WHEN AND HOW CAN A PERSON RENOUNCE HIS INHERITANCE?

(uson vs del Rosario)

-future contract cannot be be subject of a contract nor can it be renounced, therefore the only instance
where-in a person may renounce his inheritance will be upon the transmission upon the death of the
testator.
CAN AN HEIR SELL OR ENTER INTO A COMPROMISE INVOLVING HIS HEREDITARY RIGHTS? (de borja vs
vda de borja)
-since a hereditary share in a decedents estate is transmitted or vested immediately from the moment
of the death of such predecessor in interest, there is no legal bar to a successor disposing of his or her
hereditary share immediately after such death, even if the actual extent of such share is not determined
until the subsequent liquidation of the estate.
WHAT KIND(S) OF LEGAL ACTION SURVIVE(S) THE DEATH OF A PARTY? (bonilla vs barcena)
-heirs acquire an interest in the undivided estate owned by the decedent from the moment of his death.
By law the rights to the succession of a deceased person are transmitted to his heir from the moment of
his death which includes all property, rights, and obligations.
WHAT ARE THE RIGHTS OF AN HEIR AND THE POWERS OF AN ADMINISTRATOR PENDING THE
SETTLEMENT OF AN ESTATE? (go ong vs CA)
-An executor or administrator shall maintain in tenable repair the houses and other structures and
fences belonging to the estate, and deliver the same in such repair to the heirs or devisees when
directed so to do by the court.
WHEN CAN AN HEIR EXERCISE RIGHTS OF OWNERSHIP OVER PROPERTIES BELONGING TO THE ESTATE?
(butte vs manuel uy)
-from the moment of death of the decedent, the heir acquires ownership of the properties left by the
testator
HOW DO YOU DETERMINE THE INTENT OF THE TESTATOR? (parish priest of victoria tarlac vs rigor)
-when the intention is clearly and precisely expressed, any interpretation must be in accord with the
plain and literal meaning of his words, except when it my clearly appear that his intention was different
from that literally expressed. The testators intention is to ascertained from the words of the will, taking
into consideration the circumstance under which it was made.
DOES A PARALYTIC HAVE TESTAMENTARY CAPACITY? (bagtas vs paguio)
-a paralytic can have testamentary capacity provided that his mind and memory sufficiently sound to
enable him to know and understand the business in which he was engaged at the time when he
executed his will.

Nature of the estate, proper objects of his bounty, and character of the testamentary act is the
important gauge regardless if said testator is sickly.

HOW CAN YOU PROVE THAT THE LANGUAGE USED IS KNOWN AND UNDERSTOOD BY THE TESTATOR?
(surazo vs honrado)
-article 804 states that every will must be executed in a language or dialect known to the testator, hence
if the testator was filipino and it was well known that he does not understand english, if the will that
was created was in english and the testator cannot understand said language then the will is void.
HOW CAN ONE SIGN FOR OR IN BEHALF OF A TESTATOR? (balonan vs abellana)
-where a testator does not know how or is unable for any reason, to sign the will himself, it shall be
signed in the following manner. The witness that signed in behalf of the testator must clearly state that
he was signing in behalf of the testator and it was signed at her express direction.
WHAT DO YOU MEAN BY IN THE PRESENCE OF? (nera vs rimando)
-the testator must be able to see the witness attest the will, or their relative position to him at the time
they are subscribing their names as witnesses must be such that he may see them, if he thinks it
proper to do so, and satisfy himself by actual view that are witnessing the very paper he signed to be
his last will.
WHAT ARE THE EXCUSABLE DEFECTS IN A WILL? (cargo vs cargo)
-if page numbering is not made in the will however the attestation clause shows how many pages there
are in the will such is excusable
-if the will only consist of 2 pages in which the second page is the attestation clause and that the maker
of the will did not signed the 1st page however made the signature on the bottom of the attestation
clause said is excusable
-inadvertent failure of one witness to affix signature to one of the pages due to simultaneous lifting of
two pages in the course of signing
WHAT IS THE ESSENCE OF THE SIGNING ON THE LEFT MARGIN AND THE PAGINATION REQUIREMENT?
(abangan vs abangan)
-the main reason why signatures and page numbering is required is to avoid the substitution of any
pages in the will, this is a safeguard on the will that it will not be tampered with against possible
interpolation or omission
WHAT ARE THE CONTENTS OF THE ATTESTATION CLAUSE? (azeula vs CA)
-the number of pages of the said will

-the fact that the testator signed the will and every page thereof
-that the witnesses witnessed and signed the will and all the pages thereof
WHAT ARE NON EXCUSABLE LAPSES? (cruz vs villasor) (Garcia vs gatchalian)
-if the defects of the attestation clause goes into the very essence of the clause itself or consist in the
omission of one, some, or all of the essential facts, and such omission cannot be cured by an
examination of the will itself, the defect is substantial in character, as a consequence of the will is
invalidated. In term it is a non-excusable lapse
WHEN DO YOU APPLY THE DOCTRINE OF LIBERAL INTERPRETATION AS PER ARTICLE 809? (caponongnoble vs abada)
-in the absence of bad faith, forgery, fraud, or undue influence, defects and imperfections in the form of
the attestation or in the language used therein shall not render the will invalid if it is proved that the will
was in fact executed and attested in substantial compliance.
MAY A HOLOGRAPHIC WILL BE PROBATED UPON THE TESTIMONY OF WITNESS? (gan vs yap)
-no a holographic will cannot be probated alone on the testimony of a witness since the only guarantee
of authenticity is the hand writing of the testator himself
CAN A MERE PHOTOCOPY BE ADMITTED TO PROBATE? (rodelas vs aranza)
-provided that the original will has been lost, the a photocopy can be admitted in court, since the
authenticity of the handwriting can be determined thru the Xerox copy by the probate court
HOW MANY WITNESSES DO YOU REALLY NEED? (codoy vs calugay)
-3 witnesses for a notarial will excluding the notary public
-no witness is needed upon making of the said will, however 1 witness for a holographic will upon
probate is needed if not contested 3 witnesses if contested
WHAT MUST INSTRUMENTAL WITNESSES POSSESS TO BE CONSIDERED AS CREDIBLE? (Gonzales vs CA)
-a credible witness must have all the qualifications specified by the civil code.
a.) be of sound mind
b.) atleast 18yrs old
c.) able to read and write
d.) not deaf, blind, or dumb
e.) domiciled in the philippines

