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What is this? It is my personal reviewer, where I got stuff from Champ,  Mixed
Beda Memaid and MOST from Ruben (Who says he is not that smart o Prescription
but is terribly good looking). Some stuff also repeat a lot. If it repeats Succession created the fiction of legal personality that survives the
it means sir gave it a lot of weight. death of a person.

Title IV. – SUCCESSION Succession under Spanish Law

INTRODUCTION For Manresa it: Implies the subrogation or the replacement of one
The word succession derives itself from two different Latin words: person by another in a juridical situation.
 Sub – Under Manresa also says: Substitution of one person for another in a specific
 Cedere – to Transfer or Surrender. legal situation.
Thus when you place them together it means “to pass under”. Castan Says: substitution of one person in the transmissible rights of
Succession is moving under the canopy of the legal capacity of the another.
predecessor. This is since when a person dies, his civil personality is Dictionary of Spanish Letters: It implies the action of one person or
extinguished. thing taking the place of another.
Gaian Oder – refers to the arrangements of civil law. Elements of Succession
 The legal scholar Gaius wrote a treatise on civil law called 1. Subjective Change
the institutes, here he divided Civil law in to 3: 2. Objective Identity
o Law of Persons a. Means two things
o Law of Things i. The thing passed by succession remains the same.
o Law of Obligations ii. The rights to the thing are the same – i.e they do not
Modes of Acquiring Ownership:
1. It means that if a dad dies and the kid inherits, the
 Original child will own the land. The nature of the
o Occupation ownership does not change into something like a
 This contemplates that the item is res nullis, or that there usufruct.
is an act of abandonment by a person.
 Kinds of Succession:
o Intellectual creation
1. According to the when it is transmitted:
 Derivative – These are instances where the ownership is 1. Inter Vivos
transferred from someone else.
 This is not called succession – it is called donation.
o Donation
2. Mortis Causa
o Succession
 Succession upon death of the decedent.
o Law
2. As to Extent of rights that are involved
o Tradition – acquisition by means of delivery (ex. Sale)
1. Universal Succession
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 Succession to the entire estate, or fractional part. 5. Within the family, relatives within equal degree of
2. Particular Succession relationships shall inherit in equal shares.
 Succession to limited to specific items 6. The state has a share in the inheritance.
 Kinds  It shares in two ways
o Devise a. Taxes
 Specific RP b. If a person dies without a will and without relatives,
o Legacy then the state will inherit. The State is a person’s last
 Specific personal property heir.
3. According to cause and Importance: In this order 7. The heirs are not liable for the debts of the decedent beyond
 Compulsory their share in the succession (774 & 776).
 Testamentary What is the basis of Succession?
 Intestate
 Some say that the basis is family law, but this is not true when it
 Who are the parties in Succession?
comes to testamentary succession, since you can make it go
1. Decedent – Auctor, causante, de cuius, transferor
outside the family
 Dies with a will he is called a testator
 Some say that it is a part of property
 If he dies without a will he is called a decedent
 Castan on the hand is of the view that it is both family and property
2. Successor – Transferee, causante habiente
 Heir – who succeeds by universal title.
 Legatee/Devisee – who succeeds by particular title to What are the changes that were made by our Civil Code?
specific property. 1. Allowance of Holographic Wills. This as allowed by the Spanish
law, but this was repeal when the Americans came, but this was
 Principles in Succession eventually revived in the NCC.
1. Succession cannot take place during the lifetime of the owner. 2. Greater facility in probate – here the validity of the will as to its
 This is since in our country we limit succession to form is passed on by the courts. In our law there are 2 kinds of
succession mortis causa. probate, a post mortem and an ante mortem.
 During the lifetime of the decedent, the rights of the heirs 3. Improvement in the successional position of the surviving spouse.
or legates is just an expectancy In the old law the spouse only had usufruct, the spouse does not
2. The interest of the family ay override the interest of the own.
decedent. 4. Abolition of the mejora (improvement or betterment).
 In our country we have compulsory heirs, such as the 5. Abolition of the reserves and reversiones, EXCEPT Reserva
children, and spouse Troncal.
3. The estate will pass to the family, unless the decedent declares 6. The application to succession of article 739 of the law on
otherwise by making a valid will. donations
 It can pass to a relative up to the 5th degree 7. Increase in the free portion. i.e void donations
4. A family cannot be entirely deprived of an estate.

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o Those that were made between persons who are guilty of parents – ie. Obey parent still he reaches the age of
adultery of concubinage at the time of the donation majority, and to respect them as long as they may be alive.
o Those made between persons found guilty of the same o He has siblings
criminal offense, in consideration thereof  There is the right of fraternity, a thus comes with the duty
o Those made to a public officer or his wife, descendants and to support when the need arises.
ascendants, by reason of his office. o He is a student
8. Limitation of the fidei commissary substitution to only one degree.  He has a certain obligation towards the school and the
Previously it was two degrees school has certain obligations towards him.
9. Successional rights for spurious children – i.e granting o He is married
successional rights to those that were disqualified to marry, but o He has children (Paternity)
have a child among themselves. – this was not allowed before.  There are some legal relationships that are intuit personae –
10. Limit of intestate succession has been narrowed from six degrees inherent in the person. These are the legal relationships that die
to 5 degrees. with the person.
11. Abolition of the sustitucion popular and sustitucion ejemplar.  The opposite of this are patrimonial rights. These on the other
These were provisions that allowed the father that allowed to hand are transmissible. These are the legal relationships that do
make a will for his children that were mentally incapacitated or not die with a person.
may die before age of majority. o This the question is what do we do with the legal realtionships
that survive him.
 What is succession?
Our law on succession is mostly based on the Spanish code. As a
o A set of rules which regulate how legal relationships are to go,
matter of fact there are only 29 articles in Succession that were
influenced by American Law, out of 332 articles.
1. To whom,
2. At what time,
Lecture by JBL Reyes: 3. In what proportions, and
 He says that during a person’s lifetime he is at the center of many 4. In what manner
different legal relations. Below are just a few.
o He is a Filipino Citizen CHAPTER 1
 This has already a bundle of legal relationships – i.e. to
vote and run for public office, protection by or
government, render compulsory military or civil service  What causes the transmission of the property is (1) the will or (2)
in times of war, taxes, etc. law
o He is a child to his parents (Filiation)  Remember: Not all non-monetary debts are non-transferrable.
 This has the legal relationship of affiliation, and there are There are some contracts that the heirs must respect – ex. Lease,
also obligations on behalf of the child – ie. Support, usufruct, etc.
succession, surname. He also has an obligation to his
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 A money debt is not extinguished by death. It passes to the heirs, o Money obligations of the deceased pass to the heirs to the
but the heirs may only be held liable for this money debt up to the extent that they inherit.
extent of their inheritance. o The article mandates that the heirs receive the estate, then pay
off the creditors.
o The rules of court mandate that the debts be paid first before
Art. 774. Succession is a mode of acquisition by virtue of which the estate is distributed among the successors.
the property, rights and obligations to the extent of the value of  It is only when all of the obligations of the deceased are settled
the inheritance, of a person are transmitted through his death to that the estate may be distributed among the heirs.
another or others either by his will or by operation of law. (n) o It is only when the debts and the costs of administration have
 Succession is a mode of acquiring ownership been paid that the court may assign the residue, and it only
o This has to be read along with 712 where it states that: upon then that an action to recover may be filed.
Ownership and other real rights may be transmitted by testate  In our country, the creditors of the deceased must claim against
and intestate succession. the estate and not against the heirs.
 Sir: Succession is a mode of acquisition by virtue of which  The responsibility of the heirs for the debts of their successors
inheritance of a person is transmitted through his death to cannot exceed the value of the inheritance that they receive.
another or others either by his will or operation of law.  What happens in succession is that by virtue of the right of
 This article talks about the property rights and obligations to the succession the heirs are subrogated to the rights and obligations of
extent of the value of the inheritance, while 766 on the hand talks the deceased.
about the extent of the inheritance – i.e. the property, rights, and o 3 instances when the it may not be transmitted (generally for
obligations which are not extinguished by death. obligations A1311)
 Transmission: 1. Nature of the obligation
o What are transmitted? 2. Stipulation
1. Property 3. Not transmissible by operation of law.
2. Rights
3. Obligations
Union Bank vs. Santibanez:
o But these are only transmitted to the extent of the value of the
inheritance. In this case a PN was executed by the dad and a son for the
o The general rule for the transmission of rights is: If a right or purchase of a tractor. Eventually the dad died, and he left a
obligation is strictly personal then it cannot be transmitted. holographic will. During the course of the probate proceedings the son
o It is transmitted by: and the sister agreed that they will partition the tractors 3:1 and they
 Will will be liable to UB in that corresponding ratio. Eventually the loan
 Operation of Law paid and UB flied a collection case against the brother and sister.
o I.e. PATRIMONIAL rights are transmissible, and those that The SC said that the case should not prosper since it is
are Intuitu personae are not transmissible. MANDATORY that if it is a money claim that the claim should be
 Rule regarding pecuniary obligations: filed with the probate court. Collecting on the money claim outside the

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probate court is not allowed. The court said that if they wanted to claim
outside of the probate court they cannot file a suit against the sister
Art. 776. The inheritance includes all the property, rights and
since she was not a signatory to the PN.
obligations of a person which are not extinguished by his
death. (659)
Estate of Hemady vs .Luzon Surety  Inheritance includes
Money debts are transmitted to and paid for by the heirs. 1. All the properties that were existing at the time of the
Whatever is payment is made from the estate is ultimately a payment decedent’s death.
be the hers since the amount of the paid claim in fact diminishes or 2. All the transmissible rights and obligations existing at the time
reduces the shares that the heirs would have been entitled to receive. of the decedents death.
In this case there was a Surety Agreement that was executed by the  Rules for the determination of the
dad, and when the dad died, the children were saying that the estate transmissibility/intransmissibilty of the rights and
should not be held liable for the surety agreement that was entered into obligations:
by the dad.  Rights relative to persons and family or purely
In this case it is not really a money debt but a contingent claim, personal rights are intransmissible.
because the cause was a contract of guarantee. A contingent claim is
a transmissible obligation. Art. 777. The rights to the succession are transmitted from the
Alvarez v. IAC moment of the death of the decedent. (657a)
The heirs cannot escape the legal consequences of their  A better way to look at it is to say that the right to succession is
father’s transaction. The fact that the petitioners did not inherit the vested upon the death of the decedent, vis-à-vis transmitted.
property involved is of no moment since by legal fiction, the monetary  This article specifies the time of the vesting of the successional
equivalent devolved into the mass of the estate of the father. The estate right
is liable in their totality for the payment of the debts of the estate. But  776 presumes that the person succeeding :
the children are only liable to the extent of their share in the o Has a right to succeed either by:
inheritance. 1. Compulsory – Legitime
2. Testamentary – Will
3. Intestate – Law
Art. 775. In this Title, "decedent" is the general term applied to
o The person has the legal capacity to succeed
the person whose property is transmitted through succession,
o The person accepts the successional portion.
whether or not he left a will. If he left a will, he is also called the
 The vesting of the right to succeed happens immediately upon the
testator. (n)
decedent’s death, thus it should be remembered that:
 Decedent – general term for a person whose property passes o The law in force at the time of the decedent’s death will
through succession determine who the heirs should be.
 Testator – a decedent who left a will o Ownership passes to the heir at the very moment of death

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 Because of this the heir now acquires the right to dispose

of his share. De Borja vs. Vda. De Borja
o The heirs have a right to be substituted on behalf of the
In this case there was a compromise agreement that was
deceased in actions that survive. – Note the actions munst not
entered into by two heirs. The family of one of the heirs sought to have
be intuitu personae.
the compromise agreement invalidated since there was a will that was
 Heirs have the right to be substituted for the deceased party in an
left, thus it was mandatory to go into probate. The SC said that the
action that survives
compromise agreement is valid. This is since what was done here was
 The operation of article 777 is at the very moment of the
not a settlement of the estate, rather it was an heir selling to another
decedent’s death.
heir her share in the estate. It should be noted that ownership passes to
 Sir: What is transmitted to the heirs is not the inheritance per se,
the heir upon the moment of death, and they are allowed to dispose of
rather it is the right to the inheritance.
it in the manner that they want.
 Sir: When the decedent dies the heirs do not have a right to the
property, they do not know what exact properties belong to them.
But when the heirs get their specific property that are partitioned Lee vs. RTC
to them, the rights to to these properties retroact to the time that An heir can sell his right/interest or participation in the
the decedent died. property under administration by virtue of Article 533 and 777 of the
Unson vs. Del Rosario (Note: this case was decided under the old CC) Sir: In these cases you are only selling your share. T is vastly different
Faustino died, and he left no heirs except for his widow Maria. from selling a specific property. An heir knows what his fraction is,
Maria contends that upon the death of Faustino, it was his common and he can sell that. But if he proposes to sell a specific portion, then
law wife who took possession of the lands, thus depriving her of use the rules on co-ownership – it shall only be valid to the extent that
possession and enjoyment. The common law wife was saying that she the heir receives. So a sale of a share is valid.
and Faustino had kids so they should also be entitled to the land. But
the law if force and effect was the old code. Under this code the Yu vs. Loi
lands should go to the widow and none go to the illegitimate family.
An heir can sell his interest in the decedent’s estate
The court also said that it is of no moment that at the time of the
immediately upon the death of the decedent. But this is always subject
decision a new code was already in force and effect, thus giving the
to the rights of creditors and the expenses of administration.
illegitimate children rights. The fact of the matter is that the property
transferred upon the* death of the decedent and the right was
transmitted before the enactment of the new code. Furthermore even Bonilla vs. Barcena
if there is a provision that rights declared for the first time shall have It is true that a dead person may not institute a suit in court,
a retroactive effect, but only when the new rights do not prejudice any
but it is recognized that he can be substituted by the heirs up to its
right vested or acquired of the same origin. Thus the lands cannot pass
completion. In this case was filed the complainant was still alive,
to the illegitimate family.
since rights to succession are transmitted from the moment of death of
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the decedent they may maintain the suit. The question that has to be in the settlement was not published there was already a partition thus
answered is if the suit is of a nature that it may be carried on by the Jose could sell or assign his specific portion.
heirs. In this case it was one that was to quiet title which affects
property rights, thus it can continue.
Republic vs Manotoc
Under the rules of succession, the heirs instantaneously
Heirs of Conti vs. CA become co-owners of the Marcos properties upon the death of the
Prior settlement of the estate is not necessary for the heirs to president. The property rights and obligations to the extent of the value
commence an action pertaining to the decedent. A co-owner died, and of the inheritance of a person are transmitted to another through the
her own children file an action to partition the land that their other was decedent’s death. In this concept, nothing prevents the heirs from
a co-owner. The SC said that this can be done, since the right to exercising their right to transfer or dispose of the properties that
demand partition was transmitted to them from the moment of death constitute their legitimes, even absent their declaration or absent the
of the decedent. Remember; the rights of the heirs passto them partition of the distribution of the estate.
immediately upon the death of the decedent
Ining vs. Vega
Yaptinchay vs. CA. Since Leon died without issue, his heirs are his siblings who
There were people who wanted to continue the action for partition. thus inherited the property in equal shares. In turn the heirs of his
The SC said no – since there was no declaration of heirship. sisters are entitled to the properties upon the death of the sisters. Since
Sir: there was reason for this since there were two groups that were under article 777 the rights to the succession are transmitted from the
claiming to be heirs. The SC said it should be the rightful heirs that moment of death. In this case the son in law of one of the sisters did
should carry on the suit – so these two groups have to settle who the an act which repudiated the co-ownership. The SC said that this was
rightful heirs are then that group will have the right to file the action. not tantamount to repudiation since the owner of the property was the
spouse and not him, thus not being an owner he had no authority to
repudiate the co-ownership.
Alfonso vs. Spouses Andres
The title of the property owned be a person who dies intestate
PNB vs. Garcia
passes at once to his heirs. Such transmission is subject to the claims
of administration and the property may be taken form the heirs for the Upon the death of Ligaya, the conjugal partnership was
purposes of paying debts and expenses. But this does not prevent the automatically dissolved and terminated and the successional rights of
immediate passage of title, upon the death of the intestate, from her heirs vest, as provided in 777. Consequently the conjugal
himself to his heirs. The deed of EJ settlement executed by Jose and partnership was one that was converted into an implied ordinary co-
Alfonso evidences their intention to partition the inherited property. ownership between the surviving spouse and the heirs of the deceased.
This being the case the sale that was made to the respondent was after In this case the dad mortgaged the WHOLE to PNB, the SC said that
the execution of the EJ settlement – thus valid. The SC said that even since there was already a co-ownership the mortgage should be limited

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only to his share in the conjugal partnership and what he is entitled to  This prevails over all of the other kinds
has an heir.  This takes place even if there is a will or not.
o Testamentary
 Succession by will
Art. 778. Succession may be:  Results from the designation of an heir, made in a will in
(1) Testamentary; a form prescribed by law.
(2) Legal or intestate; or o Intestate
 Succession in default of a will
(3) Mixed. (n)
 Atty Balane’s Definition: Intestate or legal succession
takes place by operation of law in the DEFAULT of a
Testamentary Intestate/Legal Mixed valid will.
 Sir says that saying that it is in the absence is wrong
799 Lost! 780
since there are instances where there is intestate
That which results Takes place by That effected partly succession even if there is a will.
from the designation operation of law in by will and partly by  Ex 100%: Will says: 50% to parents and 25% to
of an heir, legate, or default of a valid operation of law.
Ateneo. there is 25% left, this 25% will go to intestate
devisee. will.
Combination of any o So there is intestate succession even if there is a
Made in a will two or all of the will.
executed in the form other 3 kinds. o Mixed (Not really a kind, but halo halo)
prescribed by law  Not a distinct kind, but a combination of any of the above.
 In itself this is not a kind of succession, it is just a mix of
 Atty Balane’s Obseravtion
Art. 779. Testamentary succession is that which results from the o The above enumeration cannot satisfactorily accommodate
designation of an heir (Sir says that: legatee, and devisee should be the system of Legitime. Under the definitions above where
included), made in a will executed in the form prescribed by does Legitime fit in?
law. (n) o Legal/ Intestate vs. Legitime
Art. 780. Mixed succession is that effected partly by will and  Legal operated only in absence of a will. While Legitime
partly by operation of law. (n) operated WON there is a will, as a matter of fact it prevails
over a will1.
 3 different kinds of succession
 There are times where the rules on Legitime operation to
o Compulsory
the exclusion of the rules on intestacy2.
 Succession to the reserved Portion or the Legitime

1 2
Art 960 & 961 Art 960 etc.
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o Natural Fruits
Art. 781. The inheritance of a person includes not only the
property and the transmissible rights and obligations existing at Balus vs. Balus
the time of his death, but also those which have accrued thereto
The rights to a person’s succession are transmitted from the
since the opening of the succession. (n)
moment of his death. In addition, the inheritance of a person consists
 Atty. Balane says that this is best deleted since its only purpose is of the property and transmissible rights and obligations existing at the
to confuse since when the property passes to the heir it should time of his death, as well as those which have accrued thereto since
already belong to him. the opening of the succession. In the present case, since Rufo lost
o Remember: What passes to the heirs is the INHERITANCE, ownership of the subject property during his lifetime, it only follows
not succession. that at the time of his death the disputed parcel of land no longer
o Thus the fruits that accrue after the death do not belong to the formed part of his estate to which his heirs may lay claim – i.e. the
estate – they belong to the heirs – through the concept of petitioner never inherited the subject lot from their father. What also
ACCESSION. happened here is that the right to redeem also expired during the
o Ex. Mr. Gagahena inherited a mango plantation, in January. lifetime of Rufo. This being the case it no longer formed part of the
The fruits were harvested in June. It is WRONG to say that inheritance.
the fruits are part of the inheritance. Here they were only fruits In this case kasi the respondents Balus redeemed the property
of the inheritance. It is Mr Gagahena who owns the fruits, and from the bank, and the petitioner Balus did not help pay. Petitioner
he acquired it due to his ownership of the property and not Balus is thus saying that he also has a right to the property since it was
because it was part of his inheritance as part of the fruits of owned by their dad, the court said that the dad sold the land to the bank
the land. since there was a foreclosure sale and the title transferred to the bank,
 To say that the mangoes are fruits of the inheritance then the dad died after, thus the property was not part of his estate.
maintains that inheritance is operative till then.
 Sir: Whatever is produced after the death is not anymore Sir: This would have been different of the right to redeem was still
due succession – rather accession. there at the time of the decedent’s death.
o This is also contrary to Article 777
o So what should be part of the inheritance? Art. 782. An heir is a person called to the succession either by the
 Those that are part of the patrimony of the decedent provision of a will or by operation of law.
WHEN HE DIED – so only the shit that owns when he
dies. Devisees and legatees are persons to whom gifts of real and
personal property are respectively given by virtue of a will. (n)
 This is just like the concept that what the decedent got rid
of before he died no longer belongs to the estate.  An important instance where it has to be differentiated whether or
 These are: not a person is an heir or a devisee are in cases of preterition.
o Civil o Preterition is the exclusion of a testator of one who is entitled
o Industrial to a Legitime.

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 According to the Civil Code  What is a will?

o Heir is a person called to succession either by provision of a o It is where a person is permitted
will or by operation of law. o Within the formalities prescribed by law
o Devisee / Legatees are persons to whom gifts of real and o To control a certain degree the disposition of his estate
personal property are respectively given by virtue of a will. o To take effect upon his death.
 The distinction between an heir and a legate/devisee is important  NOTE: When you have a will you only dispose of the free portion
when it comes to dealing with preterition. you cannot impair the Legitime of the compulsory heirs through a
o Preterition – it is when a devisee’s portion infringes on the will.
portion that is supposed to go to a compulsory heir by virtue  The operative words in the definition are/ Elements of a will:
of his legitime. 1. Act
 According to Castan:  Atty Balane: the word is too broad and should have been
o An heir - Is one who succeeds to the whole or an aquilot part more clearly delimited. This is since a will has to be
of the inheritance. – Sir: Universal succession written. Also under our jurisdiction we do not recognize
o A devisee/legatee – are those who succeed to a definite, Nuncupative (a will that is made on a deathbed), or oral
specific and individual properties. – Sir: Particular wills.
Succession: To specific items. 2. Permitted
 Sir: If you are asked what an heir is – then you use the codal  This means that will making is purely statutory.
provision, if you are asked to apply, then you use Castan.  It is a statutory permission, it is something that is not
guaranteed by the bill of rights.
3. Formalities proscribed by law
CHAPTER 2  The requirement of form prescribed respectively for
TESTAMENTARY SUCCESSION attested and holographic wills.
SECTION 1. - Wills 4. Control to a certain degree
 This means the testator’s power of testamentary
Recap: What are the 3 kinds of succession?
disposition is limited by the rules on legitimes.
 Compulsory 5. After his death
 Testamentary  The testamentary succession, like all other successions, is
 Intestate mortis causa.
Vitug vs. CA
SUBSECTION 1. - Wills in General In this case there was a provision in the joint savings accounts
of the spouses that the money that is placed there is both their property,
and there was also a survivorship clause – which means that all the
Art. 783. A will is an act whereby a person is permitted, with the money in that account will belong to the person who survives. There
formalities prescribed by law, to control to a certain degree the were people contesting this clause saying it is tantamount to a will,
disposition of this estate, to take effect after his death. (667a) and since it did not comply with 805 it should be void.
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The SC said that this survivorship clause is valid. They opine  Joint wills are prohibited
that a will should be: “a personal, solemen, revocable and free act by 7. Executed with animus testandi
which a capacitated person disposes of his property and rights and  There must be an intent to dispose.
declares or complies with duties to take effect after his death.” The  Remember the Rizal case with the mi ultimo adios… the
SC said that these funds were conjugal funds and that there was a case sc said that even if he said that he leaves his parents
(Rivera vs. People’s Bank and Trust Co.) that rejected the claim that a everything there really has to be the intention to do so.
survivorship agreement delivers to one party’s separate property to Here they considered that phrase as part of literature.
another, it is just transferring their joint holdings. The court ruled that 8. Executed with testamentary capacity
such clause is just an obligation with a period. This being the case 9. Unilateral
upon the death of one of the spouses, the money in the account became  A will is not a contract – there is no need of acceptance.
the separate property of the surviving spouse, thus it cannot be part of  There is no concurrence of offer and acceptance.
the estate. Acceptance happens after the death of the decedent.
 I can make a will and my heirs do not even know that they
are heirs.
Atty Balane: Is of the belief that the survivorship agreement
10. Dispositive of property
circumvents the law on legitimes. It may deprive the compulsory heirs
 To be a will, practically speaking, it should dispose of
of legitimes.
 Characteristics of Wills:  But you can have a will that disinherits a person.
1. Purely personal 11. Statutory
 It is the non-delegability of the disposing power
2. Free and intelligent
 Free: Testator’s consent should not be vitiated Montinola vs. Herbosa
 Intelligent: In this case the CA had the opportunity to decide whether or
3. Solemn and formal not the statement in the Mi Ultimo Adios of Rizal was a will since he
 Subject to formalities under the law said in that poem that he left all of his property to the Philippines. So
 It depends whether it is attested or holographic the government tried to claim because of that line. They decided that
4. Revocable or ambulatory an instrument which merely expresses a last wish as a though or advice
 Every will is revocable while the testator is alive. THERE but does not contain a disposition of property and was not executed
IS NO EXCEPTION. with animus testandi cannot be considered a will.
 A will is ambulatory in the sense that it is not fixed – it The line said: “To the Philippines, my mother land… I leave
can always be changed. you everything…” Ruben: When you want to dispose of property you
5. Mortis causa do not put them in 14 stanzas of Rhyming Romantic Verse.
 A will by its very nature disposes of property at the time
of death – Remember article 777.
6. Individual Seangio vs. Reyes

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In this case the only thing that was placentraed in a 4. Determination of whether or not the testamentary disposition
holographic will was the disinheritance of one person. This person was is to be operative. (787)
contending that the will should not be valid since there was no
disposition of property, thus it does not meet the definition of a will
Art. 786. The testator may entrust to a third person the
under 783.
distribution of specific property or sums of money that he may
The SC said that such a will is valid since the intent to dispose leave in general to specified classes or causes, and also the
morits causa can be clearly deduced from the terms of the instrument. designation of the persons, institutions or establishments to which
And while it does not make any affirmative disposition, it is an act of such property or sums are to be given or applied. (671a)
disposition itself since the disinheritance is in itself a disposition in
 This constitutes an exception to the general rule of non-
favor of the heirs to the exclusion of the disinherited heir.
delegability of will making – under this provision there are two
Sir: the clear implication of this ruling is that a document which things that must be determined by the testator, and two things that
contains only a provision for disinheritance is, in legal contemplation, may be delegated by the testator.
a will and must be admitted into probate to be effective. o Testator must determine:
1. The Property or Amount of money to be given
2. The class of the cause to benefited
Art. 784. The making of a will is a strictly personal act; it cannot
o The testator MAY DELEGATE:
be left in whole or in part of the discretion of a third person (Sir:
1. The designation of the persons, institutions, or
should be another person), or accomplished through the
establishments within the class or cause
instrumentality of an agent or attorney. (670a)
2. The manner of distribution.
 This provision gives the GR that the will is a purely personal act.  Quarendum: the testator specified the recipients by designation,
 The making of a will CANNOT BE DELEGATED. but left to ta 3rd person the determination of the sharing. Ex. I leave
o But the mechanical stuff can be delegated – such as typing P500 for A,B,C, and D to be distributed as my executor may be
Art. 785. The duration or efficacy of the designation of heirs, o View 1: This can be said to be prohibited by 786 since the
devisees or legatees, or the determination of the portions which testator must determine the names and also the amounts that
they are to take, when referred to by name, cannot be left to the his recipients shall receive.
discretion of a third person. (670a) o View 2: This gives less discretion to the person than that
allowed by 786, thus it should be allowed.
 The following are the essence of will making, and therefore
CANNOT be delegated:
1. The designation of heirs, devisees, or legates Art. 787. The testator may not make a testamentary disposition in
2. The duration of efficacy of such designations such manner that another person has to determine whether or not
 These include things such as the terms, conditions, and it is to be operative. (n)
3. Determination of the things that they are to receive.
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 This provision consist, and reinforces the purely personal  Latent as to persons:  Patent as to persons:
character of a will. o There is an ambiguity as o It is not clear as to WHO
 What this article prohibits is the delegation to a 3rd person of the to WHOM the property the property should go
power to decide whether a disposition should take effect or not. should go to to.
o Ex. Go to jose, and you o Ex. I will give this to my
have many jose’s in first cousins
Art. 788. If a testamentary disposition admits of different your life.
interpretations, in case of doubt, that interpretation by which the  Latent as to property  Patent as to property
disposition is to be operative shall be preferred. (n) o There is an ambiguity as o It is clear to who it will
to WHAT property go to, but the WHAT is
 Testacy is preferred to intestacy, since testacy is the express will
should go to who. ambiguous.
of the decedent, while intestacy is merely implied
o Ex. I will give him my o Ex. I will give to Jose
 Ut res magis valeat quam pereat. That the thing may rather be
cellphone, and you have some of my cars.
effective than be without effect. Construction in favor of
many cellphones.
validity and not nullity.
In neither case does there appear In this case the ambiguity is
to be ambiguity on the face of evident from a reading of the
Art. 789. When there is an imperfect description, or when no the will. The ambiguity here is testamentary provisions
person or property exactly answers the description, mistakes and latent. themselves.
omissions must be corrected, if the error appears from the context BOTH CASES ARE NOT GROUNDS OF AVIOD A WILL – AS
of the will or from extrinsic evidence, excluding the oral A MATTER OF FACT THEY SHOULD NOT BE STRICKEN
declarations of the testator as to his intention; and when an DOWN. What should be done is to clear it up and resolve it.
uncertainty arises upon the face of the will, as to the application REMEMBER: testacy is preferred to intestacy – thus effect must be
given to testamentary disposition.
of any of its provisions, the testator's intention is to be ascertained
from the words of the will, taking into consideration the How to deal with ambiguities?
circumstances under which it was made, excluding such oral  Determine the intention of the testator
declarations. (n) o Ambiguity – as far as possible – should be resolved in order
to give effect to the testamentary disposition.
 This article provides that there are two kinds of ambiguity referred
 Method of resolving: Any evidence admissible and relevant
to in this article:
shall be admitted.
 It is not obvious/ it is  It is obvious on the fact of TESTATOR AS TO HIS INTENTION.
hidden. the will o Intrinsic and Extrinsic evidence may be used.
 When there is an imperfect  This is when the uncertainty
description, or when n arises upon the face of the Art. 790. The words of a will are to be taken in their ordinary and
person or property exactly will as to the application of
grammatical sense, unless a clear intention to use them in another
answers for the description. any of its provisions.
sense can be gathered, and that other can be ascertained.
TANTOCO 3B Page | 13

Technical words in a will are to be taken in their technical sense, unless it is to be presumed that the testator would not have made
unless the context clearly indicates a contrary intention, or unless such other dispositions if the first invalid disposition had not been
it satisfactorily appears that he was unacquainted with such made. (n)
technical sense. (675a)
 This article makes applicable to wills the severability or
 Similar Rules are laid down by Rule 130, Section 10 and 14 of the separability principle in statutory construction.
ROC.  So… the mere invalidity of one of the provisions of a will, will
 So.. .Rules in interpretation: not AS A GENERAL RULE, invalidate the other provisions of
o Worlds of a will are to be taken in their ordinary and the will.
grammatical sense. o The exception to this is when the valid provisions would not
 Exception: have been made if the invalid provisions had not been made
 Unless a clear intention to use them in another sense by the testator.
can be gathered. SUMMARY ON HOW TO INTERPRET WILLS (790 – 792):
o Technical words, shall be taken in a technical sense.
1. Meaning of words (790):
 Exceptions:
a. Ordinary words, ordinary sense
1. Unless the context clearly indicates a contrary
b. Technical words, technical sense
2. Interpretation of words (791):
2. Unless it satisfactorily appears that he was
o Give effect to the whole, rather than ones that will render
unacquainted with such technical sense.
expressions inoperative
o If there are two modes of interpreting – the one that prevents
Art. 791. The words of a will are to receive an interpretation which intestacy shall be preferred.
will give to every expression some effect, rather than one which 3. Invalidity of dispositions (792):
will render any of the expressions inoperative; and of two modes o It does not affect the validity of other dispositions
of interpreting a will, that is to be preferred which will prevent  Unless it is to be presumed that testator would not have
intestacy. (n) made such other dispositions if the invalid dispositions
 How to interpret words: were not made.
o The interpretation that will be given effect would by that
which would give effect to every expression Art. 793. Property acquired after the making of a will shall only
o When there are two different ways of interpreting a will, one pass thereby, as if the testator had possessed it at the time of
which favors intestacy, and one which favors testacy, THAT making the will, should it expressly appear by the will that such
 This article makes things problematic since 77 states that the
Art. 792. The invalidity of one of several dispositions contained in rights are transmitted from the moment of death, this article on the
a will does not result in the invalidity of the other dispositions, other hand speaks of the time that a will was made.

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 Ex. A makes a will that B will get 1/4 th of this property, at that Extrinsic Intrinsic
time the value of his property was P40,000. BUT when A dies the Refers to the requirement of Refers to the substance of the
property is now P4,000,000. Under this article A would only get Form – Formal Validity Provisions – Substantive
P10,000 instead of P1,000,000. Validity
 Sir: this should be turned around to read that: “Property acquired Governing Law as To Time: Governing Law as To Time:
after the making of a will passes thereby unless the contrary
 For Filipinos – the law in  For Filipinos – the law as of
clearly appears from the words or the context of the will.
force when the will was the time of the death of the
executed (Article 795) testator (2263).
Art. 794. Every devise or legacy shall cover all the interest which  For Foreigners – Same Rule.  For Foreigners – Depends
the testator could device or bequeath in the property disposed of, o But the assumption of on the rules that govern
unless it clearly appears from the will that he intended to convey this is that the will is them.
a less interest. (n) being probated here.
Governing Law as To Place: Governing Law as To Place:
 This supplies the GENERAL RULE: That in a legacy or devise
the testator gives EXACTLY the interest that he has in the thing.  For Filipinos: law of (1)  For Filipinos: Philippine
o EXCEPT: Citizenship, (2) Domicile, Law
1. Article 794 – where he can give a lesser interest (3) residence, (4) Place of  For Foreigners: Their
2. Article 9293 – where he can give more. Execution, and (5) National Law.
Philippine Law.
 In this case the estate should try to acquire what the
 For Foreigners – SAME.
testator is trying to give, but if it cannot, then the
monetary equivalent shall be given to the legate – i.e.
the just value of the interest that should have been
acquired (A931) SUBSECTION 2. - Testamentary Capacity and Intent
Art. 796. All persons who are not expressly prohibited by law may
Art. 795. The validity of a will as to its form depends upon the make a will.(662)
observance of the law in force at the time it is made. (n)
Art. 797. Persons of either sex under eighteen years of age cannot
 NOTE: This Article talks about the validity of a will AS TO ITS make a will. (n)
FORM. Art. 798. In order to make a will it is essential that the testator be
o This depends on the observance of the law in fore at the time of sound mind at the time of its execution. (n)
that the will is made.

3ART 929. If the testator, heir, or legatee owns only a part of, or an interest in the
thing bequeathed, the legacy or devise shall be understood limited to such part or
interest, unless the testator expressly declares that he gives the thing in its entirety.
TANTOCO 3B Page | 15

Art. 799. To be of sound mind, it is not necessary that the testator 2. The testators mind be wholly unbroken, unimpaired,
be in full possession of all his reasoning faculties, or that his mind unshattered by disease, injury or other cause.
be wholly unbroken, unimpaired, or unshattered by disease, o Positively – it is the ability to know three things:
injury or other cause. 1. Nature of the estate to be disposed of
It shall be sufficient if the testator was able at the time of making  Testator should have a fairly accurate knowledge of
the will to know the nature of the estate to be disposed of, the what he owns
proper objects of his bounty, and the character of the  Accurate should be used in a relative sense – since
testamentary act. (n) the more one owns the less accurate is ones
knowledge of what his estate is to be.
Art. 800. The law presumes that every person is of sound mind, in
o Thus the more you own the more liberal you
the absence of proof to the contrary.
interpret the requirement of the law.
The burden of proof that the testator was not of sound mind at the 2. Proper objects of one’s bounty
time of making his dispositions is on the person who opposes the  The testator should know, under ordinary
probate of the will; but if the testator, one month, or less, before circumstances, who his relatives are in the most
making his will was publicly known to be insane, the person who proximate degree.
maintains the validity of the will must prove that the testator made  It is fair that the farther the relation knowledge of who
it during a lucid interval. (n) these relatives are decreases.
Art. 801. Supervening incapacity does not invalidate an effective 3. Character of the testamentary act.
will, nor is the will of an incapable validated by the supervening  For this requisite to be present it is not required that
of capacity. (n) the testator know the legal nature of the will.
 All that the testator needs to know is/Requisites:
1. He is disposing of Property
2. He is disposing of it Gratuitously
CAPACITY (896 - 801):
3. It shall take effect after his death.
 All natural person, unless disqualified by law have testamentary  NOTE: As long as the testator, at the time of making the will,
capacity. passes the 3 tests above, then he has testamentary capacity. It does
o Note: Juridical Persons are not given testamentary capacity. not matter if he is medically incapable.
 Who are Disqualified? o So… just because you are mentally incapable does not mean
1. Those under 18 years of age. (797) that you cannot make a will. As a matter of fact even if you
2. Those of unsound mind. (798) are medically or mentally incapable you can still make a will.
 What is soundness of mind? NOTE: the law presumes that  Remember: Law presumes that the person that is making a will is
everyone is of a sound mind, unless the contrary is proven (799 & of sound mind in the absence of proof to the contrary (800). Here
800). are some considerations/to whom the onus probani is on:
o Negatively – It is not necessary that: 1. The burden of proof is on the person who alleges that the
1. The testator be in fill possession of reasoning faculties. testator is of unsound mind.
TANTOCO 3B Page | 16

2. The burden of proof is on the one who maintains the validity Baltazar vs. Laxa
of the will if it was public knowledge that the testator was of In this case Laxa was like the adopted son of the testator, and
unsound mind within one month or less from the time that he the testator left to that person a substantial portion of what she owned.
made his will. This was contested by the other relatives since they were saying that
 Rules on Supervening Incapacity (801): the decedent was of unsound mind since she was forgetful. The SC
1. If a person becomes incapacitated AFTER he makes the will, said just because the testator had the state of mind of being forgetful
then the will shall still be valid does not necessarily make a person mentally unsound. They also said
2. If a person is incapacitated AT THE TIME OF MAKING that there was no medical proof that the decedent was indeed insane.
THE WILL, it will still be an invalid will.
 It does not matter that he subsequently comes to his
senses. Remember: The testator must have a sound mind Art. 802. A married woman may make a will without the consent
AT THE TIME of making his will. of her husband, and without the authority of the court. (n)
 Generally 800 gives you a rebuttable presumption. The  This should read that “A spouse may make a will without the
EXCEPTION TO THIS RULE are: consent of the other spouse or the courts.”
1. When the testator, one month or less before the execution of  But remember the family code that a spouse may not dispose of
the will was publicly known to be insane property inter vivos – while living.
2. When the testator executed the will after being placed under o But once its mortis causa, then a spouse may dispose of the
guardianship or ordered committed (to a mental hospital or property – whether it is separate property or his/her share in
the like), in either case, for insanity BEFORE THE ORDER the ACP or CPG.
Ortega vs. Valmonte
Art. 803. A married woman may dispose by will of all her separate
This is the case where the 80 year old married a 28 year old, property as well as her share of the conjugal partnership or
and the 28 year old was made the heir to ½ of his property. The absolute community property. (n).
relatives of the old man were saying that nauto the old man who
married, and since he was old he was not of sound mind.  This provision is superseded by Article 87 of the Family Code,
which states: “Either spouse may dispose by will of his or her
There are numberless degrees of mental interest in community property.”
capacity or incapacity and while on one hand it has been held that
mere weakness of mind, or partial imbecility from disease of body,
or from age, will not render a person incapable of making a will; a SUBSECTION 3. - Forms of Wills
weak or feebleminded person may make a valid will, provided he Art. 804. Every will must be in writing and executed in a language
has understanding and memory sufficient to enable him to know or dialect known to the testator. (n)
what he is about to do and how or to whom he is disposing of his
property.  This article lays own the common requirements that apply to the
two kinds of wills that are recognized in the PH.
They also said that there was no proof of fraud and

TANTOCO 3B Page | 17

o These are:
 Attested Note: Properly speaking compliance with the language requirement is
 Holographic not presumed but PROVED by these attendant circumstances.
 Formal Requirements under 804: A will must be:
Sir: Do you need to state the compliance in the attestation clause that
1. In writing
the will has complied with 804?
 In Philippine law we do not recognize oral wills.
2. In a language or dialect that is known by the testator Ans: NO. It is not required that the attestation clause state that the
 The failure to follow these two requirements nullifies a will testator understood the will. This is something that can be proved by
 805 to 808 on the other hand lay down the special requirements extrinsic evidence.
for attested wills
 810 to 814 lay down the special requirements for holographic Note: There is also a presumption that the testator knew the language
wills in which the will was written.
Souza vs Honrado
This is a case where it was stated in the opening paragraph
that a testator understood what was written in English in the will. But Art. 805. Every will, other than a holographic will, must be
the the last paragraph said that the testator did not understand English subscribed at the end thereof by the testator himself or by the
so it was translated to him, they also admit that the testator was testator's name written by some other person in his presence, and
illiterate. by his express direction, and attested and subscribed by three or
more credible witnesses in the presence of the testator and of one
This means that the will was written in a language not known another.
to the illiterate and therefor void because of the MANDATORY
provision that the the will be executed in a language or dialect known The testator or the person requested by him to write his name and
to the testator. 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
Abangan vs. Abangan on the upper part of each page.
Will written in Cebuano dialect and executed in Cebu by the The attestation shall state the number of pages used upon which
testator. the will is written, and the fact that the testator signed the will and
In the absence of proof to the contrary, there is a presumption every page thereof, or caused some other person to write his name,
that she knew this dialect in which the will was written. For the under his express direction, in the presence of the instrumental
presumption to apply, it must appear that: witnesses, and that the latter witnessed and signed the will and all
the pages thereof in the presence of the testator and of one
1. The will was executed in a language generally spoken in the
place of execution.
2. The testator must be a native or resident of such locality. If the attestation clause is in a language not known to the
witnesses, it shall be interpreted to them. (n)

TANTOCO 3B Page | 18

Codal broken down: o Maintain a copy of the will, or file another with the clerk of
1. Every will other than a holographic will court.
2. Must be subscribed at the end thereof by the testator himself, or Sir: these two articles give you the special requirements of the will.
3. By the testator’s name written by some other person: Q: Does the testator need to know the language of the will?
a. In his presence
b. By his express direction
c. And attested and signed by three or more credible witnesses
d. In the presence of the testator and of one another. Q: Does the testator need to know the language of the attestation
4. The testator or the other person requested by him to write his name clause?
and the instrumental witnesses of the will shall also sign: A: NO – because logically speaking the attestation clause is not an
a. Each and every page thereof – except the last affair of the testator, rather it is one of the Witnesses
b. On the left margin
c. And all the pages shall be numbered correlatively in letters Q: Do the witnesses need to know contents or understand the language
d. Placed on the upper part of each page. of the will?
5. The attestation shall state: A: No – they just need to witness its signing.
a. The number of pages used upon which the will is written
b. The fact that the testator signed the will and every page
thereof Q: Do the witnesses need to know the language of the attestation
c. Or caused some other person to write his name clause?
 Under his express direction A: No – but if they don’t then it will interpreted to them.
 In the presence of the instrumental witnesses
 And that the later latter witnessed and signed the will and Sir: Thus it is safe to conclude that there is only ONE language
all the pages requirement – this is that ONLY the testator needs to know the
 In the presence of the testator and of one another. language of the will. But when it comes to the attestation clause – no
6. If the attestation clause is in a language not known to the one needs to understand it.
witnesses, it shall be interpreted to them. Sir: REMEMBER: When it comes to acknowledgement before a
Art. 806. Every will must be acknowledged before a notary public notary – IT IS ONLY FOR ATTESTED WILL AND NOT A
by the testator and the witnesses. The notary public shall not be HOLOGRAPHIC WILL.
required to retain a copy of the will, or file another with the Office
of the Clerk of Court. (n)
Special requirements for attested wills:
Codal Broken Down: A. As to form:
1. Every will must be acknowledged before a notary public by the
1. Each will other than a holographic will must be:
testator and the witnesses
a. Subscribed at the end by the testator or his agent
2. The notary public shall not be required to:

TANTOCO 3B Page | 19

b. If Subscribed by the agent the FF MUST CONCUR: the attestation clause is no longer part of the will, thus the
 Done in the presence of the testator interest of the testator stops there.
 Under the express direction of the testator  The attestation really is the declaration of the witnesses
c. Attested and subscribed by3 witnesses: that they signed each and every page of the will, and that
 In the presence of the testator this was done in the presence of the testator.
 And all 3 must be there at the same time.
 They must also sign each and every page.
D. It must be Notarized
Note: when it comes to an attested will there is no need that the will
B. As to format: be dated. This is contra a Holographic will where it is imperative that
1. Every single page must be signed, ON THE LEFT HAND it be dated.
MARGIN, except for the last page.
o The signing must be done in the presence of the FF:
Note: Consequently a variance between the indicated dates of
a. The Testator, and Agent if any
execution and acknowledgement does not in itself invalidate a will.
b. All 3 witnesses.
2. All pages shall be numbered correlatively in LETTERS on the Comments on some of the requirements:
upper part of each page.  There is a difference between subscribe and sign.
o To subscribe necessarily denotes writing
C. Requirements for the Attestation Clause: o Signing has a broader meaning – not every signature is
necessarily a subscription and not every distinguishing mark
 The Attestation Clause shall state: is writing.
1. The number of pages of the will  This can be seen in the case where it is permissible for a
2. The fact that the testator signed the will and every page testator who cannot write just to place his thumb mark.
thereof  Can you use your thumbmark even when you are not
3. If its signing is done by an agent on behalf of the principal incapacitated?
then: o YES! As a matter of fact it is even better since it is harder to
a. That it was done under the express direction of the forge. Remember – the law says sign, it is not subscribe.
principal  Why do we sign wills?
b. The agent signed the will and every page thereof
o We sign them to make sure that they are authentic
c. And it was done in the presence of the witnesses.
 Note about the attestation clause: It seems, as can be seen in a case
in 806 – there is no need for the testator nor the witnesses to Payad vs. Tolentino
understand the attestation clause. In this case the testatrix did not sign every page, instead she
o When it comes to the testator, it is not even material that he just placed her thumb mark on each and every page, and her name was
understand the language of the attestation clause. It is said that written by her attorney where she placed her thumbmark. They were

TANTOCO 3B Page | 20

contesting that the will should not be valid since the attestation clause This being the case it DOES NOT comply with the statutory
did not state that the Atty. wrote the name of the testatrix. requirement of signature.
The SC said that the attestation clause is valid. As a matter of BALANE: A cross is easy to falsify! Unless of course, your usual
fat they stated that a statute requiring a will to be signed is satisfied if signature is a cross.
the signature is made by the testator’s mark. Thus there was no more
need for the attestation cause to state that the Atty signed requested
Signing of an agent for the testator:
Atty. to sign her name since she personally signed her will in the way
that is contemplated by law.  Two requisites for signing by the agent:
o Must sign in the presence of the testator
o It must be under the express direction of the testator.
Matias vs. Salud
The SC said that they have repeatedly held that the legal Barut vs. Cabacungan
requisite that the will should be signed by the testator is satisfied by a
thumb print or other mark affixed by him and that where such mark is In this case the plaintiffs were alleging that the will of the
affixed by the decedent it is unnecessary to state in the attestation testatrix should be invalid since there is a difference in the handwriting
clause that another person wrote the testator’s name at his request. of the person who wrote her name down in a previous will, and the
current one which is being probated. It is also important to add that the
testatrix was unable to read nor write so she had other persons do this
Conclusion: On the authority of these rulings it can be seen that the for her.
testator’s thumbprint is always a valid and sufficient signature for the From the provisions of the law it is clear that with respect to
purpose of complying with the requirement of the article. the validity of a will, it is unimportant whether the person who writes
the name of the testatrix signs his or not. The important thing is that it
Question: Should the there be a limitation to the use of a thumbprint – clearly appears that the name of the testatrix was signed at her express
i.e. that they ill and infirm? direction in the presence of three witnesses and that they attested and
subscribed it in her presence and in the presence of each other.
Answer: According to Atty. Balane there seems to be no basis for
limiting the validity of thumbprints only to cases of illness of The SC also said that the main thing to be established in the
infirmity. execution of a will is the signature of the testator. If that signature s
proved whether it be written by himself of by another at his request, it
is nonetheless valid, and the fact of such signature can be proved as
Garcia vs. Lacuesta perfectly and as completely when the person signing for the principal
It is not pretended here that the cross appearing on the will omits to sign his own name as it can when he actually signs. To say
is the usual signature of Mercado. We are not prepared to like the that a will should be invalidated on the ground that the person who
mere sign of a cross to a thumbmark, and the reason is obvious. The signed the name of the principal and not his own would be a complete
cross cannot and does not have the trustworthiness of a thumbmark. abrogation of the law of wills.

