance in default of the heir
originally instituted. (Art. 857, CC)
100
KINDS OF
SUBSTITUTION OF HEIRS
101
1. SIMPLE OR COMMON: Takes place when
the testator designates one or more persons to
substitute the heir or heirs instituted. (Art. 859)
2. BRIEF: Two or more persons are
designated by the testator to substitute for
one heir.
COMPENDIOUS : One person substitutes for
two or more heirs.
3. RECIPROCAL : Takes place when two or
more persons are not only instituted as heirs,
but are also reciprocally substituted.
102
4. FIDEICOMMISSARY
Takes place when the FIRST heir
(fiduciary) instituted is entrusted with the
obligation to preserve and to transmit to a
SECOND heir the whole or part of the
inheritance.
Provided the substitution does not go
beyond one degree from the heir originally
instituted.
Provided further that the 1st and 2nd heirs
are living at the time of the death of the
testator. (Art. 863, CC)
103
ESSENTIAL REQUISITES OF
FIDEICOMMISSARY SUBSTITUTION
• There must be a first heir called primarily

to the enjoyment of the estate.
• There must be a second heir.

• An obligation clearly imposed upon the
first heir to preserve and transmit to the
second heir the whole or a part of the
estate.
• The first and second heirs must be only
one degree apart.
• Both heirs must be alive (or at least
conceived) at the time of the testator’s
death (Art. 863, CC)
• Must be made in an express manner (Art.

867, CC)
• Must not burden the legitime.
105
FIRST REQUISITE
FIRST HEIR
• must be capacitated; must accept the

inheritance.
• Not a mere trustee, for while he also

administers, he carries out not
another’s wishes, but his own,
insofar as the management of the
property is concerned.
106
• He is almost like a usufructuary, with
the right to enjoy the property.
• Like a usufructuary, he cannot

alienate the property itself.
• Like a usufructuary, he is bound

to make an inventory to know
what properties he must
preserve and transmit. NO BOND
is required.
107
SECOND REQUISITE
PRESERVE AND TRANSMIT
• Obligation must be given clearly and

expressly.
• If mere advice or suggestion, no
fideicommisary substitution.
EXAMPLE: T made X his heir so that X

would enjoy the property as long as X
lived, but after his death, the same should
go to Y. No fideicommisary substitution.
108
THIRD REQUISITE
SECOND HEIR
• ownership is consolidated to
him upon its transmission.
• the second heir inherits not from
the first heir but from the testator.
• must be capacitated to
succeed not the first heir but
the testator.
109
FOURTH REQUISITE
ONE DEGREE APART
The first and second heirs must

be one degree apart.
QUESTION:
What is “one degree apart” in

fideicommissary substitution?
110
ANSWER:
FIRST VIEW: “One degree apart” means one
transfer, one transmission, one substitution,
the purpose being to prevent successive
entailments regardless of relationship.
(View of JBL Reyes, Puno, Caguioa and Paredes Jr.)
SECOND VIEW: “One degree” means one

generation. This means that the substitute
may be the parent or child of the first heir;
thus, no other person can be the
fideicommissary.
(View of Tolentino, Paras, Padilla)
111
FIFTH REQUISITE
BOTH HEIRS MUST BE ALIVE
FIRST HEIR
PREDECEASES TESTATOR
Disposition shall be considered merely as
a simple substitution.
In which case, the second heir shall

receive the property.
112
SECOND HEIR
PREDECEASES TESTATOR
First heir shall receive the property free
from encumbrances.
BOTH HEIRS
PREDECEASE TESTATOR
Intestacy results, and legal heirs of the

testator shall receive the property.
113
PROBLEM:
T died in 1990 with a will. In his will,

he devised a house and lot to his
friend, A, as first heir and to B, A’s
son, as second heir. B died in 1995
survived by his two children E and F.
A himself died in 2000 survived by
his two children C and D.
114
In the settlement of A’s estate, E and F
filed a motion to exclude the house
and lot originating from T on the
ground that they are the exclusive
owners of the property.
C and D opposed the motion on the
ground that B, the second heir,
predeceased A, and that therefore, the
fideicommissary substitution did not
produce any effect as far as B, the
second heir, is concerned.
Should the opposition be sustained?
115
T died 1990
(1st heir)
A + 2000
(2nd heir)
+ 1995 B C D
E F
HOUSE AND LOT
116
ANSWER:
No. B, the second heir, acquires a right
to the succession from the time of the
testator’s death, even though he, B,
should die before the fiduciary, A.
B inherited from T as second heir when
the latter died in 1990. When B died in
1995, he was able to transmit his right
to his own heirs, E and F.
When A (first heir) died in 2000, the
right of E and F over the property
became absolute.
117
TESTAMENTARY
CONDITIONS AND DISPOSITIONS
118
QUESTION:
Under the law, the testator has no right to
impose any condition upon the legitime, and
that should he do so, the same shall be
considered as not imposed.
Is this rule absolute?

ANSWER:
No. Testator can validly prohibit the partition of
the legitime for a period not exceeding 20
years.
This is the only prohibition or condition that
can affect or burden the legitime. (Arts. 494, 1083)
119
IMPOSSIBLE AND
ILLEGAL CONDITIONS
EFFECT: Impossible or illegal

conditions are deemed not imposed.
(Art. 873, CC)
NOTE: The rule is different in

conditional obligations: The
condition and the obligation are
void. (Art. 1183, CC)
120
CONDITION NOT TO MARRY
ABSOLUTE CONDITION:
not to marry
not to re-marry
RELATIVE CONDITION:
not to marry
not to re-marry
121
ABSOLUTE PROHIBITION TO
CONTRACT A FIRST MARRIAGE
• Condition is void.
• Considered as not imposed.
• Contrary to public policy.
ABSOLUTE PROHIBITION TO
CONTRACT A RE-MARRIAGE 123
GENERAL RULE: Condition is void

for being contrary to public policy.
EXCEPTION: The condition is valid
when imposed:
• on the widow by the deceased
spouse.
• on the widow by the ascendants
or descendants of the deceased
spouse.
RELATIVE PROHIBITION
TO CONTRACT MARRIAGE 124
Condition is perfectly valid.
EXAMPLE:
Not to marry a particular person.

Not to marry for a particular time.
No to marry for a number of years.
PROBLEM:
H instituted his wife as sole heir (no

other compulsory heirs existed) on
condition that when she becomes a
widow, she must never remarry. Two
years after H died, the widow
remarried.
Is she entitled to the inheritance?
125
ANSWER:
The condition is valid insofar as the

free portion is concerned, since the
absolute prohibition to remarry was
imposed by the deceased spouse.
The condition is void insofar as the
legitime is concerned for no condition
can be imposed on the legitime. (see Art.
874, CC)
126
PROBLEM:
T institutes his friend, F, as heir

on condition that he should not
enter any gambling casino here or
abroad for one whole year after
T’s death.
Is F entitled to receive the inheritance

upon T‘s death?
127
ANSWER:
Yes, but he must give a security to
guarantee he would not enter any
gambling casino for one whole year
upon T’s death.
The security is called “caucion
muciana.”
If he enters any casino during the
prohibited period, he should return
whatever he may have received,
together with its fruits and interest.
(Art. 879, CC)
128
WHAT IS MODAL INSTITUTION?
Modal institution occurs when any or

all of the following are stated:
• The object of the institution.
• The application of the property left

by the testator.
• The charge imposed by the testator.
129
DISTINGUISH BETWEEN MODAL
AND CONDITIONAL INSTITUTION
MODAL INSTITUTION The inheritance is

immediately demandable, provided that
security is given. (Art. 882, CC)
INSTITUTION WITH A SUSPENSIVE

