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Succession |Atty. Gujilde| EH403 | A.Y. 2016- 2017

JULY 12, 2016 (Rudas): (ORAL RECITATION)
In witnesses to a will, what kind of will does it refer to?

notarial will

Are you saying, you cannot do this to a holographic will?

Not necessary sir.

What about if your friend wants to witness because she

wants to be a part of your estate.

Allowed but it is a mere surplusage.

Is there an instance does that surplusage became useful?

Incorporation by reference is generally applicable to notarial

will except if the holographic will has 3 witnesses.

Who are qualified to be a witness to a will?

Sound mind
o Does NPC (knows the Nature of the property,
proper objects of bounty and character of
disposition) apply here?
No. the sound mind here is not in the same
context as the testator being of sound mind. For
a witness, just the soundness of mind without
knowing the nature of the property.
Atleast 18
Able to read and write
o Is it necessary to know the language of the will
by the witnesses?
No. not necessarily
o Is the witness even required to read the will?
o If he is not required, then what is he a witness of?
The act of the testator executing the will and his
o How can we be so sure of that they one testify as
having made by the testator is the same will
that you witnessed?
The signature is attached to the will.
Thats the purpose of the signature. To make
sure that the one being signed by the testator is

also the one being witnessed by you besause

you signed alongside with the testator
Not blind, deaf and mute
o Why does this disqualify?
Because the means of communication is
somewhat impaired. The will, after the death, is
the dead man talking. So if impaired, in so far
as communication is concerned, it cannot serve
the purpose.
o Does it mean that all 3 must concur?
Resided in the the Philippines
o What is domicile within the context of
Habitual residence of the witness
o Why not citizenship? Why the domicile?
Assurance of being available during probate
Likeliness of personal acquaintance with the
o There was an example in the book, a will executed
abroad. Should it be witnessed in the Phlippines?
No, it will defeat the purpose regarding their
credibility during probate proceedings
Not convicted of falsification, perjury or false testimony
o False testimony
o Is this exclusive?
Not exclusive. Statutory construction.
The element of dishonesty and the intent
Can we not includ other crimes? since it would appear there
are other crimes that also involve mental dishonesty.
o It is a judicial question
Does it have to be conviction with finality?
o Yes.
What about if there was pardon?
o It depends.
o If pardon was given because of the mans innocence,
he can act as a witness to a will because there there is
no mental dishonesty.
o If the absolute pardon was an act of executive grace of
clemency, the disqualification remains, for even
absolute pardon does not remove civil consequences.

Gamayon | Ibarra | Rudas | Singh | Torcal |Tunacao | Villalon UNIVERSITY OF SAN CARLOS

Succession |Atty. Gujilde| EH403 | A.Y. 2016- 2017

the would-be witness still has a taint of mental
Q: sir, what if proven in court to be a pathological liar but it is
not a crime, would it disqualify the witness?

It would seem that this is only in so far as those under the

criminal law is concerned, so if there is a crime. But probably,
what you are saying pathological liar or psychological
incapacity something like that.. civil aspect. It depends. Again
it its all about statutory construction. If we are going t be very
literal about this, this is what we call as literal construction of
the law, we stick to what the law says in the absence of
ambiguity. But if we are going to be liberal about it, liberal
construction, you go to the intent of the law. And the intent of
the law is to disqualify those who cannot be relied upon, those
who are mentally dishonest.

Q: But, sir, how about the conviction?

Well, yeah. It says here finality of conviction. It presupposes

that it is really a crime under the law. BUT again, it depends on
how you construe the law. It could be liberal or literal.

Q: sir, what if mala prohibita like BP 22? where intent is not

Bottomline: It deends. It the judge is going to construe that literally,
through the letter of the la, or liberally, through the intent of the law.
Rule in statutory construction, intent prevails even over expressed
language of the law.
Q: attorney, how do you define conviction?

With finality. Meaning there is no remedies. Uner the criminal

law ha.

When does the qualification be possessed by a witness?

During the time of attesting

What if, after the execution of the will, the witness becomes

It is immaterial because what is necessary is during the

attesting of the wil, they are capacitated.

But does it not cause problem this time?

In case of probate proceeding, they will be called to testify but

then they are disqualified
BUT I think that is a remote possibility. There are actually 3
witnesses here, thats exactly the reason why the law asks one
more because normally we only need 2 witnesses. For wills,
we need 3 witnesses, maybe 1 will subsequently become
incapacitated, then 2 more can still tell the story.

What is the difference between capacity to witness a will and

to testify in court?

Capacity to testify a will are the requirements set forth in the

civil code while capacity to testify in court doesnot have
exclusive requirements
To testify in court, you only need very minimal requirement,
only organs of perception - ability to perceive. To tell the story
o articulate what you perceive. Tell that in court.

Why is it that there are more qualifications for a witness?

It requires strict scrutiny because it is an act of ownership,

when you are a testator and youre making a will. Minimal
qualification of a testator, atleast 18 years old and of sound

Is the notary public allowed to be a witness to the will?

No, it will be absurd there will be conflict of interest.

May a witness inherit?

It depends. If compulsory heir, he is entitled to his legitime.

If devise or legacy, not allowed.
If voluntary heir, not allowed.