TANTOCO 3B Page | 21

As a matter of fact the case of Guison s. Concepcion was cite  You cannot even say that the portions before the signing
in this cacse. In that case the testatrix was not able to sign the will, and are valid and those that are made after are not. This cannot
she requested another person to sign for her, And instead of signing be done since one of the statutory requirements would not
her name that other person signed their own name. The SC held that have been followed.
the will was not duly executed.
Signing in the presence of witnesses
Note: The essential thing for the validity is that the agent write the Nera vs. Rimando
testator’s name, NOTING MORE. It would be nice for the agent to
The true test of presence of the testator and the witnesses in
indicate the fact of agency or authority – but it is not a requirement.
the execution of a will is not whether they actually saw each other
sign, but whether they might have seen each other sign, had they
Question: May the agent be one of the attesting witnesses? chosen to do so considering their mental and physical condition and
Answer: There are 2 view points: position in relation to each other at the moment of inscription – i.e.
they must be able to see each other sign if they chose to do so.
 If there are more than three witnesses – Certainly
It is sufficient that a witness was actually and physically
 If there are only three – uncertain.
present and in such position that he could see everything that took
place by merely casting his eyes in the proper direction and without
any physical obstruction to prevent his doing so. It does not depend
upon proof that that their eyes were actually cast upon the document
at the moment of subscription by each of them. Admitted to probate.
Signing at the End
THE WILL Note: as explained in Nera and Janoeta – ACTUAL SEEING IS NOT
 If the will contains dispositive portions, there will be no ambiguity REQUIRED, rather what is essential is the ability to see each other by
as to where the end of the will is. casting their eyes in the right direction.
 If the will contains non dispositive paragraphs after the There is a requirement that the will be ATTESTED and
testamentary dispositions, once can refer to TWO kinds of ends: SUBSCRIBED by at least three credible witnesses in the presence of
o Physical End – where the writing stops the testator and of one another. There are TWO DISTINCT THINGS
o Logical End – Where the last testamentary disposition ends. required of the witnesses:
 Note: the end that matters is the Logical End.  Attesting – Which is the act of WITNESSING
o So if the signature is made, and no further dispositive parts  Subscribing – Which is the act SINGING their names in the proper
follow, then all is good. places in the will.
o BUT if a signature is made before the end… THEN the whole *It is essential that both of these be done.
will shall be invalidated.

TANTOCO 3B Page | 22

Question: Does 805 require that the witnesses sign at the end of the he signed the same, but he admitted that page 3 was signed in his
will? presence.
Answer: YES – But it is not a hard and fast rule. As a matter of fact in We hold that the inadvertent failure of one witness to affix his
the case of Tabadora vs. Rosal the witnesses only signed on the left signature to one of the pages, due to the simultaneous lifting of 2 pages
had portion and not at the end. The SC said that while perfection in in the course of signing, is not per se sufficient to justify denial of
drafting a will may be desirable, unsubstantial departure from the probate. The impossibility of substitution of this page is assured not
usual forms should be ignored, especially where the authenticity of the only of the fact that the testator and two other witnesses did sign the
will is not assailed. questioned page, but also by its bearing the coincident imprint of the
seal of the notary.
Question: May the witness affix his thumbmark in lieu of writing his The law should not be strictly and literally interpreted where
name? the purpose of the law is to guarantee the identity of the testament and
its pages is sufficiently attained. No intentional or deliberate deviation
Answer: NO – remember it is required of a witness that he be able to
existed. Otherwise, the witnesses may sabotage the will by muddling
read and write. (But this is a temporary answer since there is no ruling
or bungling it or the attestation clause.
on the matter.)
It was pure oversight and satisfies the requirements in order
to guard against fraud and bad faith, without undue or unnecessary
Signing in the Presence of one Another curtailment of the testamentary privilege.
The testator, or his agent, must sign every page except the last, on the
left margin – in the presence of the witnesses.
BALANE: This ruling should not be interpreted that witnesses may
 The testator need not sign the last page on the margin since it is dispense with singing each and every page of the will. Icasiano ruling
the page where the will ends – thus it should already contain his is not recommended. It just so happened talaga that 2 pages were lifted
signature. instead of one.
 There is a mandatory and directory part to this requirement:
o Mandatory - signing on every page in the witnesses’ presence
Where must the witnesses sign?
o Directory – the place of the signing. The signing can be done
anywhere on the page. 1. They must sign every page, except the last
 If the entire document is only 2 pages, one being the will and the 2. On the left hand margin
other the attestation clause – then there is no need for there to be 3. In the presence of the testator and
signing on the margins. 4. In the presence of one another.
5. The witnesses also sign at the end of the will.
o In the case of Tabuada, the witnesses were deemed to have
Icasiano vs. Icasiano complied with the requirement when they signed at the
The failure of the witness to sign page 3 of the original was margin. The one that really has to sign at the bottom, and it is
due to the fact that he may have lifted two pages instead of one when non-negotiable is the testator.

TANTOCO 3B Page | 23

 Note: If the acknowledgement is done by the testator and the

The signing is needed to make it more difficult to create a forged witnesses separately, all of them must retain their respective
document. This is sine you would have to forge four sets of signatures. capacities until the last one has acknowledged! – So bawal muna
ma baliw.

Note: When it comes to the making of the will there are two things
that are done by the witnesses, they attest and they subscribe. Requirements of Pagination:
Attest Subscribe Mandatory Directory
This consists in the: This is the act of signing of the Pagination by means of a It does not have to be in letters
conventional system.
1. Witnessing of the testator’s witnesses’ name upon the same
execution of the will, and to paper for the purpose of It does not have to be on the
take note that the formalities identification of such paper as This is to prevent the insertion or upper part of each page.
that are required by the law the will which was executed by removal of pages.
are complied with, the testator.
2. That the signature of the
testator exists as a fact. This means that every page must
This is to make a mark on the be numbered, and in the normal
3. This is to witness/to will.
perceive way – using roman numbers,
letters, real numbers, etc. and it
should also be consecutive – so
Sir: Both have to be done in order for a will to be valid. If a witness 1,2,3,4,5 NOT 10,2,4,3
does not Attest AND Subscribe  then the will is avoided.
Sir: if you are really thorough, then you would not just place 1,2,3 –
Sir: Also when the witnesses sign the attestation clause, they have to rather you would put ONE, TWO, THREE. This is what numbered
sign the End, if the witness signs on the side, then it is an invalid correlatively in letters mean.
attestation clause.

Is there a particular order when it comes to signing? What must the Attestation Clause State?
 It is immaterial provided that everything is done in a single 1. The number of pages of the will
transaction 2. The fact that the testator or his agent under his express direction
 But if the affixation is done in several transactions then it si signed the will and every page thereof in the presence of the
required for the validity that the testator affix his signature ahead witnesses
of the witnesses. 3. The fact that the witnesses witnessed and signed the will and every
page thereof in the presence of the testator and of one another.

TANTOCO 3B Page | 24

the attestation clause, even if the page is signed by the witnesses on

Notes on the attestation clause the left hand margin.

 It is an affair of the witnesses, therefore it need not be signed by An unsigned attestation clause cannot be considered as an act
the testator of the witnesses, since the omission of their signatures at the bottom
negatives their participation.
 The signatures of the witnesses must be at the bottom of the
attestation clause The signing at the left hand margin is not substantial
 It is not a requirement that the attestation clause be in a language compliance because if the attestation clause is not signed at the
that the witnesses and the testator understand. As a matter of fact bottom, it would be easy to add such clause to a will on a subsequent
ALL of them can be completely oblivious to what the attestation occasion even in the absence of the testator or any or all of the
clause says – there is a provision naman that if the witnesses do witnesses. In this case the SC said that even if the witnesses signed the
not understand the language used it will be interpreted to them. left margin, since they did not sign the attestation clause the will was
 It has also been held that the fact that the attestation clause was void. This is since it is in the attestation clause that contains the
written on a separate page has been held to be a matter of “minor utterances made in writing that the witnesses have complied with the
importance” and apparently will not affect the validity of the will. legal requirements/formalities.
 Usually the attestation clause is found right below.
o But the fact that the attestation clause was placed on a separate Remember: The attestation clause and the will itself are 2 different
page has been held to be of minor importance, and it does not documents. The will is where the testamentary dispositions are made
avoid the will. – this is an affair of the testator. On the other hand an attestation clause
 THE ATTESTATION HAS TO BE SIGNED BY THE is an affair of the witnesses – here the testator has no role. Thus the
witnesses. This is mandatory and not directory.
Bautista Angelo, dissent:
There is substantial compliance. The objection is too technical
Q: Is it possible to have a valid will even without any marginal
to be entertained. The purpose of the law which is to avoid the
substitution of the pages has already been accomplished, since the fear
A: YES. If the will proper only has of substitution has been obviated by the uncontradicted testimony of
one page, in this case the testator and the witnesses would have the witnesses.
already signed the bottom. Balane, concurring: It is safer to sign at the bottom.

Cagro vs. Cagro Azuela vs. CA

The attestation clause is not signed by the attesting witnesses The number of pages must appear in the Attestation Clause. If
where the signatures of the 3 witnesses do not appear at the bottom of the number of pages does not appear in the attestation clause, then the

TANTOCO 3B Page | 25

will shall be void. According to the code commission this is something  It is essential that the will is notarized. If the will is not notarized,
that is essential since it is one of the few modes that the courts can to it is merely a draft.
check against perjury. The purpose of the law is to make sure that there  The notary public also does not have to be present when the
is no removal or addition of pages. witnesses sign the document. What he is tasked to do is
Furthermore the witnesses must also sign at the bottom of the acknowledge the will.
attestation clause. This signature indicates that they say that they saw
the testator sign the will, on every page, and that it was done in the
Javellana vs. Ledesma
presence of the witnesses. If there is no signature at the bottom, then
these are not attested to. Whether or not the notary signed the certification or
acknowledgement in the presence of the testator and the witnesses
In this case the notary public stated: In lieu of an does not affect the validity of the will (codicil). The NCC does not
acknowledgment, the notary public, Petronio Y. Bautista, wrote
require that the signing of the testator, witnesses and the notary be
“Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10 (sic), 1981
accomplished all in one single act.
dito sa Lungsod ng Maynila.”
By no manner of contemplation can those words be construed as an The NCC requires that the testator and the witnesses sign in
acknowledgment. An acknowledgment is the act of one who has the presence of each other. All that is thereafter required is that the
executed a deed in going before some competent officer or court and will must be acknowledged before a notary public. A comparison of
declaring it to be his act or deed. It involves an extra step undertaken 805 and 806 yields that while the testator and the witnesses must sign
whereby the signor actually declares to the notary that the executor of in the presence of one another – this requirement is absent when it
a document has attested to the notary that the same in his own free act comes to the notarization. All that it requires is that the testator and
and deed. In this case the SC said that this may be considered a valid the witnesses acknowledge it before a notary public. There is no
jurat, but what the law requires is that it be acknowledged, and not mention that they must do it together and at the same time.
merely subscribed and sworn to. The subsequent singing and sealing by the notary is not part
A notarial will that is not acknowledged before a notary public of the testamentary act. Hence, their separate execution out of the
by the testator and the witnesses is fatally defective, even if it is presence of the testator and the witnesses cannot be said to violate the
subscribed and sworn to before a notary public. rule that the testament should be completed without interruption.

Q: What if I don’t place the number of pages in the attestation clause RATIO: There is no requirement that the notary public sign and seal
– but I number it 1 of 4, 2 of 4, etc. in the presence of the testator and the witnesses.

Acknowledgement before a notary Public (Article 806) OBITER: Art 806 does not contain words requiring that the testator
and the witnesses should acknowledge the testament on the same day
or occasion that it was executed. – So need to execute the will and
Note: acknowledge on the same occasion.

TANTOCO 3B Page | 26

LOGICAL INFERENCE: Article 806 does not require that the testator RUBEN: The notary should be one of the most impartial persons
and the witnesses must acknowledge in one another’s presence. BUT among all the parties, his only interest is to make sure that the law is
if it is done separately then ALL OF THEM must retain their complied with. In this case if you allow him to be a witness and a
capacities until the last one has acknowledged. notary, then you are making him interested in the formal validity of
RUBEN: There are many things that the witnesses and the the will – Once the notary acknowledges the will he ceases to be a
testator have to do in each other’s presence. The acknowledgement witness.
before the notary public is not one of them. – There is no requirement
that the parties acknowledge the will all together and at the same time. Question: If one of the witnesses is a notary and he notarizes it, is it
RUBEN: But this is risky, since there is the possibility that PROPERLY notarized?
one of the witnesses loses capacity, or maybe that the testator dies or Answer: YES. Of course, as long as it is executed in the territorial
loses capacity himself. jurisdiction of the notary – i.e. he is duly commissioned.

Question: May the Notary Public be counted as a witness? Question: What if he is one of the witnesses, is the will valid?
Answer: It depends, if there are more than three – YES. If there are Answer: It Depends. If they are only three witnesses, and the notary
less than 3 – NO. But in essence the person that notarizes the will public is one of them, then it is NOT valid. BUT if they are more than
CANNOT be a witness. three witnesses, then it is valid.

Cruz vs. Villasol Question: T or F – if one of the witnesses notarizes the will, is the will
The notary public before whom the will was acknowledged void?
cannot be considered as the 3rd instrumental witness since he cannot Answer: F
acknowledge before himself his having signed the will.
To acknowledge means to avow, in front or before. If the 3rd
So from the 3 questions the Rule is: If one of the witnesses notarizes
witness were a notary public himself, he would have to avow, assent,
the will, then the validity of the will shall depend on whether or not
or admit his having signed the will in front of himself! He cannot do
the notary shall be considered as the 3 rd instrumental witness. If he is
this because he cannot split his personality into two so that one will
considered as such, then the will shall be void, if he is not – then it is
appearing before the other acknowledge his participation in the will.
For he would be interested in sustaining the validity of his own act.
To allow the notary public to act as third witness, or one of
the attesting witnesses would have the effect of only having two Question: Do you need the affixing of a documentary stamp for the
attesting witnesses to the will which would be in contravention to the validity of a will?
provisions of Article 805. Answer: NO.

TANTOCO 3B Page | 27

 The provision in Article 808 is something that is not merely

Guerrero vs. Bihis directory, rather it is mandatory in nature – and since 808 is
mandatory, it is safe to assume that 807 is also mandatory.
In this case the will was acknowledged by a notary public
 When it comes to an illiterate testator, because of his incapacity
outside his territorial jurisdiction. The SC said that is NOT allowed.
to read is like a blind testator – thus Article 808 should apply.
Since this was done the will was effectively avoided. It is paramount
 Article 807 refers to an illiterate deaf mute. If he is a literate deaf
that the notary public who affirms the will have territorial jurisdiction
must, then he reads the will, just as is required to ordinary
in the place where the will is notarized. This arises from the provision
that no notary public has the authority to do any notarial act outside
his jurisdiction.
Question: Does the fact that the will was read to the testator need to
be stated in the attestation clause?
Art. 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 Answer: NO – there is no requirement that the compliance with such
persons to read it and communicate to him, in some practicable should be stated in the attestation clause.
manner, the contents thereof. (n) Note: Both the sense of Article 808 and Garcia are that the burden of
Art. 808. If the testator is blind, the will shall be read to him twice; proof is upon the proponent of the will that the special requirement of
once, by one of the subscribing witnesses, and again, by the notary the article was complied with.
public before whom the will is acknowledged. (n)
Garcia vs. Vasquez
These two articles above lay down the rules for handicapped testators: The testimony of the ophthalmologist who has first had
Deaf Mute – Able Deaf Mute – Unble Blind knowledge of the actual condition of her eyesight was that her vision
to Read to Read remained mainly for viewing distant objects and not for reading print.
Thus conclusion is inescapable that she was incapable of reading and
If able to read then He must designate Will to be read to
could not have read the provisions of the will supposedly signed by
he must read the will two persons to read him twice:
her. The instrumental witnesses stated that she merely read the
personally. the will and By the (1)
communicate to him instrument “silently.” She therefore could not see at normal reading
subscribing distance.
in some practicable witnesses and
manner its contents. another by the (2) The rationale behind the requirement for reading the will to
notary public. the testator if he is blind or incapable of reading the will himself (as
when he is illiterate) is to make the provisions thereof known to him,
so that he may be able to object if they are not in accordance with his
Notes: wishes.

TANTOCO 3B Page | 28

The aim of the law is to insure that the dispositions in the will The SC also said that the requirement that the will be read in
are properly communicated to and understood by the handicapped 808 does not only apply to cases where the testator is blind, but also
testator, thus making them truly reflective of his desire. Hence, not when they are incapable of reading the will.
only must the will be read to him once, but must be twice by two
different persons (the witness, and the notary)
RUBEN: The Alvarado doctrine LIBERALIZES the Garcia doctrine.

RUBEN: These are protective measures because it is easy to fool a

blind person. FURTHEMORE – the requirement in article 808 has Art. 809. In the absence of bad faith, forgery, or fraud, or undue
been liberally applied. The SC says that substantial compliance is and improper pressure and influence, defects and imperfections
sufficient. 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
Alvardo vs. Gaviola Jr requirements of Article 805. (n)
In this case the testator execute a notarial will where he
disinherited his illegitimate son and revoke the previously executed
Justice JBL Reyes says: this provision should only apply if such
holographic will. In this case the will was read aloud to the testator in
defects and imperfections can be supplied by an examination of the
the presence of the notary public and of the instrumental witnesses –
will itself and it is proved that the will was in fact executed and attested
this was done only once. The instrumental witnesses and the notary
in substantial compliance with all the requirements of article 805.
public just merely followed the reading of the will with their
respective copies. Example of this is:
The SC said that there was substantial compliance with 808. 1. If the attestation clause fails to state (1) that the testator signed
Since its principal purpose is to make known to the testator the each and every page, an examination of the will itself and see if
contents of the will. In this case it was not the first time that the testator the testator did indeed sign each and every page. Or (2) that the
affirmed the truth and authenticity of the contents of the will. He had signatures appear in each and every page, (3) That there were 3
earlier already acknowledged the will in accordance with his express attesting witnesses, and (4) That the will was actually notarized.
wishes when the draft was sent to him. We can safely conclude that a. But if the attestation failed to state that the witnesses signed
the testator was reasonably assured that what was read to him were the in the presence of one another, then this is fatal since the
terms actually appearing on the documents. attestation clause is the only textual guarantee of compliance.
The spirit of the law was served, though the letter was not. It
was not the object of the law to restrain or curtail the exercise of the Caneda vs. CA
right to make a will. Notably, Alvarado was not totally blind at the The provisions of Article 809 must be limited to the FF: situations:
time the will was executed. He was capable of counting fingers at 3
feet, hence merely poor eyesight. 1. If all the pages are numbered
2. Whether the signatures appear in each and every page
3. Whether or not the testator signed at the end of the will
TANTOCO 3B Page | 29

4. Whether or not there were 3 attesting witnesses Here it was a failure to state the number of pages in the
5. If the will was actually notarized attestation clause. The SC said that the failure to state the number of
page is fatal since this is something that cannot be supplied by an
examination of the will. In this case they also reiterated the J.B.L
These 4 above are facts that the will itself can reveal, and the defects
or even the omissions concerning then in the attestation clause may be
disregarded. Thus:
 Omissions which can be supplied by mere examination of the will Art. 810. A person may execute a holographic will which must be
itself, without need of resorting to extrinsic evidence is not fatal. entirely written, dated, and signed by the hand of the testator
 Omissions which cannot be supplied, except by evidence alliunde himself. It is subject to no other form, and may be made in or out
would result in the invalidation of the attestation clause and of the Philippines, and need not be witnessed. (678, 688a)
ultimately the will itself.
What is the greatest advantage of a Holographic Will?
This provision cannot be used to cure the attestation clause when:  Secrecy
1. It completely omits to mention that the attesting witnesses sighed o There is no need for witnessing and notarization.
each and every page thereof in the presence of the testator and  Inexpensive
of one another. o There is no need for lawyers, notary publics, etc.
2. It does not state the number of pages were used in the making of  Brevity and Simplicity
the will. o There is no need for an attestation clause, nor all those that are
in 805
Lopez vs. Lopez
In this case the attestation clause stated that there were 7 What re the disadvantages?
pages, but upon examination of the will there were 8 pages. The 1. It is easier to forge
plaintiffs were saying that it should be allowed because of article 809 o Especially if the disposition is not lengthy.
– which provides for the liberal interpretation of wills. The court said 2. It is harder to determine testamentary capacity
that this cannot be permitted, since the liberal application that article o E.X. The testator could be in and out of insanity. If it is a
809 is talking about does not apply when evidence alliunde (from an holographic will it is difficult to determine whether or not it
external source) has to be resorted to. For 809 to apply, according to was made in a lucid interval.
JBL, the consideration is that the defects can be cleared up upon
examination of the will
Requisites for a Holographic Will: (Handwritten, Dated, Signed)
1. Completely HANDWRITTEN by the testator
Azuela vs. CA o The will has to be ENTIRELY written by the testator himself,
if it is not, then the entire will shall be void.
TANTOCO 3B Page | 30

2. DATED by him RUBEN: THIS IS WRONG… the only saving grace of this case was
o As a general rule, this should indicate the Day, Month, and that there was no fraud. But as a general rule it should really be
Year. complete – i.e. DAY. MONTH. YEAR.
 But it can be even just say “Christmas Day” – but if this
is done then there is a requirement that there is a generally
Roxas vs .CA
known feast, or historic event that can be verified and
checked. The sole issue in this case is WON the holographic will
o Should be placed personally by the testator. exeuted by Labrador is dated. In this case the date of the will was
 As to where – it can be places anywhere. placed in the body itself. The Sentence was: “… and being in the
3. SIGNED by Him month of March, 17th day, in the year 1998.”
o Signature must be at the very end The SC said that this does not matter since all that is required
 The provision is silent on where the signature should be. by the law is that the will be dated, it does not specify the particular
But some authors state that it should be at the end since location where the date should be placed in the will. The only
813 and 814 state talk about additions after the signature. requirement is that the date is in the will itself, and that it is executed
o Thumbprint is not allowed – this is since the provision says in the hand of the testator.
that it must be done by the “hand of the testator himself”.
BUT: As a general rule, the will must be signed at the logical
It is subject to: end of the will – this is as implied by 812.
1. No other form
2. May be made inside and outside of the Philippines
Art. 811. In the probate of a holographic will, it shall be necessary
3. Need not be witnessed
that at least one witness who knows the handwriting and signature
of the testator explicitly declare that the will and the signature are
Labrador vs. CA in the handwriting of the testator. If the will is contested, at least
In this case the date that the testator placed was just Feb/61. three of such witnesses shall be required.
The court said that the Civil Code does note state that the exact date In the absence of any competent witness referred to in the
must be placed, is just says dated. The complete date is required preceding paragraph, and if the court deem it necessary, expert
merely to provide against such contingencies as that of two competing testimony may be resorted to. (619a)
wills executed on the same day, or of the testator becoming insane on
the day on which a will was executed. In this case, there is no such
contingency. There appearing no fraud, bad faith, or undue influence, NOTES:
and the authenticity of the will is already established, the date,  This article only applies to POST MORTEM probates, and not
“Feb./61” is substantial compliance. those made ante mortem, since in the later it is the testator himself
who files the petition, and he is also the one who identifies the
document itself.
 This rule is a rule of evidence.
TANTOCO 3B Page | 31

o But it implies that to determine the validity of the holographic What are the rules when it comes to the number of witnesses?
will, it requires the presentation of the will itself. One Witness At least 3 Witnesses
 Even though it is not said under this article is MANDATORY that
If the probate of the will is If the probate of the will is
the will must be presented/produced in order for it to be probated.
uncontested it shall be contested, at least 3 witnesses
o If the holographic will is lost, then it cannot be probated. necessary that at least one shall be required.
 EXCEPT – If there is a copy of the holographic will. person who knows the
 What is important is that the authenticity of the handwriting AND signature of
handwriting of the deceased may be exhibited and the testator EXPLICITLY BUT, in the absence of
tested before the probate court. declare that the will and the witnesses AND the court deems
it necessary (these have to
 RUBEN ON WITNESSES: signature are that of the testator.
concur) – EXPERT
o The three witness requirement ONLY APPLIES WHEN THE
TESTOMONY may be resorted
 A will is contested when the authenticity of the will is
being contested – i.e. they are saying that the will is a
forgery. NOTE: But in determining the credibility of the witnesses, the number
 If the will is not being contested, then one witness shall of the witnesses is immaterial, what really matters is the intrinsic
suffice. qualities of their testimonies.
 For example if the ground is undue influence, fraud, o So in this case 3 really credible ones would beat 100 not so
pressure, etc. credible witnesses.
o The provision three witnesses rule is merely DIRECTORY.
o When it comes to the witnesses it is quality over quantity
 It will up to the judge to determine whether or not to take The FF are the ways that the genuineness of a handwriting are proved:
credence of the witnesses. 1. A witness who actually saw the testator writing such instrument.
2. A witness familiar with such handwriting and who can give his
opinion thereon, such opinion being an exception to the general
What does it mean when you say that a holographic will is rule.
contested? 3. A comparison by the court of the questioned handwriting and
 The party who is opposing the will alleges that the will was not admitted genuine specimen thereof
written by the testator himself – i.e. not his hand writing. 4. Expert Evidence
 He also alleges that the signature that appears in the will is not that
of the testator. Note: The three witness rule under this article is not mandatory, it is
 When this article says that the “will is being contested” IT DOES merely directory.
 As matter of fact, only one witness is needed to verify the
handwriting and the will of the testator. The only time that the

TANTOCO 3B Page | 32

three witness rule comes into play is when the will is being SHALL. . (Here will was forged daw so the SC said that the
contested. application of Art 811 is mandatory.) But in this case they did not
base denial of the will on the grounds that the 3 witness rule was not
complied with since the handwriting was inconsistent.
Azaola vs. Singson
RUBEN: Not so… SHALL does not mean it’s mandatory.
Here the will was being contested on the ground that there was
undue influence and fraud. In this case the authenticity of the : For the BAR = This means that the Azaola ruling is
handwriting was NOT AN ISSUE. (NOTE: If forgery or handwriting overturned. SO YOU NEED 3 WITNESSES - MANDATORY.
was an issue, then it would need a different story, you would need : BUT Ruben says: NO, as a matter of fact there were 6
more than 1 witness.) witnesses, but 4 were discredited. This in effect highlights the Azaola
The SC said that this is NOT a contested will since in the ruling since it gave a premium on the quality of the witness.
purview of Art 811 a will is contested when the authenticity of the will
is challenged or put to issue – i.e. they are saying that the will is a Gan vs. Yap
forgery. Since the will is not contested then you only need one witness.
In this case they tried to have a will probated but they did not
If the will is not being contested there is no need to produce have the document itself, but there were 6 witnesses who testified to
more than one witness. But even if the genuineness of the holographic the genuineness and existence of the will along with what it contains.
will were being contested the SC said that 811 cannot be interpreted
In this case the SC said that it will not probate a holographic
as to require the compulsory presentation of three witnesses under the
will based on the testimony of witnesses who have allegedly seen it
penalty of having the probate denied. This is since to require this
and who declare that it was written in the handwriting of the testator.
would be to leave it to matters beyond the control of the proponent.
Authenticity and due execution is the dominant requirement
This is why there is a second paragraph is 811 which says that
to be fulfilled when such will is submitted to the courts for allowance.
in the absence of any competent witness expert testimony may be
For that purpose the testimony of one of the subscribing witnesses
resorted to. By adding this provision the law foresaw the possibility
would be sufficient, if there is no opposition.
that no competent witnesses could be found, and provides for resort to
expert evidence to supply the deficiency. In the matter of holographic wills since they need no
witnesses, it is reasonable to suppose that the law regards the
Where the will is holographic, no witness need be present, and
document itself as material proof of authenticity and as its own
the rule requiring production of 3 witnesses must be deemed merely
safeguard since it could be demonstrated that it was or was not in the
permissive if absurd results are to be avoided – thus the first paragraph
hands of the testator himself.
is merely directory and NOT mandatory.
The witnesses so presented do not need to have seen the
execution of the holographic will. They may be mistaken in their
Codoy vs. Calugay opinion of the handwriting, or they may deliberately lie in affirming it
This case on the other hand states that the provision of article as the testator's hand. The court itself may, in view of such
811 is mandatory due to the fact that the provision of the word uses contradictory testimony may use its own visual sense, and decide in

TANTOCO 3B Page | 33

the face of the document. However the oppositors may also present If oral testimony were allowed It is hard to convince 3
other witnesses who also known the handwriting of the testator, or then it would be easy for one witnesses and a notary to lie
some expert witness man to fabricate the whole will. about the will
Obviously, when the will itself is not submitted, these means In this case if the witnesses were Here the witnesses are
of opposition and of assessing the evidence are not available. Then the allowed to testify, it would be as subscribing to a fact which they
only guarantee of authenticity (the testator's handwriting), has to their opinion of whether or saw- i.e. the act of the testator of
disappeared. Thus the courts will not distribute the property of the not the writing is that of the subscribing the will
deceased in accordance with a holographic will, UNLESS they are
shown to be done in his handwriting and signature.
Conclusion by the Court: The execution of the contents of a lost or This is an opinion which cannot
destroyed holographic will may not be proved by the bare testimony be tested in court, nor directly
contradicted by oppositors since
of witnesses who have seen and/or have read such will.
the handwriting itself is not at
RUBEN: The document itself is the only material proof of hand.
authenticity. This is a good rule since you are depriving the
opportunity for fraud, and if it is allowed then you are depriving the
opportunity to challenge the will – for how will the witness know that Rodelas vs. Aranza
the signature is indeed the signature or the handwriting is the A photostatic copy or xerox copy of the holographic will may
handwriting of the testator. be allowed probate because comparison can be made with the standard
writings of the testator. As recognized in the Gan ruling, footnote 8, a
lost holographic will may still be proved by a photographic or
Holographic Will Attested Will photostatic copy.
Cannot be proved by testimonial Can be proved using testimonial Even a mimeographed or carbon copy, or other similar means,
evidence – since the only evidence (secondary evidence)
if any, of determining the authenticity of the handwriting of the
guarantee of authenticity is the when the will is lost or
deceased may be exhibited and tested before the probate court. Hence,
handwriting itself. destroyed.
the xerox copy of a lost or destroyed holographic will may be admitted
The only guarantee of The testimonies of the because then the authenticity of the handwriting of the deceased can
authenticity is the handwriting subscribing or instrumental
be determined by the probate court.
itself witnesses, and of the notary are
there to guarantee authenticity
Loss of a holographic will If the will is lost, then the RUBEN: Xerox copies are not accurate because there the “penlifts”
means the loss of the only subscribing witnesses are there would no longer be identifiable. (pen-strokes).
medium of proof to authenticate.

RUBEN: GR: You have to produce the actual will

TANTOCO 3B Page | 34

EX: Rodelas Case – you may produce a photocopy or a photostatic o Signature and date on each disposition.
copy. (But he does not agree with this) NOTES:
 The will must be dated and signed by the testator in order for them
Art. 812. In holographic wills, the dispositions of the testator to be valid as testamentary dispositions.
written below his signature must be dated and signed by him in  If there are additional dispositions, the previous ones are dated but
order to make them valid as testamentary dispositions. (n) not signed and only the last is signed and dated, only the last one
will be valid.
Art. 813. When a number of dispositions appearing in a
o Remember this talks about additional – so this is outside of
holographic will are signed without being dated, and the last the body, and after the signature of the testator.
disposition has a signature and a date, such date validates the o This contemplates that the additional dispositions were dated
dispositions preceding it, whatever be the time of prior
differently – i.e. made on different dates.
dispositions. (n)
 BUT, if there are dispositions that are signed but not dated, and
the last disposition is signed and dated – such date validates the
Formal requirement for additional dispositions in a HOLOGRAPHIC dispositions preceding it .
will: o It does not even matter when the prior dispositions are made
– the important fact is that the previous dispositions are signed
 General Rule:
but not dated.
1. Signature
 What if there are several additional dispositions and they are
2. Date
neither signed nor dated, but the last is signed and dated?
 But if there are several additional dispositions:
o If made on one occasion – then the date and signature on the
1. Signature
last validates all
2. Date
o If made on different occasions – then the intermediate ones
3. Each additional disposition may be signed and undated, BUT
will be void.
the LAST disposition should be signed and dated.
o But Sir says that this is difficult to prove since how do you
determine when and under what circumstances a holographic
RUBEN: When you say additional dispositions this contemplates that will is made. So in essence it is a nice academic
it is done after the body of the will itself, and the signature of the differentiation, but practically impossible to apply.
testator at the bottom.
 So you do not have to sign and date the dispositions in the body Art. 814. In case of any insertion, cancellation, erasure or
of the will alteration in a holographic will, the testator must authenticate the
 But if you make additional dispositions, i.e. after you sign, then same by his full signature. (n)
this is the one where you need either the:
o Signature on each disposition and a signature and date on the
last disposition What does this article deal with? (ICA-E)

TANTOCO 3B Page | 35

1. Insertions whole, but at most only as respects the particular words erased,
2. Cancellations corrected or interlined.
3. Alternation However in this case, the holographic will had only one
4. Erasure substantial provision, which was altered by substituting the original
In order to authenticate these the testator has to sign his FULL heir with another, and such alteration did not carry the requisite
Signature authentication by the full signature of the testator. The effect must be
that the entire will is voided or revoked for the simple reason that
nothing remains in the will after that which could remain valid.
Sir: Here there was only one provision so the will was declared void,
 When you say full signature this means the usual and customary but supposing there was more than one disposition, so what would
signature – it does not mean signing your full name. happen now? – Recap: Addition was not authenticated, the erasure
 Effect of non-compliance: was also not authentication. For example the will was as follow:
o The change or insertion is simply considered as not made.
o Thus the will is not invalidated as a whole, rather only with
regard to the particular words erased, corrected, or inserted. I institute Rosa  GREGORIO (NOT authenticated) as my universal
I institute Rosa  GREGORIO as my executor
NOTE: As a General Rule it is ONLY the additional provisions which
is avoided if this article is not complied with.
 BUT the WHOLE WILL MAY BE AVOIDED if the voiding of RUBEN: The insertion of the name of Gregorio should not be given
one provision ends up invalidating the WHOLE will. effect since it was not properly done – i.e. authenticated. So this should
o An instance of this is the situation where there is only one be disregarded. But in the same time the striking out of the name of
disposition in the will and this is altered, or something was Rosa was also not authenticated so it also violated 814, so doesn’t this
inserted without complying with Art. 814. mean that it was is as if the name of ROSA WAS NOT cancelled – so
it should go to her.

Kalaw vs. Relova

RUBEN: This decision is highly illogical – SEE above, the court ruled
Here the name of one heir was added, and one of the heirs
that it should be cancelled since the testator removed the name of
were removed. It is important to note that neither the adding of an heir
Rosa, so it cannot go to her since it would be violating her intent. But
and the removal of an heir were authenticated by the signature of the
Ruben says that if you espouse this view you also didn’t follow the
intent of the testator since she wanted it to go to Gregorio.
Ordinarily, when a number of erasures, corrections, and
interlineations made by the testator in a holographic will have not been  A better reason that the court could have given was 830 –
CANCELLING of a will. The striking out is equivalent to the
noted under his signature, the will is not thereby invalidated as a
cancellation of the will.

TANTOCO 3B Page | 36

 SIR: When it comes to the modifying, cancelling, etc. it would be  BUT the Filipino MAY NOT execute a JOINT will, eve
814 that governs since this is a SPECIFIC law, and 830 is a nif it is allowed by the country in which he is executing
general law. So this could be used to challenge the previous bullet. his will in. (See article 819)
2. An Alien Abroad
 The will of an alien produces an effect in the PH if made
Art. 815. When a Filipino is in a foreign country, he is authorized with the formalities prescribed by:
to make a will in any of the forms established by the law of the a. The law of the place in which he resides
country in which he may be. Such will may be probated in the b. In conformity with the rules of his country
Philippines. (n) c. In conformity with the laws of the PH.
3. An Alien in the PH
Art. 816. The will of an alien who is abroad produces effect in the  A will executed by an alien here in the PH shall be valid
Philippines if made with the formalities prescribed by the law of if:
the place in which he resides, or according to the formalities  Executed in accordance with the law of the country of
observed in his country, or in conformity with those which this which he is a citizen of, AND
Code prescribes. (n)  Which might be proved and allowed by the laws of
his country.
 This will shall produce the same effects as if the will was
Art. 817. A will made in the Philippines by a citizen or subject of executed according to the laws of the PH.
another country, which is executed in accordance with the law of  When it comes to the execution of a Filipino executing a will in
the country of which he is a citizen or subject, and which might be the PH, then these provisions will not apply since it will be either
proved and allowed by the law of his own country, shall have the 805 or 810.
same effect as if executed according to the laws of the
Philippines. (n)
So no matter who you are and where you’re from and where you live
you have 5 choices as to what law to follow for the form of your will:
Notes: 1. Law of Citizenship
 These three articles govern rules for the formal validity in the FF 2. Law of Place of Execution
instances: 3. Law of Domicile
1. A Filipino Abroad 4. Law of Residence
a. He is authorized to make a will in any of the forms 5. Philippine Law
established by the law of the country in which he may be
Art. 818. Two or more persons cannot make a will jointly, or in
b. This will may be probated here in the PH
the same instrument, either for their reciprocal benefit or for the
benefit of a third person. (669)

TANTOCO 3B Page | 37

 Example:
Joint Wills: This means one document which constitutes the wills o This is when one spouse, for example, makes the other
of two or more individuals. spouse the successor.
o A and B are the best of friends: A gives B 1/3 of her estate,
 RUBEN: So what is a joint will?
and B gives A 1/6th of her estate – this falls under reciprocal.
o ONE document which constitutes the will of two or more
o So if it is one sheet of paper, one is made in front and one at Dacanay vs. Florendo
the back, there are 2 documents, but one sheet of paper – this The reason for this provision, especially with regards husband
is completely valid. This is also the same if one was written and wife, is that when a will is made jointly or in the same instrument,
on the upper part of a page, and another at the bottom. the spouse who is more dominant is able to dictate the terms of the
 So if the wills are in separate documents, each of them will for his or her own benefit. And when the will is not only joint but
serving as one independent will, then they are not the reciprocal, either one of the spouses who may happen to be
joint wills that are contemplated by the article. unscrupulous, wicked, etc. may be tempted to kill or dispose of the
 Example of a joint will: other.
o We the spouses AAA set forth this document as our last will
This is also the case that said that threre is a difference
and testament, and dispositions are as follows…
 This is VOID.
 It does not matter who the will benefits. It may be reciprocal, for
a 3rd person, etc. as long as the will is joint it is void. JOINT RECIPROCAL
 JOINT WILL ARE VOID. This means one document Made by 2 or more persons for
which constitutes the wills of the benefit of each other, made
two or more individuals. in separate documents.
Why joint wills are void:
1. Limitation of the modes of revocation
2. Diminution of testamentary secrecy Art. 819. Wills, prohibited by the preceding article, executed by
3. Danger of undue influence Filipinos in a foreign country shall not be valid in the Philippines,
4. Danger of one testator killing the other. even though authorized by the laws of the country where they may
have been executed. (733a)

How about RECIPROCAL wills, are they valid?

