SUCCESSION

NOTES

PART 1: INTRODUCTION
A. SUCCESSION
1. Concept & Definition
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.
A mode of acquisition
Mode the legal means by which dominion or ownership is created, transferred or destroyed
Title only constitutes the legal basis by which to affect dominion or ownership (in succession, title is
acquired either by will or by operation of law)

The property, rights and obligations to the extent of the value of the inheritance
Inheritance is the universality of the estate (Estate = Inheritance)
To the extent that they are transmissible or not extinguished by death
Property in this case refers to those which can be appropriated
Rules:
1) The rights which are purely personal are intransmissible
2) The rights which are patrimonial or relating to property are generally not extinguished by death,
except those expressly provided by law or the will of the testator
3) The rights of obligation are generally transmissible both with respect to the rights of the creditor and
the obligations of the debtor

Exceptions:
a)
those which are personal in the sense that the personal circumstances of the debtor
have been taken into account
b)
those that are intransmissible by express agreement or by will of the testator
c)
those that are intransmissible by express provision of law, such as life pensions
given under contract
d)
when stipulated by the parties

Of a person
Decedent general term applied to the person whose property is transmitted through succession, whether
or not he left a will
Testator term for a decedent who has left a will

Are transmitted through death

Death consolidates the inchoate right of the decedent
At the moment of death, ownership, possession, etc. is transmitted (the correct term should be vested)
Death includes those who are presumed dead
Article 390 (ordinary absence): After an absence of 10 years, a person shall presumed dead for the
purpose of opening his succession; but if he disappeared after the age of 75, an absence of 5 years
will be sufficient (death is on the last day of period of absence)
Article 391(extraordinary absence): The following are presumed to be dead for ALL purposes:
a)
a person on board a vessel lost during a sea voyage, or an aeroplane which is
missing, who has not been heard of for 4 years since the loss of the vessel or aeroplane
b)
a person in the armed forces who has taken part in war, and had been missing for
4 years
c)
a person who has been in danger of death under other circumstances and his
existence has not been known for 4 years
NOTE: The date of death is fixed on the day of the occurrence of the death

If there is a doubt as between 2 or more persons who are called to succeed each other, as to which of them
died first, whoever alleges the death of one prior to the other, shall prove the same; in the absence of
proof, they shall be considered to have died at the same time.
Note: repudiation or acceptance of the inheritance retroacts to the moment of death

To another or others
Refers to the heirs, devisees and legatees
Heir a person called to succession either by the provision of a will or by operation of law
Kinds of heirs:
a) compulsory succeeds by force of law, which they cannot be deprived of except by a valid
disinheritance
b)
voluntary or testamentary instituted in a will, but only with regard to the free
portion
c)
legal or intestate those who succeed when the decedent dies without a will OR
the portion of the estate not disposed of by will
Devisee one to whom REAL property is given by will
Legatee one to whom PERSONAL property is given by will
The distinction between heirs, devisees and legatees is critical:
a) in preterition
b) with regard to property (definition by JBL Reyes):
heirs one who succeeds to the whole or an aliquot part of the inheritance
devisees and legatees - those who succeed to definite, specific and individual properties
Either by his will or by operation of law
Succession may be:
1) Testamentary that which results from the designation of an heir, made in a will executed in the form
prescribed by law
2) Legal or intestate that which results when the decedent left no will
3) Mixed when there is a party validly disposed of by will and another part not validly disposed of, or
to which no heir is designated by the testator

Distinguish between future inheritance and future property:

1) Future inheritance you cannot enter into a contract with regard to this; it is not in existence or is
incapable of determination at the time of the perfection of the contract
2) Future property you can enter into a contract with this

B. BASIC KINDS OF SUCCESSION (Arts. 776-780 in rel. to A. 84 of FC & A. 725-773, NCC)

Donation Inter Vivos
Donation Mortis Causa

1. Succession Inter Vivos v. Succession Mortis Causa

Transfer of property, rights or obligations during the lifetime of the decedent
2. Succession Mortis Causa
Takes effect upon the death of the person/decedent
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a. Forced (A. 886, et seq.)