Bottomline: If you are a witness, you cannot get something out of

the free portion. But if youre a compulsory heir, you are to get
something otherwise it circumvents the law.
Is the witness the only one disqualified

No. Also the spouse, parent or child of the witness , OR anyone

claiming the right of said witness, spouse, parent or child
The creditor will get something, not in his capacity as witness
but as ceditor

Is the disqualification absolute?

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Succession |Atty. Gujilde| EH403 | A.Y. 2016- 2017

No. In case there are 4 witnesses, the 4 th witness is not
But is this witness really incapccitated to be a witness? What
is the incapacity?

Only the incapacity to inherit but not as a witness

Revocation of wills
Are wills revocable?


May a valid will be revoked by an invalid will?

What if it is a valid will but ineffective?


If there is a time after the execution of the will that you

are no longer of sound mind, you are can no longer
If revocation is based on false or illegal cause
E.g. If they only want to deny the compulsory
heir of his legitime

Can the testator say that I just waive my right to revoke?

He can waive but the law does not mind him. The law says he
cannot waive that nor can it be restricted.

May a will be presented for probate during the lifetime of the



A will is presented for probate and approved already, and the

approval of the allowance was already final and executory.
And now you changed your mind, you issued another codicil
revoking what was already approved bby the court. can you
do that?

Yes because testator has right to revoke at any time before his
death, hence it is still absolute. The making of a will is a
personal act even if there is a final decision of the court
allowing his will, you want to change that because youre still
alive, you can change that because your intention is the
supreme law in succession.

When to revoke a will?

Anytime as long as you are of sound mind

E.g. You insitituted me in a will, revoked it and instituted C
instead who turned out to be dead already. That is ineffective.

Where to revoke a will? Is there a particular place?

Is the right to revoke absolute?


NO. if there is no particular place, you can revoke it anytime

and anyplace.

What if you revoke a will outside the country and not

domiciled in the country, what law are you going to follow?
(so domiciled in the Philippines)

Law of the Philippine; OR

General rule of lex loci celebrationis of the revocation

What if revoked outside the country and domiciled in that

counry? (not domiciled in the Philippines)

Follow law of place where will was made; OR

Law of place where testator was DOMICILED at the time

How to revoke a will? Art 830

by implication of law
by some will, codicil, or other iting wxwcuted as prvided in
case of wills; or
by burning , tearing, cancelling, or obliterating the will

Example by implication of law

After testator made a will then he sells or donates the legacy

or devise
Provision in a will in favor of a souse who has given legal
cause for legal separation shall be revoked (operation of law)
When an hir, legatee or devisee commits an act of
unworthiness (implication of law)
A credit had been given as a legacy is judicially demandable
by the testator
One or more or all of the compulsory heirs have been
preterited or omitted, the institution of heir is void ( Operation
of law)

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Succession |Atty. Gujilde| EH403 | A.Y. 2016- 2017

Implication of law vs Operation of law

Implication of law is when youre doing something and the law

considers that as implied revocation (the law ratifies it) while
Operation of law is you did not anything, the law says so it

JULY 16, 2016 (Torcal): (LECTURE)

Effect of subsequent incapacity nothing, it doesnt affect the

validity of the will, but it affects the witness competence to testify in

Who may be a witness?

Any person who, at the time of attesting:

o Sound mind
Sound mind is presumed EXCEPT if the testator
was publicly known to be insane one month or
less before making his will or if he made the will
after he had been judicially declared insane and
before such order had been set aside
o At least 18 years old
o Literate
o Not blind, deaf or dumb
Dumb intellectually challenged
Need not concur; just one of these disabilities
already impairs the capacity to communicate to
the court what you saw as a witness to the will
o Domiciled in the country
Citizenship is not required.
The reason for the requirement that witness
must be domiciled in the PH is to ensure that
the witness is in full acquaintance with the
testator and that he is readily available during
o Not convicted of falsification, perjury or false testimony
Bottom line is mental dishonesty.
This enumeration is not exclusive. Thus,
conviction for other crimes that involve mental
dishonesty disqualifies one from witnessing a

Who cannot be a witness?

Notary public before whom will is acknowledged

Reasons: (1) absurdity and (2) conflict of interest.

Immaterial as to validity
material as to capacity to testify
witness to a will is different from witness in court
Witness in court is somebody who is capable of
perceiving and of communicating what he has
perceived. Thus, one who is deaf, dumb, or blind may
still be a witness in court as long as he is capable of
perceiving and communicating information, but he
cannot be a witness to a will because he is expressly
disqualified for being deaf, dumb or blind.

Witness who cannot inherit

a witness to whom or whose spouse or, parent, or child a

devise or legacy is given
any one claiming the right of said witness, spouse, parent, or
it applies not only to devisee or legatee but also voluntary or
compulsory heirs
a creditor may witness

Revocability of wills

Prior to death, a will is ambulatory

Heirs acquire no vested right
It is allowed to make provisions that are effective immediately
during lifetime

The right to revoke is absolute

Any waiver or restriction of the right to revoke is void

Except when

It is based on false or illegal cause

Testator is incapacitated

When to revoke

Any time before death

Gamayon | Ibarra | Rudas | Singh | Torcal |Tunacao | Villalon UNIVERSITY OF SAN CARLOS

Succession |Atty. Gujilde| EH403 | A.Y. 2016- 2017

Except when testator is incapacitated (soundness of mind)
Where to revoke by what law

If revoked by person out of and not domiciled in the country,
valid if done according:
o Law of place where will was made; or
o Law of domicile of testator
If out but domiciled in the country
o Law of the Philippines
If revoked in the Philippines Phil law

