CHARACTERISTICS OF SUCCESSION:

1. Mode of acquisition
2. The property, rights & obligations to the extent of the value of the inheritance transmitted
3. The transmission takes place only by virtue of death
4. The transmission takes place either by will or by operation of law
5. The transmission to another
REQUISITES FOR TRANSMISSION OF RIGHT TO SUCCESSION (or more correctly stated,
time of vesting of the successional right):
1. Death of the decedent
2. Express will of the testator calling succession and/or provision of law prescribing
successors
3. Rights or properties are transmissible
4. Transferee is still alive (didnt predecease)
5. Transferee is capacitated to inherit
6. Acceptance of the inheritance by the successor
KINDS OF SUCCESSION:
1. Testamentarysuccession by will
2. Intestatesuccession in default of a will
3. Mixed
Treatment of accruals under the laws of succession:
1. a. Article 793 refers to accruals after the making of the will
b. Article 781 refers to accruals after the death of the testator
1. a. Article 793 accruals dont always pertain to the testate heirs
b. Article 781 accruals will always pertain to the testate heirs
Will an act whereby a person is permitted, with the formalities prescribed by law, to control, to
a certain degree the disposition of his estate, to take effect after his death.
Validity of wills
Extrinsic FOR FILIPINOS
FOR FOREIGNERS
1.Governing law as to time Article 795 law in force when will was executed
Same rule (assumption: will is being probated here)
2.
Law
Law
Law
Law
Law
Law
Law
Law
Philippine
Philippine

Governing

of
of

law
of
of
of
of
of
of
place
place

as

to

of
of

place
citizenship
citizenship
domicile
domicile
residence
residence
execution
execution
law
law

Intrinsic

FOR

FILIPINOS

FOR

FOREIGNERS

1.

Governing

Article

2263

Article

16,

law

Article

as

law
1039

2.

Governing

Article

16,

Article

Article

16,

Article

to

at

time

depends

law
1039
1039

of

on

as

time

personal
to

death
law
place

Philippine

law

national

law

Testamentary Capacity
1. All persons not expressly prohibited by law
2. 18 years old and above
3. Sound mind
2 Kinds of Wills:

1. Notarial will Articles 804-806, & 807-808 in special cases

2. Holographic Articles 804 & 810
Common requirements that apply to the 2 kinds of wills
1. In writing
2. In a language or dialect known to the testator

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

REQUISITES FOR VALID NOTARIAL WILL:

In writing
Executed in a language or dialect known to the testator
Subscribed by the testator himself or by the testators name written by some other
person in his presence & under his express direction at the end thereof, at the presence
of witnesses
Attested & subscribed by at least 3 credible witnesses in the presence of the testator
and of one another
Each & every page must be signed by the testator or by the person requested by him to
write is name, & by instrumental witnesses in the presence of each other, on the left
margin
Each & every page of the will must be numbered correlatively in letters placed on the
upper part of each page
Must contain an attestation clause, stating the following:
1. The number of pages of the will

2. Fact that the testator signed the will & every page in the presence of witnesses,
or caused some other person to write his name under his express direction

3. All witnesses signed the will & every page thereof in the presence of the testator
& of one another
8. Must be acknowledged before a notary public
Additional requisite if deaf or mute:
Must either:
1. Read will personally, if able to do so;

2.

Otherwise, he shall designate 2 persons to read it & communicate to him the

contents

Additional requisite if blind:

Will shall be read to him twice:
1. Once by one of the subscribing witnesses
2. Once by the notary public before whom it is acknowledged
REQUISITES OF HOLOGRAPHIC WILL:
1. In writing
2. Executed in a language or dialect known to the testator
3. Entirely written, dated & signed by the hand of the testator himself
AMENDING A WILL:
1. Notarial will can only be amended through a codicil
2. Holographic will can be amended in 3 ways:
1. Dispositions may be added below the signature, PROVIDED that said
dispositions are also dated & signed & everything is written by the hand of the
testator himself
2. Certain dispositions or additional matter may be suppressed or inserted
PROVIDED that sad cancellation is signed by the testator & is written by the
testator himself (no need to be detailed)
3. Executing a codicil which may either be notarial or holographic
Effect of cancellation, addition insertion), or erasure on the validity of the will
1. If made by the hand of the testator & authenticated by him: alters the will without
affecting its validity
2. If made by the hand of the testator but was not authenticated by him: deemed as if not
written at all
3. If made by testator but not handwritten: entire will is nullified
4. By a stranger & the testator has authenticated the same: entire will is nullified
5. Made by a stranger but not authenticated by the testator: deemed as if not written at all
What is a codicil? It is a supplementary or addition to a will, made after the execution of the will
& annexed to be taken as part by which any disposition in the original will may be explained,
added to or altered.

Qualifications of a witness and a testator:

Witness TESTATOR
1. At least 18 years old
2. Physically fit (not deaf, dumb, blind)
3. Literate, able to read and write
4. No prior conviction for perjury/false testimony/falsification
5. Not the notary public before whom the will is acknowledged
6. Sound mind
7. Domiciled in the Philippines
REVOCATION OF A WILL:
1. By implication of law
2. By the execution of a documentation with all the requisites of a will
3. By the physical act of destruction coupled with the intent to revoke
PROBATE It is a the special proceeding by which the validity of a will maybe established
Matters to be proved in a probate:
1. Whether the instrument which is offered for probate is the last will and testament of the
decedent
2. Whether the will has been executed in accordance with the formalities prescribed by law
3. Whether the testator had testamentary capacity at the time of the execution of the will
GROUNDS FOR DISALLOWANCE OF A WILL:
1. The testator did not possess testamentary capacity at the time of execution
2. The testator failed to comply with prescribed formalities
3. The execution of the will is attended by a vice of consent
INSTITUTION OF HEIR an act by virtue of which a testator designates in his will the person or
persons who are to succeed him in his property and transmissible rights and obligations
Requisites for a valid institution of heir:
1. Designation in will of person/s to succeed
2. Will specifically assigns to such person an inchoate share in the estate
3. The person so named has capacity to succeed
4. The will is formally valid
5. No vice of consent is present
6. No preterition results from the effect of such will
3 principles in the institution of heirs:
1. Equality: heirs who are instructed without a designation of shares inherit in equal parts
2. Individuality: heirs collectively instituted are deemed individually named unless contrary
intent is proven
3. Simultaneity: when several heirs are instituted, they are instituted simultaneously & not
successively
Rules regarding a persons right to dispose of his estate:

1. If one has no compulsory heirs:

1. He can give his estate to any person qualified to inherit under him
2. However, he must respect restrictions imposed by special laws
2. If one has compulsory heirs:
1. He can give only the disposable portion to strangers
2. Legitimes of compulsory heirs must be respected
PRETERITION:
1. There must be an omission of one, some or all of the heir/s in the will
1. The omission must be that of a COMPULSORY HEIR
2. Compulsory heir omitted must be of the DIRECT LINE
3. The omitted compulsory heir must be LIVING at the time of testators death or must at
least have been CONCEIVED before the testators death
Effects of preterition:
1. The institution of heirs is annulled
2. Devises & legacies shall remain valid as long as they arent officious
DISINHERITANCE It is the act by which the testator, for just cause, deprives a compulsory
heir of his right to the legitime.
Preterition

vs.