CONDITION Even if the heir wants to give
security, he will not be allowed to do so, and
will not be allowed to get the property in the
meantime; instead, the property will be
placed under administration. (Art. 880, CC)
130
When the condition, however, is
RESOLUTORY or is NEGATIVE, the
property can be taken upon the
giving of a security. (Art. 879, CC)
From this point of view, there is

hardly any difference between modal
and conditional institution.
131
PROBLEM:
T institutes his friend, F, as heir “on
condition that A marries B.”
Modal or conditional?
ANSWER:
This is a suspensive condition; the
inheritance is not demandable until
fulfilment of the condition.
132
PROBLEM:
T institutes his friend, F, as heir on
condition that “A does not smoke
for a period of one year.”
Conditional or modal?
ANSWER:
This is a negative condition;
inheritance is demandable right
away, provided security is given.
133
PROBLEM:
T’s will contains the following testamentary
provision: “I institute A as heir. He will use the
money for the establishment of a medical
school.”
Modal or conditional?
ANSWER:
This is a modal institution; inheritance is
demandable right away, provided security is
given.
134
INSTITUTION OF HEIRS
An act by virtue of which the

testator designates or names in his
will the person or persons who are
to succeed him in his property and
transmissible rights and obligations.
(Art. 840, CC)
IMPORTANT PRINCIPLES
INSTITUTION OF HEIRS
PRINCIPLE OF EQUALITY
Heirs instituted without designation

of shares shall inherit in equal
parts. (Art. 846, CC)
136
PRINCIPLE OF INDIVIDUALITY
GENERAL RULE:
When the testator institutes some heirs
individually and others collectively as
when he says, “I designate as my heirs A
and B, and the children of C,” those
collectively designated shall be
considered as individually instituted.
EXCEPTION:
Unless it clearly appears that the
intention of the testator was otherwise.
(Art. 847, CC)
137
PRINCIPLE OF SIMULTANEITY
When the testator calls to the

succession a person and his
children, they are all deemed to have
been instituted simultaneously and
not successively. (Art. 849, CC)
138
PROBLEM:
In T’s will, he instituted his

legitimate children, A and B, the
“children of his deceased son, C,”
and a friend, M, as heirs without
designation of their shares. C’s
children are D, E and F.
Estate is 180,000. How shall the

distribution be made?
139
T 180,000
A B C + M
Instituted Instituted Instituted
D E F
Instituted Instituted Instituted
140
ANSWER:
Apply Articles 846 and 847, Civil Code.
ART. 846: Heirs instituted without designation

of shares shall inherit in equal parts.
ART. 847: When the testator institutes some

heirs individually and others collectively as
when he says, “I designate as my heirs A and B
and the children of C,” those collectively
designated shall be considered as individually
instituted, unless it clearly appears that the
intention of the testator was otherwise.
141
STEP 1
Satisfy the legitimes of A, B, D, E and F.
Estate is 180,000: Legitime portion is

one-half, or 90,000.
As to the legitimes, A and B will inherit

in their own right; while D, E, and F will
inherit by right of representation.
142
DISTRIBUTION OF THE LEGITIME
A 30,000 (own right)

B 30,000 (own right)
D 10,000 (right of rep.)
E 10,000 (right of rep.)
F 10,000 (right of rep.)
90,000
143
STEP 2
The free portion of 90,000 shall

be divided equally among the
instituted heirs, A, B, D, E, F and
M, in accordance with Arts. 846
and 847.
144
DISTRIBUTION OF THE FREE PORTION
A 15,000
B 15,000
D 15,000
E 15,000
F 15,000
M 15,000
90,000
145
THEREFORE:
A = 30,000 as compulsory heir
15,000 as voluntary heir
B = 30,000 as compulsory heir
D = 10,000 by right of rep.
E = same as D
F = same as D
M = 15,000 as voluntary heir
146
QUESTION:
Explain the first paragraph of Art. 856 of
the Civil Code regarding the predecease
of a voluntary heir.
ANSWER:
A voluntary heir who dies before the
testator transmits nothing to his heirs.
REASON:
A voluntary heir cannot be represented.
147
SECOND PARAGRAPH OF ART. 856, CC
A COMPULSORY HEIR who:
1. dies before the testator
2. is incapacitated to succeed
3. renounces the inheritance
shall transmit no right to his own heirs,

except in the cases expressly provided
in the Civil Code.
148
REVOCATION OF WILLS
1. by implication of law
2. by some will, codicil or other writing
3. by an overt act
149
REVOCATION BY AN OVERT ACT
OVERT ACT OF BURNING

Sufficient revocation even if small
part of the will is burned even
though the entire writing itself is left
untouched.
150
PROBLEM:
Testator placed his will on a stove so

that it would be burned later when a
fire would be lighted in the stove.
The will was later removed by

another person from the stove before
the stove was lighted.
Is the will deemed revoked?
151
ANSWER:
No. While there was intent to revoke,

there was no overt act of burning.
NOTE:
If the person who retrieved the will was
an heir or legatee or devisee, he will not
inherit because he is incapacitated by
reason of unworthiness under Article
1032, CC.
152
PROBLEM:
What about if the testator crumpled his will?
ANSWER:
No revocation.
It is not one of the modes recognized by law.
NOTE: Tearing of signature is sufficient

revocation because the signature goes to the
very heart of the will.
153
DOCTRINE OF DEPENDENT
RELATIVE REVOCATION
If the testator revokes his will with the

present intention of making a new one and
the new will is not made, or if made, fails to
take effect for any reason whatsoever, it will
be presumed that the testator prefers the old
will to intestacy.
The old will can still be admitted to probate.
154
Stated otherwise, the revocation is
subject to a SUSPENSIVE CONDITION:
That the testator will make a new will

and that such will shall take effect.
If such condition is not fulfilled, then

there is no revocation.
155
FORMULA IN THE COMPUTATION
OF NET HEREDITARY ESTATE
Gross Estate
- Debts/Charges
+ Collationable Donations
= Net Hereditary Estate
PROBLEM:
T died leaving an estate worth
100,000 and debts amounting to
30,000.
During his lifetime, T had given a
donation of P50,000 to A, his
legitimate son. When T died, two
legitimate sons, A and B, survived
him.
How much is the legitime of A and B?
157
T 100,000 (debts: 30,000)
A B
DONATION
50,000
158
COMPUTATION:
Gross Estate 100,000

Debts - 30,000
70,000
Collate +50,000
120,000 (NHE)
159
ANSWER:
Since the net hereditary estate is
120,000, the legitime of the legitimate
children is 60,000.
Since there are two children, each will
receive 30,000 as his legitime.
The legitime of A is only 30,000. The
50,000 donation to him should first be
charged to the legitime.
160
The excess of 20,000 (50,000 minus
30,000) should be taken from the free
portion which is 60,000 (now 40,000).
The net free portion of 40,000 (60,000

minus 20,000) goes to the instituted
heirs.
Out of the actual net assets of 70,000

(because the debts have been paid), B
gets 30,000; A gets 0; free portion of
40,000 equals 70,000.
161
QUESTION:
Should donations inter vivos to
children be collated?
YES.
Should donations inter vivos to

strangers be collated?
YES.
162
PROBLEM:
A gave B, his legitimate child, a

donation inter vivos of 50,000 and to
C, a friend, a donation inter vivos of
100,000. When A died, his remaining
estate was worth only 100,000.
If A was survived by his only child,

B, should the donation to C be
reduced?
163
SOLUTION:
100,000 (actual estate)
50,000 (donation to B)
100,000 (donation to C)
250,000 (NHE)
LEGITIME = 125,000
FREE PORTION = 125,000
The donation to C (100,000) does not
exceed the free portion of 125,000.
Hence, there is no need to reduce it.
164
LEGITIME
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. (Art. 886)
PURPOSE: LEGITIME is to protect the
children and the surviving spouse from the
unjustified anger or thoughtlessness of the
other spouse.
If there are no compulsory heirs, there can be
no legitime.
165
COMPULSORY HEIRS
In determining who are

compulsory heirs, it is important
to know whether the testator is -
LEGITIMATE
ILLEGITIMATE
166
LEGITIMATE TESTATOR
1. Legitimate children and their

legitimate descendants.
2. Legitime parents and their legitimate
ascendants.
3. Surviving spouse.
4. Illegitimate children and their
descendants, whether legitimate or
illegitimate.
ILLEGITIMATE TESTATOR

legitimate descendants
2. Illegitimate parents (NO OTHER
ASCENDANTS)
3. Surviving spouse
illegitimate
CLASSES OF COMPULSORY HEIRS
PRIMARY COMPULSORY HEIRS