How to revoke

By implication of law
By some will codicil or other wrting; or
By overt acts

Requisites to revoke by overt acts

Who revokes

How revoked by implication of law

Acts of disposal of property (selling, donating, assigning rights)

Provisions for a spouse who gave cause for legal separation is
revoked by operation of law upon decree of legal separation
o This is where the law operates. Upon grant of the
decree, it automatically revokes. No need for the
testator to revoke. The law did it for him.
When heir, legatee, or devisee commits a act of unworthiness
When credit as legacy is judicially demanded
o The demand must be judicial, not personal
Preterition voids institution

How revoked by will, codicil or other writing

o By subsequent will or codicil
o Must be a valid will, as to form
o Must be definite except conditional revocation
Implied just because its in writing, it isnt necessarily an
express revocation.
o Irreconcilable inconsistency of provisions
o If party irreconcilable, it results in implied partial
o Revocation by implication is disfavored hence
inconsistency must be harmonized;

Overt act specified by law

o The enumeration of overt acts provided by law is an
exclusive list, but, really, its a matter of argument.
Completion of at least subjective phase
o Subjective phase the testator already considered it
Animus revocandi
Testator must have capacity to make a will

Other person
o In the presence of testator so that the testator could
be certain that what is being destroyed is indeed the
will he intends to revoke. Thus, webcam call does not
qualify as being in the presence.
o Under his express direction

Destroyed without authority

May still be established

If contents, due execution and fact of destruction are
established according to Rules of Court

May such revocation be ratified?

Yes, because even if at the time there was no animus revocandi but
the testator didnt do anything, that is silent ratification. Otherwise, if
he didnt like the unauthorized revocation, he might as well republish
the will.
How to revoke by overt acts

o Sufficient even if only a small part is burned provided
that the subjective phase has already passed
o Even if the entire writing be left untouched
o Physical act must be coupled with intent
o Sufficient even if a slight tear
o Only signature is torn
o Drawing of lines across texts

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Succession |Atty. Gujilde| EH403 | A.Y. 2016- 2017

o Words remain legible
o If only signature is cancelled, it goes to the heart of the
o Cancelling vital parts leave other parts in force
o Drawing of lines that make words illegible
o Cancelling vital parts leave other parts in force
Remedy against revocation

Republication of will voided by revocation

o Re-execution of original will
o Execution of codicil through incorporation by reference

Revocation of revoking will

does not revive first will because once a will is revoked, it

results in nullity and a subsequent will cannot revive a null and
void first will
UNLESS another will or codicil is made

Kinds of Probate

Act of testator or operation of law like:

o Omitted heir dies ahead of testator
o Revocation of second will that impliedly revoked the
first revives the latter


Act of proving before and approval by a competent court the

due execution of a will by a person possessed of testamentary

Need for probate

Required by law
It is a proceeding in rem
o Except when the distribution is concerned.
o The will is secret only insofar as the testator is
concerned while he is alive or while he wants to keep it
a secret. He may, however, waive the secrecy.
Property right
o We cannot deprive a person of hs right to dispose of his
property by virtue of a will.

Who petitions
o Testator
Others cannot petition during the lifetime of the
testator because no right have vested yet.
o Any time prior to death
o RTC of the province where
Testator resided at the time of death; or
Location of property
NOTE: Jurisdiction may be with the MTC (below
P20K) or the RTC depending on the value of the
o Follow procedure for post mortem probate

Post mortem Probate

Probate, defined.

During lifetime of testator (Ante mortem)

After death of testator (post mortem)

Ante mortem Probate

Republication vs Revival

Minimize collusion to cheat other heirs

Who petitons
o Executor, devisee, legatee or any interested person
o Any time after death
o Not subject to prescription because the Statute of
Limitations does not apply to special proceedings
o Not subject to estopped because it is impressed with
pubic interest and it might block the ascertainment or
determination of the truth
o RTC of the province where
Testator resided at the time of death; or
Location of property
NOTE: Place of residence is preferred.

Wills proved outside of country

Gamayon | Ibarra | Rudas | Singh | Torcal |Tunacao | Villalon UNIVERSITY OF SAN CARLOS

Succession |Atty. Gujilde| EH403 | A.Y. 2016- 2017

According to laws of foreign country
May be allowed, filed and recorded by the probate court
File petition with authenticated copy of will and decree of
By executor or other interested person
Notice of hearing is caused as in the case of allowance of
original will
If allowed, judge issues certificate of allowance with same
effect as if originally proved and allowed in the probate court
A foreign will probated in a foreign country takes effect when

It is proved and allowed in probate court like a will originally

presented for allowance
It is show that the foreign will has been validly executed

If a foreign will was not probated

Ordinary probate procedure is required in the country

How (post mortem probate)

Petition probate court and allege:

o Fact, place and date of death
o Will is left
Attached if available
Allege name of person with custody so the court
can issue a subpoena and hold him in contempt
if he refuses
o Will complies with legal requirements
o Names, ages, addresses of executor and all interested
parties of heirs
o Probable value and character of the estate
o Name of person to be appointed executor

Probate of lost or destroyed holographic will

Determination of heirs
Proof of filiation
Determination of estate
o Determination of ownership is provisional
GENERAL RULE: A probate court cannot act on
question of title and ownership.