Disinheritance

Disinheritance

PRETERITION

Express deprivation of legitime

Tacit deprivation of legitime
Always voluntary

May also be voluntary but is presumed to be involuntary (as its an omission to mention as an
heir or though mentioned, isnt instituted as an heir)
Legal cause is present
Presumed by law to be a mere oversight
Even a compulsory heir may be totally excluded
Compulsory heir is merely restored to his legitime
Requisites for a valid disinheritance
1. Heir disinherited must be designated by name or in such a manner as to leave no room
for doubt as to who it is intended
2. Disinheritance must be for a cause designated by law
3. It must be made in valid will
4. It must be made expressly, stating the cause in the will itself
5. Cause must be certain & true, & must be proved by interested heirs if the person
disinherited should deny it
6. It must unconditional
7. Must be total

Fideicommissary Substitution

FIDEICOMMISSARY SUBSTITUTION A substitution is a fideicommissary substitution

if the testator institutes an heir with an obligation to deliver to another the property so
inherited. The heir instituted to such condition is called the first heir or fiduciary heir, the
one to receive the property is the fideicommissary or second heir.
Requisites of a fideicommissary substitution:

1. A 1st heir or fiduciary is first called to the enjoyment of the property so inherited
2. A 2nd heir or fideicommissary substitute
3. An obligation clearly imposed on the fiduciary to preserve & transmit the property to a
4.
5.
6.
7.

fideicommissary substitute
The substitution doesnt go beyond the 1st degree of the fiduciary
The fideicommissary substitution is made expressly
Both the fiduciary & the fideicommissary substitute are living or at least conceived at the
time of the death of the testator
The fideicommissary substitution is imposed on the free portion of the estate & not on
the legitime

LEGITIME - It is that part of the testators property which he cannot dispose of because the
law has reserved it for certain heirs called compulsory heirs.
Different classes of heirs:
1. Voluntary heirs succeed by virtue of a will
2. Legal or intestate heirs succeed by operation of law in the absence of a will
3. Compulsory heirs succeed because the law reserved for them
Classes Compulsory Heirs:
1. Primary
1. Legitimate children & their descendants (legitimate)
2. Surviving spouse (legitimate)
3. Illegitimate children & their descendants (legitimate or illegitimate)
2. Secondary
1. Legitimate parents & ascendants (legitimate) inherit only in default of 1a
2. Illegitimate parents (no other ascendants) inherit only in default of 1a & 1c
Remedy of compulsory heir in case of impairment of legitime:

1. If the impairment is total them there may be preterition if the compulsory heir preterited
is either an ascendant or descendant. Article 854 would come into play (annulment of
institution of heir & reduction of devises and legacies)
2. If the impairment is partial, then the compulsory heirs is entitled to completion of legitime
under Article 906

3. If the impairment is thru donation, then remedy is collation.

RESERVA TRONCAL It is that part of the decedents property that an ascendant, who
inherits by operation of law from his descendants which the latter may have acquired by
gratuitous title from another ascendant or sibling, is obliged by law to reserve such
property for the benefit of 3rd degree relatives who belong to the line from which the
property which otherwise will go to certain specific heirs but which law reserves to
certain predetermined heirs.
Order of payment in case estate is INSUFFICIENT to cover legacies & devises
1. Remuneratory legacies or devises
2. Preferential legacies or devises declared by testator
3. Legacies for Support
4. Legacies for Education
5. Legacies or devises for Specific, determinate thing
6. All others, pro-rata

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

Causes for legal or intestate succession

Person dies without a will
Person dies with void will
Person dies with a will that subsequently loses validity
Will doesnt institute an heir or institution is void
Will doesnt dispose of ALL property belonging to the testator
Suspensive condition attached to the institution of the heir doesnt happen or isnt
fulfilled
Heir predeceases, or repudiates the inheritance
Incapacity of the heir

2 fundamental underlying principles in legal or intestate succession

1. Rule of Proximity nearer exclude the more remote
2. Rule of Equal Division equal division within the same group
Grounds when the right of representation will be available:
1. Disinheritance
2. Incapacity
3. Predecease
Who can exercise right of representation
1. Intestate succession only: heirs in the collateral line, but only in favor of the children of
siblings
2. Both testate & intestate succession: heirs in the descending line, NEVER in the
ascending line
Requisites for accretion to take place:
1. Unity of object
2. Plurality of heirs
3. Some of the heirs cannot or are disqualified to accept (R.I.P)

