ARTICLE 774-782 What does inheritance include?

General
Provisions
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 law.
What is Succession?
a. property
b. rights not extinguished by death
c. obligations not extinguished by
death (to the extent of the value of
the inheritance)
What is the difference between heirs
and devisees/legatees, as to the extent
of the inheritance?
An heir inherits an aliquot part of the
indeterminate portion of the estate, while, the
inheritance of a devisee/legatee must be
specified by the testator.

Succession is a mode of acquisition by virtue What are the elements of Succession?

of which the property, rights and obligations,
to the extent of the value of the inheritance, 1. Subjective Elements
of a person is transmitted through his death
to another or others, either by will or by a. Testator
operation of law. b. Heirs
c. Devisees or
What is the Basis of Succession? d. Legatees
1. The right to dispose private 2. Objective Element
property. The will is merely a causal
instrument for the conveyance. This is a. Inheritance
the basis of testamentary succession.
3. Causal Element
2. Family Co-ownership. The testator
recognizes that the family is the The transmission of property by
heart and soul of the society. The will and death as the condition.
idea of succession must revolve
around it. The is the basis of What is the distinction between
intestate succession. Inheritance and Succession?
3. Eclectic Theory. The purpose of Inheritance refers to the universality of all
succession is to perpetuate the the property, rights and obligations
testator's patrimony beyond his constituting the partrimony of the decedent,
existence, giving greater stability to his which are not extinguished by his death.
family and society. It is a merger of
individual and social principles. Succession is the legal mode by which
such property, rights and obligations are
Article 775 transmitted.
In this Title, "decedent" is the general What is the extent of inheritance?
term applied to the person whose
property is transmitted through It refers to all the properties of the decedent at
succession, whether or not he left a will. the time of his death. They may be residual or
If he left a will, he is also called the accrued properties.
testator.
*Corpse of the decedent is not included.
Define the term Decedent.
Are all the obligations of the deceased
Decedent is the general term applied to the part of his inheritance?
persons whose property is transmitted
through succession, whether or not he left a The inheritance includes all the property,
will. If he left a will he is called, testator. rights and obligations of a person which are
not extinguished by his death. Hence, not all
Article 776 obligations shall be part of the decedent's
inheritance.
The inheritance includes all the property,
rights and obligations of a person which Example: Those obligations which are purely
are not extinguished by his death. personal.
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Give examples of rights which are deceased himself, must first be paid. Then and
extinguished by death, and which, only then, we can determine, if there is a
therefore, are not part of the estate? sufficient residue left for the heirs or for the
heir's creditor. (Lintonjua vs Montilla, 31 January
1. instransmissible personal rights 1952)
because of their nature (such as those
appertaining to family rights, marital
and parental authority, support, action
for legal separation, partnership
agency, life annuity)

2. right to hold public/private office

or job (Hu Niu vs Collector of
Customs, 36 Phil 433)

Given an example of rights not

extinguished by death, and which,
therefore, are part of the estate?

1. right to bring or continue an action

for forcible entry or unlawful detainer

2. right to compel the execution of a

document necessary for the
convenience, provided that the
contract is valid and enforceable under
the Statue of Frauds.

*When asked for example about rights and

obligations which are transmissible and non-
transmissible, be particular whether it is an
obligation or a right.

A father was a defendant in a civil case.

During its pendency, he died, and his
children were substituted as defendants.
If judgment is rendered against the
defendant, can the children be held
personally liable with their own
individual properties?

No. The children cannot be held personally

liable, despite the substitution. The remedy of
the plaintiff-creditor is to proceed against the
estate of the deceased. (Viardo vs Belmonte,
21 August 1962)

*While the debts of the deceased still remain

unpaid, no residue may be divided among the
heirs, legatees and devisees. Instead, the
court may order the sale of sufficient
properties for the satisfaction of the debts and
the heirs cannot question this. Such a step is
necessary for the eventual partition of the
estate. (Lao vs Dec, 23 January 1952)

*A creditor of an heir {who is not a creditor of

the deceased), who intervenes in the estate
proceedings, cannot ask the court to sell the
properties, which the heir- debtor expects to
receive. This is because the debts of the
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X died leaving debts amounting to
PSM. Will the heirs of X, be answerable
for such debts?
No. The remedy of the creditors would be to
proceed against the estate of X as a
separate juridical person. Monetary
obligations are not part of the deceased
inheritance.
Is the body of the decedent part of the
inheritance?
No. Because it is not a property (Jurado and
Paras). Refer to the special law on the
matter.
Is an action to claim one's legitimacy
transmissible? (Article 173 Family
Code)
The action to claim legitimacy may be
brought by the child during his or her lifetime
and shall be transmitted to the heirs should
the child die during minority or in a state of
insanity. In these cases, the heirs shall have a
period of five
(5) years within which to institute the
action.
Is an action to claim one's
illegitimacy transmissible? (Article
17S Family Code)
Article 777
The rights to the succession are
transmitted from the moment of the
death of the decedent.
When is the right to succession
transmitted?
It is transmitted at the moment of the death
of the decedent.
*Death is a condition that effects transmission
of the decedent's assets. The express will of
the decedent's presumed will as provided by
law is the cause. Before death, the heir only
have a mere hope or expectancy. It is not a
vested right, for a will maybe changed, either
because of:
1. causes of disinheritance
2. acts of incapacityIunworthiness
3. revocation of the will
Illegitimate children may establish their
illegitimate filiation in the same way and on
the same evidence as legitimate children.
The action must be brought within the same
period specified in Article 173, except when
the action is based on the second paragraph
of Article 172 (An admission of legitimate
filiation in a public document or a private
handwritten instrument and signed by the
parent concerned.), in which case the action
may be brought during the lifetime of the
alleged parent.
What is the restrictive nature of
inheritance?
1. before death, it is a mere hope
2. after death, it cannot be distributed
unless, all the claims against the
estate of the decedent are liquidated.
The purpose of which is to
determine, what assets are left to
be transmitted to the heirs.
*Under the Rules of Procedures, liquidation is
necessary in order to determine whether or
not the decedent has left any liquid assets
which maybe transmitted to the heirs.
*Estate is a legal exigency created by law, so
that the heirs will not be bothered by the
claims of other persons against the decedent.
Estate is the continuation of the decedent's
personality.
What is the decisive moment, when the
heirs acquire a definite right to the
inheritance?
The decisive moment is death. It is upon the
death of the decedent that the heirs acquire a
definite right over the inheritance, whether such
right is pure, conditional or with a term.
What is death?
Death is the permanent cessation of all the
bodily functions which terminates a person's
judicial capacity and capacity to act.
What does presumed will mean?
The will of the decedent to transfer the
properties to the heirs is presumed by law. The
rule laid down by law is based on human
experience, as may be gleaned from the order
of those who may inherit intestate succession.
What are the conditions before the rights
of the heirs are transmitted?
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 Can an heir sell his future inheritance?
1. death of the decedent/testator (either
actual or presumed) No. Because the heir has no vested right
over the inheritance yet. Therefore, the
2. the rights or properties are indeed object, which is the inheritance, is not yet
transmissible determined nor certain.

3. heirs must survive the decedent
(no predecease); be willing (no
repudiation); be capacitated to
inherit
*These are also the requisites for succession
mortis causa.
What are the cases when there is no
transmission of right?
1. repudiation made by the heir
2. heirs predeceased the decedent/testator
3. incapacity of the heir to succeed
Upon the death of the testator, is it
necessary to deliver the properties to
the heir in order to acquire ownership?

No. Because the right to the inheritance is

transmitted from the moment of the death of
the decedent. Tradition or delivery is not
essential for the acquisition of properties of
the decedent because succession is an
independent mode.

If a decedent dies January 1, 1999 and

the property is actually delivered only
on March 1, 1999, when does the heir
become an owner of the property?

He became an owner of the property

beginning January 1, 1999. This is because it
is not tradition (delivery) that transfer
ownership here but succession. The effects of
an acceptance of the inheritance retroacts to
the moment of death.

If on the other hand, there is repudiation, it

is as if, the heir never owned the property.
This is because of the retroactive effect of
repudiation.

*No matter whenIwhat time the heir, devisee

or legatee enters into the possession of the
inheritance, devise or legacy, acquisition
always retroact to the moment of death, in
accordance with Article 1042 {The effects of
the acceptance or repudiation shall always
retroact to the moment of death of the
decedent.)

*After the death of the decedent, anyone

of the heirs may enter into a contract with
respect to his share in the inheritance, even
before the partition has been effected - the
right to the inheritance is already in the nature
of a vested right upon the death of the
decedent. Thus, the heir may:
1. sell his undivided share in the
inheritance
2. donate it
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 Hence, any contract entered into with respect
Before death, the heirs have only a mere to the inheritance, would have no object
hope of expectancy absolutely inchoate in whatsoever, therefore inexistent from the
character, to their share in the inheritance. beginning.
Article 777 provides that the right to
succession are transmitted from the 2. presumptive death
moment of death of the decedent. Does a. ordinary
this principle apply only to actual death? b. extra-ordinary

No. The principle under this Article applies to
both actual death and presumptive death.
This is clear from the provisions of Article 390
and 391.
What are the rules on presumptive
death as to the opening of succession?
1. ten (10) years absence, it being
unknown, whether or not the
absentee still lives
What are the rule used to determine the
precise time of death of a decedent in
presumptive death?
Ordinary presumptive death:
1. rules of evidence
2. in the absence of evidence, expiration
of period provided for by law

2. five (5) years, if the absentee

disappeared after the age of seventy-
five (75)

3. four (4) years, if the absentee

disappeared under any of the
circumstances enumerated in Article
391

When or at what precise moment will

there be a transmission of successional
rights in case of a presumptive death?

As to ordinary absence of ten (10) or five

(5) years if the absentee is more than
seventy-five (75) years old - at the
expiration of the period designated by
law.

As to extra-ordinary absence under Article

391 - at the time of the disappearance,
because the absentee disappeared under the
danger of death.

*Although the rule says, that there will be

transmission of successional rights at the
time of the disappearance of the absentee,
we must still wait for a period of four {4)
years from the time the absentee
disappeared. Thereafter, if the absentee does
not appear within four {4) years, there will be
transmission of successional rights and it will
retroact from the time the absentee
disappeared. Reason: the absentee
disappeared under danger of death.

What are the kinds of death in

succession?

1. actual death
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Extra-ordinary presumptive death:
1. rules of evidence
2. in the absence of evidence, at or
about time of disappearance
What is the effect in case a person
presumed to be dead returns?
There will be a recovery of properties, or a
return of their value, if they were already
alienated except for the fruits.
*The exception lies in the case when
prescription occurs due to lack of title.
Can there be succession without death?
As a general rule, there can be no succession
without actual death. However, the law
provides succession in cases of presumptive
death. In this case, the death of a person is
merely presumed and conditioned on the
fact of death.
X had two (2) children, Y and Z. X
suffered a heart attack on January 1,
2002 and was pronounced dead on the
same day. On January 2, 2002, X
regained consciousness. Y and Z
claimed to have succeeded X in his
properties, when he was pronounced
*In case of doubt, testamentary succession is
preferred over legal or intestate succession.
What are the kinds of testate and
intestate succession?
1. voluntary and compulsory
2. by right and representation
What is testamentary succession?
It is one, which results from the designation of
an heir, made in a will and executed in the
form prescribed by law.
When does intestate succession occur?
Intestate succession is effected by operation
of law, in default of a will. Intestate
succession occurs when the testator has not
made a will or even if he made one, such will
has not been made in accordance with the
formalities prescribed by law. In this case, the
presumed will as provided by law, shall
govern the distribution of his hereditary
estate after his death.
dead on January 1, 2002. Is the claim
valid?
No. There is no succession because there was
no death. Death must be permanent because
a person can only die once.
Article 778
Succession may be: (1)
Testamentary; (2) Legal or intestate;
or (3) Mixed.
What are the kinds of succession?
1. testate
2. legal or intestate
3. mixed
*Contractual Succession has been omitted by
the Family Code.
What are the different modes of
testamentary succession?
1. will or codicil
2. will or codicil maybe:
a.
notarial (ordinary attested)
b.
holographic (handwritten
by the testator from the
beginning to end, complete
with date and signature)
What is mixed succession?
It is one that is effected partly by will and partly
by operation of law.
When does mixed succession occur?
It occurs when the testator makes a will but fails
to dispose all of his properties by means of such
will. The succession partakes of the nature of
both testamentary and legal succession.
What is contractual succession?
It is the act of future spouse of giving or
donating to each other, in their marriage
settlements, their future property, which is to
take effect, upon the death of the donor and o
the extent laid down by the Civil Code relating to
testamentary succession. This succession is not
allowed anymore, for it was not expressly
provided for in the Family Code.
What are the kinds of heirs in
testamentary succession? Define each.
Voluntary - an heir is called to succeed to the
whole or an aliquot part of the disposable free
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portion of the hereditary estate by virtue of
the will of the testator.
Compulsory - an heir is called to succeed
to a portion of the testator's estate, known
as legitime.
Article 779
Testamentary succession is that which
results from the designation of an heir,
made in a will executed in the form
prescribed by law.

Article 780

Mixed succession is that effected partly

by will and partly by operation of law.

Article 781

The inheritance of a person includes not

only the property and the transmissible
rights and obligations existing at the
time of his death, but also those which
have accrued thereto since the opening
of the succession.

What does the inheritance of a person

include?

It includes not only the property and the

transmissible rights and obligations existing
at the time of his death, but also those which
have accrued thereto since the opening of the
succession.

Article 782

An heir is a person called to the

succession either by the provision of a
will or by operation of law.

Devisees and legatees are persons to

whom gifts of real and personal
property are respectively given by virtue
of a will.

Who is an heir?

An heir is a person called to the whole or an

aliquot portion of the inheritance, either by
will or by operation of all. An heir succeeds by
universal title.

*Heirs may be compulsory {if entitled to the

legitime) or voluntary {like a friend).

Who is a devisee?

A devisee is a person to whom a gift of real

property is given, by virtue of a will.
What is legatee?

A legatee is a person to whom a gift of

personal property is given, by virtue of a will.

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What are distinctions between heirs,
devisees and legatees?
As to the title:
1. Devisees or legatees are always
called to succeed to individual
items of the property.
2. Heirs are always called to
succeed to an indeterminate or
aliquot portion of the
decedent's hereditary estate.
Suppose the only properties left by the
decedent are his three (3) cars. The
decedent gave you 1/3 of his estate, which
is, one car. As a beneficiary, are you
considered as an heir?
Yes. Because an aliquot part (1/3 thereof) of the
estate was given to me, not a specific part
thereof.

3. Devisees or legatees succeed by a

particular title, while heirs succeed by
universal title.

As to the portion of the estate: The devise

or legacy which is given to the devisee or to
the legatee by means of a will, is, as a rule, a
chare against the free portion of the testator's
property. However, if the testator is not
survived by compulsory heirs, his entire
property is considered as free property. In
such case, the devise and legacy can be
charged against the entire property.

In the case of heirs, a distinction must be made

between heirs in the estate succession
(compulsory and voluntary) and heirs in
intestate succession (legal or intestate heirs).

As to the means of succession: Devisee or

legatee are always called to succeed by
means of a will.

Heir are called to succeed, either by means of

a will (voluntary) or by operation of law
(compulsory and legal).

May a person be compulsory and

voluntary heir at the same time, in the
same will? Otherwise stated, is there a
possibility of a dual status of an heir?

Yes. If in a will a compulsory heir is given more

than his legitime, he is assumes a dual status.
Insofar as his legitime is concerned, he is a
compulsory heir. Insofar as the excess is
concerned, he is a voluntary heir.

*The aforementioned distinction is important

because if a compulsory heir dies ahead of the
testator, his legitime is inherited by his own
child {by right of representation). On the
other hand, the child of a voluntary heir who
predeceases or dies ahead the testator gets
nothing from the said testator {Article 856).

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The answer would have been different if the
decedent had given me a specific car. In this
case, I would have been a legatee, having
succeeded a personal property, by a
particular title.
X made a will designating A as heir of
his entire estate. However, since X was
a gambler, the only property left to him
when he died was a Honda civic car. Is A
an heir or a legatee?
A is still an heir for the purpose of giving
effect to X's will. The fact that the only
personal property left by the decedent is a
personal property is immaterial. The
designation of A, as an heir, still controls.
Give the importance of the distinction
between voluntary heirs, devisees and
legatees.
In case of preterition/permission in
testator's will of one, some, or all of the
compulsory heirs in the direct line, the
effect is to annul entirely the institution of
heirs. But legacies and devisees shall be
valid insofar as they are not inofficious
(Article 854).
In case of imperfect or defective
inheritance, the effect is to annul the
institution of heirs to the extent that the
legitime of the disinherited heir is prejudiced.
If in the will X stated to give Yi of his
estate to Y, what is the effect?
Y is now an heir, because he is to succeed to a
portion of the estate. Therefore, in the
preceding problem. If the only estate is 200
cars, Y will get 100 cars.
What are the advantages and the
disadvantages between a devisee,
legatee and heir? (see Jurado)
Effect of preteririon
Effect of imperfect
disinheritance Effect of
self-acquired properties
How do you determine an heir from a
legatee or devisee?
If the property is a particular item of the
estate, the receiver is a devisee or legatee, as
the case may be (whether that particular item
is personal or real). Otherwise, he is an heir.
But devises and legacies shall be valid,
insofar as they are not inofficious.
In case of properties acquired by the
testator after the execution of the will,
such properties are not as a rule, included
among the property disposed of, unless, it
should expressly appear in the will itself that
such was the testator's intention. This rule
applies only to legacies and devises and not to
the institution of heirs.
X designated A to Yi of his estate. He
also designated B his car plate number
GVG 101. Who is the heir or legatee?
A is an heir because she will succeed an
indeterminate portion of the estate (1/2 of X's
estate).
B is a legatee because she will succeed to a
specific property (a car with plate number
GVG 101).
X executed a will in 198S. He died in
199S. In his will X have Y all of his cars.
At the time of the execution of the will, X
only had two (2) cards. Assuming that in
1999S, he already has 200 cars. How
many cars will Y inherit?
Y will only get two (2) cars, because the
remaining are after-acquired properties. Y is
merely a legatee because he does not
succeed to a portion of the estate.
Article 783 to
Article 787 Wills in
General
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 this estate, to take effect
after his death.
What are the different modes of
testamentary succession?
1. will or codicil
3. will or codicil maybe:
a. notarial (ordinary attested)
b. holographic (handwritten by
the testator from the
beginning to end, complete
with date and signature)
* In case of doubt, testamentary succession is
preferred to legal or intestate succession.
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What is a will?
A will is an act whereby a person is permitted,
with the formalities prescribed by law, to
control a certain degree the disposition of his
estate, to take care after his death (Article
783)
Is the right to make a will a natural right?
The act of making a will is not a natural right
because not all persons can make a will. It is
not a statutory right.
Simply means, that not all persons are
qualified to make a will.
If the will does not dispose of property,
such as when a person is merely
named as executor, or when a natural
child is recognized, can it still be
considered as a will?
If we follow the strict legal definition of the
will, it would seem that it does not contain a
disposition of property, it cannot be
considered a will. But in some jurisdiction and
jurisprudence, it may still be called a will.
Paras: It may still be called a will, although
such will need not be probated for under our
law it would seem that the probate is needed
only if the property is to be conveyed by a
testamentary succession (see Article 838).
Furthermore, it has been held that for
purposes of recognizing a natural child by
virtue of a will, the will need not be probated,
thought it must of course still be a valid will.
In X's will, A was given a house,
effective immediately. Is the
disposition by virtue of a will?
No. Since it is supposed to take effect
immediately. There was therefore no animus
testandi insofar as this provision is concerned.
Is he entitled to get the house now or
immediately?
No. Unless, he signifies his acceptance in the
form prescribed by law for donations and
unless the instrument be notarized as a
public instrument (Article 749).
How will the house be disposed of?
In accordance with the rules on legal
succession, in case the donation is not
effective (Article 960).
What are the characteristics of a will?
1. strictly personal act
2. am individual and unilateral act
3. free and voluntary act
4. a formal and solemn act
5. a disposition of property
6. an act mortis causa
7. ambulatory
8. revocable during the lifetime of the
testator
Why a personal act?
Because its execution cannot be left to the
discretion of third person.
Why unilateral?
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 Because it does not need the approval of
any other person.
Why a formal and solemn act? money, it should be wiser to employ one
whenever the whole estate is involved (57
Because it must comply with the formalities Am.Jur., Sec 21).
prescribed by law.
Moreover, if an attorney drafts a will and is
Why an act mortis causa? present at the time of its execution, there is a
strong presumption that the will was regularly
Because it takes effect only after the death of made.
the testator.
Is a lawyer prohibited from assisting a
Why ambulatory? person making a will?

Because the testator can revoke it at any time If the lawyer does only a mechanical act of
before his death. writing the will, then, he is not prohibited.
Otherwise, the will would be invalid.
Article 784
Article 785

The making of a will is a strictly personal no consequence (Castaneda vs Alemmany,

act; it cannot be left in whole or in part 3 Phil 426; Bagtas vs Paguio 22 Phil 227).
of the discretion of a third person, or
accomplished through the Is it advisable to employ an attorney in
instrumentality of an agent or attorney. making a will. What are its advantages?

X made his last will and testament and In making a will it is advisable to employ an
authorize you to execute it. Is it valid? attorney, for if we employ an attorney in so
many cases involving little
No. The making of a will is strictly a personal
act. It cannot be left in whole or in part to the
discretion of a third person or accomplished
through the instrumentality of an agent or
attorney.

Can a testator designate to a third

person the typing of his last will and
testament?

Yes. The mechanical act of drafting may be

entrusted to another, as long as the
disposition itself expresses the testator's
desire and all the formalities of the law are
complied with.

What is the meaning of the expression

"a strict personal act"?

It means that, it cannot be left in whole or in

rd
part to the discretion of a 3 person or
accomplished through the instrumentality of
an agent or attorney.

However, the mere act of drafting/writing a

will does not fall within the purview of the
prohibition. Thus, it has been held that he
who does the mechanical work of writing the
will, is a matter of indifference.

The fact therefore that the will was

typewritten in the office of a lawyer is of
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 The duration or efficacy of the
designation of heirs, devisees or
legatees, or the determination of the
portions which they are to take, when
referred to by name, cannot be left to
the discretion of a third person.
Article 786
The testator may entrust to a third
person the distribution of specific
property or sums of money that he may
leave in general to specified classes or
causes, and also the designation of the
persons, institutions or establishments
to which such property or sums are to
be given or applied.
What are the acts in making a will
that cannot be designated to a third
person?
1. the duration or efficacy of the
designation of heirs, devisees and
legatees
X ordered his lawyer to execute the
distribution of the properties in his will
in favor of the heirs. Is the act/will valid?
No. Because the determination of the portions
rd
to be given lies in the 3 person. The
properties to be distributed and the receivers
must already be specified. The lawyer must
only execute the distribution, without the
possibility of substituting his own intentions
over that of the testator.
X stated in his will "I give P1M to be
distributed to charitable institutions
devoted to unwed mothers, and, I
hereby designate Y to take care of the
distribution of the said amount". Is the
act valid?
rd
Yes. The testator may entrust to a 3 person;
the may distribution of specific property or
sums of money that he may leave in general
to specified classes or caused and also the
designation of the persons, institutions or
establishments to which such property or
sums of money are to be given or applied.
X, testator said to his lawyer, "you may
take whatever amount from my estate
to be distributed to the street children
of Manila". Is this valid?
No. because although there is a specified
class (the street children of Manila), the
amount to be given is not specified. The
amount is termed as "whatever amount".
2. determination of the portions of which
they are to take, provided that they
are referred to by name
Why is that the acts provided for under
Article 78S cannot be designated by
rd
testator to 3 persons?
1. those acts are testamentary in
character, and therefore, they cannot
be designated, in whole or in part, to
rd
3 persons (making of a will is a
strictly personal act)
rd
2. to prevent 3 persons from
substituting his own intentions to that
of the testator
X executed a Special Power of Attorney
(SPA) authorizing his lawyer to make a
will. Is the SPA valid?
No. Because the making of the will is purely a
personal act.
In the preceding question, what if X said
to his lawyer, "I give P10M to be given to
the street children of Manila and I hereby
designate you to take care of the
distribution of the said amount". Is this
valid?
Yes. Article 786 applies: street children (specified
class); P10M (specific sum of money).
What if X said, "I hereby make the children
of Hospicio de San Jose as my legal heirs
and declare my lawyer to determine the
amount which they are to receive". Is the
will valid?
No. Article 785 applies. Because the heirs were
referred to by name: the children of the
Hospicio de San Jose.
Furthermore, the amount was not specified by
the testator. It is the lawyer who determines the
amount.
In the preceding question, what if the
testator said, "I hereby make the 2002
graduating class of SBC as my legal heirs
in the amount of P10M and declare my
lawyer to determine the amount which
they are to receive". Is this valid?
Yes. The beneficiary was a specified class the
graduating class of 2002.
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Under Article 786, the property or the
amount of money to given must be
specified by the testator, in addition to the
requirement that it must be for a specified
class or cause.
X ordered Y to distribute PS0T from
his estate, for whatever good cause
he may think. Is the act valid?
No. Because the recipient of the act is not
a specified group or class. Article 786
does not apply.
X bequeaths the amount of PSM for
Metro Manila. He authorized his
executor, Y, to distribution the amount.
Is the act valid?
rd
Yes. The testator may entrust to a 3 person
the distribution of specific property or sums
of money, that he may leave in general to
specified classes or causes, and, also the
designation of the persons, institutions or
establishments to which such property or
sums of money are to be given or applied
(Article 786).
In this case, X has already completed the
testamentary act of making a will. What he
delegated to Y was merely the details
thereof, on order to make the devise or the
legacy more effective.
*The determination of the amount which
the heirs, devisees and legacies are to
take is a testamentary act which cannot be
rd
delegated to a 3 person, which such
heirs, devisees or legatees are referred to by
name. This prohibition is intended to
discourage the illegal delegation of
testamentary powers {Article 785).
Take note however, that the prohibition
provided for under Article 785 is different from
the rule enunciated under Article 786.
Under Article 786, it involves beneficiaries,
who are not referred to by name, but are
referred to by specific classes or causes.
X stated in his will, "I give the amount of
PS0M, for the benefit of SBC, CEU, LCC
and PHS schools and I leave the
distribution of the amount thereof to my
lawyer". Is the provision valid.
No. Although they belong to a specified class,
the heirs were referred to by name. So Article
785 applies and not Article 786. The heirs
were specifically named and were not merely
a particular class.
Suppose the testator stated in his will
that "I will give the amount of PS0M to
all the college schools in Manila and I
leave the distribution of the amount
thereof to my lawyer". Is the provision
valid?
Yes. Because the schools are of a particular
class. The third person can distribute the
amount by himself.
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*While Article 785, enumerates in absolute
terms, the different things which the testator
cannot do, Article 786 enumerates by way of
exception the different things which the
testator may do.
rd
Thus, the testator is allowed to entrust to a 3
person:
such a manner that another person has to
determine whether or not it is to be operative.
In the preceding, is the entire will invalid?
No. The only provisions whose effectivity depend
rd
upon the determination of the 3 peson (X's
wife) will be invalidated.

1. the power to distribute specific

property or sums of money, which he
may have left in general to specific
classes or causes

2. the power to designated the

persons, institutions, to which such
property or sums of money are to
be given or applied

What is contemplated under Article 786 is

that, the testator has already completed the
testamentary act of making a will. What is
rd
entrusted to a 3 person are merely
the details thereof, in order to make the
devise or legacy more effective.

Example: A testator may bequeath P1M to a

specified class, such as, the different
charitable institutions of Manila, or to a
specified cause, such as, the cause of labor,
entrusting the same time, to the executor of
his estate,
the power to designate the different
institutions or organizations to whom the said
amount shall be given.

Article 787

The testator may not make a

testamentary disposition in such manner
that another person has to determine
whether or not it is to be operative.

*The act determining whether a testamentary

disposition is to be operative or not, is not
exactly testamentary in character. But the
rd
delegation of such act to a 3 person would
be tantamount to allowing the testator to
rd
substitute the will of a 3 person, for his own,
which precisely, what the law intends to
prevent, when it states that the making of a
will cannot be left, in whole or in part, to the
rd
discretion of a 3 person.

Suppose it is stated in Mr X's will "I will

give my house and lot to F, if my wife will
agree". Is the provision valid?
rd
No. Because it is subject to the 3 person's
determination. Under Article 787, the testator
may not make a testamentary disposition in

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What are the aspects of a will governed
by the law of the decedent?
1. order of succession
2. and amount of succession
3. intrinsic validity of testamentary
provisions
4. capacity to succeed (Article 1039)
*Article 1039 Civil Code: Capacity to
succeed is governed by the law of the nation
of the decent.
What is the Rule on the interpretation
and construction with respect to
testate succession?
The rule is "to ascertain and give effect to
the intention and desires of the testator,
provided, they are not contrary to law".
Article 788
If a testamentary disposition admits of
different interpretations, in case of
doubt, that interpretation by which
the disposition is to be operative shall
be preferred.
What if the provision of the will
admits of different interpretations,
which shall be preferred?
If a testamentary disposition admits of
different interpretations, in case of doubt,
that interpretation by which the disposition is
to be operative shall be preferred. The reason
is that, testate succession, provided the will is
valid, is preferred to intestacy. If no doubt
exist and the disposition is clearly illegal, the
same should not be given effect.
Article 789
When there is an imperfect description,
or when no person or property exactly
answers the description, mistakes and
omissions must be corrected, if the error
appears from the context of the will or
from extrinsic evidence, excluding the
oral declarations of the testator as to
his intention; and when an uncertainty
arises upon the face of the will, as to
the application of any of its provisions,
the testator's intention is to be
ascertained from the words of the will,
taking into consideration the
circumstances under which it was made,
excluding such oral declarations.
What are the kinds of
ambiguities/validities in the
formalities of the will?
1. latent or intrinsic ambiguities
2. patent or extrinsic ambiguities
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What is latent or intrinsic The oral declarations of the testator as to his
ambiguities? intentions must be excluded.

That which does not appear on the face of the
will and is discovered only the extrinsic
evidence.
Example: I institute my brother-in-law.
When it is discovered, that there are 2
brothers-in-law. This ambiguity is not found in
the will itself. The doubt arises only because
of the things outside the will.
Example: X, owns a two (2) parcels of land in
a certain province, has devised one of them to
his cousin, Marc. During the testate
proceedings, a question arouse as to the
identity of the land devised because of the
imperfect description of the property in the
will.

In a will, this kind of ambiguity arises:

1. when there is an imperfect

description of the heir, legatee or
devisee

2. when there is an imperfect description

of the gift being given

3. when only one recipient is designated,

but it turns out that there are two or
more, who fit the description

What is patent or extrinsic

ambiguity?

That which appears on the face of the will

itself, in other words, by examining the
provision itself, it is evident that it is not
clear.

Example: I hereby institute some of my 7

brothers.

It is evident here, that we do not know how

many of the brothers are being instituted.

In this case, extrinsic evidence, as well as the

will itself may be examined (but not the oral
declarations of the testator) to ascertain the
testator's intent, but if after everything
has been done, the doubt still remains, not
one of the seven brothers will inherit as
instituted heirs, because
then, the heirs will be considered
nd
as unknown
persons under Article 844, 2 paragraph.

What is the remedy if there is a

latent/intrinsic ambiguity in the
provisions of the will?

Ascertain the testatorial intention by using

either or both:

1. intrinsic evidence
2. extrinsic evidence

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How can the identity of the property
devised be determined?
Under Article 789, Marc may avail
himself of either intrinsic or extrinsic
evidence or of both, in order to
ascertain the testatorial intention.
Can Marc testify or present witnesses,
who will testify to the effect that during
his lifetime, the testator, X, verbally
declared or revealed the identity of the
property he intended to devise?
No. Such testimony would be hearsay, and
therefore, inadmissible as evidence.
Suppose that the will states "I give to
my first cousin Anne Ekaterina Navarro
my house and lot in Quezon City". But
three (3) first cousins are named Anne
Ekaterina Navarro. What kind of defect
is this? What is the remedy?
Latent. Same as patent.
What is the remedy if there is a
patent/extrinsic ambiguity in the
provision of the will?
The same as lantent/intrinsic ambiguity.
Ascertain the testatorial intention by
using either or both:
Principal Rule in Interpretation of Wills
1. determine the testatorial intention
2. consider the provisions altogether
3. avoid provisions which shall
render the will ineffective
4. testacy is always preferred
Article 790
The words of a will are to be taken in
their ordinary and grammatical sense,
unless a clear intention to use them in
another sense can be gathered, and that
other can be ascertained.
Technical words in a will are to be taken
in their technical sense, unless the
context clearly indicates a contrary
intention, or unless it satisfactorily
appears that he was unacquainted with
such technical sense.
Article 791
The words of a will are to receive an
interpretation which will give to every
1. intrinsic evidence
2. extrinsic evidence
The oral declarations of the testator as to his
intentions must be excluded.
Why is oral declaration of the testator in
determining the ambiguities in the will
not allowed?
1. it is merely a hearsay, and
therefore, inadmissible as
evidence
2. the testator is already dead by the
time the ambiguities of the will are
questioned, and therefore, he can
no longer refute the testimonies of
lying witnesses
Testator will give his house and lot to two
(2) of his five
(S) brothers. What king of ambiguity
is this? Is the disposition valid?
Patent/Extrinsic. It is evident from the face
of the will itself.
It depends. Yes, if the identity of the two (2)
brothers referred to in the will can be
ascertained by extrinsic or intrinsic evidence.
No, if the identity cannot be determined. In
this case, the law on intestate succession
shall apply.
expression some effect, rather than one
which will render any of the expressions
inoperative; and of two modes of
interpreting a will, that is to be preferred
which will prevent intestacy.
What is the effect if the will of the
testator is not followed? Or if the will
is void?
Intestate succession occurs.
*Intestacy is not preferred because it is merely
presumed. Testate succession is the general
rule because it the express will of the testator.
Exception: if the will not valid or when the will
is void.
Article 792
The invalidity of one of several
dispositions contained in a will does not
result in the invalidity of the other
dispositions, unless it is to be presumed
that the testator would not have made
such other dispositions if the first invalid
disposition had not been made.
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Will the invalidity of one of several
dispositions contained in a will result in
the invalidity of the other dispositions?
No. It will not result in the invalidity of the
other dispositions, which are otherwise valid,
unless, it is to be presumed that the testator
would not have made such dispositions, if the
first invalid disposition had not been made.
*Even if one disposition or provision is
invalid, it does not necessarily follow that all
the others are also invalid. The
exception occurs when the various
dispositions are indivisible in intent or nature.
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.
After Acquired Properties
Under Article 793, property acquired during
the interval between the execution of the will
and the death of the testator, are not as a
rule, included among the properties disposed
of, unless, it should expressly appear in the
will itself, that such is the intention of the
testator.
Example: If the testator made a will in 1980,
disposing his properties in the form of gifts or
bequests of specific or determinate real and
personal properties, and subsequently, during
the period from 1980 to the time of his death
in 1990, he is able to acquire other properties.
According to Article 793, the will shall only
pass to those properties, which he had at the
time of its execution in 1980, but not those,
which he had acquired subsequent thereto.
It is clear however, that Article 793 applies
only to devises and legacies and not to the
institution of heirs. This can be inferred from
the provisions of Article 776 and 781
regarding the extent of inheritance.
X executed a will in 1980 instituting his
three (3) children, A, B and C, as his
universal heirs. A shall be entitled to Yi,
B to U and C the remainder. X died in
1990, leaving considerable properties,
most of which were acquired during the
period between 1980 and 1990. How will
the estate be distributed? Or what part
of the estate will be distributed?
The division of the estate as dictated in the will
shall be applied not only to those properties
existing at the time of the execution of the will
on 1980, but even to those that were acquired
subsequent thereto, because A, B and C are
instituted as legatees/devisees.
Why does the provision of after acquired
properties apply only to legatees and
devisees?
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It does not apply to heirs, because the heirs
inherit everything at the time of the
testator's death. The extent of the
inheritance includes those properties
The provision applies only to the legatees and
devisees because the intention of the will is a
complete act.
*Do not confuse Article 793 with Article 781.
Taje note of the difference between "after
acquired" property {those acquired between
the making of the will and the testator's
death) and the property "accruing since the
opening of the succession" {or the property
added after the death of the decendent,
referred to under Article 781).
Article
794
acquired even after the execution of the will.
The time of death is the determining point of
the properties, which the heirs will inherit, not
the making of the will.
refers to the forms and solemnities
needed
maybe seen from the viewpoint of
time and place
2. intrinsic validity
refers to the legality of the
provisions in an instrument,
contract or will
may be seen from the viewpoint
of time and place

Every devise or legacy shall cover all the

interest which the testator could device
or bequeath in the property disposed of,
unless it clearly appears from the will
that he intended to convey a less
interest.

What is the general rule as to the

interest may be disposed of?

The entire interest of the testator in the

property is given - not more or less.

Example: The owner of the house who devises

the same, transfers ownership over the entire
house. If he (owner) were a mere co-owner or
a usufructuary, he conveys his share in the co-
ownership, or his usufructuary rights, no more,
no less.

What are the exceptions to the

aforestated rule?

See Paras' discussion under Article 792.

Article
795

The validity of a will as to its form

depends upon the observance of the
law in force at the time it is made.

What law governs the intrinsic

validity of a will? The law at the time

of the death of the decedent. Kinds of

validity with respect to wills:

1. extrinsic validity
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 The formal validity of the will is to be judged
not by the law in force at the time of (a) the
testator's death, or (b) the supposed will is
presented in the court for probate, or
(c) when the petition is decided by court, but
at the time the instrument was made.
Reason: The testator's wishes regarding the
disposition of his estate among his heirs,
devisees and legatees are given solemn
expression at the time the will is executed,
and thus becomes a complete act (Enriquez
vs Abadia, 50 OG 4185; In re: Will of Riosa,
39 Phil 23). Furthermore, a testator cannot
be expected to know the future, hence, it is
enough that he follows the law in force at the
time he makes the will.
What is the effect of a new law
changing the formalities of a will?
1. after the death of the testator, the
rules have no effect because the
heirs already have a vested right
2. before the death of the testator,
the rules have no effect
Exception: if a new law expressly
provides for a retroactive application
Exception to the exception:
when the heirs already have a
vested right
Suppose X executed his last will and
testament in September 13, 1999. The
law at the time it was executed, requires
three (3) witnesses. But the time X
executed his last will and testament,
only two (2) were present. A month
thereafter, a new law was passed
requiring only one (1) witness. Should
X's will be given effect?
No. Because the validity of the will as to its
form depends upon the observance of the law
in force at the time it is made. The formal
validity of the will is to be judged, not only by
the law in force at the time of the supposed
will is presented in court for probate, or when
the petition is decided by court, but also at
the time the instrument was executed.
Although the will operates only after the death
of the testator, in reality, his wishes regarding
the disposition of his estate among his heirs,
devisees and legacies, are given solemn
expression at the time the will was executed.
It is also during that same time, that will
becomes a completed act.
In the preceding problem, does the
exception (with respect to retroactive
application of the Law) violate the
constitutional prohibition regarding
the deprivation of property without
due process of law?
No. It does not violate the constitutional
prohibition regarding the deprivation of
property, because:
1. the statute is enacted before the
death of the testator, and as a
consequence
2. no rights are yet vested in the
persons called to the inheritance
either as heirs, devisees or legatees
Furthermore, the will is still revocable. Thus, if
the testator has made a will and a new law is
passed affecting the will, the testator may still
changed the will to conform to the new law.
What then is the rule under Article 79S?
A will perfectly valid at the time of its
execution cannot be invalidated by a law
enacted after the death of the testator;
neither can a will totally void at the time of its
execution be validated by such subsequent
legislation.
Suppose at the time of the execution of
the will, the law required three (3)
witnesses. The will was executed by X,
complying with such requirement.
Thereafter, a subsequent law reduced the
required number of witnesses, until the
time X dies. Is the will valid?
Yes. Although, the will did not comply with the
formalities prescribed by law, enacted after the
execution of the will, yet, it can still be
admitted to probate because it had complied
with all of the formalities in force at the time of
its execution.
Is the rule enunciated in Article 79S
absolute?
No. The validity of a will as to its form depends
upon the observance of the law in force at the
time it is made.
Except, if a subsequent law allows or required
retroactivity. A latter law may allow for express
retroactivity as implied from the language used
therein.
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Suppose X died before effectivity of a
new law, but probate of the will was
initiated after the effectivity of the law.
Will the new law be given retroactive
effect?
No. The new law must be given retroactive
effect, as this will violate the vested rights of
the heirs.
Why?
Because the rights are transmitted at the time
of the death of the decedent.
Lorenzo vs Posadas (64 Phil 3S3)
FACTS: Thomas Hanley died, leaving a will
and some personal and real properties. The
will, which was duly admitted to probate,
provides among other things, that all the
properties of the testator shall pass to his
nephew,
Article 796 to Article
800 Testamentary
Capacity and Intent
Testamentary Capacity - refers to the
ability, as well as, the power to make a will.
Article 796
All persons who are not expressly
prohibited by law may make a will.
Who may execute a will?
All persons who are not expressly prohibited by
law to make a will.
Is the right to make a will a natural
right?
No. Because not all persons are qualified to
make a will. The law provides some
requirements before a person can execute a
will.
It is purely a creature of statute, and as such,
is subject matter of legislative control.
Article 797
Matthew Hanley. However, it also provides that
all the real estate shall be placed under the
management of the executors for a period of
ten {10) years. After the
expiration of which, the properties shall be
given to Matthew Hanley.
Plaintiff contends that the inheritance tax
should be based upon the value of the estate
at the expiration of the ten- year period,
which according to the testator's will, the
property could be and is to be delivered to the
instituted heir, and not upon the value
thereof, at the time of the death of the
testator.
HELD: Whatever may be the time when
actual transmission of the inheritance takes
place, succession takes place in any event
at the moment of death of the decedent.
Death is the generating source from the power
of the State to impose inheritance taxes takes
it being. Hence, if upon the death of the
decedent, succession takes place and the
right of the State to tax vest instantly, the tax
should be measured by the value of the estate
as it stood at the time of the decedent's death,
regardless of any subsequent contingence
affecting value or any subsequent increase or
decrease in value.
Persons of either sex under eighteen
years of age cannot make a will.
What are the minimum requirements for
persons in making a will?
1. must be 18 years old
2. must be of sound mind
3. must not be expressly prohibited by
law
When does a person become eighteen
(18)?
A person is said to have reached the age of
eighteen (18) only at the commencement of
the day which is popularly known as his
birthday.
*eighteen (18) years of age
minimum age required
as long as it is made before the
decedent reaches the age of
eighteen {18) the will is void
good faith is immaterial
the law does not fix a maximum
age
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X made a will when he is only seventeen does not affect the will because its invalidity is
(17). He died without changing the will. determined at the time of the execution of the
Is the will valid? will.

No. X has no testamentary capacity at the time In the preceding problem, what if X
of the execution of the will. Supervening believed in good faith that he is already
capacity or incapacity eighteen (18) years of age, is the will
valid?

No. Good faith is immaterial.

Suppose that X is already ninety-five

(9S) years old, can he still make a will?

Yes.

What if X suffers from tubercolosis,

diabetis, SARS, AID, etc?

He may still make a valid will.

What if X does not remember that he

has a wife and a children?

No. Because he does not know the proper

object of his bounty.

What is X knows he has a BPI Bank

Account, but does not know the exact
amount or he knows he has a lot in QC
but he does not know the exact address?

He may still make a valid will for as long as he

knows the nature and extent of his estate.

Pointers:

1. The law prescribed no limit in point of

age by which a person cannot dispose
of his property by will. Hence, mere
senility or infirmity of old age does not
necessary imply that a person lacks
testamentary capacity.

2. A person is considered to have

reached the age of eighteen (18) on
st
the 1 hour of his birthday.

3. Neither physical infirmity or disease

is inconsistent with testamentary
capacity. The usual test must still
be applied.

4. Senile dementia produces a

testamentary incapacity. It is defined
as the peculiar decay of the mental
faculties, whereby the person
afflicted is reduced to a second
childhood.

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 5. The fact that the testator is under
the immediate influence of
intoxicating liquor or drugs at the
time he performs the testamentary
6. An insane delusion, which will render
one incapable of making a will, may
be defined as a belief in things,
which do not exist, and which, no
rational mind would believe to exist.
7. A belief in spiritualism is not itself a
sufficient evidence of testamentary
incapacity. However, a will executed
by one under such extraordinary
belief in spiritualism, that he follows
blindly and implicitly, the supposed
direction of the spirits in constructing
the will, is not admissible to probate.
act, does not invalidate his will, on the
ground of lack of testamentary
capacity, provided he meets the three
(3) requirements.
proper objects of his bounty, and the
character of the testamentary act.
*Soundness of mind is the ability of the
testator mentally to understand in a general
way, the nature and extent of his property, his
relation to those who naturally have a claim,
to benefit from his property left by him
{proper bounty), and a general
understanding of the practical effect of the
will as executed {must be aware that his act
is revocable and must be aware of the effects
of his act of making a will).

Example: Belief in angels/dwarfs

a. if no angel - delusion
b. if there is angel - undue pressure
and influence or even threat

Article 798

In order to make a will it is essential

that the testator be of sound mind at
the time of its execution.

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 the estate to be
disposed of, the proper objects of his
bounty, and the character of the
testamentary act.

When is a person of a sound mind? What

is the definition of a sound mind as
applied in the making of the will?

To be of sound mind, it is not necessary that

the testator to 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 the estate to be disposed of, the

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Suppose X suffered a stroke and part of
his brain was damaged. Can he still be
considered to be of sound mind for
purposes of executing a will?
It depends.
If the brain damage sustained by X is so
severe, that it deprives him, at the time of
making the will, to know the nature of the
estate to be disposed of, the proper object of
his bounty, and the character of his
testamentary act, then, X cannot be
considered to be of sound mind.
But is the brain damage sustained by X is not
so severe, that at the time of making the will
he is able to know the nature of the estate to
be disposed of, the proper object of his
bounty and the character of his testamentary
act, then X can still be considered to be of
sound mind.
What are the requisites in order that a
testator be considered to be of sound
mind?
The testator must be able, at time of the
making of the will, to know:
1. the nature of the estate to be disposed
of
2. the proper objects of his bounty
3. the character of his testamentary act
What does "nature of estate" mean?
Example: testator's children
Is it necessary that the testator should
know the beneficiaries of the will?
As a general rule, yes. Because the law
requires the testator to be aware of the
proper objects of his bounty, except in Article
786 which provides that the testator may
designate only a specific class or cause in his
will, and that the third person shall be
responsible in allocating the specific portion to
its members.
What does testator is "able to know the
character of the testamentary act"
mean?
It means that the testator knows that it is
really a will, that it is a disposition mortis
causa, that it is essentially revocable. In short,
the testator must have a general
understanding of the practical effect of the will
as executed.
It refers to the character and the testator's
ownership of what he is giving. Knows the
properties but not necessarily all the details of
the properties.
X decided to make a will. He knows he
has properties in Manila, but he does not
know the exact address. Is the
disposition valid?
Yes. Because the law merely requires that the
testator knows, in a general way the nature
and the extent of his properties. In this case,
X is of sound mind when he executed the
will.
X made a will in 1990. He knew he has
money in the bank and house in Manila
but he forgot the specific detail
concerning his properties. Is the will
valid?
Yes. Because X knows the extent of his
properties in a general way. He is of sound
mind.
What does the "proper objects of his
bounty" mean?
It refers to the testator's relation to those who
would naturally have a claim or to those who
would benefit from the property left by the
testator. In short, it refers to the persons who
for some reason expect to inherit something
from the testator.
Can a drug addict make a valid will?
As a general rule, yes. A drug addict can make
a will as long as he is in his lucid mind and he
complies with the requisites provided for under
nd
Article 799, 2 paragraph. The exception lies
when the effect of drugs are so strong
as to render him of unsound 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 making
his dispositions is on the person who
opposes the probate of the will; but if the
testator, one month, or less, before
making his 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.
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Under Article 800, the law presumes that
every person is of sound mind, in the
absence of proof to the contrary. What
are the instances when this presumption
is inverted? Or what are the instances
when the testator is presumed to be
mentally unsound?
There are at least three (3) instances:
1. when the testator, one (1) month or
less, before making his will was
publicly known to be insane
*Instead of presumption of mental
capacity, there is a presumption of
mental incapacity. The burden of
proof is shifted to the proponents of
the will.
2. if the testator made the will after he
had been judicially declared to be
insane, and before such judicial order
has been set aside (Torres vs Lopez,
48 Phil 772)
3. if the testator makes a will at the time
he is still under guardianship
What is the reason for the inversion of
the rule when a person who made the
will is under guardianship?
A prima facie presumption of mental
incapacity, when a person is under
guardianship.
If during the probate of the will, there is
a question as to the soundness of mind
of the testator. Oppositors to the will
presented the attending physician.
Whose testimony shall be given weight,
the attending physician or the doctor
who renders the medical speculation?
Attending physician.
Navarro: I suggest that you get the
following as witnesses to the
execution of a will:
1. priest or minister - highly credible
2. doctor - attending physician
3. lawyer- familiar with the law
What is the effect of infirmity or disease
on the testator's testamentary capacity?
Physical infirmity or disease of the testator will
not affect his testamentary capacity as long
as the tests/requisites are complied with.
X executed a will. In order for her to sign
the will, it is necessary for Y, a minor, to
guide her hands. Does X still has
testamentary capacity?
Yes. As long as the three (3) requisites/tests
are complied with.
*Mental insanity refers to any disorder of the
mind resulting from disease or defect of the
brain, whereby mental freedom may be
perverted, weakened or destroyed. This is
sometimes used as the equivalent of mental
incapacity to make a will. But there may be
mental incapacity to make a will without
actual insanity.
Person suffering from:
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 1. idiocy
2. imbecility
do not posses the necessary mental capacity
to make a will since these are absolute and
permanent forms of mental disease or
insanity.
Idiocy refers to those who are mentally
deficient in intellect.
3. senile dementia
validity is determined at the time of the
execution of the will.
Suppose X made a will in 197S when he
was twenty-five (2S) years old. In 1997,
he became insane. He died in 1999. Is the
will valid?

Imbecility refers to those who are mentally Yes. Subsequent incapacity of the testator does
deficient as a result of a disease. not invalidate a valid will.

But there are other forms or degrees of

mental diseaseIweakness which do not
necessarily negate testamentary capacity.

Under our law, 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
{Article 799).

Hence, mental aberrations, which do not

result in such impairment of the faculties as
to render the testator unable to know or
understand the nature of his estate to be
disposed of, the proper objects of his bounty
and the character of the testamentary act,
will not destroy testamentary capacity.

Article 801

Supervening incapacity does not

invalidate an effective will, nor is the
will of an incapable validated by the
supervening of capacity.

*Supervening capacity or incapacity does

not affect the will because its validity is
determined at the time of the execution of
the will

Does the supervening incapacity of the

testator invalidate an effective will? Or
is the will of an incapable validated by
the supervening capacity?

No. (See Article 801 in relation to Article

795)

X made a will when he was only

seventeen (17) years old. He died at the
age of twenty-seven (27) without
changing the will. Is the will valid?

No. X has no testamentary capacity at the

execution of the will. Supervening capacity or
incapacity does not affect the will because its

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 How many times can a person make a
will?
There is no limit as to how many times a
person can make a will, as long as, he has
the capacity to do it. Once a person is
eighteen (18) years old the law presumes
capacity. So even if the testator is already
one hundred
(100) years old the will is still valid,
unless otherwise proven.
Does the law prescribe a limit in point
of age by which a person can dispose of
his property by will?
No. As long as the testator passes the test of
sound mind, provided under Article 799.
That is, that the testator, at the of the
making of the will, is able to know:
1. nature of the estate to be disposed of
2. the proper objects of his bounty
3. the character of the testamentary act
What is the reason why a person
below eighteen (18) years of age is
incapacitated to make a will?
The law presumes mental incapacity.
Why is a person too old still allowed to
make a will?
It has been justly said, that the will of an aged
(old) person, should be regarded with
tenderness, provided, that he passes the three
(3) tests of possessing a sound mind.
Article 802
A married woman may make a will
without the consent of her husband,
and without the authority of the court.
Article 803
A married woman may dispose by will of
all her separate property as well as her
share of the conjugal partnership or
absolute community property.
Why is there no provision about married
men on laws of testamentary capacity
and intent?
Because there is no doubt as to the rights of
men in succession. Unlike women due to
the Old Civil Code.
Can a married woman execute her last
will and testament without the
consent of her husband and without
authority from the court?
Yes. A married woman may execute a will
without the consent of her husband and
without authority from the court. (Article
802)
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What are the properties which a married
woman may dispose of by will?

A married woman may dispose by will all of her

separate property, as well as, her share of the
conjugal partnership or absolute community
property.

What if the husband objects? Can she

still make a valid will?

Yes. Article 802 is very clear on this. A married

woman may make a will without the consent
of her husband. Aside from the minimum
requirement that she must be:
eighteen (18) years old and be of sound
mind, nothing more is needed for a married
woman to validly make a will.
 Article 804 to 2. holographic
Article 814
Formalities of What is a holographic will?
Wills
It is a written will which must be entirely written,
Article 804 dated and signed by the hand of the testator
himself without the necessity of any witness.
Every will must be in writing and
executed in a language or dialect known What is the object of the solemnities
to the testator. surrounding the execution of will?

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.

What are classifications of wills?

