WILLS AND SUCCESSION against the decedent, arising from contract, express or
implied, whether the same be due, not due, or
CHAPTER 1
General Provisions
Article 774. Succession is a mode of acquisition by
virtue of which the property, rights and obligations to the
extent of the value of the inheritance, of a person are
transmitted through his death to another or others either
by his will or by operation of law. (n)
• Inheritance - all the property, rights, and
obligations of a person which are not extinguished
by death
• Only transmissible rights and obligations pass by
succession
o Rule of thumb: If the right or obligation is
strictly personal, it is intransmissible.
• Liberally construed, money obligations of the
deceased pass to the heirs, to the extent that they
inherit from him.
o HOWEVER, under our current Rules of
Court, money obligations are NOT
transmitted to the heirs NOR paid by them.
The estate pays them.
o It is only what is left after the money debts
are paid that are transmitted to the heirs.
o EFFECT: creditors have to pursue their
claims in the settlement proceedings and
NOT against the heirs.
Union Bank v. Santibañez: Section 5, Rule 86 of the
Rules of Court provides that, “All claims for money
contingent, all claims for funeral expenses for the last
sickness of the decedent, and judgment for money
against the decedent, must be filed within the time
limited in the notice; otherwise they are barred forever,
except that they may be set forth as counterclaims in any
action that the executor or administrator may bring
against the claimants.”
The filing of a money claim against the decedent’s estate
in the probate court is mandatory. As petitioner failed
to file its money claim with the probate court, at most, it
may only go after Edmund as co-maker of the decedent
under the promissory note and continuing guaranty
agreement sought to be enforced.
Q: What if the heirs do not open probate proceedings?
A: Creditors can ask the court to open proceedings and
appoint an administrator.
• GR: Only the payment of money debts has been
affected by the Rules of Court.
o EX: The transmission of other obligations
not, by nature, purely personal follows the
rule laid down in Article 774.
Estate of K.H. Kennedy v. Luzon Surety: While in our
successional system the responsibility of the heirs for the
debts of their decedent cannot exceed the value of the
inheritance they receive from him, the principle remains
intact that these heirs succeed not only to the rights of
BORJA - 3C 2018 - SUCCESSION | ATTY. HOFILEÑA 1
 the deceased but also to his obligations.
The binding effect of contracts upon the heirs is not
altered by the provision in the Rules of Court that money
debts of a deceased must be liquidated before the
residue is distributed among said heirs. Whatever
payment is made from the estate is ultimately a payment
by the heirs, since the amount of the paid claim in fact
diminishes or reduces the shares that the heirs would
have been entitled to receive.
Remember: “Contracts take effect only as between the
parties, their assigns, and heirs, except in the case where
the rights and obligations arising from the contract are
not transmissible (1) by their nature, (2) by stipulation,
or (3) by provision of law.” (Article 1311, Civil Code),
Article 775. In this Title, "decedent" is the general term
applied to the person whose property is transmitted
through succession, whether or not he left a will. If he left
a will, he is also called the testator. (n)
Article 776. The inheritance includes all the property,
rights and obligations of a person which are not
extinguished by his death. (659)
CASES FOR 774-776
Lao Hu Niu v. Collector of Customs: Personal status
cannot pass by succession.
The death of a resident Chinese merchant does not
confer upon his widow and heirs the status of a
merchant, and thus they are not entitled to enter the
Philippines from China by reason of such fact alone.
Fule v. Fule: When (1) the heirs are all of lawful age and
(2) there are no debts existing against the estate, the
heirs may enter upon the administration of said
property immediately.
If they desire to administer it jointly, they may do so. If
they desire to partition it among themselves, they can do
this by mutual agreement. In this scenario, there is no
reason why the estate should be burdened with the cost
and expenses of an administrator. The administrator has
no right to intervene in any way whatsoever in the
division of the estate among the heirs when they are
adults and when there are no debts against the estate.
DKC Holdings v. CA: As a general rule, heirs are bound
by contracts entered into by their predecessors-in-
interest, except when the rights and obligations arising
therefrom are not transmissible by (1) their nature, (2)
stipulation, or (3) provision of law.
Among contracts which are intransmissible are those
which are purely personal, such as in cases of
partnerships and agency. Where acts stipulated in a
contract require the special knowledge, genius, skill,
taste, ability, experience, judgment, or other personal
qualification of one or both parties, the agreement is of a
personal nature and terminates on the death of the party
who is required to render such service.
On the other hand, the death of a party does not excuse
BORJA - 3C 2018 - SUCCESSION | ATTY. HOFILEÑA 2
nonperformance of a contract which involves a property
right, and the rights and obligations thereunder pass to
the personal representatives of the deceased.
In this case, it is futile for Victor (heir) to insist that he is
not a party to the Contract of Lease entered into by
Encarnacion (decedent) and DKC Holdings. Being an
heir of Encarnacion, there is privity of interest between
him and his deceased mother.
Heirs of Magdaleno Ypon v. Ricaforte: The
determination of who are the decedent’s lawful heirs
must be made in the proper special proceeding for such
purpose, and not in an ordinary action for cancellation
of title and reconveyance. Matters relation to the rights
of filiation and heirship must be ventilated in the proper
probate court in a special proceeding instituted precisely
for the purpose of determining such rights.
Article 777. The rights to the succession are transmitted
from the moment of the death of the decedent. (657a)
• In reality, the right to the succession is not
transmitted; it becomes vested. To says it vests
upon the death implies that before the decedent’s
death, the right is merely inchoate.
• This article merely specifies the time of vesting of
the successional right. It presumes that the person
succeeding: (1) has a right to succeed by legitime
(compulsory), will (testamentary), or by law
(intestate), (2) legal capacity to succeed, and (3)
accepts the successional portion.
• What precisely is transmitted: the net estate
(assets remaining after the payment of unpaid
money debts and of the expenses of
administration) and all the transmissible non-
monetary obligations.
Uson v. Del Rosario: The law in force at the time of the
decedent’s death will determine who the heirs should be.
Article 2253 of the Civil Code provides that rights which
are declared for the first time shall have retroactive
effect, even though the event which gave rise to them
may have occurred under the former legislation.
HOWEVER, this is so only when the new rights do not
prejudice any vested or acquired right of the same
origin.The right of ownership of Maria Uson over the
lands became vested in 1945, upon the death of her late
husband, and this is so because of the imperative
provision of the law which commands that rights to
succession are transmitted at the moment of death.
De Borja v. Vda. De Borja: Ownership passes to the heir
at the very moment of death, who therefore, from that
moment acquires the right to dispose of his share.
As a hereditary share in a decedent’s estate is
transmitted or vested immediately at the moment of
death, there is no legal bar to the successor disposing of
his/her hereditary share immediate after such death,
even I the actual extent of such share is not determined
until the subsequent liquidation of the estate. Of course,
the effect of such alienation is to be deemed limited to
what is ultimately adjudicated to the vendor heir.
BORJA - 3C 2018 - SUCCESSION | ATTY. HOFILEÑA 3

Bonilla v. Barcena: The heirs have the right to be
substituted for the deceased as party in an action that
survives.
While it is true that a person who is dead cannot sue in
court, yet he/she can be substituted by his/her heirs in
pursuing the case up to its completion.
The moment of death is the determining factor when the
heirs acquire a definite right to the inheritance whether
such right be pure or contingent. The right of the heirs to
the property of the deceased vests in them even before
judicial declaration of their being heirs in the testate or
intestate proceedings. When Fortunata Barcena died,
her claim or right to the parcels of land in litigation was
not extinguished by her death but was transmitted to her
heirs upon her death. Her heirs have thus acquired
interest in the properties in litigation and became
parties in interest in the case.
When the complaint was filed. Fortunata was still alive
and therefore, the court had acquired jurisdiction over
her person. If thereafter she died, the Rules of Court
prescribe the procedure whereby a party who died
during the pendency of the proceeding can be
substituted.
Article 778. Succession may be:
(1) Testamentary;
(2) Legal or intestate; or
(3) Mixed. (n)
Article 779. Testamentary succession is that which
results from the designation of an heir, made in a will
executed in the form prescribed by law. (n)
Article 780. Mixed succession is that effected partly by
will and partly by operation of law. (n)
• Different kinds of succession:
1. Compulsory - succession to the legitime
2. Testamentary - succession by will
3. Intestate - succession in default of a will
4. Mixed - combination of any two or all of the
first three
• Until the effectivity of the Family Codem there was
one exception case of succession by contract:
donation propter nuptias of future property (made
through marriage settlements)
o This special kind of succession has been
eliminated by Article 84(2) of the Family
Code, which provides that any donation of
future property between the affianced
couple is to be governed by the rules of
testamentary succession and the forms of
wills.
o The donation merely becomes an ordinary
case of testamentary succession.
Article 781. The inheritance of a person includes not
only the property and the transmissible rights and
obligations existing at the time of his death, but also
BORJA - 3C 2018 - SUCCESSION | ATTY. HOFILEÑA 4
those which have accrued thereto since the opening of the
succession. (n)
• Balane: erroneous provision. Whatever accrues
thereto after the decedent’s death (which is when
the succession open) belongs to the heir, not by
virtue of succession, but by virtue of ownership.
o To say that accruals to the inheritance after
the decedent’s death are included in the
inheritance is to negate the principle that
transmission takes place precisely at the
moment of death.
Balus v. Balus: The rights to a person’s succession are
transmitted from the moment of his death. The
inheritance of a person consists of the property and
transmissible rights and obligations existing at the time
of his death, as well as those which have accrued thereto
since the opening of the succession. Here, since Rufo
lost ownership of the subject property during his
lifetime, it only follows that at the time of his death, the
land no longer formed part of his estate to which his
heirs may lay claim. In other words, petition and
respondents never inherited the lot from their father.
Article 782. An heir is a person called to the succession
either by the provision of a will or by operation of law.
Devisees and legatees are persons to whom gifts of real
and personal property are respectively given by virtue of a
will. (n)
• The distinction between heir and devisee/legatee
becomes relevant in cases of preterition, where the
institution of heir is annulled while the institution
of devisees/legatees is effective to the extend that
the legitimes are not impaired.
• Heir - one who succeeds to the whole or an aliquot
part of the inheritance
• Devisee/legatee - one who succeeds to definite,
specific, and individual properties
CASES FOR 777-782
Calalang-Parulan v. Calalang-Garcia: Successional rights
are vested only at the time of death.
Here, since decedent Pedro Calalang acquired the
subject land after the dissolution of his first marriage,
but before the celebration of the second marriage, the
subject land formed part of Pedro’s exclusive property. It
was excluded from the conjugal partnership of gains of
the second marriage. As sole and exclusive owner, Pedro
had the right to convey his property in favor of Nora
Calalang-Parulan.
It is only upon the death of Pedro that his heirs acquired
their respective inheritances, entitling them to their pro
indiviso shares to his whole estate. At the time of the
sale of the land, the rights to succession were not yet
bestowed upon Pedro’s heirs. Without clear and
convincing proof that the sale was fraudulent or
unsupported by valuable consideration, respondents
have no right to question the sale on the ground that
Pedro deprived him of their shares.
BORJA - 3C 2018 - SUCCESSION | ATTY. HOFILEÑA 5
 CHAPTER 2 a. Requirements of form depend on
Testamentary Succession whether the will is attested or
holographic
SECTION 1 4. Revocable or ambulatory
Wills 5. Mortis causa
6. Individual
SUBSECTION 1. Wills in General a. Joint wills are prohibited
7. Executed with animus testandi
Article 783. A will is an act whereby a person is a. An instrument which merely expresses a
permitted, with the formalities prescribed by law, to last wish as a thought or advice, but does
control to a certain degree the disposition of this estate, not contain disposition of property and
to take effect after his death. (667a) was not executed with animus testandi
cannot legally be considered a will.
• ACT: the definition of a will as an act is too broad. 8. Executed with testamentary capacity
o Should be delimited as instrument or 9. Unilateral
document 10. Dispositive of property
o Noncupative, or oral, wills are NOT 11. Statutory
recognized
• PERMITTED: will making is purely statutory Seangio v. Reyes: The document, although it contains
• FORMALITIES PRESCRIBED BY LAW: the only a clause of disinheritance, conforms to the
requirement of form prescribed respectively for formalities of a holographic will. While it does not make
attested and holographic wills an affirmative disposition of property, the disinheritance
• CONTROL TO A CERTAIN DEGREE: the of the son is an act of disposition in itself. In other
testator’s power of testamentary disposition is words, the disinheritance results in the disposition of the
limited by the rules on legitime property of the testator in favor of those who would
succeed in the absence of the disinherited heir.
• AFTER HIS DEATH: testamentary succession, like
all other kinds of succession, is mortis causa
Article 784. The making of a will is a strictly personal
• Characteristics of wills:
act; it cannot be left in whole or in part to the discretion
1. Purely personal
of a third person, or accomplished through the
2. Free and intelligent
instrumentality of an agent or attorney. (670a)
a. Should not be vitiated
3. Solemn and formal

BORJA - 3C 2018 - SUCCESSION | ATTY. HOFILEÑA 6

 • GR: it is the exercise of the disposition that cannot
be delegated.
o EX: mechanical aspects, such as typing, do
not fall within this prohibition.
Article 785. The duration or efficacy of the designation
of heirs, devisees or legatees, or the determination of the
portions which they are to take, when referred to by
name, cannot be left to the discretion of a third person.
(670a)
• The following constitute the essence of will
making, and are thus non-delegable:
1. Designation of heirs, devisees, or legatees
2. Duration or efficacy of such designation
(including things such as conditions, terms,
substitutions)
3. Determination of the portions they are to
receive.
4. NOTE: class institutions and those falling
under Article 786 do not have to specify the
portion going to the several recipients.
Article 786. The testator may entrust to a third person
the distribution of specific property or sums of money
that he may leave in general to specified classes or causes,
and also the designation of the persons, institutions or
establishments to which such property or sums are to be
given or applied. (671a)
• This article is the exception to the rule of -non-
delegability of will-making.
• Under this provision, two things must be
determined by the testator:
1. Property or amount of money to be given, and
2. Class or cause to be benefited
• Two things may be delegated by the testator:
1. Designation of persons, institutions, or
establishments WITHIN the class/cause
2. Manner of distribution
Article 787. The testator may not make a testamentary
disposition in such manner that another person has to
determine whether or not it is to be operative. (n)
• What this article prohibits is the designation to a
third person of the power to decide whether a
disposition should take effect or not.
o This should not interpreted as to make it
clash with the principle that an heir is free
to accept or reject the testamentary
disposition
Article 788. If a testamentary disposition admits of
different interpretations, in case of doubt, that
interpretation by which the disposition is to be operative
shall be preferred. (n)
Article 789. When there is an imperfect description, or
when no person or property exactly answers the
description, mistakes and omissions must be corrected, if
the error appears from the context of the will or from
extrinsic evidence, excluding the oral declarations of the
testator as to his intention; and when an uncertainty
arises upon the face of the will, as to the application of
BORJA - 3C 2018 - SUCCESSION | ATTY. HOFILEÑA 7
any of its provisions, the testator's intention is to be
ascertained from the words of the will, taking into
consideration the circumstances under which it was
made, excluding such oral declarations. (n)
Article 790. The words of a will are to be taken in their
ordinary and grammatical sense, unless a clear intention
to use them in another sense can be gathered, and that
other can be ascertained.
Technical words in a will are to be taken in their technical
sense, unless the context clearly indicates a contrary
intention, or unless it satisfactorily appears that the will
was drawn solely by the testator, and that he was
unacquainted with such technical sense. (675a)
Article 791. The words of a will are to receive an
interpretation which will give to every expression some
effect, rather than one which will render any of the
expressions inoperative; and of two modes of interpreting
a will, that is to be preferred which will prevent intestacy.
(n)
Article 792. The invalidity of one of several dispositions
contained in a will does not result in the invalidity of the
other dispositions, unless it is to be presumed that the
testator would not have made such other dispositions if
the first invalid disposition had not been made. (n)
Article 793. Property acquired after the making of a will
shall only pass thereby, as if the testator had possessed it
at the time of making the will, should it expressly appear
by the will that such was his intention. (n)
• Problems spring from the fact that this article
makes the will speak as of the time it is made,
rather than at the time of the decededent’s death
(which is more logicial, because that is when the
will takes effect).
• Article 793 is therefore an exception to the concept
of succession as linked to death and rendered
legally effective by death.
Article 794. Every devise or legacy shall cover all the
interest which the testator could device or bequeath in
the property disposed of, unless it clearly appears from
the will that he intended to convey a less interest. (n)
• GR: in a legacy or devise, the testator gives exactly
the interest he has in a thing
o EX: he can give a less interest (Art. 794) or
a greater interest (Art. 929) than he has.
Article 795. The validity of a will as to its form depends
upon the observance of the law in force at the time it is
made. (n)
• Extrinsic validity - refers to the requirement of
form (formal validity)
BORJA - 3C 2018 - SUCCESSION | ATTY. HOFILEÑA 8
 Filipinos Foreigners not translated literally, the Court finds that it conforms
Governing law Law in force when Law in force when with the idiomatic use of the Tgalog language.
as to time the will was the will was
executed executed In re will of Riosa: In the Philippines, the law existing at
Governing law 1. Law of 1. Law of the date of the execution of a will is controlling.
as to place citizenship citizenship
2. Law of domicile 2. Law of domicile Here, a will was executed on January 1908, prior to the
3. Law of 3. Law of enactment of Act No. 2645 on July 1, 1916, which added
residence residence requirements to the valid execution of a will, to which
4. Law of place of 4. Law of place of the will in question did not comply. Although the
execution, or execution, or testator died on April 17, 1917, the validity of the will is
5. Philippine law 5. Philippine law to be tested under the laws existing at the time of its
execution.

Vda. De Enriquez v. Abadia: Reaffirmed In re will of

• Intrinsic validity - refers to the substance of the Riosa. The validity of the will as to its form depends
provisions (substantive validity) upon the observance of the law in force at the time it is
made, not the law in force at the time of the testator’s
Filipinos Foreigners death.
Governing law Law as of the time Depends on their
as to time of death personal law The rationale is that, although the will operates upon
Governing law Philippine law Their national law and after the testator’s death, the testator’s wishes about
as to place the disposition of his estate among his heirs ais given
solemn expression at the time the will is executed.
CASES FOR 778-795
Here, the testator executed a holographic will in 1923.
Dionisio v. Dionisio: A translation made in accordance Although a holographic will may be probated under the
with the idiomatic usage of the language from which is it New Civil Code, holographic wills were not permitted at
made will prevail over a literal translation which, while the time of its execution. Therefore, it should be denied
word for word correct, is not idiomatic. probate.