4. Others are accepting &

5. There has been earmarking
Incapacity to succeed because of possible undue influence
1. Priest who heard confession during last illness & his relatives with thin the 4th degree &
the order, chapter, etc., to which the priest belongs
2. Guardian before final accounts have been approved EXCEPT if an ascendant,
descendant, sibling, spouse
3. Attesting witness to execution of will & their spouses, parents, children or any one
claiming under them
4. Physician, surgeon, nurse who took care of testator during his last illness
5. Individuals, associations, corporations not permitted by law to inherit
Validity and Effect of Legacy/Devise
Thing owned in part by testator (Article 929)
General
Rule:
Conveys
only
interest
or
part
owned
by
testator
Exception: if testator otherwise provides
a. He may convey more than what he owns - the state shld try to acquire the part or interest
owned by other parties. If other parties are unwilling to alienate, the estate should give the
legatee/devisee
the
monetary
equivalent
(analogy
with
Article
931)
b.
He
may
convey
less
than
what
he
owns
(Article
794)
Thing owned by another (Articles 930-931)

General Rule:
a. If testator ordered 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 equivalent
b. If testator erroneously believed that the thing belonged to him - legacy/device is void

Exception: if testator acquire the thing onerously or gratuitously after making of the disposition,
disposition is validated
c. If testator knew that the thing did not belong to him but did not order its acquisition - code is
silent but disposition shld be considered valid (Balane & Tolentino) - there is an implied order to
acquire & doubts must be resolved in favor of intestacy
Thing already owned to the legatee/devisee (Articles 932-933)
a. If thing already belonged to legatee/devisee at time of execution of will legacy/devise is
void
b. If thing was owned by another person at time of making the will and thereafter it is acquired
by legatee/devisee

1.

If testator erroneously believed that he owned the thing legacy /devise is void

2.
If
testator
was
not
in
error
i. If thing was acquired onerously by L/D L/D entitled to be reimbursed
ii.
If
thing
was
acquired
gratuitously
by
L/D

nothing
is
due
iii. If thing was owned by testator at time will was made and L/D acquired the thing from him
thereafter law is silent (Balane: deemed revoked)
Legacy/Devise to remove an encumbrance over a thing belonging to testator (Article 932 par 2)
Valid, if the encumbrance can be removed for a consideration

Legacy/Devise
of
a
thing
pledged
or
mortgaged
(Article
934)
The encumbrance must be removed by paying the debt unless the testator intended otherwise
COLLATION To collate is to bring back or to return to the hereditary mass, in fact or by
fiction, property which came from the estate of the decedent, during his lifetime, but which the
law considers as an adverse from the inheritance. It is the act by virtue of which, the persons
who concur in the inheritance bring back to the common hereditary mass the property which
they have received from him, so that a division may be effected according to law & the will of the
testator.
Important periods to remember:
1 month or less before making a will Testator, if publicly known to be insane, burden of proof is
on
the
one
claiming
validity
of
the
will
20 years Maximum period testator can prohibit alienation of dispositions
5

years

from

delivery

to

the

State

To claim

property

escheated

to

the

State

1 month To report knowledge of violent death of decedent lest he be considered unworthy

5 years from the time disqualified person took possession
Action for declaration of incapacity & for recovery of the inheritance, devise or legacy
30 days from issuance of order of distribution Must signify acceptance/repudiation otherwise,
deemed accepted
1 month form written notice of sale
Right to repurchase hereditary

rights

sold

to

stranger

by

co-heir

10 years
To enforce warranty of title/quality of property adjudicated to co-heir from the time right of action
accrues
5 years from partition
To enforce warranty of solvency of debtor of the estate at the time partition is made
4

years

form

partition

Action

for

rescission

of

partition

on

account

of

lesion

SUCCESSION
GENERAL PROVISION
Succession - is a mode of acquisition by virtue of which the property, rights and
obligations to the extent of the value of the inheritance, of a person are transmitted
through his death to another or others either by his will or by operation law.
- Mode of transmitting ownership.