Legitime is that part of the testators property which he cannot dispose of because the law has reserved it
for certain heirs who are, therefore, called compulsory heirs.
It is a system of legitime, imposed by law and not dependent on the intent/will of the decedent. It is
superior than other kinds of succession as the legitime must be secured before disposal of the remainder
of the estate.
b. Testamentary (A. 779)
Testamentary succession is that which results from the designation of an heir, made in a will executed in
the form prescribed by law.
c. Legal Intestate (A. 960, et. seq.)
Legal or intestate succession takes place:
1. If a person dies without a will, or with a void will, or one which has subsequently lost its validity;
2. When the will does not institutes an heir to, or disposes of all the property belonging to the
testator. In such case, legal succession shall take place only with respect to the property of which
the testator has not disposed;
3. If the suspensive condition attached to the institution of heir does not happen or is not fulfilled, or
if the heir dies before the testator, or repudiates the inheritance, there being no substitution, and
no right of accretion takes place;
4. When the heir instituted is incapable of succeeding, except in cases proceed in this Code.
d. Mixed (A. 780)
Mixed succession is that effected partly by will and partly by operation of law.
3. Contractual Succession (in rel. to A. 84 of the FC)
Happens when a future husband and future wife give to each other in their marriage settlement as much of
their future property, in the event of death, as they may validly dispose of in a will. It does not need the
formalities of a will; a marriage settlement, which must comply with the Statue of Frauds as to form (in
writing) is sufficient.
C. ELEMENTS OF SUCCESSION MORTIS CAUSA (A. 774 in rel. to A. 775, 777. 781 and 782)
1. Modes of transmitting/acquiring ownership (A. 774 in rel. to A. 712)
A. 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.
A. 712: Ownership is acquired by occupation and by intellectual creation.
Ownership and other real rights over property are acquired and transmitted by law, by donation, by testate and
intestate succession, and in consequence of certain contracts, by tradition.
They may be acquired by means of prescription.
2. Transmission/Acquisition through Death (A. 777)
A. 777: The rights to the succession are transmitted from the moment of the death of the decedent.
a. Presumptive Death (A. 390-396, NCC)
A. 390: After an absence of 7 years, it being unknown whether or not the absentee still lives, he shall be presumed
dead for all purposes, except for those of succession.
The absentee shall not be presumed dead for the purpose of opening his succession till after an absence of
10 years. If he disappeared after the age of 75 years, an absence of 5 years shall be sufficient in order that his
succession may be opened.
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A.391: The ff. shall be presumed dead for all purposes, including the division of the estate among the heirs:
a. a person on board a vessel; lost during a sea voyage, or an aeroplane which is missing, who has not
been hear of for four years since the loss of the vessel or aeroplane;
b. A person in the armed forces who has taken part in war, and has been missing for four years;
c. A person who has been in danger of death under other circumstances and his existence has not been
known for 4 years.
A. 392: If the absentee appears, or w/o appearing his existence is proved, he shall recover his property in the
condition in which it may be found, and the price of any property that may have been alienated or the property
acquired therewith; but he cannot claim either fruits or rents.
A. 393: Whoever claims a right pertaining to a person whose existence is not recognized must prove that he was
living at the time his existence was necessary in order to acquire said right.
A. 394: Without prejudice to the provisions of the preceding article, upon the opening of a succession to which an
absentee is called his share shall accrue to his coheirs, unless he has heirs, assigns, or representative. They shall
all, as the case may be, make an inventory of the property.
A. 395: The provision of the preceding article are understood to be without prejudice to the action of petition for
inheritance or other rights which are vested in the absentee, his representatives or successors in interest. These
rights shall not be extinguished save by lapse of time fixed for prescription. In the record that is made in the
Registry of the real estate which accrues to the coheirs, the circumstances of its being subject to the provisions of