In this case, a will executed in the Tagalog language was

translated into Spanish by a court interpreter. Although

BORJA - 3C 2018 - SUCCESSION | ATTY. HOFILEÑA 9

 SUBSECTION 2. Testamentary Capacity and
Intent
Article 796. All persons who are not expressly
prohibited by law may make a will. (662)
Article 797. Persons of either sex under eighteen years
of age cannot make a will. (n)
Article 798. In order to make a will it is essential that
the testator be of sound mind at the time of its execution.
(n)
Article 799. To be of sound mind, it is not necessary
that the testator be in full possession of all his reasoning
faculties, or that his mind be wholly unbroken,
unimpaired, or unshattered by disease, injury or other
cause.
It shall be sufficient if the testator was able at the time of
making the will to know the nature of the estate to be
disposed of, the proper objects of his bounty, and the
character of the testamentary act. (n)
Article 800. The law presumes that every person is of
sound mind, in the absence of proof to the contrary.
The burden of proof that the testator was not of sound
mind at the time of making his dispositions is on the
person who opposes the probate of the will; but if the
testator, one month, or less, before making his will was
publicly known to be insane, the person who maintains
the validity of the will must prove that the testator made
it during a lucid interval. (n)
Article 801. Supervening incapacity does not invalidate
an effective will, nor is the will of an incapable validated
by the supervening of capacity. (n)
• Testamentary capacity - the legal capacity to make
a will
o Who has testamentary capacity: all natural
persons, unless disqualified by law
§ Juridical persons are not granted
testamentary capacity
o Who are disqualified by law: (1) those under
18, and (2) those of unsound mind
• Soundness of mind
o NEGATIVELY DEFINED
§ Not necessary that testator be in full
possession of reasoning faculties
§ Not necessary that testator’s mind be
wholly unbroken, unimpaired,
unshattered by disease, injury, or
other cause
o POSITIVELY DEFINED - Ability to know
the following:
§ Nature of estate to be disposed of,
§ Proper objects of one’s bounty, and
§ Character of the testamentary act
o As long as the testator, at the time he made
the will, was capable of perceiving the three
things above, he ahs testamentary capacity,
whatever else he may be medically.
BORJA - 3C 2018 - SUCCESSION | ATTY. HOFILEÑA 10
 §Otherwise, he has no testamentary
capacity, whatever else he may be
medically.
§ A weak or feebleminded person may
make a valid will, provided he has
understanding and memory
sufficient to enable him to known
what he is about to do, and how or to
whom he is disposing his property
(Ortega v. Valmonte)
• GR: rebuttable presumption of sanity
EX: two rebuttable presumptions (NOT
CONCLUSIVE) of insanity:
1. When the testator, one month or less,
before the execution of the will was
publicly known to be insane
2. When the testator executed the will
after being placed under guardianship
or ordered committed, in either case,
for insanity, and before said order has
been lifted
Article 802. A married woman may make a will without
the consent of her husband, and without the authority of
the court. (n)
Article 803. A married woman may dispose by will of all
her separate property as well as her share of the conjugal
partnership or absolute community property. (n)
CASES FOR 796-803
Bugnao v. Ubag: To constitute a sound and disposing
mind, it is not necessary that the mind should be
unbroken or unimpaired, unshattered by disease or
otherwise. Sound mind does not mean a perfectly
balanced mind. The question of soundness is one of
degree. A defect must really disqualify the testator from
known or appreciating the nature, effects, or
consequences of the act she is engaged in.
Testamentary capacity is the capacity to comprehend the
nature of the transaction in which the testator is
engaged at the time, to recollect the property to be
disposed of and the persons who would naturally be
supposed to have claims upon the testator, and
comprehend the manner in which the instrument will
distribute his property among the objects of his bounty.
Galvez. Galvez: In order to hold Victor Galvez, on
account of a serious sickness (cholera), was not of sound
mind and did not have full knowledge of his acts, and
therefore was incapable of executing a will, it is
necessary that the proceedings disclose conclusive proof
of his mental incapacity or lack of reason and judgment
at the time he executed his will.
It may be true that cholera patients do, in majority of
cases, become incapacitated in the manner described by
the witnesses; but there may be exceptions to the general
rule. Here, to judge from the testimony of witnesses who
saw and communicated with Victor Galvez at the time he
executed his will, his physical and mental condition
BORJA - 3C 2018 - SUCCESSION | ATTY. HOFILEÑA 11
must have been an exception, since he demonstrated
that he had sufficient energy and clear intelligence to
execute his will.
Hernaez v. Hernaez: Mental soundness is always
presumed with respet to a person who has not been
previously incapacitated, until the contrary is
demonstrated and proven by the proper person and the
correctness of this choice is beyond doubt.
The fact that that an old woman (an octogenarian) gives
contradictory orders, that she walks in a stooping
position, that she has fainting fits, are circumstances
which even if fully demonstrated by proof could not lead
the court to establish a conclusion against her mental
soundness.
Bagtas v. Paguio: The presumption of law is in favor of
the testator’s mental capacity, and the burden is upon
the contestants of the will to prove the lack of
testamentary capacity.
A testator may be afflicted with a variety of mental
weaknesses, disorders, or peculiarities and still be
capable in law of executing a valid will.
Here, Pioquinto Paguio (testator) suffered from a
paralysis of the left side of his body 14-15 years prior to
his death. A few years prior to his death, his hearing
became impaired and he lost the power of speech.
Through the medium of signs, he was able to indicate his
wishes to his family. The striking change in the physical
and mental vigor of the testator during the last years of
his life may have led some to doubt his mental capacity
to make a will. Yet, based on the record, Paguio seemed
to have comprehended clearly the act of executing a will
and disposing property to heirs.
SUBSECTION 3. Forms of Wills
Article 804. Every will must be in writing and executed
in a language or dialect known to the testator. (n)
• This article lays down common requirements for
attested and holographic wills:
1. In writing, and
2. In a language or dialect known to the testator
• Art. 805-808: special requirements for attested
• Art. 810-814: special requirements for holographic
Suroza v. Honrado: Every will must be executed in a
language or dialect known to the testator. Otherwise, it
is void for violating the mandatory provision of Art. 804.
• Neither the will nor the attestation clause need
state compliance with this requirement. This can
be proved by extrinsic evidence.
Ahangan v. Abangan: Presumption of compliance - it
may sometimes be presumed that the testator knew the
language in which the will was written. In order for the
presumption to apply, the following must appear:
1. Will must be in a language or dialect generally
spoken in the place of execution, and
2. Testator must be a native or resident of said
locality
Article 805. Every will, other than a holographic will,
must be subscribed at the end thereof by the testator
BORJA - 3C 2018 - SUCCESSION | ATTY. HOFILEÑA 12
himself or by the testator's name written by some other
person in his presence, and by his express direction, and
attested and subscribed by three or more credible
witnesses in the presence of the testator and of one
another.
The testator or the person requested by him to write his
name and the instrumental witnesses of the will, shall
also sign, as aforesaid, each and every page thereof,
except the last, on the left margin, and all the pages shall
be numbered correlatively in letters placed on the upper
part of each page.
The attestation shall state the number of pages used upon
which the will is written, and the fact that the testator
signed the will and every page thereof, or caused some
other person to write his name, under his express
direction, in the presence of the instrumental witnesses,
and that the latter witnessed and signed the will and all
the pages thereof in the presence of the testator and of
one another.
If the attestation clause is in a language not known to the
witnesses, it shall be interpreted to them. (n)
Article 806. Every will must be acknowledged before a
notary public by the testator and the witnesses. The
notary public shall not be required to retain a copy of the
will, or file another with the office of the Clerk of
Court.(n)
• Special requirement for attested wills:
1. Subscribed by the testator/his agent in his
presence and by his express direction at the
end thereof, in the presence of the witnesses
2. Attested and subscribed by at least 3 credible
witnesses in the presence of the testator and of
each other
3. The testator/his agent must sign every page,
EXCEPT the last, on the left margin in the
presence of the witnesses
4. The witnesses must sign every page, EXCEPT
the last, on the left margin in the presence of
the testator and of one another.
5. All pages numbered correlatively in letters on
the upper part of each page
6. Attestation clause, stating:
a. Number of pages of the will,
b. Fact that the testator/his agent under
his express direction signed the will and
every page thereof, in the presence of
the witnesses, and
c. Fact that the witnesses witnessed and
signed the will and every page thereof in
the presence of the testator and each
other
NOTE: attestation clause is not required
to state that the agent signed in the
testator’s presence.
7. Acknowledgement before a notary public
• No requirement that an attested will should be
dated (unlike a holographic will)
o Thus, a variance between the indicated
dates of execution and acknowledgement
does not in itself invalidate the will (Ortega
v. Valmonte)
BORJA - 3C 2018 - SUCCESSION | ATTY. HOFILEÑA 13
REQ #1: Subscribed by the testator/his agent in
his presence and by his express direction at the
end thereof, in the presence of the witnesses
Payad v. Tolentino: A statute requiring a will to be
‘signed’ is satisfied if the signature is made by the
testator’s thumb mark. Here, it was not necessary that
the attestation clause in question should state that the
testatrix requested Atty. Almario to sign her name,
inasmuch as the testatrix signed the will (by placing her
thumb mark) in question in accordance with the law.
Matias v. Salud: The legal requisite that the will should
be signed by the testator is satisfied by a thumbprint or
other mark affixed by him, and that where such mark is
affixed by the decedent, it is unnecessary to state in the
attestation clause that another person wrote the
testator’s name at his request. While in some cases, the
signing by mark was described in the will or in the
attestation clause, it does not appear that the Court ever
held that the absence of such description is a fatal defect.
Where a testator employs an unfamiliar way of signing,
and both the attestation clause and the will are silent on
the matter, such silence is a factor to be considered
against the authenticity of the testament; but the failure
to describe the unusual signature by itself is not
sufficient to refuse probate when the evidence for the
proponent fully satisfies the court that the will was
executed and witnessed as required by law.
• Based on the cases above, the testator’s
thumbprint is always a valid and sufficient
signature for the purpose of complying with the
requirement of the article.
• While in most of the cases, the testator was
suffering from some infirmity which made the
writingof the testator’s name difficult or
impossible, there seems to be no basis for limiting
the validity of thumbprints only to cases of illness
or infirmity.
Garcia v. Lacuesta: We are not prepared to liken the
mere sign of a cross to a thumbmark, and the reason is
obvious. The cross cannot and does not have the
trustworthiness of a thumbmark.
• GR: A sign of the cross placed by the testator does
not comply with the statutory requirement of
signature
o EX: it is the usual manner of signature or
one of his usual styles of signing
• Two requisites for signing by an agent:
1. Must sign in testator’s presence, and
2. By his express direction.
Barut v. Cabacungan: It is immaterial who writes the
name of the testatrix provided it is written at her request
and in her presence, and in the presence of all the
witnesses to the execution of the will.
With respect to the validity of the will, it is unimportant
whether the person who writes the name of the testatrix
signs his own or not. The important thing is that it
clearly appears that the name of the testatrix was signed
at her express direction in the presence of 3 witnesses
BORJA - 3C 2018 - SUCCESSION | ATTY. HOFILEÑA 14
and that they attested and subscribed it in her presence
and in the presence of each other. It may be wise as a
practical matter that the one who signs the testator’s
name signs also his own, but that is not essential to the
validity of the will. Whether one person or another
signed the name of the testatrix in this case is absolutely
unimportant so far as the validity of her will is
concerned.
The main thing to be established in the execution of the
will is the signature of the testator. If the signature is
proved, whether it be written by himself or by another at
his request, it is valid, and the fact of such signature can
be proved as perfectly when the person signing for the
principal omits to sign his own name as it can when he
actually signs his own name.
• The essential thing, for validity, is that the agent
write the testator’s name, nothing more.
• May the agent be one of the attesting witnesses?
o If there are more than 3 witnesses - Yes.
o If there are only 3 witnesses - Uncertain.
• “signing at the end”
o If the will contains only dispositive
provisions, there will be no ambiguity as to
where the end of the will is.
o If the will contains non-dispositive
paragraphs after the testamentary
dispositions one can refer to 2 kinds of end:
1. Physical end - where the writing stops
2. Logical end - where the last
testamentary disposition ends
o Signing at the physical end is always
permissible, but equally permissible is
signing at the logical end (since the non-
dispositive portion are not essential to the
will)
o Signing BEFORE the end invalidates not
only the dispositions that come after, but
the ENTIRE WILL (because one of the
statutory requirement would not have been
complied with)
Nera v. Rimando: The position of the parties with
relation to each other at the moment of the subscription
of each signature must be such that they may see each
other if they choose to do so.
The question whether the testator and the subscribing
witnesses to an alleged will sign the instrument in the
presence of each other does not depend upon proof of
the fact that their eyes were actually cast upon the paper
at the moment of its subscription by each of them, but
that at that moment, existing conditions and their
position with relation to each other were such that by
merely casting the eyes in the proper direction they
could have seen each other sign.
Actual seeing is not required, but the ability to see each
other (i.e., the testator and the witnesses) “by merely
casting their eyes in the proper direction.”
REQ #2: Attested and subscribed by at least 3
credible witnesses in the presence of the testator
and of each other
BORJA - 3C 2018 - SUCCESSION | ATTY. HOFILEÑA 15
 • Attesting - act of witnessing
• Subscribing - act of signing their names in the
proper places of the will
• Does Article 805 require the witnesses to sign at
the end of the will?
o Based on Taboada v. Rosal, though literally
and ideally, the witnesses wshould sign at
the end of the will, failure in this regard
may be overlooked.
REQ #3: The testator/his agent must sign every
page, EXCEPT the last, on the left margin in the
presence of the witnesses
• Last page need not be signed by the testator on the
margin because, being the page where the end of
the will is, it already contains the testator’s
signature.
• Mandatory and directory parts:
o Mandatory: signing on every page in the
witnesses’ presence
o Directory: the place of the signing (i.e., left
margin; the signature can be affixed
anywhere on the page)
• If the entire document consists of only 2 sheets,
the first containing the will and the second the
attestation clause, there need not be any marginal
signature at all.
Icasiano v. Icasiano: The inadvertent failure of one
witness to affix his signature to one page of a testament,
due to the simultaneous lifting of 2 pages in the course
of signing, is not per se sufficient to justify denial of
probate.
Impossibility of substitution of this page is assured not
only by the fact that the testatrix and 2 other witnesses
did sign the defective page, but also by its bearing the
coincident imprint of the seal of the notary public before
whom the testament was ratified by testatrix and all 3
witnesses.
Here, the failure of the witness to sign page 3 was
entirely through pure oversight, as shown by his own
testimony and the duplicate copy of the will, which bears
a complete set of signature in every page.
BALANE: the Icasiano ruling cannot, and shoult not, be
taken as a departure from the rule that the will should be
signed by the witnesses on every page. The carbon
duplicate was regular in all respects. Should the first
copy have been disregarded and the carbon duplicate
alone considered? In any event, the cavalier disregard of
the formal requirement of wills, in reliance on Icasiano,
is not recommended.
REQ #4: The witnesses must sign every page,
EXCEPT the last, on the left margin in the
presence of the testator and of one another.
• GR: Order of signing, insofar as all the signing of
this article are concerned, is immaterial provided
everything is done in a single transaction.
o EX: If the affixation of the signatures is
done in several transactions, then it is
BORJA - 3C 2018 - SUCCESSION | ATTY. HOFILEÑA 16
 required for validity that the testator affix
his signature ahead of the witnesses.
REQ #5: All pages numbered correlatively in
letters on the upper part of each page
• Mandatory part: pagination by means of a
conventional system (purpose: prevent insertion
or removal of pages)
• Directory part: pagination in letters on the upper
part of each page
REQ #6: Attestation clause
• Attestation clause is the affair of the witnesses,
therefore, it need not be signed by the testator.
• Witnesses must sign at the bottom of the
attestation clause.
Cagro v. Cagro: The attestation clause is “a
memorandum of the facts attending the execution of the
will” required by law to be made by the attesting
witnesses, and it must necessarily bear the signatures.
An unsigned attestation clause cannot be considered an
act of the witnesses, since the omission of their
signatures at the bottom thereof negatives their
participation [even if the page containing the same is
signed by the witnesses on the left-hand margin.
Otherwise, it would be easy to add such clause to a will
on a subsequent occasion and in the absence of the
testator/any of the witnesses.
• The fact that the attestation clause was written on
a separate page has been held to be a matter of
“minor importance” and apparently will not affect
the validity of the will. (Villaflor v. Tobias)
• An attestation clause is mandatory for attested
wills. IT is separate and distinct from the
acknowledgment clause.
o The two CANNOT be merged.
REQ #7: acknowledgement before a notary public
• Acknowledgment - act of one who has executed a
deed in going before some competent officer or
court and declaring it to be his act or deed.
Javellana v. Ledesma: The certification of
acknowledgment need not be signed by the notary in the
presence of the testator and the witnesses. Neither does
Article 806 require that the testator and the witnesses
must acknowledge in one another’s presence.
Cruz v. Villasor: The notary public cannot be counted as
one of the attesting witnesses. Reason: he cannot
acknowledge before himself his having signed the will.
• Notary public must be duly commissioned for the
locality where the acknowledgment is made.
o Otherwise, the notarization—and the will—
will be void.
• Affixing of documentary stamp is not required for
validity.
BORJA - 3C 2018 - SUCCESSION | ATTY. HOFILEÑA 17
 CASES FOR 804-806
Taboada v. Rosal: Under Article 805, the will must be
subscribed at its end by the testator himself, or by the
testator’s name written by another person in his
presented, and by his express direction, and attested and
subscribed by 3 or more credible witnesses in the
presence of the testator and of one another.
FIRST: While perfection in the drafting of a will may be
desirable, unsubstantial departure from the usual forms
should be ignored, especially where the authenticity of
the will is not assailed.
Here, the will is composed of two pages. The first page
contains the testamentary dispositions, signed at the
bottom by the testatrix alone, and signed at the left hand
margin by the 3 witnesses. The second page contains the
attestation clause and acknowledgement, signed at the
end of the attestation clause by the 3 witnesses, and at
the left hand margin by the testatrix. Contrary to
Respondent’s allegation, the instrumental witnesses’
signature on the first page did not need to be at the
bottom as well. Their signature on the left margin
attested not only to the genuineness of the testatrix’
signature, but also the due execution of the will. Thus,
the objects of attestation and of subscription were fully
satisfied.
SECOND: Following Singson v. Florentino, the
attestation clause must contain a statement of the
number of sheets or pages composing the will, and that
if this is missing, it will have invalidate the will, unless
the deficiency can be supplied, not by evidence aliunde,
but by an examination of the will itself. In Singson, the
last part of the body of the will contains a statement that
it is composed of 8 pages, which is in substantial
compliance with the law.
Here, the attestation clause failed to state the number of
pages used. This would have been a fatal defect were it
not for the fact that it is discernible from the entire will
that it is really and actually composed of only 2 pages
duly signed by the testatrix and witnesses. The first page
contains the entire testamentary dispositions, signed by
the testatrix and witnesses. The other page, marked as
“pagina dos” comprises the attestation clause and the
acknowledgement. The acknowledgment itself states
that “This Last Will consists of 2 pages, including this
page.”
Azuela v. CA: Compare this with Taboada. Both cases
involve a will of only 2 pages.
FIRST: A will whose attestation clause does not contain
the number of pages on which the will is written is
fatally defective.
Unlike in Singson v Florentino and Taboada v. Rosal,
the will in this case totally fails to state the number of
pages on which the will was written. Such an omission
which cannot be supplied, except by evidence aliunde,
would result in the invalidation of the attestation clause
and ultimately, of the will itself.
SECOND: A will whose attestation clause is not signed
BORJA - 3C 2018 - SUCCESSION | ATTY. HOFILEÑA 18
by the instrumental witnesses is fatally defective.
The signature on the left-hand margin of every page
signify, among others, that the witnesses are aware that
the page they are signing forms part of the will. The
signatures to the attestation clause establish that the
witnesses are referring to the statements contained in
the attestation clause itself. Indeed, the attestation
clause is separate and apart from the disposition of the
will. An unsigned attestation clause results in an
unattested will.
Here, the three witnesses affixed their signature on the
left-hand margin of both pages of the will, but not at the
bottom of the attestation clause. Such constitutes a fatal
defect.
THIRD: A will which does not contain an
acknowledgment, but a mere jurat, is fatally defecteive.
Guerrero v. Bihis: Under the Notarial Law, no notary
shall possess authority to do any notarial act beyond the
limits of his jurisdiction. Outside the place of his
commission, he is bereft of power to perform any
notarial act.
Here, since Atty. Directo was not a commissioned notary
public for and in Quezon City, he lacked authority to
take the acknowledgement of the testatrix and the
witnesses. In effect, testator’s last will was not
acknowledged as required by law, and must be denied
probate.
Samaniego-Celada v. Abena: Anent the oppositors’
submission that the will is fatally defective for the reason
that its attestation clause states that the will is composed
of 3 pages while in fact, it contains only 2 pages because
the attestation is not part of the notarial will, is
inaccurate.
While it is true that the attestation clause is not accurate,
the error in the number of pages of the will as stated in
the attestation clause is not material to invalidate the
will. The will is consecutively lettered with pages A, B,
and C, which is a sufficient safeguard from the
possibility of an omission of some of the pages. The
error must have been brought about by the honest belief
that the will is the whole instrument consisting of 3
pages, inclusive of the attestation clause and the
acknowledgment. This position is in consonance with
the doctrine of liberal interpretation under Article 809.
Baltazar v. Laxa: FIRST, due execution of the will or its
extrinsic validity pertains to whether the testator, being
of sound mind, freely executed the will in accordance
with the formalities prescribed by law.
Here, the testatrix signed on all 4 pages—at the bottom
of page 4, and at the left-hand margin of page 1, 2, and 4.
This is faithful compliance with the law. (SHUR BA???
Seems like there’s a huge possibility that page 3
was merely inserted, but ok we follow the SC.)
SECOND: the state of being forgetful does not make a
person mentally unsound as to render him unfit to
execute a will. Forgetfulness is not equivalent to being of
BORJA - 3C 2018 - SUCCESSION | ATTY. HOFILEÑA 19
 unsound mind. A testator is presumed to be of sound
mind at the time of the execution of the will, and the
burden to prove otherwise lies on the oppositor. Here,
there is no substantial evidence that would show that the
testator was of unsound mind at the time of the
execution of the will.
Article 807. If the testator be deaf, or a deaf-mute, he
must personally read the will, if able to do so; otherwise,
he shall designate two persons to read it and
communicate to him, in some practicable manner, the
contents thereof. (n)
Article 808. If the testator is blind, the will shall be read
to him twice; once, by one of the subscribing witnesses,
and again, by the notary public before whom the will is
acknowledged. (n)
Garcia v. Vasquez: Article 808 is mandatory.
The rationale behind the requirement of reading the will
to 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 wishes.
That the aim of the law is to insure that the dispositions
of the will are properly communicated to and
understood by the handicapped testator, thus making
them truly reflective of his desire, is evidenced by the
requirement that the will should be read to the latter,
not only once, but twice, by two different persons, and
that the witnesses have to act within the range of the
testator was of unsound mind at the time of the will’s
execution.
Alvarado v. Gaviola, Jr.: Article 808 applies not only to
blind testators but also to those who, for one reason or
another, are “incapable of reading their will.” (Here,
testator was suffering from glaucoma at the time he
executed his will.)
Article 808 requires that in case of testators like the
decedent in this case, the will shall be read twice: once,
by one of the instrumental witnesses, and again, by the
notary public before him the will was acknowledged. The
purpose is to make known to the incapacitated testator
the contents of the document before signing and to give
him an opportunity to object if anything is contrary to
his intentions.
Substantial compliance is acceptable where the purpose
of the law has been satisfied, the reason being that the
solemnities surrounding the execution of wills are
intended to protect the testator from all kinds of fraud
and trickery, but are never intended to be so rigid and
inflexible as to destroy the testamentary privilege.
Here, private respondent read the testator’s will and
codicil aloud in the presence of the testator, his 3
witnesses, and the notary public, while they followed
copies of the text, albeit silently. After, the notary public
and one of the witnesses asked the testator whether the
contents of the documents were of his own free will. The
testator said yes.
BORJA - 3C 2018 - SUCCESSION | ATTY. HOFILEÑA 20
 • The burden of proof is upon the proponent of the
will that the special requirement of Article 808
was complied with. At the same time, there is no
requirement that compliance with the requirement
be stated either in the will or the attestation clause.
• According to Garcia and Alvarado, an illiterate
testator, because of his incapacity to read the will,
is not unlike a blind testator. Thus, Article 808
should apply.
• Both Article 807 and 808 are mandatory. Failure
to comply with either would result in nullity and
denial of the probate.
Article 809. In the absence of bad faith, forgery, or
fraud, or undue and improper pressure and influence,
defects and imperfections in the form of attestation or in
the language used therein shall not render the will invalid
if it is proved that the will was in fact executed and
attested in substantial compliance with all the
requirements of article 805. (n)
• Possible rewording of the provision: “In the
absence of bad faith, forgery, or fraud, or undue
and improper pressure and influence, defects and
imperfections in the form of attestation or in the
language used therein shall not render the will
invalid if such defects and imperfections can be
supplied by an examination of the will itself and it
is proved that the will was in fact executed and
attested in substantial compliance with all the
requirements of Article 805.”
Caneda v. CA: The rule on substantial compliance must
be limited to disregarding those defects that can be
supplied by an examination of the will itself: (1) whether
all pages are consecutively numbered; (2) whether the
signatures appear in each and every page; and (3)
whether the subscribing witnesses are three or the will
was notarized.
Under Article 809, the defects or imperfections would
not render a will invalid should it be proved that the will
was really executed and attested in compliance with
Article 805. In this regard, the manner of proving the
due execution and attestation has been held to be
limited to merely an examination of the will itself
without resorting to evidence aliunde, whether
oral or written.
In this case, the attestation clause totally omits the fact
that the attestation clause totally omits the fact that the
attesting witnesses signed each and every page of the
will in the presence of the testator and of each other. The
defect is not only in the form or the language, but the
total absence of a specific element required by Article
805. There is no plausible way, without resorting to
extrinsic evidence, by which we can read into the
attestation clause any statement that the attesting
witnesses did actually bear witness to the signing by the
testator of the will and all its pages, and that said
instrumental witnesses also signed the will and every
page thereof in the presence of the testator and of one
another.
SOME OTHER NOTES: A holographic will, unlike an
attested will, requires no attestation by witnesses. A
BORJA - 3C 2018 - SUCCESSION | ATTY. HOFILEÑA 21
common requirement in both kinds of wills is that they
should be in writing and must have been executed in a
language or dialect known to the testator.
In the case of an ordinary or attested will, its attestation
clause need not be written in a language or dialect
known to the testator since it does not form part of the
testamentary disposition. Further, the language used in
the attestation clause need not even be known to the
attesting witnesses. The last paragraph of Article 805
merely requires that, in such a case, the attestation
clause shall be interpreted to said witnesses.
An attestation clause refers to that part of an ordinary
will whereby the attesting witnesses certify that the
instrument has been executed before them and to the
manner of the execution of the same. It is a separate
memorandum or record of the facts surrounding the
conduct of execution and once signed by the witnesses, it
gives affirmation to the fact that compliance with the
essential formalities required by law has been observed.
An attestation clause should state:
1. The number of pages used upon which the will is
written
2. That the testator signed, or expressly caused
another to sign, the will and every page thereof in
the presence of the attesting witnesses, and
3. That the attesting witnesses witnessed the signing
by the testator of the will and all its pages, and
that said witnesses also signed the will and every
page thereof in the presence of the testator and of
one another.
The attestation clause provides strong legal guaranties
for the due execution of a will and to insure the
authenticity thereof. As it pertains only to the witnesses
and not to the testator, it need be signed only by them.
Azuela v. CA: The failure of the attestation clause to state
the number of pages on which the will was written is a
fatal defect. The purpose of the law in requiring the
clause to state the number of pages on which the will is
written is to safeguard against possible interpolation or
omission of one or some of its pages, and to prevent any
increase/decrease in the pages.
There could have been no substantial compliance with
the requirements under Article 805 since there is no
statement in the attestation clause or anywhere in the
will itself as to the number of pages which comprise the
will.
Celada v. Avena: in this case, the attestation clause
mistakenly stated that the will had 3 pages where in fact
it only had 2. The Court, however, held that the error
was not material since the pagination in letters was a
sufficient safeguard of the will’s integrity.
• Note the difference in ruling between Azuela
(absence of statement on # of pages) and Celada
(error in statement of # of pages).
• Balane: If an error in the statement in # of pages is
not fatal, could we not conclude that an absence of
a recital as to # of pages is not fatal either?
BORJA - 3C 2018 - SUCCESSION | ATTY. HOFILEÑA 22
 CASES FOR 807-809
De Gala v. Gonzales: When the law says that the will
shall be “signed” by the testator, the law is fulfilled not
only by the customary written signature, but also by the
testator’s thumbmark.
Cuevas v. Achacoso:
[under the attestation clause, it says:
(sgd.) Jose Venzon (testator)
Witnesses:
(Sgd.) Nestorio Trinidad
(Sgd.) Baldomero Achacoso
(sgd.) Proceso Cabal]
The only apparent anomaly we find is that it appears to
be an attestation made by the testator himself, more
than by the instrumental witnesses. HOWEVER, this
apparent anomaly is not serious nor substantial as to
affect the validty of the will, it appearing that right under
the testator’s signature, there appear the signatures of
the 3 instrumental witnesses. The fact that the 3
witnesses signed the will immediately under the
testator’s signature shows that they in fact attested, not
only to the genuineness of his signature, but also to the
due execution of the will as embodied in the attestation
clause.
Testate Estate of the Late Alipio Abada v. Abaja: FIRST:
there is no statutory requirement in the will itself that
the testator knew the language or dialect used in the will.
Therefore this is a matter that a party may establish by
proof aliunde.
SECOND: The rule on substanatial compliance does not
allow evidence aliunde to fill a void in any part of the
document or supply missing details that should appear
in the will itself. They only permit a probe into the will,
an exploration within its confines, to ascertain its
meaning or to determine the existence or absence of the
requisite formalities of law. Here, the will does not
indicate the number of witnesses. However, the Court
applied the rule on substantial compliance in
determining the number of witnesses. While the
attestation clause does not state the number of
witnesses, a close inspection of the will shows that 3
witnesses signed it.
The will shows 4 signatures: that of the testator and of 3
other persons. It is reasonable to conclude that there are
3 witnesses to the will.
Article 810. A person may execute a holographic will
which must be entirely written, dated, and signed by the
hand of the testator himself. It is subject to no other
form, and may be made in or out of the Philippines, and
need not be witnessed. (678, 688a)
• Special requirements of a holographic will:
1. Completely handwritten by the testator
2. Dated by him, and
3. Signed by him.
BORJA - 3C 2018 - SUCCESSION | ATTY. HOFILEÑA 23
REQ #1 - Entirely handwritten by the testator
• If the testator executes only part of the will in his
handwriting, and other part of the will are not so
written, the entire will is void.
REQ #2 - Dated by the testator
Roxas v. De Jesus: as a general rule, the “date” in a
holographic will should include the day, month, and year
of its execution.
However, when there is no appearance of fraud, bad
faith, undue influence, and pressure and the authenticity
of the will is established, and the only issue is whether or
not the date “FEB./61” appearing on the holographic will
is a valid compliance with Article 810, probate of the will
should be allowed under the principle of substantial
compliance.
Balane: Roxas might have been too liberal in allowing
“FEB/61” as a sufficient date, even granting that there
was no fraud, bad faith, undue influence, or duress.
Labrador v. CA: The law does not specify a particular
location where the date should be placed in the will. The
only requirements are that the date be in the will itself
and executed in the hand of the testator.
The requisites are present in the subject will. Here, the
complete date (“this being in the month of March, 17th
day, in the year 1968”) was found only in the 3rd page of
the will.
REQ #3 - Signed by the testator
• Must the signature be at the will’s end (at least, the
logical end)? Article 812 seems to imply this.
• May the testator sign by means of a thumbprint?
The article does not seem to permit this, since the
will must be entirely written, dated, and signed by
the hand of the testator himself.
Article 811. In the probate of a holographic will, it shall
be necessary that at least one witness who knows the
handwriting and signature of the testator explicitly
declare that the will and the signature are in the
handwriting of the testator. If the will is contested, at
least three of such witnesses shall be required.
In the absence of any competent witness referred to in
the preceding paragraph, and if the court deem it
necessary, expert testimony may be resorted to. (619a)
• This article applies only to post mortem probates;
it does not apply to ante mortem probates since in
such cases, the testator himself files the petition
and will identify the instrument himself.
• Under the Rules of Court, the genuineness of a
handwriting may be proved by:
o A witness who actually saw the person
writing the instrument,
o A witness familiar with such handwriting
and who can give his opinion thereon, such
opinion being an exception to the opinion
rule,
BORJA - 3C 2018 - SUCCESSION | ATTY. HOFILEÑA 24
 o A comparison by the court of the questioned
handwriting and admitted genuine
specimen thereof, and
o Expert evidence.
Azaola v. Singson: The three witness provision in case of
contested holographic wills is directory, not mandatory.
Even if the genuineness of the holographic will is
contested, Article 811 cannot be interpreted as to require
the compulsory presentation of 3 witnesses to identify
the testator’s handwriting, under penalty of having the
probate denied. Since no witness may have been present
at the execution of a holographic will, none being
required by law, the existence of witnesses possessing
the requisite qualifications is a matter beyond the
control of the proponent. For it is not merely a question
of finding and producing any 3 witnesses; they must be
witnesses “who know the handwriting and signature of
the testator” and who can declare “that the will and the
signature are in the handwriting of the testator.”
Compliance with the rule may therefor become an
impossibility.
In fact, if no competent witness is available, or none of
those produced is convincing, the Court may still resort
to handwriting experts, as provided in Article 811. Thus,
Article 811(1) is merely directory, and not mandatory.
Codoy v. Calugay: Article 811 is mandatory, not
directory.
• Does Codoy reverse Azaola? The following points
should be considered:
o The Codoy ruling was not based on there
being less than 3 witnesses (there were in
fact 6)
o Neither did the ruling state that since there
were less than 3 witnesses (apparently only
the testimonies of Binanay and Calugay
were considered at length), even if their
testimony was convincing, the probate must
be denied because of the mandatory import
of Article 811. Rather, the testimony of these
2 witnesses was simply found to be
indecisive.
o The ruling in fact said that visual
examination of the will reveals that the
strokes are different compared with
standard documents.
o Therefore, the basis of the ruling was that
evidence for authenticity was inadequate—
not failure to present 3 witnesses. Which, if
analyzed closely is in accord with Azaola,
which stated that the decisive factor is not
quantity, but QUALITY.
• Balane: Codoy, rather than reversing Azaola, may
have affirmed it.
Gan v. Yap: In the probate of a holographic will, the
document itself must be produced. A lost or destroyed
holographic will may not be proved by the bare
testimony of witnesses who have seen and/or read such
will. Therefore, a lost holographic will cannot be
BORJA - 3C 2018 - SUCCESSION | ATTY. HOFILEÑA 25
probated.
The reasons for this is that the law regards the document
itself as material proof of authenticity (as holographic
wills are “entirely written, dated, and signed by the hand
of the testator himself”). When the will itself is not
submitted, the means of opposition and assessing the
evidence are not available. And then the only guaranty of
authenticity — the testator’s handwriting — has
disappeared.
Rodelas v. Aranza: As an exception to the Gan ruling, in
case of a lost or destroyed holographic will, it may be
proved by a photographic or photostatic copy, or other
similar means, whereby the authenticity of the testator’s
handwriting may be exhibited and tested before the
probate court.
Article 812. In holographic wills, the dispositions of the
testator written below his signature must be dated and
signed by him in order to make them valid as
testamentary dispositions. (n)
Article 813. When a number of dispositions appearing
in a holographic will are signed without being dated, and
the last disposition has a signature and a date, such date
validates the dispositions preceding it, whatever be the
time of prior dispositions. (n)
• Formal requirement for additional dispositions in
a holographic will: (1) signature, and (2) date
• When there are several additional dispositions:
o Signature AND date after each additional
disposition, or
o Each additional disposition signed and
undated, but the last disposition signed
AND dated.
§ If the additional ones before the last
disposition are dated but unsigned,
only the last disposition will be valid,
provided that the last is signed and
dated.
Article 814. In case of any insertion, cancellation,
erasure or alteration in a holographic will, the testator
must authenticate the same by his full signature. (n)
• Effect of non-compliance with the article - the
change is simply considered not made.
• GR: the will is not thereby invalidated as a whole,
but at most only as regards the particular words
erased, corrected, or inserted.
o EX: unless the portion involved is an
essential part of the will, such as the date.
Kalaw v. Relova: Ordinarily, when a number of erasures,
corrections, and interlineations made by the testator in a
holographic will have not been noted under his
signature, the will is NOT invalidated as a whole, but at
most only as respects the particular words erased,
corrected, or interlined.
HOWEVER, as in this case, the holographic will in
dispute had only one substantial provision, which was
altered by substituting the original heir with another,
BORJA - 3C 2018 - SUCCESSION | ATTY. HOFILEÑA 26
but which alteration did not carry the requisite of full
authentication by the testator’s full signature. The effects
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.
To state that the will as first written should be given
efficacy is to disregard the seeming change of mind of
the testatrix. But that change of mind can neither be
given effect because she failed to authenticate it in the
manner required by law.
• Balane’s comments on Kalaw:
o The holding that the insertion of the name
of Gregorio cannot be given effect for not
having been done in accordance with Article
814 is beyond question.
o Why, however, was the cancellation of the
original institution given effects? That
cancellation was not done in the way
mandated by the article, because it was not
properly authenticated.
• To say that “to state that the will as written should
be given efficacy is to disregard the seeming
change of mind of the testatrix” is no argument,
because it is not enough that the testator manifest
his intent. He must manifest it in a manner
required by law.
Article 815. When a Filipino is in a foreign country, he
is authorized to make a will in any of the forms
established by the law of the country in which he may be.
Such will may be probated in the Philippines. (n)
Article 816. The will of an alien who is abroad produces
effect in the Philippines if made with the formalities
prescribed by the law of the place in which he resides, or
according to the formalities observed in his country, or in
conformity with those which this Code prescribes. (n)
Article 817. A will made in the Philippines by a citizen
or subject of another country, which is executed in
accordance with the law of the country of which he is a
citizen or subject, and which might be proved and
allowed by the law of his own country, shall have the
same effect as if executed according to the laws of the
Philippines. (n)
• The 3 articles govern rules of formal validity in the
following instances:
1. A Filipino abroad (Article 815)
2. An alien abroad (Article 816)
3. An alien in the Philippines (Article 817)
• Every testator, whether Filipino or alien, wherever
he may be, has give choices as to what law or
follow for the form of his will:
o The law of his citizenship
o The law of the place of execution
o The law of his domicile
o The law of his residence
o Philippine law
Article 818. Two or more persons cannot make a will
jointly, or in the same instrument, either for their
reciprocal benefit or for the benefit of a third person.
(669)
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 • Joint wills are void. CASES FOR 810-819
• Joint will means one document which constitutes
the will of 2 or more individuals. Ajero v. CA: In the case of holographic wills, what
o If there are separate documents, each assures authenticity is the requirement that they be
serving as one independent will (Even if totally autographic or handwritten by the testator
they are written on the same sheet), they himself, as provided in Article 810. Failure to strictly
are not the joint will prohibited by the law. observe other formalities will not result in the
disallowance of a holographic will that is unquestionably
Article 819. Wills, prohibited by the preceding article, handwritten by the testator.
executed by Filipinos in a foreign country shall not be
valid in the Philippines, even though authorized by the A reading of Article 813 shows that its requirement
laws of the country where they may have been executed. affects the validity of dispositions contained in the
(733a) holographic will, but not its probate. If the testator fails
to sign and date some of the dispositions, the result is
Executed By Status Basis that the dispositions cannot be given effect. Such failure,
Filipinos in the VOID Article 818 however, does NOT render the whole will void.
Philippines
Filipinos VOID, even if authorized Article 819 Likewise, a holographic will can still be admitted to
abroad by the law of the place of probate notwithstanding non-compliance with the
execution provisions of Article 814. Unless the unauthenticated
Aliens abroad VALID, if made in Article 816 alterations, cancellations, or insertions were made on (1)
accordance with law of the date of the holographic will, or (2) the testator’s
the place of execution signature, their presence does not invalidate the will
Aliens in the One view: VOID Article 818 itself. The lack of authentication will only result in
Philippines disallowance of such changes. (SEE: Kalaw v. Relova for
Another view: ARTICLE Article 817 exception)
817
A Filipino and As to Filipino - VOID Article 818 SUBSECTION 4. - Witnesses to Wills
an Alien
As to alien - either Row Article Article 820. Any person of sound mind and of the age of
3/4 will apply 816/817 eighteen years or more, and not blind, deaf or dumb, and
able to read and write, may be a witness to the execution
of a will mentioned in article 805 of this Code. (n)