Cannot be probated if there is no other copy

Probate of lost or destroyed notarial will

Two witnesses to testify

o The notary public, though not required, is highly
encouraged to retain a copy of the will and to file it
with the notarial section because (1) it is difficult for
the witnesses to testify as to the contents of the will
because they are not even required to know the same
and (2) there is always the possibility that all the
witnesses and the notary public himself will die before
the will is probated.

Parts of Post Mortem Probate

Matters brought before probate court

(1) When the parties who are all heirs

voluntarily submit this matter to court;
(2) When, provisionally, the ownership is passed
upon to determine whether or not the property
involved is part of the estate.
(3) When the only interested parties have
already appeared in the proceeding. This is so
when the claimants belong to the poor stratum
of society. Instead of being compelled to file a
separate action, they should be allowed to file a
motion in the form of a complaint in a probate
Claims against estate

Extrinsic validity
Intrinsic validity
Distribution not proceeding in rem, meaning it does not bind
you if you didnt know about it

Extrinsic validity

Due execution undue influence impairs the freedom of

o Formalities
o Absence of any ground for disallowance
Testamentary capacity
o At least 18
o Of sound mind

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Succession |Atty. Gujilde| EH403 | A.Y. 2016- 2017

Intrinsic validity

Who gets how much

Impairment of legitime


Requirements before distribution

o Decree of partition
o Payment of estate tax
o Delivery of shares

What if there is only one heir?

Adjudication by sole heir to make sure that indeed that is the
intention of the testator and that the heir is capacitated to inherit.
Termination of probate

Upon approval of project of partition

Granting of petition to close proceedings
Issuance of order of distribution

Grounds for disallowance of will exclusive

Non-compliance with legal formalities

o Form
o Testamentary capacity
Insanity of testator at the time of execution
o Sanity is presumed
Will was executed through force or under duress, or the
influence of fear, or threats
o Coercion, mental or physical
Will was procured by undue and improper pressure and
o Coercion that displaces judgment (naikog wa

Moral ascendancy

Confidential, family, spiritual and other relations

Mental weakness, ignorance or in financial distress

Mere inequality in distribution, no matter how great, is not evidence

of undue influence.
Diversity of apportionment is the usual reason for making a
testament, otherwise decedent for making a testament, otherwise
decedent might as well die intestate.
Undue influence that vitiates one disposition does not annul the
May undue influence be ratified? Yes.

Signature was procured by fraud

o Use of insidious machination to convince a person to do
something he would not have done (trickery)
o There must be intent to defraud
Fraud and undue influence are mutually exclusive of each
Mistake or lack of testamentary intent

Distinction between revocation and disallowance:

o voluntary act of the testator
o with or without cause
o may be partial or total
o by judicial order
o for legal cause
o always total EXCEPT where fraud/undue influence
affects only certain portions of the will

JULY 19, 2016 (Ibarra): (ORAL RECITATION)

Why can there be no institution is intestate succession

Intestate succession presupposes that a compulsory heir must

be given his legitime. Testate succession is act of the testator.
Intestate succession takes effect by operation of law.

Generally, institution applies only to legatees and devisees

because it refers only to the free portion. But can we institute
the compulsory heirs?

Gamayon | Ibarra | Rudas | Singh | Torcal |Tunacao | Villalon UNIVERSITY OF SAN CARLOS

Succession |Atty. Gujilde| EH403 | A.Y. 2016- 2017

Yes, but this is redundant and superfluous because they are
already entitled to their legitime by operation of law whether
or not they are instituted to it in the will.
But can we institute the compulsory heirs to the legacies and

Yes, a compulsory heir can have a dual status. He is entitled to

his legitime as a compulsory heir, and he may also receive his
share from the free portion (legacy/devise) as a voluntary heir.

Is there an instance when there is a need to institute the

compulsory heirs to the legitime?

Gujis answer: When the testator wishes to specify which

properties shall be disposed of as part of the free portion (to
be given to the legatees and devisees) and which shall go to
the compulsory heirs as part of the legitime.
Classmates answers: (1) When disinheritance is revoked by
a subsequent will, instituting the disinherited heir as an heir;
(2) When a previously preterited heir is instituted so that the
institution of heirs becomes valid;

May a conceived child be instituted?

Yes, subject to the provisions of Art. 40 and Art. 41. Thus, a

conceived child shall be considered born if it is alive at the
time it is completely delivered from the mothers womb.
However, if the fetus had in intra-uterine life of less than 7
months, it is not deemed born if it dies within 24 hrs after its
complete delivery from the maternal womb.

What are the requisites for valid institution?

There are three: (1) the will must be extrinsically valid; (2) the
institution must be intrinsically valid; (3) the institution must
be effective (the heir doesnt predeceases, repudiates or
becomes incapacitated).

So are you saying that if the heir predeceases, repudiates or

becomes incapacitated, the will becomes invalid?

No, it is a VALID but INEFFECTIVE will. This means that the

institution cannot be enforced anymore. However, the heir
who predeceased or who became incapacitated may still be

What if a will fails to institute an heir. Strictly speaking, is it

still a will?

No, because strictly speaking, it is only a will if (inaudible).

What if the institution does not comprise the entire estate?

This results in mixed succession. The remaining properties

undisposed of in the will shall pass on to legal succession.

What if youre a very rich orphan without a compulsory heir,

how free are you to dispose of your property through a will?