f.) not convicted of falsification, perjury, or false testimony

ARE THERE REALLY OTHER WAYS OF REVOKING A WIL? (Harrison vs bird SC alabama)
-the will can be revoked by 3 ways
a.) by implication of law
b.) by virtue of an overt act (eg. burning, tearing, cancelling, or obliterating)
c.) by virtue of revoking will or codicil
WHEN IS CAUSE CONSIDERED TO BE FALSE TO INVALIDATE A WILL? (Austria vs reyes)
(Austria vs reyes)
-it is that of the dependent relative revocation.
-if the revocation was based on false cause the prior will if there was one made would be taken in effect
WHAT ARE THE EFFECTS OF A WILL AFTER IT HAS BEEN ADMITTED TO PROBATE? (galanosa vs archangel)
-once a decree of probate becomes final in accordance with the rules of procedure it becomes res
juicata (final and executor)
CAN A PROBATE COURT RULE ON ISSUES INVOLVING OWNERSHIP? (jimenez vs IAC)
-no the probate court cannot rule with regard to issues involving ownership
-the probate court can only inquire into extrinsic validity of testamentary provisions which include the
following:
a.) that the testator was of sound and disposing mind
b.) that his consent was not vitiated
c.) that the will was signed by the required number of witnesses
d.) that the will is genuine
WHEN IS LOVE OR AFFECTION CONSIDERED AS UNDUE INFLUENCE? (coso vs Fernandez-deza)
-love or affection is considered as undue influence if it is the kind that overpowers and subjugates the
mind of the testator as to destroy his free agency and make him express the will of another, rather than
his own.
CAN AN ADOPTED CHILD BE PRETERITED? (acain vs IAC)

-adoption gives the adopted person the same rights and duties as if he were the legitimate child of the
adopter. Therefore an adopted child can be preterited in the will
WHAT ARE THE EFFECTS OF PRETERITION? (solano vs CA)
-it annuls the institution of heirs
-the devises and legacies are valid insofar as they are not inofficious
-if the omitted compulsory heir should die before the testator, the institution shall be effectual, without
prejudice to the right of representation.
WHAT IS THE DIFFERENCE BETWEEN TRUST (CESTI QUE TRUST) AND A FIDEICOMMISSARY? (vda. De
mapa vs CA)
-none there is no difference both are a way of substitution by virtue of which a treutee is instituted with
the obligation to preserve and transmit to another the whole or part of the inheritance.
WHAT IS THE MODAL INSTITUTION AND WHAT ARE ITS EFFECTS? (rabadilla vs CA)
-there is a modal institution if the testator attaches to an institution of an heir or a devisee a statement
of the object or the purpose or application of the property left by the testator or a charge imposed by
the testator upon the heir
-the modal institution is not a condition but when and if it is violated, the instituted heir is supposed to
forfeit the inheritance, to return indeed anything he may have received together with the fruits and
interest, if he should disregard this obligation
HOW DO YOU ESTABLISH THE FILIATION OF ILLEGITIMATE CHILDREN? (noble vs noble)
-illegitimate children can now establish their filiation in the same way and on the same evidence as
legitimate children
a.) record of birth certificate in the civil registry or a final judgement
b.) an admission of legitimate filiation in a public document or private hand written instrument and
signed by the parent concerned
CAN A DIVORCED SPOUSE INHERIT FROM A FILIPINA DECEDENT? (van dorn vs romillo)
-pursuant to the national law of the husband, he does not have any standing in court to pursue any
conjugal assets of the marriage. By his own action, such American husband should not continue to be an
heir with the possible rights to the conjugal property. The Filipina should not be discriminated against in
her own country if the ends of justice are to be served.
WHEN CAN PARENTS BE CONSIDERED HEIRS? (baritua vs CA)

-the only instance where-in a parent can be considered as heir is when the testator dies without any
legitimate descendants
CAN A RESERVOR DISPOSE RESERVABLE PROPERTY BY AN ACT INTER VIVOS? (sines vs esparcia)
-the reservoir has legal title and dominion to the reservable property but subject to a resolutory
condition. 1.) the death of the ascendant obliged to a reserve and 2.) the survival, at the time of his
death, of relatives within the third degree belonging to the line from which the property came.
-in the case at bar the reservoir cannot dispose said reservable property for it is subject to a resolutory
condition.
HOW DO YOU DETERMINE WHENEVER THE FIRST TRANSFER FOR THE PURPOSE OF RESERVA TRONCAL IS
GRATUITOUS? (chua vs CA)
-transfer is gratuitous when the recipient does not give anything in return. As long as the transmission of
the property to the heirs is free from any condition imposed by the deceased himself and the property is
given out of pure generosity, it is gratuitous
CAN A RESERVOR DISPOSE RESERVABLE PROPERTY BY AN ACT MORTIS CAUSA? (florentino vs florentino)
-the property does not form part of the reservor therefore he cannot dispose said reservable property
by an act mortis causa, the only instance where-in said is allowed is when it becomes his property when
all the relatives up to the 3rd degree of his descendant are dead; in which case the said reservable
property looses such character. By that time alone the reservoir can dispose the reservable property by
mortis causa.
HOW DOES RESERVEES INHERIT? (padura vs baldovino) (de papa vs Camacho)
ARE ALL DONATIONS SUBJECT TO COLLATION? (mateo vs lagua)
-no, not all donations are subject to collation if the donor should have expressly provided for it, or if the
donee should repudiate the inheritance
WHICH IS THE PREFERRED MODE OF SETTLING AN ESTATE? (Roberts vs Leonidas)
-general rule if the decedent dies testate then testate proceeding will apply in the distribution of the
estate, if on the other hand that the decedent died intestate, then intestate proceeding will follow;
intestacy is governed by the rules of proximity and equal division.
HOW DO YOU APPLY THE RULES OF PROXIMITY? (de los santos vs dela cruz)
-the near excludes the far
WHO INHERITS AS BETWEEN AN ILLEGITIMATE CHILD AND LEGITIMATE BROTHER? (del prado vs santos)

-illegitimate child inherits from his parents rather that a legitimate brother of the testator
-art 99 provides that an illegitimate child has not right to inherit ab intestado from the legitimate
children and relatives of his father or month; nor shall such child or relatives inherit the same manner
from the illegitimate child.
WHO CAN BE CONSIDERED PERSONS INTERESTED IN THE ESTATE? (cacho vs udan)
-for one to be considered as a person interested in the estate, said person must have a pecuniary
interest in the distribution of the hereditary estate, either because he is a beneficiary, by will or
beneficiary by law, or because he has a money claim which shall suirvive the death of the testator.
DOES THE APPLICATION OF IRON CURTAIN WORK BOTH WAYS? (corpus vs corpus)
-no it does not; the legitimate heirs can only be able to inherit from their legitimate family, while the
illegitimate heirs can only be able to inherit for their illegitimate family.
DOES ARTICLE 992 PROHIBIT THE EXERCISE OF THE RIGHT OF REPRESENTATION? (diaz vs IAC)
-yes art 992 prohibits the exercise of right of representation since an illegitimate heir cannot inherit
from a legitimate decedent
WHAT IS THE RATIONALE OF ARTICLE 992? (vda de crisologo vs CA)
-art 992 provides a barrier or an iron curtain for both the legitimate & illegitimate families, this is done
so because said parties are mostly looking down in each other that commotion arises often. The barrier
serves as a defence of each party that the other cannot inherit from them.
HOW DO YOU RECONCILE ARTICLE 892 AND 996? (santillon vs Miranda)
-art 892 is testamentary succession while art 996 is intestate succession, the law leaves it to each of the
spouses to deciide, whetere his or her only child shall get more that his or her survivor
IS A DAUGHTER IN LAW A COMPULSORY HEIR? (rosales vs rosales)
-no a daughter is not considered a compulsory heir since she is not one of those mentioned under art.
887 of the civil code
IS LOVE AND AFFECTION CONSIDERED AS INCAPACITY? (nepomuceno vs ca)
-in the case at bar since the marriage between decedent & petitioner was that of cohabitation then the
love & affection is considered as incapacity for there was bad faith
-art 739 also states that donation between those that committed adultery and concubinage is void
WHAT PROPERTIES ARE SUBJECT TO COLLATION? (vizconde vs CA)
-those properties that are subject to collation are as follows