What is prohibited by this article?
 These that are wills that are made by 2 or more persons for the  Joint wills
benefit of each other – BUT HAVE TO BE IN SPEARATE  Executed by Filipinos
DOCUMENETS.  No matter where they are
o This is just giving something mortis causa.
TANTOCO 3B Page | 38

 And no matter if it is permitted by the laws where they are (2) Those who have been convicted of falsification of a document,
executing their wills. perjury or false testimony. (n)


Executed by Whom and Valid or Not? WILLS!
Where  Malamang because it talks of witnesses, and a holographic will
Filipinos in the Philippines VOID need not be witnessed.
Filipinos Abroad VOID  But if a person who makes a holographic will, BUT he executes
an attested codicil, then this provision must be followed.
Aliens Abroad Governed by Article 816
Qualifications for the witnesses of a will:
*Aliens in the PH 2 views:
1. Sound Mind
1. One says void because of o Because attestation is an act of the senses
public policy
2. At least 18 years of age
2. OTHER say valid because of
Art 817. 3. Not blind, deaf, or dumb
o Dumb = mute
Jointly by a Filipino and an alien 3. As to the Filipino – VOID o This provisions are here since you have to witness, i.e. see the
4. As the alien - 816, 817, or person sign the will and also ascertain that the contents are
void because of public what they are purported to be.
4. Able to read or write
5. Domiciled in the Philippines
o Citizenship does not matter – it is the fact of Domicile.
o Why do you need this – so that in case you need to testify, the
SUBSECTION 4. - Witnesses to Wills
courts can reach you.
Art. 820. Any person of sound mind and of the age of eighteen o Thus a foreigner may be a witness to a will – so long as they
years or more, and not bind, deaf or dumb, and able to read and are domiciled here in the PH.
write, may be a witness to the execution of a will mentioned in 6. Must not have been convicted of falsification of a document,
Article 805 of this Code. (n) perjury, or false testimony.
Art. 821. The following are disqualified from being witnesses to a o Conviction = Final Judgement
will: o These are crimes have an impact on credibility – and a witness
has to be credible.
(1) Any person not domiciled in the Philippines;
 Here it shows that you have no regard for the truth

TANTOCO 3B Page | 39

The FF are disqualified from being a witness to a will: In other words the instrumental witness must be competent
1. Any person not domiciled in the Philippines and their testimonies must be credible before the court allows the
2. Those who have been convicted of: probate of the will that they attested to.
a. Falsification of a document
b. Perjury
Art. 822. If the witnesses attesting the execution of a will are
c. False testimony
competent at the time of attesting, their becoming subsequently
Competence vs. Credibility incompetent shall not prevent the allowance of the will. (n)
Gonzales vs. CA
In this case the petitioner was contending that the probate of Note: This article states that all that needs to happen is that the witness
the will should not have been allowed since there was no showing that was competent at the time he attested the will. If he becomes
the three witnesses were credible – i.e. that they have a good standing incompetent afterwards, it does not matter.
in the community (they were the driver, yaya, and piano teacher). She
BUT: remember if the attestation is not done at the same time by the
was effectively saying that credible is not the same as competent – i.e.
witnesses, ALL the witnesses have to retain their respective capacity
possessing the requirements that are in 820 and 821.
until the will is completed.
The court said that there is no mandatory requirement that the
witness testify to his good standing in the community. It is enough that
the qualifications under Article 820 are complied with. There also no Art. 823. If a person attests the execution of a will, to whom or to
need to prove that the witness has a good standing in the community, whose spouse, or parent, or child, a devise or legacy is given by
for that good standing is presumed unless the contrary is proved. such will, such devise or legacy shall, so far only as concerns such
Furthermore in probate proceedings, the instrumental person, or spouse, or parent, or child of such person, or any one
witnesses are not character witnesses for they merely attest the claiming under such person or spouse, or parent, or child, be void,
execution of a will or testament and affirm the formalities attendant to unless there are three other competent witnesses to such will.
said execution – thus in this case “Credible witnesses”, as used in 805, However, such person so attesting shall be admitted as a witness
is synonymous with competent witness as give by 820 and 821. as if such devise or legacy had not been made or given. (n)

In fine, the rule is that the instrumental witness in order to be

competent must be shown to have the qualifications under 820 and Considerations of this article:
none of the disqualifications under 821. For their testimony to be  If a person attests to the execution of a will
credible, it only needs to be worthy of belief and entitled to credence,
 And a devise or legacy in the will is to be given to:
it is not mandatory that the evidence be first established on record that
o Himself
the witnesses have a good standing in the community or that they are
o His Spouse
honest and upright. For a person is presumed to be such unless the
o His Child, or
contrary is established.
o His Parent
o Or any persons claiming under the above
TANTOCO 3B Page | 40

 The devise or legacy that is supposed to be given to any of the o BUT if the party is entitled to a legitime or an intestate share
above shall be VOID – that portion is not affected by the party’s witnessing of the
o Unless there are three other competent witnesses to such will. will.
 The provision shall be void, but only to the extent that was to be  E.X. A,B,C witness the will of X. B is the son of X. There
given to the persons mentioned above. is a legacy for B.
 But the person shall be admitted as a witness it if such devise or  In this case the legacy shall be void, but B shall still
legacy had not been made or given. be entitled to his Legitime.
 Question: Why does the law prohibit these people from
So a person will be allowed to succeed to the legacy or devise when o Answer: Because there will be a conflict of interest. Kasi if
there are more there are 3 other witnesses, excluding him. you are an heir you want the will to be valid! So how can you
perform the functions of a witness. If the legacy given to you
Notes: is large you will do any and everything to make sure that the
will is valid.
 This article is misplaced since it is concerning the capacity to
 So if it so happens that there is an issue when it comes to
succeed and not the capacity to be a witness.
probate you can lie to favor yourself.
 This article lays down a disqualification of a witness to succeed to
 Ex. What if testimony is needed to determine whether
a legacy or devise when there are only three witnesses (as in he is
the testator was of sound mind? You will say that the
the 3rd).
testator was of sound mind so that you inherit the
o The competence of the person as a witness is not affected
assuming that all other requisites for formal validity being
 There is the temptation to lie so that the integrity of
the will can be upheld.
o Thus the will is still valid, but the witness, or his relatives
cannot inherit.
 So even if the situation in this article arises, it does not mean that Art. 824. A mere charge on the estate of the testator for the
the will is void, nor does it make the person incapable of being a payment of debts due at the time of the testator's death does not
witness. The will and the witnessing are perfectly valid, it just that prevent his creditors from being competent witnesses to his
the person and his mentioned relatives cannot inherit. will. (n)
 This article does not only apply to devisees and legates, it was also
held to be applicable to the heirs of the testator.
o The intent of the law was to cover all testamentary  A creditor may still be a witness
institutions.  The reason for this is that a creditor does not inherit property, he
 This disqualification applies only to the testamentary dispositions just gets paid back.
made in favor of the witnesses or the specified relatives.

TANTOCO 3B Page | 41

SUBSECTION 5. - Codicils and Incorporation by Reference (1) The document or paper referred to in the will must be in
Art. 825. A codicil is supplement or addition to a will, made after existence at the time of the execution of the will;
the execution of a will and annexed to be taken as a part thereof, (2) The will must clearly describe and identify the same, stating
by which disposition made in the original will is explained, added among other things the number of pages thereof;
to, or altered. (n) (3) It must be identified by clear and satisfactory proof as the
Art. 826. In order that a codicil may be effective, it shall be document or paper referred to therein; and
executed as in the case of a will. (n) (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
A Codicil is: inventories. (n)
1. A supplement or addition to a will
2. Made after the execution of a will
Requirements to incorporate documents into a will (MUST
3. It is annexed and to be takes as part of the will
4. It explains, adds, or alters the dispositions made in the original
will. 1. The document or paper referred to in the will must be in existence
at the time of the execution of the will
o You cannot incorporate into a will a document you are about
Codicil Subsequent Will to make – this will open the door to fraud and circumvention
By definition – explains, adds This makes independent and of the law.
to, or alters a disposition in a distinct dispositions. o This can be established by extrinsic evidence
PRIOR will. 2. The will must clearly describe and identify the document and its
*But this distinction is academic since at the end of the day you are number of pages
going to have to conform to the requirements of a will. (826) o This is intrinsic evidence – the will must state that this is the
document and that these are the number of pages
o If ever these are not followed the will is NOT avoided, rather
NOTE: The codicil does not have to follow the form of the will. So the document is not just taken as part of the will.
you can have a holographic will, but an attested codicil, vice versa. 3. It must be identified by clear and satisfactory proof as the
 What is important here is that whatever form the codicil be, it must document referred to
comply with the requirements and formalities of that form. o The document must be acknowledged in probate that this is
the document that is being referred to.
4. It must be signed by the testator and the witnesses on each and
Art. 827. If a will, executed as required by this Code, incorporates every page.
into itself by reference any document or paper, such document or o EXCEPT – If it deals with voluminous books of account or
paper shall not be considered a part of the will unless the following inventories.
requisites are present: o This is done to ensure authenticity

TANTOCO 3B Page | 42

5. That document cannot make a testamentary disposition

When it comes to the revocation of a will – you can NEVER place a
What is an incorporated document? provision that you waive the right to revoke the will.
 It is a document that is attached to a will.
 REMEMBER – these documents CANNOT make testamentary As a matter of fact a will essentially revocable or ambulatory – there
dispositions? is no such thing as an irrevocable will.
o If it makes a testamentary disposition it has to follow the form
of a will.
Art. 829. A revocation done outside the Philippines, by a person
What are the reasons for attaching documents? 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
 It may explain or clarify the will.
according to the law of the place in which the testator had his
o Ex. It may facilitate the identification – i.e. I give to A my lot,
domicile at the time; and if the revocation takes place in this
attached is the TCT of the lot. The attached TCT is an example
country, when it is in accordance with the provisions of this
of such document.
Code. (n)
 It may also serve to identify a particular thing

Rules for Revocation:

1. If the revocation is made in the Philippines – follow PH law
 The document that is sought to be incorporated should NOT make
2. Of the revocation is made outside the Philippines:
any testamentary dispositions
a. If the Testator is NOT domiciled in the Philippines:
 A HOLOGRAPHIC WILL may NOT incorporate documents,
i. Follow the law of the place where the will was made
since the article is explicit that the testator and the witnesses sign
ii. Follow the law of the place where the testator was
each and every page of the document.
Domiciled at the time of the revocation.
o BUT – a holographic will may have it done if by the off
b. If the Testator is domiciled in the Philippines:
chance the testator has the holographic will witnesses.
a. Follow Philippine law – consistently with the domiciliary
o Ruben: it is also possible that in case of holographic wills,
principle followed by this article
then the one who signs is the testator himself.
b. Follow the place of revocation – consistent with the
principle of lex loci celebrationis
SUBSECTION 6. - Revocation of Wills and Testamentary c. Follow the law of the place where the will was made – by
Dispositions analogy the riles on revocation where the testator is a non-
Philippine domiciliary.
NOTE: In this article the law departs from the nationality theory and
Art. 828. A will may be revoked by the testator at any time before
it adopts the domiciliary theory.
his death. Any waiver or restriction of this right is void. (737a)

TANTOCO 3B Page | 43

1. The subsequent instrument must comply with the formal

requirements of a will.
Art. 830. No will shall be revoked except in the following cases:
2. The testator must possess testamentary capacity
(1) By implication of law; or 3. The Subsequent instrument must either contain:
(2) By some will, codicil, or other writing executed as provided in  An express revocatory clause (express revocation)
case of wills; or  Or be incompatible with the prior will (Implied
(3) By burning, tearing, cancelling, or obliterating the will with revocation)
the intention of revoking it, by the testator himself, or by some 4. That subsequent instrument must be probated.
other person in his presence, and by his express direction. If o Just like any ordinary will, this subsequent will or the codicil
burned, torn, cancelled, or obliterated by some other person, HAS TO BE PROBATED.
without the express direction of the testator, the will may still be o If a person executes 2 wills, the second does not expressly
established, and the estate distributed in accordance therewith, if revoke the first, nor is it compatible with the second.
its contents, and due execution, and the fact of its unauthorized  This means that a person dies with 2 wills. This is
destruction, cancellation, or obliteration are established allowed.
according to the Rules of Court. (n)  Sir: You can even have 2,000 – but patay ka sa filing
fees sine you have to probate all of this.
3. Physical destruction
Modes of revoking a will under Philippine Law: o 4 ways that a will may be destructed:
1. Operation of law 1. Burning
o This may be: 2. Tearing
 Total or 3. Cancelling
 Partial 4. Obliterating
o Examples: o The physical destruction may be done by:
a. Preterition 1. The testator personally
b. Legal Separation 2. By another person:
c. Unworthiness to succeed  Acting in his presence and
d. Transformation, alienation, loss of the object that is to be  By his express direction
bequeathed o Effect of unauthorized destruction:
e. Judicial demand of a credit given as a legacy 1. Attested – it may still be proved if it is lost and destroyed
2. Subsequent will or codicil  It may be probated in absentia
o Revocation may be:  You just have to prove
 Total a. Contents
 Partial b. Due Execution
o Requisites: c. That fact that it was destroyed without the
consent or knowledge of the testator.

TANTOCO 3B Page | 44

2. Holographic – usually it cannot be probated even if the o And the fact of its unauthorized destruction, cancellation, or
destruction is unauthorized, UNLESS a copy of the will obliteration.
survives. This gives the reasoning that a physically destroyed will may still be
o Requirements to Effect a valid revocation through probated. But this generally refers to an attested will and not a
physical destruction: holographic will. Since if a holographic will is destroyed there will be
1. CORPUS – the physical destruction itself. Here there no other means to ascertain the will – Unless of course a copy was
must be evidence of physical destruction. kept.
2. ANIMUS – this is the:
a. Capacity and intent to revoke
b. The testator must have completed everything he Lost or Unauthorized Lost or Unauthorized
intended to do. ( This is important for there to be Destruction of an ATTESTED Destruction of a
complete animus) will HOLOGRAPHIC will.
o E.x. You tear it in two (corpus) and throw it in the May still be established by GR: May no longer be probated
trash and storm out (animus) secondary evidence according (Gan vs. Yap)
o E.x.2. You tear it (corpus), but you are naawa, so to the rules of court
you tell the person to tape it back (no animus) EX: Unless a copy survives
because the testator did not finish everything that (Rodelas vs. Aranza)
he wanted to do.
NOTE: The Corpus and the Animus MUST CONCUR. One without
Testate of Adrinane Maloto vs. CA
the other will not produce revocation.
It is clear that the physical destruction of a will, like burning
in this case, does not per se constitute an effective revocation, unless
Ruben: What if there is Animus Without Corpus
the destruction is coupled with animus revocandi on the part of the
 This is NOT allowed
testator. It is not imperative that the physical destruction be done by
o Ex. I feel that I am going to die, and I tell you that I am
the testator himself. It may be performed by another person but under
revoking my will so go to my office and tear it.
the express direction and in the presence of the testator.
 Animus and Corpus must concur
In this case, the animus revocandi, or intention to revoke is
only one of the necessary elements for the effective revocation of
What is the effect of unauthorized physical destruction? wills. The intention to revoke must be accompanied by the overt
 See Article 830 physical act of burning, tearing, obliterating, or canceling the will.
 The will may still be established and the estate distributed in It was not sufficiently established that the papers burned by
accordance therewith provided that the FF are established the maid was the will of the deceased. Even so, the burning was not
according to the rules of court: proven to be done under the express direction of the testator and not
o Authenticity in her presence.
o Due Execution

TANTOCO 3B Page | 45

 The revocation of a will by subsequent will or codicil may be

Question: Are there instances where the will is presumed to be express (though a revocatory cause) or implied (through
revoked? incompatibility).
 YES (As seen in the case of Gago)  GENERAL RULE: If there is a subsequent will that is executed it
o The loss of unavailability of a will may give rise to the does not revoke the previous will. What it does is that it annuls
presumption that it had been revoked by physical destruction. only the inconsistent or contrary dispositions that are in the
previous will.
 So… PRESENT RULE: The execution of a subsequent will does
not ipso facto revoke a prior one.
Gago vs. Mamuyac
The law does not require any evidence of revocation or cancellation Art. 832. A revocation made in a subsequent will shall take effect,
of a will to be preserved. The fact that such cancellation or revocation even if the new will should become inoperative by reason of the
has taken place must remain either unproved or inferred from evidence incapacity of the heirs, devisees or legatees designated therein, or
showing that after due search the original will cannot be found. by their renunciation. (740a)
When do these presumptions arise – i.e. that in the absence of other
competent evidence – that the will was cancelled or destroyed?
1. Where a will which cannot be found is shown to have been in the
possession of the testator.  The efficacy of the revocatory clause does not depend on the
2. The testator has ready access to the will and it cannot be found. testamentary dispositions of the revoking will, UNLESS the
testator provides so.
If the circumstances above happen – it WILL NOT be presumed that
 GR: When a will is revoked it is revoked forever – this is
such will has been destroyed by any other person without the
ABSOLUTE REVOCATION – As a GR revocation is absolute.
knowledge or authority of the testator.
o EXCEPTION – Dependent Relative Revocation/
The force of the presumption of cancellation or revocation is never Conditional Revocation
conclusive, it may be overcome by proof that the will was NOT  GR: Revocation is an absolute provision independent of the
destroyed or revoked by the testator with the requisite intention. acceptance or capacity of the new heirs.
o EXCEPTION: Where the testator provides in the subsequent
Art. 831. Subsequent wills which do not revoke the previous ones will that the revocation of the first is dependent on the
in an express manner, annul only such dispositions in the prior capacity or acceptance of the heirs, devisees, or legates
wills as are inconsistent with or contrary to those contained in the instituted in the subsequent will – called Dependent Relative
latter wills. (n) Revocation
 Dependent Relative Revocation
o When the testator provides in the subsequent will that the
NOTES: revocation of the prior will is dependent on the capacity or

TANTOCO 3B Page | 46

acceptance of the Heir, Legate, or Devisee instituted in the  If the subsequent will makes the revocation subject to the
subsequent will or he destroys the old will with the intention occurrence of the suspensive condition, or if the will does not
of making a new will. contain a revocatory clause:
 If for any reason the new will intended to be made as a o The revocation will depend on whether or not the condition
substitute becomes inoperative, the revocation fails, and happens.
the original remains in full force. o If the suspensive condition does not happen, then the
o The failure of the new testamentary disposition is equivalent institution is deemed never to have been made, and the prior
to the non-fulfillment of a suspensive condition and hence dispositions shall be efficacious.
prevents the recognition of the original will.
 But the mere intention to make at some time a will to
replace the will that was destroyed does not render the Q: Is the rule of Dependent Relative Revocation applicable if the will
destruction conditional. It really must appear that the is revoked by physical destruction?
revocation is dependent upon the valid execution of a new A: In the case of Molo the SC held in an obiter that the physical
will. destruction of a will did not revoke it – the court inferred that the
o This doctrine applies ONLY if it appears that the testator revocation was dependent on the validity of a new one.
intended his act or revocation to be conditioned on the making
of a new will, or on its validity or efficacy.
Molo vs .Molo
o Here the new will is valid as to form, but is subject to the
condition that the subsequent heirs are capable or accept the In this case the SC allowed the probate of a previous will since the
testamentary dispositions. second will was not in accordance with the form that is required by
 Under DDR there are 2 possible acts: law. In this case the previous will was destroyed, but there was a copy
1. When the testator provides in a subsequent will that the of it, and the subsequent will was not allowed for probate since it was
revocation of the prior will is dependent on the capacity of the not executed in a manner that is required by law. The SC said that form
HDL in the subsequent will. the circumstances the fact is that there is no direct evidence of
2. When the testator destroys the old will with the intention of voluntary or deliberate destruction of the will by the testator. Thus this
making a new one. matter cannot be left to inference or conjecture.
Q: What if the will is subject to a suspensive condition, is the A subsequent will, containing a clause revoking a previous will,
revocation of the previous will absolute or conditional? having been disallowed, for the reason that it was not executed in
conformity with procedure given by law for the execution of wills,
cannot be produce the effect of annulling the previous will – since the
 If the subsequent will contains a revocatory clause which is said revocation clause is void.
absolute and unconditional
A will which is invalid because of the incapacity of the testator or of
o The revocation will be absolute and the happening or the non-
undue influence can have no effect as a revoking will. Moreover, a
happening of the suspensive condition will be immaterial
will is not revoked by a defectively executed will or codicil, even
though the latter contains a clause expressly revoking the former will.

TANTOCO 3B Page | 47

The intent of the testator to revoke is immaterial, if he has not o The testator therefor does not have to have a reason for the
complied with the statute. revoking.
Ruben: But isn’t the fact that he tore it mean that he really wanted to  GR: The Testator does not need a reason for revoking his will.
revoke it? o EX: When the revocation is due to a false of illegal cause then
the revocation is not given effect – i.e. the revocation is NULL
and VOID. In this case the first will subsists.
Diaz vs. De Leon  But if the will that was revoked under the circumstances in this
The testator, shortly after the execution of the first will in article is a Holographic will, and it was done PHYSICALLY –
question, asked that the same be returned to him. The instrument was then even if revocation is void it would be impossible to probate.
returned to the testator who ordered his servant to tear the document. o UNLESS of course a copy survives.
The intention of revoking the will is manifest from the fact
that the testator was anxious to withdraw or change the provisions he Requisites for the Nullification of the Revocation for false cause
had made in his first will. The original will herein presented for under article 833:
probate has been destroyed with animus revocandi.
1. The cause must be concrete, factual, and not purely subjective
Ruben; It does not matter WON the testator wanted to. Just because o This means that to have a valid revocation, the cause must be
you want to does not mean it happens, you still have to follow the totally subjective.
requirements by law.  Ex. I want to revoke my will because I found out Carl
was Cebuano, and Cebuanos are bad.
RUBEN: In order to revoke the first will, the second or subsequent o Here you are acting on a mistake of fact.
will must be valid and probated. A revoking will MUST be probated. o E.X. You heard from someone that Gagahena killed someone,
in your fury you revoked the disposition that you gave to
Gagahena. As in you wrote in your will “I revoke the
Rule on implied Revocation: disposition that I give to Gagahena because he killed my
 When a revocation is implied this article will apply by brother” But Gagahena did not really kill your brother.
incompatibility of provisions and not by a revocatory clause. 2. The cause must be false
3. The testator must not know of its falsity
4. It must appear from the will that the testator is revoking because
Art. 833. A revocation of a will based on a false cause or an illegal of the false cause.
cause is null and void. (n) 5. The false cause must be stated in the will as the cause of the

How about illegal cause?
 Wills are revocable ad nutum – at the testator’s pleasure.
 Here the law is just emphasizing the fact that it will not condone
illegal acts.
TANTOCO 3B Page | 48

 E.X. I revoke my disposition to Gagahena since he refuses to kill o YOU CANNOT just make reference to the previous will. This
Dean Candelaria. is not enough.
 What do you mean when you say a will is void as to form?
o It means that it does not comply with the requirements of Arts:
Art. 834. The recognition of an illegitimate child does not lose its
804-808, 810-814, 818 and 819.
legal effect, even though the will wherein it was made should be
revoked. (741) If a testator wants to republish a will that is:
1. Void for a reason other than a formal defect
o Ex. A will that institutes one of the three attesting witnesses
What this provisions says is that if you recognize an illegitimate child
2. One that is previously revoked
in the previous wills, the fact that you revoked that will does not
 The only thing necessary to republish it is for the testator to
revoke the recognition. As a matter of fact recognition of an
execute a subsequent codicil referring to the previous will.
illegitimate child is an irrevocable act.
o There is no need to reproduce the provisions of the prior will
The will as a document recognizing disposition of property – can be in the subsequent instrument.
These two provisions are really Malabo since 835 is taken from
But the will as a document recognizing the civil status of the person – agentinian law and 836 is taken from the California law – so in order
VOID. to remedy this, to place harmony this is the interpretation:
Article 835 Article 836
SUBSECTION 7. - Republication and Revival of Wills Void as to form Void as to:
Art. 835. The testator cannot republish, without reproducing in a Revival only through 1. Non-formal defect
subsequent will, the dispositions contained in a previous one republicatoin 2. Previously Revoked
which is void as to its form. (n) How to Republish: How to Republish:
Art. 836. The execution of a codicil referring to a previous will has 1. Execute a new will 1. Execute a new will or
the effect of republishing the will as modified by the codicil. (n) 2. Copy the provisions from codicil
the original will 2. Simply make reference to
the original void will
CANNOT make reference to the CAN make reference to the
 What is republishing? original will – this is original – sufficient.
o This is to give efficacy to a will that was previously voided. insufficient.
If a testator wishes to republish a will that is void as to form the FF
must be done: What if it was due to lack of capacity?
 Execute a new will and reproduce the dispositions of the original  On one hand it can say that it is to form – since capacity is a matter
will of form

TANTOCO 3B Page | 49

 The other means that it is not – it refers to documentary. Why is inconsistent with the principle or mortis causa, and why is it
 Sir: But if you take the meaning of form as in the case of wills as funny?
given by this title –it should also include capacity.  Because in order for the revocation of Will 1 to be effective, the
o Added to that is the fact that when you probate a will, it says second will must be probated. But Will 2 has already been
that formal validity includes the state of mind of the testator. revoked by Will 3.
Sir: If the will is void for reasons other than form, then you do not  It suggests that revoked wills (Will 2) are still submitted for
have to reproduce it in a subsequent will – then you can revive it by probate.
mere reference (836).
 If I revoked my will, all I have to do is reference it, you do not Does this provision apply to all kinds of revocation of wills?
need to reproduce the dispositions.
 NO – the terms of this article apply only where the revocation of
the first will by the second will is EXPRESS.
Art. 837. If after making a will, the testator makes a second will  If the revocation is a sensu contrario (Contrary Sense) –
expressly revoking the first, the revocation of the second will does incompatible provisions – the article will not apply, this in such a
not revive the first will, which can be revived only by another will case the revocation of the second will by a third will revives the
or codicil. (739a) first will.
o UNLESS – the third will the first will, either express or
impliedly revokes the first.
Three wills were made – Will 1,2, and 3.; will 2 EXPRESSLY revokes  An obvious exception to this article is when the second will I
will 1, and will 2 is EXPRESSLY revoked by will 3. holographic and it is revoked by physical destruction, because in
In this case the revocation of will 2 does NOT revive will 1. this case the possibility of probate is foreclosed – UNLESS a copy
What is the reason behind the non-revival of Will 1:
 Of the Theory of Instant Revocation Will 2 revokes will 1 Will 2 revokes Will 1
 The revocatory effect of will 2 is immediate.
 RUBEN: This provision though is inconsistent with the principle Article 837 WILL apply Article 837 WILL NOT apply
that wills take effect mortis causa. And it is also a filthy provision. Effect: Effect:
This is since wills only take effect upon death. Here when you If there is a will 3 that is GR: If there is a will 3 which
make the wills, and allow them to revoke, then you are making the executed revoking will 2, will 1 revokes will 2, then will 1 is
wills operate (i.e. the revocation, within the lifetime of the will not be revived revived.
EX: When will 3 is inconsistent
with will 1.

TANTOCO 3B Page | 50

extra-judicial settlement of estate, you SWEAR that the decedent

EX2: When Will 2 is left no wills and no debts.
holographic and it is revoked by  However there is nothing to prevent the heirs, after the probate
physical destruction, probate proceedings have terminated, to make a disposition of the estate
is no longer possible, UNLESS different from that in the will.
a copy survives.  Generally what happens when a person dies the whole thing is just
one proceeding that is divided into two parts.
o Probate – Looks at the Extrinsic Validity
 This is the form, as in if the requirements that are laid
SUBSECTION 8. - Allowance and Disallowance of Wills down by the code are present – e.x. the witnesses,
(PROBATE) attesting, notarizing, etc.
Art. 838. No will shall pass either real or personal property unless o Settlement – Looks at the Intrinsic validity
it is proved and allowed in accordance with the Rules of Court.  This goes in to the will itself – e.x. if the testator had a
disposition in favor of a live in.
The testator himself may, during his lifetime, petition the court
having jurisdiction for the allowance of his will. In such case, the  When you say that it “shall be conclusive as to its due execution”
pertinent provisions of the Rules of Court for the allowance of – this means that it becomes res judicata.
wills after the testator's a death shall govern. o You follow the normal procedure in civil procedure. – ex –
from RTC decision = 15 days to appeal, lapse of the 15 days
The Supreme Court shall formulate such additional Rules of final, etc…
Court as may be necessary for the allowance of wills on petition of o It becomes res judicata as to the formal validity
the testator. o What does due execution mean?
Subject to the right of appeal, the allowance of the will, either  As to formal validity, NOT intrinsic validity.
during the lifetime of the testator or after his death, shall be o A judge in probate proceedings cannot go into substantive
conclusive as to its due execution. (n) validity – a decision here would be one without jurisdiction.
The courts can only cover matters of form
 EX. If the substantive validity can be seen in the face of
1st and the 4th are the important paragraphs, since the 2 nd and the 3rd
the will. (Nepomuceno – In this case there was one heir,
are transitory provisions - since the SC still had to formulate rules for
the mistress, and the will admitted that the heir was the
probate ante-mortem.
mistress – under Article 1028 this is void.)
Baltasar vs. Laxa
RUBEN (Lecture 9/16): Courts are takes to determine nothing more than the (formal and)
 No such thing as an extra-judicial probate – you have to go extrinsic validity in probate proceedings.
through the courts.
 If there is a will, you cannot forego probate. If you have a will you
have to have it to probated, this is since when you execute an
TANTOCO 3B Page | 51

Extrinsic validity pertains to whether the testator being of sound mind will WITHOUT securing probate. Why?: (1) Because the probate of a
freely executed the will in accordance with the formalities that are will is a proceeding in rem (2) because the probate of a will cannot be
required by law.  Sir: this a good compressed way of putting it. dispensed with and substituted by another proceeding.

Guevara vs. Guevara 2 Kinds of Probate (Rules are in Rule 76 of ROC):

What is proved during probate? 1. Post Mortem – After the death of the testator
1. Due execution of the will. 2. Ante Mortem – During the lifetime of the testator
2. The fact that at the time of the execution of the will the testator o This is a new provision, and the reason that the code
was: commission allowed this is since it is easier for the courts to
o Of sound and disposing mind determine the mental condition of the testator during his
o Not acting under duress, menace, and undue influence or lifetime, rather than after his death. Here daw it is easier to
pressure make sure that there was no fraud, undue influence or
The above must be proved to the satisfaction of the court, it’s only pressure, etc.
upon this that the will of the decedent may be probated.
The presentation of a will for probate is mandatory and its What is the effect of a validly probated will?
allowance by the court is essential and indispensable for its efficacy.  Once a decree of probate becomes final in accordance with the
If the decedent left a will and no debts and the HDL desire to rules or procedure, it becomes res judicata.
make an extrajudicial partition of the estate, they must first present the
will to the court for probate. They may not disregard the provisions of De la Cerna vs. Potot
the will unless they are contrary to law. There was a joint will that was executed between spouses. The
The suppression of wills is contrary to law and public policy, husband died first, and the will was allowed to probate. (Sir: Courts
because unless the will is probated and notice thereof is given to the should not have allowed the first probate, THE FRST DECISION WAS
whole world, the right of a person to dispose of his property by will GODDAMN WRONG. THE JUDGE MUST HAVE BEEN STUPID
may be rendered nugatory. Absentee devisees and legatees could be OR CORRUPT!!!!!) But upon the death of the wife the same will was
cheated of their inheritance thru the collusion of some of the heirs who sent for probate and it was denied since it was a joint will. But since
might agree to the partition of the estate among themselves to the it was probated, it is already res judicata, so the court cannot go back
exclusion of others. to change the decision on the first probate. But as to the will of the
The probate of a will is a proceeding in rem, and cannot be wife, it is not yet res judipaul cata – it was still on probate, so finally
dispensed with and substituted by any other proceeding, judicial or the court made the right decision and denied probate since it was a
extrajudicial, without offending public policy. joint will.
NOTE: If the decedent left a will, but NO debts and nobody raises any So as to the husband’s – valid since it was admitted into porbate, as to
question as to the authenticity and due execution of the will, NONE of the wife – void.
the heors may sue for the partition of the estate in accordance with that
TANTOCO 3B Page | 52

What is the scope of a final decree of probate? oIt would be better to say that the formalities of law have been
 A final decree of probate is conclusive as to the due execution of complied with.
the will - i.e. to its EXTRINSIC and FORMAL validity ONLY – 4. The will is genuine.
it does not refer to its intrinsic validity. Dorotheo vs. CA also adds to the list:
1. The will submitted is indeed the last will and testament of the
Gallanosa vs. Arcangel
The decree of probate is conclusive as to the due execution or formal
2. The will was made in compliance with the formalities prescribed
validity of the will. That means that:
by law
1. Testator: of sound and disposing mind at the time when he
3. The will was duly executed
executed the will and
4. Testator has testamentary capacity
2. Testator: not acting under duress, menace, fraud, or undue
influence. What does due execution mean?
3. Will: signed by him in the presence of the required number of 1. Testator was of sound and disposing mind
witnesses 2. There was freedom from vitiating factors
4. Will: is genuine and not a forgery. 3. Will is genuine
These facts cannot be questioned again in a subsequent proceeding. 4. Proper testamentary age
After 5. Testator is not expressly prohibited by law from making a will
the finality of the allowance of will, the issue as to the voluntariness
of its execution cannot be raised anymore. It was rendered in a
proceeding in rem and binding upon the whole world. So, after the NOTE: Even the grounds in article 839 cannot be contested anymore
finality of the allowance of a will, the issue as to the voluntariness of when the will has been probated.
its execution cannot be raised anymore. GR: A decree of probate should only concern itself with the extrinsic
This was the case where the will was probated, and the oppositors validity of a will, and it should not pass on the intrinsic validity.
waited for 29 years to challenge the probate, and they were alleging EX: When the will appears to be intrinsically void on its face.
that there was fraud. The SC said that our procedural law does not
General Rule for probate of wills.
sanction an action for the annulment of a will. And since it was already
probated – its Res Judicata. 1. A decree of probate does not concern itself with the question of
intrinsic validity.
2. The probate court should not pass upon such issue in the first
Gallanosa enumerated what are covered by the term “Formal Validity”
stage. There is a proper time for that in the settlement proper stage.
and are therefore conclusively settled by a final decree of probate:
1. Testator: was of sound and disposing mind. Exception:
2. Testator: Consent was not vitiated 1. If it appears on the face of the will that it is intrinsically void, the
3. Will: Was signed in the presence of the required number of probate of the will might be an idle ceremony!
witnesses 2. The substantive validity may be passed upon on the first stage if
patent on the face of the will that the same is void.
TANTOCO 3B Page | 53

3. Practical considerations demand that the intrinsic validity of the b. Otherwise mentally incapable of making a will,
will be passed upon even before probate. o This refers to testamentary capacity – Know the nature of
one’s estate, object of his bounty, and character of the
testamentary act.
Nepomuceno vs. CA
c. At the time of its execution;
GR: In probate proceedings the court’s area of inquiry is limited to an 3. If it was executed through:
examination and resolution of the EXTRINSIC validity of the will. a. Force or
EX: A probate court may pass upon the intrinsic validity if on the fact b. Under duress, or the
of the will its intrinsic nullity is patent. c. Influence of fear, or threats;
4. If it was procured by:
In this case there was a testamentary disposition to the live in partner
a. Undue and improper pressure and influence,
of the decedent, and will stated that such heir was the common law
b. on the part of the beneficiary or of some other person;
wife. Our civil code prohibits a common law spouse from being an
5. If the signature of the testator was procured by fraud;
heir, thus in this case even if it concerns the intrinsic validity of a will
6. If the testator acted:
the Probate Court may pass on this issue.
a. By mistake or
b. Did not intend that the instrument he signed should be his will
Art. 839. The will shall be disallowed in any of the following cases: c. At the time of affixing his signature thereto.
(1) If the formalities required by law have not been complied with;
(2) If the testator was insane, or otherwise mentally incapable of NOTES:
making a will, at the time of its execution;
 If you look at these grounds, they really pertain to the formal
(3) If it was executed through force or under duress, or the requirements of a will.
influence of fear, or threats;  Undue Can you ratify a will that is declared void?
(4) If it was procured by undue and improper pressure and o For lack of testamentary capacity and for not complying with
influence, on the part of the beneficiary or of some other person; the formalities that are laid down by law – NO
(5) If the signature of the testator was procured by fraud;  This is since the will is viod
o For grounds 3-6: Violence, Intimidation, Indue influence,
(6) If the testator acted by mistake or did not intend that the fraud, or mistake – YES, ratification is possible, provided that
instrument he signed should be his will at the time of affixing his the formal requisites are present.
signature thereto. (n)
 This list is an exclusive enumeration of the causes for the
disallowance of a will.
The will shall be disallowed in any of the following cases:  These are matters that deal with the formal requirements of a will,
1. If the formalities required by law have not been complied with; thus EVEN IF any of the above circumstances exist, once the will
2. If the testator was: is probated, it forecloses any subsequent challenge on any of the
a. Insane, or matters enumerated in this article.

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 In sanity and mentally incapable do not mean the same thing.

When you say “mentally incapable of making a will” – this refers Requisites for a valid institution:
that the testator lacks testamentary capacity (see 791 to 803) 1. The will must be intrinsically valid
What is the effect if the above are proven? a. the testator must have capacity
b. The formalities must be observed
 If ANY of the above are proven, then the will shall be declared
Void. c. There must be no vitiation of consent
d. The will must have been validly probated
 A will is either VALID or VOID, there is no such thing as a
e. The will must have been the personal act of the testator
voidable will.
2. The institution must be intrinsically valid
 Once the decree of probate becomes final, you cannot have a will
a. Legitime must not be impaired
avoided based on these grounds.
b. The heir must be identified, or identifiable
c. There should be no preterition
Disallowance vs. Revocation 3. The institution must be effective
a. There must be no predeceased heir
Revocation Disallowance
b. There must be no repudiation of the heir
Voluntary act of the testator Given by judicial decree c. There must be no incapacity of the heir
With or without cause Must always be for a leagal
Art. 841. A will shall be valid even though it should not contain an
May be partial or total GR: Always total institution of an heir, or such institution should not comprise the
EX: When the ground of fraud entire estate, and even though the person so instituted should not
or influence, for example, only accept the inheritance or should be incapacitated to succeed.
affect certain portions of the
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. (764)
SECTION 2. - Institution of Heir Art. 842. One who has no compulsory heirs may dispose by will of
RUBEN: These rules ONLY APPLY to the FREE PORTION of the all his estate or any part of it in favor of any person having
estate. This is since when you talk about legal heirs you are talking capacity to succeed.
about legitime. One who has compulsory heirs may dispose of his estate provided
Art. 840. Institution of heir is an act by virtue of which a testator he does not contravene the provisions of this Code with regard to
designates in his will the person or persons who are to succeed him the legitime of said heirs.(763a)
in his property and transmissible rights and obligations. (n)
NOTES (841):
1. This includes heirs, legates, and devisees.
TANTOCO 3B Page | 55

1. It is weird that there will be a will that does not state an heir, this How much can be disposed of by will?
is a useless will. But this article juts says that the will is valid if  No Compulsory heirs – entire hereditary estate
we are strictly speaking of formalities.  Has compulsory heirs – the disposable portion – i.e. Net Estate
2. It also does not matter of you are able to dispose of your whole minus Legitimes.
free portion. This does not invalidate a will, what merely happens
to this is the remainder of the free portion goes by intestacy. What if the testator disposes less than he is allowed to?
3. It also does not matter of the institution of an heir is void, the part  There may be mixed succession – testamentary to that which is
that is supposed to go to that person just goes by intestacy again. disposed of by the will, and intestate to that which is not disposed
NOTES (842): of by the will.
 If you have compulsory heirs, you can only dispose of the free
portion. (Remember, we are talking about testamentary) Art. 843. The testator shall designate the heir by his name and
 If you have NO compulsory heirs, then you can only dispose of surname, and when there are two persons having the same names,
the entire estate as you wish. Since your free portion is the whole he shall indicate some circumstance by which the instituted heir
estate. may be known.
Even though the testator may have omitted the name of the heir,
should he designate him in such manner that there can be no
doubt as to who has been instituted, the institution shall be
A will shall be valid even though: valid. (772)
1. It does not contain an institution of an heir, or Art. 844. An error in the name, surname, or circumstances of the
2. Such institution does not comprise the estate, or heir shall not vitiate the institution when it is possible, in any other
3. Even though the person so instituted: manner, to know with certainty the person instituted.
o Does not accept the inheritance or
If among persons having the same names and surnames, there is
o Should be incapacitated to succeed.
a similarity of circumstances in such a way that, even with the use
In such cases, of the other proof, the person instituted cannot be identified, none
 The testamentary dispositions made in accordance with law shall of them shall be an heir. (773a)
be complied with, and
 The remainder of the estate shall pass to the legal heirs.
Can a will still be valid even if it does not contain any testamentary  What is the Rock bottom rule – you have to identify your heir with
dispositions? reasonable certainty.
 YES – Even if the will does not contain any testamentary  You don’t even have to give a name, all that is needed is that the
disposition, it will be formally valid provided it complies with all person can be determined.
the formal requisites.  If there is an ambiguity you try to use extrinsic evidence to clear
up the confusion.
TANTOCO 3B Page | 56

o Excluding oral declarations of the testator as to his intention. Art. 845. Every disposition in favor of an unknown person shall
o This is since testacy is preferred to intestacy be void, unless by some event or circumstance his identity becomes
certain. However, a disposition in favor of a definite class or group
Rules on designation an Heir: of persons shall be valid. (750a)
1. Designate the heir by his name and surname
o This is merely directory. What is required is that the identity
What is an “Unknown” Person:
of the designated successor is established.
2. Two persons with the same name – he shall indicate in some way  It refers to a successor whose identity cannot be determined since
how to identify the two. the designation in the will is so unclear an ambiguous that it is
incapable of resolution.
Rules in Interpreting Ambiguity:
o i.e. the identity of the person cannot be ascertained
1. If the testator omitted the name of the heir, but it is clear from the  Unknown person does not refer to a person whom the testator is
will who it is, then it shall be valid. unacquainted with. As a matter of fact the testator may institute
o E.x. I bequeath this to my youngest sibling, and my sibling someone who is completely unknown to him, basta identity is
born right after me. clear.
2. An error in name shall not invalidate the will, when it may be o E.x. I give my pet carabao to Taylor Swift.
ascertained who that person is.  Can you institute somebody in a will whose identity cannot be
3. If among persons who have the same names and surnames there ascertained at the time of the making of a will?
is a similarity of circumstances and they cannot be separated, then o YES – provided that the identity of the person can be proved
none of them shall be an heir. in the future
o e.x. I bequeath this to my professor Mr. Reyes – eh… You  E.x. I will give 2M pesos to whoever graduates as
have more than 10 Professors who were Mr. Reyes, none of valedictorian of the Ateneo Law School in the year of my
them will succeed. death.
NOTE: But in any case if it becomes impossible to resolve the  What this article is referring to is a person whose identity is not
ambiguity – the testator’s intent becomes indeterminable, therefore, knowable AT ALL. As in HINDI TALAGA.
intestacy as to that portion will result.