They get their legitime even in the
presence of other primary compulsory
heirs and even in the presence of
secondary compulsory heirs.
They are those mentioned in Nos. 1, 3, 4.
169
SECONDARY COMPULSORY HEIRS
Parents, legitimate or illegitimate, are
secondary compulsory heirs.
IF TESTATOR IS LEGITIMATE, parents are

excluded by No. 1 only.
IF TESTATOR IS ILLEGITIMATE, parents are

are excluded by Nos. 1 and 4.
170
TABLE OF LEGITIMES
171
LEGITIMATE CHILDREN
1/2 of the estate, in equal portions,
whether they survive alone or with
concurring compulsory heirs.
LEGITIMATE PARENTS ALONE

1/2 of the estate, whether they survive
alone or with other compulsory heirs.
172
SURVIVING SPOUSE ALONE
1/2 of the estate.
1/3 if marriage is in articulo mortis
and deceased spouse dies within
three months after marriage.
1/2 if despite marriage in articulo
mortis, deceased and surviving
spouse have been living as husband
and wife for more than five years (Art.
900, CC)
173
ILLEGITIMATE CHILDREN ALONE
1/2 of the estate, to be divided equally
among themselves.
ILLEGITIMATE PARENTS ALONE

1/2 of the estate.
174
ONE LEGITIMATE CHILD
SURVIVING SPOUSE
Legitimate child, 1/2 of the estate.

Surviving spouse,1/4 of the estate.
1-3 (FIRST KIND)
175
LEGITIMATE CHILDREN
SURVIVING SPOUSE
Legitimate children, 1/2 of the estate.

Surviving spouse, same as one LC.
1-3 (SECOND KIND)
176
LEGITIMATE CHILDREN
ILLEGITIMATE CHILDREN

Illegitimate children, 1/2 of one LC.
1-4 COMBINATION
177
ONE LEGITIMATE CHILD
SURVIVING SPOUSE
Legitimate child, 1/2 of the estate.

Surviving spouse, 1/4 of the estate.
1-3-4 (FIRST KIND)

178
LEGITIMATE CHILDREN
SURVIVING SPOUSE

Surviving spouse, share of one LC.
1-3-4 (SECOND KIND)

179
LEGITIMATE PARENTS
SURVIVING SPOUSE
Legitimate parents, 1/2 of the estate.

Illegitimate children, 1/4 of the estate.
2-3
180
LEGITIMATE PARENTS

2-4
181
LEGITIMATE PARENTS
SURVIVING SPOUSE

Surviving Spouse, 1/8 of the estate.
2-3-4
182
SURVIVING SPOUSE

3-4
183
ILLEGITIMATE PARENTS
CHILDREN OF ANY CLASS
Illegitimate parents are excluded.
184
ILLEGITIMATE PARENTS
SURVIVING SPOUSE
Illegitimate parents, 1/4of the estate.

185
PROBLEM:
T dies leaving an estate of 100,000.

The surviving relatives are: A, a
legitimate child, and W, the wife. What
are the corresponding legitimes of A and
W?
186
100,000 T W
187
ANSWER:
A 50,000
W 25,000
FP 25,000
188
PROBLEM
T died with four legitimate

children, A, B, C and D and a
surviving spouse, W. T left an
estate valued at 100,000.
How much is the legitime of each

of the heirs?
189
100,000 T W
A B C D
190
ANSWER
A 12,500
B 12,500
C 12,500
D 12,500
W 12,500
FP 37,500
TOTAL 100,000
191
PROBLEM
T is survived by his legitimate

children, A and B, and his
illegitimate children, C and D. The
net value of his estate is 200,000.
What is the legitime of each of the

survivors?
192
200,000 T
A B C D
193
ANSWER
A 50,000
B 50,000
C 25,000
D 25,000
FP 50,000
TOTAL 200,000
194
PROBLEM
All the facts in the previous problem

are the same, except that T had left
four (instead of two) illegitimate
children, C, D, E, and F.
What is the legitime of each of the

survivors?
195
200,000 T
A B C D E F
196
ANSWER
A 50,000
B 50,000
C 25,000
D 25,000
E 25,000
F 25,000
FP 0_____
TOTAL 200,000
197
PROBLEM
T is survived by his wife, W, his
legitimate child, A, and his
illegitimate child, B. Net value of
the estate is 100,000. What is the
legitime of each survivor?
198
100,000 T W
A B
199
ANSWER
A 50,000
W 25,000
B 25,000
FP 0
200
PROBLEM
Suppose T died with two

illegitimate children, B and C
(instead of only one illegitimate
child, B), what is the legitime of the
survivors?
201
100,000 T W
A B C
202
ANSWER
A 50,000
W 25,000
B 12,500
C 12,500
FP 0
203
PROBLEM:
T has three legitimate children; A, B,
and C; a wife, W; a father, F; and two
illegitimate children, D and E. A is a
“special child,” and T wants to leave
to him as much of his estate as he can
legally do under the law.
State the aliquot parts of the estate

that T can leave all the foregoing
relatives. Assume a net estate of
120,000 and that all the above-named
relatives survived T.
204
F
120,000 T W
A B C D E
205
ANSWER
F 0
A 20,000
B 20,000
C 20,000
W 20,000
D 10,000
E 10,000
FP 20,000
TOTAL 120,000
206
DIVISION IN THE
ASCENDING LINE
A and B are the paternal

grandparents, while F is the father;
C and D are the maternal
grandparents, while M is the
mother. T is the testator, leaving a
hereditary estate of 100,000.
207
A B C D
F M
T
100,000
208
EXPLANATION:
If all (except T) survive, the

grandparents get nothing. 50,000
is the legitime of F and M
together, so each gets 25,000.
The remaining 50,000 is the free
portion.
209
If M predeceased T, F gets 50,000
as legitime. The remaining 50,000
is the free portion. C and D cannot
represent M, because there is no
right of representation in the
ascending line.
The rule of proximity also applies.
210
If F and M predeceased T, and the
others are still alive, the paternal
line gets half of the legitime and the
maternal line gets the other half.
The paternal line gets 25,000 and
this should be divided equally
between A and B.
What has been said of the paternal

line is also true of the maternal line.
211
PROBLEM:

parents, F and M, and his wife, W.
The net value of the estate is
100,000. What is the legitime of the
survivors?
212
F M
T W
100,000
213
ANSWER
F 25,000
M 25,000
W 25,000
FP 25,000
214
QUESTION

parents, F and M, and his
illegitimate children, A and B. The
net value of the estate is 100,000.
What is the legitime of the
survivors?
215
F M
100,000 T
A B
216
ANSWER
F 25,000
M 25,000
A 12,500
B 12,500
FP 25,000
217
PROBLEM:

parents, F and M, his wife, W, and
his illegitimate children, A and B.
survivors?
218
F M
72,000 T W
A B
219
ANSWER
F 18,000
M 18,000
W 9,000
A 9,000
B 9,000
FP 9,000
220
PROBLEM
T is survived by his wife, W, and

his illegitimate children, A and B.
survivors?
221
90,000 T W
A B
222
ANSWER
W 30,000
A 15,000
B 15,000
FP 30,000
223
PROBLEM
T, an illegitimate person, is
survived by his parents by nature, F
and M, and his widow, W. The net
estate is 100,000. What is the
legitime of the survivors?
224
F M
100,000 T W
Illegitimate
225
ANSWER
F 12,500
M 12,500
W 25,000
FP 50,000
226
PROBLEM
T, an illegitimate person, is
survived by his parents by nature,
F and M, and his illegitimate
children, A and B. The net estate is
survivors?
227
F M
100,000 T Illegitimate
A B
228
ANSWER
F 0
M 0
A 25,000
B 25,000
FP 50,000
229
RESERVA TRONCAL
•A system of reservation of property by