a.) any property or right received by gratuitous title during the testators lifetime
b.) all that have been received from the decedent during his lifetime
c.) all that their parents would have brought to collation if alive
DOES A PARTITION REQUIRE COURT APPROVAL? (sanchez vs CA)
-no partition does not generally require court approval. Extra judicial partition is allowed in our
jurisprudence as long as said compromise agreement of partition has been agreed and there is meeting
of the minds of said parties here-in.
WHAT IS THE EFFECT OF PARTITION WHEN ONE HEIR IS EXCLUDED? (viado vs CA)
-the partition made with preterition will not be rescinded, unless it be proved that there was bad faith
or fraud in part of the part of the other person interested, but the latter shall be proportionately obliged
to pay the person omiited the share which belong to him.
WHAT IS THE EFFECT OF A MISTAKE IN THE PARTITION OF AN ESTATE? (delos santos vs delacruz)
-the partition shall remain valid but void with respect to the provisions in favour of such person that the
mistake was made on

Partition cannot be demanded

when:
1. Expressly Prohibited by testator for a period not more than 20 years
2. Co-heirs Agreed that estate not be divided for period not more than 10 years, renewable for
another 10 yrs
3. Prohibited by law
4. To partition estate would render it Unserviceable for use for which it was intended

What is collation?
It is the process of adding the value of thing donated to the net value of hereditary estate. To collate
is to bring back or return to the hereditary mass, in fact or fiction, property which came from the
estate of the decedent, during his lifetime, but which the law considers as an advance from the
inheritance. Collation is applicable to both donations to compulsory heirs and donations to strangers.

General Rule:
Compulsory heirs are obliged to collate.
Exception:
1. When testator should have so expressly provided;
2. When compulsory heir repudiates his inheritance

What are the properties that are to be

collated?
1. Any property/right received by gratuitous title during testators lifetime
2. All that may have been received from decedent during his lifetime
3. All that their parents have brought to collation if alive

What are the properties not subject to

collation?
1. Absolutely no collation expenses for support, education (elementary and secondary only),
medical attendance, even in extra-ordinary illness, apprenticeship, ordinary equipment or customary
gifts.
2. Generally not imputed to legitime:
a. Expenses incurred by parents in giving their children professional, vocational, or other career
unless the parents so provide, or unless they impair the legitime.
b. Wedding gifts by parents and ascendants consisting of jewelry, clothing and outfit except when
they exceed 1/10 of the sum disposable by will.
Note: Only the value of the thing donated shall be brought to collation. This value must be the value
of the thing at the time of the donation.

REPUDIATION

What are the ways by which the

repudiation of the inheritance, legacy or
devise may be made?
1. By means of a public instrument
2. By means of an authentic instrument
3. By means of a petition presented to the court having jurisdiction over the testamentary or intestate
proceedings.

What is the effect of repudiation if an

heir is both a testate and legal heir?
If an heir is both a testate and legal heir, the repudiation of the inheritance as a testate heir, he is
understood to have repudiated in both capacities. However, should he repudiate as a legal heir,
without knowledge of being a testate heir, he may still accept the inheritance as a testate heir.

What is the iron-curtain rule?

Art. 992 of the Civil Code provides that illegitimate children cannot inherit ab intestato from the
legitimate children and relatives of his mother or father. Legitimate children and relatives cannot
inherit in the same way from the illegitimate child.
Note: The iron curtain rule only applies in intestate succession. There is a barrier recognized by law
between the legitimate relatives and the illegitimate child so that one cannot inherit from the other
and vice-versa.
Rationale: The law presumes the existence of antagonism between the illegitimate child and the
legitimate relatives of his parents

What is right of representation?

Right created by fiction of law where 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 could
have inherited.

What is the effect of representation?

Whenever there is succession by representation, the division of the estate shall be made per stirpes,
in such manner that the representative or representatives shall not inherit more than what the person
they represent would inherit, if he were living or could inherit. (Art. 974)
Note: Per stirpes means inheritance by group, all those within the group inheriting in equal shares.
Representation is superior to accretion.

When does right of representation

arise?
Representation may arise either because of:
1. death,
2. incapacity, or
3. disinheritance.

When is right or representation not

available?
1. As to compulsory heirs: In case of repudiation, the one who repudiates his inheritance cannot be
represented. Their own heirs inherit in their own right.
2. As to voluntary heirs:
Voluntary heirs, legatees and devisees who:
a. Predecease the testator; or
b. Renounce the inheritance cannot be represented by their own heirs, with respect to their
supposed inheritance.

Does right of representation apply in the collateral line?

Right of representation takes place only in favor of children of brothers or sisters, whether full or half
blood and only if they concur with at least one uncle or aunt.
Note: This rule applies only when the decedent does not have descendants.

Does the right of representation apply

to adopted children?
No. The right of representation cannot be invoked by adopted children because they cannot
represent their adopting parents to the inheritance of the latters parents.
Reason: The law does not create any relationship between the adopted child and the relatives of the
adopting parents, not even to the biological or legitimate children of the adopting parents.
Note: Under R.A. 8552 or the Domestic Adoption Law, the adopted child and the adopting parents
have reciprocal successional rights.

What is the rule on equal division of

lines?
General Rule: Intestate heirs equal in degree inherit in equal shares.
Exception:
1. In the ascending line, the rule of division by line is to the maternal line and to the paternal
line, and within each line, the division is per capita.
2. In the collateral line, the full-blood brothers/sisters will get double that of the half-blood.
3. The division in representation, where division is per stirpes the representative divide only the
share pertaining to the person represented.
Note: The share of an illegitimate child is of the share of a legitimate one. Full blood brother or
sister is entitled to double the share of half brother or sister (Art. 1006). Compulsory heirs shall, in no
case, inherit ab intesto less than their legitime as provided in testamentary succession.

What is legal or intestate

succession?
Legal or intestate succession is that which is effected by operation of law in default of a will. It is
legal because it takes place by operation of law; it is intestate because it takes place in the absence
or in default of a last will of the decedent. (Jurado, p. 377)

What is the formula for application of

inheritance?
The following are applied successively:
1. Institution of an heir (Bequest, in case of legacies or devises)
2. Substitution, if proper
3. Representation, if applicable
4. Accretion, if applicable
5. Intestacy, if all of The above are not applicable

Can there be a valid will which does not

institute an heir?
Yes, a will is valid even if it contains only a provision for disinheritance or if only legacies and
devises are contained in the will.

