1

TITLE IV SUCCESSION
CHAPTER I
GENERAL PROVISIONS
What are the modes of acquiring ownership?
a.
b.
c.
d.
e.
f.
g.

Occupation
Intellectual creation
Law
Donation
Testate and intestate succession
Tradition (In consequence of certain contracts)
Prescription 1

Thus, under the Civil Code, succession is one of the modes of acquiring ownership.
The first three are original and the last four are derivative.
Theory of mode and title
Mode is a way or process of acquiring or transferring ownership; while title refers to the
juridical act or deed which is not sufficient by itself to transfer ownership but it provides a juridical
justification for the effectuation of a mode. Consequently, mode directly produces a real right, while
title serves only to produce a means or occasion for its acquisition. In other words, mode is the
cause, while title is the means.
Thus, if a seller sells his car to a buyer, the sale is the title while the delivery (tradition) is the
mode which makes the buyer the owner of the ring. A title merely creates a personal right which
could real right if followed with delivery.
MODE
OCCUPATION

SEIZURE

TITLE
PROPERTY

SEIZED

IS

WITHOUT A KNOWN OWNER

INTELLECTUAL CREATION

EMERGENCE OR DISCOVERY

LAW

FORCE OF LAW

ORIGINALITY OR NOVELTY
CONCURRENCE

OF

PREREQUISITE CONDITIONS

DONATION

FORMALITIES/DELIVERY

AGREEMENT OF PARTIES

SUCCESSION

DEATH

LAW OR WILL

TRADITION

DELIVERY

AGREEMENT OF THE PARTIES

PRESCRIPTION

LAPSE OF PRESCRIBED PERIOD

POSSESSION IN THE CONCEPT

OF AN OWNER

Note that in the law on succession, the title is also the mode. Hereditary rights are
transferred from the moment of death of the decedent (Article 777). Delivery (tradition) is not a
condition pre-requisite to transfer ownership. Actual possession, however, may be exercised only
upon actual delivery (Article 1089; 1091).
What is succession?
Succession is a mode of acquisition by virtue of which the property, rights and obligations to
the extent of the value of the inheritance, of a person are transmitted through his death to another
or others either by will or by operation of law. 2 This is hereditary succession.
What are the elements of succession as defined by the Civil Code?
1.
2.
3.
4.
5.
1
2

It is a mode or way of acquiring ownership;

There is transmission of property, rights and obligations to another or others;
As to transmission of obligations, it is only to the extent of the value of the inheritance;
The cause of transmission is the death of the decedent;
The procedure of transmission may be by will or operation of law;

Article 712 NCC

Article 774 NCC

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6. The acceptance of the inheritance by the heir which is understood even if not expressly
stated in the Article. 3
When are successional rights vested?
Successional rights are transmitted as of the moment of death of the decedent.
Successional rights are therefore vested as of the moment of death of the decedent.

What law governs distribution of estate?

The law in force at the time of death of the deceased shall govern the distribution of his
estate and not the law at the time of distribution.
What is the difference between a decedent and a testator?
a. Decedent This term is used in Civil Law when reference is made to a person who died with
property to transmit to his heirs through succession. The word is applicable whether or not
the deceased executed a will. Hence decedent is a general term for both situations.
b. Testator This term is used only in reference to a decedent who left a valid will. A decedent
who did not leave any will cannot be called a testator.
What includes inheritance?
a.
b.
c.
d.

Property;
Transmissible rights (those not extinguished by death);
Transmissible obligations (those not extinguished by death); and
All property which have accrued thereto since the opening of the succession (death of the
decedent). 5

The latter refers to after-acquired property, that is, not only property acquired between the
period of the execution of the will and the death of the testator, but also accruing property until the
distribution of the estate.
Note however that if the decedent died with a valid will, the after-acquired property shall not
pass to the designated heir unless the same is expressly stated in the will or the intention clearly
appears.6 When the testator used general terms in the disposition of his property such as my entire
estate, all my property, etc. the intention to pass after-acquired property is deducible in the
absence of the contrary context.
What are examples of after-acquired properties?
a. Alluvial deposits
b. Interests on credits
These are accretions and accessions. However, they are not strictly inherited for they form
part of the estate only after the heirs become the owners thereof, hence, properly speaking, they
are acquired by accretion as an incident of ownership under the law, and not by succession. Property
acquired by the testator between the time the will is made and the time he dies, is not given to the
designated heir unless the contrary has been expressly provided. Such property is acquired prior to
the death, not afterwards.
What are intransmissible rights?
They are rights extinguished upon the death of the decedent. The heirs could not succeed to
intransmissible rights.
What are the examples of intransmissible rights and obligations?
a. The right to receive support;
b. The obligation to give support;
c. The right of usufruct;
3

Article 533 NCC: The possession of hereditary property is deemed transmitted to the heir without interruption, and from
the moment of death of the decedent, in case the inheritance is accepted. One who validly renounces an inheritance is
deemed never to have possessed the same.
4
Article 777 NCC
5
Article 781 NCC
6
Article 793 NCC

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d.
e.
f.
g.

Criminal liability;
Political position;
The right of parental authority; and
Marital rights.
What are the criteria in determining intransmissible rights?

a. When the rights are purely personal in nature such as the discharge of public office; and
b. When rights are expressly made intransmissible by law like usufruct.

Are heirs liable for the personal debts of the decedent? Up to what extent may an
heir inherit obligations of his predecessor-in-interest?
The heirs are only entitled to get what remains in the inheritance after payment of all
obligations. However, the heirs are not liable for the debts of the decedent which debts must be paid
or charged against the property left by the deceased. And if this property is not enough to defray all
the indebtedness, the heirs are not liable to pay the balance. (Pavia vs. Dela Rosa, 8 Phil. 70;
Suilong & Co. vs. Chio Tayson, 12 Phil. 1; Centeneral vs. Sotto, 78 Phil. 432) Thus, the heir may
inherit obligations but only to the extent of the value of the inheritance. The heir cannot be required
to pay more than what he gets. (Nacar vs. Nistal, 119 SCRA 29) It is the estate of the decedent,
instead of the heirs, who is vested and charged with his rights and obligations, which survive after
his death. For this purpose, it has been held that it is the estate, rather than the heir, which must be
considered the decedents personality.
Are monetary obligations which the decedent incurred during his lifetime
transmissible to the heirs so that the latter may be charged directly for the payment
thereof?
No. Such monetary obligations are intransmissible. They must be liquidated in the testate or
intestate proceedings (Rule 87, Section 5, Rules of Court) While the decedent is dead, nevertheless,
his estate is considered a juridical person with the right to sue and be sued through the executor or
administrator as the case may be. Heirs are the continuity of the juridical personality of the
decedent and as such can file an action to protect the latters estate.
Literally construed, however, money obligations of the deceased, under Article 774, pass to
the heirs, to the extent that they inherit from him. Seemingly, therefore, this article mandates that
the heirs receive the estate, and then pay off the creditors. Philippine procedural law, however,
influenced by the common-law system, has laid down a different method for the payment of money
debts, which is found in Rules 88 to 90 of the Rules of Court. It is only after the debts are paid that
the residue of the estate is distributed among the successors. 8
In our system, therefore, money debts are, properly speaking, not transmitted to the heirs
nor paid by them. The estate pays them; it is only what is left after the debts are paid that are
transmitted to the heirs.
Are contractual obligations transmissible?
Generally, unless otherwise provided in the contract, contractual obligations are
transmissible. Thus, if the decedent is the lessor in a contract of lease with a definite period, his
heirs will inherit the obligation to respect the lease. Similarly, in a contract of sale, the heirs are
obligated to deliver the property sold by their predecessor in interest to the buyer. (Pamplona
vs. Moreto, 96 SCRA 725) 9
In the case of Estate of Hermandy vs. Luzon Surety Co., Inc., 100 Phil. 389, it was held that:
7

Article 603, par 1 NCC

Rule 90, Sec. 1. When the order for the distribution of residue made. When the debts, funeral charges, and expenses of
administration, the allowance to the widow, and inheritance tax, if any, chargeable to the estate in accordance with law, have
been paid, the court, on the application of the executor or administrator, or of a person interested in the estate, and after
hearing upon notice, shall assign the residue of the estate to the person entitled to the same, naming them and the
proportions, or parts, to which each is entitled, and such persons may demand and recover their respective shares from the
executor or administrator, or any other person having the same in his possession. If there is a controversy before the court as
to who are the lawful heirs of the deceased person or as to the distributive shares to which person is entitled under the law,
the controversy shall be heard and decided as in ordinary cases.
No distribution shall be allowed until the payment of the obligations above mentioned has been made or provided for,
unless the distributes, or any of them, give a bond, in a sum to be fixed by the court, conditioned for the payment of said
obligations within such time as the court directs.
9
Article 1311. Contracts take effect only between the parties, the assigns and heirs, except in case where the rights and
obligations arising from the contract are not transmissible by their nature, or stipulation or by provision of law. The heirs are
not liable beyond the value of the property received from the decedent.
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The binding effect of contracts upon the heirs of the deceased
party is not altered by the provision of our Rules of Court that money
debts of a deceased must be liquidated and paid from his estate before
the residue is distributed among said heirs (Rule 89). The reason is that
whatever payment is thus made from the estate is ultimately a payment
by the heirs or distributes, since the amount of the paid claim in fact
diminishes or reduces the shares that the heirs would have been
entitled to receive. Under our law, therefore, the general rule is that a
partys contractual rights and obligations are transmissible to the
successors. It must, however, be made clear that the heirs are liable
only to the extent of the value of their inheritance.
What is meant by inheritance? Distinguish it from succession.
The inheritance may be defined as the universality of all properties, rights and obligations
constituting the patrimony of the decedent which are not extinguished by his death and which are
available for distribution among his heirs after settlement or liquidation.
Succession is the legal mode by which such property, rights and obligations are transmitted.
In other words, the inheritance is merely the objective element of succession.
Inheritance distinguished from succession and patrimony
Inheritance refers to the totality of the decedents property, rights and obligations
transmitted to his successor, while succession refers to the legal mode or manner by which they are
acquired or transmitted, thus the first is the objective of the second.
Patrimony refers to the aggregate of all juridical relations of a person susceptible of economic
valuation, while inheritance refers to the mass or totality of the patrimony of the decedent, which is
not extinguished by his death, thus the first is broader than the second.
What are the requisites for an effective transmission by succession? (Requisites
before rights may be transmitted mortis causa)
a. Death, whether actual or presumptive 10 (ordinary 10, 5 years; extra ordinary 4 years)
(Succession takes place at the time of disappearance, however, actual division takes place at
the end of the required period);
b. The express will of the testator calling certain persons to succeed him or in default thereof,
the provision of law prescribing the successor;
c. Rights or properties are transmissible;
d. Transferee must be alive (not predeceased), willing (no repudiation) and capacitated (no
disinheritance) to inherit.
When is the moment of transmission of rights?
Rights to the succession are transmitted from the very moment of death of the decedent.
It is understood of course that there is acceptance of the inheritance. 12

11

The time of death is the determining point when the heirs acquire a definite right to the
inheritance whether such right be pure or conditional.
Observations:

10
11
12

The right to the succession is not transmitted; it becomes vested. To say that it is
transmitted upon death implies that before the decedents death, the right to the succession
was possessed by the decedent (which is absurd). To say it vests upon death implies that
before the decedents death the right is merely inchoate (which is correct).
Article 777 merely specifies the time of vesting of the successional right. It presumes that the
person succeeding 1) has a right to succeed by legitime (compulsory succession), or by law
(intestate succession); 2) has the legal capacity to succeed; and 3) accepts the successional
portion.
The vesting of the right occurs immediately upon the decedents death; i.e. without a
moments interruption. From this principle, obvious consequences flow, thus:

Article 391 NCC

Article 777 NCC
Vide Article 533 NCC

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a. During the lifetime of the decedent, the right of the heirs is a mere expectancy. Until the
death had supervened, the right to succession is merely speculative for in the meantime, the
law may change, the will of the testator may vary, or the circumstances may be modified to
such an extent that he who expects to receive property may be deprived of it. Indeed, the
moment of death is the determining point when an heir acquires a definite right to the
inheritance;
b. The right of the heirs is vested from the moment of death even before judicial declaration;
c. Previous declaration of heirship is not essential;
d. Liquidation is not necessary;
e. Tax obligations accrue at the moment of death of the decedent;
f. The law in force at the time of the decedents death will determine who the heirs should be.
(Vide: Uson vs. Del Rosario, 92 Phil. 530); 13
g. Ownership passes to the heir at the very moment of death, who therefore, from that moment
acquires the right to dispose of his share (Vide: Jose de Borja vs. Tasiana vda de Borja, 46
S CR A 5 7 7 ) ; an d
h. The heirs have the right to be substituted for the deceased as party in an action that survives
(Vide: Bonilla vs. Barcena, 71 SCRA 491).
Illustrations:
X, Y, Z are the
partition, can X sell his

heirs
share

of A who died, leaving

without the consent of Y

an estate of ten hectares. Before

and Z? Why?

Yes, because his hereditary share was transmitted from the moment of death of A. There is
no legal bar therefore, for X to sell his share immediately even if the actual extent of his share has
not been determined. (Testate Estate of Tangco; Jose de Borja vs. Tasiana vda de Borja, 46 SCRA
577)
A died without a will in 1960, survived by three legitimate children B, C and D.
Immediately, upon the death of A, B sold his entire right to the inheritance to X, a third
person for 20, 000.00. Is the sale valid?
Yes.
Suppose that the hereditary estate was finally partitioned in 1962. According to the
project pf partition, B, C and D shall be entitled to 30, 000.00 each. D however repudiated
his share of the inheritance. Under the law, the 30, 000.00, which would have passed to
him, shall now accrue to B and C in equal shares. Who shall now be entitled to the 15, 000
accruing to B?
X is now entitled to the 15, 000.00.In other words, he can now compel the estate of A to pay
to him not only 30, 000 to which B is entitled as a legal heir, but even the 15, 000 to which B is
entitled by right of accretion. This is because of the principle of retroactivity as applied to acts and
acceptance or repudiation (Art. 1042 NCC).
What are the kinds of succession?
a.
b.
c.

13

Compulsory succession to the legitime (this prevails over all kinds);

Testamentary which results from the designation of an heir made by the testator in a will;
Legal or intestate where the decedent did not execute a will; or if there was a will, it is
void; or there may be succession by operation of law;

Facts: Maria Uson was the lawful wife of Faustino Nebreda who upon his death in 1945 left five parcels of land. Faustino
Nebreda left no other heir except his widow, Maria Uson. Defendant Maria Del Rosario was the common law wife of Nebreda
with whom she has several illegitimate children, the other defendants. Maria Uson file the present action for the recovery of
the ownership and the possession of said lands claiming that when Nebreda died his common law wife took possession of said
lands. The defendant contended that under the new Civil Code, which took effect in 1950, the illegitimate children are given
the status and rights of natural children and are entitled to the successional rights which the law accords to the latter and
because these successional rights were declared for the first time in the new Civil Code, they shall be given retroactive effect
even though the even which gave rise to them may have occurred under the prior legislation.
Ruling: There is no merit in this claim. Article 2253 above referred to provides indeed that rights which are declared for
the first time shall have retroactive effect even though the event which gave rise to them may have occurred under the
former legislation, but this is so only when the new rights do not prejudice any vested or acquired right of the same origin.
Thus, said article provides that if a right should be declared for the first time in this Code, it shall be effective at once, even
though the act or event which give rise thereto may have been done or may have occurred under the prior legislation,
provided said new right does not prejudice or impair any vested or acquired right of the same origin. As already stated in the
early part of this decision, the right of ownership of Maria Uson over the lands in question became vested in 1945 upon the
death of her late husband and this is so because of the imperative provision of the law which commands that the rights to
succession are transmitted from the moment of death. The new right recognized by the new Civil Code in favor of the
illegitimate children of the deceased cannot, therefore, be asserted to the impairment of the vested right of Maria Uson over
the lands in dispute.

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d. Mixed that which is effected partly by will and partly by operation of law; and
e. Contractual that which is effected when the future spouses donate to each other in their
marriage settlement their future property to take effect upon the death of the donor to the
extent laid down by the provisions of the civil code relating to testamentary succession. This
is by way of exception of par. 2, Article 1347. 14 However, it should be executed by the
formalities of a will. 15
Are nuncupative wills allowed?
Nuncupative or orals wills are not allowed in the Philippines. A tape- recorded will is still a
nuncupative will
What is the difference between an heir, devisee and legatee?
Heir a person called to the succession either by the provision of a will or by operation of
law. They succeed by universal title, that is, to all or fraction or aliquot part of the properties, rights
and obligations.
Devisee a person to whom gifts of particular real properties are given by virtue of a will
(devises).
Legatees a person to whom gifts of particular personal properties are given by virtue of a
will (legacies).
What is the importance of the distinction between heirs on the one hand, and
legatees and devisees on the other?
a. In the case of preterition (omission of a compulsory heir in the inheritance), an instituted
voluntary heir gets nothing, but a devisee or legatee still gets the property given as long as
the legitime is not impaired;
b. While there can be heirs in either testate, legal or mixed succession, legatees and devisees
can exist in testamentary succession;
c. The heir represents the juridical personality of the deceased so that he acquires not only his
property and rights but also his obligations not extinguished by death but only to the extent
of the value of their inheritance, while a devisee or legatee does not represent the personality
of the deceased regardless of the quantity or value pf the devise or legacy;
d. The heir inherit an indeterminate quantity of inheritance the value of which cannot be
determined or fixed until the inheritance is liquidated, while the devisee succeeds to a
determinate thing or amount;
e. The heir succeeds to the remainder of the estate after all debts, devises and legacies have
been paid, while a devisee succeeds only to the definite thing or amount bequeathed;
f.

The heir succeeds by general right, while the devisee succeeds by special or particular title;
an d

g. The heir who succeeds by operation of law must be a relative while the devisee may be a
relative or not.

CHAPTER 2
TESTAMENTARY SUCCESSION
Section I. WILLS
Subsection 1. WILLS IN GENERAL
What is a will?

14

Article 1347. x x x No contract may be entered into upon future inheritance except in cases expressly authorized by law.
Article 84. If the future spouses agree upon a regime other than the absolute community of property, they cannot donate
to each other in their marriage settlements more than one-fifth of their present property. Any excess shall be considered void.
Donations of future property shall be governed by the provisions on testamentary succession and the formalities of wills.

15

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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. 16
What are the essential elements of a will?
1. The making of a will is a statutory (not a natural) right;
2. It is a unilateral act. (Thus no acceptance by the transferees is needed while the
testator is still alive);
3. It is a solemn or formal act; 17
4. There must be animus testandi;
5. The testator must be capacitated to make a will; 18
6. The will is strictly a personal act in all matters that are essential; 19
7. Is effective mortis causa; 20
8. It is essentially revocable or ambulatory; 21
9. It is free from vitiated consent; 22
10. It is an individual act (as distinguished from a joint act); 23 and
11. It disposes of the testators estate (whether totally pr partially) in accordance with his
wishes.
Why does the law use the word permitted?
Because the making of a will is merely a statutory right conferred by law. It must be
considered subordinated to law and public policy. And the making thereof must conform to the
formalities prescribed by law.
Why is it that the law says the testator can only control to a certain degree the
disposition of his estate?
Because the right to make a will, as conferred by law, is not absolute, thus, if there are
compulsory heirs, the power of the decedent to dispose if his estate is limited to the free disposable
portion because of the system of legitime.
What are the characteristics of a will?
1. Purely personal (Articles 784 785; 787)
2. Free and intelligent (Article 839)
3. Solemn and formal (Articles 804 814; 820 821)
4. Revocable and ambulatory (Article 828)
5. Mortis causa (Article 783)
6. Individual (Article 818)
7. Executed with animus testandi (Article 783)
8. Executed with testamentary capacity (Articles 796 803)
9. Unilateral (Article 783)
10. Dispositive of property (Article 783)
11. Statutory (Article 783)
Other characteristics of a will:
Though not explicit in Article 783, a will has also the following implied characteristics:
1. It is a written act (Articles 805 and 810);
2. It can be executed only by a capacitated person, meaning one who is of age
sound mind (Articles 796-798)

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and of

Is Jose Rizals poem Ultimo Adios a will?

The crucial words are found in the poems 13th stanza: Ahi te todo, mis padres, mis amores
(To you I leave everything, my parents, my loves.) Declared the Supreme Court: It is a literary
piece of work and was so intended. If it were intended as a will the poem would have been entitled
Ultimo Voluntas and not Ultimo Adios His poem merely expresses a thought of parting and not of
16
17
18
19
20
21
22
23
24

Article 783 NCC

Vide Article 783 NCC
Articles 769 798 NCC
Article 784 NCC
Article 777 NCC
Article 828 NCC
Article 839 NCC
Vide Articles 818 and 819.
Under R.A. No. 6809 (1989) legal age is now 18 years.

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bequeathing. Besides, at that time, he knows that he has no known property. Therefore an
instrument which merely expresses a last wish as a thought or advice but does not contain a
disposition of property and was not executed with animus testandi, cannot be legally considered a
will in a judicial sense. (Montinola v. Herbosa, 3 C.A. Rep. (2nd S) p. 377)
What provisions in a will cannot be left to the discretion of a third person?
1. The duration or efficacy of the designation of heirs, devisees or legatees; or
2. The determination of the portions which they are to take, when referred to by name. 25
3. The determination on whether or not the testamentary disposition is to be operative. 26 (The
heir, however, is free to accept or renounce the testamentary benefit.)
What provisions in a will that can be entrusted to a third person?
1. The manner of distribution of specific property or sums of money that he may leave in
general to specified classes or causes; and
2. The designation of the persons, institutions or establishments to which such property or sums
of money are to be given or applied. 27
Here, there is no delegation of the will of the testator. The testator has already expressed his
will and has entrusted merely to the third person the execution of the same so as to carry out his
purpose. However, under this provision, two things must be determined by the testator:
a. The property or amount of money to be given; and
b. The class or the cause to be benefited.
What is the distinction between the two Articles?
In Article 786 there are no particular names designated, whereas in Article 785, the
recipients of the bounty of the testator are specified either individually or as a group. In the latter
Article, the third person simply implements the details of the testamentary dispositions made by the
testator.
Illustration: A testator segregated P1 Million for the relief of the victims of Mt. Pinatubo. He
designated a third person to carry out this testamentary disposition. The third person will now make
the necessary distribution of the money to the said victims. Third is a valid delegation of power
which involves the implementation of the disposition as willed by the testator.
What are the kinds of ambiguity in a will?

28

1. Latent or intrinsic ambiguity this ambiguity is hidden because it does not appear on the
face of the will (not obvious on the face of the will), and is discovered only by extrinsic
evidence.
Examples:
Latent as to person I institute to of my estate my first cousin Jose (and the
testator has more than one first cousin named Jose).
Latent as to property I devise to my cousin Pedro my fishpond in Gingoog City
(and the testator has more than one fishpond in Gingoog City).
2. Patent or extrinsic ambiguity this ambiguity appears on the face of the will. It is apparent
and not hidden (obvious on the face of the will); in other words, by examining the provisions
itself, it is evident that it is not clear.
Examples:
Patent as to person I institute to of my estate some of my

first cousins

Patent as to property I bequeath to my cousin Pedro some of my cars.

25
26
27
28

Article
Article
Article
Article

785
787
786
789

NCC
NCC
NCC
NCC

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Matters covered by the Article
The situations covered are:
a.
b.
c.
d.

There is an imperfect description of the heir, legatee, or devisee;

There is an imperfect description of the gift given; or
A description to which no person or property exactly answers; or
An uncertainty arising upon the face of the will.

How may the ambiguities be cured?

29

a. By examining the will itself

b. The extrinsic or parol evidence of the testator
c. Testimonial evidence excluding the oral declarations of the testator is inadmissible.
Illustrations:
The testator in his will gave his friend X a specified parcel of land. It turned out that he
has 2 friends by that name. However, while making the will, the testator orally stated that
he was referring to his neighbor X, but among his files was found a letter stating that he
wanted to give the land to X of Malaybalay City.
a. What kind of ambiguity is this?
This is a latent or intrinsic ambiguity, because the provision is clear by itself, the doubt
arising only because of circumstances outside of the will.
b. Is the testators oral declaration admissible?
The testators oral declaration is extrinsic evidence but should not be admitted, by
express provision of the law, in order to discourage perjury.
c. To whom should the land be given?
The house should be given to X of Malaybalay City in view of the written
memorandum, which is indeed admissible extrinsic evidence.
What is the effect if the ambiguity could not be explained?
If the ambiguity cannot be explained or is too doubtful and beyond construction despite
resort to parol evidence, it becomes incurable. The testamentary provisions shall then be
inoperative.
What are the rules on interpretation of words? What are the exceptions?30
1. Ordinary words have their ordinary meanings (understood in its laymans sense or meaning).
(For instance, a natural child is understood to be a child born to his parents by nature as
distinguished from an adopted child.) Exception If there is a clear intention that another
meaning was used provided that other meaning can be determined.
2. Technical words have technical meanings (a word which has its own meaning as defined in
the rules or laws of a certain subject, discipline, science and the like). (Thus, a natural child
in civil law has a meaning different from its ordinary sense. It means a child born to parents
who at the time of its conception, were capacitated to marry but did not marry each other)
Exceptions (1) if there is a contrary intention; or (2) if it appears that the will was drafted
by the testator alone, who did not know the technical meaning.
What is the presumption in the making of a will?
When a testator makes a will, the presumption is that he intends to dispose of all his
property. There is no presumption to die intestate as to any portion of his estate when the language
used can clearly cover the entire estate.

29
30

Article 789 NCC

Article 791 NCC

10
The presumption against intestacy is so strong that probate courts will adopt any reasonable
construction of a will to make it effective and avoid intestacy. (Booth vs. King, 368 III. 487, 14 N.E.
[2nd] 645)
What is the effect of invalidity of one of several provisions?

31

1. Even of one disposition or provision is invalid, it does not necessarily follow that all others are
also invalid.
2. Exception when the various dispositions are indivisible in intent or nature.
What is the rule respecting after acquired properties? What are the exceptions?

32

1. What are given by will are only those properties already possessed and owned by the testator
at the time the will was made, not those acquired after (after-acquired properties). Properties
acquired after the making of the will do not pass to the instituted heirs.
2. Exceptions:
a. If it expressly appears in the will that it was the intention to give such after-acquired
properties;
b. If the will is republished or modified by a subsequent will or codicil (in which case, the
properties owned at the time of such republication or modification shall be given. 33
c. If at the time the testator made the will he erroneously thought that he owned certain
properties, the gift of said properties will not be valid, unless after making the will,
said properties will belong to him.34
d. Legacies of credit or remission are effective only as regards that part of the credit or
debt existing at the time of the death of the testator. 35
In every devise or legacy, what is the general rule as to what interest of the
testator may be disposed of? What are the exceptions? 36
1. General rule: In a legacy or devise the testator gives exactly the interest he has in the thing.
37
The entire interest of the testator in the property is given not more, not less.
2. Exceptions:
a. He can convey a lesser interest if such intent clearly appears in the will;
b. He can convey a greater interest, thus the law provides if the testator owns only a part of,
or an interest in the thing bequeathed, the legacy or devise shall be understood limited to
such part or interest, unless the testator expressly declares that he gives the thing in its
entirety. 38 In this case, if the person owning the interest to be acquired does not wish to part
with it, the solution in Article 931 can be applied; i.e. the legatee or devisee shall be entitled
only to the just value of the interest that should have been acquired.
c. He can even convey property which he very well know does not belong to him 39 provided
that it also does not belong to the legatee or devisee. 40 (If the testator thought the property
was his, although it is not really his, the legacy or devise is void, unless the property
subsequently becomes his.41)
What law shall determine the validity of a will as to its form?

42

A. Aspects of validity of wills

31
32
33
34
35
36
37
38
39
40
41
42

Article 792 NCC

Article 793 NCC
Article 836 NCC
Vide Article 930 NCC
Article 935, par. 1 NCC
Article 794 NCC
Real properties are enumerated in Article 415 and personal properties in Articles 416 and 417 NCC
Article 929 NCC
Vide Articles 930 and 931 NCC
Vide Article 937 NCC
Vide Article 930 NCC
Article 795 NCC

11
1. Extrinsic validity refers to the requirement of form (formal validity)
a. Governing law as to time
a) For Filipinos the law in force when the will was executed.
b) For foreigners same rule (Note: The assumption here, of course, is that the
will is being probated here.)
b. Governing law as to place
a) For Filipinos
(1) Law of citizenship If the testator is a Filipino, he can observe Philippine
laws; 43 or
(2) Law of domicile laws of the country where he may be; 44 or
(3) Law of residence; or
(4) Law of place of execution law of the country where he executes the will;
45
or
(5) Philippine law
b) For foreigners
(1) If the testator is an alien who is abroad, he can follow the law of his
domicile, or his nationality or Philippine laws 46 or where he executes
the will. 47
(2) If the testator is an alien in the Philippines, he can follow the law of his
nationality 48 or the laws of the Philippines, since he executes the will
here. 49
2. Intrinsic validity refers to the substance of the provisions (substantive validity)
a. Governing law as to time successional rights are governed by the law in force at the
time of the decedents death. 50
a) For Filipinos the law as of the time of death (Article 226351)
b) For foreigners depends on their personal law (Article 16, par. 2;
1039 53)

52

Article

b. Governing law as to place

a) For Filipinos the national law (Philippine law) of the decedent, that is, the
law of his country or nationality 54 - regardless of the place of execution.
However, if the conflict rules under the national law of the deceased refer the
matter to the law of the domicile and the foreigner was domiciled in the
Philippines at the moment of death, our courts will have to apply the
Philippine international law on succession (Renvoi doctrine).
b) For foreigners their national law (Article 16, par. 2; Article 1039)
Illustration:

43

Articles 804- 814 NCC

Article 815 NCC
45
Article 17 NCC (Lex loci celebrationis or locus regit actum)
46
Article 816 NCC
47
Article 17 NCC
48
Article 817 NCC
49
Article 17 NCC
50
Vide Article 2263 NCC
51
Article 2263. Rights to the inheritance of a person who died, with or without a will, before the effectivity of this Code, shall
be governed by the Civil Code of 1889, by other previous laws, and by the Rules of Court. The inheritance of those who, with
or without a will, die after the beginning of the effectivity of this Code, shall be adjudicated and distributed in accordance with
this new body of laws and by the Rules of Court; but the testamentary provisions shall be carried out insofar as they may be
permitted by this Code. Therefore, leitimes, betterments, legacies and bequests shall be respected; however, their amount
shall be reduced if no other manner can every heir be given his full share according to this Code.
52
Article 16. Par. 2 x x x However, intestate and testamentary succession, both with respect to the order of succession and
the amount of successional rights and the intrinsic validity of testamentary provisions, shall be regulated by the national law
of the person whose succession is under consideration, whatever may be the nature of the property and regardless wherein
said property may be found.
53
Article 1039. Capacity to succeed is governed by the law of the nation of the decedent.
54
Article 16 NCC
44

12
X executed a holographic will in 1923. It was presented for probate in 1946. It was
allowed in 1952. Was the allowance valid?
No, because there was no law authorizing the execution of a holographic will in 1923. The law
says that the validity of a will depends upon the observance of the law at the time it is made. 55
Problems:
a. X made a will instituting his friend Y as his only heir. He had no legitimate
descendants or ascendants or wife. He had a recognized spurious child Z. X
died in 1949. Can Z inherit?
Z cannot inherit because the father died in 1949 (under the old Civil Code). The
intrinsic validity of a will is governed by the law in force at the time of the testators
death. 56 Although Article 2253 provides indeed that rights which are declared for the
first time shall have retroactive effect even though the event which gave rise to them
may have occurred under the former legislation, but this is so only when the new
rights do not prejudice any vested or acquired right of the same origin. Thus, said
article provides that if a right should be declared for the first time in this Code, it
shall be effective at once, even though the act or event which give rise thereto may
have been done or may have occurred under the prior legislation, provided said new
right does not prejudice or impair any vested or acquired right of the same origin. the
right of ownership of Y became vested in 1949 upon the death of the testator and this
is so because of the imperative provision of the law which commands that the rights to
succession are transmitted from the moment of death. The new right recognized by
the new Civil Code in favor of the illegitimate child of the deceased cannot, therefore,
be asserted to the impairment of the vested right of Y.
b. An American executed a will in the Philippines, observing Philippine laws,
and distributing his estate in accordance with Philippine laws. Is the will
valid?
The provision is void, because the estate must be distributed in accordance
with the laws of his country, and not the law of the Philippines. Article 16 provides:
Real property as well as personal property is subject to the law of the country where
it is situated. However, intestate and testamentary succession both with respect to the
order of succession n the amount of successional rights and the intrinsic validity of
testamentary provisions shall be regulated by the national law of the person whose
succession is under consideration, whatever may be the nature of the property, and
regardless of the country wherein said property may be found.
c. X, an American had a legitimate child Y. X made a will in the Phil observing
Phil solemnities. In his will, he gave all his properties found here in the Phil
to his friend Z without giving anything to Y. In the USA, there are no
compulsory heirs. Can Y insist that he be given a share?
Since under America law as assumed in the problem a child is not a compulsory
heir, it follows that Y cannot insist that he be given a share. It was valid for the
testator to disregard him.
May a will void at the time of execution validated by subsequent law changing the
formalities required?
A will which is void for failure to observe the formalities required at the time of its execution
cannot be validated by the passage of a new law changing the formalities which now suits its form.

Subsection 2. TESTAMENTARY CAPACITY AND INTENT

Distinguish between testamentary capacity and testamentary power.
Testamentary capacity as used in the new Civil Code, is the right to make a will provided
certain conditions are complied with.

55
56

Vda de Enriquez vs. Miguel Abadia, L-7188, August 9, 1954

Article 2263 NCC

13
Testamentary power is the statutory right to dispose of property by acts effective mortis
causa)
Who have testamentary capacity?
1. All natural persons, unless disqualified by law. Juridical persons are
not granted testamentary capacity;
2. Persons 18 years or over; and
3. Persons of sound mind at the time the will is made.
Who are disqualified persons?
1. Those under 18; 57 and
2. Those of unsound mind;

58

A, a minor, executed a last will and testament. He died at the age of 21, after which
his will was submitted to probate. If you were the judge, would you approve it?
No, because the will is void. Under the law, a person who is a minor cannot execute a will.
His supervening capacity cannot validate a void will.
Note: In the computation of age of the testator, Article 13 of the Civil Code shall govern. A
year consists of 365 days. The last day of the required year (18th) should have already passed to
qualify a person to make a will. Our law does not recognize fractions of a day.
Does the extra day in a leap year affect the computation of the age of the testator? Yes,
because Article 13 speaks of a year as containing 365 days. This is a legal year which is not a
calendar year. The legal year and calendar year do not coincide because Article 13 does not
recognize a leap year. The legal year must always be 365 days.
What is unsoundness of mind (insanity)?
This is defined by the Code only by indirection because only soundness of mind is defined.
(Article 799)
What is soundness of mind (sanity)?
Negatively:
4. Not necessary that the testator be in full possession of reasoning
faculties;
5. Not necessary that the testators mind be wholly unbroken,
unimpaired, unshattered by disease, injury, or other cause.
Positively:
Ability to know three things:
1. Nature of the estate to be disposed of;
2. Proper objects of ones bounty; and
3. Character of the testamentary act. (It is not required, in order for this requisite to be
present, that the testator knows the legal nature of the will with the erudition of a civilest.
All that he needs to know is that the document he is executing is one that disposes of his
property upon death.
What is the presumption as to soundness of mind?
General rule rebuttable presumption of sanity (Article 800)
Exceptions two instances of rebuttable presumption of insanity:
1. When the testator, one month or less, before the execution of the will was publicly known
to be insane (Article 800); and
2. When the testator executed the will after being placed under guardianship or ordered
committed, in either case, for insanity (under Rules 93 and 101, respectively, of the Rules
of Court), and before said order has been lifted.

57
58

Article 797 NCC

Article 798 NCC

14
What is the time for determining mental capacity?
It is the time of execution of the will; no other temporal criterion is to be applied (Article
801).
At the time A executed his will, he was sane. One day thereafter, he became insane.
What is the effect of As subsequent insanity?
The will is not avoided. The rule is that supervening incapacity does not invalidate an
effective will. (Art. 801)
Can a death convict make a will?
A death convict, before his execution is expressly allowed by law to make a will. A convict
under civil interdiction is allowed to make a will because the civil interdiction prohibits a disposition
of property inter vivos , not mortis causa.
SUBSECTION 3. FORMS OF WILLS

What are the kinds of wills allowed in the Philippines?

a. Ordinary or notarial will that which requires, among other things, an attestation
clause, and acknowledgment before a notary public.
b. Holograph or holographic will the most important feature of which is its being
written entirely, from the date to the signature, in the handwriting of the testator.
Here, neither an attestation clause nor an acknowledgment before a notary public is
needed.
What are the common requirements of a will laid down by Article 804?
1. In writing; and
2. In a language or dialect known to the testator.
Notes:

Oral wills are not recognized in the Code.

