1

WILLS AND SUCCESSION

SECTION 1. WILLS
SUBSECTION 1. WILLS IN GENERAL
Article 774. Succession is a mode of acquisition by virtue of which the
property, rights and obligations to the extent of the value of the
inheritance, of a person are transmitted through his death to another or
others either by his will or by operation of the law.
TERMINOLOGIES

Decedent

Testator/Testatrix

Administrator/Administratrix

Executor/Executrix

Inheritance property or right acquired

Succession a mode of acquisition

Legatees

Devisees

Compulsory heir

Voluntary heir
TESTAMENTARY SUCCESSION WILLS
Article. 783. A will is an act whereby a person is permitted, with the
formalities prescribed by law, to control to a certain degree the
disposition of his estate, to take effect after his death.

The making of a will is a statutory right.

Allows the testator to control to a certain degree the disposition of his
estate after his death.

Article 777. The rights to the succession are transmitted from the
moment of death of the decedent.
REQUISITES FOR SUCCESSION MORTIS CAUSA:
1. Death (actual or presumed)
2. Rights or properties that are transmissible
3. Transferee (must be living, i.e. no predecease; no repudiation; no
incapacity)
PRESUMPTION OF DEATH
1. Ordinary presumption of death (no probability of death)

10 years

Absentee disappears under normal conditions 10 years;

If the person aged 75 disappears 5 years

2. Extraordinary presumption of death or qualified absence (with

probability of death

4 years

Missing airplane, lost vessel, military missing because of war, etc

REAPPEARANCE

In case of the person reappears, he recovers

property/properties but not the fruits or rent thereof.

his

INCHOATE RIGHT

Prior to a persons death, his heirs merely have an inchoate right to

his property. Therefore, during his lifetime, the heirs have no right
of disposition or alienation over said properties. Tordilla v.
Tordilla, 60 Phil 162
Q: Can an heir dispose of his share in the estate pending liquidation?

A: Yes. The property is no longer future property

Note: Future inheritance cannot be sold
Q: Is the donation of property after the decedents death but before a
judicial declaration of heirship valid?

A: Yes, it is not a donation of future inheritance. Osorio vs. Osorio

and Ynchausti, 41 Phil 531
ACCRUAL OF ESTATE TAX
Q: When does estate tax accrue? Is it at the moment of decedents
death or at the time the heirs possess the property/ies?

A: At the time of decedents death

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

A: Yes, but only insofar as her share is concerned. As to the

shares of her children, sale is invalid.

Reason: Children acquired the properties at the moment of

decedents death (and not at the time of the judicial declaration of
heirship). Ibarie vs. Po. L-5046, Feb. 27, 1953
KINDS OF SUCCESSION
Article 778. Succession may be:
1. Testamentary;
2. Legal or intestate; or
3. Mixed

NOTE: 2 more kinds of succession:

4.
5.

AFTER-ACQUIRED PROPERTIES

Compulsory or forced succession where the decedent is

compelled to give the heirs their legitimes; heirs, however, are free
to refuse
Contractual succession

TESTAMENTARY SUCCESSION
WILLS
Article 783. A will is an act whereby a person is permitted, with the
formalities prescribed by law, to control to a certain degree the
disposition of his estate, to take effect after his death.

Article 793. Property acquired after the making of a will shall only pass
thereby, as if the testator had possessed it at the time of making the
will, should it expressly appear by the will that such was his intention.
Example:

In 2010 T made a will disposing of all his five (5) beach resorts and
giving the same to his mentor. From 2010 to 2014, T acquired four
(4) more beach resorts. T died in January of 2015. How many
beach resorts will the mentor get?
o Answer: Only 5. The other 4 are after acquired
properties. These properties will go to the compulsory
heirs by intestate succession.

ELEMENTS OF SUCCESSION
1. Making a will is a statutory right.

Testator is allowed to control to a certain degree the

disposition of is estate after his death.
2. It is a unilateral act.
3. It is a solemn or formal act.
4. There must be animus testandi.
5. Testator must be capacitated.
6. It is a personal act.
7. It is effective mortis causa.
8. It is revocable or ambulatory.
9. It disposes of the estate partially or totally

INTEREST CONVEYED

RABADILLA VS CA

A will cannot be subject of a compromise agreement as it defeats the

purpose of making a will

Testators wishes must be strictly followed.

VALIDITY OF THE WILL

Article 794. Every devise or legacy shall convey all the interest which
the testator could devise or bequeath in the property disposed of,
unless it clearly appears from the will that he intended to convey a less
interest.
Note: The entire interest of the Testator in the property is conveyed.
Example:

T bequeaths to A his car. A conveys ownership of the car and not

mere usufruct.

"
"

AMBIGUITY

!
!
!

LATENT OR INTRINSIC
AMBIGUITY
Does not appear on the will;
Discovered
using
extrinsic
evidence
Ex. I hereby give this property
to my sister. It turns our there
are two sisters.

!
!
!