Art. 846. Heirs instituted without designation of shares shall

Notes: inherit in equal parts. (765)
 If there are any mistakes you can use evidence to clear it up.
o Ex. I give XXXX to the Dean of the Ateneo Law School –
Sedfrey Candelario. Eh his name is Candelaria, here you General Presumption of collective designation: Equality
know who it really is, it’s just an honest mistake, so this does  E.x. I give 1/3rd of my estate to Blossom, Bubbles, and Buttercup
not invalidate the will. – each of them will get 1/3rd of 1/3rd.
 If the testator intends an unequal apportion – he should specify.

TANTOCO 3B Page | 57

NOTE: This article ONLY applies to testamentary heirs. It will not  If the testator intends an unequal apportionment, then he should
apply to an heir who is a compulsory and testamentary heir for in this specify.
case the testamentary heir will get his legitime and testamentary  This also has a presumption of equality. Once you institute your
portion. siblings, they are deemed equally instituted, it does not matter if
This article also does not cover the instance where the share your sibling is full blood or half blood, illegitimate, and legitimate.
of some are determined and others not. E.x. I give to Blossom, bubbles o If you don’t want your siblings to get an equal share, then you
and Buttercup 1/3rd of my estate. I leave Bubbles ½ of the 1/3 – and should specify.
you stop at that. Now, how much do the 2 other Power Puff girls get?  Why is this rule tricky? Since this applies to TESTAMENTARY,
it does not apply to INTESTATE. Intestate succession has
different rules.
Art. 847. When the testator institutes some heirs individually and
Does this rule apply to intestacy?
others collectively as when he says, "I designate as my heirs A and
 NO – this article ONLY applies to testamentary succession.
B, and the children of C," those collectively designated shall be
 When it comes to intestacy the rule is different. Article 1006
considered as individually instituted, unless it clearly appears that
establishes a ratio of 2:1 between full and half brothers and sisters.
the intention of the testator was otherwise. (769a)
Recap of the Rules:
 Testamentary – half and full brothers and sisters will get equal
GR: The presumption is that the HDL’s are individually instituted. It
does not matter if they are individually named, or collectively
o This is if the will just says: “I leave my land in Malolos to my
 Whether it Blossom, Bubbles & Buttercup, or the Power Puff
 Intestacy – Proportion of 2:1 in favor of full blooded siblings, and
ONLY if Article 992 does not apply.
EX: Unless it clearly appears that the testator intended to do so.
 So if the testator wants to execute a block designation – he should Note: this rule ALSO applies to illegitimate and legitimate brothers
specify. and sisters.

Art. 848. If the testator should institute his brothers and sisters, Art. 849. When the testator calls to the succession a person and his
and he has some of full blood and others of half-blood, the children they are all deemed to have been instituted
inheritance shall be distributed equally unless a different simultaneously and not successively. (771)
intention appears. (770a)

Notes:  This article states that when a parent and children are instituted in
 This follows the general rule of equality that is laid down in 846. a will, they are as if they are separately instituted. It does not mean
that if the parent dies, then the kids step in his steed – rather it

TANTOCO 3B Page | 58

means that the parents and the children get the same portion of the 3. It must appears from the face of the will that the testator would
estate as each other. not have made disposition if he had known of the falsity of the
 This article lays down the same rule that equality and individuality cause.
of institution are presumed. If the testator intends a different mode o In this case you cannot use extrinsic evidence.
of apportionment, then he should specify.  All of these three requisites MUST concur for there to be falsity
as to cause to invalidate the will.

Art. 850. The statement of a false cause for the institution of an

heir shall be considered as not written, unless it appears from the Austria vs. Reyes
will that the testator would not have made such institution if he In this case some of the relatives of the decedent were saying
had known the falsity of such cause. (767a) that the decedent did not adopt the children that she instituted as heirs
in her will. But the court said that with regard to all other matters – the
will was immaculate. The main point of contention is the phrase
“Sapilitang Tagapagpamana” and “Sapilitang Mana”. The oppositors
 Read this provision with Art. 833.
were saying that this indicated that the testator thought that what she
 Please remember that a testator is free to institute heirs and at the as giving was the legitime to her compulsory heirs.
same time revoke them – this is testamentary freedom.
 This can be done for any reason or for no reason at all. The SC said that this is highly speculative, since why will she
even name the heirs one by one if she knew that they would get the
 If the institution of an heir on a false cause does not invalidate a
property by operation of law. The SC even added that even assuming
will, the will is still perfectly valid. It does not even annul the
that the disposition was indeed made since the testator thought that she
disposition in favor of that person.
should be giving it as legitime, the court said that this would not be
o E.x. I give A my car because he is the best racecar driver in
sufficient to annul the disposition. This is since the disposition can
the world.
only be annulled when it is shown that the testator would not have
o If you want to have the disposition based on a false cause to
made the disposition had she known that the cause was false. This
annul a testamentary disposition you have to prove that the
being the case the SC upheld the validity of the disposition since there
requirements that are laid down in the Reyes case are present.
was no showing that the testator would not have made the disposition.
GR: The falsity of the stated cause for the testamentary institution
Here it also did not appear from the face of the will that she would not
does not affect the validity or efficacy of the institution.
have given the dispositions to the adopted children. As a matter of fact
 The reason for this rule is that testamentary dispositions are why did she even grant a testamentary disposition even if she knew
ultimately made on liberality. that they were entitled to a legitime? This shows that she was fond of
EX: The falsity of the stated cause for institution will set aside the them.
institution of certain factors are present. The FF are requisites.
1. Cause of institution must be stated in the will
2. Cause must be false

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Art. 851. If the testator has instituted only one heir, and the inheritance, or the whole free portion, as the case may be, each
institution is limited to an aliquot part of the inheritance, legal part shall be reduced proportionally. (n)
succession takes place with respect to the remainder of the estate.
The same rule applies if the testator has instituted several heirs, 852 contemplates a situation where the testator has no compulsory
each being limited to an aliquot part, and all the parts do not cover heirs, and he designates some persons as those that are to be his heirs
the whole inheritance. (n) to the WHOLE estate. 852 ONLY applies if the testator says that he
leaves to the heirs the ENTIRE estate, and he gives fractions. Since if
he gives fractions only, then the remainder will go to intestacy. If he
Only One Instituted Heir More than one Instituted Heir
just says he is giving the whole estate to the persons, then they get it
Institution is Limited to that Each institution is limited to that in the same proportion.
aquilot part aquilot part
 In this case he makes a designation where he assigns each a share
Sum of the parts is less than the and he does not dispose of his whole estate.
inheritance o E.x. I give to A,B,C my ENTIRE estate. To A 5/12, to B 4/12,
What happens to the remainder of the estate? to C 1/12. Here this adds up lang to 10/12. Suppose the whole
 Legal succession takes place with respect to the remainder of estate is worth 6M
the disposable portion, and NOT to the remainder of the estate.  A = 2.5 M
 B= 2M
 The wording of this article is erroneous, since legal succession  C = 500K
does not take place with respect to the remainder of the estate,  TOTAL = 5M, so kulang pa 1M
rather only to the remainder of the disposable portion.  So you divide the remaining 1m and apportion it among
o This is since there may be compulsory heirs whose legitimes the heirs in a 5:4:1 ratio.
cover part of the estate o In this case you cannot go to intestacy since the testator wants
to give the WHOLE estate, if you go to intestacy, then you are
violating the will of the testator.
Art. 852. 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 853 on the other hand contemplates a situation where the testator did
instituted to an aliquot part of the inheritance and their aliquot the reverse of article 852, here naman the testator designated too
parts together do not cover the whole inheritance, or the whole much. So it’s the same procedure as 852, but instead of increasing it
free portion, each part shall be increased proportionally. (n) proportionately, you decrease it.

Art. 853. If each of the instituted heirs has been given an aliquot BUT REMEMBER: Both articles contemplate that the testator left NO
part of the inheritance, and the parts together exceed the whole COMPULSORY HEIRS. And he leaves the ENTIRE ESTATE to
those who are instituted in the will.

TANTOCO 3B Page | 60

Remedy: Proportional Increase Remedy: Proportional Decrease

SIR: These rules on the proportional deduction and addition shall also
apply when you are only dealing with part of an estate. For example: IMPORTANT DISTINCTIONS: 851 pertains to a situation where
you say that you are leaving the ENTIRE free portion of your estate there is only ONE instituted heir, and that institution is not to the
to A,B,C. But it’s a 5/12, B 2/12, C 4/12 – this adds up lang to 11/12. whole estate, thus the parts that are not given go to intestacy. 852 and
853 on the other hand contemplate that the testator INTENDED to
So for the articles to apply, what do you take into consideration? give the WHOLE estate or free portion to the instituted heirs, thus here
 There are more than one instituted heir there will be a proportional increase or decrease/
 The testator intended them to get the WHOLE estate, OR the
WHOLE disposable portion. What happens if there are specific dispositions – i.e. devisees, and
 The testator has designated a definite portion for each heir. there are heirs instituted to an aquilot part? In this case you decrease
all of them proportionally.
Article 852 Article 853 Ex. Whole estate is 10M
Common Elements: ADMU – 1/5 – thus 2M
1. There is more than one instituted heir UP – 1/5 – thus 2M
2. The testator intended them to get the whole estate, or the whole
disposable portion A – 9M
3. The testator designated a definite or aliquot portion for each B – 7M
heir TOTAL = 20M
These two articles also contemplate:
Here you have to reduce in the proportion of 1:1:5:4 with respect to
1. That the testator had no compulsory heirs, so he is giving the
1M na sobra. (2+2+9+7= 20) (10M/20 = 500K)
entire estate to his testamentary heirs OR
2. The testator has compulsory heirs, but he is giving the ENTIRE
free portion to the heirs so mentioned. ADMU = 2M – [500K*2 = 1M] = 1M
The total pf all the portions is The total of all the portions UP = 2M – [SAME as Above] = 1M
LESS than the whole EXCEED the whole
A = 9M – [500K*9 = 4.5M] = 4.5M
Common Element: Bano yung testator mag math. (he must have
been a lawyer) B = 7M – [500K*7 = 3.5M] = 3.5M
In this situation the remainder TOTAL = 10M
cannot pass through intestacy
since the testator clearly
intended to give the heirs the Art. 854. The preterition or omission of one, some, or all of the
ENTIRE estate 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,
TANTOCO 3B Page | 61

shall annul the institution of heir; but the devises and legacies shall  Is it possible that someone is left out in a will but is NOT
be valid insofar as they are not inofficious. preterited?
If the omitted compulsory heirs should die before the testator, the o YES – In Seangio, The will just contained the disinheritance,
institution shall be effectual, without prejudice to the right of and this was not a case of preterition.
representation. (814a)  SC: The fact that this is just disinheritance in the will this
does not mean that the other heirs were preterited. It is
evident from the will that the testator intended all the
NOTES: compulsory heirs to succeed, except for the disinherited
 What is the correct meaning of Preterition? heir. (Remember preterition is not the omission from the
o It is the omission from the inheritance of one, some, or all will, but from the inheritance)
of the compulsory heirs in a direct line.  On the other hand is it possible to be placed in a will but you ARE
 Wala ka sa inheritance, kasi you may not be mentioned in preterited?
the will but there are instances when you are not preterited o YES! If the heir is NOT:
 The fact that you are not in a will does not matter if you a. Instituted as an heir
are in the will or not. b. Expressly Disinherited
 There are instances when you are in the will, and you c. Assigned any part of the estate.
are still preterited. o In essence you are tacitly deprived of you right to legitime.
o E.x. When the will does not give a disposition  Who can be Preterited?
rather it says: “I give to Gian all my love.” o It says compulsory heir in the direct line – remember, not all
 And there are instances when you are not in the will compulsory heirs can be preterited.
but you are not preterited.  A spouse is a compulsory heir who is not in the direct line.
o When you receive a donation inter vivos  So if a spouse is left out from her inheritance, then she
o When not all of the estate of the decedent and invokes completion of legitime, and not 854.
there is a potion that will go through the heir  Whether or not there is preterition can only be determined only
through intestacy. upon the death of the testator.
o Remember: Preterition means that someone is left out from
the INHERITANCE, not from the WILL. What is the effect of Preterition?
o So the compulsory heir must not have received anything from o Preterition ANNULS the institution of an heir/s
the testator either by way of (An heir is preterited when he is  T or F Preterition always results to intestacy.
left out and not given anything by):  F – If there are legates or devisees, then there is no
a. Testamentary Succession intestacy since there is still a testamentary
b. Legacy or Devise disposition.
c. Donation Inter Vivos o But the legacies and devises are still valid/preserved,
d. Intestacy EXCEPT to the extent that the latter do not impair legitimes.

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o It results in the total abrogation of the will, or the nullification o This situation is different from 852 and 853, since here the
of the institution of heirs. testator intended to give to the heirs the ENTIRE estate.
o If there are no other testamentary dispositions like legacies or o The omitted heir would still receive something by way of
devises, it amounts to a declaration that nothing at all was intestacy, from the vacant or remaining portion, undisposed
written. by the will.
o The effect of annulling the institution of heirs will be the o Remedy: completion of legitime.
opening of intestacy, except that proper legacies and devises
must be respected. What constitutes Total Omission:
o Scenario 1: Testator institutes A and ADMU as heir for ½ of  If the decedent receives NOTHING by way of:
estate each. If there is a compulsory heir: A and ADMU do 1. Institution of Heir
not get anything. This is annulled – so intestacy results. 2. Legacy or Devise
o Scenario 2: I give B – 1/2, I give ADMU P8M. At the end the 3. Intestacy
estate is 40M. In this case if there is a compulsory heir, then 4. Donation Inter Vivos.
B’s ½ is annulled, but ADMU’s 8M is still effective. o If you receive anything from the above no matter how small,
 But in the case that the 8M to ADMU infringes on the you are NOT preterited – kahit piso.
legitime, then this will merely be reduced.
 If you have a surplus after giving legitimes to the
compulsory heirs, you do not give it to B. What if an heir is stated in the will, but what is being given to him is
 Here there is no intestacy since ADMU still gets P8M. less than his legitime?
o When you say that it is annulled – it is removed, and as if it  THERE IS NOT PRETERITION! What happens here is that you
was not made. Remember: ANUL not reduce. just go for ask for the remedy under article 906 and 907 for the
completion of legitime.
Summary: When is there NO Preterition:  So – Should the value of the legacy or devise be less than the
recipient’s legitime, the remedy is for the completion of legitime.
1. If the heir instituted in the will receives a portion less than his
o Remedy: Completing of legitime
Reyes vs. Datu
2. If the heir is given a legacy or devise
In this case a share that was assigned to Salud – ½ of the
o Remedy: Completing of legitime
estate, impinged on the legitime of Milagros, and the fact that
3. If the heir had earlier received a donation inter vivos from the
Milagros (the daughter) was allotted a smaller share, this does not
make this a case of preterition. This is since preterition contemplates
o Note: Donation Inter Vivos are considered as advances from
that there is a complete and total omission of a compulsory/forced heir.
4. If NOT ALL of the estate is disposed of by will, and the heir is
Aznar vs. Duncan
not mentioned in the will, nor a recipient of a donation inter vivos.

TANTOCO 3B Page | 63

In this case one heir was recognized as the natural daughter,  NO – this is since a donation inter vivos is considered as an
and the other was judicially declared to be the daughter. In this case advance on the legitime. Since something was given to him, he is
there was a will, but a partition was allowed on the premise that the not preterited. As a matter of fact all that the heir has to do is to
adopted daughter was preterited, hence the properties had passed to claim for the completion of his legitime.
them as if the testator died intestate. In this case the SC said that there o Art 909 – Donation to a child (legitimate and illegitimate)
was no preterition since the adopted daughter was given a legacy of shall form part of their legitime.
P3,600. This showed that the testator did not recognize her has his
daughter, so he gave her substantially less. If heir is not mentioned in the will, and he did not receive any donation
The court held that there can be no preterition when a inter vivos, is there an instance where there is no preterition?
compulsory heir was given a devise or legacy, in this case what should  YES – this is in the case where the will did not dispose of the
be filed is for the completion of the legitime, and not for the preterition whole estate, in this case the omitted compulsory heir shall be
of the will. The heir could not ask that the institution of heirs be entitled to the potion not disposed of and in addition to this he can
annulled entirely when a he was left a legacy worth less than the demand for the completion of his legitime.
legitime, and even if said legatee is not referred to as an heir or even a
relative. Should the value of the legacy or devise be less than the Who are included in the meaning of Compulsory Heirs in a Direct
recipient's claimed legitime, her remedy is only for the completion of Line, whether living at the time of the execution of the will ro born
legitime. after the death of the testator?
 Compulsory heir in the direct line
Who can be preterited? o This covers children, and in proper cases the parents or
 Under 854 – the Heirs in the DIRECT LINE. This means: ascendants.
o Children o The surviving spouse does NOT fall within the purview of
 This also includes adopted children (Acain vs. IAC) the article – since although a compulsory heir, not one of in
o Descendants the direct line.
o Parents  So there can be no preterition of a spouse.
o Ascendants  Are illegitimate descendants or ascendants covered?
 Manresa – Also included are legitimate and illegitimate o Scaevola – NO
descendants and ascendants (since there is no distinction in the o Manresa – YES
law)  This is the better view since the law does not distinguish.
 This article does not include the surviving spouse – although a
spouse is a compulsory heir, she is NOT in the direct line and What happens when a preterited heir predeceases the testator?
therefore cannot claim to be preterited.  Scenario 1 – the preterited heir left no heir, this becomes moot
 Scenario 2 – the preterited heir left an heir – the heir of the heir
If the heir had received from the testator a donation inter vivos, is there steps into the shoes of the heir. (this can be either a descendant or
Preterition? an ascendant)

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Acain vs. IAC disinherited heir has been

Preterition consists in the omission in the testator's will of the illegally deprived.
forced heirs either because they are not mentioned therein, or although Presumed to be involuntary; Should be express, and
mentioned, they are neither instituted as heirs nor are expressly based on the inadvertent supported by a legal cause
disinherited [NUGUID VS. NUGUID]. Even if a surviving spouse omission by the testator. specified in the will itself.
(widow) is a compulsory heir, there is no preterition even if she is He is bypassed, and the remedy He is still not bypassed since the
omitted from the inheritance, for she is not in the direct line. is the annulment of institution of heir is simply entitled to demand
heirs. (entire will, except Devise his rightful share.
However, an adopted daughter was totally omitted and
and Legacies)
preterited in the will.
In cases of disinheritance if the
An adopted child is included in the “compulsory heir in the
disinheritance is ineffective the
direct line”. Thus if that adopted child is totally omitted from the heir is simply entitled to his
inheritance, then that child is preterited. rightful share.

Meaning of Annulment and Institution of an Heir 2 situations:

1. If the will contains only institutions of heirs and there is
Nuguid vs. Nuguid
preterition, thus total intestacy will result.
Here, a one-sentence will institutes the petitioner (sister) as
2. If there are legacies and devises and there is preterition, the
the sole heir, nothing more. No specific legacies or bequests were
legacies and devises will stand, to the extent of the free portion.
provided. The omission of the parents as forced heirs in the direct line
The Devise and Legacies will be reduced and not set aside if the
results in preterition. And the nullity of the institution is complete.
legitimes are impaired. The institution of heirs will be swept away.
Legacies and devises merit consideration only when they are
so expressly given as such in a will, in so far as they are not inofficious. Seniago vs Reyes
In this case there was just a disinheritance in a will. There was also
The will here does not expressly disinherit the parents, the
just a brief mention of one of the compulsory heirs by name. Some of
forced heirs. It simply omitted their names. Such is preterition rather
the heirs were saying that there was preterition since they were not
than an ineffective disinheritance.
mentioned in the will.
The SC said that there was no preterition in this case since when you
Preterition Disinheritance talk about preterition the compulsory heir does not get any portion of
This is the total omission from Is a testamentary disposition the inheritance. In this case the intention of the testator is to give his
the inheritance without being depriving any compulsory heir estate to the compulsory heirs to the exclusion of the disinherited heir.
expressly disinherited. of his share in the legitime.
Inadvertent omission by the Express, and under cause Ureta vs. Ureta
testator authorized by law. When you talk about preterition there has to be a testamentary
A Complete nullity of the The nullity is limited to that disposition. If there is no testamentary disposition preterition does not
institution of heir (except portion of the estate of which the apply.
Devise and Legacies).
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Note: There is a gap in the law. The article says: Preterition shall  How to fill up the compulsory heir’s legitime
applies to heirs who were born at the time of the execution or after the a. From the portion of the estate left undisposed of by will]
time of death. So what happens to the gap in the middle, the interim? b. From the shares of the testamentary heirs, legatees, and
 Ex. I make a will 2009, but I end up having a child in 2010? devisees, proportionally.
o Bawal na yung anak na 2010? WRONG.  This is the Superfluity of the Article:
 Manresa says that this is just a typo o It does not apply to preterition but to completion of legitime.
There are other rules for completion under Art 906- 911.
Sir: Preterition is also subject to the right of representation:  Two inaccuracies
 Scenario 1: X executed a will and he forgot to institute his son A 1. Coverage should not only extend to children and descendants,
as an heir. A died in 2015 and X died in 2020. but to all compulsory heirs.
o In this case there was no preterition. 2. The proportionate deduction should not be borne by the
 Scenario 2: X executed a will and he forgot to institute his son A compulsory heirs, but should be by the testamentary heirs,
as an heir. A died in 2015 and X died in 2020. BUT A had including the legatees and devisees. Since if you deduct from
children. the compulsory heirs you are deducting from their legitime.
o Here there is preterition since the children are preterited, and  When does 855 operate?
854 is effective not because A was preterited, rather because o In case of inofficious disposition by the testator in the will.
his children were. o When the testamentary heirs, devisees and legatees get more
 Scenario 3: X makes a will and he gives everything to ADMU. X than the free portion.
has a child A, and parent P. A died in 2015 and X died in 2020.  How does this article operate to fill dispositions to heirs that are
o Here there is preterition – with regard to the parent since they not given what they are fully due?
are heirs in the direct line. o First, from the portion of the estate still left undisposed of by
o Second, from the shares of the testamentary heirs, legatees
Art. 855. The share of a child or descendant omitted in a will must and devisees.
first be taken from the part of the estate not disposed of by the  The following are entitled to the full satisfaction of their legitimes
will, if any; if that is not sufficient, so much as may be necessary o All the compulsory heirs:
must be taken proportionally from the shares of the other  Children
compulsory heirs. (1080a)  Descendants
 Parents
 Ascendants
Notes:  Spouse
 This article is completely redundant and unnecessary. It even  The burden to bear the deduction to complete the legitimes shall
contradicts the provisions on legitimes. be as follows:
 The proper application of this article is when a compulsory heir is
not preterited but left something less than his legitime.

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o The proportionate reduction should be borne by the  There may be representation by the heirs of said decedent heir,
testamentary heirs, legatees, and devisees. It should not be but representation is still not a transmission.
borne by the compulsory hers.  Representation in the person does not transmit anything to the
o To make the compulsory heirs suffer for the completion of heirs. Rather, representation is a form of subrogation or “to
legitimes is the case of “robbing Peter to pay Paul.” take the place”
o It is the testamentary dispositions that must be reduced if  This rule of non-transmission is ABSOLUTE.
they impair or diminish the legitimes of the compulsory
o In fact, the testamentary heirs are subject to reduction even Outline of Rules
up to ZERO!! Type of Succession Compulsory Voluntary Legal
 Sir: Dapat yung bawasan yung share ng mga TESTAMENTARY Circumstance of heir (Compulsory) (Testamentary) (Intestate)
HEIRS. Predecease Transmits nothing
o Testamentary heir includes also a compulsory heir who
Representation No Rep. Representation
receives in excess of his legitime.
o This is since a compulsory heir is ENTITLED to legitime. Incapacity Transmits nothing
Representation No Rep. Representation
Art. 856. A voluntary heir who dies before the testator transmits Renunciation Transmits Nothing
nothing to his heirs. No Representation
A compulsory heir who dies before the testator, a person Disinheritance Transmits N/A N/A
incapacitated to succeed, and one who renounces the inheritance, Nothing
shall transmit no right to his own heirs except in cases expressly Representation N/A N/A
provided for in this code. (766a)

SECTION 3. - Substitution of Heirs

A better restatement of the rule would be:
 “An heir whether compulsory, voluntary or legal – transmits Art. 857. Substitution is the appointment of another heir so that
nothing to his heirs in case of predecease, incapacity, he may enter into the inheritance in default of the heir originally
renunciation, or disinheritance. instituted. (n)
However in the case of predecease, incapacity, and disinheritance of
compulsory heirs the rules on representation shall apply. (No Notes:
mention of renunciation)”  In default means failure to inherit because of:
The general rule is that when an heir predeceases, becomes o Predecease,
incapacitated, or renounces an inheritance, he transmits NOTHING to o Renunciation
his heirs. But there shall still be the right to representation. o Incapacity

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 Is it a complete definition? o This is the right of the testator to place a burden on the heir
o No. It is incomplete because default covers or defines only  i.e that the first heir has to take care of it and transmit it in
simple substitution and not fideicommissary substitution. time period that is stated by the testator.
 Complete definition: Substitution is the appointment of Notes:
another heir so that he may enter into the inheritance either  In reality there are only 2 kinds of Substitution:
in default of the heir originally instituted or after. o Simple
 Basis for substitution: o Fideicommissary
o The testator may have a second preference.  These two substitutions are mutually exclusive.
o In relation to the first heir instituted, the first is preferred over  There are really only 2 kinds of substitutions – brief and reciprocal
the substitute. are just variations and not kinds of substitutions.
o But in default or after the first, the testator would rather that
the inheritance go to the substitute than by intestacy. Q: Can you have a purely reciprocal substitution?
o Allowing substitution is giving respect to the first and second A: NO. All substitutions are either simple or Fideicommissary.
preference of the testator.
o The power to make substitution is based on the power to make Note: The brief and reciprocal substitutions are merely variations of
testamentary dispositions. the either it being simple or Fideicommissary.
o This is really a condition imposed on the institution of heirs.
 Ex. A has sons whom he does not want to get the free Art. 859. The testator may designate one or more persons to
portion. He wants to give it to B. But B may die before A. substitute the heir or heirs instituted in case such heir or heirs
After B, A prefers C to get it. As bet. C and his children, should die before him, or should not wish, or should be
A would rather that C get it. As such, C is appointed by incapacitated to accept the inheritance.
the testator as B's substitute.
A simple substitution, without a statement of the cases to which it
 NOTE: Substitution ONLY covers the free portion. refers, shall comprise the three mentioned in the preceding
paragraph, unless the testator has otherwise provided. (774)
Art. 858. Substitution of heirs may be:
(1) Simple or common;
(2) Brief or compendious; Notes:
(3) Reciprocal; or  This article gives you simple substitution.
(4) Fideicommissary. (n)
What are the grounds for the 2nd heir to inherit in place of the 1st?
1. Predecease of the first heir
What are the four kinds of substitution that are given by this article?
2. Renunciation of the first heir
1. Simple/Common
3. Incapacity of the first heir
2. Brief/Compendious
3. Reciprocal
Question: Is the list exclusive?
4. Fideicommissary
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o YES!  So what happens now?  View 2: The substitute need not have capacity at the time of the
 The estate passes into intestacy renunciation.
 Because it now becomes a condition. o This can be seen from article 1042
 Thus it will just be a conditional testamentary  “The effects of the acceptance or repudiation of the
disposition. inheritance shall always retroact to the moment f the death
 Remember: If a condition is not complied with, then of the decedent.”
the disposition will just go to intestacy. o Also 553
 “One who validly renounces an inheritance is deemed
How do you make a simple substitution? never to have possessed the same.”
1. You enumerate all of the cases above
2. By just saying that one is to substitute the other Art. 860. Two or more persons may be substituted for one; and
3. By saying which among the grounds you want one person for two or more heirs. (778)

NOTE: the testator has the option to limit or choose which among the Notes:
three simple substitutions are to be operative.  This gives you brief or compendious substitution. This means that
 Ex. A will substitute B in the event that B predeceases me. one substitutes for two, or two substitute for one.
o Compendious – Two or more substitutes for one original heir.
How many substitutions can there be?  I give A ½ of my estate, and by way of simple substitution
 ONE! Only one substitution is allowed, the person who is I designate B and C
substituting cannot be substituted. o Brief – One substitute for two or more original heirs.
 I give B and C ½ of my estate, and by simple substitution
Q: In case of renunciation by the first heir, must the substitute have I designate A.
capacity at the time of the renunciation? If the substitute dies before  This article is in reality a variation of simple substitution and the
the first heir manifests his renunciation, may the heirs of the substitute fideicommissary substitution.
represent him? o Simple is the example above
A: There are 2 Views o For FC – I institute A to ½ of my estate, and to transmit the
 View 1: The substitute must have capacity at the time of the property to B upon his death.
o This can be seen from article 1034 When you talk about compendious substitution there are some things
 “If the institution, devise, or legacy should be conditional, that you have to remember (this is the One replacing 2):
the time of the compliance with the disposition shall also  Default of only ONE of the original heirs
be considered.” o Substitution will NOT take place. The share will just accrue
o A simple substitution is a form of conditional institution – to the surviving heir
therefore article 1034 par 3 can also be applied. o So substitution will take place only if ALL the original heirs
are disqualified.
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 Default of ALL the original heirs What is the effect? A and B will share the 30K in the proportion of
o Substitution can take place. 2:1.
 BUT: the testator may provide for the substitution even if only one Steps:
of the original heirs is in default.  Get the LCD of 1/3 and 1/6 = 6
 Example:  Then ratio the shit out of it – its 2:1, then add the 2 and the 1 to
o X says: I institute A and B to 1/3rd of my estate, and I leave C get 3! Then 3 is your divisor.
as their substitute.  30,000/3 = 10,000
 If A predeceases B, B will get the whole 1/3.  A’s Share = 20,000 + 10,000*2 = 40,000
 C will only be substituted, when BOTH A and B are  B’s Share = 10,000 + 10,000*1 = 20,000
 EXCEPT: When the testator provides for a substitution in Art. 862. The substitute shall be subject to the same charges and
the event of the death, renunciation, or incapacity of any conditions imposed upon the instituted heir, unless and testator
one of the original heirs. has expressly provided the contrary, or the charges or conditions
Art. 861. If heirs instituted in unequal shares should be are personally applicable only to the heir instituted. (780)
reciprocally substituted, the substitute shall acquire the share of
the heir who dies, renounces, or is incapacitated, unless it clearly Notes:
appears that the intention of the testator was otherwise. If there  In substitution the 2nd heir takes the place of the 1st heir – this is a
are more than one substitute, they shall have the same share in the kind of subrogation
substitution as in the institution. (779a)  GR: The second is subject to the same charges and conditions as
the 1st heir
This article refers to Reciprocal Substitution. Reciprocal substitution o EX:
is not a distinct kind of substitution, but it is rather a possible variation 1. The testator expressly provides the contrary
of the vulgar or the fideicommissaria. 2. The charges and the obligations are personally applicable
to the 1st heir.
Notes:  In short: the substitute merely takes the place of the original heir.
 If the heirs are instituted in UNEQUAL shares, the substitute shall  The article does not only cover charges and conditions but also the
acquire the share of the heir that he replaces rights of the first heir, subject to the same exceptions.
o UNLESS it appears that the testator intended otherwise.
 If there is more than one substitute, they shall have the same share Art. 863. A fideicommissary substitution by virtue of which the
in the substitution as in the institution. (second sentence) fiduciary or first heir instituted is entrusted with the obligation to
o Example of this: Total Estate is 60K and C predeceases, and preserve and to transmit to a second heir the whole or part of the
A,B, and C are made substitutes of eachother. inheritance, shall be valid and shall take effect, provided such
A = 1/3 = P20,000 substitution does not go beyond one degree from the heir
B = 1/6 = P10,000 originally instituted, and provided further, that the fiduciary or
C = ½ = 30,000
TANTOCO 3B Page | 70

first heir and the second heir are living at the time of the death of  This is what makes FC different from vulgar, since in vulgar the
the testator. (781a) substitute only takes the place of the 1 st heir in the event that the
1st heir fails to inherit.
Five Elements of a Fideicommissary Substitution in Brief:  NOTE: the FC heir does not receive the property upon the death
1. A first heir or a fiduciary who takes the property upon the of the testator his rights vests at the time and merely becomes
testator’s death. subject to a period. And the right passes to his heirs should he die
2. A second heir who takes the property subsequently from the BEFORE the fiduciary’s right expires.
3. The second heir must be one degree from the first heir. The Second Heir must be one degree from the first heir.
4. The dual obligation imposed upon the fiduciary to preserve the  There is no question that only one transmission is allowed in FC
property and to transmit it after the lapse of the period to the – the question now is, does the second heir have to the child or
Fideicommissary heir. parent of the first heir  YES
5. Both heirs must be living and qualified to succeed at the time of  Palacios vs. Ramirez – In the case, 2/3 of the usufruct of the free
the testator’s death. portion was given to Wanda, w/ 2 other persons not related to her
as her substitutes by way of simple and fideicommissary
Five Elements of a Fideicommissary Substitution: substitution. Her grandnephews object on the ground that there
First heir or a fiduciary who takes the property upon the testator’s could be no fideicommissary substitution because the substitutes
death. were not w/in one degree of each other. The SC agreed w/ the
1. A first heir (in accordance with 777) who takes the property upon nephews. It said, quoting Tolentino, that one degree refers to one
the testator’s death. generation. As such, the fideicommissary can only be either a
 The fiduciary enters upon the inheritance upon the opening of the parent or child of the fiduciary.
succession – i.e. when the testator dies.
 For the substitution to operate, the first heir receives property, Palacios vs. Ramirez
either upon the death of the testator or upon the fulfillment of any The substitutes Jankowski and Ramirez were not related to
suspensive condition imposed by the will. As distinguished from Wanda, the heir originally instituted.
a simple substitution where the second heir receives property only Tolentino says that “one degree” from the first heir is,
upon default of the first heir. First heir does not receive the adopting the view of Manresa and Sanchez Roman, construed as
property. generation. The code thus clearly indicates that the second heir must
be related to and be one generation from the first heir. It follows that
Second heir who takes the property subsequently from the fiduciary. the fideicommissary can only be either a child or parent of the first
 The Fideicommissary heir does not receive the property until the heir. These are the only relatives who are one generation or degree
fiduciary’s right expires from the fiduciary.
 BOTH heirs enter into the inheritance one after the other, each in
his own turn.

TANTOCO 3B Page | 71

Note: Our jurisprudence is different from what the Spanish was left, and that the husband was not allowed to sell the property in
commentators think. In their opinion it should be one transfer, it does Texas did not give a FC substitution.
not matter what relation it is.
A: Thus: If there is no obligation imposed to preserve the property
Note 2: there was a case in which Ruben thought that the decision and to transmit it to the second heir, there is no fideicommissaria.
would be reversed, BUT in this case it was not clear that there was a  In this case the institution is NOT void, rather it may still be valid
FC – for there to be an FC it must be clear that there is an obligation as some other disposition, but it is NOT a fideicommissaria.
to preserve and then to transmit to the FC heir – in this case this was  This in the PCIB case the court held that the institution that was
absent – thus an essential aspect of a FC substitution was not present. present in that case was a simultaneous institution – on the
husband it was subject to a resolutory condition, and for the
There is a DUAL obligation that is imposed upon the fiduciary to siblings of the wife it was subject to a suspensive condition.
Preserve and Transmit the property to the second heir.
 This requisite is the essence of a fideicommissary, thus it is an Q: How long does someone remain as a Fiduciary?
ABSOLUTE obligation to preserve and to transmit. A: 2 Rules:
 This makes the position of the fiduciary basically that of a 1. Primary Rule
usufructury, with the right to use and enjoy the property, but o The period indicated by the testator
without the jus dispodendi. 2. Secondary Rule
o If there is no period that is stated by the testator, then it shall
Q: What is the effect if there is NO absolute obligation to preserve and be for the life of the fiduciary.
transmit the property?
Both heirs must be living and qualified to succeed at the time of the
PCIB vs. Escolin testator’s death.
The wife dies and she had a will that said that the husband  Living – given by 40-41
may have all of her property and do as he may wish with it. It was only  Qualified – Given by 1024-1034
subject to the condition that he should not sell their property in Texas,  This twofold requirement is to be met only upon the death of the
and that in the event that he dies the remainder of the estate should go testator.
to her siblings (there was a provision like this since they had no heirs).  This rule applies to BOTH the first heir and the second heir.
The question in this case is if there is a FC substitution. The  The second heir NEED NOT survive the first heir.
SC said that there is none. This is since there was no vulgar o If the second heir dies before the first heir there is the right of
substitution since there no provision for substitution. There was also representation for the second heirs.
no FC since there was no obligation on the husband to preserve the  From the moment of the death of the testator, the rights of the first
property. As a matter of fact he had absolute ownership and and second heirs are vested.
management of everything. He could sell, encumber, and dispose of o The heirs of the second heir even have the right of
the property as he wished. The fact that the siblings would get what representation in the event that the second heir predeceases
the fiduciary.
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 If fiduciary is able to register the property in his name, 2. By imposing upon the first heir the absolute obligation to
fideicommissary should annotate his claim on the land on the title preserve and to transmit to the second heir.
to protect himself against any alienations in favor of innocent third
parties. What are the allowable deducitons?
1. GR: Is that the fiduciary should deliver the property intact and
Art. 864. A fideicommissary substitution can never burden the undiminished to the FC heir upon the arrival of the period
legitime. (782a) 2. EX: The only deduction allowed, in the absence of a contrary
provision are:
Note: as a matter of fact NO testamentary disposition can burden o Legitimate expenses
legitimes.  When you say this, it limits the expenses to those which
are necessary and useful, and NOT ornamental expenses.
Art. 865. Every fideicommissary substitution must be expressly o Credits
o Improvements.
made in order that it may be valid.
The fiduciary shall be obliged to deliver the inheritance to the What happens if there is damage to the property?
second heir, without other deductions than those which arise from  Due to a Fortuitous Event or Ordinary Wear and Tear -
legitimate expenses, credits and improvements, save in the case o The fiduciary is NOT liable
where the testator has provided otherwise.(783)
 Fur to fiduciary’s fault
o The fiduciary IS liable
Every fideicommissary substitution must be expressly
made in order that it may be valid. Art. 866. The second heir shall acquire a right to the succession
from the time of the testator's death, even though he should die
The fiduciary shall be obliged: before the fiduciary. The right of the second heir shall pass to his
1. To deliver the inheritance to the second heir heirs. (784)
2. Without other deductions than:
a. Those which arise from legitimate expenses,
b. credits, and The second heir shall acquire the right to the succession
c. improvements,  From the time of the testator’s death,
3. Save in the case where the testator has provided  Even though he should die before the fiduciary.
NOTE: The right of the second heir shall pass to his heirs – i.e there
How do you make/impose a FC substitution? is the right of representation. BUT…
There are 2 ways:
1. By express imposition Should the second heir survive the testator?
o Using the term “fideicommissary”
 YES – otherwise there will be NO substitution.
TANTOCO 3B Page | 73

o If there is no FC the limit is 20 years

Should the second heir survive the first heir? o Q: What if the testator says that you cannot dispose of it for
 NO – as long as he survives the testator. 30 years?
o In the event that the second heir dies before the first heir, the  There are 2 views:
heirs of the second heir have the right of representation.  It is void
 SO: Once the testator dies the right already vests on the second  It shall be reduced to the allowable 20.
heir. It is the institution that is subject to a suspensive term. o Ruben agreed with this.
3. Those which impose upon the heir in charge of paying to various
Art. 867. The following shall not take effect: persons SUCCESSIVELY, beyond the limits set by 863, a certain
(1) Fideicommissary substitutions which are not made in an
o Thus if it is SIMULTANEOUS, then it is allowed.
express manner, either by giving them this name, or imposing
o Thus there CAN ONLY be TWO beneficiaries of the pension
upon the fiduciary the absolute obligation to deliver the property
– one after the other.
to a second heir;
 These two must ALSO be one degree from each other.
(2) Provisions which contain a perpetual prohibition to alienate, EX: "I give 1/3 of my estate to X and impose upon him the obligation
and even a temporary one, beyond the limit fixed in article 863; to give a P5,000 pension to A and in A's death, to A's son." This is
(3) Those which impose upon the heir the charge of paying to allowed. But if this is extended to the son of the son of A, then it won't
various persons successively, beyond the limit prescribed in article be allowed. The first and second recipient must be w/in one degree.
863, a certain income or pension; But it cannot extend beyond the second recipient.
(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 4. If the testator gives the whole or part of the estate to someone so
to secret instructions communicated to him by the testator. (785a) that the person may apply or invest the same according to some
secret instruction.
o The ostensible heir here is in reality only a dummy. Since the
The FF shall NOT take effect: person intended to be benefitted is the one to whom the secret
1. FC substitutions which are not made in an express manner. instructions refer.
o Remember: In order to make a FC substitution you either do o This will make the entire provision VOID. But the difficulty
it by name, or give the obligation to preserve and to transmit. here is proving it.
o The fact that this is present does not mean that the disposition
is not valid, rather what it maintains is that there is NO FC EX. A has a paramour X. A gets B as a dummy. Because of the
substitution. BUT there may be something else. prohibition of giving to a paramour, they agree between themselves
2. Provisions which contain a perpetual prohibition to alienate, or that A will leave to B a devise and from its profits B will give X. So
one which prohibits alienation for more than 20 years. A pretends to name B as heir. But in reality, such institution is for the
o Q: can this be more than 20 years? benefit of X.
 A: YES – in the case of a FC substitution, then it may be
for the lifetime of the Fiduciary.
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 In such a case, the institution will not benefit X. Even if X shows Notes:
a written agreement between A and B, it cannot be enforced  Here the title/naked ownership is given to one person, but the
because it is contrary to law. usufruct is given to multiply usufructs
 It cannot be enforced because it is contrary to law. As regards B,  This is NOT an instance of FC, but it merely applies the rules of
he can keep the inheritance even if he double crosses A. FC.
o A instituted B at his own risk that he may be double-crossed  Rules:
by B. Too bad for X. o Only 2 usufructuries are allowed
 You CAN ONLY HAVE 2 at most. No more.
Art. 868. The nullity of the fideicommissary substitution does not o The 2nd usufructury must be one degree from the first
prejudice the validity of the institution of the heirs first  So either
designated; the fideicommissary clause shall simply be considered  Child
as not written. (786)  Parent of the first usufructury.
Notes: usufructuries.
 The nullity of the fideicommissary substitution will not affect
validity of institution of the first heir. Art. 870. The dispositions of the testator declaring all or part of
o Rather what happens here is that it becomes pure and the estate inalienable for more than twenty years are void. (n)
Ruben: What we are not told by this article is what happens when the  This has nothing to do with substitution
1st heir does not have the capacity to succeed, or predeceases – Basta  If the testator imposes a period longer than 20 years, the
he cannot get the property – so what happens? prohibition is VOID.
 The 2nd heir is deemed instituted. o In this case it will only be valid for 20 years.
o Why is this the best way? Since it carries out the intent of the  If there is a FC, the time limitation will not apply
testator. o Because you are allowed have the lifetime of the fiduciary as
o Remember: The intent of the Testator in a FC is that the a period – this can certainly be more than 20 years.
testator wants the first heir to enjoy the property for a specific
time, and to eventually pass to the Fideicommisary Heir. SECTION 4 – Conditional Testamentary Dispositions and
Testamentary Dispositions with a Term
Art. 869. A provision whereby the testator leaves to a person the NOTE:
whole or part of the inheritance, and to another the usufruct, shall  Conditions, Terms, and Modes ONLY apply to testamentary
be valid. If he gives the usufruct to various persons, not dispositions. This is since a condition, term, and mode on
simultaneously, but successively, the provisions of Article 863 legitimes.
shall apply. (787a)

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Articles 871-875 talks of three things: Testamentary dispositions with: Code. Should he do so, the same shall be considered as not
1. Condition imposed. (813a)
2. Term-- certain as to time or certain as to occurrence
Condition: Future and uncertain event which a testamentary
How is are conditions and terms similar? disposition is made to depend.
 They both refer to some future event  Resolutory – Condition Subsequent
 Suspensive – Condition Precedent
How are conditions and terms different?
 Condition – Uncertain Art. 873. Impossible conditions and those contrary to law or good
 Term – Certain customs shall be considered as not imposed and shall in no manner
prejudice the heir, even if the testator should otherwise
Rationale for right to make either of the three: provide. (792a)
1. Right stems from the right of freedom to dispose of his property
mortis causa. Notes:
o If he can dispose of his property mortis causa, then he can  Impossible in Fact
certainly impose either a condition, term or mode. o Ex. I make you swim from here to HK
 Impossible in Law
GENERAL PROVISIONS o An illegal provision can be done, but it should not be done.
 Ex. I will give you my entire free portion if you burn the
Art. 871. The institution of an heir may be made conditionally, or Ateneo Rockwell.
for a certain purpose or cause. (790a)  In these cases the disposition becomes pure, they do not annul the
disposition/institution. What it only annuls is the condition.
What are the three kinds of testamentary dispositions?  Note: there is a difference when it comes to the application of the
1. Condition impossibility or illegality when it comes to succession and
2. Term obligations.
3. Mode o If it is an obligation, if it is subject to an illegal or impossible
condition, then the obligation is void, since the onerous
The right of the testator to impose conditions, terms, and modes, relation of the contract depends on the validity of the contract.
springs from testamentary freedom. If he has the right to dispose of
his entire estate mortis causa, then he has the right to make the Q: What happens if there is an impossible or illegal condition?
dispositions subject to a condition, term, or mode. A: It shall be considered as NOT written.
 In this case the testamentary disposition in NOT annulled, rather
Art. 872. The testator cannot impose any charge, condition, or it becomes pure.
substitution whatsoever upon the legitimes prescribed in this
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Obligation and Contracts Succession o Ruben: there is also does not include the provision that the
If the obligation is divisible, that Illegal and impossible heir should get married.
part which is NOT affected by conditions shall be considered  Ex. I shall give Ms. Santos 1/3rd of my estate, provided
the impossible condition shall as not imposed. that she marries within 2 years from my death.
be valid.
But if it cannot be separated,
 Conditions not to contract a First marriage
then the obligation shall be void.
o This is ALWAYS against the law, thus considered as not
In onerous obligations the Testamentary dispositions are in
condition imposed becomes an the nature of gratuitous made
integral part of the causa of the obligations – which are based on o There is no exception
obligation. the testator’s liberality. This o Ex. I give Ms. Rillo 1/3 of my estate, provided that she does
liberality is the basis of the not marry.
The elimination of the condition grant.  Sir: This is anti-nuptial, thus against Public Policy
results in the failure of the cause.  Condition NOT to contract a subsequent marriage
o GR: It is also considered as not made/written.
No cause = No Obligation o EX: If it is imposed by the:
 Deceased Spouse
 Descendants
Art. 874. An absolute condition not to contract a first or  Ascendant
subsequent marriage shall be considered as not written unless o So it is only the deceased spouse, the descendants, and the
such condition has been imposed on the widow or widower by the ascendants who can make a stipulation NOT to contract a
deceased spouse, or by the latter's ascendants or descendants. subsequent marriage.
Nevertheless, the right of usufruct, or an allowance or some  A way out of this prohibition is the last paragraph where the
personal prestation may be devised or bequeathed to any person testator may provide that the heir is to get a pension. But once the
for the time during which he or she should remain unmarried or heir re-marries the pension shall cease.
in widowhood. (793a)
Q: Do you need a caucion muciana (A bond)?
Notes: A: NO
 This is a negative suspensive condition.
 Ruben: the prohibition should be an ABSOLUTE Prohibition. Note: This article deals with the prohibition to marry, but if it places
o Ruben: Pwede – I shall give Ms. Santos 1/3rd of my estate, in the will that a person HAS TO marry, then this is VALID – Quod
provided that she should not marry a lawyer. non vetitum, lecit.
o Ruben Bawal – I shall give Ms. Santos 1/3rd of my estate,
provided that she does not marry a lawyer, or a non-lawyer

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Q: Can the testator make a stipulation that a person is to enter into a 3. It gives the testator power to dispose mortis causa not only his
religious life? property, but also that of his heirs.
Q: What is declared void?
Q: How about renounce a religion? A: The testamentary disposition which contains the prohibition. It
A: NO does not merely remove the condition as stated earlier as in the case
of a provision that is unlawful.
Q: Does this article prohibit a relative prohibition?
A: NO. What this article prohibits is an ABSOLTE prohibition. Art. 876. Any purely potestative condition imposed upon an heir
must be fulfilled by him as soon as he learns of the testator's death.
Note: The testator may impose a condition to marry either with This rule shall not apply when the condition, already complied
reference to a particular person or class. with, cannot be fulfilled again. (795a)

TorF: The testator can NEVER make a condition terminating the Art. 877. If the condition is casual or mixed, it shall be sufficient if
testamentary benefaction should the heir contract a FIRST marriage? it happens or be fulfilled at any time before or after the death of
Ans: FALSE: The testator may provide that a pension shall go to an the testator, unless he has provided otherwise.
heir as long as that heir is unmarried.
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
Art. 875. Any disposition made upon the condition that the heir be deemed as complied with.
shall make some provision in his will in favor of the testator or of
If he had knowledge thereof, the condition shall be considered
any other person shall be void.(794a)
fulfilled only when it is of such a nature that it can no longer exist
or be complied with again. (796)
 This is called scriptura captatoria (A hunting disposition).
o i.e. Legacy hunting shall be void. Art . 883 par. 2. If the person interested in the condition should
 Here it is not only the condition that is made void, rather the prevent its fulfillment, without the fault of the heir, the condition
WHOLE disposition that it is contained in is VOID. shall be deemed to have been complied with.(798a)
o This is unlike the previous sections where only the condition
is deemed as not instituted. Art. 879. If the potestative condition imposed upon the heir is
 This is something that is strongly against public policy. 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
What are the reasons for the prohibition? has been prohibited by the testator, and that in case of
1. The captatoria converts it into Contractual Transactions. contravention he will return whatever he may have received,
2. It deprives the heir of testamentary freedom together with its fruits and interests. (800a)

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o EX: UNLESS the testator provides otherwise.