In Suroza vs. Honrado, 110 SCRA 388, the will was declared void because in the opening
paragraph of the will, it was stated that English was a language understood and known
to the testratrix (the testatrix was illiterate). But in its concluding paragraph, it was stated
that the will was read to the testratrix and was translated into Filipino language. That
could only mean that the will was written in a language not known to the illiterate
testratrix and, therefore, it is void because of the mandatory provision of Article 804 of
the Civil Code. Translation of the language used will not cure the defect

Rule in attestation clause is different: The language or dialect need not be known to the
testator. The attestation clause of the ordinary or notarial will need not be known to the
testator. This is not a part of the testatmentary disposition.

Even the witness to the will need not know the language or dialect used in the attestation
clause. The law, however requires that it be interpreted to them, if they do not know it.
(Article 805, par. 4)

Presumption of compliance: It may sometimes be presumed that the testator knew the
language in which the will was written. On the authority of Abangan vs. Abangan, 40 Phil.
476, and Gonzales vs. Laurel, 46 Phil. 750, it seems that, in order for the presumptions to
apply, the following must appear:
1. The will must be in a language or dialect generally spoken in the place of execution;
and
2. The testator must be a native or resident of said locality.

What are the requisites of a notarial will?

15
Aside from the fundamental requisites that the testator be at least 18 years old, and
possessed of a sound mind:
a. The will must be in writing. There can be no oral will
b. It must be executed in a language or dialect known to the testator.
c. It must be subscribed at the end thereof by the testator himself or by the testators
name written by some other person in his presence or direction
d. It must be attested and subscribed by three or more credible witnesses in the
presence of the testator and of one another
e. It must be signed on each and every page thereof by the testator and the witnesses,
except the last page, on the left margin
f. All pages must be numbered correlatively in letters placed on the upper part of each
page
g. The attestation shall state the number of pages used upon which the will is written,
and the fact that the testator signed the will and every page therefore, or caused
some other person to write his name, under his express direction, in the presence of
the instrumental witnesses, and that the latter witnessed and signed the will and all
the pages thereof in the presence of the testator and of one another
h. It must be acknowledged before a notary public by the testator and the witnesses.
Notes:

Some discrepancies:
1) Par. 1, Article 805 No statement that the testator must sign in the presence
of the witnesses.
2) Par. 2, Article 805 0 No statement that the testator and the witnesses must
sign every page in one anothers presence.

These two things, however, are required to be stated in the attestation clause. The only
conclusion, therefore, is it cannot be presumed that the attestation clause was meant to tell a lie.
3) On the other hand, the attestation clause is not required to state that the
agent signed in the testators presence a circumstance mandated by the
first and second paragraph of the article.

Indication of date There is not requirement that an attested will should be dated, unlike a
holographic will.

Subscribed by the testator The article uses two words, referring to this requirement,
apparently interchangeably: subscribe and sign. Strictly speaking, they are not exactly
synonymous. To subscribe necessarily denotes writing, more precisely, to write under; to sign
simply means to place a distinguishing mark. Thus, signing has a broader meaning than
subscribing; not every signature is necessarily a subscription; not every distinguishing mark
is a writing.

Is placing of the testators thumb mark or thumbprint a signature within the

contemplation of this article? Does it comply with the statutory requirement?
In Matias vs. Salud, L-10751, 23 June 1958, it was held that the requisite that the will should
be signed by the testator is satisfied by a thumbprint or other mark affixed by him (De Gala vs. Ona,
53 Phil. 104; Dolar vs. Diancin, 55 Phil. 479; Neyra vs, Neyra, 42 O.G. 2817; Lopez vs. Liboro, 46
O.G. [Supp. To No1]); and that where such mark is affixed by the decedent, it is unnecessary to
state in the attestation clause that another person wrote the testators name at his request (Payad
vs. Tolentino, 62 Phil. 849).
Is a cross as a signature sufficient?
A sign of the cross, placed by the testator does not comply with the statutory requirement of
signature, unless it is the testators usual manner of signature or one of his usual styles of signing.
(Garcia vs. Lacuesta, 90 Phil. 489)
What are the requisites for signing by the agent of the testator?
Two requisites for signing by the agent:
1. The agent must sign in the testators presence; and

16
2. It must be done by his express direction.
What must the agent write?
It is unimportant whether the person who writes the name of the testator signs his own or
not. The important thing is that it clearly appears that the name of the testator was signed at his
express direction in the presence of three witnesses and that they attested and subscribed it in his
presence. That is all the statute requires. There is no necessity, so far as the validity of the will is
concerned, for the person who writes the name of the principal in the document to sign his own
name also. (Barut vs. Cabacungan, 21 Phil. 461)
May the agent be one of the attesting witnesses?
If there are more than three witnesses Yes.
If there are only three Debatable.
Is it necessary that the will is signed at the end?
If the will contains only dispositive provisions, there will be no ambiguity as to where the end
of the will is.
If, however, the will contains non-dispositive paragraphs after the testamentary dispositions,
one can refer to two kinds of end:
the physical end where the writing stops; or
the logical end where the last testamentary disposition ends.
Surely, signing at the physical end is always permissible, but equally permissible is signing at
the logical end. The non-dispositive portions are not essential parts of the will.
Note: Signing before the end invalidates not only the dispositions that come after, but the
entire will, because then one of the statutory requirements would not have been complied with.
Is it required that the witnesses actually saw the testator affixed his signature in
the will?
No, because the phrase in the presence does not necessarily require actual seeing, but only
the possibility of seeing without physical obstruction. In Jaboneta vs. Gustilo, 5 Phil. 541, it was said
that if a witness merely turned his back, the signing is still considered in his presence. (Could have
seen it had he chosen to)
What is the true test to determine the presence of the testator and the witnesses in
the execution of a will?
In Nera vs. Rimando, 18 Phil. 451, it was held that the true test of presence of the testator
and the witnesses in the execution of a will is not whether they actually saw each other sign, but
whether they might have seen each other sign, had they chosen to do so, considering their mental
and physical condition at the moment of inscription of each signature.
But it is especially to be noted that the position of the parties with relation to each other at
the moment of the subscription of each signature, must be such that they may see each other sign
of they choose to do so. It does not depend upon proof of the fact that their eyes were actually cast
upon the paper at the moment of its subscription by each of them, but that at the moment of its
subscription and their position with relation to each other were such that by merely casting their
eyes in the proper direction they could have seen each other sign. Thus, actual seeing is not
required, but the ability to see each other by merely casting their eyes in the proper direction.
A executed a will. At the time he affixed his signature in the will, X, one of the three
instrumental witnesses, was outside of the room, talking to a friend. When the will was
submitted to probate, it was opposed on the ground that the will is void, as one of the
witnesses was not present when the testator affixed his signature in the will. Will you
approve the will, if you were the judge?
No, because the will was not signed in the presence of one of the instrumental witnesses. The
law requires that at the time the testator or all the instrumental witnesses affixed their signatures,
the same must be done in the presence of one another. Since X was out of the room, he could not
be considered as present and could not have seen the signing of the document, as there was
physical obstruction. (Nera vs. Rimandi, 18 Phil. 450)

17
What are the two distinct things required of the witnesses?
1. Attesting which is the act of witnessing; and
2. Subscribing which is the act of signing their names in the proper places of the will.
Both must be done.
What is attestation clause?
The attestation clause is a record or memorandum of facts wherein the instrumental
witnesses certify that the will has been executed before them and that it has been executed in
accordance with the formalities prescribed by law. (Toray vs. Abaja, 47 Off. Gaz. 327)

Attestation clause is mandatory. A will without an attestation clause is void and

cannot be probated. (In re Estate of Neumark, 46 Phil. 841)

What is the purpose of the attestation clause?

Its purpose is to preserve in permanent form a record of the facts attending the execution of
the will so that in case of failure if memory of the witnesses or in case they are no longer available,
such facts may still be proved. (Leynes vs. Leynes, 68 Phil. 745)
Is there any difference between attestation and subscription?
Attestation and subscription differ in meaning. Attestation is the act of the senses, while
subscription is the act of the hand. The former is mental the latter is mechanical, and to attest a will
is to know that it was published as such, and to certify the facts required to constitute an actual and
legal publication; but to subscribe a paper published as a will is only to write on the same paper the
names of the witnesses, for sole purpose of identification. (Caneda vs. Court of Appeals, 222 SCRA
781)
In Toboada vs. Rosal, it was held that attestation consists in witnessing the testators
execution of the will in order to see and take note mentally that those things are done which the
statute requires for the execution of a will and that the signature of the testator exists as a fact. On
the other hand, subscription is the signing of the witnesses names upon the same paper for the
purpose of identification of such paper as the will which was executed by the testator. As it involves
a mental act, there would be no means, therefore of ascertaining by a physical examination of the
will whether the witnesses had indeed signed in the presence of the testator and of each other
unless this is substantially expressed in the attestation.
Should the attestation clause be written in a language or dialect known to the
testator?
The attestation clause need not be written in a language or dialect known to the testator
since it does not form part of the testamentary disposition. (Caneda vs. Court of Appeals, 222 SCRA
781)
Should the language used in the attestation clause be known to the attesting
witnesses?
The language used in the attestation clause need not be known to the attesting witnesses.
The last paragraph of Article 805 merely requires that, in such a case, the attestation must be
interpreted to the witnesses. (Caneda vs. Court of Appeals, 222 SCRA 781)
What are the essential facts which must be stated in the attestation clause?
1. The number of pages used upon which the will is written;
2. That the testator signed, or expressly caused another to sign, the will and every page
thereof in the presence of the attesting witnesses; and
3. That the attesting witnesses witnessed the signing by the testator of the will and all its
pages, and that said witnesses also signed the will and every page thereof in the
presence of the testator and of one another.
What is the effect of lack of the above statements in the attestation clause?

18
Under the third paragraph of Article 805, such a clause, the complete lack of which would
result in the invalidity of the will. (Caneda vs. Court of Appeals, 222 SCRA 781)
In Uy Coque vs. Sioca, it was held that when the attestation clause failed to state the number
of sheets or pages upon which the will was written, the will cannot be probated (In re Will of
Andrada, 42 Phil. 180). Such statement is mandatory. Non-compliance therewith invalidates the will.
Such fact cannot be proven by evidence aliunde.

When the testator had expressly directed another to sign the formers name in the
will, this fact must be stated in the attestation clause. Otherwise, the will is fatally
defective. (Garcia vs. Lacuesta, 90 Phil. 489)

The signatures of the witnesses are on top or at the right or bottom margin. Is the
will valid? Why?
Yes, because there was substantial compliance with the law. The purpose of the law is merely
to identify the pages used and to prevent fraud. (Avena vs. Garcia, 42 Phil. 145)
There is a mandatory and a directory part to this requirement:
The mandatory part the signing on every page in the witnesses presence.
The directory part the place of the signature, i.e. the left margin; the signature can be
affixed anywhere.
A executed a will consisting of ten pages. At the probate, B, one of his children
interposed an opposition on the ground that A and one of the witnesses has not signed
one of the pages of the same. Rule on the opposition and cite your reasons for your ruling.
As a rule, the testator and the instrumental witnesses must sign the will on each and every
page thereof. The defect is fatal if there is failure to have the original signatures. (Estate of Tampoy
vs. Alberastine, L-14322, Feb. 25, 1960). However, if there was a mere inadvertence of one of the
three witnesses or even the testator, where he forgot to sign on one of the pages, the will must be
admitted to probate because of the application of the liberality rule. The will must be respected,
rather than having the testator die intestate. (Icasiano vs. Icasiano, L-18979, June 30, 1964)
May the notary public himself be a witness in a last will and testament? Why?
No, because the notary public cannot be considered as third instrumental witness since he
could not have acknowledge before himself his having signed the will. He cannot split his personality
into two so that one will appear before the other to acknowledge his participation in the making of
the will. To permit such a situation to obtain would be sanctioning a sheer absurdity. (Cruz vs.
Villasor, 54 SCRA 31)
What is the purpose of the law in requiring that the pages of the will be numbered?
The purpose is to prevent fraud, and to afford means of preventing substitution of the will.
(Lopez vs. Leboro, 81 Phil. 429)
The attestation clause of Xs will does not contain his signature. At its probate, it is
being opposed on that basis. Is the opposition correct? Why?
No, because the attestation clause is not an act of the testator. It is an act of the
instrumental witnesses. The testators failure to sign it is not fatal; it is immaterial. (Abangan vs.
Abangan, 40 Phil. 467; Estate of Paula Tray, L-2415, July 31, 1950; Fernandez vs. Vergel de Dios,
46 Phil. 922)
Suppose the attestation does not state the number of pages, is the will valid? Why?
Yes. In Taboada vs. Hon. Rosal, 48 SCRA 195, the Supreme said that even the attestation
clause does not state the number of pages, if the same can be determined from the will, it is valid.
This is because of the liberality rule or that there was substantial compliance with the law. (Singson
vs. Florentino, Oct. 25, 1952; Perez vs. Rosal, 118 SCRA 195)
What is the effect if the instrumental witnesses did not sign the attestation clause?
Why?

19
The will is void, because the total absence of the signature of the witnesses shows their nonparticipation. (In re: Testate of Vicente Cagro, April 29, 1953[92 Phil. 1032]) The attestation clause
must be signed by the witnesses at the bottom thereof, and not on the left hand margin, otherwise,
it would be easy to add such clause to a will on a subsequent occasion and in the absence of the
testator and any or all of the witnesses.
If the entire document consists of only two sheets, the first containing the will and the
second, the attestation clause, there need not be any marginal signatures at all (Abangan vs.
Abangan, 40 Phil. 476)
Suppose the attestation clause does not state that the will was signed by the
testator in the presence of the witnesses, is the will valid? Why?
As a rule, it is void, except if such statement is made in some other parts of the will. (Gil vs.
Murciano, L-3362, March 1, 1951; Singson vs. Florentino, Oct. 25, 1952; Perez vs. Rosal, 118 SCRA
195)
If the acknowledgment of the will was not signed by the notary public in the
presence of the testator and the witnesses, is the will valid?
The notary public need not be present at the time of the execution of the will. In Javellana vs.
Ledesma, 97 Phil. 258, it was held that whether or not the notary signed the certification of
acknowledgment in the presence of the testator and the witnesses does not affect the validity of the
will. A comparison of Articles 805 and 806 of the new Civil Code reveals that while the testator and
witnesses must sign in the presence of each other. All that is thereafter required is that every will
must be acknowledged before a notary public by the testator and the witnesses: (Article 806); i.e.
that the latter should avow to the certifying officer the authenticity of their signatures and the
voluntariness of their actions in executing the testamentary dispositions. The subsequent signing
and sealing by the notary of his certification that the testament was duly acknowledged by the
participants therein is no part of the acknowledgment itself nor of the testamentary act. Hence, their
separate execution out of the presence of the testator and his witnesses can not be said to violate
the rule that testaments should be completed without interruption.
Thus, the certification of acknowledgment need not be signed by the notary in the presence
of the testator and the witnesses. Article 806 does not require that the testator and the witnesses
must acknowledge on the same day that it was executed. Neither does the article require that the
testator and the witnesses must acknowledge in one anothers presence. However, if the
acknowledgement is done by the testator and the witnesses separately, all of them must retain their
respective capacities until the last one has acknowledged.

However, the execution of the will must be done in one occasion. (Andalis vs.
Pulgueras, 59 Phil. 643)

A notarial will although notarized is not considered a public document because the
notary is not required to retain a copy thereof or to file a copy with the office of the
Clerk of Court where copies of documents notarized by notaries are submitted every
month. The rationale behind is to keep the contents of the will secret so that the
testator may not be unduly pressured or influenced to change his will by unscrupulous
relatives or interested persons. The notary public is not even allowed to read the will
unless permitted by the testator. The only time the notary public is required to read
the will is when the will is executed by a blind person. (Article 808)

Can the notary public be counted as one of the attesting witnesses?

In Cruz vs. Villasor, 54 SCRA 31, the notary public before whom the will was acknowledged
cannot be considered as the third instrumental witness since he cannot acknowledge before himself
his having signed the will. Consequently, if the third witness was the notary public himself, he would
have to avow, assent, or admit his having signed the will in front of himself. This cannot be done
because he cannot split his personality into two so that one will appear before the other to
acknowledge his participation in the making of the will. To permit such a situation to obtain would be
sanctioning a sheer absurdity.

Note that the affixing of documentary stamp is not required for validity.

What are the two special requirements for handicapped testator?

A. For deaf / deaf mute testator:

20
1. If able to read he must read the will personally;
2. If unable to read he must designate two persons to read the will and communicated to
him in some practicable manner its contents.
B. For blind testator:
The will must be read to him twice, once by one of the subscribing witnesses, and
another time by the notary.
What is the effect of failure to comply with the requisites of reading the will under
Article 808?
If the will was not read twice by the persons mentioned in the will, the will is void.
Provision of Article 808 is mandatory. This provision is also applicable when the testator is
incapable of reading the will himself (as when he is illiterate) (Garcia vs. Vasquez, 32 SCRA 489); or
due to poor, defective or blurred vision (Alvarado vs. Gaviola, Jr. 226 SCRA 348).
What are the distinctions between Articles 807 and 808?
1. In Article 807 (deaf or deaf-mute testator) if the testator is literate, he must
personally read the will. In Article 808 (blind testator) whether literate or not, the
will must be read ti him because he cannot see.
2. In Article 807 if illiterate, the will must be read by two persons designated by the
testator. In Article 808 whether literate or not, the will must be read twice. The
reading shall be done by one of the subscribing witnesses and by the notary public
before whom the will is acknowledged.
3. In Article 807 reading by the two designated persons is not enough. They must
communicate the contents to the testator. In Article 808 reading is enough because
the testator can hear and listen.
What is the effect of substantial compliance of the formal requisites?
In the absence of bad faith, forgery, or fraud, or undue influence and improper pressure and
influence, defects and imperfections in the form of attestation or in the language used therein shall
not render the will invalid if it is proved that the will was in fact executed and attested in substantial
compliance with all the requirements of Article 805. (Article 809)

Note that the article speaks only of defects and imperfections in the form of the attestation or
in the language used therein. It does not cover the substance or the basic elements of an
attestation clause which are mandatory. If the basic requirements are omitted, like the
absence of an attestation clause, absence of the signatures of the required number of
witnesses on the attestation clause, the absence of a statement that the testator signed the
will in the presence of the instrumental witnesses, will invalidate the will. No amount of liberal
interpretation would save the will.
What is the test in determining substantial compliance?

In determining whether the statements made in the attestation clause comply substantially
with what the law requires, the correct rule is that omissions which can be supplied by an
examination of the will itself, without resorting to extrinsic evidence, will not be fatal; but omissions
which cannot be supplied except by presenting evidence aliunde will invalidate the attestation
clause.

There must be a strict compliance with the substantial requirements of an attestation clause
of the will to insure its authenticity but formal imperfections which do not affect the will, must
be disregarded so as not to defeat the testators wishes.
How can substantive defect be cured? (Article 809)

Defects of substance can be cured only by evidence within the will itself not by evidence
aliunde (extrinsic evidence).
What is a holographic will?
A holographic will is one entirely written, dated and signed by the hand of the testator.
State the formalities of a holographic will.

21
A holographic will must be:
a.
b.
c.
d.
e.
f.

In a language known to the testator;

Entirely written in the handwriting of the testator;
Completely dated;
Signed by the testator;
With animus testandi;
Executed at the time holographic wills are allowed.

The holographic will of A has no date except the one found on the second page of
the same. Is the will valid? Why?
Yes, since the law does not specify any particular location where the date should be placed.
(Labrador vs. CA, 184 SCRA 170)
X executed a holographic will dated Christmas Day 1990. Is the will valid? Why?
Yes, because it was completely dated, written and signed by the testator. The date Christmas
day 1990 is a substantial compliance with the requirements of the law. (Roxas vs. De Jesus, Jr. G.R.
No. 38338, Jan. 28, 1985[ 134 SCRA 245]) The law has a tender regard for the will of the testator
expressed in his last will and testament because the testators disposition is better than that which
the law can make.
Where the date written is Feb/61 without the specific date of the month having been
indicated, the probate of the holographic will was allowed following the rule of substantial
compliance.

Where should the testator sign the holographic will?

The testator should sign at the end of the will. This is inferable from the wordings of Article
812. Any additional provision after the signature of the testator must further be signed and dated.
Clearly then, the signature must be placed at end of the dispositions.
What is the concept of probate of holographic wills?
Probate is the allowance of a will after proving before a competent court:
1. Its due execution by the testator; and
2. Its compliance with the solemnities prescribed by law.
Unless a will is allowed probate, it shall not pass any property. And the effect of the probate
of a will I that it is conclusive to its due execution. Probate is limited however to the formal
or extrinsic validity of the will.

The probate of notarial wills is governed by Article 838.

What are the issues to be resolved in the probate of a holographic will?

In a petition to admit a holographic will to probate, the only issues to be resolved are the
following:
1.
2.
3.
4.

Whether the instrument submitted is, indeed the decedents last will and
testament;
Whether said will was executed in accordance with the formalities prescribed by
law;
whether the decedent had the necessary testamentary capacity at the time the
will was executed; and
Whether the execution of the will and its signing were the voluntary acts of the
decedent. (Ajero vs. CA)

In the probate of a holographic will, how many witnesses must be presented?

It shall be necessary that at least one witness who knows the handwriting of the testator
explicitly declare that the will and the signature are in the handwriting of the testator. If the will is
contested, at least three of such witnesses shall be prepared.

22
In the absence of a competent witness, and if the court deem it necessary, expert testimony
may be resorted to.
Can a holographic will be probated upon the testimony of witnesses? Is it necessary
to produce the document itself? (Can a lost holographic will be probated?)
In Gan vs. Yap, 104 Phil. 509, if the holographic will has been lost or destroyed and no other
copy is available, the will cannot be probated because the best and only evidence is the handwriting
of the testator in said will.
Can it be proven by a photostatic or Xerox copy?
A photostatic or Xerox copy of the holographic will may be allowed because a comparison can
be made with the standard writings of the testator. (Rodelas vs. Aranza, 119 SCRA 16). In Gan vs.
Yap, the Court ruled that the execution and the contents of a lost or destroyed holographic will may
not be proved by the bare testimony of witnesses who have seen and/or read such will. The will
itself must be presented; otherwise, it shall produce no effect. The law regards the document itself
as material proof of authenticity. But in Footnote 8 of said decision, it says that Perhaps it may be
proved by a photographic or photastatic copy. Even a mimeographed or carbon copy; or by other
similar means, if any, whereby the authenticity of the handwriting of the deceased may be exhibited
and tested before the probate court.
What are the formal requirements for additional dispositions in a holographic will?
4. Signature; and
5. Date
What are the rules when there are several additional dispositions?
1. Signature and date; or
2. Each additional disposition signed and undated, but the last disposition signed and date.
3. If, in the case of several additional dispositions the additional ones before the last are
dated but not signed, only the last will be valid, provided the last is signed and dated.
What are the rules for curing defects? (Article 813)

If the last disposition is signed and dated

a. Preceding dispositions which are signed but not dated are validated.
b. Preceding dispositions, which are not signed but dated, are void.
c. Preceding dispositions which are not signed and not dated are void, unless written on the
same date and occasion as the latter disposition

The discussion above presupposes that the latter disposition was dated and
signed by the testator himself.
Therefore;

a. If done by another, without the testators consent, same will not affect the previous
dispositions, which remain void if in themselves void; and remain valid if in
themselves valid.
b. If done another with the testators consent, same effects in (d), because the latter
disposition is not really holographic (not done by the testator himself.)
Suppose there is an alteration without the full signature, is the whole will void?
(Article 814)
No, only the alteration is void. However, if what was altered was the date or the signature,
the alteration without the full signature makes the whole will void.
Note:

Full signature does not necessarily mean the testators full name; it rather means his usual
and customary signature.

A executed a holographic will in 1962. He authenticated or signed the will with his
initials. In addition, there is an inserted testamentary disposition found in page two of the
will also authenticated with his initials. Are such authentications valid?

23
We must distinguish. The act of A in signing the will with his initials is a valid authentication.
This is clear from Article 810. The law merely requires that the will must be entirely written, dated
and signed by the hand of the testator himself. However, the act of A in authenticating the inserted
testamentary disposition with his initials is not a valid authentication. This is clear from Article 814,
which declares that in case of any insertion, cancellation, erasure or alteration in a holographic will,
the testator must authenticate the same by his full signature.
Give the rules governing the formal validity of wills.
Articles 815, 816 and 817 lay down the rules of formal validity of wills:
1. A Filipino abroad (Article 815)
2. An alien abroad (Article 816)
3. An alien in the Philippines (Article 817)

Not covered is a situation of a Filipino executing a will in the Philippines

Every testator, whether Filipino or alien, wherever he may be, has five choices as to what law
to follow for the form of his will:
1. The law of his citizenship (Articles 816 and 817 for aliens; applying to Filipinos by analogy,
Article 15)
2. The law of the place of execution (Article 17)
3. The law of his domicile (Article 816 for aliens abroad; applying to aliens in the Philippines and
to Filipinos by analogy)
4. The law of his residence (Same basis as [3])
5. The Philippine law (Articles 816 and 817 for aliens, Article 15, applying to Filipinos by
analogy)
Thus:
1. If the testator is a Filipino and the will is executed in the Philippines, then its formal
validity is governed by the Civil code of the Philippines (Article 17).
2. If the testator is a Filipino and the will is executed in a foreign country, then its formal
validity is governed either (a) by the law of the place where the will is made, or (b) by the
Civil Code of the Philippines. It must be observed that Article 815 of the New Civil code
does not state that a will made by a Filipino in a foreign country may be executed in
accordance with the formalities prescribed by the Civil Code of the Philippines. In spite of
the omission, however, it is submitted that such a will may still be admitted to probate in
the Philippines. Not to grant this concession to Filipino citizens would be illogical and
unfair considering the fact that it is even granted to foreigners. (Artcile 816)
3. If the testator is a foreigner and the will is executed in the Philippines, then its formal
validity is governed either (a) by the Civil Code of the Philippines (Article 17), or (b) by
the law of his own country (Article 817).
4. If the testator is a foreigner and the will is executed in a foreign country, then its formal
validity is governed either (a) by the law of the place where the will is made (Article 17),
or by the law of his own country (Article 816), or by the law of the country where he
resides, or (d) by the Civil Code of the Philippines.
What is a joint will? Distinguish it from mutual and reciprocal wills.
A joint will is 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.
Mutual wills are wills executed pursuant to an agreement between two persons to dispose of
their property in a particular manner, each in consideration of the other.
Reciprocal wills are wills in which the testators name each other as beneficiaries under similar
testamentary plans.
It is clear from these definitions that a joint will may either be mutual or reciprocal, although
it is not necessary so, just as mutual or reciprocal wills may be joint of they are contained in a single
testamentary instrument.

Are joint wills allowed?

24
1. If executed by Filipinos in the Philippines (Article 818) void.
2. If executed by Filipinos abroad (Article 819) void even if authorized by the law of the
place of execution (an exception to the permissive provision of Articles 17 and 815)
3. If executed by aliens abroad governed by Article 816.
4. If executed by aliens in the Philippines controverted: One view void; because of
public policy; Another view Article 817 governs.
5. If executed by a Filipino, always void; as to the alien, [3] or [4] would apply.

SUBSECTION 4. WITNESSES TO WILLS

What are the six qualifications for witnesses to notarial wills?
At the time of attesting, they must;
a.
b.
c.
d.
e.
f.

be of sound mind
be at least 18 years of age
be able to read and write
not be blind, deaf, or dumb
be domiciled in the Philippines
not have been convicted (by final judgment) of falsification of a document, perjury, or
false testimony

How is competence distinguished from credibility (of a witness)?

In Gonzales vs. CA, 90 SCRA, 183, it was held that in the strict sense, the competency of a
person to be an instrumental witness to a will is determined by the statute, that is Articles 820 and
821, whereas his credibility depends on the appreciation of his testimony and arises from the belief
and conclusion of the Court that said witness is telling the truth. Competency as a witness is one
thing, and it is another to be a credible witness, so credible that the Court must accept what he
says. Trial courts may allow a person to testify as a witness upon a given matter because he is
competent, but may thereafter decide whether to believe or not to believe his testimony.
Thus, the rule is that the instrumental witness in order to be competent must be shown to
have the qualifications under Articles 820 and none of the disqualifications under Article 821 and for
their respective testimony to be credible, that is worthy of belief and entitled credence, it is not
mandatory that evidence be first established on record that the witnesses have a good standing in
the community or that they are honest and upright or reputed to be trustworthy and reliable, for a
person is presumed to be such unless the contrary is established otherwise. In other words, the
instrumental witnesses must be competent and their testimonies must be credible before the court
allows the probate of the will they have attested.

The term credible witness or witnesses means competent witnesses and not those who
testify to facts from or upon hearsay evidence.

Capacity to be a witness in court (Rule 130, Section 20, Revised Rules of Evidence)
different from capacity to be a witness in wills. The latter has more restrictions.

59

is

Is it a requirement that the witnesses can speak and write the very language in
which the will was written? Is it essential for the witnesses to know the language in
which the attestation has been written?
No, since after all, the witnesses do not even have to know the contents of the will. It is not
even essential for the witnesses to know the language in which the attestation has been written. It is
sufficient that the same be interpreted to him.
What is the effect of the subsequent incapacity of a witness?
It shall not prevent the allowance of the will. But of course the said witness cannot testify.
This does not mean however that the validity of the will is impaired by such fact.

59
Section 20. Witnesses; their qualifications. Except as provided in the next succeeding section, all persons who can
perceive, and perceiving, can make known their perception to others, may be witnesses.

25
X made a notarial will with A, B and C as witnesses. Aside form the other
testamentary provisions in the will, A was given a piece of land as a devise. Is the will
valid?
The will is valid, since there were three credible witnesses. However, while A is capacitated as
a witness, he is incapacitated to receive the devise, hence the provision regarding said devise should
be disregarded, the rest of the will being valid.
To whom does the disqualification extend to?
1.
2.
3.
4.
5.

the witness;
the spouse of the witness;
the parent of the witness;
the child of the witness;
anyone claiming the right of said witness, spouse, parent or child (ex. The creditor of the
witness if the said creditor has not been paid.)
What is the purpose of the law in making this disqualification?
To prevent undue influence
What is the effect of this disqualification if the witness is a compulsory heir?
The said heir is still entitled to the legitime.
Can creditors of the estate of the testator act as instrumental witnesses to a will?

Yes. But he is disqualified to inherit. However, he is qualified to receive his credit, which after
all cannot be considered a gift.
Can a witness who is disqualified to inherit under Article 824 still be a witness in
court?
Yes. He is disqualified to inherit but not to testify. He can attest to the due execution of the
will at the probate hearing. He will be admitted as a witness as if the devise or legacy had not been
made or given.
SUBSECTION 5. CODICILS
AND INCORPORATION BY REFERENCE

How is a codicil distinguished from a subsequent will?

A codicil, by definition, explains, adds to, or alters a disposition in a prior will; while a
subsequent will makes independent and distinct dispositions.
The distinction, however, is purely academic because Article 826 requires the codicil to be in
the form of a will anyway.
What requirements must be complied with in order that a codicil may be effective?
It is required that the codicil be executed as in the case of a will (Article 826). This means
that the testator must also possess testamentary capacity and must comply with the formalities
prescribed by law in the execution of a will.
What is the rule in case of conflict between a will and a codicil?
The codicil should prevail, it being the later expression of the testators wishes.
Is there an exception to the rule that if an instrument is not executed with all the
formalities of a will, it cannot be admitted to probate?
The general rule is that an instrument which is not executed in accordance with the
formalities of a will shall not be probated. The exception is given in Article 827 which permits
incorporation by reference provided the requisites enumerated are present.
What are the requisites for the validity of documents incorporated in a will by
reference?

26

1.

The document or paper must referred to in the will must be in existence at the time of
the execution of the will;

2.

The will must clearly describe and identify the same, stating among other things the
number of pages thereof;

3.

It must be identified by clear and satisfactory proof as the document or papers

referred to therein;

4.

It must be signed by the testator and the witnesses on each and every page, except in
case of voluminous books of account or inventories.

Comments on the foregoing requisites:

1. In No. (1), if the document or paper was prepared after the execution of the will, the validity
of the will is not affected. The reference to the writing must appear on the face of the will.
That the document was in existence at the time the will was made can be proved by extrinsic
evidence.
2. In No. (2), the pages must be stated even if the writing consists of voluminous books of
accounts or inventories mentioned in No. (4). The description and identification of the writing,
and the statement of the number of pages thereof must likewise appear on the face of the
will.
3. In No. (3), the identification of the writing may be shown by extrinsic evidence.

Note that Article 827 can refer only to such documents as inventories, books of accounts,
documents of title, and papers of similar nature; the document should, under no
circumstances, make testamentary dispositions, for then the formal requirements for will
would be circumvented.

In the signing of documents or papers (when not voluminous), there is no need to make an
attestation clause. The attestation clause on the will is enough. (Unson vs. Abella, 43 Phil.
494)

Can holographic will incorporate documents by reference?

The test of Article 827 suggests a negative answer. Paragraph 4 of the article requires the
signatures of the testator and the witnesses on every page of the incorporated documents (except
voluminous annexes). It seems, therefore, that only attested will can incorporate documents by
reference, since only attested wills are witnesses (unless, of course, the testator executes a
holographic will, and superfluously, has it witnessed).
Also, a holographic will requires that its contents be in the handwriting of the testator, thus if
the other instrument is not entirely in the handwriting of the testator, it is submitted that there can
be no valid incorporation by reference in a holographic will.
Must the codicil conform to the form of the will to which it refers? (That is, a
holographic codicil for a holographic will, and notarial codicil for a notarial will?)
The law does not require this. Thus, an attested will may have a holographic codicil; a
holographic will may have an attested codicil. It is enough that the codicil has the formalities of a
will. Article 826 requires that the codicil be executed as in the case of a will, not of the will.
SUBSECTION 6. REVOCATION OF WILLS
AND TESTAMENTARY DISPOSITIONS

What are the conflicts rules for revocation of wills?

a. For revocation outside the Philippines:
(1) If not domiciled in the Philippines:
a) follow the law of the place where the will was made; or
b) follow the law of the place where the testator was domiciled at that
time.
(2) If domiciled in the Philippines (this situation is not covered by Article 829):

27
a) follow the law of the Philippines (since his domicile is here); or
b) follow the general rule of lex loci celebrationis of the revocation; or
c) follow the law of the place where the will was made (by analogy with
the rules on revocation where the testator is a non-Philippine
domiciliary)
b. If revocation is in the Philippines, follow Philippine law.
What are the modes of revoking a will under Philippine law?
1. By implication of law;
2. By a subsequent will or codicil, or other writing done with the formalities of a will; and
3. By overt acts of physical destruction. (Article 830)
What are examples of revocation by implication or operation of law?
1.
2.
3.
4.
5.

Preterition (Article 854);

Legal separation (Article 63, FC)
Unworthiness to succeed (Article 1032);
Transformation, alienation, or loss of the object devised or bequeathed (Article 957);
Judicial demand of a credit as a legacy (Article 936).

What are the requisites for a valid revocation by a subsequent instrument?

1. The subsequent instrument must comply with the formal requirements of a will; (Molo vs.
Molo, 90 Phil. 37)
2. The testator must possess testamentary capacity;
3. The subsequent instrument must either contain an express revocatory clause or be
incompatible with the prior will (Article 831) [Revocation by a subsequent instrument may be
express or implied].

Like any other will, such wills must be probated in order to take effect. (Molo vs. Molo)

What are the four ways of destroying a will?

1.
2.
3.
4.

Burning;
Tearing;
Canceling; or
Obliterating.

What are the requisites for revocation by overt act?

1)
2)
3)
4)
5)

There must be an overt act specified by the law;

There must be a completion at least of the subjective stage;
There must be animus revocandi or intent to revoke;
The testator at the time of revoking must have capacity to make a will;
The revocation must be done by the testator himself, or by some other person in his
presence and by his express direction.

Thus there must be corpus the physical destruction itself; there must be evidence of
physical destruction; and animus the capacity and intent to revoke.

Corpus and animus must concur. One without the other will not produce revocation.

Even if the testator shall state that his will is irrevocable, such provision will have no
binding effect on him because any waiver or restriction of this right is void (Article
828).

Is the mere intent to revoke sufficient to effect revocation of a will?