PATENT OR EXTRINSIC
AMBIGUITY
Appears on the will;
No need for extrinsic evidence;
Ex:
I institute some of my
relatives. Here, it is obvious
that the institution is unclear

Ambiguity is not seen on the will

Ambiguity is seen on the will
How to cure: Extrinsic Evidence
Note: Testacy is preferred over intestacy only when the will is valid

"

EXTRINSIC VALIDITY
Refers to the form
Ex. Need for a valid attestation
clause
Law at the time of the
EXECUTION OF THE WILL

"
"
"

INTRINSIC VALIDITY
Refers to the legality of the
terms/provisions
Ex. Provisions must not impair
legitimes
Law at the time of the
TESTATORS DEATH

AS TO FORMALITIES: EXTRINSIC VALIDITY

1. T is a FILIPINO
a) Philippine Law
- [Arts. 804- 814]
b) Country where he may be [Art. 815]
c) Country where he executes the will- [Art. 17 lex loci celebrationis]
2. T is an ALIEN ABROAD
a) Law of his domicile
b) national law
c) Philippine law [Art. 816]
d) Law of the place of execution (Art. 17, par 1)/ Lex loci celebrationis
** mnemonic: Di Na Po Love or Do Not Leave Please

3. T is an ALIEN IN THE PHILIPPINES

a) Law of his nationality
b) Philippine law
Remember: MVP Stephen Curry, Katy Perry, George Clooney

Example: Alien abroad

An Australian, domiciled in France, is en route to Switzerland. He

has a 5 hour lay over in Spain. While in the airport (Spain), he
makes a will. What countrys/countries formalities should he
observe to make sure that the will is valid as to its form?
o Answer: This is a case of an ALIEN ABROAD. He can
apply the formalities prescribed in the following places.
Hence, apply Di Na Po Love:
1.
France (Domicile)
2.
Australia (Nationality)
3.
Philippines
4.
Spain (Lex loci celebrationis)

Example: Alien in the Philippines

A Korean who has a Korean Restaurant in Manila has been

residing in the Philippines for 15 years now. She intends to make a
will. What countrys/countries formalities must she observe?

Answer:
1. Korea (nationality) [Art. 817 lex nationalii]
2. Philippines [Art 17 lex loci]

AS TO LEGALITY OF PROVISIONS: INTRINSIC VALIDITY

NATIONAL LAW of the testator governs

Regardless of the place of execution of the law or of the place of

death of the testator

He executed a will in Manila on March 5, 1951. He had a lone

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

JOINT WILLS
BELLIS VS BELLIS

Facts: T was a citizen and resident of Texas who had illegitimate

children in the Philippines. He had two wills one disposing of his
properties in Texas and the other disposing of his properties in the
Philippines.
He
had recognized illegitimate children in the
Philippines but were not given anything in the will. Texas had no
conflict of law rules. Also, Texan law did not have compulsory
heirs. His will stated that the Philippine properties be distributed in
accordance with Philippine laws and not with his own national law.

Issue: W/N said provision is valid.

Held: Not valid. It is void. Said provision contravenes Art/ 16,

par.2 of the NCC.
CHRISTENSEN CASE (RENVOI)

Facts:
Edward Christensen was born in NY but acquired
citizenship in CA when he resided there from 1904-1913. He came
to the Philippines and resided here despite frequent visits to CA.

Art. 818. Two or more persons cannot make a will jointly, or in the
same instrument, either for their reciprocal benefit or for the benefit of
a third person.

Joint wills are VOID whether they are reciprocal or not.

If the will is executed by Filipinos, regardless where they execute
the same, the will is VOID due to public policy.
If foreigners execute a joint will abroad and it is valid in the place of
execution in accordance with Art. 816, the same shall be
considered valid here.
If foreigners execute a joint will in the Philippines, the will is VOID.
SUBSECTION 2. TESTAMENTARY CAPACITY AND INTENT

REQUISITES OF TESTAMENTARY CAPACITY:

1. T not prohibited by law to make a will [Art. 796];
2. T is at least 18 years of age [Art. 797];
and

3.

T is of sound mind at the time of the execution of the will [Art. 798]

SOUNDNESS OF MIND
Article 799. To be of sound mind, it is not necessary that the testator
be in full possession of all his reasoning faculties, or that his mind be
wholly unbroken, unimpaired, or unshattered by disease, injury or
other cause.
It shall be sufficient if the testator was able at the time of
making the will to know the nature of estate, proper objects of his
bounty, and character of the testamentary act
IMPORTANT:
1. Nature of the estate what the T is giving
2. Proper objects of his bounty recipients of Ts bounty; persons
to whom T is giving
3. Character of the testamentary act ambulatory and revocable
ORTEGA VS VALMONTE

Between the highest degree of soundness of mind and memory

which unquestionably carries with it full testamentary capacity, and
that degrees of mental aberration generally known as insanity or
idiocy, there are numberless degrees of mental capacity or
incapacity and while on one hand it has been held that mere
weakness of mind, or partial imbecility from disease of body, or
from age, will not render a person incapable of making a will; a
weak or feebleminded person may make a valid will, provided he
has understanding and memory sufficient to enable him to know
what he is about to do and how or to whom he is disposing; it is not
necessary that the mind be unbroken or unimpaired or unshattered
by disease or otherwise. It has been held that testamentary
capacity does not necessarily require that a person shall actually be
insane or of unsound mind. Ortega vs. Valmonte, G.R. No.
157451, December 16, 2005 citing Alsua Betts vs. CA , 92 SCRA
332 (1979)
PRESUMPTION OF SOUNDNESS OF MIND
Article 800. The law presumes that every person is of sound mind, in
the absence of proof to the contrary.
The burden of proof that the testator was not of sound mind at the time
of the making of the dispositions is on the person who opposes the
probate of the will, but if the testator, one month or less, before making
the will was publicly known to be insane, the person who maintains the
validity of the will must prove that the testator made it during a lucid
interval.