1. ordinary/notarial
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1. to close the door against bad faith and fraud
2. to avoid substitution of wills and
testaments
3. to guarantee their truth and authenticity
What are the formalities of an
ordinary/notarial will? Article 804 to
Article 809
What are the formalities of a holographic
will?
Article 810 to Article 814.
Can there be an oral will?
No. Article 804 expressly provides, "every
will must be in writing".
X, knowing that he was about to die,
dictated in front of a video camera his
last will and testament. Is the will
valid?
No. The will is invalid. Article 804 expressly
provides that every will must be in writing.
What does "language must be known"
mean, as provided for under Article
804?
It means that the language of the will must
ne personally known to the testator whether
he is illiterate or not. That it will be
Because a will is a personal act concerning a
disposition of one's properties.
What about if the translator is the best
translator that the world can offer?
The will is till invalid. No matter how good
the translator can be, something may be
lost in the process of translation.
Is it necessary for the validity of the will
that it is stated, that the will was
executed in a language or dialect known
to the testator?
No.
*It is a matter that may be established by
extrinsic evidence.
Can a will be written in Latin?
Yes. As long as it is known to the testator.
communicated only to him without changing
any intent therein if he is blind, deaf-mute or
deaf.
Example: If the testator is an illiterate and
he speaks tagalong only, the will must be
in tagalong.
Does the aforementioned rule apply also
to the witnesses?
No. The witnesses need not know the
language of the will or attestation clause. This
is the reason why the law requires it to be
interpreted to them and not merely
communicated.
X speaks and understands Tagalog only.
He does not understand a single English
word. His lawyer, Atty. Sobrang Yabang
wanted to impress X. So, he wrot X's will
in English. However, Atty. Sobrang
Yabang translated
and explained the will "word for word" to
X. Is the will valid?
No. Because the law requires that the will shall
be written in the language known to the
testator.
*This rule applies even if the person is
blind, deaf, deaf- mute.
In the preceding problem, why is it
required to be written in a language
known to the testator?
Can a will be written in several
languages?
Yes. As long as the languages used are known to
the testator.
When X executed his will, it contained ten
(10) dispositions. Each of the ten (10)
dispositions was written in different
dialects and languages. X used French,
Spanish, Latin, English, Tagalog, Bikol,
Cebuano, Waray, Ilonggo and Hiligaynon,
so that these languages and dialect
correspond to the aforementioned ten (10)
dispositions in the will. Is the will valid?
It depends. If X knows all those languages and
dialects, then, the will is valid. The only
requirement as to the language or dialect used
in the making of the will, is that, it must be
known to the testator. Otherwise, the will is
totally invalid.
In the preceding problem, what if X only
knows English?
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The will is totally invalid.
Can the testator make a valid will
using any kind of material?
Yes.
Can there be a valid notarial will on a
material other than a paper?
Yes.
If the testator executed his holographic
will on a blackboard or a tree leaf, is the
will valid?
Yes. As long as it is entirely written, dated
and signed by the hand of the testator.
Hence, it can be written on any material.
How about if the will is written on a wall?
Yes. The will may be valid, provided it complies
with all the requisites.
X executed his holographic will on a
watermelon leaf. Is the will valid?
Yes. As long as it complies with all the
requirements for the valid execution of a
holographic will. Article 810 provides that "a
person may execute a holographic will which
must be entirely written, dated and signed by
the hand of the testator himself. It is subject
to no other form and may be made in or out
of the Philippines, and need not be
witnessed".
The will therefore, remains to be valid
although it has been written on a
watermelon leaf.
*The law does not specify that the testator
himself must perform the act of writing.
However, in case of holographic wills, the will
must be entirely written, dated and signed by
the hand of the testator himself.
Consequently, it is only in ordinaryInotarial
wills that whoever performs the
mechanical act of writing or drafting the
will becomes a matter of indifference.
What constitutes a sufficient signature to a
will?
It depends largely on the custom of the time
and place, the habit of the individual, and the
circumstances of each
particular case. But, it should be manifest, that
whatever is used is actually intended as a
signature.
What is meant by a signature?
It is a sign, token or emblem and what that
shall be, depends upon the custom of the
time and place, and on the habit or whim of
the individual.
The material thing is that the testator made
the mark to authenticate the writing as his
will and whatever he puts on it for that
purpose, will suffice.
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 *1. Subscription is the manual act of the
testator and also the instrumental witnesses 2.The purpose of the signature as applied to
of affixing their signatures to the the testator are:
instrument.
a. to identify the testator
b. authenticate the document *Generally speaking, the use of any signature
intended by the testator to authenticate the
3.The test of sufficient signature is "if the instrument renders the will sufficiently signed
testator intended it as his signature". by the testator.
Hence, a complete signature is not essential to
4.The testator may use as his signature the the validity of a will, provided that, the part of
following: the name written was affixed to the instrument
with intent to execute it as a will.
a. first name
b. assumed name Can the witnesses sign the will and
c. name different from the one attestation clause with a footmark or a
used to designate him as a thumb mark?
testator in the will
d. name misspelled or abbreviated
e. rubber stampIengraved mark
f. thumb mark
g. cross against his name

Provided that, any of the

aforementioned was intended by the
testator to be his signature.

5.With respect to the use of a mere cross

{x) as a signature:

a. it is not sufficient as a signature

without any proof that the testator
intended it to be his signature

b. if proof is presented that the

testator intended a mere cross
{x) to be his signature, then it
may be considered as a valid
signature in a will

Garcia vs Lacuesta, 90 Phil 489

The X mark was not allowed by the court

because there was no proof that it was the
customary signature of the testator, or one of
the ways by which he signed his name.

In this case, the mark was questioned because

the will was executed by a lawyer, and such
fact, that is was under the express direction of
the testator was not stated in the will. Can
the testator sign with his stage name?

Yes.

Can the testator sign with his nick

name?

Yes.

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Yes. As long as the witnesses intended it
to be his signature.
Suppose it is not customary used by him?
Even the law does not provide that he sign
with what he customarily uses as his
signature.
Can the testator sign with his thumb
mark even if he knows how to write?
Yes.
Can the testator sign with his foot mark
even if he knows how to write?
Yes.
Can the testator sign with any mark
even if he knows how to write?
Yes.
*Any mark or combination of marks placed
on a will by the testator as his signature is a
sufficient compliance with a statute requiring
a will to be subscribed by the testator.
It the testator has been in the habit of
using a rubber or engraved dye, in making
Is it a fatal defect?
Yes.
Why require that the signature must be
at the end of the will?
The purpose of the requirement is not only to
show that the testamentary purpose therein
expressed is completed, but also to prevent
any opportunity for fraud or interpolations
between the written matter and the
signature.
*Another essential requirement for the validity
if an ordinary will is the attestation clause.
Absence of this clause will render the will a
nullity. Therefore it is mandatory.
Attestation Subscription
his signature, he may properly use the
same in signing his will.
The testator sign at the beginning of the
will. Is the will valid?
No. Article 805 provides "every will, other than
a holographic will, must be subscribed at the
end thereof by the testator or by the testator's
name written by some other person in his
presence, and by his express direction xxx".
Suppose X signed his will in the middle, is
the will valid?
No. Because of the express requirement under
Article 805, which requires the subscription at
the end.
*End refers to the logical end of the will,
not the will's physical end.
Logical end is the portion after the last
testamentary provision.
X died with a will. When the will was
presented for probate, it was readily
apparent that it was signed in each and
every page and in the left margin, but
not the end. Should the will be allowed?
No. The law requires that the will be subscribed
at the end of the will.
1.an act of the senses 1.an act of the hand
2.a mental act 2.a mechanical act
3.the purpose is to 3.the purpose is
render available proof identification/ to
during the probate of identify that it is
the will, not only of really the will of the
the authenticity of the testator
will, but also its due
execution
Suppose X executed a notarial will, the
attestation clause of which is in Spanish,
X knows English but not Spanish? Is it a
valid will?
Yes.
Can there be a valid will without an
attestation clause?
None.
When then should an attestation clause
in a language not known to the testator
be permitted?
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The attestation clause is a declaration made
by the witnesses, not by the testator.
What is the purpose in requiring the
witnesses to attest and subscribe to the
will?
1. to identify the instrument
2. to protect the testator from fraud and
deception
3. to ascertain the testamentary
capacity of the testator
What is an attestation clause?
It is a memorandum or record of facts,
wherein, the witness certify that the
instrument has been executed
before them and that it has been executed in
accordance with the formalities prescribed by
law.
Is the attestation clause part of the will?
No. It is separate and distinct from the
testamentary dispositions, which were
executed by the testator. It is a separate
memorandum executed by the witnesses
stating that they witnessed the execution of
the will and that it is in accordance with the
formalities of the law.
But it can be incorporated in the will.
What is the purpose of the attestation?
To render available proof during the probate
of the will, not only to the authenticity of the
will, but also its due execution.
Where should the attestation clause be
place?
The attestation clause may be written
immediately after the signature of the
testator at the end of the will.
What if it is place at the beginning of the
will?
The will would still be valid. The present form
is only for convenience.
*The law does not require the attestation to
be contained in a single clause. Thus, where a
will did not contain a separate and
independent attestation clause, but the
concluding paragraph of the body of the will
was written in the tenor of an attestation,
stating the facts required by law to be set
forth in an attestation clause, and the
ultimate paragraph of the will stated the
number of pages use, it was stated that there
was a sufficient attestation clause.
If there is a separate attestation clause, it
need not be written on the very same page
where the dispositions of the will ends, even
if, there should be sufficient space in which
to begin the said clause.
Is it necessary that the attestation
clause be after the testamentary
disposition?
No. The current form is only for
convenience. What must be stated
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 in the attestation clause? Article
805, paragraph 3.
Give an example of an attestation clause.
and signed each and every page thereof, in
the presence of Mr A and each other.
(Signatures must follow.)
Suppose that the phrase "each and every
page thereof" was not included. Should
the will be allowed?
Yes. Compliance with the requirement "each
and every page thereof" be signed, may be
proved by the marginal signatures in each and
every page of the will.
Suppose that it is the phrase "in our
presence" which was deleted. Should the
will be allowed?
We witnesses, do hereby certify: (a) that the
will of Mr A consists of five (5) pages
including (b) the page that Mr A executed his
signature and every page thereof in our
presence, (c) that we witnessed the execution
of the will
(b) The will is void without any exceptions even if
the will contains the signature of the witnesses.
The omission cannot be determined by the
examination of the will itself. Extrinsic evidence
is inadmissible.
(c) The will is void. Exception: the doctrine
of liberal interpretation shall be applied, if
there are indeed signature present.
Suppose the attestation clause does not
state the number of pages used, is the will
valid?
General rule: No

No. There would be nothing in the will that will

prove the compliance thereto.

Is it tenable that the signature of for the

clause be found in other parts of the
page?

No. In Cargo vs Cargo, it was held that the

signatures must be after the clause, to show
that the clause was indeed executed by the
witnesses. Non-appearance of the signature
will negate the declaration that they saw the
due execution of the will.

*The ruling applies despite the fact that

the case was decided under the old rules
of succession.

If the attestation clause failed to state

the (a) number of pages; (b) the fact
that it was signed by the testator in the
presence of the witnesses; or (c) the
fact that it was signed by the testator.
Is the will valid?

(a) General rule, the will is not valid.

Exception: if the number of pages is
stated in the will itself or acknowledgment
(Taboado vs Rosal).

*But this exception must be received with

caution because in the case of Taboado, there
were only two {2) pages in the will, including
the acknowledgment. This rule applies also if
the pages are not correlatively numbered but
only in cases when the will does not exceed
two {2) pages.

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Exception: Applying the doctrine of liberal
interpretation/ construction, the failure to
state in the attestation clause of the number
of pages used, is not fatal. Hence, the will
may still be valid, provided, that it can be
established or deduced from an examination
of the will itself, that all the statutory
requirements have been complied with.
*The doctrine of liberal interpretation cannot
be applied if the omission consists of the
failure to state that the witnesses and the
testator signed in the presence of one
another. Reason: this omission cannot be
remedied by an examination of the will
itself.
Can a testator ask a third person to
sign for him even if he is physically
able to do so?
Yes.
If the third person is not capacitated,
would the will be allowed?
Yes. The will remains to be valid. What is
material is the capacity of the testator, not
that of the third person.
Why should the third person sign in the
presence of the testator?
Because it is the testator himself who is
signing. The third person is merely an
extension of the physical self of the testator.
Suppose X executed a five (S) paged will,
but it was numbered not on the upper
part, instead, it was numbered on the
lower part of the page. Is the will valid?
Yes. In this case, there is sufficient compliance
with the requirement. The place where the
numbering was made is not fatal to the
validity of the will.
What do you understand by
"correlatively numbered in letters"?
One, Two, Three, Four and so on and so forth.
The number must be spelled out.
In the preceding problem, what is the
purpose of the requirement?
To forestall any attempt to suppress or
substitute any of the pages of the will. This
requirement is mandatory.
*The requirement in the preceding problem is
not necessary when all the dispositive parts
Five (S) paged will. All pages are not
numbered. Is the will valid?
No. The law provides that all the pages of the
will should be numbered correlatively in
letters.
Suppose that even if it is not numbered,
the total number of pages is stated in
the attestation clause?
It still remains invalid. The requirement of
numbering each and every page of the will is
mandatory.
Five (S) paged will. Only page 1 (one) is
not numbered. Is it a valid will?
Yes. Because the authenticity of the first page
is easy to determine. It can easily be
ascertained from the face of the will itself,
that indeed it is the first page. From the face
of the will, it is readily ascertainable that the
page, which contains the header "Last Will
and Testament" is the first page.
Suppose that page three (3) was not
numbered, but all the pages were
numbered. Is the will valid?
No. In this case, it would be hard to
determine the authenticity of the said
page.
of a will are written on one {1) sheet only.
Neither is it necessary that the pages of the
will be numbered correlatively in letters such
as "one, two or three". According to the weight
of authority, substantial compliance with the
requirement is sufficient.
Can we number the pages in other
manner?
Yes. We can use Arabic or Roman Numerals,
even letter like a, b, c, etc.
Five (S) paged will. Page five (S) contains
only the attestation clause. Only the
attesting witnesses signed below the
attestation. The testator did not sign on
left margin of page five (S). Is the will
valid?
Yes. Attestation is the act of the witnesses alone.
The law does not require that the testator
should sign on the left margin thereof.
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Five (S) paged will, third page does not
contain the signature of the testator on
the left margin. Is the will valid?
The will is invalid. Exception: Icasiano vs
Icasiano
Suppose that in a four (4) - paged will
the testator sign at the end and also on
the left margin of each and every page.
In page one (1) to three (3), the three (3)
witnesses signed the left margins and
the end of the will, but did
not sign page four (4). Should the
will be allowed?
No. Attestation clause was left unsigned by the
witnesses.
Suppose that a four (4) - page will was
contained in two
(2) sheets. Page two (2), which was at
the back, was not signed. Should the
will be allowed?
No. The law requires that the will must be
signed in each and every page thereof. The
law expressly refer to page and not to the
sheet or leaf or folio.
*A sheet has two {2) pages, the front and the
reverse. If both pages of the sheet or lead are
used, it is necessary that both front and
reverse sides should bear the signatures of
the testator and each of the witnesses. In
other words, every page used in the will
should be signed on the left margin.
Suppose that in a four (4) - paged will,
the attestation clause did not state all
the number of pages used. But the last
paragraph states that the will is
comprised of four (4) pages including the
attestation clause, should the will be
allowed?
Yes. Following the doctrine of liberal
interpretation, there is substantial compliance
of the requirements. That is, the failure of the
instrumental witnesses to state one or some
of the essential facts which, according to the
law, must be stated in the attestation clause
would not be fatal, provided, it can be
established or deduced from the examination
of the will itself that all of the statutory
requirements have been complied with.
Take note, that in this case, the body of the will
states that it is composed of four (4) pages.
Taboada vs Rosal, 118 SCRA 19S
FACTS: The attestation clause of a notarial
will failed to state the number of pages
thereof. However, it is discernible from the
entire will that it really consists of two
{2) pages only: the first, containing the
provisions; and the second, both the
attestation clause and the acknowledgment.
Besides, the acknowledgement itself states
that "this Last Will and Testament consists of
two
{2) pages including this page".
HELD: Under the circumstances, the will
should be allowed probate. After all, we should
approach the matter liberally.
Is there a need to interpret the
Attestation Clause to the testator?
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No. The attestation clause is the act of the 1. There is presence if the parties could
witnesses alone. have seen each other, if they have
simply chosen to do so,
Test of Presence
by turning their backs to each other.
There must be no physical 1. to prevent false testimonies
obstruction of their line of sight. between the principal and the
executors of the will
2. To satisfy the test of presence it is
essential that the testator and the 2. to obtain a permanent record of the
witnesses should be: events that transpired, in case the
memory of the executor fails
a. conscious
b. aware of what is happening

3. It the testator is blind, the sense of

sight to determine presence is not to
be used. In this case, other senses,
such as hearing or touch, can be
used.

What is the "test of presence" in the

execution of the will?

The testator and the witnesses need not

actually see each other signing. It is sufficient
that they could have seen each other sign if
they choose to do so, taking into
consideration/circumstances, the mental and
physical conditions of the parties and their
proximity from each other.

They must be aware that each other are

signing a will and their view must be
unimpeded. So that, they will see the will if
they choose to see it. (Jaboneta vs Gustillo;
Nera vs Rimando)

Does the law require physical proximity in

order to have a valid presence?
Not necessarily. The test of valid presence
does not necessarily require actual seeing but
the possibility of seeing without any physical
obstruction.

1. When a person merely has his back

turned, the signing is done in his
presence, since, he could have cast
his eyes to the proper direction.

2. If there is a curtain separating the

testator and some witnesses from the
other witnesses, there would be a
physical obstruction, and the will
cannot be valid.

What are the reasons why the will

must be executed in the presence of
each other - the testator and the
witnesses?
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The testator signed the will on January
1, 2002. The witnesses signed the will
on the following day. The testator
acknowledged that the signature was
valid. Is this valid?
No. The law requires that the will be signed
in the presence of each other. The
acknowledgement made by the testator did
not cure the defect. The purpose of the
requirement is to prevent the substitution of
surreptitious will.
While the testator was signing the will,
the witness looked out the window. Is
the will valid?
Yes. Because the witness could have seen
the act, had he chose to do so, considering
their mental and physical condition.
X executed his will in another room,
while the witnesses A,B and C played
"hide and seek" in another room, where
X executed his will, they saw X signing
the last two (2) pages of the will. Is the
will valid?
No. Because the will was not signed in the
presence of each other.
*The aforementioned problem is different
from the case of Jaboneta vs Gustillo. In this
case, the witnesses were in fact leaving the
room but they saw their fellow witnesses
signing the will. They knew that the paper
X signed the will on January 1. The next
day, the instrumental witnesses came to
sign the will. Is the will valid?
No. There is no unity of act.
Third person signing in favor of the
testator - persons signing must be:
1. under the express direction of the
testator
2. under the testator's presence
In this case, it refers not only to the physical
presence of the testator, but the testator
must also be conscious and aware of what is
happening.
Is it necessary that the person signing in
favor of the testator must have a
testamentary capacity?
No. Because the person's act is merely an
extension of the testator's act. What is
material is the capacity of the testator,
provided however, that the signing must be
being signed is the will. Hence, the test of
presence was satisfied.
Suppose the testator is blind, how do
you satisfy the requirement of
presence?
Test of available senses: touch and hearing.
Must the witnesses see the testamentary
dispositions for the valid execution of
the will?
No. Because the law merely requires them to
attest to the execution of the will, provided
however, that they are aware that they are
signing the will. Otherwise, it is not valid.
X executed a notarial will with A, B and C
as the instrumental witnesses. X did not
allow A, B and C to read the will. Is the
will valid?
Yes. The law does not require that the
instrumental witnesses should read the will
for its validity.
In the preceding problem, suppose X did
not even allow A, B and C to read the
attestation clause. X simply asked them
to sign. Is the will valid?
No. The instrumental witnesses should read
the attestation clause because it is their act.
under the express direction and presence of the
testator.
*Even a fifteen {15) years old person may sign
in the presence of the testator.
X executed a will. The will was subscribed
by writing at the end thereof the name of
X. But X's name was written by Y. Is the
will valid?
Yes. As long as, the name of X was written by Y
in the presence of X and under his express
direction and is attested and subscribed by
three (3) or more credible witnesses in the
presence of the testator and of one another
and such fact was mentioned in the attestation
clause.
Suppose in the preceding problem, Y
omitted the name of X and instead place
his own name. Is the will valid?
No. Because this would no longer be the
testator's (X) act. The law requires that the
name of the testator must be written.
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If one (1) of the three (3) witnesses
signed the will in behalf of the testator,
is the will valid?
No. The will is not valid because there is a
conflict between his duty to the testator and
his duty as an attesting witness. This rule
applies to the notary public who functions as
an attesting witness or a third person signing
in behalf of the testator.
X authorized his lawyer, Atty. Y, to sign
his will. However, when Atty. Y was
signing the will, X was sleeping beside
him. Is the will valid?
No. Because the testator must be conscious
that the lawyer was signing the will for him.
In this case, although the testator was
present when his lawyer was signing the will,
he was not aware of it. The test of presence
was not satisfied.
The testator need not need to be physically
incapacitated to ask the third person to sign
the will for him, provided that, the fact of the
signing by the third person in his presence
and under his express direction shall be
stated in the attestation clause {Garcia vs
Lacuesta).
Suppose the testator was already sick
and asked his lawyer to sign his will,
in a separate room. Is the will valid?
No. Because the signing was not made in the
presence of the testator.
If the testator, upon the return of his
lawyer was already unconscious and the
lawyer signed in the same room where
the testator was and in the presence of
the instrumental witnesses. Is the will
valid?
No. Because the testator is not aware. It is
therefore not considered to be signed in the
presence of the testator.
*To satisfy the test of presence, the testator
must be aware that another person is
signing the will.
If the testator dictated the provisions of
the will to the lawyer and since the
testator can no longer sign, the lawyer
suggested that he will sign it for the
testator. Is the will valid?
No. Because the law requires that the third
person should sign by the express direction of
the testator.
In the preceding problem, what if the
testator nodded his head. Is the will
valid?
Yes. Nodding of the head is considered to be
an express direction.
*Express direction may be made by action or
conduct. Such as by nodding of the head.
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 The law requires three (3) witnesses in
the execution of the will. Is the will
valid if there are only two (2)
witnesses?
What about if there are more than three
(3) witnesses in the execution of the
will? Is the will valid?
No. The will is not valid if there are only two
(2) witnesses. The law expressly requires
three (3) witnesses.
A will is not a public instrument that is why the
law does not require a notary public to keep a
copy or to transmit a copy to the clerk of court.

Yes. Article 805 provides, " xxx and attested
and subscribed by three (3) or more credible
witnesses xxx". The excess shall only be
considered as a mere surplus but it will not
affect the validity of the will.
*As a general rule, witnesses in the execution
of a will should also acknowledge the will
before a notary public. This is because
witnesses are also principal participants in the
execution of the will.

Note: This is different from other ordinary contracts,

which requires only the contracting parties.
1.Lack of signatures in the left margin is fatal
unless, there is a duplicate copy of the
original. (Icasiano vs Icasiano)

2.The ruling in Icasiano vs Icasiano should not

be applied in all cases, when the signature of
the witnesses do not appear on the margin of
the will. It can be applied only if there is a
duplicate original copy of the will. In this case,
there was no issue on the validity of the will
due to the presence of the copy.

3.The requirement regarding the location (left

margin) of the marginal signatures is not
mandatory in character, provided that, such
signatures are present in every page of the
will (except the last page). So, the marginal
signatures may be found on the right margin
and the will is still valid.

Is it necessary for the validity of an

ordinary/notarial will that it is dated?

No. The notarial will is still valid despites the

fact there is no date in the will.
The notarial will must be acknowledged. In
this case, the date of the acknowledgment
can supply the date of the execution of the
will itself.

Why must a holographic will be dated?

Unlike a notarial will, a holographic will is not

acknowledged or witnessed. So, if the
capacity of the testator is questioned, there is
no date in which we can determine whether
the testator was capacitated to execute the
will at the time.

What is the effect if the will is not

acknowledged?

It will not enjoy the presumption of regularity.

In short it is void.
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Attesting witnesses are different from
acknowledging witnesses. Failure of one
witness to acknowledge the will before the
notary public renders the will void.
How do you acknowledge before a notary
public?
To acknowledge means to avow, to own as
genuine the document presented.
Should the notary public be present at
the time execution of the will?
No. The law requires only that the will be
acknowledged before him.
May the notary public be one of the
subscribing witnesses?
No. To allow the notary public to act as
one (1) of the three (3) attesting
witnesses would have the effect of
having only two (2) attesting witnesses
to the will.
In the preceding problem, are there
exceptions? What are they?
Yes.
1. If there are more than three (3)
witnesses.
Suppose the testator died before the
will may be acknowledged. Can the will
be allowed?
No. The will lacks one of the formalities
required by law - testamentary capacity of
the testator, since, he is already dead.
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.
Can an illiterate person make a notarial
will?
2.
If the will is not acknowledged before
him.
Is it necessary that acknowledgment of
the will be made by the testator and all
of the witnesses at the same time?
No. The law does not require simultaneous
acknowledgment, neither does the law require
that the acknowledgment be made by the
testator and the witnesses in the presence of
one another, provided that all of the parties
acknowledge in from of the notary public, and
provided further, that all the parties has the
testamentary capacity at the time of the
acknowledgment.
May the testator and the witnesses
acknowledge the will in separate
occasions?
Yes. The law does not require simultaneous
acknowledgment neither does the law require
that the acknowledgment be made by the
testator and the witnesses in the presence of
one another, provided that all of the parties
acknowledge in front of the notary public and
provided further, that all the parties has the
testamentary capacity at the time of
acknowledgment.
*The two {2) immediately preceding problems
are the same. The questions were rephrased
to as elicit either a negative or positive
answer. But the reasons are the same.
Yes.
In the preceding problem, would there be
an additional requirement?
Yes. The same with a blind testator, double
reading requirement.
If the testator is illiterate or blind, is it
permissible that the language of the will
is not known to him but merely
interpreted to him?
No.
Even if the interpreter is the best
interpreter that the world can offer?
Yes. Because no matter how good the
interpreter is, somehow, something may be
lost in the process of translation.
How many times should a will read to a
blind person?
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Twice. Exception: if he understands the
contents thereof on the first reading
(Alvarado vs Gaviola).
This aforementioned rule applies if a person
is illiterate because under the law, he is in
the same condition as a blind person. He
does not know what the symbol on the will
stands for.
Is it necessary that the reading of the
will to the blind be simultaneous?
No. This will just confuse the blind person. The
communication of the contents must be at
separate
moments as to prevent fraud. This is the
purpose of the communication.
X, a blind person, had the will read by his
three (3) witnesses at separate
moments. The next day, he went to the
notary public, stating that there is no
need for the latter to read the will for
him. Is the waiver of this rule valid?
No. The testator cannot waive the rule
provided by law because the right to make a
will is merely a statutory right regulated by
law. It is a privilege to be complied with.
*Substantial Compliance Rule may apply, but
it shall apply only if the circumstances fall
under the case of Alvarado vs Gaviola:
1. the will must be read by the person
who drafted the will
2. the will must be read in the
presence of the witnesses, while the
notary public is reading it
simultaneously in silence
Suppose that the testator is blind and
the witnesses did not read the will to him
because the contents and the due
execution of the will was acknowledged
by the testator and he said not to bother
with the reading anymore?
No. Testamentary capacity is a statutory right.
The testator has no right to waive the
requirement thereto.
Alvarado vs Gaviola Jr, 226 SCRA 347
FACTS: That Article 808 was not followed
strictly is beyond cavil. Instead of the notary
public and an instrumental witness, it was the
lawyer who drafted the eight {8) - paged will
and the five {5) - paged codicil, who read the
same aloud to the testator and read them
only once, not twice as the law requires.
HELD: The will is valid. Substantial
compliance is acceptable where the purpose
of the law has been satisfied. The reason
being that the solemnities surrounding
execution of the wills are intended to protect
the testator from all kinds of fraud and
trickery. They are never intended to be so
rigid and inflexible as to destroy the
testamentary privilege.
In this case, private respondent read the
testator's will and the codicil aloud, in the
presence of the testator, his three
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{3) instrumental witnesses and the notary instruction. The is no evidence and the
public. Prior and subsequent thereto, the petitioner does not contend that the will and
testator affirmed upon being asked whether the codicil were not sufficiently made known
the contents read, corresponded with his and communicated to the testator.

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Moreover, the notary public and the three {3)
instrumental witnesses, likewise, read the will
and the codicil, albeit silently. With four {4)
persons following the reading word for word
with their own copies, it can be safely
concluded that the testator was reasonably
assured that what read to him were the terms
actually appearing on the typewritten
documents.

Note: Dean Navarro emphasized that the

application of the aforesaid ruling must be
limited to cases of similar facts.

If the attestation clause does not state the

fact that the will was communicated to the
blind or deaf-mute, the will is still valid
because it is not one of the requisites
required by law to be stated in the clause.
This fact may be determined by extrinsic
evidence.

What is the doctrine of liberal interpretation?

It provides that, in the absence of bad faith,

forgery or fraud or undue influence, defects
and imperfections in the form of the
attestation or in the language used therein
shall not render the will invalid if it is proved
that the will was in fact executed and attested
in substantial compliance with all the
requirements of Article 805.

Is the doctrine of liberal interpretation

applicable to holographic wills?

No. The doctrine does not apply because of the

nature of the will, which is simple and easy to
forge.

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 80S.
Article 810 to Article 814 and may be made in or out of the
Holographic Wills Philippines, and need not be witnessed.

Article 810 Article 811

A person may execute a holographic will In the probate of a holographic will, it shall
which must be entirely written, dated, be necessary that at least one witness
and signed by the hand of the testator who knows the handwriting and signature
himself. It is subject to no other form, of the testator explicitly declare that the

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 will and the signature are in the
handwriting of the testator.
If the will is contested, at least three of
such witnesses shall be required.
In the absence of any competent
witness referred to in the preceding
paragraph, and if the court deem it
necessary, expert testimony may be
resorted to.
Article 812
In holographic wills, the dispositions of
the testator written below his signature
must be dated and signed by him in
order to make them valid as
testamentary dispositions.
Article 813
When a number of dispositions
appearing in a holographic will are
signed without being dated, and the last
disposition has a signature and a date,
such date validates the dispositions
preceding it, whatever be the time of
prior dispositions.
Article 814
In case of any insertion, cancellation,
erasure or alteration in a holographic
will, the testator must authenticate
the same by his full signature.
What are the formalities of a holographic
will?
1. the will must entirely written by the
hand of the testator himself
2. the will must be entirely dated by
the hand of the testator himself
3. the will must be entirely signed by
the hand of the testator himself
4. the will must be executed in a
language or dialect known to the
testator
How would you compare the advantages
and disadvantages between a
holographic will and a notarial will?
The answer us found just after this problem.
What are the advantages of a holographic
will?
I. 1. easier to make
2.easier to revise
3.easier to keep a secret
II. 1. no witnesses are required
2.no marginal signatures on the
pages are required
3.no acknowledgment is required
What are the disadvantages of a
holographic will?
1. easier to forge by expert falsifiers
2. easier to misunderstand, since, the
testator may have been faulty in
expressing his last wishes
3. no guaranty that there was no fraud,
force, intimidation, undue influence
and no guaranty regarding the
testator's soundness of minds
If you were to make a will, what would
you make, a holographic will or a
notarial will?
Personally, I will make a holographic will.
1. easier to make
2. easier to revise
3. easier to keep a secret
4. no witnesses are required
5. no marginal signatures on the
pages are required
6. no acknowledgment is required
*You can answer a notarial will and state your
own reason. You may cite the disadvantsges of
a holographic will.
May an illiterate person executed a
holographic will?
No. It is required that a holographic will must
be entirely written by hand of the testator
himself. An illiterate person is presumed not
to be able to read and write.
What if an illiterate person copies what
his friend wrote, would the will be valid?
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No. Because it is not the product of his
independent thinking.
What if the testator uses his foot to No. The will is not valid. The law expressly
write? Is the will valid? provides that it must be entirely written by the
hand of the testator himself.
It is valid. As long as the testator has found an
effective substitute for his hands, so that he *The word entirely modifies not only the word
can still write, there is no reason why he written but also the words dated and signed.
cannot execute a holographic will. The purpose of the law is obvious. In addition to
insuring and safeguarding the
What about a blind person, can he
execute a holographic will?

Yes. A blind testator can execute a holographic

will, if he can still write despite his blindness
(Braile System).

Suppose the holographic will was signed

by the testator with his first name only,
is the will valid?

Yes.

Can the testator sign with his nickname?

Yes.

*The signature required for holographic will is

not the simple handwriting of name and
surname in a habitual manner. Generally, the
signature includes a person's name and
surname. But, it is not necessary that the full
name be written, if the habitual signature
does not include the full first name or
surname.

Suppose it is not his usual signature?

The will is still valid.

Suppose it is not his full signature?

The will is still valid.

Can you make your holographic will in

the form of a letter?

Yes. As long as it is entirely written, dated and

signed by hand of the testator himself.

Can a blind person make a holographic

will?

Yes, if he knows how to write.

X executed a holographic will. While

writing the will with his own hand, he
got tired, that he decided to type the
other part of the will. Is the will valid?

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authenticity of the holographic will, it will
also serve to deter or prevent any possible
insertion or interpolation by others or any
possible forgery.
Where should the testator sign the
holographic will?
The law does not specifically require the
place, where the signature be placed.
However, it is logical to place it at the end
thereof.
*Tolentino: We believe that under the law
the signature must be at the end of the will.
This can be inferred from Article 812 by the
reference to dispositions written below his
signature. This phrase implies that the
signature is at the end of the will and any
dispositions below it must further be signed
and dated.
Can the testator sign with his thumb
mark?
Yes. In the law of succession, signature
denotes a sign, token or emblem and what
that shall be depends upon the custom of
the time and place, and on the habit or whim
of the individual.
The material thing is that, the testator
made the mark to authenticate the writing
as his will and whatever he puts on it for
that purpose, will suffice.
The law does not provide for the place where
the date must be placed. Hence, the date
may be placed at the end or at the beginning
of the will, or in the body thereof, although its
normal location should be after his signature.
If a holographic will has no
date, is it valid? No. The law
requires that it must be dated. If a
notarial will has no date, is it
valid?
Yes.
Why is a date necessary in a holographic
will, but not in a notarial will?
In a notarial will, it would still be dated in its
notarial acknowledgment while in a
holographic will, the date is necessary
because the testator may make more than
one will and it might happen that the testator
*Jurado says otherwise.
Should a holographic will be witnessed?
No. It need not be witnessed. The presence of
witnesses, however, will not render the will
invalid. Witnesses shall be merely considered
as surplus.
What is the rule on the date of a
holographic will?
General Rule: the month, day and year must
be stated, to avoid conflict between other
holographic wills.
Exception: The Supreme Court did not
follow this rule in Roxas vs De Jesus. There
was no exact date of the day in the will.
*The ruling in Roxas vs De Jesus has been
criticized
because it gives rise to problems if there are
two {2) wills. If it happens:
1. it cannot be determined which of the
two wills, should govern
2. there is no means to determine if the
testator has the testamentary
capacity at the time of the execution
of the will
Where must the date be placed?
was incapacitated during the execution of the
first will and capacitated during the execution
of the second will.
Must the date be in month, day and year?
Generally, yes.
Roxas vs de Jesus, 134 SCRA 24S
FACTS: Generally, the date must be in month,
day and year. But in this case, the SC allowed
the date
{FebruaryI61).
Navarro's Opinion: Conflicts may arise if such
date is allowed because what if two {2) wills
are made and dated
{FebruaryI16), which should prevail.
Suppose that the testator used the page of
his diary/planner, which already has a
date? Is the will valid?
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No. Because the law provides that it must
be entirely dated by the hand of the
testator himself.
*The doctrine of liberal interpretation and
substantial compliance as applied to ordinary
or notarial wills cannot be applied to
holographic wills.
Suppose that the testator wrote, "X'mas
'99". Is the will valid?
Yes. Because there can be no other date for a
X'mas Day.
Suppose the testator wrote "Easter
Sunday, 1998". Is the will valid?
Yes. Because although Easter Sunday is a
changeable date, the exact date can still be
determined.
Suppose the testator wrote "the day
when my boyfriend and I broke up", is
the will valid?
No. In this case, the exact date cannot be
determined. Confusion will follow as to which
boyfriend, and in case of multiple break-ups,
in what instance.
Suppose the will is dated as follows:
Rizal's birthday, 1990. Is this valid?
Yes. So long as the designation of the date
leaves no room for doubt as to the exact date.
In this case, the date is December 30, 1990.
Can an illiterate person execute a
holographic will?
No. Because an illiterate is a no read, no write
person. This rule applies even if he orders
another person to execute the will or write the
will while copying.
*Tolentino says:
1. The law does not require that the will
be completely executed on a single
day, at one time, and in the same ink,
because unity of act is not a requisite
for holographic wills.
2. The day and month may be indicated
by implications, as long as the
designation leaves no room for doubt
as to the exact date.
If the probate of a holographic will is
contested, is it necessary to have three
(3) witnesses? Or, is the three (3) witness
rule under Article 811 mandatory?
Yes. In Codoy vs Calugay, the SC says it is
mandatory.
*Navarro said: By reading Article 811, the
three {3)- witness rule {if probate of
holographic will is contested) should merely
be permissive. Dean Navarro subscribes to
Azoala vs Singson, where the court ruled that
the said requirement is merely permissive.
But for purposes of our present study, we
adhere to Codoy vs Calugay, since this is the
most recent case.
If a holographic will is lost or destroyed,
can it be probated?
No.
Gan vs Yap, 104 Phil S09
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FACTS: The will was not presented for
probate, instead, the petitioner tried to
establish its due execution and contents by
HELD: In the matter of holographic wills, no
guarantees of truth and veracity are
demanded, since, they need no witnesses;
provided however, that they are "entirely
written, dated and signed by the hand of the
testator himself."
the testimony of witnesses, who declared that
they had seen the will and had read its
contents.
required. Hence, a holographic will must be
dated.
Read the case of Kalaw vs Relova, 132 SCRA
241
Pointers: Holographic wills:

The law regards the document itself as a
material proof of authenticity and as its own
safeguard, since, it could at any time, be
demonstrated to be or not to be, in the hand of
the testator himself.
Suppose that a photocopy was
presented, should the will be allowed?
1.dated but not signed - several subsequent
disposition under the signature of the testator
in a holographic will which are not signed but
dated are void. The fact that the last
disposition was signed and dated does not cure
the

Yes. The will may be allowed for probate

because there is a document from which the
hand writing of the testator may ascertained
from.

In the probate of a holographic will, may

a photocopy or a mimeographed or a
carbon copy suffice for the original copy
that was lost or destroyed?

Yes. Because the requirements under Article

811 may still be complied with. The
authenticity of the hand writing and the
signature of the testator may still be examined
from the photocopy or mimeographed or
carbon copy. The xerox copy, etc., may still be
shown as a material proof of the authenticity
of the testator's hand writing and signature.

*If the testator asks for the probate of his will,

his testimony is more than sufficient.

As to the signatures the provisions for

notarial will, expressly provide that the
signature must be at end of the dispositions.
In holographic wills, there is no categorical
statement. But it can be deduced from Article
812, that the dispositions written below the
signature of the testator will not be
considered a valid testamentary disposition
unless it is dated and signed by him.

As to the date. Date is not essential for the

validity of notarial wills, because the will
must acknowledge. In this case, the date of
the acknowledgment will supply the date of
the will. Furthermore, there are all of the
witnesses to prove the date of the execution.
This is different from holographic wills,
where no acknowledgment and witnesses are

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 defect because the presence of the date
renders the will void on separate dates and
not in its entirety.
Each disposition precludes the other
because it is the fact that they were not
executed simultaneously. In this case, the
last disposition is valid.
2.signed but not dated. Article 813 applies
only for dispositions that are signed but not
dated because the presumption is that they
were executed entirely and not on separate
dates.
Suppose on additional disposition, in a
holographic will, does not contain a
date. Is it a valid disposition?
No. It is not a valid disposition. The
disposition written below the testator's
signature in the will is considered as
independent of the will itself. Hence, it must
be signed and dated by the testator. If one is
not dated, even if signed, that particular
disposition is void without affecting the
validity of other dispositions or the will itself.
And as an unsigned and undated postscript
to a holographic will, it is invalid as a
testamentary disposition (Article 812).
Suppose that after the last disposition
made in the will, another disposition
was written, what must be done?
It must be dated and signed by the testator in
order that it will become a valid
testamentary disposition.
insertion are not considered as written
because the validity of the will cannot
be defeated by the malice or caprice
of a third person
2. if made after the execution of the
will with the consent of the
testator, the will remains valid but
the insertions are void
3. if made after the execution of the
will and validated by the testator
by his signature thereon, it
becomes part of the will, and
therefore, the entire will becomes void,
because of the failure to comply with
the requirement that it must be
entirely written by the hand of the
testator
4. if made contemporaneously/
simultaneously with the execution
of the will, then the will is void
In a holographic will, only the first
disposition was dated, but the second
disposition was both dated and signed by
the testator. What is the effect?
The first disposition is void.
*Article 813 does not apply because Article
813 refers to preceding dispositions which are
signed but not dated. Suppose a prior
disposition was unsigned and undated,
and the next disposition was signed and
dated by the testator, what is the effect.
The first disposition is validated by the
subsequent disposition, which was dated and
signed. In this case, there arises a
presumption that all the dispositions were
made simultaneously.
* With respect go the preceding problem,
Dean Navarro is of the opinion that "the first
disposition is validated by the second
disposition. The reason is that, it can be
inferred that the testator intended the two
{2) dispositions to be valid, the last being the
final disposition".
What is the rule in insertions and
cancellations in a holographic will?
1. if made after the execution of
the will, but without the
consent of the testator, such
because it is not entirely written by
the hand of the testator
Can a testator authenticate an alteration
with his nickname?
No. Full signature of the testator is required.
However, full signature does not mean the
testator's full name (first and last name).
*Dean Navarro's opinion: To certain extent, the
aforementioned creates absurdity, considering
the fact that the authentication execution of
the will is certainly more important than the
authentication of a mere insertion, cancellation,
erasure or alteration.
Why is there a need for authentication?
Because with respect to insertions on
holographic will, fraud can easily be committed.
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X executed a holographic will.
Thereafter, Y surreptitiously made an
insertion thereon. What is the effect?
The insertion made by Y will not considered
written. The will remains valid.
After X has executed the will, Y
approached X and asked him if he can
make some insertions on the will. Y said
"Okey, be my guest!". What is the
effect?
The will remains valid, but the insertions are
void. Although X has consented to the
insertion.
In the preceding problem, what if X has
affixed his signature to the insertions?
What is the effect?
The insertions become part of the will and
thereon, the entire will becomes void.
Because of the failure to comply with the
requirements that it must be entirely written
by the hand of the testators.
While X was midway writing his will, Y
arrived. Seeing X getting tired of writing
the will, Y volunteered to write it, with
dictations from X. What is the effect?
The whole will is void because it is not entirely
written by the hand of the testator.
Suppose the will was altered without the
full signature, is the whole will void?
No. Only the alteration is void. However, if
what was altered was the dated or the
signature, the alteration without the full
signature makes the whole will void.
Illustration I: Holographic will
{A) January 3,
1995 I give everything to
Maria Jose.
{Sgd.) Manuel Jose
{B)
I give everything to Pedro Santos.
January 10, 1996
{C)
I give my house and lot in QC to Juan Santos.
January 10, 1998
{Sgd) Manuel Jose
Is the illustrated holographic will, is the
disposition under letter (A) valid?
Yes. It is valid. It is entirely written, dated and
signed by the hand of the testator himself.
What about under letter (B)?
The disposition is invalid. It was not signed by
the testator.
*Several subsequent dispositions under the
signature of the testator in a holographic will,
which are not signed but dated are void. The
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fact that the last disposition was signed and
dated does not cure the defect because of
What about letter (C)?
Valid.
Illustration II. Holographic will
the presence of the date renders the will void
on separate dated and not in its entirety.
in a holographic will are signed without being
dated and the last disposition has a signature
and a date, such date validates the dispositions
preceding it, whatever be the time of prior
dispositions.

January 3,

1995 I give everything to

Maria.

{Sgd) Manuel Jose

Is the disposition valid?

Yes.

Holographic will

January 3,

1995 Clara
I give everything to Maria. {Thereafter, the
name Maria was altered and the name Clara
was written, but the testator did not affixed
his full signature.)

{Sgd) Manuel Jose

In the aforementioned problem, who

will inherit?

None. Neither Clara nor Mara will inherit.

Clara will not inherit because the alteration

was not authenticated by Manuel Jose with his
full signature.

Maria will not inherit because it is clear from

the alteration that the testator intended to
replace Maria as an heir.

Illustration III: Holographic will

I give my car to Pedro Santos.

{Sgd) Manuel Jose

I gave my house and lot to Pedro Santos.

Janury 20, 1998

{Sgd) Manuel Jose

Are the aforementioned dispositions

valid?
Yes. Both dispositions are valid. Under Article
813 when a number of dispositions appearing
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 Article 815 to 819
Laws Which Govern the Formal
Validity of Wills Article 815
When a Filipino is in a foreign country,
he is authorized to make a will in any of
the forms established by the law of the
country in which he may be. Such will
may be probated in the Philippines.
Article 816
The will of an alien who is abroad
produces effect in the Philippines if
made with the formalities prescribed by
the law of the place in which he resides,
or according to the formalities observed
in his country, or in conformity with
those which this Code prescribes.
Article 817
A will made in the Philippines by a
citizen or subject of another country,
which is executed in accordance with
the law of the country of which he is a
citizen or subject, and which might be
proved and allowed by the law of his
own country, shall have the same effect
as if executed according to the laws of
the Philippines.
Article 818
What are the rules governing the formal
validity of a will?
1. If the testator is a Filipino and the will
is executed in the Philippines, its
formal validity is governed by the
Civil Code of the Philippines.
2. If the testator is a Filipino and the
will is executed in a foreign country
then its formal validity is governed
by either:
a. by the law of the place where
the will was made
b. by the Civil Code of the
Philippines
3. If the testator is foreigner and the
will is executed in the Philippines,
then its formal validity is
governed by either:
a. by the Civil Code of the
Philippines
b. by the law of his country
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.
Article 819
Wills, prohibited by the preceding
article, executed by Filipinos in a
foreign country shall not be valid in the
Philippines, even though authorized by
the laws of the country where they
may have been executed.
Note: The aspect of a will governed by the
national law of the decedent are the
following:
1. intrinsic validity
2. capacity to succeed
3. order of succession
4. amount of successional rights
*As a general rule, the formal validity of a will
shall be governed by the law of the country in
which it is executed. This rule is expressed in
the first paragraph of Article 17 which
provides that "the forms and solemnities of
contracts, wills and other public instruments
shall be governed by the laws of the country
in which they are executed". This rule
however, is reiterated or supplemented by
the provisions of Article 815 to 819 as
discussed hereunder.
4. If the testator is a foreigner and the
will is executed in a foreign country,
then its formal validity is governed
by either:
a. by the law of the place where
the will was made
b. by the law of his own country
c. by the law of the country
where he resides
d. by the Civil Code of the
Philippines
*With respect to the aforementioned Rule # 2. It
must be observed that Article 815 does not
state that a will made by a Filipino in a foreign
country may be executed in accordance with
the formalities prescribe by the Civil Code. In
spite of the omission, however, it is submitted
that such a will may still be admitted to
probate in the Philippines. Not to grant this
concession to Filipino citizens would be illogical
and unfair considering the fact that it is even
granted to foreigners.
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 X, a Filipino citizen, executed a will
while he was on a vacation in Japan.
What law will govern the formalities of
the will?
The place of the execution (Japan) or
Philippine laws (Article 815).
X is a Japanese citizen but he resides in
England. He executed a will in Indonesia.
May such will be probated in the
Philippines and his estate located in the
Philippines
be distributed in accordance with the
provisions of the will?
Yes. It can be probated and his estate may be
distributed in accordance with the provisions
of the will, provided,
that the said will was executed in
accordance with the formalities prescribe
by any of the following laws:
1. the law of the place where X resides
(England)
2. the law of his own country (Japan)
3. the Philippine laws (Civil Code)
4. the law of the place where the will
was made (Indonesia)
*The national law of the decease shall govern
the intrinsic validity of wills.
Under Article 819, whether or not the Filipino
testator is in the Philippines, he cannot
execute a joint will even if authorized by the
country of execution because under Article 17
of the Civil Code, "prohibited acts of the
country of nationality are not waived by mere
agreement, convention or laws of a foreign
country".

This rule applies if the testator is also an

alien, by reason of public policy. Except, if
such alien is abroad.

What is a joint will?

It is defined as a single testamentary

instrument which contains the wills of two (2)
or more persons jointly executed by them,
either for their reciprocal benefit or for the
benefit of a third person.

What is the nature of a joint will?

It is a single will with two (2) testators.

*Even if only a single sheet was used, there is

no joint will if the two {2) wills are identifiable
from each other.

Illustration:
Is the above illustrated will valid? In the preceding problem, what about if
the will ofWill
Last the and
wifeTestament
is written at
of the back
Mr. X
Yes. The wills of the husband and the wife are page, while that of the husband is on the
easily identifiable from each other. They made front page, is it valid?
Provisions and dispositions, etc
separate wills and not a joint one. ...........................
Yes. There are two (2) separate wills.
.....
* The illustration above shows two {2) wills
...........................
which are both complete in themselves. What are the reasons why joint will are
.....
prohibited?
There are really two {2) separate ... ........................
instruments, which are independent of each .....
1. To allow as much as possible,
other. secrecy. A will being a purely
personal act. (Sgd) Mr.X (husband)
Reciprocal wills between husband and wife
are valid as long as they are not made jointly. 2. To prevent undue influence by the
This is true even if the same witnesses are Last Willaggressive
more and Testament
testatorof
onMrs.
the Y
used. other.
Provisions and dispositions, etc
page
...........................
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3. In case of death of the testators at
different times, probate would be
harder.
4. To protect the right of the testator to
revoke his will at any time.
5. In case of husband and wife, one
may be tempted to hasten the
life of the other.
*Reciprocal wills between husband and wife,
as long as not made jointly, are valid {Araneta
vs Rodriguez). This is true even if the same
witnesses are used.
H and w are Argentinian citizens. Joint
wills are allowed and valid in their
country. They executed a joint will in
Argentina. Is the will valid here in the
Philippines?
Yes. The prohibition on joint wills does not
apply to foreigners.
In the preceding problem, what if they
executed the will here in the
Philippines? Should the will be allowed
probate in the Philippines?
There are two (2) views:
1. It should be allowed because
prohibition on joint wills does not apply
to foreigners.
2. The will should not be allowed by
reason of public policy.
*By public policy, it means, if joint wills are
prohibited in the Philippines, then any joint
will executed here must not be allowed
probate even if it is executed by foreigners.
Under Article 819, joint wills executed by
Filipinos in a foreign country shall not be valid
in the Philippines, even though authorized by
the laws of the country where they may have
been executed. This rule is an exception to
the rule stated in Article 815 which provides
"when a Filipino is in a foreign country, he is
authorized to make a will in a forms
established by the law of the country in which
he may be. Such will, may be probated in the
Philippines. The rule under Article 819 is in
conformity with provisions of the third
paragraph of Article 17 which states:
"Prohibitive laws concerning persons, their
acts or property and those which have for
their object public order, public policy and
good custom shall not be rendered ineffective
by laws or judgments promulgated or by the
determinations or conventions agreed upon in
foreign country".
H is married to W. H is Filipino while W is
a foreigner. Suppose that while W's
country which permits joint wills, the
couple executed a joint will. What is the
status of the will?
The will as it pertains to H is void but valid as
it pertains to W.
What are he provisions of the will which
are governed by the national law of the
testator?
1. order of succession
2. amount of successional rights
3. capacity to succeed
4. intrinsic validity
*The intrinsic validity of a will is governed by
the national law of the person whose
succession is under consideration. This is the
precept or principle which is enshrined in the
second part of Article 16. According to this
provision: "intestate and testamentary
succession, both with respect to the order of
succession and amount of successional rights
and to the intrinsic validity of the
testamentary provisions shall be regulated by
the national law of the person whose
succession is under consideration whatever
may be the nature of the property and
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regardless of the country wherein said
property may be found. Miciano vs Brimo, S0 Phil 867

Article 1039 : Capacity to succeed is
governed by the law of the nation of the
decedent.
Philippine laws. He named legatees, including
oppositors Brimo, on condition that they
should respect the testator;s will, as to the
manner that his property will be distributed.
HELD: If this condition as it is expressed where
legal and valid, any legatee who fails to
comply with it, as herein oppositor has done,
who by his attitude in this proceeding has not
respected the will of the testator, as expressed,
is prevented from receiving his legacy. The
fact however is that, the said condition is void,
being contrary to law because it ignores the
testator's national law.
Article 820 to
Article 824
Witnesses to
Wills
FACTS: The deceased was a Turkish subject,
but disposed that his property should be
distributed according to
such will, such devise or legacy shall, so
far only as concerns such person, or
spouse, or parent, or child of such person,
or any one claiming under such person or
spouse, or parent, or child, be void, unless
there are three other competent
witnesses to such will. However, such
person so attesting shall be admitted as a
witness as if such devise or legacy had
not been made or given.
Article
824
A mere charge on the estate of the
testator for the payment of debts due at
the time of the testator's death does not
prevent his creditors from being
competent witnesses to his will.

Article What the qualifications of witnesses?

820
1. he must be of sound mind
Any person of sound mind and of the
age of eighteen years or more, and not
bind, deaf or dumb, and able to read
and write, may be a witness to the
execution of a will mentioned in Article
80S of this Code.

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 a document, perjury or false
testimony

Article
822

If the witnesses attesting the

execution of a will are competent at
the time of attesting, their becoming
subsequently incompetent shall not
prevent the allowance of the will.

Article
823

If a person attests the execution of a will,

to whom or to whose spouse, or parent,
or child, a devise or legacy is given by
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 2. he must be eighteen (18) years of age
or more
3. he must not be blind, deaf or dumb
4. he must be able to read and write
*The first two {2) qualifications are also
necessary for the making of a will. In the
case of instrumental witnesses, the law adds
two {2) additional qualifications. The reason
for this is evident: during the probate of the
will, the testimony of the witnesses is
required. Certainly, it will be quite difficult for
an illiterate witness to give an intelligent
testimony. The same thing can be said of a
deaf-mute, or a person who is either blind,
deaf or dumb.
What is a dumb person?
It refers to a mute person, one who cannot
speak.
What are the disqualifications of
witnesses?
1. any person not domiciled in the
Philippines
2. those who have been convicted of
falsification of a document, perjury or
false testimony
3. any person who is not of sound mind
4. any person less than eighteen (18)
years old
5. any person who is blind, deaf or dumb
6. any person who cannot read and write
Is a person qualified to make a will, also
qualified to witness to the will of
another?
A person who is qualified to make a will is not
necessarily qualified to be a witness to the will
of another.
Example: A blind person may be qualified to
make a will, if he knows how to write, but he
cannot be a witness to a will.
*The law does not require a testator to be
intelligent.
Witnessed must be domiciled in the
Philippines, in order to increase the
probability of them to be present during the
probate of the will.
Capacity of the witnesses must exist at the
time of the execution of the will. Any
supervening incapacity or capacity does
not cure any defect or invalidate the will.
Is it necessary that the witnesses must
know the contents of the will?
No. The law does not require it. All that the law
requires is that, they must attests and
subscribe the will in the presence of the
testator and of one another. To attest and
subscribe do not mean that they must read
the will or comprehend the contents thereof.
Hence, even if the will is written in a dialect or
language unknown to them, the requirements
of the law are still complied with.
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What are the reasons why a person not Suppose that at the time of the execution
domiciled in the Philippines and a of the will, there were (3) witnesses, one
convict are disqualified as witnesses of of whom is already accused of perjury.
the will? Subsequently, he was convicted two (2)
years after the execution of the will. Can
A person not domiciled in the Philippines will the will be allowed?
practically be useless during the probate
proceeding. While a person convicted of
falsification of a document, perjury and false
testimony is unworthy of credence. The latter
are not considered as credible witnesses.