No, intent to revoke is not sufficient. This is only one of the elements. There must be overt
act of burning, tearing, obliterating, or canceling by the testator or any one under his express
direction. (Manaloto vs. Ca, GR No. 76464, February 29, 1988)

28
T, the testator, threw his will on a stove but it was not burned because H, one of the
heirs tried to recover it from the stove. Was the will revoked?
No, because there was no physical destruction. However, the heir who saved it is not entitled
to inherit due to unworthiness (Article 1032).
T executed a will in 1990 with his nephew N who was living with him as a principal
beneficiary. In 1991, with intent to revoke the will, he sent N to get it from the safe so
that he can destroy it; however, knowing of the intent of his uncle, substituted another
paper inside the envelope and hid the real will. It was this envelope which he gave to the
testator. The latter, without investigating the contents, subsequently destroyed it by
burning. After his death in 1992, N presented the will, which was hidden, for probate. Is
there a revocation in this case?
There is no revocation by burning because although there was intent to revoke, yet there was
no actual physical destruction. Not all the intention in the world without destruction can revoke a
will; and not all the destruction in the world without the intention can revoke a will. The two must
always go together. However, the heir who saved it is not entitled to inherit due to unworthiness
(Article 1032).
What is the effect of crumpling of a will?
Crumpling of a will is not equivalent to tearing. There us no revocation of the same. However,
in Roxas vs. Roxas, 48 Phil., the Supreme Court said that crumpling with intent to revoke constitutes
revocation.
What is the effect of tearing of the will up to the signature only?
If the testator tears the will up to the signature, there is revocation because to goes to the
heart of the will. However, if it is only the signature of the witness, there is no revocation.
X made a will making Y his heir. X then learned that Y was dead, so he made
another will instituting Z as heir. If Y turns out to be still alive, who inherits?
Y inherits, because the revocation was based on a false cause.
What if the testator states in his second will: I am not sure whether Y is dead or
still alive. However, I hereby revoke the legacy to him which I made in my first will. Is
there a revocation of the legacy?
Yes, for here, he cannot be said to be proceeding upon an error.
If a will is destroyed without the testators express direction, can the will still be
established and the testators estate distributed in accordance therewith?
Yes, but the same must be proved in accordance with the rules of evidence: a) the contents
of the will; b) its due execution; and the fact of its unauthorized destruction, cancellation, or
obliteration.
Can there be revocation by oral declaration?
Revocation cannot be done by mere parol. Generally speaking, revocation of a written will
can be accomplished by the testator only by another writing, by destruction of the instrument, or by
some act manifest thereon, except where, under the doctrine of implied revocation by a change in
circumstances, he may revoke his will indirectly by some act which results in such a change.
If a subsequent will which revokes a prior will and the said subsequent will
becomes inoperative by reason of the incapacity of or repudiation by the heirs designated
therein, does this fact affect the revocation? (Will the revocation made by the testator in
said subsequent will remain effective?)
A revocation made in a subsequent will shall take effect, even if the new will should become
operative by reason of the incapacity of the heirs, devisees, or legatees designated therein, or by
their renunciation (Article 832). The reason is that the act of revoking a will is entirely distinct,
separate and independent from the testamentary disposition contained in the subsequent will.
Moreover, the incapacity of or repudiation by, the heirs is beyond the control of the testator, but the
act of revocation is within his absolute control.

29
What is the doctrine of dependent relative revocation?
The failure of the new testamentary disposition, upon whose validity the revocation depends,
is equivalent to the non-fulfillment of a suspensive condition, and hence prevents the revocation of
the original will. But a mere intent to make at some time a will in place of that destroyed will not
render the destruction conditional. It must appear that the revocation is dependent upon the valid
execution of a new will.
This doctrine is not limited to the existence of some other document and has been applied
where a will was destroyed as a consequence of a mistake of law.
What is the effect of implied revocation?
It only annuls such dispositions in the prior will as are inconsistent with or contrary to those
contained in the later will. (Article 831)
What is the effect of revocation on the recognition of an illegitimate child?
The recognition of an illegitimate child does not lose its legal effect, even though the will
wherein it was made should be revoked. (Article 834)

SUBSECTION 7. REPUBLICATION
AND REVIVAL OF WILLS

What is republication?
It is the process of re-establishing a will, which has become useless because it was void, or
had been revoke.
How may republication be made?
1. Express republication or republication by re-execution of the original will the testator
reproduces in a subsequent will the dispositions contained in a previous one which is void as
to its form (the original provisions are copied); and
2. Implied republication or republication by reference the testator executes a codicil referring
to a previously revoked will which is valid as to its form, or to a will which is void not as to its
form but for other causes, such as want of testamentary capacity.
What are the requisites in republication by re-execution?
1. The original will must be void as its form;
2. All the testamentary dispositions in the original will must be reproduced (not merely referred
to) in the subsequent will;
3. The new will must be executed in accordance with the formalities required by law.
What are the rules in republication?
1. To republish a will void as to its form, all the dispositions must be reproduced in the new or
subsequent will.
2. To republish a will valid as its form but already revoked, the execution of a codicil which
makes reference to the revoked will is sufficient.
What are the effects of republication by virtue of a codicil?
1. The codicil revives the previous will.
2. The old will is republished as of the date of the codicil makes it speak, as it were, from the
new and later date.
3. A will republished by a codicil is governed by a statute enacted subsequent to the execution
of the will, but which was operative when the codicil was executed.
What are the requisites in republication by reference?
1. The will must be void for causes other than as to its form;
2. The codicil must refer to the previous will; and

30
3. It must be executed as in the case of a will.
What is revival of wills?
Revival is the restoration or re-establishment of a revoked will or revoked provisions thereof,
to effectiveness, by virtue of legal provisions.
What is the difference between republication and revival?
1. Republication of wills is an the act of the testator.
2. Revival is one that takes place by operation of law.
What are examples of revival by operation of law?
1. By implication of Article 837 if the second will merely impliedly revoked the first will, and the
second will was itself revoked, the first will is automatically revived.
2. If a compulsory heir in the direct line is omitted, the institution of heir is annulled; but should
the omitted heir die before the testator, the institution is revived, without prejudice to the
right of representation (Article 854).
Application:
1. T executed two wills. Under the first will, A is the only beneficiary, while under the
second will, B is the only beneficiary. Subsequently, he executed a codicil wherein
he expressly revoked the second will. May the first will now be admitted to probate
as his last will and testament?
Yes. Express revocation is superior to implied revocation. When T expressly revoked his second
will by a codicil, the effect is that the will ceases to exist and is as inoperative as if it has never
been written. Consequently, there is now only one will of T which remains the first will which
was executed. In reality, the first will was not considered revived since it has never been validly
revoked in the first place.
2. T made 3 wills. Will No. 2 expressly revoked Will No. 1. Will No. 3 revoked Will No.
2. Is Will No. 1 revived?
No, by express provision of Article 837. The rule is based on the principle that the revocatory
clause of the second will took effect immediately or at the instant the revoking will was made. (This
is the principle of instanter)
3. T made 3 wills. Will No, 2 is completely inconsistent with, and therefore, impliedly
rpeals Will No. 1. Later, will No. 3 revokes Will No. 2. Is the Will No. 1 revived?
Yes. This is a clear inference from Article 837. Since the Article uses the word expressly, it
follows that in case of an implied revocation by the second will, an automatic revival of the first
occurs. Apparently, the reason is the fact that an implied revocation is ambulatory, the consistency
being truly and actually apparent only mortis causa, when the properties are distributed.
4. T made Will No. 1, then Will No. 2 expressly revoking the first. Then he destroyed
Will No. 2, and orally expressed his desire that his first will be followed. Should this
be allowed?
No, the oral expression of the desire to revive cannot be given effect. He should have made a
new will or codicil.
Subsection 8. ALLOWANCE AND DISALLOWANCE
OF WILLS (PROBATE)
What is probate?
It is the act of proving before a competent court the due execution of a will by a person
possessed of testamentary capacity, as well as approval thereof by said court.
What are the kinds of probate?
1. Probate during the lifetime of the testator (ante-motem); and
2. Probate after the testators death (post motem).

31
Why is there a need for probate?
1. It is essential because under the law, no will shall pass either personal or real property
unless it is proved and allowed in accordance with the Rules of Court (Rule 75, Section 1).
2. Probate proceeding which is in rem cannot be dispensed with and substituted by any other
proceeding, judicial or extra-judicial; and
3. Suppression of a will from probate is contrary to law and public plociy.

Purpose of probate of a will: To establish conclusively against everyone, once and for all, the
facts that the will was executed with the formalities required by law and that the testator was
in a condition to make a will, is the purpose of the proceedings for the probate of a will. The
judgment in such proceedings determines and can determine nothing more. In them the
court has no power to pass upon the validity of any provisions made in the will. It can not
decide, for example, that a certain legacy is void and another one valid. Such question must
be decided in some other proceeding. (Castaneda v. Alemany, 3 Phil. 426) This is so because
although the allowance of a will is conclusive as to its due execution, it is not so as to intrinsic
validity of the provisions made therein, which is covered by substantive law relative to
descent and distribution. The probate of a will does not effect the legitimate rights of the
heirs at law or of the widow in the estate.

What are the two parts of post-mortem probate?

1. The probate proper, which deals with extrinsic validity, that is, proof of testamentary capacity
and due execution are presented, and the court then issued an order allowing or disallowing
the will;
2. The inquiry into intrinsic validity and the distribution itself of the properties.
What are the issues to be resolved in probate proceedings?
1. Whether the instrument submitted is, indeed, the decedents last will and testament; in other
words, the question is one of identity;
2. Whether the said will was executed in accordance with the formalities required by law; in
other words, the question is one of due execution;
3. Whether the decedent had the necessary testamentary capacity at the time the will was
executed; in other words, the question is one of capacity;
4. Whether the execution of the will and its signing were the voluntary acts of the decedent.
(Ajero vs. Ca, supra.)
When probate court may determine matters other than the due execution:

In exceptional cases, as where the defect is apparent on its face, the probate court may
determine the intrinsic validity of the will even before the formal validity of the will is
established, as the probate of a will may become a useless ceremony if the will is intrinsically
invalid. (Balanay, Jr. vs. Martinez, L-39247, June 27, 1975), as where the devise was
intrinsically invalid since the will itself stated that the devisee was the paramour of the
testator.

Where 2 successive inconsistent wills were presented for probate and the issue of filiations
was squarely raised by the pleadings and had to be decided in order to determine whether
the testator intended really to revoke the first will. When the issue is revocation, it is the
function of the court to examine the words of the will. (Rarreto v. Reyes, 98 Phil. 996)

It can inquire as to whether the disinheritance by the testator of an heir is legal, and receive
evidence during the hearing in support of the validity of the provision of disinheritance. As a
matter of fact even the question of the status of a natural child is an issue which is
completely not germane to the main question of probate, could be decided in a probate
proceeding when it is raised in conjunction therewith. (Severino vs. Severino, 44 Phil. 343,
Hilado v. Ponce de Leon, 50 O.G. 222)

The general rule is that questions of title to property cannot be passed upon in testate or
intestate proceedings. The probate court can decide only provisionally questions of title to
property for the purpose of inclusion into, or exclusion from the inventory, without prejudice
to a final determination of the question in a separate action. It is only when the parties
interested are all heirs and they agree to submit to the probate court the question as to title
of property that the probate court may definitely pass judgment thereon. (Alvarez vs.
Espiritu, G.R. No. L-18833, Aug. 14, 1965)

32

The successional rights of an oppositor to the probate of a will may be inquired in a probate
proceeding. Said the Supreme Court: It is urged that as probate is only concerned with the
due execution of a testament, any ruling on the successional rights of the oppositors is
premature. Inquiry into the hereditary rights of the oppositors is not premature, if the
purpose is to determine whether their opposition should be excluded in order to simplify and
accelerate the proceedings. If the oppositors can not gain any hereditary interest in the
estate, whether the will is probated or not, their intervention would merely result in
unnecessary complication. (Cach v. Udan, No. L-19996, April 30, 1950)
Does the probate court have jurisdiction to decide questions on ownership?
Generally no, except:
1. When the parties voluntarily submit this matter to the court;
2. When all the claimants have legal interests in the property, and with their
consent, they submit the question of ownership to the probate court and the
interest of third persons are not prejudiced (Baybayan vs. Aquino, 149 SCRA
186; Sanches vs. CA, GR 108947, September 29, 1997).
3. When provisionally, ownership is passed upon to determine whether or not
the property involved is part of the estate. [The court may only provisionally
pass upon titles of properties to be included in the inventory of estate
properties, subject to final decision in a separate action to resolve the
question of ownership.]

In probate proceedings, in what instances, if any, may proof of filiation be allowed

and for what purpose?
1. If it is essential to establish which of the two wills has been revoked;
2. To give prima facie proof whether or not an oppositor or intervenor who claims to be related
to the testator, can be allowed to intervene in the probate proceedings for the purpose of
protecting his rights.

Note however, that the final decision on the matter of relationships can be threshed
out either in another case, or even in the later stages of the settlement proceedings,
the stage when the declaration of heirship is made, and only after the probate order
has abeen made.

What is the prescriptive period for instituting probate proceeding?

Prescription is not applicable. The Statute of Limitations fixes time limits for the filing of civil
actions but not in special proceeding of which probate is admittedly one. This is because probate
proceedings are not exclusively established in the interest of the surviving heirs but primarily for the
protection of the testators expressed wishes that are entitled to respect as an effect of ownership
and of the right of disposition. If the probate of validly executed wills is required of public policy, the
State could not have intended the statute to defeat public policy.
Is estoppel applicable to probate proceedings?
No, it does not apply to probate proceedings for they are vested with public interest, and if
estoppel would be a applied, the ascertainment of the truth may be blocked. This should be avoided
for the primary purpose of a probate proceeding is not the protection of the interest of living
persons.
Notes:

The provision made by the testator that his Last Will and Testament shall not be ventilated
in court, cannot deprive the courts of their authority to determine if his will referred to
should be allowed or not. It is not the parties interested in one way or another in a case that
can confer or take away from the courts the jurisdiction and authority to resolve and decide
what the law itself desires to be resolved and decided. However, an instrument which neither
disposes of property, as it only appoints an executor, not being testamentary in character, is
not entitled to probate, although executed with all the formalities required by law.

A codicil should be probated, even though it contains nothing but the revocation of a former
will.

In the case of a holographic will, and there is no contest, how many witness is
required to testify?

33
Only one witness is required, and in his absence, expert evidence may be resorted to.
If the testator himself testifies, what must he prove?
He needs merely affirm his handwriting and signature.
If a holographic will is contested, how many witnesses are needed?
3 witnesses must be presented.
What is the requisite quantum of evidence to prove a lost or destroyed notarial will?
b) In the absence of contest 2 credible witnesses, who do not need to be the attesting
witnesses, must clearly establish:
1. The due execution and formal validity of the will
2. The existence of the will at the time of the death of the testator or its
fraudulent or accidental destruction in the lifetime of the testator and without
his knowledge
3. The provisions of said will.
c) If contested all the subscribing witnesses and the notary public who must testify on
the facts mentioned above.

This applies only to a lost or destroyed notarial will and not to a holographic will. A lost or
destroyed holographic will cannot be proved by the bare testimony of witnesses who have
seen and/ or read such will as the probate thereof requires identification of the handwriting
and signature of the testator (Section 5, 11 and 12, Rule 76), presupposing the availability of
the holographic will in court. The Supreme Court however, intimated that perhaps it may be
proved by photostatic, photographic or carbon copies.
What are the requirements before the distribution of the properties?
1. There must be a decree of partition allocating property to each heir;
2. Then payment of the estate tax; and
3. Finally, the distributive shares may be delivered.
How is a probate proceeding terminated?

1. Upon approval of the project of partition;

2. The granting of the petition to close the proceedings; and
3. The consequent issuance of the orders of distribution directing the delivery of the properties
to the heirs in accordance with the adjudication made in the will.
What evidence are necessary for the allowance of wills which have been probated
outside of the Philippines?
1.
2.
3.
4.
5.

The due execution of the will in accordance with the foreign laws;
That the testator has his domicile in the foreign country, and not in the Philippines;
That the will has been admitted to probate in such country;
The fact that he foreign tribunal is a probate court; and
The laws of a foreign country on procedure and allowance of wills.
What is the effect of the allowance of a will?

Subject to the right of appeal, the allowance of the will, either during the lifetime of the
testator or after his death, shall be conclusive as to its due execution.
PERTINENT PROVISIONS

RULE 75

Section 1 No will shall pass real or personal estate unless it is proved and allowed in the
proper court. Subject to the right of appeal, such allowance of the will shall be conclusive as to
its due execution.

RULE 76

34
Section 5 X X X X If no person appears to contest the allowance, the court may grant
allowance thereof on the testimony of one of the subscribing witness only, if such witness will
testify that the will was executed as is required by law.
In the case of a holographic will, it shall be necessary that at least one witness who knows
the handwriting and signature of the testator explicitly declare that the will and the signature are
in the handwriting if the testator. In the absence if any such competent witness, and if the court
deem it necessary, expert testimony may be resorted to.
Section 11 If the will is contested, all the subscribing witnesses and the notary public in the
case of wills executed under the Civil Code of the Philippines, if present in the Philippines and not
insane, must be produced and examined, and the death, absence, or insanity of any of them
must be satisfactorily shown to the court. If all or some of such witnesses are present in the
Philippines but outside the province where the will has been filed, their deposition may be taken.
If any or all of them testify against the due execution of the will, or do not remember having
attested to it, or are otherwise of doubtful credibility, the will may, nevertheless, be allowed if
the court is satisfied from the testimony of other witnesses and from all the evidence presented
that the will was executed and attested in the manner required by law.
If a holographic will is contested, the same shall be allowed if at least 3 witnesses who know
the handwriting and signature of the testator explicitly declare that the will and the signature are
in the handwriting of the testator, in the absence of any competent witness, and if the court
deem it necessary, expert testimony may be resorted to.
Section 12 Where the testator himself petitions for the probate of his holographic will and
no contest is filed, the fact that he affirms that the holographic will and the signature are in own
handwriting, shall be sufficient evidence of the genuineness and due execution thereof. If the
holographic is contested, the burden of disproving the genuineness and due execution thereof
shall be on the contestant. The testator may, in his turn, present such additional proof as may be
necessary to rebut the evidence for the contestant.
What are the grounds for the disallowance of a will?
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 the will was executed through force or duress, or under the influence of fear, or threats;
4. If it was procured by undue and improper pressure and influence on the part of the
beneficiary or some other person;
5. If the signature of the testator was procured through fraud;
6. If the testator acted by mistake or did not intend that the instrument he signed should be his
will at the time of affixing his signature thereto; and
7. If the will was expressly revoked (Article 839).

Note: The grounds are exclusive (Ajero vs. CA, GR No. 106720, September 15, 1994).

What is the difference between the 5th and 6th ground?

Under the 5th ground, the testator is aware that he is signing a will but was tricked into
signing said will, that is, that although the testator knows it is a will, the contents thereof are not
according to his wishes and he would not have signed the will were it not for the fraud employed on
hi .
The 6th ground, on the other hand, contemplates the situation where the testator did not
intend to sign a will but some other document as happens when, for example, the testator believes
he is signing a promissory note or a contract but in lieu thereof, a will is substituted. There is no
intent, therefore, to make or sign a will but some other document under the 6th ground.

SECTION 2. - INSTITUTION OF HEIR

What is institution of heirs?
Institution of heirs is one where the testator designates in his will the person or persons to
succeed him in his property and transmissible rights and obligations. (Article 840)

35
This simply means the designation of the testator in his will of the person or persons who are
going to succeed him in his property and transmissible rights and obligations.
Give the rules on institution of heirs.
1.
2.
3.
4.

Being a voluntary heir of the testator, it cannot affect the legitime, otherwise, the
compulsory heirs would be unduly prejudiced;
It is applicable only in testate succession;
It affects only the free portion.
A conceived child may be instituted if the conditions in Articles 40 and 41 are present.
(Art. 1025)

What are the restrictions imposed by law upon the power of the testator to dispose
of his property?
a. Liability of estate for testators obligations His estate is liable for all legal obligations
incurred by him. This restriction takes precedence over the right of compulsory heirs
to their legitime.
b. Right of compulsory heirs to their legitime The testator cannot dispose of or
encumber the legal portion due to his compulsory heirs by force of law.
What is the extent of the freedom of disposition of the testator?
The testator is free to dispose of the free portion of his estate to anyone who is qualified to
succeed. The free portion is the remainder of the estate after all the legitimes of the compulsory
heirs had been satisfied.
Concept of compulsory or forced heirs:
They are those for whom legitimes are reserved and they succeed to the inheritance
regardless of the wishes of the testator and cannot be deprived of their legitimes except by valid
disinheritance.
Compulsory heirs are not however compelled to accept their legitimes because they may
reject them. They are called compulsory because they could not be disregarded by the decedent.
Their legitimes are forced, so to speak, against the estate. 60
Concept of legitime:
Legitime is that part of the testators property which he cannot dispose of because the law
has reserved it for certain heirs whom he cannot disregard known as compulsory or forced heirs.

Only compulsory or forced heirs can question the institution.

May an unborn child be instituted as an heir?

It depends. A child already conceived at the time of death of the decedent is capable of
succeeding; provided, it be born later under the condition prescribed in Article 41 of the Code 61
(Article 1025, second paragraph). Otherwise, the institution is void because the foetus did not
become a person.
What if the testator wants to dispose all his properties onerously during his
lifetime, can he do so even if he has compulsory heirs?
What are the characteristics of an instituted heir?

60

Article 887 enumerates 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 and
descendants;
3. The widow or widower;
4. Acknowledged natural children, and natural children by legal fiction;
5. Other illegitimate children referred to in Article 287; Compulsory heirs mentioned in Nos. 3, 4 and 5 are not excluded
by those in Nos. 1 and 2; neither do they exclude one another.
61
Article 41. For civil purposes, the foetus is considered born if it is alive at the time it is completely delivered from the
mothers womb. However, if the foetus had an intra-uterine life of less than seven months, it is not deemed born if it dies
within twenty four hours after its complete delivery from the maternal womb.

36
1.
2.
3.

4.
5.

He is a testamentary heir as distinguished from a legal or intestate heir. He is also

different from a devisee or legatee.
He continues the juridical personality of the testator but only in relation to the
inheritance without being personally liable for the testators debts.
He is a natural person (Art. 40 to 42), even if only a conceived child, but not a child
not yet conceived. However, testamentary dispositions may be made in favor of a
juridical person, except those not permitted by law to succeed.
He acquires rights which are limited to the disposable portion of the inheritance and
cannot impair that portion known as legitime.
He is presumed to have been instituted, where there are several heirs, equally,
individually and simultaneously with the others, unless the contrary intention
appears.

May a will be valid even if it does not institute heirs?

Yes. A will shall be valid even though (1) it should not contain an institution of an heir, or (2)
such institution should not comprise the entire estate, and even though (3) the person so instituted
should not accept the inheritance or (4) should be incapacitated to succeed. (Art. 842, par 1)

If the designated heir repudiates the inheritance or is incapacitated, the inheritance will
devolve by accretion on the qualified heirs, if any (Article 1016).

In legal succession, the share of the person who repudiates the inheritance shall always
accrue to his co-heirs (Article 1018).
If a will does not institute an heir, is there a need to probate the will?
No, except:
a. When the will recognizes an illegitimate child;
b. When it disinherits a compulsory heir;
c. When it instituted an executor.
What are the requisites in general for a valid and effective institution of heirs?

1. That the testator has the capacity to make the institution;

2. That in making the institution of heir the testator is not subjected to any vice that vitiates
consent;
3. That the institution is made in a will;
4. That the institution is made personally by the testator without leaving it to the will or
discretion of a third person;
5. That the person instituted is identified or identifiable in the will with sufficient clarity to leave
no doubt as to the testators intention, since the institution of an unknown heir is void;
6. That there be no preterition of a compulsory heir in the direct line.
State the rules in the designation of the heirs.
1. The testator shall designate the heir by name and surname;
2. When there are two or more persons having the same names, he shall indicate some
circumstances by which the instituted heir may be known;
3. Even though the testator may have omitted the name of the heir, should he designate him in
such a manner that there can be no doubt as to who has been instituted, the institution shall
be valid (Art. 843)
4. An error in the name, surname or circumstances of the heir shall not vitiate the institution
when it is possible, in any other manner, to know with certainty the person instituted;
5. If among persons having the same names and surnames, there is a similarity of circumstance
in such a way that even with the use of other proof, the person instituted cannot be
identified; none of them shall be an heir. (Art. 844);
6. Disposition in favor of an unknown person shall be void, unless by some event or
circumstance his identity becomes certain. (Art. 845);
7. A disposition in favor of a definite class or group shall be valid. (Art. 845, par 2);
8. The designation of name and surname is directory. What is required is that the identity of the
designated successor be sufficiently established. If there is ambiguity in the designation, the
ambiguity should be resolved in accordance with Art. 789.
How much can be disposed of by will?
1. If the testator leaves no compulsory heirs the entire estate.

37
2. If the testator leaves compulsory heirs the disposable portion, that is, the net hereditary
estate minus the legitime.

Note: The amount of the legitmes depends on the kinds and number of compulsory
heirs. Various combinations are possible. Consequently, the amount of the disposable
portion is also variable.

What is the effect of omission of the name of the heirs?

If by inadvertence or for any reason the name of the heir designated is omitted in the
institution, but nevertheless he is described in such a manner that there is no doubt as to the
identity of the said heir, the institution is valid.
What is the effect of error in the name or circumstances of the heir?
Errors in the spelling of the name, surname or in the circumstances of the heir shall not
invalidate the institution when the identity of the heir designated could still be ascertained in some
other manner.
How is the testators intention in case of ambiguity ascertained?
1. By examining the will itself;
2. The extrinsic or parol evidence of the testator;
3. Testimonial evidence excluding the oral declarations of the testator is inadmissible.
Can extrinsic evidence be admissible to determine the identity of the heir?
Imperfect description may be corrected by extrinsic evidence but not the testimony regarding
the oral declaration of the testator.
What is the effect of ambiguity resulting in the non-identification of the heir?
If there is doubt and ambiguity on the identity of the person instituted as heir by reason of
the fact that there are persons of similar names, surnames and similarity of circumstances, none of
them shall inherit.
What is the effect of any disposition in favor of an unknown person?
The disposition is void and ineffectual unless by some event or circumstance his identity
becomes certain. This event or circumstance can happen in the future or after the death of the
testator.
Can the testator give his entire free portion to a person he does not personally
know?
Yes, the unknown person referred to in Article 845 refers to one who cannot be identified and
not to one whom the testator does not personally know. The basis of the nullity is the incapability of
determination of the intention of the testator.
Is the designation valid if the identity is not known at the time of making of the
will?
Yes, provided the said identity can be known in the future by some circumstance. How? By
establishing certain criteria at the proper time, e.g. First Filipino who wins a gold medal in the
Olympics.
What are the limitations of the rule that an heir may be validly instituted if by some
future event his identity may be known?
1. Where the determination of the heir is delegated to another, the disposition is void under
Article 785; thus, the testator cannot validly provide I hereby institute as my heir the person
whom my brother Juan may designate.
2. Where the instituted heir when identified does not have the capacity to succeed at the time of
the death of the testator, the disposition is void under Article 1025; thus if the testator
provides, I institute as my heir the first child of my brother Juan and the said child is
conceived and born after the death of the testator.

38
What are the classes or groups who can be instituted as heirs?
1.
2.
3.
4.

Article 848 Brothers and sisters, some of the full blood, others half blood;
Article 849 A person and his children;
Article 959 - The testators relative (nearest in degree);
Article 1030 The poor in general living in the domicile of the testator or the poor in a
definite locality.

The testator provides: I give 1/3 of my estate to A, B and C. C is a class of people.

How do you divide the estate?
It is not to be interpreted as 1/3 to A, B and class C. Rather, the 1/3 of the estate should be
divided equally among A, B and the members of class c. Why? Because the presumption is that the
members of C were individually designated.
If the testator says, I give 1/3 of my estate to A, B and class C as a unit, then 1/3
will be divided equally among A, B and class C.
If it is not possible to resolve the ambiguity, the testators intent becomes indeterminable
and, therefore, intestacy as to that portion will result.
If there are several heirs who were instituted but there is no designation of their
respective shares, what rule shall apply?
Institution of heirs without designation of shares shall effect in the heirs inheriting in equal
parts. (Belen vs. BPI, L- 14470, Oct. 31, 1960)
There is, however an exception to the rule. If of the persons instituted, one is a compulsory
heir, the rule would not apply. The legitime of that heir has to be removed first; otherwise, he would
be unduly prejudiced.

This article will apply only in testamentary succession, that is to say, only among
testamentary heirs. It will not apply to an heir who is both a compulsory and a testamentary
heir, for in that case the heir will get his legitime and his testamentary portion.

This presumption should not be interpreted in an absolute manner but should be limited to
the cases where all the heirs are of the same class or juridical condition so that, in case the
testator should institute one who is a compulsory heir and another a voluntary one without
designating the portion which each one may receive, the share of both shall not be the same
because the compulsory heir shall first be entitled to what corresponds to him as a legitime,
and then the balance shall be divided by him and the voluntary heir in equal portions.
A instituted B, his friend, and the latters children C and D. State the rule.

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)

The word descendants includes children and grandchildren. They succeed per capita (per
person), and not per stirpes (by groups).
What are the governing principles in institution of heirs?

1. Equality the heirs instituted without designation of shares inherit in equal parts.
2. Individuality the presumption is that heirs collectively designated are considered
individually instituted unless the contrary appears.
3. Simultaneity The presumption is that several heirs are instituted simultaneously and not
successively unless the contrary appears.
A had 3 legitimate children B, C, and D. D, however died in 2000, survived by 2
legitimate children, E and F. A died in 2002 with a will. In the will he made the following
institution of heirs: I designate as my heirs B and C, and the children of D. The net
remainder or residue of the estate of A is P120, 000.00. How shall the distribution be
made?
There are 2 provisions of the Civil Code, which must be applied, Articles 846 and 847. Where
there are compulsory heirs among the heirs instituted, or where all of them are compulsory heirs,
the provision of Art. 846 should be applied only to the free or disposable portion. Consequently, the
distribution shall be made as follows:

39
First, satisfy the legitime of B, C, E and F. B and C shall be entitled to 20, 000.00 each in
their own right, while E and F shall be entitled to 10, 000.00 each by representation. Then the free
portion of 60, 000 shall be divided among all of them in equal parts in accordance with Art. 846.
Therefore, the shares of each will be:
B 35, 000.
C 35, 000
E 25, 000
F 25, 000

For mass institution, see Articles 786, 843 (brothers and sisters), 849 (designation of a
person and his children), 1029 (prayers and pious works for the benefit of his soul), and 1030
(poor).

X without any compulsory heirs executed a will and gave all his properties to Y, a
friend. Is the will valid?
Yes, because one who has no compulsory heirs may dispose by will of all his estate or any
part of it in favor of any person having capacity to succeed. (Article 842, par. 1)
State the effect if a testator instituted his brothers and sisters of the full and half
blood.
The inheritance shall be distributed equally, unless a different intention appears. (Article 848)
Note:
a. In testamentary succession equality of shares of full and half blood brothers and sisters,
unless the testator provides otherwise.
b.

In intestacy proportion of 2:1 between full and half blood brothers and sisters (Article
1006), and only if the qualification in Article 992 does not apply. (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.)

Does Article 848 apply even to illegitimate brothers and sisters in cases where the
testator is of legitimate status and vice versa?
Yes, because Article 848 makes no distinction.
X instituted the following as his heirs: His full brother, his half brother, his
stepbrother, his brother in law and his illegitimate brother. How much will each get if the
estate is 20, 000?
Each gets 20, 000. While the law mentions only full and the half-brother, it is evident that the
others may be considered in the same category as strangers, making Article 846 applicable.
State the effect of a statement of a false cause in the institution of heirs.
It shall be considered as not written, unless it appears from the will that the testator would
not have made such institution if he had known the falsity of such cause. (Article 850)

A false cause refers to the erroneous reason for the institution of an heir.
Note:

The general rule The falsity of the stated cause for the testamentary institution does not
affect the validity or efficacy of the institution. Reason: Testamentary dispositions are ultimately
based on liberality.
Exception The falsity of the stated cause for institution will set aside the institution, if
certain factors are present.
Before the institution of heirs may be annulled under Article 850, what are the
requisites that must concur?
1. The cause for the institution of heirs must be stated in the will;
2. The cause must be shown to be false;

40
3. It must appear from the face of the will that the testator would not have made such
institution of he had known the falsity of the cause. (Austria vs. Reyes, 31 SCRA 754)
Note: This article does not restrict the operation of Article 1028 in relation to Article 739
declaring void certain testamentary dispositions, be reason of public policy. The annulling factor in
those 2 articles is not falsity but illegality.
A is the tallest in the class. I give him of my estate. If A is not the tallest, is the
institution ineffective?
No, follow the general rule because the real cause was not the height but the liberality of the
testator.

If I institute my brother X as my heir because he saved my sons life, the falsity of this cause
will be merely incidental and will not vitiate the institution of X since the fundamental reason
for the institution is his blood relationship to me. But if in the above example, X should be a
total stranger, then the fact that he did not save my sons life would annul his institution
because there would be no reason for my instituting a total stranger as my heir were it not
for the fact that he saved my sons life.
What is the effect if the cause is contrary to law?

The same will not be considered as written unless such illegal cause appears to be the sole
reason for the institution of the heir.
X institutes Y because he wants him to kill Z. Is the institution valid?
No, it is void since the real motive is illegal.
X institutes Y because during the last election, he was a flying voter. Is the
institution valid?
Yes, because the real motive here is generosity, liberality or affection and the illegal cause is
only incidental.
In Articles 852 and 853, what are the requisites in order that the said articles will
apply?
1. There are more than one instituted heir;
2. The testator intended them to get the whole estate or the whole disposable portion, as the
case may be;
3. The testator has designated a definite portion for each heir;
4. The total of portions is less or more than the whole estate or free portion as the case may be.
Note: In Article 852, the total of all the portions is less than the whole estate or the whole
disposable portion. Therefore, a proportionate increase is necessary. The difference cannot pass by
intestacy because the intention is clear to give the instituted heirs the entire amount.
In Article 853, the reverse occurs. The total exceeds the whole estate or the whole disposable
portion. Thus a proportionate reduction must be made.
Application:
1. The value of the estate of T is P1, 200, 000. He specifically provides in his will that a
specific car valued at 200, 000 goes to A; a specific parcel of land worth 300, 000 to
B; and all the other properties to C. How will the estate be divided?
A gets the car plus 200, 000; B gets the land plus 300, 000 and C gets 700, 000
2. T institutes X, Y and Z as his sole heirs giving each of them an aliquot part of his
estate of 360, 000 as follows:
X- 1/3 (P120, 000)
Y- (P90, 000)
Z- 1/6 (P60, 000)
P270, 000
Balance: P90, 000 will be distributed as follows:

41
12/27 x 90, 000 = P 40, 000
9/27 x 90, 000 = P30, 000
6/27 x 90, 000 = P20, 000
P90, 000
3. Suppose in the preceding example, the aliquot parts given to X, Y and Z are as
follows:
X- (180, 000)
Y- 1/3 (120, 000)
Z-
(90, 000)
390, 000
Excess: 30, 000
X 18/39 x 30, 000 = P13, 846
Y 12/39 x 30, 000 = P 9, 231
Z 9/39 x 30, 000 = P 6, 923
P 30, 000
4. The testator has no compulsory heirs. He indicates in the will his intention to give
his entire estate to his heirs. He gives to A, 1/6 to B and 1/3 to C. The estate is
worth 120, 000, therefore, A gets 30, 000, B gets 20, 000 and C gets 40, 000.00 or a
total of 90, 000. Since the estate is 120, 000, what will you do with the remaining
30, 000?
a. Get the least common denominator: 12.
A= 3/12
B= 2/12
C=4/12
b. Get the ratio of the shares with each other.
A(3) : B(2) : C(4)
3+2+4=9
c. Multiply the remainder (30, 000) by the share of each heir with respect to the ratio in
(b).
For A; 3/9 x 30, 000 = 10, 000. (3 x 30, 000 = 90, 000 / 9 = 10, 000.)
For B: 2/9 x 30, 000 = 6, 666.67 (2 x 30, 000 = 60, 000 / 9 = 6, 666.67)
For C: 4/9 x 30, 000 = 13.333.33 (4 x 30, 000 = 120, 000 / 9 = 13, 333.33)
d. Add the result to what they originally received and the sum will complete their
inheritance.
For A: 30, 000 + 10, 000 = 40, 000
For b: 20, 000 + 6, 666.67 = 26, 666.67
For C: 40, 000 + 13, 333.33 = 53, 333.33
e. Add your figures in (d) to make sure that it equals to the value of the entire estate (To
make sure that you did not make a mistake)
40, 000 + 26, 666.67 + 53, 333.33 + 120, 000.
f.