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Article 821. The following are disqualified from being
witnesses to a will:
(1) Any person not domiciled in the Philippines;
(2) Those who have been convicted of falsification
of a document, perjury or false testimony. (n)
• Six qualification of witnesses:
1. Sound mind,
2. At least 18 years of age,
3. Not blind, deaf, or dumb,
4. Able to read and write,
5. Domiciled in the Philippines,
6. Must not have been convicted of falsification of
document, perjury, or false testimony.
Gonzales v. CA: Credibility v. Competence
Under the law, there is no mandatory requirement that
the witness testify initially or at any time during the trial
as to his good standing in the community, his reputation
for trustworthiness and reliability, his honesty and
uprightness in order that his testimony may be believed
and accepted by the trial court, because such attributes
are presumed of the witness, unless the contrary is
proven by the opposing party.
It is enough that the qualifications enumerated in Article
820 are complied with, and that he has none of the
disqualifications under Article 821.
Here, we reject petitioner’s contention that it must first
be established in the record the good standing of the
witness in the community, his reputation for
trustworthiness and reliability, his honesty and
uprightness, because such attributes are presumed of
the witness, unless the contrary is proven by the
opposing party.
Article 822. If the witnesses attesting the execution of a
will are competent at the time of attesting, their
becoming subsequently incompetent shall not prevent the
allowance of the will. (n)
• As in the case of testamentary capacity, time of
execution of the will is the only relevant temporal
criterion in the determination of the witnesses’
competence.
Article 823. If a person attests the execution of a will, to
whom or to whose spouse, or parent, or child, a devise or
legacy is given by such will, such devise or legacy shall, so
far only as concerns such person, or spouse, or parent, or
child of such person, or any one claiming under such
person or spouse, or parent, or child, be void, unless
there are three other competent witnesses to such will.
However, such person so attesting shall be admitted as a
witness as if such devise or legacy had not been made or
given. (n)
• This article lays down a disqualification of a
witness to succeed to a devise/legacy when there
are only 3 witnesses.
• The competence of the person as a witness is not
affected. Assuming all other requisites for formal
BORJA - 3C 2018 - SUCCESSION | ATTY. HOFILEÑA 29
 validity being present, therefore, the will is
perfectly valid but the witness (or the relatives
specified in this article) cannot inherit.
• Disqualification is not limited to devisees/legatees;
extends to heirs as well.
o Intent of the law is to cover all testamentary
dispositions
• The disqualification applies only to the
testamentary disposition made in favor of the
witness, or the specified relatives.
o If the party is also entitled to a legitime or
an intestate share, that portion is not
affected by the party’s witnessing the will.
Article 824. A mere charge on the estate of the testator
for the payment of debts due at the time of the testator's
death does not prevent his creditors from being
competent witnesses to his will. (n)
SUBSECTION 5. Codicils and Incorporation by
Reference
Article 825. A codicil is supplement or addition to a
will, made after the execution of a will and annexed to be
taken as a part thereof, by which disposition made in the
original will is explained, added to, or altered. (n)
Article 826. In order that a codicil may be effective, it
shall be executed as in the case of a will. (n)
• A codicil must also be in the form of a will.
o An attested will may have a holographic
codicil, and vice-versa.
o It must also be probated.
Article 827. If a will, executed as required by this Code,
incorporates into itself by reference any document or
paper, such document or paper shall not be considered a
part of the will unless the following requisites are
present:
(1) The document or paper referred to in the will
must be in existence at the time of the execution of
the will;
(2) The will must clearly describe and identify the
same, stating among other things the number of
pages thereof;
(3) It must be identified by clear and satisfactory
proof as the document or paper referred to
therein; and
(4) It must be signed by the testator and the
witnesses on each and every page, except in case of
voluminous books of account or inventories. (n)
• This article refers to documents likes inventories,
books of accounts, documents of title, and paper of
similar nature.
• The document should, under no circumstances,
make testamentary dispositions, for then the
formal requirements for wills would be
circumvented.
BORJA - 3C 2018 - SUCCESSION | ATTY. HOFILEÑA 30
 CASES FOR 820-827
Cruz v. Villasor: The notary public before whom the will
was acknowledged cannot be considered as the third
instrumental witness since he cannot acknowledge
before himself his having signed the will.
The function of the notary public is, among others, to
guard against any illegal arrangements. That would be
defeated if the notary public were one of the attesting
witnesses, for then he would be interested in sustaining
the validity of the will. As it directly involves himself and
the validity of his own act.
Here, to allow the notary public to act as third witness
would have the effect of having only two instrumental
witnesses to the will, in contravention of the law.
Unson v. Abella: FIRST: As a general rule, where
opposition is made to the probate of a will, the attesting
witnesses must be produced. But there are exceptions to
this rule:
1. When a witness is dead,
2. When a witness cannot be served with process of
the court,
3. Witness’s reputation for truth ahs been
questioned, or
4. Witness is hostile to the cause of the proponent.
In such cases, the will may be admitted to probate
without the testimony of said witness if, upon the other
proofs adduced in the case, the court is satisfied that the
will has been duly executed.
SECOND: When, in a will, reference is made to an
inventory of the properties of the testator, which has
thus been made part of the will, if the will has an
attestation clause that meets the requirements of the
law, no other attestation clause is necessary for said
inventory. That of the will is sufficient for the validity of
both the will and the inventory.
THIRD: Paging in inventor with Arabic numerals is in
compliance with the spirit of the law, requiring that the
paging of a will be made in letters and is just as valid as
paging with letters A, B, C, etc.
SUBSECTION 6. Revocation of Wills and
Testamentary Dispositions
Article 828. A will may be revoked by the testator at any
time before his death. Any waiver or restriction of this
right is void. (737a)
• A will is essentially revocable or ambulatory.
o Cannot be waived, even by the testator
o No such thing as an irrevocable will
Article 829. A revocation done outside the Philippines,
by a person who does not have his domicile in this
country, is valid when it is done according to the law of
the place where the will was made, or according to the
law of the place in which the testator had his domicile at
the time; and if the revocation takes place in this country,
BORJA - 3C 2018 - SUCCESSION | ATTY. HOFILEÑA 31
when it is in accordance with the provisions of this Code. (3) By burning, tearing, cancelling, or obliterating
(n) the will with the intention of revoking it, by the
testator himself, or by some other person in his
Revocation in Follow Philippine Law presence, and by his express direction. If burned,
the torn, cancelled, or obliterated by some other
Philippines person, without the express direction of the
Revocation If testator is not If testator is testator, the will may still be established, and the
outside the domiciled in the domiciled in the estate distributed in accordance therewith, if its
Philippines Philippines Philippines contents, and due execution, and the fact of its
1. Follow the law *Not governed by unauthorized destruction, cancellation, or
of the place Article 819 obliteration are established according to the Rules
where the will of Court. (n)
was made, or 1. Follow
2. Follow the law Philippine • 3 modes of revoking a will:
of the place law 1. By operation of law,
where the 2. Follow the law 2. By a subsequent will or codicil,
testator was of the place of 3. By physical destruction.
domiciled at the revocation
time of the 3. Follow the law Mode #1 - Operation of Law
revocation of the place
where the will • Revocation may be total or partial
was made • Examples:
o Preterition
o Legal separation
Article 830. No will shall be revoked except in the o Unworthiness to succeed
following cases: o Transformation, alienation, or loss of the
object devised or bequeathed
(1) By implication of law; or o Judicial demand of a credit given as a legacy