virtue of which an ascendant inherits from
his descendant property, which property
the descendant in turn had acquired by
gratuitous title from another ascendant, or
brother or sister.
• ascendant is obliged to reserve such
property for the benefit of relatives who are
within the third degree and who belong to
the line from which said property came (Art.
891, CC)
QUESTION:
Why is reserva troncal regarded as an
extraordinary reservation of property?
ANSWER:
Instead of the property passing to the
compulsory heirs of the ascendant-reservista,
it passes automatically and by operation of law
to the relatives of the descendant-propositus
who are within the third degree and who
belong to the line from whence it came.
231
PERSONAL ELEMENTS OF
RESERVA TRONCAL
ORIGIN: The ascendant, brother or sister

from whom the descendant-propositus
has acquired the property by gratuitous
title.
PROPOSITUS: The descendant from whom

the ascendant (reservista) in turn had
acquired the property by operation of law.
232
RESERVISTA: The ascendant of the
propositus who is obliged to reserve the
property.
RESERVATARIOS: The relatives of the

propositus who are within the third
degree and who belong to the line from
which the property came and for whose
benefit the reservation is constituted.
233
RESERVATARIOS
ORIGIN RESERVISTA
GRATUITOUS OPERATION
TITLE OF LAW
PROPOSITUS
234
ELEMENTS OF RESERVA TRONCAL
FIRST: The property is inherited by

operation of law (legal succession or
legitime) by an ascendant from his
descendant upon the death of the latter.
SECOND: The property had been previously

acquired by gratuitous title (such as
donation inter vivos, remission, succession)
by the descendant from another ascendant
or from a brother or sister.
235
THIRD: The descendant has died without any
legitimate issue in the direct descending line
who could inherit from him.
FOURTH: There are relatives of the

descendant-propositus who are within the
third degree and who belong to the line
from which the property came. (This is a
condition subsequent. If there be no such
relatives, no reserva troncal.
236
EXAMPLE:
F and M are the parents of C.
F died leaving a will, one provision of

which gave a parcel of land to C.
One year later, C died without any

descendant, and without any will. The
mother, M, then inherited the land.
237
The land is subject to reserva troncal.
M owns it only till she dies, and at

her death, it should not go to
anybody whom she desires, but is
reserved by law in favor of the
relatives of F, the line from which
the property came.
F’s relatives must be within the

third degree, to be counted from C.
238
FIRST ELEMENT: ORIGIN
• must be an ascendant or brother or

sister.
• must be a legitimate relative because
reserva troncal exists only in the
legitimate family.
• The transmission from the origin to
the propositus must be by gratuitous
title.
239
SECOND ELEMENT PROPOSITUS
• must be a legitimate descendant (or

legitimate half-sibling) of the origin.
• the propositus is the descendant (brother

or sister) whose death gives rise to the
reserva, and from whom the third degree
is counted.
• While the propositus is still alive, there is

no reserva yet, therefore, he is the
absolute owner of the property with full
power to alienate or encumber.
240
THIRD ELEMENT: RESERVISTA
• The ascendant who inherits from the

propositus by operation of law. It is he
who has the obligation to reserve.
• No reserva if he inherits it as free

portion by virtue of a will.
• He is the full owner of the property,

subject to a resolutory condition.
241
• If at reservista’s death, there should
still exist relatives within the third
degree of the propositus, and
belonging to the line from which the
property came, his ownership is
terminated.
• the property is not part any more of
his estate. Instead, ownership is
transferred to the third degree
relatives of the propositus.
242
QUESTION:
Can the reservista sell, mortgage, dispose

or otherwise encumber the property?
ANSWER:
Yes, but subject to the reserva.
The reservatarios can get the real property
from the transferee as soon as ownership
is transferred to such reservatarios,
without prejudice to our Land Registration
Laws.
243
FOURTH ELEMENT: RESERVATARIOS
• Relatives within the 3rd degree (from

the propositus) who will become the
full owners of the property the
moment the reservista dies.
• They inherit the property from the
propositus
• Must be a legitimate relative of the
origin and the propositus.
244
PROBLEM:
H died leaving an estate of 100,000. His
widow, W, gave birth to a child four
months after H’s death, but the child
died five hours after birth. Two days
after the child’s death, W also died
because she had suffered from difficult
childbirth. The estate of H is now being
claimed by his parents, A and B, and by
C and D, the parents of W. Who is
entitled to H’s estate of 100,000?
245
A B C D
+ H W +
100,000
CHILD +
5 hrs. after birth
246
ANSWER:
If the child had an intra-uterine life of
not less than seven months, it inherited
from the father. Consequently, the
estate of 100,000 shall be divided
equally between the child and his
mother as legal heirs. Upon the death
of the child, its share of 50,000 goes by
operation of law to the mother, W,
which is subject to reserva troncal.
247
A B C D
100,000
H W
50,000
50,000
operation
CHILD operation
of law
of law
248
Under Article 891 of the Civil Code,
the reserva is in favor of relatives
belonging to the paternal line and
who are within three degrees from
the child. The parents of H (A and B)
are entitled to the reserved portion
which is 50,000 as they are two
degrees related from the child. The
50,000 inherited by W from H will go
to her parents, C and D, as her legal
heirs.
249
However, if the child had an intra-
uterine life of less than seven
months, half of the estate of H, or
50,000, will be inherited by W, the
widow, while the other half, or 50,000,
will be inherited by the parents of H.
Upon the death of W, her estate of
50,000 will be inherited by her own
parents, C and D.
250
PROBLEM:
Before his death in 1990, A donated to
his grandson, F, a child of his
predeceased son D, a house and lot
worth 600,000.
In 1995, F died with a will instituting his

mother, E, as his sole heir. His estate
consisted entirely of the house and lot
which he had received from A.
In 1998, E also died but without a will.

251
The house and lot is now claimed by:
(a) B, widow of A and grandmother of F
(b) C, son of A and B and uncle of F

(c) G, sister and only living relative of E
To whom shall the property be adjudicated?
252
A B
C D E G
DONATION
F WILL
253
ANSWER:
Half to C; other half to G.

F, the propositus, died with a will
instituting his mother, E, as sole heir.
Consequently, only one-half of the
property passed to her by operation
of law since that is her legitime. Only
this portion of the property has
become reservable.
254
B is not entitled to the reservable
portion of the property.
Although a relative of the propositus in
the second degree, B is merely related
by affinity to the ascendant (A) from
whom the property came. She does
not, therefore, belong to the “line from
which the property came.”
A reservatario must not only be related
by consanguinity to the propositus
within the third degree, but he must
also be related by consanguinity to the
ascendant from whom the property
came.
255
C is entitled to the reservable portion of
the property since he is not only a third
degree relative by consanguinity of the
propositus, but he also belongs to the
line from which the property came.
G, on the other hand, is entitled to the

part of the property which is not
reservable in accordance with the
ordinary rules of intestate succession.
256
PROBLEM:
D, only daughter of B, married E,

only son of A, in 1981.
A son, X, was born to the couple in
1982. E died in a vehicular accident
in 1984.
In 1986, D married F, only son of C.
A son, Y, was born to the couple in
1988. D also died in a vehicular
accident in 1992.
257
In 1995, X, who was very sickly,
donated to his half-brother, Y, a
parcel of land. X died the following
year.
In 1998 Y also died. He died

intestate and without any surviving
issue. The land which he had
acquired from X was inherited by
his father, F, who was his only legal
heir.
F died intestate in 2002, survived
only by his father, C.
258
The land which had originated
from X is now being claimed by A
and B on the ground that it is
reservable. C claims that the
property belongs to him and him
alone as his inheritance from his
son, F.
Who among the grandfathers is
entitled to the property?
259
A B C
+ + +
E D F
+ +
X DONATION
Y INTESTATE
260
ANSWER:
B alone is entitled to the property.
The property is reservable.
FIRST, the property had been acquired