If you want to get the inheritance of each right away, multiply the ratio in (c) with the
value of the whole estate.
For A: 3/9 x 120, 000 = 40, 000.
For B: 2/9 x 120, 000 = 26, 666.67
For C: 4/9 x 120, 000 = 53, 333.33

42
You get the same result but faster.
5. If A institutes as his sole heirs X, Y and Z, X to and Y to and Z to 1/3 of the
estate and the total estate is 12, 000, then according to the disposition, X will
receive 3, 000, Y 3, 000 and Z 4, 000 thereby leaving a balance of 2, 000 undisposed
of. This balance will be given to the heirs proportionally. X, therefore, will get
furthermore 3/10 x 2, 000 or 600, Y will get the same and Z will have 4/10 x 2,000
or 800, thus X will get a total of 3, 600, Y 3, 600 and Z 4, 800 or a total of 12, 000.
6. The testator has no compulsory heirs. He indicates in the will his intention to give
his entire estate to his heirs. He gives to A, 1/3 to B and 1/4 to C. The estate is
worth 30, 000, therefore, A gets 15, 000, B gets 10, 000 and C gets 7, 500 or a total
of 32, 500 Since the estate is 30, 000, what will you do with the excess of 2, 500?
1. Get the least common denominator: 12
A = 6/12
B = 4/12
C = 3/12
2. Get the ratio of the shares with each other.
A(6) : B(4) : C(3)
6 + 4 + 3 = 13
3. Multiply the excess by the share of each heir in the ration in (ii).
For A: 6/13 x 2, 500 = 1, 153.84
For B: 4/13 x 2, 500 = 769.23
For C: 3/13 x 2, 500 = 576.93
4. Subtract the results in (iii) from what each heir was to receive initially.
For A: 15, 000 1, 153.84 = 13, 846.16
For B: 10, 000 769.23 = 9, 230.77
For C: 7, 500 576.93 = 6, 923.07
5. Add the figures in (iv) to make sure it equals to the value of the whole estate.
13, 846.16 + 9, 230.77 + 6, 923.07 = 30, 000.
6. If you want to get the inheritance of each right away, multiply the ratio in (iii )
by the value of the estate.
For A: 6/13 x 30, 000 = 13, 846.16
For B: 4/13 x 30, 000 = 9, 230.77
For C: 3/13 x 30, 000 = 6, 923.07
7. If the testator has instituted as heirs, X, Y and Z and he gives X , to Y 1/3 and Z
another 1/3 and the estate or the available free portion amounts to 12, 000, then in
that case, X should get 6, 000, Y 4, 000 and Z 4, 000 which will total 14, 000 or
more than the estate available. The excess is 2, 000. This shall be divided
proportionally among the heirs. Thus, since X gets or 3/6, Y 1/3 or 2/6 and Z
another 1/3 or 2/6, the proportion is 3:2:2. Therefore, Xs share in the 2, 000 shall
be 3/7, Ys share will be 2/7 and Zs share will also be 2/7 or x will get 857.14 2/7,
Y will get 571.42 6/7 and Z 571.42 6/7. These amounts shall be deducted from that
which they ought to receive.
What is preterition and its effects?

43
Preterition or omission of one, some or all of the compulsory heirs in the direct line, whether
living at the time of the execution of the will or born after the death of the testator, shall annul the
institution of heir. Devises and legacies are valid insofar as they are not inoficious. (Article 854)
What are the three kinds of preterition?
1.
2.

Preterition or omission of a compulsory heir in the direct line covered by Article 854;
Preterition or omission of a property, objects or securities in the project of partition
covered by Article 1103;
Preterition or omission of an heir in the project of partition submitted to the court for
approval covered by article 1104.

3.

What are the requisites of preterition?

1. The heir omitted must be a compulsory heir in the direct line (legitimate, illegitimate and
adopted children included)
2. The omission from the inheritance must be total and complete in character;
3. The compulsory heir omitted should survive the testator, or there is a right of representation.

The law considers as preterition the omission of a compulsory heir in the direct line,
whether living at the time of the execution of the will or born after the death of the
testator. Also evidently included are those born after the execution of the will and
before the death of the testator so long as they are alive at the time of the death of
the testator. However, should the compulsory heir predecease the testator, the
institution shall be effectual i.e., it is the same as if there had been no preterition. But
if the preterited heir has legitimate children and descendants who have preferential
right of succession by right of representation (Article 970), the institution will be
annulled, just the same i.e., preterition will still result notwithstanding that the
preterited heir died before the testator.
Should the compulsory heirs omitted, however predecease the testator, there is no
preterition unless there is a right of representation in which case preterition will still
result notwithstanding the predecease of said compulsory heir.

Where is there no omission:

1. If the heir in question is instituted in the will but the portion given to him by the will is less
than his legitime inasmuch as the heir received something from the inheritance. The heirs
remedy is not found on Article 854 but in Articles 906 and 907 for the completion of their
legitime.
2. If the heir is given a legacy or devise. Should the value of the legacy or devise be less than
the recipients legitime, his remedy is for completion of his legitime under Articles 906 and
907.
3. If the heir had received a donation inter vivos from the testator the donation inter vivos is
treated as an advance on the legitime under Articles 906, 909, 910 and 1062.
4. If the heir is not mentioned in the will nor was a recipient of a donation inter vivos from the
testator, but not all of the estate is disposed of by will. The omitted heir in this instance
would receive something by intestacy, from the portion not disposed of by will. The right of
the heir, should the vacant portion be less than his legitime, will simply to demand
completion of his legitime under Article 906 and 907.
NOTE: For there to be preterition, there, the heir in question must have received nothing
from the testator by way of:
a.
b.
c.
d.

Testamentary succession,
Legacy or devise,
Donation inter vivos, or propter nuptials,
Intestacy.

Preterition means total omission in the inheritance.

Summarizing therefore, total omission means that the omitted compulsory heir receives
nothing under the will, whether as heir, legatee or devisee, has received nothing by way of donation
intervivos or propter nuptials, and will receive nothing by way of intestate succession.

44
What are the effects of preterition?
1. The institution of heirs is annulled, that is, by force or operation of law;
2. The devises and legacies shall be valid, unless inofficious; this simply means they are
reducible to preserve the affected legitimes;
3. If the compulsory heirs would predecease the testator, the institution of heir shall be
effectual, but the omitted heir would be represented by his heirs, when representation is
proper.
Other effects:
1. If the omitted heir is not in the direct line (like a spouse), only his legitime is given to him
and the institution of heir is annulled up to that extent only.
2. As intestacy results, the previous appointment of the executor is rendered moot and
academic. The appointment of an administrator becomes necessary.
Who are included within the term of the article?
1. Compulsory heirs in the direct line covers children or descendants, and in proper cases, in
default of children or descendants, parents or ascendants;
2. Illegitimate descendants or ascendants;
3. Quasi-posthumos children.

There is a flaw in the wording of the Article. The phrase whether living at the time of
the execution of the will or born after the death of the testator does not, by its terms,
include those compulsory heirs in the direct line born after the execution of the will
but before the testators death (los cuasi postumos) Such children are, without doubt,
to be included within the purview of the protection of this Article. This gap is merely
the result of careless drafting (according to Manresa)

4. Adopted children.
How do you distinguish preterition from disinheritance?
i. Preterition may be intentional but is presumed to be involuntary, while
disinheritance is always voluntary.
ii. In preterition, the law presumes that there has been merely some mistakes or
oversight, while in disinheritance, there is some legal cause or reason.
iii. In preterition, the nullity of the institution is total resulting in intestacy, saving
devises and legacies, while in disinheritance, the nullity is partial, i.e. not only
insofar as it may prejudice the heir disinherited.
iv. In preterition, the omitted compulsory heir gets his share from the entire
estate, i.e. not only his share of the legitime but also of the free portion not
disposed of by way of devises and legacies, while in disinheritance, if valid, the
compulsory heir is excluded from the inheritance and if defective, the
compulsory heir is merely restored to his legitime, and testamentary
dispositions which are inofficious reduced.
v. In pretertion, a compulsory heir in the direct line is omitted, while in
disinheritance, any compulsory heir may be disinherited though not in the
direct line.

Application:

The express deprivation of the legitime constitutes disinheritance. The

tacit deprivation of the same is called preterition. This is not to say
however, that disinheritance and preterition are the same.
Disinheritance consists precisely in the deprivation of a compulsory heir
of his legitime by virtue of a just cause provided for by law, and since
disinheritance is always express, it is always voluntary. Preterition, on
the other hand, is the omission of an heir in the will. Consequently,
preterition may also be voluntary but the law presumes that it is
voluntary

45
1. In his will, X stated: I instituted my 2 children A and B as my sole heirs to my
entire estate, and to C, my other child, I give nothing. Is there preterition here?
There is disinheritance (Article 918), not preterition. Here X makes it known that he
really had no intention to give any part of his estate to C. If the disinheritance is improper, C
can still get his legitime. The institution of A and B remains valid.
2. X institutes his sons A and B, and a friend C. His 3rd son D was omitted. If the entire
estate is 90, 000.00, how should his estate be distributed?
Since the institution is annulled, it is as if there was no institution, hence, intestate
succession takes place. A, B and D will get 90, 000. C, the friend gets nothing.
3. X had 2 sons, A and B. In Xs will, he gave C a friend a legacy of 10, 000 out of an
estate of 100, 000. A and B were omitted. How should the estate on Xs death be
distributed?
Since the estate is worth 100, 000, the free portion is 50, 000. Therefore, the legacy
of 10, 000 is not inofficious and should remain effective. The remaining 90, 000 should be
divided equally between the 2 estate.
4. X had 2 legitimate sons A and B. In Xs will, he gave a friend C a legacy of 10, 000.
He also instituted A as heir and deliberately omitted B. If the estate is 100, 000,
how should the estate be distributed on Xs death?
In view of the preterition, the institution of A is not valid, but the legacy is effective for
the legitime has not been impaired. Therefore, the remaining 90, 000 shall be divided
intestate between A and B.
5. In the problem above, suppose the legacy is 60, 000, how would the estate be
distributed?
The estate being 100, 000, the free portion is only 50, 000, hence, the legacy of 60,
000 is inofficious and should be reduced by 10, 000, leaving A and B 25, 000 each.
6. X instituted Y a friend as heir to an estate of 100, 000. Y dies ahead of X but leaves
a son Z. Upon Xs death, will Z get anything?
No, because Y the father was a voluntary heir who predeceased the testator. The
estate should therefore go to the intestate heirs of X.
7. T has three legitimate children, X, Y and Z. He institutes in his will X, Y and his
cousin C. The estate is 150, 000.
The institution is totally annulled. There is total intestacy. Thus, X, Y and Z will get 50,
000 each and C gets nothing
8. In the same example, T gives instead to C a devise of real property worth 30, 000.
The remaining 120, 000 of the estate shall be distributed 40, 000 each to X, Y and Z.
9. In the preceding example, the legacy given to C is 100, 000.
The legacy is inofficious by 25, 000. The estate shall be distributed be distributed as
follows: 75, 000 to C, 25, 000 equally X, Y and Z.
10.Suppose, in the first example, Z is given 15, 000.
Z will be entitled to his full legitime of 25, 000 (he gets additional 10, 000). The
balance of 125, 000 shall be distributed equally between X, y and z.
11.Same, but T gives to C his cousin 50, 000, X and Y 100, 000 to be divided equally
between them, out of his entire estate of 150, 000.
There is no preterition. Z is entitled only to get his share of the legitime of 25, 000. C
will get the 50, 000 as it is not inofficious and the remainder of 75, 000 shall be divided
equally between X and Y. The presumption is that T wants Z to receive only his share of the
legitime.

46
12.Suppose in the first example, Z is the wife of T. Is there preterition?
There is no preterition because Z is not a compulsory heir in the direct line. Z shall be
merely restored to her legitime to be taken from the free portion. Under Article 892 (par, 2),
it shall be equal to the legitime of each pf X and Y. The legitme of X and Y is of the
hereditary estate or 75, 000 (Art. 888, [par. 1]. They get 37, 500 each. So, Z also gets 37,
500. The remainder shall go to C.
Can there be preterition of an adopted child?
Yes, because an adopted child has the same rights as a legitimate child. (Acain vs. IAC, Oct.
27, 1987)
X objected to the will of Y, his son, on the ground that (a) He has not been
instituted, he being the only heir of his son; and (b) That even if he is instituted, his share
is less than Z, his wife, as the free portion was left to Z.
Rule on Xs objections.
a. His objection is proper if the parents of Y are the only nearest relatives, Y having no
issues. (Nuguid vs. Nuguid, 17 SCRA 449). There is preterition if the parents, who are
the only closest relatives of the decedent are not instituted, because while the law
mentions of direct line, it does not make a distinction, whether ascending or
descending.
b. The will is still valid even if the share of one of the heirs is less than the other.
Variation in the shares of the heirs is normal and is the essence of the law. (Heirs of
Montinola-Samson vs. CA, G.R. No. 76648, Feb. 26, 1988)

If a sister of the decedent is not instituted, can she oppose the probate of the will
on the ground of preterition?
No, because a sister is not a compulsory heir in the direct line. She is a relative in the
collateral line. (Article 854; Ventura vs. Ventura, April 27, 1988)

X, the daughter-in-law of A, opposed the will of the latter contending that X was not
instituted as an heir, hence, there is preterition. Is Xs contention correct? Why?
No. Preterition of a daughter-in-law does not annul the institution of heirs because she is not
a compulsory heir in the direct line of her mother-in-law. (Rosales vs. Rosales, Feb. 27, 1987)
During the lifetime of A, he executed a last will and testament instituting his
parents X and Y. At the probate of the will, B, an illegitimate son of A, opposed on the
ground of preterition. Will the contention of B prosper?
Yes, because there was preterition of a compulsory heir in the direct descending line. The law
does not make a distinction whether the heir is legitimate or illegitimate.
Suppose that it is the husband or the wife who is omitted in the testators will,
would there be a preterition, which would have the effect of annulling the institution of
heirs?
No, because a husband or wife is not a compulsory heir in the direct line. However, such
husband or wife would still be entitled to his or her legitime, in other words, there would be an
annulment of the institution of heirs but only to the extent that the legitime of such husband or wife
is prejudiced.
Is there any difference as to effect between the omission of a forced heir by
mistake or inadvertence and voluntary or intentional omission?
Yes, in Acain vs. IAC, G.R. No. 72706, Oct. 27, 1987, it was held that if preterition is by
mistake or inadvertence, there is true preterition and total intestacy results. The reason for this is
the inability to determine how the testator would have distributed his estate if none of the heirs had
been omitted or forgotten.
If the omission is intentional, the effect would be a defective disinheritance covered by Article
918, in which case the institution of heirs is not wholly void but only insofar as it prejudices the

47
legitime of the person disinherited. The nullity is partial unlike in true preterition where the nullity is
total.
Preterition is presumed to be only an involuntary omission; that if the testator had known of
the existence of the compulsory heir at the time of the execution of the will, he would have
instituted such heir. On the other hand, if the testator attempts to disinherit a compulsory heir, the
presumption of the law is that he wants such heir to receive as little as possible from the estate.
What is the right of the preterited heir or heirs?
They are entitled not only to their shares of the legitime but also to those of the free portion
which was not expressly disposed of by the testator by way of devise and legacies, unlike in the case
of improper disinheritance or incomplete legitime wherein their right is limited to the completion of
their legitime.
If the omitted heir is not in the direct line, the institution of heir is annulled only to the extent
that it impairs the legitime. This is not true preterition.
If an heir was omitted, from where will his share be taken?
i. The estate not disposed of by will; or
ii. Proportionately from the shares of the other compulsory heirs, if the first is not
enough. (Art. 855)
Outline of the rules under Article 856:
Kind of heir
Compulsory

Predecease
Transmits
nothing
Representation

Incapacity
Transmits
nothing
Representation

Voluntary

Transmits
nothing
No
representation
Transmits
nothing
Representation

Transmits
nothing
No
representation
Transmits
nothing
Representation

Legal

Renunciation
Transmits
nothing
No
representation
Transmits
nothing
No
representation
Transmits
nothing
No
representation

Disinheritance
Transmits
nothing
Representation
Not applicable

Not applicable

Application:
1. A and B are legitimate children of X. C is a legitimate child of A. The estate is worth
100, 000. A and B were instituted heirs.
i. If A dies before X, how much will C and B get?
A was a compulsory heir to the legitime of 25, 000. Therefore, C will get
only 25, 000 in representation of A. The remaining 75, 000 will all go to B.
ii. If A is incapacitated?
The same answer as (i).
iii. If A renounces the inheritance?
C gets nothing since a person who renounces an inheritance cannot be
represented. Therefore, everything goes to B.
2. T has two legitimate children, X and Y. X has a child C. Y is childless. T institutes X,
Y and F (a friend) as heirs and gives a legacy of 10, 000 to L. The value of the estate
is 100, 000.
a. X predeceases T Since X is a compulsory heir instituted in a will, he can be
represented with respect to the legitime only. As to the free portion, he is a voluntary
heir. Hence C gets only 25, 000. Y and F get the undisposed portion of 65, 000
equally. L will get the 10, 000. In testate succession, the right of representation
pertains only to the legitime.

48
If T dies without a will, and X and Y are the sole heirs, c will get 50, 000 by
right of representation of x. In intestate succession, the right of representation covers
the whole share of the person represented.
b. Y predeceases T X and F get 90, 000 equally, L gets 10, 000
c. F predecease T Since he is a voluntary heir, he cannot be represented. He transmits
absolutely nothing to his heirs. X and Y get 90, 000 equally, L will get 10, 000. In
testate succession, only compulsory heirs may be represented.
d. L predeceases T Since he, as legatee, is not a compulsory heir, he cannot also be
represented. X, Y and F get the entire inheritance equally.
e. If Y renounces the inheritance, how much would C get?
C will get nothing.
Notes:

When there is right of representation, the representative inherits directly, not from the
person represented (the one who predeceases, becomes incapacitated, or has been
disinherited), but from the one whom the person represented would have succeed, i.e., the
testator or decedent whose estate is inherited.

In the case of representation, the heir represented does not transmit his rights to the heir
representing him; the representative acquires directly from the decedent or testator the
rights which the person represented would have received if he had inherited. Article 971
provides: The representative does not succeed the person represented but the one whom
the person represented would have succeed.

As Mr. Justice J.B.L. Reyes says, The code in fact recognizes no exceptions to this rule. The
right of representation does not constitute an exception, because the one representing does
not acquire the inheritance from the one represented. This is expressly recognized by Article
971. Hence the representation does not imply that the one represented acquires and
transmits rights to his representative.

Thus, the phrase except in cases expressly provided for in this Code in the second
paragraph of Art. 856 does not really provide exceptions to the three situations mentioned in
the said Article. It is still true that the heir or person transmits nothing to heirs having
acquired none.

There is only representation with regard to the legitime because the compulsory heir is only
one with regard to the legitime and is a voluntary heir with regard to the free portion. The
right of representation exists only in case of predecease, incapacity and disinheritance but
does not exist in repudiation. Therefore, if the heir is voluntary and he predeceases or
repudiates or is incapacitated to succeed, he transmits nothing to the heirs absolutely
because there is no right of representation as to the voluntary heir. In the case of the
compulsory heir he transmits no rights to his heirs in case of predecease, incapacity,
repudiation or disinheritance without prejudice to the right of representation which, however,
may exist only in case of predecease, incapacity or disinheritance but never when there is
repudiation.

Note that a compulsory heir in the ascending line cannot be represented (Article 977). In the
collateral line, it takes place only in favor of nephews and nieces of the deceased when they
survive with brothers and sisters of said decedent.

An heir, even though a compulsory one, who has repudiated his share of the inheritance may
not be represented. (Art. 977) because one who validly renounces an inheritance is deemed
never to have received the same (Art. 533, par. 2). The rule is absolute. But a person may
represent him whose inheritance he has renounced. (Art. 976) Thus a son who renounced the
inheritance from his father may represent the father in the inheritance from the latters
father.

Thus, in testate succession, the right of representation covers only the legitime. In intestate
succession, it covers the entire share of the person represented. The whole inheritance would
descend by the rules of intestate succession.

49
SECTION 2. - SUBSTITUTION OF HEIRS
Define substitution of heirs.
Substitution is the appointment of another heir so that he may enter into the inheritance in
default of the heir originally instituted.
What rules on institution of heir are made applicable in substitution?
Since substitution is merely a second institution, the principles and rules on institution of heir
are applicable to substitution, except in so far as they may be modified by the express provisions on
substitution. Thus
a. The substitution can affect only that portion of the inheritance for which institution can
be made; namely, the free portion where there are compulsory heirs and the entire
estate when there are none.
b. The manner in which the testator should designate and identify the substitute is
governed by the pertinent rules on institution (Articles 843 to 845)
c. If two or more persons are substituted for another, their shares are to be determined
by the same rules which apply to the institution of several heirs (Articles 846 to 849,
and 851 to 853).
d. A substitute who dies before the testator, or who is incapacitated to succeed, or who
repudiates the inheritance, does not transmit rights to his own heirs (Article 856).
What property of the testator may be the subject of substitution?
Substitution can never refer to the legitime because the law prohibits the testator from
imposing any burden, encumbrance, condition or substitution of any kind whatsoever on the
legitime. Therefore, substitution may refer only to the free portion.
Can there be substitution in devises and legacies?
There can be substitution in devises and legacies because there is no prohibition in our law
regarding substitution and it may be justified under the principle of disposition of the testator.
How is substitution distinguished from accretion?
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,
or co-legatees. As in substitution, therefore, a vacant portion of the inheritance goes to another heir.
In case of conflicting claims between a substitute and an heir entitled to accretion, the former
should be preferred, because his right from the express will of the testator while that of the latter is
derived only from a will presumed by law.
What are the purposes of substitution?
1. To prevent the property from falling into the ownership of people not desired by the testator;
2. To prevent the effects of intestate succession;
3. To allow the testator greater freedom to help or reward those who by reason of services
rendered to the testator, are more worthy of his affection and deserving of his bounty than
intestate heirs.
4. It is designed for the prosperity and heritage of the family.
What is the nature or character of substitution?
1.
2.
3.

4.

Substitution obtains only in testate succession, hence, there is no substitution

in intestate succession;
It is a consequence of the principle of freedom of disposition, which is
recognized in favor of the testator;
it is nothing more than a subsidiary or secondary institution of a second or
subsequent heir, hence, Section 2 on Institution of Heir also applies except
insofar as its provisions ma be modified by those on substitution;
It is really a conditional institution, involving as it does a suspensive conditional
for the substitute heir, hence the provisions on conditional substitution are also
suppletorily applicable;

50
5.

6.

It may refer only to the free portion because the law prohibits the testator from
imposing any burden, encumbrance, condition, or substitution of any kind
whatsoever on the legitime (Article 872, 904); and
It has preference, after institution of heir, over right of representation, right of
accretion and intestacy.

What is the order of priority in case of institution, substitution, representation,

accretion and intestacy?
1. Institution if there is a valid and effective institution of heirs, the institution shall be
followed (Article 840). The instituted heirs shall inherit even if there is a provision for
substitution.
2. Substitution If there is a provision for substitution, the substitute/s will inherit if the
instituted heir/s become incapacitated, or repudiated the inheritance or predeceased the
decedent and there are no available representatives. Substitution is conditional institution.
3. Representation If there is no provision for substitution, the instituted heir/s who could not
inherit will be represented by their descendant/s or representative/s if representation is
proper and applicable (Article 970). However, a repudiating heir cannot be represented
(Article 977)
4. Accretion If the instituted heir predeceased the decedent, or was incapacitated and
representation is not proper and applicable, or if he repudiated the inheritance, his share
which becomes a vacant portion of the inheritance shall be inherited by his co-heirs, codevisees or co-legatees by accretion (Article 1015).
5. Intestacy If institution, substitution, representation and accretion all failed, intestacy will
set in. The estate will be divided in accordance with the rules on intestacy (Article 960 to
1014).
What are the kinds of substitution of heirs?
1. Simple or common (vulgar);
Where the testator designates one or more persons to substitute the heir or heirs
instituted in case of (1) predecease; (2) renunciation or repudiation; and (3) incapacity.
2. Brief or compendious (brevilocua / compendiosa);
Where two or more persons are substituted for one (brief substitution), and one
person for two or more heirs (compendious substitution)
3. Reciprocal (reciproca)
Where the instituted heirs are also made the substitute of each other.
4. Fideicommissary (fideicommisaria).
Where the testator institutes a first heir, and charges him to preserve and transmit
the whole or part of the inheritance later on to a second heir.
Note: In reality, there are only two kinds of substitution: the simple and the
fideicommissary. These two are mutually exclusive, i.e., a substitution must be one or the other, and
cannot be both at the same time.
The other two enumerated the brief or compendious and the reciprocal are mere variations
of either the simple of fideicommissary.
What are the causes of simple substitution?
a. Predecease of the first heir
b. Renunciation of the first heir;
c. Incapacity of the first heir.
How may the testator provide for simple substitution with all three causes?
a. By specifying all the three causes;
b. By merely providing for a substitution.
How may restricted simple substitution be made?

51
By specifying only one or two of the three causes.
X instituted A and B as substitute. X did not state the causes for which the
substitution may be made. What should these causes be?
All or any of the three cases, unless X has provided otherwise.
If the second heir (or the substitute) enters into the inheritance, does he do so
because he succeeds from the first heir?
No. The second heir succeeds from the testator and not from the first heir.
Note: It may happen that the heir for whom a substitute is appointed is a compulsory heir of
the testator. In such case, the substitution cannot affect the legitime, because the law prohibits the
testator from imposing any charges, conditions, or limitations upon that part of his inheritance.
Besides, the power to appoint a substitute emanates only from the freedom to dispose by will; since
the legitime is not subject to the free disposal of the testator, there is nothing to justify his right to
order vulgar substitution as to such part.
What are the instances when the substitution is extinguished?
a.
b.
c.
d.
e.
f.

When
When
When
When
When
When

the
the
the
the
the
the

substitute predeceases the testator;

substituted is incapacitated;
substitute renounces the inheritance;
institution of heir is annulled by preterition;
institution or the substitution is revoked by the testator;
will is void or disallowed or revoked.

In case of simple or vulgar substitution, the same is extinguished:

a)
b)
c)
d)

By the nullity of the will;

By the annulment of the institution of heir;
By the death of the substitute before the testator;
When the substitute himself is incapacitated to succeed the
testator, and
e) When the substitute repudiates or renounces the inheritance.

If the substitution is conditioned upon the renunciation of the inheritance by

the first heir, the substitution is extinguished by the death of the substitute before the
repudiation by the instituted heir. Such substitution is essentially a conditional
institution of the second heir. Therefore, the second heir must have the capacity at the
time the condition (renunciation by first heir) happens. To have capacity, the second
heir must be living at that time (Article 1025); hence, if he had died prior to the
happening of the condition, or the renunciation, he cannot succeed because of want of
capacity. The capacity must be determined, not only at the time of the testators
death but also when the condition happens (Article 1034, par. 3).
X made a will instituting A as heir, and B as substitute. In 1995, B died, leaving C,
his child. In 2000, X died but B is incapacitated to inherit. Can C inherit from X?
No, because B is a voluntary heir and since he predeceased the testator, he transmits nothing
to his own heirs.
X made a will instituting B as heir, and B as substitute. X died in 2000. B renounced
the inheritance in 2001. B died in 2002. Can C, the child of B inherit from Xs estate?
Yes, because this is not a case of predecease on the part of B, who after all survived the
testator, and immediately inherited from X, subject to the condition of Bs non-inheritance. Since the
condition was fulfilled, B inherited. C gets the estate not as an heir of X but as an heir of B.
X institutes A to 120, 000, B to 20, 000, and C to 40, 000. The estate is 180, 000. A
made the substitute of B or C; B and C are substitutes of A. A predeceased B and C. How
much will B and C get?
B gets 60, 000. (20, 000 by institution, 40, 000 by substitution)
C gets 120, 000. (40, 000 by institution, 80, 000 by substitution)

52
X makes the following provisions in his will: I institute A and B to 1/3 of my estate
and nominate C as their substitute. If A predeceases B, will the 1/3 portion go to C?
No, the 1/3 portion goes to B. There is no substitution by C. Substitution occurs only of both
A and B are disqualified. (The obvious exception to this is a case where the testator provides for
substitution in the event of the death (or renunciation or incapacity) of any one of the original heirs.)
Note: If one is substituted for two or more original heirs - effect of default of one but not all
of the original heirs: substitution will not take place; the share left vacant will accrue to the surviving
co-heir or co-heirs. Substitution will take place only if all the original heirs are disqualified.
A, B and C are instituted, respectively, to , 1/3 and 1/6 of the estate. Should A
predecease the testator, how much would B and C get?
B and C will acquire As portion in the proportion of 2:1 (since their testamentary shares
are 1/3 and 1/6).
Should B predecease, how much would A and C get?
A and C will get Bs 1/3 portion in the proportion of 3:1 (corresponding to the testamentary
shares of and 1/6).
Should C predecease, How much would A and B get?
A and B will share Cs 1/6 portion in the proportion of 3:2, by the same logic.
Note: If heirs instituted in unequal shares should be reciprocally substituted shall acquire the
share of the heir who dies, renounces, or is incapacitated, unless it clearly appears that the intention
of the testator was otherwise. If there are more than one substitute, they shall have the same share
in the substitution as in the institution.
I institute A, B and C to 1/3 of my estate and in case they all die before me, I
institute D by way of simple substitution. If A and B predeceases the testator, will D get
any share?
No, the substitution will take effect only upon the death of all the three. However, if what was
stated was any or all die before me, then D will get A and Bs share.
I institute A to 1/3, B to 1/6, and C to of my estate and by way of simple
substitution, I institute them as substitutes of one another. If C predeceases the
testator, how will his share be divided if the estate is worth 60, 000?
A = 1/3 = 20, 000
B = 1/6 = 10, 000
C = = 30, 000
a. Get the LCD of the remaining heirs : 6
A = 2/6
B = 1/6
b. Get the ratio between the remaining heirs and the sum of the ratios:
2:1 = 3
A = 2/3
B = 1/3
c. Multiply the original share of C by the ratio in (b)
A = 2/3 x = 2/6
B = 1/3 x =1/6
d. Add the result in (c) to their original shares
A = 2/6 + 2/6 = 4/6
B = 1/6 + 1/6 = 2/6
e. Multiply the result in (d) by the value of the estate

53
A = 4/6 x 60, 000 = 40, 000
B = 2/6 x 60, 000 = 20, 000
Article 866 provides that the second heir shall acquire a right to the succession
from the time of the testators death, even though he should die before the fiduciary. The
right of the second heir shall pass to his heir. Is it possible that the second heir has no
heirs?
That the second heir has no heirs is impossible. His heirs are: descendants, ascendants, and
collateral relatives to the fifth degree, then the state.
What is the effect of the charges and conditions imposed on the substitution?
General rule: If the substitute inherits, he must fulfill the conditions imposed on the original
heir.
Exceptions:
1. If the testator has expressly provided the contrary (which must appear in the will);
2. If the charges or conditions are personally applicable only to the heir instituted.
Distinguish between a fideicommissary substitution from a simple substitution.
While in the simple substitution, only one of the heirs inherits, in the fideicommissary, both
inherit the property or right simultaneously, although the enjoyment and possession are successive.
What are the requisites of the fideicommissary substitution?
a. There must be a first heir called primarily to the enjoyment of the property
b. There must be an obligation clearly imposed upon him to preserve and transmit to a
third person the whole or part of the inheritance;
c. There must be a second heir;
d. The first and second heirs must be only one degree apart;
e. Both heirs must be alive or at least conceived at the time of the testators death;
f. It must be made in an express manner;
g. It must not burden the legitime (it must be imposed on the free portion only); and
h. It must not be conditional.
What does the requirement one degree mean?
There is no question that only one transmission is allowed in fideicomisoria, from the first heir
to the second heir. But, on top of that, does the term one degree mean that the second heir must
be in the first degree of relationship with the first heir, as the word degree is used in Article 963,
964 and 966? In other words, must the second heir be either a child or a parent of the first heir?
Yes, ruled the Supreme Court in Palacios vs. Ramirez, 111 SCRA 704.
Manresa, Morell and Sanchez Roman construe the word degree as generation, and the
present Code has obviously followed this interpretation, by proving that the substitution shall not go
beyond one degree from the heir originally instituted. The Code thus clearly indicates that the
second heir must be related to and be one generation from the first heir.
From this, it follows that the fideicommissary can only be either a child or a parent of the first
heir. These are the only relatives who are one generation or degree from the fiduciary.
What is the tenure of fiduciary?
Primary rule the period indicated by the testator
Secondary rule if the testator did not indicate a period,

then the fiduciarys lifetime.

What does the requisite that both heirs must be living and qualified to succeed at
the time of the testators death mean?
Living this requisite is defined in Articles 40-41
Qualified Articles 1024-1034

54
This two-fold requirement is to be met only upon the testators death, and this applies not
only to the fiduciary but to the second heir as well. Thus, the second heir need not survive the first
heir; the second heirs own heirs merely take his place.
What is the nature of the rights of the fiduciary heir and the fideicommissary
substitute with respect to the property which is the subject matter of the substitution?
Upon the death of the testator or fideicomitente, the fiduciary heir acquires all the rights of a
usufructuary until the moment of delivery to the fideicommissary substitute. In other words, pending
the transmission or delivery, he shall possess the beneficial ownership of the property, although the
naked ownership is vested in the fideicommissary substitute.
What are the obligations of the fiduciary heir?
1. Preservation of the property. Corollary to this obligation is the obligation to make an
inventory of the property. Because of this obligation to preserve, he cannot alienate the
property itself, although he may alienate his right to the property;
2. Transmission of the property to the fideicommissary substitute. The time of transmission shall
depend on the will of the testator. If the time is not designated, then the transmission shall
take place upon the death of the fiduciary heir.
Is a fiduciary bound to furnish a bond?
A fiduciary, being considered in the same situation as a usufructuary, is not bound to furnish
a bond.
In a fideicommissary substitution, no period was fixed by the testator as when the
property shall be transmitted to the second heir. What rule shall apply?
In the absence of a period fixed by the testator, the inheritance is supposed to be delivered
at the death of the first heir.
X devised a land to A. He provided in the will that A would enjoy the land as long as
A lived, bit after his death, the same should go to B. Is there a fideicommissary
substitution here?
No, because there was no obligation to preserve.
X instituted A as the first heir, and B (As brother), as second heir in a
fideicommissary substitution. When X dies, A got the property. Will B now get the
property?
No, because the fideicommissary substitution was not valid, B, being a relative of the second
degree of A. Consequently, As heirs get the property.
X instituted A as first heir, B (As son) as second heir; and C (Bs mother) as third
heir in a fideicommissary substitution. Is this valid?
It is valid insofar as A will get and then B. But on deaths, C does not get the property as a
result of the fideicommissary substitution because C is not one degree apart for A.
X instituted a as first heir, As third child as second heir. If A does not still have a
child at the time X dies, can the fideicommissary substitution be given effect?
No, for the second heir was not yet living or conceived at the testators death. This is so even
if at the time A dies, the third child already exists.
X institutes A as first heir, B as second heir. B dies in 2000; X dies in 2001. In 2002,
does A inherit?
Yes, for while the substitution is not valid, the institution remains valid.
How much should be delivered to the second heir?
1. The general rule is that the fiduciary should deliver the property intact and undiminished to
the fideicommissary heir upon the arrival of the period.
2. The only deductions allowed, in the absence of a contrary provision in the will are:

55
1. Legitimate expenses like necessary repairs for the preservation of the
property
2. Legitimate credits;
3. Legitimate improvements necessary and useful improvements
What is the rule on damage or deterioration?
1. If caused by a fortuitous event or ordinary wear and tear fiduciary not liable.
2. If caused by fiduciarys fault or negligence fiduciary liable.
X instituted A as first heir, and B as second heir. X died in 2000. B died in 2001,
leaving a son C. On As death, will C get the property?
Yes. On Xs death in 2000, A got the property and on As death, same should go to the heirs
of B. B really had already inherited from X since he acquired the right from Xs death; and his right
goes to C, his heir, even if B predeceased the fiduciary A. Had B predeceased X, B would never have
acquired any right to the property and would not be able to transmit same to his own heir.
What provisions shall not take effect?
1. Fideicommissary substitutions which are not made in an express manner, either by giving
them this name, or imposing upon the fiduciary the absolute obligation to deliver the
property to a second heir.
[Note that the lack of this element does not, by the fact alone, nullify the institution. It
only means that the institution is not a fideicomisaria. It could; however be something else,
as was the case in PCIB v. Escolin]
2. Provisions which contain a perpetual prohibition to alienate, and even a temporary one,
beyond the limit fixed in Article 863.
[If there is fideicomisaria, the limit is the first heirs lifetime. If there is no
fideicomisaria, the limit is 20 years.]
3. Those which impose upon the heir the charge of paying to various persons successively,
beyond the limit fixed in Article 863, a certain income or pension
[Conformably to the limits set in Article 863, there can only be two beneficiaries of the
pension, one after the other, and the second must be one degree from the first. There is no
prohibition, however, on simultaneous beneficiaries.]
4. Those, which leave to a person the whole or part of, the hereditary property in order that he
may apply or invest the same according to secret instructions communicated to him by the
testator.
[The ostensible heir is in reality only a dummy, because in reality, the person intended
to be benefited is the one to whom the secret instructions refer.]
If the testator imposes a longer period than 20 years, is the prohibition valid?
Yes, but only for 20 years.
If there is a fideicommissary substitution, can the testator impose a period longer
than 20 years?
Yes, because the limitation will not apply. Rather, Article 863 will apply, which allows, as a
period, the lifetime of the first heir.
X devised a land to A and prohibited him never to sell the property. Is the
prohibition valid?
Strictly speaking, the prohibition is of no effect, but considering Article 870, the same would
be valid, but only for the first twenty years.
X instituted A as first heir, and B as second heir in a fideicommissary substitution. X
died and A got the property. If A lives for 50 years more, can A sell the property?