(2) By some will, codicil, or other writing executed Mode #2 - Subsequent Will or Codicil
as provided in case of wills; or
• Must be probated in order to take effect
• Requisites:

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 1. The subsequent instrument must comply with
the formal requisites of a will,
2. The testator must possess testamentary
capacity,
3. The subsequent instrument must either contain
an express revocatory clause or be
incompatible with the prior will
Mode #3 - Physical Destruction
• The physical destruction may be done by the
testator personally or by another person acting in
his presence AND by his express direction.
• Effect of unauthorized destruction: will may still
be proved as lost or destroyed.
o HOWEVER, this is only possible if the will
is attested.
o GR: if the will is holographic, it cannot be
probated if it is lost, even if the loss or
destruction was unauthorized (Gan v. Yap)
§ EX: unless a copy survives (Rodelas
v. Aranza)
• Elements of a valid revocation by physical
destruction:
1. Corpus - the physical destruction itself (there
must be evidence of physical destruction), and
2. Animus - composed of:
a. Capacity and intent to revoke
b. The testator must have completed
everything he intended to do
Testate Estate of Adriana Maloto v. CA: Corpus and
animus must concur. One without the other will not
produce revocation.
The physical act of destroying a will, like burning in this
case, does not per se constitute an effective revocation,
unless the destruction is coupled with animus revocandi
on the part of the testator. It is not imperative that the
physical destruction be done by the testator himself. It
may be performed by another person but under the
express direction and in the presence of the testator. Of
course, it goes without saying that the document
destroyed must be the will itself.
The requisites were not met here. First, the document or
papers allegedly burned were not satisfactorily establish
to be a will. Second, the burning itself was not proven to
have been done under the express direction of the
testator. Third, the burning was not done in her
presence.
Gago v. Mamuyac: The loss or unavailability of a will
may, under certain circumstances, give rise to the
presumption that it had been revoked by physical
destruction.
Where a will which cannot be found is shown to have
been in the testator’s possession, when last seen, the
presumption, in the absence of other competent
evidence, is that the same was cancelled or destroyed.
The same presumption arises where it is shown that the
testator had ready access to the will and it cannot be
found after his death. It will not be presumed that such
will was destroyed by another person without the
BORJA - 3C 2018 - SUCCESSION | ATTY. HOFILEÑA 33
 testator’s knowledge and authority.
Copies of wills should be admitted by the courts with
great caution. When it is proven, however, that a will
was executed in duplicate and each copy was executed
with all the formalities and requirements of the law,
then the duplicate may be admitted in evidence when it
is made to appear that the original has been lost and was
not cancelled or destroyed by the testator.
Article 831. Subsequent wills which do not revoke the
previous ones in an express manner, annul only such
dispositions in the prior wills as are inconsistent with or
contrary to those contained in the later wills. (n)
• Revocation can therefore be implied.
o HOWEVER, the execution of a subsequent
will does not ipso facto revoke a prior one.
• There can be partial revocation.
Article 832. A revocation made in a subsequent will
shall take effect, even if the new will should become
inoperative by reason of the incapacity of the heirs,
devisees or legatees designated therein, or by their
renunciation. (740a)
• GR: the efficacy of the revocatory clause does not
depend on the testamentary dispositions of the
revoking will
o EX: unless the testator so provides
• GR: Revocation is an absolute provision,
independent of the (a) acceptance or (b) capacity
of the new heirs
o EX: “Dependent relative revocation” -
where the testator provides in the
subsequent will that the revocation of the
prior one is dependent on the capacity or
acceptance of the heirs, devisees, or legatees
instituted in the subsequent will
• Q: supposing the institution of heirs, devisees, or
legatees in the subsequent will is subject to a
suspensive condition, is the revocation of the prior
will absolute or conditional?
A: It depends on the testator’s intent. If the
subsequent will contains a revocatory clause which
is absolute, the revocation will be absolute and the
non-happening of the suspensive condition will be
immaterial.
HOWEVER, (a) if the testator states that that the
revocation of the prior will is subject to the
occurrence of the suspensive condition, or (b) if
the will does not contain a revocatory clause, the
revocation will depend on whether the condition
happens or not.
Molo v. Molo: A subsequent will, containing a revocatory
clause, having been denied probate for the reason that it
was not executed in conformity with the provisions as to
the making of wills, cannot produce the effect of
annulling the previous will, inasmuch as the revocatory
clause is void.
• The rule laid down by this Article will apply even if
the revocation of the prior will by the subsequent
will is implied (i.e., be incompatibility of
provisions, not by a revocatory clause)
BORJA - 3C 2018 - SUCCESSION | ATTY. HOFILEÑA 34
 o The intent of the testator to set aside the
prior institutions is, in either case, clear.
Article 833. A revocation of a will based on a false cause
or an illegal cause is null and void. (n)
• REQUISITES:
1. The cause must be concrete, factual, and not
purely subjective,
2. It must be false,
3. The testator must know of its falsity,
4. It must appear from the will that the testator is
revoking because of the cause which he did not
know was false.
• If the revocation is by physical destruction, and the
revoked will is holographic, then though the
revocation be null and void, probate will not be
possible (Gan v. Yap)
o Unless a copy survives (Rodelas v. Aranza)
• The illegal cause should be stated in the will as the
cause of the revocation.
Article 834. The recognition of an illegitimate child
does not lose its legal effect, even though the will wherein
it was made should be revoked. (741)
SUBSECTION 7. Republication and Revival of
Wills
Article 835. The testator cannot republish, without
reproducing in a subsequent will, the dispositions
contained in a previous one which is void as to its form.
(n)
Article 836. The execution of a codicil referring to a
previous will has the effect of republishing the will as
modified by the codicil. (n)
• If the testator wishes to republic a will that is void
as to form, the only way republish it is to execute a
subsequent will and reproduce the dispositions of
the original will.
o Mere reference to the prior will in the
subsequent will is not enough.
• If a testator wishes to republish a will that is either
(a) void for a reason other than a formal defect, or
(b) previously revoked, the only thing necessary to
republish it is for the testator to execute a
subsequent will or codicil referring to the previous
will.
o No need to reproduce the provisions of the
prior will in the subsequent instrument.
Article 837. If after making a will, the testator makes a
second will expressly revoking the first, the revocation of
the second will does not revive the first will, which can be
revived only by another will or codicil. (739a)
• This article applies only where the revocation of
the first will by the second will is express.
o EX #1: if the revocation is implied (i.e.,
incompatible provisions), this article will
not apply. In such a case, the revocation of
the second will by a third will revives the
third will.
§ EX to the EX: unless the third will is
itself inconsistent with the first.
BORJA - 3C 2018 - SUCCESSION | ATTY. HOFILEÑA 35
 o EX #2: where the second will is
holographic, and it is revoked by physical
destruction, the possibility of its probate is
foreclosed.
§ EX to the EX: unless a copy survives.
SUBSECTION 8. Allowance and Disallowance of
Wills
Article 838. No will shall pass either real or personal
property unless it is proved and allowed in accordance
with the Rules of Court.
The testator himself may, during his lifetime, petition the
court having jurisdiction for the allowance of his will. In
such case, the pertinent provisions of the Rules of Court
for the allowance of wills after the testator's a death shall
govern.
The Supreme Court shall formulate such additional Rules
of Court as may be necessary for the allowance of wills on
petition of the testator.
Subject to the right of appeal, the allowance of the will,
either during the lifetime of the testator or after his death,
shall be conclusive as to its due execution. (n)
Guevara v. Guevara: Probate of a will is mandatory.
Unless the will is probated and notice thereof is given to
the whole world, the right of a person to dispose of his
property by will may be rendered nugatory. Absent
legatees and devisees could be cheated of their
inheritance through the collusion of some of the heirs
who might agree to the partition of the estate among
themselves, to the exclusion of others.
Even if the decedent left no debts and nobody raises any
question as to the authenticity and due execution of the
will, none of the heirs may sue for the partition of the
estate in accordance with a will without first securing its
probate by the court.
• NOTE: under Section 1, Rule 74 of the Rules of
Court, “if the decedent left no will and no debts,
and the heirs are all of age, or the minors are
represented by their judicial/legal representatives
duly authorized for the purpose, the parties may,
without securing letters of administration, divide
the estate among themselves as they see fit by
means of a public instrument filed in the office of
the register of deeds, and should they disagree,
they may do so in an ordinary action for partition.
If there is only one heir, he may adjudicate to
himself the entire estate by means of an affidavit
filed in the office of the register of deeds…”
• Two kinds of probate:
o Post-mortem - after testator’s death
o Ante-mortem - during testator’s lifetime
• Rules on probate are found in Rule 76 of the Rules
of Court.
De la Cerna v. Potot: Once a decree of probate becomes
final in accordance with the rules of procedure, it is res
judicata.
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Here, the final decree of probate entered in 1939 has
conclusive effect as to the testator’s last will and
testament, despite the fact that even then the Civil Code
already decreed the invalidity of joint wills. The error
committed by the probate court was an error of law, that
should have been corrected by appeal, but which did not
affect the jurisdiction of the probate court, nor the
conclusive effect of its final decision, however erroneous.
A final judgment rendered on a petition for the probate
of a will is binding upon the whole world.
Gallanosa v. Arcangel: A final decree of probate is
conclusive as to the due execution of the will, i.e., as to
the will’s extrinsic or formal validity only.
That means that the testator was of sound and disposing
mind, was not acting under duress, menace, fraud, or
undue influence, that the will was signed by him in the
presence of the required number of witnesses, and that
the will is genuine and not a forgery.
After the finality of the allowance of a will, the issue as to
voluntariness of its execution can no longer be raised.
• Specifically, Gallanosa enumerates what are
covered by “formal validity” and are therefore
conclusively settled by a final decree of probate:
1. That the testator was of sound and disposing
mind,
2. That his consent was not vitiated,
3. That the formal requirements of the law
(Articles 804-808, 820-821, if the will is
attested; Article 804, 810-814, if the will is
holographic; and Articles 818-819) have been
complied with, and
4. That the will is genuine.
• Other cases include the following as regards
“formal validity”:
5. Whether the will submitted is indeed the
decedent’s last will and testament
6. Testamentary capacity
7. The testator is not expressly prohibited by law
from making a will.
• EX to the rule: a decree of probate does not
concern itself with the question of intrinsic validity
and the probate court should not pass upon that
issue.
Nepomuceno v. CA: The general rule is that in probate
proceedings, the court’s area of inquiry is limited to an
examination of a will’s extrinsic validity.
HOWEVER, the probate of a will might become an idle
ceremony if on its fact it appears to be intrinsically void.
Where practical considerations demand that the
intrinsic validity of the will be passed upon, even before
it is probated, the court should meet the issue.
Here, the will admits indubitably on its face that the
testator cohabited with Sofia Nepomuceno, the person
whom he appointed as his sole and only executor of the
estate. Under Article 739, it is clear that a donation
between persons guilty of adultery or concubinage at the
time of the donation is void.
BORJA - 3C 2018 - SUCCESSION | ATTY. HOFILEÑA 37
 • On the authority of Nepomuceno, a probate court
may pass upon the issue of intrinsic validity if on
the face of the will, its intrinsic nullity is patent.
Article 839. The will shall be disallowed in any of the
following cases:
(1) If the formalities required by law have not been
complied with;
(2) If the testator was insane, or otherwise
mentally incapable of making a will, at the time of
its execution;
(3) If it was executed through force or under
duress, or the influence of fear, or threats;
(4) If it was procured by undue and improper
pressure and influence, on the part of the
beneficiary or of some other person;
(5) If the signature of the testator was procured by
fraud;
(6) If the testator acted by mistake or did not
intend that the instrument he signed should be his
will at the time of affixing his signature thereto. (n)
• The list is an exclusive enumeration of the causes
for disallowance of a will.
• These are matters involved in formal validity. In
relation to the Gallanosa case, a probate decree
once final forecloses any subsequent challenge to
any of the matters enumerated in the article.
• If any of these grounds is proven, the will shall be
set aside as void.
o No such thing as a voidable will. A will is
either valid or void.
CASES FOR 838-839
Reyes v. CA: As a general rule, courts in probate
proceedings are limited to pass only upon the extrinsic
validity of the will south to be probated. Thus, the court
merely inquires on its due execution: (1) w/n it complies
with the formalities, (2) testamentary capacity of the
testator, and (3) w/n vices of consent attended the
execution of the will. The intrinsic validity is not
considered, since the consideration thereof comes only
after the will has been proved and allowed. HOWEVER,
the intrinsic validity may be ruled upon when the defect
of the will is apparent on its face and the probate of the
will may be come a useless ceremony.
The lower court erroneously invoked Nepomuceno v.
CA. In that case, the legacy was invalidated because the
testator admitted he was disposing of properties to a
person with whom he had been living in concubinage. In
this case, the testator merely stated in his will that he
was bequeathing some of his properties to his wife,
There was never an open admission of any illicit
relationship, unlike in Nepomuceno. Therefore, the
lower court should not have ruled on the intrinsic
validity of the will.
BORJA - 3C 2018 - SUCCESSION | ATTY. HOFILEÑA 38
Balanay v. Martinez: The trial court correctly passed
upon the will’s intrinsic validity even before its formal
validity had been established.
The statement of the testratic that she owned “the
southern half” of the conjugal lands is contrary to law
because, although she was co-owner thereof, her share
was inchoate and pro indiviso.
HOWEVER, note that the probate court erred in
declaring the entire will void, and in converting the
testate proceedings into an intestate proceeding. The
invalidity of one of several dispositions contained in a
will does not result in the invalidity of the other
dispositions, unless it is to be presumed that the testator
would not have made such other dispositions if the first
invalid disposition had not been made.
Rodriguez v. Rodriguez: Before any will can have force
or validity it must be probated.
Here, Juanito owned a 5-door apartment. He executed a
will, giving petitioner apartments D and E, while giving
respondents A, B, and C. Subsequently, Juanito decided
to sell the 5-door apartment, and executed a Deed of
Sale in favor of petitioner. The respondents claimed
ownership via succession. Moreover, respondent claims
that petitioner has no cause of action, because petitioner
was a party to a Partition Agreement wherein they
recognized each other as co-owners.
As the will was not probated after Juanito’s death, the
Partition Agreement which was executed pursuant
thereto cannot be given effect. Moreover, at the time the
deed of sale was executed, the testator was still the
owner thereof since ownership would only pass to his
heirs at the time of his death. Thus, title validly passed
to petitioner, and respondents cannot claim any title
thereto.
Heirs of Policronio M. Ureta, Sr. v. Heirs of Liberato M.
Ureta: Since no will is involved, preterition cannot
apply.
In this case, asssuming that petitioners were excluded
from the Deed of Extrajudicial Partition of the subject
property, preterition cannot apply because there is no
will involved.
Palaganas v. Palaganas: Our laws do not prohibit the
probate of wills executed by foreigners abroad, although
the same have not yet been probated and allowed in the
countries of their execution. A foreign will can be given
legal effects in our jurisdiction. Article 816 states that
the will of an alien who is abroad produces effect in the
Philippines if made in accordance with the formalities
prescribed by the law of the place where he resides, or
according to the formalities observed in his country.
SECTION 2
Institution of Heir
Article 840. Institution of heir is an act by virtue of
which a testator designates in his will the person or
persons who are to succeed him in his property and
transmissible rights and obligations. (n)
BORJA - 3C 2018 - SUCCESSION | ATTY. HOFILEÑA 39
Article 841. A will shall be valid even though it should
not contain an institution of an heir, or such institution
should not comprise the entire estate, and even though
the person so instituted should not accept the inheritance
or should be incapacitated to succeed.
In such cases the testamentary dispositions made in
accordance with law shall be complied with and the
remainder of the estate shall pass to the legal heirs. (764)
Article 842. One who has no compulsory heirs may
dispose by will of all his estate or any part of it in favor of
any person having capacity to succeed.
One who has compulsory heirs may dispose of his estate
provided he does not contravene the provisions of this
Code with regard to the legitime of said heirs. (763a)
• How much can be disposed of by will:
o If the testator leaves no compulsory heirs:
the entire hereditary estate
o If the testator leaves compulsory heirs: the
disposable portion (i.e., net hereditary
estate minus the legitimes)www
• If the testator disposes by will less than he is
allowed, there will be mixed succession (i.e.,
testamentary succession as to the part disposition
of by the will, and intestate succession as to the
part not disposed of by the will. The legitimes of
course, if any, pass by strict operation of law.
Article 843. The testator shall designate the heir by his
name and surname, and when there are two persons
having the same names, he shall indicate some
circumstance by which the instituted heir may be known.
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 valid. (772)
Article 844. An error in the name, surname, or
circumstances of the heir shall not vitiate the institution
when it is possible, in any other manner, to know with
certainty the person instituted.
If among persons having the same names and surnames,
there is a similarity of circumstances in such a way that,
even with the use of other proof, the person instituted
cannot be identified, none of them shall be an heir. (773a)
• The heir, legatee, or devisee must be identified in
the will with sufficient clarity to leave no doubt as
to the testator’s intention.
• The designation of the name and surname is
directory.
o What is required is that the identity of the
designated successor be sufficiently
established.
• If there is any ambiguity in the designation, the
ambiguity should be resolved in accordance with
Article 789.
o If it is not possible to resolve the ambiguity,
the testator’s intent becomes
indeterminable and, therefore, intestacy as
to that portion will result.
BORJA - 3C 2018 - SUCCESSION | ATTY. HOFILEÑA 40
Article 845. Every disposition in favor of an unknown
person shall be void, unless by some event or
circumstance his identity becomes certain. However, a
disposition in favor of a definite class or group of persons
shall be valid. (750a)
• This refers to a successor whose identity cannot be
determined.
o This does not refer to one with whom the
testator is not personally acquainted. The
testator may institute somebody who is a
perfect stranger to him, provided the
identity is clear.
Article 846. Heirs instituted without designation of
shares shall inherit in equal parts. (765)
• The general presumption in cases of collective
designation is equality
o If the testator intends an unequal
apportionment, he should so specify.
• This article will only apply in testamentary
succession.
o It will not apply to an heir who is both a
compulsory and a testamentary heir. In that
case, the heir will get his legitime and his
testamentary portion.
Article 847. When the testator institutes some heirs
individually and others collectively as when he says, "I
designate as my heirs A and B, and the children of C,"
those collectively designated shall be considered as
individually instituted, unless it clearly appears that the
intention of the testator was otherwise. (769a)
• This follows the basic rule of equality in Article
846.
• Moreover, it establishes the presumption that the
heirs collectively referred to are designated per
capita along with those separately designated.
o If the testator intends a block designation,
he should so specify.
Article 848. If the testator should institute his brothers
and sisters, and he has some of full blood and others of
half blood, the inheritance shall be distributed equally
unless a different intention appears. (770a)
• Again, this follows the basic rule of equality in
Article 846.
• In testamentary succession, we follow the rule of
equality of shares between full- and half-blooded
siblings, unless the testator provides otherwise.
• In intestate succession, Article 1006 establishes a
2:1 ratio between full- and half-blooded siblings
(without prejudice to the rule prohibiting
succession ab intestate between legitimate and
illegitimate siblings).
Article 849. When the testator calls to the succession a
person and his children they are all deemed to have been
instituted simultaneously and not successively. (771)
• Equality and individuality of institution are
presumed.
BORJA - 3C 2018 - SUCCESSION | ATTY. HOFILEÑA 41
 • Succession is simultaneous, not one after the other
Article 850. The statement of a false cause for the
institution of an heir shall be considered as not written,
unless it appears from the will that the testator would not
have made such institution if he had known the falsity of
such cause. (767a)
• GR: the falsity of the stated cause for the
testamentary institution does not affect the
validity or efficacy of the institution.
• EX: the falsity of the stated cause for institution
will set aside the institution, if certain factors are
present.
Austria v. Reyes: Before the institution of heirs may be
annulled under Article 850, the following requisites
must concur:
1. The cause for the institution of heirs must be
stated in the will,
2. The cause must be shown to be false, and
3. It must appear from the face of the will that the
testator would not have made such institution if
he had known the falsity of the cause.
The institution of heirs may be annulled only when one
is satisfied, after an examination of the will, that the
testator clearly would not have made the institution if
her had known the cause for it to be false.
In this case, the record does not show that the testator
would not have made the institution of her adopts sons
and daughters, had she known that their adoption was
spurious. The phrases “mga sapilitang tagapagmana”
and “sapilitang mana” were borrowed from the
language of the law on succession and were used to
describe the class of heirs instituted and the object of
inheritance. They offer no absolute indication that the
decedent would have willed her estate other than the
way she did if she had known that she was not bound by
law to make allowance for legitimes.
• Note that Article 850 does not restrict the
operation of Article 1028 in relation to Article 739
which declare void certain testamentary
dispositions by reason of public policy. In the
latter case, the annulling factor is not falsity but
illegality.
Article 851. If the testator has instituted only one heir,
and the institution is limited to an aliquot part of the
inheritance, legal succession takes place with respect to
the remainder of the estate.
The same rule applies if the testator has instituted several
heirs, each being limited to an aliquot part, and all the
parts do not cover the whole inheritance. (n)
• Wording of this article is erroneous: Legal
succession does not take place with respect to the
remainder of the estate, but to the remainder of
the disposable portion.
o There may be compulsory heirs whose
legitimes will therefore cover part of the
BORJA - 3C 2018 - SUCCESSION | ATTY. HOFILEÑA 42
 estate. The legitimes do not pass by legal or
intestate succession.
• Actually, this article states the exact same rule in
Article 841.
Article 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 instituted to an aliquot part of the
inheritance and their aliquot parts together do not cover
the whole inheritance, or the whole free portion, each
part shall be increased proportionally. (n)
Article 853. If each of the instituted heirs has been
given an aliquot part of the inheritance, and the parts
together exceed the whole inheritance, or the whole free
portion, as the case may be, each part shall be reduced
proportionally. (n)
Article 852* Article 853*
Common elements:
1. There are more than 1 instituted heir,
2. The testator intended them to get the whole estate or
the whole disposable portion, as the case may be, and
3. The testator has designated a definite portion for
each heir.
The total of all the portions The total of all the portions
is less than the whole is more than the whole
estate. estate.
Therefore, a proportionate Therefore, a proportionate
decrease must be made.
increase is necessary.
NOTE: Unlike in Article
852, the difference cannot
pass by intestacy because
the testator’s intention is
clear to give the instituted
heirs the entire amount.
*See Balane’s book (p. 252, 2016 Edition) for math
CASES FOR 840-853
Pecson v. Coronel: It is true that ties of relationship in
the Philippines are very strong, but the omission of
(non-compulsory) relatives from the inheritance is not
rare. The liberty to dispose of one’s estate by will when
there are no forced heirs is rendered sacred by the Civil
Code.
Thus, opponents cannot simply argue against the
probate of the will on the ground that “it is not natural
that the testatrix should completely exclude her blood
relatives from her estate, in order to will the same to one
who is only a relative by affinity.”
Del Rosario v. Del Rosario: Where legatees are pointed
out by name in the will, the fact that they are referred to
as the natural sons of a third persons does not make the
legacy conditional upon proof of such relationship, but is
merely descriptive.
BORJA - 3C 2018 - SUCCESSION | ATTY. HOFILEÑA 43
Article 854. The preterition or omission of one, some,
or all of the compulsory heirs in the direct line, whether
living at the time of the execution of the will or born after
the death of the testator, shall annul the institution of
heir; but the devises and legacies shall be valid insofar as
they are not inofficious.
If the omitted compulsory heirs should die before the
testator, the institution shall be effectual, without
prejudice to the right of representation. (814a)
• Preterition - omission of an heir in the will, either
because he is not named, or although named as a
father, son, etc., he is neither instituted as an heir
nor expressly disinherited, nor assigned any part
of the estate.
o It is thus a tacit deprivation of the legitime,
as distinguished from inheritance which is
an express deprivation.
Reyes v. Barretto-Datu: If the heir in question is
instituted in the will but the portion given to him by the
will is less than his legitime, there is no preterition.
While the share (1/2) assigned to Salud impinged on the
legitime of Milagros, Salud did not for that reason cease
to be a testamentary heir of Bibiano Barretto. Nor does
the fact that Milagros was allotted in her father’s will a
share smaller than her legitime invalidate the institution
of Salud as heir, since there was no preterition, or total
omission, of a forced heir..
• In Reyes, there was (1) a compulsory heir in the
direct line; (2) such heir was instituted in the will;
and (3) the testamentary disposition given to such
heir was less than her legitime.
• There was no preterition. Reason: there was no
total omission, inasmuch as the heir received
something from her inheritance. The heir’s remedy
is found, not in Article 854, but in Articles 906 and
907 for completion of legitime.
Aznar v. Duncan: If the heir is given a legacy or devise,
there is no preterition.
Preterition is the omission of the heir in the will, either
by not naming him at all or, while mentioning him as
father, son, etc., by not instituting him expressly, nor
assigning to him some part of the properties.
In this case, testator refused to acknowledge Helen
Garcia as his natural daughter, and limited her share to
a legacy of P3,600.00. The fact that she was
subsequently declared to possess such status is no
reason to assume that had the judicial declaration come
during his lifetime his subjective attitude towards her
would have undergone any change, and that he would
have willed his estate equally to her and to Lucy Duncan,
who alone was expressly recognized by him.
Since the value of the legacy or device is less than
Helen’s legitime, her remedy is only for completion of
her legitime under Articles 906 and 907.
BORJA - 3C 2018 - SUCCESSION | ATTY. HOFILEÑA 44
 • If the heir had received a donation inter vivos
from the testator, the better view is that there is no
preterition.
o Reason: the donation inter vivos is treated
as an advance on the legitime.
• If the heir is not mentioned in the will nor was a
recipient of a donation inter vivos from the
testator, but not all of the estate is disposed of by
will, there is no preterition.
o Reason: the omitted heir would receive
something by intestacy, from the portion
not disposed of by the will.
o The right of the heir, should the vacant
portion be less than his legitime, will simply
be to demand the completion of his legitime
under Article 906 and 907.
• For there to be preterition, the heir in question
must have received nothing from the testator by
way of: (1) testamentary succession, (2) legacy or
devise, (3) donation inter vivos, or (4) intestacy.
Preterition means total omission in the
inheritance.
o Consequently, what constitutes preterition
is not omission in the will alone, but being
completely left out of the inheritance
(Seangio v. Reyes)
Seangio v. Reyes: The document unmistakably showed
Segundo’s intention of excluding his eldest son, Alfredo,
as an heir to his estate. In effect, Alfredo was
disinherited.
The compulsory heirs in the direct line, though not
mentioned in the will, were not preterited. It was
Segundo’s last expression to bequeath his estate to all
his compulsory heirs, with the sole exception of Alfredo
who was disinherited in the document. We must note
that Segundo did not institute an heir to the exclusion of
his other compulsory heirs. The mere mention of the
name of one of the petitioners, Virginia, in the document
did not operate to institute her as the universal heir.
Thus, there was no preterition within the meaning of the
law.
• Who are included within the terms of the article?
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
o Covers children or descendants and, in
default of children or descendants, parents
or ascendants.
o Surviving spouse does not fall within the
purview of Article 854 because, although a
compulsory heir, is not in the direct line
• Are illegitimate descendants or ascendants within
the coverage? Better rule is yes, because the law
does not distinguish.
• The determination of whether or not there are
preterited heirs can be made only upon the
testator’s death (JLT Agro v. Balasag)
o Should the preteritied heir predecease (or
be unworthy to succeed) the testator, the
question of preterition of that heir becomes
moot.
§ However, should there be a
descendant of that heir who is
BORJA - 3C 2018 - SUCCESSION | ATTY. HOFILEÑA 45
 himself preterited (said descendant
being entitled to succeed by
representation), then the effects of
preterition will arise.
Acain v. IAC: An adopted child is within the
contemplation of Article 854 as “compulsory heir in the
direct line” and rules in favor of the adopt child’s
inclusion in the phrase. An adopted child, if totally
omitted in the inheritance, is preterited within the
meaning of Article 854 and can invoke its protection and
consequences.
Adoption gives to the adopted person the same rights
and duties as if he were legitimate child of the adopted.
This makes the adopted person a legal heir of the
adopter.
Here, it cannot be denied that Virginia, the adopted
child, was totally omitted and preterited in the testator’s
will, and that she was deprived of her legitime. Neither
can it be denied that she was not expressly disinherited.
Hence, this is a clear case of preterition of the legally
adopted child.
The effect of annulling the institution of heirs will be,
necessarily the opening of a total intestacy, except that
proper legacies and devises must be respected in so far
as they are not inofficious.
• Effect of preterition: annulment of the institution
of heir, but validity of legacies and devises insofar
as they do not impair legitimes.
Naguid v. Naguid: Legacies and devises merit
consideration only when they are so expressly given as
such in a will. Nothing in Article 854 suggests that the
mere institution of a universal heir in a will—void
because of preterition—would give the heir so instituted
a share in the inheritance. As to him, the will is
inexistent. There must be, in addition to such
institution, a testamentary disposition granting him
bequests of legacies apart and separate from the
nullified institution of heir.
Here, there is no other provision in the will (i.e., no
legacies and devises) except the institution of petitioner
as universal heir. That institution, by itself, is null and
void for being a case of preterition. Thus, intestate
succession ensures.
SOME OTHER NOTES: Preterition consists in the
omission in the testator’s will of the forced heirs, or any
of them, either because they are not mentioned therein,
or though mentioned are neither instituted as heirs nor
are expressly disinherited.
Disinheritance, in turn, is a testamentary disposition
depriving any compulsory heir of his share in the
legitime for a cause authorized by law. Express as
disinheritance should be, the same must be supported
by a legal cause specified in the will itself.
The effects of preterition and disinheritance are
different. Preterition shall annul the institution of heir.
The annulment is in toto, unless in the will there are
BORJA - 3C 2018 - SUCCESSION | ATTY. HOFILEÑA 46
 devises and legacies. In ineffective disinheritance, it
shall annul the institution of heirs, but only in so far as
it may prejudice the person disinherited.
In other words, the nullity of disinheritance is limited to
that portion of the estate of which the disinherited heirs
have been illegally deprived. The heir’s remedy is simply
to demand his rightful share.
• SUMMARY: Preterition abrogates the institution
of heir, but respects legacies and devises insofar as
these do not impair the legitimes.
o If the will contains only institutions of heirs
and there is preterition, total intestacy will
result
o If there are legacies or devises and there is
preterition, the legacies or devises will
stand, to the extent of the free portion
§ Legacies/devises are merely to be
reduced, not set aside, if legitimes
are impaired
§ HOWEVER, the institution of heirs,
if any, will be swept away.
Article 855. The share of a child or descendant omitted
in a will must first be taken from the part of the estate not
disposed of by the will, if any; if that is not sufficient, so
much as may be necessary must be taken proportionally
from the shares of the other compulsory heirs. (1080a)
• This article is properly applied in cases where a
compulsory heir is not preterited, but left
something less than his legitime.
• Article 855 really talks about completion of
legitime
• Two inaccuracies:
o Its coverage should extend no only to
children and descendants, but to all
compulsory heirs
o The proportionate reductions (after
consuming the undisposed portion) should
be borne not by the compulsory heirs, but
by the testamentary heirs, including the
devisees and legatees.
• Article 855 should be rephrased as follows:
“The share of the compulsory heir omitted in a will
must first be taken from the part of the estate not
disposed of by the will, if any; if that is not
sufficient, as much as may be necessary must be
taken proportionally from the shares of the other
heirs given to them by will.”
Article 856. A voluntary heir who dies before the
testator transmits nothing to his heirs.
A compulsory heir who dies before the testator, a person
incapacitated to succeed, and one who renounces the
inheritance, shall transmit no right to his own heirs
except in cases expressly provided for in this Code. (766a)
• Inaccurate: it suggests that there are exceptions to
the rule that an heir—in case of predecease,
incapacity, or renunciation—transmits nothing to
his own heirs. This rule of non-transmission is
absolute; there is no exception.
BORJA - 3C 2018 - SUCCESSION | ATTY. HOFILEÑA 47
 o Representation is not an exception because where the preterition is not attended by bad faith and
in representation, the person represented fraud, the partition shall NOT be rescinded but the
does not transmit anything to his heirs. preterited heir shall be paid the value of the share
o Representation is, rather, a form of pertaining to her.
subrogration.
• Complete restatement of the rule: SECTION 3
An heir—whether compulsory, voluntary, or Substitution of Heirs
legal—transmits nothing to his heirs in case of
predecease, incapacity, renunciation, or Article 857. Substitution is the appointment of another
disinheritance. heir so that he may enter into the inheritance in default of
HOWEVER, in case of predecease, incapacity of the heir originally instituted. (n)
compulsory or legal heirs, or disinheritance of
compulsory heirs, the rules on representation shall • Complete definition:
apply” “Substitution is the appointment of another heir so
that he may enter into the inheritance in default of,
Kind of
Predecease Incapacity Disinheritance Renunciation or subsequent to, the heir originally instituted.
Heir • Simple substitution is really a form of conditional
- Transmits
- Transmits nothing institution.
Compulsory nothing
- Representation - Transmits
- Representation
- Transmits nothing nothing Fideicommissary
Voluntary N/A - No Simple Substitution
- No Representation Substitution
representation
Legal
- Transmits nothing
N/A
Testator simply makes Testator imposes what is
- Representation a second choice, in case essentially a restriction
the first choice does or burden on the first
CASES FOR 854-856 not inherit. heir, couple with a
selection of a subsequent
Non v. CA: The exclusion of Delia Viado from the deed of recipient of the property.
extrajudicial settlement has had the effect of preterition.
This kind of preterition, however, in the absence of proof Article 858. Substitution of heirs may be:
of bad faith or fraud, does not justify a collateral attack
on Transfer Certificate of Title No. 373646. (1) Simple or common;