by operation of law by an ascendant (F)
from his descendant (Y) upon the death
of the latter.
SECOND, the property had been

previously acquired by gratuitous title by
the descendant (Y) from a brother (X).
261
THIRD, descendant (Y) died without any
legitimate issue who can inherit from him.
In order to determine who can qualify as a
reservatario, two tests should be applied:
First, is the claimant a relative of the

descendant-propositus within the third
degree?
Second, does he belong to the line from
which the reservable property came?
Applying the tests, it is clear that:
A cannot qualify because he is not even a
relative of the descendant-propositus, Y.
262
A B C
+ + +
E D F
+ +
X DONATION
Y INTESTATE
263
Neither can C qualify
because he does not
belong to the line from
which the property came.
He is not related by
consanguinity to X.
264
A B C
+ + +
E D F
+ +
X DONATION
Y INTESTATE
265
Only B can qualify. He is not only a
relative of Y within the third degree;
he also belongs to the line from
which the reservable property came.
266
A B C
+ + +
E D F
+ +
X DONATION
Y INTESTATE
267
THIRD DEGREE RELATIVES
OF PROPOSITUS
• Parents of the propositus (1st degree)
• Grandparents, full and half-brothers,

full and half-sisters of the propositus
(2nd degree)
• Uncles and aunts by blood; great

grandparents; nephews and nieces of
the propositus (3rd degree)
268
PROBLEM:
Among the properties in the estate of D, who
died intestate and without issue, were a farm,
which came from his father, B, and a house,
which he acquired from A, B’s father.
In the partition of D’s inheritance, the house
was allotted to B and the farm to C, D’s mother.
Upon the death of B and C who were
simultaneously killed in a car accident, the
farm was claimed by A and E, a child of B and
C born after D’s death, while the house was
claimed also by A and E and F, the latter being
C’s child by a prior marriage.
Who owns the farm and house?
269
A
E
HOUSE HOUSE
B + C +
FARM
D + A
E F
FARM
270
ANSWER:
HOUSE: This property was acquired by D
from his grandfather, A, and was transmitted
by D to B, his father. There is no reserva
troncal because there is no change of line.
Hence, E alone is entitled to inherit the house.
FARM: The farm originally came from B, the

father of D. and from D it went to his mother,
C. There is a change of line from paternal to
maternal line. The farm is reservable property
and must be acquired by relatives within the
third degree of the propositus (D) and
belonging to the paternal line.
271
WHO IS ENTITLED TO THE FARM?
There are two theories:

In the “delayed intestacy doctrine,”
the preferences in the rules of
intestate succession must be
observed.
Under this theory, A alone will inherit
the farm because in intestacy, the
direct line excludes the collateral line.
Hence, A, the grandfather of P, should
exclude E, the brother of D.
272
The second theory is to the effect that
relatives in the same degree inherit in
equal shares without distinction as to
the direct or collateral line. Under this
theory, which allows no distinction as
to direct or collateral line, A and E will
inherit the farm in equal shares since
they are both second degree relatives
of D, both belonging to the paternal
line.
In any case, F does not inherit since
he is not a reservatario.
273
INTESTATE SUCCESSION
274
DEFINITION:
INTESTATE SUCCESSION is
succession prescribed by law which
takes place when the expressed will
of the decedent has not been set
down in a will.
275
BASIC PRINCIPLES OF
276
1. CONCURRENCE
Even if there is an order of intestate

succession, compulsory heirs are
never excluded from the inheritance.
All compulsory heirs are intestate

heirs, but not all intestate heirs are
compulsory heirs.
2. PROXIMITY
Relatives of the decedent nearest in

degree exclude the more remote ones,
without prejudice to the right of
representation when proper.
By virtue of representation the farther

becomes just as near.
PROBLEM:
P, deceased, is survived by A, a
legitimate half-sister on his father’s
side, and an aunt, B, his mother’s
sister. He left as his only property
that which was inherited from his
mother. He died intestate.
Who shall succeed to P’s estate?
279
ANSWER:
A shall succeed to P’s estate. Both A and B
are collateral relatives of the decedent, P,
therefore, the rule of proximity is
applicable. Relatives nearest in degree
exclude the more remote ones. A is a
second degree relative of P, while B is a
third degree relative.
Besides, under the general order of

intestate succession, brothers and sisters,
whether of the full or half-blood, are always
preferred to uncles or aunts.
280
3. PREFERENCE OF LINES
Relatives in the direct descending

line exclude those who are in the
direct ascending and collateral lines.
Relatives in the direct ascending line
exclude those who are in the
collateral line.
4. RIGHT OF REPRESENTATION
There is no right of representation in the

ascending line, but there is right of
representation in the descending line.
(Art. 972, par. 1, CC)
In the collateral line, the right of

representation is given only to children
of brothers and sisters. (Art. 972, par. 2, CC)
MEANING OF REPRESENTATION
• Right by fiction of law.
• The representative is raised to the

place and the degree of the person
represented.
• Acquires the rights which the

person represented would have if
he were living or if he could have
inherited. (Art. 970, CC)
283
PROPRIETY OF REPRESENTATION
• PREDECEASE (testate and intestate).
• INCAPACITY (testate and intestate).
• DISINHERITANCE (testate only).
284
SCOPE OF REPRESENTATION
In intestate succession, the right of

representation covers all that the
person being represented would
have inherited.
In testamentary succession, the right
of representation covers only the
legitime. (Arts. 865-1035, CC)
There is no right to represent a
voluntary heir.
285
PROBLEM:
T has three legitimate children: A, B

and C. The eldest, A, has a legitimate
child, D. In T’s will, he gave each child
30,000; but A predeceased T. Divide
T’s estate of 90,000.
286
T 90,000
+ A B C
D
287
ANSWER:
D gets 15,000 which is A’s legitime.
B and C will each get 37,5000. D is not

allowed to get the extra 15,000 because in
this respect, his father, A, was a voluntary
heir.
HAD T DIED INTESTATE, D gets 30,000
corresponding to the share of A which
represents all that A would have inherited
if he was not incapacitated.
288
5. GRANDCHILDREN
GRANCHILDREN ALWAYS inherit by

right of representation.
This is true whether they concur with

children of the decedent or not.
EXCEPTIONS:
Art. 43 and Art. 992, Civil Code

289
6. GRANCHILDREN INHERIT
IN THEIR OWN RIGHT
Whenever all the children of the

decedent repudiate the inheritance,
the grandchildren inherit in their
own right, for here representation
is not proper. (Art. 977, CC)
P 90,000
A B C
D E F G H
45,000 22,500 22,500 0 0 291
NOTE:
Whenever there is succession by
representation, the division of the
estate shall be made per stirpes.
REASON: The representative or

representatives shall not inherit more
than what the person they represent
ould inherit, if he were living our could
inherit. (Art. 974, Civil Code)
292
TESTATE
T 90,000
+ A B C
Instituted Instituted
15,000 15,000
+ 22,500 + 22,500
D
15,000 293
INTESTATE
P 60,000
+ A B C
20,000 20,000
D
20,000
294
TESTATE
T 90,000
+ A B C
22,500 22,500
+ 22,500 + 22,500
D
0 295
INTESTATE
P 90,000
+ A B C
45,000 45,000
D
0 296
TESTATE
T 100,000
+ A B C
25,000 25,000
+18,750 + 18,750
D
12,500 297
INTESTATE
P 100,000
+ A B C
40,000 40,000
D
20,000 298
7. SUCCESSIONAL RIGHTS OF
NEPHEWS AND NIECES
Nephews and nieces inherit either by right of
representation or in their own right. (Art. 975)
• Nephews and nieces inherit by right of
representation when they concur with
aunts and uncles provided that
representation is proper, and that their
own parents should not have repudiated.
• They inherit in their own right whenever

they do not concur with aunts and uncles.
QUESTION:
B and C are A’s brothers; X, the