SUPERVENING INCAPACITY AND SUPERVENING CAPACITY

Article. 801. Supervening incapacity does not invalidate an effective
will, nor is the will of an incapable validated by the supervening of
capacity.
FORMS OF WILLS
1. ORDINARY OR NOTARIAL WILL
o With an attestation clause and
o Acknowledgment before a notary public
2. HOLOGRAPHIC WILL
o Entirely handwritten,
o Dated,
o and Signed by the T
SUBSECTION 3. FORMS OF WILLS
NOTARIAL WILLS
Article 805. Every will, other than a holographic will, must be
subscribed at the end thereof by the testator himself or by the
testator's name written by some other person in his presence, and by
his express direction, and attested and subscribed by three or more
credible witnesses in the presence of the testator and of one another.
The testator or the person requested by him to write his name and the
instrumental witnesses of the will, shall also sign, as aforesaid, each
and every page thereof, except the last, on the left margin, and all the
pages shall be numbered correlatively in letters placed on the upper
part of each page.
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 thereof, 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.
If the attestation clause is in a language not known to the witnesses, it
shall be interpreted to them.
REQUIREMENTS OF A NOTARIAL WILL
1. In writing
2. In a language known the testator
o This need not be indicated on the face of the will
3. Subscribed by the testator himself or by the testators name written
by another person in his presence, and by his express direction.
o T must sign at the logical end
o First name only valid
o Thumbmark, cross, initials Valid provided the T intends
this to be his signature

If T cannot write his name, another person may do so

provided:
1) It is done in the presence of T; and
2) It is by Ts express direction.
# person should not be one of the three instrumental
witnesses; person does not have to sign his/her own
name; cannot put his/her name instead of the Ts
Attested and subscribed by three or more witnesses in the
presence of the testator and of each other
o Attest to affirm to be true or genuine; to authenticate
officially
o Subscribe to write ones name underneath
o In the presence not physical presence but
POSSIBILITY OF SEEING WITHOUT PHYSICAL
OBSTRUCTION
Different scenarios (curtain, hallway, looking at a
passing celebrity)
Marginal Signatures. The testator or the person asked by him to
write his name AND the instrumental witnesses shall sign each and
every page of the will except the last, on the left margin
o Signatures appear on the last page already.
o Failure to comply with this is a FATAL DEFECT and
renders the will VOID.
o The purpose of this requirement is to PREVENT FRAUD.
o T signs second page but fails to sign the first page. Will is
VOID.
o If the whole will is only on one page, no need for marginal
signatures
o If the signatures appear on the right, upper, or lower
margin VALID; purpose is nonetheless served FRAUD
is prevented.
Numbered correlatively in letters on the upper part of each page
o Prescribed: One, Two, Three, etc
o Substantial Compliance: Page 1, Page 2, Page 3, etc.1,
2, 3, etc.
Attestation Clause
o Must include the ff. info:
a) Number of pages (know substantial compliance)
b) That the testator signed the will in the presence of the
instrumental witnesses
c) That the witnesses signed the will in the presence of
the testator and of one another
o Absence of the Attestation Clause = FATAL DEFECT #
Will is VOID.
o Attestation clause not signed by the witness at the bottom
= FATAL DEFECT # Will is VOID
o Failure to state number of pages = FATAL DEFECT #
VOID
o GR: No of pages not stated = VOID
"
E: When there is substantial compliance

4.

5.

6.

7.

There is substantial compliance when the number

of pages can be found somewhere else in the
will itself. There should be no need for evidence
aliunde
PURPOSES OF ATTESTATION CLAUSE:
1. To preserve in permanent form a record of the facts
attending to the execution of the will.
2. Proof of compliance with the statutory requisites for
the execution of the will.
3. To minimize commission of FRAUD.
Q: Attestation clause fails to state that the T signed in the
presence of the three witnesses. Is the will valid?
"
A: _________________________________
"

Q: Attestation clause states that the witnesses signed in

the presence of the T but is quiet as to whether or not the
witnesses signed in the presence of each other. Is the will
valid?
"
A: ____________________________________

REQUISITES OF A NOTARIAL WILL

NB: Commit to memory arts 804 to 809 of NCC for the Requisites
of a notarial will
Article 804. Every will must be in writing and executed in a language or
dialect known to the testator.
Article 805. Every will, other than a holographic will, must be
subscribed at the end thereof by the testator himself or by the
testator's name written by some other person in his presence, and by
his express direction, and attested and subscribed by three or more
credible witnesses in the presence of the testator and of one another.
The testator or the person requested by him to write his name and the
instrumental witnesses of the will, shall also sign, as aforesaid, each
and every page thereof, except the last, on the left margin, and all the
pages shall be numbered correlatively in letters placed on the upper
part of each page.
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 thereof, 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.
If the attestation clause is in a language not known to the witnesses, it
shall be interpreted to them.


Article 806. Every will must be acknowledged before a notary public by
the testator and the witnesses. The notary public shall not be required
to retain a copy of the will, or file another with the office of the Clerk of
Court.
Article 807. If the testator be deaf, or a deaf-mute, he must personally
read the will, if able to do so; otherwise, he shall designate two
persons to read it and communicate to him, in some practicable
manner, the contents thereof.
Article 808. If the testator is blind, the will shall be read to him twice;
once, by one of the subscribing witnesses, and again, by the notary
public before whom the will is acknowledged.
Article 809. In the absence of bad faith, forgery, or fraud, or undue 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.
DONATION MORTIS CAUSA

Partakes of the nature of testamentary provisions (Art. 728).

Thus, requisites of a notarial will must be complied with.