 What if the condition is already fulfilled at the time of the
These articles govern the FF kinds of conditions: execution of the will?
1. Potestative o If the testator was UNAWARE of the fact of fulfillment
o Fulfillment of the condition depends solely upon the will of  Deemed fulfilled
the heir, devisee or legatee o If the testator was AWARE
2. Casual  If it can NO LONGER be fulfilled again
o The fulfillment of the condition depends solely on chance or  Deemed fulfilled
on the will of a third person.  If CAN be fulfilled again
3. Mixed  Must be fulfilled again.
o The fulfillment of the condition depends partly on chance and
partly on the will of the heir, devisee, or legatee. Does constructive compliance apply to casual and mixed conditions?
 Casual
Rules on the conditions: o NOT applicable
Potestative:  Mixed
 Positive – TO DO o If dependent partly on chance
o GR: This must be fulfilled as soon as the heir learns of the  NOT applicable
testator’s death o If dependent on the will of a third party
o Except (must CONCUR):  If the 3rd party IS an interested party – APPLICABLE
 The condition was already complied with at the time the  If the 3rd party is NOT an interested party – NOT
heir learns of the testator’s death Applicable.
 The condition is of such a nature that it cannot be fulfilled
again. Art. 880. If the heir be instituted under a suspensive condition or
o In this case you can have constructive compliance: term, the estate shall be placed under administration until the
 When the person interested in the condition should condition is fulfilled, or until it becomes certain that it cannot be
prevent its fulfillment, without the fault of the heir, the fulfilled, or until the arrival of the term.
condition shall be deemed to have been complied with.
The same shall be done if the heir does not give the security
 Negative
required in the preceding article. (801a)
o There heir must give a security to guarantee the return of rhe
value of the property, fruits, interest in case of contravention. Art. 881. The appointment of the administrator of the estate
 This is called the caucion muciana. mentioned in the preceding article, as well as the manner of the
administration and the rights and obligations of the administrator
Casual or Mixed shall be governed by the Rules of Court. (804a)
 GR: May be fulfilled at any time, before or after the death of the

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Between the time of the testator’s death and the:

1. Time of the fulfillment of the suspensive condition or Note: If the Heirs do NOT give the caucion muciana that is required
2. Of the certainty of its non-occurrence by 879 (Potestative condition in the negative), then the same thing as
above will be done  Property will be placed under administration.
The property is to be placed under administration.
 If the condition happens – the property will be turned over to the Q: Should the heir have capacity to succeed when the condition
instituted heir happens?
 If it becomes certain that the condition will NOT happen – A: Heir should have capacity when the testator dies AND when the
property will be turned over to a secondary heir (if there is one condition happens – 1034, the capacity of the heir at the time of the
present), or the intestate heirs, as the case may be. condition shall also be taken into consideration.
 If you are no longer alive, then you do not get the right to succeed
Example: I will give my Bentley to A if he tops the bar. to that portion.
 In the mean time the Bentley does NOT go to A, rather it is placed
under administration. Note: Heir that is also subject to the condition should have BOTH
 Scenarios: capacity and be alive at the time that the condition happens AND when
1. A passes the bar – give him the car the testator dies.
2. A does not pass the bar – he does not get the car, the car passes
to intestacy. Note: Article 881 is NOT applicable to dispositions with a TERM.
3. A dies before he even takes the bar – This is the situation
where “it becomes certain that it cannot be fulfilled”. Thus the What happens to the property if the heirs have not paid the bond under
car should go to the intestate heirs. 779?
 The property shall remain in the hands of an executor or an
Notes: administrator until the heirs furnish the caucion muciana.
 Here disregard the word “Term” this is since term is governed by
885. Suspensive Condition vs. Suspensive Term
 So this article only really applies to articles with a suspensive Suspensive CONDITION Suspensive TERM
condition. Property is placed under Property is given to the legal
 If the condition does not happen, then the property shall pass to administration in the meantime, heirs at once, even BEFORE the
until the condition happens or it arrival of the term.
the intestate heirs.
becomes clear that the condition
will NOT happen.
What happens when the heir is instituted under a suspensive condition Capacity to succeed is Capacity to succeed is
or term? The estate shall be placed under administration: determined: determined:
1. Until the condition is fulfilled 1. At the time of death 1. At the time of the death
2. Until it becomes certain that it cannot be fulfilled AND ONLY.
3. Until the arrival of the term

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2. At the time the condition  The instituted heir, while he is in possession does not have
happens to post a bond
Thus, an heir must be living and
qualified to succeed at BOTH In dispositions with a term, when does the heir’s right vest?
instances.  The rights of the heir vest upon the testator’s death.
 Thus if the heir dies before the arrival of the SUSPENSIVE term,
he merely transmits the right to his own heirs who can demand the
Art. 884. Conditions imposed by the testator upon the heirs shall property when the term arrives.
be governed by the rules established for conditional obligations in o This is the same as FC.
all matters not provided for by this Section. (791a)
What happens if the instituted heir dies BEFORE the happening of the
TERMS: condition?
Term: this is a future and certain event.  In conditional institutions the heir should be living and qualified
Art. 878. A disposition with a suspensive term does not prevent to succeed at BOTH the time of the testator’s death and at the time
the instituted heir from acquiring his rights and transmitting of the happening of the condition.
them to his heirs even before the arrival of the term. (799a)
Art. 885. The designation of the day or time when the effects of the
Notes: institution of an heir shall commence or cease shall be valid.
 A term is sure to happen, thus the only qualification is that the heir In both cases, the legal heir shall be considered as called to the
be alive and qualified when the testator dies. succession until the arrival of the period or (FROM) its expiration.
o There is no need to be alive when the term arises. But in the first case he shall not enter into possession of the
o This is different from a condition where the heir has to be alive property until after having given sufficient security, with the
and capacitated at BOTH the death and the happening of the intervention of the instituted heir. (805)
 There are 2 kinds of terms Notes:
o Suspensive Term – Ex Die  This prevails over 880 since this is the specific rule on terms, thus
 Before the arrival of the term – the property should be superior.
delivered to the INTESTATE heirs.  While you are waiting for a term to arrive, you have to give the
 The intestate heirs that are in possession of the property property to the intestate heirs so that they can use the property.
are required to post a bond  You have to post a bond
 If they do not want to post a bond, then the property shall o The reason for this is to make sure that the legal heirs preserve
go into administration. the property so that in event that the intestate heirs damage the
o Resolutory Term – In Diem property while it is in their possession, then the instituted heir
 Before the arrival of the term – the property should be may claim from the bond.
delivered to the INSTITUTED heir.  When do you have to give the property and post the bond?
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o If the term is SUSPENSIVE – BEFORE the arrival of the term o As a matter of fact modes could have been absorbed in the
the property should be delivered to the INTESTATE heirs concept of resolutory conditions.
 They have to post a bond
o If the term is RESOLUTORY – Before the arrival of the term Condition Mode
the property has to be delivered to the INSTITUTED heir. The condition must happen or be Imposes a burden, but the heir
 No need to post a bond. fulfilled first before the heir will gets the property right away
be entitled to succeed It obligates but does not
MODES It suspends (the effectivity) but suspend.
does not obligate
Art. 882. The statement of the object of the institution, or the
application of the property left by the testator, or the charge
Rabadilla vs. CA
imposed by him, shall not be considered as a condition unless it
The institution of an heir in the manner prescribed in Article
appears that such was his intention.
882 is what is known in the law of succession as an institucion sub
That which has been left in this manner may be claimed at once
modo or a modal institution. In a modal institution, the testator states:
provided that the instituted heir or his heirs give security for
1. The object of the institution,
compliance with the wishes of the testator and for the return of
2. The purpose or application of the property left by the testator, or
anything he or they may receive, together with its fruits and
3. The charge imposed by the testator upon the heir.
interests, if he or they should disregard this obligation. (797a)
A "mode" imposes an obligation upon the heir or legatee but it does
not affect the efficacy of his rights to the succession.
Chevola: The difference of a condition and a mode. A mode obligates,
On the other hand, in a conditional testamentary disposition,
but does not suspend. A condition suspends but does not obligate.
the condition must happen or be fulfilled in order for the heir to be
A mode is a duty. If you do not want to comply with this then you can
entitled to succeed the testator. The condition suspends but does not
renounce the inheritance. If you want to have the inheritance, then you
obligate; and the mode obligates but does not suspend. To some
have to comply with the conditions.
extent, it is similar to a resolutory condition.
You interpret the provision as a mode rather than a condition since this
From the provisions of the Codicil litigated upon, it can be
is more beneficial to the heir.
gleaned unerringly that the testatrix intended that subject property be
inherited by Dr. Jorge Rabadilla. It is likewise clearly worded that the
What is a mode?
testatrix imposed an obligation on the said instituted heir and his
 A mode is an obligation imposed upon the heir, without successors-in-interest to deliver one hundred piculs of sugar to the
suspending – as a condition does – the effectivity of the institution. herein private respondent, Marlena Coscolluela Belleza, during the
 A mode MUST be clearly imposed as an obligation in order to be lifetime of the latter. However, the testatrix did not make Dr. Jorge
considered as one. Rabadilla's inheritance and the effectivity of his institution as a
o Mere preferences or wishes expressed by the testator are not devisee, dependent on the performance of the said obligation. It is
modes. clear, though, that should the obligation be not complied with, the
 A mode functions similarly to a resolutory condition. property shall be turned over to the testatrix's near descendants. The
manner of institution of Dr. Jorge Rabadilla under subject Codicil is
TANTOCO 3B Page | 82

evidently modal in nature because it imposes a charge upon the Herederos forzosos = compulsory heir
instituted heir without, however, affecting the efficacy of such
institution. Q: What is the system of legitimes?
Then too, since testamentary dispositions are generally acts of A: This is where the law reserves a portion of the net estate of the
liberality, an obligation imposed upon the heir should not be decedent in favor of certain heirs, group of heirs, or a combination of
considered a condition unless it clearly appears from the Will itself heirs.
that such was the intention of the testator. In case of doubt, the
institution should be considered as modal and not conditional. Q: What is the nature of legitimes?
A: The legitimes are set aside for mandate of law. Thus the testator is
Q: Who should post the caucion muciana? required to set aside or reserve them.
A: The INSTITUTED heir. The testator is prohibited from disposing the legitimes by
gratuitous title  either inter vivos or mortis causa.
Q: SO… when do you have to post a bond/caucion muciana? Dispositions which are made with onerous title are not
A: In THREE instances” prohibited. This is since there is nothing lost in the estate.
1. Negative Potestative Condition – 879
2. Mode - 883 Q: Who is the compulsion on?
3. Dispositions of a Term Ex Die – 885 A: The testator. The heirs are not compelled to accept the inheritance.
As a matter of fact they may even chose not to accept it. BUT on the
Art. 883 Par. 1. When without the fault of the heir, an institution part of the testator, he is compelled to reserve the property for the
referred to in the preceding article cannot take effect in the exact compulsory heirs.
manner stated by the testator, it shall be complied with in a
manner most analogous to and in conformity with his wishes. Major changes in the law of legitimes:
 Abolition of the mejora
The intention of the testator should ALWAYS by the guiding norm in  Surviving spouse’s share is upgraded from a usufructury interest
determining the sufficiency of the analogous performance. to FULL ownership
 Treatment of illegitimate children
SECTION 5. – Legitime
This comes from the word Legitima/Legitime/Pflichtteil Art. 886. Legitime is that part of the testator's property which he
which is the hereditary reservation. cannot dispose of because the law has reserved it for certain heirs
who are, therefore, called compulsory heirs. (806)
In the Spanish civil code there was a thing that was called a
mejora this was a portion that was reserved for the legitimate children, This article gives the definition of legitime = thus also the definition
and the testator could divide it among his children as he wanted. This of compulsory succession.
was not adopted in our laws.  Legitime is that Part of the testator’s property

TANTOCO 3B Page | 83

o Part – this implies that there is a fraction, it is not to a definite paraphernal properties, for if they were conjugal, the titles covering
portion, rather it is a portion of the total of the estate. the same should have been issued in the names of Rafael Litam and
o Ruben: You cannot pin point to any particular thing which Marcosa Rivera. The words married to Rafael Litam” written after the
would belong and not belong to the legitime. name of Marcosa Rivera, in each of the abovementioned titles are
 When you get part of the legitime you get a portion of the merely descriptive of the civil status of Marcosa Rivera, the registered
whole. owner of the properties covered by said titles.
 Property which he cannot dispose of because the law has reserved
it for certain heirs who are, therefore, called compulsory heirs
o It should be which he cannot dispose of gratuitously. Art. 887. The following are compulsory heirs:
(1) Legitimate children and descendants, with respect to their
Legitime can be disposed by onerous title, but it cannot be disposed of legitimate parents and ascendants;
gratuitous title. (2) In default of the foregoing, legitimate parents and ascendants,
 A testator may sell (onerous) as much of his property that he with respect to their legitimate children and descendants;
wants. (3) The widow or widower;
o This is since the value of the estate does not diminish, rather (4) Acknowledged natural children, and natural children by legal
the value is replaced. fiction;
o If you contest this, then you have to prove that the sale or (5) Other illegitimate children referred to in Article 287.
whatever is simulated. Compulsory heirs mentioned in Nos. 3, 4, and 5 are not excluded
 But you cannot donate (gratuitous) items which would infringe on by those in Nos. 1 and 2; neither do they exclude one another.
the legitime In all cases of illegitimate children, their filiation must be duly
o i.e. if the donation or disposition by gratuitous title exceeds proved.
the free portions and thus infringes on the legitimes, then the The father or mother of illegitimate children of the three classes
gratuitous title is void to the extent that it infringes. mentioned, shall inherit from them in the manner and to the
extent established by this Code. (807a)
Calalang vs. Parulan
A plain reading of the above provision would clearly reveal that the There are 5 kinds of Compulsory Heirs:
phrase “Pedro Calalang, married to Elvira Berba [Calalang]” merely 1. Legitimate children and descendant
describes the civil status and identifies the spouse of the registered 2. Legitimate parents and ascendants
owner Pedro Calalang. Evidently, this does not mean that the property 3. Surviving Spouse/Widow or widower
is conjugal. In Litam v. Rivera, 100 Phil. 364 (1956), we declared: 4. Illegitimate Children
Further strong proofs that the properties in question are the 5. Illegitimate Parents
paraphernal properties of Marcosa Rivera, are the very Torrens Titles
covering said properties. All the said properties are registered in the But under the family code there is no more distinction between
name of “Marcosa Rivera, married to Rafael Litam.” This acknowledged natural children and illegitimate children – they are all
circumstance indicates that the properties Marcosa Rivera, as her considered children.

TANTOCO 3B Page | 84

 You can only have one of the above – this is since your parents
Parents of illegitimate children – Illegitimate parents. are either legitimate or illegitimate. You parents are NEVER one
legitimate and one illegitimate.
Who are the primary? –called primary since they exclude the
secondary Concurring – this is since they inherit together with the primary or the
1. Children or secondary. They do not exclude anyone, nor are they excluded.
o When it comes to matters of succession these are the most 1. Surviving Spouse
preferred o There must be either be a valid or voidable marriage.
2. Descendants o The common law spouses do not apply to this article
o The rule is that the nearer exclude the farther. 2. Illegitimate children
o The only qualification of this rule is the right of o The FC has abolished the distinction between the kinds of
representation. illegitimate children.
Who are the secondary? – called secondary since they only get the OCCURRED.
legitimes if there are no primary heirs  If occurred and the FC was in effect – then no problem
1. Legitimate Parents  If the decedent died before August 3, 1988  then the old
o These are the parents or ascendants of legitimate children distinctions will apply.
o This also include the adoptor in relation to the adopter.  In which case a spurious child gets only 4/5 the share
o Under the present law the adoptor displaced the biological of a natural child.
parents in the successional scheme – relative to the estate of 3. Illegitimate Descendants
the adopted. o The same rule apples as in the legitimate descending line: the
2. Legitimate Ascendants nearer exclude the more remote  without prejudice to the
o These inherit ONLY in default of the parents. right of representation when proper.
o ABSOLUTE rule: The nearer exclude the more remote.
3. Illegitimate Parents (if the decedent is illegitimate) NOTE: Right of Representation of descendants:
o These are the parents of an illegitimate child  The illegitimate child may be represented by BOTH his legitimate
o The illegitimate grandparents cannot inherit. descendants and illegitimate descendants.
o NOTE: If the relationship is ILLEGITIMATE – it only goes  The LEGITIMATE child may ONLY be represented by his
to the parents. There is no such thing as an illegitimate legitimate descendants.
ascendant when it comes to legitimes.
o NOTE: Illegitimate parents are EXCLUDED by: ONLY EX: An illegitimate child EXCLUDES an illegitimate parent
 And kind of descendant  Outside of this a concurring heir will not exclude anyone, nor are
o NOTE: Legitimate parents are ONLY excluded by: they excluded by anyone.
LEGITIMATE children.

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Rosales vs. Rosales Lapuz vs. Eufemio

Intestate or legal heirs are classified into two: An action for legal separation involves nothing but the mere
1. Those who inherit by right bed-and-board separation of the spouses and is purely personal. Being
2. Those who inherit by the right or representation. personal in character, it follows that the death of one party to the action
An intestate heir can only inherit either by his own right as in the order causes the death of the action itself (actio personalis moritum cum
that is provided in the code. persona). Hence, they cannot survive the death of the plaintiff if the
death occurs prior to the decree.
There is no provision in the CC which states that a widow is an In short, an action for legal separation is abated by the death
intestate heir of the MOTHER IN LAW the entire code is devoid of of the plaintiff. If death supervenes during the pendency of the action,
any provision which entitles her to inherit from her mother in law no decree can be forthcoming  it does not matter who dies, it may
either by her right or by right of representation. be the innocent spouse of the guilty spouse.
A further reason why an action for legal separation is abated
The provision of law refers to the estate of the deceased spouse to by the death of the plaintiff, even if property rights are involved, is
which the surviving spouse is a compulsory heir  this does not apply that these rights are mere effects of decree of separation, their source
to a parent in law. As a matter of fact the spouse of an heir is being the decree itself; without the decree such rights do not come into
considered a third person as regards the estate of the parent in law. existence, so that before the finality of a decree, these claims are
merely rights in expectation. If death supervenes during the pendency
In this case the SC said that the right of representation goes to the son of the action, no decree can be forthcoming, death producing a more
and not to his mother. This is since the son represents his father in the radical and definitive separation; and the expected consequential
estate of his grandmother, and does not succeed from the father per se rights and claims would necessarily remain unborn
 So he really succeeds from this mother.
This case also gave disqualifications on the part of the guilty spouse:
Note: The marriage between the decedent and the surviving spouse 1. Loss to the right to any share of the profits earned by the CPG or
must be either valid or voidable. ACP
 If the marriage is voidable, then there should be no decree of 2. Disqualification to inherit by intestacy from the innocent spouse
annulment at the time of the decedent’s death. 3. Revocation of the testamentary dispositions that were made in his
 Mere estrangement between the spouses favor
o This is NOT a ground for the disqualification of the surviving
spouse as an heir. Note: due to this ruling, it now does not matter who is the guilty
 Effect of decree of legal separation Spouse or not.
o Offending spouse – disqualified.
o On the innocent spouse – nothing. Tumbokon vs. Legaspi
 Death of either spouse during the pendence of a petition for legal Only two forced heirs survived Alejandra upon her death, namely:
separation respondent Apolonia, her daughter, and Crisanto Miralles, her
o Dismissal of the case grandson. The latter succeeded Alejandra by right of representation

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because his mother, Ciriaca, had predeceased Alejandra.  Out of all the provisions, the general rule is: There is a basic quota
Representation is a right created by fiction of law, by virtue of which of 1/2 that is to be given to one group of heirs.
the representative is raised to the place and the degree of the person o The exceptions to this are:
represented, and acquires the rights which the latter would have if she  Art 894 – SS and IC
were living or if she could have inherited. Herein, the representative  Art 900 p2 – SS in articulo mortis
(Crisanto Miralles) was called to the succession by law and not by the  Art 903 – SS and IP
person represented (Ciriaca); he thus succeeded Alejandra, not
1. Legitimate Children (includes adopted) ALONE
Bartolome vs. SSS o LC – ½ of the estate
It is apparent that the biological parents retain their rights of o FP – ½
succession to the estate of their child who was the subject of adoption. 2. Legitimate Children (includes adopted) and Surviving Spouse
While the benefits arising from the death of an SSS covered employee o LC – ½
do not form part of the estate of the adopted child, the pertinent o SS – Share of one LC
provision on legal or intestate succession at least reveals the policy on o FP – Whatever is left
the rights of the biological parents and those by adoption vis-à-vis the 3. Legitimate Children (includes adopted), Surviving Spouse, and
right to receive benefits from the adopted. In the same way that certain Illegitimate Children
rights still attach by virtue of the blood relation, so too should certain o LC – ½
obligations, which, We rule, include the exercise of parental authority, o SS – Share of one LC
in the event of the untimely passing of their minor offspring’s adoptive o IC – HALF the share of one LC
parent. We cannot leave undetermined the fate of a minor child whose o FP – whatever is left, may even be none.
second chance at a better life under the care of the adoptive parents 4. Legitimate Children (includes adopted) and Illegitimate Children
was snatched from him by death’s cruel grasp o LC – ½
o IC – half the share of an LC
Otherwise, the adopted child’s quality of life might have been better 5. ONE Legitimate Child and surviving spouse
off not being adopted at all if he would only find himself orphaned in o LC – ½
the end. Thus, We hold that Cornelio’s death at the time of John’s o SS – ¼
minority resulted in the restoration of petitioner’s parental authority o FP – ¼
over the adopted child. 6. ONE Legitimate Child, illegitimate children, and Surviving
o LC – ½
Variations in the legitimacy portions: o IC – half the share of an LC
 The legitimary system of the Philippines rests on a double o SS – ¼
foundation: Principle of Exclusion and Principle of Concurrence.  But this ¼ is preferred over the share of the IC

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7. Legitimate Parents ALONE Quarendum: is the adopted child entitled to a legitimate from his
o LP – ½ biological parents of ascendants?
o FP – ½ Answer: YES! The adopted shall remain an intestate heir of his parents
8. Legitimate Parents and Surviving Spouse and other blood relatives. Thus the adopted child was entitled to a
o LP – ½ legitime BOTH from his adpotor and his biological parents  BUT
o SS – ¼ this was only stated in an obiter.
o FP – ¼
9. Legitimate Parents and Illegitimate Children Baritua vs. CA
o LP – ½ The parents of the deceased succeed only when the latter
o IC – ¼ collectively dies without a legitimate descendant. On the other hand, the
o FP – ¼ surviving spouse concurs with all classes of heirs, even if such
10. Legitimate Parents, Illegitimate Children, and Surviving Spouse spouse had been estranged from the deceased. Mere estrangement
o LP – ½ is not a legal ground for the disqualification of a surviving spouse as
o IC – ¼ collectively an heir of the deceased spouse.
o SS – 1/8
o FP – 1/8 Art. 888. The legitime of legitimate children and descendants
11. Surviving Spouse ALONE consists of one-half of the hereditary estate of the father and of the
o SS – ½ mother.
o FP – ½ The latter may freely dispose of the remaining half, subject to the
12. Surviving Spouse and Illegitimate Children rights of illegitimate children and of the surviving spouse as
o SS – 1/3 hereinafter provided. (808a)
o IC – 1/3
o FP – 1/3 Notes:
13. Surviving Spouse and Illegitimate Parents  Principle of equal sharing
o SS – ¼ o The legitimate children share the one half portion EQUALLY.
o IP – ¼ o Adopted Children succeed in the same way as legitimate
o FP – ½ children.
14. Illegitimate Children ALONE  Descendants other than children:
o IC – ½ o GR: The nearer exclude the more remote.
o FP – ½  Ex. If there are children the grandchildren cannot inherit.
15. Illegitimate Parents ALONE The only time that they can inherit is when ALL the
o IP – ½ children renounce.
o FP – ½ o EX/Only qualification – When the right to representation is

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 So the kids of the deceased child may represent their Art. 890. The legitime reserved for the legitimate parents shall be
father in the inheritance of Lolo. divided between them equally; if one of the parents should have
o Recap: So when may the descendants inherit? died, the whole shall pass to the survivor.
 Right of representation If the testator leaves neither father nor mother, but is survived by
 All of the children renounce. ascendants of equal degree of the paternal and maternal lines, the
o When it comes to descendants there is also no limit to the legitime shall be divided equally between both lines. If the
number of degrees in the descending line that may be called ascendants should be of different degrees, it shall pertain entirely
to succeed. to the ones nearest in degree of either line. (810)

Ruben: This provision does not really say how the children are
supposed to share the inheritance. But all the commentaries that it shall Notes:
be equal among the children.  Legitimate parents/ascendants are SECONDARY compulsory
Ruben: Before, in our country we had something that was called o They only succeed in default of any legitimate descending
Mayorazco this meant that it was the oldest son that would get the line.
estate of the decedent father – we do not have this now. This was o i.e the legitimate ascending line ONLY succeeds on default of
something that was changed in 1903. a legitimate descending line.

The rule in our country is that the NEARER EXCLUDE THE MORE Three basic Rules:
REMOTE.  this means that the children exclude the grandchildren, 1. The nearer exclude the more remote (889):
the grandchildren exclude the great grandchildren. o This rule in the ascending line admits of no qualification.
 But this is subject to the right of representation. o There is NO right of representation in the ascending line.
 Sir: Even if all of the children pre decease, disinherited, or are 2. Division by Line (890):
incapacitated the grandchildren do not get a share of the o This rule will apply if there are more than one ascendants in
inheritance per capita. the nearest degree – ex. There are paternal and maternal
o The ONLY case where the grandchildren will inherit per o The legitime shall be divided in equal parts between the
capita is if ALL of the children RENOUNCE the inheritance. paternal line and the maternal line.
3. Equal division within the line (890)
o After the portion corresponding to the line has been assigned,
there will be equal apportionment between or among the
Art. 889. The legitime of legitimate parents or ascendants consists
recipients within the line – should there be more than one.
of one-half of the hereditary estates of their children and
Note: It is a given that the operation of # 2&3 above will mean that
there may be an inequality among shares among ascendants.
The children or descendants may freely dispose of the other half,  Ex. 2 maternal grandparents and 1 paternal grandparent. In this
subject to the rights of illegitimate children and of the surviving case, the grandparents collectively will inherit ½ of the estate.
spouse as hereinafter provided.(809a)
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o This ½ is to be divided among the maternal and paternal lines  If either spouse dies during the pendency of the proceedings for
EQUALLY – as per #2. legal separation, the proceedings are terminated and the surviving
 The result will be that each side will get ¼ spouse inherits from the deceased spouse
o So = Maternal will get 1/4, but they are 2. So each grandparent  It does not matter WON it was the guilty one or the innocent one
will get 1/8 who died.
 This is compared to the paternal grandparent who will get
¼ all by his lonesome self. What about termination of marinate by reappearance or of prior
 Another instance of this is Reserva Troncal – in this case the land spouse/Decree of absolute annulment or absolute nullity of marriage?
goes back to the line.  Under the FC the reappearance terminates the marriage, and one
of the effects of the termination of the marriage is that the spouse
Art. 892. If only one legitimate child or descendant of the deceased who contracted the marriage in bad faith shall be disqualified from
survives, the widow or widower shall be entitled to one-fourth of inherit from the innocent spouse by testate and intestate
the hereditary estate. In case of a legal separation, the surviving succession.
spouse may inherit if it was the deceased who had given cause for  Also when it comes to reappearance the spouse who contracted
the same. the subsequent marriage in bad faith shall be disqualified to inherit
If there are two or more legitimate children or descendants, the from the innocent spouse.
surviving spouse shall be entitled to a portion equal to the legitime  Clear implications of this article:
of each of the legitimate children or descendants. o If both consorts in the second marriage were in good faith –
they continue to be heirs of each other.
In both cases, the legitime of the surviving spouse shall be taken
o If only one of the said consorts acted in bad faith, the innocent
from the portion that can be freely disposed of by the
one will continue to be an heir of the other.
testator. (834a)
Note: 892 says that the share of the spouse is the share of a child OR
This article gives the situation where there is one Legitimate Child and
 So.. what happens if all of them predecease, or become
one surviving spouse.
o Tolentino says just give them the share of a child.
What if there has been legal separation?
 Sir – Okay.
 There is a final decree + the deceased is the offending spouse
o The surviving spouse gets the legitime
Quarendum: What happens to the share of the spouse if all of the
 If there is a final decree + deceased spouse is the innocent spouse children RENOUNCE?
o The offending spouse is disqualified from inheriting.
 Tolentino: Spouse – same share as a child.
 If there was reconciliation AFTER they were given a final decree o This is since if you say that the spouse should only get the
o The reciprocal right to succeed is restored. share of a grandchild then this is a way for the children to
circumvent the law on legitimes.
What about death pendente lite?

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o Ruben: May inasawa si tatay na 21 years old, tapos 89 na si Art. 894. If the testator leaves illegitimate children, the surviving
tatay. The children may sa, o tara renounce na tayong lahat spouse shall be entitled to one-third of the hereditary estate of the
para lumiit yung share ng bruha na yan. deceased and the illegitimate children to another third. The
remaining third shall be at the free disposal of the testator. (n)
Scenario: A and B are husband and wife. A disappears thus B complies
with the requirements in the FC on the matter, and marries C. BOTH Sharing among the illegitimate children
B and C are in good faith. Subsequently A reappears – causing the  If the decedent died during the effectivity of the family code:
termination of the marriage of B and C. o The sharing will be equal, inasmuch as the family code has
abolished the old distinction between natural and other
Q: Are A and C both entitled to legitime from B? illegitimate children
A: Sir is of the opinion that ONLY the legitimate spouse is allowed to  If the decedent died BEFORE the effectivity of the family code:
inherit. This is since why should consorts of a terminated marriage, an o The old distinction must be observed and the legitime of a
annulled one, or one declared void ab initio continue to be heirs of spurious child will only be 4/5 of a natural child.
each other. The marriage which is the basis of the right no longer
Art. 895. The legitime of each of the acknowledged natural
children and each of the natural children by legal fiction shall
Q: If all the children of the decedent renounce, what happens to the
consist of one-half of the legitime of each of the legitimate children
share of the surviving spouse?
or descendants.
A: Sir this presents a problem. There is one view that states that the
spouse should still get the share of a child. There is another view that The legitime of an illegitimate child who is neither an
the share of the spouse should be reduced to that which a grandchild acknowledged natural, nor a natural child by legal fiction, shall
will receive. Ruben is more inclined to adapt the second view since be equal in every case to four-fifths of the legitime of an
the article uses the term “descendants”. acknowledged natural child.
The legitime of the illegitimate children shall be taken from the
Art. 893. If the testator leaves no legitimate descendants, but portion of the estate at the free disposal of the testator, provided
leaves legitimate ascendants, the surviving spouse shall have a that in no case shall the total legitime of such illegitimate children
right to one-fourth of the hereditary estate. exceed that free portion, and that the legitime of the surviving
This fourth shall be taken from the free portion of the spouse must first be fully satisfied. (840a)
estate. (836a)
This article has been simplified by the family code – children that are
In this case there will always be a free portion of 1/4 . not legitimate are illegitimate. There is no more classification as them
being natural, illegitimate, etc.
Note: The surviving spouse gets 1/4th from the free portion.

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In case there has to be a deduction – the deduction shall be on the Art. 897. When the widow or widower survives with legitimate
shares of the illegitimate children. The legitimate children and the children or descendants, and acknowledged natural children, or
spouse DO NOT suffer any deduction. natural children by legal fiction, such surviving spouse shall be
entitled to a portion equal to the legitime of each of the legitimate
What is the sharing PRIOR to the FC? children which must be taken from that part of the estate which
1. If the death occurred before the effectivity of the FC. This article the testator can freely dispose of. (n)
will govern.
o So Natural Child – gets ½ the share of a LC Art. 898. If the widow or widower survives with legitimate
o A spurious Child gets – 4/5ths the share of a NC children or descendants, and with illegitimate children other than
2. If there are no natural children but only spurious children – then acknowledged natural, or natural children by legal fiction, the
the legitime of a spurious child will only be 4/5 ths that of a natural share of the surviving spouse shall be the same as that provided in
child. the preceding article. (n)
o The ratio should ALWAYS be 5:4 among natural and
spurious children.
Sir: The distinctions that were found here are gone na!
Reduction of Shares: Depending on the number of legitimate and
illegitimate children, the possibility exists that the total legitimes will
Art. 899. When the widow or widower survives with legitimate
EXCEED the entire estate. Thus there will have to reductions.
parents or ascendants and with illegitimate children, such
1. The legitimes of the legitimate children should NEVER be
surviving spouse shall be entitled to one-eighth of the hereditary
estate of the deceased which must be taken from the free portion,
o They are the primary and preferred compulsory heirs.
and the illegitimate children shall be entitled to one-fourth of the
2. The legitime of the surviving spouse should never be reduced
estate which shall be taken also from the disposable portion. The
o This article prohibits this.
testator may freely dispose of the remaining one-eighth of the
3. The legitimes of the illegitimate children will be reduced pro rata
estate. (n)
and without preference among them.

Art. 896. Illegitimate children who may survive with legitimate Art. 900. If the only survivor is the widow or widower, she or he
parents or ascendants of the deceased shall be entitled to one- shall be entitled to one-half of the hereditary estate of the deceased
fourth of the hereditary estate to be taken from the portion at the spouse, and the testator may freely dispose of the other
free disposal of the testator. (841a) half. (837a)
If the marriage between the surviving spouse and the testator was
Notes: solemnized in articulo mortis, and the testator died within three
 In this case there will always be a free portion of 1/4th. months from the time of the marriage, the legitime of the surviving
 There illegitimate children here get the 1/4th collectively. 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

TANTOCO 3B Page | 92

than five years. In the latter case, the legitime of the surviving Art. 902. The rights of illegitimate children set forth in the
spouse shall be that specified in the preceding paragraph. (n) preceding articles are transmitted upon their death to their
Art. 901. When the testator dies leaving illegitimate children and descendants, whether legitimate or illegitimate. (843a)
no other compulsory heirs, such illegitimate children shall have a
right to one-half of the hereditary estate of the deceased. This article grants the right of representation to the legitimate and
The other half shall be at the free disposal of the testator. (842a) illegitimate descendants of an illegitimate child
 This should be distinguished with article 992. In that article when
it comes to the descendants of the legitimate children the right of
This article gives the surviving spouse as the SOLE compulsory heir:
representation is ONLY given to the LEGITIMATE CHILDREN
GR: The Surviving Spouse gets ½ of the estate
EX: the wife shall get 1/3rd of the estate if the following circumstances
are present:
What is the net effect of the right of representation?
1. The marriage was in articulo mortis
2. The testator died within three months from the time of the  The right of representation given to descendants of illegitimate
marriage children is broader than the right of representation that is given to
3. The parties did not cohabit for more than five years. descendants of legitimate children.
4. The spouse who died was the party in articulo mortis at the time  Thus an illegitimate child of a predeceased legitimate child cannot
of the marriage. inherit by representation, while an illegitimate child of an
o This requisite is not explicit, but it can be derived from the illegitimate child can.
sense and the intentZ of the provision.
Example of the bullet in No. 4: A was madly in love with B. But B did Art. 903. The legitime of the parents who have an illegitimate
not like A since he was old and ugly (but extremely wealthy). But one child, when such child leaves neither legitimate descendants, nor
day B became terminally ill. It was found out that he had SARS, a surviving spouse, nor illegitimate children, is one-half of the
MERS, AIDS, Cancer of the everything. He was thus confined to the hereditary estate of such illegitimate child. If only legitimate or
ICU for the sole purpose of pain management. illegitimate children are left, the parents are not entitled to any
B found out about this so she went to the ICU, professed her legitime whatsoever. If only the widow or widower survives with
love for A and said that they should get married. She brought with her parents of the illegitimate child, the legitime of the parents is one-
a priest and they were married on the spot. B needed something from fourth of the hereditary estate of the child, and that of the
mercury drugstore, so A went to get it. While she was crossing the surviving spouse also one-fourth of the estate. (n)
street she was hit by a car and died.
Sir: In this case B should be able to inherit from A since he was the Note: Illegitimate parents are excluded by any kind of descendant.
party in AM, thus the reason behind the article is not present. This is due to the fact that they are secondary compulsory heirs.