If a Filipino in the US wants to execute a

notarial will in accordance with the
Philippine laws, must his witnesses be
domiciled in the Philippines?

Paras said: No. After all, the will is to be

executed in the US.

Dean Navarro: Witnesses must be domiciled in

the Philippines because the law does not
provide for an exception. Besides, Article 810
provides for a holographic will, which can be
executed without witnesses. Therefore, if a
Filipino is abroad, why not chose to execute a
holographic will, so that, he will not be
burdened with thre requirement of witnesses?

Why does the law require that the

witnesses be domiciled in the
Philippines?

1. The assurance that the witness will be

available at the will is presented for
probate.

2. The likeness of personal acquaintance

with the testator. Hence, there is a
greater credibility as a witness.

Suppose that X executed a will with A, B

and C as his witness. All the three (3)
possessed all the qualifications and none
of the disqualifications. Two (2) years
after the execution of the will, A, B and C
migrated to Canada. Can the will be
allowed?

Yes. The competency of the witness to a will is

to be determined as of the time of the
execution of the instrument and not at the
time when the will is presented for probate.

Suppose that A, B and C are all Chinese

citizens, can the will be allowed?

Yes. No particular citizenship is required by

the law, provided, they are domiciled here in
the Philippines.

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 Yes. The conviction happened two (2) years
after the execution of the will. Capacity is
determined at the time the will is executed.
Suppose that at the time of the execution
of the will, one
(1) of the witnesses was already
convicted, but was subsequently
acquitted on appeal. Can the will be
valid?
Yes. As there was no final conviction yet.
*Conviction must be by final judgment in
order to be disqualified as witness.
Only three {3) crimes have been mentioned:
falsification of a document, perjury and false
testimony. Conviction of any other crime is
not a disqualification.
When X executed his will, one (1) of
the three (3) witnesses was A who was
only seventeen (17) years old. Two (2)
years after, X's will was presented for
probate. Should the will be allowed?
No. Because one of the witnesses was only
seventeen (17) years old at the time of the
execution of the will. The supervening
capacity of A, when he became eighteen
(18) years old, will not cure the defect or
validate the will.
Why is the notary public before whom
the will was acknowledged disqualified
to be a witness of the said will.
It would be absurd for him as a witness to
acknowledge something before himself as a
notary public. The notary public cannot have
a split personality.
What do "credible witness" mean?
In Gonzales vs CA, credible witness refers to
competent witness that posses and have all
the qualifications and none of the
qualifications provided by law. The courts
have duty to determine the credibility of the
witnesses and they cannot do this unless the
witnesses are competent.
Is there a difference between
competency and credibility of
witnesses?
The rule is that the instrumental witnesses in
order to be competent must be shown to
have all the qualifications and none of the
disqualifications provided by law and for the
Suppose in the preceding problem, A was
convicted in the RTC for falsification of
documents. But his case was still
pending execution. May he still qualify as
a witness?
Yes. Conviction must be by final judgment in
order that a person may be disqualified from
being a witness to the will. Hence, considering
that A's case or conviction is still pending
execution, there is yet, no final judgment to
speak of.
Suppose after becoming a witness to
the will, A was subsequently convicted
by final judgment, what is the effect?
The will is still valid. The subsequent
incompetence of A to become a witness to
the will did not affect the validity of the will.
Suppose in the preceding problem, B was
actually convicted by final judgment of a
crime of falsification of documents, but
this fact was unknown to X at the time of
the execution of the will, is the will valid?
Yes. The will is still valid, provided that C
exercised all efforts to ascertain the
competence of B.
*Transcriber's Warning: If strict compliance is
required, the will should have been void.
testimony to be credible, that is worthy of belief
and entitled to credence. It is not mandatory
that evidence be first established on record
that the witnesses have a good standing in the
community, or that, they are honest and
upright or reputed to be trustworthy and
reliable for a person is presumed to be such
unless, the contrary is established. (Gonzales
vs CA, 900 SCRA 183)
Suppose X made a notarial will with A, B
and C as witnesses. In the will, A was
given a piece of land as a devisee. Is the
will valid?
Yes. Because there are three (3) credible
witnesses, A being one of the.
However, while A is capacitated as a witness, he
is incapacitated to receive the devise because it
does not comply with the requirement that it
should have three (3) witnesses. In the given
case, only B and C stood as witnesses with
respect to the devise. Hence, the provisions
regarding said devise should be disregarded, the
rest of
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the will (other provisions and dispositions) are
valid.
In the preceding problem, suppose
there were three (3) other witnesses
aside from A. May A be entitled to
receive the land devise to him?
Yes. The other three (3) witness can stand as
witnesses with respect to the land given to A.
In the preceding problem, suppose that
all four (4) witnesses were designated s
devisees, can the will be allowed?
Yes.
Articles 825 to Article
827 Codicils and
Incorporation by Reference
Article 82S
A codicil is supplement or addition to a
will, made after the execution of a will
and annexed to be taken as a part
thereof, by which disposition made in the
original will is explained, added to, or
altered.
Article 826
In order that a codicil may be effective,
it shall be executed as in the case of a
will.
In the preceding problem, may the
witnesses be able to get the device?
The answer is still contested.
1. Yes. Because the other three (3)
witnesses may stand as witness, with
respect to the devise given to each
one of them.
2. Navarro said: Since the purpose of the
law is to remove any pecuniary
interest, they should not be allowed
to get the devise
Pointers:
1. The term, "three (3) other witnesses"
refers to uninterested persons in the
execution of the will.
2. The law speaks only of legatees and
devisees.
We believe however, that even an
instituted heir or his/her spouse,
parent or child is disqualified. The
disqualification applies to one who
succeeds by will. It is not material in
what concept her succeeds.
3. The disqualification extends to:
a. the witness
b. the spouse of the witness
c. the parent of the witness
d. the child of the witness
e. anyone claiming the right of
the said witness, spouse,
parent or child (e.g. the
creditor of the witness, if said
creditor has not been paid his
credit)
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;
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(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.
What is a Codicil?
It is a supplement or addition to the 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 to or altered.
How is a codicil executed?
It shall be executed as in the case of wills in
order that the codicil may be effective.
*Article 825 enunciates the definition of a
codicil, while Article 826 gives the requisites
in order that the codicil may be effective.
The word codicil imports a reference to some
prior paper as a will. There may, however, be
a valid codicil to a
revoked will. At first codicils were writing
actually attached
to the will, but this is no longer necessary;
when they are separate documents, the codicil
referring to and ratifying the will may be said
to incorporate the will by reference, or to
republish the will. In order to operate as
republication of the will, it is sufficient that the
codicil refers to the will in such way as to
leave no doubt as to the identity of that
instrument. A reference to the will in the
codicil constitutes a sufficient identification of
the will.
What are the formalities in executing a
codicil?
The same as holographic and notarial wills.
What is the difference between a will and a
codicil?
Codicil, adds to or alters the original
provisions of a will. It is not independent to
the prior will and it is always executed after a
will.
If there is a conflict between a codicil
and a will, which one will prevail?
The codicil shall prevail, it being the later
expression of the testator's wishes.
Can there be a holographic codicil?
Yes. As long as it is entirely written, dated and
signed by the hand of the testator.
May a holographic will be amended by a
notarial codicil?
Yes. A notarial will may be revoked by either a
notarial or holographic codicil. A holographic
will may be revoked by either a holographic
or notarial codicil.
X executed a notarial will in 198S.
Subsequently, X executed a holographic
codicil. Can the notarial will be modified
or revoked by the holographic codicil?
Yes. Because any codicil, whether holographic
or notarial, may modify a previous will. Thus,
a notarial will may be modified or revoked by
a notarial or holographic will. In the same way
that a holographic will may be modified by a
notarial or holographic will. The only
requirement is that the codicil must be
executed in accordance with the formalities
by law, it is void and it cannot be revoked by
will.
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*If a codicil is not executed with the
formalities of will, said codicil is void.
How do you identify a codicil?
A codicil refers to the original will. If there is
entirely no reference at all, it is considered to
be a new will.
May a codicil be made before the
execution of the will?
A valid will can never be revoked, expressly or
impliedly by an invalid codicil.
As a rule: NO, Article 824 (4), provides "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"
From this provision it can be deduced that as a
rule, incorporation by reference may be applied
only on notarial wills.

No. Because a codicil refers to a will. It cannot

be made before the execution of a will.

What are the requisites for incorporation

by reference?

Article 827.

What is the purpose of the

aforementioned incorporation by
reference?

To provide for those cases where a testator

wishes to incorporate to his will by reference,
voluminous documents. Hence, the testator
is able to save time and energy.

Are the witnesses required to agree with

testator for the incorporation of the
reference?

No. It is an act of the testator alone.

In the preceding problem, should the list

be attested by the attesting witnesses?

No. Under Article 827, said documents or

inventories when referred to in a notarial will
do not need an attestation clause because
the attestation of the will itself is sufficient.

In case of the voluminous books of

accounts or inventories, does the
testator and the witness have to sign
each and every page thereof?

No. It need not be signed on each and every

page thereof. Take note however that the
exception refers only to the signing of all the
pages thereof. Thus, while not every page has
to be signed, there must be signed on at least
several pages thereof, for the purpose of
identifying the same as the document really
referred to.

Can there be an incorporation by

reference with respect to holographic
wills?

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Exception:
1. If a holographic will happens to
have at least three (3) credible
witnesses; and
2. (Having no witnesses) it refers to a
document entirely written, dated and
signed by the hand of the testator,
there can also be a proper
incorporation by reference.
As regards proof as to the identity of
the document as incorporated, can
evidence aliunde be admitted?
Yes. Parole or extrinsic evidence (evidence
aliunde). Can be admitted. It is even
necessary on this situation.
*Stated generally, the doctrine is that a will
duly executed and witnessed according to
statutory requirements, may incorporate
into itself by an appropriate reference a
written paper or document which is in
existence at the time of the execution of
the will, irrespective of whether such
document is one executed by the testator or
a third person, whether it is in and of itself
a valid instrument, provided that the
document referred to is identified by clear
and satisfactory proof. So incorporated, the
Can a will be a document, which is
incorporated in another will?
No. The law allows incorporation only if what is
incorporated in a will, is not in itself a will
(another will so to speak).
Article 828 to
Article 834
Revocation of
Wills
Article 828
A will may be revoked by the testator at
any time before his death. Any waiver or
restriction of this right is void.
Article 829
A revocation done outside the
Philippines, by a person who does not
have his domicile in this country, is valid
when it is done according to the law of
the place where the will was made, or
according to the law of the place in
which the testator had his domicile at
the time; and if the revocation takes
extrinsic paper takes effect as part of the will
and is admitted as probate of such.
Can a document which is incorporated by
a reference to a will, refer to papers,
which may be made only in the future?
No. The incorporation will be invalid, but the
will remains valid. The will must refer to
papers which have been made already. It is
not enough to state that it is already in
existence.
Suppose that in 198S, X typed a
document which he intended to be used
in the future as his last will and
testament. In 199S, X made a will and
incorporated the 198S document. Is
there a valid incorporation?
No. The 1985 document was a testamentary
provision. So it must be made into a will.
Article 827 refers only to references such as
inventory.
The purpose of incorporation by reference is
merely for convenience. It cannot be done to
incorporate testamentary provisions.
*Article 827 refers to non-testamentary
dispositions. So, if they are testamentary, one
must use a codicil or a will, not an
incorporation of reference.
place in this country, when it is in
accordance with the provisions of this
Code.
Article 830
No will shall be revoked except in the
following cases:
(1) By implication of law; or
(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
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obliteration are established according to
the Rules of Court.
Article 831
Subsequent wills which do not revoke
the previous ones in an express manner,
annul only such dispositions in the prior
wills as are inconsistent with or contrary
to those contained in the latter wills.
Article 832
A revocation made in a subsequent will
shall take effect, even if the new will
should become inoperative by reason of
the incapacity of the heirs, devisees or
legatees designated therein, or by their
renunciation.
Article 833
A revocation of a will based on a false
cause or an illegal cause is null and void
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.
What do you mean by revocation as
applied to wills?
It is an act of the mind terminating the
potential capacity of the will to operate at the
death of the testator, manifested by some
outward or visible act or sign, symbolic
thereto.
Can the testator waive the right to revoke?
No. It is a void waiver. The law provides that
the right of the testator to revoke cannot be
restricted.
In 198S, in paragraph 10 of his will, it is
stated, "This is my last will and
testament, and I do not intend to change
any of the provisions in it. I therefore
waive my right of revocation." In 199S,
he changed his mind. Can X still revoke
his 198S will?
Yes.
Even if he expressly waived his right to
revoke the will?
Yes. A will may be revoked by the testator at
any time before his death. Any waiver or
restriction of the right is void.
Can the oppositor contests the probate
of a will, by the mere fact that the said
will contains an irrevocable clause?
Yes. Because this is an indication that the
testator did not understand the character of
the testamentary act at the time of the
execution of the will. Furthermore, said
"irrevocability clause" is void under Article
828.
How may a will be revoked?
1. By implication of law.
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 2. By some will, codicil, or other
writing executed as provided in
case of wills.
3. By burning, tearing, cancelling, or
obliterating the will with the
When is there a revocation by
implication of law?
The revocation is to be implied from certain
changes in the family or domestic relations of
the testator, or his property, or one involving
the beneficiaries of the will, from which the
law infers or presumes that he intended a
change, either total or partial, in the
disposition of the property.
What are the instances of revocation by
implication of law?
1. When there is a decree of legal
separation.
intention of revoking it, by the
testator himself, or by some other
person in his presence, and by his
express direction.
acted in bad faith, said marriage shall
be void ad initio and all donations by
reason of marriage and testamentary
dispositions made by one in favor of the
other are revoked by operation of law.
7. Article 50 of the Family Code. In cases
of marriages which are declared void
ab initio or annulled by final
judgment.
*In legal separation, a spouse may still inherit
from the other spouse, unless, found guilty of
the legal grounds of legal separation, heIshe is
disqualified from.

2. Where the is preterition or omission of

one, some or all of the compulsory
heirs in the direct line, whether living
at the time of the execution of the will
or born after the death of the testator.
In such case, the preterition shall
annul the institution of heirs.

3. When in a testator's will there is a

legacy or credit against a third person
or of the remission of a debt of the
legatee, and subsequently, after the
execution of the will, the testator
brings an action against the debtor for
the payment of his debt. In such case
the legacy is revoked.

4. When the testator transforms the thing

bequeathed in such a manner that it
does not retain either the form or
denomination it had, or when he
alienates by any title or for any cause
the thing bequeathed, or when the
thing bequeathed is totally lost during
the testator's life or after his death
without the heir's fault. In such cases,
the legacy is revoked.

5. When the heir, devisee or legate

commits any of the acts of
unworthiness, which by express
provision of law will incapacitate a
person to succeed. In such case, any
testamentary disposition in favor of
the devisee or legatee is revoked.

6. Article 44 of the Family Code. It both

spouses of the subsequent marriage
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 If there is a legal separation, suppose
the wife was instituted not as an heir,
but as legatee, will the effect of
revocation be the same?
Yes. In case of legal separations, provisions in
favor of the offending spouse shall be
revoked by operation of law.
Hence, it is not material in what concept the
provision was made.
Suppose that in a 198S will, X stated
that he is bequeathing the entire free
portion of his estate to his wife. In
1990, X and his wife were granted a
legal separation on the ground of X's
adultery. Thereafter, X died. May X's
wife still inherit based on the 198S
will?
Yes. It is the provision in favor of the
offending spouse and not of the innocent,
which shall be revoked.
Suppose Mr X made a notarial will in
198S. There is only one (1) copy of the
said will. X died in 199S. The will was
stolen after X's death and was
destroyed. Would it still be possible to
admit the will to probate?
Yes. 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
presence and by his express direction
(ratification of an unauthorized
destruction is, however, permissible,
provided that, sufficient proof of this
is presented).
* The intention to revoke must concur with an
overt act, manifesting the intention. Neither
destruction without intention nor intention
without destruction would revoke the will.
Suppose X made five (S) copies of his
will and he gave four (4) of them to his
friends for safe keeping. In 198S, he
revoked his will by burning it. Is it
necessary that for the validity of the
revocation, that X retrieve all the
copies of the will?
No.
X made a will in 1998. In 2001, with an
intent to revoke the will, X threw the
due execution and the fact of its unauthorized
destruction, cancellation and obliteration are
established according to the Rules of Court.
In the preceding problem, what if it was
a holographic will?
No. Because there would be no document
which may be examined to verify the
authenticity of the testators handwriting.
Exception: existence of photocopy or mimeo
copy.
To revoke a will be an overt act, what are
the requisites? Or what are the
requisites of revocation by physical
destruction?
1. There must be an overt act
specified by law (burning, tearing,
cancelling or obliterating).
2. There must be an animus revocandi
or intent to revoke.
3. There must be a completion of
at least subjective phase of
the overt act.
4. The testator at the time of revoking
the will must have capacity to make a
will.
5. The testator must do the act of
revocation himself, or by some
other persons in his
will out of the window. Is there a valid
revocation of the will?
No. Because there was no actual and physical
destruction of the will.
X made a will in 1998. Thereafter, he
placed the will inside the drawer. In 2001,
the house of X was razed by fire. The
drawer where the will was placed was
also consumed by fire. Obviously, the will
perished with it. Is the will revoked?
No. Despite the actual and physical destruction
of the will, there was no valid revocation.
Because, there was no intent to revoke the will.
Intention and destruction must go hand in hand.
* If the will is contained in an envelope and the
latter was burned without the contents
included, the will is not revoked.
X executed a will and placed it inside an
envelope. With the will inside the
envelope, he threw the same into a fire.
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However, the only thing burned was the
envelope, while the will was kept intact.
Later, X died and the will was
discovered. Is the will revoked?
No. To constitute a revocation by burning,
there must be at least a burned part of the
paper on which the will is written, otherwise,
there is no revocation
A very slight burn on the paper on which the
will was written will suffice. In this case, since
the will was intact and was recovered, there
is no revocation.
X threw his will into the fire with intent
to revoke. The will was slightly burned
without affecting a single word. Is there
a valid revocation.
(3) times with intent to revoke the will. He
Yes. There was a valid revocation. A very slight
burn on the paper on which the will was
written will suffice.
X wanted to revoke his will so he threw
the same into the stove, where it would
be burned later, if a fire would be lighted
on the stove. However, A the son of X,
removed the will from the stove before
the stove was lighted. Is there a
revocation?
No. While there was an intent to revoke, there
never was an overt act of burning.
In the preceding problem, will A be able
to inherit being the son of the testator
himself, and therefore, entitled to his
legitime?
It is submitted, that by preventing the
revocation of the will, A would not be able to
inherit not because of the revocation by
means of an overt act (for there was no overt
act), but because of revocation by implication
of law. A is considered incapacitated to inherit
by reason of act of unworthiness.
How many times should a testator tear
his will in order that there may be a
valid revocation?
There is no number required by law.
Is a slight tear sufficient?
Yes. If the subject phase of the act has been
completed.
Suppose that Mr X had violent
altercation with his instituted heir. In
front of the heir, he tore the will three
was on the act of tearing the will for the
fourth time when his heir pleaded with
him not to tear the will. He stopped and
placed the pieces together. Is there a
valid revocation.
None.
In the preceding problem, suppose that
Mr X tore the will just once and threw it
in the waste basket. Is there a valid
revocation?
Yes.
What is the difference between the two
(2) immediately preceding problems?
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 In the first instance, the will is still valid
because the subjective phase of the overt
act was not yet completed. It is evident in
the first instance that the testator still has
Dean Navarro: The question must be asked
is: Was the act subjectively complete? If yes,
then even if there is a subsequent desistance,
there arises a valid revocation.
the intention to tear the will for the fourth
time so as to revoke it.
In the second instance, there was already a
completion of the subjective phase of the
overt act.
Suppose X dug a place in his yard and
buried the will there, is there a valid
revocation?

Suppose that Mr X with an intent to No. Since there was no physical

revoke the will, tore the will just once destruction.
and threw it in the waste basket.
Thereafter, he changed his mind and
pasted back the will? Is the will valid?

No. There was already a completion of the

subjective phase of the overt act. Therefore,
the will was already revoked. The subsequent
pasting it back did not restore the validity of
the will.

When is the act deemed to be still in its

subjective phase?

If the testator still intends to do a further

act.

What if instead of tearing it himself, Mr X

used shredding machine. Is there a valid
revocation?

Yes.

Notes:

1.Tearing includes cutting. A clause may be

revoked by cutting the same from the will.

2.The mere act of crumpling or the removal of

the fastener binding the pages of a will does
not constitute a revocation, even though there
be animo revocandi.

Reason: Crumpling is not one of the overt

acts provided by the law.

However, in Roxas vs Roxas, 48 OG 2177, the

court impliedly allowed crumpling as one of
the overt acts, provided, there is animo
revocandi.

3.Tearing of even the signature alone constitute

revocation, provided, the other requisites are
present. This is because the signature goes to
the very heart of the will.

4.Humpty Dumpty Rule: Once a will has been

torn and revoked, it can no longer be revived
by putting the pieces together.
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 X made a one (1) page notarial will and
took pictures of the said will.
Therefore, X had the pictures developed
and distributed copies of it to his
friends while retaining some copies to
himself. After one (1) year, X burned
one (1) of the pictures with the intent
to revoke. Is there a valid revocation?
First View: There was a valid revocation
because the testator need not burn all the
pictures of the will in order to constitute a
complete revocation.
Second View: There was no valid
revocation, since what was burned was the
mere reproduction.
According to Jurado, citing American
jurisprudence, to constitute a revocation by
burning there must be at least a burning
part of the paper on which the will was
written.
Although a slight burn will suffice. Hence, this
would imply the exclusion of mere burning of
the reproduced copy.
X executed his last will and testament.
He made five (S) copies of his notarial
will, one original, and the other four
(4) as duplicate copies. The original plus
the three (3) duplicate copies were
given by X to his friend, F. X retained
one (1) duplicate copy. Thereafter, X
revoked his will by tearing the said
duplicate copy. Is there a valid
revocation?
X had four (4) copies of his will. He
burned the first copy with an intent to
revoke. Can the heirs have the
remaining three (3) copies probated?
No. It is evident that X has decided to revoke
the will. There was a complete act of actual
and physical destruction of the will,
notwithstanding that there were other three
(3) copies. Further, there is an intention on the
part of the testator to revoke the will. What is
controlling here, is the intent of revocation. In
the main, destruction of a copy of the will is a
sufficient revocation, despite the presence of
other copies, if there is an intention on the
part of the testator to revoke the will.
Suppose that the testator simply
crumpled his will and in the presence of
his beneficiary, orally declared his
intentions to revoke the will. Is it a valid
revocation?
Yes. Since all the requisites for a valid
revocation by an overt act were present.
There is a valid revocation of the will, even if
other copies of the said will are still existing.
Furthermore, a duplicate original, a carbon
copy or a duplicate executed at the same time
as the original is a as good as the original and
produces the same effect, as though the
original has been revoked.
*A duplicate original is a reproduction, but it is
considered as the same as the original itself.
That is why, its destruction, cancellation of
obliteration will suffice as a revocation of the
will itself.
With respect to the pictures, although it is
also a reproduction of the will, it cannot be
considered the same as the original itself,
that is why its destruction may not be
considered as sufficient revocation of the will.
Transcriber's Warning: The
aforementioned comparison refers to the
two (2) immediately preceding problems is
the transcriber's opinion. Dean Navarro did
not say anything on the matter.
Is it sufficient under Article 830 to
destroy a reproduction (reproduced
copy) of a will for its valid revocation?
A symbolic destruction, cancellation,
obliteration will not suffice. However, since a
duplicate original has a genuine signature, it
is deemed that its destruction is a sufficient
revocation.
No. It is not a valid revocation. The mere act of
crumpling or the removal of the ring or fastener,
binding the pages of a will does not constitute a
revocation, even though there be animo
revocandi. Crumpling is not one of the overt acts
provided for by the law. Inclusio Unius et Exlusio
Alrerisus. The overt acts specified are exclusive,
notwithstanding the ruling in the case of Rosa
vs Rosa, where the court impliedly allowed
crumpling as one of the overt acts. The
intention to revoke must concur with the overt
acts expressly specified.
Suppose that the testator merely spat on
the will. Is there a valid revocation?
No. The revocation of the will is a matter of
mental
process demonstrated by some outward and
visible sign. A mere symbolic destruction will
neither suffice. There must be a physical act
(neither symbolic, nor verbal), as well as an
intention.
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Suppose the testator buried the will?
Mere burying is construed as a mere symbolic
act of destruction, hence, there is no valid
revocation. Take note, in burning, even a slight
burn is deemed sufficient.
Suppose X threw his will from the
window of his office building with intent
to revoke it. It was picked up by a Metro
Aide who threw it in a fire. Is there a
valid revocation?
None. Since in cases where the physical
destruction is made by a third person, it must
be performed in the presence of the testator
and under his express direction.
1.Either of the two (2) (obliteration or
2.If all parts are cancelled or obliterated, or if the
3.Cancellation or obliteration of non-vital parts
4.If a will is mutilated by error, there being
Suppose that the testator could no longer
stand and so he asked his housemaid to
get his will and burn it for him.
The housemaid burned the will in the
kitchen and returned with the ashes.
Is there a valid revocation?
None. Since it was not done in the presence
of the testator.
What about the fact that he saw the
ashes?
It is immaterial since, there is no guarantee
that the said ashes are those of the will.
Define Revocation by Obliteration?
It is one effected by erasing or scrapping off
any record or disposition which the testator
intends to revoke. In this case, the words are
rendered ineligible.
Define Revocation by Cancellation?
It is one effected by diagonal or horizontal
lines, or criss- crosses written upon the face
of the will or upon any part thereof. In this
case, the words are still legible.
Notes:
cancellation) revokes a will, totally or
partially.
signature is cancelled or obliterated, the whole
will is revoked, the reason in the case of the
signature being that the act strikes at the
existence of the whole instrument.
leaves the other parts in force.
no animo revocandi, there is no
revocation.
X executed a holographic will with A,B
and C as witnesses. Thereafter, X
cancelled the signature of the three (3)
witnesses. Is the will revoked?
No. Because cancellation of the signature of
witnesses to a holographic will leaves the will
valid, since no witnesses are after all required.
Suppose that the testator wrote
cancelled on the left margin of the
will. Is there a valid revocation?
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No. Even if there is an intent to revoke since
the testator must have caused some
In the preceding problem, suppose that
the testator wrote the word cancelled,
signed and dated it. Is there a valid
revocation?
physical defacement of the will to give
expression to that purpose.
subsequent will, codicil, or other writing.
The intention of the testator to revoke the
previous will must be clearly and unmistakably
manifested.

Yes. Since having been executed in accordance As regards revocation by a non-testamentary

with all the formalities prescribed by law for
the execution of wills, there would be a
revocation, not by cancellation but by a non-
testamentary writing executed as provided in
case of wills.
writing executed, as provided in the case of
wills, it is not essential that the writing should
contain any affirmative disposition of property.
Neither is it essential that a writing which is

*Revocation by will or by codicil or other non-

testamentary writing:

1. It is express when in a subsequent will

or codicil or other non-testamentary
writing executed as provided in the
case of wills, there is a revocatory
clause expressly revoking the will or a
part thereof.

2. It is implied when the provisions of

the subsequent will or codicil are
partially or absolutely inconsistent
with those of the previous will.

Can there be a revocation which is done

impliedly?

Yes. Implied revocation consists in complete

inconsistency between two (2) wills.

But, as long as a possibility for a

reconciliation between the two (2) conflicting
dispositions can be made, then, there is no
implied revocation.

How is an implied revocation effected?

It is effected only by a subsequent will or a

codicil. It is evident that it cannot be effected
by a non-testamentary writing executed as
provided in the case of wills, since such non-
testamentary writing does not contain any
affirmative disposition of property which can
be said to be inconsistent with the disposition
contained in the previous will.

How is an express revocation effected?

It is effected through a subsequent will, a

codicil or a non- testamentary writing
executed as provided in the case of wills.

*In order to be an express revocation, there

must be a revocatory clause in a

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not in fact a will, be erroneously
characterized a will, in order to be effective
as a revoking instrument. Thus, a will may
be revoked by express words of revocation
contained in a deed of trust or in a letter,
signed by the testator and executed in
accordance with the formalities prescribed
by law for the making of the wills. The exact
wording of a revocatory writing is not so
important, if the intent to revoke the will is
clear from the language used, and the
formalities of execution are observed.
Only a valid will can revoke a valid will.
What is the doctrine of independent
revocation?
Under this doctrine, the established rule is
that, if the testator revokes a will with a
present intention of making a new one
immediately and as a substitute, and the new
will is not made or if made, fails of effect for
any reason, it will be presumed that the
testator preferred the old will instead of
intestacy, and the old one will be admitted for
probate in the absence of evidence
overcoming the presumption, provided its
contents can be ascertained.
Vda de Molo vs Molo, 90 Phil 37
FACTS: After the death of Mariano Molo, his
widow filed a second petition for the probate
of a copy of another will executed by the
deceased on June 20, 1939. This will was
denied probate on the ground that it was not
executed in accordance with the formalities
prescribed by law.
In view of the disallowance, the widow filed a
second petition for the probate of another will
executed by the deceased on August 17,
1918. This will was admitted to probate in
spite of the opposition of the oppositors-
appellants. The widow is the instituted heiress
in both wills.
The oppositprs contend among others, that the
will of 1918 cannot be given effect because
there is a presumption that the testator, after
executing the will in 1939, and with full
knowledge of the revocatory clause contained
in the said will, deliberately destroyed and
revoked the original will of 1918.
HELD: Granting for the sake of argument that
the earlier will was voluntarily destroyed by
the testator after the execution of the will,
which revoked the first, could there be any
doubt that said earlier will was destroyed by
the testator, in the honest belief, that is was
no longer necessary because he had
expressly revoked said will in 1939? In other
words, can we not say that the destruction of
the earlier will was but the necessary
consequence of the testator's belief, that the
revocatory clause contained in the
subsequent will was valid and the latter would
be given effect?
If such is the case, then it is our opinion that
the earlier will can still be admitted to
probate, under the doctrine.
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*False cause or illegal cause must be stated in
the subsequent will that the revocation was In this case, X did not state in the later will that
due to such cause. The purpose is for the revocation was due to his false belief that A
contesting the will. was already dead.

X instituted F as heir for half of the free

portion of her estate. X subsequently
revoked the will:

a. "I revoke the will for F."

b. "I revoke the will for F, because he
is dead."
c. "I revoke the will for F, because I
have a crush on him, but he
wouldn't court me."
d. "I revoke the will for Martin
because he is a Bicolano and I
hate Bicolanos."

Can F contest the revocation?

Except for revocation under (B), F cannot

contest the revocation because the will is
essentially revocable, regardless, whether the
revocation is whimsical or not. Under (B) it
may turn out that F is alive and the cause of
revocation is untrue. In this case the
revocation is null and void, and will not take
effect.

*The rule under Article 833 is also known as a

revocation by mistake. Thus, where a
testator, by codicil or a latter will, revokes a
devise or legacy in his will, expressly
grounding such revocation on the assumption
of a fact, which turn out to be false, as where
it is stated that the legatees or devisees
named in the will are dead, when in fact, they
are living, the revocation does not take effect.

The revocation which is based on a false cause

or an illegal cause, must be stated in the
codicil or a later will, so that it may be
contested. If the same is not stated, it cannot
be assailed.

Suppose that X in his 198S will,

instituted A as his heir. In 199S,
believing that A was already dead, X
revoked A's institution. But A did not
state in the will/revocation that the
reason was due to his belief that A was
already dead. After X's death, A
discovered that the revocation was due
to X's false belief that he was already
dead. Can the revocation be questioned?

No. The revocation of a will based on a false

cause or an illegal cause shall be rendered null
and void only when the said cause is expressly
stated in the codicil or a later will.
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In the preceding problem, what if X
stated in the later will, that "I am
revoking the institution of A as heir
because he is already dead". Can A
contest the revocation?
Yes.
*Under Article 834, the revocation of the will
where an illegitimate child is acknowledge
by the testator as his natural child, will not
affect the validity of the recognition or
acknowledgment. This rule is logical,
considering the fact, that even if the will is
revoked, the instrument still constitutes an
authentic instrument within the meaning of
Article 278 of the Civil Code, which states
that recognition of natural children shall be
made in the record of birth or in a will or in a
statement before a court of record or in
authentic writing.
X executed a will in 198S. In the said
will, he also acknowledged A as his
illegitimate child. In 199S, X revoked
his 198S will. What is the effect on
the recognition of A as an
illegitimate child in 198S will,
considering that the same was
revoked?
The recognition of an illegitimate child does
not lose its legal effect even though the will
where it was made should be revoked.
Article 837
If after making a will, the testator
makes a second will expressly 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.
What is republication as applied to wills?
It is an act of the testator whereby he
reproduces in a subsequent will the
dispositions contained in a previous will,
which is void as to its form or executed a
codicil to his will.
Notes: With respect to republication:
1.It is express republication, if the testator
reproduces in a subsequent will, the
dispositions contained in a previous will,
which is void as to its form. (Article 835)
Reason: Because the recognition is not a
testamentary disposition. It takes effect upon
the execution of the will and not upon the
death of the testator. Hence, the child's right
is already vested upon the execution of the
will.
Furthermore, even if the will has been revoked,
the instrument still constitute an authentic
instrument within the meaning of Article 278
of the Civil Code, which states that
"recognition of natural child shall be made in a
record of birth, or in a will, or in a statement
before a court of record, or in an authentic
writing.
Article 835 to Article 837
Republication and
Revival of Wills
Article 83S
The testator cannot republish, without
reproducing in a subsequent will, the
dispositions contained in a previous one
which is void as to its form.
Article 836
The execution of a codicil referring to a
previous will has the effect of
republishing the will as modified by the
codicil.
2.It is a constructive republication if the
testator for some reason or another executes a
codicil to his will. (Article 836)
3.Revival is the restoration to validity of a
previously revoked will by operation of law.
Republication Revival
Takes place by an act Takes place by
of the testator. operation of law.
Corrects extrinsic Restores a revoked will.
and intrinsic
defects.
Suppose that X had made a notarial will
in 198S. He made it when he was sixteen
(16) years old. X executed a codicil in
199S modifying the will of 198S. Would
the codicil act as a republication of the
198S will?
Yes. Because a referral was made modifying the
1995 will. Hence, the intrinsic defect has been
cured. Article 836 applies.
If he dies, should the will be allowed?
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Yes. Because there was proof that the codicil No. There is no proof that the whole will was
intends to cure the intrinsic defect, for he reproduced correcting the void provisions.
referred to the 1985 will using the codicil. The latter was merely as codicils.

*Under Article 836, intrinsic defects of the will
are cured by mere referral to the codicil.
Suppose that X made a notarial will in
198S, but only two
(3) witnesses were present. In 199S, he
modified by will by codicil. If he dies,
should the will be allowed?
The 1985 will as void as to its form because it
has only two
(2) witnesses and therefore Article 235
should apply. The testator must reproduce in
a subsequent will the dispositions contained
in the 1985 will. He cannot merely use a
codicil.
Suppose that when X made his will in
198S he was twenty
(20) years old. The will did not contain
an attestation clause. In 199S, he
makes a codicil. Is there a valid
republication?

No. Because the first will was not valid to its

form. X must copy the contents of the 1985
will as provided for under Article 835.
Notes:

1.If the defect of the will is as to its form,

apply Article 835.

2.If the defect is not with respect to its form,

a codicil may be made with effect of
republishing the will. This is under
Article 836.

3.A will which is republished in a codicil speaks

as it were from the new and later date, i.e.,
the date of the codicil.

X made a notarial will in 1999, with only

two (2) attesting witnesses. It is clear
that the will is void as to its form, and is
therefore, useless. If he so desires to
give life to the will, say, in 2000, (a)
What should he do? (b) How? (c) What is
the effect?

(a) He must republish the 1999 will.

(b) By executing a new will in 2000,

copying all the provisions in the 1999 will,
but this time, he must use three (3)
attesting witnesses.

(c) The effect is as if, he made the will not in

1999 but in 2000.

In other words, the will becomes a re-

established act, and therefore, the will
governs property he had acquired up to 2000.

Example: If in 1999, X gave "all of her cars" to

F, and at the time (1999), X had two (2) cars,

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 but in 2000 he had republished the will, and
by that time (2000), X had
already five (5) cars. How many cars will F
get? F will get all the cars.
five {5) cars, unless, there was an express
contrary provision in the will.
When X made a notarial will in 1999,
there were only two
(2) witnesses (it is clear that the will is
valid or invalid). In 2001, she modified
the 1999 will by a codicil. She died in
2002. Can the will be allowed?
No. Because there was no proof that the whole
will was reproduced, correcting the void
provision of the 1999 will. The latter
instrument was merely a codicil. Article 835
applies, not Article 836. Republication
(implied) by mere reference to a previous will,
as contemplated by Article 836, is not
sufficient because the will was void as to its
form. Therefore, republication by reproduction
or re- execution (Article 835) of the
dispositions contained in the previous will
must be made.
*Observe that under Article 793, had the
original will been valid, and no republication
was made, F could get two {2) cars, even if
by the time of X's death, the latter already
had
therefore Article 83S applies); or the will
is void as to its form (and therefore Article
836 applies)?
Paras: Article 835 refers to such things or
defects covered by Article 805 like defects in
the number of witnesses, lack of or fatal
defects in the attestation, lack of
acknowledgement, etc. Therefore, if these
defects are present, Article 835 applies.
On the other hand, it is submitted that Article
836 will apply if the will was invalid due to:
a. fraud or force

X made a notarial will in 199S. He made

it when he was sixteen (16) (it is clear
that the will is invalid). In 2001, he
executed a codicil modifying his will,
which he made in 199S. She died in
2002. May the will be allowed?

Yes. Because there was proof, that the codicil

intends to cure the intrinsic defect. The reason
is that, the codicil was used to refer to the
1995 will. The intrinsic defect in the 1995 will
was the fact that X was only sixteen (16) when
he made the will. Article 836 applies.

*Do not confuse the two {2) immediately

preceding problems with each other. The
former problem contemplates a situation
where the will is void as to its form because
there were only two {2) attesting witnesses
and therefore, Article 835 applies.

The latter problem contemplates a situation

where the will is invalid because the testator
{only 16) lacks testamentary capacity, thus,
Article 836 applies. It is void because the
defect {lack of testamentary capacity) is not a
defect in form. Take note that a will not void
as to its form can be cured by executing a
codicil referring to a previous will.
Article 836 applies.

The query therefore is, "how will we know if

the will is void as to its form (and
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 b. undue influence
c. the testator was under eighteen {18)
d. the testator was insane
In this case, the will may be republished by
mere reference in a codicil.
X revoked his will by cutting out his
signature in the will, with animo
revocandi. Later, he changed his mind
and pasted back his signature in its
previous position. Does the revocation
remain or has there been a
republication?
The will remains revoked. The attempted
republication has not complied with the legal
requirements for
republication.
What are the effects of republication
by virtue of a codicil?
a. The will revives the previous will.
b. The old will is republished as of the
date of the codicil, and makes it
speak, as it were, from the new and
later date.
c. A will republished by a codicil is
governed by a statute enacted
subsequent to the execution of the
will, but which was operative when
the codicil was executed.
Hence, the revocation of the second will does
not revive the first will, which has already
become a nullity.
2.Implied Revocation
Where there is merely an inconsistency
between the two
(2) wills, but there is no revoking clause; it has
been held in common law, that upon the
destruction of the second will, the first was
automatically revived, regardless of the
intention of the testator, provided, the first will
has been preserved undestroyed and
uncancelled.
Basis: It is based on the ground that while the
inconsistent provisions of the second will,
clearly manifest an intention on the part of
the testator to revoke the prior will, yet this
intent, purely testamentary in character, can
have no effect until the death of the testator,
and, if the instrument containing it is
destroyed before the testator's
*A duly executed codicil operates as an
republication of the original and makes it
speak from the new date, in so far as, it is not
altered or revoked by the codicil, although,
such codicil is not physically annexed to the
will, and although the will is not in the
presence of the testator at the time executing
the codicil to which such codicil refers. If a
codicil revokes some portions of the will, it
republishes the will as of the date of the
codicil, with respect to all the parts not
revoked.
What do you understand by the principle
of instanter?
It is based on the principle that the revocatory
clause of the second will takes effect
immediately.
Notes:
1.Express Revocation
Where the second will expressly revokes the
first will; the first will is not revived by the
revocation of the second will, unless, such
revival is provided in another will or codicil.
Basis: This is based on the theory that the
revoking clause in the second will is not
testamentary in character, but operates to
revoke the first will instant upon the execution
of the second will containing the revocatory
clause.
death, this recovery intent is, for legal purposes,
as though it had never been and the first will,
being cancelled, takes effect.
Give examples of revival?
1. While omission of a compulsory heir in
the institution of heirs annuls the
institution, still if he omitted heir dies
ahead of the testator, the institution is
revived, without prejudiced to the right
of representation.
2. If after the making of the will, the
testator makes a will impliedly revoking
the first, the revocation of the second
will revives the first will
{Implication from Article 837).
X made three (3) wills. Will No 2 expressly
revoked Will No 1. Will No 3 revoked Will
No 2. Is will No 1 revived?
No. By express provision of Article 837. The rule
is based on the principle that the revocatory
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clause of the second will takes effect
immediately or at the instant the revoking will
is made.
This is the principle of instanter. Thus, we say,
the clause revoked the first will that contains
said clause, In other words, the theory is that
death does not have to come before giving
effect to a revocatory clause. Stated
otherwise, while a will is a disposition mortis
causa, an express revocation takes effect
inter vivos.
X made a will in 1990 and in 199S with
inconsistent provisions, and therefore,
the 199S will impliedly revoked the 1990
will. In 2000, X made a will revoking the
199S will. Is the 1990 will revived?
Yes. The 1990 will is revived. This is clear from
Article 837. Since the Article uses the word
"expressly", it follows, that in case of an
implied revocation by the second will, an
automatic revival of the first occurs.
*Apparently, the reason is the fact that an
implied revocation is ambulatory {these
provisions do not revoke the other provisions
instantly. They take effect only after death),
the inconsistency being truly and actually
apparent only mortis causa, when the
properties are distributed.
Does implied revocation take effect
during the lifetime of the testator?
No. Because the revoking clause are
testamentary in character. They merely
provide inconsistency between the two wills,
but they do not expressly revoke the prior will.
Suppose that X made a will in 198S and
in 1990, with inconsistent provisions. In
199S, X made a will revoking the 1990
will. What is the effect of the revocation?
The 1985 will is revived. The principle of
instanter does not apply because the 1990 will
only impliedly revoked the 1985 will.
*In an implied revocations, the first will is not
revoked by the second will because the
testamentary dispositions of the latter do not
take effect immediately. They only take effect
after the death of the testator. So, if the
second will was expressly revoked by the
third will, the first will governs, for there is no
more inconsistency.
X made Will No 1, then he executed Will
No 2 expressly revoking Will No 1.
Thereafter, Martin destroyed Will No 2
and orally expressed his desire that the
first Will be followed. Should this be
allowed?
No. The oral expression of the desire to revive
cannot be given effect. He should have made
a new will or codicil (Article 837).
Article 838 to Article
839 Allowance and
Disallowance of Wills
Article 838
No will shall pass either real or personal
property unless it is proved and allowed
in accordance with the Rules of Court.
The testator himself may, during his
lifetime, petition the court having
jurisdiction for the allowance of his will.
In such case, the pertinent provisions of
the Rules of Court for the allowance of
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 wills after the testator's a death shall
govern.
Subject to the right of appeal, the
allowance of the will, either during the
lifetime of the testator or after his
death, shall be conclusive as to its due
execution.
What is the concept of probate of wills?
It is a special proceeding for establishing the
validity of a will.
*Probate may also be identifies as a special
proceeding for the purpose of proving that the
instrument offered to probate is:
The Supreme Court shall formulate such
additional Rules of Court as may be
necessary for the allowance of wills on
petition of the testator.
to follow his will to the letter. Should the
will still be probated?
Yes. No judicial approval can be given to an
extrajudicial partition based on a will, unless,
the will is first probated,
*Under our legal system, the probate of a will is
mandatory.
Is probate proceedings mandatory?
Yes.

1. the last will and testament of the

testator

2. that it has been executed in

accordance with the formalities
prescribed by law

3. that the testator had the necessary

capacity at the time of the execution
of the will

When may the probate of the will be

commenced?

The probate of a will may be commenced

either during the lifetime of the testator or
after his death. In the first, it is the testator
himself who files the petition for the probate
of the will. In the second, it is any person
interested in the estate. Thus, they may be
classified as, probate ante mortem and
probate post mortem.

What is the nature of a probate

proceeding?

It is an action in rem. Thus, the decree of

probate is held binding on all persons in
interest, whether they appear to consent the
probate or not.

Suppose the testator instituted only heir

for his whole estate. Should the will still
be probated?

Yes. There must still be a judicial order of

adjudication.

Suppose that in his will, X declared: "I

will give my house and lot in Makati to
A, and my house and lot in Quezon City
to B" and after X's death, A and B agreed
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 Why?
1. The law expressly requires it (Article
838).
2. Probate is a proceeding in rem and
therefore, it cannot be dispensed
with or substituted by any other
proceeding, judicial or extra-judicial
without offending public policy.
3. The right of a person to dispose of
his property by virtue of a will may
be rendered nugatory.
4. The absent legatees and devisees
or such of them, as may have no
knowledge of the will could be
cheated of their inheritance,
through the collusion of some of
the heirs, who might agree to the
partition of the estate among
themselves to the exclusion of
others.
Is there a period to file a petition for
probate?
Twenty (20) days under the Rules of Court.
Notes:
1.Rule 75 Section 02. If the will has been
placed in custody of another person, the
latter must, within twenty
What is the effect of allowance of the
will?
A judgment or decree, which admits the will to
probate, is conclusive upon the validity of the
will. It is not subject to collateral attack, but
stands as final, it is not modified, set aside, or
revoked by a direct proceedings or reversed
on appeal to a higher court.
Mercado vs Santos, 66 Phil 21S
FACTS: The petitioner filed a petition for the
probate of the will of his deceased wife. The
will was duly probated.
Sixteen {16) months after the probate of the
will, the petitioner was prosecuted for
falsification or forgery of the will, which was
probated.
ISSUE: May a crime of forgery lie against a
person based on will which has been duly
probated?
HELD: No. the probate of the will is
considered as conclusive as to its due
(20) days, after he knows of the death of the
testator, deliver the will to the court having
jurisdiction, or to the executor named in the
will.
2.Rule 75 Section 03. A person named as
executor in a will shall, within twenty (20) days
after he knows of the death of the testator, or
within twenty (20) days after knows that he is
named executor if he obtained such knowledge
after the death of the testator, present such
will to the court having jurisdiction, unless the
will has reached the court in any other
manner, and shall, within such period, signify
to the court in writing his acceptance of the
trust or his refusal to accept it.
After the aforementioned period, can the
will no longer be probated?
The will may still be probated, as probate
proceedings are imprescriptible.
Guevarra vs Guevarra, 98 Phil 2S9
The applicability of the statute of limitations
to probate proceedings must be rejected on
the ground, that such proceedings are not
established in the interest of the surviving
heirs, but, primarily for the protection of the
testator's expressed wished. That is, it seeks
to uphold the intent of the testator and his
right of ownership.
execution and validity, and is also conclusive
that the testator was of sound mind and
disposing mind at the time when he executed
the will and was not acting under duress,
menance, fraud or undue influence, and that
the will is genuine and not a forgery.
The will in question having been probated by a
competent court, the law will not admit any
proof to overthrow the legal presumption, that
it is genuine and not a forgery.
Criminal action will not lie against a forger of a
will, which has been duly authorized to
probate.
When may the allowance of a will be set
aside?
Since a proceeding for the probate of a will is
essentially one in rem, a judgment allowing a
will shall be conclusive as to its due execution.
Consequently, no question as to the validity of
the will could thereafter be raised, except:
1. By means of an appeal.
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2. By means of a petition for relief from
the judgment by reason of fraud,
accident, mistake or excusable
negligence.
3. By means of a petition to set aside the
judgment by reason of lack of
jurisdiction or lack or procedural
process.
4. By means of an action to annul
judgment by reason of extrinsic or
collateral fraud.
*Any petition must be done in the
reglementary period:
1. within sixty {60) days after the
petitioner learns the judgment or
order to be set aside
2. within six {6) months after
such order or judgment was
entered
Is the probate of the will by final
judgment prior to that of the codicil
thereof, a bar to the probate of the
codicil?
This question was resolved in the negative by
the Supreme Court in the case of Macam vs
Gatmaitan.
Is it necessary that the will and the
codicil be probated simultaneously?
No. The codicil may be concealed by an
interested party and it may not be
discovered until after the will has already
been allowed.
They may be presented and probated one
after the other, since the purpose of the
probate proceedings is merely to determine
whether or not the will and the codicil meet all
the statutory requirements for their validity,
leaving the validity of their provisions for
further consideration.
Failure to oppose the will does not prevent
one from opposing the codicil.
What are the questions determinable by
the probate court during the probate
proper?
1. Identity - whether or not the
instrument, which is offered for
probate, is the last will and
testament of the decedent.
2. Due Execution - whether or not
the will has been executed in
accordance with the formalities
prescribed by law.
3. Capacity - whether the
testator had testamentary
capacity at the time of the
execution of the will.
*The aforementioned refer to the intrinsic
validity of the will. Consequently, the
probate court cannot inquire into the
intrinsic validity of the testamentary
dispositions.
Can the probate court, during the
probate properly inquire into the
intrinsic validity of the will.
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As a general rule, the probate court cannot
inquire into the intrinsic validity of the will.
Exception: if it is to prevent multiplicity of
suits.
In the case at bar, if the case were to be
remanded for probate of the will, nothing will
be gained. On the contrary, this litigation
would be protracted. And for aught that
appears in the record, in the event of probate
or if the
court rejects the will, probability exists that
the case will come up once before us on the
same issue of the intrinsic validity or nullity
of the will. Result: waste of time, effort,
expense, plus added anxiety.
Nugid vs Nugid, 17 SCRA 449
When practical considerations demand that
the intrinsic validity of the will be passed
upon, before it is probate, the Court should
meet that issue.
1. It is easier for the courts to determine
the
mental condition of a testator during his
lifetime, than after his death.
2. Fraud, intimidation and undue
influence are minimized.
3. If a will does not comply with the
requirements provided by law, it may
be corrected at once.

Do you think the Court would have ruled In a will, a husband appointed his wife as
otherwise, if besides the institution of guardian of his children's properties. In
an heir, there were also legatees and the probate order, may the court pass
devisees? upon the validity of the appointment?

Yes. If such is the case, then it will not be a

futile exercise to remand the case for probate
of the will, since, there would be more than
one provision, which shall be decided upon by
the court.

Nepomuceno vs CA, 139 SCRA 207

The court ruled that, "the court can inquire as

to the intrinsic validity of the will" because
there was an express statement that the
beneficiary was a mistress.

Under the law it is illegal to give anything to a

mistress, for that is a cause for
disqualification in donations.

The court held that the institution of the

mistress is void. However, the will remains
valid.

What are the two (2) kinds of probate

proceedings?

1. Ante Mortem - that which is

had during the lifetime of the
testator.

2. Post Mortem - that which is had

after the death of the testator.

If you are the testator, which would you

prefer? Ante Mortem or Post Mortem?

Ante Mortem.

Why?

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No. For this does not concern the extrinsic
validity of the will.
X made a will instituting A as a
universal heir. But he a B, one
thousand (1,000). He gave one (1)
hectare lot to C. But, he did not give
anything to his son S. Can the court
inquire into the intrinsic validity of
testamentary provisions of X's will?
No. The court cannot inquire into the
intrinsic validity of the testamentary
provisions. Mere moderate entreaties on
the part of the testator, or the fact that the
heirs are omitted does not result into an
undue influence that the will justify an
inquiry into the intrinsic validity of the will.
Revocation Disallowance
Voluntary act of Given by judicial order.
the testator.
With or without cause Must always be for a
legal cause.
Maybe partial or total. As a rule: always total
(except, when the
ground of fraud or
undue influence for
example, affects only
certain portions of the
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;
(S) If the signature of the testator
was procured by
fraud;
A holographic will was destroyed without
authority. Can these be probated under
Article 839?
General rule: No.
Exceptions:
1. If there is a photocopy/Xerox of the will.
2. Testimony of the testator.
What if the will is notarial will? Can it be
probated under Article 839, if it was
destroyed or lost?
Yes. Because there are solemnities designed
to prove the will, whenever it is lost or
destroyed, such as, witnesses, notary public
and parole evidence.
What are the requisites before a will can
be allowed if it was destroyed or lost?
1. contents must be proven
2. due execution must be proven
3. unauthorized destruction must be proven
(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.
What are the grounds for disallowance of a
will?
Article 839.
*The grounds given in Article 839 are exclusive.
Thus, no other grounds can serve as to disallow
a will.
If at the time of the execution of the will,
the signature was procured by fraud and
such fraud came not from the heir, but
from a third person, should the will be
allowed?
No. The law does not make a distinction as to
the who the author of the fraud is.
Undue Influence?
There is undue influence when a person takes
advantage of his power over the will of
another, depriving the latter of a reasonable
freedom of choice.
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*In Pascual vs CA, the court held that undue 4. the burden is on the person
influence must: asserting the existence of
undue influence
1. destroy the free agency of the testator
5. not merely a moderate
2. it must be substantial based on solicitations to the testator
evidence
Intimidation?
3. it must not be a mere conjecture
There is intimidation when the testator is
compelled by a reasonable and well-grounded
fear of an imminent and grave evil upon his
person or property, upon the person or
property of his spouse, descendants or
ascendants to execute the will.

Fraud?

Fraud is present to invalidate a will, if by

misrepresentation and deception, the testator
is lead into making a will, different from what
he would have made, but for
misrepresentation and deception.

Violence?