56
No, he must preserve the property till his death, then B takes the property.
X instituted A as first heir, and B as second heir in a fideicommissary substitution. X
ordered A not to sell the property for 30 years, and after said period to deliver the
property the property to B. Is this a valid stipulation?
Yes, even if the period exceeds 20 years, for after all, at the end of the 30 years, A cannot
give the property to anybody except B. Moreover, if the first heir can be prohibited to alienate as
long as he lives in order that the same could be delivered to the second heir, why not for a period of
30 years? Of course, even if 30 years have not elapsed yet, if the first heir has already died, the
property should be given to B by virtue of the fideicommissary substitution.
X instituted A as his only heir but prohibited him and all who may subsequently
inherit form him to dispose of the property for a period of 20 years. X died. If A dies 3
years after X, will As son B still bound to respect the temporary prohibition?
Yes, for the next 17 years.
Suppose B died after 10 years more, and the property is in turn inherited by C who
is his son, is C bound not to alienate for the remaining 7 years?
No more, because although a total of 13 years has lapsed, still to impose the prohibition for
the remaining 7 years on C would be beyond the limits of Article 863, since C is not a first degree
relative of A who originally inherited the property.
[In case there is no fideicommissary substitution, the testator can prohibit an heir, and all
those who may inherit from the latter, for a total period of 20 years, provided the same prohibition
will not go beyond the limits imposed by Article 863 (does not go beyond one degree from the heir
originally instituted)]
X died in 1952 with a will. In the will, he devised a house and lot to A as fiduciary
heirs and to the latters son, C, as fideicommissary substitute, declaring that said property
shall not be alienated for 100 years. A died in 1962. May B now validly alienate the
property?
No. 3 of article 867 provides that provisions which contain a perpetual prohibition to alienate,
and even a temporary one, beyond the limit fixed in Article 863 shall not take effect. There are only
two limitations stated in Article 863. They are: first that the substitution must not go beyond one
degree from the heir originally instituted; and second, that both the first heir and the second heir
must be living at the time of the death of the testator. It is evident that in testamentary dispositions,
which contain a perpetual prohibition to alienate, neither one nor the other can possibly be violated.
He only limitation, which is violated, is that provided in Article 870. The prohibition to alienate is
good for 20 years. Beyond that, it is void. Therefore, in the instant problem, C must still have to wait
for 1972 before he can validly alienated the property.
What is the effect of the nullity of the fideicommissary substitution?
It does not prejudice the validity of the institution of the heirs first designated; the
fideicommissary clause shall simply be considered as not written.
X instituted A as first heir, and B as second heir. If B predeceases X, will A still
inherit?
Yes, as instituted heir, notwithstanding the invalidity of the fideicommissary substitution. The
clause on substitution is simply considered as not written.
X in his will gave to A the naked ownership of his house and B the usufruct over the
same. Is this allowed?
Yes, because the naked ownership of the property is really distinct and severable from the
use of fruits (the beneficial ownership) thereof.
May the usufruct be given to B and D, a stranger simultaneously?
Yes, and in such a case, B and C would be co-owners of the usufruct and of the usufructuary
rights.

57
X disposed of his house in a will giving the naked ownership of the same to A; and
to B and C, successively, the usufruct. This means that B first gets the usufruct, and after
B dies, the usufruct goes to C. Is this disposition of the usufruct valid?
Yes, provided that B is a first degree relative of C; and both B and C are alive at the time X
dies.
A was given his legitime in the form of a house in the will but was prohibited to sell
the same within a period of 10 years. Can A sell the house even before the expiration of
said period?
Yes, the prohibition, even if less than 20 years cannot be applied to the legitime.
What are the purposes of the prohibition of the alienation of the estate for more
than 20 years?
a. To give more impetus to the socialization of ownership;
b. To prevent perpetuation of large holdings.

Summary:
1.

Prohibition to alienate applies to voluntary heirs for a period of not exceeding

20 years. Exception: Fideicommissary substitution.

2.

Prohibition to alienate cannot be imposed on the legitime. Article 904 provides

that No burden, encumbrance, condition or substitution of any kind
whatsoever can be imposed on legitime. The only condition that can be validly
imposed on a legitime is the prohibition to partition which shall not exceed 20
years (Article 1083 in relation to Article 494) which provides that a donor or
testator may prohibit partition for a period which shall not exceed 20 years.

3.

Substitution as to legitime It is not only fideicommissary substitution that

cannot be established with respect to the legitimes of compulsory heirs; all
kinds of substitutions are prohibited in so far as legitimes are concerned. If the
testator provides for a substitution in relation to a legitme, the substitution is
considered as not imposed.

SECTION 4
CONDITIONAL TESTAMENTARY DISPOSITIONS
AND TESTAMENTARY DISPOSITIONS WITH A TERM
What are kinds of testamentary dispositions?
1. Conditional dispositions (Articles 873, 874, 875, 876, 883 (par. 2), 879, 880, 881 and 884);
2. Dispositions with a term (Articles 878 and 885); and
3. Dispositions with a mode (modal dispositions) (Articles 882 and 883 (par. 1).
How are conditions classified?
1. By the form of its establishment into express or tacit
Express conditions are those which are imposed explicitly; tacit conditions are those
which are not expressly stated but which are understood or which can be inferred logically
and juridically from the expression of the will of the testator.
2. By its effect into suspensive and resolutory

58
Suspensive conditions are those which prevent the effectivity of the right which they
affect until the fulfillment of the condition imposed; resolutory conditions are those which
extinguish on their fulfillment the right created, which right exists until then, thereby
restoring the things which are the object of the right.
3. By reason of its fulfillment into potestative, casual or mixed
Potestative conditions are those which depend for their fulfillment on the will of the
heir or legatee; casual conditions are those which depend on chance or an event; and mixed
conditions are those which depend at the same time on the will of the heir and chance or on
the will of the heir and a third person.
4. By reason of the nature of the fact into positive and negative
Positive conditions are those which are fulfilled by giving or doing something and
negative conditions are those which are fulfilled by abstaining from doing something.
5. By reason of its adaptation to the technical concept of condition into proper or improper.
Included in the improper conditions are the following:
i. Impossible conditions those which cannot be fulfilled either because they are
contrary to the laws of nature, to morals or to law.
ii. Ambiguous conditions which because of their defective statement are obscure
and unintelligible.
iii. Captatroy conditions which are a species of those contrary to morals. They
impose on the heir the condition that he should provide for the testator or a
third person as a condition of being named as heir.
GENERAL PROVISIONS
What is the general rule on the testamentary freedom of the testator (Article 871)?
GENERAL RULE: The right of the testator to impose conditions, terms and modes springs
from the testamentary freedom. If he has the right to dispose of his estate mortis causa, then he
has the right to make the dispositions subject to a condition, term or mode.
What is the exception to this testamentary disposition (Article 872)?
EXCEPTION: The legitime passes by strict operation of law, independently of the testators
will. This is the logical consequence of the principle that the testator cannot impose any charge,
condition or substitution whatsoever upon the legitimes, and should he do so, the same shall be
considered as not written. Therefore, the condition can be imposed only on the free portion and
never on the legitme.
EXCEPTION TO THE EXCEPTION: Article 1083 - The testator can validly impose a prohibition
against the PARTITION of the legitime (not disposition), for a period not exceeding 20 years. This is
the only prohibition or condition that can affect or burden the legitme.
CONDITIONS
What are the general rules on imposition of conditions?
1. The conditions to affect the disposition must appear in the language of the will and
cannot be presumed. Parol evidence to prove the existence of oral or other conditions
cannot be allowed. However, if the condition appears in a document incorporated by
reference into the will, it is proper to consider said condition.
2. Impossible conditions and those contrary to law or good morals shall be considered as
not imposed and shall in no manner prejudice the heir, even if the testator should
provide otherwise (Article 873).
This rule is also applicable in donations. However, the rule in civil obligations is
different, in that impossible conditions shall annul the obligation which depends upon
them. This is so because the condition that is imposed becomes an integral part of the

59
causa of the obligation and the elimination of that condition for being impossible or
illegal results in a failure of cause. On the other hand, testamentary dispositions and
donations are both gratuitous and liberal; thus, the imposition of the condition does
not displace liberality as the basis of the grant.
The rule under Article 873 therefore, departs from the general rule in
obligations where the impossibility of the condition annuls the obligations dependent
on them.
What are the kinds of conditions?
1. Suspensive condition - If an heir is instituted subject to a suspensive condition, what is
acquired is only a hope or expectancy. It is however a hope or expectancy that is protected
by law. The inheritance shall be placed under administration until the condition is fulfilled, or
it becomes certain that it cannot be fulfilled.
2. Resolutory condition - If an heir is instituted subject to a resolutory condition, he acquires a
right to the inheritance immediately upon the testators death. This right, however, is subject
to the threat of extinction. If the condition is fulfilled or voided, such right is extinguished.
3. Conditions prohibiting marriage.
The prohibition is against first marriage when the heir or legatee is single. The
prohibition is against a subsequent marriage when it refers to the surviving spouse or to one
who is a widow or widower.
What are the rules on conditions prohibiting marriage?
1. If a first marriage is prohibited the condition is always considered as not imposed.
2. If a subsequent marriage is prohibited (remarriage):
a. Absolute prohibition when the heir or legatee is forbidden to marry any person at
any time or place or when he or she is required to remain unmarried or in widowhood.
Effect: Void as it is contrary to morality and public policy.
Exceptions:
a) If imposed by the deceased spouse or by his ascendants or descendants
condition is valid.
b) If imposed by anyone else condition is considered as not written.
b. Relative prohibition (to marry or remarry) when it refers only to a particular persons
or group of persons or when it refers only to a particular period or places.
Effect: Valid, unless it becomes so onerous or burdensome
What are the rules in order that the absolute condition not to contract a subsequent
marriage be valid and enforceable?
1. In order, however, that the absolute condition not to contract a subsequent marriage
imposed by the deceased spouse on the surviving spouse be valid, it must be expressly
stated in the will and the condition cannot be implied from the context of the will.
2. This absolute prohibition to contract a second marriage is only applicable to the free portion
which is given to the surviving spouse but cannot apply to the legitime of the widow or
widower because as regards legitime, the law prohibits any condition from being imposed
upon it.
Are the following conditions valid and enforceable?
1) Condition to contract marriage This condition is valid as there is no prohibition on the imposition of a condition to
marry, either with reference to a particular person or not.
2) Usufruct or allowance under certain conditions

60
The law allows in the second paragraph of Article 874 the right of usufruct or an
allowance or some personal prestation to be bequeathed to any person during the time he or
she should remain unmarried or in widowhood.
3)
4)
5)
6)

Relative prohibition, e.g., Not marry a lawyer valid

Condition to renounce a religion not valid
Condition to enter into a religious life valid
Condition to leave priesthood/religious life debatable, as the same can be considered
not valid as being contrary to public policy.
Conditions not covered by the prohibition:
The following conditions are not included in the article and therefore implicitly allowed:
a. The generic condition imposing marriage
b. The specific condition of marrying a particular person
c. The specific condition of not marrying a determinate person

With regard to the conditions imposing marriage, the same are valid provided that
they are susceptible of performance. But if they are impossible of performance, they
shall be deemed as an impossible condition and, therefore, considered as not written.
The heir or legatee will then be deemed instituted without a condition.

What is scriptura captatoria or disposition captatoria?

Article 875 provides: Any disposition made upon the condition that the heir shall make some
provision in his will in favor of the testator or of any other person shall be void.
Is scriptura captatoria or disposition captatoria allowed?
Scriptura captatoria (or disposition captatoria) is prohibited. Note that what is declared void
here is not merely the condition but the testamentary disposition itself which contains the condition.
What are the reasons why scriptura captatoria or disposition captatoria is not
allowed?
1. The captatoria converts testamentary grants into a contractual
transaction;
2. It deprives the heir of testamentary freedom;
3. It gives the testator the power to dispose mortis causa not only for his
property but of his heirs.
Note: If the favor to be done by the heir will not be made in a will, both the disposition and
the condition should be considered valid.
What are potestative, casual and mixed conditions?
1. Potestative condition one that depends solely on the will of the heir
2. Casual condition one that depends on the will of a third person or on chance
3. Mixed one that depends partly on the will of the heir and partly on the will of
a third person or chance
State the rules.
A. Potestative (Article 876)
a. Positive:
1. General rule must be fulfilled as soon as the heir learns of the
testators death
2. Exceptions
a. If the condition was already complied with at the time the heir
learns of the testators death; and
b. If the condition is of such nature that it cannot be fulfilled again

61
3. Constructive compliance (Article 883 par 2) condition is deemed
fulfilled.
b. Negative:
The heir must give security to guarantee (caucion muciana) the return of
the value of the property, fruits, and interests, in case of contravention.
B. Casual or mixed (Article 877)
a. General rule may be fulfilled at any time, before or after the testators
death, unless the testator provides otherwise.
b. Qualifications if already fulfilled at the time of the execution of the will:
(1) If the testator was unaware of the fact of fulfillment the
condition is deemed fulfilled.
(2) If the testator was aware of the fact of fulfillment:
i.

If can no longer be fulfilled again condition is deemed

fulfilled.

ii.

If it can be fulfilled again the condition must be fulfilled

again

State the rules on constructive compliance (Article 883, par 2).

1. If casual not applicable;
2. If mixed:
a. If dependent partly on chance not applicable
b. If dependent partly on the will of a third party:
c. If third party is an interested party applicable
d. If third party is not an interested party not applicable.
Pending the fulfillment of the suspensive condition, what must be done with the
property? (Article 880 and 881)
Between the time of the testators death and the time of fulfillment of the suspensive
condition or the certainty of its non-occurrence, the property must be place under administration.
The property shall be in the executors or administrators custody until the heir furnishes the caucion
muciana. The procedural rules governing the appointment of administrator is governed by Rules 7790 of the Rules of Court.
State the effects of the fulfillment or non-fulfillment of the suspensive condition.
1. If the condition happens the property will be turned over to the instituted heir;
2. If it becomes certain that the condition will not happen the property will be turned over to a
secondary heir, and if there is none, to the intestate heirs.
Note that this article is not applicable to institutions with a term despite the wording of the
article. Institution with a term is governed by Article 885, par. 2. To do otherwise would result to an
irreconcilable conflict with that article, which mandates that before the arrival of the term, the
property should be given to the legal heirs.
TERMS
What are the different terms?
1. Suspensive term (Article 878)
A suspensive term is one that merely suspends the demandability of a right. It is sure
to happen. A suspensive condition, on the other hand suspends, not merely the
demandability, but even the acquisition itself of the right.
The heirs rights vests upon the testators death. Therefore, should the heir die before
the arrival of the suspensive term, he merely transmits his rights who can demand the

62
property when the term arrives. The rule in this article is similar to a fideicommissary
substitution.
State the rules:
1. The right of the instituted heir is suspended until the arrival of the term.
2. The instituted heir acquires his rights after the testators death but even
before the arrival of the term.
3. Should the instituted die before the arrival of the term. He transmits his
rights to his own heirs.
4. Before the arrival of the suspensive term, the property should be delivered to
the intestate heirs. A caucion muciana has to be posted by the intestate
heirs. The intestate heirs here are merely considered a usufructuary because
they have the obligation of preserving the property until the arrival of the
term when they must turnover the property to the second heir
Note: If the heir is instituted to a suspensive condition and he dies after the testator but
before the fulfillment of the condition, he does not transmit his rights to his own heirs, for he never
inherited.
2. Resolutory term
Rules:
1. The rights of the instituted heir are immediately demandable, although they are
extinguished upon the arrival of the date or time designated by the testator.
2. Therefore, before the arrival of the term, the property should be delivered to the
instituted heir.
3. When the term arrives, he must give it to the intestate heirs.
4. No caucion muciana is required.
MODES (Article 882)
What is a mode?
A mode (institucion sub modo) is an obligation imposed upon the heir, without suspending
(unlike in a conditional disposition), the effectivity of the institution.
State the rules:
A mode must be clearly imposed as an obligation in order to be considered as one. Mere
preferences or wishes expressed by the testator are not modes.
Requisites:
a. The testator states the object of the institution
b. The testator states the purpose or application of the property left
c. The testator states the charge impose by him upon the heir. (Johnny Rabadilla vs. CA,
GR No. 113725, June 29, 2000)
d. Caucion muciana should be posted by the instituted heir.
Distinguish between modal institution and conditional testamentary disposition.
1. A mode imposes an obligation upon the heir or legatee but it does not affect the efficacy of
his rights to the succession; while in a conditional testamentary disposition, the condition
must happen or be fulfilled in order for the heir to be entitled to succeed to the testator.
2. The condition suspends but does not obligate; while the mode obligates but does not
suspend. To some extent, it is similar to a resolutory condition. (Johnny Rabadilla vs. CA,
ibid.)
Principles:

When in doubt as to whether there is a condition or merely a mode, consider, consider them
as a mode.
When in doubt as to whether there is a mode or merely a suggestion, consider same only as
a suggestion.

63
CAUCION MUCIANA
What is caucion muciana?
It is a security to be put up to protect the rights of the heirs who would succeed to the
property, in case the condition, term or mode is violated.
What are the instances where caucion muciana is needed?
1. Suspensive condition (Article 885)
2. Negative potestative condition (Article 879)
3. Modal institution (Article 882, par. 2)
SUBSTANTIAL COMPLIANCE
What are the rules in substantial compliance?
1. If the instituted heir, without his fault cannot comply with the condition exactly in the manner
imposed by the testator, it shall be complied with in a manner most analogous to and in
conformity with his wishes.
2. If the person interested in the condition (like the intestate heir) should prevent its fulfillment,
the condition shall be deemed to have been complied with, provided that the instituted heir is
without fault.
3. When applicable:
1) If casual not applicable;
2) If mixed:
a. If dependent partly on chance not applicable
b. If dependent partly on the will of a third party:
(a)
(b)

If third party is an interested party applicable

If third party is not an interested party not
applicable.

PLACING OF ESTATE UNDER ADMINISTRATION

What are the instances when the estate is placed under administration?
1. When the heir is instituted under a suspensive condition.
2. Where the heir instituted is subject to a negative potestative condition and he does not give a
security when demanded by the heirs entitled to the same.

SECTION 5. LEGITIME
What is legitime?
Legitime is that part of the testators property which he cannot dispose of because the law
has reserved it for certain heirs who are, therefore, called compulsory heirs (Article 886).
The legitime consists of a part or fraction of the entirety of the hereditary estate, and not a
specific or determinate property.
From the definition of legitime in Article 886, it is patent that the portion of the hereditary
estate called legitime is to a certain extent withdrawn from the patrimony if the testator thus
preventing him from disposing it by gratuitous title. Of course, he can still enjoy the same because it
is still his. It is only upon his death that his heirs become entitled thereto (Article 777).
The legitimes are translated into properties only upon the delivery if the properties to the
heirs, which is usually done after all claims against the estate ahs been settled.
A testator who has compulsory or forced heirs cannot impair the legitimes of the latter
(Article 842). Accordingly, if he has no forced or compulsory heirs, he may dispose of all his estate
or any part of it in favor of any persons having capacity to succeed (Ibid.).
Can the testator deprive his compulsory heirs of their legitime?

64
No, the testator cannot deprive his compulsory heirs of their legitme, except in cases
expressly specified by law (Article 904).

Does the testator have the power to impose burdens on legitime? Why?

No, the testator cannot impose upon the legitime any burden, encumbrance, condition or
substitution of any kind whatsoever (Article 904). This is so because of the principle that the legitime
passes by strict operation of law.
Can the owner dispose of the legitime by onerous title?
Yes because in such a case, the alienated property is substituted by an equivalent. However,
his power of disposal by gratuitous title, whether inter vivos or mortis causa is limited.
What is the instance in which the law allows the testator to deprive a compulsory
heir of his legitime?

The only instance in which the law allows the testator to deprive the compulsory heirs of their
legitimes is disinheritance (Articles 915-923), the grounds of which are set forth in Articles 919-921.

Are there instances in which the law grants the testator some power over the
legitime?

Yes, the following laws grant the testator some power over the legitime:

1. Article 1080, par. 2 partition inter vivos of a will.

A parent who, in the interest of his heirs or her family, desires to keep any
agricultural, industrial, or manufacturing enterprise intact, may avail himself of the
right granted him in this article, by or ordering that the legitime of the other children
to whom the property is not assigned, be paid in cash.
2. Article 1083, par 1 Indivision for 20 years.
Every co-heir has a right to demand the division of the estate unless the testator
should have expressly forbidden its partition, in which case the period of indivision
shall not exceed twenty years as provided in Article 494. This power of the testator to
prohibit applies to legitime.

Are there restrictions on the legitime imposed by law?

Yes, the following are restrictions imposed by law on legitime:

1. Article 159 of the Family Code family home shall continue for 10 years.
The family home shall continue despite the death of one or both spouses or of the
unmarried head of the family for a period of 10 years or for as long as there is a minor
beneficiary, and the heirs cannot partition the same unless the court finds compelling reasons
therefore. This rule shall apply regardless of whoever owns the property or constituted the
family home.

2. The reserva troncal (to be discussed separately).

What are the possible ways of disturbing the legitimes of compulsory heirs?
The legitime of a compulsory heir may be disturbed in any of the following way:

65
1. By preterition of a compulsory heir in the direct line (Article 854);
2. By not giving the full legitime of the heir to which he is entitled (Article 906);
3. By imperfect or defective disinheritance of the compulsory heir (Article 918). (The
disinheritance is imperfect when it does not follow the requisites prescribed by law);
Under the above circumstances, the compulsory heir does not lose his legitime
although there is disturbance.
4. By validly disinheriting the compulsory heir (Article 915). This is a case of deprivation of
legitme which is expressly allowed (Article 904).
What are the factors that determine the amount of legitime of an heir?
The amount of legitme of an heir is determined by several factors, particularly:
1.
2.
3.
4.

The
The
The
The

amount of the property;

number of compulsory;
relations of such heirs to the testator; and
percentage of shares assigned to them by law.

What are the kinds of heirs?

1.
2.
3.

Compulsory heirs- they are those for whom the law reserves a portion of a decedents
estate by way of legitime.
Voluntary, testamentary, or testate heirs- they are so called to the succession by
virtue of the expressed will of the testator;
Legal or intestate heirs- They are those called to the succession by operation of law in
the absence of voluntary heirs designated by the testator.

Who are compulsory heirs? (Article 887)

(2) Legitimate children and descendants, with respect to their legitimate parents and ascendants;
(3) In default of the foregoing, legitimate parents and ascendants, with respect to their
legitimate children and descendants;
(4) The widow or widower;
(5) [Acknowledged natural children, and natural children by legal fiction];
(6) [Other illegitimate children referred to in Article 287].62
Compulsory heirs mentioned in Nos. 3, 4 and 5 are not excluded by those in Nos. 1 and 2;
neither do they exclude one another.
In all cases of illegitimate children, their filiation must be duly proved.
The father or mother of illegitimate children of the three classes mentioned, shall inherit in
the manner and to the extent established by this Code.
Amendment to Article 887: The Family Code which became effective on August 3, 1988,
classified all kinds of illegitimate children (natural and spurious) into one general group illegitimate
children. The distinction between the different kinds of illegitimate children under the Civil Code had
been abolished (Article 165 FC). The legitimes of illegitimate children have also been fixed by the
Family Code into one- half (1/2) of the legitime of a legitimate child (Article 176 FC).
Thus, under the law now, there are only four (4) groups of compulsory heirs:
1. First, legitimate children and descendants, with respect to their legitimate parents and
ascendants;
2. Second, in default of the foregoing, the legitimate parents and ascendants, with respect to
their legitimate children and descendants;
3. Third, the widow or widower (Article 887);
4. Fourth, the illegitimate children (Article 165 FC)
What are the classes of compulsory heirs?
1. The primary compulsory heirs they are the legitimate children and/or descendants. They
are preferred over, and exclude, the secondary compulsory heirs.

62
Paragraphs 4 and 5 [bracketed] are deemed deleted by Article 165, EO No. 209 {Family Code}, and to read
illegitimate children.

66
2. The secondary compulsory heirs they are the legitimate parents and/or ascendants;
illegitimate parents. They receive legitime only in default of the primary compulsory heirs.
3. The concurring compulsory heirs they are the surviving spouse, illegitimate children and/or
descendants. They succeed as compulsory heirs together with the primary or secondary
heirs, except only that illegitimate children/descendants exclude illegitimate parents.
What does the term legitimate child or legitimate children and legitimate
parents include?
1.
2.
3.
4.

A legally adopted child pursuant to Art. 189 FC; 63

Legitimated children;
In proper cases, legitimate descendants other than legitimate children;
The term legitimate parents includes, in proper cases, legitimate ascendants other than
parents.
What is the condition before illegitimate children could become compulsory heirs?

There must be recognition of the illegitimate relationship. Articles 172 and 175 of the Family
Code provide the rules on establishment of filiation. 64
What are the different computations for the legitimes of each compulsory heir?

LC alone
of the estate.

LC and SS
LC: of the estate;
SS: a share equivalent to 1 child.

1LC and SS
LC: of the estate;
SS: of the estate.

LC and IC
LC: of the estate;
IC: share of 1LC.

LC, IC, and SS

LC: of the estate;
IC: of share of 1LC;
SS: a share equal to 1LC (the share of SS is preferred over those of the IC which shall
be reduced if necessary).

1LC, IC and SS
LC: of the estate
IC: of share of 1LC;
SS: (preferred) of the estate.

LP alone

63
Section 18. Succession. In legal and intestate succession, the adopter(s) and the adoptee shall have reciprocal
rights of succession without distinction from legitimate filiation. However, if the adoptee and his/her biological parent(s) left a
will, the law on testamentary succession govern (R.A. No. 8552).
64
Article 172. The filiation of legitimate children is established by any of the following:
1. The record of birth appearing in the civil register or final judgment;
2. An admission of legitimate filiation in a public instrument or a private handwritten instrument and signed by the
parent concerned;
In the absence of the foregoing evidence, the legitimate filiation shall be proved by:
1. The open and continuous possession if the status of a legitimate child; or
2. Any other means allowed by the Rules of Court and special laws (Family Code).
Article 175. Illegitimate children may establish their illegitimate filiation in the same way and the same evidence as
legitimate children.
The action must be brought within the same period specified in Article 173, except when the action is based on the
second paragraph of Article 172, in which case the action may be brought during the lifetime of the alleged parent (Family
Code).

67
of the estate.

LP and IC
LP: of the estate;
IC: of the estate.

LP and SS
LP: of the estate;
SS: of the estate.
LP, IC and SS

LP: of the estate;

IC: of the estate;
SS: 1/8 of the estate.
SS alone

of the estate (1/3 of the estate if marriage is in articulo mortis; of the estate if
living together for 5 years).
SS and IC

SS: 1/3 of the estate;

IC: 1/3 of the estate.
SS and IP

SS: of the estate;

IP: of the estate.
IC alone

of the estate.
IP alone

of the estate.

LEGITIME OF SURVIVNG SPOUSE IN TESTAMENTARY SUCCESSION (TESTACY)

Concurring Heirs

Legitime

Free Portion

Article

Spouse alone

; 1/3;

Art. 900

Spouse

Art. 892

1 leg. Child

Spouse

Same share of 1 leg. child

Remainder

Art. 898

2 or more leg. children

Spouse

Same share of 1 leg. child

Remainder

Art. 897

Leg. Children

Art. 895

Illeg. Children

Remainder not to exceed

free portion

Art.176,
FC. 65

Spouse

Leg. Parents

Spouse

Arts.889
& 893

Art. 903

65
Applies if free portion is sufficient, otherwise, free portion will be divided equally. (Unless otherwise specified by
the testator, sharing in the available free portion is equal [Article 846].

68
Illeg. Parents

Spouse

1/3

Illeg. Children

1/3

Spouse

1/8

Leg. parents

Illeg. Children

Spouse

Brothers and sisters,

nephews and nieces

None

1/3

Art. 894

1/8

Art. 899
{Cf. Art
1000}

Art. 900

66

LEGITIMES OF CHILDREN/PARENTS AS SOLE HEIRS IN TESTAMENTARY SUCCESSION

(TESTACY)

Heirs

Share

Free Portion

Article

Legitimate child/children

Alone

Article 888

Illegitimate child/children

Alone

Article 901

Legitimate parents

Alone

Article 889

Illegitimate parents

Alone

Article 903

LEGITIMES OF ILLEGITIMATE CHILDREN/LEGITIMATE PARENTS OR CHILDREN IN

TESTAMENTARY SUCCESSION (TESTACY)

Heirs

Share

Free Portion

Legitimate parents

Illegitimate children

Legitimate children

Illegitimate Children
Illegitimate children
Illegitimate parents

of share of 1 leg. child

Remainder, if
any

Article
Arts. 888
& 896
Arts.
176(FC)
Art. 903

None (being excluded)

Article 887 mentions of children and descendants and legitimate parents and
ascendants; does it mean that they all automatically succeed to the inheritance?

No, in their category as compulsory heirs, the rule is that the nearer excludes the more
remote, except in cases where the right of representation is proper. This is known as the rule of
proximity.

May a compulsory heir renounce or compromise his future legitime? What are its
consequences?

No, every renunciation or compromise as regards future legitime between the person owing it
and his compulsory heirs is void, and the latter may claim the same upon the death of the former
(Article 905).
66
Reason:: They are not compulsory heirs. Hence, they are not entitled to legitime. They can become heirs only in
intestat4e succession (Article 1001 and 994) or if designated as devisees or legatees, i.e. as voluntary heirs.

69
What are the consequences in case there is renunciation or compromise?

a. The compulsory heir may claim his legitime upon the death of the person owing it;
b. But the compulsory heir must bring to collation whatever he may have received by
virtue of the renunciation or compromise (Article 905). That is, any property, which
the compulsory heir may have gratuitously received from his predecessor by virtue of
the renunciation or compromise, will be considered an advance of his legitime and
must be duly credited.
What is the reason of the foregoing rule?

a. Before the predecessors death, the heirs right is simply inchoate which does not vest
in the heir until the moment of the death of the testator. (Article 777)
b. Such renunciation or compromise contravenes the policy of the law which seeks to
secure to the testator the greatest possible freedom in disposing of his property by will
(Article 783), and to prevent the utilization of the will form as a vehicle fro imposing
contractual obligations on the testator.
c. A future legitime involves future inheritance, and under Article 1347, par. 2, no
contract may be entered into upon future inheritance except in cases expressly
authorized by law.
As worded, the article refers to transactions of compromise or renunciation
between a prospective compulsory heir and the predecessor. Is a transaction between the
prospective compulsory heir and another prospective compulsory heir, or between a
prospective compulsory heir and a stranger prohibited?

Yes, pursuant to Article 1347, which provides that No contract may be entered into upon
future inheritance except in cases expressly authorized by law?

What is the scope of prohibition?

1. Any renunciation of future legitimes, whether for a valuable consideration or not, made
unilaterally or otherwise;
2. The waiver of the right to ask for the reduction of an officious donation either by the heirs
express declaration or by consenting to the donation (Article 772); and
3. Article 1347. 67
What are the instances where the prohibition is not applicable?

1. Renunciations or compromises made after the death of the testator, for in such a case, the
right to legitime being already an acquired right and no longer an expectancy;
2. Donations or remissions made by the testator to the compulsory heirs as advances of the
legitime. Their acceptance does not amount to renunciation of future legitime
The rule is that anything that a compulsory heir receives by gratuitous title from the
predecessor is considered an advance on the legitme and is deducted there from. Are
there exceptions to this rule?

Yes, they are:

1. Article 1062 If the predecessor gave the compulsory heir a donation inter vivos and
provided that it was not to be charged against the legitime;

67
Article 1347. All things which are not outside the commerce of men, including future things, may be the object of a
contract. All rights which are not intransmissible may also be the object of contracts.
No contract may be entered into upon future inheritance except in cases expressly authorized by law.

70
2. Article 1063 Testamentary dispositions made by the predecessor to the compulsory heir,
unless the testator provides that it should be considered part of the legitime.
What is the remedy of the compulsory heir to whom the testator has left any title
less than the legitime belonging to him?

He may demand that the same be fully satisfied (Article 906).

What is meant by any title referred to in the article?

It applies to transmissions by gratuitous title. It also includes donation inter vivos, which are
considered advances on the legitime.

What is the remedy of the compulsory heir if there are testamentary dispositions
that exceed the disposable portion?

The compulsory heir may petition that the same be reduced to the extent that the legitmes
may have been impaired, in so far as they may be inofficious or excessive (Article 907).

Distinguish completion of legitime from preterition.

1. In case of preterition, ignorance or faculty memory on the part of the testator can be
presumed but such presumption does not lie in case the compulsory heir has been given
something.
2. In the former, the compulsory heir is not totally deprived of his legitime. Thus, the
compulsory heir does not lose his legitime but on the other hand, he cannot claim more than
his legitime. He has therefore a right to claim what is lacking, that is, the completion of the
portion that by law belongs to him. However, in the case of preterition, the compulsory heir
who was totally omitted has the right to demand his legitime and also demand that the
institution of heirs be annulled except the devises and legacies.
How is legitime determined?

The value of the property left at the death of the testator shall be considered, deducting all
debts and charges, which shall not include those imposed in the will. To the net value of the
hereditary estate, shall be deducted the value of all donations by the testator that are subject to
collation at the time he made them (Article 908).

FORMULA: Property left debts and charges + value of collationable donations = net
hereditary estate.

What are the seven distinct steps in the distribution of the hereditary estate in
testamentary succession?

1. The determination of the value of the estate at the time of the testators death;
2. The determination of all deductible debts and charges which are chargeable to the testators
estate;
3. The determination of the net hereditary estate by deducting all of the debts and charges from
the value of the estate;
4. The collation or addition of the value of all donations inter vivos to the net value of the
estate;
5. The determination of the amount of the legitime from the total thus found in accordance with
the rules established in Article 888 to Article 903 of the Civil Code;
6. Imputation of the value of the donation inter vivos against the legitime of the donee, if made
to a compulsory heir, or against the free portion, if made to a stranger; and finally,
7. Distribution of the net estate in accordance with the will of the testator.

71
What are the steps/ manner of computing the hereditary estate?

3 steps:

1. Inventory of all existing assets

(1) This will involve an appraisal / valuation of these existing assets at the time of the
decedents death.
(2) These assets include only those property and obligations that survive the decedent;
i.e., those, which are not extinguished by his death.
(3) The value determined by this inventory will constitute the gross assets.
2. Deducting unpaid debts and charges
(1) All unpaid obligations of the decedent should be deducted from the gross assets.
(2) Only those obligations with monetary value, which are not extinguished by death, are
considered here. Thus, those obligations, which are purely persona; are not taken into
account.
(3) The difference between the gross assets and th unpaid obligations will be available
assets.
3. Adding the value of donations inter vivos

(1) To the available assets should be added all the inter vivos donations made by the
decedent.
(2) The donations inter vivos shall be valued as of the time they were respectively made.
Any increase or decrease in value from the time they were made to the time of the
decedents death shall be for the donees account, since donation transfers ownership
to the donee.
(3) The sum of the available assets and all donations inter vivos is the net hereditary
estate.
NOTES:

Collation is not necessary when there are no compulsory heirs for the reason
that there is no legitime to be determined.

The value of the donations shall be determined as of the time they were
made and not at the time of the death of the testator.

The collation of the donation does not mean that the properties donated shall
be brought back to the estate but only the value thereof, determined as of
the time they were made, should be added to the net value of the estate to
determine the whole estate of the testator.

What is the rule as to donations inter vivos to compulsory heirs?

They shall be imputed to his legitime; i.e., considered as an advance to his legitime (Article
909, par. 1).

Is there an exception to this rule?

Yes, this rule of imputation to the legitime will not apply of the donor provided otherwise
(Article 1062), in which case the donation will be imputed to the disposable portion of the estate.