HOLOGRAPHIC WILL
Article 810. A person may execute a holographic will which must be
entirely written, dated, and signed by the hand of testator himself. It is
subject to no other form, and may be made in or out of the Philippines,
and need not be witnessed.
VDA. DE ENRIQUEZ VS. ABADIA, ET AL., (L-7188, AUGUST 9, 1954)

1923 Sancho Abadia executed a holographic will. Holographic will

were not allowed in 1923.

In 1946, the will was presented for probate.

On August 30, 1950, the NCC was adopted, thereby allowing

execution of holographic wills

In 1952 the trial court allowed probate.

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

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

PROBATE

Probate allowance of a will after proof of its due execution

In the probate of holographic wills:

UNCONTESTED

CONTESTED

1 witness who knows the

handwriting of the testator (not
necessarily the subscribing
witnesses)
At least 3 identifying witnesses

LOST OR DESTROYED HOLOGRAPHIC WILLS

Lost or destroyed holographic will without intent to revoke #

CANNOT be probated as there is no comparison as to Ts
handwriting

Photostatic copy of the holographic will # may be allowed as

there can now be comparison as to Ts handwriting.
NB: Holographic will can be made in the Philippines or outside the
Philippines
SUBSECTION 4. WITNESSES TO WILLS
Article 820. Any person of sound mind and of the of eighteen years or
more, and not blind, deaf or dumb, and able to read and write, may be a
witness to the execution of a will mentioned in Article 805 of this Code
QUALIFICATIONS OF WITNESSES
1. Of sound mind [Art. 820]
2. At least 18 years old [Art. 820]
3. Not deaf, blind or dumb [Art. 820]
4. Able to read and write [Art. 820]
5. Domiciled in the Philippines [Art. 821]
6. Not convicted by final judgment of:

FALSIFICATION of a document;

PERJURY; or

FALSE TESTIMONY [Art. 821]

DISQUALIFICATIONS
Article 821. The following are disqualified from being witnesses to a
will:
1. Any person NOT DOMICILED in the Philippines;
2. Those who have been CONVICTED of
FALSIFICATION OF
DOCUMENT, PERJURY or FALSE TESTIMONY.
DISQUALIFICATION OF A NOTARY PUBLIC

The notary public before whom the notarial will is acknowledged is

disqualified to be a witness to said will.

It would be absurd for him (as a witness) to be acknowledging

something before himself (as notary public).
Cruz v.Villasor, et al., L-32213, November 26, 1973

SUBECTION 5. CODICILS AND INCORPORATION REFERENCE

4.

It must be signed by the testator and the witnesses on each and

every page thereof, except when in case of voluminous books of
account or inventories.

SUBSECTION 6. REVOCATION OF WILLS AND TESTAMENTARY

DISPOSITION

CODICIL
Article 825. A codicil is a supplement or addition to a will, made after
the execution of a will and annexed to be taken as a part thereof, by
which any disposition made in the original will is explained, added, or
altered.

MODES OF REVOCATION
Article 830. No will shall be revoked except in the following cases:
(1) By implication of law; or

FORMS OF CODICILS
1. Notarial or Ordinary Codicils
2. Holographic Codicils
INCORPORATION BY REFERENCE
Article 827. If a will, executed as required by this Code, incorporates
into itself by reference any document or paper, such document or
paper shall not be considered a part of the will unless the following
requisites are present:
(1) The document or paper 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 paper referred to therein; and
(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.
WHEN MADE/PURPOSE

When the T wants to incorporate in his will certain documents only by

reference without need of copying or attaching said documents to the
will.
REQUISITES PER 827
1. Document in existence at the time of the execution of the will.
2. The will must clearly describe and identify the document
incorporated by reference.
3. The document incorporated by reference should be identified by
clear and satisfactory proof.

(2) By some will, codicil, or other writing executed as provided in case

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

Testator sells or donates the property after making the will.

[Art. 957]

Heir (compulsory or voluntary) commits an act or unworthiness.

[Art. 1032]
2. By a revoking will or codicil

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

be notarial or holographic.

The revoking will must be VALID.

Revocation must be definite.

o E: However, conditional revocation is allowed, i.e.
revocation takes place when a condition is fulfilled. This is
called conditional revocation or dependent relative
revocation.
3. Revocation by overt act

REQUISITES:
1. Overt act
2. Completion, at least of the subjective phase
3. Animus revocandi

BURNING
o The will need not be burned entirely.

If burning of the will is accidental, there is no revocation as

there is no animus revocandi.
o Remember the requisites for this act:
a) there be an overt act;
b) animus revocandi
o Situations
TEARING
o Document need not be torn into pieces
o Slight tearing is sufficient to constitute an overt act
o Subjective phase (as to the Ts intention) must completed
o Cutting is construed tearing.
o Situation: T tears will. X is able to stop T from tearing the
will. Is there valid revocation?
"
A: _____________________________________
OBLITERARING OR CANCELING
o Cancelling is made by putting lines across the disposition.
The disposition, however, can still be read.
o Obliterating renders the text no longer legible
o

REVOCATION BASED ON FALSE CAUSE

Article 833. A revocation of a will based on a false cause or an illegal
cause is null and void.