Violence is present, when, in order to compel

the testator to make a will, serious and
irresistible force is employed.

*There is no undue influence just because a

testator made his mistress, or his illegitimate
child by her, the heir to the entire free
portion. Mere affection, even if illegitimate, is
not undue influence, as long as the giving was
voluntary.
{Coso vs Fernandez Deza, 42 Phil 596).

Remember however, that although such will

may be admitted to probate because of the
absence of undue influence, still under our
law, a mistress is incapacitated to inherit.
{See Article 1029 in relation to Article 739)

Bugnao vs Ubag, 14 Phil 163

FACTS: X made a will giving all his property to

his widow and leaving nothing to his brothers
and sisters. X had no parents or children. The
brothers and sisters opposed the will on the
ground of lack of testamentary intent as well
as undue influence, for it was inherently
improbable that a man would make so
unnatural and unreasonable will. It was
proved however, that they had a bitter
religious quarrel with the testator, so bitter
that they did not even attend the funeral of
the deceased, despite the fact they were full
grown men and women.

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 ISSUE: Is there an undue influence?
Can a fraud and undue influence co-
exist?
As a general rule, they cannot co-exist
because they are repugnant to each other.
Fraud in the sense of deceit is a ground of
contest separate and distinct from undue
influence.
HELD: No. As a matter of fact, the quarrel
gives the reason for their being excluded from
the inheritance.
the absence of any element of undue influence.
Moreover, to invalidate a will, it must have
affected the testator in the very act of making
his will and at the time the will was executed.

Exception: In the case of Revilla vs CA, 217

SCRA 583), undue influence and fraud were
found to have existed together because they
are used on different parties concurrently.

Revilla vs CA, 217 SCRA S83

The employment of undue influence by

Heracio was not mutually repugnant to fraud
as the petitioner insists, for it was the means
employed by Heracio to defraud his brothers
and sisters of their rightful shares.

There was fraud because Don Cayetano was

not appraised that the document he was
signing was a second will, revoking the
disposition of property that he made in the
first will.

Notes:

1.To make a case of undue influence, the free

agency of the testator must be shown to
have been destroyed; but to establish a
ground of contest based on fraud, the free
agency of the testator need not be shown to
have been destroyed.

2.It has been observed that fraud and undue

influence are usually the very opposites of
each other.

Undue influence compels the testator to

yield through fear and make a will, which he
would instantly repudiate if free and
unconstrained, while fraud, although it may
poison the mind of the testator, leads him to
use his testamentary power not only willingly,
but often with pleasure and satisfaction, to
disinherit persons who have the strongest
natural claims upon his affections.

3.Concisely stated, fraud willfully deceived

free agency, while undue influence
overmasters it.

4.The intent to deceive the decedent is an

essential element of fraud, avoiding a will, in
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Suppose that Mr X had four (4)
legitimate children. In his will, he
stated that A, B and C shall be entitled
to their legitime and D, his youngest
son, will get the rest of his estate. It
was later on proved that D, with whom
Mr X had been living had often pleaded
with Mr X that he should be given
more than his siblings. Can the will be
disallowed on the ground of undue
influence?
No. There was only moderate solicitation or
persuasion, which the testator could have
simply refused.
In the preceding problem, what
about the fact that D would always
plead to be given more?
It is immaterial, for mere inequality in the
distribution of the estate does not by itself
prove that there is undue influence.
*In fact, diversity of apportionment is the
very reason for making a testament,
otherwise, the decedent might as well die
intestate.
Article 840 to
Article 856
Institution of
Heirs
Article 840
Institution of heir is an act by virtue of
which a testator designates in his will
the person or persons who are to
succeed him in his property and
transmissible rights and obligations.
What is institution of heirs?
It is an act by virtue of which, a testator
designates in his will the person or persons
who are to succeed him in his property and
transmissible rights and obligations.
What is the fundamental basis of the
law on testamentary succession?
The fundamental basis is the doctrine, that
the will of the testator, freely expresses in his
last will and testament, is as a general rule,
the supreme law which governs the
succession.
What are the requisites for a valid
institution?
X executed a will in favor of his friend F,
mainly because the latter asked the
former to execute the will, thru a
friendly persuasion. Later, X repented
having executed said will, but did
nothing about it. Is there an undue
influence?
No. Apparently, the will can be admitted to
probate there being no undue influence before
or after the making of the will. Subsequent
repentance is not one of the grounds given by
the law.
X made a will giving everything to his
younger brother A. Thereafter, it was
established that it was A himself, who
made the will. Is this fact, to disallow
the will for undue influence>
No. Refer to the rules.
When there is a mistake?
There is a mistake if the testator did not
intend that the instrument he signed should
be his will at the time of affixing his signature
thereto.
1. The will must be extrinsically valid.
2. The institution must be valid
intrinsically (e.g. the legitime of the
heir must not be impaired; the heir
must be certain or ascertainable; there
should be no preterition).
3. The institution must be effective
(e.g. no predecease, no
repudiation by the heir, no
incapacity of the heir).
Notes: Some principles respecting
institution of heirs:
1. Institution being a voluntary act
cannot be allowed to affect the
legitime.
2. In general, the provisions on
institution are applicable to devises
and legacies.
3. There can be an instituted heir only in
testamentary succession (for the heir in
intestate succession is called legal or
intestate heir).
4. A conceived child may be instituted,
if the conditions in Articles 40 and
41 are present (Article 1025).
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 Article 841
A will shall be valid even though it
should not contain an institution of an
heir, or such institution should not
comprise the entire estate, and even
though the person so instituted should
not accept the inheritance or should
be incapacitated to succeed.
In such cases the testamentary
dispositions made in accordance
with law shall be complied with and
the remainder of the estate shall
pass to the legal heirs.
What is the effect if the will does not
contain an institution of heir?
The rule under Article 841 is that, the will
is still valid although it may not contain
an institution of heir.
*Refer this to the immediately preceding
problem.
The same is true in case of a partial
institution or in case of a vacancy in the
inheritance due to repudiation or incapacity.
The effect in all of these cases is that the
testamentary dispositions, which are made in
accordance with the law, shall be complied,
while the remainder shall pass to the legal
heirs in accordance with the law of intestate
succession.
A will, unless otherwise defective is valid even if:
a. There is no institution of heirs.
b. The instituted heir is given only a
portion of the estate. {Reason: mixed
succession is allowed. See Escuin vs
Escuin, 11 Phil 839).
c. The heir instituted should
repudiate or be incapacited to
inherit.
Would it be advantageous if there is an
institution of an heir?
Yes. It lessens and prevents the effects of
intestacy by giving to those persons who are
close to the testator, but cannot inherit
legally.
*The concept of an heir as the continuation of
the personality of the testator has
disappeared. An heir is now in the same
position as the legatee or devisee, in the
succession. As such, the institution of heirs
should be understood as applicable to the
designation of legatees and devisees.
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 Article 842 Article 844

One who has no compulsory heirs may

dispose by will of all his estate or any Even though the testator may have
part of it in favor of any person having omitted the name of the heir, should he
capacity to succeed. designate him in such manner that there
can be no doubt as to who has been
One who has compulsory heirs may instituted, the institution shall be valid.
dispose of his estate provided he does
not contravene the provisions of this
Code with regard to the legitime of said
heirs.

Is the testator's freedom of disposition

absolute in character?

It depends upon whether or not he has

compulsory heirs.

When is the freedom of disposition

absolute and when is it not?

It is absolute when the testator has no

compulsory heirs. Thus, the whole estate is
disposable. He can therefore, dispose of his
whole estate or any part of it in favor of any
person, provided that such person has the
capacity to succeed (Pecson vs Coronoel, 45
Phil 216).

The testator's freedom of disposition is not

absolute in character, if he has compulsory
heirs. This is so, because there is always a
portion of the testator's estate known as the
legitime which is reserved by operation of law
for the benefit of certain heirs, who are
therefore called compulsory heirs and over
which the testator, as a general rule, can
have no testamentary control. Thus, the
testator's freedom of disposition extends only
to the disposable free portion of his estate.

Is there a necessity for a judicial order of

adjudication even if only one heir is
instituted?

Yes. The order of adjudication is the judicial

recognition that in instituting the heir, the
deceased did not contravene the law and that
the heir was in no way disqualified to inherit.

Article
843

The testator shall designate the heir

by his name and surname, and when
there are two persons having the
same names, he shall indicate some
circumstance by which the instituted
heir may be known.
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 An error in the name, surname, or
circumstances of the heir shall not
vitiate the institution when it is
possible, in any other manner, to know
with certainty the person instituted.
If among persons having the same
names and surnames, there is a
similarity of circumstances in such a
way that, even with the use of the
other proof, the person instituted
cannot be identified, none of them shall
be an heir.
*Article 843 is not mandatory. The
designation may be made in any form, so as
long as, there will be no doubt as to the
identity of the heir or heirs instituted.
Is the first name and the last name
needed in the institution of the heir?
Generally, yes. However, the first name or
the last name may be omitted as long as
they are determinable by other
circumstances.
Suppose X stated in his will: "I hereby
institute as heir to the free portion of
my estate the incumbent rector of SBC
at the time of my death." Is the
institution valid?
Yes. Because the heir can be determined with
certainty.
In the preceding problem, why not give
each other Yi of the inheritance?
This is not possible because only one was
intended by the testator to inherit. To divide
the inheritance would be to frustrate to the
testator's intention. Moreover, we would be
giving something to a person which the
testator intended to give nothing.
*The provisions of Article 843 and 844 should
be applied in relation to provision of Article
789. From these provisions, it is clear that
the proper test in order to determine the
validity of an institution of her is the
possibility of finally ascertaining the identity
of the instituted heir, either by extrinsic or
intrinsic evidence. This test is specially
applicable on the following cases:
1. If the name and surname of the
instituted heir has been omitted by
the testator.
Testator said, "I hereby give 3M to some
artists". Is the institution valid?
It depends.
Yes. If intrinsic and extrinsic evidence can
prove which artists the testator were referring
to.
No. If intrinsic and extrinsic evidence cannot
prove which artists the testator were
referring to. In this case, no one will inherit
and intestate succession shall apply.
What is the effect if there is doubt as to
the institution of the heir?
Nobody will inherit and intestate succession shall
apply.
X executed a will, stating: "to my friend,
Ronald, who is taking up law in SBC". It
turned out that there are two (2) Ronalds
taking up law studies in SBC and both
friends of
X. Who will inherit?
The one which the intrinsic or extrinsic evidence
will refer.
In the preceding problem, what about
if there is uncertainty as to the real
heir?
Nobody will inherit.
2. If there has been an error with
respect to the name, surname or
circumstances of the instituted heir.
3. If the name, surname and
circumstances of the instituted heir
are the same as those of other
persons.
4. If an unknown or uncertain person
has been instituted.
Article 84S
Every disposition in favor of an unknown
person shall be void, unless by some
event or circumstance his identity
becomes certain. However, a disposition in
favor of a definite class or group of
persons shall be valid.
What is a person incieria (unknown
person)?
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A person incieria (unknown person) is one who
is not determined or individualized and
therefore, cannot be identified.
*Under Article 845 a disposition in favor of
such person shall be void unless by some
event or circumstance his identity becomes
certain.
X stated in his will, "I will give P100.00 to
the person who will graduate
valedictorian of SBC Law, after my
death." Is the provision valid?
Yes. Because it refers to an unknown person
who can be determined by an event or
circumstance. In this case, the person is
already existing but not yet determined.
But three (3) months before the death of
X, SBC was totally destroyed by an
earthquake. Is the provision still valid?
No. Because the unknown person can no
longer be determined.
*It is clear that before the disposition can be
considered valid, it is indispensable that the
identity of the beneficiary can be ascertained,
either by a past, present or future event or
circumstance. It must, however, be noted that
this
requisite is predicated on the fact that the
beneficiary must be in existence at the time
of the testator's death.
Otherwise, even if it would be possible to
determine his identity by some event or
circumstance, the disposition would still be
ineffective on the ground of absolute
incapacity.
Dispositions in favor of a definite class or
group of persons are of course valid, although
the particular persons comprising the
specified class or group may be unknown.
The second sentence of Article 845, which
recognizes the validity of such dispositions, is
contemplated by provisions of Article 786
and Article 1030 of the Civil Code.
What are the cases that will
invalidate a provision in favor of an
unknown person, but determinable by
an event or circumstance?
1. designation by a third person
2. non-existing beneficiary
3. incapacity or inherit on the
part of the beneficiary
Article 846
Heirs instituted without designation of
shares shall inherit in
equal parts.
What is the effect if several heirs are
instituted as heirs without designation
of shares?
They shall inherit in equal parts.
*The rule under Article 846 should not be
interpreted in an absolute manner. It should
be limited only in cases where all of the heirs
are of the same class or juridical condition.
Where there are compulsory heirs among the
heirs instituted, the rule should be applied
only to the disposable free portion.
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Suppose that it is stated in X's will, "I B = P30,000.00
give A and B and C my entire estate as D = P30,000.00
my heirs". The net value of such estate E = P30,000.00
is P120,000.00. How much is each
entitled? P120,000.00

A = P40,000.00
B = P40,000.00
C = P40,000.00

P120.000.00

In the preceding problem, would it make

any difference if A is the legitimate son
of X, while B and C are merely his
friends?

Yes. Even if the law does not say so it is

believed that the rule in Article 846 cannot be
applied absolutely in case one of those
instituted is a compulsory heir, inasmuch as
institution in general refers merely to the free
portion.
Therefore, the legitime must be first removed
and what remains will be divided equally.

Hence, the distribution will be as follows:

A = P60,000.00 as compulsory
heir
P20,000.00 as voluntary
heir B = P20,000.00 as voluntary
heir C = P20,000.00 as voluntary
heir

P120,000.00

*Must be understood as referring to heirs who

are of the same class or juridical condition
and, to the portion of the inheritance of
which the testator can freely dispose.

Article
847

When the testator institutes some heirs

individually and others collectively as
when he says, "I designate as my heirs A
and B, and the children of C," those
collectively designated shall be
considered as individually instituted,
unless it clearly appears that the
intention of the testator was otherwise.

Testator said in his will, "I hereby give my

entire estate to A and B and the children
of C (D and E)". The net value of the
estate is P120,000.00. How much is each
entitled?

A = P30,000.00
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 Article 848
If the testator should institute his
brothers and sisters, and he has
some of full blood and others of half
blood, the inheritance shall be
distributed equally unless a different
intention appears.
Article 849
When the testator calls to the
succession a person and his children
they are all deemed to have been
instituted simultaneously and not
successively.
Notes:
1.Article 847 deals on individual and
collective institutions. The rule is in the
absence of a more specific designation, the
law presumes that those who are
collectively designated shall be considered
as individually instituted in accordance with
the presumed will of the testator.
2.Under Article 849, whenever the testator
institutes as his heir a certain person and
his children, such institution must be
interpreted to mean, that they are called to
succession simultaneously and not
successively. Thus, of the testator institutes
*Rule: If the shares of those whose portions
are designated should consume the entire
estate, those whose shares are not designated
will inherit nothing.
Testator said in his will "I hereby
institute A,B,C and D as my heir. A would
receive Yi of my estate, B U and C U."
The net value of the estate is
P120,000.00. How much each is entitled
to?
A =(1/2 of P120,000.00)
P60,000.00 B =(1/4 of
P120,000.00)
P30,000.00 C =(1/4 of
P120.000.00)
P30,000.00
D gets nothing
*Rule: Where there is no designation of
shares but the testator has provided that
specific things be given to each heir and such
A and his five (5) children as his heirs with
respect to the disposable free portion of the
inheritance, it is clear that such disposable
free portion shall be divided equally among A
and the five (5) children.
Take note that the disposition refers to the
disposable free portion.
Testator said in his will "I hereby give my
entire estate to C and his children D and
E". Net estate is P120,000.00.
How much is each entitled?
C = P40,000.00
D = P40,000.00
E = P40,000.00
P120,000.00
*Rule: If the shares of some heirs are
designated, while those of others are not
those parts designated shall be given to
their owners and the balance shall be
divided equally among those whose shares
are not designed.
Testator said in his will, "I hereby
institute A,B,C and D as my heirs. I
hereby order that Yi of my estate would
be given to A and U of my estate to B.
The net value of the estate is
P120,000.00". How much is each
entitled?
A = (1/2 of P60,000.
B P120,000.00)
=(1/4 of 00
P30,000.
C P120,000.00)
= 00
P15,000.
D = 00
P15,000.
00
things from only a portion of the estate, the
institution must be considered as without the
designation of shares and the heirs will divide
the estate equally, but the value of the specific
things assigned to each must be included in
the amount that should pertain to each.
Article 848 provides "if the testator should
institute his brothers and sisters and he has
some full blood and others of half blood, the
inheritance shall be distributed equally unless a
different intention appears."
Incase of intestate succession, however, should
brothers and sisters of the full blood survive
together with brothers and sisters of the half
blood, the former shall be entitled to a share
double than that of the latter {Article 1006).
Article 8S0
The statement of a false cause for the
institution of an heir shall be considered
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 as not written, unless it appears from
the will that the testator would not have
made such institution if he had known
the falsity of such cause.
Article 850 provides, "the statement of a false
cause for
the institution of an heir shall be considered as
not written, unless it appears from the will
that the testator would not have made such
institution if he had known the falsity of such
cause".
Consequently, if the validity of an institution of
heir is attacked on the ground that it is based
on a false cause, it is clear that the test which
must be applied in order to resolve the
question, is to determine from the will itself
whether or not the testator would not have
made the institution he had known the falsity
of such cause.
Testator said, "I institute my best friend,
Ms F, as heir of the Yi free portion of my
estate because she is a brilliant
surgeon". It turned out that she was not
really a surgeon but an embalmer. Is the
provision valid?
Yes. From the fact of the case, it is stated that
Ms F is the testator's best friend. So, it can be
presumed that the
testator knows that Ms F is not a surgeon but
an embalmer. In short, the testator knows the
falsity of the cause when he instituted Ms F as
an heir, yet he instituted Ms F as an heir
(Article 850). Sabi nga nila, in this case, just
ignore the false cause.
Testator said, "I hereby institute Dr A to
Yi of my entire free portion because he
save my life by operating on me." It
turned out that it was not Dr A who
operated on him. Is this valid?
No. Because it is the fact of saving the
testator's life that the testator instituted Dr A
as an heir. There was a false cause that
appeared in the face of the will itself.
Testator said, "I give Yi of my estate to
Dr A". He thought it was Dr A who saved
his life but he did not state this in the
will. Is this valid?
Yes. Because there was no proof of false cause.
The reason for the institution was not
mentioned in the will.
*Before the institution of heirs may be
annulled under Article 850, the following
requisites must concur:
1. the cause for the institution of the
heir must be stated in the will
2. the cause must be shown to be false
3. it must appear from the face of the
will that the testator would not have
made such institution if he had known
of the falsity of the cause
Consequently, where the testator's will does
not state in a specific or unequivocal manner
the case of such institution, the annulment of
such institution cannot be availed of.
Article 8S1
If the testator has instituted only one
heir, and the institution is limited to an
aliquot part of the inheritance, legal
succession takes place with respect to
the remainder of the estate.
The same rule applies if the testator
has instituted several heirs, each being
limited to an aliquot part, and all the
parts do not cover the whole
inheritance.
Article 8S2
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If it was the intention of the testator
that the instituted heirs should become
sole heirs to the whole estate, or the
whole free portion, as the case may be,
and each of them has been instituted to
Testator stated in his will, "I institute A
and B as my heir. A to Yi of my estate
and B U of my estate". What is the effect
of such disposition?
an aliquot part of the inheritance and
their aliquot parts together do not cover
the whole inheritance, or the whole free
portion, each part shall be increased
proportionally.
A = P80,000.00

A will get Yi of the testator's

estate. B will get )4 of the
testator's estate.
Legal succession would operate on the
remaining )4.

In the preceding problem, would it make

any difference if A and B were
designated as sole heirs?

Yes. In this case, each of their shares will be

increased proportionally as to the remaining
free portion.

In the preceding problem, suppose that

the net value of the estate is
P120,000.00. How would you distribute
the estate?

First step:

i. A(1/2 of P120,000.00) =
P60,000.00
B(1/4 of P120,000.00) =
P30,000.00

Aggregate share of all the heirs

P90,000.00

ii. net estate =

P120,000.00
(minus)
Aggregate share of all the heirs P90,000.00

Remaining free portion P30,000.00

*The remaining free portion of P30,000.00

shall be distributed proportionally to the
share of each heirs.

Second step:

Formula: NE x share of each heir

Aggregate share of all

the heirs

A = P120,000.00 x P60,000.00
P90,000.00

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 X institutes A to 1/3, B to U and C U
with the intention that all of them shall
become sole heirs of the whole estate.
The net value of the estate is
P120,000.00. How will you distribute?
*The remaining free portion of P20,000.00
shall be distributed proportionally to the
shares of each heirs.
Second step:

First step: Formula: NE x share of each

heir
i. A(1/3 of P120,000.00) =
P40,000.00 Aggregate share of
B(1/4 of P120,000.00) = all heirs
P30,000.00
C(1/4 of 120,000.00) = A = P120,000.00 x P40,000.00
P30,000.00 P100,00.00
A = P48,000.00
Aggregate share of all the heirs
P100,000.00 B = P120,000.00 x P30,000.00
P100,000.00
ii. net estate =
P120,000.00 B = P36,000.00
(minus)
aggregate share of all the heirs P100,00.00
C = P120,000.00 x P30,000.00
Remaining free portion = P20,000.00 P10,000.00

C = P36,000.00

Hence, the final distribution is:

B = P120,000.00 x P30,000.00 A = P48,000.0

P90,000.00 B = 0
P36,000.0
C = 0
P36,000.0
B = P40,000.00 0
P120,000.00
Hence, the final
distribution is:

A = P80,000.0
B = 0
P40,000.0
0

P120,000
Article 8S3 B(1/2 of P120,000.00) = P60,000.00
C(1/4 of P120,000.00) = P30,000.00
If each of the instituted heirs has been
given an aliquot part of the Aggregate share of all heirs P150,00.00
inheritance, and the parts together
exceed the whole inheritance, or the ii.net estate =
whole free portion, as the case may P120,000.00
be, each part shall be reduced (minus)
proportionally. Aggregate share of all heirs P150,000.00

Testator stated in his will, "I will give A Excess = (negative)

Yi of my estate; B Yi and C U". Suppose P30,000.00
that the net estate is worth
P120,000.00. Distribute the estate. *The excess of P30,000.00 shall be deducted
proportionally from the shares of each heir.
First step:
Second step:
i. A(1/2 of P120,000.00) =
P60,000.00
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 Formula: NE x share of each
CHART:
heir Aggregate
share of all heirs
Amount Received -Deduction = Amount Actually As
A = P120,000.00 x P60,000.00
P150,000.00
A=P60,000.00 -P12,000.00 =P48,000.00
A = P48,000.00 B=P60,000.00 C=P30,000.00
-P12,000.00 =P48,000.00
-P6,000.00=P24,000.00
B = P120,000.00 x P60,000.00
P150,000.00 P150,000.00 -P30,000.00 =P120,000.

B = P48,000.00 Article 8S4

C = P120,000.00 x P30,000.00
P150,000.00
The preterition or omission of one,
some, or all of the compulsory heirs in
C = P24,000.00
the direct line, whether living at the
time of the execution of the will or
Hence, the final distribution is:
born after the death of the testator,
shall annul the institution of heir; but
A = P48,000. the devises and legacies shall be valid
B = 00
P48,000. insofar as they are not inofficious.
00
If the omitted compulsory heirs
should die before the testator, the
institution shall be effectual,
without prejudice to the right of
representation.

*Pretirition must not be confused with

disinheritance. The latter refers to the
deprivation of a compulsory heir of his
legitime, for cause expressly stated by law.
The essential difference between the two,
consists in the fact, that in pretirition, the
deprivation of a compulsory heir of his
legitime is tacit or implied while in the
disinheritance the deprivation is express.

What must be the character of the

omitted heir in order that there will be
preterition?

The heir omitted must be a compulsory heir

in the direct line.

*Article 854 does not make any

qualification or distinction whatever. Thus,
it is immaterial whether the heir omitted in
the testator's will is legitimate or
illegitimate.
Consequently, the preterition of an
acknowledged natural child shall result in
the total annulment of the institution of the
heir. {Lajom vs Leuterio, 107 Phil 651)

Who are those considered as

compulsory heirs in the direct line?

1. Legitimate children and

descendants with respect to
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 their legitimate parents their legitimate children and
and ascendants. descendants.

2. Legitimate parents and 3. The father or mother of an illegitimate

ascendants with respect to children.
What must be the character of omission
in order that there will be preterition? Yes. The adopted child is by legal fiction
considered as a compulsory heir in the direct
The omission of the compulsory heir must be
complete and total in character, so that, he Moreover, under the law, the adopted child has
receives nothing from the testator at all. the same right as that of a legitimate child
Consequently, if the testator leaves any (Family Code and the 1998 Domestic Act).
property to the heir who is alleged to have
been omitted,
by any title whatsoever, there can be no
preterition. This is true even when he leaves
to such compulsory heir a share which is less
than his legitime. In this case, Article 906 of
the Code applies, the heir can ask for the
completion of his legitime (Amar vs Duncan,
17 SCRA 590).

What is the effect if preterition

occurs?

According to Article 854, the preterition of a

compulsory heir in the direct line, shall have
the effect of annulling the institution of heir
but the devises and legacies shall be valid,
insofar as they are not inofficious.

What is inofficious?

That amount which can be contained

within the free portion.

What is preterition?

It is the omission in testator's will of one,

some or all of the compulsory heirs in the
direct line, whether living at the time of the
execution of the will or born after the death of
the testator.

Requisites:

1. The heir omitted must be compulsory

heir in the direct line.

2. The omission must be complete

and total in character in such a way
that the omitted heir does not and
has not received anything at all
from the testator by any title
whatsoever.

3. The compulsory heir omitted should

survive the testator.

Is there preterition when the omitted

heir is an adopted child?
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Is there preterition when the omitted
heir is the surviving spouse?
No. A spouse although considered a
compulsory heir, is not compulsory heir in
the direct line (ascendant/decendant).
What about a parent of testator is he a
member of the direct line?
Yes. An Ascendant.
Suppose that an heir of the direct line
dies ahead of the testator, is there
preterition?
Jurado: There is no preterition. The
institution shall be effectual, but it is
without prejudice to the right of
representation when it properly takes
place.
Tolentino: If the compulsory heir who has
been preterited dies before the testator, it is
the same as if there had been no preterition.
However, the right of representation should
not be lost sight of. Thus, if the preterited
heir has legitimate children and
descendants entitled to represent him and
they have also been left out in the will, the
institution of heirs shall be annulled just the
same, even if the preterited heir died before
the testator. (Aptly stated, there is
preterition in the right of representation
In the preceding problem, how will the
estate be distributed?
B can ask for the completion of his legitime
(Article 906).
Suppose that A was designated as the
sole heir. B was not mentioned. During
the lifetime of the testator he donated
to B a land worth P10,000.00. Is there
preterition?
No. Because B has received something from
the testator (the land worth P10,000.00).
Moreover, a donation inter vivos
actually given to a compulsory heir is
considered as an advance on his
inheritance.
Suppose that T said in his will, "I
hereby give my son A 1/10 of my
estate". Nothing was mentioned
about the rest of the 9/10. Is there
preterition?
because the preterition is determined at the
time of death of the testator.)
This means that preterition must always be
determined in relation to the persons, who are
compulsory heirs at the time of the death of
the testator and not in relation to those who
never became such.
Transcriber's Opinion: Jurado and Tolentino's
view may be reconciled.
There will be no preterition if the omitted
compulsory heir, is not survived by his
compulsory heirs in the direct line.
But, there will be preterition in the right of
representation if the omitted compulsory heir
is survived by his compulsory heirs in the
direct line.
Suppose that the testator in his last will
said, "I have two
(2) children, A and B. I give A Yi of my
estate." There is nothing in the will
which expressly preterited B. Is there
preterition?
No. Since, there is still Yi of the estate that is
left and such remaining portion can be
applied to B's legitime/share.
The omission must be complete and total in
character, so that, the omitted receives
nothing from the testator.
No. Since, there is still the remaining 9/10 of the
T's estate for the share of his other compulsory
heirs.
Suppose that T in 198S said in his will, "I
give my entire estate to my sons A and B".
T died in 199S, four (4) months later, T's
wife gave birth to C. Is there a preterition?
Yes. Compulsory heir in the direct line may be
living at the time of the execution of the will or
born after the death of the testator.
X has three (3) legitimate children, A, B and
C. When he executed his will, X instituted
as heirs to his entire estate, A and B and his
friend, F. He also gave a legacy of
P30,000.00. The value of the net estate is
P120,000.00
a. Is there preterition?
Yes. Because C was not mentioned in the will nor
was he given anything.
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 b. What is the effect of
preterition on the
institution of heirs?
The institution of F will be annulled.
c. What about the legacy given to
G?
The legacy given to G is effective because it
can be contained within the free portion.
In this case, the free portion (1/2 of
P120,000.00) P60,000.00. Hence, the legacy
given to G in the amount of P30,000.00 can
be contained therein. (P60,000.00 -
P30,000 = P30,000.00 free portion).
d. How will you distribute the estate?
LegitimeVoluntary ShareAmoun
A: P20,000.00 + P10,000.00 = P30,0
B: P20,000.00 + P10,000.00 C: P20,000.00 + P10,000.00
= P30,0
G
= P30,0
= P30,0
F: instituted is annulled
P60,000.00 P60,000.00 P120
Explanation: As per computation, due to
the preterition of C, F's institution is
annulled. Hence, a will get his legitime of
P20,000.00 plus his voluntary share of
P10,000.00; B and C will get the same
amount as A. G will get his legacy of
P30,000.00
Testator has three (3) legitimate
children A, B and C. In his will he
provided "I hereby give U of my estate
to A, 1/10 to b and Yi of my estate to
my friend, F". Suppose that the net
estate is P120,000.00. Is there a
preterition?
None. Since there is still a portion (1/10) of
the estate from which the share of C may
be taken from.
Article 8SS
The share of a child or descendant
omitted in a will must first be taken
from the part of the estate not
disposed of by the will, if any; if that is
not sufficient, so much as may be
necessary must be taken proportionally
from the shares of the other
compulsory heirs.
In the preceding problem, how should
the estate be distributed?
Under Article 855, the share of a child or
descendant omitted in a will must first be
taken from the part of the estate not disposed
of by the will, if any; if that is not sufficient,
so much as may be necessary must be taken
proportionally from the shares of the other
compulsory heirs.
Tolentino: The law should have stated "the
share of the compulsory heir omitted in a
will must be first taken from the part of the
estate not disposed of by the will if any; if
that is not sufficient, so much as may be
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necessary must be taken proportionally from the shares of the other
heirs given to them by will.

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X said Institutio
in his will, "IReducti
give to S my To
legitime son, his legitime and I give the entire free portion to
be Received
my friend,
n F". F hason/a legitimate son B. F died a day before X. Can be get Yi of the estate?
Increas
A P30,000.00 -P1,428.57 P20,000.00
(- (legitime) No. A voluntary heir does not transmit any
P10,000.00) + right, if he predecease the testator.
P8,571.43 (DFP) inheritance, shall transmit no right to his
= P28,571.43
B P12,000.00 +P8,000.00 P20,000.00 own heirs except in cases expressly
C None +P20,000.0 P20,000.00 provided for in this Code.
0 (legitimate)
*Proportional
F P60,000.00 decrease onP51,428.57
-P8,571.43 A's share is only
P10,000.00 because of his legitime.

Procedure as to the reduction of the heirs'

share.

Legitime Voluntary Amount to be

Reduced

A=P20,000.00 P10,000.00 / (1/7) 10 =

P1,428.57 B=P20,000.00
C=P20,000.00
F= P60,000.00 / (6/7) 10 =
P8,571.43

P60,000.00 + P70,000.00 = P130,000.00

(Aggregate
Amount)
- P120,000.00 (Net
Estate)

P10,000.00 (Amount to
be
Reduced)

Formula:
Voluntary Share x Amount to be
Reduced Aggregate Amount of
Voluntary Share

A= P10,000.00 x P10,000.00
P70,000.00

A= P1,428.57

F= P60,000.00 x
P10,000.00
P70,00.00

F= P8,571.43

A + F = P1,428.57 + P8,571.43 = P10,000.00

Article 8S6

A voluntary heir who dies before the

testator transmits nothing to his heirs.

A compulsory heir who dies before the

testator, a person incapacitated to
succeed, and one who renounces the
 In the preceding problem, suppose that F
died a day after
X. Is B now entitled to Yi of the
estate?
Yes. In this case, ownership has been vested
upon F at the time of X's death.
Suppose S dies ahead. Are the heirs of S
entitled to anything?
Yes.
The rule is different in case of a compulsory
heir. In this case, there is a right of
representation. However, what is transmitted
to the representatives of the compulsory heir,
is his right to the legitime, and not upon the
free portion, if he has also been instituted by
the testator to the whole or aliquot part of
such free portion.
Notes:
1.Thus, the general rule is, an heir who dies
before the testator, shall transmit no right to
his own heirs. A distinction, however, must
be made between the case of a voluntary
heir and the case of a compulsory heir.
What is the effect of incapacity?
Incapacity has the same effect as predecease. A
voluntary heir, who is incapacitated to succeed
from the testator shall transmit no right
whatsoever to his own heirs.
A compulsory heir on the other hand may be
represented but only with respect to his legitime
(Article 1035). The same is true in case of
disinheritance.
What is the effect of repudiation?
The heir who repudiates his inheritance whether
he is voluntary or a compulsory heir cannot
transmit any aright to his own heirs. As enunciate
under Article 977, heirs who repudiate cannot be
represented.
Article 857 to Article
870 Substitution of
Heirs
Article 8S7
Substitution is the appointment of another
heir so that he may enter into the
inheritance in default of the heir originally
instituted.
2.The rule is absolute with respect to a
voluntary heir. Reason: Since the right of
representation does not apply to the heirs of
a voluntary heir, it necessarily follow, that
when a voluntary heir predeceases the
testator or incapacitated, or renounces the
inheritance he cannot transmit any right to
the heirs. The same is true when a person is
designated as a devisee or legatee, with
respect to a determinate property. Since, a
devise or legacy is a charge upon the free
portion of the inheritance, it necessarily
follows, that when the designated devisee or
legatee dies before the testator, no right
whatsoever is transmitted to the heirs of such
devisee or legatee.
3.It is different in the case of a compulsory heir.
nd
It is evident from the provision of the 2
paragraph of Article 856. The exception
referred to is of course the right of
representation. It must be noted, however,
that what is
transmitted to the representatives of the
compulsory heir is his right to the legitime
and not to the free portion in case he has also
been instituted by the testator, to the whole
or to an aliquot part of such free portion. This
is so, because of the principle that in
testamentary succession, the right of
representation pertains only to the legitime
and not to the free portion.
Article 8S8
Substitution of heirs may
be:
(1) Simple or common;
(2) Brief or compendious;
(3) Reciprocal; or
(4) Fideicommis
sary Article
8S9
The testator may designate one or more
persons to substitute the heir or heirs
instituted in case such heir or heirs should
die before him, or should not wish, or should
be incapacitated to accept the inheritance.
A simple substitution, without a statement of
the cases to which it refers, shall comprise
the three mentioned in the preceding
 paragraph, unless the testator has
otherwise provided.
Article 860
shall acquire the share of the heir who dies,
Two or more persons may be substituted for
one; and one person for two or more heirs.
Article 861
If heirs instituted in unequal shares should
be reciprocally substituted, the substitute
renounces, or is incapacitated, unless it
clearly appears that the intention of the
testator was otherwise. If there are more
than one substitute, they shall have the
same share in the substitution as in the
institution.

Article 862

The substitute shall be subject to the same

charges and conditions imposed upon the
instituted heir, unless and testator has
expressly provided the contrary, or the
charges or conditions are personally
applicable only to the heir instituted.

Article 863

A fideicommissary substitution by virtue of

which the fiduciary or first heir instituted
is entrusted with the obligation to
preserve and to transmit to a second heir
the whole or part of the inheritance, shall
be valid and shall take effect, provided
such substitution does not go beyond one
degree from the heir originally instituted,
and provided further, that the fiduciary or
first heir and the second heir are living at
the time of the death of the testator.

Article 864

A fideicommissary substitution can never

burden the legitime.

Article 86S

Every fideicommissary substitution must

be expressly made in order that it may be
valid.

The fiduciary shall be obliged to deliver the

inheritance to the second heir, without
other deductions than those which arise
from legitimate expenses, credits and
improvements, save in the case where the
testator has provided otherwise.

Article 866

The second heir shall acquire a right to the

succession from the time of the testator's
death, even though he should die before
the fiduciary. The right of the second heir
shall pass to his heirs.
 Article 867 instituted is based on the testator's freedom of
disposition, the same limitation which is
The following shall not take effect: imposed upon such freedom of disposition
must also be imposed upon such freedom to
appoint a substitute. This is clear from the
(1) Fideicommissary substitutions which
provisions of Article 842, 864, 872 and 904.
are not made in an express manner,
either by giving them this name, or
imposing upon the fiduciary the
absolute obligation to
deliver the property to a second heir;

(2) Provisions which contain a perpetual

prohibition to alienate, and even a
temporary one, beyond the limit
fixed in article 863;

(3) Those which impose upon the heir

the charge of paying to various persons
successively, beyond the limit
prescribed in article 863, a certain
income or pension;

(4) Those which leave to a person the

whole part of the hereditary property in
order that he may apply or invest the
same according to secret instructions
communicated
to him by the testator.

Article 868

The nullity of the fideicommissary

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

Article 869

A provision whereby the testator leaves

to a person the whole or part of the
inheritance, and to another the usufruct,
shall be valid. If he gives the usufruct to
various persons, not simultaneously, but
successively, the provisions of Article
863 shall apply.

Article 870

The dispositions of the testator declaring

all or part of the estate inalienable for
more than twenty years are void.

General Limitation: If the heir for whom a

substitute is appointed is a compulsory
heir, the rule is that, the substitution cannot
effect the legitimate of such heir. Since the
right to appoint a substitute for the heir
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Is it advisable to include a substitution in
a will?
Yes. Because it:
1. prevents the effect of the preterition
2. prevents the falling of property into
the wrong hands
3. awards those who are good to the
testator, but are not compulsory
heirs.
What are the kinds of substitution?
Substitution of heirs may be:
1. simple or common (vulgar)
2. brief or compendious
3. reciprocal
4. fideicomissary (Article 858)
Simple or common - that which takes
place when the testator designates one or
more persons to substitute the heir or heirs
instituted, in case such heir should:
b. The fiduciary or first heir, and the
second heir
are living at the time of the death of
the testator.
X said in his will, "I hereby institute my
friend A as heir and B as substitute in
case A predecease me". A did not die,
but was incapacitated. Can B inherit?
No. Since it was expressly stated that the
substitution shall take place only in case a
predeceases X.
In this case, A did not predecease X. He was
instead incapacitated.
X said in his will, "I hereby institute A as
heir and B as substitute". A repudiated.
Can B inherit?
Yes. Where the simple substitution is without
any statement of the cases to which it refers,
it shall comprise the three:
1. the death of the heir
2. incapacity
a. die before him, or
b. should not wish to accept the
inheritance, or
c. should be incapacitated to
accept the inheritance
Brief or Compendious
Brief - when the testator designates two
(2) or more persons to substitute for only
one (1) heir.
Compendious - when there is only one
(1) person designated by the testator to
substitute for two (2) or more persons.
Reciprocal - when two (2) or more persons
are not only instituted as heirs, but there are
also designated mutually as substitutes for
each other.
Fideicomissary - that which takes place,
when the fiduciary or first heir instituted is
entrusted with the obligation to preserve
and to transmit to a second heir, the whole
or part of the inheritance, provided that such
substitution:
a. Does not go beyond one (1) degree
from the heir originally instituted?
3. repudiation
Thus, any of the three instances may be a
cause for substitution.
*With respect to reciprocal substitutions, the
following rules as to the shares of the
substitute is given by Jurado:
1. If there are only two {2) instituted heirs
and they are designated mutually as
substitutes for each other, the
substitute shall acquire the entire share
of the heir who dies, renounces or is
incapacitated, even if the shares of
both are unequal. Thus, if A is instituted
to 2I3 of the entire inheritance and B is
instituted to 1I3, and A dies before the
testator, or is incapacitated to inherit, B
will acquire the 2I3 portion which is
rendered vacant as a substitute and the
remaining 1I3 as an instituted heir.
2. If there are three {3) or more instituted
heirs and they are designated mutually
as substitute for each other, the
substitutes shall have the same share
in the substitution as in the institution.
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X said in his will, "I institute A to Yi of P450,000.00
my estate, B to U and C to U. I hereby
designate all of them as reciprocal B = P50,000.00
substitutes of each other". B
predeceased X. The value of the net What are the effects of substitution?
estate is P600,000.00. Distribute.
The effects once the substitution has taken
Instituted Amount + Share from Substitution = place are the following:
Amount Received
1. The substitute shall take over the
A=P300,000.00 + P100,000.000 = share that would have passed to
P400,000.00 B=P150,000.00 the instituted heir.
+P50,000.00
2. The substitute shall be subject to
=P200,000.00 the same charges or conditions
imposed upon such instituted
P400,000.00 +P150,000.00 heir.

=P600.000.00 *The rule provided under number 2 that" the

substitute shall be subject to the same
(NE) (Instituted Amount) (Amount to be charges or conditions imposed upon such
Shared)
instituted heir" as aforementioned, is subject
P60,000.00 - P450,000.00 =P150,000.00 to the following exceptions:

Formula: 1. When the testator has expressly

provided the contrary.
Share of Heir x
Amount to be Shared 2. When the chargers or conditions are
Aggregate Amount of personally applicable only to the heir
Institution instituted.

A = P300,000.00 x P150,000.00 Thus, if the testator has imposed upon his

P450,000.00 nephew, whom he had instituted as his heir to
the entire free portion of his estate, the
A = P100,000.00 condition is that he shall get married to a
certain girl and a niece of the testator is
substituted for the
B = P150,000.00 x P150,000.00
nephew, it is evident that the condition is transmitted (heredero
personally applicable only to such nephew. fideicomissario).

When is the fideicomissary substitution? *A fideicomissary substitution can never

burden the legitime. Thus, it must be taken
It takes place whenever the testator institutes from the free portion of the estate.
a person as heir, entrusting him with the
obligation to preserve and to transmit to a What are the requisites of a fideicomissary
second heir, the whole or part of the substitution?
inheritance.
1. There must be a fiduciary and
It exists with the concurrence of the three (3) fideicomissary.
persons:
2. Obligations to preserve and transmit on
1. Fideicomitente - the testator the part of the fiduciary.
who orders the substitution.
3. They must be one (1) degree
2. Fiduciary - the first heir apart in relationship.
charged with the preservation
and the transmission of the 4. Both must be living at the time of the
inheritance (heredero fiduciaro). death of the testator.

3. Fideicomissary - the second heir *Limitation to a Fideicomissary

to whom the inheritance is Substitution
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1. The substitution must not got
beyond one {1) degree from the
heir originally instituted.
2. The fiduciary and the
fideicomissary must be living at the
time of the death of the testator.
3. The substitution must not burden the
legitimate of compulsory heirs.
4. The substitution must be made
expressly.
Why must both heir be living?
Because of the duality of the inheritance. The
rule that both the fiduciary and the
fideicomissary must be living at the time of
the death of the testator, is in conformity with
the requirement that there must be a duality
of heirs or double institution of heirs in the
substitution.
Since, both the fiduciary and the
fideicomissary are true heirs of the testator, it
is essential that in order to be capacitated to
inherit, that both of them must be living at
the moment the succession opens.
From whom does the fideicomissary
inherit? Is it from the testator
(fideicomitente) or from the fiduciary?
It is evident from the provision of Article 866
that the fideicomissary acquires a right over
the inheritance from the moment of death of
the testator. Thus, the fideicomissary inherits
from the testator (fideicominente) and not
from the fiduciary.
How may a fideicomissary substitution
be made expressly?
1. By giving it the name of
fideicomissary substitution; or
2. By imposing upon the fiduciary the
absolute obligation to preserve
and to deliver the property to a
second heir.
T said in his will "I institute my friend F
as a fiduciary heir and S as
fideicomissary". Is there a fideicomissary
substitution?
Yes. As they are designated as such by name.
In the preceding problem, upon the
death of T, F will get the property. When
is F supposed to transmit the property
to S?
1. If T designates a day for the
transmission or delivery by limiting
the period, in which the fiduciary heir
may enjoy the property or inheritance,
such designation shall be respected.
2. If he does not fix a period for the
transmission or delivery, it is presumed
that he leaves the matter to the
discretion of the fiduciary.
3. If there is a doubt or litigation
regarding the time for such
transmission or delivery, it is presumed
that it would be made after the death
of such fiduciary.
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What are the rights of the fiduciary?
He acquires upon the death of the
fideicomitente all of the rights of a
Pending the transmission or delivery, he
possesses the beneficial ownership of the
property although the naked ownership is
vested in the fideicomissary.
usufruactuary, until the moment of delivery to
the fideicomissary.
Suppose that a condition was imposed
that fideicomissary can dispose of the
property only after twenty one (21)
years. Is the condition valid?

Can a fiduciary alienate the property?
No. He has no power of alienation but he may
alienate his right of usufructuary over the
property.
No it is void. Article 870 provides, "the
dispositions of the testator declaring all or part
of the estate inalienable for more than twenty
(20) years are void.

Suppose the fiduciary has creditors, can

they run after the properties subject to
fideicomissary substitution?

No. However, the creditors may recover the

fruits of the property while the same is still in
the hands of the fiduciary.

T said in his will, "I designate as my heir

Mr Ricalde and Mr Horia as
fideicomissary". Is there a fideicomissary
relationship?

No. Mr Ricarde and Mr Horia are not

related by one degree.

What is meant by "one degree"?

There are two (2) views with respect to the

meaning of one degree, but the court
construed it as referring generation.

First view: it is limited only to degrees in

relationship or it refers to generation. So, it is
only between parents and children

Second view: it refers to transmission of

property

*In the case Ramirez vs Ramirez, the Supreme

st
Court adopted the 1 view. The court held,
degree must be construed as generation.
Hence, the Code should be construed as that,
the second heir must be related to and
be one generation from the first heir.

In the case of Arenas vs Arenas, the

substitution would have been void because
the fideicomissary was not one {1) degree
apart from fiduciary. However, the Supreme
Court deferred to rule on such matter. The
court allowed Vicente to administer the
property and left the question as to "one
degree" issue for further consideration.

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In the preceding problem, why is there
such an imposition?
1. To give more impetus to the
socialization of the ownership of
property.
In the preceding problem, why the
prohibition?
To prevent the entail of property or its
withdrawal from circulation.

2. To prevent the perpetuation of X instituted his friend F to the free

large holdings which give rise to
agrarian trouble.
Under Article 867, give the provisions
which shall not effect?
portion of his estate, with a perpetual
prohibition to alienate. Is the
prohibition valid?
No. Article

Article 867. 870. Will F

If there are provisions in the will inherit? Yes.

which perpetually prohibits
alienation. Is it valid? In relation to Article 876 (2), is it
possible to violate Article 863?
Under Article 867(2), if the prohibition is
perpetual or even if temporary beyond the Yes. The limitation as to the "one degree"
limit set forth in Article 863 (the limit here
refers to one(1) degree, the same shall not limitiation. Article 863 (2) provision which
take effect.
contain:
Moreover, following Article 870, if the
testator prohibits alienation for a definite 1. a perpetual prohibition to alienate
period of time, it cannot exceed twenty
(20) years. 2. even a temporary one, beyond the
limit fixed in Article 863
X instituted F to the free portion of his Illustration:
estate. X also provided that the land
shall be alienable for a period of twenty X A F five (5) years
(20) years after his death. C died in
1980, ten (10) years after F died leaving
the property to his son A. After two (2)
years, A died leaving the property to his
son B.
Three (3) years after, B died leaving B five (5) years
the property to C.

Illustration: C five (5) years

X F ten (10)
years

A two (2) D five (5) years

years Is it
valid?

B three (3) years What about A?

A cannot alienate because only twelve (12) years

C two (2) years have passed from the death of X.

Can F alienate the property? What about B, can he alienate the

property?
No.

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The obligation to pay is valid only from F
to B. When it comes to C, D and A, it is
no longer obliged to pay, considering
that C is already two (2) degrees away
from F, while D is three (3) degrees
away.
Article 869
Yes. B can now alienate the property. While it
is true that only twelve (12) years have
passed since the death of X (the prohibition
to alienate is twenty (20) years), B can
now alienate the property, otherwise the "one
degree" limitation (Article 867 (2) in relation
to Article 863) will be violated.
In this case, B is already two (2) degrees away
from the heir (F) originally instituted.
*Article 867 {2) in relation to Article 863,
"Provisions which contain a perpetual
prohibition to alienate and even a temporary
one, beyond the limit fixed in Article 863". No
author has fully explained as to what does the
phrase, "and even a temporary one, beyond
the limit fixed in Article 863" or if it they have
ever explained it, the accuracy of their
explanation is doubtful. Nevertheless, Dean
Navarrosaid, the phrase refer to "one degree
limitation".
Article 867 (3)
X said, I give the free portion of my
estate to my friend A, but he shall pay
the ten percent (10%) of its fruits to F for
five (S) years, to F's son B for five (S)
years, to B's son C for five (S) years and
to C's son D for another five (S) years.
PCI Bank vs Escolin
The provision in question is a simple case of
simultaneous institution of heirs, whereby the
institution of Hodges is subject to a partial
resolutory condition, the operative
contingency of which is coincidental with that
of the suspensive condition of the institution of
his brothers and sisters-in-law, which manner
of institution is not prohibited by law.
Crisologo vs Singson
The testamentary clause under consideration
does not call the institution of fideicomissary
substitution nor does it contain a clear
statement that Consolacion enjoys only a
usufructuary right, the naked ownership being
vested in the brother of the testatrix.
X said, "I give my property in Manila to
my friend A, but F will have the usufruct
for ten (10) years, F's son B for two
(2) years and B's son C for two (2) years.
Illustration:
X A F ten (10) years
B two (2) years
C three (3) years
Is the aforementioned valid?
The usufruct is valid only from F to B. When it
comes to C, the usufruct is no longer valid
considering that C is already two (2) degrees
away from F.
Therefore, after B's death, the ownership of
the property will now be consolidated to A. C
will no longer enjoy the usufruct.
*Article 869, "A provision whereby the testator
leaves to a person the whole or part of the
inheritance and to another the usufruct, shall
be valid. If he gives the usufruct to various
persons simultaneously, the provisions of
Article 863 shall apply."
Hence, in the preceding problem, the "one
degree" limitation shall also be applied.
The will, therefore, establishes a simple or
common substitution, the necessary result of
which is that, upon the death of the testatrix,
Consolacion became the owner of an undivided
half of the property. She can therefore, demand
partition.
Can there be several transfers?
Yes. It is possible to establish fideicomissary
substitution in favor of an unlimited number of
persons, provided that, all of them are one
generation from the first heir and are living at
the time of the death of the testator.
Hence, the testator may institute X and provide
that the property shall be preserved and upon
X's death shall be transmitted to P (father of X);
and after two (2) years, to M (mother of X); after
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five (5) years, to A (son of X); and after
another five (5) years, to B (daughter of X).
Take note that all of them is one degree
removed from X, the first heir.
*There are as many substitute in
fideicomissary substitution, as long as they
are one degree apart in relationship {e.g.
father to son, father to daughter and vice-
versa, or mother to son, mother to daughter
or vice- versa).
X instituted his friend A as a fiduciary
and B as fideicomissary. F has two (2)
children, B and C. B on the other hand,
has two (2) children, D and E. X died in
198S, B died in 1988, while A died in
1999. D and E as against C are now
claiming that they have a sole right to
the property subject of the
fideicomissary substitution. Who will
inherit?
Illustration:
X A (fiduciary)
(fideicomissary) B C
D E
D and E. B as fideicomissary substitute, or a
second heir, acquired a right to the subject
property upon the death of X in 1985. When B
died in 1988, his right over the subject
property passed to his children D and E.
Therefore, D and E are now entitled to the
subject property, to the exclusion of all others.
Article 866 provides, "The second heir shall
acquire a right to the succession from the
time of the testator's death, even though he
should die before the fiduciary. The right of
the second heir shall pass to his heirs."
In the preceding problem, what about if
C claims that the subject property is part
of A's (his father) estate, therefore he is
entitled to his legitime. Is C's claim
tenable?
No. C cannot claim his right of legitime
because the subject property is not part of
A's estate. A has only a
beneficial ownership (usufructuary) over the
property. It is B who has the naked ownership
(legal title). Therefore, only D and E are
entitled to it.
Suppose B died ahead X. Will D and E still
inherit?
No. D and E will not inherit. In order that the
transmission of the rights of the fideicomissary
to his own heirs may take place, it is necessary
that he should survive testator. If he dies
before the testator, the substitution is
extinguished.
Suppose A predeceased X. Can B inherit
from X?
There are two views.
Strictly speaking : No.
Liberally speaking : Yes. Because ultimately,
the project subject of fideicomissary
substitution will go to the fideicomissary.
The fiduciary has only a temporary possession.
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Furthermore, the same may now be
considered as simple substitution
T said in his will, "I give my property, a No. Because the prohibition is twenty (20) years
farm in Bulacan, to my friend A and its from death. They only possessed the property
usufructuary to B for five (S) yeas. After for fifteen (15) years.
which, C, B's son will have the usufruct
for five (S) years and on to D for The prohibition is valid. Under Article 870, the
another five (S) years. Who holds the prohibition must not exceed twenty (20) years.
naked ownership of the property?
The prohibition against permanent or
A holds the naked ownership of the property. temporary alienation under Article 867 (2)
(one degree limitation) applies only to
Under Article 869, "A provision whereby the fideicomissary substitution.
testator
leaves to a person the whole or part of the
inheritance, and to another the usufruct, shall
be valid. If he gives the usufruct to various
persons, not simultaneously, but successively,
the provisions of Article 863 shall apply."

Tolentino: When the testator leaves his

property in naked ownership to one person
and in usufruct to another, upon the
expiration of the latter's right the former
acquires such usufruct, thereby consolidating
the absolute ownership himself. But he should
be considered as a mere substitute or second
heir of the usufructuary, inasmuch as high
right springs from an independent institution
and not merely in subrogation of the
usufructuary. There would be a real
substitution however, when the testator calls a
third person to succeed the usufructuary. If
more than one person is called successively all
of them must be living at time of the testator's
death and they must not be beyond one
degree.