You are free to give your entire property to anybody you like
provided the voluntary heir is capacitated to succeed.

Is this freedom to dispose absolute?

No. The exception is if you apply for a homestead but prior to

the issuance of the patent you die, in which case your rights
could be given only to your spouse. (Gujis comment: Of
course theres no freedom to speak of because youre already
dead. The disposition here is by operation of law).

If you have compulsory heirs, how free are you to dispose of

your properties?

You are free to dispose of your properties as long as the

legitime of your compulsory heirs is not impaired.

Are there any instances when the legitime may be touched?

A: Yes, there are two: (1) Disinheritance (the disinherited heir

cannot claim his legitime) and (2) Reserva troncal.

How do you designate an heir?

By name and surname, as much as possible. But nicknames,

aliases, pet names are okay as long as it refers to the heir
instituted and the testator knew him by such name.

What if two persons share the same complete name?

The testator must indicate some circumstances to ascertain

the one intended by the testator to be instituted.

What if despite the distinguishing circumstance there is still


No one inherits.

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Succession |Atty. Gujilde| EH403 | A.Y. 2016- 2017

Why not give them 50/50?

Because it would frustrate the intention of the testator.

What if there is an error in names or circumstance? Does it

nullify the institution?

No, if the intended heir can be ascertained through any other


What if I say My brilliant student Daileg and there are three


No one inherits if there is impossibility of identification even

after examination of extrinsic evidence.

What if my estate is P1M and I designate A, B, and C, but I

indicated that A should only get P100K. How much will B and
C get?

B and C will each get P450K.

What if my estate is P900K and designate A, B, and C as my

heirs, but I indicated that B will get my Rafael Nadal racquet
worth P100K, then C will get my F.R.I.E.N.D.S. complete DVD
collection worth P50K. How much will A, B, and C get?

A will get P300K. B will get P200K + the racquet worth P100K.
C will get P250K + the DVD collection worth P50K.

What if I instituted you as an heir because I thought you

topped the prelim, but you did not?

They each will get an equal share because within that context,
they are all in the same category of strangers/friends.

What if its legal succession? Can they all still inherit?

The share of each student-heir must

proportionately to cover the entire estate.



What if I was too arrogant and I gave you all P2M each and
my estate was insufficient?

A: The share of each student-heir must be decreased


JULY 20, 2016 (Tunacao): (ORAL RECITATION)

They will each get an equal share.

What if full-blood, half-flood, brother-in-law, step brother,

illegitimate brother?

If the real motive for the institution is illegal, the institution is

void. However, if the real motive is liberality and the illegal
cause is only incidental, the institution is valid.

What if Im very rich and I instituted the whole class to my

entire estate and I gave you P1M each, but it turned out my
estate was much higher than the total of what I have given to
the class?

P200K each.

What if I institute my brothers and sisters and some of them

are half-blood and full-blood?

Institution is valid. We just disregard the false cause unless it

appears in the will that the testator would not have made the
institution if he had known of the falsity of such cause.

What if the institution is based on an illegal cause?

What if I designate A and B and the children of C to my P1M

estate? How much will each of the designated heirs get if C
has 3 children?

No. Only the full-blood and half-blood brothers may inherit in

legal succession. In this case the full-flood brother will get
double the share of the half brother.

(Phoenix) Regarding the causes of undue influence or fraud,

here they are mutually exclusive, so if you alleged one you
cannot allege the other, if napugos ka, you cannot claim that
gi-ilad ka and if na ilad ka you cannot also claim that napugos
sad ka.
(Guji) Think about situation where they can actually both
concur, because my take on that is this, while they are
mutually exclusive to each other, either, gi-ilad siya
or gipugos, it cannot be both. But theres a situation where
both can happen. It really depends on the situation, so be
alert with the situation, know the difference. This
might come out in the exam. But my hint is there can
be a situation where both can concur. Just think about

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it. The general rule is Phoenixs opinion. Except... just think
about it.
What do you understand by preterition?

It is the exclusion of compulsory heir from the testamentary.

Does it have to be intentional? No.

When can we








Total exclusion from the legitime, it involves a compulsory

heir, must be in the direct line or .

When you say direct why did you point down?

Yes, because for example, if he is excluded in the will but, by

donation he receive something, that is not preterition. If the
donation is more than enough it is collation.

For preterition to apply, it has to be total, are you saying that

there is a possibility that there is? Partial?

If you say partial, it is not preterition.

How partial is partial? Can you give an example first of partial

preterition. Of course you said there is no partial preterition
but as oppose to total preterition, what is partial preterition?

For example, if the legitime 100t but you receive only 10t .

50% partial? Yes.

1% partial? Yes.
5 cents partial?

It invalidates the institution.

Since there is no total omission there, only partial, what is

the effect?

The will remains valid but the share of the heir will be taken
from the share of the other.

Yes. No matter how small, that partial share that was given to
you, it does not result in preterition because a little something
is given. Bottom line: as long as you are given a little
something, no matter how small there is no preterition
because what is required is total omission.

What if your name was there but the share is less than the
others? Is there preterition? No.
Whats the remedy?

The effect is that, It would invalidate the institution of the heir.

The remedy is that take out the legatee and devisee and
divide the legitime in proportion to the number of heir.

First situation is that, your name is there, you are instituted,

but you are getting less and you say there is no preterition,
the remedy is completion of legitime. What if your name is
not there and of course there is no share is that preterition?