Article 837. If after making the will, the testator makes a second will
revoking the first, the revocation of the second will does not revive the
first will, which can be revived only by another will or codicil.
Example:
st
nd
st

Q: 1 will is made. T makes a 2 will revoking the 1 will. T makes

rd
nd
st
a 3
will revoking the 2
will.
Is the 1
will
revived/reestablished?
st
st
o A: No. The 1 will remains revoked. The 1 will can only
st
way the 1 will can be given effect is by way of:
1. Republication (re-execution and by codicil) made by
the T
2. Revival by operation of the law
EXPRESS REVOCATION
st
nd
st

Q: 1 will is made. T makes a 2 will revoking the 1 will. T makes

rd
nd
st
a 3 will revoking the 2 will. Is the 1 will required (feeling ko
revived yung word dapat ditto hindi required)?
st
nd
o A: No. The 1 will was revoked immediately by 2 Will.
The Principle of Instanter applies.
o The second will took effect immediately.
o While a will takes effect mortis causa, the revocation takes
effect inter vivos.

Example:

Q: T made a 1st will giving P10 M to Juan. Then he learned that

Juan figured in a vehicular accident and died. T then made a
second will bequeathing the P10M to Juana. A year later, T
learned that Juan simply joined the underground movement and
was in reality still alive. Who inherits, Juan or Juana?
o A: Juan. The revocation was based on false cause and is
therefore void as provided by Art. 833.

IMPLIED REVOCATION
st
nd
st

Q: 1 will is made. T makes a 2 will INCONSISTENT with the 1

rd
nd
st
will. T makes a 3 will revoking the 2 will. Is the 1 will
revived?
st
o A: Yes. The second will impliedly revoked the 1 will.
st
o 1 will is automatically revived

RECOGNITION OF AN ILLEGITIMATE CHILD

ALLOWANCE AND DISALLOWANCE OF WILLS

GR: Questions as to title of property cannot be passed upon in

testate or intestate proceedings, except where one of the parties
prays merely for the inclusion or exclusions from the inventory of
the property, in which case the probate court may pass
provisionally upon the questions without prejudice to its final
determination of the question in a separate action [Alvarez v,
Espiritu, August 14, 1965]

Article 834. The recognition of an illegitimate child does not lose its
legal effect, even though the will wherein it was made should be
revoked.
SUBSECTION 7. REPUBLICATION AND REVIVAL OF WILLS
DEFINITION

To republish a will is to REESTABLISH the same as it was either

void or has been already revoked
HOW IS REPUBLICATION DONE?
1. By re-execution (copying the same)
2. By codicil (implied republication

SUBSECTION 8. ALLOWANCE AND DISALLOWANCE OF WILL

OPTIONS OF AN ACKNOWLEDGED NATURAL CHILD (Uriarte vs Uriarte)

1. Motion for intervention
2. Petition to Reopen Proceedings
GROUNDS FOR DISALLOWANCE
Article 839. The will shall be disallowed in any of the following cases:
(1) If the formalities required by law have not been complied with;

(2) If the testator was insane, or otherwise mentally incapable of

making a will, at the time of its execution;
(3) If it was executed through force or under duress, or the influence of
fear, or threats;
(4) If it was procured by undue and improper pressure and influence,
on the part of the beneficiary or of some other person;
(5) If the signature of the testator was procured by 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.
SECTION 2. INSTITUTION OF HEIR
INSTITUTION OF HEIR

Institution refers to devisees and legatees

REQUISITES FOR VALID INSTITUTION
1. Will is extrinsically valid.
2. The institution is valid intrinsically.
3. The institution must be effective (no predecease, no repudiation by
the heir, no incapacity of the heir)
INSTITUTION OF CLASSES (CLASS INSTITUTION)

T can entrust to a third person the distribution of a specific property

of sums of money that he may leave in general to specified classes.
COMMIT TO MEMORY
1. There is only institution of heirs in testate succession.
2. Institution of heirs refer only to the Free Portion.
3. Legacies and Devises must not impair the legitimes.
PRETERITION
Article 854. The preterition or omission of one, some, or all the
compulsory heirs in the direct line, whether living at the time of the
execution of the will or born after the death of the testator, shall annul
the institution of heir, but the devises and legacies shall be valid
insofar as they are not inofficious.

REQUISITES FOR PRETERITION

1. TOTAL OMISSION in the inheritance
2. Of a COMPULSORY HEIR
3. Compulsory heir must be in the DIRECT LINE
Note: Spouse cannot be preterited as he/she is not in the direct line.
EFFECTS OF PRETERITION

The institution of heirs is annulled.

Annulment of the institution is automatic; there is no need for legal

action.

In brief, preterition renders the institution of the legatees and

devisees void

Q: Mario has three children Apple, Banana, and Carrot. Mario

made a will instituting Apple, Banana, and Dean Lawiswis. Carrot
was completely omitted. How is the P30 M estate divided?
o A: Apple, Banana, and Carrot shall share P10 M each.
Nothing for Dean Lawiswis.
Q: Can a spouse be preterited?

A: No. A spouse is not in the direct line?

Q: Can a brother or a sister be preterited?

A: No. Neither is in the direct line?

Q: Can an ascendant be preterited?

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

Q: Can an adopted child be preterited?

A: Yes. An adopted child has the same rights as that of the

legitimate child.
Q: Can an illegitimate child be preterited?

A: Yes. He is a compulsory heir in the direct line. The law does not
distinguish between legitimate children andillegitimate children.
PRETERITION
BY MISTAKE OR INADVERTENCE
VOLUNTARY OR INTENTIONAL
Considered true preterition

Considered defective disinheritance

Total intestacy results

Institution of heirs is not wholly void

but only insofar as it prejudices the
legitime of the person disinherited

If the omitted compulsory heirs should die before the testator, the
institution shall be effectual, without prejudice to the right of
representation.