The relief instead rests on Article 1104 to the effect that (2) Brief or compendious;

BORJA - 3C 2018 - SUCCESSION | ATTY. HOFILEÑA 48

 (3) Reciprocal; or
(4) Fideicommissary. (n)
• In reality, there are only 2 kinds of substitution: (1)
simple or common, and (2) fideicommissary.
o The above are mutually exclusive.
o The other two are merely variations of
either.
Article 859. The testator may designate one or more
persons to substitute the heir or heirs instituted in case
such heir or heirs should die before him, or should not
wish, or should be incapacitated to accept the
inheritance.
A simple substitution, without a statement of the cases to
which it refers, shall comprise the three mentioned in the
preceding paragraph, unless the testator has otherwise
provided. (774)
• Causes of simple substitution:
1. Predecease of the first heir (die before the
testator)
2. Renunciation of first heir
3. Incapacity of first heir
• How testator may provide for simple substitution
1. By specifying all 3 causes, or
2. By merely providing for simple substitution
• Restricted simple substitution - specifying only 1
or 2 of the 3 causes
• Q: in case of renunciation by the first heir, must
the substitute have capacity at the time of the
renunciation?
A: Either view is defensible.
1. YES.
a. Article 1034: “If the institution, devise,
or legacy should be conditional, the time
of the compliance with the conditional
shall be considered.”
2. NO.
a. Article 1042: “The effects of the
acceptance or repudiation of the
inheritance shall always retroact to the
moment of the death of the decedent.”
b. Article 553(2): “One who validly
renounces an inheritance is deemed
never to have possessed the same.”
Article 860. Two or more persons may be substituted
for one; and one person for two or more heirs. (778)
• Known as “brief or compendious substitution”
• GR: If 1 is substituted for 2 or more original heirs:
in the event that one, but not all, of the original
heirs defaults, substitution will NOT take place.
Substitution will take place only if ALL the original
heirs are disqualified.
o EX: where the testator provides for the
substitution in the event of the death
(renunciation or incapacity) of any one of
the original heirs
BORJA - 3C 2018 - SUCCESSION | ATTY. HOFILEÑA 49
Article 861. If heirs instituted in unequal shares should
be reciprocally substituted, the substitute shall acquire
the share of the heir who dies, renounces, or is
incapacitated, unless it clearly appears that the intention
of the testator was otherwise. If there are more than one
substitute, they shall have the same share in the
substitution as in the institution. (779a)
• Known as “reciprocal substitution”
Article 862. The substitute shall be subject to the same
charges and conditions imposed upon the instituted heir,
unless and testator has expressly provided the contrary,
or the charges or conditions are personally applicable
only to the heir instituted. (780)
• GR: substitute shall be subject to the same
charges/conditions imposed upon the instituted
heir
o EX #1: testator provides the contrary
o EX #2: charges/conditions are personally
applicable only to the heir instituted.
Article 863. A fideicommissary substitution by virtue of
which the fiduciary or first heir instituted is entrusted
with the obligation to preserve and to transmit to a
second heir the whole or part of the inheritance, shall be
valid and shall take effect, provided such substitution
does not go beyond one degree from the heir originally
instituted, and provided further, that the fiduciary or first
heir and the second heir are living at the time of the death
of the testator. (781a)
• Requisites of the fideicomisaria:
1. Fiduciary - first heir who takes the property
upon the testator’s death
2. Fideicommissary heir - second heir who takes
the property subsequently from the fiduciary
3. Second heir must be one degree from the first
heir
4. Dual obligations imposed upon the fiduciary
(a) to preserve the property and (b) to transmit
it after the lapse of the period to the
fideicommissary heir
5. Both heirs must be living and qualified to
succeed at the time of the testator’s death (NOT
at the time of execution of the will)
REQ #2 - Fideicommissary heir, or a second heir,
who takes the property subsequently from the
fiduciary
• Fideicommissary heir does not receive the
property until the fiduciary’s right expires
• Both heirs enter into the inheritance, one after the
other, each in his own term
o Unlike in simple substitution where the
substitute inherits only if the first heir fails
to inherit
• Although the fideicommissary heir does not
receive the property upon the testator’s death, his
right thereto vests at that moment and merely
becomes subject to a period.
o That right passes to his own heirs should he
die before the fiduciary’s right expires
(Article 866)
BORJA - 3C 2018 - SUCCESSION | ATTY. HOFILEÑA 50
REQ #3: Second heir must be one degree from
the first heir
Palacios v. Ramirez: As to the meaning of “one degree,”
the second heir must be related to and be one generation
from the first heir.
From this, it follows that the fideicommissary can only
be either a child or a parent of the first heir. These are
the only relatives who are one generation or degree from
the fiduciary.
REQ #4: Dual obligation is imposed upon the
fiduciary to preserve the property and to
transmit it after the lapse of the period to the
fideicommissary heir
Crisologo v. Singson: the dual obligation is the essence
of the fideicomisaria. This makes the position of the
fiduciary basically that of a usufructuary, with the right
to use and enjoy the property but without the jus
disponendi. (note: compare this with the right of a
reservista in reserve troncal)
PCIB v. Escolin: If no absolute obligation is imposed
upon the first heir to preserve the property and to
transmit it to the second heir, there is no fideicomisaria.
It is not a fideicomisaria because no obligation is
imposed thereby upon Mr. Hodges to preserve the estate
or any part thereof for anyone else. The institution is
NOT necessarily void, however; it may be valid as some
other disposition, but it is not a fideicomisaria. Such an
institution is a simultaneous institution:
On one hand, of Mr. Hodges subject to a resolutory
condition. Mr. Hodges has absolute dominion over what
as inherited, but only during his lifetime.
On the other, of his brothers- and sisters-in-law subject
to a suspensive condition. Their right, although vested
already upon Mrs. Hodges’ death, would automatically
become operative upon the occurrence of the death of
Mr. Hodges in the event of actual existence of any
remainder of her estate then.
In this case, Mrs. Hodges’ will neither provided for a
simple substitution nor a fideicommissary substitution.
There is no simple substitution because there is no
provision for either (1) predecease of the testator by the
designated heir, (2) refusal, or (3) incapacity of the latter
to accept the inheritance. Neither is there a
fideicommissary substitution because no obligation is
imposed upon Hodges to preserve the estate or any part
thereof for anyone else. HOWEVER, from these
premises, it is not correct to jump to the conclusion that
the testamentary dispositions are therefore invalid.
• Period of the first heir’s tenure:
o Primary rule: the period indicated by the
testator
o Secondary rule: if the testator did not
indicate a period, then the fiduciary’s
lifetime.
BORJA - 3C 2018 - SUCCESSION | ATTY. HOFILEÑA 51
REQ #5: both heirs must be living and qualified
to succeed at the time of the testator’s death
• Note that this two-fold requirement is to be met
only upon the testator’s death, and this applies not
only to the fiduciary but to the second heir as well
o The second heir need not survive the first
heir.
o If the second heir dies before the first heir,
the second heir’s own heirs merely take his
place
Article 864. A fideicommissary substitution can never
burden the legitime. (782a)
• Legitime passed by strict operation of law;
therefore the testator has no power over it.
Article 865. Every fideicommissary substitution must
be expressly made in order that it may be valid.
The fiduciary shall be obliged to deliver the inheritance to
the second heir, without other deductions than those
which arise from legitimate expenses, credits and
improvements, save in the case where the testator has
provided otherwise. (783)
• Two ways of making an express imposition:
1. By the use of the term fideicommissary, or
2. By imposing upon the first heir the absolute
obligation to preserve and to transmit to the
second heir
• On deductions, GR: fiduciary should deliver the
property intact and undiminished to the
fideicommissary heir upon the arrival of the period
o EX: only deductions allowed, in the absence
of a contrary provision in the will are (a)
legitimate expenses, (b) credits, (c)
improvements.
§ Legitimate expenses and
improvements are necessary and
useful expenses, but not ornamental
expenses.
Article 866. The second heir shall acquire a right to the
succession from the time of the testator's death, even
though he should die before the fiduciary. The right of the
second heir shall pass to his heirs. (784)
• The second heir’s right vests upon the testator’s
death
o Thus, the second heir does not have to
survive the first heir in order for the
substitution to be effective.
o The second heir’s own heirs simply take his
place (i.e., succeed to the vested right
already possessed by the second heir)
Article 867. The following shall not take effect:
(1) Fideicommissary substitutions which are not
made in an express manner, either by giving them
this name, or imposing upon the fiduciary the
absolute obligation to deliver the property to a
second heir;
BORJA - 3C 2018 - SUCCESSION | ATTY. HOFILEÑA 52
 (2) Provisions which contain a perpetual
prohibition to alienate, and even a temporary one,
beyond the limit fixed in article 863;
(3) Those which impose upon the heir the charge
of paying to various persons successively, beyond
the limit prescribed in article 863, a certain
income or pension;
(4) Those which leave to a person the whole or part
of the hereditary property in order that he may
apply or invest the same according to secret
instructions communicated to him by the testator.
(785a)
• PAR. 1 - note that the lack of this element does
not, by that fact alone, nulligy the institution. It
only means that the institution is not a
fideicomisaria; it could, however, be something
else. (PCIB v. Escolin)
• PAR. 2
1. If there is a fideicomisaria = limit is the first
heir’s lifetime
2. If there is no fideicomisaria = limit is 20 years.
• PAR. 3 - note that there is no prohibition on
simultaneous beneficiaries of a pension
• PAR . 4 - this makes the entire provision void.
Article 868. The nullity of the fideicommissary
substitution does not prejudice the validity of the
institution of the heirs first designated; the
fideicommissary clause shall simply be considered as not
written. (786)
• If the fideicommissary substitution is void or
ineffective, the institution of the first heir simply
becomes pure and unqualified.
Article 869. A provision whereby the testator leaves to a
person the whole or part of the inheritance, and to
another the usufruct, shall be valid. If he gives the
usufruct to various persons, not simultaneously, but
successively, the provisions of article 863 shall apply.
(787a)
• If the testator institutes successive usufructuaries,
there can only be two usufructuaries, one after the
other, and as to the two of them, all the requisites
of Article 863 (fideicomisaria) must be present.
Article 870. The dispositions of the testator declaring
all or part of the estate inalienable for more than twenty
years are void. (n)
• If the testator imposes a longer period than 20
years, the prohibition is valid only for 20 years.
• If there is a fideicommissary substitution, this time
limitation will not apply (maximum period =
lifetime of first heir).
SECTION 4
Conditional Testamentary Dispositions and
Testamentary Dispositions With a Term
GENERAL PROVISIONS
BORJA - 3C 2018 - SUCCESSION | ATTY. HOFILEÑA 53
Article 871. The institution of an heir may be made not affected by the impossible or unlawful
conditionally, or for a certain purpose or cause. (790a) condition shall be valid.”