TANTOCO 3B Page | 93

Legitimate Parents Illegitimate Parents  Also called the reserva extraordinaria, tronco,
Excluded only be legitimate Excluded by ANY kind of reserva lina, reserva familiar, reserva semi-troncal,
children. children – it does not matter pseudo troncal.
WON legitimate or illegitimate.  Reversion
They are inferior to illegitimate o Was a rule that made sure that the property that went to the
parents. source.
o 2 kinds:
 Legal
Art. 891. The ascendant who inherits from his descendant any  Adoptiva
property which the latter may have acquired by gratuitous title  Any property that the adopter gave to the adopter
from another ascendant, or a brother or sister, is obliged to must go back to him upon the death of the adopted
reserve such property as he may have acquired by operation of child.
law for the benefit of relatives who are within the third degree and
 The code commission wanted to abolish all 4, but there was a
who belong to the line from which said property came. (871)
congressman that wanted to make keep reserva troncal – and this
was the only one among of the reservas that survived.
Fun fact: We call this Reserva Troncal – but this term is not mentioned
anywhere in this provision. Q: What is the purpose of Reserva Troncal
A: To bring back property to the line which it may have left due to
The reservitarios DO NOT SUCCEED from the prepositus – saying marriage. This was a way to make sure that property went back to the
this is ONLY a metaphor. The correct term is that they inherit through line from which it came from – back to the line of origin.
the special provision of reserva troncal.
Requisites for Reserva Troncal:
History: 1. The property was acquired by a descendant from an ascendant or
 Reserva brother or sister, by gratuitous title.
o This means a person that was supposed that gets a property o This should actually be person. Since if grantor is the brother
and has the obligation to preserve it to transmit it back to the or sister, then the one acquiring it is obviously not a
source. descendant.
o 2 kinds o In this case it has to be by gratuitous title, this means that
 Viudal recipient does not give anything in return.
 Also called the Reserva Ordinaria  It encompasses transmissions by donation or by
 Hre husband transfers to the wife land by gratuitous succession (of whatever kind).
title, and the wife remarries, when the wife dies the 2. The descendant dies without issue.
land that she acquired from the first marriage should o This should actually be – without legitimate issue
go to the children from the first marriage.
 Troncal

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o This is since only legitimate descendants will prevent the We find no merit in the petitioner's argument that the estate of
property from being inherited by the legitimate ascending line the deceased was subject to reserva troncal and that it pertains to her
by operation of law. as his only relative within the third degree on his mother's side.
3. The property is inherited by an ascendant through operation of law The reserva troncal provision of the Civil Code is found in Article 891
o When you say operation of law this is limited to succession – which reads as follows:
either intestate or though legitime.
 If the disposition is through testamentary disposition, then The persons involved in reserva troncal are:
it will not fall under RT since TD is not by operation of 1. The person obliged to reserve is the reservor (reservista)—the
law – rather it is though the will of the testator. ascendant who inherits by operation of law property from his
4. There are relatives within the third degree from which the said descendants.
property came. 2. The persons for whom the property is reserved are the
reservees (reservatarios)—relatives within the third degree
Process of Reserva Troncal undergoes three transfers counted from the descendant (propositus), and belonging to the
1. First Transfer: line from which the property came.
o By Gratuitous Title 3. The propositus—the descendant who received by gratuitous title
o From the Origin/Mediate Source  the Prepositus and died without issue, making his other ascendant inherit by
2. Second Transfer: operation of law.
o By Operation of Law Clearly, the property of the deceased, Esteban Javellana, Jr.,
 This does not include testamentary dispositions because is not reservable property, for Esteban, Jr. was not an ascendant, but
this is by will. the descendant of his mother, Salustia Solivio, from whom he
 When you say operation of law it is by legitime or inherited the properties in question. Therefore, he did not hold his
intestacy. inheritance subject to a reservation in favor of his aunt, Celedonia
o From the Prepositus  the Reservista. Solivio, who is his relative within the third degree on his mother's side.
3. Third Transfer: from the transferee to the relatives. The reserva troncal applies to properties inherited by an ascendant
from a descendant who inherited it from another ascendant or 9
Note: When you say ascendants this means that it has to go straight brother or sister. It does not apply to property inherited by a
up. As in to parents, or lolo or lola, great grand lolo and lola. descendant from his ascendant, the reverse of the situation covered by
 It does not extend to aunts, and uncles. Article 891.

Solivo vs. CA Who are the parties in Reserva Troncal:

When you talk of reserva troncal there has to be two 1. Origin/Mediate Source
transmissions. In this case there was no second transmission since the o The transferor in the first transfer.
land went to the mom, then she died, then it went to the son, then he o This is where you stop looking where the property came from.
died. In this case there was no RT since there was no transmission up. It does not matter of the property came from someone above
Since there was no RT, then the property should go into intestacy. him or not.

TANTOCO 3B Page | 95

2. Prepositus  While the property is still with the prepositus there is as yet no
o The first transferee who is a descendant or sibling of the origin reserva.
3. Reservista o The reserva ONLY arises upon the second transfer.
o The ascendant who is obliged to reserve  Consequently, while the property is owned by the prepositus he
4. Reservetarios has ALL the rights of ownership over it and may exercise such
o The relatives benefited. rights in order to prevent a reserva from arising. This may done in
Two Basic Rules: three ways:
1. No inquiry is to be made beyond the origin or mediate source. It 1. By substituting or alienating the property
does not matter who the owner of the property was before it was 2. Bequeathing or devising it either to the potential reservistas
acquired by the origin. or to third persons
2. All the relationships among the parties must be legitimate. This is  Subject to the constraints of legitimes.
since the provisions of Art 891 only to legitimate relatives. 3. By partitioning in such a way as to assign the property to
parties other than the potential reservista.
The Origin or Mediate Source  Subject to the constraints of legitimes.
 He is either an ascendant or a brother or sister of the prepositus.
o Ascendant – may be of any degree The Reservista
o Brother/Sister – There is a divergence of opinion on this.  He is an ascendant of the Prepositus, of whatever degree.
 View One: Of the origin is a brother/sister, the  The reservista must be an ascendant other than the origin.
relationship must be of half-blood, since otherwise the  The law is clear on this: It refers to the origin/mediate source as
property would no change lines. There should be no another ascendant. I these two parties are the same person, then
reserva if the fraternal relationship is of the full blood for there shall be no reserva troncal.
then it would not be possible to identify the line of origin Scenario: A receives by donation property from his paternal Lolo. A
– whether paternal or maternal. then dies, so the property goes to his dad. In this case is there reserva?
 View Two: It does not matter whether the fraternal Answer: YES. This is since (1) the law makes no distinctions and (2)
relationship is of full or the half blood. In either case a the purpose of the reserva is not only curative but ALSO preventive –
reserva may arise. Since the law makes no distinction, we i.e. to prevent the property from leaving the line.
should not make one.
The Reservitarios
 The reserva is in favor of a class, collectively referred to as the
The Prepositus reservatarios
 He is either a descendant or a brother/sister of the origin, who  Requirements to be a reservatario:
receives the property from the origin by gratuitous title. o He must be within the third degree from the prepositus
o When it comes to RT – he is the first transferee of the o He must belong to the line from which the property came
property.  This is determined by the Origin/Mediate source.

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 There may be a third requisite: Must the reservatario also be and some of the half blood, should the reserved properties be
related to the Mediate Source? apportioned among the nephews equally?
o View 1: NO, This is since the article speaks of two lines, the The SC said no. What reserva does is that it just designates
paternal and the maternal of the descendant, without regard to the class. But when it comes to the distribution within the class the
subdivisions. rules on intestacy shall apply.
o View 2: YES, otherwise results would arise comeplety The purpose of reserva is accomplished once the property has
contrary to the purpose of the reserva – which is to prevent the devolved to the specified relatives of the lines of origin. Upon the
property from passing to persons not of the line of origin. death of the ascendant reservista, the reservable property should pass
 Reserva in favor of reservatarios as a class: to the reservatarios who are closest in degree to the prepositus. What
o The reserva is established in favor of a group or class: The should also be taken into consideration here is the right if
relatives within the third degree, and NOT in favor of specific representation.
individuals. Proximity of decree and right of representation are basic
 Q: Does the reserva have to be alive at the time of the reservista’s principles of ordinary intestate succession. So the rule is that the whole
death? blood brothers and nephews are entitled to a share double that of
o A: NO, a person may qualify as a reservatario even if he was brothers and nephews of half-blood.
conceived and born after the Prepositus’ death. In other words the reserva troncal merely determines the
 Q: Is there a preference among the reservatarios? group of relatives to whom the property should be returned. But within
o NO. that group the individual right to the property should be decided by the
applicable rules of ordinary intestate succession.
Scenario: Paternal Lolo – Donates property to the Apo Even during the reservista’s lifetime the reservatarios can
 The dad of the apo is dead, and the then the apo dies. already assert the right to prevent the reservista from doing anything
 Naturally this property will go to the mom – this she becomes a that might frustrate their reversionary right. For this purpose the can
reservista. compel the annotation of their right in the Registry of Property – even
while the reservista is alive.
 QUESTION: Can the Paternal Lola say that she is a reservitaria?
The reservable property is not part of the estate of the
o Ruben: The more accepted view is that of Sanchez Roman –
under his view NO – this is since the reservitario/reservitaria reservista, who may NOT dispose of them by will, so long as there are
MUST be of the same blood as the Origin/mediate Source. reservatarios existing. Thus the reservatarios do not inherit from the
reservista, but from the descendant prepositus, of whom the
reservatarios are the heirs mortis causa, subject of the condition that
Note: The reservetarios do not have to be alive when the prepositus
dies. BUT they have to be alive when the reservista dies. they must survive.
Note: We do not have here the reserva integral. Our rule is that the
reservable property should succeeded to by the reservatario who is
Padura vs. Baldovino
nearest in degree, according to the basic rules of intestacy.
In case of RT where the only reserves surviving the reservita
and belonging to the line of origin are nephews, some of the fill blood

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If there are several reservetarios – they do not share it by capita – Florentino vs. Florentino
Rather you have to apply the rules of intestacy. It is AS IF they are There are relatives of the descendant within the 3rd degree,
inheriting intestate from the prepositus. the right of the nearest relative (R'io), over the property which the
 Note this is as if since they really do not inherit though intestate R'ista should return to him, excludes that of the one more remote.
succession. The right of representation cannot be alleged when the one
 What rules may apply? claiming the same as a Reservatario is not among the relatives within
o Nearer exclude the farther the 3rd degree belong to the line from which the property came.
o 2:1 ratio of full blood and half blood The right granted by Art 891 is in the highest degree personal
o Rule of preference of the direct line over the collateral line. and for the exclusive benefit of the designate persons who are the
 Ex. Grandfather is preferred over the brother – since this relatives within the 3rd degree. Therefore relatives of the 4th and
is the direct line. succeeding degrees can never be considered as reservatarios.
o Right of Representation. In short, there is a right of representation on the part of the
R'ios who are within the 3rd degree, as in the case of nephew and
You cannot use 891 to determine the preference of the reservetarios of nieces of the deceased from who the reservable property came. These
the same degree, this is since 891 does not concern itself with this. As R'ios have the right to represent their ascendants (fathers and mothers)
a matter of fact 891 just concerns itself to making sure that the property who are the brothers of the said deceased person and relatives within
does not leave the line. the 3rd degree.
 Thus to remedy this you have to go to the rules of intestacy. If all of the relative within the third degree, of the descendant
 Thus it is as if they inherit through intestacy. (from whom the reservable property came) die, or disappear, the said
property becomes free property, by operation of law, and is thereby
Note: Even if the property is acquired though legitime – it may still converted into the legitime of the ascendant heir who can transmit it
fall under reserva. at his death to his legitimate successors or testamentary heirs. This
property has now lost the nature of reservable property.
Representation among the reservatarios: The right of representation cannot be alleged when the one
 The rule on preference of degree among reservatarios is qualified claiming the same as a reservatario of the reservable property us NOT
by the rule of representation. among the relatives within the third degree belonging to the line from
 There will only be ONE instance of representation among the which such property came.
reservatarios Thus the relatives of the fourth and succeeding degrees cannot
o This is the case of the prepositus being survived by his be considered as reservatarios. Nevertheless there is a right of
brothers/sisters, and children of a predeceased or representation on the part of the reservatarios who are within the third
incapacitated brother or sister. degree mentioned by law, as in the case of nephews of the decease
person from whom the reservable property came. These reservatarios
hae the right to represent their ascendants who are the brothers and
sisters of the deceased person and relatives within the third degree.

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CONCLUSION: You have the right to represent a Edroso vs. Sablan

reservatario, but the person who is representing the reservatario must Husband died, so the son got his property, then the son died,
also be within the third degree. If the person representing is beyond as a result of this the property passed to the mom. While the mom had
the 3rd degree, then there is no more reserva. the property the siblings of the dad were claiming the property.
The mother was saying that the property was hers. The SC
Reserva is Juridical in nature said NO, since the lands had passed into the possession of the mother
 This can be seen from 2 views, one from the reservista and the through operation of law and not through testamentary disposition or
other for the reservatarios. other form of willful transfer of property. The legal presumption is that
Nature of the Reservista’s Right the transfer of the two parcels of land was abintestate or by operation
From Edroso the following can be derived: of law, and NOT by the will or the wish of the predecessor in interest.
1. The reservista’s right over the reserved property is one of The ascendant who inherits from a descendant, whether by the
ownership latter’s wish or by operation of law, acquires the inheritance by virtue
2. The ownership is subject to a resolutry condition. of a title perfectly transferring absolute ownership. All the attributes
o I.e. the existence of reservatarios at the time of the reservista’s of the right of ownership belong to him exclusively – use, enjoyment,
death disposal, and recovery. This absolute ownership which is inherent in
o What is the resolutory condition? the hereditary title, is not altered in the least, if there be no relatives
 The survival of reservatarios when the reservista dies. within the third degree in the line from which the property proceeds,
o Why or they die before the ascendant heir who is the possessor and absolute
 Because it is not sure that there will be reservatarios when owner of the property. If there should be relatives within the third
the reservista dies – this is something that is uncertain. It degree from which the property comes, then there will be a limitation
may happen that the reservista dies and there are no to that absolute ownership.
reservatarios The reservista is not a usufructury since he does not have a
o Why is is resolutory? right to dispose of the property. This is different from a reservista since
 Brcause the happening of the condition suspends the right the reservista can dispose of the property they inherit. While the
 Because of there are no more reservatarios when the property is in the hands of the reservista the reservatarios cannot
reservista dies – then the right that is given by reserva perform any act whatsoever of disposal or recovery.
troncal is extinguished. If the reservista alienates the property - the alienation is valid,
 But if ther are reservatarios at the time when the although not altogether effective, BUT under a condition subsequent:
reservataria dies, then the right given by reserva is present That at the death of the reservista there are no reservatarios. Thus in
is alive. this case the reservatarios cannot impugn the alienation of the
3. The right of ownership is alienable – but subject to the same reservista – so long as the condition subsequent is pending. But if the
resolutory condition. reservista dies, and the reservatario is still alive, then the condition
4. The reservista’s right of representation is registrable. subsequent never occurred. Thus the reservitario must outlive the
o If real property reservista.

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Conclusion: The person required to reserve has all the rights and the decedent has no will – so you get your legitime through
of use and usufruct, But he even has more since he was legal title and intestate succession.
dominion – although under a condition subsequent.
Clearly the reservista has the power to dispose of the property Nature of the Reservetario’s Right
that he has acquired, although under a condition. He even has the right From Sienes the following can be derived:
to recover it, because he is the one who possess or should possess it. 1. The reservatarios have a right of expectance over the property
After the right required by law to be reserved has been assured, he can 2. The right is subject to a suspensive condition
do anything that a genuine owner can do. o That the expectancy ripens into ownership if the reservatarios
On the other hand relatives within the third degree cannot survive the reservista.
dispose of property because: o What is the condition?
1. He is in no way either actually, constructively, or formally in their  The survival of reservatarios when the reservista dies.
possession o Why is it a condition?
2. Because they have no title of ownership or of fee simple which  Because it is not sure.
they can transmit. o Why is it suspensive?
But the person in whose favor the reservation is for has the right  Because the happening of the condition creates the right.
to have this right registered in the registry of property. But this person 3. The right is alienable, but subject to the same suspensive
dare to dispose of even nothing more than the fee simple of the condition.
property to be reserved, his act shall be null and void. This is since the 4. The right is regeistrable.
nature and scope of the right required by law to be reserved the extent o If registered real property.
of this right cannot be forseen, for it may disappear by his dying before o If not real property then it is NOT registrable.
the person required to reserve it, just as it may even become absolute  E.x. if it is a ring, then you cannot. Why? Because there
should that person die. is no such thing as a ring registry.
Thus no act of disposal inter vivos of the person required by law  So the right can be registered if the property can be
to reserve the right can be impugned by him in whose favor it is registered.
reserved, because such person has all the rights inherent in
owenership. EXCEPT the legal title is burdened with a condition that Since both rights are registrable, will there be two titles?
the third party acquirer may ascertain from the registry in order to  NO! You just annotate it to the title. The reservista and the
know that he is acquiring a title subject to a condition subsequent. reservatarios do not get separate titles.
The person required to reserve the right has all the rights inherent
in ownership. He may use, enjoy, dispose of and recover it. He is in Sienes vs. Esparcia
fact and in law the real owner and can alienate it, although under a In connection with reservable property, the weight is that the
condition. reserva creates two resolutory conditions:
1. The death of the ascendant obliged to reserve
Ruben: A property can go to an heir through a combination of 2. The survival, at the time of his death, of relatives within the third
compulsory and intestate succession. Ex: You are a compulsory heir degree belonging to the line from which the property came.

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deceased descendant belonging to the line of the first ascendant,

A reservista has legal title and dominion to the reservable property brother or sister of the deceased descendant.
but subject to a resolutory condition – i.e. that he is like a usufructury If there are only two transmissions there is no reserva. Thus,
of the reservable property, but subject to the reservation. In the event where one Bonifacia Lacerna died and her properties were inherited
that he alienates it, then what is transmitted is only the revocable and by her son, Juan Marbebe, upon the death of Juan, those lands should
conditional ownership of the reservista. Thus the rights of the be inherited by his half-sister, to the exclusion of his maternal first
transferee will be revoked or resolved by the survival of the cousins. The said lands are not reservable properties.
reservatarios at the time of the death of the reservista. In this case the decedent bequeathed to her grandchildren the
property which she inherited from her daughter, thus it was reservable
REMEMBER: In Reserva Troncal ALL the relationships must be property. REMEMBER: the reservista cannot make a disposition
LEGITIMATE. mortis causa of the reservable properties as long as the reservatarios
survived the reservista. The reservatarios inherit the reservable
Q: Can the reservista appoint by will which reservatarios were to get properties from the prepositus, NOT from the reservor.
the reserved property? To allow the reservista in this case to make a testamentary
A: NO. this was given in the case of Gonzales vs. CFI. disposition of the reservable properties in favor of the reservees in
the third degree and, consequently, to ignore the reservees in
Gonzales vs. CFI the second degree would be a glaring violation of article 891. That
In reserva troncal (1) a descendant inherited or acquired by testamentary disposition cannot be allowed.
gratuitous title property from an ascendant or from a brother or sister;
(2) the same property is inherited by another ascendant or is acquired Note: the reservista may be half-brothers or sisters.
by him by operation of law from the said descendant, and (3) the said
ascendant should reserve the said property for the benefit of relatives So what is the rule?
who are within the third degree from the deceased descendant  The rule in this jurisdiction is that upon the reservista’s death, the
(prepositus) and who belong to the line from which the said property property passes by strict operation of law to the proper
came. reservatarios – according to the rules of intestate succession.
So, three transmissions are involved: (I) a first transmission by  Thus the selection of which reservatarios will get the property is
lucrative title (inheritance or donation) from an ascendant or brother made my law and not by the reservista.
or sister to the deceased descendant; (2) a posterior transmission, by
operation of law (intestate succession or legitime) from the deceased Property Reserved
descendant (causante de la reserve) in favor of another ascendant, the Q: What is the kind of property that is reserved?
reservor or reservista, which two transmissions precede the A: Any Kind. As a matter of fact in one case a sugar quota, which is
reservation, and (3) a third transmissions of the same property (in an intangible property, was held to be reservable.
consequence of the reservation) from the reservor to the reservees  Provided that it can be identified.
(reservatarios) or the relatives within the third degree from the

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Q:What is the effect of substitution (i.e. getting rid of the property)? of origin from which it had temporarily and accidentally strayed
A: The very same property must go through the process of during the reservatarios that survive the reservista, the latter must be
transmissions, described above, in order for the reserva to arise. Thus deemed to have enjoyed no more than a life interest in the reservable
the self-same property must come from the mediate source, to the property.
prepositus by gratuitous title, and to the reservista by operation of law. Upon the death of the reservista the reservetarios become the
 If the prepositus substitutes the property by selling, bartering, or owners of the reservable property by operation of law. That property
exchanging it, the substitute cannot be reserved. is no part of the estate of the reservista, and he does not even answer
 While the property is with the prepositus there is yet no reserva – for the debts of the latter. Thus there is no need for a separate
which commences only when the property is received by the proceeding to declare the reservatarios the owners, and the ownership
reservista. may be entered already in the registry of property.
 Consequently the prepositus has plenary powers of ownership BUT: if the registration decree merely specifies the reservable
over the property, and he may exercise these powers of ownership character of the property, WITHOUT (1) determining the identity of
and he may exercise these powers to thwart a potential reserva. the reservatario or, (2) where several reservatarios dispute the property
o The prepositus is the arbiter of the reserva. among themselves – Further proceedings would be unavoidable.

The reserved property is not part of the reservista’s estate. Ruben: It may even happen that the reservista’s sole property is the
Cano vs. Cano reserved property. In this case the reservista will die without anything.
In this case the reservista died, and the reservatario said that Thus the compulsory heirs will not have any legitime.
the property should now go to him. This was granted by the director
of lands. The hiers of the reservista said that this is not allowed, since Reserva Maxima and Reserva Minima
the ownership of the reservatario cannot be decreed in a mere Note: A problem will arise if two circumstances concur:
proceeding, rather there has to be a judicial administrative proceeding. 1. The prepositus makes a will institutiong the ascendant-reservista
In this case he land to whom the property went was the daughter, the to the whole or a part of the free portion.
oppositors were the grandchildren. The SC said that the nearer exclue 2. There is left in the Prepositus’ esate, upon his death, in addition to
the more remote. the reserved property, property NOT reservable.
The only requisites for the passing of the title from the
reservistas to the appellee are: Two Possible Solutions:
1. The death of the reservista 1. Reserva Maxima
2. The fact that the reservatario has survived the reservista. o As much of the potentially reservable property as possible
Here the oppositors say that there is a need for intestacy procedings. must be deemed included in the part that passes by operation
They are incorrect. The reservatario is not the reservista’s successor of law.
mortis causa nor is the reservable property part of the reservista’s 2. Reserva Minima (this is what we follow more, but pwede both)
estate. o Every single property in the Prepositus’ estate must be
The reservatario receives the property as a conditional heir of deemed to pass, partly by will and partly by operation of law,
the descendant (prepositus), said property merely reverting to the line

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in the same proportion that the part given by the will bears to was silent as to (1) within what period must the annotation be made,
the part not so given. (2) whether the other requirements of the old viudal remain.

Rights and obligations of the reservatario and reservatario: Ruben: What we have here is the problem of the maxima and the
1. To inventory the reserved properties minima – this is best explained by an example
2. To annotate the reservable character in the registry of property These are competing theories on the principles of the RT. So when do
o Within 90 days from acceptance by the reservista. they apply and compete? Let’s take an example:
3. To apprise the movables
o It has to be appraised by someone qualified. SC 1
o The reservatarios may compel the reservista to have the Let us say the prepositus inherits or acquires by GT a piece of property
movable appraised. from the mediate source. It is worth 4M pesos. It is also the only
4. The secure by means of mortgage property that the prepositus owns. He then dies without legitimate
o The indemnity for any deterioration of or damage to the issue – so this is his only estate, he dies without a will. So his net estate
property occasioned by the reservista’s fault or negligence. is 4M pesos.
o There must be some sort of security that is placed by the Now this whole property goes up to the mom by legitime – so 1/2. The
reservista to answer for any damage that the reservista may other half also goes to the mother through intestacy – so the whole
cause things goes to the mom. ½ by legitime, ½ by intestacy – so the whole
 Now, you may also use a bond in lieu of the mortgage. thing goes to the mother by operation of law.
Note: it is unsure whether or not the obligations that are stated above
are still applicable. All that is sure is the obligation to annotate. So... What is reservable property? ALL 4M – so the whole estate.

Note: Upon demand of the reservatarios, the reservista is obliged to SC 2

annotate on the title the reserva. PD 1529 says that you must annotate So what if the son gives to the mother ½ of the estate to the mother
all lens and encumbrances – Reserva is a lien or encumbrance over the THROUGH A WILL. So ½ will go to the mom through legitime, and
property. the other ½ will go to the mom by will.
Ruben: the view of most of the commentators, is that the keeping of
the troncal we also kept all the jurisprudence that went along with it. So legitime – Reserved
And in the jurisprudence of the troncal say that the obligations that are Will – Not reservable.
present in the troncal include those that are in the viudal.

SC 3
Note: The person who is obliged to reserve has the obligation to What if in addition to the property that is 4M the son has a property
annotate in the registry of property the reservable character of the has a property worth 6M – which he bought with his own money.
property. In reserva troncal, the reservoir has the duty to reserve and In this case the son has an aggregate estate of 10M and if he dies
therefore, the duty to annotate also (Sumaya vs. IAC). But this case without a will everything will go to the mom – as in SC 1. Thus the

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entire estate goes to the mom by operation of law. The 4M prop goes In this case 3/4 ths is transferred by operation of law.
to the mom by RT, BUT the 6M property goes to the mom but is NOT
reservable property (but this 6M prop still goes by operation of law). So reservable property: 4M – ¾ ths of the property is reservable, and
¼ ths is not. So 3M reservable, and 1M not reservable.
Dispute: What if the prepositus makes a will – which he says that the
mother will get ½ of the estate. So when he dies – 5M will go through Extingushment of the Reserva
intestate, and 5M will go by will. So the question now is how you will 1. Death of the reservista
apportion the RT. o If there are reservatarios when the reservista dies, then the
property goes to the reservatarios according to the rules of
View 1: Reserva maxima: the RT is there in order to be complied with intestacy.
– therefore the only property that you can possible conclude is that the 2. The death of ALL the reservatarios. (JBL)
RT property is the 4M prop. So you maximize the RT – so you fit as o If one subscribes to the theory that the reservista can belong
much of it in the portion of RT. So OL = 5M, so sik sik as much as you to the line of origin as the reservatario – then this will NOT
can in the 5M – so in this the WHOLE 4M goes into the RT. ipso facto extinguish the reserva since the reservista could
View 2: Reserva Minima: It says that since ½ is given by will and ½ is have a child subsequently, who would be a reservatario.
given by OL – so you should just follow the division. (MANRESA).
Division – 4 M prop – 2M OL, 2M will 3. Renunciation by ALL the reservatarios
6M property – 3M OL, 2M will. o Provided that NO other reservatario is born subsequently.
In this case only the 2M value in the 4M property is reservable 4. Total fortuitous loss of the reserved property.
property o It must be total and fortuitious
o If the loss is only partial, then there will be reserva as to the
What if we reverse the values: remainder.
Reservable property – 6M 5. Confusion or merger of rights, as when the reservatarios acquire
Property of Son – 4M the reservista’s right by a contract inter vivos.
6. Prescription/adverse possession
Maxima – Fit all as you can in the property that goes to a person by
operation of law – ½ is 5M, the reservable property is 6M. So under Art. 904. The testator cannot deprive his compulsory heirs of their
Maxima only 5/6 of the reservable property will be reserved. So 5M. legitime, except in cases expressly specified by law.
Neither can he impose upon the same any burden, encumbrance,
What if we differ the proportion? (Contemplating Minima) condition, or substitution of any kind whatsoever. (813a)
Reservable property – 4M
Property of Son – 6M Notes:
I give to my mom ¼ - through will.  This article reiterates the principle that the legitime is not within
the testator’s control. It passes to the compulsory heirs by strict
So in this case ½ by legitime, ¼ by will, ¼ by intestacy operation of law.

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What are the restrictions that are imposed on the legitime by law?
Does the testator have the power to deprive compulsory heirs of  Art. 158 (FC): “The family home shall continue for a period for
legitime? 10 years or for as long as there is a minor beneficiary, and the heirs
 GR: It is the law and not the testator which determines the cannot partition the same unless the court finds compelling
transmission of the legitimes. reasons therefor. This rule shall apply regardless of whoever owns
o Consequently it is not within the testator’s power to deprive the property or constituted the family home.
the compulsory heirs of their legitimes.  Reserva Troncal
 EX: The only instance in which the law allows the testator to o The reserva troncal can operate to deprive a person of their
deprive the compulsory heirs of their legitmies is disinheritance. legitime – i.e. if the legitime is reserved property, thus the
o This is the ONLY case where a testator may deprive an heir property shall go to the reservatarios.
of his legitime.
Art. 905. Every renunciation or compromise as regards a future
Can the testator impose burdens on legitime? GR: NO. But 2 EX. legitime between the person owing it and his compulsory heirs is
 There are 2 instances when the testator has some power over the void, and the latter may claim the same upon the death of the
legitime: former; but they must bring to collation whatever they may have
o Art: 1028 par 1: This is where a parent who wants to keep any received by virtue of the renunciation or compromise. (816)
agricultural. Industrial, or manufacturing enterprise intact
may say that the legitime of the other children, to whom the Every renunciation or compromise by the predecessor and the
property is not assigned, to be paid in cash. compulsory heir over the legitime is VOID – there is no estoppel
 In this case you are not breaking up the legitime, rather between them. This agreement is void talaga.
you are preserving a particular property. Scenario 1
 This is not impairing it, it is just partitioning it – i.e. What if Canoy wants to put up a Jollibee – a Jollibee is worth 40M,
forming what goes to whom. but he has only 20M. Instead of going to a bank he goes to his daddy
o Art. 1083 par 1: “Every co-heir has a right to demand the and asks 20M from the dad. And canoy says that so that there is no ill
division of the estate unless the testator should have expressly will from the siblings he waives his legitime from the dad. So the dad
forbidden its partition. In which case the period of indivision agrees and gives the 20, subject to the agreement that the legitine is
shall not exceed 20 years as provided in 494. This power of waived.
the testator to prohibit division applies to legitime. Not the dad dies, and the devil enter’s canoy’s heart – and now he files
 The testator as a general rule cannot impose conditions or burdens a claim with the estate of the father since the supposed legitime of each
on the legitime – the only exceptions are those above. Note that child is 50M. The siblings of canoy were saying that wala na kasi may
these exceptions are not to break apart legitimes, rather they are to kasunduan kayo ni papa. Thus he cannot claim.
keep properties intact. Canoy can still claim since 905 is on his side – but in this case Canoy
cannot claim 50M, rather he can only claim 30M. What he received
earlier shall be subtracted from the earlier donation. IN this case that
original 20M shall be treated as a donation.

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Scenario 2  This article ONLY applies to transmissions by gratuitous title.
What if Canoy made an agreement with his brother Dennis – who is So when this article says “any tite” its meant to be GT.
loaded. So he goes into a deal with his borhter and says that Dennis  This is known as the right of completion of legitime – accion
gives him 20 M and Canoy will waive his legitime in favor of Dennis. supienda legitima
Now the dad dies, Canoy says that the waiver is void, Dennis says no o So any donation inter vivos that I given to you is regarded as
since 905 is between the decedent and the compulsory heir. But canoy legitime – but if what is given to you is less than your legitime,
can use 1347 – that a person cannot enter into a contract regarding you have the right of completion.
future inheritance. Any renunciation during the lifetime of the  See with:
predecessor is VOID. o 855: “The share of a child or descendant omitted in a will must
be first taken from the part of the estate not disposed of by
What is the reason for the Rule? will, if any, if that is not sufficient, so much as may necessary
 Before the predecessor’s death, the right of the heirs is simply must be taken proportionately from the shares of other
inchoate. compulsory heirs.”
o 909: “Donations given to children shall be charged to their
What is the Duty to Collate? legitime.”
 Any property which the compulsory heir may have gratuitously o 910: “Donations which illegitimate children may have
received from his predecessor by virtue of the renunciation or received shall be charged to his legitime.”
compromise will be considered an advance on his legitime.
What is the principle underlying this article?
What is the scope of the Prohibition?  Anything that a compulsory heir receives by gratuitous title from
 The article applies ONLY to transactions of compromise or the predecessor is considered an advance on the legitime and is
renunciation between the predecessor and the prospective deducted therefrom.
compulsory heir.  Exceptions:
Q: Is a transaction between the prospective compulsory heir and o Art 1062 – If the predecessor gave the compulsory heir a
another prospective compulsory heir or between a prospective donation inter vivos and provided that it was not to be charged
compulsory heir and a stranger interdicted/prohibited? against the legitime
A: YES – but by article 1347: “No contract may be entered into upon o Art 1063 – Testamentary dispositions made by the
future inheritance except in cases expressly authorized by law”. predecessor to the compulsory heir, UNLESS the testator
provides that it should be considered as part of the legitime.

Art. 906. Any compulsory heir to whom the testator has left by Art. 907. Testamentary dispositions that impair or diminish the
any title less than the legitime belonging to him may demand that legitime of the compulsory heirs shall be reduced on petition of the
the same be fully satisfied. (815) same, insofar as they may be inofficious or excessive. (817)

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This article states that if: Inventory – Gives you the gross assets.
 The testamentary dispositions that impair or diminish the legitime 1. This will involve an appraisal/valuation of these existing assets at
of the compulsory heirs the time of the decedent’s death
 This shall be reduced on petition of the same 2. Assets include only those properties that survive the decedent –
 Insofar as the dispositions may be inofficious or excessive. i.e. those which are not extinguished by his death.
3. The value determined by this inventory will constitute the gross
Art. 908. To determine the legitime, the value of the property left assets
at the death of the testator shall be considered, deducting all debts
and charges, which shall not include those imposed in the will. Deducting unpaid debts and charges – this gives the available assets.
To the net value of the hereditary estate, shall be added the value 1. All unpaid obligations of the decedent shall be deducted from the
of all donations by the testator that are subject to collation, at the gross assets.
time he made them. (818a) 2. Only those obligations with monetary value
o Which are not extinguished by death are considered here.
Sir: 908 is as important as 777. What this article gives is the NET o Thus those obligations which are purely personal are not taken
ESTATE. Dito mo iaaply lahat ng fraction fraction. into account.
What is the net hereditary estate? 3. The difference between the gross assets and the unpaid obligations
will be the available assets.
 883-903 set forth the legitimes of the compulsory heirs. These
articles give proportions by which the heirs are to inherit. This is
Adding the value of the donations inter vivos – this gives you the net
why 908 is needed. This article makes possible the computation
hereditary estate.
of the absolute amounts of the legitimes by laying down the
1. All the donation inter vivos made by the decedent should be
manner of computing the net value of the estate on which the
proportions are based.
2. The donations shall be valued as of the time they were respectively
How do you compute the Net Hereditary Estate?
o Any increase or decrease in value from the time they were
 The Process has three steps:
made to the time of the decedent’s death shall be for the
1. Inventory  Gives you the Gross Assets
donee’s account. This is since the donation transfers
2. Deducting unpaid debts and charges  Gives Available
ownership to the donee.
3. The sum of all available assets and all the donations inter vivos is
 These may be due or not yet due. Basta they are not yet
the net hereditary estate.
paid, you deduct it.
3. Adding the value of donations inter vivos.
 The value is the value at the time that the donation is made

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Ruben: It is at the point when you have the net estate that you can now Should they exceed the portion that can be freely disposed of, they
determine the exact amount of the legitimes. shall be reduced in the manner prescribed by this Code. (847a)

E.x. 100 inventory, deductible 20, 40 donations = NE = 120. Ruben: This is incomplete – this article covers ALL donations that are
 But in reality you do not have 120, you have only 80. made to any compulsory heirs, and not just children.
 So the donations that are made from compulsory heirs shall be
Vizconde vs. CA deducted from their legitime. This is why they can ONLY ask for
Collation is the act by virtue of which descendants and other completion of legitime.
forced heirs bring into the common mass, the property which they
received from the predecessor, so that the division may be made Ruben: In simple terms – any person who is not a compulsory heir is
according to law and the will of the testator. a stranger.
Collation is required only of compulsory heirs succeeding  The donations that are made to strangers are taken from the free
with other compulsory heirs. It also involves only properties received portion.
by donation or gratuitous title during the lifetime of the decedent.  In case the donations to third persons are in excess of the free
The purpose is to attain equality among the compulsory heirs. portion, then they shall be reduced.
Collation does not impose any lien on the property. What is
brought to collation is not the property donated itself, but rather the 909: Donations given to 910 : Donations Given to
value of such property at the time it was donated. The rationale is that Children and Compulsory Strangers
donation is a real alienation which conveys ownership upon Heirs
acceptance. Shall be charged to their It shall be charged to that part of
Collation applies only to property given to compulsory heirs legitime the estate of which the testator
of the decedent. could have disposed by his will.
Legitimes can NEVER be In so far as they may be
Art. 909. Donations given to children shall be charged to their impaired. inofficious or may exceed the
legitime. disposable portion, they shall be
reduced according to the rules
Donations made to strangers shall be charged to that part of the
established in this code
estate of which the testator could have disposed by his last will.
Applies to whom: Applies to whom:
Insofar as they may be inofficious or may exceed the disposable
 Donation inter vivos to ALL  A stranger is anyone who is
portion, they shall be reduced according to the rules established compulsory heirs are not a compulsory heir – ex.
by this Code. (819a) imputed to the legitime Brother or sister
o Applies to descendants
Art. 910. Donations which an illegitimate child may have received AND ascendants. Donations to strangers are
during the lifetime of his father or mother, shall be charged to his imputed to the free portion

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Note: The spouses are They may also be reduced if

prohibited from donating to they impair the legitimes. What is the method of Reduction (in this order)?
each other during the marriage. 1. Reduce Pro Rata the non-preferred legacies and devises, and the
EXCEPTION: Note: Donations to illegitimate testamentary dispositions the heirs.
Art 1062: If the testator provides children are subject to reduction o Among these legacies, devisees, and testamentary
otherwise, that the donation will should they exceed the free dispositions there is no preference
not be counted or imputed in the portion. o How do you reduce them?
 You start with the testamentary dispositions which are
non-preferred: You reduce them proportionately and to
What happens here?
In this case this donation is the extent that you need.
imputed to the free portion.  So once the values do not impair the legitime you stop
na. If the legitimes are not yet covered then reduce –
Art. 911. After the legitime has been determined in accordance even up to zero.
with the three preceding articles, the reduction shall be made as 2. Reduce pro rata the preferred legacies and devises
follows: o You go to this step when you have exhausted na the non-
(1) Donations shall be respected as long as the legitime can be preferred L and D’s.
covered, reducing or annulling, if necessary, the devises or 3. Reduce the donations inter vivos according to the inverse order of
legacies made in the will; their dates.
(2) The reduction of the devises or legacies shall be pro rata, o i.e. the oldest is the most preferred.
without any distinction whatever. o Prius in tempore… (prior in time stronger in right).
If the testator has directed that a certain devise or legacy be paid o You go to this step once you exhaust the preferred legacies
in preference to others, it shall not suffer any reduction until the and devisees.
latter have been applied in full to the payment of the legitime. o In this case you DO NOT reduce pro rata – rather you exhaust
(3) If the devise or legacy consists of a usufruct or life annuity, the donations based on when they were made.
whose value may be considered greater than that of the disposable
portion, the compulsory heirs may choose between complying Q: Is there an instance when you reduce everything, but you still
with the testamentary provision and delivering to the devisee or impair the legitime?
legatee the part of the inheritance of which the testator could A: YES – In cases when there is a concurrence of legitimate and
freely dispose. (820a) illegitimate children. In these cases there may be no free portion and
you still have to give the legitime of the illegitimate children, and they
This article gives you the way reduce the donations or the testamentary are super many. In this case you reduce the shares of the illegitimate
dispositions that are made which exceed the free portion. children.
 Remember – all donations and testamentary dispositions should  Ex. 1 LC, 5 IC.
not go past the free portion. This is since this would mean that it o LC – ½
would start infringing on the legitime.
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o 1 IC – ¼, but they are 5, so it ends up 5/4, but you only have Note: This article covers the case where:
2/4 left since ½ is to the LC, here you have to reduce. 1. The devise has to be reduced AND
2. The thing that is given is indivisible.
Note: Do not forget: This contemplates that the legitimes have been
given already. This is since you only know the free portion once the Rules:
legitimes are given to the heirs. 1. If the extent of the reduction is LESS THAN ½ of the value of the
thing – It should be given to the devisee.
Note: These reductions shall be to the extent required to complete the 2. If the reduction is ½ or more of the value of the thing – it should
legitimes – even if in the process the disposition is reduced to nothing. be given to the compulsory heir.
Note: In either case there should be pecuniary reimbursement to the
When it comes to Devises/legacies of Usufructuries/life party who did not get his physical portion of the thing devised.
Annuties/pensions the FF should be borne in mind:
1. If the value of the grant exceeds the free portion – it has to be What happens if the devisee is also a compulsory heir?
reduced sicne the legitime cannot be impaired.  He may retain the property provided that its value does not exceed
o This presupposes the grant has been capitalized according to that of the disposable portion and his legitime.rrr
actuarial standards.
2. The testator cannot impose any usufruct or any other encumbrance Art. 913. If the heirs or devisees do not choose to avail themselves
on the part that passes as legitime. of the right granted by the preceding article, any heir or devisee
3. Subject to the 2 above, the compulsory heirs may elect between: who did not have such right may exercise it; should the latter not
o Ceeding to the devisee/ legate the entire free portion make use of it, the property shall be sold at public auction at the
 Or the proportional part thereof corresponding to the instance of any one of the interested parties. (822)
devise/legacy, in case there are other dispositions
o Comply with the terms of the usufruct or life annuity or When does this article apply/come into effect?
pension.  This article applies if neither party elects to exercise his right
under 912
Art. 912. If the devise subject to reduction should consist of real  This article is called “Constructive Partition”
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 this case how is the thing devised supposed to be disposed of?
in a contrary case, to the compulsory heirs; but the former and 1. Any other heir who elects to do so – may acquire the thing and
the latter shall reimburse each other in cash for what respectively PAY the parties their respective share in money.
belongs to them. o The parties here are the compulsory heir, and the devisee.
The devisee who is entitled to a legitime may retain the entire o Note: It is heir or devisee, thus the right is not just limited to
property, provided its value does not exceed that of the disposable the heirs.
portion and of the share pertaining to him as legitime. (821) 2. If no heir or devisee elects to acquire it – it shall be sold at public

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o The net proceeds shall be divided between the parties  NOTE: Conditional as to the compulsory heirs with
concerned. regard to disinheritance.
 Remember: you can have conditional dispositions.
Note: this rule of constructive partition is similar to that in co- 7. It must be total (Manresa)
ownership and in partition of a decedent’s estate. EXCEPT in these o You cannot say that I only don’t want to give ½ of the
two cases the by one of the co-owners can be done ONLY if ALL the legitime. There can be NO partial disinheritance.
co-owners or co-heirs agree to such acquisition.
Note: The laws are strict since it indicates the policy of the law that
Art. 914. The testator may devise and bequeathe the free portion disinheritance is disfavored.
as he may deem fit. (n)
What is the effect of Disinheritance?
 The effect of disinheritance is not just a deprivation of the legitime
SECTION 6. - Disinheritance but total exclusion of the disinherited heir from inheritance. Thus
Art. 915. A compulsory heir may, in consequence of he forfeits:
disinheritance, be deprived of his legitime, for causes expressly 1. Legitime
stated by law. (848a) 2. Intestate portion
3. Testamentary dispositions made in the prior will of the
GR: The testator cannot deprive the compulsory heirs of their legitime. disinheriting testator.
EX: DISINHERITANCE – Disinheritance is the only instance in
which the testator may deprive his compulsory heirs of their legitime. Art. 916. Disinheritance can be effected only through a will
 This is the only instance when the testator may deprive his wherein the legal cause therefor shall be specified. (849)
compulsory heirs of his legitime.
Clauses in the article:
Requisites of a valid disinheritance: 1. Made in a will
1. Must be made in a will (916) o This constitutes the first element of disinheritance, it must be
2. Must be for a cause specified by law (916, in relation to 919-921) made in a will.
3. The will must specify the cause (916 and 918) o The will must be formally valid and it must be admitted to
4. The cause must be true (918) probate.
5. If the truth is denied, then it must be proved by the proponent(917) 2. Legal Cause
6. It must be unconditional (Manresa) o This means that the disinheritance must be due to one of the
o The disinheritance must be unconditional. If it is based on a causes that are mentioned in 919-921
condition, then it is NOT a valid disinheritance.
o Ex. I revoke the inheritance of Diana if she does not apologize Art. 917. The burden of proving the truth of the cause for
to me within three months. disinheritance shall rest upon the other heirs of the testator, if the
disinherited heir should deny it.(850)
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Q: Who has the burden of proof in proving a cause of disinheritance? The devisees and legates will The D, L and other testamentary
A: The heirs of the testator who maintain that there is a valid still be operative as long as they dispositions will still be
disinheritance. It is sufficient for the disinherited heir to say that he do not infringe on the legitime. operative as long as they do not
was invalidly disinherited, then the burden will automatically shift to infringe on the legitime.
the heirs.
Art. 919. The following shall be sufficient causes for the
Art. 918. Disinheritance without a specification of the cause, or for disinheritance of children and descendants, legitimate as well as
a cause the truth of which, if contradicted, is not proved, or which illegitimate:
is not one of those set forth in this Code, shall annul the institution (1) When a child or descendant has been found guilty of an
of heirs insofar as it may prejudice the person disinherited; but attempt against the life of the testator, his or her spouse,
the devises and legacies and other testamentary dispositions shall descendants, or ascendants;
be valid to such extent as will not impair the legitime. (851a) (2) When a child or descendant has accused the testator of a crime
for which the law prescribes imprisonment for six years or more,
When the testator decides that he wants to disinherit an heir, he must: if the accusation has been found groundless;
1. Specify a Cause (3) When a child or descendant has been convicted of adultery or
2. The cause must be true concubinage with the spouse of the testator;
o If the testator does not prove that the cause is true, this shall (4) When a child or descendant by fraud, violence, intimidation,
annul the institution of the heirs as it may prejudice the person or undue influence causes the testator to make a will or to change
disinherited. one already made;
o But the other testamentary dispositions shall be valid insofar (5) A refusal without justifiable cause to support the parent or
as they do not impair the legitime. ascendant who disinherits such child or descendant;
(6) Maltreatment of the testator by word or deed, by the child or
What is Ineffective Disinheritance? descendant;
(7) When a child or descendant leads a dishonorable or
 If the disinheritance lacks one of the requisites that are mentioned
disgraceful life;
in this article, then the heir gets his legitime.
(8) Conviction of a crime which carries with it the penalty of civil
 With regard to the intestate portion, then it depends.
interdiction. (756, 853, 674a)
o If the testator gave away the free portion through testamentary
dispositions – then none.
o If there was no testamentary disposition – then the heir gets Note: When it comes to disinheritance, the causes that are stated here
are exclusive, as long with those in 920 and 921. There may be others
also his intestate portion.
which are more heinous, but the law is strict, so these are the only
Preterition Disinheritance
In preterition it annuls the In disinheritance it annuls the
institution of an heir. institution of an heir.