Since the heir instituted to the naked

ownership, upon consolidating absolute title
at the expiration of the usufructuary, does
not succeed the latter as substitute, it is clear
that he is a first heir. Being so, the testator,
may also provide that after the consolidation
of ownership in such heir, he may still be
substituted by others within the limits of
Article 863 (one degree limitation).

Can D enjoy the usufruct?

No. D is not one degree in relationship from

B.

T said in his will, "I give my estate to G

with his children as substitute provided
that they cannot alienate the property
for twenty (20) years". T died. After five
(S) years G died. G's children held the
property for ten (10) years. Can they
now alienate the property?

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In the aforementioned case, the applicable
provision is Article 870, which provides, that
the prohibition, must not exceed twenty (20)
years. The substitution in this case is not
fideicomissary.
The answer would have been different if G
was obliged to preserve and transmit the
property to his children.
Vda de Arenas vs Arenas
The substitution would have been void
because the fideicomissary was not within
one degree away from fiduciary. However,
the court deferred the rule on such matter,
because the issue considered was, whether
or not the prohibition to alienate was void. In
this case, it was not because there was no
permanent prohibition. It was subject to the
nephew's death or renunciation.
X instituted his father A as fiduciary and
B as a substitute. A has two (2) sons, B
and C. B has a son, D. B died in
1989, while X died in 1990. Is there a
valid fideicomissary?
Illustration:
X (+1990) A Liberally speaking: Yes. Because ultimately,
(fiduciary) (fideicomissary +
1989) B
C
D
No. Because the fideicomissary or the second
heir died ahead of the testator. The law
requires that both the fiduciary and the
fideicomissary must be living at the time of
the testator's death.
In the preceding problem, will A inherit?
Yes. Article 868 provides, "the nullity of the
fideicommissary substitution does not
prejudice the validity of the institution of the
heirs first designated; the fideicommissary
clause shall simply be considered as not
written".
What if it was A who died ahead of X,
will B (the fideicomissary) inherit? Or is
there a valid fideicomissary
substitution?
Strictly speaking No.
the proper subject of fideicomissary will go to
the fideicomissary.
The fiduciary has only a temporary possession.
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Furthermore, the same may now be
considered as a simple substitution.

Navarro on the Arena's Case:

Does not the special

administration of Vicente of the
rd
property (3 group of properties)
violate the prohibition of Article
870?

The Supreme Court said no. Because:

1. It is subject to Vicente's
death or refusal; and

2. Vicente has a right to alienate

the fruits of the properties;
while, the children of Carmelo,
who has the naked ownership
over the property, can alienate
them.

Distinguish this case with the case of

Ramirez with respect to the "one
degree" issue dahil sabi ng court
Article 871 to Article 885
Conditional Testamentary
Dispositions and
Testamentary Dispositions
with a Term
Article 871
The institution of an heir may be made
conditionally, or for a certain purpose
or cause.
condition has been imposed on the widow
or widower by the deceased spouse, or by
the latter's ascendants or descendants.
Nevertheless, the right of usufruct, or an
allowance or some personal prestation
may be devised or bequeathed to any
person for the time during which he or she
should remain unmarried or in widowhood.
Article 87S

Article 872
Any disposition made upon the condition
that the heir shall make some provision in
The testator cannot impose any charge, his will in favor of the testator or of any
condition, or substitution whatsoever other person shall be void.
upon the legitimes prescribed in this
Code. Should he do so, the same shall be
Article 876
considered as not imposed.

Any purely potestative condition imposed

Article 873
upon an heir must be fulfilled by him as
soon as he learns of the testator's death.
Impossible conditions and those
contrary to law or good customs shall be
This rule shall not apply when the
considered as not imposed and shall in
condition, already complied with, cannot
no manner prejudice the heir, even if the
be fulfilled again.
testator should otherwise provide.

Article 874

An absolute condition not to contract a

first or subsequent marriage shall be
considered as not written unless such
 Article 877
If the condition is casual or mixed, it
shall be sufficient if it happens or be
fulfilled at any time before or after the
death of the testator, unless he has
provided otherwise.
Should it have existed or should it
have been fulfilled at the time the
will was executed and the testator
was unaware thereof, it shall be
deemed as complied with.
If he had knowledge thereof, the
condition shall be considered fulfilled
only when it is of such a nature that it
can no longer exist or be complied with
again.
Article 878
A disposition with a suspensive term
does not prevent the instituted heir
from acquiring his rights and
transmitting them to his heirs even
before the arrival of the term.
Article 879
Article 882
The statement of the object of the
institution, or the application of the
property left by the testator, or the
charge imposed by him, shall not be
considered as a condition unless it
appears that such was his intention.
That which has been left in this manner
may be claimed at once provided that
the instituted heir or his heirs give
security for compliance with the wishes
of the testator and for the return of
anything he or they may receive,
together with its fruits and interests, if
he or they should disregard this
obligation.
Article 883
When without the fault of the heir, an
institution referred to in the preceding
article cannot take effect in the exact
manner stated by the testator, it shall
be complied with in a manner most
If the potestative condition imposed
upon the heir is negative, or consists in
not doing or not giving something, he
shall comply by giving a security that he
will not do or give that which has been
prohibited by the testator, and that in
case of contravention he will return
whatever he may have received,
together with its fruits and interests.
Article 880
If the heir be instituted under a
suspensive condition or term, the estate
shall be placed under administration
until the condition is fulfilled, or until it
becomes certain that it cannot be
fulfilled, or until the arrival of the term.
The same shall be done if the heir does
not give the security required in the
preceding article.
Article 881
The appointment of the administrator of
the estate mentioned in the preceding
article, as well as the manner of the
administration and the rights and
obligations of
the administrator shall be governed by
the Rules of Court.
analogous to and in conformity with his
wishes.
If the person interested in the condition
should prevent its fulfillment, without the
fault of the heir, the condition shall be
deemed to have been complied with.
Article 884
Conditions imposed by the testator upon
the heirs shall be governed by the rules
established for conditional obligations in
all matters not provided for by this
Section.
Article 88S
The designation of the day or time when
the effects of the institution of an heir
shall commence or cease shall be valid.
In both cases, the legal heir shall be
considered as called to the succession
until the arrival of the period or its
expiration. But in the first case he shall
 not enter into possession of the What is a condition?
property until after having given
sufficient security, with the intervention
A condition is a future and uncertain fact or
of the instituted heir.
event upon the fulfilment of which the
testamentary disposition is made to depend.
When a testamentary disposition
conditional?
* The testator cannot impose any charge,
condition, or substitution whatsoever upon the
A testamentary disposition is legitimes prescribed in this Code. Should he
conditional, when its effectivity is do so, the same shall be considered as not
subordinated to the fulfilment or non imposed.
fulfilment of a future and uncertain fact
or event.
Exception: That the hereditary estate shall
not be partitioned of a period of twenty {20)
years. Under Article 1083, this power of the
testator to prohibit the division of the estate
applies even to the legitime of the compulsory
heirs.

The rule just stated is a reiteration of the

untouchability of the legitime of the
compulsory heirs.

When is a condition impossible?

A condition is impossible when it is not

possible of realization because it is
either contrary to physical, juridical or
moral laws.

What is the effect if the impossible

conditions and those contrary to law or
good customs are imposed by the
testator?

It shall be considered as not imposed and it

shall not affect the heir (also the legacy or
devisee) even if the testator should otherwise
provide.

There is a presumption in this case that the

condition is due to a mistake or oversight or
merely a whim or caprice of the testator.
Consequently, it must be disregarded as a
matter of justice to the instituted heirs,
devisees or legatees.

X said in his will, "I hereby institute my

friend B, subject to the condition that he
will be able to show his ability to fly in
six (6) months". Suppose B was not able
to comply with the condition, can B
inherit?

Yes. Since it is an impossible condition, it

shall be considered as not imposed and
shall in no manner prejudice the heir.
Even if expressly stated?
The law presumes that the condition were
Yes. The law here presumes that the condition imposed by mere oversight.
is an error or oversight of the testator or a
mere whim or caprice and it would not be just
to give it effect to the prejudice of the heirs,
devisees and legatees.

On the condition that he can make Ms

Nuval pregnant, one (1) year after my
death?

Void. It is contrary to good customs, hence,

the heir may inherit.

On the condition that he will convert to

the Mormon religion within one (1) year
after my death?

Void. Deemed contrary to public policy of

respecting freedom of religion.

Testator said, "I will give Father Pio Yi of

my estate on the condition that he will
marry within two (2) years." Void or
valid?

Void. Contrary to morals and good customs.

On the condition that he will not marry

Ms. Nuval?

Valid, since it is just a relative prohibition.

(Security is need.)

On the condition that he will not marry an

Ilocana?

Valid, since it is just a relative prohibition.

(Security is need.)

X died with a will instituting A, as heir

to U of the entire estate, provided that
before he gets his U share, A must kill B
first. If A did not kill B, can he still
inherit?

Yes. Because the condition which is unlawful is

deemed not imposed in the will.

If the condition imposed in the will is

impossible or contrary to law, what is
the effect?

It is deemed not imposed.

What is the reason for this rule?

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What time shall be considered in
determining whether the condition is
imposed or not?
According to Sanchez Roman, there is only
one time to consider, and that is, the time
when the condition is to be fulfilled.
Rules on Marriage:
1. The prohibition is void only when it
is absolute; that is, when the heir,
devisee or legatee is forbidden to
marry any person at any time or
place or when is required to remain
unmarried or in widowhood.
2. A prohibition on first marriage is
always void and the condition
containing it will be considered as
not written.
3. When the prohibition refers to
subsequent marriages, the general
rule is that, it is void, but it is valid
when imposed upon a widow or
widower by:
a. the deceased spouse; or
b. ascendants of the deceased
spouse; or
When W1 died, H married W2. W1 is the
daughter of A. He is the son of B, while
W2 is the daughter of C. W1 and H had
two (2) children, D and E. W2 and H also
had 2 children, F and G. W2 had a child
from a previous marriage with Y, named
I.
Illustration:
A B C
W1 H W2 y Yes. Mere expression of the will does not
D E F G H widow or the widower.
If W2 died, can she validly impose a
condition in her will that H cannot
contract another marriage as soon as
condition for giving properties to H?
Yes (deceased spouse).
c. descendants of the deceased spouse
4. When the prohibition refers only to
particular persons or to particular
periods or places, it is not absolute
but only relative, and therefore, valid.
However, when by its terms the
prohibition appears to be relative, it
will be understood as absolute, if the
conditions requires by the testator
practically render it impossible for the
heir or legatee to get married at all.
X instituted his daughter A as heir to the
free portion of his estate subject to the
condition that she remains single all her
life. Thereafter, A married B. Can A still
inherit the free portion of the estate?
Yes. Because the institution of A, as an heir to
the free portion of the estate remains valid,
despite her marriage to B. The condition
imposed is considered as not written. Thus,
the validity of the institution of A, as an heir is
not affected.
If the spouse was prohibited to marry
until he or she reaches the age of 80,
is the prohibition valid?
Although the condition is relative, yet it is void
because its effects are very onerous on the
part of the surviving spouse.
Will H not inherit everything, if H contracts
another marriage?
No. Only the free portion if H was also instituted
to it is affected. But H is still entitled to his
legitime.
If W2 said in her will, "I give to H, in
addition to his legitime, the entire free
portion of my estate. However, I wish that
H will not contract another marriage." H
subsequently remarried. Can he inherit?
constitute a prohibition. The prohibition must be
clearly imposed as a condition in the will;
otherwise, it does not affect the rights of the
If W2 said in her will, "I give to H, in
addition to his legitime, the entire free
portion of my estate, subject to the
condition that he will not remarry." H
subsequently remarried. Can he inherit?
No. In this case, the prohibition was clearly
imposed as a condition. (Note: disinheritance
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refers only to the free portion. The ligitime is
not affected. Hence, H may still get his
legitime, but not the free portion.
Who can impose absolute prohibition
with respect to W2?
F,G,C and I.
Both the common children of the deceased
and the surviving spouse and the legitimate
children of the spouse in a prior marriage are
given the right as the law does not make any
distinction. The reason for upholding the
prohibition is the same in either case.
What are the reasons for upholding the
prohibition?
1. Conjugal and family affection - as
a means of securing more fidelity,
even beyond grave.
2. In order to avoid the consequence
that the property coming from the
deceased spouse, should be
enjoyed, through a subsequent
marriage, by a person, who with
more or less offense to the memory
of the deceased, has taken his/her
place in the family.
Why cannot A, D and E have the same
right?
A is the W1's ascendants.
D and E are W1's descendants.
Why cannot B have the same right?
B is H's ascendant.
*It would be absurdity. Why would B prohibit
his own son to marry? There is no need to
protect his own properties anyway.
What is Disposition Captoria?
It is any disposition made upon the condition
that the heir shall make some provision in his
will in favor of the testator or of any other
person.
Is Disposition Captoria valid?
No. It is deemed void. Not only it is the
condition void but the disposition. Hence, the
same has no effect and nobody inherit therein.
It is void because it renders a will a contractual
agreement. Thus it will bind both the parties.
This cannot be because a binding contract is
contrary to the essence of a will which is
revocable.
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The reason for the precept is that
testamentary succession is an act of
liberality, not a contractual agreement.
What is a Modal Substitution or
Institucion Sub Modo?
Besides, to permit it would impair the heir's
freedom of testamentary disposition with
respect to his own property as well as to
allow the testator to dispose of the property
of another after the latter's death.
indications, suggestions, etc., which do not have
a coercive or obligatory force.

It is one where the testator states:
1. the object of the institution; or
2. the purpose of the application of the
property left by the testator upon
the heir; or
3. the charge imposed by the testator
upon the heir.
T said in his will, "I hereby institute X
to one half (Yi) of my estate, but I
order him to use twenty five percent
(2S%) of it for the purpose of building a
clinic for the poor. Is it a Modal
Institution?
In case of doubt, the statement of the testator
should be considered as a mode, which
imposes an obligation, but merely a
suggestion which the heir or legatee may
follow or not.
In the preceding problem, can X demand
for the property immediately after T's
death?
Yes. Provided that he gives a security.

Yes.

In the preceding problem, is the

condition valid?

Yes.

T will give one half (1/2) of he estate to

X, if X uses the income for the
construction of mental hospital. What
kind of institution is this?

It is a modal institution.

T stated, "I will give X one half (1/2) of

my estate, if he passes the bar
examination in his first attempt." Is the
institution modal or conditional?

It is conditional, since, the right of A as well as

its demandability is suspended until he passes
the bar examination in his first attempt.

What if T stated, "I will give X

P10,000.00 (a legacy), one half (1/2) of
the amount of which must be five for
masses, prayers and other pious words."
Is the legacy subject to a mode or
condition?

It is subject to a mode.

*It should not be understood, however, that

every expression of wish of the testator not
constituting a condition should be considered
as a mode. The testator may make

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What is the purpose of the security?
So that the heir/devisee/legatee may comply
with the wished of the testator and for the
return of anything he may receive, together
with its fruits and interests, if he should be
disregard the obligation.
*Those persons, for whose benefit the
obligation has been imposed upon the heir,
may demand its compliance.
What is the difference between a mode
and a condition?
A mode obligates but it does not suspend.
A condition suspends but it does not
obligate.
In general, mode is obligatory, except when
it is imposed for the purpose of the heir or
legatee himself.
The condition is fulfilled in order to acquire a
perfect right as heir or legatee while a
mode is complied with because of being
already an heir or legatee.
*Following the principle that the
testamentary dispositions are generally acts
of liberality, an obligation imposed upon the
heir or legatee should not be considered a
condition, unless, it clearly appears from the
If the condition is casual or mixed, when
shall it be fulfilled?
It shall be sufficient if it happens or be fulfilled
at any time before or after death of the
testator, unless he has provided otherwise.
Should it have existed or should it have been
fulfilled at the time the will was executed and
the testator was unaware thereof, it shall be
deemed as complied with.
If the testator had knowledge thereof, it must
be fulfilled again unless such a condition can
no longer exist or cannot be complied again.
Why after death in cases of potestative
condition?
This is inasmuch as the potestative condition
is to be performed by the heir, devisee or
legatee in obedience to the wishes of the
testator. Since, the testator may still change
his will at any time before the moment of his
death, there is really no testamentary
will itself, that such was the intention of the
testator.
In case of doubt, the institution should be
considered as modal and not conditional.
Kind of Condition:
1. Potestative Condition - one which
depends exclusively upon the will of
the heir, devisee or legatee and
must be performed by him
personally.
2. Casual - one that does not depend
upon the will of the heir, devisee or
legatee, but upon chance and/or upon
the will of a third person.
3. Mixed - when it depends jointly upon
the will of the heir, devisee or legatee
and upon chance/ or the will of a third
person.
Suppose that T imposes a condition
potestative in his will, when must it be
fulfilled?
After T's death, except, when it has already
been fulfilled and is of such a nature that it
cannot be fulfilled again.
*The aforementioned rule is applicable
only when the potestative condition is of a
positive not of a negative character.
disposition that the heir, devisee or legatee
should obey until such death.
What about casual or mixed?
In cases of casual or mixed conditions, where
the will of the heir, devisee or legatee is limited
or without intervention, it is immaterial to the
testator when the condition happens, unless,
he knew at the time he made his will, that the
condition already happened, it is presumed that
he wants it to be fulfilled anew. But, despite his
will, the condition will be considered fulfilled, if
it cannot be repeated or if it cannot exist anew.
X instituted A as his heir, with a condition
that A must get married first to B. At the
time of the execution of the will, A and B
were already married. But this fact was
unknown to X. What is the effect?
The condition shall be deemed to have been
complied with.
What if in the preceding problem, X
instituted A as an heir, subject to the
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condition that he must first get married,
when in fact, X is well aware that at the
time of the execution of the will, a is
already married to B. What is the effect?
It is evident in this case that the condition is of
such nature that it cannot be complied with
again. Consequently, it is considered fulfilled.
However, if A becomes a widower before the
death of X, then the general rule will still have
to be applied. In other words, in order to be
entitled to the inheritance, A must get
married again.
What is a suspensive condition as applied
to succession or to a testamentary
disposition?
It is a condition upon the fulfillment of which,
successional rights arising from an institution
of heir or from a devise or legacy are acquired.
* Article 879 refers to potestative conditions
which are negative in character. In other
words, it refers to those potestative
conditions, which consists in not doing or not
giving something, as distinguished from
positive conditions, which consist in doing or
giving something.
According to Manresa, if the potestative
condition is negative in character there is
neither reason nor motive for delaying the
delivery of the property to the heir, devisee or
legatee does not have to depend upon any act
of the latter nor upon the fulfillment of any
other requisite.
The heir, devisee or legatee whose institution
is subject to a negative potestative condition,
acquires a right, as a matter of course,
without any limitation other than that of not
doing or not giving something, upon the death
of the testator. However, in order that such
heir, devisee or legatee shall not perform or
give that which is prohibited, he is required to
give a security or bond. In case the mandate
or order of the testator is violated, the heir,
devisee or legatee shall return whatever he
may have received, together with its fruits
and interest. In case he cannot, the security
shall have to answer for deficiency.
Until the condition is violated he shall
continue in the possession and enjoyment
of the property.
T said in his will, " I hereby give one
half (1/2) of my estate to M subject to
the condition that for one (1) whole
year after my death, he will not smoke."
Is the condition valid?
Yes. It is a negative potestative condition.
In the preceding problem, can M
immediately demand the property after
T's death?
Yes. He gets the inheritance right away, but he
must first give a security to guarantee
(caution muciana) that he would not smoke
for one (1) year after T's death.
In case he smokes within the said period, he
should return whatever he may have receive,
together with its fruits and interest.
If the condition is negative
potestative condition and is an
What is a resolutory condition as applied
impossible condition, is there a need
to succession or to a testamentary
for a bond?
disposition?
(Transcriber's Opinion)
It is a condition upon the fulfillment of which
Hindi na siguro. Because such a condition
rights already acquired by virtue of an
is deemed not written. Consequently, if it
is deemed not written because it is anpage
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impossible condition, then there is no
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need to comply with the condition and no
ALTERNATIVE ACTION
need for a bond.
The instituted heir, devisee or legatee will
inherit the property without filing a bond
institution of heir or of a devise or legacy are
extinguished or lost.
What is the difference between a
suspensive and a resolutory
condition?
In a suspensive condition the effectivity of the
institution of heir, devise or legacy depends
upon the fulfillment of the condition, while in
resolutory condition, the testamentary
disposition is already effective, but subject to
the threat of extinction or being lost.
If the institution is subject to a
suspensive condition, what is the
nature of the right of the instituted
heir, devisee or legatee if the
condition is not yet fulfilled?
It is mere hope and expectancy. Thus, pending
the fulfillment of the suspensive condition, the
heir, devisee or the legatee cannot yet
demand for the delivery of the inheritance.
On the condition, that M will become a
lawyer five (S) years after my death. Is
the condition valid?
Yes. It is a suspensive condition.
Can M immediately demand the property
after T's death?
No. When the institution is under suspensive
condition, the right of the heir is not
transmitted to him, until the condition is
fulfilled.
In the preceding problem, can M not
demand the property, even if he posts a
bond?
Yes. It is immaterial, because the filing of the
bond is not even required.
What will happen to the property?
Since between the death of the testator and
the happening of the condition, it is uncertain
whether the heir would get the property or
not the property will be placed under
administration.
T said in his will, "I hereby give M one
half (1/2) of my estate subject to the
condition that he will acquire it only after
five (S) years after my death." Can M
immediately demand for the property?
No. Because it is subject to a suspensive term.
What about if M is willing to post a bond?
It is immaterial because filing of the bond is
not even required.
What will be done to the property?
It shall be placed under usufructuary of the heirs.
In the preceding problem, are the legal
heirs required to post a security?
Yes.
T said in his will, "I hereby give one half
(1/2) of my estate to M, but only for five
(S) years after my death. Is this valid?
Yes. It is subject to a resolutory term/period.
In the preceding problem, is the filing of
bond by the legal heirs required?
No.
In the immediate preceding problem, why
the difference?
Because in an institution ex-die (suspensive
term), the legal heirs, who are called to the
property until the day arrives, are not merely
administrators who must account; but,
usufructuaries who have the right to enjoy the
fruits of the property.
* With respect to terms and conditions
1.Suspensive condition, apply Article 885 not
Article 888.
2.Ex die (suspensive term) - when the
institution is from a day certain. The testator
may designate a person, who will enjoy the
property, until the day comes when the
instituted heir shall take it.
3.In diem (resolutory term) - when the
institution is to a day certain. The testator
may appoint another to succeed the
instituted heir.
Hence, Article 885 should be considered
merely as suppletory. Apply it only, when
the testator has not provided otherwise.
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Why is a legal heir required to post a
bond in suspensive and not in resolutory
conditions under Article 88S?
If it involves a suspensive condition, a bond is
necessary because the legel heir may alienate
the property causing injury to the instituted
heir.
3.In case of mixed conditions
Since the will of a third party intervenes, a
distinction should be made. If the heir, devisee
or legatee has done everything within his power
towards the fulfillment of the condition, but, this
is not fulfilled because of the failure of the third
party to comply with what is expected of him:

If it is a resolutory condition, there is no need

for the legal heir to post a bond because after
the resolutory condition is fulfilled or has
occurred, ownership is consolidated on the
legal heirs. So there is no need for protection.

T said in his will, "I hereby give one half

(1/2) of my estate to M, subject to the
condition that is able to grow his hair up
to his knees within a period of four (4)
years." T's closest relative cut-off the
hair of M, so that it reaches only his
waist. Can M inherit?

Yes.

"Subject to the condition that M will

marry Ms. Vizconde within five (S)
years." Suppose Ms. Vizconde refused,
can M inherit?

No. Because the inheritance is subject to the

occurrence of a mixed condition.

In the preceding problem, suppose Ms.

Vizconde is T's nearest relative, can M
inherit?

Yes. In this case, it is not the fault of M, that

the condition did not occur because Ms.
Vizconde prevented it from happening, so
that, she will inherit more.
*Constructive compliance

1.In case of potestative conditions

Since, the performance does not depend on

the will of the heir, devisee or legatee, there
must always be fulfillment as a fact or actual
compliance.

2.In case of potestative conditions

It may happen that the heir, devisee or legatee

is willing to obey the wishes of the testator,
doing all that is in his power towards the
realization of the condition, which, however, is
not fulfilled for reasons nor imputable to the
fault or neglect of such heir, devisee or
legatee. In such case, the condition should be
considered as fulfilled.

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a.The condition is deemed fulfilled, if such
third party has an interest in the fulfillment
or non fulfillment of the condition.
Article 886 to
Article 914
Legitime
Article 886
Legitime is that part of the testator's
property which he cannot dispose of
because the law has reserved it for
certain heirs who are, therefore, called
compulsory heirs.
Articke 887
b.Otherwise, the condition cannot be
considered as fulfilled, and the institution
is annulled.
The legitime of legitimate children and
descendants consists of one-half of the
hereditary estate of the father and of the
mother.
The latter may freely dispose of the
remaining half, subject to the rights of
illegitimate children and of the
surviving spouse as hereinafter
provided. (808a)
Article 889

The legitime of legitimate parents or

The following are compulsory heirs:
ascendants consists of one-half of the
hereditary estates of their children and
(1) Legitimate children and descendants.
descendants, with respect to their
legitimate parents and
ascendants;

(2) In default of the foregoing,

legitimate parents and ascendants, with
respect to their legitimate children and
descendants;

(3) The widow or

widower;

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

(S) Other illegitimate children referred

to in Article 287.

Compulsory heirs mentioned in Nos. 3, 4,

and S are not excluded by those in Nos. 1
and 2; neither do they exclude one
another.

In all cases of illegitimate children, their

filiation must be duly proved.

The father or mother of illegitimate

children of the three classes mentioned,
shall inherit from them in the manner
and to the extent established by this
Code.

Article 888

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The children or descendants may
freely dispose of the other half,
subject to the rights of illegitimate
children and of the surviving spouse
as hereinafter provided.
Article 890
The legitime reserved for the legitimate
parents shall be divided between
them equally; if one of the parents
should have died, the whole shall pass
to the survivor.
If the testator leaves neither father nor
mother, but is survived by ascendants
of equal degree of the paternal and
maternal lines, the legitime shall be
divided equally between both lines. If
the ascendants should be of different
degrees, it shall pertain entirely to the
ones nearest in degree of either line.
Article 891
The ascendant who inherits from his
descendant any property which the
latter may have acquired by gratuitous
title from another ascendant, or a
brother or sister, is obliged to reserve
such property as he may have acquired
by operation of law for the benefit of
relatives who are within the third
degree and who belong to the line from
which said property came.
Article 894
If the testator leaves illegitimate
children, the surviving spouse shall be
entitled to one-third of the hereditary
estate of the deceased and the
illegitimate children to another third.
The remaining third shall be at the free
disposal of the testator. (n)
Article 89S
The legitime of each of the
acknowledged natural children and each
of the natural children by legal fiction
shall consist of one-half of the legitime
of each of the legitimate children or
descendants.
The legitime of an illegitimate child
who is neither an acknowledged
natural, nor a natural child by legal
fiction, shall be equal in every case to
Article 892
If only one legitimate child or
descendant of the deceased survives,
the widow or widower shall be entitled
to one-fourth of the hereditary estate. In
case of a legal separation, the surviving
spouse may inherit if it was the
deceased who had given cause for the
same.
If there are two or more legitimate
children or descendants, the surviving
spouse shall be entitled to a portion
equal to the legitime of each of the
legitimate children or descendants.
In both cases, the legitime of the
surviving spouse shall be taken from
the portion that can be freely disposed
of by the testator.
Article 893
If the testator leaves no legitimate
descendants, but leaves legitimate
ascendants, the surviving spouse shall
have a right to one-fourth of the
hereditary estate.
This fourth shall be taken from the free
portion of the estate.
Article 899
four-fifths of the legitime of an
acknowledged natural child.
The legitime of the illegitimate children
shall be taken from the portion of the
estate at the free disposal of the testator,
provided that in no case shall the total
legitime of such illegitimate children
exceed that free portion, and that the
legitime of the surviving spouse must first
be fully satisfied.
Article 896
Illegitimate children who may survive with
legitimate parents or ascendants of the
deceased shall be entitled to one-fourth of
the hereditary estate to be taken from the
portion at the free disposal of the testator.
Article 897
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When the widow or widower survives
with legitimate children or
descendants, and acknowledged
natural children, or natural children by
legal fiction, such surviving spouse
shall be entitled to a portion equal to
the legitime of each of the legitimate
children which must be taken from that
part of the estate which the testator can
freely dispose of.
Article 898
If the widow or widower survives with
legitimate children or descendants, and
with illegitimate children other than
acknowledged natural, or natural children
by legal fiction, the share of the
surviving spouse shall be the
same as that provided in the preceding
article.
When the widow or widower survives
with legitimate parents or ascendants
and with illegitimate children, such
surviving spouse shall be entitled to one-
eighth of the hereditary estate of the
deceased which must be taken from the
free portion, and the illegitimate children
shall be entitled to one-fourth of the
estate which shall be taken also from the
disposable portion. The testator may
freely dispose of the remaining one-
eighth of the estate.
Article 900
If the only survivor is the widow or
widower, she or he shall be entitled to
one-half of the hereditary estate of the
deceased spouse, and the testator may
freely dispose of the other half.
If the marriage between the surviving
spouse and the testator was solemnized
in articulo mortis, and the testator died
within three months from the time of the
marriage, the legitime of the surviving
spouse as the sole heir shall be one-third
of the hereditary estate, except when
they have been living as husband and
wife for more than five years. In the
latter case, the legitime of the surviving
spouse shall be that specified in the
preceding paragraph.
Article 901
When the testator dies leaving
illegitimate children and no other
compulsory heirs, such illegitimate
children shall have a right to one-half of
the hereditary estate of the deceased.
The other half shall be at the free
disposal of the testator.
Article 902
The rights of illegitimate children set
forth in the preceding articles are
transmitted upon their death to their
descendants, whether legitimate or
illegitimate.
Article 903
The legitime of the parents who have
an illegitimate child, when such child
leaves neither legitimate
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 descendants, nor a surviving spouse,
nor illegitimate children, is one-half
of the hereditary estate of such
illegitimate child. If only legitimate or
illegitimate children are left, the
parents are not entitled to any
estate of the child, and that of the
surviving spouse also one-fourth of the
estate.
Article 904
The testator cannot deprive his
compulsory heirs of their legitime,
except in cases expressly specified by
law.
which the testator could have disposed
Neither can he impose upon the
same any burden, encumbrance,
condition, or substitution of any kind
whatsoever.
legitime whatsoever. If only the widow
or widower survives with parents of
the illegitimate child, the legitime of
the parents is one-fourth of the
hereditary
by the testator that are subject to
collation, at the time he made them.
Article 909
Donations given to children shall be
charged to their legitime.
Donations made to strangers shall be
charged to that part of the estate of
by his last will.

Article 90S

Every renunciation or compromise as

regards a future legitime between the
person owing it and his compulsory heirs
is void, and the latter may claim the
same upon the death of the former; but
they must bring to collation whatever
they may have received by virtue of the
renunciation or compromise.

Article 906

Art. 906. Any compulsory heir to whom

the testator has left by any title less
than the legitime belonging to him may
demand that the same be fully satisfied.

Article 907

Testamentary dispositions that impair or

diminish the legitime of the compulsory
heirs shall be reduced on petition of the
same, insofar as they may be inofficious
or excessive.

Article 908

To determine the legitime, the value of

the property left at the death of the
testator shall be considered, deducting
all debts and charges, which shall not
include those imposed in the will.

To the net value of the hereditary estate,

shall be added the value of all donations
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 Insofar as they may be inofficious or
may exceed the disposable portion,
they shall be reduced according to the
rules established by this Code.
Article 910
Donations which an illegitimate child
may have received during the lifetime
of his father or mother, shall be
charged to his legitime.
Should they exceed the portion that
can be freely disposed of, they shall
be reduced in the manner prescribed
by this Code.
Article 911
After the legitime has been
determined in accordance with the
three preceding articles, the reduction
shall be made as follows:
(1) Donations shall be respected as
long as the legitime can be covered,
reducing or annulling, if necessary,
the
devises or legacies made in the will;
(2) The reduction of the
devises or legacies shall be pro
rata, without any distinction
whatever.
Article 913
If the heirs or devisees do not choose to
avail themselves of the right granted by
the preceding article, any heir or devisee
who did not have such right may exercise
it; should the latter not make use of it,
the property shall be sold at public
auction at the instance of any one of the
interested parties.
Article 914
The testator may devise and bequeath
the free portion as he may deem fit.
What is a legitime?
Legitime is the part of the testator's property,
which he cannot dispose of, because the law
has reserved it for certain heirs who are,
therefore, called compulsory heirs.
If the testator has directed that a certain
devise or legacy be paid in preference to
others, it shall not suffer any reduction
until the latter have been applied in full
to the payment of the legitime.
(3) If the devise or legacy consists of a
usufruct or life annuity, whose value
may be considered greater than that of
the disposable portion, the compulsory
heirs may
choose between complying with the
testamentary provision and delivering
to the devisee or legatee the part of the
inheritance of which the testator could
freely dispose.
Article 912
If the devise subject to reduction
should consist of real property, which
cannot be conveniently divided, it shall
go to the devisee if the reduction does
not absorb one-
half of its value; and in a contrary case,
to the compulsory heirs; but the former
and the latter shall reimburse each other
in cash for what respectively belongs to
them.
The devisee who is entitled to a legitime
may retain the entire property,
provided its value does not exceed that
of the disposable portion and of the
share pertaining to him as legitime.
What are the kinds of legitime?
1.Fixed - if the aliquot part of the testator's
estate, to which a certain class of compulsory
heirs are entitled, is always the same, whether
they survive alone or with other compulsory
heirs.
2.Variable - if the aliquot part changes,
depending upon whether they survive alone
with other classes of compulsory heirs.
Define compulsory heirs?
Compulsory heirs are those heirs, for whom
the law has reserved that part of the
testator's estate known as the legitime. As
such, the testator cannot disregard them.
What are the kinds of compulsory heirs?
1.Primary - those who have precedence over
and exclude other compulsory heirs.
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 3. the widow or widower
2.Secondary - those who succeed only in 4. illegitimate children
the absence of the primary heirs (legitimate
parents and ascendants). Who are the compulsory heirs in the direct
line?
3.Concurring - those who succeed together
with the primary or the secondary 1. legitimate children and descendants
compulsory heirs (illegitimate children and 2. illegitimate children
surviving spouse). 3. in default of the foregoing, parents
by nature, and
Who are the compulsory heirs if the 4. the widow or widower
testator is a legitimate person?
Are there any compulsory heirs in the
Under Article 887, his compulsory heirs are direct line?
the following:
No.
1. legitimate children and descendants
2. in default of the foregoing, Is a brother a compulsory heir?
legitimate parents and ascendants
No. A brother is neither an ascendant nor
descendant in the direct line. A brother
belongs to the collateral line.

What about an uncle?

No. An uncle belongs to the collateral line.

A grandfather?

He becomes a compulsory heir, in default of

an ascendant (parents).

Is an illegitimate grandfather a compulsory

heir?

No.

*Presence of descendants excludes the

ascendants. Presence of children excludes
the descendants. The same rule applies to
parents and ascendants.

Legitimate children or descendants

includes:

1. legitimate children or descendants

proper
2. legitmated childred or descendant, and
3. adopted children

What is the extent of the successional

rights of adopted children?

As a rule, adopted children are entitled to

same successional rights as legitimate
children.

*If the adopter dies before his legitimate

parent or ascendant or is incapacitated to
inherit from such parent, ascendant or
descendant, unlike a legitimate child, the
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adopted child cannot inherit by right of representation from the parent or
ascendant.

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What is the basis of the
aforementioned rule?
The basis is that, adoption merely creates a
relationship similar to that of legitimate
paternity and filiation, between the adopter
and the adopted child. It does not create any
relationship, between the adopted child and
the legitimate relatives of the adopter.
1.Surviving Alone
One half (1/2) of the estate, unless, the
marriage between the surviving spouse and the
testator was solemnized in articulo mortis and
the testator died within three (3) months from
the time of such marriage, in which case, the
legitime of the surviving spouse is one third
(1/3) of the

Is a widower a compulsory heir?

Yes. Under the present law, a widow or a

widower is now entitled to all the rights of a
primary compulsory heir.

Is a surviving spouse a compulsory

heir of her or his parent-in-law
under Article 887 (3)?

No. The aforesaid provision refers to the

estate of the deceased spouse, in which case,
the surviving spouse is a compulsory heir. It
does not apply to the estate of the parents-
in-law.

How does the law classify legitimate

parents and descendants as heirs?

They are classified as secondary compulsory

heirs, because they cannot inherit from their
child or descendants , if
they concur with legitimate children or
descendants of the latter.

Can legitimate parents or ascendants be

excluded by the presence of the adopted
children?

Yes. As a rule, adopted children are entitled to

the same successional rights as legitimate
children (Domestic Adoption Act).

How can you classify illegitimate

parents as heirs?

They are secondary compulsory heirs because

they cannot inherit from the illegitimate child
if they concur with children or descendants of
the latter, whether legitimate of illegitimate.

How do you classify an adopter as an

heir of the adopted?

Secondary compulsory heir if the natural

parents are dead, otherwise, they are
excluded.

Summary of the legitime of the

surviving spouse:

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 estate, except, when they have been living
as husband and wife for more than five (5)
years, in which case, the legitime of the
surviving spouse is again one half (1/2) of
the estate.
One eight (1/8) of the estate.
Husband died, survived only by his wife.
Legitime?

2.Surviving with Legitimate Descendants
One fourth (1/4) of the estate, if there is only
one (1) child. The same of that of each child,
if there are two (2) or more children.
3.Surviving with Ascendants
One fourth (1/4) of the estate.
Wife - one half (1/2) of the estate
Free Portion - one half (1/2) of the estate
In the preceding problem, what if the
marriage between husband and wife was
solemnized in articulo mortis, and the
testator died within three (3) months
from the time of such marriage, what is
the legitime of the wife?

4.Surviving with Illegitimate Children
One third (1/3) of the estate.
5.Surviving with Legitimate Descendants
and Illegitimate Children
Wife - one third (1/3) of the estate
Free Portion - two thirds (2/3) of the estate
Why is it in the preceding problem, the
wife only gets one third (1/3) as
legitime?

One fourth (1/4) of the estate, if there is only
one (1) legitimate child. The same as that of
each legitimate child, if there are two (2) or
more legitimate children.
6.Surviving with Legitimate Ascendants
and Illegitimate Children
What if the spouses lived for five (S)
years, before the marriage in articulo
mortis, what is the legitime of the
surviving spouse?
Wife - one half (1/2) of the estate
Free Portion - one half (1/4) of the estate
In order to prevent the possibility that the
marriage was contracted for financial gain.
The law considers such marriage as scandalous
and for the sole purpose of inheriting form the
sick spouse.
What about if W married H on January 01,
2000 because H was dying of cancer. On
January 02, 2000, H died of cardiac
arrests? What is the legitime of W?

What is the reason in the preceding

problem?

The law considers that there has been

affection for such a length of time, as is
sufficient to erase suspicion that the marriage
has been contracted exclusively for inheriting.

*The rule on articulo mortis will apply, when

the deceased is the spouse, who was at the
point of death at the time of marriage; hence,
it will not apply when the spouse who was at
the point of death, at the time of the
marriage, is the one who survives, and the
other, is the one who dies within three {3)
months after the marriage.

H married W last January 01, 2000. On

January 02, 2000, H died. What is the
legitime of W?

One half (1/2). There is no indication that the

marriage was in articulo mortis.
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 a) Survivors are 1LC and SS LP - one half (1/2) of the estate
IC - one fourth (1/4) of the
1LC - one half (1/2) of estate SS - one eight (1/8)
the estate SS - one of the estate
fourth (1/4) of the
estate Why only one eight (1/8) for the SS?

Intended to punish the SS for those

b.2LC and SS sleepless nights, that he should find
comfort with another.
1LC - one half (1/2) of
the estate 1LC - one d.LP and IC
half (1/2) of the estate
SS - same share as LP - one half (1/2) of the estate
one LC IC - one fourth (1/4) of the estate

c. LP, IC and SS e.2LC, IC and SS

One half (1/2). The dying spouse must die of estat 1LC - one half (1/2) of one half
cancer because it is the one under
consideration. In this case, H died of cardiac e (1/2) of the 1LC - one half (1/2)
arrest, hence, the one third (1/3) rule will not
apply. estat of one half (1/2) of the

In the preceding problem, what about if e SS - same share as 1LC

H died of cancer, what is the legitime of IC - one half (1/2) of the share of 1LC
W?

* The share of IC {one half {1I2] of the share of

One half (1/2). 1LC), is not an iron clad rule. IC may get less
than one half {1I2) of the legitime of 1LC
Give the legitime of the following
X is survived by two (2) legitimate
survivors. Legend: children, A and B, his wife W and six (6)
illegitimate children, C, D, E, F, G and
LC - Legitimate H. The value of the net estate is
Children SS - P120,000.00. Distribute.
Surviving Spouse
LP - Legitimate Parent/s x W
IP/A - Illegitimate Parent/s or C
Ascendant/s AC - Adopted D A B
Child/ren E
LPGF - Legitimate Paternal G
F
Grandfather LPGM - H
Legitimate Paternal
Grandmother LMGF - A - Yi of P60,000.00 =
Legitimate Maternal P30,000.00 B - Yi of P60,000.00
Grandfather LMGM - = P30,000.00
Legitimate Maternal SS - same share as ILC = P30,000.00
Grandmother

* Illegitimate grandparents are not Total = P90,000.00

compulsory heirs.
In this case, the Net Estate is P120,000.00 -
P900,000.00 = P30,000.00. The remaining C = P5,000.00
amount is P30,000.00 for the illegitimate D = P5,000.00
children to divide (P30,000.00/6 = P5,000.00) E = P5,000.00
F = P5,000.00
G = P5,000.00
Hence, H = P5,000.00
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 l. LC and IC
* Note:
LC - one half (1/2)
1.In no case shall the total legitime of the IC - one half (1/2) of the share of LC,
illegitimate children exceed the free portion, hence, one fourth (1/4)
and the legitime of the surviving spouse
must first be give, before giving any to the m. SS and full blood brothers
illegitimate children.
SS - one half (1/2)
Full blood brothers - one half (1/2)

n. IP and SS

IP - one fourth
(1/4) SS - one
fourth (1/4)

o. IC and SS

IC - one third
(1/3) SS - one
third (1/3)

2.The share of the legitimate children cannot be p. L

reduced due to preference. The share of the P LP - one half (1/2)
illegitimate children are reduced first. only

3.The presence of several illegitimate children k. LP, SS and AC

results to the division of the legitime equally
among them, if such exceeds the free LP - excluded
portion. AC - treated as LC, hence, one half
(1/2)
f. SS and IC?

SS - one third (1/3) of the

estate IC - one third (1/3)
of the estate

g. IP/A and IC?

IP/A - excluded
IC - one half of the estate

h. IP/A and SS?

IP/A - one fourth

(1/4) SS - one
fourth (1/4)

i. AC and LP

AC - one half (1/2)

LP - excluded

j. AC and LC

AC - one half (1/2) of one half (1/2)

of the estate LC - same share as the
LC

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q.Illegitimate grandparents and SS LMGM -
P15,000.00
Illegitimate grandparents are not entitled to
any legitime because inheritance is only up s. LPGF, LPGM and LMGF
to the illegitimate parents. Illegitimate
grandparents are not considered as LPGF -
compulsory heirs. P15,000.00
LPGM -
SS gets one half (1/2) of the estate, P15,000.00
except if articulo mortis rule applied. LMGF -
P30,000.00
r. Net Estate is P120,000.00. Survivors
are LPGF, LPGM, LMGF and LMGM? *If the testator leaves neither father nor
mother, but is survived by ascendants of
LPGF - equal degree of the paternal and maternal
P15,000.00 lines, the legitime shall be divided equally
LPGM - between both lines. If the ascendants should
P15,000.00 be different degrees, it shall pertain entirely to
LMGF - the one's nearest in degree to either lines.
P15,00000
How shall the legitime (1/2 of the estate)
reserved for the legitimate parents be Yes. One way. In succession, it is usually two-
divided? way.

It shall be divided between them equally. Application of Article 88S

In the preceding problem, what if one of If the condition is condition is subject to

the parents died already? suspensive condition:

The whole (1/2) of the estate shall pass to Time of death 5 years
surviving spouse.

A has an illegimate child named B. B on Legal heirs to give

the other hand, has an illegitimate child
named C. security If legal heirs cannot

Illustration: give security:

A 1. LC/D
2. LP/A
3. ILC/D
B 4. SS
5. B/S

In the preceding problem, what if one of

the parents have died already?

No. Because he is excluded by C, the

illegitimate child of B.

In the preceding problem, what if C dies,

will A be able to inherit from C?

No. Illegitimate ascendants are not

considered as compulsory heirs, unless, A
is instituted as a voluntary heir.

In the preceding problem, if A dies, will

C be able to inherit from A?
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 th
6. Collateral, 5 Degree
7. State
Pero sabi ni Jurado, if the heir cannot
give security, follow Artcile 888.
What is Reserva Troncal?
It may be defines as the reservation by
virtue of which an ascendant who inherits
from his descendant any property which the
latter may have acquired by gratuitous title
from another ascendants or a brother or a
sister, is obliged to reserve such property as
he may have acquired by operation of law for
the benefit of relatives who are within the
third degree and who belong to the line from
which the said property came.
What is the purpose of Reserva Troncal?
To return property, which by accident will go
to another family. Hence, it's purpose is to
return the property to the family where it
originally came from.
What are the requisites of Reserva
Troncal? When is there a Reserva
Troncal?
1. The property should have been
acquired by operation of law by
an ascendant from his
descendant upon the death of
the latter.
Reservista - (G) obliged to reserve
Reservatio - beneficiaries
Who are reservation?
rd
A relative within the third (3 ) degree from
the propositus.
In the preceding problem, why from the
propositus?
It is from the propositus that reservatios
inherit/succeed.
*There is only one reserve when property
strays by operation of law to the reservista.
(b) must belong to the same line where the
In the preceding problem, who are
rd
relatives by blodd, within the third (3 )
degree?
A, B, E, C, D and H.
Are all aforementioned qualified to be
reservatios?
2. The property should have been
previously acquired by gratuitous
title by the descendant from another
ascendant or from a brother or a
sister.
3. The descendant should have died
without any legitime issue in the
direct descending line, who could
inherit from him.
A donated a parcel of land to I. I, a
bachelor, died intestate. The land was
inherited by G.
Illustration
A B C
DE F
GH
I
In the illustration, if not for Article 891,
who will inherit upon G's death?
By ordinary succession, C and D will inherit the
property. If this happens, the parcel of land,
which belongs to the family of A will forever
be lost to the family of C and D.
Origin - (A) - source of the property
Propositus - (I) - to whom the land was
given
No.
Who are qualified to be reservatios?
A and E.
*A, who is the origin of the property, can qualify
as reservation. There is no prohibition under
the law.
What about B?
He cannot be a reservation. In order to be
reservatio, one must be (a) a relative of P
(propositus in this case is I) and
property came. In this case B, does not belong
to the same line (A's line) where the property
came from. (Asawa lang si B.)
Why?
The purpose of the law is to return the property,
which by accident will go to another family. In
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this case, if B qualifies as a reservation, and 2. Rule of preference
assuming that A died ahead of B,
then it is possible that the property will go to Ascending/descending line is
B's new family. preferred over collateral relatives
A, therefore, is entitled to the land
As aforestated, A and E qualify as
reservations. Who between them is What about if the property donated by A
entitled to the land? to I, was in fact previously donated by D
to A? Will there be a Reserva Troncal?
Observing the rules of succession:
Yes. It is immaterial where A got the property.
1. The rule of proximity Besides, our inquiry ends with A.
nd
A - second (2 ) degree In the preceding problem, who is entitled
rd
from I E - third (3 ) to the land?
degree from I
Still A.

What about if I sold the land to Z for

PSM. Two (2) days after, I died. Hence, G
inherited the PSM. Will there be a
reserva troncal with respect to the PSM?

No. There can be no substitution in reserva

troncal. The property acquired by the
propositus must be the same property
acquired by the reservista.

Hence, there can be no reserva troncal

because the land was substituted with money.

Is I a mere usufructuary?

No. He can even dispose the property.

Is G (reservista) a mere usufructuary?

He is the absolute owner subject to a resolutory

condition.

Is G a mere trustee?

No. G acquires the property subject to a

resolutory condition, that there exist
reservatios at the time of his (G's) death.

May the reservation sell the property at G's

lifetime?

Yes. But it is subject to a suspensive condition

that such reservatios survive the reservista
(G).

If both G (reservista) and A (reservation)

sold the land to different owners, who
among the two (2) buyers has a better
right?

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 Otherwise, A's buyer has a better right over the
It depends on who is going to survive the land.

other (G or A) If G survives A, then G's

buyer has a better right.

*Two (2) kinds of transfer in Reversa
Troncal?
st Propositus
1. First (1 ) transfer - from
ascendants/ brother/ sister to
OR L Figure
propositus by gratuitous title.
nd Ascendant
2. Second (2 ) transfer - from
propositus to ascendant
reservista by operation of law. Brother Propositus
When is the transfer gratuitous?

If the transfer is free or without monetary or

other considerations (example: donation or
succession testate or intestate).

When is the transfer by operation of

law?

If the transfer occurs by source of law or as

mandated by law (example: intestate
succession and testamentary succession with
respect to the legitime.

Why would the presence of descendants

prevent reserva?

Where there are descendants, there is no way

that the ascendant can inherit the property by
operation of law.

Can an origin be a reservista?

No. Article 891 provides that it must be

another ascendant.

*The origin however, may be reservation.

There is nothing in the law, which prohibits,
the source from being a reservation.

To determine whether reserve troncal exists,

look for the two {2) figures, either V or capital
letter L. If you see either of these two {2)
figures, chances are, there exist a reserve
tronca.

Illustrati

on: V

Figure

Ascendant Ascendant

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A donate a land to I, worth PSM. During
I's lifetime, he acquired properties
from other sources worth PSM also.
When I died, G inherited all the
properties of I. Assuming that Reversa
Troncal exist:
a. How will you determine the
property subject to the Reserva
Troncal?
P5M - Land property donated
by A to I P5M - Properties of I
from other sources.
P10M - G's inheritance
Since, I died without a will, we do not apply
Reserva Maxima and Reserva Minima. The
whole land worth P5M is a reservable
property. It is covered by reserva troncal
because the entire estate passed by
operation of law to G.
b. What about if I died with a will?
P5M - Land property donated
by A to I P5M - Properties of I
from other sources.
Illustration:
D E F RT?
A B
CGH I J K In the preceding problem, assuming that
L reservatios?
M N OP Q R T U
V S
W against the brothers and sisters of the half-
In the preceding illustration, D donated a
parcel of land to J. J died intestate. The
entire inheritance, including the land
donated by D to J was inherited by C, the
mother of
J.Is there a reversa troncal?
No. Because D is not an ascendant of J. Had D
been a brother or sister, yes.
P10M/2 - P5M
Reserva Maxima - so much as the
reservable property of the entire land
contained in the legitimate is subject to
reserve tronca. Hence, under this rule, the
entire land donated by A to I is subject to
reserve.
Reserva Minina - all of the property of I
passed to G partly by will and partly by
operation of law.
One half (1/2) of land passed by will.
One half (1/2) of land passed by operation of law.
One half (1/2) of other properties passed
by will. One half (1/2) of other properties
passed by will.
Hence, under the rule of reserva minima,
only one half (1/2) of the land, donated by
A to I is a reservable property.
*Reserva Maxima and Reserva Minima do not
apply if the testator died without a will.
In the preceding problem, what if it was E
who donated the land to J? Will there be
Yes. Because E is now an ascendant of J. All the
requisites for reserve troncal are present.
E has already passed away, who are the
G,H,I,K and L
Will they divide the property equally?
No. In this case, we should apply the full
blood/half blood rule. Brothers and sisters of
the full blood will receive a double share as
blood.
Hence, the distribution
is: K = 2
L = 2
G = 1
H = 1
I = 1
7
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 K = 2/7
L = 2/7 If the nephews and nieces do not survive
G = their uncles or aunts, there is no right of
1/7 representation. They inherit in their own
H = right.
1/7
I = What about if all of the brothers and
1/7 sisters of J (G, H, I, K and L) died?

7/7 M, N, O, P, Q, R, T, U and V will qualify as

In the preceding problem, what if G
died? What will happen to his share?
The 1/7 share of G will go to M by right of
representation.
reservatios.
In this case, they inherit in their own right but,
the full and half-blood rule will still apply.
Hence, the distribution is as

What about if K died also? follows: M = 1

N = 1
The 2/7 share of K will go to T and U by O = 1
right of representation. P = 1
Q = 1
*General Rule - There is no right of R = 1
representation in the collateral lines T = 2
U = 2
Exceptions - Nephews, nieces and only V = 2
if, they survive or concur with at least one
{1) uncle or aunt. 12
M = What are the obligations of the Reservista?
1/12 N
= 1/12 1. to make an inventory of all reservable
O = property;
1/12
P = 1/12 2. to appraise the value of all reservable
Q = movable property;
1/12 R
= 1/12 3. to annotate in the Registry of Property
T = the reservable character of all
2.12 reservable immovable property;
U =
2/12 V 4. to secure by mortagage:
= 2/12
a. the restitution of movable
12/12 property not alienated

In the preceding problem, what if M and b. the payment of damages caused or

V died, will S and W inherit by which may be cause by his fault or
representation? negligence

No. S and W are not entitled to inherit because c. the return of the price which he has
they are already grand nephews. They are received for movable property
th
relatives of J in the fourth (4 ) degree. alienated, or the payment of its
value at the time of its alienation, if
*The right to represent Reversa Troncal applies such alienation was made by
rd
only to those within the third {3 ) degree gratuitous title;
from the Propositus. If the Reservatios are
half-blooded siblings, the degree shall d. the payment of the value of
be determined using the common parent, as a immovable property validly
reference point. alienated.

What are the rights of Reservatios?

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1. to ask for the inventory of all
reservable property from the
ascendants-reservista;
2. to ask for the appraisal of all
reservable movable property;
3. to ask for the annotation in the
Registry of Property of all the
reservable character of all
reservable immovable property;

4. the constitution of necessary mortagage.

Can a Reservatio alienate his expectation

to the property during the pendency or
lifetime of the Reserva?