• 3 kinds of testamentary dispositions: Article 874. An absolute condition not to contract a first
1. Conditional dispositions, or subsequent marriage shall be considered as not written
2. Dispositions with a term, unless such condition has been imposed on the widow or
3. Dispositions with a mode widower by the deceased spouse, or by the latter's
• The right of the testator to impose conditions, ascendants or descendants.
terms, or modes springs from testamentary
freedom. Nevertheless, the right of usufruct, or an allowance or
some personal prestation may be devised or bequeathed
Article 872. The testator cannot impose any charge, to any person for the time during which he or she should
condition, or substitution whatsoever upon the legitimes remain unmarried or in widowhood. (793a)
prescribed in this Code. Should he do so, the same shall
be considered as not imposed. (813a) First
Condition is always considered not
marriage is
imposed
• Legitime passes by strict operation of law, prohibited
independent of the testator’s will. Imposed by the
deceased spouse or by
Subsequent Valid
CONDITIONS his/her ascendants or
marriage is
descendants
prohibited
Article 873. Impossible conditions and those contrary Considered
Imposed by anyone else
to law or good customs shall be considered as not not written
imposed and shall in no manner prejudice the heir, even
if the testator should otherwise provide. (792a) Article 875. Any disposition made upon the condition
that the heir shall make some provision in his will in
• Rule in donations is the same. (See Article 727) favor of the testator or of any other person shall be void.
• Rule in obligations is different. (794a)
Article 1183: “Impossible conditions, those
contrary to good customs or public policy and • It is not merely the condition that is declared void,
those prohibited by law shall annul the but the testamentary disposition itself which
obligation which depends upon them. If the contains the condition.
obligation is divisible, that part thereof which is

BORJA - 3C 2018 - SUCCESSION | ATTY. HOFILEÑA 54

Article 876. Any purely potestative condition imposed
upon an heir must be fulfilled by him as soon as he learns
of the testator's death.
This rule shall not apply when the condition, already
complied with, cannot be fulfilled again. (795a)
Article 877. If the condition is casual or mixed, it shall
be sufficient if it happen or be fulfilled at any time before
or after the death of the testator, unless he has provided
otherwise.
Should it have existed or should it have been fulfilled at
the time the will was executed and the testator was
unaware thereof, it shall be deemed as complied with.
If he had knowledge thereof, the condition shall be
considered fulfilled only when it is of such a nature that it
can no longer exist or be complied with again. (796)
Article 883 (par. 2). If the person interested in the
condition should prevent its fulfillment, without the fault
of the heir, the condition shall be deemed to have been
complied with. (798a)
Article 879. If the potestative condition imposed upon
the heir is negative, or consists in not doing or not giving
something, he shall comply by giving a security that he
will not do or give that which has been prohibited by the
testator, and that in case of contravention he will return
whatever he may have received, together with its fruits
and interests. (800a)
• Kinds of conditions:
1. Potestative condition - one that depends solely on
the will of the heir/devisee/legatee
2. Casual condition - one that depends on the will of
a third person or on chance
3. Mixed condition - one that depends partly on the
will of the heir/devisee/legatee and partly either
on the will of a third person or chance
POTESTATIVE POSITIVE
• GR: must be fulfilled as soon as the heir learns of
the testators death
o EX: if (a) the condition was already
complied with at the time the heir learns of
the testator’s death, AND (b) the condition
is of such a nature that it cannot be fulfilled
again
• Constructive compliance - condition is deemed
fulfilled
POTESTATIVE NEGATIVE
• Heir must give security to guarantee (caución
Muciana) the return of the value of property,
fruits, and interests, in case of contravention
CASUAL OR MIXED
• GR: may be fulfilled at any time (before or after
testator’s death)
o Unless testator provides otherwise
BORJA - 3C 2018 - SUCCESSION | ATTY. HOFILEÑA 55
If the condition is already fulfilled at the time of Article 881. The appointment of the administrator of
execution of the will: the estate mentioned in the preceding article, as well as
the manner of the administration and the rights and
If testator obligations of the administrator shall be governed by the
unaware of fact Deemed fulfilled Rules of Court. (804a)
of fulfillment
• Between the time of the testator’s death and the
If can no longer Deemed time of the fulfillment of the suspensive condition
If testator aware
be fulfilled again fulfilled or of the certainty of its non-occurrence, property
of fact of
If can be fulfilled Must be is to be placed under administration
fulfillment
again fulfilled again o If condition happens: the property will be
turned over to the instituted heir
Rule on constructive compliance o If it becomes certain that condition will not
happen: the property will be turned over to
Casual Not applicable a secondary heir (if there is one), or to the
Dependent intestate heirs.
partly on Not applicable • This article does not apply to institutions with a
chance term (governed by Article 885, par.2)
3rd party is an
Mixed Dependent Applicable
interested party Article 884. Conditions imposed by the testator upon
partly on
3rc party is not the heirs shall be governed by the rules established for
the will of a Not
an interested conditional obligations in all matters not provided for by
third party applicable
party this Section. (791a)

Article 880. If the heir be instituted under a suspensive TERMS

condition or term, the estate shall be placed under
administration until the condition is fulfilled, or until it
becomes certain that it cannot be fulfilled, or until the
arrival of the term.
The same shall be done if the heir does not give the
security required in the preceding article. (801a)
Article 878. A disposition with a suspensive term does
not prevent the instituted heir from acquiring his rights
and transmitting them to his heirs even before the arrival
of the term. (799a)
• Rule is similar to that of fideicommissary
substitutions

BORJA - 3C 2018 - SUCCESSION | ATTY. HOFILEÑA 56

 • In dispositions with a term, the heir’s right vests
upon the testator’s death
o If the heir dies before the arrival of the
suspensive term, he merely transmits his
right to his own heirs who can demand the
property when the term arrives
• Balane: in conditional institutions, when the
instituted heir dies before the happening of the
condition, the law is silent as to what happens.
o HOWEVER, based on Article 1034(3), the
heir should be living and qualified to
succeed both at the time of the testator’s
death AND at the time of the happening of
the condition.
Article 885. The designation of the day or time when
the effects of the institution of an heir shall commence or
cease shall be valid.
In both cases, the legal heir shall be considered as called
to the succession until the arrival of the period or its
expiration. But in the first case he shall not enter into
possession of the property until after having given
sufficient security, with the intervention of the instituted
heir. (805)
Suspensive term Resolutory term
Before the arrival of the term, the property should
be delivered to the intestate heirs
Caución Muciana Caución Muciana not
required required
MODES
Article 882. The statement of the object of the
institution, or the application of the property left by the
testator, or the charge imposed by him, shall not be
considered as a condition unless it appears that such was
his intention.
That which has been left in this manner may be claimed
at once provided that the instituted heir or his heirs give
security for compliance with the wishes of the testator
and for the return of anything he or they may receive,
together with its fruits and interests, if he or they should
disregard this obligation. (797a)
• Mode - an obligation imposed upon the heir,
without suspending (unlike a condition) the
effectivity of the institution
• Mode must be clearly imposed as an obligation in
order to be considered one.
o Mere preferences/wishes by testator are not
modes
• Mode functions similarly to a resolutory condition.
• Caución Muciana should be posted by the
instituted heir.
Rabadilla v. CA: The institution of an heir in the manner
prescribed in Article 882 is what is known as a modal
institution. In a modal institution, the testator states:
1. The object of the institution,
2. The purpose or application of the property left by
the testator, or
BORJA - 3C 2018 - SUCCESSION | ATTY. HOFILEÑA 57
 3. The charge imposed by the testator upon the heir.
A “mode” imposes an obligation upon the heir but it
does not affect the efficacy of his rights to the
succession. On the other hand, in a conditional
testamentary disposition, the condition must happen or
be fulfilled in order for the heir to be entitled to succeed
the testator.
The condition suspends but does not obligate; the mode
obligates but does not suspend.
Article 883 (par. 1). When without the fault of the heir,
an institution referred to in the preceding article cannot
take effect in the exact manner stated by the testator, it
shall be complied with in a manner most analogous to
and in conformity with his wishes.
CASES FOR 871-885
Miciano v. Brimo: The condition imposed upon the
legatee is that he respect the testator’s order that his
property be distributed in accordance with Philippine
law, rather than Turkish law (he’s Turkish btw). This
condition is void because, in the Philippines, national
law governs testamentary disposition. Being illegal, the
condition shall be considered not written, thus making
the institution of legatees unconditional.
SECTION 5
Legitime
Article 886. Legitime is that part of the testator's
property which he cannot dispose of because the law has
reserved it for certain heirs who are, therefore, called
compulsory heirs. (806)
• Legitime - portion of testator’s property that is
reserved (for compulsory heirs)
• Free or disposable portion - portion that is left
available for testamentary disposition after the
legitimes have been covered
• GR: testator is prohibited from disposing by
gratuitous title (either inter vivos or mortis cause)
of these legitimes.
o EX: dispositions by onerous title are not
prohibited
§ Reason: in theory, nothing is lose
from the estate since in an onerous
disposition there is merely an
exchange of values.
Article 887. The following are compulsory heirs:
(1) Legitimate children and descendants, with
respect to their legitimate parents and ascendants;
(2) In default of the foregoing, legitimate parents
and ascendants, with respect to their legitimate
children and descendants;
(3) The widow or widower;
BORJA - 3C 2018 - SUCCESSION | ATTY. HOFILEÑA 58
 (4) Acknowledged natural children, and natural o GR: succeed as compulsory heirs together
children by legal fiction; with primary or secondary heirs
§ EX: Illegitimate children/
(5) Other illegitimate children referred to in article descendants exclude illegitimate
287. parents.
• Important differences between legitimate and
Compulsory heirs mentioned in Nos. 3, 4, and 5 are not illegitimate
excluded by those in Nos. 1 and 2; neither do they exclude
one another. Legitimate Illegitimate
Legitimate parent can only Illegitimate parent can be
In all cases of illegitimate children, their filiation must be be barred by a legitimate barred by both
duly proved. child/descendant legitimate/illegitimate
children/descendants
The father or mother of illegitimate children of the three Can only be represented by Can be represented by either
classes mentioned, shall inherit from them in the manner legitimate legitimate/illegitimate
and to the extent established by this Code. (807a) children/descendants children/descendants
Legitimate ascending line Illegitimate ascending line
Primary Secondary Concurring includes ascendants of includes only parents; it does
compulsory compulsory heirs compulsory whatever degree not go beyond the parents
heirs heirs
• Legitimate • Legitimate • Surviving THE COMPULSORY HEIRS
children parents/ascend spouse
and/or ants • Illegitimate 1. Legitimate children
descendant • Illegitimate children 2. Legitimate descendants
s parents and/or 3. Legitimate parents
descendants 4. Legitimate ascendants
5. Surviving spouse
6. Illegitimate children
• Primary - preferred over, and exclude, the 7. Illegitimate descendants
secondary 8. Illegitimate parents
• Secondary - receive legitimate only in default of
the primary
• Concurring

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SURVIVING SPOUSE
Rosales v. Rosales: the surviving spouse referred to in
Article 887 is the spouse of the decedent, NOT the
spouse of a child who has predeceased the decedent.
SOME OTHER NOTES: Intestate or legal heirs are
classified into 2 groups: (1) those who inherit by their
right, and (2) those who inherit by the right of
representation… In this case, there is no provision in the
Civil Code which states that a widow (surviving spouse)
is an intestate heir of her mother-in law.
• Marriage between the decedent and his/her
surviving spouse must be either valid or voidable.
o If voidable, there should have been no final
decree of annulment at the time of the
decedent’s death.
• Mere estrangement is not a ground for the
disqualification of the surviving spouse as an heir.
• Effect of decree of legal separation:
o On the offending spouse: disqualification
o On the innocent spouse: no effect
Lapuz v. Eufemio: Being personal in character, it follows
that the death of one party to the action for legal
separation, during the pendency thereof, causes the
death of the action itself.
A review of the resulting changes in property relations
between spouses shows that they are solely the effect of
the decree of legal separation. Hence, they cannot
survive the death of the plaintiff if it occurs prior to the
decree. Without the decree, such rights do not even
come into existence, so that before the finality of a
decree, these claims are merely rights in expectation.
• In Lapuz, it does not matter who dies, whether it
be the offending or the innocent spouse.
ILLEGITIMATE CHILDREN
• Family Code abolished the distinction between
natural and spurious children as regards their
inheritance.
o HOWEVER, pursuant to Article 777, If
death occurred before the effectivity of the
Family Code on August 3, 1988, the old
distinctions apply and the spurious child
gets only 4/5 of the natural child’s share
ILLEGITIMATE DESCENDANTS
• Nearer exclude the more remote, without
prejudice to the right of representation.
Illegitimate Child Legitimate Child
Can be represented by both Can be represented only by
legitimate and illegitimate legitimate descendants
ascendants
ILLEGITIMATE PARENTS
Illegitimate Ascending Line Legitimate Ascending Line
Includes only parents Includes ascendants of
whatever degree
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 Share (of estate,
Illegitimate Parents Legitimate Parents Basis
Permutation unless otherwise
Excluded by legitimate and Excluded only by legitimate (Article)
specified)
illegitimate children children/descendants
LC 1/2 888

 
1/2 LC
VARIATIONS IN THE LEGITIMARY PORTIONS LC + SS 892(2)
Share of one LC - SS
1/2 LC
Take note of the following legend for the next section: 1 LC + SS 892(1)
1/4 SS
1/2 LC 176, Fam.
1. LC - legitimate children LC + IC
1/2 of one LC - IC Code
2. LP - legitimate parents
LC + IC + SS
3. SS - surviving spouse
*Share of SS is 1/2 LC
4. IC - illegitimate children
preferred over those 1/2 of one LC - IC 895
5. IP - illegitimate parents
of IC, which shall be Share of one LC - SS
reduced if necessary
• GR: a basic quota of ½ is given to one heir or one
1 LC + IC + SS
group of heirs
Share of SS is 1/2 LC
• THREE EXCEPTIONS: preferred over those 1/2 of one LC - IC 895
of IC, which shall be 1/4 SS
Share (of estate, reduced if necessary
Basis
Permutation unless otherwise LP 1/2 889
(Article)
specified) 1/2 LP
1/3 SS LP + IC 896
SS + IC 894 1/4 IC
1/3 IC 1/2 LP
SS in a marriage in LP + SS 893
1/3 SS 900(2) 1/4 SS
articulo mortis 1/2 LP
1/4 SS LP + IC + SS 1/4 IC 899
SS + IP 903
1/4 IP 1/8 SS
1/2
SO WHAT ARE THE PERMUTATIONS? EX: 1/3, if the
SS 900(2)
marriage is in
articulo mortis
SS + IC 1/3 spouse 894

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 Share (of estate, The latter may freely dispose of the remaining half,
Basis
Permutation unless otherwise subject to the rights of illegitimate children and of the
(Article)
specified) surviving spouse as hereinafter provided. (808a)
1/3 children
1/4 spouse • Equal sharing: legitimate children share the one-
SS + IP 903
1/4 parents half in equal parts, regardless of age, sex, or
IC 1/2 901 marriage of origin.
IP 1/2 903 • Descendants other than children: as a general rule,
the nearer exclude the more remote. Hence,
• Q: Is an adopted child entitled to a legitime from grandchildren cannot inherit since the children
his biological parents/ascendants? will bar them, uncles all the children renounce, in
A: Yes, under Article 189(3) of the Family Code. which case the grandchildren become the nearest
However, under the current laws on adoption are in degree.
silent. It neither gives, nor denies an adopted child o EX: the only qualification to the rule that
the right to a legitime from his biological the nearer exclude the more remote in the
parents/ascendants. descending line is the right of
representation, when proper
Baritua v. CA: Parents of the deceased succeed only • No limit to the number of degrees in the
when the deceased dies without a legitimate descendant. descending line that may be called to succeed,
On the other hand, the surviving spouse concurs with all whether in their own right or by representation
classes of heirs.
Article 889. The legitime of legitimate parents or
Here, since Bienvenido was married to Alicia and they ascendants consists of one-half of the hereditary estates
begot a child, Bienvenido’s parents are not successor’s in of their children and descendants.
interest; they are not compulsory heirs. This is so even if
Alicia has been estranged form Bienvenido. Mere The children or descendants may freely dispose of the
estrangement is not a legal ground for the other half, subject to the rights of illegitimate children
disqualification of a surviving spouse as an heir of the and of the surviving spouse as hereinafter provided.
deceased spouse. (809a)

Article 888. The legitime of legitimate children and Article 890. The legitime reserved for the legitimate
descendants consists of one-half of the hereditary estate parents shall be divided between them equally; if one of
of the father and of the mother.