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What are the grounds for the disinheritance of a CHILD or  If the acquittal is based no reasonable doubt, this will not
DECENDANT? be a ground of disinheritance.
1. *C/D has been found guilty of an attempt against the life of the 3. *C/D has been convicted of adultery or concubinage with the
testator, his spouse, descendants or ascendants. spouse of the testator
o The word attempt here is used non-technically, thus it is not o Final conviction is required.
the same as the attempted stage when it comes to felonies. 4. C/D by fraud, violence, intimidation, or undue influence causes
 It may fall under any stage the testator to (1) make a will or to (2) change one already made.
o Felony – this must be an intentional one 5. Refusal, without justifiable reasons to support the parent or
o Here it does not matter that you are a principal, accomplice, ascendant who inherits such child or descendant.
or accessory. o There must have been a:
o There must be a conviction by final judgement.  Need AND
2. C/D has accused the testator of a crime for which the law  Demand for support
prescribes imprisonment for 6 years or more – if the accusation  Must have been unjustifiably refused
has been found to be groundless  There may be times when the refusal is valid.
o What are the operative elements? o There the refusal itself is not the ground – it is the fact that it
1. There is an accusation by the heir of a crime against the is unjustified.
testator. 6. Maltreatment by word or deed
2. The crime must be punished by imprisonment of 6 (more o This will include a wide range of misdeeds, but t is required
than) years or more. that the act of verbal or physical assault be of serious nature.
3. It must have been found to be groundless o In this case conviction is not required, as a matter of fact you
 It is something that is made up and all it does is tarnish are not even required to file a criminal case.
the reputation of the testator. o Here you do not need conviction, but it has to be serious.
o The word accused is used generically, and this will include: 7. C/D leads dishonorable or disgraceful life
 Filing of a complaint before the prosecutor o The operative word = Lead = Habitual, or some idea of
 Presenting incriminating evidence continuity.
 Or even suppressing exculpatory evidence o One act will not generally suffice.
o Crime – must carry with it 6 yrs. o This is not just sex, there are many things that can fall under
 Ruben is of the opinion that it should have been more than this that are not sexually related.
6 years since this still falls under prision correctional,  E.x. You are a drug dealer, hitman, or a money launderer.
which is 6 mo to 6 years. 8. *Conviction of a crime which carries with it civil interdiction
o The testator must be acquitted o This is the accessory penalty if you are sentenced to Death,
o The accusation must be found to be groundless RP, RT.
 i.e. that the judgement of acquittal must state:
 No crime has been committed Note: The tricky part here is that some grounds require conviction, and
 Or that the accused did not commit the crime. others don’t. the implication of this is that if it requires a conviction

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then you need PBRD, and some no, so a mere preponderance of conduct constituting a repeated or total refusal or
evidence would do. (* are the ones with) failure to care for the child.
 Mere acquiessence is not sufficient to constitute
Art. 920. The following shall be sufficient causes for the abandonment – it is completely withholding presence
disinheritance of parents or ascendants, whether legitimate or love, care, and the opportunity to display parental
illegitimate: affection, and totally deny the child support and
(1) When the parents have abandoned their children or induced maintinace.
their daughters to live a corrupt or immoral life, or attempted  Ruben: This means a culpable/deliberate or negligent
against their virtue; failure to support the child.
(2) When the parent or ascendant has been convicted of an  Does Adoption lead to disinheritance under
attempt against the life of the testator, his or her spouse, abandonment?
descendants, or ascendants; o No – this is not culpable, as a matter of fact the
(3) When the parent or ascendant has accused the testator of a law encouraged adoption, this is since it is for the
crime for which the law prescribes imprisonment for six years or benefit of the child.
more, if the accusation has been found to be false; 2. Inducement to live a corrupt and immoral life:
(4) When the parent or ascendant has been convicted of adultery  The terms of this article seem to only apply to
or concubinage with the spouse of the testator; daughters, but Tolentino is of the view that it should
(5) When the parent or ascendant by fraud, violence, intimidation, be made applicable to ALL female descendants.
or undue influence causes the testator to make a will or to change  What about sons?
one already made; o Gender equality cuts both ways – so it should
(6) The loss of parental authority for causes specified in this Code; apply.
(7) The refusal to support the children or descendants without o Furthermore – the FC makes no distinctions
justifiable cause; 3. Attempt against Virtue:
(8) An attempt by one of the parents against the life of the other,  No conviction is required.
unless there has been a reconciliation between them. (756, 854,  These are things such as Rape, abduction, Acts of
674a) Lasciviousness, etc.
2. P/A has been found guilty of an attempt against the life of the
What are the grounds for the disinheritance of a PARENT OR testator, his spouse, descendants or ascendants.
ASCENDANT? 3. P/A has accused the testator of a crime for which the law
1. Parents have abandoned their children or induced their daughters prescribes imprisonment for 6 years or more – if the accusation
to live a corrupt or immoral life, or attempted against their virtue has been found to be false
o This encompasses three grounds: o Note in this article the word that is used is false, in the other
1. Abandonment: articles the word that is used is groundless. This does not have
 This is not restricted to the grounds of abandonment any significant meaning, rather it is stylistic.
that are punished by the RPC – rather it includes all

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4. P/A has been convicted of adultery or concubinage with the (1) When the spouse has been convicted of an attempt against the
spouse of the testator life of the testator, his or her descendants, or ascendants;
o Final conviction is required. (2) When the spouse has accused the testator of a crime for which
5. P/A by fraud, violence, intimidation, or undue influence causes the law prescribes imprisonment of six years or more, and the
the testator to (1) make a will or to (2) change one already made. accusation has been found to be false;
6. Loss of parental authority for cause specified in this code (3) When the spouse by fraud, violence, intimidation, or undue
o Not all causes for loss of parental authority are grounds for influence cause the testator to make a will or to change one already
disinheritance – for example emancipation. made;
o Only those causes which involve culpability on the part of the (4) When the spouse has given cause for legal separation;
parents will provide grounds for disinheritance: (5) When the spouse has given grounds for the loss of parental
1. Judicial Deprivation of Parental Authority authority;
2. Loss of parental authority as a result of judicial (6) Unjustifiable refusal to support the children or the other
declaration of abandonment of the child spouse. (756, 855, 674a)
3. Judicial Deprivation of parental authority on the grounds
of: What are the grounds for the disinheritance of a SPOUSE?
a. Excessively harsh or cruel treatment of the child 1. S has been found guilty of an attempt against the life of the
b. Giving the child corrupt orders or example testator, descendants or ascendants.
c. Compelling the child to beg 2. S has accused the testator of a crime for which the law prescribes
d. Subjecting the child or allowing him to be subject to imprisonment of six years or more, and the accusation has been
acts of lasciviousness. found to be false
o There the loss of parental authority must be culpable. This is 3. S by fraud, violence, intimidation, or undue influence causes the
since there are grounds that are not culpable – i.e. reaching the testator to (1) make a will or to (2) change one already made.
age of majority. 4. S has given cause for legal separation
7. Refusal to support the children or descendants without justifiable o A decree of legal separation is NOT required, it is sufficient
cause. that you give cause.
8. An attempt by one of the parents against the life of the other,  Remember: the guilty spouse in legal separation shall not
UNLESS there has been reconciliation. be entitled to any inheritance from the innocent spouse.
o No conviction is required. o There are 10 grounds for legal separation:
o If there is reconciliation between the parents, this removes the 1. Repeated physical violence or grossly abusive conduct
right of the child to disinherit, OR it rescinds the against the petitioner or their child
disinheritance that was already made. 2. Physical violence or pressure to change religious belief
3. Attempt to corrupt or induce the petitioner or child to
Art. 921. The following shall be sufficient causes for disinheriting engage in prostitution, or connivance in such corrupt
a spouse: inducement

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4. FJ to imprisonment for more than 6 years – EVEN IF

pardoned. What is the effect of reconciliation?
5. Drug addiction or habitual alcoholism 1. If it occurs before the disinheritance was made
6. Lesbian or Homosexuality o Right to disinherit is extinguished
7. Subsequent bigamous marriage 2. If it occurs after the disinheritance is made
8. Sexual infidelity or perversion o Disinheritance is set aside.
9. Attempt against the life
10. Abandonment, without justifiable cause, for more than Effect of setting aside of the disinheritance:
one year. 1. The disinherited is restored to his legitime
5. When the spouse has given grounds for the loss of parental 2. The disinheriting will did not dispose of the disposable portion,
authority the disinherited heir is entitled to his proportionate share in the
o This is different from the previous article, since 920 NEEDS intestacy of the disposable portion
the ACTUAL loss of parental authority. 3. If the disinheriting will or any subsequent will disposed of the
o In this article it is sufficient that you give the GROUNDS for disposable portion in favor of heirs, legates and devisees – such
the loss of parental authority. dispositions remain valid.
6. Unjustifiable refusal to support the children or the other spouse
Ruben: a reconciliation subsequent to knowledge by the heir of the
Art. 922. A subsequent reconciliation between the offender and testator of the cause for the disinheritance. So reconciliation
the offended person deprives the latter of the right to disinherit, subsequent to this will sweep away a disinheritance already made. If
and renders ineffectual any disinheritance that may have been one has already been made, then it prevents one from taking place. In
made. (856) this case the heir recovers their right to the legitime and their right to
the intestate portion. It also restores him to his status as a
What is the meaning of reconciliation? testamentary heir, in the event that he was institutes as one in a
 Reconciliation is either an: previous will.
1. Express pardon extended by the testator to the offending heir Ruben: there is no specific form for reconciliation – as a matter of
 A general pardon extended by the testator on his deathbed fact, it may be even taken from behavior. But this is more than just
WILL NOT suffice. shaking hands. It must be more definitive, but at the same time there
 If must be a pardon which is expressly extended and the is no specific form.
offender accepts it.
2. Or an unequivocal conduct of the testator towards the Art. 923. The children and descendants of the person disinherited
offending heir which reveals the testator’s intent to forgive the shall take his or her place and shall preserve the rights of
offense. compulsory heirs with respect to the legitime; but the disinherited
 The intent to forgive must be clear. parent shall not have the usufruct or administration of the
 This is ultimately a question of fact which will be property which constitutes the legitime. (857)
resolved, in case of controversy, by the courts.

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Right of Representation in Disinheritance: SECTION 7. - Legacies and Devises

 The right of representation is ONLY granted descendants of of Art. 924. All things and rights which are within the commerce of
disinherited descendants. man be bequeathed or devised. (865a)
o This is given by 972 which states that: “The right of
representation only takes place in the direct descending line,
but never in the ascending line.” Q: What may be the subject of testamentary dispositions?
o Thus a disinherited child shall be represented by his children A: Anything that is within the commerce of man.
or other descendants. (disinheriting going down)  Anything which is appropriable and alienable
o BUT if the one that is disinherited is parent/ascendant or
spouse, then the children of the disinherited do not have the Definition of legacies and devises
right of representation. (disinheriting going up and sideward)  Legacy:
o Article 660 SCC – Testamentary disposition of personal
Extent of Representation: property by particular title
 The representative takes the place of the disinherited heir – to both o Castan – Testamentary disposition of specific or generic
the legitime and intestate share (if any). property by particular title.
 Devise
When does representation occur? o Article 660 SCC – Testamentary disposition of real property
 It applies to succession by legitime and intestate succession, but by particular title.
NOT to testamentary succession o Castan – Testamentary disposition of real property.

The last part of the article provides that: the disinherited parent shall Why is it important to know if a thing is a devise or a legacy?
not have the usufruct or administration of the property which  Remember Preterition?
constitutes the legitime.  In this case the heir, who gets an aliquot portion, will have his
 This is since the family code provides in articles 225 and 226 that institution annulled in favor of an heir who was completely
the parents shall exercise legal guardianship over the properties of omitted from the inheritance.
their minor children.
 They even have the right to use the fruits and income of the What is the limitation on legacy or devises?
property to support the needs of the child and secondarily the daily  It should not impair the legitime
needs of the family
Sir: The next three provisions are defective.
Ruben: this article is inaccurately worded. You have to remember that
representation only goes down. If the person that is disinherited here Art. 925. A testator may charge with legacies and devises not only
is the parent or the spouse, there shall be no right of representation. his compulsory heirs but also the legatees and devisees.
Take note of 1035.

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The latter shall be liable for the charge only to the extent of the REMEMBER: What is to be given here is a D or L NOT an heir’s
value of the legacy or the devise received by them. The compulsory portion. So here it should be a determinate thing already. If it is an
heirs shall not be liable for the charge beyond the amount of the aliquot portion of the estate, then bawal. But if it is an aliquot portion
free portion given them. (858a) of a specific thing, then pwede.
Art. 926. When the testator charges one of the heirs with a legacy
or devise, he alone shall be bound. (this is a mode) RUBEN: the wording of this article is erroneous. This is since it says
that you can place a charge on the legitime.
Should he not charge anyone in particular, all shall be liable in the
 We have learned time and time again that this is NOT allowed.
same proportion in which they may inherit. (859)
 ONLY testamentary dispositions can be burdened.
 This is wrong, this is since if there is no charge, then it will be the
estate that honors the legacy.
What is the extent of the liability of the heir?
 The value of the benefit that he received from the testator.
Note: This should not be confused with MODAL substitution. Under
modal substitution the first heir holds on to the property till the second
Art. 927. If two or more heirs take possession of the estate, they
heir becomes qualified to inherit it.
shall be solidarily liable for the loss or destruction of a ting devised
 Under this article the heir still gets the property, the charge here is
or bequeathed, even though only one of them should have been
that he should give a part of it, or whatever is specified to another
negligent. (Provision is similar to Joint Tortfeasors)
 In this case it is NOT a substitution, rather it is an institution with
Q: Does this article only apply to heirs?
an obligation to give.
A: No – this article may apply to the executor or an administrator, in
the proper cases.
Who is charged with the legacy – i.e. who has to give it?
 GR – The estate
What does this article say?
o The estate is the one that has to comply with what the testator
 If two or more heirs take possession of the entire estate, and a
wants – this is done through the executor or the administrator.
thing forming part of the estate is destroyed or lost.
o The liability for the estate shall ALAWYS be liable for the
o And the thing that was lost or destroyed was given as a devise
direct legacy.
or a legacy.
 EX – Subsidiary or Indirect L or D
 They shall be liable SOLIDARILY for that loss.
o The testator may impose the burden on a testamentary HDL.
o If the testator does so, then the HDL will be bound to deliver
Note: This article contemplates that the thing that was lost or
the LD to the specified person.
destroyed was lost or destroyed based on:
o In this case this becomes a modal disposition.
1. Malice
 This is actually a species of a mode. (871-885)
2. Fault
3. Negligence

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Art. 928. The heir who is bound to deliver the legacy or devise o The validity of the dispositions will be determined by the next
shall be liable in case of eviction, if the thing is indeterminate and two articles (930 and 931)
is indicated only by its kind.(860)  The testator may convey less than he owns.

Who is liable in case of eviction? Art. 930. The legacy or devise of a thing belonging to another
 GR: The estate person is void, if the testator erroneously believed that the thing
 EX: When there is subsidiary or indirect legacy or devise. pertained to him. But if the thing bequeathed, though not
o In this case it will be the subsidiary D or L who shall warrant belonging to the testator when he made the will, afterwards
against eviction. becomes his, by whatever title, the disposition shall take
 BUT when you talk about eviction here it is eviction from an effect. (862a)
indeterminate thing, and it is ONLY indicated by its kind. Art. 931. If the testator orders that a thing belonging to another
be acquired in order that it be given to a legatee or devisee, the
Ruben: You CANNOT have warranty against eviction against a heir upon whom the obligation is imposed or the estate must
SPECIFIC legacy. acquire it and give the same to the legatee or devisee; but if the
owner of the thing refuses to alienate the same, or demands an
excessive price therefor, the heir or the estate shall only be obliged
Art. 929. If the testator, heir, or legatee owns only a part of, or an to give the just value of the thing. (861a)
interest in the thing bequeathed, the legacy or devise shall be
understood limited to such part or interest, unless the testator What are the rules if the testator gave a D or L which belongs to
expressly declares that he gives the thing in its entirety. (864a) another?
1. If the testator ordered the acquisition of the thing.
This gives the situation where the legacy or devise is of a thing that is a. The order should be complied with.
owned in part by the tesataor. b. If the owner is unwilling to part with the thing, the
GR: the testator is only able to convey the interest or the part that is legate/devisee should be given the monetary equivalent.
owned by him (see with 794) 2. If the testator believed that the thing belonged to him
 Ex. If you are the absolute ownership, then you convey absolute o GR: The legacy or devise shall be VOID
ownership. If you are a co-owner, you only convey your share or o EX: If the testator is able to subsequently able to acquire the
right to a share in the co-ownership. property.
EX: If the testator provides otherwise. 3. If the testator knew that the thing did not belong to him, and he
 If the testator coveys more than what he owns did not order acquisition
o The estate should try to acquire the part or the interest owned o The code is silent on this. BUT the disposition should be
by the other parties. considered as valid. Why? Because:
 If the other parties are unwilling to alienate, then the estate
should give the monetary equivalent.

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 The fact that the testator knew that the thing was owned  Why is this important to mention? See #3 of the previous
by another person, yet he ordered its acquisition IMPLIES set of articles.
an order to acquire.
 At worst there is a doubt. Remember: Doubts should be Sir: how can you give him something that he already owns? In this
resolved in favor of testacy. case the disposition is void. The fact that the legatee alienates the thing
does not mean that the estate has to acquire the thing.
Requisites for the Testator to bequeath something that does not belong  The only exception is if that the alienation was in favor of the
to him: testator. In this case the institution shall be deemed effective.
1. Testator must know that it did not belong to him o This is not something that is found in the code, rather it is
2. He ordered its acquisition Manresa.

Art. 932. The legacy or devise of a thing which at the time of the 2. If the thing was owned by another person at the time of the making
execution of the will already belonged to the legatee or devisee of the will, and the thing was acquired subsequently by the legate
shall be ineffective, even though another person may have some or devisee:
interest therein. o If the testator thought that the thing belonged to him – VOID
If the testator expressly orders that the thing be freed from such o IF the testator was not in error
interest or encumbrance, the legacy or devise shall be valid to that a. If it was acquired ONEROUSLY by the devisee or legate,
extent. (866a) then he is entitled to REIMBURSEMENT
Art. 933. If the thing bequeathed belonged to the legatee or devisee b. If the thing was acquired GRATUITOUSLY then
at the time of the execution of the will, the legacy or devise shall nothing.
be without effect, even though it may have subsequently alienated 3. If the ting was owned by the testator at the time of the making of
by him. the will and acquired thereafter from him by the legate or devisee
o The alienation of the thing to the person revoked the legacy or
If the legatee or devisee acquires it gratuitously after such time, devise.
he can claim nothing by virtue of the legacy or devise; but if it has
been acquired by onerous title he can demand reimbursement What if the testator said that an encumbrance over the property of the
from the heir or the estate. (878a) devisee or legate be removed?
 This is valid, but the encumbrance must be of a character that it
What if the testator gave a D or L that already belonged to, or was can be removed for a consideration.
subsequently acquired by the Devisee or Legate? o For example, three are some encumbrances that cannot be
1. If the thing already belonged to the Dee or Legate at the time of removed – ex. Easement of right of way.
the execution of the will:  Here the subject matter of the legacy is the paying off of the
o The devise or legacy shall be void. encumbrance.
o It is not validated by an alienation by the legate or devisee
subsequent to the making of the will.

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Art. 934. If the testator should bequeath or devise something In the first case, the estate shall comply with the legacy by
pledged or mortgaged to secure a recoverable debt before the assigning to the legatee all rights of action it may have against the
execution of the will, the estate is obliged to pay the debt, unless debtor. In the second case, by giving the legatee an acquittance,
the contrary intention appears. should he request one.
The same rule applies when the thing is pledged or mortgaged In both cases, the legacy shall comprise all interests on the credit
after the execution of the will. or debt which may be due the testator at the time of his
death. (870a)
What if the testator gives a D or L a thing pledged or mortgaged? Art. 936. The legacy referred to in the preceding article shall lapse
 The encumbrance must be removed by paying the debt, UNLESS if the testator, after having made it, should bring an action against
a contrary intention appears. the debtor for the payment of his debt, even if such payment
 It also does not matter of the pledge or mortgage was done after should not have been effected at the time of his death.
the execution of the will. Basta at the time of the decedent’s death The legacy to the debtor of the thing pledged by him is understood
the property was P or M already. to discharge only the right of pledge. (871)
Art. 937. A generic legacy of release or remission of debts
Note: It is super important to remember that this article ONLY applies comprises those existing at the time of the execution of the will,
to a PLEDGE, ANTECHRESIS or a MORTGAGE if it any other kind but not subsequent ones. (872)
of burden, see next.

Ruben: This is different from the preceding article. In the former What if there is a charge OTHER than a pledge or a mortgage (ex.
article it is the thing of the legate and devisee which is encumbered, Usufrust or easement)?
and the testator says remove that. In this case it is the property of the  A charge other than a pledge or a mortgage passes to the legate or
decedent which is subject to the encumbrance. the devisee together with the thing.
 The general rule is that the estate should pay off the debts  So if the land is with an easement of right of way, the easement of
 The exception, is if the testator provides that the H or L will be the right of way must be respected.
one that will have to take care of the encumbrance.
Legacies of Credit or Remission:
1. Applies ONLY to amount still unpaid at the time of the testator’s
Art. 934 (Last Par.). Any other charge, perpetual or temporary,
death (935).
with which the thing bequeathed is burdened, passes with it to the
o This contemplates the situation where:
legatee or devisee.
a. A legacy is given to a person to collect the debt, and the
Art. 935. The legacy of a credit against a third person or of the proceed will be his
remission or release of a debt of the legatee shall be effective only  In this case the estate shall assign to the legatee all the
as regards that part of the credit or debt existing at the time of the rights of action it may have against the debtor.
death of the testator. b. A legacy is given to a person such that the legacy will be
a release of the debt of that person.
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 In this case the estate should give that person an thereof is ordered paid, the excess is not due, unless a contrary
acuittance, if he requests for one. intention appears.
2. It is revoked of the testator subsequently sues the debtor for The foregoing provisions are without prejudice to the fulfillment
collection (936). of natural obligations. (n)
o This article states that under the scenario of 1.a, the legacy
shall lapse of the testator brings an action for payment.
o It does not even matter of payments effected or not at the time What if there is a legacy or a devise to a creditor?
of the death of the testator. GR: It will be treated like any other legacy or devise and it shall not
 So, one the testator brings an action to collect, the legacy be counted against what the testator owed to the creditor.
has lapsed already and the legatee cannot exercise it EX: It will be imputed to the debt of the testator provides.
anymore, and he may not say that he was given the right.  But if the debt is even more substantial than the devise or legatee
o This has to be done through judicial demand then it may demanded as an obligation of the estate.
 Here it is the mere filing of the suit. It does not matter of
the testator prosecute or not. It can even be dismissed for Sir: If it is through a natural obligation, then this is a real disposition.
failure to prosecute. The one that only really matters is Example, I have a debt which has prescribed already. An in my will I
that there is judicial demand. place in my will that the debt that I owe to my creditor shall be paid.
o Conversely, if there only extrajudicial demand, then it is not In this case you aren’t bound to pay, yet you pay.
deemed cancelled.
3. If the testator leaves a legacy to the debtor of the thing which the Note: If the testator provides that the legacy or devise should be
debtor pledged to the testator, then it is understood to discharge imputed to the debt and of the debt is equivalent to or more than the
ONLY the right of pledge. valie of the debt, it is silly to accept the “benefit”.
o This means that the obligation on which the pledge is based  Why?  because if he claims his debt as an heir, then his debt
on is still effective. What happens here is that it is only the will be subject to all the rules on succession – for example, non-
security which is removed, but the debt subsists. impairment of the legitime. If he claims them as a creditor, then
4. If generic legacy of release or remission of debts applies only to he gets them even before the legitime is given. Remember: What
those existing at the time of the execution of the will, unless is given as legitimes is from the net estate, and debts are subtracted
otherwise provided. (937 and 793) from to the gross estate to arrive at net estate

Art. 938. A legacy or devise made to a creditor shall not be applied What if there is a testamentary instruction to pay a debt?
to his credit, unless the testator so expressly declares. 1. This is NOT a testamentary disposition, rather it is a direction to
discharge of a civil obligation.
In the latter case, the creditor shall have the right to collect the 2. If it is an instruction to pay a non-existing debt – this should be
excess, if any, of the credit or of the legacy or devise. (837a) disregarded. This is since it would be solutio indebiti.
Art. 939. If the testator orders the payment of what he believes he o Solutio indebiti - The case where one had paid a debt, or done
owes but does not in fact owe, the disposition shall be considered an act or remitted a claim because he thought that he was
as not written. If as regards a specified debt more than the amount
TANTOCO 3B Page | 122

bound in law to do so, when he was not. In such cases of  As a matter of fact it may even be left to any other person.
mistake there is an implied obligation (quasi ex contractu) to Remember: this is one of the things that the testator can delegate.
pay back the money.
3. Instruction to pay more than what is due: What happens if the person who is supposed to choose dies before the
o This is effective ONLY to what is due. choice is made?
o UNLESS the bigger amount constitutes a natural obligation.  If the choice belonged to the executor or the administrator
o Then the one who will replace him is the one who substitutes
Art. 940. In alternative legacies or devises, the choice is presumed him as executor or administrator
to be left to the heir upon whom the obligation to give the legacy  If the choice belongs to a HDL
or devise may be imposed, or the executor or administrator of the o Then the right is transmitted to his own heirs.
estate if no particular heir is so obliged.
If the heir, legatee or devisee, who may have been given the choice, Note: When you choose it is already touch move – i.e. final – i.e. you
dies before making it, this right shall pass to the respective heirs. cannot change it anymore – i.e. irrevocable – i.e. touch move talaga.
Once made, the choice is irrevocable.
The provisions on natural obligations apply suppletorily.
In the alternative legacies or devises, except as herein provided,
the provisions of this Code regulating obligations of the same kind Art. 941. A legacy of generic personal property shall be valid even
shall be observed, save such modifications as may appear from the if there be no things of the same kind in the estate.
intention expressed by the testator. (874a)
A devise of indeterminate real property shall be valid only if there
be immovable property of its kind in the estate.
What is an alternative devise or legacy?
The right of choice shall belong to the executor or administrator
 It is a devise or legacy which provides that among several things
who shall comply with the legacy by the delivery of a thing which
mentioned, only ONE is to be given.
is neither of inferior nor of superior quality. (875a)
Who has the right to choose? Art. 942. Whenever the testator expressly leaves the right of choice
GR: to the heir, or to the legatee or devisee, the former may give or the
 If it is a DIRECT legacy or devise latter may choose whichever he may prefer. (876a)
o The estate, through an executor or an administrator Art. 943. If the heir, legatee or devisee cannot make the choice, in
 If it is a SUBSIDIARY legacy or devise case it has been granted him, his right shall pass to his heirs; but
o Then the HDL charged. a choice once made shall be irrevocable. (877a)
 The position of these parties are, analogously, in the position of a
debtor. These articles talk about generic legacies and devises.
EX: If the testator provides that the devisee or legate can choose –
given that it is a direct D or L. Since if it is subsidiary then sila talaga. Rules on Validity

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Generic Legacy Generic Devise some professional, vocational or general course, provided he
This is valid even of no such Valid ONLY if there exists such pursues his course diligently.
movables exist. an immovable in the testator’s A legacy for support lasts during the lifetime of the legatee, if the
estate at the time of his death.
testator has not otherwise provided.
In such a case the estate will
simply have to acquire what is If the testator has not fixed the amount of such legacies, it shall be
given by legacy. fixed in accordance with the social standing and the circumstances
of the legatee and the value of the estate.
Right of Choice: If the testator or during his lifetime used to give the legatee a
 GR: Executor or administrator, acting for the estate. certain sum of money or other things by way of support, the same
 EX: amount shall be deemed bequeathed, unless it be markedly
a. If the testator gives the right of choice to the legatee/devisee, disproportionate to the value of the estate.(879a)
b. There is a subsidiary legacy or devise.
Art. 945. If a periodical pension, or a certain annual, monthly, or
weekly amount is bequeathed, the legatee may petition the court
Limitation on Choice:
for the first installment upon the death of the testator, and for the
 The choice must be limited to something which his neither
following ones which shall be due at the beginning of each period;
superior nor inferior in quality.
such payment shall not be returned, even though the legatee
 This rule applies when whether the choice belongs to the should die before the expiration of the period which has
executor/administrator of the legate/devisee commenced.(880a)
 There is something that is called limited generic.
 Ex. I give to A one of my watches.
Legacy for Education:
Finality of choice:  Duration:
 Once the choice is made, it is irrevocable. o Until age of majority, or until the completion of a
professional, vocational, or general course.
Transmissibility of the right to choose:  Whichever of the two comes later
1. If the choice belonged to the executor or the administrator  In the latter case, it only apples if the legatee pursues his
o Then the one who will replace him is the one who substitutes studies diligently.
him as executor or administrator  Amount:
2. If the choice belongs to a DL o Primarily
o Then the right is transmitted to his own heirs.  That which is fixed by the testator.
o Secondarily
 That which is proper as determined by the following 2
Art. 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
a. The social standing and circumstances of the legatee.
b. The value of the disposable portion of the estate.
TANTOCO 3B Page | 124

Testator dies on March 1, 1996. He has a will giving A a monthly

Legacy of support: pension of P1,000.
 Duration
o The legatee’s lifetime 1. If we follow Art. 945 literally, A can compel the estate to give him
o UNLESS the testator provides otherwise his pension from March 1, 1996.
 Amount
o Primarily 2. In reality, A has to wait. The estate should be settled first (will
 The amount that is fixed by the testator probated, payment of debts, determine if legacy is effectual, etc.)
o Secondarily After settlement of the estate, A can demand his legacy and its
 That the testator would give to the legatee by way of effectivity will retroact to March 1, 1996.
support during his lifetime
 UNLESS markedly disproportionate to the value of the Art. 946. If the thing bequeathed should be subject to a usufruct,
disposable portion. the legatee or devisee shall respect such right until it is legally
o Tertiarily extinguished. (868a)
 That which is reasonable as determined by the following
2 variables: In this case if there the L or D is subject to a usufrust then the legatee
a. The social standing and circumstances of the legatee. or devisee has to respect the usufruct until it is extinguished.
b. The value of the disposable portion of the estate.
 It actually is as follows that the above are changed due to Art. 947. The legatee or devisee acquires a right to the pure and
the Family Code. There are 2 factors. simple legacies or devises from the death of the testator, and
a. Needs of the recipient transmits it to his heirs. (881a)
b. Capacity of the estate
Art. 948. If the legacy or device is of a specific and determinate
thing pertaining to the testator, the legatee or devisee acquires the
Legacy of a periodical pension:
ownership thereof upon the death of the testator, as well as any
 Demandability – Upon the testator’s death, and the succeeding
growing fruits, or unborn offspring of animals, or uncollected
ones at the beginning of the period without duty to reimburse
income; but not the income which was due and unpaid before the
should the legatee die before the lapse of the period.
latter's death.
 This should be harmonized with the rules on the settlement of
estates – i.e. the debts would be first paid before any testamentary From the moment of the testator's death, the thing bequeathed
grants can be complied with. shall be at the risk of the legatee or devisee, who shall, therefore,
o However if the legacy should prove NOT inofficious the date bear its loss or deterioration, and shall be benefited by its increase
of effectivity shall retroact to the decedent’s death. or improvement, without prejudice to the responsibility of the
executor or administrator. (882a)
Illustration: Art. 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

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time of the death of the testator shall pertain to the legatee or o Although this article does not provide: the decedants of
devisee if the testator has expressly so ordered. (884a) illegitimate children shall inherit per capita if ALL the
illegitimate children renounce.
 If these descendants can inherit per stripes they can, in
Demandability depends on whether:
proper cases, inherit per capita.
1. Pure and determinate
o Upon the testator's death. 4. Conditional (suspensive) (884 in relation to 1197)
2. With a term (suspensive) o Upon the happening of the suspensive condition.
o Upon arrival of the term
3. Conditional (suspensive) Art. 950. If the estate should not be sufficient to cover all the
o Upon the happening of the suspensive condition. legacies or devises, their payment shall be made in the following
Ownership vests as follows: (1) Remuneratory legacies or devises;
1. Pure and determinate (2) Legacies or devises declared by the testator to be preferential;
o Upon the death of the testator. (Art. 777.) (3) Legacies for support;
2. Pure and generic, It depends: (4) Legacies for education;
a. If the thing comes from the testator's estate, upon the testator's (5) Legacies or devises of a specific, determinate thing which
death forms a part of the estate;
b. If the thing has to be acquired from a third person, upon the (6) All others pro rata. (887a)
acquisition of the thing.
3. With a term This article lays down a rule of preference among the legacies and
o Upon the testator's death (effect retroacts.) devises in case the estate is not sufficient for all of them.
4. Conditional (Suspensive)
o Upon the testator's death, if the condition is fulfilled (effect What is the order of preference among the legacies or devises?
retroacts.) 1. Remuneratory legacies or devises
o This is given out of a sense of debt or gratitude.
Fruits will depend on whether: a. o Save life of testator, then gives you something out of gratitude
1. Pure and determinate (Art. 948) 2. Preferential L or D
o Upon the testator's death. 3. Support
2. Pure and generic (Art. 949) 4. Education
o Upon determination of what is to be delivered to the devisee 5. L or D of a specific, determinate thing which forms part of the
or legatee estate
o Unless the testator provides otherwise. 6. All others, PRO RATA
3. With a suspensive term (885)
o Upon arrival of the term

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This is an order of preference in case the estate cannot cover all the Legacies of money must be paid in cash, even though the heir or
legacies or devises. So you start with 6 going up. So 6 is the very first the estate may not have any.
thing that you reduce. The expenses necessary for the delivery of the thing bequeathed
shall be for the account of the heir or the estate, but without
Note: There is a conflict between this article and 911. Under article prejudice to the legitime. (886a)
911 you reduce the dispositions which are not preferred, and do so
proportionally. Under this article you follow the list and preferred are
#2. How do you reconcile this? What does this article say?
 If you have to reduce because legitimes have been impaired,  It says that the heir (in a subsidiary institution), or the executor or
follow Art. 911. administrator is bound to deliver what the testator left to the heir.
 For any other reason, follow Art. 950.  They CANNOT give the cash value.
o If there is no question of impairment, then you follow 950.  On the other hand if the legacy is cash, cash has to be given.
o It does not matter if the estate has cash or none.
Art. 951. The thing bequeathed shall be delivered with all its o In this case you just sell properties.
accessories and accessories and in the condition in which it may  Expenses for delivery shall be borne by the heir.
be upon the death of the testator. (883a) o But the legitimes should still be respected.

Note: Ruben: This article confirms the rule of Identity in the performance
of obligations.
 The obligation to deliver the accessions and accessories exists
even if the testator does not explicitly provide for it.
Art. 953. The legatee or devisee cannot take possession of the thing
 The crucial time is the testator’s death – this is since this is when
the successional rights vests. bequeathed upon his own authority, but shall request its delivery
and possession of the heir charged with the legacy or devise, or of
o That is why the ting must be delivered in the condition in
which it is at that time. the executor or administrator of the estate should he be authorized
by the court to deliver it. (885a)
 This is applicable to determinate or limited generic legacies and
devises. It has no application to generic legacies or devises.
This article says that the legate or devisee cannot take possession of
Ex. If a car is given to the heir, then kasama na dito the special sound the property himself.
system, the special rims, or pag may ibang kinabit.  In order to take possession of the property, the legate or devise
should ask the executor or the administrator, or the heir charged
with delivery to deliver it.
Art. 952. The heir, charged with a legacy or devise, or the executor
or administrator of the estate, must deliver the very thing  But the executor or the administrator, in order to make delivery
bequeathed if he is able to do so and cannot discharge this must be authorized by the court.
obligation by paying its value.

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 The efficacy of a legacy or a devise takes effect upon the death of Acceptance of the heirs of the devisee or legate:
the testator, BUT delivery does not take place at that point.  If the legatee or deivsee dies before accepting or renouncing, his
o This is since you have to get the net estate first. heirs shall exercise such right as to their pro indivisio share.
 Under this the debts, have to be paid, and the legitimes  The rules on total or partial acceptance apply here.
have to be determined, and see if the testamentary
dispositions impair the legitime. What if there are 2 legacies or devises to the same recipient?
 It is only after these steps have been taken that the  If both are gratuitous
beneficiaries of the will can take possession. o The recipient may accept or renounce either
 If both are onerous
Art. 954. The legatee or devisee cannot accept a part of the legacy o The recipient may accept or renounce either
or devise and repudiate the other, if the latter be onerous.  If one onerous and one gratuitous
Should he die before having accepted the legacy or devise, leaving o The heir cannot accept the gratuitous and renounce the
several heirs, some of the latter may accept and the others may onerous.
repudiate the share respectively belonging to them in the legacy o BUT he can renounce the gratuitous and accept the onerous.
or devise. (889a)
What if there is a legacy or devise to a compulsory heir?
Art. 955. The legatee or devisee of two legacies or devises, one of
 The recipient may accept either or both.
which is onerous, cannot renounce the onerous one and accept the
 So he can accept either the legitime or the disposition, or both.
other. If both are onerous or gratuitous, he shall be free to accept
or renounce both, or to renounce either. But if the testator
Note: The will may provide the rules of acceptance or repudiation.
intended that the two legacies or devises should be inseparable
from each other, the legatee or devisee must either accept or  The rules that are stated above ONLY apply in the absence of a
renounce both. stipulation in the will providing otherwise.
 If there are rules that are stated in the will for the acceptance or
Any compulsory heir who is at the same time a legatee or devisee
the repudiation, then those will apply.
may waive the inheritance and accept the legacy or devise, or
renounce the latter and accept the former, or waive or accept What if it the testator intended the two legacies or devises to be
both. (890a) indivisible?
 If it is indivisible then you can either accept or reject both. You
Rules on Acceptance and Repudiation of Legacies and Devises: cannot accept one and reject the other. You have to accept both,
GR: Acceptance may be total or partial. or reject both.
EX: If the legacy or devise is partly onerous and partly gratuitous.
 In this case the heir cannot renounce the onerous part and just get
Art. 956. If the legatee or devisee cannot or is unwilling to accept
the gratuitous part.
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

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estate, except in cases of substitution and of the right of What are the instances when the legacy or devise is revokes by
accretion. (888a) operation of law?
1. Transformation
Rules in case of repudiation by or incapacity of legatee or devisee: o Ex. The testator converts a plantation into a fishpond.
1. Substitution o In this case the transformation must be of such a character that
2. Accretion it is not in the same form or denomination.
3. Intestacy o Transformation revokes the legacy or devise.
2. Alienation
So if the D or L does not want to accept the inheritance, then determine o The alienation may be gratuitous or onerous
if substitution or accretion can take place. In the absence of these two, o The alienation by the testator revokes the legacy and devise
then you put it back into the net estate.  This is true EVEN IF the testator should acquire the thing
Art. 957. The legacy or devise shall be without effect:  EXCEPT:
1. If the reversion is caused by the annulment of the
(1) If the testator transforms the thing bequeathed in such a
alienation and the cause of the annulment was
manner that it does not retain either the form or the denomination
vitiation of consent on the grantor’s part, either by
it had;
reason of incapacity or duress
(2) If the testator by any title or for any cause alienates the thing 2. If the reversion is by virtue of redemption in a sale
bequeathed or any part thereof, it being understood that in the with pactro de retro.
latter case the legacy or devise shall be without effect only with 3. Total Loss
respect to the part thus alienated. If after the alienation the thing o This will be the case of revocation ONLY of it takes place
should again belong to the testator, even if it be by reason of nullity before the testator’s death.
of the contract, the legacy or devise shall not thereafter be valid, o Fortuitous loss AFTER the death of the testator will not
unless the reacquisition shall have been effected by virtue of the constitute revocation.
exercise of the right of repurchase;  Remember: this is since disposition is deemed to have
(3) If the thing bequeathed is totally lost during the lifetime of the taken place at the time of the decedent’s death. (777)
testator, or after his death without the heir's fault. Nevertheless, o Therefor a loss after the testator’s death will simply be an
the person obliged to pay the legacy or devise shall be liable for instance of res perit domino and will be borne by the legatee
eviction if the thing bequeathed should not have been determinate or devisee.
as to its kind, in accordance with the provisions of Article  Here kasi he owns in na from the moment of death. Since
928. (869a) the thing is lost, then wala na. In this case it is not a
revocation, it cannot be revoked since he owns it already.
Ruben: This is important.

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Art. 958. A mistake as to the name of the thing bequeathed or o There is an opinion that institutions is void for vagueness.
devised, is of no consequence, if it is possible to identify the thing  BUT it was held in Belen vs. BPI that an institution, by
which the testator intended to bequeath or devise. (n) way of simple substitution, of the legatee’s decendientes
legitimos, was valid and covered all the legitimeate
If there is a mistake in the name of the thing bequeathed, it really does descendants – i.e. grandchildren, children – per capita, in
not matter, IF it is possible to identify the thing. accord with article 846.
 E.x. I give this piece of land to my wife’s relatives.
Here you use all modes to clear up, except oral declarations of the
testator as to his intention. (look for this article). Ruben: You should apply the 5 degree rule. Here there is nothing that
is illegal, immoral, or against public policy. The 5 degree rule is to
Art. 959. A disposition made in general terms in favor of the apply from the instituted heir.
testator's relatives shall be understood to be in favor of those  Ex. I give this to the relatives of my wife. The 5 degrees is counted
nearest in degree. (751) from the wife.

Ruben: This article is misplaced this is since it applies not just ot Ruben: 959 should not only apply to legacies and devises but to ALL
legatees or devisees but to ALL testamentary heirs as well. testamentary dispositions.