72
What is the rule as to donations inter vivos to strangers?

1. A stranger is anyone who does not succeed as a compulsory heir;

2. Donations inter vivos to strangers are necessary imputed to that part of the estate which the
testator could have disposed by his last will (the disposable portion) (Article 909, par. 2).
3. In so far as they may be inofficious or may exceed the disposable portion, they shall be
reduced (Article 909, par. 3).
Summary of donations:

a. Donation to a child, whether legitimate or illegitimate

General rule charged to legitime

Exceptions

1. If the donee who is a child without descendant predecease the testator, is

incapacitated or is disinherited;
2. In case the donee-child repudiates the inheritance;
3. In case the donor-testator has expressly provided that there shall be no collation
unless it impairs the legitime.
b. Donation to parents or ascendants (Article 1062)

68

General rule charged to legitime

Exceptions

1. When the testator provides otherwise;

2. When they are not compulsory heirs.
c. Donation to spouse
General rule not allowed.

Exception gifts of moderate value; treat the same as a donation to a compulsory

heir.

d. Donation to strangers charged to free portion.

What is the order of priorities to be observed in the reduction of the testators
gratuitous dispositions?

After the legitime has been determined in accordance with Articles 908 to 910, the reduction
shall be made as follows:

1. Donations shall be respected as long as the legitime can be covered, reducing or annulling, if
necessary, the devises or legacies made in the will;
2. The reduction of the devises or legacies shall be pro rata, without any distinction whatever;
3. If the testator has directed that a certain devise or legacy be paid in preference to others, it
shall not suffer any reduction until the latter have been applied in full to the payment of the
legitime;
68
NOTE: The donations made to legitimate parents or ascendants or to the parents of illegitimate children should
only be charged to their legitime when they are compulsory heirs, since they are not primary compulsory heirs but only
secondary and, therefore, may not always be compulsory heirs if there are present the primary compulsory heirs.

73
4. If the devise or legacy consists of a usufruct or life annuity, whose value may be considered
greater than that of the disposable portion, the compulsory heirs may choose between
complying with the testamentary provision and delivering to the devisee or legatee the part
of the inheritance of which the testator could freely dispose (Article 911).
What are methods [rules] of reduction?

1. First, reduce pro rata the non-preferred legacies and (Art. 911 [2]), and the testamentary
dispositions (Art. 907). Among these legacies, devises, and testamentary dispositions there is
no preference;
2. Second, reduce pro rata the preferred legacies and devises (Art. 911, last par.);
3. Third, reduce the donations inter vivos according to the inverse order of their dates (i.e., the
oldest is the most preferred) (Art. 773). If the donations were made with the same date, they
shall be reduced pro rata.
Note: These reductions shall be to the extent required to complete the legitimes, even if in
the process the disposition is reduced to nothing.

How is Article 911 reconciled with Article 950?

Article 911 provides that if the devise or legacy must be reduced the reduction shall be pro
rata without distinction whatever; whereas Article 950 provides an order of preference in the
reduction of the devises and legacies. Although seemingly contradictory, these articles can be
reconciled by applying Article 911 to those cases where the legacy or devise must be reduced (1)
because it is necessary to preserve the legitime and (2) when although the legitime is unimpaired,
reduction is necessary because there are donations and the donations and the legacies together
exceed the free portion. While Article 950 will be applied when the reduction is between the legacies
themselves alone because there are no compulsory neither heirs; nor donation inter vivos, or there
being compulsory heirs their legitimes are unimpaired and there are no donations.

What is the order of payment from the hereditary estate?

1.
2.
3.
4.

The legitimes shall first be paid;

Then the donations inter vivos;
Next, the preferred devises and legacies; and
Lastly, the other devises and legacies and all other testamentary dispositions to take effect
mortis causa, shall be reduced pro rata, without distinction, in case the free portion is not
sufficient.

The value of the testators estate at the time of his death is P40, 000. However, the
claims against his estate based on obligations incurred by him during his lifetime
amounted to P10, 000. During his lifetime, he had also made two donations P15, 000 to
a legitmate child A, and another P15, 000 to a friend F. In his will, he instituted his
two legitimate children, A and B, as his heirs. How shall his estate be distributed?

1.
2.
3.
4.
5.
6.
7.

P40, 000 P10, 000 = P30, 000

P30, 000 + P15, 000 + P15, 000 = P60, 000
Determine the legitime of A and B = P15, 000 each
Determine the free disposable portion = P30, 000
Give the legitimes: B = P15, 000; A = P15, 000 [the donation to A of P15, 000 shall
be imputed to his legitime]
Give P15, 000 donation to F from the free disposable portion
Balance of the hereditary estate is P15, 000, which shall be divided equally to A, and
B; thus, each shall get P22, 500.00 each. [P15, 000 + 7, 500]

Testator X dies with 2 legitimate children A and B; and one acknowledged child C.
While alive, X made a donation of P10, 000 to A; P10, 000 to C and another P10, 000 to a
total stranger. His gross estate is P30, 000 and his debts and liabilities are P10, 000.
Divide the estate of X.

74
1.
2.
3.
4.
5.
6.
7.
8.

P30, 000 P10, 000 = P20, 000

P20, 000 + P10, 000 + P10, 000 + P10, 000 (donations) = P50, 000.
Determine the legitimes: P25, 000 to A and B or P12, 500 each.
Free disposable is P25, 000.
Get Cs legitime from free disposal: P6, 250.
Balance of free disposal P18, 750.
Donation of P10, 000 made to A shall be imputable to his legitime of P12, 500.
The donation of P10, 000 made to C shall be imputable to his legitime of P6, 250, there is
therefore an excess of P3, 750 which shall be imputed to the free portion.
9. The donation of P10, 000 made to d shall be charged to the free portion.
10. The free portion amounts to P18, 750 and the donations imputed to it are the excess of
P3, 750 in the donation to c and the whole donation of P10, 000 to D or a total of P13,
750.
Testator X dies leaving his legitimate children A and B, surviving spouse S and one
acknowledged natural child C. While alive X donated P5, 000 to A in 1995, another P5, 000
to C in 1998 and P10, 000 to D a very good friend in 1993. His gross estate at the time of
his death if P20, 000. His debts and liabilities amount to P15, 000. Divide the estate:

1.
2.
3.
4.
5.
6.
7.

P20, 000 P15, 000 = P5, 000

P5, 000 + P5, 000 + P5, 000 + P10, 000 = P25, 000
P12, 500 is the legitime of A and B or P6, 250 each.
Free portion is P12, 500 legitime of S P6, 250 and legitime of C P3, 125.
Free disposal [balance] P3, 125.
Donation of P5, 000 to A shall be imputed to his legitime of P6, 250
Donation to C of P5, 000 shall be imputed to his legitime of P3, 125 and therefore exceeds
the same by P1, 875 which together with the P10, 000 donation to D or a total of P11, 875
shall be charged to the free portion which amounts only to P3, 125 and should be reduced.
8. The reduction shall be based on the dates of the donation in the inverse order of dates.
9. Since the donation to D is earlier than that of C, the whole donation of C, which is P1, 875
will be revoked and then the donation of D will furthermore be reduced by P6, 875. Hence C
will return to the estate P1, 875 and D will return 6, 875.
If the devise has to be reduced because it is inofficious and the thing given, as
devise is indivisible, what are the rules?

1. If the extent of reduction is less than of the value of the thing it should be given to the
devisee.
2. If extent of reduction is or more of the value of the thing it should be given to the
compulsory heir.
3. In ether case, there should be pecuniary reimbursement to the party who did not get his
physical portion of the thing devised (Article 912).
If neither party elects to exercise this right, how should the thing devised be
disposed of?

1. Any other heir or devisee, who elects to do so, may acquire the thing and pay the parties
(the compulsory heir and the devisee in question) their respective shares in money.
2. If no heir or devise elects to acquire it, it shall be sold at a public auction and the net
proceeds accordingly divided between the parties concerned (Article 913).
Summary of the limitations of the power of the testator to dispose of as he may
deem fit the free portion:

1. The free portion must be absolutely free portion i.e., the remainder of the estate after all
legitimes have been deducted.
2. The absolutely free portion, which can be freely disposed of, does not include those
properties governed by special laws such as the friar lands.
3. The person to whom it is bequeathed must have the capacity to succeed the testator.

RESERVA TRONCAL (Article 891)

75

What is the doctrine of reserva troncal?

It is a system of reserve by virtue of which an ascendant who inherits from his descendant
any property which the latter may have acquired by gratuitous title from another ascendant, or a
brother or sister, is obliged to reserve such property as he may have acquired by operation of law
for the benefit of relatives who are within the third degree and who belong to the line from which the
said property came.
Illustration and diagram:

Reservatorio
O (Origin)

R (Reservista)

P (Prepositus)

P (prepositus) inherits a piece of land from his father, O (origin). Subsequently, P dies
intestate, single and without issue, and the land is in turn inherited by his mother R (reservista). R is
now required to reserve the property in favor of Ps paternal relatives within the third degree
(rerservatorios).
What are the three transmissions are involved in a reserva troncal?
1.
2.

3.

First transmission by gratuitous title from an ascendant or brother or sister to the

decedent;
A posterior transmission by operation of law, from the decedent in favor of another
ascendant belonging to another [Operation of law: 1) compulsory succession; 2)
intestate succession. Cannot be: 1) testate succession, 2) donation];
A third transmission of the same property from the reservoir or reservista to the
reservatorio.

RESERVISTA

ASCENDANT

ASCENDANT (RECEIVES BY LAW)

76

3RD DEGREE (RESERVATARIOS)

DESCENDANT (PREPOSITUS)
1. RECEIVES PROPERTY BY GRATUITOUS TITLE
2. DIES WITHOUT ISSUE

RELATIVES

LEG. RELATIVES

What are the purposes of reserve troncal?

1. To prevent certain properties from passing from one family to the other or from one trunk or
from one line to the other through accident of lack of heir;
2. To maintain as absolute as possible, with respect to the property to which it refers, a
separation between the paternal and maternal line so that property of one line may not pass
to the other or through them to strangers.
Who are the persons involved in a reserva troncal?
1. Origin or mediate source - the ascendant, brother or sister, known as the origin, from
whom the descendant-propositus acquired the property by gratuitous title.
2. Reservista - the ascendant acquired the property by operation of law;
3. Prepositus - the descendant who acquired the property by gratuitous title from an
ascendant;
4. Reservatorio - 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.
What are the requisites in reserva troncal?
1. The property was acquired by a person from an ascendant or from a brother or sister
by gratuitous title;
2. Property was inherited by operation of law by an ascendant from a descendant upon
the death of the latter;
3. Descendant should have died without any legitimate issue in the direct descending line
who could inherit from him;
4. There must be relatives of the descendant who are within the third degree and who
belong to the line from which the property came.
Notes:

All relationship must be legitimate. In effect, this requirement punishes legitimate relations
because if the relation is illegitimate, there is no obligation to reserve. However, it does not
necessarily mean that all four are related to each other, for the ascendant-reservista may not
be related at all to the ascendant from where the property originated. It only means that the
parties are related to the prepositus legitimately. The point of reference is the prepositus.

The term descendant should read person, because if the grantor is a brother or sister, the
one acquiring obviously is not a descendant.

That the descendant died without legitimate issue, because only legitimate descendants will
prevent the property from being inherited by the legitimate ascending line by operation of
law.

Transmission by operation of law is limited to succession, either to the legitime or by

intestacy.
What is the meaning of the term dying without issue?

77
The issue of a person consists of his children, grandchildren, and all other lineal descendants.
It means dying without issue (descendants) in the lifetime or at the death of the party and not an
indefinite failure of issue.
Can there be reserve if the prepositus is an adopted child?
Under the old rule: No, because adoption only creates a personal relationship between the
adopter and the adopted; hence, there are no relatives of the adopted or adopter by adoption. For
the same reason, an adopted child cannot claim the benefit of reserva troncal, and therefore cannot
be a reserve through adoption.
Under the new rule: Yes. The adopted may represent the adopter in the inheritance of the
latters parents (Section 17, R.A. No. 8552 [1988]). 69
Suppose that there are several persons who can qualify as reservatorios, to whom
shall the reservable property be adjudicated?
In such a case, the rules of intestate succession shall apply. This is because Article 891
merely determines the group of relatives to whom the reservable property should be returned; it is
silent with regard to the individual right of such relatives to the property. Thus, the following
principles of intestate succession still apply:
1. The principle of preference relatives of the prepositus in the direct ascending line shall
exclude his relatives in the collateral line; grandparents are preferred over brothers and
sisters. [Relatives in the direct ascending shall exclude relatives in the collateral lines.];
2. If all claimants belong to the same line, the principle of proximity shall apply relatives of
the prepositus nearest in degree shall exclude the more remote ones;
3. Principle of representation provided that the representatives are relatives of the prepositus
within the third degree;
4. If all of the claimants are brothers and sisters of the prepositus and some of the half blood
and others of the full blood, the principle of double share for the full blood collaterals shall
apply those of the full blood shall be entitled to double the share of those of the half blood.
What is the meaning of line in reserva troncal?
The term line is not used in the juridico-geometrical sense of direct or collateral lines, but in
the familiar sense of paternal and maternal lines. Exception: When the origin is a full-blood brother
or sister, who comes from the same common parents, the line would be the same.
Can money be reserved?
Yes. In money, the property is the purchasing power and not the bills. As such, the value of
the money can be reserved.
The origin/mediate source:
He is either an ascendant or a brother or sister of the prepositus:
1. If an ascendant he may be any degree of ascent;
2. If a brother/sister there are 2 schools of thought:
a. If the origin is a brother/sister, the relationship must be of the half blood, because
otherwise the property would not change lines in passing to a common ascendant of
the prepositus and the brother. There should, in other words be no reserve if the
fraternal relationship is of the full blood for them it would not be possible to identify
the line of origin-whether paternal or maternal (JBL Reyes);
b. It does not matter whether the fraternal relationship is of the full- or the half-blood. In
either case a reseva may arise. Since the law makes no distinction, we should not
make one (Manresa).

The prepositus or propositus:

He is either a descendant or a brother/sister of the origin, who receives the property from the
origin by gratuitous title. Thus, in the scheme of the reserva troncal, he is the first transferee of the
property.
69
Section 17. Legitimacy. The adoptee shall be considered the legitimate son/daughter of the adopter(s) for all intents and
purposes and as such is entitled to all the rights and obligations provided by law to legitimate sons/daughters born to them
without discrimination of any kind. x x x x )R.A. No. 8552: Domestic Adoption Act of 1988).

78
He is the point of reference of the 3rd degree relationship.
While the property is still with the prepositus there is as yet no reserve. During the lifetime of
the prepositus, he is the full owner of the property. He can therefore alienate the property and
defeat the seeds of reserva troncal at this point of time. He can even prevent the supposed reservor
from receiving it (by operation of law) causing its partition. The reserve arises only upon the second
transferor.
The origin must be a legitimate relative because reserva troncal exists only in the legitimate
family. The prepositus must be a legitimate descendant or a legitimate half brother of the origin of
the property.

The reservista or reservor

He is an ascendant of the prepositus by whatever degree. The reservista must be an
ascendant other than the origin; otherwise, if the two parties are the same person, there would be
no reserva troncal.
He must be another ascendant other than the mediate source, if the mediate source is an
ascendant.
The reservor must have inherited the property by operation of law (as share in legal
succession or as legitime in testamentary succession). If he acquire it through other means, there is
no obligation to reserve.
Reserva troncal begins once the reservista inherits the property. He is bound by the
obligation.
The ownership of the reservoir over the property is full ownership subject, however, to two
(2) resolutory conditions: (1) his death; and (2) on his death, the presence of relatives of the
prepositus who are within the third degree of consanguinity. Upon the death of the reservor, his
ownership is terminated and the same is transferred to the reserves.
Should the origin and the reservista belong to different lines?
Query illustrated: A receives by donation a parcel of land from his paternal grandfather X.
Upon As death, the parcel passes by intestacy to his father Y (Xs son). The property never left the
line. Is Y obliged to reserve?
One view: No, because another ascendant is one belonging to a line other than that of the
reservista.
Another view: Yes, because: 1) the law makes no distinction, and 2) the purpose of the
reserve is not only curative, but also preventive; i.e. to prevent the property from leaving the line.
This is the view accepted by the majority.
May the reservista sell the reservable property? If so, what is the nature of the
sale?
Yes, because he acquired ownership of the reservable property upon the death of the
descendant propositus. The sale, however, is subject to the resolutory condition that there must
exist, at the time of his death, relatives of the descendant who are within the third degree and who
belong to the line from which the property came. In this case, the buyer acquires a limited and
revocable title. After the death of the reservista, the reservatorios may rescind the contract because
the resolutory condition to which the reserve is subject has already been fulfilled.
If the reservor has alienated the property, his estate will reimburse the reserves for the value
of the reserved properties which were alienated (Lunsod vs. Ortega, 46 Phil. 664).
Can the reservista execute a will disposing of the reservable property?
No, because the reservable property does belong to him or his estate. The property belongs
to the reservatorios if they are existing upon the reservistas death.
The reservoir cannot dispose of the reservable property by acts mortis causa because upon
his death, the property does not belong to his estate. Automatically, and by operation of law, the
reserves if there are any, become the owners thereof.

79
Is the reserved property part of the reservistas estate which can be transmitted to
his heirs or which may be used to pay the debts of his estate?
A reservista is nothing but a life usufructuary or a fiduciary of the reservable property
received.
Reservable property neither comes, nor falls under the absolute dominion of the ascendant
who inherits and receives same from descendant, therefore does not form part of his property nor
become the legitime of his forced heirs. It becomes his own property only in case that all relatives of
his own descendant shall have died in which case said reservable property losses such character
[Florentino vs. Florentino, 40 Phil. 480].
The reserved property is not part of the reservistas estate upon his death. It does not even
answer to the debts of the latter [Cano vs. Director, 105 Phil. 1]. The reservable property cannot be
transmitted by a reservista to his or her own successors mortis causa so long as a reservatorio
within the 3rd degree from the propositus are in existence when the reservista dies.
Consequently, the creditors of the reservor cannot attach or levy on execution a reservable
property temporarily held by the reservor.
Can the property reserved be substituted?
The very same property must go to the process of transmissions in order for the reserve to
arise. Thus, the same property must come from the mediate source, to the prepositus by gratuitous
title, and to the reservista by operation of law. If the prepositus substitutes the property by selling,
bartering, or exchanging it, the substitute cannot be reserved, since while the property is with the
prepositus, there is yet no reserve, which commences only when the property is received by the
reservista. Consequently, the prepositus has, over the property, plenary powers of ownership, and
he may exercise these powers to thwart a potential reserve. This refers to all kinds of properties
real or personal, fungible or non fungible.
What is the nature of reservistas right?
1. The reservistas right over the reserved property is one of ownership;
2. The ownership is subject to a resolutory condition, i.e. the existence of
reservatorios at the time of the reservistas death;
3. The right of ownership is alienable, but subject to the same resolutory condition;
4. The reservistas right of ownership is registrable.
Can the reservista, by will, prefer some reservatorios over the others?
They have no power to appoint by will such reservatorios who would get the reserved
property.
Suppose the reservista is survived by the uncles and aunts and by nephews and
nieces of the prepositus, who shall be entitled to the property reserved?
The uncles and aunts shall not share in the reservable property, since under the law of
intestate succession, a decedents uncles and aunts may not succeed ab intestate so long as
nephews and nieces of the decedent survive and are willing and qualified to inherit.

The reservatorios or reservees:

They are usually the following:
1. 1st degree father, mother;
2. 2nd degree grand parents of the line from which the properties originated and the
brothers of double relationship or the half blood coming form the source of the
property;
3. 3rd degree great grandparents from said line, the 1st degree uncles and the
nephews, children of the brothers or half brothers of the descendant as the case may
be.
The reserve is in favor of a class, collectively referred to as the reservatorios.
What are the requirements to be a reservatorio?

80
1. The reservee (reservatorio) must have double relations of consanguinity;
2. He must be related by blood to the descendant prepositus or to the other ascendant, or
brother or sister (origin) from whom the property came;
3. He must be within the third degree from the prepositus;
4. He must belong to the line from which the property came. This is determined by the
origin/mediate source;
5. They must be legitimate relatives of the origin and prepositus;
6. They must be living at the time of the death of the reservista though may not have existed
yet at the time of death of the propositus.
Must the reservatorio also be related to the mediate source?
One view: No, the article only speaks solely of two lines, the paternal and the maternal of the
descendant, without regard to substitutions.
Another view: Yes, otherwise, results would arise completely contrary to the purpose of the
reserve, which is to prevent property from passing to persons not of the line of origin.
Reserva in favor of reservatorios, as a class consequence: To be qualified as a
reservatorio, is it necessary that one must already be living when the prepositus dies?
The better opinion seems to be that this is not required, because the reserve is established in
favor of a group or class; the relatives within the third degree-not in favor of specified individuals, as
long as one belongs to the class when the reservista dies, then one is a reservatorio.
As long therefore as the reservatorio is alive at the time of the reservistas death, he qualifies
as such, even if he was conceived and born after the prepositus death.
What are therefore the only requisites for the passing of the title from the
reservista to the reservatorio?
They are (1) death of the reservista; and (2) the fact that the reservatorio has survived the
reservista.
From whom do the reservatorios inherit?
They inherit from the descendant propositus and not from the reservista, of whom the
reservatorios are the heirs mortis causa, subject to the condition that they must survive the
reservista. The reservable property is not part of the estate of the reservista, who may not dispose
of it by will, as long as there are reservatorios existing.
Is there preference among the reservatorios?
They are beneficiaries in equal shares, regardless of the difference in degree of relationship
with the prepositus.
Is there representation among reservatorios?
As in intestate succession, the rule of preference of degree among reservatorios is qualified
by the rule of representation.
If the claimants of the property after the death of the reservor are brothers and sisters of the
prepositus and nephews and nieces (children of other brothers and sisters who have predeceased
the reservoir), the right of representation is applicable as long as the representatives are relatives to
the prepositus within the third degree (Florentino vs. Florentino, 40 Phil. 489).
What are the reservatorios rights?
(1) The reservatorios have a right of expectancy over the property;
(2) The right is subject to a suspensive condition, i.e. the expectancy ripens into ownership if
the reservatorios survive the reservista;
(3) The right is alienable, but subject to the same suspensive condition;
(4) The right is registrable.
Can the reservatorio (reservee) alienate his right of expectancy during the lifetime
of the reservor?

81
The Supreme Court answered in the negative in the case of Edroso vs. Sablan, 24 Phil. 295,
decided on September 13, 1913. Later, the Supreme Court in the case of Sienes vs. Esparcia, 1
SCRA 750 decided on March 24, 1961 abandoned the Edroso doctrine holding that the reservee may
alienate the reservable property during the lifetime of the reservor subject to the resolutory
condition that he would survive the reservor. If he does not survive the reservor, the ownership of
the latter becomes fixed and consolidated rendering ineffective the sale made by the reservee.
Under the new Civil Code, future property or thereafter-acquired property which is merely
an expectancy can be sold (Articles 1461 and 1462). 70
Reserva Maxima and Reserva Minima
What are reserva maxima and reserva minima?
Reserva maxima is a principle which provides that the reserva applies to all the property
gratuitously acquired from the ascendant, brother or sister which could be included within the
legitime of the reservor received from the estate of the prepositus.
Reseva minima, on the other hand provides that all property passing to the reservor must be
considered as passing partly by operation of law and partly by will of the prepositus. Resultingly,
one-half of the property acquired gratuitously by the prepositus should be reservable property and
the other half should be free and remain in the estate of the reservor.
Illustration:
A died leaving a will. C received P1, 000, 000 from A by virtue of the latters will. C
in his own right, acquired properties worth P2, 000, 000. C died without issue. In his will,
he gave the entirety of his estate (P3, 000, 000) to B. One-half of this P3 Million was
received by B by operation of law (i.e. legitime) and the other half by will as voluntary
heir.
When B died, there is a surviving relative who qualified as a reservee (D).
Is the entire property (P3, 000, 000) received by B reservable?
The reservable property refers only to the P1 Million received by C from A and not the entire
P3, 000, 000.
Out of this P1 Million, how much is the reservable portion?
1. Based on the principle of reserva maxima, the reservable portion of the estate of C shall
include all properties or money which can be comprised within the one-half of the inheritance
constituting the lgitime of the reservor (B). Since the legitime of B in the entire estate of C is
P1, 500, 000. It is clear that the P1, 000, 000 received by C gratuitously from A can be
contained within that legitime. Hence, this P1, 000, 000 is totally reservable.
2. Based on the principle of reserva minima, the reservable property is only P500, 000. This is
premised on the fact that only one-half of the P1, 000, 000 was received by B (reservor) as
legitime which is by operation of law, because the other half (P500, 000) was received by will
by B as voluntary heir.
Suppose C died intestate and B is his only intestate heir, how much is the
reservable property?
All the amount received from A is reservable property because all was received by operation
of all.
Note: The principles of reserva maxima and reserva minima are advocated by Manresa and
Scaevola. These principles or theories need not be followed in the Philippines. They will only
complicate the already complicated reserva troncal. The law must be interpreted to mean that the
entire property actually received by the prepositus be considered reservable. The phrase by
operation of law should not be considered in its technical sense. It should be read simply to mean
inherited by the reservor. Otherwise, if some part of the property will be retained by the reservor,
70

Article 1461. Things having potential existence may be the object of the contract of sale.
The efficacy of the sale of a mere hope or expectancy is deemed subject to the condition that the thing will come into
existence.
The sale of a vain hope or expectancy is void.
Article 1462. The goods which form the subject of a contract of sale may be either existing goods, owned or
possessed by the seller, or goods to be manufactured, raised, or acquired by the seller after the perfection of the contract of
sale, in this Title called future goods.
There may be a contract of sale of goods, whose acquisition by the seller depends upon a contingency which may or
may not happen.

82
the intention to return the property to the trunk where it came from is partly defeated. Therefore,
if reserva troncal is applicable, the problem will just be a matter of identifying the property or
knowing its value and which must be transmitted to the reservees, if there are any. If there are
none, the property shall remain part of the estate of the reservor and shall pass to his own heirs.
Extinguishment
How may the reserva be extinguished?
1. The death of the reservor or reservista;
2. The death or incapacity of all the would-be reservatorios or reservees during the
lifetime of the reservor or reservista ;
3. Renunciation or waiver by all the reservatorios of their right to the reserva made
subsequent to the death of the reservor, provided that no other reservatorio is born
subsequently;
4. Total fortuitous loss or destruction of the reserved property without any fault or
negligence on the part of the reservor or reservista ;
5. Confusion or merger of rights, as when the reservatorio acquire the reservistas right
by a contract inter vivos;
6. Prescription of action to recover property from the estate of the reservor or adverse
possession. Prescription is ten years.
7. Registration of the reserved property under the Torrens System as free from the
reservation and its subsequent alienation to a third party who got it in good faith (De
los Reyes vs. Paterno, 34 Phil. 470);
8. Estoppel and laches (Arroyo vs. Gerona, 58 Phil. 266).
What are the rights and obligations of the parties?
a. Rights of the reservatorios:
(1) To demand inventory and appraisal of movables;
(2) To demand annotation of reservable character of the immovable within 90 days;
(3) To demand security and bond.
b. Obligations of the reservistas:
(1) To inventory and appraise movables within 90 days;
(2) To annotate reservable character of the immovable within 90 days;
(3) To give security and bond;
(4) He must not substitute the reservable property with another.

SECTION 6. DISINHERITANCE
Define disinheritance
It is the process or act, thru a testamentary disposition of depriving in a will any compulsory
heir of his legitime for true and lawful causes.
What are the requisites of a valid disinheritance?
1. It must be made in a will (Article 916);
1.1 The will must be formal and valid;
1.2 The will must not have been revoked at least in so far as the
disinheritance is concerned.
2. Disinheritance must be expressly made, that is, the identity of the heir must be identified;
3. It must specify the cause (Articles 916-918);
3.1 Article 919 for descendant;
3.2 Article 920 for ascendant; and
3.3 Article 921 for surviving spouse
4. It must be for a cause specified by law [for a legal cause] (Article 916 in relation to Articles
919-921);

83
4.1 The cause must be stated in the will.
5. It must be unconditional and absolute;
6. It must be total or complete disinheritance;
7. The cause must be certain and true (Article 918);
7.1 It must be for an existing cause its existence must be proved by evidence.
7.2 If the truth of the cause is denied, it must be proved by the proponent (Article
917)
Who has the burden of proving the truth of the cause for disinheritance?
If there is a testamentary disposition whereby a compulsory heir is being disinherited for a
cause mentioned in the law, but the said heir denies the truth of the alleged cause, the burden of
proof rests upon the heirs (not necessarily forced heirs) who wish to sustain the disinheritance
(Article 917). If they cannot prove the truth or existence of the cause, the disinheritance is void and
the compulsory heir could not be deprived of his legitime. Preponderance of evidence is enough in
proving the truth of the cause for disinheritance.
A was disinherited by his father on the ground of refusal without justifiable cause
to support him. He denied it. What is the effect of such denial?
The other heirs should then prove the truth of the cause for disinheritance. Under the law,
the burden of proving the truth of the cause of the disinheritance shall rest upon the other heirs of
the testator, if the disinherited heir should deny it (Article 917). Proponent of disinheritance has the
burden of proof. There is no presumption that the cause is true. The presumption is falsehood.
What is the effect of disinheritance?
The effect of disinheritance is not just deprivation is not just deprivation of the legitime but
the total exclusion of the disinherited heir, from the inheritance. Thus, the disinherited heir forfeits:
a. His legitime;
b. His intestate portion; and
c. Any other testamentary disposition made in a prior will of the disinheriting testator.
What is ineffective disinheritance?
It is disinheritance which lacks one or other of the requisites, either because it is:
1. Without a specification of the cause, or
2. For a cause the truth of which, if contradicted, is not proved, or
3. The cause of which is not one of those set forth in the Civil Code (Article 918).
What is the effect of ineffective disinheritance?
1. It shall annul the institution of heirs insofar as it may prejudice the person disinherited;
2. But the devises and legacies and other testamentary dispositions shall be valid to such extent
as will not impair the legitime (Article 918);
3. The effect of a defective or imperfect disinheritance is the same as that of preterition of a
compulsory heir (Article 854).
If there is ineffective or imperfect disinheritance, will the heir in question get any
part of the free portion other than his legitime?
The heir in question gets his legitime, but as to whether he will also get any part if the
intestate portion or not, depends on whether the testator gave away the free portion through
testamentary dispositions. If he did, these dispositions are valid and the compulsory heir improperly
disinherited gets his legitime. If the testator did not, the compulsory heir will be entitled to his
corresponding share of the free portion as well.
What is the difference between imperfect disinheritance and preterition?
In preterition, the institution of heirs is completely annulled, while in imperfect disinheritance,
the institution remains valid, but must be reduced insofar as the legitime has been impaired.

84
What are the sufficient causes for the disinheritance of children and descendants,
legitimate as well as illegitimate?
1. When a child or descendant has been found guilty of an attempt against the life of the
testator, his or her spouse, descendants, or ascendants;
2. When a child or descendant has accused the testator of a crime for which the law
prescribes imprisonment for six years or more, if the accusation has been found
groundless;
3. When a child or descendant has been convicted of adultery or concubinage with the
spouse of the testator;
4. When a child or descendant by fraud, violence, intimidation, or undue influence causes
the testator to make a will or 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 descendant;
7. When a child or descendant leads a dishonorable or disgraceful life;
8. Conviction of a crime which carries with it the penalty of civil interdiction (Article 919).
NOTE: Enumeration is exclusive. The list is an exclusive list and not illustrative.
What does the term children and descendants include in Article 919?
The children or descendants referred to in the Article include the legitimate and illegitimate
(recognized) children and include grandchildren, great-grandchildren and so on. They are
compulsory heirs.
Can an intestate heir who is not a compulsory heir be the subject of disinheritance?
Intestate heirs who are not compulsory heirs (not entitled to legitime) cannot be the subject
of disinheritance. The right to disinherit must be exercised through a will where the specific cause for
disinheritance must be specifically stated.
Re: Par. 1 (Attempt against the life of testator)

The word attempt is used non-technically and should not be construed to limit the provision
to the attempted stage of the felony. All stages of commission are included whether
attempted, frustrated or consummated.

The felony must be an intentional one the intent to kill must be present, thus reckless
imprudence resulting in homicide is not covered.

Final conviction is required.

If the child or descendant participated in the commission of the crime as an accomplice, he

can still be disinherited, But if he is just an accessory after-the-fact, as his participation was
subsequent to the commission of the crime, he could not be disinherited.

If after having been found guilty as a principal or an accomplice, the child or descendant is
granted executive clemency or pardon, he may still be disinherited.

The disinheritance is personal to the testator. He has the prerogative to exclude a person
from his estate if there is a valid ground.
Re: Par. 2 (Groundless or baseless accusation against the testator)

The word accused is generically, and will include filing of the complaint before the prosecutor,
or presenting incriminating evidence against the testator, or even suppressing exculpatory
evidence.

The accusation must be in connection with a criminal case. The accusation must be for a
crime which carries a penalty of at least six years imprisonment (afflicitive penalty).

The testator must be acquitted.

The accusation must be found groundless, i.e., the judgment of acquittal must state either
that no crime was committed or that the accused did not commit the crime. An acquittal on
reasonable doubt will not be a ground for disinheritance.

85
Re: Par. 3 (Conviction for adultery or concubinage with the spouse of the
testator)

Final conviction is required.

The guilty spouse is deemed disinherited by operation of law in case of a legal separation
decreed by the court (Article 63 [par. 4] FC). This is disinheritance without formal disposition
in a will.

If both the child and the spouse happen to be compulsory heirs of the testator, he could
disinherit them together in his will. But there must first be conviction if the basis is Article
919 (par. 3). Under Article 921 (par. 4), conviction is not required. It is enough to prove the
adultery or concubinage during the testate or intestate proceedings.
Re: Par. 4 (Causing the testator to make a will or change already made)

Does not mention prevent, but prevention is a ground for unworthiness (Art. 1032) which has
the same effect as disinheritance.
Re: Par. 5 (Unjustifiable refusal to give support)

There must have been a need and a demand for support either judicially or extra-judicially.

The demand must have been unjustifiably refused.

Re: Par. 6 (Maltreatment of the testator)

This will include a wide range of misdeeds, but it is required that the act of verbal or physical
assault be of a serious nature.

Maltreatment could be by word or by deed.

All acts of physical violence against the testator but not sufficient to kill are encompassed in
maltreatment. Otherwise, the act or acts may fall under paragraph 1.

Example: The son shoots his father. The father is wounded but recovers. The father does not
want a scandal so he does not file charges against his son. So he disinherits his son not
under No. 1 but under No. 6.

No conviction is required; in fact, it is not even required that any criminal case be filed
Re: Par. 7 (Leading a dishonorable or disgraceful life)

The operative word here is lead. There must be a habituality, continuity and constancy to
the conduct to make it fall under this paragraph

The dishonorable or disgraceful conduct need not be sexual in nature; drug pushing or
smuggling is included.
Re: Par. 8 (Conviction for a crime with civil interdiction)

Final conviction is required.

Summary:

1. Conviction is required in Nos. 1, 2, 3 & 9.

2. Common causes: Paragraphs 1, 2, 3, 4, 5 of Article 919 are also among the causes for
disinheriting parents and ascendants (Vide: Paragraphs 2, 3, 4, 5 and 7 of Article 920).
3. Paragraphs 1, 2, 3 and 4 are among the causes which constitute acts of unworthiness which
disqualify an heir, devisee or legatee from succeeding the testator (Vide: Paragraphs 2, 3, 5
and 6 of Article 1032)
Can an adopted child be disinherited by the adopting parent?
Under the Domestic Adoption Act of 1988 (R.A.) No. 8552 approved on February 25, 1988),
adopted children can be disinherited by the adopting parents (Section 19, R.A. 8552). The reason for
this is that, the right of the adopting parent to rescind the adoption authorized under Article 192 of

86
the Family Code had been abrogated by the new law. Instead of rescission, the new law simply
authorized the adopting parents to disinherit the adopted if any of the causes for disinheritance
under Article 919 exists. This new provision is a complementary to the prevailing jurisprudence that
adopted children, if preterited in a will, shall cause the nullification of the institution if heirs (Acain
vs. IAC, 155 SCRA 500).
If the adopter died intestate, no disinheritance could be effected because disinheritance can
apply only in testamentary succession.
Under the new law, the adopted child is impliedly given the right of representation which
right was not accorded to him before (Section 17, R.A. No. 8552).
What are the sufficient causes for the disinheritance of parents or ascendants,
whether legitimate or illegitimate?
1. When the parents have abandoned their children or induced their daughters to live a
corrupt or immoral life, or attempted against their virtue;
2. When a parent or ascendant has been convicted of an attempt against the life of the
testator, his or her spouse, descendants, or ascendants;
3. When the parent or ascendant has accused the testator of a crime for which the law
prescribes an imprisonment for six years or more, if the accusation has been found to be
false;
4. When the parent or ascendant has been convicted of adultery or concubinage with the
spouse of the testator;
5. When the parent or ascendant by fraud, violence, intimidation, or undue influence causes
the testator to make a will or change one already made;
6. The loss of parental authority for causes specified in this Code;
7. The refusal to support the children or descendants without justifiable cause;
8. An attempt by one of the parents against the life of the other, unless there has been
reconciliation between them (Article 920).
NOTES:

Enumeration is exclusive.
Nos. 2, 5 & 7 are the same as the grounds in Art. 919.
Exception to par. 6: Adoption, age of majority.
The loss of parental authority should have been effected either:
i. By final judgment in a criminal case, or
ii. By final judgment in a legal separation proceeding, or
iii. By judicial order due to excessive harshness, corrupting orders or examples or
counsels, making the child beg, or abandonment.