Who are intestate heirs?

1. Legitimate children or descendants
2. Illegitimate children or descendants

3. Legitimate parents or ascendants

4. Illegitimate parents
5. Surviving spouse
6. Brothers and sisters, nephews and nieces
7. Other collateral relatives up to the 5th degree
8. The State.

What is probate?
It is a special proceeding mandatorily required for the purpose of establishing the validity of a will.
No will shall pass either real or personal property unless it is proved and allowed in accordance with
the Rules of Court. (Art. 838)
Note: Probate does not deal with the intrinsic validity of the testamentary provisions. Even if only one
heir has been instituted, there must still be a judicial order of adjudication. Even if a will has already
been probated, if later on a subsequent will is discovered, the latter may still be presented for
probate, as long as two wills can be reconciled.

Does prescription apply to probate of

wills?
The statute of limitations is not applicable to probate of wills (Imprescriptibility of Probate)
Rationale: Probate proceedings are not established in the interest of the surviving heirs, but
primarily for the protection of the expressed wishes of the testator.

What are the characteristics of a

probate proceeding?
1. Special proceeding;
2. Proceeding in rem;

3. Not contentious litigation;

4. Mandatory;
5. Imprescriptible;

When the disposition is subject to

a term, what should be done by
the instituted heirs or legal heirs
so that they can enjoy
possession of the property?
If the disposition is subject to a:
1. Suspensive term The legal heirs can enjoy possession of the property until the expiration of the
period but they must put up a bond (caucion muciana) in order to protect the right of the instituted
heir.
2. Resolutory term The legal heirs can enjoy possession of the property but when the term arrives,
he must give it to the legal heirs. The instituted heir does not have to file a bond.

What is fideicommissary
substitution?
Also known as indirect substitution, it is a substitution by virtue of which the fiduciary or first heir
instituted is entrusted with the obligation to preserve and transmit to a second heir the whole or part
of the inheritance.
Note: For its validity and effectivity, such substitution does not go beyond one degree from the heir
originally substituted and provided further, that the fiduciary or first heir and the second heir are living
at the time of death of the testator.

What are the conditions for a valid

fideicommissary substitution?
1. That the institution does not go beyond one degree from the heir originally instituted;
2. That the substitution be expressly made;
3. That both the fiduciary and beneficiary be living at the time of the testators death;
4. That it should be imposed on the free portion and not on the legitime.

What are the elements/requisites of

fideicommissary substitution?
1. There must be a first heir or fiduciary;
2. An absolute obligation is imposed upon the fiduciary to preserve and to transmit to a second heir
the property at a given time;
3. There is a second heir who must be one degree from the first heir;
4. The first and second heir must both be living and qualified at the time of the death of the testator.

What is the effect if the fideicommissary

predeceases the fiduciary?
If the fideicommissary predeceases the fiduciary, but survives the testator, his rights pass to his own
heirs.

What is the effect of the nullity of the

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

What is reserva troncal?

Reserva troncal The ascendant who inherits from his descendant any property which the latter
may have acquired by gratuitous title from another ascendant, or a brother or sister, is obliged to
reserve such property as he may have acquired by operation of law for the benefit of relatives who
are within the third degree and who belong to the line from which said property came. (Art. 891)
Purpose:
To prevent persons who are outsiders to the family from acquiring, by chance or accident, property
which otherwise would have remained with the said family. In short, to put back the property to the
line from which it originally came.
Note: Other terms used to refer to reserva troncal:
1. Lineal
2. Familiar
3. Extraordinaria
4. Semi-troncal
5. Pseudo-troncal

What are the requisites that must exist

in order that a property may be
impressed with a reservable character?
1. That the property was acquired by a descendant (called praepositus or propositus) from an
ascendant or from a brother or sister by gratuitous title when the recipient does not give anything in
return;

2. That said descendant (praepositus) died without an issue;

3. That the same property (called reserva) is inherited by another ascendant (called reservista) by
operation of law (either through intestate or compulsory succession) from the praepositus; and
4. That there are living relatives within the third degree counted from the praepositus and belonging
to the same line from where the property originally came (called reservatarios). (Art. 891; Chua v.
CFI of Negros Occidental, Branch V, 78 SCRA 412; Rabuya, Civil Law Reviewer, pp. 634-635)

Does the reservista own the reservable

property?
The reservista is an absolute or full owner, subject to a resolutory condition. If the resolutory
condition is fulfilled, the reservistas ownership of the property is terminated.
Resolutory condition: If at the time of the reservistas death, there should still exist relatives within
the third degree (reservatarios) of the propositus and belonging to the line from which the property
came.
Note: The reservable property is not part of the estate of the reservista.

When does the reservatario acquire the

right over the reservable property?
Upon the death of the reservista, the reservatario nearest the decedent propositus becomes,
automatically and by operation of law, the absolute owner of the reservable property. (Cano v.
Director of Lands)

Is there right of representation in

reserva troncal?
Yes. There is representation in reserva troncal, but the representative must also be within the third
degree from the propositus. (Florentino v. Florentino)

Who are the compulsory heirs in

the direct line?
a. Legitimate children and descendants with respect to their legitimate parents or ascendants;
b. Legitimate parents ot ascendants, with respect to their legitimate children and descendants;
c. Illegitimate children (Recognized)
d. The father or mother of illegitimate children
Note: The surviving spouse is not included.

Is an adopted child a compulsory heir?

Legitimate children includes adopted children and legitimated children. Under R.A. 8552 or the
Domestic Adoption Law adopted children have the same rights granted to the legitimate children.
Adopted children, for all intents and purposes are considered as legitimate children. Hence, the
adopted children can already exclude legitimate parents/ascendants.

What is preterition?
Preterition is the omission in testators will of one, some or all of the compulsory heirs in the direct
line, whether living at the time of execution of the will or born after the death of the testator. (Art.
854)

What does born after the death of the

testator mean?
It simply means that the omitted heir must already be conceived at the time of death of the testator
but was born only after the death of the testator.

What are the requisites of preterition?

1. There is a total omission in the inheritance;
2. The person omitted is a compulsory heir in the direct line;
3. The omitted compulsory heir must survive the testator, or in case the compulsory heir
predeceased the testator, there is a right of representation;
4. Nothing must have been received by the heir by gratuitous title.

What are the effects of preterition?

1. Preterition annuls the institution of heirs;
2. Devices and legacies are valid insofar as they are not inofficious;
3. If the omitted compulsory heir dies before testator, institution shall be effectual, without prejudice
to right of representation

What is the effect of preterition on the

will itself?
General Rule: The effect of annulling the institution of heirs will be, necessarily, the opening of a total
intestacy except that proper legacies and devises must be respected. Here, the will is not abrogated.
Exception: If the will contains a universal institution of heirs to the entire inheritance of the testator,
the will is totally abrogated.
Reason: The nullification of such institution of the universal heirs without any other testamentary
disposition in the will amounts to a declaration that nothing at all was written.