legitimate child of B; Y and Z, the
legitimate children of C. Estate is
90,000. A is the decedent, If C
predeceases A, divide the estate.
300
A B C +
90,000
X Y Z
45,000 22,500 22,500
301
A B + C +
90,000
X Y Z
30,000 30,000 30,000
302
A B + C +
90,000
X Y Z
0 45,000 45,000
303
8. THE IRON CURTAIN RULE
lllegitimate children of legitimates

cannot represent because of the
barrier.
But illegitimates and legitimates

of illegitimates can represent.
(Arts. 902 and 992, CC)
A
+ B C +
D E F G
Art. 992 Art. 902
305
PROBLEM:
P, the illegitimate son of F and M, died
intestate, without any descendant or
ascendant. His valuable estate is being
claimed by A, the legitimate son of F
from a previous marriage, and B, the
legitimate son of M from a previous
marriage.
Who is entitled to inherit from P?
306
+ +
F M
A P + B
307
ANSWER:
Neither A nor B is entitled to inherit ab
intestato from P. Both are legitimate
relatives of P’s parents and therefore
they fall under the prohibition prescribed
by Article 992 of the Civil Code. (Manuel v.
Ferrer, 242 SCRA 477)
308
PROBLEM:
P, an illegitimate person, died intestate

survived by B, the legitimate brother of
his deceased mother A, and D, his
mother’s legitimate granddaughter who
is a legitimate child of C who
predeceased A.
May B or C or both inherit from A?
309
A B
+
P C
D
310
ANSWER:
B cannot succeed because uncles
have no right to inherit from their
illegitimate nephews. D cannot
succeed either because legitimate
relatives have no right to inherit
from an illegitimate child and vice-
versa.
311
9. EFFECT OF REPUDIATION
A renouncer can represent, but

cannot be represented. (Arts. 976 and
977, CC)
PROBLEM:
A has two children, B and C. B has

two children D and E. D has a child F.
B died in 1993 but D repudiated his

share. Later A died in 1995.
Is D entitled to represent B in the

inheritance of A?
313
A + 1995
1993 + B C
repudiated D E
F
314
10. INHERITANCE IN
EQUAL SHARES
EXCEPTIONS:
1. Division in the ascending line.
(Art. 987, par. 2, CC)
2. Division between relatives of the

full-blood and half-blood. (Art.
1006, CC)
3. In cases of representation.
PROBLEM
A, B and C are the children of P;
while D and E are the children of
A; F is the child of B; G is the
child of C.
316
P 120,000
A B C
D E F G
317
ANSWER:
If A, B and C repudiated the

inheritance, the estate will be
divided among the 4 grandchildren,
and each will get 30,000 in his own
right.
In repudiation, there is no right of

representation. (Art. 977, CC)
318
P 120,000
A B C
D E F G
319
If only C repudiates, A and B will each
get 60,000.
D and E are excluded, because the
nearer excludes the farther. (Art. 962, CC)
G is also excluded because there is no
right of representation in case of
repudiation.
F is excluded by B. (Art. 977, CC)
320
If A, B and C all predeceased P, the 4
grandchildren will inherit by right of
representation, not in their own right.
Hence, D and E will each get 20,000;
F, 40,000; and G gets 40,000.
321
P 120,000
A B C
D E F G
322
ORDER OF INTESTATE
SUCCESSION
323
ESTATE OF A LEGITIMATE CHILD
1. Legitimate children and their legitimate

descendants. (Art. 979, CC)
2. Legitimate parents and other legitimate

ascendants. (Art. 985, CC)

illegitimate. (Arts. 988, 990, 902)
4. Surviving spouse, without prejudice
to the rights of brothers, sisters,
nephews, and nieces, should there by
any. (Art. 995, CC)
5. Collateral relatives up to the fifth

degree of consanguinity. (Art. 1010, CC)
6. State. (Art. 1011)
325
ESTATE OF AN ILLEGITIMATE CHILD

legitimate descendants. (Art. 979, CC)
2. Illegitimate children and other

illegitimate. (Arts. 988, 989, 990)
3. Illegitimate parents. (Art. 993, CC)
326
4.Surviving spouse (Art. 994, CC), without
prejudice to the rights of illegitimate
brothers and sisters and nephews
and nieces who are children of
illegitimate brothers and sisters (by
inference from Art. 992)
5.State
327
COMBINATIONS OF
SURVIVAL AND
CONCURRENCE
OF INTESTATE HEIRS
328
THINGS TO REMEMBER
• A compulsory heir is entitled to an

intestate share which is equal to, if not
greater than, his legitime.
• If the decedent is illegitimate, BSNN
should also be illegitimate because of the
barrier under Article 992.
• If the decedent is illegitimate, the parents
of the nephews and nieces must be an
illegitimate brother or sister of the
illegitimate decedent.
329
• Collateral relatives other than BSNN
ALWAYS inherit in their own right,
never by representation.
• Collateral relatives other than BSNN

inherit only if the decedent is their
legitimate relative.
• Illegitimate parents inherit intestate

only in the absence of descendants
of the decedent, whether legitimate or
illegitimate.
330
1. LEGITIMATE CHILDREN ALONE
Entire estate to be divided in equal
shares as there are legitimate
children. (Art. 980, CC)
2. LEGITIMATE PARENTS ALONE

Entire estate to be divided equally
between the parents. (Art. 985, CC)
3. SURVIVING SPOUSE ALONE

Entire estate. (Art. 995, CC)
331
4. ILLEGITIMATE CHILDREN ALONE
5. BSNN ALONE
6. ILLEGITIMATE PARENTS ALONE

NOTE: Illegitimate parents inherit intestate

only in default of legitimate or illegitimate
descendants of the decedent.
332
7. 5TH DEGREE RELATIVES
8. STATE
333
9. ONE LEGITIMATE CHILD
SURVIVING SPOUSE
Legitimate child, ½ of the estate.
Surviving spouse, ½ of the estate.

(Arts. 888 and 996, CC)
334
10. LEGITIMATE CHILDREN
SURVIVING SPOUSE
Consider the surviving spouse as a

legitimate child and then divide the
estate by the total number. (Art. 996, CC)
335
Estate to be divided in proportion

of two shares for each legitimate
child and one share for each
illegitimate child.
The legitimes of the legitimate
children shall not be impaired.
(Arts. 983 and 985, CC)
336
12. ONE LEGITIMATE CHILD
SURVIVING SPOUSE
Legitimate child, ½ of the estate.

(Art. 888, CC)
Surviving spouse, ¼ of the estate.

Illegitimate children, ¼ of the
estate. (applying by analogy Arts. 892, par.
1 and 895,CC)
337
SURVIVING SPOUSE
Divide the estate according to the ratio of:
Two shares for each legitimate child.
Two shares for the surviving spouse.
One share each for each illegitimate child.

(Art. 999, CC)
338
14. LEGITIMATE PARENTS
Legitimate parents, ½ of the estate.
Illegitimate children, ½ of the estate.

(Art. 991, CC)
339
SURVIVING SPOUSE

(Art. 997, CC)
340
SURVIVING SPOUSE
Illegitimate children, ¼ of the estate.
Surviving spouse, ¼ of the estate.

(Arts. 896 and 1000, CC)
341
17. ILLEGITIMATE CHILDREN
SURVIVING SPOUSE
Illegitimate children, ½ of the estate.