Relatedly, those found guilty of adultery or concubinage with one another cannot donate
properties to each other (Article 739). Neither can they succeed each other (Article 1028).
Exception to par. 8: If the offended parent has forgiven the offending parent or if
reconciliation has been reached between them, the disinheritance of the former will not be
sanctioned by law.
What are the sufficient causes for disinheriting of 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 latter to
make a will or to change one already made;
4. When the spouse has given grounds for 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 (Article 921).
Note: A decree of legal separation is not required.
What is the effect of subsequent reconciliation?

A subsequent reconciliation between the offender and the offended person deprives the latter
of the right to disinherit and renders ineffectual any disinheritance that may have been made (Article
922)

87
Therefore, if reconciliation occurs before the disinheritance is made right to disinherit is
extinguished. If it occurs after the disinheritance is made disinheritance is set aside. In this case,
no revocation of the will is needed. The reconciliation itself repudiates the will.
What are the other ways of lifting or revoking disinheritance?
1. Nullification of the will of the testator.
2. The subsequent institution of the disinherited heir in a subsequent will.
What is the effect of setting aside the disinheritance?
a. The disinherited heir is restored to his legitime;
b. If the disinheriting will did not dispose of the disposable portion, the disinherited heir
is entitled to his proportionate share (in intestacy), if any, of the disposable portion.
c. If the disinheriting will disposed of disposable portion in favor of testamentary heirs,
such dispositions remain valid.
Note: There is no required form of reconciliation. It may be express or implied. In fact, the
mere act of living together in the same house is sufficient.
Is there a right of representation in disinheritance?
The right of representation is granted to descendants of disinherited descendants only (Article
972 provides that the right of representation takes place in the direct descending line, but never in
the ascending line).
Thus, a disinherited child will be represented by his children or other descendants. However,
if the heir disinherited is a parent/ascendant or spouse, the children or descendants of the
disinherited heir do not have any right of representation.
The very property which the children and descendants have received as legitime in
representation of the disinherited heir cannot be administered by the disinherited heir; neither can
he exercise any right of usufruct over the same (Article 923).
What is the extent of representation?
The representative takes the place of the disinherited heir not only with respect to the
legtime but also to any intestate portion that the disinherited heir would have inherited, if the free
portion was not disposed in favor of testamentary heirs.
Representation, therefore, occurs in compulsory and intestate succession.

88

SECTION 7. LEGACIES AND DEVISES

What is legacy?
It is a testamentary disposition of personal property by particular title.
What is devise?
It is a testamentary disposition of real property by particular title.
Distinguish legatee and devisee from an ordinary heir.
Essentially, the difference is that an heir receives an aliquot or fractional part of the
inheritance, whereas a legatee or devisee receives specific or generic personalty or realty,
respectively.
What is the importance of the definition/distinction?
To distinguish it from a testamentary disposition to an heir because of the effects of
preterition.
What can be devised or bequeathed?
Anything within the commerce of man. It is not required that the thing devised or
bequeathed belong to the testator.
What is the limitation on the legacy or devise?
It should not impair the legitime.
Who is charged with the payment or delivery of a legacy or devise?
General rule the estate.
However, the testator may impose the burden on a testamentary heir or a legatee or devisee,
who shall be bound thereby. This will be in the nature of a subsidiary legacy or devise, and as far as
the heir, legatee or devisee, it will be a mode.
What is the extent of liability of heir, devisee or legatee in case of subsidiary
legacies or devises?
The value of the benefit received by the testator.
What is the liability of two or more heirs who take possession of the estate for the
loss or destruction of a thing devised or bequeathed?
They shall be solidarily liable, even though only one of them should have been negligent. The
liability imposed here is based on malice, fault or negligence.
Who is liable for eviction?
General rule the estate.
In case of a subsidiary legacy or devise the heir, legatee, or devisee charged.
State the rule if the testator, heir or legatee owns only a part of, or an interest in
the thing bequeathed.
General rule conveys only the interest or part owned by the testator.
Exception if the testator provides otherwise.

89
State the rule if the testator conveys more than he owns.
The estate should try to acquire the part or interest owned by the other parties.
If the other parties are unwilling to alienate, the estate should give the legatee/devisee the
monetary equivalent.
State the rule when the legacy/devise of a thing belongs to another.
1. If the testator ordered the acquisition of the thing the order should be complied with. If the
owner is unwilling to part with the thing, the legatee/devisee should be given the monetary
value.
2. If the testator erroneously believed that the thing belonged to him legacy/devise is void.
3. Exception if subsequent to the making of the disposition, the thing is acquired by the
testator onerously or gratuitously, the disposition is validated.
State the
legatee/devisee.

rule

if

the

legacy/devise

of

thing

already

belonged

to

the

1. The legacy of devise shall be void; and

2. It shall not be validate by an alienation by the legatee/devisee subsequent to the making of
the will
State the rule if the thing was owned by another person at the time of making of
the will and acquired thereafter by the legatee/devisee.
1. If the testator erroneously believed that it belonged to him the legacy/devise is void.
2. If the testator was not in error
a. If the thing was acquired onerously by the legatee/devisee the latter is entitled to
reimbursement;
b. If the thing was acquired gratuitously by the legatee/devisee nothing more is due;
c. If the thing was owned by the testator at the time of making of the will and acquired
thereafter from him by the legatee/devisee Articles 932 and 933 are silent on this,
but Article 957, par. 2 can be applied and the legacy/devise should be deemed
revoked.
State the rules in legacy of credit or remission.
1. It applies only to amount still unpaid at the time of the testators death;
2. It is deemed revoked if testator subsequently sues the debtor for collection;
3. If generic, it applies only to those existing at the time of the execution of the will, unless
otherwise provided.
State the rule if the legacy/devise is to a creditor.
General rule treated like any other legacy/devise and therefore will not be imputed to the
debt.
Exception imputed to the debt of the testator so provides, and if the debt exceeds the
legacy/devise, the excess may be demanded as an obligation of the estate.
Define alternative legacies/devises.
One which provides that, among several things mentioned, only one is to be given.
Who has the right of choice?
1. In a direct legacy/devise the estate, through the executor or administrator;
2. In a subsidiary legacy/devise - the heir, legatee or devisee charged.
What are the rules if the person who is to choose dies before choice is made?
1. If the choice belonged to executor or administrator the right is transmitted to his
successor-in-interest;
2. If the choice belongs to an heir, legatee, or devisee the right is transmitted to his own
heirs.

Finality of choice choice is irrevocable.

90
What is the rule on validity of generic legacies/devises?
1. Generic legacy valid even if no such movables exist in the testators estate upon his death.
The estate will simply have to acquire what is given by legacy.
2. Generic devise valid only if there exists such an immovable in the testators estate at the
time of his death.
What is the duration and amount of legacy for education?
1. Duration age of majority (18) or the completion of a professional, vocational, or general
course whichever comes later;
2. Amount
a.
b.

Primarily that fixed by the testator

Secondarily that which is proper, as determined by (i) the social standing
and circumstances of the legatee, and (ii) the value of the disposable
portion of the estate

What is the duration and amount of legacy for support?

1. Duration the legatees lifetime, unless the testator provides otherwise.
2. Amount
a. Primarily that fixed by the testator;
b. Secondarily - that which the testator during his lifetime used to give the legatee by
way of support, unless markedly disproportionate to the value of the disposable
portion;
c. Tertiarily that which is reasonable, on the basis of (i) the social standing and
circumstances of the legatee, and (ii) the value of the disposable portion.
When is a legacy of periodical pension demandable?
Upon the death of the testator, and the succeeding ones at the beginning of the period
without duty to reimburse should the legatee die before the lapse of the period.
When is a devise/legacy demandable?
1. If pure and determinate upon the testators death.
2. If pure and generic upon the testators death.
3. If conditional (suspensive) upon the happening of the condition.
When does ownership of the devise/legacy vest?
1. If pure and determinate upon the testators death.
2. If pure and generic
a. If from testators estate upon testators death.
b. If acquired from a third person upon acquisition.
3. If with suspensive term upon arrival of the term but right to it vests upon the testators
death.
4. If conditional (suspensive) upon the testators death, if the condition is fulfilled.
When shall the devisee/legatee entitled to the fruits of the devise/legacy?
1.
2.
3.
4.

If pure and determinate upon the testators death.

If pure and generic upon determination, unless testator provides otherwise.
If with a suspensive term upon the arrival of the term.
If conditional suspensive upon the happening of the condition, unless the testator provides
otherwise.

If the estate should not be sufficient to cover all the legacies or devise, what is the
order payment that must be followed?
1. Remuneratory legacies and devises;
2. Legacies or devises declared by the testator to be preferential;
3. Legacies for support;

91
4. Legacies for education;
5. Legacies or devises of a specific, determinate thing which forms a part of the estate;
6. All other pro rata.
What are the rules on acceptance and repudiation of legacies/devises?
General rule - acceptance may be total or partial.
Exception if the legacy/devise is partly onerous and partly gratuitous, the recipient cannot
accept the gratuitous part and renounce the onerous part. Any other combination however is
permitted.
If the legatee/devisee dies before accepting or renouncing the legacy/devise, who
can exercise such right to accept or renounce?
His heirs as to their pro-indiviso share.
What are the rules in case there is repudiation by or incapacity of legatee/devisee?
1. Primarily substitution;
2. Secondarily accretion;
3. Tertiarily intestacy.
When may a legacy or devise be revoked by operation of law?
1.
2.
3.
4.

Transformation of the thing;

Alienation;
Total loss;
If the legacy is a credit against a third person or the remission of debt, and the testator,
subsequent to the making of the will, brings an action against the debtor for payment.

CHAPTER 3. INTESTATE SUCCESSION

What is legal or intestate succession?

It is one, which takes place by operation of law in the absence of a valid will.
When does legal or intestate succession take place?
1. If a person dies without a will, or with a void will, or one which has subsequently lost its
validity;
2. When the will does not institute an heir to, or dispose of all the property belonging to the
testator. In such a case, legal succession shall take place only with respect to the property of
which the testator has not disposed;
3. If the suspensive condition attached to the institution of heir does not happen or is not
fulfilled, or if the heir dies before the testator, or repudiates the inheritance, there being no
substitution and no right of accretion;
4. When the heir instituted is incapable of succeeding, except in cases provided in the Civil
Code;
5. When there is preterition of a compulsory heir in the direct line;
6. If the testamentary disposition is subject to a resolutory condition and such condition is
fulfilled;
7. If the testamentary disposition is subject to a resolutory term and such term expires;
8. In case of ineffective dispositions (Articles 960 & 854).

92
What are the three basic rules of intestacy?
1. The rule of preference of lines;
2. The rule of proximity; and
3. The rule of equality among relatives of the same degree.
What is meant by the principle of preference of lines in intestate succession?
It refers to the principle by virtue of which relatives of the decedent who are in the direct
descending line shall exclude those who are in the direct ascending or in the collateral line, while
those who are in the direct ascending line, on the other hand, shall exclude those who are in the
collateral line.
What is meant by the principle of proximity?
It refers to the rule by virtue of which relatives of the decedent nearest in degree shall
exclude the more remote ones. (Article 962) This rule, however, presupposes the fact that all the
relatives involved should belong to the same line. In other words, it is subject to the principle of
preference between lines.
Is there an exception to the principle of proximity?
There is one exception to this rule and that is when the right of representation properly takes
place. The reason for this is that in representation, the representative is raised by legal fiction to the
place and degree of the person represented so that he acquires the rights which the latter would
have of he were living or if he could have inherited.
What are the exceptions to the rule that relatives in the same degree shall inherit in
equal shares?
1. The rule of division by line in the ascending line (Article 987), that is, when the inheritance is
divided between paternal and maternal grandparents. In this case, if two grandparents
survive the decedent in the paternal line and by one grandparent in the maternal line, onehalf shall pass to the surviving grandparent in the maternal line.
2. The distinction between full-blood and half-blood relationships among brothers and sisters, as
well as nephews and nieces (Articles 1006 & 1008), that is, when the inheritance is divided
among brothers and sisters, some of whom are of the full blood and others of the half blood.
In this case, those of the full blood shall be entitled to double the share of those of the half
blood. (NOTE: This distinction is important only with reference to brothers and sisters and
nephews and nieces, because there is a ratio of 2:1 for full-blood and half-blood relationship
respectively. But with respect to other collateral relatives, the full-blood and half-blood
relationship is immaterial.)
3. In certain cases when the right of representation takes place. In this case, the division of the
inheritance is per stripes and not per capita. (Article 974).
4. The rule of preference of lines.
5. The distinction between legitimate and illegitimate filiations (the ratio under the present law
is 2:1 (Article 983, in relation to Article 895 as amended by Article 176, Family Code).
What is meant by degree? How is proximity of relationship determined?
Proximity of relationship is determined by the number of generations. Each generation forms
a degree (Article 963).
What is meant by line?
Line refers to a series of degrees, which may be either direct or collateral.
Define the different kinds of lines.
1. A direct line is that constituted by the series of degrees among ascendants and descendants.
There is no legal limit to the number of degrees for entitlement to intestate succession.
2. A collateral line, on the other hand, is that constituted by the series of degrees among
persons who are not ascendants and descendants, but who come from a common ancestor.
(Article 964) Computation of degrees is particularly important in the collateral line because
intestate succession extends only to the 5th degree of collateral relationships.

93
3. The direct line, in turn, may either be descending or ascending. The former unites the head of
the family with those who descend him. The latter binds a person with those from whom he
descends. (Article 965)
Who are collaterals by degrees?
1. First degree none
2. Second degree brothers and sisters
3. Third degree
3.1 Uncles and aunts
3.2 Nephews and nieces
4. Fourth degree
4.1 First cousins
4.2 Brothers and sisters of grandparent (Granduncles and grandaunts)
4.3 Grandchildren of a brother or sister (Grandnephews and grandnieces)
5. Fifth degree
5.1 A child of a first cousin
5.2 First cousin of a parent
5.3 Brothers and sisters of a great-grandparent
5.4 Great grandchildren of a brother or sister.
Define representation.
It is a right crated by fiction of law, by virtue of which the representative is raised to the
place and degree of the person represented, and acquires the rights, which the latter would have if
he were living or if he could have inherited (Article 970).
Is there accretion in intestacy?
There is accretion in intestacy among heirs of the same degree, in case of predecease,
incapacity, or renunciation of any one of them. Relatives must be in the same kind of relationship to
the decedent.
This is because of the principle of preference of lines in intestate succession, thus there can
be no accretion among a grandchild, a grandparent and a brother of the decedent, even if they are
all related to him in the second degree, because they are not inheriting together in the first place.
Exception when there is no accretion:
In case of predecease or incapacity, representation if proper, will prevent accretion from
occurring (Article 968).
What is the effect of renunciation by all in the same degree?
The right of succession should first be passed on the heirs in succeeding degrees (in
successive order) before the next line can succeed, because of the rule if preference of lines. Thus:
1. The descending line first if all the descendants of a certain degree renounce, succession
passes to the descendants of the next degree, and so on;
2. The ascending line next should no one be left in the descending line, the heirs in the
ascending line acquire the right of succession, again in order of degrees of proximity;
3. The collateral line last only if all the descendants and ascendants renounce will the
collateral relatives acquire the right to succeed. (Article 969)
Notes:

They inherit in their own right and cannot represent the person repudiating the inheritance.
Representation does not apply in cases of universal renunciation outlined above, because
there is no representation in renunciation.
What is representation?

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 acquire the rights, which the
latter would have if he were living, or if he could have inherited (Article 970).

94
The representative is called to the succession by law and not by the person represented. The
representative does not succeed the person represented but the one whom the person represented
would have succeeded (Article 971).
In order that representation may take place, it is necessary that the representative himself
be capable of succeeding the decedent (Article 973)
In what kinds of succession do representation operate?
a. Legitime; and
b. Intestacy.
In what line or lines shall the right of representation take place?
1. It takes place in the direct descending line, but never in the ascending line (Article 972).
2. In the collateral line, it takes place only in favor of the children of brothers or sisters, whether
they be of the full or half blood (Article 972).
3. When children of one or more brothers or sisters of the deceased survive, if they survive with
their uncles or aunts. But if they alone survive, they shall inherit in equal portions (Article
975).
When does the right of representation take place? What are the instances when
representation operates?
1. In testamentary succession:
a. In case a compulsory heir in the direct descending line dies before the testator
survived by his children or descendants (Article 856);
b. In case a compulsory heir in the direct descending line is incapacitated to succeed
from the testator and has children and descendants (Articles 856, 1035);
c. In case a compulsory heir in the direct descending line is disinherited and he has
children or descendants (Article 923).
2. In intestate succession:
a. In case a legal heir in the direct descending line dies before the decedent survived by
his children or descendant (Articles 981, 982), or in the absence of other heirs who
can exclude them from the succession, a brother or sister dies before the decedent
survived by his or her own children (Articles 972, 975);
b. In case a legal heir in the direct descending line is incapacitated to succeed from the
decedent (Articles 1035) and he has children or descendants, or in the absence of
other heirs who can exclude them from the succession, a brother or sister is
incapacitated to succeed from the decedent and he or she has children. (Articles 972,
975, 1035).
Can an heir who repudiates his inheritance be represented?
No, because an heir who has repudiated his inheritance may not be represented (Article 977).
Can a voluntary heir or legatee or devisee who dies before the testator or who is
incapacitated to succeed be represented?
No, since in testamentary succession, the right of representation is a right, which pertains
only to the legitime of compulsory heirs (Article 856).
What are the different limitations imposed by law to the right of representation in
the collateral line?
(1) The right can be exercised only by nephews and nieces of the decedent (Articles 792,
975);
(2) The right can be exercised by nephews and nieces of the decedent only if they concur
with at least one brother or sister of the decedent (Article 975). Otherwise, if they are
the only survivors, they shall inherit in their own right and not by right of
representation.
(3) The right of representation in the collateral line is possible only in intestate
succession; in other words, it cannot possibly take place in testamentary succession.
In testamentary succession, only compulsory heirs may be represented (Article 856).

95
It is, of course, obvious that brothers and sisters are not compulsory heirs. If
instituted, they are classified as mere voluntary heirs.
Can an illegitimate person be represented?
If the child to be represented is legitimate only legitimate children/descendants can
represent him (Article 992).
If the child to be represented is illegitimate both
children/descendants can represent him (Articles 902, 989, 990)

legitimate

and

illegitimate

Is there representation by a renouncer?

Although a renouncer cannot be represented, he can represent the person whose inheritance
he has renounced (Article 976). The reason is in Article 971 The representative does not succeed
the person represented but the one whom the person represented would have succeeded.
How does representation operate?
Per stirpes the representative receives only what the person represented would have
received. If there are more than one representative in the same degree, then the portion is divided
equally, without prejudice to the distinction between legitimate and illegitimate children, when
applicable.
What are the rules on qualification?
1. The representative must be qualified to succeed the decedent (Article 973).
2. The representative need not be qualified to succeed the person represented
(Article 971).
3. The person represented need not be qualified to succeed the decedent in
fact, the reason why representation is taking place is that the person
represented is not qualified, because of predecease, or incapacity, or
disinheritance.
What is the share, which is given to a person who inherits by right of
representation?
In testamentary succession, the share which is given to the representative is the legitime of
the compulsory heir who is represented, while in intestate succession, it is the entire share of the
legal heir who is represented.
What is the difference in the rule in case of representation by grandchildren and
representation by nephews and nieces?
1. If all the children are disqualified the grandchildren still inherit by
representation (Article 982) (Per stirpes).
2. If all the brothers and sisters are disqualified the nephews and nieces
inherit per capita (Article 975).
Who are intestate heirs?
1.
2.
3.
4.
5.
6.
7.
8.

Legitimate children/ descendants;

Illegitimate children/descendants;
Legitimate parents/ascendants;
Illegitimate parents;
Surviving spouse;
Brothers, sisters, nephews, nieces;
Other collaterals to the 5th degree;
State.

What is the order of intestate succession?

1.

If the decedent is a legitimate person:

(1) Legitimate children or descendants.

a.
b.
c.

Exclude parents, collaterals and state.

They concur with surviving spouse and illegitimate children.
They are excluded by no one.

96
(2) Legitimate parents or ascendants.

a.
b.
c.

Exclude collaterals and state

Concur with illegitimate children and surviving spouse
They are excluded by legitimate children

(3) Illegitimate children.

a.
b.
c.

Exclude illegitimate parents, collaterals and state

Concur with surviving spouse, legitimate children and legitimate parents
They are excluded by no one

(4) Illegitimate parents.

a.
b.
c.

Exclude collaterals and state

Concur with surviving spouse
They are excluded by legitimate children and illegitimate children

(5) The surviving spouse.

a.
b.
c.

Excludes collaterals other than brothers, sisters, nephews and nieces

and state
Concurs with legitimate children, illegitimate children, legitimate
parents, illegitimate parents, brothers, sisters, nephews and nieces
Excluded by no one.

(6) Brothers and sisters, nephews and nieces.

a.
b.
c.

Exclude all other collaterals and the state

Concur with surviving spouse
Are excluded by legitimate children, illegitimate children, legitimate
parents, and illegitimate parents.

(7) Other collateral relatives within the fifth degree.

a.
b.
c.

Exclude collaterals in remoter degree and the state

Concur with collaterals in the same degree
Are excluded by legitimate children, illegitimate children, legitimate
parents, illegitimate parents, surviving spouse, brothers and sisters, and
nephews and nieces.

a.
b.
c.

Excludes no one
Concurs with no one
Is excluded by everyone

(8) State.

2.

If the decedent is an illegitimate person:

[For rules of exclusion and concurrence, see above]

(1) Legitimate children and descendants;
(2) Illegitimate children;
(3) Natural or spurious parents;
(4) The surviving spouse subject to the concurrent right of brothers and sisters, nephews and
nieces;
(5) Brothers and sisters, nephews and nieces;
(6) State.
Who among the legal heirs enumerated above cannot be excluded from the
succession?
(1) Legitimate children or descendants;
(2) Illegitimate children; and
(3) Surviving spouse.

97
What are the different combinations in intestate succession (Articles 978 to 1011)?
1. Legitimate children alone (Article 979)
The whole of the estate, divided equally.
2. Legitimate children and illegitimate children (Articles 983 and 176 FC)
The whole estate, each illegitimate child getting the share of one legitimate child.
3. Legitimate children and surviving spouse (Article 996)
The whole estate, divided equally (the surviving spouse counted as one legitimate
child).
4. Legitimate children, surviving spouse and illegitimate children (Articles 999 and 176, FC)
The whole estate, the surviving spouse being counted as one legitimate child and each
illegitimate child getting of the share of one legitimate child.
5. Legitimate parents alone (Article 985)
The whole estate, divided equally.
6. Legitmate ascendants (other than parents) alone (Article 987)
The whole estate, observing, in proper cases, the rule of division by line.
7. Legitimate parents and illegitimate children (Article 991)
Legitimate parents of the estate;
Illegitimate children of the estate.
8. Legitimate parents and surviving spouse (Article 997)
Legitimate parents of the estate;
Surviving spouse of the estate.
9. Legitimate parents, surviving spouse, illegitimate children (Article 1000)
Legitimate parents of the estate;
Surviving spouse of the estate;
Illegitimate children of the estate.
10. Illegitimate children alone (Article 988)
The whole of estate, divided equally.
11. Illegitimate children and surviving spouse (Article 998)
Illegitimate children - of the estate;
Surviving spouse of the estate.
12. Surviving spouse alone (Article 994 & 995)
The whole of the estate.
13. Surviving spouse and illegitimate parents
(No article governing)
Surviving spouse of the estate;
Illegitimate parents of the estate by analogy with Article 997.
14. Surviving spouse and legitimate brothers and sisters, nephews and nieces (Article 1001)
Surviving spouse of the estate;
Legitimate brothers, sisters, nephews and nieces of the estate (the nephews and
nieces inheriting by representation, in proper cases).

98
15. Surviving spouse and illegitimate brothers and sisters, nephews and nieces (Article 994)
Surviving spouse of the estate;
Illegitimate brothers, sisters, nephews, nieces of the estate (the nephews
and nieces inheriting by representation, in proper cases).
16. Illegitimate parents alone (Article 993)
The whole estate.
17. Illegitimate parents and children of any kind (Article 993)
Illegitimate parents excluded;
Children inherit in accordance with Nos. 1, 2 & 10, supra.
18. Legitimate brothers and sisters alone (Articles 1004 & 1006)
The whole estate, with a brother/sister of the half-blood inheriting the share
of a brother/sister of the full-blood;
Legitimate brothers and sisters, nephews and nieces (Article 1005 & 1008)
the whole of the estate, observing the 2:1 proportion of full- and half-blood
fraternity (No. 18, supra) and the nephews and nieces inheriting by
representation in proper cases.
19. Nephews and nieces with aunts and uncle (Article 1009 by inference)
Uncles and aunts excluded;
Nephews and nieces inherit in accordance with No. 22, infra.
20. Illegitimate brothers and sisters alone (no article governing)
The whole estate, observing the 2:1 proportion of full- and half-blood fraternity
by analogy with No. 18, supra.
21. Illegitimate brothers, sisters, nephews, and nieces (no article governing)
The whole estate, as in No. 19, supra, by analogy.
22. Nephews and nieces alone (Article 975 & 1008)
The whole estate, per capita, but observing the 2:1 proportion for the full- and
the half-blood.
23. Other collaterals (Article 1009 & 1010)
The whole estate, per capita, the nearer in degree excluding the more remote.
24. State (Article 1011)
The whole estate, assigned and disposed as follows:

a. If decedent is a resident of the Philippines at any time:

1. Personality property to municipality of last residence
2. Real property where situated
b. If decedent never a resident of the Philippines:
1. Personal property and real property where respectively situated.
c. How property is to be used:
1. For the benefit of public education and charitable institutions in the
respective municipalities/cities situated.

99
2. Alternatively, at the instance of an interested party, or motu propio,
court may order creation of a permanent trust for the benefit of the
institution concerned.
What are the successional rights of illegitimate children in intestate succession?
a. If they survive alone as a class they are entitled to the entire estate. (Articles 988,
989, 990, 983)
b. If they survive with legitimate descendants estate shall be divided with the
proportion of 2:1. (Articles 895, 983)
c. If they survive with ascendants if decedent is legitimate, the legitimate ascendants
are entitled to of the estate, while the illegitimates are entitled to the other .
(Article 991) If the decedent is illegitimate, ascendants are excluded; consequently,
the illegitimates are entitled to the entire estate. (Article 993)
d. If they survive with spouse the illegitimates are entitled to of estate, while the
surviving spouse is entitled to the other (Article 998)
e. If they survive with legitimate descendants and spouse estate shall be divided in the
proportion of 21, with the surviving spouse getting the same share as that of a
legitimate child. (Article 999, 983)
f.

If they survive with ascendants and spouse if decedent is legitimate, the legitimate
ascendants are entitled to of the estate; the illegitimates are entitled to . (Article
1000)If the decedent is illegitimate, the parents are excluded; consequently, the
illegitimates are entitled to of estate, while the surviving spouse is entitled to the
other . (Article 993, 994)

Can an illegitimate child inherit ab intestato from the legitimate children and
relatives of his father or mother, and vice versa?
No, an illegitimate child has no right to inherit ab instestato 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 (Article 992).
This is the well known, and much criticized, successional barrier between legitimate and the
illegitimate relatives of a decedent.
What are the successional rights of the surviving spouse in intestate succession?
(1) If he or she survives alone he or she is entitled to the entire estate (Article 995);
(2) If she or he survives with legitimate descendants he or she shall have the same share as
that of each legitimate child (Article 996);
(3) If he or she survives with ascendants if decedent is legitimate, the legitimate ascendants
are entitled to of estate, while he or she is entitled to the other . (Article 997) If
decedent is illegitimate, the same rule applies (Article 994);
(4) If he or she survives with illegitimate children the illegitimates are entitled to of the
estate, while she or he is entitled to the other (Article 998);
(5) If she or he survives with brothers and sisters, nephews and nieces he or she is entitled to
of the estate, while brothers and sisters, nephews and nieces are entitled to the other
(Article 1001);
(6) If he or she survives with legitimate descendants and illegitimate children estate shall be
divided in accordance with the proportion of 2:1, with the surviving spouse getting the same
share as that of a legitimate child (Article 999, 983);
(7) If he or she survives with ascendants and illegitimate children if decedent is legitimate, the
legitimate ascendants are entitled to of estate, the illegitimates are entitled to , and the
surviving spouse is entitled to . (Article 1000) If decedent is illegitimate, the parents are
excluded; consequently, the illegitimates are entitled to of estate, while the surviving
spouse is entitled to the other . (Article 993, 994)
INTESTACY: INTESTATE SHARE OF SURVIVING SPOUSE

SPOUSE AND

SHARE

ARTICLE

100
CONCURRING HEIRS
1. Spouse alone

1. All

Articles 995 & 996

1. Spouse

1.

Article 996

2. 1 leg. Child

2.

1. Spouse

Divide the estate by total

number of legitimate
children plus the spouse.
Spouse is considered as
one child.

Article 996

1. Same share as one

legitimate child

Articles 999 & 176 FC

2. 2 or more leg. children

1. Spouse

2. Leg. Children
3. Illeg. children

71

2. 2 shares each
3. 1 share each

1. Spouse

1.

Article 997

2. Leg. parents

2.

1. Spouse

1.

Article 991 (by analogy)

2. Illeg. parents

2.

Article 889 (by analogy)

1. Spouse

1.

Article 998

2. Illeg. children

2.

1.Spouse

1.

2. Leg. parents

2.

3. Illeg. Children

3.

1. Spouse

1.

2. Brothers & sisters,

nephews & nieces

2.

Article 1000

Articles 1001 & 994

Special case not included in the chart on intestacy:

Article 999 does not cover the situation where the mere survivors are (1) one legitimate
child; (2) one or more illegitimate children; and (3) spouse.

If the surviving spouse is given a share equivalent to the share of the legitimate child (which
is one-half of the estate), nothing would be left to the illegitimate children.

In order not to deprive the illegitimate children of their legitimes, the fair solution is to apply
by analogy the provisions of Article 892 under Testamentary Succession (See par. 2 Chart on
Testacy). In which situation, the surviving spouse will get a share equivalent to of the estate. The
other will go to the illegitimate children.
What conditions must exist in order that the estate of the decedent shall be
escheated in favor of the state?
a. First, the decedent must have died intestate;
b. Second, he dies seized of real and/or personal properties in the Philippines; and
c. Third, he leaves no heir or person entitled to such real and personal properties.
What are the rules on adopted children?
The present rules are contained in Article 189 of the Family Code:

71

Formula: The legitimate and illegitimate children will divide the estate in the proportion of 2:1. The surviving spouse will be
considered as one legitimate child. If due to the number of illegitimate children, the legitimes of the legitimate children and
the spouse are impaired, the illegitimate children will receive only what is the equivalent of the free portion in testamentary
succession.

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The adopted child inherits from his adopter in exactly the same way and to exactly the same
extent as a legitimate child
The adopted child remains an heir (both compulsory and intesate) of his parents and blood
relatives, as if he had not been adopted. See R.A. No. 8552.
What are the rules on succession to the estate of an adopted child?
1. Legitimate and illegitimate children and surviving spouse - Same as Nos. 1, 2, 3,
4, 10, 11 and 12, supra.
2. Biological parents
Parents/ascendants of the estate
Adopter of the estate
3. Surviving spouse or illegitimate children + adopter
Spouse or illegitimate children of the estate
Adopter of the estate
4. Surviving spouse and illegitimate children + adopter
Spouse 1/3 of the estate
Illegitimate children 1/3 of the estate
Adopter 1/3 of the estate
5. Adopter alone the whole estate
6. Collateral blood relatives alone Civil Code on intestacy applies. See Nos. 18 to
24, supra.

CHAPTER 4. PROVISIONS COMMON TO TESTATE

AND INTESTATE SUCCESSION
SECTION 1. RIGHT OF ACCRETION
Define accretion
Accretion is a right by virtue of which, when two or more persons are called to the same
inheritance, devise or legacy, the pat assigned to the one who renounces or cannot receive his
share, or who died before the decedent, is added or incorporated to that of his co-heir, co-devisee,
or co-legatee (Article 1015).
When does the right of accretion take place?
a. In case of testamentary succession:
1)
2)
3)
4)
5)

Predecease of the instituted heir

Incapacity of the instituted heir
Repudiation by the instituted heir
Non fulfillment of the suspensive condition imposed upon the instituted heir
Ineffective testamentary dispositions

NOTE: There must be renunciation, predecease, or incapacity of one (or more but less than
all) of the instituted heirs.
b. In case of intestate succession:
1) Predecease
2) Incapacity
3) Repudiated

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What are the requisites, which must concur in order for accretion to take place in
testamentary succession?
a.
b.

Two or more persons are called to the same inheritance, legacy or devise jointly or pro
indiviso;
There is a vacancy in the inheritance, legacy or devise as a result of predecease, incapacity,
repudiation, or some other cause (Article 1016).

In intestate succession, only one requisite is necessary that there must be a vacancy in the
inheritance as a result of predecease.
Distinguish representation from accretion.
I.

In testamentary succession:
a. As to legitime:
i. In case of prerdecease of an heir, there is representation if there are
children or descendants; if none, the other heirs inherit in their own
right.
ii. In case of incapacity of an heir, the results are the same as in
predecease.
iii. In case of disinheritance of an heir, the results are the same as in
incapacity or predecease.
iv. In case of repudiation by an heir, the other heirs inherit in their own
right; no accretion.
b. As to the free portion:

Accretion takes place when the requisites in Article 1016 are present, provided that there is
no substituted, but if such requisites are not present, the other heirs inherit in their own right.
II. In intestate succession:
a.
b.
c.

In case of predecease, there is representation if there are children or descendants; if none,

the heirs inherit in their own right, the result being the same as accretion.
In case of incapacity, there is representation if there are children or descendants; if none,
accretion takes place.
In case of repudiation, there is always accretion.

NOTE: In intestacy, accretion is subordinate to representation. In testamentary succession,

accretion is subordinate to substitution, if the testator so provides. This is because substitution is
the testators express intent, whereas accretion is merely his implied intent.
Article 1020 provides that the heirs whom the inheritance accrues shall succeed to
al the rights and obligations which the heir who renounced or could not receive it would
have had. What are the exceptions to this rule?
a.
b.

In testamentary succession, if the testator provides otherwise;

If the obligation is purely personal, and hence intransmissible.
Among compulsory heirs, when does the right of accretion take place?

Among 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. (Article 1021, par 1)
Is there accretion in legitime?
No, Article 1021, par. 2 provides that should the part repudiated be the legitime, the other
co-heirs shall succeed to it in their own right, and not by accretion.
State the basic rules in legal succession.
a.
b.
c.

The share of the person who repudiates the inheritance shall always accrue to his co-heirs.
(Article 1018)
The share of the person who repudiates shall go to his co-heirs by their own right in the same
proportion they inherit (Article 1019)
The heirs inherit all the rights and obligations (Article 1020)

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d.
e.

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. (Article 1021, par 1)
Should the part repudiated be the legitime, the other co-heirs shall succeed to it in their own
right, and not by accretion. (Article 1021)

Is there accretion if the renunciation of inheritance was made during the lifetime of
the decedent?
No, said renunciation is void, having been done during the lifetime of the decedent.
Renunciation of future inheritance is void. (Article 905). Accretion takes place when there is
renunciation after the decedents death, because the heir who renounced already acquired a vested
right over his share.
Suppose that the person who is incapacitated to inherit has children, will his share
accrue to his co-heirs?
No, because accretion applies only if the right of representation would not take place. (Article
968).

SECTION 2. CAPACITY TO SUCCEED

BY WILL OR BY INTESTACY

In order that a person can inherit either by will or by intestacy, what requisites
must concur?
a. That the heir, legatee or devisee must be living or in existence at the moment the
succession opens;
b. That such heir, legatee or devisee must not be incapacitated or disqualified by law to
succeed. (Articles1024, 1025)
Can a thing or an entity which is neither natural nor a juridical person inherit by
will?
As a general rule, a thing or an entity, which is neither a natural nor a juridical person,
cannot inherit by will. This is apparent from Article 1025, which declares that in order to be
capacitated to inherit, the heir, legatee or devisee must be living at the moment the succession
opens. There are however some well known exceptions, such as those organizations or associations
for religious, scientific, cultural, educational, or charitable purposes mentioned in Article 1026 or the
poor in general contemplated in Article 1030.
Give and define the different kinds of incapacity.
Incapacity to succeed may either be:
a. Absolute incapacity the incapacity of a person, whether natural or juridical, to
succeed any person in any form with regard to any property.
b. Relative incapacity the incapacity of a person, whether juridical or natural, to
succeed by reason of a special relation which he has to the decedent or to other
persons, or to the property disposed of.
Who are absolutely incapacitated to succeed?
a. Those not living at the moment the succession is opened (Article 1025, par. 1);
b. Individuals, associations and corporations not permitted by law to inherit (Article
1027, par 6); and
c. Uncertain persons. (Article 855)
What are the different kinds of relative incapacity?
a.
b.
c.
d.