Basis of succession
Rights over property
The right of the family (intestate succession)
Eclectic theory tries to harmonize the two principles individual and social.
Kinds
1. Testamentary or testacy by will or codicil
2. Legal or intestacy operation of law, if the will is invalid
3. Mixed partly by will and by legal
Elements
1. Subjective element (art. 775)
a. Decedent applies to a deceased person whose property is transmitted whether
he left a will or not.
Testator a person who left a will
b. Inheritance all property, rights and obligations of a person which are not
extinguished by his death. (776)
Obligations of the deceased are only up to the value of the inheritance left by him
to his heirs. (it is right to say that debts are not inherited; Estate debts =
inheritance)
In general, obligations are transmissible, unless purely personal like obligations
between husband and wife, and those non-transferrable by law or contract.
Example of rights extinguished by death
a.
b.

Personal rights like marital rights, parental authority, support, action for legal separation, partnership, and agency.
Right to recognition of a legitimate or an illegitimate child.

Except when actions has already been filed. Also actions transmitted to heirs if child dies during minority or a state of
insanity. Heirs have 5 years to file the action. (173 FC)
Actions already commenced survives notwithstanding death of the party.id
Action for adoption is not extinguished by death of the adopter. (sec. 13. RA 8552)
c.

Right to hold office or job, public or private.

d. Right of a lawyer to represent his client.

Rights to succession are transmitted from the moment of death of the decedent. (777)
1. Heirs become owners on date of the decedents death, although properties are
delivered to them later.
2. Both acceptance and repudiation retroact to the moment of death.
Inheritance includes not only transmissible rights and obligations at the time of death,
but also those accrued since the opening of the succession. (781)
HEIR - called to succession by will or operation of law; also one who succeeds by

universal title or to all or a fraction or aliquot part of the estate. May be;
1. Compulsory those who succeed by force of law to some portion of inheritance
in an amount predetermined by law known as legitime.
2. Voluntary those instituted by the testator in his will, to succeed to the
inheritance or the portion thereof of which the testator can freely dispose.
Compulsory heir can also be a voluntary heir of the free portion.
Devisee one given a gift of real property in a will.
Legatee one given a gift of personal property in a will.
This

two

preceding

exist

only

in

testamentary

succession.

In preterition, an instituted heir gets nothing, while the legatee or devisee

gets the property given to him as long as the legitime is not impared.
Imperfect inheritance
After - acquired properties
Acceptance or non repudation of successional rights.
DUAL STATUS of HEIR
1. In a will, a compulsory heir may be given more than his legitime.
2. He is a compulsory heir with respect to the legitime. He is a voluntary heir
with respect to the excess.
3. If a compulsory heir dies ahead of the testator, the legitime goes to the
child by representation.
The child of a voluntary heir who predeceases the testator gets nothing,
because there is no representation among voluntary heirs nor in the free portion.
The successor must
1. Survive the decedent
2. Willing to accept the inheritance
3. Capacitated to inherit
Inchoate rights = before the death of the decedent
It does not matter if the will is admitted, transmission is at the moment of death.
Condition actual or personal
- Properties and rights are transmissible
- Transferee is alive.
Court only decide on the formality of the will

Death = estate = co-ownership = can validly dispose a share.

Investigation of paternity must be done during the lifetime of the parents.
Heirs may be sued
Declaration of heirship must be in the administration proceedings and not in a separate
proceeding.
Court has no power to order to sell pending determination of validity of administration.
If heir is unduly deprived he has 2 yrs to act.
If the administrator sells it is also considered as the heir is selling. The heirs are not
stranger to the transaction.
Inventory = is not an incidental duty of the administrator, the administrator can solely be
held liable.
Concealment of heir can still file a claim because he is already an owner.