(Art. 998, CC)
342
18. ILLEGITIMATE PARENTS
CHILDREN OF ANY CLASS
Illegitimate parents, none (Art. 903, CC).
Legitimate or illegitimate children of

the decedent , entire estate.
343
19. ILLEGITIMATE PARENTS
SURVIVING SPOUSE
Illegitimate parents, ½ of the estate.
344
20. SURVIVING SPOUSE
BSNN
BSNN, ½ of the estate. (Art. 1001, CC)
345
PROBLEM:
P died without a will. He is survived

by his widow, W, and by one
legitimate son, A. The estate is
60,000. How shall the distribution
be made?
346
60,000
+ X Y
30,000
A
30,000
347
PROBLEM:
P died without a will. He is

survived by his widow, W, one
legitimate son, A, and two
illegitimate children, B and C.
The estate is 72,000. How shall
the distribution be made?
348
72,000
+ P W
18,000
A B C
36,000 9,000 9,000
349
ANSWER:
A is entitled to ½ of 72,000, or 36,000.
W is entitled to ¼ of 72,000, or 18,000.
B and C are entitled to ¼ of 72,000, or

18,000, which shall be divided equally
between them.
350
PROBLEM:
by:
(1) A and B, his legitimate children.
(2) W, his widow; and
(3) C, D, E, his illegitimate children.
The net value of his estate is 60,000.
How shall the distribution be made?
351
60,000
+ P W
15,000
A B C D E
15,000 15,000 5,000 5,000 5,000
352
PROBLEM:

by:
(1) A and B, his legitimate children.
(3) C, his illegitimate child.
353
140,000
+ P W
A B C
354
ANSWER:
EXCLUSION THEORY
1. Satisfy the legitimes of the heirs.
2. The balance must be given to the

legitimate children because they
are first in the order of intestate
succession
355
LEGITIMES:
A (leg. ch.) 35,000

B (leg. ch.) 35,000
W (widow) 35,000
C (illeg. ch.) 17,500
BALANCE 17,500
It is with respect to the balance

that there is a conflict of opinion.
356
Under the exclusion theory, the
balance of 17,500 is to be divided
equally between A and B, or 8,750
each which is to be added to their
legitimes of 35,000 each. Thus:
A 43,750
B 43,750
W 35,000
C 17,500
TOTAL 140,000
357
CONCURRENCE THEORY
1. Satisfy the legitimes of the heirs.
2. The balance must be divided

among the heirs in the proportion
of 2:2:2:1.
358
LEGITIMES:
A 35,000
B 35,000
W 35,000
C 17,500
BALANCE 17,500
Under the concurrence theory, the

balance of 17,500 is to be divided
equally among the heirs in the
proportion of 2:2:2:1. Thus:
359
A, B and W are entitled to 2/7 each of
17,500, or 5,000 each.
C is entitled to 1/7 of 17,500, or 2,500.
A 40,000
B 40,000
W 40,000
C 20,000
TOTAL 140,000
360
EXCLUSION OR CONCURRENCE?
ARTICLE 983: Legitimate and illegitimate

inherit in the proportion of 2:1.
ARTICLE 999: Surviving spouse has the
same successional right as a legitimate
child.
Under the exclusion theory, the above
proportions are discarded; the spouse
would receive a share less than that of a
legitimate child.
CONCLUSION: Concurrence theory.
361
PROBLEM:
In the previous problem, B (legitimate) and
C (illegitimate) predeceased P.
(1) B is survived by two children, D and E.

D is a legitimate child, while E is an
illegitimate child.
(2) C, on the other hand, is also survived by

two children, F and G. F is a legitimate
child, while G is an illegitimate child.
362
140,000
+ P W
A B + C +
D E F G
363
ANSWER:
D who is legitimate, can represent

his father B. E cannot because of Art.
992 of the Civil Code.
F and G can inherit by right of
representation. The barrier under Art.
992 does not exist.
Since F is legitimate and G is
illegitimate, the share which would
have passed to their father, C, they
shall inherit in the proportion of 2:1.
364
PROBLEM:
P died without a will. He is survived by:
(1) F and M, his legitimate parents.
(3) A, B, C, and D, his illegitimate children.
The net value of his estate is 72,000. How

shall the distribution be made?
365
F M
18,000 18,000
72,000 P W
18,000
A B C D
4,500 4,500 4,500 4,500
366
HAD P DIED WITH A WILL:
F and M, 1/2 of the estate: 36,000,

or 18,000 each.
W, 1/8 of the estate: 9,000.
A, B, C, and D, 1/4 of the estate:

4,500 each
Free portion of 9,000.
367
PROBLEM:
P is the deceased. Intestate estate is 120,000.
Surviving heirs are:
a) M, his mother
b) W, his widow
c) A and B, his legitimate children
d) E, the legitimate son of B
e) F, a legitimate son of C, the latter being a
legitimate son of P who predeceased P.
f) G, being the legitimate son of D, a legitimate son
of P who repudiated the inheritance.
368
M
+
P W
+
A B C D
E F G
369
ANSWER:
The legal heirs are A, B, F and W.
E is excluded by B who is still alive.
F represents C who predeceased P.
G is excluded because of the repudiation of D.
M is excluded by the legitimate children of P.
The answer may be premised on two theories:

EXCLUSION and CONCURRENCE.
471
EXCLUSION
A 20,000 (own right)
B 20,000 (own right)
F 20,000 (representation)
W 20,000
FP 40,000
TOTAL 120,000
Under the Theory of Exclusion, the Free
Portion goes to the legitimate children, A
and B, and grandson F, at 13,333.33 each;
they are entitled to the free portion to the
exclusion of the other heirs because they
are first in the order of succession.
371
CONCURRENCE
In addition to their legitimes, the heirs A, B,
F and W will be given equal shares in the
free portion of 40,000.
A 20,000 plus 10,000

B 20,000 plus 10,000
F 20,000 plus 10,000
W 20,000 plus 10,000
372
PROBLEM:
(1) W, his widow.
(2) A and B, his legitimate brothers.
(3) D and E, children of his deceased

brother C.

373
ESTATE: 240,000
120,000 40,000 40,000
W P A B C +
D E
20,000 20,000
374
PROBLEM:
(1) W, his widow.
(2) X and Y, children of a deceased legitimate

brother, A.
(3) Z, child of a deceased legitimate sister, B.

375
ESTATE: 240,000
W P A B
X Y Z
376
PROBLEM:
With her first husband A, B begot two

children, D and E. When A died, B married C
with whom she begot four legitimate
children, F, G, H and I. B and C are now both
dead. D died intestate, survived by:
(1) E, a brother of the full-blood.
(2) F, G, H and I, brothers of the half-blood.

377
ESTATE: 120,000
+ A B + C +
+ D E F G H I
40,000 20,000 20,000 20,000 20,000
378
PROBLEM:
Suppose that in the previous

problem, ALL the five brothers of D
predeceased him, and the only
survivors are the nephews, J, being
the legitimate son of E, and K and L,
being the legitimate children of H,
how shall the estate be divided?
379
ESTATE: 120,000
A B + C +
D E + F + G + H + I
+
J K L
60,000 30,000 30,000
380
ANSWER:
The rule of double share for full-blood

collateral still applies.
If there are nephews ad nieces surviving

the decedent, relationship by the whole
or half-blood becomes material in the
distribution of the estate.
NOTE: The nephews and nieces inherit
in their own right here because they do
not concur with an uncle or aunt.
381
PROBLEM:
B contracted two marriages: the first

was with A, with whom she begot two
legitimate children, D and E; and the
second was with C, with whom she
begot four legitimate children, F, G, H
and I.
D died intestate survived by:
382
(1) E, a brother of the full-blood
(2) F and G, brothers of the half-blood.
(3) J, a son of H, a deceased half-brother.
(4) L, a grandson of I, and a child of K.