What are the rights of the preterited

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 devises and legacies.

HOLOGRAPHIC WILLS
What are the formalities required in the
execution of holographic will?
1. Signed by testator himself
2. Executed in a language or dialect known to him (Art. 804)
3. Entirely written
4. Dated;
Note: In case of any insertion, cancellation, erasure or alteration in a holographic will, the testator
must authenticate the same by his full signature. (Art. 814)

What are the effects of insertions or

interpolations made by a 3rd person?
General Rules:
When a number of erasures, corrections, cancellation, or insertions are made by the testator in the
will but the same have not been noted or authenticated with his full signature, only the particular
words erased, corrected, altered will be invalidated, not the entirety of the will.
Exception:
1. Where the change affects the essence of the will of the testator; Note: When the holographic will
had only one substantial provision, which was altered by substituting the original heir with another,
and the same did not carry the requisite full signature of the testator, the entirety of the will is voided
or revoked.

Reason: What was cancelled here was the very essence of the will; it amounted to the revocation of
the will. Therefore, neither the altered text nor the original unaltered text can be given effect. (Kalaw
v. Relova, G.R. No. L-40207, Sept. 28, 1984)
2. Where the alteration affects the date of the will or the signature of the testator.
3. If the words written by a 3rd person were contemporaneous with the execution of the will, even
though authenticated by the testator, the entire will is void for violation of the requisite that the
holographic will must be entirely in the testators handwriting.

NOTARIAL WILLS
What are the formalities in the
execution of a notarial will?
1. In Writing;
2. Executed in a language or dialect known to the testator;
3. Subscribed by the testator himself or by the testators name written by some other person in his
presence and under his express direction at the end thereof, at the presence of witnesses;
4. Attested to and subscribed by at least 3 credible witnesses in the presence of the testator and of
one another;
5. Each and every Page must be signed by the testator or by the person requested by him to write
his name, and by instrumental witnesses in the presence of each other, on the left margin;
6. Each and every page of the will must be Numbered correlatively in letters placed on the upper
part of each page;
7. Must contain an Attestation clause, stating the following:
a. The number of pages of the will,
b. Fact that the testator signed the will and every page in the presence of witnesses, or caused
some other person to write his name under his express direction, c. All witnesses signed the will and
every page thereof in the presence of the testator and of one another;
8. Must be acknowledged before a Notary public.

What are the special requirements if

the testator is deaf or mute?
a. If the testator is able to read, he must personally read the will; or
b. If the testator is unable to read, he must designate two persons to read it and communicate to
him, in some practicable manner, the contents thereof. (Art. 807; see Rabuya, Civil Law Reviewer, p.
559)
Note: The law does not require that the persons reading and communicating the contents of the will
be the instrumental witnesses. (id., p. 560)

What are the special requirements if

the testator is blind?
The will shall be read to him twice, once by one of the subscribing witnesses, and another time by
the notary public before whom the will is acknowledged. (Art. 808; id.)
Note: Art. 808 applies not only to blind testators but also to those who, for one reason or another,
are incapable of reading their wills, either because of poor or defective eye sight or because of
illiteracy. (id.)

WITNESSES IN WILLS
What are the qualifications of
witnesses?
Witnesses to a will must be:
1. Of Sound mind.
2. At least 18 years of age.
3. Able to read and write
4. Not Blind, deaf or dumb

5. Not have been Convicted by final judgment of falsification of a document, perjury or false
testimony.
6. Domiciled in the Philippines

Will the beneficial interest of a witness

in a will disqualify him as such?
Beneficial interest in a notarial will does not disqualify one as a subscribing witness, but it may, or
may not nullify the devise or legacy given to the said witness. A witness who attests the execution of
a will, and to whom, or to whose spouse, parent or child, or anyone claiming the right of said
witness, spouse, parent or child, a devise or legacy given, shall be void, unless there are 3 other
competent witnesses to such will. (Art. 823 NCC)

Note: If the witness is instituted as heir, not as devisee or legatee, the rule would still apply, because
undue influence or pressure on the part of the attesting witness would still be present.

Creditors of the testator are not disqualified to be a witness to the will.

FORMAL VALIDITY RULES

What law governs the forms and
solemnities of wills?
It is the law of the country where the will was executed that governs the form and solemnities of
wills. (Art. 17, 1st paragraph; Art. 815)

What are the effects of a will executed

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

What are the effects of a will executed

by an alien in the Philippines?
It shall produce the same effect as if it was executed in the Philippines if it is executed in accordance
with the law of the country where he is a citizen or subject, and which might be proved and allowed
by the law of his own country. (Art. 817)

Is a joint will executed by a Filipino in a

foreign country valid?
No. The same holds true even if it is authorized by the law of the country where the joint will was
executed. (Art. 819)

TESTAMENTARY CAPACITY
AND INTENT
Who can make a will?
All persons who are not expressly prohibited by law may make a will. (Art. 796) The law presumes
capacity to make a will; hence, in order that a person may be disqualified to make one, he must be
expressly prohibited by law.

Note: The ability as well as the power to make a will must be present at the time of the execution of
the will. Supervening incapacity does not invalidate an effective will, nor is the will by an incapable
person validated by the supervening of capacity. (Art. 801)

What are the requisites of testamentary

capacity?
1. At least 18 years of age; and
2. Of sound mind
Note: It is not necessary that the testator be in full possession of all his reasoning faculties, or that
his mind be wholly unbroken, unimpaired, or unshattered by disease, injury or other cause. It shall
be sufficient if the testator was able at the time of making the will to know the:
a. nature of the estate to be disposed of;
b. proper objects of his bounty; and
c. character of the testamentary act.

Who are those persons expressly

prohibited by law to make a will?
1. Persons of either sex under 18 years of age (Art. 797)
2. Persons who are not of sound mind (Art. 798)

Is a person suffering from civil

interdiction qualified to make a will?
Yes. He is deprived only of the power to dispose of his properties through acts inter vivos but not
through acts mortis causa. (Art. 34, Revised Penal Code; Rabuya, Civil Law Reviewer, p. 527)