this article shall be sated.
A. 396: Those who may have entered upon the inheritance shall appropriate the fruits received in good faith so
long as the absentee does not appear, or while his representatives or successors in interest doe not bring proper
actions.
b.Actual Death: (A.42-43, NCC)
A. 42: Civil personality is extinguished by death.
The effect of death upon the rights and obligations of the deceased is determined by law, by contract and
by will.
A. 43: If there is a doubt, as between two or more persons who are called to succeed to each other, as to which of
them died first, whoever alleges the death of one prior to the other, shall prove the same, in the absence of proof,
it is presumed that they died at the same time and there shall be no transmission of rights from one to the other.
3. Object of Succession (A. 776 & 781)
A. 776: The inheritance includes all the property, rights and obligations of a person which are not extinguished by
his death.
A. 781: The inheritance of a person includes not only the property and the transmissible rights and obligations
existing at the time of his death, but also those which have accrued thereto since the opening of the succession.
Inheritance v. Estate
Transmissible v. Intransmissible Property, Rights & Obligations
1. Rights extinguished by death
a. intransmissible personal rights family rights, marital and parental authority, support, action for legal
separation, partnership, agency, life annuity
b. right to claim acknowledgement or recognition as a natural right
c. right to hold public or private office or job
2. Rights not extinguished by death (and therefore part of the estate)
a. to bring or continue an action for forcible entry or unlawful detainer
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b. to compel the execution of a document necessary for convenience, provided the contract is valid and
enforceable under the Statute of Frauds
c. to continue a lease contract, unless otherwise provided for in the contract
d. property right in an insurance policy the interest of a beneficiary in a life insurance policy is a vested
interest provided the designation of the beneficiary is irrevocable
Existing v. Accrued Property
D. RATIONALE/BASIS OF SUCCESSION
1. Natural Law: Certain persons are the natural expected beneficiaries of the love of the owner of the property.
Therefore, a person accumulates wealth in his lifetime, such that upon his death, property may be given to his
beloved it leads to the stability of the family.
2. Personal Basis: Ownership of a property is a right inherent in ownership and thus, the right to dispose and such
may govern even up to the death of the owner, provided a valid will is executed. It merely respects and recognizes
this right post mortem.
3. Economic Basis: Law on succession prevents chaos that would ensue if two persons will be entitled to succeed
over the property. Thus, it is for stability of social order. It is a reinforcement of the constitutional provision that
ownership of property bares a social function property be devoted for gainful production to benefit community
as a whole and must not cease by death of the only owner.
E. BASIC PRINCIPLES OF SUCCESSION
1. No succession shall take place while the owner of the property is still alive. Heirs have only expectancy right
over the property; future property cannot be waived; any acceptance or repudiation made while the testator is
alive is without effect.
2. The hereditary estate devolves to the family of the owner; succession by strangers is never presumed.
* Intestacy relationship up to the 4th degree
* direct line and spouse = compulsory heir
3. Interest of the family may override the will/intention of testator for a will is valid only after legitime is
satisfied.
4. Family cannot be deprived of the hereditary estate unless expressly ordered otherwise through disinheritance,
or danger, preterition which will nullify the will.
5. Within the family relatives of equal degree to the decedent, they will inherit in equal shares unless they belong
to the different class.
6. State always has the right to succession in estate taxes, and in intestacy in the absence of a relative up to the
5th degree.
PART II: FORCED SUCCESSION
A. CONCEPT: (A. 886)
Legitme is that of the testators property which he cannot dispose of because the law has reserved it for certain
heirs who are therefore called compulsory heirs.
B. PURPOSE:
To protect the children and the surviving widow from the unjustifiable anger or thoughtlessness of the other
spouse.
C. INTANGIBLE RIGHT TO THE LEGITIME
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1. No Deprivation (A. 904 in rel. to Ar. 854)