383
A B C
+ D E F G H + I +
J K +
ESTATE: 120,000 L
384
ANSWER:
E 48,000 own right
F 24,000 own right
G 24,000 own right
J 24,000 representing H
L 0
TOTAL 120,000
NOTE: L is not entitled to inherit anything

because in the collateral line, inheritance
extends only to nephews and nieces.
385
PROBLEM:
X, an illegitimate person, died without a

will. He is survived by:
(1) F, his father.
(2) W, his widow.
(3) A, his brother.
(4) B and C, his brothers from his
father’s lawful marriage.
If the net value of X’s estate is 120,000.
386
ANSWER:
Only F and W are entitled to inherit, at

60,000 each.
Illegitimate parents do not exclude the

surviving spouse.
A, B, and C, brothers of X, are not entitled

to inherit because they are excluded by F
pursuant to the principle of preference of
line.
387
ACCRETION
388
ACCRETION
It 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-
devises, co-legatees. (Art. 1015, CC)
389
QUESTION:
When is accretion proper?
ANSWER:
TESTATE SUCCESSION
1. predecease
2. incapacity
3. repudiation
1. repudiation
2. incapacity
390
IMPORTANT
No accretion among compulsory heirs

insofar as the legitime is concerned.
Accretion, if it takes place, concerns

only the free portion. (Art, 1021, CC)
391
PROBLEM:
T instituted his legitimate children,

A and B, and a friend, F, as heirs.
Estate is 60,000.
Divide the estate.
392
T 60,000
A B F
393
ANSWER:
The institution of A, B and F concerns only
the free disposal of 30,000. A and B are first
given their respective legitimes (15,000
each). The free disposal is then divided
equally among the three instituted heirs:
A 15,000 (CH)
10,000 (VH)
B 15,000 (CH)
10,000 (VH)
F 10,000 (VH)
394
QUESTION:
Suppose A predeceases T, how will

his share be divided between his
co-heirs, B and F?
395
ANSWER:
A’s share in the legitime goes to B in his
own right (since this is the legitime).
A’s share in the free portion (10,000) will go

equally to B and F by accretion since this
is the proportion in which they were
instituted to the free portion.
If F predeceases T, his share in the free

portion will go to A and B by accretion.
It is so because they were instituted as

voluntary heirs.
396
QUESTION:
Suppose T gave one-half of his estate

to F, and gave A and B their respective
legitimes of ¼ each, to whom should
F’s share go if he predeceases T?
397
ANSWER:
To A and B, not by accretion for

they were not given any part of the
free portion.
Intestacy then results, and A and B

will get F’s share as intestate heirs.
398
PROBLEM:
X died intestate. He is survived by: (1) A,
B, D and E, his legitimate children; (2) F
and G, legitimate children of C
(predeceased), a legitimate son of X; (3) H
and I, legitimate children of D; and (4) J
and K, legitimate children of E.
D is incapacitated; while E repudiated the

inheritance.
The net value of the estate is 120,000, how

399
X
A B C D E
F G H I J K
400
ANSWER:
There are three vacant shares.
The share which C would have inherited

if he had not predeceased X.
The share which D would have inherited

if he had the capacity to inherit from X.
The share which E would have inherited

if he had not repudiated it.
401
DISTRIBUTION OF VACANT SHARES
The share of C in the estate goes to his

legitimate children, F and G, by
representation.
The share of D in the estate goes to his

legitimate children, H and I, by
representation.
The share of E in the estate goes to his

co-heirs, A and B, by accretion. An heir
who repudiates cannot be represented.
402
FINAL DISTRIBUTION
A 24,000 own right
12,000 accretion
B 24,000 own right
12,000 accretion
F 12,000 right of rep.
G 12,000 own right
H 12,000 own right
I 12,000 own right
403
PROBLEM:
Testator instituted A, B and C as
universal heirs to his estate valued
at 65,000.
Testator in his will gave A several
properties worth 15,000; B, 20,000;
and C, 30,000.
A predeceases the testator. How shall
404
ANSWER:
B and C will each get their inheritance.
A’s share of 15,000 goes to B and C by right

of accretion in the proportion of 2:3. (Art.
1019, CC)
HEIR DEVISE ACCRETION TOTAL
B 20,000 6,000 26,000
C 30,000 9,000 39,000
405
PROBLEM:
P has three legitimate brothers, X, Y and Z.
(1) X predeceases P, but he is survived by his

legitimate child, A.
(2) Y is incapacitated, but he has two legitimate

children, B and C.
(3) Z repudiates the inheritance.
How shall P’s estate of 120,000 be distributed?
406
P X + Y Z
A B C
407
ANSWER:
The 40,000 share of X who predeceased P
goes to his legitimate child, A, by
representation.
The 40,000 share of Y who is incapacitated to

inherit goes to his legitimate children, B and
C, by representation, or 20,000 each.
The share of Z who repudiated the

inheritance goes to A, B and C by accretion
in the same proportion they inherit, or in the
proportion of 2:1:1.
408
FINAL DISTRIBUTION
A 40,000 by representation
20,000 by accretion
B 20,000 by representation
10,000 by accretion
C 20,000 by representation
10,000 by accretion
409
PROBLEM:
Suppose Z is incapacitated?
Same distribution as in the previous problem.
Suppose Z predeceased the decedent?
A 40,000 own right

B 40,000 own right
C 40,000 own right
410
PROBLEM:
T, an unmarried person and without any
children of any kind, instituted his
friends, A, B, C and D as his universal
heirs to his estate of 210,000.
T intended the distribution of his estate
as follows: A, ½ of the estate; B, 1/4; C,
1/8; and D, 1/8.
D repudiated the inheritance. How shall

411
ESTATE: 210,000
T
REPUDIATED
A B C D
1/2 1/4 1/8 1/8
412
ANSWER:
There is no need to check the legitimes

since T left no compulsory heirs.
Assuming there is no provision in the will

regarding substitution of heirs, accretion
exists insofar as D’s share is concerned.
413
A is to get ½ of the estate, or 105,000.
B is to get 1/4 of the estate, or 52,500.
C is to get 1/8 of the estate, or 26,250.
D is to get 1/8 of the estate, or 26,250.
If D’s share is rendered vacant because

of his repudiation of the inheritance,
who gets such vacated share?
414
ANSWER:
D’S vacant share goes to the other heirs by
right of accretion.
The co-heirs will therefore receive the

vacant share of 26,250 in the same
proportion they inherit.
Since they inherit in the proportion of 4:2:1,

the vacant share is to be divided into 7
parts.
415
FINAL DISTRIBUTION
A 105,000 as an instituted heir

15,000 by accretion
B 52,500 as an instituted heir

7,500 by accretion
C 26,250 as an instituted heir

3,750 by accretion
416
…Thank you
NOW GO AND TOP THE BAR!
417

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WILLS AND SUCCESSION

ATTY. RONEY JONE P. GANDEZA

• mode of acquisition of ownership.

• involves a transmission of property,

• opens through death.

• takes place by will or by operation

Distinctions are important to determine -

• This is absence coupled with

• An absence of FOUR YEARS is

• While succession really took place

Article 50 of the Family Code gives

- primary compulsory heirs

- also known as instituted heirs.

EXCEPTION: Distinction is important in:

SECOND: The omission must be of a

THIRD: The compulsory heir omitted

REASON: Preterition involves an

NEITHER IS THERE PRETERITION

• NO PRETERITION of a surviving spouse.

• Although a compulsory heir, the spouse

The institution of heirs is

The preterition of C annuls the

The friend, F, gets nothing.

T executed a will containing only

How shall T’s estate of 50,000 be

The omission of F and M constitutes

Consequently, the entire will is void;

Although the institution of heirs is

If the estate is 100,000, how should

SECOND EFFECT: The devises, legacies and

Estate is 100,000. T gave a legacy of

How much should X and Y get?

X (legatee) gets only 50,000. The

Y (disinherited heir) gets his

The legacy in favor of M is void under

If all other facts in the previous

• Heir is deprived of his legitime.

• There is no right to represent a

An act whereby a person is:

PERMITTED, with the formalities

To take effect after his death (Art.

1. Intrinsic (Latent) ambiguity.

INTRINSIC AMBIGUITY is ambiguity

EXAMPLE: “I institute as heir my

• when there is an imperfect description

• when only one recipient is

• appears on the face of the will.

EXAMPLE: “I institute some of

No difference in curing intrinsic or

FIRST, examine the will itself.

In making the will, T orally stated that he was

This is intrinsic ambiguity; the

Is T’s oral declaration extrinsic evidence?

Yes, but it is inadmissible to cure the defect.

B should inherit in view of the written

GENERAL RULE: Property acquired

EXTRINSIC VALIDITY Determined by

INTRINSIC VALIDITY Determined by

1. Testator be at least 18 years of age.

No. “Every will must be in writing

• A will may either be notarial or

• Regardless of its kind, the

A notarial will is one which is