In Sienes vs Esparia, 1 SCRA 750, the Supreme

Court ruled that a reservation may dispose of
his expectancy to the reservable property
during the pendency of the Reserva in its
uncertain and conditional form. If the
reservation dies before the reservista, the
former has not transmitted any thing, but if he
survives the reservista, the transmission shall
become effective.

What is the nature of the right of the

Reservatio over the reservable
property?

It is a mere hope or expectancy.

When does the expectancy of the

Reservatio over the reservable
property become perfected?

The reservatio's mere hope or expectancy over

the reservable property is finally converted
into a perfect right upon the concurrence of
the following requisites:

1. upon the death of the reservista

2. survival of the reservation.

What are the causes for the

extinguishment of the reserve?

1. death of the ascendant-reservista;

2. death of all the relatives of the

descendant- propositus within the
rd
third (3 ) degree, who belong to
the line from which the property
came. In such case, the active subject
of the reserve disappears, as a
consequence of which the resolutory
condition which limits the title of the
reservista also disappears;

3. loss of the reservable property for

causes not due to the fault or
negligence of the reservista;

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 4. waiver or renounciation by the reservista holds the property
reservatios; adversely against them in the concept
of an absolute owner.
5. prescription of the right of the
reservatios,w hen the ascendant-
X was survived by (a) his widow, (b) 2
legitimate children, a and B, (c) 2 The legitimes are:
grandchildren, D and E, children of X's
legitimate child, C. The net value of X's W - P20,000.00 - legitime
estate is P60,000.00. Ascertain their A - P10,000.00 - legitime
respective legitimes. C- P10,000.00 -
legitime Free portion
The legitimes are: -P20,000.00

A - P10,000.00 - legitime P60,000.00

B - P10,000.00 - legitime
D - P5,000.00 - legitime by The legitime of the surviving spouse, is she (W)
representation E - P5,000.00 - survived only with illegitimate children of
legitime by representation W - testator is one third (1/3)
P10,000.00 - legitime
Free portion - P20,000.00

P60,000.00

The legitime of W is only P10,000.00 because

she survived together with two (2) other
children. Thus, W, gets only the same amount
as the legitime of the children {Article 892
paragraph 2). While, D and E gets only
P5,000.00 each because they have to divide
the legitime of their father, C, which is
P10,000.00 (Article 970,972 and 974). Thus,
leaving a portion of P20,000.00

X survived by (a) his wife, and (b) his

legitimate parents, F and M. Net value of
the estate is P60,000.00. Ascertain the
legitime.

The legitimes are:

A - P15,000.00 - legitime
F - P15,000.00 - legitime
M- P15,000.00 -
legitime Free portion
-P15,000.00

P60,000.00

The share of W in the estate is one fourth (1/4)

or P15,000.00 (Article 893). That of F and M
(legitimate parents of X) is one half (1/2) of
the estate or P30,000.00, which will be
divided equally between F and M (Article
889). Thus, leaving a free portion of
P15,000.00

X survived by (a) his wife, W and (b)

2 illegitimate children, A and B. The
net estate of X is P60,000.00
Ascertain the legitime.
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of the estate, or P20,000.00 in this case.
While, that of A and B, is also one third (1/3)
or P20,000.00, which, shall be divided
equally between A and B. Therefore, A and B
gets P10,000.00 each. The free portion is
also one third (1/3) or P20,000.00 (Article
894).
*The rule that the illegitimate child inherits
one fourt {1I4) is misleading. This applies
only if there is only a single legitimate child
because the illegitimate child inherits one
half {1I2) of the share of the legitime, that is
one half {1I2) of the estate. Hence, one
fourth {1I4) of the estate goes to the
illegitimate. If there are several legitimate
children, it should be half of the share of
each legitimate child because if the one
fourth {1I4) rule is to be followed, there is
the possibility that the legitimate child
inherits less than the illegitimate.
Since the law already reserved one half {1I2)
of the hereditary estate for the legitimate
children or descendants, the legitimate of
illegitimate children shall be taken from the
free portion of the estate, provided that in
no case, shall the total, exceed such free
portion.
If the testator is an illegitimate person and
he is survived by his illegitimate parents
and illegitimate children, the former are
not entitled to any legitime, because they
are excluded by the presence of the latter.
In such case, the legitime of the
illegitimate children shall consists one half
{1I2) of the hereditary estate.
The legitime of W consists of a portion equalt
to the legitime of each legitime children
(Article 897 and 898). She is therefore,
entitled to P18,000.00, which must be taken
from the free portion.
The legitime of C and D shall consists of one
fourth (1/4) of the legitime of each legitimate
children (Article 895, paragraph 1). They are
therefore, entitled to P9,000.00
Thus,
A - P18,000.00
B - P18,000.00
W- P18,000.00
C - P9,000.00
D - P9,000.00
Free portion -none
P72,000.00
What is the legitime of a widow or
widower if he/she survives with
legitimate children or descendants
and acknowledged natural children by
legal fictiob
The widow or widower shall be entitled to a
portion equal to the legitime of each of the
legitimate children which must be taken from
that part of the estate which the testator can
freely dispose of (Article 897).
What is the legitime of a widow/widower
is he/she survives with legitimate
children or descendants and illegitimate
children other than acknowledge natural
or natural children by legal fiction?
The widow or widower shall be entitled to a
portion equal to the legitime of each of the
legitimate children, which must be taken from
that part of the estate, which the testator can
freely dispose of {Article 8998).
X is survived by (a) 2 legitimate
children, A and B, (b) 2 illegitimate
children, C and D, (c) and his widow.
Ascertain the legitime, if the net estate is
P72,000.00
The legitime of A and B, consists of one half
(1/2) of the estate or P36,000.00 which shall
be equally divided between them (Article
888). They are, therefore, entitled to
P18,000.00 each.
X is survived by (a) 2 legitimate children,
A and B, (b) 4 illegitimate children, C, D, E
and F and (c) his widow, W. X's estate is
P72,000.00. Ascertain the legitime.
Since the legitime of A and B consists of one
half (1/2) of the hereditary estate (Article 888),
they shall, therefore be entitled to P36,000.00
or P18,000.00 each. Therefore, the remaining
free portion, from the legitimes of the other
survivors shall be satisfied, is P36,000.00
However, if we are going to satisfy the legitimes
of such other survivors, in accordance with the
general rule prescribed for in the Code, the
amount of P36,000.00 will not be sufficient.
Thus, Article 895, paragraph 3 is applicable in
this situation, "in no case shall the total
legitime of such illegitimate children exceed
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that free portion, and that the legitime of the F -
surviving spouse must first be fully satisfied."

Therefore, since the legitime of the surviving P4,500.0

spouse is equal to that of each of the
legitimate children (Article 897 and 898) W 0
shall be entitled to P18,000.00. There will,
therefore, be P18,000.00 left in the free P72,000.
portion, which will be divided equally among
the illegitimate children. 00

*The share of legitimate children cannot be

Thus, the
reduced due to preference. The share of
illegitimate children are reduced first.
legitimes are: A -
What is the legitime of the surviving
spouse, if he/she survives with
P18,000.00 legitimate parents of ascendants and
B - P18,000.00 with illegitimate children?
W- P18,000.00
C - P4,500.00 The surviving spouse shall be entitled to one
eight (1/8) of the estate (Article 899).
D - P4,500.00
E - P4,500.00
X is survived by (a) his wife, (b)
legitimate parents, F and M, and (c) 2
illegitimate children, A and B. Ascertain
the legitime.

The legitimes are:

W - 1/8 of the estate

F and M - Yi of the estate
A and B - )4 of the
estate Free portion - 1/8 of
the estate

Or more specifically,

W - 1/8 of the estate

F - Yi of the Yi of the estate
M - Yi of the Yi of the estate
- Yi of the )4 of the estate
- Yi of the )4 of the estate Free
portion - 1/8 of the estate

What is the legitime of the illegitimate

children, if there is no compulsory heirs?

Illegitimate children - Yi of the estate

Free portion - Yi of the estate (Article 901)

X died survived only by his illegitimate

children, A and B, ascertain the legitime,
is the estate of X is P60,000.00

A and B - P30,000.00 (1/2 of the estate)

Free portion - P30,000.00 (1/2 of

the estate) Or more specifically,

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A - P15,000.00 (1/2 of Yi of Yi of the estate) Free portion - P30,000.00
the estate) B - P15,000.00 (1/2 of (1/2 of the estate)

P60,000.00

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If an illegitimate child dies before the
testator, can his right to the legitime *Illegitimate parents are classified as
which had been reserved for him by law compulsory heirs of the illegitimate children,
be transmitted to his own descendants? but only in default of children or descendants,
whether legitimate or illegitimate.
Yes. It will be transmitted upon their death to
their descendants, whether legitimate or
illegitimate (Article 902).

Rules with respect to a legitimate and an

illegitimate person to be represented:

1. If the one who died ahead of the

testator is an illegitimate child
(decedent) his right over his legitime,
shall be transmitted to his
descendants, whether legitimate or
illegitimate (Article 902). Therefore,
the legitimate or illegitimate children
of an illegitimate decedent may
represent the latter in the inheritance.
However, a legitimate child shall get a
share twice than that of the
illegitimate child.

2. If the one who died ahead of testator

is a legitimate child (decedent), his
right over his legitime shall be
transmitted only to his legitimate
children. Therefore, even if the
decedent has illegitimate children, the
latter cannot represent the former in
the inheritance. This is clear from the
provisions of Article 992, which
enunciates the rule, known as the
"principle of absolute separation
between the legitimate family and
the illegitimate family". Article 992
provides, an illegitimate child has no
right to inherit ab intesato from the
legitimate children and relatives of
his father or mother; xxx".

What is the legitime of the parents who

have an illegitimate child, and when
such child leaves neither legitimate
descendants nor a surviving spouse, nor
illegitimate children?

One half (1/2) of the estate (Article 903).

In the preceding problem, what if the

spouse of the illegitimate person,
survives with the parents of such
illegitimate person, what are their
respective legitimes?

They are:

Parents )4 of the estate

Spouse )4 of the estate
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Illegitimate parents are considered as declared in Article 904, the effect of such
secondary heirs. However, the illegitimate deprivation, must be distinguished or
grandparents and other ascendants are qualified.
not considered compulsory heirs. There are four {4) possible ways, by which a
testator may attempt to deprive a
Can the testator deprive his compulsory heir of his legitime. They are:
compulsory heirs of the legitime?
1. by a valid disinheritance;
As a general rule, No. The exceptions are
those expressly provided for by law in 2. by an imperfect disinheritance;
Articles 919, 920 and 921.
3. by preterition of compulsory heirs in
Can a testator impose upon the the direct line;
legitime any burden, encumbrance,
condition or substitution of any kind? 4. by leaving the compulsory heir, by any
title any property or amount which is
As a general rule, No (Article 904 paragraph not sufficient to satisfy the legitime, to
2). Except only, when the testator expressly which such heir is entitled by law. In
prohibits the partition of the hereditary such a case, the heir can ask for the
estate for a period which shall not exceed completion of his legitime.
twenty (20) years (Article 1083).
Can there be a valid compromise on
*There are other instances when a charge or legitimes?
burden is imposed upon the legitime of
compulsory heirs, such as in the case of: None.
What are the reasons why a renunciation
1. reserva troncal {Article 891), or or a compromise as regards a future
2. when the estate consists of a family legitime is void?
home
{Article 238) The reasons are:

But in this cases, the charge is imposed by 1.The rights of the heirs with respect to
law and not by the testator. their legitime are merely inchoate or
If the testator deprives a compulsory heir of prospective, because such
his legitime in violation of the principle

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 rights are perfected at the moment of
death of the testator (Article 777).
Hence, before the death of the testator,
there can be nothing to renounce or to
compromise.
2.No contract may be entered into with
respect to future inheritance, except in
the cases expressly provided by law
(Article 1347).
*The only exceptional cases, where a contract
may be entered with respect to future
inheritance, would be those contemplated in
Articles 130 and 1080 of the Civil Code.
What is the remedy of a compulsory heir
who has been given a lesser legitime than
that which belongs to him?
He may demand that the same be fully satisfied
(Article 906).
*See Jurado for complete discussion of the
effect of an incomplete legitime as
distinguished from preterition; and also the
discussion of inofficious testamentary
disposition.

It is clear that all agreements between the

testator and a compulsory heir which partake
of the nature of a renunciation or compromise
with regard to the future legitime of the heir
would be void under this Article. As a matter
of fact, the rule can be extended to any
contract with regard to the future legitime,
entered into, not only between the testator
and the heir, but also among the heir
themselves, or between the heirs and third
persons. This is by virtue of the provision of
Article 1347 of the Code. It must be noted,
however, that the prohibition cannot be
applied to donations inter vivos, made by the
testator to a compulsory heir. Such donations,
which are presumed to
be advances of the legitime are allowed by
law, but subject to collation.

What is the effect of a renunciation or a

compromise as regards a future
legitime, between the testator and his
compulsory heir?

Under Article 905, such renunciation or

compromise is void.

Who can claim the nullity of the

renunciation or compromise?

It may be claimed either by the compulsory

heir who made it or by another compulsory
heir, who is prejudiced by
such renunciation or compromise.

*If the nullity is claimed after the death of the

testator, it is required that the heir who is
filing the claim must bring to collation
whatever he might have received by virtue of
the compromise. The reason for this, is that, it
would be unjust if such heir is allowed to
claim his legitime and still retain what he had
received.

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 When are testamentary dispositions
considered as inofficious?
They are considered as inofficious if they are
in excess of the disposable free portion of
the hereditary estate. Thus, resulting in the
impairment of the legitime of the
compulsory heirs.
What is the effect of inofficious
testamentary dispositions?
They shall be reduced with regard to the
excess, on petition of the compulsory heirs
who are prejudiced.
*Take note that the rule on reduction applies
to inofficious donation inter vivos. Under
Article 771 donations inter vivos, which are
inofficious bearing in mind the estimated net
value of the donor's estate at the time of his
death shall be reduced with regard to the
excess.
The procedure for reductions stated in
Articles 771 and 907 shall be regulated by
Articles 911-912 of the Code.
What is the reason why an inofficious
testamentary disposition and
inofficious donation inter vivos shall be
reduced?
The reason is the very concept of legitime
itself. Under our system of compulsory
It refers to the actual act of restoring the
hereditary estate, that part of the donation
which is inofficious, in order not to impair the
legitime of the compulsory heirs.
What is included in the gross estate?
All property left at the time of the death of the
testator.
May sentimental value be considered in
the determination of the gross value of
the estate?
No. Only the actual value.
X is survived by four (4) children, A, B, C
and D. Twenty
(20) years before his death, he donated a
land worth P20,000.00 to F. At the time
of his death, said property is worth
P120,000,000.00. What amount should
be collated?
P20,000.00
succession, the testator's freedom of
disposition is limited by the fact that he cannot
make any gratuitous disposition of his
property whether by an act inter vivos or by
an act mortis causa, which would impair the
legitime of his compulsory heirs.
This principle in Article 904 is
complemented by Article 752, which
declares that no person can give by way of
donation more than he can dispose by will.
*Article 771 refers to donations inter vivos,
while, Article 907 refers to donations mortis
causa.
Article 908 to Article 910
Determination of the Legitimes of
Compulsory Heirs
What is collation?
A fictitious mathematical process of adding the
value of the thing donated to the net value of
the hereditary estate
(Article 908 paragraph 2) for the purpose of
computing the legitime of the compulsory
heirs.
It is an act of charging or imputing the value of
the donations against the legitime of the
compulsory heir to whom the thing was
donated (Article 1061), for the purposes of
equalizing the shares of the compulsory heirs
as much as possible.
Why?
The value to be collated or added is the value of
the thing donated at the time when the
donation is made.
This is because when a donation is made,
ownership is transferred over the same, once
the donation is accepted. The increase in value
should therefore, be given to the donee.
In the same way, in case of loss, whether by
force majeure or through negligence or wanton
destruction, the donee must first suffer in
accordance with the rule of res perit domino.
Are all dispositions in favor of a
compulsory heir always chargeable to the
legitime?
No. Such shall be charged against the free
portion of the hereditary estate:
1. in case of the excessive portion;
2. if the testator should provide; and,
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 3. in case of repudiation
After the death of the testator, the heir
renounced his legatine but the testator
gave him a donation during his lifetime.
Where shall this donation be charged?
It will be charged to the free portion because
renunciation of the legitime made the heir a
stranger. So, the donation made to him shall
be charged against the free portion.
*Dispositions in favor of strangers are
chargeable to the free portion of the
hereditary estate.
If the free portion is not sufficient to
cover the donations inter vivos, legacies
and devises, which should be given
preference?
Donation inter vivos.
Why?
1. Donation inter vivos are by nature
irrevocable, save in cases provided by
law. Hence, to allow their annulment or
reduction by the subsequent making
of legacies and bequests, in excess of
the free portion, would be in effect
allowing the revocation of the donation
to depend upon the will of the donor-
testator.
2. The donation requires for its validity
the acceptance of the donee. Hence,
it is a bilateral act produced by the
agreement of the parties. Therefore,
it should have preference over a
testamentary dispositiob which is
purely unilateral.
The donation as soon as accepted
produces all its legal effects, and
the property passes from the
possession of the donor to the
donee. It would create a greater
disturbance of property rights to
annul the donation or reduce it
outright.
3. Following the maxim priority in time is
priority in right.
Steps in Distribution of the Estate
1. Determination of the gross value of
the estate at the time of the death of
the testator.
2. Determination of all debts and charges
which are chargeable against the
estate.
3. Determination of the net value of the
estate by deducting all the debts and
charges from the gross value of the
estate.
4. Collation or addition of the value of all
donations
inter vivos to the net value of the estate.
5. Determination of the amount of the
legitimes from the total thus found.
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 6. Imputation of the value of all strangers against the disposable free
donation inter vivos made to portion, and the restoration to the
compulsory heirs against their hereditary estate if the donation is
legitime and of the value of all inofficious.
donation inter vivos made to
7. Distribution of the residue of the
estate in accordance with the will iv) Imputation
of the testator.
P50,000.00 - FP
X is survived by two (2) legitimate (-) P25,000.00 - W's
children, A and B, and his wife W. In his legitime P20,000.00 - DIV
will, he made the following dispositions:
a house and lot worth P10,000.00 to G P5,000.00 (amount left for
and a car worth P40,000.00 to H. During distribution to legatees and
his lifetime he made a donation of a devisees)
parcel of land worth P20,000.00 in favor
of his friend, In his lifetime, X made a donation inter vivos, in
E. At the time of his death, said land is favor of F. Hence, the same shall be imputed
worth P200,000.00. His estate is worth against the FP. The legitime of W shall also be
P120,000.00 with debts amounting to imputed against the free portion.
P40,000.00. Distribute.

Gross Estate (GE) - P120,000.00

Legacy (car) -
P40,000.00
Devise (house and lot) -
P10,000.00
Donation inter vivos (DIV) -
P20,000.00
Debts -
P40,000.00

i) Net Estate (NE)

P120,000.00 - GE
(-) P40,000.00 -

Debts

P80,000.00

ii) Collate Donations

P80,000.00
(+) P20,000.00 - DIV

P100,000.00 (amount from which

we determine legitime)

iii) Determination of Legitime

Legitime is Yi of P100,000 or

P50,000.00 A -

P25,000.00
B - P25,000.00
FP - P50,000.00

The legitime of A and B is (1/2 of P100,000.00)

P50,000.00, or P25,000.00 each.
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As aforementioned, there is a remaining
P50,000.00 as FP. From such amount we H = P40,000.00 x
deduct the legitime of W which is P25,000.00 P5,000.00
(same amount as that of one legitimate child) P50,000.00
and the DIV in favor of F, in amount of H = P5,000.00
P20,000.00 (P50,000.00 - P25,000.00 -
P20,000.00 = P5,000.00). Simplified Formula:
Therefore, only P5,000.00 is left available for
distribution for G and H. G = 1/5 x P5,000.00 =
P1,000.00 H = 4/5 x
v) Distribution of Residue of the P5,000.00 = P4,000.00
Estate
P5,000.00
Amount left for distribution -
P5,000.00 As per computation, the amount left available
for distribution is only P5,000.00. The testator
Amount of Devise/Legacy (D/L) in his will made the following legacy and
devise: House and Lot worth P10,000.00 to G
G - P10,000.00 and a car worth P40,000.00 to H.
H - P40,000.00
The amount of P5,000.00 will be distributed to
P50,000.00 (aggregate G and H in proportion to the amount given to
amount of them.
D/L)
vi) Final Distribution:
Formula:
A = P25,000.00
Amount of D/L x Amount Left for Legitime B =
Distribution Aggregate P25,000.00
Amount of D/L Legitime W =
P25,000.00
G = P10,000.00 x Legitime G =
P5.000.00 P1,000.00 Devise
P50,000.00 H = P4,000.00 Legacy
G = P1,000.00
P80,000.00
F on the other hand, retains the The amount left to be distributed is only
donation (worth P20,000.00) because P15,000.00. This amount shall be given
it is not inofficious. equally to B and C, since they are instituted
as universal heirs. Hence, (15,000.00/2 =
In the preceding problem, would it make 7,500.00), B and C will receive P7,500.00
a difference if X stated in his will that each, in addition to their legitimes.
the legacy in favor of G is preferred
legacy? v) Final Distribution

Yes. In this case, the remaining P5,000.00 will A = (P20,000.00) Advance Legitime
go to G. (+) P10,000.00 To complete his

Suppose that X is survived by his legitime P30,000.00

legitimate children, A and B, and his
illegitimate child C, and his surviving B = P30,000.00 Legitime
spouse W. In 197S, X and his son A, P7,500.00 Voluntary
entered into a compromise, whereby A, Heir
waived his legitime in consideration of a
parcel of land worth P20,000.00. X died P37,500.00
in 199S with a will, which instituted A
and B as universal heirs. His estate is
worth P200,000.00 with debts
amounting to P100,000.00. Distribute.

i) NE
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 00.00 - C = P15,000.00 Legitime
P20 GE P7,500.00 Voluntary
0,0 Heir
(-) P100,000.00 - Debts P22,500.00

ii) Collate Donations W = P30,000.00

P100,000.00 *In the preceding problem, it does not matter

(+) P20,000.00 - DIV that C is an illegitimate child, when it comes
to the distribution of the free portion. After all,
P120,000.00 (Amount he was instituted as universal heir also.
from which we Suppose that X had two (2) legitimate
determine children A and B. In 197S, he donated a
the parcel of land worth P40,000.00 to F. In
legitime) 198S, he donated a parcel of land worth
P60,000.00 to
iii) Determination of the Legitime G. X died in 199S. His estate was worth
P100,000.00 with debts amounting to
Legitime is Yi of P120,000.00 or P60,000.00 P200,000.00. Distribute.

A = P30,000.00 (P20,000.00 + i) NE
P10,000.00) B = P30,000.00
FP = P60,000.00 P100,000.00 - GE
(-) P200,000.00 - Debts
The legitime of A and B is (1/2 of P120,000.00)
P60,000.00 or P30,000.00 each. Take note, Zero
that A was already given an advance of his
legitime in the form of a parcel of land worth ii) Collate Donations
P10,000.00. Hence, what shall be given to him
only is the amount of P10,000.00 to complete P40,000.00 - DIV
his legitime. (+) P60,000.00 - DIV

iv) Imputation P100,000.00 - (amount from

which we determine
the
P60,000.00 - FP legitime)
(-) P30,000.00 - W's
legitime P15,000.00 - C iii) Determination of Legitime

P15,000.00 - Remaining Legitime is Yi of P100,000.00 or P50,000.00

FP

A = P25,000.
B = 00
P25,000.
00
iv) Imputation/Restoration P50,000.00

P50,000.00 must be restored by G In the preceding problem, why should

preference be given to F?
v) Distribute
Article 773 provides that if there being two (2)
Assets available - P50,000.00 or more donations, the disposable portion is not
from G sufficient to cover all of them, those of the more
recent dates shall be suppressed or reduced
Payments to be made with regards to the execess.

A = P25,000.00 What about the creditors, can they ask

legitime B = for collation?
P25,000.00
legitime The creditors cannot ask for collation as it is
available only for the benefit of the heirs.
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When can the creditors sue for Suppose that G is insolvent, what is
the remedy of the heirs?
rescission of donations? When the
The amount to be returned by the insolvent
donation has been made in fraud of creditos. donee must be borne and paid by those
whose donations are within the free portion.
When is donation considered in fraud of
As between the compulsory heirs, whose
creditors? rights are derived from law, and the donees,
whore rights spring from the will of the
When at the time thereof, the donor did not deceased, the former should be protected
reserve sufficient property to pay his debts from impairment of their share.
prior to the donation.
Hence, the heirs may go after the P40,000.00
*Article 7S8 donated to
F. The heirs cannot recover more than
*Article 7S9 P40,000.00 from F, because it could not be
more than the value of the property or cash
donated.

X is survived by his (a) legitimate

children A, B and C; and wife, B. During
his lifetime he made the following
donations: (a) parcel of land to A worth
P20,000.00; and a (b) house and lot to
his friend F, worth P70,000.00.
When X died, he made the following
dispositions in his will: (a) a house and
lot to G worth P70,000.00; (b) a car to H
worth P20,000.00; and (c) cash to I in the
amount of P60,000.00. The value of the
estate is P400,000.00.
Distribute.

i) NE

P400,000.00 - GE
(-) P40,000.00 -

Debts

P360,000.00 - NE

ii) Collation

P360,000.00 - NE
(+) P20,000.00 - DIV
P70,000.00 - DIV

In the preceding problem, would it make P450,000.00 (Value from

a difference if the donation was made legiti which we determine
one (1) year before X's death and at the me) the amount of the
time the debts are already existing?

If X did not leave sufficient assets to answer In the aforementioned problem, G is

for debts, it would be presumed that the
said donation was made in fraud of the
creditors.
supposed to return PS0,000.00 to the
estate. What is the effect if the property
donated to G has been alienated to a third
rd
(3 ) person?

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 rd
Upon its alienation to a third (3 ) person, the
latter acquires it free from any conditions or
susceptibility to revocation as inofficious.
Hence, the donee should be made to respond
for the value of the excess or inofficious part
of the donation.
iii) Determination of Legitime
The legitime is one half (1/2) of P450,000.00 or
P225,000.00. Hence the legitime of A, B and C
is P225,000.00 or P75,000.00 each. But, since
A has already received P20,000.00 (DIV of
parcel of land), he will only be given
P55,000.00 to complete his legitime.

W, on the other hand, will get P75,000.00 as

her legitime, which under the law must
correspond to the amount of the legitime
received by one (1) legitimate child. The
legitime of W is deducted from the FP.
Henc vi) Final Distribution of Estate
e,

P450,000.00 - Hereditary Estate Completi Amou

DIV D/L
(-) P225,000.00 - A, B and C's Legiitmes on/ nt
A 20T + Legitim
55T + = Receiv
75,000/00
P225,000.00 - Free Portion HB= P30,000.00
+ 75Tx P80,000.00
+ = 75,000.00
(-) P75,000.00 - W's Legitime C + P160,000.00
75T + = 75,000.00
HW= P15,000.00
+ 75T + = 75,000.00
P150,000.00 - Free Portion
F 70T + + = 70,000.00
I = P60,000.00 x P80,000.00
iv) The amount available for distribution is G + P160,000.00+ 35T = 35,000.00
P150,000.00 from which we deduct the DIV I H= +
P80,000.00 + 15T = 25,000.00
made by X to F, in the amount of I + + 30T = 30,000.00
P70,000.00. 90T 280T 80T 450,000.0
0
Hence,

P150,000.00 - Free Portion

(-) P70,000.00 - DIV to F

P80,000.00 - Free Portion

v) The amount left representing the FP is only

P80,000.00. The devises and legacies made
by the testator cannot contain it. The total
amount of D/L is P160,000.00 (D/L: [a] a
house and lot to G worth P70,000.00; [b] a
car to H worth P30,000.00; and [c] cash to I
amounting to P60,000.00 = P160,000.00)

Hence, the remaining free portion of

P80,000.00 shall be distributed pro-rata
among G, H and I.

Hence,

Formula:

Amount of D/L x Amount Left for

Distribution Aggregate
Amount of D/L

G= P70,000.00 x P80,000.00
P160,000.00
G= P35,000.00

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In the preceding problem, who will
get the house and lot devised to G?
G or the compulsory heir?
Following strictly the provision of the law
(Article 912), the compulsory heirs should
get the house and lot and they should
pay G the amount of P35,000.00
However, one author (Tolentino) said, "in
case the devise cannot be reduced
conveniently and the amount of reduction
is equal, the property shall be given to the
devisee.
In this case, the devisee, shall pay the
compulsory heirs, the amount of the
reduction.
The above opinion is logical because after all,
the testator wants to give the real property
to the devisee.
What about the car? Who among H and
the compulsory heirs will get it?
Although there is no provision under the law
with respect to personal property, following
the reasoning in the preceding problem, C
should be entitled to the car.
*In case, the devise cannot be reduced
conveniently, and the amount of reduction is
equal, the property shall be given to the
devisee {Tolentino).
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 TABLE OF LEGITIMES UNDER THE NEW CIVIL CODE

(4)
(5)
(1) (2) (3) ACKNOWLEDG
ACKNOWLE
SURVIVORS LEGITIMAT LEGITI SURVIVI ED NATURAL
DGE
E ME NG AND/OR
ILLEGAL
DESCENDA ASCENDANTS SPOUSE NATURAL
CHILDREN
Any Class Alone NTS CHILDREN
Unless, the testator and the surviving spouse By
were married in articulo mortis
A 1/2 and the testator died within three (3) months from the time of such marriage, in
which case the legitime of the spouse as sole heir is one-third (1/3)
All Classes - but
B 1/2 Excluded 1/4 1/2 of that of a 2/5 of that of a
only one (1)
LD LD
legitimate
All Classes - but several
C 1/2 Excluded Equal to that of a
legitimate
LD
(a) descendants
Legitimate
1/4
D Ascendants - 1/2* 1/8
(5:
(b) Surviving 4)
(a) SpouseLegitimate 1/4
E - 1/2** -
Ascendants (5:
(a) Legitimate 4)
1/4
F - 1/2*** -
Ascendants (5:
(a) Surviving 4)
1/3
G - - 1/3
Spouse (5:
(b) Illegitimate 4)

* If the portion available for distribution is not sufficient, it shall be distributed among the acknowledged natural children or natural children
by legal fiction and the spurious children in the proportion of 5:4.
** If the testator is an illegitimate person, his natural parents are excluded by presence of illegitimate children
*** If natural parents concur with the surviving spouse, the legitime of the former is 1/4, while the latter is also 1/4.

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 TABLE OF LEGITIMES UNDER THE FAMILy CODE

(1) (2) (3) (4)

SURVIVORS LEGITIMAT LEGITI SURVIVI ILLEGITM
E ME NG ATE
DESCENDA ASCENDANTS SPOUSE
Unless, the testator and CHILDRE
the surviving spouse were
married in articulo mortis and the testator died within
A Any Class Alone 1/2
three (3) months from the time of such marriage, in
which case the legitime of the spouse as sole heir is
All Classes - but one-third (1/3)
B 1/2 Excluded 1/4 1/2 of that of a
only one (1)
LD*
legitimate
All Classes - but several
C 1/2 Excluded Equal to that of a
legitimate
LD
(a) descendants
Legitimate
)4
D Ascendants - 1/2* 1/8
(b) Surviving
(a) SpouseLegitimate
E - 1/2** - 1/4
Ascendants
(a) Legitimate
F - 1/2*** - )4
Ascendants
(b)
(a) Illegitimate
Surviving
G - - 1/3 1/3
Spouse
(b) Illegitimate

* If the portion available for distribution is not sufficient, it shall be distributed among the illegitimate children equally
** If the testator is an illegitimate person, his natural parents are excluded by presence of illegitimate children
*** If natural parents concur with the surviving spouse, the legitime of the former is 1/4, while the latter is also 1/4.
 -SUCCESS
ION-
(Dean
Navarro)

Article 915 to concubinage with the spouse of the

Article 923 testator;
Disinheritance
(4) When a child or descendant by
Article 91S fraud, violence, intimidation, or undue
influence causes the testator to
A compulsory heir may, in consequence make a will or to change one
of disinheritance, be deprived of his already made;
legitime, for causes expressly stated by
law.

Article 916

Art. 916. Disinheritance can be effected

only through a will wherein the legal
cause therefor shall be specified.

Article 917

The burden of proving the truth of

the cause for disinheritance shall
rest upon the other heirs of the
testator, if the disinherited heir
should deny it.

Article 918

Disinheritance without a specification of

the cause, or for a cause the truth of
which, if contradicted, is not proved, or
which is not one of those set forth in this
Code, shall annul the institution of heirs
insofar as it may prejudice the person
disinherited; but the devises and
legacies and other testamentary
dispositions shall be valid to such extent
as will not impair the legitime.

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;

(2) When a child or descendant has

accused the testator of a crime for
which the law prescribes imprisonment
for
six years or more, if the accusation
has been found groundless;

(3) When a child or descendant has

been convicted of adultery or
 (S) A refusal without justifiable cause
to support the parent or ascendant
who disinherits such child or
descendant;
(6) Maltreatment of
the testator by word or
deed, by the child or
descendant;
(7) When a child or
descendant leads a
dishonorable or
disgraceful life;
(8) Conviction of a
crime which carries with it
the penalty of civil
interdiction.
Article 920
The following shall be sufficient
causes for the disinheritance of
parents or ascendants, whether
legitimate or illegitimate:
(1) When the parents have abandoned
their children or induced their
daughters to live a corrupt or immoral
life,
or attempted against their
virtue;
(2) When 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;
(S) 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;
(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.
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by: kotch agcaoili agudo.
 -SUCCESS
ION-
(Dean
Navarro)

Article 921 What are the requisites for a valid

disinheritance?

The following shall be sufficient causes What is the purpose of disinheritance?

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;
The purpose of disinheritance is not vengeance
but retribution. Inasmuch as there can be no
feelings of vengeance between parents and
children or between husband and wife at the
supreme hour of death.

(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;

(3) When the spouse by fraud, violence,

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

(4) When the spouse

has given cause for
legal separation;

(S) When the spouse has given

grounds for the loss of
parental authority;

(6) Unjustifiable refusal

to support the children
or the other spouse.

Article 922

A subsequent reconciliation between the

offender and the offended person
deprives the latter of the right to
disinherit, and renders ineffectual any
disinheritance that may have been made.

Article 923

The children and descendants of the

person disinherited shall take his or her
place and shall preserve the rights of
compulsory heirs with respect to the
legitime; but the disinherited parent
shall not have the usufruct or
administration of the property which
constitutes the legitime.

What is disinheritance?

It is an act of the testator in depriving a

compulsory heir of his legitime for causes
expressly stated by law.
The following requisites must concur for a
valid disinheritance:
1. must be made in a valid will
2. must be express
3. must be for a legal cause
4. must be for a true cause
5. must be for an existing cause
6. must be total or complete
7. the cause must be stated in the will
itself
8. the disinherited heir must be
designated by name or in such
manner as to leave no room for
doubt as to who it is intended
9. the will must have been revoked, at
least insofar as the disinheritance is
concerned
Who has the burden of proving the
truth of the cause of disinheritance?
The burden of proof rests upon the other
heirs of the testator if the disinherited heir
should deny it.
Mr X had a daughter D. Mr X said in his
will, "I hereby disinherit my daughter,
who is a living disgraceful life, insofar
as one half (1/2) of here legitime is
concerned. Is there a valid
disinheritance?
None. Because the disinheritance is not total.
Why must the disinheritance be total?
Because the offense is one. It cannot be
separated into component parts.
The injury to the feeling is also one. It cannot
be erased in one part and contained in
another part of the heart. The testator cannot
be partly offended and partly not.
Suppose X said in his will, "I hereby
disinherit my daughter if she elopes with
another man." Is there a valid
disinheritance?
None. Because it is conditional.
Suppose X said in his will, "I hereby
disinherit may daughter D because she
eloped and is now living with a married
one. But if she returns to the family fold,
this disinheritance would be void." Is
there a valid disinheritance?
Yes. Because the disinheritance itself is not
conditional. It
is the revocation of the disinheritance which is
conditional.
page I 110. copied/modified from: ALLIANCE FOR ALTERNATIVE ACT
by: kotch agcaoili agudo.
 -SUCCESS
ION-
(Dean
Navarro)

Why must the disinheritance be

unconditional? Will there be a valid disinheritance if you
were disinherited by your father because
Because the disinheritance must be for an you had sexual intercourse with the family
existing cause. A person cannot be deprived driver?
of his legitime for an act which is not yet
done. Disinheritance is a form of penalty, so None. The words leading a dishonorable or
the cause must have already been committed. disgraceful life implies continuity. Hence, a
single or an isolated act which
Suppose X stated in his will that should
hi son S, maltreat him, S shall be
disinherited. Thereafter, S maltreated X.
Can S B disinherited?

No. He cannot be disinherited because the

disinheritance was conditional. X should have
made another will disinheriting S, due to
maltreatment.

X stated in his will, "If my son S will

reform his ways, he will inherit". Is this
provision valid?

Yes. For this provision is a revocation of

disinheritance, so, it can be conditional.

Why is civil interdiction included?

Because it reflects the immorality of the child

and is a source of dishonor to the family.
Besides, succession is granted by law. So, if
there is civil interdiction, the rights of the heir
are suspended, because succession is a
statutory right and not a natural right.

*Civil interdiction is imposed in crimes

punishable by death, reclusion perpetua and
temporal.

When is there maltreatment?

1. maltreatment by deed

Covers all acts of violence against the person

of the testator, short of an attempt to take his
life, whether physical injuries are produced or
not.

2. maltreatment by word

Amounts to slander, addressed directly and

personally against the testator himself.

S tried to kill his father X by strangling.

To prevent a scandal, no charge was filed
against S. Can X disinherit him?

Yes. On the ground of maltreatment by deed.

page I
111. copied/modified from: ALLIANCE FOR
ALTERNATIVE ACTION
by: kotch agcaoili
may be reprehensible or unconventional will
not be sufficient.
*This question needs clarification as one
student argued. The above stated answer
according to him is acceptable because the
student who recited was a female.
But what about if the student who recited was
a male? Would you have the same answer?
According to him, the answer would be
different, if a male student was asked the
same question, because, if you are a male and
you had sex with your family driver {man to
man), that could be considered dishonorable
life.
If you were disinherited by your father
because you married a man which your
father greatly disliked, is there a valid
disinheritance?
None. It is not one of the causes provided by
law for valid disinheritance.
If you were disinherited by your father
because you become a mormon and he
is a devout catholic, is there a valid
disinheritance?
None. It is not one of the causes provided by
law for valid disinheritance.
If you were convicted by final judgment
for your attempt to kill your uncle, the
brother of your father, and you were
sentenced of imprisonment for six (6)
years and one
(1) day, can you be validly be disinherited
by your father?
NO. The law speaks only of an attempt against
the life of the testator, his or her spouse,
descendants or ascendants. A brother is not
included in the aforementioned enumeration.
A brother is merely a collateral blood relative.
What if the conviction carries with it the
penalty of civil interdiction?
Then there will be a valid disinheritance, under
No 8 of Article 919.
X has two sons named A and B. A
attempted to kill his brother B. Charges
were filed against A. Can X disinherit A?
Yes. Because X is a descendant of B.
In the preceding problem, suppose the
RTC convicted A but the CA reversed the
decision. Can X still disinherit A?
No. Because the prosecution is dismissed even
if it is provisional in nature.
page I
112. copied/modified from: ALLIANCE FOR
ALTERNATIVE ACTION
by: kotch agcaoili
 -SUCCESS
ION-
(Dean
Navarro)

T disinherited his son, S because he looks
more like his neighbor than him. Is this
valid?
No. Because it is not one of the ground
expressly provided for by law for disinheriting
a child.
Can you be validly disinherited if you
attempted to kill your father but the
family did not file charges?
X was charged with murder. One of the
witnesses who testified against him
during the trial was his son S. X was
convicted. Can X disinherit S?
No. Because the charge was not groundless.
Suppose X was acquitted, can he
disinherit his son S?
The answer needs to be qualified:

Yes. On the ground of maltreatment by deed.

What about if you stabbed your and was

convicted of the crime, but thereafter,
pardoned by the President. Can you still
be validly disinherited?

Yes. Even if there is a pardon, disinheritance is

still proper.

Exception: if the pardon is based on the heir's

complete innocence.

Suppose that your father tried to kill

your mother, but they subsequently
reconciled, can you validly disinherit
your father?

No. The reconciliation between the parents

deprives the child of the right to disinherit the
offending spouse.

Reason: The child concerned should not more

severe than the spouse who had been
offended.

In the preceding problem, suppose that

your mother filed charges and your
father was convicted, but there was
subsequently reconciliation, can you
validly disinherit your father?

Yes. On the ground of conviction of an attempt

against the life of an ascendant of the testator.

Suppose that you testified against your

father on charges of murder, but he was
subsequently acquitted based on a
reasonable doubt. Can your father
disinherit you?

No. Lack of proof beyond reasonable doubt or

lack of criminal intent does not necessarily
mean that the accusation was groundless.
 a. If the acquittal was beyond
reasonable doubt, the accusation
is groundless. Consequently, it can
be the basis of disinheritance.
b. If the acquittal is not beyond
reasonable doubt, the accusation
may not be groundless. So it cannot
be a basis for disinheritance.
Suppose X has two (2) children, a son
and a daughter. X induced his daughter
to become a prostitute, but the
daughter flatly refused. May X be
validly disinherited by his daughter?
Yes. On the ground that the parent induced
his daughter to live a corrupt or immoral
life. Even if the inducement was
unsuccessful. Mere attempt to induce is a
sufficient ground.
If it was a brother who induced his sister
to be prostitute, may the sister
disinherit his brother?
No. After all, there would be no need to
disinherit the brother because he is not a
compulsory heir of his sister.
In the preceding problem, suppose that
it was the son who was induced by the
father to become a callboy. May the son
disinherit his father?
No. But this may be a ground for loss of parental
authority. Once parental authority is lost,
disinheritance shall apply.
In the preceding problem, may the
daughter disinherit his father?
No. Because the term daughter refers only to
female descendants. But this cat may be a
ground for loss of parental authority. Once
parental authority is lost, disinheritance shall
apply.
Suppose it was the grandfather who
induced his granddaughter?
Yes.
Suppose that it was the grand son?
No.
*Although the law mentions only daughters, it
must be construed to mean all female
descendants.
Can there be a valid disinheritance?
No.
 -SUCCESS
ION-
(Dean
Navarro)

Suppose that T stated in his will, "I

disinherit my son X". But T did not give
any reason as to the cause of the
disinheritance. Is there a valid
disinheritance?
No. Causes must be stated in the will.
When is there an ineffective
disinheritance?
There is an ineffective disinheritance when:
Yes. Because the fact of having given a cause
for legal separation it s sufficient ground for
disinheriting a spouse.
Supposed that Ms Roque chanced upon
you having sexual intercourse with the
housemaid?
There can be a valid disinheritance for it
constitutes an act of sexual infidelity which is
one of the grounds of legal separation.

1. there is no cause stated

2. the cause was denied by the heir

concerned and not proved by the
instituted heir

3. the cause is not one of those

provided for by law.

Suppose that X in his 198S will, said "I

gravely resent the conduct of my son, S,
who has maltreated me". Then in a 199S
will, X said, "I disinherit my son S for the
cause which I have stated in the 198S
will". Is there a valid disinheritance?

Yes. There is a valid disinheritance even if the

cause for it has been expressed in one
testament and the disinheritance is made in
another provided that the necessary
connection between the cause and the
disinheritance is clearly established.

In the preceding problem. Would it make

a difference if in his 199S will, X merely
said, "I hereby disinherit my son S"
without mentioning the 198S will?

Yes. In this case, there is absolutely no

connection between the two (2) statements
and the disinheritance affected can be
considered as without legal cause and
therefore, ineffective.

Suppose that you are married to Ms

Roque. You tried to kill her, but she did
not file any charges. Can Ms Roque
validly disinherit you?

Yes. Because I have given a cause for legal

separation.

(Refer to the immediately preceding

question.) Even if there is no criminal
conviction on your part?
*A petition for legal separation may be filed
on the following grounds:
1. repeated physical violence or
grossly abusive conduct directed
against the petitioner, a common
child or a child of the petitioner
2. physical violence or moral pressure to
compel the petitioner to change
religious or political affiliations
3. attempt of the respondent to corrupt
or induce the petitioner or a common
child or a child of the petitioner to
engage in prostitution or connivance
in such corruption or inducement
4. final judgment sentencing the
respondent to imprisonment for
more than six {6) years, even if
pardoned
5. drug addiction or habitual
alcoholism of the respondent
6. lesbianism or homosexuality of the
respondent
7. contracting by the respondent of a
subsequent bigamous marriage,
whether in the Philippines or abroad
8. sexual infidelity or perversion
9. attempt of the respondent against the
life of the petitioner
10. abandonment if petitioner by
respondent without justifiable cause
for more than one {1) year
What is the effect of reconciliation?
Reconciliation between the offender and the
offended person deprives the latter of the
right to disinherit and renders ineffectual any
disinheritance that may have been made.
When is there reconciliation?
When there is resumption of friendly relations.
Is reconciliation the same as pardon?
No. Pardon is a unilateral act, while
reconciliation is a bilateral act that needs to be
accepted by the offender.
If a compulsory heir is validly disinherited,
can he still inherit from the testator?
Yes. If there is a revocation of the disinheritance.
 -SUCCESS
ION-
(Dean
Navarro)

What are the causes of revocation of

disinheritance? As to the representatives: If the testator has
not disposed of the free portion to others and
1. subsequent reconciliation has merely provide for the disinheritance of a
child or a descendant, who has an intestate
2. subsequent institution of the heir is entitled to more than the legitime, the
disinherited heir representation should extend to everything that
would have passed to the disinherited heir by
3. nullity of the will containing the operation of law. This includes the amount that
disinheritance pertains to him, as an intestate heir and not
only that as compulsory heir.
If the disinherited heir has his own
children, may the children inherit from
the testator?

Yes. The children and the descendants of the

disinherited heir shall take his/her place and
shall so preserve the
rights of the compulsory heirs with respect to
the legitime. Bu the disinherited parent shall
not have usufruct or the administration of the
property which constitutes the legitime.

If an heir is imperfectly disinherited can

he inherit from the testator?

Yes.

Can the imperfectly disinherited heir

inherit more than his legitime?

It depends.

No. Where the testator has made dispositions

of the entire estate, the nullity or
ineffectiveness of the disinheritance produces
the annulment of testamentary dispositions
only insofar as it prejudices the legitime of the
disinherited
heir. It does not affect the dispositions of the
testator with respect to the free portion.

Yes. But if the testator did not dispose of the

free portion, in his will, to others and the
disinherited heir is also an intestate heir,
then, by the nullity or ineffectiveness of the
disinheritance, the disinherited heir must
receive not only his legitime but everything
that he is entitled to get by the laws of
intestacy.

And if in a previous will there are

testamentary dispositions affecting the
free portion in favor of the compulsory
heir, the nullity of the subsequent
disinheritance restores the effectiveness of
such testamentary dispositions in his
favor.
 Effects of Disinheritance:
Since there was a preterition of A, D will still
1.It deprives the compulsory heir, who is be able to get the whole legitime and all that
disinherited, from participating in the he his entitled under the law of intestacy.
inheritance, including his legitime.
Reason: Preterition of A will annul the
2.If the compulsory heir who is disinherited, has imperfect disinheritance of D, therefore,
children or descendants, such children or intestacy will follow.
descendents shall take his/her place and shall
preserve his/her right with respect to the Hence,
legitime, although the disinherited parents
shall have no right of usufruct or Legitime + Intestate Share = Amount
administration of the property, which Received
constitutes the legitime. (This is by virtue of A = 15,000.00 + 15,000.00 =
representation. Applies only in the direct 30,000.00
descending line, but never in the ascending.) B = 15,000.00 + 15,000.00 =
30,000.00
X disinherited D without specifying the C = 15,000.00 + 15,000.00 =
cause. He instituted B and C as his sole 30,000.00
heirs. The net estate of X is D = 15,000.00 + 15,000.00 =
P120,000.00. Distribute. 30,000.00

x 60,000.00 60,000.00 120,000.00

In the preceding problem, suppose D was

A B C D validly disinherited. Distribute.

In this case, D will not be entitle to anything,

E F
Take note that in the problem, A was
preterited because he was not given
anything, B on the other hand, was
imperfectly disinherited.
but his children E and F will represent D with
respect to his legitime. The remaining
P60,000.00 will then be divided equally
among A, B and C.
 -SUCCESS
ION-
(Dean
Navarro)

Hence, shall be understood limited to such part

or interest, unless the testator expressly
Legitime + Intestate Share = declares that he gives the thing in its
Amount Received
A = 15,000.00 20,000.00 = entirety.
+ = 15,000.00 20,000.00
B 35,000.0
=
+=
C 20,000.00 35,000.0
= Article 930
15,000.00
E +
= 7,5000.00 35,000.0
=
+
F = 7,500.00 7,500.00
= Article 928
+ 7,500.00
The heir who is bound to deliver the
60,000.00 60,000.00 120,000.00
legacy or devise shall be liable in case of
eviction, if the thing is indeterminate and
is indicated only by its kind.
Article 924 to
Article 959
Legacies and Article 929
Devises
If the testator, heir, or legatee owns only
Article 924 a part of, or an interest in the thing
bequeathed, the legacy or devise
Art. 924. All things and rights which are
within the commerce of man be
bequeathed or devised.

Article 92S

A testator may charge with legacies and

devises not only his compulsory heirs
but also the legatees and devisees.

The latter shall be liable for the charge

only to the extent of the value of the
legacy or the devise received by them.
The compulsory heirs shall not be liable
for the charge beyond the amount of the
free portion given them.

Article 926

When the testator charges one of the

heirs with a legacy or devise, he alone
shall be bound.

Should he not charge anyone in

particular, all shall be liable in the same
proportion in which they may inherit.

Article 927

If two or more heirs take possession of

the estate, they shall be solidarily liable
for the loss or destruction of a thing
devised or bequeathed, even though
only one of them should have been
negligent.
 The legacy or devise of a thing though another person may have some
belonging to another person is void, if interest therein.
the testator erroneously believed that
the thing pertained to him. But if the If the testator expressly orders that the
thing bequeathed, though not thing be freed from such interest or
belonging to the testator when he encumbrance, the legacy or devise shall
made the will, afterwards becomes be valid to that extent.
his, by whatever title, the disposition
shall take effect.
Article
933
Article
931
If the thing bequeathed belonged to the
legatee or devisee at the time of the
If the testator orders that a thing execution of the will, the legacy or devise
belonging to another be acquired in shall be without effect, even though it
order that it be given to a legatee or may have subsequently alienated by him.
devisee, the heir upon whom the
obligation is imposed or the estate
If the legatee or devisee acquires it
must acquire it and give the same to
gratuitously after such time, he can
the legatee or devisee; but if the owner
claim nothing by virtue of the legacy or
of the thing refuses to alienate the
devise; but if it has been acquired by
same, or demands an excessive price
onerous title he can demand
therefor, the heir or the estate shall
reimbursement from the heir or the
only be obliged to give the just value of
estate.
the thing.

Article
Article
934
932

If the testator should bequeath or

The legacy or devise of a thing which at
devise something pledged or
the time of the execution of the will
mortgaged to secure a recoverable debt
already belonged to the legatee or
before the execution of the will, the
devisee shall be ineffective, even
estate is obliged to pay the debt,
unless the contrary intention appears.
 -SUCCESS
ION-
(Dean
Navarro)

The same rule applies when the thing is A legacy or devise made to a creditor shall
pledged or mortgaged after the not be applied to his credit, unless the
execution of the will. testator so expressly declares.

Any other charge, perpetual or
temporary, with which the thing
bequeathed is burdened, passes with it
to the legatee or devisee.
Article 93S
The legacy of a credit against a third
person or of the remission or release
of a debt of the legatee shall be
effective only as regards that part of
the credit or debt existing at the time
of the death of the testator.
In the latter case, the creditor shall have
the right to collect the excess, if any, of
the credit or of the legacy or devise.
Article 939
If the testator orders the payment of what
he believes he owes but does not in fact
owe, the disposition shall be considered
as not written. If as regards a specified
debt

In the first case, the estate shall comply

with the legacy by assigning to the
legatee all rights of action it may have
against the debtor. In the second case,
by giving the legatee an acquittance,
should he request one.

In both cases, the legacy shall comprise

all interests on the credit or debt which
may be due the testator at the time of
his death.

Article 936

The legacy referred to in the preceding

article shall lapse if the testator, after
having made it, should bring an action
against the debtor for the payment of
his debt, even if such payment should
not have been effected at the time of
his death.

The legacy to the debtor of the thing

pledged by him is understood to
discharge only the right of pledge.

Article 937

A generic legacy of release or remission

of debts comprises those existing at
the time of the execution of the will,
but not subsequent ones.

Article 938
 more than the amount thereof is
ordered paid, the excess is not due,
unless a contrary intention appears.
The foregoing provisions are without
prejudice to the fulfillment of natural
obligations.
Article 940
In alternative legacies or devises, the
choice is presumed to be left to the
heir upon whom the obligation to give
the legacy or devise may be imposed,
or the executor or administrator of the
estate if no particular heir is so
obliged.
If the heir, legatee or devisee, who may
have been given the choice, dies before
making it, this right shall pass to the
respective heirs.
Once made, the choice is irrevocable.
In the alternative legacies or devises,
except as herein provided, the
provisions of this Code regulating
obligations of the same kind shall be
observed, save such modifications as
may appear from the intention
expressed by the testator.
Article 941
A legacy of generic personal property
shall be valid even if there be no things
of the same kind in the estate.
A devise of indeterminate real property
shall be valid only if there be immovable
property of its kind in the estate.
The right of choice shall belong to the
executor or administrator who shall
comply with the legacy by the delivery
of a thing which is neither of inferior
nor of superior quality.
Article 942
Whenever the testator expressly leaves
the right of choice to the heir, or to the
legatee or devisee, the former
may give or the latter may choose
whichever he may prefer.
Article 943
If the heir, legatee or devisee cannot
make the choice, in case it has been
granted him, his right shall pass to his
heirs; but a choice once made shall be
irrevocable.
 -SUCCESS
ION-
(Dean
Navarro)

Article 944
A legacy for education lasts until the
legatee is of age, or beyond the age of
majority in order that the legatee may
finish some professional, vocational or
general course, provided he pursues his
course diligently.
A legacy for support lasts during the
lifetime of the legatee, if the
testator has not otherwise provided.
If the legacy or device is of a specific and
determinate thing pertaining to the
testator, the legatee or devisee acquires
the ownership thereof upon the death of
the testator, as well as any growing
fruits, or unborn offspring of animals, or
uncollected income; but not the income
which was due and unpaid before the
latter's death.