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the parents should have died, the whole shall pass to the If there are two or more legitimate children or
survivor. descendants, the surviving spouse shall be entitled to a
portion equal to the legitime of each of the legitimate
If the testator leaves neither father nor mother, but is children or descendants.
survived by ascendants of equal degree of the paternal
and maternal lines, the legitime shall be divided equally In both cases, the legitime of the surviving spouse shall be
between both lines. If the ascendants should be of taken from the portion that can be freely disposed of by
different degrees, it shall pertain entirely to the ones the testator. (834a)
nearest in degree of either line. (810)
Deceased is Surviving spouse gets his
• The ascending line succeeds only in default of the offending legitime (Art. 63(4), Fam. Code)
legitimate descending line spouse
Final
Deceased is Surviving spouse is disqualified
• Three basic rules decree of
innocent from inheritance (Art. 63(4),
1. Nearer exclude the more remote legal
spouse Fam. Code)
o Unlike in descending line, there is no separation
Reconciliation Reciprocal right to succeed is
representation in ascending line between restored
o This is why “if the ascendants should be of spouses
different degrees, it shall pertain entirely to Proceedings are terminated and
the ones nearest in degree of either line” Death pendent lite for legal the surviving spouse inherits
2. Division by line separation from the deceased spouse
o Legitime is divided in equal parts between (Lapuz v. Eufemio)
the parternal and maternal line Two scenarios:
3. Equal division within the line
o Equal apportionment between or among the 1. If both consorts in the
recipients within the line, should there be second marriage were in
more than one. good faith, they continue to
Termination of marriage by be heirs of each other
reappearance of prior 2. If only one of said consorts
Article 892. If only one legitimate child or descendant spouses/ decree of acted in bad faith, the
of the deceased survives, the widow or widower shall be annulment/ absolute nullity innocent one will continue
entitled to one-fourth of the hereditary estate. In case of a to be an heir of the other.
legal separation, the surviving spouse may inherit if it
was the deceased who had given cause for the same. Note: Art 43(5), Fam. Code
states “The spouse who

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 contracted the subsequent
marriage in bad faith shall be
disqualified to inherit from the
innocent spouse by testate and
intestate succession”
Article 893. If the testator leaves no legitimate
descendants, but leaves legitimate ascendants, the
surviving spouse shall have a right to one-fourth of the
hereditary estate.
This fourth shall be taken from the free portion of the
estate. (836a)
Article 894. If the testator leaves illegitimate children,
the surviving spouse shall be entitled to one-third of the
hereditary estate of the deceased and the illegitimate
children to another third. The remaining third shall be at
the free disposal of the testator. (n)
Article 895. The legitime of each of the acknowledged
natural children and each of the natural children by legal
fiction shall consist of one-half of the legitime of each of
the legitimate children or descendants.
The legitime of an illegitimate child who is neither an
acknowledged natural, nor a natural child by legal fiction,
shall be equal in every case to four-fifths of the legitime of
an acknowledged natural child.
The legitime of the illegitimate children shall be taken
from the portion of the estate at the free disposal of the
testator, provided that in no case shall the total legitime
of such illegitimate children exceed that free portion, and
that the legitime of the surviving spouse must first be
fully satisfied. (840a)
• Depending on the number of legitimate and
illegitimate children, the possibility exists that the
total legitimes will exceed the entire estate.
• Reduction will have to be made in accordance with
the following rules:
1. The legitimes of the legitimate children should
never be reduced; they are primary and
preferred compulsory heirs
2. The legitime of the surviving spouse should
never be reduced; this article prohibits this
3. The legitime of the illegitimate children will be
reduced pro rata and without preference
among them
Article 896. Illegitimate children who may survive with
legitimate parents or ascendants of the deceased shall be
entitled to one-fourth of the hereditary estate to be taken
from the portion at the free disposal of the testator.
(841a)
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Article 897. When the widow or widower survives with
legitimate children or descendants, and acknowledged
natural children, or natural children by legal fiction, such
surviving spouse shall be entitled to a portion equal to the
legitime of each of the legitimate children which must be
taken from that part of the estate which the testator can
freely dispose of. (n)
Article 898. If the widow or widower survives with
legitimate children or descendants, and with illegitimate
children other than acknowledged natural, or natural
children by legal fiction, the share of the surviving spouse
shall be the same as that provided in the preceding
article. (n)
Article 899. When the widow or widower survives with
legitimate parents or ascendants and with illegitimate
children, such surviving spouse shall be entitled to one-
eighth of the hereditary estate of the deceased which
must be taken from the free portion, and the illegitimate
children shall be entitled to one-fourth of the estate
which shall be taken also from the disposable portion.
The testator may freely dispose of the remaining one-
eighth of the estate. (n)
Article 900. If the only survivor is the widow or
widower, she or he shall be entitled to one-half of the
hereditary estate of the deceased spouse, and the testator
may freely dispose of the other half. (837a)
If the marriage between the surviving spouse and the
testator was solemnized in articulo mortis, and the
testator died within three months from the time of the
marriage, the legitime of the surviving spouse as the sole
heir shall be one-third of the hereditary estate, except
when they have been living as husband and wife for more
than five years. In the latter case, the legitime of the
surviving spouse shall be that specified in the preceding
paragraph. (n)
• GR: when the surviving spouse is the sole
compulsory heir, said spouse is entitle to 1/2 of the
estate
o EX: 1/3 of the estate, if the following
circumstances are present:
1. The marriage was in articulo mortis
2. The testator died within 3 months from the
time of the marriage
3. The parties did not cohabit for more than 5
years, and
4. The spouse who died was the party in
articulo mortis at the time of the marriage*
*The last requisite is not explicit in the Article but can be
derived from the intent of the provision.
Article 901. When the testator dies leaving illegitimate
children and no other compulsory heirs, such illegitimate
children shall have a right to one-half of the hereditary
estate of the deceased.
The other half shall be at the free disposal of the testator.
(842a)
Article 902. The rights of illegitimate children set forth
in the preceding articles are transmitted upon their death
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to their descendants, whether legitimate or illegitimate.
(843a)
Article 903. The legitime of the parents who have an
illegitimate child, when such child leaves neither
legitimate descendants, nor a surviving spouse, nor
illegitimate children, is one-half of the hereditary estate
of such illegitimate child. If only legitimate or illegitimate
children are left, the parents are not entitled to any
legitime whatsoever. If only the widow or widower
survives with parents of the illegitimate child, the
legitime of the parents is one-fourth of the hereditary
estate of the child, and that of the surviving spouse also
one-fourth of the estate. (n)
• Note that in the illegitimate ascending line, the
right does not go beyond the parents.
• As secondary compulsory heirs, the illegitimate
parents are inferior to legitimate parents.
o Legitimate parents are excluded only by
legitimate children.
o Illegitimate parents are excluded by all
kinds of children, legitimate or illegitimate.
CASES FOR 886-903 (SANS 891)
De Aparicio v. Paraguya: One who has no compulsory
heirs may dispose by will all of his estate or any part of it
in favor of any person having capacity to succeed. In the
last will and testatement of Fr. Lumain, he not only
acknowledged appellee Consolacion as his natural
daughter but designated her as his only heir. As Fr.
Lumain died without any compulsory heirs, Consolacion
is there his lawful heir as duly instituted in his will.
RESERVA TRONCAL
Article 891. The ascendant who inherits from his
descendant any property which the latter may have
acquired by gratuitous title from another ascendant, or a
brother or sister, is obliged to reserve such property as he
may have acquired by operation of law for the benefit of
relatives who are within the third degree and who belong
to the line from which said property came. (871)
• Purpose of reserva troncal: to assure the return of
the reservable property to the third degree
relatives belonding to the line from which the
property originally came, and to avoid its being
dissipated by the relatives of the inheriting
ascendant (reservista).
• Requisites:
1. That the property was acquired by a
descendant from an ascendant or from a
brother or sister by gratuitous title,
2. That said descendant died without an issue,
3. That the property is inherited by another
ascendant by operation of law, and
4. That there are relatives within the 3rd degree
belonging to the line from which said property
came
• REQ #1 - acquisition is by gratuitous title
(donation or succession of whatever kind)
• REQ #2 - should be read “that said person died
without legitimate issue” because only legitimate
descendants will prevent the property from being
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 inherited by the legitimate ascending line by
operation of law
• REQ #3 - transmission by operation of law is
limited to succession, either to the legitime or by
intestacy, NOT testamentary succession.
PROCESS OF RESERVA TRONCAL
• First transfer - by gratuitous title, from a person to
his descendant, brother, or sister
• Second transfer - by operation of law, from the
transferee in the first transfer to another
ascendant
o This transfer creates the reserva
• Third transfer - from the transferee in the second
transfer to the relatives (reservatarios)
• reserve
Solivio v. CA: The reserve troncal applies to properties
inherited by an ascendant from a descendant who
inherited it from another ascendant, brother, or sister. It
does NOT apply to property inherited by a descendant
from his ascendant, the reverse of the situation covered
by Article 891.
Here, the property of the deceased, Esteban Javellana,
Jr., is not reservable property. Esteban was not the
ascendant, but the descendant of his mother, from
whom he inherited the properties in question. Therefore,
he did not hold his inheritance subject to a reservation
in favor of his aunt, who is a relative within the 3rd
degree. (Basically: while there was a “first transfer,”
there was no “second transfer” which would have
created the reserva. In fact, Esteban did not have any
other ascendants to make this possible).
Since the deceased Esteban Javellana, Jr. without
descendants, ascendants, illegitimate children, surviving
spouse, brothers, sisters, nephews, or nieces, what
should apply in the distribution of his estate are Articles
1003 and 1009 of the Civil Code.
PARTIES TO RESERVA TRONCAL
1. Origin/Mediate source - transferor in the first
transfer
2. Prepositus - first transferee, who is a descendant,
brother, or sister of the Origin
3. Reservista (Reservor) - ascendant obliged to
4. Reservatarios (Reservees) - relatives within the 3rd
degree of the Prepositus who are benefited
• 2 basic rules:
o No inquiry is to be made beyond the Origin.
It does not matter who owned the property
before the Origin acquired it.
o All the relationships among the parties
must be legitimate. (Nieva v. Alcala)
ORIGIN/MEDIATE SOURCE
• Ascendant, brother, or sister of the Prepositus
o Ascendant - may be of any degree
PREPOSITUS
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 • Descendant, brother, or sister of the Origin
o Receives the property from the Origin by
gratuitous title
• While the property is still with the Prepositus,
there is as yet no reserva. Reserva only arises
upon the second transfer. Consequently, while the
Prepositus owns the property, he has all the rights
of ownership over it and may exercise such rights
in order to prevent the reserva from arising (i.e.,
o This is why the Prepositus is known as the
“arbiter” of the reserva troncal
o He can do this in any of the following ways:
§ Substituting or alienating the
property
§ Bequeathing or devising it either to
the potential reservista or to 3rd
persons, subject to the constraints of
the legitime, or
§ Partitioning in such a way as to
assign the property to parties other
than the potential reservista, subject
to the constraints of the legitime
RESERVISTA
• Ascendant of the Prepositus, of whatever degree
• Must be an ascendant other than the Origin (if the
latter is also an ascendant)
RESERVATARIOS
• Reserva is in favor of a class, collectively known as
the reservatarios
• Requirements:
1. Must be within the 3rd degree (of
consanguinity) from the Prepositus
2. Must belong to the line from which the
property came
• As long as the reservatario is alive at the time of
the reservista’s death, he qualifies as such,
even if he was conceived and born after the
Prepositus’ death.
Padura v. Baldovino: Reserva troncal merely determines
the group of relatives (the reservatarios) to whom the
property should be returned; but within that group, the
individual right to the property should be decided by the
applicable rules of ordinary intestate succession, since
Article 891 does not specify otherwise.
LONGER EXPLANATION: The purpose of reserva
troncal is accomplished once the property has devolved
to the specified relatives of the line of origin. But from
this time on, there is no further occasion for its
application. In the relations between one reservatario
and another of the same degree, there is no call for
applying Article 891 any longer; wherefore, the
respective share of each in the reversionary property
should be governed by the ordinary rules of intestate
succession. Upon the death of the ascendant reservista,
the reservable property should pass, not to all the
reservatarios as a class, but only to those nearest in
degree to the descendant (prepositus), excluding those
reservatarios of more remote degree.
Here, it is not correct to say that the reservistas,
BORJA - 3C 2018 - SUCCESSION | ATTY. HOFILEÑA 68
nephews of the half blood and nephews of the whole
blood, should be apportioned equal shares to the
reservable property. Rather, we follow the rule that
whole blood brothers and nephews are entitled to a
share double that of brother and nephews of half blood.
• According to the Padura ruling, which subjects the
choice of reservatarios to the rule of intestate
succession, those reservatarios nearer in degree of
relationship to the Prepositus will exclude those
more remotely related.
Florentino v. Florentino: As in intestate succession, the
rule of preference of degree among reservatarios is
qualified by the rule of representation.
Ascendants do not inherit the reservable property, but
its enjoyment, use, or trust, merely for the reason that
said law imposes the obligation to reserve and preserve
the same for certain designated persons who, on the
death of the said ascendants-reservists, acquire the
ownership of said property by operation of law in the
same manner as forced heirs. The property reverts to
said line as long as the aforementioned persons who,
from the death of the ascendant-reservists acquire in
fact the right of reservatarios, and are relatives, within
the 3rd degree, of the descendant from whom the
reservable property came.
When there are relatives of the descendant within the 3rd
degree, the right of the nearest relative, called
reservatario, over the property which the reservista
should return to him, excludes that of the one more
remote. The right of representation cannot be alleged
when the one claiming the same as reservatario of the
reservable property is not among the relatives within the
3rd degree belonging to the line from which the property
came. Therefore, relatives of the 4th and succeeding
degrees can never be considered reservatarios, since the
law does not recognize them as such.
Nevertheless, there is a right of representation on the
part of reservatarios who are within the 3rd degree, as in
the case of nephews o the deceased person from whom
the property came. These reservatarios have the right to
represent their ascendants who are brothers and sisters
if the said deceased person and relatives within the 3rd
degree.
• There will only be one instance of representation
among the reservatarios: a case of the Prepositus
being survived by (a) brothers/sisters and (b)
children of a predeceased/incapacitated brother/
sister.
Edroso v. Sablan: The reservista required by Article 891
to reserve the property has the rights of use and
usufruct. Moreover, the reservista has the legal title and
dominion, although under a condition subsequent:
whether or not there exists, at the time of his death,
relatives within the 3rd degree from the prepositus. (a) if
such relatives exist, they acquire ownership of the
property at the death of the descendant, or (b) if they do
not exist, the ascendant can freely dispose of the
BORJA - 3C 2018 - SUCCESSION | ATTY. HOFILEÑA 69
property.
The reservista has the right to dispose of the property
reserved, although under a condition. He has the right to
recover it, because he is the one who possesses or should
possess it and have title to it, although a limited and
revocable one. In a word, the legal title and dominion,
even though under a condition, reside in him while he
lives. After the right required by law to be reserved has
been assured, he can do anything that a genuine owner
can do.
HOWEVER, it must be noted that an act of disposal
mortis causa (i.e., executing a will) in favor of persons
other than relatives within the 3rd degree of the
descendant form whom he got the property to be
reserved must be prohibited because this alone has been
the object of the law: “to prevent persons outside a
family from securing, by some accident of life, property
that should have otherwise remained therein”
Here, the reservista was therefore entitled to register the
reservable property in her own name, recording in the
registration the right required by Article 891 to be
reserved to the reservatarios, should they survive her.
• From Edroso, the following may be derived:
1. The reservista’s right over the reserved
property is one of ownership.
2. The ownership is subject to a resolutory
condition (i.e., the existence of reservatarios at
the time of the reservista’s death)
3. The right of ownership is alienable, but subject
to the same resolutory condition.
4. The reservista’s right of ownership is
registrable.
Sienes v. Esparcia: The reserva creates 2 resolutory
conditions: (1) the death of the reservista, and (2) the
survival, at the time of the reservista’s death, of relatives
within the 3rd degree belonging to the line from which
the property came.
The reservista has the legal title and dominion to the
reservable property but subject to a resolutory
condition; that he is like a usufructuary of the reservable
property but subject to the reservation, said alienation
transmitting only the revocable and conditional
ownership of the reservista, the rights acquired by the
transferee being revoked or resolved by the survival of
the reservatarios at the time of the reservista’s death.
Here, the sale made by Gutang in favor of appellees was
therefore subject to the condition that the vendees
would definitely acquire ownership, by virtue of the
alienation, only if the vendor died without being
survived by any person entitled to the reservable
property. When Gutang died, Cipriana (reservatario)
were still alive. Thus, thes sale became of no legal effect
and the reservable property sold passed in exclusive
ownership to Cipriana.
On the other hand, the reserva instituted by law in favor
of the heir within the 3rd degree belonging to the line
from which the reservable property came, constitutes a
BORJA - 3C 2018 - SUCCESSION | ATTY. HOFILEÑA 70
real right which the reserve may alienate and dispose of,
albeit conditionally, the condition being that the
alienation shall transfer ownership to the vendee only if
and when the reserve survives the person obliged to
reserve.
Here, it is also clear that the sale made by Cipriana in
favor of spouses Sienes was subject to a similar
resolutory condition. Cipriana, reservatario, was still
alive when Gutang died. Thus, the former became the
absolute owner of the reservable property upon Gutang’s
death.
• From Sienes, the following may be derived or
implied:
1. The reservatarios have a right of expectancy
over the property.
2. The right is subject to a suspensive condition
(i.e., the expectancy ripens into ownership if
the reservatarios survive the reservista).
3. The right is alienable, but subject to the same
suspensive condition.
4. The right is registrable.
Gonzales v. CFI: The reservista has no power to appoint,
by will, which of the reservatarios are to get the
reserved property. In other words, the reservista may
not, by will, choose the reserve to whom the reservable
property should be awarded.
Here, to allow the reservor to make a testamentary
disposition of the reservable properties in favor of the
reserves in the third degree, to the exclusion of those in
the second degree, would be a glaring violation of Article
891. The reservor could not dispose of in her will the
properties in question even if the disposition is in favor
of the relatives within the 3rd degree from the prepositus.
Said properties, by operation of Article 891, should go to
the reservor’s six children as reserves within the 2nd
degree form the prepositus.
NOTE: reservees do not inherit from the reservor but
from the prepositus, of whom the reserves are the heirs
mortis causa subject to the condition that they must
survive the reservor.
• Upon the reservista’s death, the property passes
by strict operation of law (according to the rules of
intestate succession [Padura v. Baldovino]) to the
proper reservatarios. Thus, the selection of which
reservatarios will get the property is made by law
and not by the reservista.
THE PROPERTY RESERVED
• Kind of property reserved: any kind
• Effect of substitution: the very same property must
go through the process of transmissions, described
above, in order for the reserve to arise.
o If the Prepositus substitutes the property by
selling, bartering, or exchanging it, the
substitute cannot be reserved.
o While the property is with the Prepositus,
there is yet no reserve troncal, which
commences only when the property is
received by the reservista. Thus, the
BORJA - 3C 2018 - SUCCESSION | ATTY. HOFILEÑA 71
 Prepositus has, over the property, plenary
powers of ownership, and he may exercise
these powers to thwart a potential reserva.
§ The Prepositus is the “arbiter” of the
reserve.
Cano v. Director: Reserved property is not part of the
reservista’s estate upon his death.
The contention that an intestacy proceeding is still
necessary rests upon the assumption that the
reservitario will succeed in, or inherit, the reservable
property from the reservista. This is not true. The
reservatario is not the reservista’s successor mortis
causa nor is the reservable property part of the
reservita’s estate.
The reservatario receives the property as a conditional
heir of the Prepositus. Upon the death of the reservista,
the reservitario nearest to the Prepositus becomes
automatically and by operation of law, the owner
of the reservable property. That property is no part of
the reservista’s estate. Hence, its acquisition by the
reservatario may be entered in the property records
without necessity of estate proceedings.
Where the registration decree merely specifies the
reservable character of the property without
determining the identity of the reservatario or where
several reservatarios dispute the property among
themselves, further proceedings would be unavoidable.
But that is not the case here. The rights of the
reservatoria Guerrero have been expressly recognized,
and there are no other reservatarios of equal or nearer
degree.
• The Cano ruling is perfectly consistent with the
principle that the reserved property, upon the
reservista’s death, passed to the reservatarios by
strict operation of law.
• Since the reserved property is not computed as
part of the reservista’s estate, it is not taken into
account in determining the legitimes of the
reservista’s compulsory heirs.
RESERVA MÁXIMA/MINIMA
• Problem will arise if two circumstances occur::
1. The Prepositus makes a will instituting the
ascendant-reservista to the whole or a part of
the free portion, and
2. Upon his death, in addition to the reserved
property, property not reservable is left in the
Prepositus’ estate.
• Two theories:
1. Reserva maxima - as much of the potentially
resevable property as possible must be deemed
included in the part that passes by operation of
law.
2. Reserva minima - every single property in the
Prepositus’ estate must be deemed to pass,
partly by will and partly by operation of law, in
the same proportion that the part given by will
bears to the part not so given.
**While both views are defensible, minima
finds wider acceptance here.
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RIGHTS AND OBLIGATIONS
• The reservatarios’ rights (and reservista’s
corresponding obligations) are:
o To inventory the reserved properties,
o To annotate the reservable character (if
registered immovable) in the Registry of
Property (See Sumaya v. IAC)
o To appraise the movables
o To secure by means of mortgage:
§ The indemnity for any deterioration
of or damage to the property
occasioned by the reservista’s fault
or negligence, and
§ The payment of the value of such
reserved movables as may have been
alienated by the reservista onerously
or gratuitously
EXTINGUISHMENT
• Reserva troncal may be extinguished by:
1. Death of the reservista
2. Death of all the reservatarios
3. Renunciation by all the reservatarios,
o Provided that no other reservatario is
born subsequently
4. Total fortuitous loss of the reserved property
5. Confusion or merger of rights
o i.e., when the reservatarios acquire the
reservista’s right by a contract inter
vivos
6. Prescription or adverse possession
CASES FOR 891
Sumaya v. IAC: The reservable character of a property
may be lost to innocent purchasers for value.
We do not agree with the disposition of the lower court
that there is no need to register the reservable character
of the property, if only for the protection of the
reservees, against innocent third persons.
Similar to the rule in reserva viudal where the person
obliged to reserve had the obligation to annotate in the
Registry of Property the reservable character of the
property, in reserva troncal, the reservoir has the duty
to reserve and therefore, the duty to annotate the title
also.
Consistent with the PD 1529 (Property Registration
Decree), “The act of registration shall be the operative
act to convey or affect the land insofar as third persons
are concerned…”
Mendoza v. Delos Santos: Reserva troncal does not
apply here.
FIRST: The lineal character of the reservable property is
reckoned from the ascendant from whom the prepositus
received the property by gratuitous title.
Here, the ownership of the property should be reckoned
only from Exequiel, as he is the ascendant from where
the first transmission occurred, or from whom Gregoria
(prepositus) inherited the properties in dispute. The law
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 does not go farther than such ascendant/brother/sister
in determining the lineal character of the property.
SECOND: Article 891 provides that the person obliged to
preserve the property should be an ascendant of the
prepositus. Julia, however, is not Greogoria’s ascendant;
rather, she is Gregoria’s collateral relative (aunt).
THIRD: The person from whom the degree of
relationship should be reckoned is the prepositus,
Gregoria in this case. First cousins of the
descendant/prepositus are fourth-degree relatives and
cannot be considered reservees/reservatarios.
They cannot even claim representation of their
predecessors, who are within the third degree. Article
891 grants a personal right of reservation only to the
relatives up to the third degree from the prepositus.
Thus, the only recognized exemption is in the case of
nephews and nieces of the prepositus, who have the
right to represent their ascendants (fathers and
mothers) who are the brothers/sisters of the prepositus,
and relatives within the third degree.
Article 904. The testator cannot deprive his compulsory
heirs of their legitime, except in cases expressly specified
by law.
Neither can he impose upon the same any burden,
encumbrance, condition, or substitution of any kind
whatsoever. (813a)
• Legitime is not within the testator’s control. It
passed to the compulsory heirs by strict operation
of law.
• GR: Testator has no power to deprive the
compulsory heirs of their legitimes.
o EX: disinheritance (Article 919-921)
• GR: Testator is devoid of power to impose burdens
on legitime.
o EX:
1. Article 1080(2) - See Codal
2. Article 1083(1)
“Every co-heir has the right to demand
the division of the estate unless the
testator should have expressly forbidden
the partition, in which case the period of
indivision shall not exceed 20 years, as
provided in Article 494. This power of
the testator to prohibit division applies
to the legitime.”
3. Article 159, Family Code
“The family home shall continue despite
the death of one or both spouses or the
unmarried head of the family for a
period of 10 years or for as long as there
is a minor beneficiary, and the heirs
cannot partition the same unless the
court finds compelling reasons therefor.
This rule shall apply regardless of
whoever owns the property or
constituted the family home.”
4. Reserva troncal
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Article 905. Every renunciation or compromise as
regards a future legitime between the person owing it and
his compulsory heirs is void, and the latter may claim the
same upon the death of the former; but they must bring
to collation whatever they may have received by virtue of
the renunciation or compromise. (816)
• Reason: before the predecessor’s death, the heir’s
right is inchoate.
• Duty to collate: Any property which the
compulsory heir may have gratuitously received
from his predecessor by virtue of the renunciation
or compromise will be considered an advance on
his legitime and must be duly credited.
• This Article applies only to transactions of
compromise or renunciation between the
predecessor and the prospective compulsory heir.
o Q: What about a transaction between the
prospective compulsory heir and another
prospective compulsory heir/stranger?
A: Prohibited, but under Article 1347(2):
“No contract may be entered into upon
future inheritance, except in cases expressly
provided by law.”
Article 906. Any compulsory heir to whom the testator
has left by any title less than the legitime belonging to
him may demand that the same be fully satisfied. (815)
Article 907. Testamentary dispositions that impair or
diminish the legitime of the compulsory heirs shall be
reduced on petition of the same, insofar as they may be
inofficious or excessive. (817)
• Article 906: known as the “right of completion of
legitime”
• GR: Anything that a compulsory heir receives by
gratuitous title from the predecessor is considered
an advance on the legitime and is deducted
therefrom.
o EX:
1. If the predecessor gave the compulsory
heir a donation inter vivos and provided
that it was not to be charged against the
legitime (Article 1062)
2. Testamentary dispositions made by the
predecessor to the compulsory heir,
unless the testator provides that it
should be considered part of the
legitime. (Article 1063)
• Collation - the act by virtue of which descendants
or other forced heirs who intervene in the division
of the inheritance of an ascendant brings into the
common mass the property which they received
from him, so that the division may be made
according to the law and the will of the testator
(Vizconde v. CA)
Article 908. To determine the legitime, the value of the
property left at the death of the testator shall be
considered, deducting all debts and charges, which shall
not include those imposed in the will.
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To the net value of the hereditary estate, shall be added
the value of all donations by the testator that are subject
to , at the time he made them. (818a)
• Computing the hereditary estate
1. GROSS ASSETS. Inventory of all the existing
assets.
a. Appraisal/valuation of existing assets at
the time of the decedent’s death. These
are properties that survive the decedent,
and are not extinguished by his death.
2. AVAILABLE ASSETS. Deducting unpaid debts
and charges.
Available Assets = Gross Assets - Unpaid obligations of
the decedent
a. Only those obligations with monetary
value which are not extinguished by
death are considered. Obligations which
are purely personal are not considered.
3. NET HEREDITARY ESTATE. Adding the value
of donations inter vivos
Net Hereditary Estate = Gross Assets - Unpaid
Obligations + Donations Inter Vivos
Net Hereditary Estate = Available Assets + Donations
Inter Vivos
a. Donations inter vivos shall be
valued as of the time they were
made
Vizconde v. CA: Collation is only required of compulsory
heirs succeeding with other compulsory heirs and
involves property or rights received by gratuitous title
from the decedent during the latter’s lifetime.
Collation does not impose any lien on the property or
the subject matter of the collationable donation. What is
brought to collation is not the property donated itself,
but rather the value of such property at the time it was
donated, the rationale being that the donation is a real
alienation which conveys ownership upon its
acceptance. Hence any increase/decrease in value is for
the account of the heir or donee.
Here, collation does not apply. First, the petitioner, son-
in-law of the decedent, is not one of the compulsory
heirs. Second, the order of the probate court subjecting
the Parañaque property to collation is premature.
Nothing indicates that the legitime of any of the
decedent’s heirs has been impaired to warrant collation.
Third, even assuming collation is warranted, the
collation of the Parañaque property is improper because
it was transferred by way of deed of sale. Collation
covers only properties gratuitously given by the decedent
during his lifetime to his compulsory heirs.
Article 909. Donations given to children shall be
charged to their legitime.
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Donations made to strangers shall be charged to that part
of the estate of which the testator could have disposed by
his last will.
Insofar as they may be inofficious or may exceed the
disposable portion, they shall be reduced according to the
rules established by this Code. (819a)
Article 910. Donations which an illegitimate child may
have received during the lifetime of his father or mother,
shall be charged to his legitime.
Should they exceed the portion that can be freely
disposed of, they shall be reduced in the manner
prescribed by this Code. (847a)
• Donations inter vivos to compulsory heirs is
generally imputed to his legitime (considered an
advance)
o EX: unless donor provides otherwise
(Article 1062), in which case the donation
will be imputed to the disposable portion
• Donations inter vivos to strangers (i.e., anyone
who does not succeed as a compulsory heir) are
imputed to the disposable portion.
Article 911. After the legitime has been determined in
accordance with the three preceding articles, the
reduction shall be made as follows:
(1) Donations shall be respected as long as the
legitime can be covered, reducing or annulling, if
necessary, the devises or legacies made in the will;
(2) The reduction of the devises or legacies shall be
pro rata, without any distinction whatever.
If the testator has directed that a certain devise or
legacy be paid in preference to others, it shall not
suffer any reduction until the latter have been
applied in full to the payment of the legitime.
(3) If the devise or legacy consists of a usufruct or
life annuity, whose value may be considered
greater than that of the disposable portion, the
compulsory heirs may choose between complying
with the testamentary provision and delivering to
the devisee or legatee the part of the inheritance of
which the testator could freely dispose. (820a)
• Order of priorities in reduction of testator’s
gratuitous dispositions:
o First, reduce pro rata the non-preferred
legacies and devises (Article 911(2)) and the
testamentary dispositions to heirs (Article
907).
§ Among these legacies, devises, and
testamentary dispositions, there is
no preference.
o Second, reduce pro rata preferred legacies
and decises (Article 911, last par.)
o Third, reduce the donations inter vivos
according to the inverse order of their dates
(Article 773)
§ Oldest is the most preferred.
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 • Reductions shall be to the extent required to
complete the legitimes, even if in the process the
disposition is reduced to nothing.
Article 912. If the devise subject to reduction should
consist of real property, which cannot be conveniently
divided, it shall go to the devisee if the reduction does not
absorb one-half of its value; and in a contrary case, to the
compulsory heirs; but the former and the latter shall
reimburse each other in cash for what respectively
belongs to them.
The devisee who is entitled to a legitime may retain the
entire property, provided its value does not exceed that of
the disposable portion and of the share pertaining to him
as legitime. (821)
• This article applies when (1) the devise has to be
reduced, but (2) is indivisible.
If the extent of the reduction is less
Give to the devisee
than ½ of the value of the thing
If extent of reduction is ½ or more Give to the
than the value of the thing compulsory heir
• In either case, there should be pecuniary
reimbursement to the part who did not get his
physical portion of the thing devised.
Article 913. If the heirs or devisees do not choose to
avail themselves of the right granted by the preceding
article, any heir or devisee who did not have such right
may exercise it; should the latter not make use of it, the
property shall be sold at public auction at the instance of
any one of the interested parties. (822)
• This article applies if neither party (compulsory
heir and devisee) elects to exercise his right in
Article 912.
• This rule of constructive partition is similar to that
in co ownership (Article 498) and in partition of
the decedent’s estate (Article 1086).
o Except that in these two later cases, the
acquisition by one of the co-owners or co-
heirs can only be done if all the co-owners
or co-heirs agree to such acquisition
(Compare to this article)
Article 914. The testator may devise and bequeath the
free portion as he may deem fit. (n)
CASES FOR 904-914
Vda de Tupas v. RTC: Compare this with Vizconde v. CA
A person’s prerogative to make donations is subject to
certain limitations, one of which is that he cannot give
by donation more than her can give by will. If he does, so
much of what is donated as exceeds what he can give by
will is deemed inofficious and the donation is reducible
to the extent of such excess, though without prejudice to
its taking effect in the donor’s lifetime or the donee’s
appropriating the fruits of the things donated.
Such a donation is collationable. Its value is imputable
into the hereditary estate of the donor at the time of his
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death for the purpose of determining the legitime of the mere inchoate hereditary right therein. Thus, the deed of
compulsory heirs and the freely disposable portion of sale is void.
the estate. This is true as well of donations to strangers
as of gifts to compulsory heirs, although the language of SECTION 6
Article 1061 would seem to limit collation to donations Disinheritance
made to compulsory heirs.
Article 915. A compulsory heir may, in consequence of
The fact, therefore, that the donated property no longer disinheritance, be deprived of his legitime, for causes
formed part of the donor’s estate at the time of his death expressly stated by law. (848a)
cannot be asserted to prevent its being brought to
collation. • Requisites of valid disinheritance:
1. Must be made in a will
**It seems that the better rule is that collation applies to 2. Must be for a cause specified by law
strangers as well, contrary to what Vizconde said. 3. Must specify the cause
4. Must be unconditional
De Belen Vda. De Cabalu v. Tabu: No contract may be 5. Must be total
entered into upon future inheritance, except in cases 6. Cause must be true
expressly authorized by law. Otherwise, it is void. 7. If the truth of the cause is denied, the
(Article 1347) proponent must prove it.
• Strict requirement: disinheritance is not favored.
The law applies when the following requisites concur: • Effect of disinheritance: not just deprivation of the
legitime, but total exclusion from the inheritance
1. The succession has not yet been opened, (legitime, intestate portion, testamentary
2. The object of the contract forms part of the disposition made prior to disinheritance)
inheritance, and
3. The promisor has, with respect to the object, an Article 916. Disinheritance can be effected only through
expectancy of a right which is purely hereditary in a will wherein the legal cause therefor shall be specified.
nature. (849)