Incapacity based on the possibility of undue influence or on interest (Article 1027)

Incapacity based on public policy or morality (Articles 1028, 739)
Incapacity by reason of unworthiness (Article 1032); and
Incapacity by operation of law, such as the incapacity of the guilty spouse to inherit ab
intestato from the innocent spouse if there is a decree of legal separation, or the
incapacity of illegitimate children and legitimate relatives of the decedent to inherit ab
intestato from each other (Article 992)

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Who are incapacitated to inherit by will?
1. The priest who heard the confession of the testator during his last illness, or the minister of
the gospel who extended spiritual aid to him during the same period.
2. The relatives of such priest or minister of the gospel within the fourth degree, the church,
order, chapter, community, organization, or institution to which such priest or minister may
belong.
3. A guardian with respect to testamentary dispositions given by a ward in his favor before the
final accounts of guardianship have been approved, even if the testator should die after the
approval thereof; nevertheless, any provision made by the ward in favor of the guardian
when the latter is his ascendant, descendant, brother, sister or spouse, shall be valid.
4. Any attesting witness to the execution of the will, the spouse, parents, or children, or any one
claiming under such witness, spouse, parents, children.
5. Any physical, surgeon, nurse, health officer or druggist who took care of the testator during
his last illness.
6. Individuals, associations and corporations not permitted by law to inherit. (Article 1027)
7. The person with whom the testator was guilty of adultery and concubinage at the time of the
execution of the will.
8. Those persons found guilty of the same criminal offense as the testator, when the
inheritance, legacy or devise is the consideration thereof.
9. A public officer or his spouse, descendants and ascendants, when the inheritance, legacy or
devise is given to such officer or his spouse, descendants and ascendants by reason of his
office. (Article 739)
NOTE: Those who are disqualified from receiving donations under Article 739 are likewise
disqualified from receiving testamentary dispositions from the parties specified in that article.
(Article 1028)
In Article 1027, can the incapacitated heir still entitled to his legitime or to an
intestate portion?
Yes, because this article applies only to testamentary succession. It has no application to the
legitime or to intestacy
Who are incapable of succeeding by reason of unworthiness?
1. Parents who have abandoned their children or induced their daughters to lead a corrupt or
immoral life, or attempted against their virtue.
2. Any person who has been convicted of an attempt against the life of the testator, his or her
spouse, descendants, or ascendants.
3. Any person who has accused the testator of a crime for which the law prescribes
imprisonment of six years or more, if the accusation has been found 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 latter.
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, from revoking one
already made, or who supplants, conceals, or alters the latters will.
8. Any person who falsifies or forges a supposed will of the decedent.
What is the effect of unworthiness as to the successional rights of the heir?
Unworthiness gives rise to total disqualification, i.e., the unworthy heir is incapacitated to
succeed from the offended party by any form of succession: the legitime, testamentary, and
intestate. [Thus, unworthiness and disinheritance have identical effects.]
How may the cause of unworthiness be erased?
1. A written condonation, or
2. The execution by the offended party of a will with knowledge of the cause of unworthiness.
Since the acts of unworthiness are offenses directed against the decedent, only the decedent
and no other can erase the effects of such acts of unworthiness. He can do this by pardoning the
offense either expressly or impliedly. There is an express pardon when the decedent condones the

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act of unworthiness in writing. There is an implied pardon when the testator with knowledge of the
act of unworthiness, executes a will instituting the person who has committed the offense as an heir.
(Article 1033)
What is the effect of incapacity upon compulsory heirs?
If the heir who is incapable of succeeding is a compulsory heir, whether or not his right to the
legitime is affected shall depend upon the cause of the incapacity. If the incapacity is due to any of
the causes specified in either Article 1027 or 1028, only the free portion given to him is affected, but
not his legitime. If the incapacity however, is due to any of the causes specified in Article 1032, it is
clear that even the legitime of the compulsory heir who has committed the act of unworthiness is
affected.
If an incapacitated heir has already taken possession of his inheritance after the
decedents death, what is the remedy of the other heirs?
Any person who has an interest in the succession may bring an action against the
incapacitated heir for a declaration of incapacity and for the recovery of the inheritance, devise or
legacy.
Within what period must the action be bought?
The action must be bought within five years from the time the incapacitated heir took
possession thereof. (Article 1040)
When is capacity determined?
1. General rule the time of the decedents death.
Reason: That is when succession vests (Article 777)
2. If institution is subject to a suspensive condition:
a) Time of decedents death, and
b) Time of happening of condition
3. If final judgment is a requisite of unworthiness time of final judgment.
[Final judgment is required in Pars. 2,3 and 5 of Article 1032]
Is there representation in unworthiness?
Yes, unworthiness is one of the three occasions for representation to operate.
What is the extent of representation in unworthiness?
It extends not only to the legitime, but also to whatever portion in intestate succession the
person represented
What is the liability of the person who is incapable of succession who enters into
the possession of the hereditary property?
a. The obligation to return, with accessions;
b. Liability for fruits, which were received and could have been received.
Note: These are the same rules laid down in Article 549, because he is deemed in bad faith
and the law applies to him the rules on possession of bad faith.

SECTION 3. ACCEPTANCE AND REPUDIATION OF INHERITANCE

Define acceptance and repudiation.
Acceptance of inheritance is the act by virtue of which the person called to succeed by
universal title by the testator or by law manifests his will to make as his own the universality of the
rights and obligations which are transferred to him. Repudiation is the manifestation by such heir his
desire not to succeed to said universality.
Note: In all hereditary succession, three moments can be distinguished:

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a. The opening of the succession;
b. The availability of the same; and
c. The acquisition of the same.
The succession of a person is opened at the moment of his death; it becomes available from
the moment it can be accepted; and it is acquired through acceptance.
What is the nature of acceptance and repudiation of inheritance?
It is an act, which is purely voluntary and free. (Article 1041)
When an heir accepts or repudiates his inheritance, when will it take effect?
The effects of the acceptance or repudiation shall always retroact to the moment of the death
of the decedent. (Article 1042)
Consequences:
a. Acceptance the successor will be deemed to have owned and possessed the property
from the precise moment of the decedents death. This rule has consequence with respect
to acquisitive prescription, capacity to succeed, representation, etc.
b. Renunciation the renouncer is deemed never to have owned or possessed the property
(Article 533) 72. Consequently, the substitute, co-heir, or intestate heir who gets the
property in default of the renouncer is deemed to have owned and possessed it from the
moment of the decedents death.
c. Conditional institutions Even if the institution is conditional, the principle of retroactivity
still applies. Consequently, upon the happening of the condition, the property passes to
the heir but with retroactive effect. [This is the same principle in conditional obligations
(Article 1187)] Similarly, if the condition does not happen, the property goes to the
appropriate successor, with the same retroactive effect.
When may an heir, legatee or devisee accept or repudiate his inheritance?
When the following requisites are present:
1. He is certain of the death of the person from whom he is to inherit; and
2. He is certain of his right to the inheritance, legacy or devise. (Article 1043)
What are the requisites of a valid waiver of inheritance?
For a waiver to exist, three elements are essential:
1. The existence of a right;
2. The knowledge of the existence thereof;
3. An intention to relinquish such right. [Borromeo-Herrera vs. Borromeo, G.R. No. 41171, July
23, 1987]
Who may accept or repudiate an inheritance, legacy or devise?
As a general rule, if the heir, legatee or devisee has the free disposal of his property
[capacity], he himself may accept or repudiate his inheritance, legacy or devise.
What are the special limitations on acceptance and repudiation imposed by law on other
cases?
1. If the beneficiary cannot freely dispose of his property as in the case of:
1) Minors
2) Incapacitated parties
3) Deaf mutes who cannot read and write,
4) An insolvent judicially declared,
5) One under civil interdiction,

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Article 533: The possession of hereditary property is deemed transmitted to the heir without interruption, and from the
moment of death of the decedent, in case the inheritance is accepted. One who validly renounces an inheritance is deemed
never to have possessed the same.

107
They may accept or renounce only through their guardian or legal representatives.
However, for renunciation, judicial authorization is necessary [court approval]. (Articles 1044,
1048)
2. If the beneficiary is the poor, the right to accept shall belong to the persons empowered
under Article 1030 [The person authorized by the testator or in his default, the executor, or
in his default, the administrator]. As far as the right to repudiate is concerned, it may be
exercised only by the beneficiary themselves once they are finally determined. (Article 1044)
Thus, 1) these authorized individuals can only accept, not reject the grant; 2) the person
selected as qualified recipients are, for their own part, free accept or renounce the benefit.
3. If the beneficiary is a corporation, association, institution or entity, the right to accept or
repudiate belongs to the legal representative, but in case of repudiation, judicial authorization
is necessary. (Article 1045)
4. If the beneficiary is a married woman of age, she may repudiate without the consent of her
husband.
How may the acceptance of an inheritance, legacy or devise be made? What are the
kinds of acceptance?
a. Express one that is made in a public or private document.
b. Tacit or implied - one resulting from acts by which the intention to accept is
necessarily implied, or which one would have no right to do except in the capacity of
an heir. (Article 1049)]
c. Presumed when the heirs, devisees or legatees do not signify to the court their
repudiation of the inheritance within thirty days after the court has issued an order for
the distribution of the estate. (Article 1057)
When is an inheritance deemed accepted?
It is deemed accepted in the following cases:
1. If the heir sells, donates or assigns his right to a stranger, or to his co-heirs, or to any of
them;
2. If the heir renounces the same, even though gratuitously, for the benefit of one or more of
his co-heir;
3. If he renounces it for a price in favor of all his co-heirs indiscriminately; but if the
renunciation should be gratuitous, and the co-heirs in whose favor it is made are those upon
whom the portion renounced should devolve by virtue of accretion, the inheritance shall not
be deemed accepted; (Article 1050)
4. If he performs acts of preservation or administration from which it can be inferred that he has
assumed the title or capacity of an heir; (Article 1049)
5. If he fails to accept or repudiate within a period of thirty days after the issuance of the order
of distribution of the estate. (Article 1057)
6. When the heir demands partition of the inheritance.
How may an inheritance, legacy or devise be repudiated?
Repudiation of an inheritance, legacy or devise must always be express.
This can be done either:
1. By means of a public instrument, or
2. By means of an authentic instrument, or
3. By means of a petition presented to the court having jurisdiction over the testate
proceedings. (Article 1051)
Note: While acceptance may be tacit or express, repudiation is always express and never
tacit. The law considers the act of repudiation more solemn that the act of acceptance.
Suppose that an heir repudiates his inheritance to the prejudice of his creditors,
what is the remedy of the latter in order to protect their right?
The creditors in such case may petition the court to authorize them to accept the inheritance,
legacy or devise in the name of the heir. This acceptance, however, shall benefit them only to the
extent sufficient to cover the amount of their credits. The excess, should there be any, shall in no
case pertains to the renouncer, but shall be adjudicated to the persons to whom it may belong in
accordance with the rules established in the Civil Code. (Article 1052)

108
Note: This is an instance of accion pauliana, which is the right given to creditors to impugn or
set aside contracts, transactions, or dispositions of their debtors which will prejudice or defraud
them
If the heir should die without having accepted or repudiated the inheritance, is his
right to the inheritance extinguished?
No, if the heir should die without having accepted or repudiated the inheritance, his right
shall be transmitted to his heirs. (Article 1053) This rule is a consequence of the principle that the
right of succession vests at the moment of death (Article 777). Therefore, the right of the heir who
dies before accepting or renouncing is already vested and is transmitted to the heir.
But in order that this be available two requisites must concur:
a. That the inheritance is either available or transmissible;
b. The death of the heir without having accepted or repudiated the inheritance.
What is the effect if a person who is called to the same inheritance, as an heir by
will and ab intestato, repudiates the inheritance as a testamentary heir?
He is understood to have repudiated it in both capacities (Article 1055); that is, if he
renounces as testamentary heir, he is deemed to have renounced as intestate heir as well.
What is the effect if an heir renounces as an intestate heir without knowledge of his
being a testamentary heir?
He may still accept it in the latter capacity (Article 1055, 2nd par); that is, he is not deemed
to have renounced as testamentary heir and may therefore accept or renounce separately in his
capacity as a testamentary heir.
Rationale: The testamentary disposition is the express will of the testator, whereas intestacy
is only his implied will. One who renounces the express will is deemed to have renounced the implied
also, but not the other way around.
Note: This rule is not applicable to legitime. In view of the rationale of the rule, should the
heir be simultaneously as compulsory heir and a testamentary heir, he can accept either or both.
The legitime passes not because of any implied will or wish of the decedent but by strict operation of
law, irrespective of the decedents wishes. Thus, the term ab intestato in this article refers solely to
intestate succession.
What is the nature of the acceptance or repudiation of an inheritance?
The acceptance or repudiation of an inheritance, once made, is irrevocable, and cannot be
impugned (Article 1056).
The exceptions are:
a. When it was made through any of the causes that vitiate consent. The factors vitiating
consent are: 1) violence, 2) intimidation, 3) undue influence, 4) mistake, and 5) fraud.
b. Or an unknown will appear. This applies if the newly discovered will is subsequent to any
will, which may have formed the basis for the acceptance or renouncement. The new will,
if valid and admitted to probate, reopens the whole affair and will call for a new
acceptance or renunciation.

SECTION 5. COLLATION
1. What is meant by collation?
It refers to the act of restoring to the common mass of the hereditary estate, either actually
or fictitiously, any property or right, which a compulsory heir, who succeeds with other
compulsory heirs, may have received by way of donation or any other gratuitous title from
the decedent, during the lifetime of the latter, but whish is understood for legal purposes as
an advance of his legitime.
2. What is the object of collation?

109
Its object is in order that no descendant will be deprived of his legitime or portions
corresponding to him, and to determine whether the decedent has disposed properties more
than what he can give away in accordance with law to the prejudice of his compulsory heirs.
Equality among children will thus be insured.
3. What are the three kinds of collations under the law on succession? [What are the three
general acts included in collation?]
a. Collation as computation this is a simple accounting or arithmetical process,
whereby the value of all donations inter vivos made by the decedent is added to his
available assets in order to arrive at the value of the net hereditary estate. (Article
908)
Articles covered: 1061, 1067 (as an exception to 1061), 1071, and 1072.
b. Collation as imputation this is the process by which donations inter vivos made by
the decedent are correspondingly charged either to the donees legitime or against the
disposable portion.
General rule: If compulsory heir, imputable to the legitime.
Exception: When the testator has provided otherwise.
Articles covered: 1062, 1063, 1064, 1065, 1066, 1068, 1069, 1071, 1072, and 1073.
c. Collation as return this takes place when the donation inter vivos is found to be
inofficious and so much of its value as inofficious is returned to the decedents estate
to satisfy the legitime.
Articles covered: 1075, 1078
4. What is the difference between the collation referred to in Articles 1061 to 1077 and the
collation referred to in Articles 908 to 910?
Under Articles 908 to 910, collation refers to the mathematical process of adding the value of
the thing donated to the net value of the hereditary estate. It is a process, which is applicable
to all donations inter vivos, whether to compulsory heirs or to strangers. The immediate
purpose is to determine or compute the legitime of compulsory heirs.
Under Articles 1061 to 1077, collation refers to the subsequent act of charging or imputing
the value of the thing donated against the legitime of the compulsory heir to whom the
donation is made. Thus, when the Code says that a property or right which a compulsory heir
had received by gratuitous title from the decedent, during the lifetime of the latter, must be
brought to collation, what is meant is that the value of such property or right shall be
considered as an advance of his legitime and, therefore, imputable against it during the
partition. Hence, it is applicable only to donations made to a compulsory heir who succeeds
with other compulsory heirs.
5. What properties or rights, which a compulsory heir may have received by gratuitous title form
the decedent, are not subject to collation?
a. Property left by will (Article 1063);
b. Property which may have been donated by an ascendant of the compulsory heir to the
children of the latter (Article 1065)
Reason: Because the said person is not the recipient of the conveyance. The donation
to the grandchild should therefore be imputed to the free portion, since it is a donation
to a stranger.
c. Property donated to the spouse of the compulsory heir (Article 1066);
The donation here is one made to a stranger.
If the donation is made to the spouses jointly, one-half belongs to the donors child
and should be treated in accordance with Article 1062 and the other half is the
property of the donors son or daughter-in-law and should be treated as a donation
to a stranger.

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d. Expenses for support, education, medical attendance even in extraordinary illness,
apprenticeship, ordinary equipment, or customary gifts (Article 1067)
Scope of support the general coverage of support is defined in Article 194 of the
Family Code. For purposes of this article, however, support has a more restricted
meaning; it does not include expenses for the recipients professional, vocational, or
other career, because that is governed by Article 1068)
e. Expenses incurred by parents in giving their children a profession, vocational, or other
career (Article 1068);
f.

Wedding gifts consisting of jewelries, clothing, and outfit, given by parents or

ascendants, so long as they do not exceed one-tenth of the disposable portion. (Article
1070)
The gift will be imputed to the free portion to the extent of one-tenth of the free
portion. Beyond the value, the excess will be imputable to the recipients legitime.
Common exception to all the foregoing: When the testator provides otherwise. (Article
1062)
Note: When the law says that the above properties shall not be brought to collation,
what is meant is that their value shall not be imputable against the legitime of the
compulsory heir to whom they are given or donated, but against the free or disposable
portion. It is only in the case of the fourth that the expenses are not at all imputable,
even against the free or disposable portion.
Therefore, the obligation to bring back either the property or the value to the mass of
the estate is always present with regard to properties received by donation or by
gratuitous title. However, there may be difference in imputation; it is either imputable
to the legitime or the free portion. Since donations or gifts by gratuitous title to
compulsory heirs are generally chargeable to the their legitime, when the testator
provides that there be no collation, the evident meaning is that it should not be
imputed to the legitime but to the free portion. That is the reason why if it exceeds
the free portion it should be reduced insofar as it is inofficious.

6. If the owner of a property sells it to his heirs and transfers them during his lifetime, are these
collationable?
No, because they did not involve gratuitous transfers of future inheritance, hence, not
collationable. Essentially, collation mandated under Article 1061 contemplates properties
conveyed inter vivos by the decedent to an heir by way of donation or other gratuitous title.
7. Rules on imputation of donations inter vivos:
a. Donations to compulsory heirs:
1)
2)

General rule: Should be imputed to the heirs legitime [considered as an

advance on the legitime]
Exceptions [donation will have to be imputed to the free portion]:
i.

If the donor provides otherwise; or

ii.

If the donee renounces the inheritance, because in this case the

donee gives up his status as a compulsory heir and therefore cannot
be considered as one. (Article 1062)

b. Donations inter vivos to strangers imputed to the free portion.

8. What are the instances when donations inter vivos are to be imputed to the free portion?
a. When made to strangers;
b. When made to compulsory heirs, and the donor so provides;
c. When made to compulsory heirs who renounce the inheritance;
d. When in excess of the compulsory heirs legitime, as to the excess.

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9. What is the obligation of grandchildren who inherit by representation concurrently with
children (uncles and aunts) who are inheriting in their own right? (Article 1064)
The grandchildren shall bring to collation:
a. Whatever the parents whom they are representing would have been obliged to collate;
and
b. Whatever they themselves have received from the grandparent by gratuitous title
(subject to the same rules and exceptions laid down in Article 1062).
Cases where the grandchildren inherit in their own right as would happen in case of
repudiation by the parents - the said grandchildren shall be bound to collate what they
themselves have received from the grandparent during his lifetime and not the donation
given to their father since as to that portion, it is equivalent to a donation made to a
stranger and therefore imputable to the free portion.
10. What is the rule as to sums paid by a parent in satisfaction of the debts of his children,
election expenses, fines, and similar expenses? (Article 1069)
They shall be brought to collation, meaning, it should be imputable to the childs legitime.
11. What value should be considered in the computation and imputation? (Article 1071)
Only the value of the thing donated at the time the donation was made should be considered
in the computation of the donors estate.
Reason: Any appreciation or depreciation of the thing after that time should be for the
donees account, since donation transfers ownership to him. Thus any accretion should
belong to him.
12. What are rights of the co-heirs if the donees share shall be reduced by an amount equal to
that already received by him? (Article 1073 and 1074)
a. The donees co-heirs shall receive an equivalent, as much as possible, in property of
the same nature, class and quality.
b. If this is not possible
i.

If the property was immovable:

(1) The co-heirs shall be entitled to receive its equivalent in cash or
securities, at the rate of quotation.
(2) Should there be neither cash nor marketable securities in the
estate, so much of the other property as may be necessary shall
be sold to public autction.

ii. If the property was movable:

(1) The co-heirs shall only have a right to select an equivalent of other
personal property of the inheritance at its just price.
13. Who owns the fruits and interests of collationable properties? (Article 1075)
a. The entirety of the fruits and interests shall pertain to the compulsory heir, only if the
donation is totally inofficious.
b. If the donation is only partially inofficious, the right to the fruits and interests shall be
probated between the compulsory heir and the donee, in proportion to their respective
interests over the property.
14. If the donation is totally inofficious and the thing has to be returned in its entirety, what are
the obligations of the co-heirs to the donee? (Article 1076)
a. Reimbursement to the full extent of the necessary expenses incurred (The same rule
in Article 546, par. 1)73
b. Reimbursement to the full extent of useful expenses provided that the improvement is
still in existence. (The same rule in Article 546, par. 2)74

73
Article 546, par. 1. Necessary expenses shall be refunded to every possessor; but only the possessor in good faith may
retain the thing until he has been reimbursed therefore.

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c. No reimbursement as to ornamental expenses, but right of removal is granted if no
injury to the estate will be cause. (Article 548)75
15. If the donation is partially inofficious and the thing has to be returned only in part, what are
the obligations of the co-heirs to the donee?
a. Partial reimbursement of necessary and useful expenses, in proportion to the value to
be returned.
b. As to ornamental expenses, the same rule as in total return applies, unless the
property is physically divided and the ornament happens to be located in the portion
assigned to him, in which case he will have all the rights of ownership.

SECTION 6. PARTITION AND DISTRIBUTION OF ESTATE

I.

PARTITION

1. Define partition.
Partition, in general, is the separation, division and assignment of a thing held in common
among those to whom it may belong. The thing itself may be divided, or its value. (Article
1079)
Every act, which is intended to put an end to indivision among co-heirs and legatees or
devisees, is deemed to be a partition, although it should purport to be a sale, an exchange, a
compromise, or any other transaction. (Article 1082)
2. What are the different kinds of partition?
c. As regards its extent:
1)
2)

Total when all the things comprised in the whole estate are divided among
all of the participants or co-owners.
Partial when some of the things are divided among all or some of the
participants or co-owners, the rest remaining in a state of indivision or
community ownership.

d. As regards its duration:

1)
2)

Provisional when the division is merely temporary or transitory until a final

or definite division is made.
Definite when it is stable, final and absolute.

e. As regards the manner or method by which it is done:

1)

Extra-judicial when it is effected by the testator himself, or by some

person named by such testator, or by the participants or co-owners
themselves amicably or by common accord.
(1) Made by the testator (Article 1080)
(2) Made by the decedent in an act inter vivos (Article 1080)
(3) Made by the heirs themselves (Rule 74, Sec., Rules of Court)
(4) Made by a third person entrusted by the testator or decedent
(Article 1081, par. 1).

2)

Judicial when the court intervenes in the division.

3. Under the Rules of Court, there are four ways by which the estate of the decedent may be
partitioned:

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Article 546, par 2. Useful expenses shall be refunded only to the possessor in good faith with the same right of retention,
the person who has defeated him in the possession having the option of refunding the amount of the expenses or of paying
the increase in value which the thing may have acquired by reason thereof.
75
Article 548. Expenses for pure luxury or mere pleasure shall not be refunded to the possessor in good faith; but he may
remove the ornaments with which he has embellished the principal thing if it suffers no injury thereby, and if his successor in
the possession does not prefer to refund the amount expended.

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c.
d.
e.
f.

By
By
By
By

extra-judicial settlement (Rule 74, Sec. 1)

ordinary action for partition (Rule 74, Sec. 1)
judicial summary settlement (Rule 74, Sec. 2)
administration proceedings (Rule 79 to Rule 91)

The last three are judicial in character.

4. Who may effect the partition of the decedents estate?

a. By the decedent himself during his lifetime by an act inter vivos or by will (Article
1080);
b. By a third person designated by the decedent by means of an act inter vivos or by will
(Article 1081); or
c. By the heirs themselves (Articles 1083, 1084); or
d. By a competent court in accordance with the Rules of Court (Rules 74-91)
5. If the decedent himself partitions his estate by an act inter vivos, is a will necessary for the
validity of the partition?
A mere partition inter vivos which does not observe the formalities of a will cannot, by itself,
make testamentary dispositions, because that would circumvent the requirement of law that
dispositions mortis causa can be made only by means of a will. A person cannot, in the guise
of making a partition, make disposition of property to take effect upon his death.
6. What is the nature of partition made by the causante (decedent):
a. It takes effect only upon death;
b. It is revocable as long as the causante is alive; hence the causante can change or
modify it, or even rescind it during his lifetime.
7. How may the causante make the partition?
d. By will, or
e. By act inter vivos

8. What is the limitation on partition by causante:

The legitimes of the causantes compulsory heirs cannot be impaired by partition made by
him, whether in a will or by an act inter vivos.
9. What is the rule as to partition to keep an enterprise intact?
A parent who, in the interest of his or her family, desires to keep any agricultural, industrial,
or manufacturing enterprise intact, may partition his or her estate by an act inter vivos, or by
will, by ordering that the legitime of the other children to whom the property is not assigned,
be paid in cash (Article 1080).
a. Only the parent is allowed the privilege of this Article (Article 1080)
b. This privilege can be exercised only if enough cash or other property is available to
satisfy the legitimes of the other children.
c. Under no circumstances should the legitimes be impaired.
10. Is it possible for the testator to prohibit the partition of his entire estate even if there are
compulsory heirs?
Yes, but in such a case the period of indivision shall not exceed 20 years. This power of the
testator applies even to the legitime of compulsory heirs. (Article 1083)
11. Who can demand the partition of the decedents estate after his death?
a.
b.
c.
d.

By
By
By
By

any
any
any
any

compulsory heir, or
voluntary heir, or
legatee or devisee, or
person who has acquired an interest in the estate.

12. When may an heir demand the division of the estate?

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Every co-heir has a right to demand the division of the estate at any time (Article 1083). This
is the same rule laid down in Article 494, par. 1.76
13. What are the instances when partition cannot be demanded?
a. When the partition has been expressly prohibited by the testator for a period which
shall not exceed 20 years (Article 1983)
Exception: Despite this imposed indivision, partition may be demanded:
i. When any of the causes for the dissolution of a partnership occurs (Articles
1830 1831)
ii. When the court finds compelling reason for partition.
b. When the co-heirs have agreed that the estate shall not be divided for a period, which
shall not exceed 10 years, renewable for another 10 years. (Article 494)
c. When the partition is prohibited by law (Article 494)
d. When to partition the estate would render it unserviceable for the use for which it is
intended. (Article 494)
14. Where there are two or more heirs, the whole estate of the decedent is, before its partition,
owned in common by such heirs, subject to the payment of the debts of the deceased.
(Article 1078)
The immediate effect of the decedents death is the vesting of the success ional rights of the
successors because the rights to the succession are transmitted from the moment of the
death of the decedent (Article 777). The estate however is a mass of properties. The
immediate effect, therefore, of the decedents death is a co-ownership of the heirs over the
entire mass. Partition ends the co-ownership among the co-heirs as to the thing partitioned.
Kinds of partition:
a. Actual physical division of the thing among the co-heirs;
b. Constructive any act, other than physical division, which terminates the coownership, such as:
i. Every act which is intended to put an end to indivision among co-heirs and
legatees or devisees is deemed to be a partition, although it should purport to
be a sale, an exchange, a compromise, or any other transaction (Article 1082)
ii. Sale of the thing and division of the proceeds among the heirs, resorted to
when the thing is essentially indivisible or if physical partition will so diminish
its value that it becomes unserviceable or useless (Article 1086)

15. In institutions with a suspensive condition, when can the voluntary heirs demand partition?
a. They cannot demand a partition until the condition has been fulfilled;
b. But the other co-heirs may demand it by giving sufficient security for the rights which
the said voluntary heirs may have in case the condition should be complied with, and
until it is known that the condition has not been fulfilled or can never be complied
with, the partition shall be understood to be provisional. (Article 1084)
16. Article 1985 provides for the equality among heirs:
a. Quantitative the shares of the co-heirs are not necessarily equal in value, but are
determined by law and by will
b. Qualitative whatever the aliquot portions be, however, the law mandates equality in
nature, kind and quality. [Thus if an heir gets a parcel of land, the other heirs should
also be given parcels of land.]
17. What are the exceptions or qualifications to the requirement of qualitative equality?
a. If the causante has made the partition himself;
b. If the co-heirs agree otherwise;
c. If qualitative equality is impossible or impracticable.

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Article 494, par. 1. No co-owner shall be obliged to remain in the co-ownership. Each co-owner may demand at any time
the partition of the thing owned in common, in so far as his share is concerned.

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18. If an heir sells his hereditary right to a stranger before the partition of the decedents estate,
what is the right given to the other co-heirs?
The co-heirs in such a case are subrogated to the rights of the purchaser by reimbursing him
for the price of the sale, provided they do so within the period of one month from the time
they were notified in writing of the sale by the vendor. (Article 1088)
19. What requisites must concur in order that the right of legal redemption may be availed of?
a.
b.
c.
d.
e.
f.

There must be several co-heirs;

One of them sells his hereditary rights
The buyer must be a stranger;
The sale must be before partition
At least one co-heir must demand the redemption.
The right is exercised within a period of one month to be counted from the time they
were notified in writing by the co-heir vendor; and
g. The vendee is reimbursed for the price of the sale.
Note:
>Sale must be made to stranger a stranger within the meaning of this article is anyone
who is not a co-heir. (Basa vs, Aguilar, 117 SCRA 128)
>When right of redemption may be exercised the right may be exercised only before
partition, not after. (Caro vs, CA, 113 SCRA 10)
>Written notice is required without it period does not commence to run (Garcia vs.
Calaliman, 172 SCRA 201)
20. What is the rule if a thing is indivisible, or would be much impaired by its being divided?
(Article 1086)
a. The thing may be adjudicated to one of the co-heirs, provided he shall pay the others
the excess in cash;
b. Sell the thing in a public auction if any of the heirs should demand that the thing be
sold at public auction, provided that strangers are allowed to bid.
21. Upon partition, what are the obligations of the co-heirs among each other? (Article 1087)
The co-heirs shall reimburse one another:
a. For the income and fruits which each one of them may have received from any
property of the estate
b. For any useful and necessary expenses made upon such properties
c. For any damage thereto through malice or neglect.
The same rule in co-ownership (Article 500)
22. To whom shall the title be delivered if it comprises two or more pieces of land, which have
been assigned to two or more co-heirs, or when it covers one piece of land, which has been
divided between two or more co-heirs?
a. The title shall be delivered to the one having the largest interest and authentic copies
of the title shall be furnished to the other heir at the expense of the estate.
b. If the interest of each co-heir should be the same, the oldest shall have the title.
(Article 1090)
Note: This article only provides for the right over the document. The co-heirs, however, have
the right to have the title divided into individual titles, separate for each of the owners to
correspond to the separate portions held by them respectively.

II.

EFFECTS OF PARTITION

23. What is the obligation of the co-heirs after the partition has been made?
The co-heirs are reciprocally bound to warrant the title to, and quality of, each property
adjudicated. (Article 1092)

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Partition among co-heirs imposes upon them the same mutual obligation of warranties
imposed among co-owners in general (Article 501)77
Rules on warranties: Articles 1547-1580 (Title on Sales, insofar as they are not inconsistent
with the rules given in this subsection)
24. What is the extent of liability of the co-heirs on warranty?
The reciprocal obligation of warranty shall be proportionate to the respective hereditary
shares of the co-heirs. (Article 1093)
25. What is the effect of the mutual warranty of the co-heirs if any of them is insolvent?
The other co-heirs shall be liable for his part in the same proportion, deducting the part
corresponding to the one who should be indemnified. (Article 1093)
26. What is the right of the heirs who pay for the insolvent heir?
Those who pay for the insolvent heir shall have a right of action against him for
reimbursement, should his financial condition improve. (Article 1093, par. 2)
Exception [When there is nor right to be reimbursed]
When the insolvency has been judicially declared, since judicially declared insolvency
extinguishes all obligations.
27. What is the period within which to file an action to enforce the warranty among co-heirs?
It must be brought within ten years from the right of action accrues. (Article 1094)
28. If a credit should be assigned as collectible, what is the effect of the subsequent insolvency of
the debtors estate on the co-heirs?
The co-heirs shall not be liable for the subsequent insolvency of the debtor of the estate, but
only for his insolvency at the time the partition is made (Article 1095). [The warranty covers
only insolvency of the decedents debtor at the time of partition, not subsequent insolvency,
for which the co-heir takes the risk.]
29. What is the period within which the warranty of the solvency of the debtor can be enforced?
It can only be enforced during the five years following the partition. (Article 1095, par. 2)
Warranty for good debts that the debtor is solvent at the time of the partition (not later).
The warranty is good for five years following the date of the partition.
There is no warranty for bad debts an heir accepts them at his own risk.
30. Are co-heirs bound to warrant bad debts?
Co-heirs do not warrant bad debts if:
a. So known to the distributee; and
b. Accepted by the distributee. (Article 1095, par. 3)
31. When may the obligation of warranty among co-heirs cease?
a. When the testator himself has made the partition, unless it appears, or it may be
reasonably presumed, that his intention was otherwise, but the legitime shall always
remain unimpaired;
b. When it has been so expressly stipulated in the agreement of partition, unless there
has been bad faith;
c. When the eviction is due to a cause subsequent to the partition, or has been caused
by the fault of the distributee of the property. (Article 1096)
d. Supervening event causing the loss or the diminution in value

77
Article 501. Every co-owner shall, after partition, be liable for defects of title and quality of the portion assigned to each of
the co-owners.

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e. Waiver

III.

RESCISSION AND NULLITY OF PARTITION

32. What are the causes of rescission or annulment of a partition?

A partition may be rescinded or annulled for the same causes as contracts. (Article 1097)
a. Causes for annulment: Article 1390
b. Causes for rescission: Article 1381 and Article 1098 (lesion)
33. When may a partition, judicial or extra-judicial be rescinded on account of lesion?
When any one of the co-heirs received things whose value of less, by at least one-fourth,
than the share to which he is entitled, considering the value of the things at the time they
were adjudicated. (Article 1098)
Lesion is economic injury where the party receives less than he is entitled to receive.
Note the slight variation from pars. 1 & 2 of Article 1381, which specifies more than onefourth, while Article 1098, provides for a minimum lesion for rescission, which is one-fourth
(25%). In cases of partition of the inheritance, Article 1098 applies.
34. What is the exception to the rule that partition can be impugned on the ground of lesion?
A partition made by the testator himself is not subject to rescission even in case of lesion in
the amount specified in Article 1098. (Article 1099)
Exceptions:
a. Impairment of the legitime (Even if lesion is less than one-fourth)
b. Mistake by the testator or vitiation of his intent. (Article 1099)
35. What is the prescriptive period for the action of rescission on account of lesion?
Four years from the time the partition was made (Article 1100). This is the same period laid
down in the general rule of rescission of contracts (Article 1389)
36. What are the options of the heir who is sued for rescission?
a. To have a re-partition [In which case, the old partition will not be disturbed in its
entirety but it shall only be between those who have been prejudiced and those who
have received more than their just share.], or
b. To indemnify the co-heir the amount of the lesion suffered, by payment in cash or by
the delivery of a thing in the same kind and quality as that awarded to the plaintiff
(Article 1101).
Note that it is the co-heir who is sued for rescission who has the option.
If the property given to the heir demanding the rescission consists of real property and said
heir has alienated in whole or a considerable part of the real property, he cannot maintain an
action for rescission on the ground of lesion, but he shall have a right to be indemnified in
cash. (Article 1102)
37. What is the effect if there is a preterition of any of the compulsory heirs in the partition of the
decedents estate?
A partition made with preterition of any of the compulsory heirs shall not be rescinded, unless
it is proved that there was bad faith or fraud on the part of the other persons interested; but
the latter shall be proportionately obliged to pay to the person omitted the share which
belongs to him (Article 1104)

38. What is the effect if the partition includes a person believed to be an heir, but who is not?
A partition, which includes a person, believed to be an heir, but who is not, shall be void only
with respect to such person. (Article 1105)

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