What this article says is that if the disposition just says “to my CHAPTER 3
relatives” this is understood to favor those nearest in degree. LEGAL OR INTESTATE SUCCESSION
SECTION 1. - General Provisions
Who are the relatives?
1. The term relatives only extends up to the 5 th degree. Remember? There are three kinds of successions: (1) Compulsory, (2)
o This is given by Belen vs. BPI which stated in an obiter that Testamentary, (3) Intestate.
the law assumes that the testator intended to refer to the rules
on intestacy. Note: Intestate succession yields to the other 2 kinds of succession.
o Intestacy in the PH stops at the 5th degree. Beyond that degree This it only operates in default of legitimes and testamentary
kinship is NOT recognized. succession.
2. Representation does not operate in the application of this article.  But: realistically intestate succession occurs most frequently
o As a matter of fact commentators are of the view that even the because many people die without a will.
rules on preference of line and distinction between full and
half-blood should not apply – this the ONLY thing that should How do you define intestate or legal succession?
apply is proximity in degree.  Intestate or legal succession takes place: By operation of law, and
3. Institution of relatives of another person ONLY in default of the legitimes and testamentary dispositions.
o The institution of relatives of another person, and not those of  It is the presumed or implied will of the testator.
the testator, does NOT fall within the ambit of this article.

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Q: Can you have intestate succession, even if there are legitimes AND  This is equivalent to dying without a will.
testamentary dispositions? c. A will that has lost its validity
A: YES – this happens when the whole estate is not given out through  This contemplates a situation where a will has been
the will and though legitimes. So there can be intestacy even if there revoked, and there is no will to take its place.
is a will.  In this case the word validity should read efficacy. This is
since if the will is valid it shall always be valid, but a valid
Intestacy may be total or partial: will may lose efficacy – e.x. when all of the heirs that are
Total = Happens when the whole estate is not disposed of. This may instituted die before the testator, or if they all renounce.
be because there is no will, or there are no dispositions that are made  A will that has subsequently lost its validity is one that has
in a will, etc. been revoked without a later one taking its place.
Partial = When a part of the free portion has been given away, but not 2. The will does not institute an heir to dispose of ALL the property
everything. belonging to the testator.
a. In this case legal succession shall take place, but only with
Art. 960. Legal or intestate succession takes place: respect to the property that has not disposed
(1) If a person dies without a will, or with a void will, or one which b. Remember the case of Seangio? Where the will only
has subsequently lost its validity; contained a provision for disinheritance – here the will was
(2) When the will does not institute an heir to, or dispose of all the valid, but there was no disposition, so there will be intestacy
property belonging to the testator. In such case, legal succession c. In this case intestacy may be total or partial
shall take place only with respect to the property of which the 3. If there is no substitution OR no right of accretion and either of
testator has not disposed; the FF instances take place:
(3) If the suspensive condition attached to the institution of heir a. If the suspensive condition attached to the institution of the
does not happen or is not fulfilled, or if the heir dies before the heir does not happen or is not fulfilled.
testator, or repudiates the inheritance, there being no substitution, b. If the heir dies before the testator (Predecease)
and no right of accretion takes place; c. If the testator repudiates the inheritance
(4) When the heir instituted is incapable of succeeding, except in o Here intestacy may be total or partial – depending on the
cases provided in this Code. (912a) extent of the disposition that turns out to be inoperative.
4. When the heir instituted is incapable of succeeding, except in
Legal of intestate succession defined: cases that are provided by law.
 “Intestate or legal succession takes place by operation of law in 5. Happening of a resolutory condition
the absence of a valid will. a. Remember: A negative suspensive condition
b. I give my house and lot to L provided that she does not but a
When does Intestate Succession take place? beer garden on it.
1. Person dies:  If L puts a beer garden, she has to return the lot – and this
a. Without a will lot goes to intestacy.
b. A will that is void 6. Expiration of a resolutory term

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a. Remember: A term in diem – art 885. 3. Jus coniugis – this is the relationship to the spouse.
7. Preterition o Is there a valid or voidable marriage.
o Bawal live in.
Art. 961. In default of testamentary heirs, the law vests the 4. Jus Imperii – This is the right of sovereignty
inheritance, in accordance with the rules hereinafter set forth, in o The right of the decedent and the state.
the legitimate and illegitimate relatives of the deceased, in the
surviving spouse, and in the State. (913a) II. Rule of Preference of Lines: This is the same as legitimes. In this
case you have the direct ascending, direct descending, and the
Art. 962. In every inheritance, the relative nearest in degree
excludes the more distant ones, saving the right of representation
when it properly takes place.  In this case the direct are preferred.
o So if there are direct, the collateral are excluded
Relatives in the same degree shall inherit in equal shares, subject
 The descending is preferred to the ascending.
to the provisions of article 1006 with respect to relatives of the full o Subject to the same exceptions
and half blood, and of Article 987, paragraph 2, concerning
division between the paternal and maternal lines. (912a)
III. Rule of Preference of Degree: the nearer exclude the more
 There is no right of representation in the ascending line
Exclusion and Concurrence in Intestacy:
 There is right of representation in the descending line.
 Intestacy operates on the same principles as succession to the
 Is there a right of representation in the collateral line?
legitime – these are exclusion and concurrence.
What is the basis for intestate succession?
IV. Rule of Equality Among Reltives of the Same Degree: those of
 The presumed will of the decedent, which would distribute the
equal degree should inherit in equal shares.
estate in accordance with the love and affection he has for his
 Exceptions:
family and close relatives.
1. The rule of preference of lines
 The D is preferred to the A
Basic Rules of Intestacy
 Ex. A dies, she has a mom and a daughter, both the mom
and the daughter are one degree away from each other,
I. Rule of relationship: In order to be an intestahe heir one has to be
but the daughter is preferred, as a matter of fact the
related to the decedent.
daughter excludes the mother.
4 possible kinds of relationships 2. The distinction of legitimate and illegitimate affiliation
1. Jus famile – this is a blood relationship 3. Division by line in the ascending line
o EX: Adoption – here 4. The distinction of full blood and half-blood relationships
2. Jus Sanguinis – this is also blood relationship. This is the between brothers and sisters, as well as nephews and nieces.
relationship of the testator and his collaterals up to the 5th degree.  2:1

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5. Representation In the direct line, ascent is made to the common ancestor. Thus,
 Grandchildren who inherit by representation shall not get the child is one degree removed from the parent, two from the
per capita among themselves. grandfather, and three from the great-grandparent.
6. 1009 – As interpreted by Bacayo vs. Borromeo In the collateral line, ascent is made to the common ancestor and
 In this case if a testator dies, and he is survived by his then descent is made to the person with whom the computation is
uncles and aunts, AND nephews and nieces – the nephews to be made. Thus, a person is two degrees removed from his
and nieces EXCLUDE the uncles and aunts – even if they brother, three from his uncle, who is the brother of his father, four
are both three degrees away. from his first cousin, and so forth. (918a)

SUBSECTION 1. - Relationship How do you count degrees?

Art. 963. Proximity of relationship is determined by the number Just count the number of generations – the only limitation is life
of generations. Each generation forms a degree. (915) expectancy.

Art. 964. A series of degrees forms a line, which may be either

direct or collateral. What is a collateral relative?
A relative of yours, related to you by BLOOD, who is not your
A direct line is that constituted by the series of degrees among descendant or ascendant.
ascendants and descendants.
Is there a difference when you count degrees with the collateral and
A collateral line is that constituted by the series of degrees among with the direct? - YES
persons who are not ascendants and descendants, but who come  Direct – Unlimited
from a common ancestor.(916a)  Collateral – Limited to the 5th degree
o We follow the counting of the German System.
Art. 965. The direct line is either descending or ascending.  Under this system, you count to the nearest common
The former unites the head of the family with those who descend ancestor.
from him. o There is no such thing as a first degree collateral. The nearest
na is your siblings – they are your second degree collateral.
The latter binds a person with those from whom he
descends. (917) Art. 967. Full blood relationship is that existing between persons
who have the same father and the same mother.
Art. 966. In the line, as many degrees are counted as there are Half-blood relationship is that existing between persons who have
generations or persons, excluding the progenitor. the same father, but not the same mother, or the same mother, but
not the same father.(920a)

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What is the importance of distinction between brothers and sisters of the inheritance has been repudiated, should there by only on, or by
the full blood and half-blood? ALL.
 There is a ratio of 2:1 for the full blood and the half blood. What is the effect of renunciation by ALL in the same degree?
 With other collateral relatives this distinction is not important.  The right of succession is passed on the heirs in the succeeding
degrees (in successive order) before the next line can succeed.
Art. 968. If there are several relatives of the same degree, and one o What is the reason behind this?  Rule on Preference of
or some of them are unwilling or incapacitated to succeed, his Lines
portion shall accrue to the others of the same degree, save the right  Remember: Down, then up, then side to side. Nearer First.
of representation when it should take place. (922)  In renunciation THERE IS NO REPRESENTATION.

Q: Is there accretion in intestacy? So what is the order?

A: YES – there is accretion among heirs of the same degree, in cases 1. Descending line first
of: (1) predecease, (2) incapacity, (3) renunciation. o If all the descendants of a certain degree renounce, then
 But remember when it comes to legitimes there is no accretion – succession will pass to the next degree, and this can continue
sir is very anal about this – this is since the heirs inherit in their ad infinitum.
own right. They just don’t get the share of the other. 2. Then ascending line next
 In case of predecease and incapacity – there is the right of o They only get it if there is NO ONE left in the descending line,
representation. thus they acquire the right of succession
 NOTE: Relatives must be the same kind of relationship. o Note: Remember  You have to follow the rule on proximity
o For accretion to take place the heirs involved must be in the of degree
same kind of relationship to the decedent. 3. Collateral Line last
 Ex: All of them are the siblings, OR the grandparents, OR o They only get it if ALL the descendants and ascendants
the grandchildren. renounce.
 There is no right of accretion if it is the grandparent,
brother, and grandchild. What happens naman if all of the predecease or become incapacitated?
 Same rule as above – the only difference is that in this case there
Art. 969. If the inheritance should be repudiated by the nearest is representation.
relative, should there be one only, or by all the nearest relatives  Remember: Representation only happens in the descending line.
called by law to succeed, should there be several, those of the
following degree shall inherit in their own right and cannot Note: Representation does not apply in cases of universal renunciation
represent the person or persons repudiating the – this is since there is no representation in renunciation.
inheritance. (923)
SUBSECTION 2. - Right of Representation
Note: this article talks about UNIVERSAL renunciation. As in all of
their hers renounce. This is seen in the first sentence which states that
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Art. 970. Representation is a right created by fiction of law, by right of representation when it comes to legitime). There is no right of
virtue of which the representative is raised to the place and the representation when it comes to TESTAMENTARY succession.
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)
Art. 971. The representative is called to the succession by the law
What is representation?
and not by the person represented. The representative does not
succeed the person represented but the one whom the person  It is a right that is created by fiction of law, by virtue of which the
represented would have succeeded. (n) representative is raised to the place and the degree of the person
Art. 972. The right of representation takes place in the direct o Ruben: It should not be fiction of law since the law has ample
descending line, but never in the ascending. authority to pre-determine who are called to inherit. Thus you
In the collateral line, it takes place only in favor of the children of do not have to resort to fiction.
brothers or sisters, whether they be of the full or half blood. (925)  Thus the term fiction is inaccurate.
Art. 973. In order that representation may take place, it is  The person who represents acquires the rights which the one who
necessary that the representative himself be capable of succeeding dies would have if he were living or if he could have inherited.
the decedent. (n)  Ruben: The more apt term for this would be successional
Art. 974. Whenever there is succession by representation, the
division of the estate shall be made per stirpes, in such manner
When does representation operate?
that the representative or representatives shall not inherit more
1. Predecease
than what the person they represent would inherit, if he were
2. Incapacity
living or could inherit. (926a)
3. Disinheritance
Art. 975. When children of one or more brothers or sisters of the
deceased survive, they shall inherit from the latter by Kinds of succession and if representation operates
representation, if they survive with their uncles or aunts. But if 1. Testamentary – BAWAL
they alone survive, they shall inherit in equal portions. (927) 2. Legitime - YES
Art. 976. A person may represent him whose inheritance he has o Technically yes, but there is no direct provision – except for
renounced. (928a) 923 regarding disinheritance
Art. 977. Heirs who repudiate their share may not be 3. Intestacy – YES! The provisions above bruh!
represented. (929a)
In what lines does representation obtain?
1. Legitime
NOTE: When you talk of the right of representation that is given by o The direct descending line ONLY
this article it only refers to intestate succession (but there is also the 2. Intestacy

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o Direct descending line o Why is this the case? This is since he renounces the right to
o The collateral succeed, so wala na talaga. So it is not one of the rights which
 There is only one instance of this – Article 975 the renouncer transmits upon this death. Remember 777?

What are the instances when representation NEVER operates? (There How does representation operate?
are 3 nevers)  Per Stripes – Through the roots – the representatives receive only
1. Renunciation what the person represented would have received.
2. In testamentary succession  If there are more than one representative in the same degree, then
3. With respect to the legitime it can only go to the descending line divide the portion equally, without prejudice to the distinction
ONLY – so Never to the ascendants. between the legitimate and illegitimate children, when applicable.

When can illegitimate children represent? Rules on Qualification:

 If the child to be represented is LEGITIMATE 1. The representative must be qualified to succeed the decedent
o Only his LEGITIMATE children or descendants can represent 2. The representative need not be qualified to succeed the person
him. represented
 If the child represented is ILLEGITIMATE 3. The person represented need not be qualified to succeed the
o BOTH his illegitimate and legitimate children can represent decedent.
him. o As a matter of fact, the reason why representation is taking
place is that the person represented is NOT qualified, because
Teotico vs. Del Val of predecease, incapacity, or disinheritance.
The relationship of the adopted created by law limits itself to
the parent and the adopted child. The relationship does not extend to What is the difference when it comes to representation by
the relatives of the adoptor. A possible result of this is that an adopted grandchildren and nephews and nieces?
child cannot represent his deceased parent when it comes to the estate  Grandchildren
of his grandparent. But it also goes the other way, a grandparent cannot o If ALL the children are disqualified (P,I,D) the grandchildren
inherit by operation of law the property of their adopted grandchild. still inherit by representation – per stripes.
The rationale for the rule barring an adopted from  Nephews and Nieces
representing and being represented is that the legal relationship o If their parents (the brothers and sisters of the decedent)
created by adoption is strictly between the adoptor and the adopted. It renounce then they inherit per capita.
does not extend to the relatives of either party.
Note: When only some, not all of the children or brothers/sisters of the
How about Representation by a renouncer? decedent are disqualified, the rule is the same.
 A renouncer cannot be represented by his heirs. So once he  But REMEMBER: When you talk of intestate succession the
renounces kiss the inheritance goodbye talaga – even for his heirs. nearer exclude the farther. Thus in the case where it is the

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collateral who are the ones who are to receive the estate through Q: So will the grandchildren ever inherit per capita?
intestacy, if there is a brother or sister they exclude the nephews A: YES – when all the children RENOUNCE!
and nieces of the decedent, even though they be the children of
their siblings – in this case there is no representation – rather what
happens is that it is transmitted SECTION 2. - Order of Intestate Succession

X SUBSECTION 1. - Descending Direct Line

Who are the intestate Heirs?

A B C 1. Legitimate Children/Descendants
o Exclude – parents, collateral and state
a1 b1 c1 o Concur – SS and IC
o Excluded by – NONE
a2 b2 c2 2. Illegitimate Children and Descendants
o Exclude – IP, Collaterals, State
o Concur – SS, LC, LP
In this case you have X as the daddy and ABC are the kiddies. If B o Excluded by - NONE
and C predecease X, then this will how it goes down: 3. Legitimate Parents/Ascendants
 A – will inherit in his own right o Exclude – Collaterals and State
 The children will represent. So b1 and b2 will represent B, and c1 o Concur - SS
and c2 will represent C. o Excluded by – LC and IC
4. Illegitimate Parents
X o Exclude – Collaterals and State
o Concur – LC, IC, LP, IP, BS NN
o Excluded by
5. Surviving Spouse
o Exclude
a1 b1 c1 o Concur
o Excluded by
a2 b2 c2 6. Brothers and Sisters, Nephews and Nieces
o Exclude
o Concur
In this case ABC predecease X, so what happens here?
o Excluded by
 In this case all the GC will just represent their parents. So they are
7. Other collaterals up to the 5th degree
still per stripes and NOT per capita.
o Exclude

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o Concur o So here the safe thing that would do is to make sure that the
o Excluded by legitimes are respected – so legitimes first, then the excess
8. State should be divided according to the proportion.
o Exclude  But you only do this when there is a concurrence of
o Concur legitimate and legitimate children – i.e. #2 & #4.
o Excluded by o Correct way to do it
Note: The first 5 groups are the compulsory heirs.  A – 3M
 B – 3M
Combinations:  Each IC – 1M

The tricky scenario is # 2 LC & IC Champ Tables

o Proportion is 2:1
o Note this article forgets that if you just observe the ratio that 1. Legitimate Children ALONE
is given here, the legitimes of the LC will be impaired Legitime Free Portion Intestae Portion Total Take Home
o So in this combination make sure that the Legitime of the LC ½ of the estate ½ of the estate The ½ free The whole
are NOT IMPAIRED. portion, divided estate divided
equally equally
Suppose X has 2 LC (A & B) and 1 IC (C). And the estate of X is 12M
2. Legitimate Children and Illegitimate Children
o In this case the proportion is 2:2:1 – In this case: Free Portion Intestate Portion Total Take Home
 A – 4.8 M LC - ½ of the If ever Apportion free The whole
 B – 4.8 M estate divided something gets portion, if any, estate with each
 C – 2.4 M equally left with a ration of IC getting ½ the
EXAMPLE 2 2:1 share of a LC
Same situation above, but there are 6 Illegitimate Children. IC – ½ the
share of 1 LC
o The proportion here would be 2:2:1:1:1:1:1:1, so if you do it
SOLEY according to this article then you would get:
3. Legitimate Children and Surviving Spouse
 A – 2.4 Free Portion Intestate Portion Total Take Home
 B – 2.4 LC - ½ of the If ever Give the residue The whole
 Each IC – 1.2 estate divided something gets to all of them estate equally
 BUT! Here the legitime was not respected… the LC have equally left among them all.
to get ½ of the estate collectively or 3M each. * the SS is
o In this case you will have to apply the reduction given in 895, S – Share of a counted as a
LC child
thus you will have to reduce the share of the IC’s
o In this case since you do not have enough for the legitime so
3a. ONE legitimate Child, and Surviving Spouse
there will be NO intestacy. Free Portion Intestate Portion Total Take Home

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1LC – ½ of the ¼ of the estate 1LC – None Each gets ½ the IC – ¼ of the
estate estate. Here it is estate
SS- 1/4 the SS that gets
SS – ¼ the the FP

4. Legitimate Children, Illegitimate Children, Surviving Spouse

8. Legitimate parents and Surviving Spouse
Legitime Free Portion Intestate Portion Total Take Home
Legitime Free Portion Intestate Portion Total Take Home
LC - ½ of the If ever Apportion free The whole
LP – ½ ¼ of estate LP – None LP – ½
estate divided something gets portion, if any, estate with each
equally left with a ratio of IC getting ½ the
SS – ¼ SS – ¼ FP SS – ½
2:1 share of a LC
SS – A share
equal to a LC * the SS is And the SS has 9. Legitimate Parents, Illegitimate Children, and Surviving Spouse
counted as a a share of a LC Legitime Free Portion Intestate Portion Total Take Home
IC – ½ the child LP – ½ 1/8 of estate LP – None LP – ½
share of a LC
IC – 1/4 IC – None IC – ¼
5. Legitimate Parents Alone
Legitime Free Portion Intestate Portion Total Take Home SS – 1/8 SS – 1/8 FP SS – 1/4
½ of the estate ½ of the estate The ½ free The whole
portion, divided estate divided 10. Illegitimate Children ALONE
equally equally Legitime Free Portion Intestate Portion Total Take Home
½ of the estate ½ of the estate ½ of the estate The whole
6. Legitimate Ascendants alone estate divided
Legitime Free Portion Intestate Portion Total Take Home among them
½ of the estate ½ of the estate The ½ free The whole
portion, divided estate divided
equally equally 11. Illegitimate Children and Surviving Spouse
Note: When it comes to legitmate ascendants you have to remember Legitime Free Portion Intestate Portion Total Take Home
1. The nearer exclude the more remote IC – 1/3 1/3 of the estate IC – ½ of the IC – ½
2. Division by Line is free portion 1/3 collectively
3. Principle of Equality SS – 1/3
SS – ½ of the SS – ½
7. Legitimate Parents and Illegitimate Children 1/3 free portion
Legitime Free Portion Intestate Portion Total Take Home
LP - ½ of the ¼ of the estate LP – None LP – 1/2
estate 12. Surviving Spouse ALONE
IC – the free ¼ IC – 1/4 Legitime Free Portion Intestate Portion Total Take Home

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½ of the estate ½ of the estate ½ of the estate The whole

estate 17. Illegitimate Parents, and any kind Child
Legitime Free Portion Intestate Portion Total Take Home
IP – Excluded ½ of the estate IP – NONE The children get
the whole free
Child – ½ of the Child – ½ free portion.
estate portion
18. Legitimate Brothers and Sisters ALONE
13. Surviving Spouse and Illegitimate Parents
Legitime Free Portion Intestate Portion Total Take Home
Legitime Free Portion Intestate Portion Total Take Home
LBS – NONE Whole estate Whole Free The whole
SS – ¼ ½ of the estate SS – ½ of the ¼ SS – ½
Portion estate.
IP – ¼ IP – ½ of the ¼ IP – 1/2
1. If all are
whole blood,
14. Surviving Spouse, Legitimate brothers and sisters, Nephews and then divide
nieces. equally
Legitime Free Portion Intestate Portion Total Take Home
SS – ½ ½ SS – None SS – ½ 2. If there are
half blood, then
LBS – None LBS – ½ LBS – ½ ratio 2:1

NN – None NN – they get it NN - Rep Remember: the party that gets the free portion is the one that shall
by suffer reduction of his intestate share in case of partial intestacy
19. Legitimate Brothers and Sisters and Nephews and Nieces
15. Surviving Spouse. Illegitimate Brothers and Sisters, NN Free Portion Intestate Portion Total Take Home
Legitime Free Portion Intestate Portion Total Take Home
LBS - None Whole estate LBS – Whole The whole
SS – ½ ½ of the estate SS – None SS – ½ of the Free Portion estate
estate NN – None
IBS – None IBS – ½ free 1. If all are
portion IBS – ½ of the whole blood,
NN – None estate then divide
NN – Rep. equally
NN – By Rep.
*contemplates decedent is an illegitimate child of someone. 2. If there are
half blood, then
16. Illegitimate Parents Alone ratio 2:1
Legitime Free Portion Intestate Portion Total Take Home
½ of the estate ½ of the estate ½ of the estate The whole NN – Only by
estate representation

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1. If all are
whole blood,
20. Nephews and Nieces, and Aunts and Uncles then divide
Legitime Free Portion Intestate Portion Total Take Home
NN – None Whole estate NN – Whole The whole 2. If there are
Free Portion estate. half blood, then
AU – None ratio 2:1
Provided that
AU – Excluded 24. Other Collateral Relatves
(Bacayo vs. Legitime Free Portion Intestate Portion Total Take Home
Borromeo) CR – None Whole estate The whole free The whole
portion – Per estate.
21. Illegitimate Brothers and Sisters Alone Capita
Legitime Free Portion Intestate Portion Total Take Home
The nerar
IBS – NONE Whole estate Whole Free The whole exclude the
Portion estate. more remote.

Note: When it comes to IBS you still have to distinguish if they hare 25. The State
half and full blood. Like if you parents are live in, and you have Legitime Free Portion Intestate Portion Total Take Home
siblings from that live in – those are still Full blood. If you dad has a State – None Whole estate The whole free The whole
child from another, that is half. So full and half-blood have nothing portion estate.
to do with legitimacy.

22. Illegitimate Brothers and Sisters and Nephews and Nieces

Legitime Free Portion Intestate Portion Total Take Home
IBS – NONE Whole estate IBS – Whole IBS – take the
Free Portion whole estate
NN – None

Art. 978. Succession pertains, in the first place, to the descending

direct line.(930)
23. Nephews and Nieces Alone
Legitime Free Portion Intestate Portion Total Take Home
NN – NONE Whole estate Whole FP The whole

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Art. 979. Legitimate children and their descendants succeed the Take away from the case: Adopted Children do not have the right to
parents and other ascendants, without distinction as to sex or age, represent their parents in the estate of their grandparents or other blood
and even if they should come from different marriages. relatives.
An adopted child succeeds to the property of the adopting parents
in the same manner as a legitimate child. (931a) Art. 980. The children of the deceased shall always inherit from
him in their own right, dividing the inheritance in equal
shares. (932)
This refers to #1 in the outline of intestate succession.
Art. 981. Should children of the deceased and descendants of other
children who are dead, survive, the former shall inherit in their
Q: Does the civil code govern the rights of an adopted child in relation
own right, and the latter by right of representation. (934a)
to his adopter?
Art. 982. The grandchildren and other descendants shall inherit
A: NO – this is not governed by RA 8552 Sections 17 &18
by right of representation, and if any one of them should have
Sayson vs. CA
died, leaving several heirs, the portion pertaining to him shall be
The legitimacy of a child cannot be questioned in a complant
divided among the latter in equal portions.(933)
for the partition and accounting, but it has to be done in a direct action.
This is since there is a presumption of legitimacy in the civil
GR: 982: Grandchildren inherit by right of representation
code. It does not have a purely evidential character, rather it serves a
EX: 992: Iron Curtain Provision: Illegitimate GC cannot inherit from
more fundamental purpose. It actually fixes a civil status for the child
the legitimate GP.
born in wedlock, and that civil status cannot be attacked collaterally.
BUT in this case there was also the question of WON an
Rules on Children and Grandchildren:
adopted child can represent. The SC said that while an adopted child
1. The children will inherit in their own right and in equal shares
is deemed to be a legitimate child and have the same rights as the latter,
2. If the heirs are children and grandchildren
these rights do not include the right of representation. This is since the
o Children – in their own right
relationship created by adoption is between only the adopting parents
o GC – by right of representation
and the adopted child and does not extend to the blood relatives of
3. GC inherit by representation – per stripes
wither party.
o If they die, then their children will inherit in equal shares the
portion which would have gone to GC.
Rules of Succession of an Adopted Child
1. The adopted child inherits from his adopter in exactly the same Art. 983. If illegitimate children survive with legitimate children,
way and exactly the same extent as a legitimate child. the shares of the former shall be in the proportions prescribed by
2. The adopted child remains an heir of his biological parents and Article 895. (n)
other blood relatives (as if there was no adoption). This applies to
both compulsory and intestate succession. Note: the proportion of the shares of a LC to an IC is 2:1 respectively.

TANTOCO 3B Page | 142


But before you go all out and start following the 2:1 rule that is given paternal and the other half to the maternal ascendants. In each
here, you have to take note of the fact that you have to respect the line the division shall be made per capita. (937)
legitime of the LC.
Rules of the Ascending Direct line:
This is how you do it:
1. If there are no LEGITIMATE descendants, then it will be the
1. Segregate the legitimes of the LC and the IC parents or ascendants who will inherit
2. If there is any residue left then apportion it 2:1. 2. The father and mother will inherit in equal shares
3. If only one of them survives, he/she will get the whole estate.
Note: it is possible that the estate may not be even be sufficient to
4. If there is not father nor mother, then the ascendants in the nearest
satisfy the legitimes. In which case step #2 wont even happen, and you degree shall inherit.
might even have to reduce pro rata the shares of the IC. 5. If there is more than one ascendant of the same degree then:
o Divide by line
Art. 984. In case of the death of an adopted child, leaving no o Then per captia among those in the line
children or descendants, his parents and relatives by
consanguinity and not by adoption, shall be his legal heirs. (n) SUBSECTION 3. - Illegitimate Children
Art. 988. In the absence of legitimate descendants or ascendants,
This has been repealed by section 17 and 18 of RA 8552. the illegitimate children shall succeed to the entire estate of the
deceased. (939a)
SUBSECTION 2. - Ascending Direct Line
Art. 989. If, together with illegitimate children, there should
Art. 985. In default of legitimate children and descendants of the
survive descendants of another illegitimate child who is dead, the
deceased, his parents and ascendants shall inherit from him, to the
former shall succeed in their own right and the latter by right of
exclusion of collateral relatives. (935a)
representation. (940a)
Art. 986. The father and mother, if living, shall inherit in equal
Art. 990. The hereditary rights granted by the two preceding
articles to illegitimate children shall be transmitted upon their
Should one only of them survive, he or she shall succeed to the death to their descendants, who shall inherit by right of
entire estate of the child. (936) representation from their deceased grandparent.(941a)
Art. 991. If legitimate ascendants are left, the illegitimate children
Art. 987. In default of the father and mother, the ascendants shall divide the inheritance with them, taking one-half of the
nearest in degree shall inherit. estate, whatever be the number of the ascendants or of the
Should there be more than one of equal degree belonging to the illegitimate children. (942-841a)
same line they shall divide the inheritance per capita; should they Art. 992. An illegitimate child has no right to inherit ab intestato
be of different lines but of equal degree, one-half shall go to the 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)
TANTOCO 3B Page | 143

Art. 993. If an illegitimate child should die without issue, either illegitimate child. When the law speaks of brothers and sisters in
legitimate or illegitimate, his father or mother shall succeed to his paragraph 2 of article 994, it refers to an illegitimate child who is the
entire estate; and if the child's filiation is duly proved as to both decedent, and his compulsory heirs are his brothers and sister – WON
parents, who are both living, they shall inherit from him share and legitimate or illegitimate.
share alike. (944)
Art. 994. In default of the father or mother, an illegitimate child Corpus vs. Administrator
shall be succeeded by his or her surviving spouse who shall be An illegitimate child of an heir of the decedent is not a legal
entitled to the entire estate. heir of the decedent. This since there is no reciprocal succession
between legitimate and illegitimate relatives.
If the widow or widower should survive with brothers and sisters,
Since Teodoro Yangco was an acknowledged natural child or
nephews and nieces, she or he shall inherit one-half of the estate, was illegitimate and since Juanita Corpus was the legitimate child of
and the latter the other half. (945a) Jose Corpus, himself a legitimate child, we hold that the appellant
Tomas Corpus has no cause of action for recovery of the supposed
Rules on Illegitimate Children: hereditary share of his mother, Juanita Corpus, as legal heir, in
1. If there are no legitimate decedents then the IC inherit the Yangco's estate. Juanita Corpus was not a legal heir of Yangco
WHOLE estate. because there is no reciprocal succession between legitimate and
2. There is the right of representation. Thus when an IC dies, his illegitimate relatives.
heirs may represent him, and his other co IC inherit in their own This rule is based on the theory that the illegitimate child is
right. disgracefully looked upon by the legitimate family, while the
3. If the heirs are LP/A and IC, then they shall divide the estate legitimate family is in turn hated by the illegitimate child. The law
equally by group. does not recognize the blood tie and seeks to avoid further grounds of
4. Iron Curtain Provision resentment.
o An illegitimate child has NO RIGHT to inherit ab intestato
from legitimate children and relatives of his parents. Leonardo vs. CA
 Ab intestato – by BOTH legitime and intestacy Even if the petitioner is the child of Leonardo, still he cannot,
o The realives of the parents cannot also inherit in the same by right of representation, claim a share of the estate left by the
manner from the illegitimate children. decease Reyes considering that he was born outside wedlock. His
alleged putative father and mother were then not yet married. At most,
Note: When the law speaks of brothers and sisters, nephews and nieces petitioner is an illegitimate child who has no right to inherit ab
as legal hers of an illegitimate child – it refers to illegitimate brothers intestato from the legitimate children and relatives of his father, like
and sisters as well as to the children whether legitimate or illegitimate the deceased Reyes.
of such brother or sister. In this case the grand son was saying that he should be able to
inherit from his grandparents. The SC said that he is not allowed since
Note: When you talk about the provision where it is the suriving he is the illegitimate child of his father.
spouse that inherits with IBS, it contemplates that the decedent was an

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Manuel vs. Ferrer prohibit the right of representation from being exercised where the
This is the principle of absolute separation between the person to be represented is a legitimate child. Needless to say, the
legitimate family and the illegitimate family. The doctrine rejects determining factor is the legitimacy or illegitimacy of the person to be
succession ab intestato in the collateral line between legitimate represented.
relatives on the one hand, and the illegitimate relatives on the other. When article 922 mentions the terms relatives this is a general
What is meant by the law when it speaks of brothers and term and is meant to embrace not only collateral relatives but also all
sisters, nephews and nieces, as legal or intestate heirs of an illegitimate the kindred of the person spoken of, UNLESS the context indicates
child? It is clear that by virtue of this barrier, the legitimate brothers that it was used in a more restricted and limited sense – but in 922 this
and sisters, as well as the children, whether legitimate or illegitimate, is not the case.
of such brothers and sisters, cannot inherit from said illegitimate child.
Suntay vs. Cojuanco Suntay
Diaz vs. IAC Counsel for petitioner meticulously argues that Article 992 of the Civil
Article 992 of the civil code proved a barrier, or iron curtain Code, the successional bar between the legitimate and illegitimate
in that it prohibits absolutely a succession ab intestate between: relatives of a decedent, does not apply in this instance where facts
1. Illegitimate child and indubitably demonstrate the contrary—Emilio III, an illegitimate
2. The legitimate children and relatives of the father or mother of grandchild of the decedent, was actually treated by the decedent and
said legitimate child. her husband as their own son, reared from infancy, educated and
Between the legitimate family and the illegitimate family, there is trained in their businesses, and eventually legally adopted by
presumed to be an intervening antagonism and incompatibility. decedent’s husband, the original oppositor to respondent’s petition for
letters of administration.
Art 902, 989 and 990 clearly speak of successional rights of
illegitimate children, which rights are transmitted to their descendants We are not unmindful of the critiques of civilists of a conflict and a
upon their death. The descendants of these illegitimate children, who lacuna in the law concerning the bone of contention that is Article 992
may inherit by virtue of representation may either be legitimate or of the Civil Code, beginning with the eminent Justice J.B.L. Reyes: In
illegitimate. the Spanish Civil Code of 1889 the right of representation was
In whatever manner, one should not overlook the fact that the admitted only within the legitimate family; so much so that Article
person to be represented are themselves illegitimate. The right of 943 of that Code prescribed that an illegitimate child cannot inherit ab
representation is not available to illegitimate descendants of legitimate intestato from the legitimate children and relatives of his father and
children, in the inheritance of a legitimate grandparent. mother. The Civil Code of the Philippines apparently adhered to this
The right to represent illegitimate children however is subject principle since it reproduced Article 943 of the Spanish Code in its
to the limitation prescribed in Art 992 to the end that an illegitimate own Art. 992, but with fine inconsistency, in subsequent articles (990,
child has no right to inherit ab intestato from the legitimate children, 995 and 998) our Code allows the hereditary portion of the illegitimate
and relatives of his father or mother. child to pass to his own descendants, whether legitimate or
While the NCC may have granted successional rights to illegitimate. So that while Art. 992 prevents the illegitimate issue of a
illegitimate children, they however, read in conjunction with Art 992, legitimate child from representing him in the intestate succession of

TANTOCO 3B Page | 145


the grandparent, the illegitimates of an illegitimate child can now do legitimate or illegitimate, the surviving spouse shall inherit the
so. This difference being indefensible and unwarranted, in the future entire estate, without prejudice to the rights of brothers and
revision of the Civil Code we shall have to make a choice and decide sisters, nephews and nieces, should there be any, under article
either that the illegitimate issue enjoys in all cases the right of 1001. (946a)
representation, in which case Art. 992 must be suppressed; or
contrariwise maintain said article and modify Articles 995 and 998.
The first solution would be more in accord with an enlightened attitude Art. 996. If a widow or widower and legitimate children or
vis-à-vis illegitimate children. descendants are left, the surviving spouse has in the succession the
same share as that of each of the children. (834a)
The factual antecedents of this case accurately reflect the basis of
intestate succession, i.e., love first descends, for the decedent, Cristina,
did not distinguish between her legitimate and illegitimate Art. 997. When the widow or widower survives with legitimate
grandchildren. Neither did her husband, Federico, who, in fact, legally parents or ascendants, the surviving spouse shall be entitled to
raised the status of Emilio III from an illegitimate grandchild to that one-half of the estate, and the legitimate parents or ascendants to
of a legitimate child. The peculiar circumstances of this case, the other half. (836a)
painstakingly pointed out by counsel for petitioner, overthrow the Art. 998. If a widow or widower survives with illegitimate
legal presumption in Article 992 of the Civil Code that there exist children, such widow or widower shall be entitled to one-half of
animosity and antagonism between legitimate and illegitimate the inheritance, and the illegitimate children or their descendants,
descendants of a deceased. whether legitimate or illegitimate, to the other half. (n)
Art. 999. When the widow or widower survives with legitimate
children or their descendants and illegitimate children or their
If the person to be represented is If the person to be represented is descendants, whether legitimate or illegitimate, such widow or
an illegitimate child a legitimate child
widower shall be entitled to the same share as that of a legitimate
Then his descendants, whether His illegitimate descendant
child. (n)
legitimate or illegitimate, may cannot represent him because
represent him the law provides that only his Art. 1000. If legitimate ascendants, the surviving spouse, and
legitimate descendants may illegitimate children are left, the ascendants shall be entitled to
exercise the right of one-half of the inheritance, and the other half shall be divided
representation by virtue of Art between the surviving spouse and the illegitimate children so that
992. such widow or widower shall have one-fourth of the estate, and
the illegitimate children the other fourth. (841a)
Art. 1001. Should brothers and sisters or their children survive
SUBSECTION 4. - Surviving Spouse
with the widow or widower, the latter shall be entitled to one-half
of the inheritance and the brothers and sisters or their children to
Art. 995. In the absence of legitimate descendants and ascendants, the other half. (953, 837a)
and illegitimate children and their descendants, whether

TANTOCO 3B Page | 146


Art. 1002. In case of a legal separation, if the surviving spouse gave testate succession. While it may indicate the intent of the law with
cause for the separation, he or she shall not have any of the rights respect to the ideal shares that a child and a spouse should get when
granted in the preceding articles. (n) the concur with each other. It does not fix the amount of shares that
such child and spouse are entitled when intestacy occurs.
In intestacy, if there is only one legitimate child surviving
Rules on the surviving Spouse:
with the spouse, since they share equally, ½ of the estate goes to the
1. The surviving spouse shall get the entire estate if there is the child and the other ½ goes to the surviving spouse Although the law
absence of any DECENDANT (so add na rin here bro and sis) refers to children or descendants, the rule in statutory construction that
o But you have to respect right of brothers and sisters. the plural can be understood to include the singular is applicable in
2. If there are LEGITIMATE children, the surviving spouse gets the this case.
share equivalent to one child.
o But if there is only ONE legitimate child, then they split it If the surviving spouse and 1 legitimate child are life, the
surviving spouse has the same share as that of the child.
3. When does the spouse get half of the estate?
o When she succeeds with legitimate parents or ascendants SUBSECTION 5. - Collateral Relatives
o When she succeeds and there is only ONE legitimate child
o When she succeeds with ILEGITIMATE children Art. 1003. If there are no descendants, ascendants, illegitimate
4. If she survives with legitimate and illegitimate children, she gets children, or a surviving spouse, the collateral relatives shall
the share of a legitimate child. succeed to the entire estate of the deceased in accordance with the
5. If she survives with legitimate ascendants and illegitimate following articles. (946a)
o Ascendants shall get ½ Art. 1004. Should the only survivors be brothers and sisters of the
o Spouse and the IC will get 1/4th each full blood, they shall inherit in equal shares. (947)
6. If she survives with the brothers and sisters or nephews and nieces Art. 1005. Should brothers and sisters survive together with
of the spouse. nephews and nieces, who are the children of the descendant's
o She gets ½ brothers and sisters of the full blood, the former shall inherit per
o Siblings get ½ capita, and the latter per stirpes. (948)
7. If there is legal separation and the SS is the guilty party, she cannot Art. 1006. Should brother and sisters of the full blood survive
succeed. together with brothers and sisters of the half blood, the former
shall be entitled to a share double that of the latter. (949)
Santinllion vs. Miranda Art. 1007. In case brothers and sisters of the half blood, some on
Art 892 falls under the chapter on testamentary succession, 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
while Art 996 comes under intestate succession. Art 892 merely fixes
the legitime of the surviving spouse and the legitime of children in of the property. (950)

TANTOCO 3B Page | 147


Art. 1008. Children of brothers and sisters of the half blood shall o This goes up to the 5th degree
succeed per capita or per stirpes, in accordance with the rules laid
down for the brothers and sisters of the full blood. (915) Ining vs. Vega
Art. 1009. Should there be neither brothers nor sisters nor Having succeeded to the property as heirs of Gregoria and Romana,
children of brothers or sisters, the other collateral relatives shall petitioners and respondents became coowners thereof. As co-owners,
succeed to the estate. they may use the property owned in common, provided they do so in
accordance with the purpose for which it is intended and in such a way
The latter shall succeed without distinction of lines or preference as not to injure the interest of the co-ownership or prevent the other
among them by reason of relationship by the whole blood. (954a) co-owners from using it according to their rights. They have the full
Art. 1010. The right to inherit ab intestato shall not extend beyond ownership of their parts and of the fruits and benefits pertaining
the fifth degree of relationship in the collateral line. (955a) thereto, and may alienate, assign or mortgage them, and even
substitute another person in their enjoyment, except when personal
Rules on Collateral Relatives: rights are involved. Each co-owner may demand at any time the
1. If there are no ascendants or descendants, or a surviving spouse, partition of the thing owned in common, insofar as his share is
the collaterals shall succeed to the entire estate. concerned. Finally, no prescription shall run in favor of one of the
2. Heirs: Brothers and sisters of the full blood – they shall inherit in co-heirs against the others so long as he expressly or impliedly
equal shares recognizes the co-ownership.
3. Heirs: Brothers and Sisters, Nephews and Nieces
o BnS – Per Capita What escaped the trial and appellate courts’ notice, however, is that
o NnN – Per Stripes (representation) while it may be argued that Lucimo Sr. performed acts that may be
4. Heirs: Brothers and Sisters, some full blood some half blood characterized as a repudiation of the co-ownership, the fact is, he is
o The estate shall be divided in the proportion of 2:1. not a coowner of the property. Ineed, he is not an heir of Gregoria; he
5. In case of brothers and sisters of the half-blood some from the is merely Antipolo’s son­inlaw, being married to Antipolo’s daughter
father and some from the mother, all shall inherit in EQUAL Teodora. Under the Family Code, family relations, which is the
shares – WITHOUT distinction as to the origin o the property. primary basis for succession, exclude relations by affinity. Art. 150.
o This means that RESERVA TRONCAL will NOT apply. Family relations include those: (1) Between husband and wife; (2)
o Why?  because property did not go to a reservista. Between parents and children; (3) Among other ascendants and
6. Children of the siblings of half-blood will inherit the same way as descendants; and (4) Among brothers and sisters, whether of the full
children of the whole blood – i.e. #3 or half blood. In point of law, therefore, Lucimo Sr. is not a coowner
7. If there are no brothers or sisters, nephews or nieces, then the other of the property; Teodora is. Consequently, he cannot validly effect a
collateral relatives shall succeed to the estate. repudiation of the co-ownership, which he was never part of. For this
o It will also not matter WON they are full blood or half blood. reason, prescription did not run adversely against Leonardo, and his
Thus there will be NO: right to seek a partition of the property has not been lost.
 Preference among them by reason of blood – i.e. 2:1
 Distinction of lines

TANTOCO 3B Page | 148


SUBSECTION 6. - The State 3. How is the property disposed of?

Art. 1011. In default of persons entitled to succeed in accordance o Pay debts
with the provisions of the preceding Sections, the State shall o Personal Property
inherit the whole estate.(956a)  To the municipality where the deceased last resided in the
Art. 1012. In order that the State may take possession of the
o Real Property
property mentioned in the preceding article, the pertinent
 To the municipalities where they are located
provisions of the Rules of Court must be observed. (958a)
o If the deceased never resided in the Philippines
Art. 1013. After the payment of debts and charges, the personal  The whole estate shall be assigned to wherever they are
property shall be assigned to the municipality or city where the located
deceased last resided in the Philippines, and the real estate to the 4. To whom will the estate benefit?
municipalities or