SUCCESSION SETTLEMENT
OF ESTATE
In Dy Yieng Seangio, et al. v. Hon. Amor Reyes, et al., G.R. No. 140371-72, November 27, 2006,
there was a petition for the probate of an alleged holographic will which was denominated as
Kasulatan sa pag-aalis ng mana. The private respondents moved for the dismissal of the probate
proceedings primarily on the ground that the document purporting to be the holographic will of
Segundo did not contain any disposition of the estate of the deceased and thus did not meet the
definition of a will under Article 783 of the Civil Code. According to private respondents, the will only
showed an alleged act of disinheritance by the decedent of his eldest son, Alfredo, and nothing else;
that all other compulsory heirs were not named nor instituted as heir, devisee or legatee, hence
there was preterition which would result to intestacy. Such being the case, private respondents
maintained that while procedurally the court is called upon to rule only on the extrinsic validity of the
will, it is not barred from delving into the intrinsic validity of the same, and ordering the dismissal of
the petition for probate when on the face of the will it is clear that it contains no testamentary
disposition of the property of the decedent.
Petitioners filed their opposition to the motion to dismiss contending that: (1) generally, the
authority of the probate court is limited only to a determination of the extrinsic validity of the will; (2)
private respondents question the intrinsic and not the extrinsic validity of the will; (3) disinheritance
constitutes a disposition of the estate of a decedent; and (4) the rule on preterition did not apply
because Segundos will did not constitute a universal heir or heirs to the exclusion of one or more
compulsory heirs.
The RTC issued an order dismissing the petition for probate proceedings, hence, a petition
for certiorari was filed where petitioners argued as follows:
First, respondent judge did not comply with Sections 3 and 4 of the Rule 76 of the Rules of
Court which respectively mandate the court to: (a) fix the time and place for proving the will when all
concerned may appear to contest the allowance thereof, and cause notice of such time and place to
be published three weeks successively previous to the appointed time in a newspaper of general
circulation; and (b) cause the mailing of said notice to the heirs, legatee and devisees of the testator
Segundo;
Second, the holographic will does not contain any institution of an heir, but rather, as its title
clearly states, Kasulatan ng Pag-alis ng Mana, simply contains a disinheritance of a compulsory heir.
Thus, there is no preterition in the decedents will and the holographic will on its face is not
intrinsically void;
Third, the testator intended all his compulsory heirs, petitioners and private respondents
alike, with the sole exception of Alfredo, to inherit his estate. None of the compulsory heirs in the
direct line of Segundo were preterited in the holographic will since there was no institution of an heir;

Fourth, as it clearly appears from the face of the holographic will that it is both intrinsically
and extrinsically valid, respondent judge was mandated to proceed with the hearing of the testate
case; and,
Lastly, the continuation of the proceedings in the intestate case will work injustice to
petitioners, and will render nugatory the disinheritance of Alfredo.
Now, the critical issue to be determined is whether the document executed by Segundo can
be considered as a holographic will.
Held: A holographic will, as provided under Article 810 of the Civil Code, must be entirely written,
dated, and signed by the hand of the testator himself. It is subject to no other form, and may be
made in or out of the Philippines, and need not be witnessed.
The document, although it may initially come across as a mere disinheritance instrument,
conforms to the formalities of a holographic will prescribed by law. It is written, dated and signed by
the hand of the testator himself. An intent to dispose mortis causa(Article 783) can be clearly
deduced from the terms of the instrument, and while it does not make an affirmative disposition of
the latters property, the disinheritance of the son nonetheless, is an act of disposition in itself. In
other words, the disinheritance results in the disposition of the property of the testator in favor of
those who would succeed in the absence of the eldest son.
Moreover, it is a fundamental principle that the intent or the will of the testator, expressed in
the form and within the limits prescribed by law, must be recognized as the supreme law in
succession. All rules of construction are designed to ascertain and give effect to that intention. It is
only when the intention of the testator is contrary to law, morals, or public policy that it cannot be
given effect.
Holographic wills, therefore, being usually prepared by one who is not learned in the law
should be construed more liberally than the ones drawn by an expert, taking into account the
circumstances surrounding the execution of the instrument and the intention of the testator. In this
regard, the document, even if captioned as Kasulatan ng Pag-alis ng Mana, was intended by the
testator to be his last testamentary act and was executed by him in accordance with law in the form
of a holographic will. Unless the will is probated, the disinheritance cannot be given effect.

Preterition in Succession
With regard to the issue on preterition, the compulsory heirs in the direct line were not preterited in
the will. It was the testators last expression to bequeath his estate to all his compulsory heirs, with
the sole exception of his eldest son. Also, he did not institute an heir to the exclusion of his other
compulsory heirs. The mere mention of the name of one of the petitioners in the document did not
operate to institute her as the universal heir. Her name was included plainly as a witness to the
altercation between testator and his son.

Considering that the questioned document is testators holographic will, and that the law favors
testacy over intestacy, the probate of the will cannot be dispensed with. Article 838 of the Civil Code
provides that no will shall pass either real or personal property unless it is proved and allowed in
accordance with the Rules of Court. Thus, unless the will is probated, the right of a person to
dispose of his property may be rendered nugatory. (Maninang v. CA, 114 SCRA 478).
In view of the foregoing, the trial court, therefore, should have allowed the holographic will to be
probated. It is settled that testate proceedings for the settlement of the estate of the decedent take
precedence over intestate proceedings for the same purpose. (Cuenco v. CA, 53 SCRA 360).

An Unprobated Will Does Not

Pass Any Right
In Heirs of Rosendo Lasam, etc. v. Umengan, G.R. No. 168156, December 6, 2006, (Callejo, J),
there was a complaint for unlawful detainer alleging that the plaintiffs were the owners of the
property. The defendants were allegedly possessing the property by mere tolerance. In their
defense, they alleged that they have a better right because they inherited it from their father,
showing a Last Will and Testament which has not yet been probated. The lower courts (MTC and
RTC) ruled that with the will they have a better right, but the CA reversed on the ground that the will
has not yet been probated, hence, it has no passed any right.
In this case, both parties were claiming to have better right of possession due to ownership.
One party claiming that there was conveyance; the other, having inherited it, hence, claiming a
better right of possession following the law on succession.
In upholding the CAs ruling the SC
Held: The Last Will and Testament cannot be relied upon to establish the right of possession
without having been probated, the said last will and testament could not be the source of any right.
Article 838 of the Civil Code is instructive:
Art. 838. No will shall pass either real or personal property unless it is proved
and allowed in accordance with the Rules of Court.
The testator himself may, during his lifetime, petition the court having
jurisdiction for the allowance of his will. In such case, the pertinent provisions of the
Rules of Court for the allowance of wills after the testators death shall govern.
The Supreme Court shall formulate such additional Rules of Court as may be
necessary for the allowance of wills on petitioner of the testator.
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.
In Caiza v. Court of Appeals, 335 Phil. 1107 (1997) it was ruled that: a will is essentially
ambulatory; at any time prior to the testators death, it may be changed or revoked; and until

admitted to probate, it has no effect whatever and no right can be claimed thereunder, the law being
quite explicit: No will shall pass either real or personal property unless it is proved and allowed in
accordance with the Rules of Court.
Before any will can have force or validity it must be probated. To probate a will means to
prove before some officer or tribunal, vested by law with authority for that purpose, that the
instrument offered to be proved is the last will and testament of the deceased person whose
testamentary act it is alleged to be, and that it has been executed, attested and published as
required by law, and that the testator was of sound and disposing mind. It is a proceedings to
establish the validity of the will. Moreover, the presentation of the will for probate is mandatory and is
a matter of public policy. (Guevara v. Guevara, 74 Phil. 479; Baluyot v. Pao, 163 Phil. 81 (1976);
Roberts v. Leonilas, 214 Phil. 30 (1984)).
Since the will has not yet been probated, it has no effect whatsoever and it cannot be the
basis of any claim of any right of possession. The defendants have a better right of possession
based on the deed of conveyances executed by the owner in favor of the children, the defendants
herein. (Heirs of Rolando Lasam v. Umengan, G.R. No. 168156, December 6, 2006).