If the testator has not fixed the amount

of such legacies, it shall be fixed in
accordance with the social standing and
the circumstances of the legatee and the
value of the estate.

If the testator or during his lifetime used

to give the legatee a certain sum of
money or other things by way of support,
the same amount shall be deemed
bequeathed, unless it be markedly
disproportionate to the value of the
estate.

Article 94S

If a periodical pension, or a certain

annual, monthly, or weekly amount is
bequeathed, the legatee may petition
the court for the first installment upon
the death of the testator, and for the
following ones which shall be due at the
beginning of each period; such payment
shall not be returned, even though the
legatee should die before the expiration
of the period which has commenced.

Article 946

If the thing bequeathed should be

subject to a usufruct, the legatee or
devisee shall respect such right until it
is legally extinguished.

Article 947

The legatee or devisee acquires a right

to the pure and simple legacies or
devises from the death of the testator,
and transmits it to his heirs.

Article 948
 From the moment of the testator's
death, the thing bequeathed shall be
at the risk of the legatee or devisee,
who shall, therefore, bear its loss or
deterioration, and shall be benefited by
its increase or improvement, without
prejudice to the responsibility of the
executor or administrator.
Article 949
If the bequest should not be of a
specific and determinate thing, but is
generic or of quantity, its fruits and
interests from the time of the death of
the testator shall pertain to the legatee
or devisee if the testator has expressly
so ordered.
Article 9S0
If the estate should not be sufficient
to cover all the legacies or devises,
their payment shall be made in the
following order:
(1) Remuneratory
legacies or devises;
(2) Legacies or
devises declared by
the testator to be
preferential;
(3) Legacies for support;
(4) Legacies for
education;
(S) Legacies or devises of a specific,
determinate thing which forms
a part of the estate;
(6) All others pro
rata. Article
9S1
The thing bequeathed shall be
delivered with all its
accessories and accessories and in the
condition in which it may be upon the
death of the testator.
Article 9S2
The heir, charged with a legacy or devise,
or the executor or administrator of the
estate, must deliver the very thing
bequeathed if he is able to do so and
cannot discharge this obligation by
paying its value.
Legacies of money must be paid in cash,
even though the heir or the estate may
not have any.
The expenses necessary for the
delivery of the thing bequeathed shall
be for the account of the heir or the
estate, but without prejudice to the
legitime.
 -SUCCESS
ION-
(Dean
Navarro)
Article 9S3
The legatee or devisee cannot take
possession of the thing bequeathed
upon his own authority, but shall
request its delivery and possession of
the heir charged with the legacy or
devise, or of the executor or
administrator of the estate should he
be authorized by the court to deliver
it.
Article 9S4
The legatee or devisee cannot accept a
part of the legacy or devise and
repudiate the other, if the latter be
onerous.
Should he die before having accepted
the legacy or devise, leaving several
heirs, some of the latter may accept
and the others may repudiate the
share respectively belonging to them
in the legacy or devise.
Article 9SS
The legatee or devisee of two legacies or
devises, one of which is onerous, cannot
renounce the onerous one and accept the
other. If both are onerous or gratuitous,
he shall be free to accept or renounce
both, or to renounce either. But if the
testator intended that the two legacies
or devises should be inseparable from
each other, the legatee or devisee must
either accept or renounce both.
Any compulsory heir who is at the same
time a legatee or devisee may waive the
inheritance and accept the legacy or
devise, or renounce the latter and accept
the former, or waive or accept both.
Article 9S6
. 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,
shall be without effect only with respect
to the part thus alienated. If after the
alienation the thing should again belong
to the testator, even if it be by reason of
nullity of the contract, the legacy or
devise shall not thereafter be valid,
unless the reacquisition shall have been
effected by virtue of the exercise of the
right of repurchase;
(3) If the thing bequeathed is totally
lost during the lifetime of the testator,
or after his death without the heir's
fault. Nevertheless, the person obliged
to pay the legacy or devise shall be
liable for eviction if the thing
bequeathed should not have been
determinate as to its kind, in
accordance with the provisions of
Article 928.
Article 9S8
A mistake as to the name of the thing
bequeathed or devised, is of no
consequence, if it is possible to identify
the thing which the testator intended to
bequeath or devise.
Article 9S9
except in cases of substitution and of the
right of accretion.
Article 9S7
The legacy or devise shall be without
effect:
(1) If the testator transforms the thing
bequeathed in such a manner that it
does not retain either the form or
the denomination it had;
(2)If the testator by any title or for any
cause alienates the thing bequeathed
or any part thereof, it being
understood that in the latter case the
legacy or devise
 A disposition made in general terms in
favor of the testator's relatives shall
be understood to be in favor of those
nearest in degree.
What is a legacy?
*Legacy is bequeathed, while a devise is
devised.
Who are the persons that may be charged
with legacies and devises?

It is a testamentary disposition by virtue of The following may be expressly charged by the

which a person is called by the testator to testator with the payment or delivery of a
inherit an individual item of personal legacy or devises?
property.
1.any compulsory heir
What is a devise? 2.any voluntary heir
3.any legatee or devisee
It is a testamentary disposition by virtue of 4.the estate represented by the executor or
which a person is called by the testator to administrator
inherit an individual item called real property.
 -SUCCESS
ION-
(Dean
Navarro)

X said in his will, "I hereby give my
house and lot located at 123 Manila to
Mr Santos". The house and lot is
actually owned by Mr Ramos. However, X
thought that he owns the house and lot.
Is the disposition valid?
Yes. The rule in this case is that, when the
owner of the thing refuses to alienate the same
or demands an excessive price thereof, the heir
or the estate shall only be obliged to give the
just value of the property.

No. The devise is void.

In the preceding problem, why does the

law nullify such disposition?

Because it is presumed that had the testator

known of his non-ownership, the likelihood is
that he would not have given the devise or
legacy.

What is wrong with that?

Because you cannot give something to

someone, which you do not possess.

Can a testator validly dispose something

which he does not own?

Yes. That is when the testator orders

acquisition of such thing.

X said in his will, "I hereby give the

house and lot located at 123 Manila
presently owned by Mr Ramos to Mr
Santos." Is this a valid disposition?

Yes. In this case, there is a presumption that

the testator orders the acquisition of said
thing in order that the same may be given to
Mr Santos.

*The order to acquire may be expressed or

implied, since, the law does not distinguish, it
may be implied because when the testator
showing of another's ownership, gives the
property to the legatee or devisee, there exists
a presumption that the testator really wants
the gift to be effective, and from there, it can
be inferred that he desires the acquisition of
such property.

In the preceding question, even if the

testator did not expressly state his
order to acquire the property?

Yes. Because the order may be implied.

Suppose that after X's death, Mr Ramos

refuses to sell the property, will there
be a valid disposition?
Sub Legacy
1. Duty is on the heir - "I hereby
institute X as heir. However, he
must give P100,000.00 to I."
2. Duty is on the legatee or
devisee - "I hereby give my
car to P. But I want him to give
P500,000.00 to A.
*A legatee who is bound to give a sub legacy
only to the extent of the legacy given to him.
A compulsory heir is bound to give a legacy,
only insofar as his legitime is not impaired.
X said in his will, "Although I own only
one half (1/2) of the house and lot in
123 Manila, the other half being owned
by Mr Ramos, I give it to Ms Santos". Is
this valid?
Yes. But it is understood to cover only one
half (1/2) of the property.
In the preceding problem, suppose
prior to X's death, the co-ownership is
terminated. The property was assigned
to Mr Ramos with X being reimbursed
in money for his share. Subsequently, X
died. Will Ms Santos receive anything?
No. In view of the alienation of X's half's
share in the property of Mr Ramos. X's
consent to the adjudication of the house and
lot to Mr Ramos has the effect of alienation of
a legacy by operation of law.
In the preceding problem, will it make
any difference if X said in his will, "I
hereby give the whole of the house and
lot located in 123 Manila to Ms Santos
even if a only own half of it".
Yes. In this case, it is understood to cover the
whole house and lot.
In the preceding problem, suppose prior
to X's death, the co-ownership was
terminated. The property was assigned
to Mr Ramos, with X being reimbursed in
money for his share (1/2 of the property).
Subsequently, X died. Will Ms Santos
receive anything?
Yes. In this case, Ms Santos will get Yi of the
house and lot, the part which pertains to Mr
Ramos.
Why?
It is true that in consenting to be reimbursed
of his share, X in effect had alienated his
share to Mr Ramos, and thus, revoked by
operation of law the legacy, insofar as the
original share (1/2 of the share of Mr X) was
concerned.
 -SUCCESS
ION-
(Dean
Navarro)

However, inasmuch as he has given the whole

house and lot to Ms Santos, it follows that
there is no revocation insofar as the other half
(share of Mr Ramos) is concerned.
Does it mean that upon X's death, Mr
Ramos and Ms Santos will now be co-
owners of the house and lot?
No. It is still subject to the subsequent
acquisition of the estate or the heir. (?)
Yes. He is entitled to a reimbursement for what
he paid for the property.
Suppose that Mr Ramos acquired the
property by means of donation. Will he be
entitled to anything?
No. Because the acquisition was gratuitous.

X said in his will, "I give the house and

lot located at 123 Manila to Mr Ramos".
After X's death, his children, A, B and C
took possession of the property. Due to
the negligence of B, the property is
burned. What is the remedy of Mr
Ramos?

Mr Ramos can go after the children. In this

case, the liability of the children is solidary.
Hence, Mr Ramos ca demand reimbursement
from any of them (A,B and C).

X said in his will, "I give the house and

lot located at 123 Manila to Mr Ramos".
At the time of the execution of the will,
Mr Ramos is the owner of the property. Is
it a valid disposition/devise?

No. The devise is void, since the property

already belonged to Mr Ramos at the time of
the execution of the will.

In the preceding problem, would it make

any difference if one (1) year before X's
death Mr Ramos sold the property to Mr
Santos and Mr Santos owned the
property until the death of X?

No. The devise is still ineffective and void,

since the property belonged to Mr Ramos
at the time of the execution of the will. Its
subsequent alienation is immaterial.

In the preceding problem, would it make

any difference if one (1) year before his
death, X bought the property from Mr
Ramos?

Yes. In this case, there is a presumption that X

bought the property from Mr Ramos in order
to give effect to the devise/disposition.

Suppose that Mr Ramos acquired the

property only after the execution of the
will, would he be entitled to anything?
page I
120. copied/modified from: ALLIANCE FOR
ALTERNATIVE ACTION
by: kotch agcaoili
If the acquisition of Mr Ramos after the
execution of the will ad been from X
himself, would the devise be void?
No. The devise would still remain valid.
While it is true that ordinarily the alienation
by the testator revokes the legacy, the
exception is when the alienation is in favor
of the legatee himself.
Hence, since the law does not distinguish, the
devisee would still be entitled to a
reimbursement from the estate of the
testator if the acquisition by onerous title.
*If the acquisition of Mr Ramos from X was
gratuitous, there can be no reimbursement.
In his will, T gave his car to L. Later, T
sold the car to S who subsequently sold
the same to L. L remained the owner of
the car until T's death. Is L entitled to
reimbursement?
No. Because the legacy has already been
revoked from the very moment the car was
sold to S. It does not matter anymore that L
subsequently acquired from S by onerous title.
Rule if the thing devised or bequeathed
is pledged or mortgaged:
1.The estate must free the property given by:
a. pledges
b. mortgages - it is immaterial
whether before or after the
execution of the will
c. any other encumbrance or lien, like
antichresis, if given to secure or
guarantee a recoverable debt.
2.What cannot be eliminated:
a. easements
b. usufructs
c. leases which are real rights
d. any other charge, whether
perpetual or temporal, with which
the thing bequeathed or devised
is burdened.
Testator devised a property at 123
Espanya Manila to Mr Ramos. Thereafter,
testator loaned from a bank and
mortgaged the devised property. IS the
devise still valid?
Yes.
In the preceding problem, is the estate
obliged to pay the mortgaged debt?
Yes.

page I
121. copied/modified from: ALLIANCE FOR
ALTERNATIVE ACTION
by: kotch agcaoili
 -SUCCESS
ION-
(Dean
Navarro)

Would it make any difference if it was death, X sent Y a letter demanding

mortgaged before the execution of the payments. Is it a valid disposition?
will?
Yes. In order for the legacy to be revoked, the
No. Whether the mortgaged was made before demand must be made judicially. Therefore, a
or after the execution of the will where the mere extrajudicial demand is not sufficient.
devise was made, the devise remains valid
and the estate is obliged to pay the
mortgaged debt, so that the devisee will get
the property free of mortgaged debts.

What is legacy of credit?

What is a legacy of condonation?

(See Paras)

If X indebted to Y for PS,000.00 and in

his will be bequeaths P3,000.00 to him.
How much W is entitled to?

He is entitled to P8,000.00. The general rule is

that a legacy or devise made to a creditor
shall not be applied to his credit.

In the preceding problem, would it make

a difference if X stated in his will, "I give
Y PS,000.00 in payment of the PS,000.00
which I borrowed from him in 1970".

Yes.

The exception to the rule is when the testator

expressly declares that the legacy or devise
must be applied to the credit.

In this case, Y gets nothing but the payment of

his credit.

Suppose that Y bequeathed P10,000.00

and the debt is only PS,000.00 and X
declared in his will that the legacy shall
be applied to the payment of the debt.
How much is Y entitled to?

Y is entitled to the payment of his credit

(P5,000.00) and he can still collect the excess
of P5,000.00 by way of legacy.

If the debt is PS,000.00 and legacy is

P7,000.00, how much can Y collect?

Y can still collect the balance of P2,000.00

by way of legacy.

Suppose Y owe X P100,000.00. In his

will, he said, "I hereby give Z the legacy
of credit to Y". One (1) year before his
Is it the same with remission?
Yes.
What is the duration for support?
A legacy for support lasts during the lifetime
of the legatee, if the testator has not
otherwise provided.
If it is a legacy for support, how is the
amount determined?
If the testator has not fixed the amount of
such legacies, it shall be fixed in accordance
with the social standing and the
circumstances of the legatee and the value
of the estate.
If the testator during his lifetime used to give
the legatee a certain sum of money or other
things by way of support, the same amount
shall be deemed bequeathed, unless it be
marked disproportionate to the value of the
estate.
What is the duration for education?
A legacy for education lasts until the legatee
is of age or beyond the age of majority, in
order that the legatee may finish some
professional vocational or general course,
provided, he pursues his course diligently.
When does the legatee acquire the right
over the legacy?
The right over the legacy or devise is vested
at the moment of the testator's death.
What about if the legacy or devise is
subject to a condition?
From the moment of the death also, provided,
that the condition is fulfilled.
What about if it is subject to a term?
If the gift is subject to a suspensive term, the
right also vests from the moment of the
testator's death, although, it does not
become effective, until after the arrival of the
suspensive term.
If the gift is with a resolutory term, the right
also vests form the moment of the testator's
death but will end when the resolutory term
arrives.
When does the legatee or devise acquire
ownership over the thing?
If its is pure and simple and it is owned by the
testator at the time of his death, then the
ownership of the thing is acquired at the
moment of the death of the testator.
 -SUCCESS
ION-
(Dean
Navarro)

If the thing is owned by a third person, If both be onerous, can he accept one and
ownership over the thing is acquired upon the renounce the other?
acquisition by the estate, of such property,
from the third person. Yes. He shall be free to accept or renounce both
or to renounce either.
X said in his will, "I hereby give Y a car".
Suppose there is no car in the estate, is
the disposition valid?

Yes. In the case of generic personal property, it

remains valid even if there is none in the
estate. In this case, it is evident that the
estate is being required to get one so that it
can be given to Y.

X stated in his will, "I give M ten (10)

hectares of coconut land". Suppose that
none can be found in the estate, but the
(10) hectares of fishpond. Is there a valid
disposition?

None.

In the two immediately preceding

problems, why the difference?

The genus in personal property is determined

by nature so that the substitution of
individuals by others of the same kind within
the genus of species is possible, while such
substitution is not possible in case of real
property, because their limits and
individualization depend upon the will of man.

Suppose that the testator bequeathed a

partly onerous and partly gratuitous gift
to Y. Can Y accept the gratuitous one?

No. The legatee or devisee cannot accept a

part of the legacy or devise and repudiate the
other, if the latter be onerous.

Reason: Because of the presumption that the

testator would not have given the gratuitous
devise or legacy without the onerous one.

If X give two (2) legacies to Y, one

onerous and one gratuitous. Can Y
revoke the onerous one?

No.

In the preceding problem, can Y accept

the onerous one and reject the
gratuitous one?

Yes. There is no prohibition under the law.

If both be gratuitous, can he accept one
and renounce the other?
Yes. He shall be free to accept or renounce
both or to renounce either.
Article 911 and 9S0 mentioned an order
of preference when do you apply them?
Apply Article 950 only when the reduction
concerns the legacies and devises.
When the legitime is impaired or when there
are
donations inter vivos chargeable to the free
disposal, apply Article 911.
*Article 950 applies in all cases where the
conflict is exclusively among the legatees
and the devisees themselves. This is
possible in either two {2) cases:
1.when there are no compulsory
heirs and the entire estate is
distributed by the testator as
legacies or devises
2.when there are compulsory heirs,
but their legitime has already
been provided for by the testator
and there are no donation inter
vivos
Article 911 applies in the following cases:
1.when the reduction is necessary to
preserve the legitime of the
compulsory heirs from impairment,
whether there are donations inter
vivos or not
2.when although the legitime has
been preserved by the testator
himself by leaving the compulsory
heirs sufficient property to cover
their legitime, there are donations
inter vivos concurring with the
legacies and devises within the free
portion
Article 950. If the estate should not be
sufficient to cover all the legacies or devises,
their payment shall be made in the following
order:
1.remuneratory legacies or 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
determinate things which forms a
part if the estate
6.all others pro- rata
 -SUCCESS
ION-
(Dean
Navarro)

When is there a transformation? X stated in his will, "I devised my

When the testator transforms the thing
bequeathed in such a manner that it does not
retain either the form or the denomination it
had.
What are the different causes of implied
revocation of legacies and devises?
fishpond to my friend F". One (1)
thereafter, X transformed the fishpond
into a basketball court. Is there an
implied revocation?
Yes. Because both the form and the
denomination has been changed. There is an
implied revocation by transformation.

They are the following:

1. revocation by transformation - if
the testator transforms the thing
bequeathed in such a manner that it
does not retain both the form and the
denomination it had.

2. revocation by alienation - if the

testator by any title whether by sale
or any other act of disposition inter
vivos alienates the thing bequeathed
or any part thereof.

3. revocation by loss or destruction

- if the thing bequeathed is totally
lost during the lifetime of the testator
or after his death without the heir's
fault.

*The aforementioned instances of revocation

are examples of what is known as revocation
my implication of law within the meaning of
No.1 of Article 830. They take effect
automatically and by operation of law.

What is essential in order that revocation

by transformation may take effect?

The transformation must be both with respect

to the form and the denomination.
Transformation with respect to the form only is
not sufficient. Neither is transformation with
respect to the denomination but not with
respect to the form.

What is form as applied to the thing

bequeathed or devised?

It refers to the external appearance of the

thing.

What is denomination with respect to

the thing bequeathed or devised?

It refers to the name by which the thing is

known.
A bracelet was melted and made into a
necklace, is there an implied
revocation?
Yes. Because there is a change on form and
denomination.
X stated in his will, "I give my friend F,
five (S) hectares of land for services
rendered in the past". Thereafter, X sold
two (2) hectares of the portion devised
to F. What is the effect?
The devise shall take effect on the remaining
three (3) hectares. In this case, there is only a
partial revocation. (Article 957{2])
What if in the preceding problem, X
has reacquired the two (2) hectare
land. Will the devise be revived? Or
will Martin be entitled again to the
original devise, which is five (S)
hectares of land?
No. Except only of the reacquisition was
made by X by virtue of the exercise of the
right of repurchase (Article 957{2]). This is
only the exception. This must not be
confused with Article 930.
X gave his house and lot located in 123
Espanya, Manila to Mr Santos, three (3)
years after the execution of the will, X
sold it to Mr Ramos. A year later, X filed
an annulment of sale of the ground that
he was induced by fraud. The court
nullified the sale. Is the devise valid?
Yes. Nullity of contract refers to acts that are
considered as voluntary alienation. Nullity of
contracts does not
include fraud. In this case, the devise is valid
because there is no consent. Hence, there was
no alienation. Therefore, the devise remains
valid.
*Do not confuse the immediately preceding
problem with the rule, that the only exception
in order to have a revival of the devise, in
cases of alienation is, "when the testator has
reacquired the thing alienated by virtue of the
exercise of his right of repurchase". In this
case, there is really an intention to alienate.
On the other hand, in the problem presented
in the immediately preceding problem, there
was no intention to alienate because of the
presence of fraud or the consent is vitiated.
Thus, the problem presented is not really an
exception, but the devise remains valid.
{Bakit valid pa rin kung hindi pala exception?
Eh kasi nga wala naman talagang intention na
ibenta ng testator yung devise. Talagang
naloko lang siya. Kaya hindi naapektuhan yung
devise at walang implied revocation by
operation of law.)
 -SUCCESS
ION-
(Dean
Navarro)

What if the preceding problem, X In the preceding problem, who can inherit
donated the house and lot to Mr Ramos. from X?
Thereafter, X recovered the donation
from Mr Ramos. Is the devise still valid? Grandfather (GF), A and B.

No. From the moment X donated the house Note:

and lot to Mr Ramos, the devise in favor of Mr
Santos was automatically revoked. The 1.A disposition made in general terms, in favor
subsequent recovery of the donated property of the testator's relatives shall be understood
did not revived the devise. The consent to to be in favor of those nearest in degree.
alienate in this case was voluntary. (Article
957{2]).

What is the consequence if there is a

mistake as to the name of the thing
bequeathed or devised?

A mistake in the name of the thing bequeathed

or devised is of no consequence if it is
possible to identify the thing which the
testator intended to bequeath or devised.
(Article 958)

How shall a disposition made in general

terms, in favor of the testator's relatives
be understood?

It shall be understood to be in favor of those

nearest in degree. (Article 959)

*There is only one {1) rule that will apply in

Article 959 and that is the rule of proximity.
Consequently, the other rules of intestate
succession, such as, the rule of preference
between lines, the right of representation and
the rule on double share for full-blood
collaterals are not applicable.

See Paras for illustrative examples.

X said in his will, "I give the entire free

portion of my property to my relatives".
He was survived by two (2) brothers and
his grandfather, a nephew by a deceased
brother and his wife.

Illustration:

GF

F (+)

A B C(+) x

WD
 th
2.Relatives must be within the fifth (5 )
degree. Relatives affinity are excluded.
Hence, W cannot inherit for more then her
legitime.
3.Rule of proximity - the nearest
degree excludes the father.
4.There is no right of representation.
5.No preference between the lines.
6.If a testator gives some of his properties and
uses the words, "to all who are entitled
thereto", Article 959 cannot be applied
because the clause evidently refers to
intestate heirs and not to the testator's
relative.
 -SUCCESS
ION-
(Dean
Navarro)

Article 960 to Article provisions of article 1006 with respect to

1014 Legal or relatives of the full and half blood, and of
Intestate Succession Article 987, paragraph 2, concerning
division between the paternal and
Article 960 to maternal lines. (912a)
Article 962
General Article 963 to Article 969
Provisions Relationships

Article 960 Article 963

Legal or intestate succession takes place:

(1) If a person dies without a will, or

with a void will, or one which has
subsequently lost its validity;

(2) When the will does not institute an

heir to, or dispose of all the property
belonging to the testator. In such case,
legal succession shall take place only
with respect to the
property of which the testator has not
disposed;

(3) If the suspensive condition attached

to the institution of heir does not
happen or is not fulfilled, or if the heir
dies before the testator, or repudiates
the inheritance, there being no
substitution, and no right of accretion
takes place;

(4) When the heir instituted is

incapable of succeeding, except in
cases provided in this Code. (912a)

Article 961

In default of testamentary heirs, the

law vests the inheritance, in accordance
with the rules hereinafter set forth, in
the legitimate and illegitimate relatives
of the deceased, in the surviving
spouse, and in the State. (913a)

Article 962

In every inheritance, the relative

nearest in degree excludes the more
distant ones, saving the right of
representation when it properly takes
place.

Relatives in the same degree shall inherit

in equal shares, subject to the
 Article
964
A series of degrees forms a line, which
may be either direct or collateral.
A direct line is that constituted by the
series of degrees among ascendants
and descendants.
A collateral line is that constituted by
the series of degrees among persons
who are not ascendants and
descendants, but who come from a
common ancestor. (916a)
Article
96S
The direct line is either descending or
ascending.
The former unites the head of the
family with those who descend from
him.
The latter binds a person with those
from whom he descends. (917)
Article
966
Proximity of relationship is determined by the
number of generations. Each generation forms
a degree. (91S)
In the line, as many degrees are counted
as there are generations or persons,
excluding the progenitor.
In the direct line, ascent is made to the
common ancestor. Thus, the child is one
degree removed from the parent, two
from the grandfather, and three from the
great- grandparent.
In the collateral line, ascent is made to
the common ancestor and then descent
is made to the person with whom the
computation is to be made. Thus, a
person is two degrees removed from his
brother, three from his uncle, who is the
brother of his father, four from his first
cousin, and so forth. (918a)
Article
967
Full blood relationship is that existing
between persons who have the same
father and the same mother.
Half blood relationship is that existing
between persons who have the same
father, but not the same mother, or the
same mother, but not the same father.
(920a)
 -SUCCESS
ION-
(Dean
Navarro)
Article 968
If there are several relatives of the same
degree, and one or some of them are
unwilling or incapacitated to succeed, his
portion shall accrue to the others of the
same degree, save the right of
representation when it should take place.
(922)
Article
969
If the inheritance should be repudiated
by the nearest relative, should there
be one only, or by all the nearest
relatives called by law to succeed,
should there be
several, those of the following degree
shall inherit in their own right and
cannot represent the person or persons
repudiating the inheritance. (923)
Article 970 to
977 Right of
Representation
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. (942a)
Article 971
The representative is called to the
succession by the law and not by the
person represented. The representative
does not succeed the person represented
but the one whom the person
represented would have succeeded. (n)
Article 972
The right of representation takes
place in the direct descending line,
but never in the ascending.
In the collateral line, it takes place only
in favor of the children of brothers or
Article 974
Whenever there is succession by
representation, the division of the
estate shall be made per stirpes, in
such manner that the representative or
representatives shall not inherit more
than what the person they represent
would inherit, if he were living or could
inherit. (926a)
Article 97S
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. (927)
Article
976
A person may represent him whose
inheritance he has renounced. (928a)
Article
977
Heirs who repudiate their share may not
be represented. (929a)
Article 978 to Article
984 Order of
Intestate Succession
Descending Direct
Line
Article
978
Succession pertains, in the first place,
to the descending direct line. (930)
Article
979
sisters, whether they be of the full or half
blood. (92S)
Article 973
In order that representation may take
place, it is necessary that the
representative himself be capable of
succeeding the decedent. (n)
Legitimate children and their
descendants succeed the parents and
other ascendants, without distinction as
to sex or age, and even if they should
come from different marriages.
An adopted child succeeds to the
property of the adopting parents in
the same manner as a legitimate
child. (931a)
Article 980
The children of the deceased shall
always inherit from him in their own
right, dividing the inheritance in equal
shares. (932)
 -SUCCESS
ION-
(Dean
Navarro)

Article 981 Article 987

Should children of the deceased and
descendants of other children who are
dead, survive, the former shall inherit
in their own right, and the latter by
right of representation. (934a)
Article 982
The grandchildren and other
descendants shall inherit by right of
representation, and if any one of them
should have died, leaving several heirs,
the portion pertaining to him shall be
divided among the latter in equal
portions. (933)
In default of the father and mother, the
ascendants nearest in degree shall
inherit.
Should there be more than one of equal
degree belonging to the same line they
shall divide the inheritance per capita;
should they be of different lines but of
equal degree, one-half shall go to the
paternal and the other

Article 983

If illegitimate children survive with

legitimate children, the shares of the
former shall be in the proportions
prescribed by Article 89S. (n)

Article 984

In case of the death of an adopted child,

leaving no children or descendants, his
parents and relatives by consanguinity
and not by adoption, shall be his legal
heirs. (n)

Article 985 to
Article 987
Ascending Direct
Line

Article 98S

In default of legitimate children and

descendants of the deceased, his
parents and ascendants shall inherit
from him, to the exclusion of collateral
relatives. (93Sa)

Article 986

The father and mother, if living, shall

inherit in equal shares.

Should one only of them survive, he or

she shall succeed to the entire estate of
the child. (936)
 half to the maternal ascendants. In
each line the division shall be made per
capita. (937)
Article 988 to
Article 994
Illegitimate
Children
Article 988
In the absence of legitimate
descendants or ascendants, the
illegitimate children shall succeed to the
entire estate of the deceased. (939a)
Article 989
If, together with illegitimate children,
there should survive descendants of
another illegitimate child who is dead,
the former shall succeed in their own
right and the latter by right of
representation. (940a)
Article 990
The hereditary rights granted by the
two preceding articles to illegitimate
children shall be transmitted upon their
death to their descendants, who shall
inherit by right of representation from
their deceased grandparent. (941a)
Article 991
If legitimate ascendants are left, the
illegitimate children shall divide the
inheritance with them, taking one-half of
the estate, whatever be the number of
the ascendants or of the illegitimate
children. (942-841a)
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. (943a)
Article 993
If an illegitimate child should die without
issue, either legitimate or illegitimate,
his father or mother shall succeed to his
entire estate; and if the child's filiation is
duly proved as to both parents, who are
both living, they shall inherit from him
share and share alike. (944)
 -SUCCESS
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(Dean
Navarro)

Article 994 Article 1000

In default of the father or mother, an legitimate or illegitimate, to the other

illegitimate child shall be succeeded half. (n)
by his or her surviving spouse who
shall be entitled to the entire estate. Article 999

If the widow or widower should survive
with brothers and sisters, nephews and
nieces, she or he shall inherit one- half of
the estate, and the latter the other half.
(94Sa)
Article 995 to
Article 1002
Surviving Spouse
When the widow or widower survives
with legitimate children or their
descendants and illegitimate children or
their descendants, whether legitimate or
illegitimate, such widow or widower shall
be entitled to the same share as that of a
legitimate child. (n)

Article 99S

In the absence of legitimate

descendants and ascendants, and
illegitimate children and their
descendants, whether legitimate or
illegitimate, the surviving spouse shall
inherit the entire estate, without
prejudice to the rights of brothers and
sisters, nephews and nieces, should
there be any, under article 1001.
(946a)

Article 996

If a widow or widower and legitimate

children or descendants are left, the
surviving spouse has in the succession
the same share as that of each of the
children. (834a)

Article 997

When the widow or widower survives

with legitimate parents or ascendants,
the surviving spouse shall be entitled to
one-half of the estate, and the legitimate
parents or ascendants to the other half.
(836a)

Article 998

If a widow or widower survives with

illegitimate children, such widow or
widower shall be entitled to one- half of
the inheritance, and the illegitimate
children or their descendants, whether
 If legitimate ascendants, the surviving
spouse, and illegitimate children are Article 1003
left, the ascendants shall be entitled to
one-half of the inheritance, and the
If there are no descendants,
other half shall be divided between the
ascendants, illegitimate children, or a
surviving spouse and the illegitimate
surviving spouse, the collateral
children so that such widow or widower
relatives shall succeed to the entire
shall have one-fourth of the estate, and
estate of the deceased in accordance
the illegitimate children the other
with the following articles. (946a)
fourth. (841a)

Article 1004
Article 1001

Should the only survivors be brothers

Should brothers and sisters or their
and sisters of the full blood, they shall
children survive with the widow or
inherit in equal shares. (947)
widower, the latter shall be entitled to
one- half of the inheritance and the
brothers and sisters or their children to Article 100S
the other half. (9S3, 837a)
Should brothers and sisters survive
Article 1002 together with nephews and nieces, who
are the children of the descendant's
brothers and sisters of the full blood,
In case of a legal separation, if the
the former shall inherit per capita, and
surviving spouse gave cause for the
the latter per stirpes. (948)
separation, he or she shall not have any
of the rights granted in the preceding
articles. (n) Article 1006

Article 1003 to Should brother and sisters of the full

Article 1010 blood survive together with brothers
Collateral and sisters of the half blood, the former
Relatives shall be entitled to a share double that
of the latter. (949)
 -SUCCESS
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(Dean
Navarro)

Article 1007 If the deceased never resided in the

In case brothers and sisters of the half
blood, some on the father's and some on
the mother's side, are the only survivors,
all shall inherit in equal shares without
distinction as to the origin of the
property. (9S0)
Article 1008
Children of brothers and sisters of the
half blood shall succeed per capita or
per stirpes, in accordance with the rules
laid down for the brothers and sisters of
the full blood. (91S)
Article 1009
Philippines, the whole estate shall
be assigned to the respective
municipalities or cities where the
same is located.
Such estate shall be for the benefit of
public schools, and public charitable
institutions and centers, in such
municipalities or cities. The court shall
distribute the estate as the respective
needs of each beneficiary may warrant.
The court, at the instance of an
interested party, or on its own motion,
may order the establishment of a
permanent trust, so that only the income
from the property shall be used. (9S6a)

Should there be neither brothers nor Article 1014

sisters nor children of brothers or
sisters, the other collateral relatives
shall succeed to the estate.
The latter shall succeed without
distinction of lines or preference among
them by reason of relationship by the
whole blood. (9S4a)
Article 1010
If a person legally entitled to the estate
of the deceased appears and files a claim
thereto with the court within five years
from the date the property was delivered
to the State, such person shall be
entitled to the possession of the same, or
if sold the municipality or city shall be
accountable to him for such part of the
proceeds as may not have been lawfully
spent. (n)

The right to inherit ab intestato shall

not extend beyond the fifth degree of
relationship in the collateral line. (9SSa)

Article 1011 to
Article 1014 The
State

Article 1011

In default of persons entitled to

succeed in accordance with the
provisions of the preceding Sections,
the State shall inherit the whole
estate. (9S6a)

Article 1012

In order that the State may take

possession of the property
mentioned in the preceding article,
the pertinent provisions of the
 Rules of Court must be observed.
(9S8a)

Article 1013

After the payment of debts and charges,

the personal property shall be assigned
to the municipality or city where the
deceased last resided in the Philippines,
and the real estate to the municipalities
or cities, respectively, in which the same
is situated.

TABLE OF INTESTATE SUCCESSION UNDER THE FAMILy CODE
SURVIVORS
1. Any class alone
2. (a) Legitimate Children
(b) Legitimate Parents
3. (a) Legitimate Children
(b) Illegitimate Children
4. (a) Legitimate Children
(b) Surviving Spouse
5. (a) Legitimate Children
(b) Illegitimate Children
(c)Surviving Spouse
6. (a) Legal Parents
(b) Illegitimate Children
7. (a) Legitimate Parents
(b) Surviving Spouse
8. (a) Legitimate Parents
(b) Illegitimate
Children
9. (c)Surviving
(a) Spouse
Illegitimate Children
(b) Surviving Spouse
10. (a) Surviving Spouse
(b) Brothers and
Sisters,
Nephews and
11. Collaterals
12. State
-SUCCESS
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(Dean
Navarro)
SHARE DIVISION
Whole Estate Rule of Proximity (Article 962,
New Civil Code
Whole Rule of Proximity (Article 962,
Estate New Civil Code
Excluded
Concurrence or Concurrence Theory - Satisfy
legitime and then distribute
the disposable portion, if
any, pro rata (10:5).
Exclusion Theory (Articles 895,983,996,999 New Civil
Code)
Surviving spouse entitled to
the same share as each
legitimate child
Concurrence or Exclusion Theory - Satisfy their
legitime and then give the
disposable portion. If any, to the
preferred heir in the order of
intestate succession. (Articles
895,961,983,996,999 New Civil
Code)
Exclusion Theory
Note: The legitime of each
illegitimate child shall consists of
one half (1/2) of the legitime of a
legitimate child (Article 176,
Family Code)
One half (1/2) If decedent is an illegitimate
person, his natural parents are
excluded by presence of
illegitimate child (Article 991).
One half (1/2) Same share even if decedent is
an illegitimate person (Article
One half (1/2) 997, New Civil Code).
One half (1/2) Article 176, Family Code
One fourth Article 176, Family Code
(1/4) One
fourth (1/4) Article 1001, New Civil Code
One half (1/2)
Whole Estate Articles 1003-1010, New
Civil Code Principle of
Whole Estate Proximity
Articles 1011-1014, New
Civil Code Escheat
Proceedings
page I
130. copied/modified from: ALLIANCE FOR
ALTERNATIVE ACTION
by: kotch agcaoili
 -SUCCESS
ION-
(Dean
Navarro)

What is a legal or intestate

succession? What is the order of intestate
succession?
It is that which is effected by operation of law
in default if a will. In default of testamentary heirs, it is presumed
that he would have provided:
Why is it that the designation made by
the law of the person/s who shall 1. for the legitimate relatives
succeed the decedent, in cases of legal 2. for the illegitimate relatives
or intestate succession is considered as 3. for the surviving spouse
the presumed will of the decedent?

It proceeds on the principle that if the

decedent had made a will, he would have
provided, first for his children or descendants;
second for his parents or ascendants and
third, for his collaterals.

Human experience taught us that if the

testator was able to execute a will, he would
have provided for those persons in the order
of succession provided for by law.

What is the most essential feature of

legal or intestate succession?

It is the law which operates not the will of the

decedent.

When is there intestate succession?

See Article 960.

What are the other causes of intestacy

other than those enumerated under
Article 960?

They are:

1. when there is preterition in the

testator's will of one or some or all of
the compulsory heirs in the direct
descending line

2. when the testamentary disposition is

subject to a resolutory condition and
such condition is fulfilled

3. when a testamentary disposition is

subject to a term or period and such
term or period expires

4. when a testamentary disposition is

impossible of compliance or is
ineffective.
 4. for the State
*The order of intestate succession is
prescribed by law. Hence, any agreement or
partnership contract entered into by the
parties cannot affect the hereditary rights
which belong to the relatives of the deceased
predecessor-in- interest, not alter the order
prescribed by law for intestate succession.
What is the rule of preference between
lines?
Those in the direct descending line shall
exclude in the succession those in the
direct ascending and collateral lines and
those in the direct ascending line shall in
turn exclude those in the collateral line.
Example: Although the son and the father of
the decedent are both one (1) degree
removed from the latter, the son shall exclude
the father.
The grandson is two (2) degrees removed
from the decedent, a brother is also two (2)
degrees removed from the decedent, but the
grandson shall exclude the decedent's
brother in the succession.
*Article 962 paragraph 1 states the rule of
proximity, paragraph 2 thereof states the rule
of equal division.
What is the rule of proximity?
In every inheritance whether testamentary or
intestate, the relatives nearest in degree to
the decedent shall exclude the more distant
ones.
Example: Son excludes the grandson, a father
excludes the grandfather a brother excludes
the nephew.
*It is presumed that the rule of proximity
presupposes that all of the relatives belong to
the same line. In other words, the rule of
proximity is subordinated to the rule of
preference between lines by virtue of which
those in the direct descending line shall
exclude those in the direct ascending line and
collateral line while those in the direct
ascending line shall exclude those in the
collateral line
{refer to example previously given under the
rule of preference between lines and the rule
of proximity).
Rule of Proximity - nearest relatives excludes
the father relatives. This is without prejudice to
the right of representation because by virtue of
representation, the farther relatives becomes
just as near as the nearest relatives.
X has two (2) sons named A and B. B on
the other hand has two (2) sons named C
and D. In 198S, B died.
Thereafter, X died survived by his son A
and his
 -SUCCESS
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(Dean
Navarro)

grandsons C and D. Can A exclude C and
D in the succession by virtue of the rule
of proximity?
No. C and D cannot be excluded by A. In the
succession, of the rule of proximity.
By virtue of the right of
representation, they are raised to the degree
of their deceased father.
They inherit in their own right and not by right of
representation.
Is there a right or representation in
grandchildren?
Yes. There is no limit as to the degree in the
direct descending line.

*The right of representation also apply in case

B was incapacitated or disinherited on the
above example.

What is the rule of equal division?

The relatives of the same degree shall inherit

in equal shares. (Like the rule of proximity,
this rule also presupposes that all relatives
belong to the same line.

What are the exceptions to the rule of

equal division?

1. when the inheritance is divided

between paternal and maternal
grandparents

2. when the inheritance is divided among

brothers and sisters, some of whom
are full blood and others of half blodd

3. in cases when the right of

representation takes place.

Can there be a right of representation?

No.

Is there a right of representation on the

direct descending line?

Yes.

Is there a right of representation in the

collateral line?

General Rule: No.

Exception: It takes place in cases when the

nephews and nieces survive with at least one
(1) uncle or auntie

What about if the nephews and nieces

are the only survivors? How will they
inherit?
Can the grandchildren inherit in
their own right? Yes. If all the children
of the testator repudiate the
inheritance. (Article 969).
X had two (2) sons A and B. B has a son
named C. C has a son named D.
Illustration:
x (+1999)
A B (+1997)
C
No. D cannot represent C in the inheritance
from B because heirs who repudiated their
share may not be represented.
*Article 976. A person may represent him
whose inheritance he has renounced.
Heirs who repudiate their share may not be
represented.
What are the consequences of the
principle that the representatives inherit
from the decedent and not from the
person represented?
They are:

1. the representatives must be

D capable of succeeding the
In the preceding illustration, if B dies in
2.
1997 but C repudiates his share. Later
X dies in 1999, can C still inherit from
X?
Yes. C can still inherit from X by representing B.
3.
In the illustration, when C repudiated his
inheritance from B, can D represent C in
the inheritance from B?
decedent (Article 973)
even if the representative is incapable
of succeeding the person represented
he can still inherit by right of
representation so long as, he is
capable of succeeding the decedent
even if the representative had
repudiated his inheritance coming
from the person represented, he
can still inherit from the
decedent by right of representation
(Article 976).
 -SUCCESS
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(Dean
Navarro)

From whom does the representative 1. when the person represented dies
inherit? From the decedent or from the before the decedent
person represented?
2. when the person represented is
The representative inherits from the decedent incapable of succeeding the
and not from the person represented. In other decedent
words, the represented does not succeed the
person represented but the one from whom What is the rule in representation?
the person represented would have
succeeded. As a rule, the right of representation takes
place only in the direct descending line, but
Example: A grandson is called to succession never in the ascending (Article 972
by law because of blood relationship. A paragraph 1).
grandson does not succeed his father (the
person represented) who predeceased his
grandparent. The grandson succeeds his
grandparent, whom his father would have
succeeded. (Rosales vs Rosales, GR No.
400789, 27 February 1987).

What is the concept of the right of

representation?

By virtue of this right, the relative nearest in

degree does not exclude the more remote one
because by fiction of law, more distant
relatives belonging to the same class as the
person represented are raised to the place and
degree of such person and acquire the rights
which the latter would have acquired, if he is
alive or if he could have inherited.
When does representation take place?

In testamentary succession, the right of

representation takes place in the following
cases:

1. when the person represented dies

before the testator

2. when the person represented is

incapable of succeeding the
testator

3. when the person represented is

disinherited by the testator

In all the above cases, since, there is a

vacancy in the inheritance, the law calls the
children or descendants of the person
represented to succeed by right of
representation.

In legal or intestate succession, the right of

representation takes place only in the
following cases:
As an exception, representation takes place
also in the collateral line, but it takes place
only in favor of the children of brothers or
sisters, whether they be full or half blood
(Article 972 paragraph 2).
When does the right of representation in
the direct line takes place?
It takes place in the following cases:
1. when the children concur with
grandchildren, the latter being
the children of other children who
died before the decedent, or who
are incapable of succeeding the
decedent
2. when all the children are dead or
are incapable of succeeding the
decedent, and the grandchildren
concur with the great-
grandchildren, the latter being the
children of other grandchildren,
who died before the decedent or
are incapable of succeeding the
decedent
3. when all children are dead or are
incapable of succeeding the
descendant, leaving children or
descendants of the same degree.
What are the limitations in the exercise
of the right of representation in the
collateral line?
They are:
1. The right can be exercised only by the
nephews and nieces of the decedent.
This is clear from the provisions of
Article 972 and Article 975.
Consequently, it cannot be exercised
by grandnephews and grandnieces.
2. The right can be exercised by the
nephews or nieces of the decedent if
they will concur with at least one (1)
brother or sister of the decedent. This
limitation is expressly provided for in
Article 975. Otherwise, if they are the
only survivors, they shall inherit in
their right and not by the right of
representation. (Pavia vs Hurrald, 5
Phil 176, Sarita vs Candia 23 Phil 443)
3. The right of representation in the
collateral line is possible only in
intestate succession in other words, it
cannot possibly take place in
testamentary succession.
In succession by representation, how
shall the estate be divided?
The division of the estate shall be made per
stirpes, in such a manner that the
representatives shall not inherit more
 -SUCCESS
ION-
(Dean
Navarro)

than what the person they represent could
inherit, if he were living or could inherit.
(Article 974)
*As a consequence of representation, the
representative is subrogated to all the rights
to which the person represented would have
been entitled by operation of law, if he were
living or if he could inherit.
Take note however, that, in testamentary
succession the representatives acquire all of
the rights which the person represented
had, with respect to his legitime.
In legal or intestate succession, the
representative acquires all of the rights which
the person represented had with respect to his
entire legal portion.
In both cases, according to Article 974, the
division of the estate shall be made per
stirpes. In such a manner, that the
representativeIs shall not inherit more than
what the person they represent would inherit.
pF has two (2) children, one (1) is
legitimate names X, the other is
illegitimate named Y. X has two (2)
children, one legitimate named A and the
other illegitimate named B.
Illustration:
F
x y
A B
In the illustration, if A dies, can B inherit?
No. The barrier applies.
If B dies, can A inherit?
No. The barrier also applies.
If by will, may neither of them inherit?

Yes. The testator may institute in his will an

illegitimate relative as his heir.
What do you understand by the
principle, barrier between the *The barrier only applies in intestate succession.
legitimate and the illegitimate?
Can B inherit from Y?
Under this principle, an impassable barrier
exist separating or dividing the members of No. In the irregular order of succession,
the legitimate family from those of the collateral relatives cannot inherit.
illegitimate family.

*This principle applies only to intestate

succession because an illegitimate child may Is this an absolute rule for collateral
inherit by last will and testament. relatives?

What is the reason for the No. Brothers and sisters, nieces and nephews of
aforementioned principle? the illegitimate decedent may inherit.
(dela Merced vs dela Merced)
The intervening antagonism and
incompatibility between the members of the F has four (4) legitimate children named
legitimate and illegitimate family. A, B, C and D. B has an illegitimate child
named X.
The members of the legitimate family always
look down at the illegitimate children as the Illustration:
product of sin, a palpable evidence of a
blemish upon the honor of the family. The F (+1985)
illegitimate children, in turn, always look up
with envy at the privileged position of the
members of the legitimate family.

A BC D
x
 -SUCCESS
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(Dean
Navarro)

In the preceding illustration, F died in 4. surviving spouse

198S. As a result, his estate where
inherited by his four (4) children. If B
died, will X be able to inherit the
properties which B inherited from his
father F?
Yes. In this case Article 992 does not apply. It is
Article 777 that does.
Hence, X may inherit such properties because
he is inheriting from his father and not from F.
5. brother and sisters, nephews and
nieces
6. the state
*The regular order of succession refers to the
order of succession if the decedent is a
legitimate person. The irregular order of the
succession refers to the order of succession if
the decedent is an illegitimate person.

In the preceding problem, suppose A died

ahead of B and B inherited some
properties from A. After B's death, will X
inherit the properties which B inherited
from A?

Yes. In this case, again Article 992 does not

apply. It is Article 777 that does.

Hence, X may inherit such properties because

he is inheriting from his father and not from A.

In Article 777, the right of succession are

transmitted from the moment of death.

However, when F and A died, B has

immediately succeeded them and their
properties now belonged to B. X, therefore
inherits from B and not from F or A.

What is the regular order of

intestate succession?

The order is as follows:

1. legitimate children or
descendants
2. legitimate parents or ascendants
3. illegitimate children or
descendants
4. surviving spouse
5. brothers and sisters, nephews
and nieces
6. other collateral relatives within the
th
5 degree
7. the state

What is the irregular order of intestate

succession? (illegitimate decedent)

1. legitimate children or
descendants
2. illegitimate children of
descendants
3. illegitimate parents
Is a father/daughter-in-law an intestate
heir of a deceased parent-in-law?
No.
*If the legislative intended to make the
surviving spouse an intestate heir of the
parent-in-law, it would have so provided in
the Code {Rosales vs Rosales, GR No. 40789,
February 27, 1987).
*Although Article 978 declares that
succession pertains, in the first place, to
those in the direct descending line, this rule
must be understood to be without prejudice
to the concurrent rights of illegitimate
children or descendants and the surviving
spouse.
st
Can a grandson of a first (1 ) cousin
inherit?
th
No. He is already 6 degree removed from the
decedent.
Why does the law does not permit
th
relatives beyond the 6 degree?
It is in accordance with national economy
and social welfare, more in keeping with the
underlying philosophy of socialization of
ownership of property.
The relationship is already so remote that it
would be stretching human nature to much to
presume that the decedent can still be bound
by the love and affection of such relatives.
*See Problem No. 2 page 408 of Jurado as to
the application of the exclusion theory and
concurrence theory in intestate succession. If
the decedent survived by both legitimate and
illegitimate children, these heirs are
important.
Suppose that X is survived by four (4)
legitimate children and two (2) legitimate
children and surviving spouse. The net
estate is P120,000.00. Distribute.
Legitime of four (4) children if one half (1/2) of
P120,000.00 or P60,000.00, therefore
P15,000.00 each.
Legitime of surviving spouse is the same as
that of one of the legitimate child. Thus, she
will get P15,000.00.
Legitime of an illegitimate child is one half (1/2)
of the legitime of a legitimate child. Thus, each
of the illegitimate child gets P7,500.00 or a
total of (P15,000.00)
 -SUCCESS
ION-
(Dean
Navarro)

Hence, F = 1
G = 2
Each legitimate children's legitime - H = 2
P60,000.00 Wife's legitime -
P15,000.00 Each illegitimate children's Therefore,
legitime - P15,000.00

P90,000.00 D, E and F = 1/7 each

G and H = 2/7 each
Henc
e, H, D and F are dead. What happens?
P120,000.00 - Net Income
P 90,000.00 - Total Amount of I, J, L, M, N and Q shall inherit by right of
Legitime representation because they are survived by
their uncles E and G.
P 30,000.00 - Remaining Estate
In the preceding problem, will the
inheritance be per
Following the concurrence theory: Each of In the preceding illustration, suppose that
the four (4) legitimate children will get A, B and C are dead. Who can inherit from
additional P5,000.00. The wife will get and X?
additional P5,000.00. Each of the two (2)
illegitimate children will get an additional D, E, F, G and H will inherit from X. The 2:1 ratio
P2,500.00 each. shall be applied because they are X's brothers
and sisters of the full blood and of the half
Following the exclusion theory: The blood. Those of the full blood get twice as much
remaining amount of P30,000.00 shall be as the half blood.
divided equally among the four (4) legitimate
children and the wife. Two (2) illegitimate Hence,
children shall be excluded. Hence, the four (4)
legitimate children and W, will get additional D = 1
P6,000.00 each. E = 1

Double share of full blood collaterals as

against the single share of half blood
collaterals: The computation hereunder refer
to the rule on full blood and half blood
collaterals. Do not confuse this with legitimate
and illegitimate issues.

Illustration:

A B

CD E F G H

I J K L M NO P Q

R S
capita or per stirpes? O,P and Q = 2/12 each

Per stirpes, but still adhering to the full and K and Q died, will R and S inherit?

half blood rule. Hence, No. R and S cannot inherit. There is no right of
representation as to the grandnephews and
E = 1/7 grandnieces.
I and J = 1/7
L, M and N = 1/7 Hence,
G = 2/7
Q = 2/7 O and P = 2/9
I,J,L,M and N = each
1/9
Thereafter, E and G died also. What each
happens? The aforementioned are all dead, may R
and S now inherit?
I,J,K,L,M,N,O,P and Q shall inherit in their
own right. The distribution shall be per Yes. (double share rule will not apply)
capita but the full and half blood rule will
still be applied. *Rules in testate succession: Double share rule
Hence,
1. applies only to brothers and sisters,
I,J,K,L,M and N = 1/12 each nephews and nieces
 -SUCCESS
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(Dean
Navarro)

2. does not apply to grandnephews and In the preceding illustration, X was

grandnieces. They shall inherit for as survived by F,M,A, B and W. The only
long as they are of the same degree. disposition in his will is, "I give my friend
P, a legacy of PS,000.00. Distribute.
How will you distribute?

R and S shall divide the estate of X equally In partial intestacy, the heir whose share in
regardless of the source of property and bigger than his legitime, must be reduced in
whether of the full or half blood. order to satisfy the legacy.

The rule on double share does not apply to *The legtitime must never be impaired.
them. It applies only to nephews and nieces.
Hence,
Illustration:
Testate Share
F

F and M (1/2)
A (adopter) P60,000.00 W (1/8)
P15,000.00 A and B
(1/4) P30,000.00
B
Intestate Share

F and M (1/2)
(adopted
P60,000.00 W (1/4)
P30,000.00 A and B
(1/4) P30,000.00
) C
Hence, as shown above, W's legitime is only
In the preceding illustration, suppose B P15,000.00. But, her intestate share is
predeceased A. Can C inherit from A by P30,000.00. Thus, following the rule, we will
right of representation? deduct the legacy to P from W's share.

No. Despite the 1988 Domestic Adoption Act, Final Distribution

the Sayson case still applies.
F and M = P60,000.00
Adoption has created only a legal relationship W = P25,000.00
between the adopter and the adopted. It does
A and B = P30,000.00
not extend to their other relatives.
P = P 5,000.00

If A predecease B, can B inherit from F? P120,000.00

No. The same reason as aforestated. Illustration:

What is the rule on partial intestacy? A

In partial intestacy, the legacy shall be D B E F C G

deducted from the share of the legal heir
whose intestate share is more than his
Se
legitime.
tI

F M

x W
 A B In the preceding illustration, If G died will
C inherit?
Net Estate:
P120,000.00 Yes.

What about F?