Nullity of the institution is only partial

** Acain vs IAC (Oct 27, 1987)

10

VOLUNTARY HEIR

A voluntary heir who predeceases the T transmits nothing to his

heirs.

A voluntary heir cannot be represented.

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

This is void as it makes the execution of the will a contractual act.

Disposition captatoria vs. Reciprocal Succession
SECTION 3. SUBSTITUTION OF HEIRS

SUBSTITUTION OF HEIR

Substitution - is the designation by the testator of a person or

persons to take the place of the heir or heirs first instituted
(Rabadilla vs. Villacarlos)
KINDS OF SUBSTITUTION
1. Simple or common
o One takes the place of another
o In case of PIR/RIP
"
Predecease
"
Incapacity
"
Repudiation
2. Brief or compendious
o Brief 2 or more take the place of one
"
Ex. Annie is the instituted heir. Buknoy and
Charlie are her substitutes.
o Compendious one takes the place of two or more
"
Ex. Buknoy and Charie are the instituted heirs.
Annie is the substitute
3. Reciprocal
o Ex. Tatang instituted Alhambra to 4/5 of the property and
Buknoy to 1/5. If Alhambra predeceases, is incapacitated,
or renounces, her share of 4/5 goes to Buknoy. If Buknoy
predeceases, is incapacitated, or renounces, his share of
1/5 goes to Alhambra.
4. Fideicommissary
o Where the first heir called the fiduciary preserves and
transmits to the second heir called the fideicommissary the
inheritance.
o REQUISITES:
st
1. 1 heir (with right to usufruct)

2. 1s heir to preserve and transmit property

nd
3. 2 heir (naked owner, with full right of ownership upon
transmission of property to him; he inherits from the T)
st
nd
4. 1 and 2 heir must be one degree apart
Mnemonic: So Brief a Rendevous my Friend
20 YEAR PROHIBITION
Article 870. The disposition of the testator declaring all or part of the
estate inalienable for more than twenty years are void.
RESERVA TRONCAL
1. Origin
2. Prepositus
3. Reservor/Reservista
4. Reservees/Reservatarios
Q: What happens if the reservista sells the property, is the sale valid?

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

buyer then acquires a revocable title.

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

A: The property is released from reserva troncal and becomes part

of the estate of the reservista

If there are no reservatarios, the property subject of reserva troncal

is released and will be adjudicated in accordance with the regular
order of succession. Sumaya vs. IAC, Sept. 2, 1991
Q: Must there be annotation/registration?

A: Yes, if only to protect the rights of the reservatarios against

buyers in good faith and for value.
Q: Can the reservista dispose of the property in his will?

A: No for as long as the reservatarios are living. The property is not

his. The reservatarios are the heirs mortis causa. (See Tioco de
Papa vs. Camacho, Sept. 24, 1986)

11

SECTION 5. LEGITIMES

(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;

Article 886. 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.

(3) When a child or descendant has been convicted of adultery or

concubinage with the spouse of the testator;

LEGITIMES

COMPULSARY HEIRS

(4) When a child or descendant by fraud, violence, intimidation, or

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

Article 887. The following are compulsory heirs:

(1) Legitimate children and descendants, with respect to their
legitimate parents and ascendants;

(5) A refusal without justifiable cause to support the parent or

ascendant who disinherits such child or descendant;

(2) In default of the foregoing, legitimate parents and ascendants, with

respect to their legitimate children and descendants;

(6) Maltreatment of the testator by word or deed, by the child or

descendant;

(3) The widow or widower;

(7) When a child or descendant leads a dishonorable or disgraceful life

(4) Acknowledged natural children, and natural children by legal

fiction;

(8) Conviction of a crime which carries with it the penalty of civil

interdiction

(5) Other illegitimate children referred to in article 287.

GROUND FOR DISINHERITANCE OF PARENTS OR ASCENDANTS

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.

Article 920. The following shall be sufficient causes for the

disinheritance of parents or ascendants, whether legitimate or
illegitimate:

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 from them in the manner and to the extent
established by this Code.
ILLEGITIMATE CHILDREN

An illegitimate child gets half of what the legitimate child gets

SECTION 6. DISINHERITANCE
GROUNDS FOR DISINHERITANCE OF CHILDREN
Article 919. The following shall be 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;

(1) When the parents have abandoned their children or induced their
daughters to live a corrupt or immoral life, or attempted against their
virtue;
(2) When the parent or ascendant has been convicted of an attempt
against the life of the testator, his or her spouse, descendants, or
ascendants;
(3) When the parent or ascendant has accused the testator of a crime
for which the law prescribes imprisonment for six years or more, if the
accusation has been found to be 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 to change one
already made;
(6) The loss of parental authority for causes specified in this Code;

12

(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 a reconciliation between them.
GROUNDS FOR DISINHERTIANCE OF A SPOUSE
Article 921. The following shall be sufficient causes for disinheriting a
spouse:
(1) When the spouse has been convicted of an attempt against the life
of the testator, his or her descendants, or
ascendants;
(2) When the spouse has accused the testator of a crime for which the
law prescribes imprisonment of six years or more, and the accusation
has been found to be false;

Article 956. If the legatee or devisee cannot or is unwilling to accept

the legacy or devise, or if the legacy or devise for any reason should
become ineffective, it shall be merged into the mass of the estate,
except in cases of substitution and of the right of accretion.
Example:

T has a brother Jun but instead instituted Ime, her best friend, as a
legatee. Ime has two children Ian and Zara. If Ime repudiates,
neither Ian nor Zara can represent her as there is no right of
representation as to voluntary heirs.