J.L.T. Agro, Inc. v. Antonio

Balansag and Hilaria Cadayday,
G.R. No. 141882, March 11,
2005
Preterition.
In J.L.T. Agro, Inc. v. Antonio Balansag and Hilaria Cadayday, G.R. No. 141882, March 11,
2005 (Tinga, J), there was a conflict of property claims between two sets of heirs. It appears that
during his lifetime, Don Julian L. Teves (Don Julian) contracted marriage twice. First, with Antonia
Baena and second, with Milagros Donio Teves. In the first marriage, he had two children, Josefa and
Emilio. In the second marriage, he had four children, Maria, Jose, Milagros and Pedro, all surname
Teves. There was a property Lot No. 63 which was originally registered under the names of Julian
and Antonia (TCT 5203) forming part of their conjugal partnership. After Antonia died, Lot No. 63
was among the properties involved in an action for partition. The parties entered into a Compromise
Agreement which embodied the partition of all the properties of Don Julian. The Agreement showed
that a tract of land known as Hacienda Medalla Milagrosa was to be owned in common by Don
Julian and his two (2) children of the first marriage which would remain undivided during his lifetime.
The two children were given other properties. Lot No. 63 was retained by Don Julian.

Paragraph 13 of the Compromise Agreement, at the heart of the present dispute, lays down
the effect of the eventual death of Don Julian vis--vis his heirs:
13. That in the event of death of Julian L. Teves, the properties hereinafter
adjudicated to Josefa Teves Escao and Emilio B. Teves, (excluding the properties
comprised as Hacienda Medalla Milagrosa together with all its accessories and
accessions) shall be understood as including not only their one-half share which they
inherited from their mother but also the legitimes and other successional rights which
would correspond to them of the other half belonging to their father, Julian L. Teves.
In other words, the properties now selected and adjudicated to Julian L. Teves
(not including his share in the Hacienda Medalla Milgrosa) shall exclusively be
adjudicated to the wife in second marriage of Julian L. Teves and his four minor
children, namely, Milagros Donio Teves, his two acknowledged natural children
Milagros Reyes Teves and Pedro Reyes Teves and his two legitimate children Maria
Evelyn Donio Teves and Jose Catalino Donio Teves. (Emphasis supplied)
On 16 November 1972, Don Julian, Emilio and Josefa executed a Deed of Assignment of
Assets with Assumption of Liabilities in favor of J.L.T. Agro, Inc. (petitioner). Less than a year later,
Don Julian, Josefa and Emilio also executed an instrument entitled Supplemental to the Deed of
Assignment of Assets with the Assumption of Liabilities (Supplemental Deed) dated 31 July 1973.
This instrument which constituted a supplement to the earlier deed of assignment transferred
ownership over Lot No. 63, among other properties, in favor of JLT Agro. On 14 April 1974, Don
Julian died intestate.
On the strength of the Supplemental Deed in its favor, JLT Agro, Inc. sought the registration
of the subject lot in its name. A court, so it appeared, issued an order canceling OCT No. 5203 in the
name of spouses Don Julian and Antonia on 12 November 1979, and on the same date TCT No. T375 was issued in the name of JLT Agro. Since then, JLT Agro has been paying taxes assessed on
the subject lot.
Meanwhile, Milagros Donio and her children had immediately taken possession over
the subject lot after the execution of the Compromise Agreement. In 1974, they entered into a yearly
lease agreement with spouses Antonio Balansag and Hilaria Cadayday. Lot No. 63 was sold to
Antonio Balansag and Hilaria Cadayday. After the death of Don Julian, Milagros Donio and her
children executed a Deed of Extrajudicial Partition of Real Estate where Lot No. 63 was allotted to
Milagros and her two children, Maria and Jose. Unaware that Lot No. 63 has been registered under
the name of JLT Agro, Inc., Antonio and Hilaria tried to register the deed of sale, but failed. They
filed a complaint to declare the title of JLT Agro, Inc. void which was dismissed.
The trial court ruled that the resolution of the case specifically hinged on the interpretation of
paragraph 13 of the Compromise Agreement. It added that the direct adjudication of the properties
listed in the Compromise Agreement was only in favor of Don Julian and his two children by the first
marriage, Josefa and Emilio. Paragraph 13 served only as an amplification of the terms of the
adjudication in favor of Don Julian and his two children by the first marriage.

According to the trial court, the properties adjudicated in favor of Josefa and Emilio
comprised their shares in the estate of their deceased mother Antonia, as well as their potential
share in the estate of Don Julian upon the latters death. Thus, upon Don Julians death, Josefa and
Emilio could not claim any share in his estate, except their proper share in the Hacienda Medalla
Milagrosa which was adjudicated in favor of Don Julian in the Compromise Agreement. As such, the
properties adjudicated in favor of Don Julian, except Hacienda Medalla Milagrosa, were free from
the forced legitimary rights of Josefa and Emilio, and Don Julian was under no impediment to
allocate the subject lot, among his other properties, to Milagros Donio and her four (4) children.
The trial court further stressed that with the use of the words shall be:, the adjudication in
favor of Milagros Donio and her four (4) children was not final and operative, as the lot was still
subject to future disposition by Don Julian during hid lifetime. It cited paragraph 14 of the
Compromise Agreement in support of his conclusion. With Lot No. 63 being the conjugal property of
Don Julian and Antonia, the trial court also declared that Milagros Donio and her children had no
hereditary rights thereto except as to the conjugal share of Don Julian, which they could claim only
upon the death of the latter.
The trial court ruled that at the time of Don Julians death on 14 April 1974, Lot No. 63 was
no longer part of his estate since he had earlier assigned it to petitioner on 31 July 1973.
Consequently, the lot could not be a proper subject of extrajudicial partition by Milagros Donio and
her children, and not being the owners they could not have sold it. Had respondents exercised
prudence before buying the subject lot by investigating the registration of the same with the Registry
of Deeds, they would have discovered that five (5) years earlier, OCT No. 5203 had already been
cancelled and replaced by TCT No. T-375 in the name of petitioner, the trial court added.
The Court of Appeals, however, reversed the trial courts decision.
Per the appellate court, the Compromise Agreement incorporated in CFI decision dated 31
January 1964, particularly paragraph 13 thereof, determined, adjudicated and reserved to Don
Julians two sets of heirs their future legitimes in his estate except as regards his (Don Julians)
share in Hacienda Medalla Milagrosa. The two sets of heirs acquired full ownership and possession
of the properties respectively adjudicated to them in the CFI decision and Don Julian himself could
no loner dispose of the same, including Lot No. 63. The disposition in the CFI decision constitutes
res judicata. Don Julian could have disposed of only his conjugal share in the Hacienda Medalla
Milagrosa.
The CA likewise emphasized that nobody in his right judgment would preterit his legal heirs
by simply executing a document like the Supplemental Deed which practically covers all properties
which Don Julian had reserved in favor of his heirs from the second marriage.
Aggrieved by the CAs decision, JLT Agro appealed to the SC via a petition for review on
certiorari, raising pure questions of law, such as:
a) that future legitime can be determined, adjudicated and reserved prior to the death of Don
Julian;