If there is pretirition, the remedy is?

5 cents is almost equal to nothing.

So again my question is how partial is partial, since partial

pretertion does not nullify the institution. How do you
quantify partial? Meaning not complete, is 90% partial? Yes.

Up and down or as long as direct line.

There is total omission in the inheritance. What is being

totally omitted here? Is the share of the legitime? You said
total, why can there be partial?

no preterition because I give you something and that is

partial. How equal is equal? For example you are all my
children, I give everybody 500t pesos each, I give you 5 cents
only, are you not pretirated?

It depends, you have to qualify if you have receive by way of

donation for this example, there is no preterition and the
same remedy applies.

So in other words, even if your name is not there it does not

amount to preterition already because there might be an
instance where a donation was given to you during the
lifetime of the testator, because a donation is?

A donation is treated as an advance inheritance.

So are you saying that you are my compulsory heir and I give
you a little a something not equal with the others, there is
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Thats an exception, advance inheritance, any other
exception? First premise is your name is not there, it does not
necessarily amount to preterition because?

You might have received donation, which is an advance


Is the omission be that of compulsory heir? Yes, sir.

I give 250t pesos each then I forgot to name the other one,
can he get something even if he was not named?

And is there the enough money for him?

Why not a voluntary heir?

Because there is no preterition with respect to a free portion.

When you say voluntary heir, you just rely on the pure
liberality of the testator, so you have no vested right yet.

Omission must be of a compulsory heir, is this rule absolute?

No, in case of disinheritance.

What else? Is there a difference between primary compulsory

heir and secondary compulsory heir?

Exclusion because of inferior status. If your name is not there,

it results in preterition, except if there was donation and
second is that if it is the secondary compulsory heir because
they are excluded due to inferiority.

If he was not named but he received a legitime.

How was he able to receive?

Like if A is the only child of B, and B institute his friends as

voluntary heir and he unintentionally not included A in his
will But theres already preterition because something was
given to strangers.

What if I have four children then I have 2 million how much

disposable cash I have out of 2 million? 1 million.

No, because it is unfair for the surviving spouse. And the book
gave three reasons and one of them is about the illegitimate
child. If the illegitimate child is omitted, they can question the
omission however, if it is the surviving spouse that is omitted,
the surviving spouse has no recourse. He or she cannot
question or invoke preterition.

If you READ, the surviving spouse, it does not result in

preterition. Jurisprudence says that. But what do you think is
the reason why? The law says direct line so very clear ang
balaod. What do you think is the reason the why only direct
line, ascendants to descendants?

Maybe the purpose there or the intent there is to preserve the

property among blood relation.

What are the effects of preterition?

By operation of law.

Can you give an example?

Only the ascendants and descendants of the decease and if

the surviving spouse is omitted there is no preterition.

Does that make sense to you?

There is the third one that I am thinking about, what is that?

Yes. Actually what we are talking about here is if it results in

intestacy and if there is still enough property for you, and
even if you are omitted then there is no preterition because
something is left for you.

Omission must be in the direct line. Can you explain?

Second exception is when what is omitted is the secondary

compulsory heir.

When can they have that absolute right? In case of default,

because they are just waiting in line. So that is not
pretirition, what do you call that?

Yes, because his right is given by law.

It would annul the institution of heirs and the legacy and

devise are not affected, they are valid unless they are

What do you mean by inofficious?

It is more than what the decease person can give. It already

touch the legitime. It exceeds the free portion.

So whats the remedy if you exceed the free portion?

It would be reduce proportionately, it does not nullify.

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Can you give an example?

If A gave her friend X a legacy of 70t and his property only

has 100t then he has a compulsory heir his son, then the
legacy received by x would then reduce to 50t and the 20t will
be claimed by the compulsory heir.

What is the remedy in case of preterition, meaning where and

how do you get your share?

If there is still available property then the one who is omitted

can go for the properties not yet distributed.

What if that property is not enough?

If it is not enough then you can go to the properties

distributed. So first, go to the properties wa pa hilabti then if
its not enough thats the time you go to the shares taken by
voluntary heirs proportionately.

(Rona) When we go to preterition and it omitted a direct line, for

example a son, it doesnt make sense, when you say there is no
necessity in instituting compulsory heirs because it operates by
operation of law, so whether or not preterited, they still get what they
rightfully have the share
(Guji) Exactly, but what was my question? There is an instance there
when you really need to institute the heir, but the general rule is
there is no need coz you are going to get something by operation of
law. But there is an instance where you really need to institute, and
there are two answers here, your answer and kevyns answer. I accept
both, and in the other section, I think one of the answer, is when you
institute a conceived child. I will accept that. But theres another
answer that I have been waiting for.

What if the testator is so stubborn and insists on the

condition? How should we treat that condition? Does it nullify
the institution if there is that condition of the legitime? D ba
we said that you cannot impose a condition on the legitime,
but what if the testator is so stubborn and still insisted on
imposing the condition on the legitime, how do we treat that

The legitime is untouchable, is that absolute? Aside from

disinheritance and reserva troncal?

The free protion.

Why not the legitime?

Because the legitime is untouchable except disinheritance and

reserva troncal (we are going to talk about that later).

Yes, sir, regarding the partition. You cannot have partition not
exceeding 20 years from the execution. You cannot impose a
condition on the legitime,
except when you impose a
condition that you cannot partition that property for a period
not exceeding 20 years.