As there is no substitute and accretion under the given facts, as

provided by Art. 956, the legacy shall be merged into the mass of
estate, and will therefore go to Jun as the nearest intestate heir
CHAPTER 3. LEGAL OR INTESTATE SUCCESSION
CHAPTER 4. PROVISIONS COMMON TO TESTATE AND INTERSTATE
SUCCESSIONS

(3) When the spouse by fraud, violence, intimidation, or undue

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

INSTITUTION,
INTESTACY

(4) When the spouse has given cause for legal separation;

ACCRETION DEFINED

(5) When the spouse has given grounds for the loss of parental
authority; (

Article 1015. Accretion is a right by virtue of which, when two or more

persons are called to the same inheritance, devise or legacy, the part
assigned to the one who renounces, or cannot receive his share, or
who died before the testator, is added or incorporated to that of his coheirs, co-devisees, co-legatees

6) Unjustifiable refusal to support the children or the other spouse.

(756, 855, 674a)
NOTES:

In case of reconciliation between the parties, the offended person

loses his right to disinherit.

Any disinheritance is rendered ineffectual by a reconciliation

Disinheritance covers both the legitime and the free portion. The
person is completely disinherited.

SUBSTITUTION,

REPRESENTATION,

ACCRETION,

REPRESENTATION DEFINED

SECTION 7. LEGACIES AND DEVISES

Article 970. Representation is a right created by fiction of law, by virtue

of which the representative is raised to the place and the degree of the
person represented, and acquires the rights which the latter would
have if he were living or if he could have inherited.

Article 950. If the estate should not be sufficient to cover all legacies
or devises, their payment shall be made in the following order:
1. Remuneratory legacies and devises;
2. Legacies or devises declared by the testator to be
preferential;
3. Legacies for support;
4. Legacies for education;
5. Legacies or devises of a specific or determinate thing which
forms a part of the estate;
6. All others, pro rata.

LEGAL OR INTESTATE SUCCESSION

There is no will.

Principle of Nearer Excludes the Farther

1. Car dies intestate leaving Ghia a daughter and a niece Chiclet.
Only Ghia inherits because the nearer excludes the farther.
Chiclet does not inherit.
2. Froilan dies without a will and leaves behind a grandmother
and a sister. Only the grandmother inherits. Although Froilan
and his sister are two degrees apart just like Froilan and his
grandmother, the direct line is preferred over the collateral line.

13

NOTA BENE
1. The right of representation takes place in the direct
descending line, but never in the ascending line. [Art. 972, par.
1]

Lola has a child called Mother. Mother has a child called

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

Q: Angie has brother named Jun and a sister named Joy.

# Jun has a daughter named Juna. # Joy has a daughter
named Angel. # Angel has a daughter named Angelina.
# Angie died intestate. # Jun, Joy, and Angel pass away,
too. # Only Juna and Angelina survive. Who of them, if
any inherit from Angie?
o A: Only Juna inherits from Angie. The Under Art.
972, in the collateral line, it takes place only in
favor of children of brothers or sisters, whether
they be full or half-blood. Representation in the
collateral line is limited then to nieces and
nephews. Since Juna is a child of a brother and
is a niece of Angie, she is the only one who
inherits. Angelina does not inherit as she is not a
child or a brother or sister. Her relation to Angie
is that of a grandniece. In gist, only Juna inherits.
INHERITANCE PER STIRPES AND INHERITANCE PER CAPITA
INHERITANCE PER STIRPES
PER STIRPES inheritance by
GROUP. All those in the group
inherit in equal shares. In Per
Stirpes, heirs inherit by way of
representation
Example:
Angie had a brother named Jun.
Jun has two children Earl and Juna.
Angies sister Joy only has one child
named Angel. Angie passed away.
Jun also passed away. Estate of
Angie is P1M. Divide. Juns
children represent him.
Junas and Earls share partake that
of their fathers share.
Joy gets P500T and

INHERITANCE PER CAPITA

Heirs inherit in their own right

Example:
Q: In the problem given above, if Jun
and Joy also pass away, how will the
estate be divided?
A: Angel, Juna, and Earl will divide
the P1M among themselves. They
inherit per capita

Juna and Earl get the other P500T.

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

st

1 part per stirpes by group

nd
2 part per capita by their own right

RIGHT OF REPRESENTATION EXISTS IN THE FOLLOWING CASES

1. Predecease (testate and intestate)
2. Incapacity (testate and intestate)
3. Disinheritance (this happens only in the case of testate succession)
Note: In testate succession, the right of representation covers only the
legitime. [Art. 806 and 1035]
CASES:

Bagunu vs. Piedad, Dec. 8, 2000

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

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

o Right of representation does not extend to grand nephews
and nieces, only to nieces and nephews (children of
brothers and sisters)
EFFECTS OF ADOPTION

Under the Art. 189, FC, Adoption shall have the following effects:
1. For civil purposes adopted shall be deemed to be the
legitimate child of the adopter or adopting parent;
2. Parental authority of the natural parents is lost and transferred
to the adopting parents;
3. Adopted shall remain an intestate heir of his parents and other
blood relatives
Article 190. Legal or intestate succession to estate of the adopted shall
be governed by the following rules:
1.
Legitimate and illegitimate children and descendants of the
surviving spouse of the adopted shall inherit from the adopted, in
accordance with the ordinary rules of legal or intestate succession;
2.
When the parents, legitimate or illegitimate or the legitimate
ascendants of the of the adopted concur with the adopters, they shall
divide the entire estate in equal shares, one-half to be inherited by the
spouse or the illegitimate children