A. 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.
A.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.
2. No Condition/Substitution (A. 904 in rel. to A. 872) Exceptions (A. 1080, 1083)
A.872: The testator cannot impose any charge, condition, or substitution whatsoever upon the legitimes
prescribed in this Code, Should he do so, the same shall be considered as not imposed.
Exceptions:
A.1080: Should a person make a partition of his estate by an act intervivos, or by will, such partition shall
be respected, insofar as it does not prejudice the legitime of the compulsory heirs.
A parent who, in the interest of his/her family, desires to keep any agricultural, industrial, or manufacturing
enterprise intact, may avail himself of the right granted him in this article, by ordering that the legitime of
the other children to whom the property is not assigned, be paid in cash.
A.1083: Every co-heir has a right to demand the division of the estate unless the testator should have
expressly forbidden its partition, in which case the period of indivision shall not exceed 20 years as provided
in A. 494. This power of the testator to prohibit division applies to the legitime.
Even though forbidden by the testator, the co-ownership terminates when any of the causes for which
partnership is dissolved takes place, or when the court finds for compelling reason that division should be
ordered, upon petition of the co-heirs.
3. No Compromise or Waiver (A. 905 in rel. to A. 6 and A. 1347, NCC, A. 1044)
A.905:Every renunciation or compromise as regards a future legitime between the person owing it and is
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.
A.6: Rights may be waived, unless the waivers is contrary to law, public order, public policy, morals or good
customs or prejudicial to a third person with a right recognized by law.
A.1347:All things which are not outside the commerce of men, including future things, may be the object of a
contract. All rights which are not intransmissible may also be the object of contracts.
No contract may be entered into upon future inheritance except in cases expressly authorized by law.
All services which are not contrary to law, morals, good customs, public order, or public policy
may likewise be the object of a contract.
A.1044:Any person having the free disposal of his property may accept or repudiate an inheritance.
Any inheritance left to minors or incapacitated persons may be accepted by their parents or guardians.
Parents or guardians may repudiate the inheritance left to their wards only by judicial authorization.
The right to accept an inheritance left to the poor shall belong to persons designated by the testator to
determine the beneficiaries and distribute the property, or in their default, to those mentions in A. 1030
person appointed, or executor or justice of peace, mayor, municipal treasurer, deciding in majority votes
of all questions applied when property is disposed of in favor of the poor of a definite locality.
4. No Impairment (A. 906 in rel. to A. 771-772 and A. 1381, par. 3, NCC)
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A.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.
A.771: Inofficious donations bearing in mind the estimated net value of the donors property at the time of his
death, shall be reduced with regard to the excess, but this reduction shall not prevent the donations from taking
effect during the life of the donor, nor shall it bar the donee from appropriating the fruits. (SEE A. 752, 911, 912
NCC)
A.772: Only those who at the time of the donors death have a right to the legitime and their heirs and successors
in interest may ask for the reduction of inofficious donations.
Those referred to in the preceding paragraph cannot renounce their right during the lifetime of the donor,
either by express declaration, or by consenting to the donation.
The donees, devisees and legatees, who are not entitled to the legitime and the creditors of the deceased
can neither ask for the reduction nor avail themselves thereof.
A.1381 (par 3):Rescissible contract:
Those undertaken in fraud of creditors when the latter cannot in any
other manner collect the claims due them.
D. COMPULSORY/FORCED HEIRS (A. 887)
1. Primary Forced Heirs (Art. 165, 172, 174, 175-176, FC)
A.165, FC: Children conceived and born outside a valid marriage are illegitimate, unless otherwise provided in
this Code.
A.172, FC: The filiation of legitimate children is established by any of the ff:
1. The record of birth appearing in the civil register or a final judgment; or
2. An admission of legitimate filiations in a public document or a private handwritten instrument and
signed by the parents concerned.
In the absence of the foregoing evidence, the legitimate filiation shall be proved by:
1. The open and continuous possession of the status of a legitimate child, or
2. Any other means allowed by the RRC and Special laws.
A.173, FC: The action to claim legitimacy may be brought by the child during his or her lifetime and shall be
transmitted to their heirs should the child die during minority or in a state of insanity. In these cases, the heirs
shall have a period of five years within which to institute the action.
The action already commenced by the child shall survive notwithstanding the death of either or both of
the parties.
A.174, FC: Legitimate children shall have the right:
1. To bear the surnames of the father and the mother, in conformity with the provisions of Civil Code on
Surnames;
2. To receive support from their parents, their ascendants and in proper cases, their brothers and sisters in
conformity with the provisions of this Code on Support;
3. To be entitled to the legitimate and other successional rights granted to them by the NCC.
A.175, FC: Illegitimate children may establish their illegitimate filiation in the same way and on the same
evidence as legitimate children.
The action must be brought within the same period specified in A. 173, except when the action is based
on the Second paragraph of A. 172, in which case the action may be brought during the lifetime of the alleged
parent.
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A.176, FC: Illegitimate children shall use the surname and shall be under the parental authority of their mother,
and shall be entitled to support in conformity with this Code. The legitime of an illegitimate child shall consist of
of the legitime of each legitimate child. Except for this modification, all other provisions in the NCC governing
successional rights shall remain in force.
E. PRINCIPLE OF CONCURRENCE v. PRINCIPLE OF EXCLUSION/RULE OF PROXIMITY
F. SHARES/LEGITIME
1. Free Portion v. Free Disposable Portion
2. Fixed Legitime v. Variable legitime
3. Legitimate Children & Descendants (A. 888)
A.888:
The legitime of legitimate children and descendants consists of of the hereditary estate of the
father and of the mother.
The latter may freely dispose of the remaining half subject to the rights of illegitimate children
and of t he surviving spouse as hereinafter provided.
4. Adopted Children (RA 8552)
5. Legitimate Parents & Ascendants (A. 889)
A.889:
The legitime of legitimate parents or ascendants consists of of the hereditary estate of their
children and descendants.
The children and descendants may freely dispose of the other half, subject to the rights of
illegitimate children and of the surviving spouse as hereinafter provided.
6.Surviving Spouse (A. 900, 892, 895, 893, 899, 894, 903)
A.900:
years