No. Because of the barrier between an

legitimate and illegitimate family.
 -SUCCESS
ION-
(Dean
Navarro)

What about A? the same inheritance, devise or legacy,

No. Because an illegitimate grandparent is not
a legal heir. Only the illegitimate parents are
the legal heirs.
What about E, D and B?
the part assigned to the one who
renounces or cannot receive his share, or
who died before the testator, is added or
incorporated to that of his co-heirs, co-
devisees, or co-legatees. (n)

No. Because of the barrier.

Suppose that C died ahead of G. After G's

death, who will inherit?

The State.

Set II

In the illustration, what if it B and C died

ahead of A. After A's death, will D inherit
from A?

Yes. By right of representation.

What about E?

No. Because of the barried.

What about F and G?

Yes. By right of representation. But as between

F and G, the 2:1 ratio shall be applied.

Suppose that the Net Estate is

P90,000.00, how will you distribute?

B = P60,000.00 ------------- D = P60,000.00

C = P30,000.00 ------------- F = P20,000.00
G =P10,000.00

P90,000.00

Article 1015 to Article 1105

Provisions Common to Estate and
Intestate Succession

Article 1015 to
Article 1023 Right
of Accretion

Article 101S

Accretion is a right by virtue of which,

when two or more persons are called to
 Article 1016
In order that the right of accretion
may take place in a testamentary
succession, it shall be necessary:
(1) That two or more persons be called
to the same inheritance, or to the
same portion thereof, pro indiviso;
and
(2) That one of the persons thus called
die before the testator, or renounce the
inheritance, or be incapacitated
to receive it.
(928a)
Article 1017
The words "one-half for each" or "in
equal shares" or any
others which, though designating an
aliquot part, do not identify it by such
description as shall make each heir the
exclusive owner of determinate
property, shall not exclude the right of
accretion.
In case of money or fungible goods, if
the share of each heir is not
earmarked, there shall be a right of
accretion. (983a)
Article 1018
In legal succession the share of the
person who repudiates the inheritance
shall always accrue to his co- heirs.
(981)
Article 1019
The heirs to whom the portion goes by
the right of accretion take it in the same
proportion that they inherit. (n)
Article 1020
The heirs to whom the inheritance
accrues shall succeed to all the rights
and obligations which the heir who
renounced or could not receive it would
have had. (984)
Article 1021
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.
Should the part repudiated be the
legitime, the other co- heirs shall
succeed to it in their own right, and not
by the right of accretion. (98S)
 -SUCCESS
ION-
(Dean
Navarro)

Article 1022 Article 1027

In testamentary succession, when the All other corporations or entities may

right of accretion does not take place,
the vacant portion of the instituted
heirs, if no substitute has been
designated, shall pass to the legal heirs
of the testator, who shall receive it with
the same charges and obligations. (986)
succeed under a will, unless there is a
provision to the contrary in their charter
or the laws of their creation, and always
subject to the same. (746a)

Article 1023

Accretion shall also take place among

devisees, legatees and usufructuaries
under the same conditions established
for heirs. (987a)

Article 1024 to Article

1040 Capacity to Succeed by
Will or by Intestatcy

Article 1024

Persons not incapacitated by law may

succeed by will or ab intestato.

The provisions relating to incapacity by

will are equally applicable to intestate
succession. (744, 914)

Article 102S

In order to be capacitated to inherit, the

heir, devisee or legatee must be living at
the moment the succession opens,
except in case of representation, when it
is proper.

A child already conceived at the time of

the death of the decedent is capable of
succeeding provided it be born later
under the conditions prescribed in
article 41. (n)

Article 1026

A testamentary disposition may be

made to the State, provinces, municipal
corporations, private corporations,
organizations, or associations for
religious, scientific, cultural,
educational, or charitable purposes.
 The following are incapable of
succeeding:
(1) The priest who heard the
confession of the testator during his
last illness, or the minister of the
gospel who extended spiritual aid to
him during the same period;
(2) The relatives of such priest or
minister of the gospel within the
fourth degree, the church, order,
chapter, community, organization, or
institution to which such
priest or minister may belong;
(3) A guardian with respect to
testamentary dispositions given by a
ward in his favor before the final
accounts of
the guardianship have been approved,
even if the testator should die after the
approval thereof; nevertheless, any
provision made by the ward in favor of
the guardian when the latter is his
ascendant, descendant, brother, sister,
or spouse, shall be valid;
(4) Any attesting witness to the
execution of a will, the spouse,
parents, or children, or any one
claiming under
such witness, spouse, parents, or
children;
(S) Any physician, surgeon, nurse,
health officer or druggist who took
care of the testator during his last
illness;
(6) Individuals, associations and
corporations not permitted by law to
inherit. (74S, 7S2, 7S3, 7S4a)
Article 1028
The prohibitions mentioned in article
739, concerning donations inter vivos
shall apply to testamentary provisions.
(n)
Article 1029
Should the testator dispose of the whole
or part of his property for prayers and
pious works for the benefit of his soul, in
general terms and without specifying its
application, the executor, with the court's
approval shall deliver one-half thereof or
its proceeds to the church or
denomination to which the testator may
belong, to be used for such prayers and
pious works, and the other half to the
State, for the purposes mentioned in
Article 1013. (747a)
 -SUCCESS
ION-
(Dean
Navarro)

Article 1030 (3) Any person who has accused the

testator of a crime for which the law
Testamentary provisions in favor of the prescribes imprisonment for six years or
poor in general, without designation of more, if the accusation has been found
particular persons or of any community, groundless;
shall be deemed limited to the poor
living in the domicile of the testator at (4) Any heir of full age who, having
the time of his death, unless it should knowledge of the violent death of the
clearly appear that his intention was testator, should fail to report it to an
otherwise. officer of the law within a month, unless
the authorities have already taken action;
The designation of the persons who are this prohibition shall not apply to cases
to be considered as poor and the wherein, according to law, there is no
distribution of the property shall be made obligation
by the person appointed by the testator to make an accusation;
for the purpose; in default of such
person, by the executor, and should there
be no executor, by the justice of the
peace, the mayor, and the municipal
treasurer, who shall decide by
a majority of votes all questions that
may arise. In all these cases, the
approval of the Court of First Instance
shall be necessary.

The preceding paragraph shall apply

when the testator has disposed of his
property in favor of the poor of a
definite locality. (749a)

Article 1031

A testamentary provision in favor of a

disqualified person, even though made
under the guise of an onerous contract,
or made through an intermediary, shall
be void. (7SS)

Article 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, or ascendants;

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140. copied/modified from: ALLIANCE FOR
ALTERNATIVE ACTION
by: kotch agcaoili
 (S) Any person convicted of adultery or
concubinage with the spouse
of the testator;
(6) Any person who by fraud, violence,
intimidation, or undue influence should
cause the testator to make a will
or to change one
already made;
(7) Any person who by the same means
prevents another from making a will, or
from revoking one already made,
or who supplants, conceals, or alters
the latter's will;
(8) Any person who falsifies or
forges a supposed will of the
decedent. (7S6, 673, 674a)
Article 1033
The cause of unworthiness shall be
without effect if the testator had
knowledge thereof at the time he made
the will, or if, having known of them
subsequently, he should condone them
in writing. (7S7a)
Article 1034
In order to judge the capacity of the
heir, devisee or legatee, his
qualification at the time of the death of
the decedent shall be the criterion.
In cases falling under Nos. 2, 3, or S of
Article 1032, it shall be necessary to
wait until final judgment is rendered,
and in the case falling under No. 4, the
expiration of the month allowed for the
report.
If the institution, devise or legacy
should be conditional, the time of the
compliance with the condition shall also
be considered. (7S8a)
Article 103S
If the person excluded from the
inheritance by reason of incapacity
should be a child or descendant of the
decedent and should have children or
descendants, the latter shall acquire his
right to the legitime.
The person so excluded shall not enjoy
the usufruct and administration of the
property thus inherited by his children.
(761a)
Article 1036
Alienations of hereditary property, and
acts of administration performed by
the excluded heir, before the judicial
order of exclusion, are valid as to the
third persons who acted in good faith;
but the co-heirs shall
page I
141. copied/modified from: ALLIANCE FOR
ALTERNATIVE ACTION
by: kotch agcaoili
 -SUCCESSI
ON-
(Dean Navarro)

have a right to recover damages from

the disqualified heir. (n) 1. Legitime

Article 1037 a. In case of predecease of an heir,

there is representation if there
are children or
The unworthy heir who is excluded
from the succession has a right to
demand indemnity or any expenses
incurred in the preservation of the
hereditary property, and to enforce
such credits as he may have against
the estate. (n)

Article 1038

Any person incapable of succession,

who, disregarding the prohibition
stated in the preceding articles,
entered into the possession of the
hereditary property, shall be obliged to
return it together it its accessions.

He shall be liable for all the fruits and

rents he may have received, or could
have received through the exercise of
due diligence. (760a)

Article 1039

Capacity to succeed is governed by the

law of the nation of the decedent. (n)

Article 1040

The action for a declaration of incapacity

and for the recovery of the inheritance,
devise or legacy shall be brought within
five years from the time the disqualified
person took possession thereof. It may
be brought by any one who may have an
interest in the succession. (762a)

Division in case of conflict of rights

Legitim Free Intesta

e Porti te
Predecease 1. R on
1. A Success
1. R
2. I 2. I 2. IS
Incapacity S
Same S
Same Same
Disinheritance Same Same Same
Repudiation IS A A

Summary

A. In testamentary succession:
 descendants; if none, the others
inherit in their own right.
b. In case of incapacity of an heir, the
results are the same as in
predecease.
c. In case of disinheritance of an heir,
the results are the same as in
predecease.
d. In case of repudiation by an
heir, the heirs inherit in their
own right.
2. Disposable free portion
Accretion takes place when the requisites
stated in Article 1016 are present, but if
such requisites are not present, the other
heirs inherit in their own right.
B. In intestate succession
1. In case of predecease, there is
representation if there are children
or descendants, if none, the other
heirs inherit in their own right.
2. In case of incapacity, the results are
the same as in predecease.
3. In case of repudiation, there is always
accretion.
What is accretion?
It is a right by virtue of which, when two (2) or
more persons are called to the same
inheritance, devise or legacy, the part
assigned to the one renounces or cannot
receive his share or who died before the
testator, is added or incorporated to that of
his co-heirs, co-devisees or co- legatees.
In testamentary succession, when
there may be accretion?
In order that the right of succession may take
place in testamentary succession, it shall be
necessary:
1. that two (2) or more persons are
called to the same inheritance or the
same position thereof, pro indiviso,
and
2. that one of the persons thus called,
died before the testator or renounce
the inheritance or be incapacitated to
receive it.
Can there be accretion when what is
given is money or other fungible
goods?
Yes. Provided that the share of each heir is not
earmarked.
 -SUCCESS
ION-
(Dean
Navarro)

When can you say that they are
earmarked?
If they are particularly designated or physically
segregated from all others of the same class.
If X says in his will, "I give my house and
lot located at 123 Espanya Street,
Manila to my friends A, B and C". A
predeceased X. Will there be an
accretion?
Yes.
Why?
Because all the requisites for accretion in
testamentary succession to arise are
present.
There will be no accretion in case there is a
vacancy. The share rendered vacant goes to
the mass estate of the decedent and the same
will be distributed to the heirs of the decedent
in accordance with the rules of intestate
succession.
X has three (3) legitimate children, A, B
and C. A has four
(4) legitimate children, D,E,F, and G. B has
two (2) legitimate children, H and I. C has
two (2) legitimate children, J and K. X
died intestate leaving a net estate of
P120,000.00. A predecease, B is
incapacitated to inherit while C
repudiated. How will you distribute the
estate?

If X says in his will, "I give the balance of

my savings account with BPI to A, the
balance of my Prudential Bank to B, and
I give my cash which I kept in my drawer
to C."
C predeceases, will there be accretion in
favor of A and B?

None. Because the share of each has been

earmarked.

Testator said in his will, "I give the

entire free portion of my estate to A, B
and C". C repudiated. Will there be an
accretion?

Yes. There will be an accretion in favor of A

and B.

In the preceding problem, will there be a

difference if the testator instead stated
in his will, "I hereby give the entire free
portion of my estate to A, B and C. But, I
hereby designate Y as a substitute for
any or all of them". Will there be
accretion? (Note: C repudiated)

No. There will be no accretion. The share of C

will go to Y because substitution takes
precedence over accretion. The former being
the expressed will of the testator, while the
latter is based only on the presumed will of the
testator.

What happens when the share of each is

earmarked, in case of money or fungible
goods are given?
Illustration: P20,000.00 + P10,000.00 =
P30,000.00 I = P20,000.00 +
x P10,000.00 = P30,000.00

P80,000.00 P40,000.00 P120,000.00

A B C
As computed above, since A predeceased his
D father X, his legitimate children D, E, F and G
E F G H I J K will represent him in the succession. The
same is true in the case of B, who will be
If A did not predeceased, B was not represented by H and I, because B is
incapacitated and C did not repudiate, the incapacitated to inherit.
distribution would have been:
It is different in the case of C who repudiated
his share. Under the law, an heir who
A = P40,000.00
repudiates cannot be represented. Therefore,
B = P40,000.00 the portion rendered vacant by C's
C = P40,000.00 repudiation shall now accrue to his co-heirs. B
is incapacitated, there can be no accretion.
But since A predeceased, B was incapacitated
and C repudiated the inheritance, the In this case, the vacant portion shall pass to
distribution will be: the legal heirs of the decedent. These legal
heirs are D,E,F,G, H and I who will divide such
Share by + C's Share = portion per stirpes because they inherit by
Amount Received Right of representation.
Representation
Will there be a difference in the
D = P10,000.00 + P5,000.00 = preceding problem if all of them (A,B
P15,000.00 E = P10,000.00 + and C) repudiate the inheritance?
P5,000.00 = P15,000.00 F =
P10,000.00 + P5,000.00 = Yes. In this case, E,F,G,H,I,J and K will inherit in
P15,000.00 G = P10,000.00 + their own right.
P5,000.00 = P15,000.00 H =
 -SUCCESSI
ON-
(Dean Navarro)

The law provides that if the inheritance should P5,000.00 Legal heir of X with
be repudiated by the nearest relative, should respect to the
there be only one or by all the nearest legitime which was
relatives called by law to succeed should repudiated by D
there be several of them, those of the
following degree shall inherit in their own P50,000.00 Total Amount Received
right.
B- P15,000.00 Legitime
Hence, D, E, F, G, H,I, J and K being the ones P15,000.00 Voluntary
next in degree shall now inherit in their own share
right. The estate will therefore be distributed P7,500.00 ROA from C's voluntary
as follows: share P7,500.00 ROA from D's
voluntary share
D = P15,000.00 P5,000.00 Legal heir of X with
E = P15,000.00 respect
to the legitime which
F = P15,000.00 was
repudiated by D
G = P15,000.00
H = P15,000.00 P50,000.0 Total Amount
I = P15,000.00 0 Received
J = P15,000.00 E - P7,500.00 Representative of C
K = P15,000.00 P2,500.00 Legal heir of X with
respect
to the legitime
P120,000.00 repudiated
D by

P10,000.0 Total Amount

X has four (4) legitimate children, A, B, C F - 0
P7,500.00 Received
Representative of C
and D. C has two P2,500.00 Legal heir of X with
(2) legitimate children, E and F. D has respect
one (1) legitimate child, G. In his will, X to the legitime
instituted A, B, C and D as his heirs. repudiated by D
However, C predeceased, while D
repudiated. The net income is P10,000.00 Total Amount Received
P120,000.00. How will you distribute the
estate? (This one is testate)

Illustrat P120,00.00 TOTAL AMOUNT

ion x RECEEIVED

In the preceding problem, why is there

A B C no accretion with respect to D's
legitime?

DE F Because the law has reserved the same to the

compulsory heir.

G The first requisite for accretion to arise in

testamentary succession is absent. A, B, C
and D are not called to the
If C did not predecease X, and D did not P15,000.00 = P30,000.00 C -
repudiate the P15,000.00 + P15,000.00 =
inheritance, the distribution would have been P30,000.00 D - P15,000.00 +
as follows: P15,000.00 = P30,000.00
Legitime + Voluntary = Amount P60,000.00 + P60,000.00 =
Received P120,000.00
Share
A - P15,000.00 + P15,000.00 =
P30,000.00 B - P15,000.00 +
However, since C predeceased and D same legitime. Only D was called to it. Hence,
repudiated his inheritance, the distribution of when D repudiated his share/legitime, there is
the estate is as follows: no accretion. Instead, D's legitime will be
distributed to the legal heirs of X in
A- P15,000.00 Legitime accordance with the rules of intestate
P15,000.00 Voluntary succession.
share
P7,500.00 ROA from C's voluntary Besides, the law has reserved the legitime for
share P7,500.00 ROA from D's the compulsory heirs.
voluntary share
In the preceding problem, what if X died
intestate?

If C did not predeceased and D did not

repudiate, the estate would have been
distributed as follows:

A = P30,000.00
B = P30,000.00
C = P30,000.00
D = P30,000.00
 -SUCCESS
ION-
(Dean
Navarro)

But since C predeceased and D repudiated, the But since F repudiated, his share will now
distribution is as follows: accrue to his co- heirs. Hence, the estate will
be distributed as follows:
Intestate share +As Rep of C + ROA =
Amount Legal heir + ROA from F = Amount
Received Received Intestate
A P30,000.00 + +P15,000.00 Share
=P45,000.00
B P30,000.00 + M-P30,00.00 +(2/6xP30T)10T =
+P15,000.00 =P45,000.00 E P40,000.00 M-P30,00.00
+P15,000.00 + +(2/6xP30T)10T = P40,000.00 M-
=P15,000.00 P15,00.00 +(1/6xP30T)10T =
F +P15,000.00 + P20,000.00 M-P15,00.00
=P15,000.00 +(1/6xP30T)10T = P20,000.00

P60,000.00 +P30,000.00 +P30,000.00 P90,000.00 + P30,000.00 =

=P120,000.00 P120,000.00

As computed above: In the preceding problem, what if

instead of repudiation, F predeceased?
A will get P30,000.00 as legal heir and How will you distribute the estate?
P15,000.00 by right of accretion with respect
to D's share (P30,000.00 + P15,000.00 = M = P60,000.00
P45,000.00) W = P30,000.00
A = P15,000.00
B will get the same share as A B = P15,000.00
E will get P15,000.00 as C's representative. P120,000.00
F will also get P15,000.00 as C's Capacity to Succeed
representative.
X died intestate survived by: (a) his Can a dead person inherit?
parent F and M; (b) two (2) illegitimate
children, A and B; and (c) W, his wife. No. In order that a person may inherit, he must
The net estate is P120,000.00. Distribute be living or in existence at the moment the
if F repudiated his share. succession opens. In short, he must have
capacity.
F M

May a person who is not yet born during

x W the death of the decedent inherit?

Yes. If such person has already been

A B conceived at the time of the death of the
decedent, and provided, it be born later under
If F did not repudiate his share, the the conditions prescribed in Article 41 of the
distribution would have been as follows: Civil Code
F = P30,000.00 *Under Article 41 of the Civil Code, the following
M= P30,000.00 are considered born and capacitated to
W= P30,000.00 succeed:
A = P15,000.00
B = P15,000.00 1. a fetus who is alive after it is
completely delivered from the
P120,000.00 mother's womb

2. a fetus having an intra-uterine life of

less than seven {7) months, if it
 survives twenty-four {24) hours and
more, after its complete delivery
from the maternal womb
3. under Article 43, "If there is a doubt,
as between two {2) or more persons
who are called to succeed each other,
as to which of them died first, whoever
alleges the death of one prior to the
other, shall prove the same; in the
absence of proof, it is presumed that
they died at the same
 -SUCCESS
ION-
(Dean
Navarro)

time and there shall be no

transmission of rights from one to the Yes. All of them will be incapacitated. The
other." confession need not be the last confession.

In the case of "other than natural As long as the confession was made during the
persons" it is necessary that there will last illness, the priests who heard the
be juridical personality for them to be confession will be incapacitated to inherit from
capacitated to inherit? the testator.

General rule: Yes

Exception: Associations for religious, scientific,

cultural, educational and charitable purposes
are allowed by law to inherit, although these
associations are not juridical persons and
therefore, has no juridical capacity.

Who are those incapacitated to succeed?

See Article 1027.

*The provisions under Article 1027 refer only

to the free portion. Hence, if the person
concerned is a compulsory heir, only the free
portion given to him is affected - his
legitime is not affected.

Example: If the priest to whom the testator

confessed during his last illness is his own
son, the priest can only get his legitime. He is
only incapacitated to inherit to the free
portion, if he is also instituted to it.

During the last illness of Mr X, he was

visited almost daily by his friend, Father
F. in the will of Mr X, which he executed
that same period, he gave Father F a
legacy.
Will Father F inherit?

Yes. The incapacity extends only to the act of

the priest hearing the confession of the
testator during his last illness.

In this case, Father F merely visited Mr X.

Thereof, Father F may inherit.

Suppose during the last illness of Mr X,

he confessed to three (3) priest, Fathers
A, B and C. Mr X confessed first to A, and
then to B and his last confession was
with Father
C. Will all of them (the priests) be
incapacitated to inherit?
 X made a will in 198S, in that will he
gave his friend, Father F a legacy. Ten
(10) years later in 199S, during the last
illness of X, he confessed to Father F
and then he died. Can Father F inherit?
Yes. The purpose of the law incapacitating a
priest from inheriting if he heard the
confession form the testator during his last
illness, is the possibility of undue influence.
Hence, the law refers to a will executed by
the testator during his last illness, for it is at
this time that undue influence that could
have been exercised.
Therefore, if the testamentary disposition or
the will was executed long before the last
illness, the same is considered valid, for
there could not have been any undue
influence.
Notes:
1.If the testamentary disposition or will was
made long after the last illness, such that,
there was time to reflect on the wisdom of
the testamentary disposition, the
qualification does not apply.
2.Scaevola says: For the disqualification to
attach, not only must the will have been
made during the last illness, it must have
been made also after the confession.
Therefore, if it is made during the last illness,
but before confession, the reason for the law
does not exist.
3.All the priest who heard the confession of the
testator during his last illness are all
incapacitated because the confession need
not be the last. As long as, the confession was
made during the last illness. But the priest
must have actually heard the confession. If
the priest merely does the following, he is not
disqualified to inherit from the testator:
a. administer an unction to the testator
b. read the gospel or the bible to the
testator
c. prayed with the testator
d. any other spiritual aid , which
does not constitute hearing
confesion
4.With respect to ministers of the gospel, all
acts of spiritual aid disqualify him from
inheriting from the testator.
Example: The minister read the gospel to the
testator.
During the last illness of X, he was taken
care by his son, Dr A. During this time
also, X executed a will instituting his son
Dr A as his heir. Will Dr A inherit?
There are two (2) views on the matter.
 -SUCCESS
ION-
(Dean
Navarro)

1.Yes. Because such relatives are dictated by a. Father A is incapacitated under

human nature to take care of the testator Article 1027 (1).
during his illness. To disqualify them because b. Dr B is also incapacitated
of the possibility of undue influence would be under Article 1027(5)
unjust and illogical (Jurado subscribes to this c. C is also incapacitated because
view). he is a relative of Father A within
th
the fourth (4 ) degree. C is
2.No. For the law makes no distinction. It could actually two (2) degrees
have provided for an exception, as in the removed from Father A. So, C is
case of guardians. (Tolentino subscribes to also
this view. Dean Navarro agrees with incapacitated under Article 1027(2).
Tolentino.)
But granting that A,B and C are all incapacitated
In the preceding problem, will Dr A not to inherit from X, the free portion will not go to
get anything? D.

No. Dr A can still get his legitime. The Article 1027 does not prevent an heir who is
disqualification applies only to the free incapacitated thereunder from inheriting as
portion. an intestate heir. Therefore, A, B and C will
still inherit the free portion because they are
Why does the disqualification effects the first in order of the intestate succession.
only the free portion and not the
legitime? Hence, A, B and C will divide the free portion
-P60,000.00 among themselves.
Because the legitime is expressly reserved by
law to the compulsory heirs. The testator Therefore, the share of each will be as follows:
cannot even impair or dispose the legitime.
A - P20,000.00
*Dean Navarro: In connection with Article A's compulsory
1027{4), read in connection with Article 823. heir P20,000.00 A's intestate
heir
Article 823 provides for an exception, "unless B - P20,000.00
there are three {3) other competent A's compulsory
witnesses to such will". heir P20,000.00 A's intestate
heir
During Mr X last illness, he confessed to C - P20,000.00
his son Father A. The doctor who took A's compulsory
care of him was his other son, Dr B. Mr X heir P20,000.00 A's intestate
had three (3) children, A, B and C. In his heir
will he instituted his three (3) children
as heirs. The net estate is P120,000.00. P120,000.00
he died survived by A, B, C and D (the
fist cousin of X). Distribute the estate. Dean Navarro's Lecture:

1. Article 1027 (3) - Guardians

Illustrati x D
on: GF
A B C
F

U
The ns over the may be, as long as the disposition is made in
law person or your favor before the initial accounts of
does guardians over guardianship have been approved, the
not the property of incapacity under Article 1027 applies.
disting the ward.
uish Hence, no 2.Article 1028
betwee matter what
n kind of Correlate this with Article 739 concerning
guardia guardian you donation inter vivos.

The entire estate of P120,000.00 will go to A,
B and C.
1. The legitimes of A, B and C are not
affected. Hence, they are entitled
to their legitime - P60,000.00 or
P20,000.00 for each of them.
2. The issue now is who will be entitled
to the free portion - P60,000.00
Read the case of Nepomuceno vs Court of
Appeals.
3.Article 1029
Apply only the 1/2:1/2 rule (1/2 to the church or
denomination and 1/2 to the government), if the
testator:
a. simply left the property for prayers
and pious works in general terms
b. without specification of its application
 -SUCCESS
ION-
(Dean
Navarro)

The moment the testator specifies the express or implied. When

application of the property, do not apply the
1/2:1/2 rule. Follow the specifications made
by the testator.
Example: If the testator leaves P10M and
says, "I leave P10M for the benefit of my soul
and I order that this about be spent as
follows: (a) there shall be 1,000 masses every
Sunday for the benefit of my souls; (b) there
shall be novena in Baclaran every Wednesday
and in Quaipo every Friday, etc."
4.Article 1032 - Memorize
is there express pardon?
When the decedent condones the act of the
unworthiness in writing.
When is there implied pardon?
When the testator, knowing the act of
unworthiness, executes a will instituting the
person, who has committed the offense as an
heir.

Provides the lists of persons who are rendered

incapable of succedding by reason of
unworthiness. Basically, almost all of these
are also grounds for disinheritance.

5.Article 1032 (5)

The spouse of the testator himself/herself is

not rendered unworthy. It is the person
convicted of adultery or concubinage with the
spouse of the testator who is rendered
unworthy.

Example: Mr X has just one (1) relative in this

whole wide world - his brother B. X married a
very beautiful young lady, W. One quiet
afternoon, X comes home early and finds his
own brother and his own wife having the time
of their lives in bed. X files a case for adultery.
W and B are convicted. After the conviction,
our Mr X died a broken heart. If Mr X died
intestate, who will get the entire estate?

W will get the entire estate. B, the brother of X

is incapacitated to succeed by reason of
unworthiness because he is a person
convicted of adultery with the spouse of the
testator.

Moral Lesson: You must not die without

making a will. Write even a holographic will
expressly disinheriting your lovely spouse.
Otherwise, if you die unexpectedly, you lovely
but unfaithful spouse will inherit the entire
estate.

How is unworthiness

removed? By pardon,
Can an express pardon which has
already been made be withdrawn?
No. The moment the testator has expressly
condoned the act of unworthiness, the act of
unworthiness is eradicated or erased.
What about an implied condonation or
pardon?
By its very nature, an implied
pardon/condonation may be withdrawn
because the testator has the absolute right to
revoke his will, he can revoked his will at any
time for no reason at all.
The moment he revokes his will, wherein the
implied condonation is contained, then there
ceases to be any implied condonation
because the will containing it has ceased to
exist.
Suppose that the act is a cause for
unworthiness and also a cause for
disinheritance, what rules should be
applied?
If the testator submitted himself to the rules of
disinheritance by disinheriting the heir, then
the rules on disinheritance apply.
If he did not disinherit the heir, the rules on
unworthiness apply.
X has a son S. S was convicted of an
attempt against the life of his own
father X. Thereafter, X disinherited S
because of the conviction. Before the
death of X, there was a tearful
reconciliation between father and son.
Can S inherit from his father X?
Yes. Because when X disinherited S, X submitted
himself to the rules on disinheritance.
One of the rules on disinheritance is
reconciliation shall deprived the offended party
of the right to disinherit and it renders
ineffectively any disinheritance previously
made.
In the preceding problem, what if X did
not disinherit S and there was a
reconciliation between them. Will S
inherit?
No. Because S is unworthy to inherit from X.
X, in this case, has not submitted himself to the
rules on disinheritance, precisely because X did
not disinherit S. Therefpre, the rules of
unworthiness apply.
One of the rules of unworthiness is
unworthiness can only be removed by pardon,
express or implied.
When do you terminate the capacity of the
heir?
As of the moment of death of the decedent.
 -SUCCESS
ION-
(Dean
Navarro)

Why?

Because it is only upon the moment of death

of the decedent when there is transmission of
successional rights.

If the institution or the testamentary

provision is subject to a suspensive
condition, when should you determine
the capacity of the heir, devisee or
legatee?

There are two (2) moments to be considered:

1. capacity must be possessed at the

moment of death of the decedent,
and

2. at the moment the condition is fulfilled.

If capacity is possessed only at the moment of

death of the decedent, but capacity is no
longer possessed at the time the condition is
fulfilled, then the heir or beneficiary concerned
is no longer capacitated to inherit or succeed.
 -SUCCESS
ION-
(Dean
Navarro)

Article 1041 to Article 1057 Article 1046

Acceptance and Repudiation of the
Inheritance Public official establishments can
neither accept nor repudiate an
Article 1041 inheritance without the approval of the
government. (994)
The acceptance or repudiation of the
inheritance is an act which is purely
voluntary and free. (988)

Article 1042

The effects of the acceptance or

repudiation shall always retroact to the
moment of the death of the decedent.
(989)

Article 1043

No person may accept or repudiate an

inheritance unless he is certain of the
death of the person from whom he is to
inherit, and of his right to the
inheritance. (991)

Article 1044

Any person having the free disposal of

his property may accept or repudiate an
inheritance.

Any inheritance left to minors or

incapacitated persons may be accepted
by their parents or guardians. Parents
or guardians may repudiate the
inheritance left to their wards only by
judicial authorization.

The right to accept an inheritance left to

the poor shall belong to the persons
designated by the testator to determine
the beneficiaries and distribute the
property, or in their default, to those
mentioned in Article 1030. (992a)

Article 104S

The lawful representatives of

corporations, associations, institutions
and entities qualified to acquire property
may accept any inheritance left to the
latter, but in order to repudiate it, the
approval of the court shall be necessary.
(993a)
 Article 1047
A married woman of age may repudiate
an inheritance without the consent of
her husband. (99Sa)
Article 1048
Deaf-mutes who can read and write may
accept or repudiate the inheritance
personally or through an agent. Should
they not be able to read and write, the
inheritance shall be accepted by their
guardians. These guardians may
repudiate the same with judicial
approval. (996a)
Article 1049
Acceptance may be express or tacit.
An express acceptance must be made
in a public or private document.
A tacit acceptance is one resulting from
acts by which the intention to accept is
necessarily implied, or which one would
have no right to do except in the
capacity of an heir.
Acts of mere preservation or provisional
administration do not imply an
acceptance of the inheritance if, through
such acts, the title or capacity of an heir
has not been assumed. (999a)
Article 10S0
An inheritance is deemed accepted:
(1) If the heirs sells, donates, or
assigns his right to a stranger, or
to his co-heirs, or to any of them;
(2) If the heir renounces the same,
even though gratuitously, for the
benefit of one or more of his co-
heirs;
(3) If he renounces it for a price in
favor of all his co-heirs
indiscriminately; but if this
renunciation should be
gratuitous, and the co-heirs in whose
favor it is made are those upon whom
the portion renounced should devolve by
virtue of accretion, the inheritance shall
not be deemed as accepted. (1000)
 -SUCCESS
ION-
(Dean
Navarro)

Article 10S1
The 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.
(1008)
Article 10S2
The acceptance or repudiation of an
inheritance, once made, is irrevocable,
and cannot be impugned, except when it
was made through any of the causes that
vitiate consent, or when an unknown will
appears. (997)
Article 10S7

Within thirty days after the court has

If the heir repudiates the inheritance to
issued an order for the distribution of the
the prejudice of his own creditors, the
estate in accordance with the Rules
latter may petition the court to
authorize them to accept it in the name
of the heir.

The acceptance shall benefit the creditors

only to an extent sufficient to cover the
amount of their credits. The excess,
should there be any, shall in no case
pertain to the renouncer, but shall be
adjudicated to the persons to whom, in
accordance with the rules established in
this Code, it may belong. (1001)

Article 10S3

If the heir should die without having

accepted or repudiated the inheritance
his right shall be transmitted to his
heirs. (1006)

Article 10S4

Should there be several heirs called to

the inheritance, some of them may
accept and the others may repudiate it.
(1007a)

Article 10SS

If a person, who is called to the same

inheritance as an heir by will and ab
intestato, repudiates the inheritance
in his capacity as a testamentary heir, he
is understood to have repudiated it in
both capacities.

Should he repudiate it as an intestate

heir, without knowledge of his being a
testamentary heir, he may still accept it
in the latter capacity. (1009)

Article 10S6
page I
150. copied/modified from: ALLIANCE FOR
ALTERNATIVE ACTION
by: kotch agcaoili
 of Court, the heirs, devisees and
legatees shall signify to the court
having jurisdiction whether they accept
or repudiate the inheritance.
If they do not do so within that time,
they are deemed to have accepted the
inheritance. (n)
Article 1058 to Article 1060
Article 10S8
All matters relating to the
appointment, powers and duties of
executors and administrators and
concerning the administration of
estates of deceased persons shall be
governed by the Rules of Court. (n)
Article 10S9
If the assets of the estate of a decedent
which can be applied to the payment of
debts are not sufficient for that
purpose, the provisions of Articles 2239
to 22S1 on Preference of Credits shall be
observed, provided that the expenses
referred to in Article 2244, No. 8, shall
be those involved in the administration
of the decedent's estate. (n)
Article 1060
A corporation or association authorized
to conduct the business of a trust
company in the Philippines may be
appointed as an executor, administrator,
guardian of an estate, or trustee, in like
manner as an individual; but it shall not
be appointed guardian of the person of a
ward. (n)
Article 1061 to
Article 1077
Collation
Article 1061
Every compulsory heir, who succeeds
with other compulsory heirs, must bring
into the mass of the estate any property
or right which he may have received
from 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. (103Sa)
Article 1062
Collation shall not take place among
compulsory heirs if the donor should
have so expressly provided, or if the
donee should repudiate the inheritance,
unless the donation should be reduced
as inofficious. (1036)
page I
151. copied/modified from: ALLIANCE FOR
ALTERNATIVE ACTION
by: kotch agcaoili
 -SUCCESS
ION-
(Dean
Navarro)

Article 1063 Article 1069

Property left by will is not deemed Any sums paid by a parent in

subject to collation, if the testator has satisfaction of the debts of his children,
not otherwise provided, but the legitime election expenses, fines, and similar
shall in any case remain unimpaired. expenses shall be brought to collation.
(1037) (1043a)

Article 1064 Article 1070

When the grandchildren, who survive

with their uncles, aunts, or cousins,
inherit from their grandparents in
representation of their father or mother,
they shall bring to collation all that their
parents, if alive, would have been
obliged to bring, even though such
grandchildren have not inherited the
property.
They shall also bring to collation all that
they may have received from the
decedent during his lifetime, unless the
testator has provided otherwise, in which
case his wishes must be respected, if the
legitime of the co-heirs is not
prejudiced. (1038)
Expenses incurred by the parents in giving
their children a professional, vocational or
other career shall not be brought to
collation unless the parents so provide, or
unless they impair the legitime; but when
their collation
is required, the sum which the child
would have spent if he had lived in the
house and company of his parents shall
be deducted therefrom. (1042a)

Article 106S

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. (1039)

Article 1066

Neither shall donations to the spouse of

the child be brought to collation; but if
they have been given by the parent to
the spouses jointly, the child shall be
obliged to bring to collation one-half of
the thing donated. (1040)

Article 1067

Expenses for support, education,

medical attendance, even in
extraordinary illness, apprenticeship,
ordinary equipment, or customary
gifts are not subject to collation.
(1041)

Article 1068
 Wedding gifts by parents and
ascendants consisting of jewelry,
clothing, and outfit, shall not be
reduced as inofficious except insofar
as they may exceed one-tenth of the
sum which is disposable by will. (1044)
Article 1071
The same things donated are not to be
brought to collation and partition, but
only their value at the time of the
donation, even though their just value
may not then have been assessed.
Their subsequent increase or
deterioration and even their total loss
or destruction, be it accidental or
culpable, shall be for the benefit or
account and risk of the donee. (104Sa)
Article 1072
In the collation of a donation made by
both parents, one- half shall be brought
to the inheritance of the father, and the
other half, to that of the mother. That
given by one alone shall be brought to
collation in his or her inheritance.
(1046a)
Article 1073
The donee's share of the estate shall be
reduced by an amount equal to that
already received by him; and his co- heirs
shall receive an equivalent, as much as
possible, in property of the same nature,
class and quality. (1047)
Article 1074
Should the provisions of the preceding
article be impracticable, if the property
donated was immovable, the co-heirs
shall be entitled to receive its
equivalent in cash or securities, at the
rate of quotation; and should there be
neither cash or marketable securities in
the estate, so much of the other
property as may be necessary shall be
sold at public auction.
If the property donated was movable, the
co-heirs shall only have a right to select
an equivalent of other personal property
of the inheritance at its just price. (1048)
 -SUCCESS
ION-
(Dean
Navarro)

Article 107S Article 1080

The fruits and interest of the property
subject to collation shall not pertain to
the estate except from the day on which
the succession is opened.
For the purpose of ascertaining their
amount, the fruits and interest of the
property of the estate of the same
kind and quality as that subject to
collation shall be made the standard of
assessment. (1049)
Article
1076
Where there are two or more heirs, the
whole estate of the decedent is, before its
partition, owned in common by such heirs,
subject to the payment of debts of the
deceased. (n)
Article
1079
Partition, in general, is the separation,
division and assignment of a thing held
in common among those to whom it may
belong. The thing itself may be divided,
or its value. (n)

The co-heirs are bound to reimburse to

the donee the necessary expenses which
he has incurred for the preservation of
the property donated to him, though they
may not have augmented its value.

The donee who collates in kind an

immovable which has been given to him
must be reimbursed by his co-heirs for
the improvements which have increased
the value of the property, and which
exist at the time the partition if
effected.

As to works made on the estate for the

mere pleasure of the donee, no
reimbursement is due him for them; he
has, however, the right to remove them,
if he can do so without injuring the
estate. (n)

Article
1077

Should any question arise among the

co-heirs upon the obligation to bring to
collation or as to the things which are
subject to collation, the distribution of
the estate shall not be interrupted for
this reason, provided adequate security
is given. (10S0)

Partition and Distribution of

the Estate Article 1078 to
Article 1090

Article
1078
 Should a person make partition of his
estate by an act inter vivos, or by will,
such partition shall be respected,
insofar as it does not prejudice the
legitime of the compulsory heirs.
A parent who, in the interest of his or
her family, desires to keep any
agricultural, industrial, or
manufacturing enterprise intact, may
avail himself of the right granted him in
this article, by ordering that the
legitime of the other children to whom
the property is not assigned, be paid in
cash. (10S6a)
Article 1081
A person may, by an act inter vivos or
mortis causa, intrust the mere power
to make the partition after his death
to any person who is not one of the
co-heirs.
The provisions of this and of the
preceding article shall be observed even
should there be among the co-heirs a
minor or a person subject to
guardianship; but the mandatary, in
such case, shall make an inventory of
the property of the estate, after
notifying the co-heirs, the creditors, and
the legatees or devisees. (10S7a)
Article 1082
Every act which is intended to put an end
to indivision among co-heirs and
legatees or devisees is deemed to be a
partition, although it should purport to
be a sale, and exchange, a compromise,
or any other transaction. (n)
Article 1083
Every co-heir has a right to demand the
division of the estate unless the testator
should have expressly forbidden its
partition, in which case the period of
indivision shall not exceed twenty years
as provided in article 494. This power of
the testator to prohibit division applies
to the legitime.
Even though forbidden by the testator,
the co-ownership terminates when any
of the causes for which partnership is
dissolved takes place, or when the court
finds for compelling reasons that
division should be ordered, upon petition
of one of the co-heirs. (10S1a)
 -SUCCESS
ION-
(Dean
Navarro)

Article 1084 Article 1090

Voluntary heirs upon whom some price of the sale, provided they do so
condition has been imposed cannot within the period of one month from the
demand a partition until the condition time they
has been fulfilled; but the other co-heirs were notified in writing of the sale by the
may demand it by giving sufficient
security for the rights which the former vendor. (1067a) Article 1089
may have in case the condition should
be complied with, and until it is known
The titles of acquisition or ownership of
that the condition has not been fulfilled
each property shall be delivered to the
or can never be complied with, the
co-heir to whom said property has been
partition shall be understood to be
adjudicated. (106Sa)
provisional. (10S4a)

Article 108S

In the partition of the estate, equality

shall be observed as far as possible,
dividing the property into lots, or
assigning to each of the co-heirs things
of the same nature, quality and kind.
(1061)

Article 1086

Should a thing be indivisible, or would be

much impaired by its being divided, it
may be adjudicated to one of the heirs,
provided he shall pay the others the
excess in cash.

Nevertheless, if any of the heirs should

demand that the thing be sold at public
auction and that strangers be allowed
to bid, this must be done. (1062)

Article 1087

In the partition the co-heirs shall

reimburse one another for the income
and fruits which each one of them may
have received from any property of the
estate, for any useful and necessary
expenses made upon such property, and
for any damage thereto through malice
or neglect. (1063)

Article 1088

Should any of the heirs sell his

hereditary rights to a stranger before
the partition, any or all of the co-heirs
may be subrogated to the rights of the
purchaser by reimbursing him for the
Art. 1090. When the title comprises two
or more pieces of land which have been
assigned to two or more co-heirs, or
when it covers one piece of land which
has been divided between two or more
co-heirs, the title shall be delivered to
the one having the largest interest, and
authentic copies of the title shall be
furnished to the
other co-heirs at the expense of the
estate. If the interest of each co-heir
should be the same, the oldest shall
have the title. (1066a)
Article 1091 to
Article 1096
Effects of Partition
Article 1091
A partition legally made confers upon
each heir the exclusive ownership of
the property adjudicated to him.
(1068)
Article 1092
After the partition has been made, the
co-heirs shall be reciprocally bound to
warrant the title to, and the quality of,
each property adjudicated. (1069a)
Article 1093
The reciprocal obligation of warranty
referred to in the preceding article shall
be proportionate to the respective
hereditary shares of the co-heirs, but if
any one of them should be insolvent, the
other co-heirs shall be liable for his part
in the same proportion, deducting the
part corresponding to the one who
should be indemnified.
Those who pay for the insolvent heir
shall have a right of action against him
for reimbursement, should his financial
condition improve. (1071)
Article 1094
An action to enforce the warranty among
heirs must be brought within ten years
from the date the right of action accrues.
(n)
Article 109S
If a credit should be assigned as
collectible, the co-heirs shall not be
liable for the subsequent insolvency of
the debtor of the estate, but only for his
insolvency at the time the partition is
made.
The warranty of the solvency of the
debtor can only be enforced during the
five years following the partition.
 -SUCCESS
ION-
(Dean
Navarro)

Co-heirs do not warrant bad debts, if so
known to, and accepted by, the
distributee. But if such debts are not
assigned to a co-heir, and should be
collected, in whole or in part, the amount
collected shall be distributed
proportionately among the heirs. (1072a)
lesion, except when the legitime of the
compulsory heirs is thereby prejudiced,
or when it appears or may reasonably be
presumed, that the intention of the
testator was otherwise. (107S)
Article 1100

Article 1096 The action for rescission on account of

lesion shall prescribe after four years
The obligation of warranty among co- from the time the partition was made.
heirs shall cease in the following cases: (1076)

(1) When the testator himself has made

the partition, unless it appears, or it may
be reasonably presumed, that his
intention was otherwise, but the legitime
shall always
remain
unimpaired;

(2) When it has been so expressly

stipulated in the agreement of
partition, unless there has been bad
faith;

(3) When the eviction is due to a cause

subsequent to the partition, or has
been caused by the fault of the
distributee of the property. (1070a)

Article 1097 to Article

1105 Rescission and
Nullity of Partition

Article 1097

A partition may be rescinded or annulled

for the same causes as contracts.
(1073a)

Article 1098

A partition, judicial or extra-judicial, may

also be rescinded on account of lesion,
when any one of the co- heirs received
things whose value is less, by at least
one- fourth, than the share to which he
is entitled, considering the value of the
things at the time they were adjudicated.
(1074a)

Article 1099

The partition made by the testator

cannot be impugned on the ground of
 Article 1101
The heir who is sued shall have the
option of indemnifying the plaintiff for
the loss, or consenting to a new
partition.
Indemnity may be made by payment in
cash or by the delivery of a thing of the
same kind and quality as that awarded
to the plaintiff.
If a new partition is made, it shall
affect neither those who have not
been prejudiced nor those have not
received more than their just share.
(1077a)
Article 1102
An heir who has alienated the whole or
a considerable part of the real property
adjudicated to him cannot maintain an
action for rescission on the ground of
lesion, but he shall have a right to be
indemnified in cash. (1078a)
Article 1103
The omission of one or more objects or
securities of the inheritance shall not
cause the rescission of the partition on
the ground of lesion, but the partition
shall be completed by the distribution of
the objects or securities which have
been omitted. (1079a)
Article 1104
A partition made with preterition of any
of the compulsory heirs shall not be
rescinded, unless it be proved that there
was bad faith or fraud on the part of the
other persons interested; but the latter
shall be proportionately obliged to pay
to the person omitted the share which
belongs to him. (1080)
Article 110S
A partition which includes a person
believed to be an heir, but who is not,
shall be void only with respect to such
person. (1081a)
General Rule: When acceptance or repudiation
is made it becomes irrevocable.
Exceptions:
 -SUCCESS
ION-
(Dean
Navarro)

Acceptance and repudiation will always *Acceptance is easier to do, rather than
retroact to the moment of death of the repudiation. One can even be deemed to have
decedent. accepted without doing anything.

Reasons: Can there be acceptance of inheritance

even without doing anything?
1. it is at that moment when there is
Yes.
transmission of successional rights

2. the law wants to avoid any

interregnum, in so far as, ownership of
property is concerned

Article 1047

1. Under the present law, a married

woman either repudiate or accept an
inheritance without the consent of her
husband.

2. There used to be a provision in Article

114 of the Civil Code wherein, the
wife cannot without the husband's
consent acquire any property by
gratuitous title, except from her
ascendants, descendants, parents-in-
law and collateral
th
relatives within the fourth (4 ) civil
degree. This
provision has been repealed by the
Family Code

3. Right now, a married woman may

either accept or repudiate an
inheritance without her husband's
consent.

When is there an express acceptance?

There is an express acceptance when it is

made in a public or private document.

*Take note of the instances when there is an

implied acceptance.

When is there an implied acceptance?

Generally, there is an implied acceptance when

one executes an act by which the intention to
accept is necessarily implied or which one
would have no right to do except in the
capacity of an heir.

What are the instances when an

inheritance is deemed accepted?

See Article 1050.

When can the aforementioned happen?
If the heirs, devisees or legatees do not do
anything within a period of thirty (30) days
after the court has issued an order for the
distribution of the estate, they are deemed
to have accepted the inheritance.
How do you repudiate?
Repudiation shall be made:
1. In a public instrument
2. In an authentic instrument
3. By a petition presented to the court
having jurisdiction over the
testamentary or intestate
proceedings
When an instrument is considered
authentic?
If its genuiness cannot be doubted or when it
is clearly established.
When is an instrument public?
When it is acknowledged before a notary
public.
*Take note of the rights granted by law to
the creditors under Article 1052. Remember
that in no case shall the excess be given to
the repudiating heir, precisely because he has
repudiated.
Collation
General Rule: Donations given to the
compulsory heirs are charged to their
legitime.
Exception: If the donor provides otherwise.
Note:
1.Even if the donation made in favor of a
compulsory heir is termed "irrevocably
granted", this is still subject to collation.
2.And even if the testator said that it will not be
subject to collation, the point of the matter is
that, even if it is not subject to collation, the
same must still be collated in the sense of
addition.
3.Expenses spent by the parent for the college
education of the child, is to be collated. The
value shall be added to the value of the
estate, but it shall be charged against the free
portion not against the leigitime, unless
otherwise: (a) provided by the parents, (b)
they impair the legitime. (See Article 1068 on
what must be deducted).
 -SUCCESS
ION-
(Dean
Navarro)

4.Article 1066 - Donations made to son-in- The aforementioned are not subject to
law or daughter-in-law are charged to the collation. It is not even added to the value of
free portion, because they are considered the estate.
strangers.
Illustration of Collation:
5.Article 1064 and Article 1065
a. expenses for support
If the grandchildren will be inheriting by right b. education (elementary and high school)
of representation, the donations given to the c. medical attendance, even in
grandchildren are to be brought to collation extraordinary illness
and charged against what they may have d. apprenticeship
received by right of representation. e. ordinary equipment
f. customary gifts
However, if such grandchild/children will not
be inheriting by right of representation
because their parents are still alive, the rule
is, the donations will be charged against the
free portion.

6.Article 1069

Any sum paid by a parent in satisfaction of

the debt of his children, election expenses,
fines and similar expenses shall be charged
to the legitime.

Exception: if the parents did not give this as

something free, but instead, expected to be
paid back by the child, for whatever amount
the parent may have spent.

In this case, while it is not subject to collation,

the parent is considered as an unpaid
creditor, who is entitled to the claim of
reimbursement.

7.Article 1070 (Wedding Gifts)

Rule: As long as it does not exceed one tenth

(1/10) of the dispositive portion of the
decedent's estate, they are charged against
the free portion. If there is any excess, the
excess shall be charged against the legitime of
the concerned.

8.Article 1067 and Article 1068

Expenses for (a) elementary and (b) high-

school education are not subject to collation.
Not even in the sense of addition. Only the
expenses for tertiary education are subject to
collation in the sense of addition under Article
1068.

7.The enumeration under Article 1067 are

absolutely not subject to collation, not even
collation in the sense of addition:
 x A) Net Estate =

A D W P500,000.00 Donations:
B C
P30,000.00 = Election
Expenses of B P10,000.00 =
E Ring given to E
P20,000.00 = Bracelet given to W
X has four (4) children, A, B, C and D. D P40,000.00 = Wedding gift to D
is married to W. B has a son named E. X P10,000.00 = College education
died with a net worth of PS00,000.00. of C
During X's lifetime, he made the
following disposition: He spent P610,000.00 = Total Hereditary
P300,000.00 for the medical expenses Estate
of A. He spent P30,000.00 for the
election expenses of B, when he ran for The medical expenses of A is not added, as
a public office. He gave his grandson, E, mentioned in Article 1067.
a ring worth P10,000.00. He gave his
daughter-in-law, W, a bracelet worth B) Hence, the total hereditary estate is
P20,000.00. When P610,000.00. From this amount, we ascertain
D got married, X gave D jewelries worth the legitime and the free portion. The legitime
P40,000.00, as a wedding gift. He also of A,B,C, and D is P305,00.00 or P76,250.00
spent P10,000.00 for the college each. The free portion is P305.000.
education of his own son C.
Second Step: Collation in the sense of
First Step: Collation in the sense of Charging or Imputation
Addition
In this case, determine where to deduct the
items. Whether it should be deducted from the
legitime or from the free portion.
 -SUCCESS
ION-
(Dean
Navarro)

Legitime - Deductions + FP = 4.The bracelet worth P20,000.00 given to W,

Amount Received Imputations shall be deducted from the free portion,
under Article 1066.
A:P76,250.00 - - +P58,625.00 =
P134,875.00 B:P76,250.00 - - P30,000.00 5.The wedding gift of P40,000.00 in the form of
+P58,625.00 = P104,875.00 jewelries. The special rule is, insofar as it does
(election expenses) not exceed one-tenth (1/10) of the free portion,
C:P76,250.00 - - +P58,625.00 = it shall be charged in the free portion, if it
P134,875.00 D:P76,250.00 - - P9,500.00 exceeds, the excess shall be charged to the
+P58,625.00 = P125,375.00 legitime.
(excess of wedding gifts)
Hence,
P305,000.00 - - P39,500.00 +
P234,500.00 = P500,000.00 Free Portion =P305,000.00

Deductions/Imputations on the Wedding Gift (Jewelries)

Free Portion Free Portion =P40,500.00 (minus)

10% of the FP (10% x P305,000.00) =
P30,500.00
P305,000.00
Excess of 10% of FP =P9,500.00
(-minus)

Ring given to E

P10,000.00 Bracet given to

W

P20,000.00 Wedding gift to

D

P30,500.00 College
Education of C P10,000.00

P70,500.00

Remaining Free Portion -

P234,500.00 Explanation:

1.The remaining free portion of P234,500.00

will be divided among A,B, C and D.
Hence, each of them will received
P58,625,00

2.As aforementioned, the P30,000.00 election

expenses shall be deducted from B's
legitime, under Article 1069.

3.The P10,000.00 ring given to E shall be

deducted from the free portion because his
father B is still alive; hence, he is considered
as a stranger.
 In this case, charged the P30,500.00 to the Mang - Oy vs CA
free portion and the P9,500.00 to D's
legitime. Dean Navarro: Take note of the decision
applying Article 1080, a valid partition may be
6.The P10,000.00 for the college education of based on a void will. The beneficiaries in this
C shall be charged to the free portion. case were children of the decedent. Therefore,
they were at least legal heirs
Partition
Note:
Article
1.Artcile 1094.
1080
2.Warranty among co-heris with respect to
1.Even an invalid will may be conditioned tile and quality.
on a valid partition, it is in fact a partition
and the owner allots a specific properties 3.Article 1102
among the heirs.
4.Remember there is no obligation of warranty
2.The heirs under such will or inherited among c0- heirs, in cases provided for under
under such will must be at least be legal Article 1096. Memorize the enumeration
heirs.
5. Article 1104, 1105.
Why is it necessary that they must be
legal heirs? 6. Article 1033

Because the partition is not a mode of

acquiring ownership. There must be a mode
of acquiring ownership and the mode of
acquiring ownership can only be the mode
of succession. Here we are it's not a prefect world.
-F4