Here, At the time the deed of sale was executed by Article 917. The burden of proving the truth of the cause
Domingo (compulsory heir), Faustina (testator)’s will for disinheritance shall rest upon the other heirs of the
was not yet probated; the land still formed part of the testator, if the disinherited heir should deny it. (850)
inheritance from Faustina’s estate; and Domingo had a

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Article 918. Disinheritance without a specification of
the cause, or for a cause the truth of which, if
contradicted, is not proved, or which is not one of those
set forth in this Code, shall annul the institution of heirs
insofar as it may prejudice the person disinherited; but
the devises and legacies and other testamentary
dispositions shall be valid to such extent as will not
impair the legitime. (851a)
• Ineffective disinheritance: if the disinheritance
lacks any of the requisites, the heir in question gets
his legitime.
• As to whether he will get any part of the intestate
portion, it depends on whether the testator gave
away the free portion through testamentary
disposition.
o If he did, these dispositions are valid and
the compulsory heir improperly
disinherited gets only his legitime.
o If he did not, the compulsory heir will be
entitled to his corresponding share of the
free portion as well.
Ineffective
Preterition
Disinheritance
Annul the institution of Annul the institution of
heirs heirs insofar as it may
prejudice the person
disinherited
Devises and legacies are valid insofar as they do not
impair the legitime
Article 919. The following shall be sufficient causes for
the disinheritance of children and descendants,
legitimate as well as illegitimate:
(1) When a child or descendant has been found
guilty of an attempt against the life of the testator,
his or her spouse, descendants, or ascendants;
(2) When a child or descendant has accused the
testator of a crime for which the law prescribes
imprisonment for six years or more, if the
accusation has been found groundless;
(3) When a child or descendant has been convicted
of adultery or concubinage with the spouse of the
testator;
(4) When a child or descendant by fraud, violence,
intimidation, or undue influence causes the
testator to make a will or to change one already
made;
(5) A refusal without justifiable cause to support
the parent or ascendant who disinherits such child
or descendant;
(6) Maltreatment of the testator by word or deed,
by the child or descendant;
(7) When a child or descendant leads a
dishonorable or disgraceful life;
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 (8) Conviction of a crime which carries with it the
penalty of civil interdiction. (756, 853, 674a)
PAR 1: When a child or descendant has been
found guilty of an attempt against the life of the
testator, his or her spouse, descendants, or
ascendants
• Attempt should not be construed as to limit the
provision to the attempted stage of the felony
• Felony must be intentional
• Final conviction is required.
PAR 2: When a child or descendant has accused
the testator of a crime for which the law
prescribes imprisonment for six years or more, if
the accusation has been found groundless
• “accused” is used in a general sense, and will
include filing of the complaint, presenting
incriminating evidence against the testator, or
even suppressing exculpatory evidence.
• Should be phrased as “more than 6 years
imprisonment” because 6 years still falls within
prision correccional.
• Testator must be acquitted.
• Accusation must be found to be groundless
o Judgment of acquittal must state that no
crime was committed.
o An acquittal on reasonable doubt will not be
a ground for disinheritance
PAR 3: When a child or descendant has been
convicted of adultery or concubinage with the
spouse of the testator;
• Final conviction is required.
PAR 5: A refusal without justifiable cause to
support the parent or ascendant who disinherits
such child or descendant
• There must have been a demand for support
• Demand must have been unjustifiably refused
o If testator does not have enough resources,
he can refuse.
PAR 6: Maltreatment of the testator by word or
deed, by the child or descendant
• Includes a wide range of misdeeds, but the act of
verbal/physical assault must be of a serious nature
• No conviction is required.
o Thus, physical assault that would not fall
under par. 1 could fall under this par.
PAR 7: When a child or descendant leads a
dishonorable or disgraceful life
• There must be habituality to the conduct
• Dishonorable or disgraceful conduct or pattern of
behavior need not be sexual in nature.
PAR 8: Conviction of a crime which carries with
it the penalty of civil interdiction
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 • Final conviction is required.
Article 920. The following shall be sufficient causes for
the disinheritance of parents or ascendants, whether
legitimate or illegitimate:
(1) When the parents have abandoned their
children or induced their daughters to live a
corrupt or immoral life, or attempted against their
virtue;
(2) When the parent or ascendant has been
convicted of an attempt against the life of the
testator, his or her spouse, descendants, or
ascendants;
(3) When the parent or ascendant has accused the
testator of a crime for which the law prescribes
imprisonment for six years or more, if the
accusation has been found to be false;
(4) When the parent or ascendant has been
convicted of adultery or concubinage with the
spouse of the testator;
(5) When the parent or ascendant by fraud,
violence, intimidation, or undue influence causes
the testator to make a will or to change one already
made;
(6) The loss of parental authority for causes
specified in this Code;
(7) The refusal to support the children or
descendants without justifiable cause;
(8) An attempt by one of the parents against the
life of the other, unless there has been a
reconciliation between them. (756, 854, 674a)
• Paragraphs 2, 3, 4, 5, 7 here have been discussed
under Article 919. (See notes thereunder)
PAR 1: When the parents have abandoned their
children or induced their daughters to live a
corrupt or immoral life, or attempted against
their virtue
• Abandonment - not restricted to those instanced of
abandonment penalized by law, but includes all
conduct constituting repeated or total
refusal/failure to care for the child
• Inducement to live a corrupt or moral life - same
ground as that given in Article 231(2) of the Family
Code as a ground for suspension or deprivation of
parental authority.
• Attempted against virtue - no conviction required
PAR 6: The loss of parental authority for causes
specified in this Code
• Not all causes for loss of parental authority are
grounds for disinheritance (i.e., attainment of age
of majority)
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 • Only those causes which involve the culpability on
the part of the parents will provide grounds for
disinheritance:
1. Judicial deprivation of parental authority on
the ground of sexual abuse,
2. Loss of parental authority as a result of judicial
declaration of abandonment of the child,
3. Judicial deprivation of parental authority on
the grounds of:
a. Excessively harsh or cruel treatment,
b. Giving the child corrupting orders,
counsel, or example,
c. Compelling the child to beg, or
d. Subjecting the child or allowing him to
be subjected to acts of lasciviousness
PAR 8: An attempt by one of the parents against
the life of the other, unless there has been a
reconciliation between them
• No conviction is require
Article 921. The following shall be sufficient causes for
disinheriting a spouse:
(1) When the spouse has been convicted of an
attempt against the life of the testator, his or her
descendants, or ascendants;
(2) When the spouse has accused the testator of a
crime for which the law prescribes imprisonment
of six years or more, and the accusation has been
found to be false;
(3) When the spouse by fraud, violence,
intimidation, or undue influence cause the testator
to make a will or to change one already made;
(4) When the spouse has given cause for legal
separation;
(5) When the spouse has given grounds for the loss
of parental authority;
(6) Unjustifiable refusal to support the children or
the other spouse. (756, 855, 674a)
• Paragraphs 1, 2, 3, and 6 have been enumerated
under Article 919 and discussed thereunder.
PAR 4: When the spouse has given cause for legal
separation
• Decree of legal separation is not required
• Causes for legal separation are under Article 55 of
the Family Code
PAR 5: When the spouse has given grounds for
the loss of parental authority
• Giving grounds for loss of parental authority is
sufficient
o Unlike in Article 920(6) where actual loss of
authority is needed)
Article 922. A subsequent reconciliation between the
offender and the offended person deprives the latter of
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the right to disinherit, and renders ineffectual any
disinheritance that may have been made. (856)
If reconciliation occurs before Right to disinherit is
disinheritance is made extinguished
If reconciliation occurs after Disinheritance is set
disinheritance is made aside
• Effect of setting aside the disinheritance:
o Disinherited heir is restored to his legitime
o If the disinheriting will did NOT dispose of
the disposable portion, the disinherited heir
is entitled to his proportionate share (in
intestacy) of the disposable portion.
o If the disinheriting will or any subsequent
will disposed of the disposable portion in
favor of testamentary heirs, legatees, or
devises, such disposition remain valid.
Article 923. The children and descendants of the person
disinherited shall take his or her place and shall preserve
the rights of compulsory heirs with respect to the
legitime; but the disinherited parent shall not have the
usufruct or administration of the property which
constitutes the legitime. (857)
• Right of representation is granted only to
descendants of disinherited descendants.
• Under Article 972: “the right of representation
takes place in the direct descending line, but never
in the ascending.”
o Thus, a disinherited child will be
represented by his children or other
descendants.
o HOWEVER, if the heir disinherited is the
parent/ascendant or spouse, the children ot
descendants of the disinherited heir do not
have any right of representation.
• Representation occurs in compulsory and intestate
succession, but not in testamentary succession.
o Extent of representation: the representative
takes the place of the disinherited heir not
only with respect to the legitime, but also to
any instestate portion that the disinherited
heir would have inherited.
CASES FOR 915-923
Pecson v. Mediavillo: Disinheritance shall only take
place for one of the causes expressly fixed by law. The
courts may inquire into the validity of a disinheritance,
and if they find that the disinheritance was without
cause, that part of the testament or will may be
pronounced null and void.
Here, it is alleged that that the granddaughter was guilty
of disobedience and disrespect as to warrant her
disinheritance. However, taking into consideration her
tender years, and the fact that she lost the use of her
mental faculties, reached the conclusion that she was
probably not responsible for the disrespect and
disobedience shown to her grandfather.
Francisco v. Francisco-Alfonso: Gregorio Francisco,
BORJA - 3C 2018 - SUCCESSION | ATTY. HOFILEÑA 84
decedent, did not own any other property aside from the
parcels of land that he sold to his illegitimate daughters,
at the expense of his legitimate daughter. The sale
deprives the latter of her share in her father’s estate. By
law, she is entitle to half of her father’s estate as his only
legitimate child.

Gregorio’s legal heirs must be determined in proper

testate or intestate proceedings for settlement of the
estate. His compulsory heir cannot be deprived of her
share in the estate save by disinheritance as prescribed
by law.

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