Only survivor is the widow/er, or if spouses had been living as husband and wife for more than 5
= of the hereditary estate.
Exception:

Marriage b/n surviving spouse and testator was solemnized in articulo mortis, for
which the spouse shall be entitled to 1/3 of the hereditary estate.

7. Illegitimate Children (A. 901, 895 in rel. to A. 176, FC, A. 899, 894)
A. 901:

Only illegitimate children and no other compulsory heirs = of the hereditary estate

A. 895:

Acknowledged natural & natural children superseded by FC

A. 899:

Widow + legitimate parents/ascendants + illegitimate children, spouse entitled to 1/8 from free
portion, ILC entitled to from disposable portion.

A. 894:

ILC + spouse = spouse entitled to 1/3 of the hereditary estate and the ILC, 1/3 also.

8. Illegitimate Parents (A. 903)

A. 903: Parents of ILC, such ILC leaves no spouse, nor ILC nor legitimate descendants, parents will get
of the hereditary estate.
If ILC has LC or ILC, parents not entitled at all. If only widow + parents of ILC, parents and
widow of the ILC will get each.
G.RULE ON DISTRIBUTION OF LEGITIMES
1.

Per Capita v. Stirpes

1. Right of Representation
A.970: Representation is a right created by fiction of law, by virtue of which the representative is raised
to the place and the degree of the person represented, and acquires the rights which eh latter would have if
he ere living or if he could have inherited.
A.972: It takes place in direct ascending line, never is the ascending. In collateral line, it takes place only
in favor of the children of brothers and sisters, full or half blood.
A.975: When children of one or more brothers or sisters of the deceased survive, they shall inherit from
the latter by representation, if they survive with their uncle or aunts. But if they survive alone, they shall
inherit in equal portions.
A.976: A person may represent him whose inheritance he has renounced.
A.977:

Heirs who repudiate their share may not be represented.