Why is this kind of condition allowed?

Because there is a sentimental value or you want to preserve

the property.

Does it apply to cash?

Because it is his disposition whether or not to allow you to

have the property.

Which part of the estate can you impose a condition?

Its not absolute.

Can there be a condition that can be imposed on the


Can you impose a condition? Yes. Why?

We disregard the condition, otherwise known as we just

consider it as not written.

No, because it only refers to a property worthy of sentimental

value because cash would depreciate due to inflation. You
might want to say that you cannot attach sentimental value to
cash, it can only be on property. Cash can be divided right
away unlike property where there is fixation and sentimental
value. And partition presupposes property like land and does
not apply on cash.

What do you understand by a condition?

It is an unknown future event that may or may not happen.

Future and uncertain event. It might refer to past event like
when there was no knowledge among the parties, when the
testator was actually making the institution.

Can you give an example of a conditional institution?

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A testator would give a property if he passes the bar.
What is a term?

Is a day certain that may happen.

Can the heirs mutually agree to partition before the lapse of

prohibition? Can there be a reason that will compel them and
the court to partition prior the lapse of prohibition?

The difference between term and condition?

In condition it may or may not happen but a term is certain to


(Rona, in relation to the previous question) Institution of

another heir in default of the original heir.
(Guji) Yes, it could be, but, If you want to be very specific you have
to institute the heir because if you leave that to law to operate then
your intent to be very specific will be defeated. Provided they are of
equal value, otherwise it might result in inequality. Bottom line is, my
intent prevails.

JULY 26, 2016 (Singh): (ORAL RECITATION)

When you institute an heir, can you impose a condition?

Only to the free portion

Why only on the free portion? What if the testator is so

stubborn and still imposed a condition on the legitime? Can
we not ever impose any condition on the legitime at all

General rule is you cannot impose condition on the legitime

because it is untouchable, but there is exception.

What if the prohibition exceeds 20 years? Are we to nullify

the institution? Are we not going to separate the excess of 20
years? The excess is considered as?
When you say partition what does it presuppose? Does it
apply to the whole estate? Regardless of the nature of
property? What do you think is the reason why the law allows
the imposition of a prohibition?

Sentimental value. A property that is for common use among

the heirs, in such a case prohibition applies.

Can you impose the prohibition over cash? Can there be

sentimental value on cash? No.

Compelling reasons. Compelling reason means you have no

other choice but to partition.

Can you think about other causes other than compelling


Outstanding causes - 1830 and 1831.

What do you understand about condition? What do you

understand about a term? Distinguish term from condition.

Refer to the example of the book as to term. There is a

problem there. What if the testator still lives by 2005? There is
a chance that the voluntary heir cannot get anything. Better
example would be the inheritance shall commence 5 years
after my death.

What if the testator still imposes condition to the legitime?

It will not necessarily nullify the institution.

If you identify an executor, you appoint. Can you impose any

condition? No.
Give an example of impossible condition. What if the
condition is vague or not understandable? Can you think of an
example of vague condition?
I institute an heir provided you will never marry.

That cannot be. As a matter of fact it is void. The testator, the

widow can impose a condition that his/her surviving spouse
should never remarry. She/he can do that.

Who are the others that can impose the same?

Ascendants and descendants of the testator.


So that the property will not go to other. For sentimental


Never marry pasusu Montero.

You cant do that.

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You can marry, but never padede Montero. Can I do that?

Yes, and that is called relative prohibition.

Hey, you can marry but not in the next ten years. Can I do

Yes. You can.

What if you are already 70 years, and the will says you can
never marry in 10 years. That is already burdensome. You can
marry but never in the Philippines. Burdensome. I institute
you as an heir provided you marry Torky. No.
Marry Torky, is that absolute prohibition?

You can do that. This is valid by implication.

What is disposition captatoria?

(Refer to the book)

What if you cannot fulfil the condition? Is there prescriptive

period? Is there a timeline? None.
Can we compel you to fulfil that potestative condition? No.
What happens if you sit on your responsibility insofar as the
inheritance is concerned?

There is no timeline.

Is there a motivation on your part?

The motivation is you cannot get anything if you won't do that.

Potestative, its up to you.

Can there be a negative potestative condition?

What is a potestative condition?

Potestative condition is one the fulfilment of which depends

purely on the heir.

What if I institute you as heir provided you lose some more

weight? Is that an example of potestative condition? Yes.
The condition of passing the bar is not potestative because
there is also an element of chance there. How soon should
you fulfil that potestative condition?

Yes. When testator impose prohibitions for the heir not to do.
Example: Joan gives me one of her cars on the condition that I
do not marry for a period of 10 years.

When do you







The heir shall comply by giving a security that he will not do or

give that which has not been prohibited by the testator.

What if you did what is prohibited?

JULY 30, 2016 (Villalon): (ORAL RECITATION)

May a potestative condition be imposed? Yes.

It will go to the person called to the succession until the heir

can comply with the condition. If you, as an heir, do nothing
about the condition, it results to the suspension of the
ownership of the property.

Are we saying here that (inaudible) your fulfilment of the

condition results in your capacity being suspended? Yes.

May a potestative condition be imposed? Yes.

If you are the designated heir whose inheritance is subjected
to potestative conditon, when will you fulfill the condition?

As soon as he learns of the testators death.