b) that Don Julian had no right to dispose of or assign Lot No. 63 to petitioner because he
reserved the same for his heirs from the second marriage pursuant to the Compromise
Agreement;
c) that the Supplemental Deed was tantamount to a preterition of his heirs from the second
marriage; and
d) that TCT No. T-375 in the name of petitioner is spurious for not containing entries on the
Book No. and Page No.
On the basis of the Compromise Agreement, the Court of Appeals ruled that the
adjudication in favor of the heirs of Don Julian from the second marriage became automatically
operative upon the approval of the Compromise Agreement, thereby vesting on them the right to
validly dispose of Lot No. 63 in favor of respondents.
JLT Agro argued that the appellate court erred in holding that future legitime can be
determined, adjudicated and reserved prior to the death of Don Julian.
Stated otherwise, may future legitime be determined, adjudicated and reserved prior to the
death of the owner of a property? Why?
Held: No. In Blas v. Santos, 111 Phil. 503 (1961), future legitime was defined as any property or
right not in existence or capable of determination at the time of the contract, that a person may in the
future acquire by succession, Article 1347, NCC provides:
ART. 1347. All things where 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 contracts may be entered into

upon future inheritance except in
cases expressly authorized by
law
All services which are not contrary to law, morals, good customs, public order or public policy may
likewise be the object of a contract.

Well-entrenched is the rule that all things, even future ones, which are not outside the commerce of
man may be the object of a contract. The exception is that no contract may be entered into with
respect to future inheritance, and the exception is the partitioninter vivos referred to in Article 1080.
(Perillo v. Perillo, (CA), 48 O. G. 4444).

For the inheritance to be considered future, the succession must not have been opened at the time
of the contract. A contract may be classified as a contract upon future inheritance, prohibited under
the second paragraph of Article 1347, where the following requisites concur:

(1) That the succession has yet been opened;

(2) That the object of the contract forms part of the inheritance; and

(3) That the promissory has, with respect to the object, an expectancy of a right which is purely
hereditary in nature.

The first paragraph of Article 1080, which provides the exception to the exception and
therefore aligns with the general rule on future things, reads:

ART. 1080. Should a person make a partition of his estate by an act inter
vivos, or by will, such partition shall be respected, insofar as it does not prejudice the
legitime of the compulsory heirs.

If the partition is made by an act inter vivos, no formalities are prescribed by the Article. The partition
will of course be effective only after death. It does not necessarily require the formalities of a will for
after all it is not the partition that is the mode of acquiring ownership. Neither will the formalities of a
donation be required since donation will not be the mode of acquiring the ownership here after
death; since no will has been made it follows that the mode will be succession (intestate
succession). Besides, the partition here is merely the physical determination of the part to be given
to each heir.

The historical antecedent of Article 1080 of the New Civil Code is Article 1056 of the old Civil Code.
The only change in the provision is that Article 1080 now permits any person (not a testator, as
under the old) to partition his estate by act inter vivos. This was intended to abrogate the then
prevailing doctrine that for a testator to partition his estate by an act inter vivos, he must first make a

will with all the formalities provided by law. (Dizon-Rivera v. Dizon, 144 Phil. 558 (1970); See also
Zaragoza v. Court of Appeals, G.R. No. 106401, September 29, 2000, 341 SCRA 309, 315-316).

Article 1056 of the old Civil Code (now Article 1080) authorizes a testator to partition inter vivos his
property, and distribute them among his heirs, and this partition is neither a donation nor a
testament, but an instrument of a special character, sui generis, which is revocable at any time by
the causante during his lifetime, and does not operate as a conveyance of title until his death. It
derives its binding force on the heirs from the respect due to the will of the owner of the property,
limited only by his creditors and the intangibility of the legitime of the forced heirs. (Albela & Aebuya
v. Albela & Allones, (CA) G.R. No. 5583-R, June 20, 1951).

The partition inter vivos of the properties of Don Julian is undoubtedly valid pursuant to Article 1347.
However, considering that it would become legally operative only upon the death of Don Julian, the
right of his heirs from the second marriage to the properties adjudicated to him under the
compromise agreement was but a mere expectancy. It was bar hope of succession to the property of
their father. Being the prospect of a future acquisition, the interest by its nature was inchoate. It had
no attribute of property, and the interest to which it related was at the time nonexistent and might
never exist. (Johnson v. Breeding, 136 Tenn. 528 190 SW 545).

Evidently, at the time of the execution of the deed of assignment covering Lot No. 63 in favor of JLT
Agro, Don Julian remained the owner of the property since ownership over the subject lot would only
pass to his heirs from the second marriage at the time of his death. Thus, as the owner of the
subject lot, Don Julian retained the absolute right to dispose of it during his lifetime. His right cannot
be challenged by Milagros Donio and her children on the ground that it had already been adjudicated
to them by virtue of the compromise agreement.

Second issue:

That Don Julian had no right to dispose of or assign Lot No. 63 to JLT Agro because he reserved it
to his heirs from the second marriage pursuant to the Compromise Agreement. It was contended
that he validly transferred ownership of the said lot during his lifetime to which the lower court agreed
when he executed the Supplemental Deed. The CA reversed, ruling that it was a case of prohibited
preterition of Don Julians heirs from the second marriage. JLT Agro contended otherwise. Decide.

Held: The contention of JLT Agro is correct. There was no preterition. Article 854 provides that the
preterition or omission of one, some, or all of the compulsory heirs in the direct line, whether living at
the time of the execution of the will or born after the death of the testator, shall annul the institution of

heir; but the devises and legacies shall be valid insofar as they are not inofficious. Manresa defines
preterition as the omission of the heir in the will, either by not naming him at all or, while mentioning
him as father, son, etc., by not instituting him as heir without disinheriting him expressly, nor
assigning to him some part of the properties. (Aznar v. Duncan, 123 Phil. 1450 (1966). It is the total
omission of a compulsory heir in the direct line from inheritance. It consists in the silence of the
testator with regard to a compulsory heir, omitting him in the testament, either by not mentioning him
at all, or by not giving him anything in the hereditary property but without expressly disinheriting him,
even if he is mentioned in the will in the latter case. But there is no preterition where the testator
allotted to a descendant a share less than the legitime, since there was no total omission of a forced
heir. (Reyes-Barreto v. Barreto-Datu, 125 Phil. 501 (1967)).

In the case at bar, Don Julian did not execute a will since what he resorted to was a partition inter
vivos of his properties, as evidence by the court approved Compromise Agreement. Thus, it is
premature if not irrelevant to speak of preterition prior to the death of Don Julian in the absence of a
will depriving a legal heir of his legitime. Besides, there are other properties which the heirs from the
second marriage could inherit from Don Julian upon his death.