14

IRON BAR RULE/IRON CLAD RULE

3.
When the surviving spouse or the illegitimate children of the
adopted concur with the adopters, they shall divide the entire estate in
equal shares, one-half to be inherited by the spouse or the illegitimate
children of the adopted and the other half, by the adopters.
4.
When the adopters concur with the illegitimate children and
the surviving spouse of the adopted, they shall divide the entire estate
in equal shares, one third to be inherited by the illegitimate children,
one third by the surviving spouse, one third by the adopters.
5. When only the adopters survive, they shall inherit the entire estate.
6.
When only blood collateral blood relatives of the adopted
survive, then the ordinary rules of legal or intestate succession.
Example:

Airos is an adopted child. Her parent by nature is Richard. She is

adopted by Grace and Noel. Airos passes away leaving behind
Richard, Noel, and Grace. Divide the estate the estate of P2M.
o A: Richard gets P1M. Noel and Grace share the P1M or
P500T each.
Example:

Danz is an adopted child leaving behind her three children and her
husband. The estate is P4M. Divide the estate.
o A: All children get P1M each. The surviving spouse gets
the share equal to the share of each child. Hence,
husband gets P1M

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
RATIONALE FOR THE IRON BAR RULE:

The illegitimate child is disgracefuly looked upon by the legitimate

family; the legitimate family is in turn, hated by the illegitimate child;
the latter considers the privileged condition of the former, and the
resources of which it is thereby deprived; the former, in turn sees in
the illegitimate child nothing but the product of sin, palpable
evidence of a blemish broken in life; the law does no more that
recognize this truth by avoiding further grounds of resentment. (7
Manresa 10 cited in Grey v. Fabie)
** See diagram on the board
ACCRETION

The share of the person who repudiates shall accrue to his coheirs. [Art. 1018 NCC]

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

Accretion shall take lace among devisees, legatees, and

usufructuaries under the same conditions established for heirs. [Aft.
1023, NCC]

NB: A renouncer may represent [Art. 976] but may not be represented [Art.
977].

Q: Melle and Tris are married. They have three children, Agnes, Coco, and
Frances. During the lifetime of Tris, Agnes renounced her inheritance from
her father. Upon Tris death, will the right of accretion apply?

A: No, the right of accretion will not apply. Agnes renounced her
inheritance during the lifetime of her father. Renunciation of future
inheritance is thus void. Renunciation must be done after the death
of the Tris.

RIGHT OF REPRESENTATION

PERSONS INCAPABLE
UNWORTHINESS

REPUDIATION
Article 977. Heirs who repudiate their share may not be represented.

Article 970. Representation is a right created by fiction of law, by virtue

of which the representative is raised to the place and the degree of the
person represented, and acquires the rights which the latter would
have if he were living or he could have inherited.
ADOPTED CHILD

An adopted child cannot represent and cannot be represented.

OF

SUCCEEDING

BY

REASON

OF

Art. 1032. The following 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,
ascendants;

15

3.
4.

5.
6.
7.
8.

Any person who has accused the testator of a crime for which
the law prescribes imprisonment for six years or more, if the
accusation has been found to be groundless;
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.
Any person convicted of adultery or concubinage with the
spouse of the testator.
Any person who by fraud, violence, Intimidation, or undue
influence should cause the testator to make a will or to change
one already made;
Any person who by the same means prevents another from
making a will, or from one revoking on already made, or who
supplants, conceals, or alters the latters will;
Any person who falsifies or forges a supposed will of the
decedent.

ACCEPTANCE AND REPUDIATION

Acceptance and repudiation retroact to the date of death of the

decedent.

Acceptance may be express (in writing; private of public) or tacit

(resulting from acts that imply acceptance).

Repudiation of an inheritance shall be made in a public or authentic

instrument, or by petition presented to the court having jurisdiction
over the testamentary or intestate proceedings. [Art. 1051, NCC]
COLLATION
COLLATION DEFINITION

Computing or adding certain values to the estate and charging the

same to the legitime.
DUTY TO COLLATE

Every compulsory heir, who succeeds with other compulsory heirs,

must bring into the mass of the estate any property or right which
he ma have received form the decedent, during the lifetime of the
latter, by way of donation or any other gratuitous title, in order that it
may be computed in the determination of the legitime of each heir,
and in the account of the partition.
NOT SUBJECT TO COLLATION
1. Expenses of education (elementary and secondary), support,
medical needs, customary gifts (Art. 1067)
2. For professional, vocation, re career (Art.1067)
3. Wedding gifts except when they exceed 1/10 of the sum disposable
by will (Art. 1070)

4.
5.

Donation to the spouse of the child (Art. 1066)

Parents are not obliged to bring to collation in the inheritance of
their ascendants any property which may have been donated by the
latter to their children (Art. 1065)

SELF-ADJUDICATION VS EXTRAJUDICIAL SETTLEMENT

If there is only one heir, there is no need for a judicial declaration of

heirship. He may execute an affidavit entitled Self-Adjudication and
have it registered with the Registry of Property.
REQUISITES FOR EXTRAJUDICIAL SETTLEMENT:
1. no will
2. no debt
3. heirs of legal age
4. public instrument
--------------------------------------------- END -------------------------------------------------