In case of contravention, he will return whatever he may have

received together with its fruits and interests to the (legal)

Article 876 provides that any potestative condition imposed

upon an heir must be complied after knowing the death of the
testator, it presupposes that fulfilment is only after death.
Why only after death?

Succession opens only after death.

What if it is a casual or mixed condition?

The law provides that the fulfilment of such may either be

before or after the death of the testator, unless the testator
knows already of the fulfilment of such condition prior to his

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Why does the law allows fulfilment of casual condition before
testators death? Why is there a difference between the
potestative condition and casual condition?

In a potestative condition, it is a directive of the testator to do

or not to do something, while in casual condition, it is
dependent on some chance which the testator may or may not
know before his death.

What is casual condition?

A condition which depends upon chance and/or upon the will

of a 3rd person.

Example: Winning lotto.

What if you already won the lotto, and the testator did not
know of that, may he still impose that condition?

Yes. It is deemed fulfilled.

What if I knew you won the lotto but I still imposed it as a


The condition is not deemed fulfilled. The heir must win the
lotto again.

What do you understand about mixed condition?

A condition that depends partly both upon the will of the heir
himself and upon the chance and/or the will of a 3rd person.

What if Ms. Salas is already a lawyer and you did not know
about it, what happens?

The condition is deemed fulfilled.

What if you instituted Salas on the condition that she

becomes a lawyer, but you already knew that she is a lawyer?

It is deemed fulfilled because the condition is of such nature

that it can no longer be complied with again.

What is a suspensive term? What is being suspended here?

It is one that merely suspends the demandability of a right.

The right is there but you cannot yet demand that as a matter
of right.

What is the difference between condition and term?

Condition may or may not happen, while term is sure to


Example of suspensive term: if the testator dies.

Example of suspensive condition: if the testator dies of cancer.
Does it result in suspended capacity?

No. The right is already acquired.

Can you transmit it to your heirs?

Yes, because you already acquired that. However, you cannot

physically transmit that because the term is not yet complied.

What if the testator died after the testator but prior to the
fulfilment of the condition, can the heir transmit the rights to
his own heirs?

No, for he never inherited.

When may an estate be placed under administration? A:

Art. 885, what are the terms discussed there?

Suspensive term, resolutory term and ex die in diem.

What is the participation of legal heir here?

Prior to the arrival of the term, the legal heir.administrator

possess the property (tabian kayo si Salas ug Rudas, di

If the bond is given to the voluntary heir, does the voluntary

heir has something to say regarding the bond? Because the
law there says with the intervention of the voluntary heirs?

He is going to evaluate the bond whether or not it is sufficient

or acceptable. Determine the suitability.

The legal heirs possess the property in the meantime. In what

capacity, nature of his possession?


The testator can impose conditions insofar as the free portion

is concerned, except? What conditions cannot be imposed?

Impossible conditions, contrary to law

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Only persons can be instituted as heirs either natural or
juridical, is this rule absolute?

No. The souls may be instituted. The disposition is for the

prayers and pious (deeply religious) works.

Can it be enforced if I only say give my money to the rich?

What are the requisites for which you can institute the soul?

The disposition is for the prayers and pious works; couched on

general terms; and no specification for its application.

What will you do if you are the executor?

Divide it into two, first is for the church or the denomination to

which the testator belongs, and to the State.

What if the







If the testator wanted to not give anything the State, he would

have specified or not couched it in general terms. It is the
price he needs to pay for being ambiguous.

What if the testator said I institute my soul, where do you

deliver the other 50%?

(First 50% is delivered to the State) The other 50% is to be

delivered to the church or the denominations to which the
testator belongs.

What if the testator does not belong to any church or

denominations? If you are an executor, where do you go first?

To the court.

Can you afford to make a mistake?

Yes, you can afford to make a mistake because it is subject to

court approval.

Where does the State apply the 50%? For what purpose?

For the public schools and public charitable institutions and

centers to the municipality or city where the deceased last
resided in the Philippines.

If you cannot articulate your intent in such clarity, the law operates.
Your intent is inferior to the law, if you are ambiguous.
Can I institute the rich?

Yes. There is no prohibition since it involves free portion.

No. You cannot institute the rich in such a general term

because it becomes vague condition which becomes an
impossible condition which is considered as not written.

Give it to the poor, can it be enforced?

Yes. Only the poor in the testators domicile at death should be

considered, unless it states contrary intention of the testator.

Who determines?

1) the one designated by the testator, 2) in default, the

executor, 3) in default of the executor, the justice of the
peace, mayor and treasurer. All are subject to Court Approval.

How do the municipal judge, mayor and treasurer decide?

By majority vote.

Can Art. 1030 apply if I said give it to my poor neighbors?

No. It must be general disposition.

May a disqualified person be instituted?

No, to prohibit the testator from violating indirectly what he

cannot violate directly.

Who are these disqualified persons?

Those absolutely prohibited under the law, incapacitated by

undue influence and public morality.

Why are those unworthy not included?

Because they can be condoned.

If I gave it to someone who is not disqualified and later it is

given to one who is disqualified (intermediary), is it valid?

No. It is prohibited.

Examples of vague conditions:

1) I institute you as my heir if change will come.
2) I institute you as heir provided you turn green.
3) I institute you as my heir if you will become a good lawyer.

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4) I institute you as my heir provided you become the person you
are not.

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