2. Legitimate Children and Descendants (A. 888 in rel. to A.974 & 969)
A.974: Whenever there is succession by representation, the division of the estate shall be made per
stirpes, in such manner that the representative/s shall not inherit more than what the person they represent
would inherit, if he were living or could inherit.
A.969: If the inheritance should be repudiated by the nearest relative, should there be one only, or by all
the nearest relatives called by law to succeed, should there be several, those of the following degree shall
inherit in their own right and cannot represent the person/s repudiating the inheritance.
3. Legitimate Parents & Ascendants (A. 890)
A.890: Legitime for them shall be divided b/n them equally; if one of the parents should have died, the
whole shall pass to the survivor.
If the testator leaves neither father nor mother, but is survived by ascendants of equal degree of
the paternal and maternal lines, the legitime shall be divided equally b/n both lines. If the ascendants
should be of different degrees, it shall pertain entirely to the ones nearest in degree of either line.
4. Surviving spouse (A. 892 and A.63, FC)
A.892: 1 LC or Descendant survives, widow entitled to . In case of legal separation, she/he would may
inherit if it was the deceased who had given cause for the same.
Two or more LC or descendants, spouse entitled to a potion equal tot eh legitime that can be
freely disposed of by testator.
5. Illegitimate Children & Descendants
6. Illegitimate Parents (A.903)
H. RESERVA TRONCAL (A.891)
1. Purpose: It seeks to prevent persons outside a family from securing, by some special accident of life,
property that would otherwise have remained therein.
2. Nature: The reserva creates a double resolutory condition to which the right of ownership of the person
obliged to reserve is subjected:
1) the death of the ascendant obliged to reserve
2) the survival at that moment of relatives within the 3 rd degree belonging to the line from which the
property came
3. Requisites:
1) that the property was acquired by a descendant from an ascendant or from a brother or sister by gratuitous
title
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2) that said descendant died without an issue

3) that the property is inherited by another ascendant by operation of law
4) that there are relatives within the 3rd degree belonging to the line from which said property came
4. Process of transfers:
1) First by gratuitous title, from a person to his descendant, brother or sister
2) Second by operation of law, from the transferee in the first transfer to another ascendant (this creates
the reserva)
3) Third from the transferee in the second transfer to the reservatarios
5. Parties (All must be legitimate relations):
1) Origin or mediate
The ascendant or brother or sister from whim the property originally came
It is immaterial whether the property came from some other person before it became property of the
other ascendant or the brother or sister
The ascendant may be of an degree of ascent

Should the brother/sister be of the full or half-blood? 2 opinions:

NOTE: Tolentino goes for the 2nd view

2) Prepositus
The descendant who acquired the property
by lucrative title from the origin
While the property is still in the
prepositus, there is as yet no reserva.
Consequently, the prepositus has all the
rights of ownership over the property any
may exercise such rights in order to
prevent a reserva from arising.
The prepositus is the arbiter of the reserva
troncal.

Relationship must be of
the half-blood because
otherwise the property
would not change lines
in passing to a common
ascendant of the
prepositus and the
brother. Hence, there
should be no reserva if it
is a full-blood
relationship because of
impossibility to identify
the line of origin

It does not matter

whether it is of the full
or half-blood. The law
does not distinguish, and
precisely the reservation
is in favor of a line,
whether paternal or
maternal

3) Reservista
Ascendant who received the property by operation of law from the descendant
He is the person obliged to reserve
The reservable property is NOT part of the estate of the reservista.
Gonzales: the reservista has NO power to appoint, by will, which reservatarios were to get the
reserved property
4) Reservatarios
The relatives benefited
Twin requirements:
1) within the 3rd degree from the prepositus
the following are the relatives within the 3rd degree:
a) father and mother
b) grandparents of the line from which the property came and the brothers of the full blood,
or those of the half-blood on the side from which the property came
c) great-grandparents, the uncles by consanguinity and the nephews and nieces
2) belonging to the line from which the property came
Must the reservatario also be related to the origin? Tolentino: YES. There must be a double relation
of consanguinity. Hence, the reservatario must be related by blood not only to the descendant but the
origin as well.
As long as the reservatario is alive at the time of the reservistas death, he qualifies as such, even if
he was conceived and born after the prepositus death
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Padua: the choice of reservatarios are subject to the rules of intestate succession, hence the rules on
preference of lines and proximity apply
Florentino: representation will also apply in reserva troncal, as long as the person representing is also
in the 3rd degree. Hence, there can only be one instance of representation, a case of the prepositus
being survived by brothers/sisters and children of a predeceased or incapacitated brother/sister
6. Rules on the Property subject to reservation:
1) there is no need to inquire into the source of property further than the origin
2) the prepositus must have acquired the property from the origin by lucrative title
3) the property from the prepositus must pass to the ascendant reservista by operation of law
Operation of law:
a) legitime in case of testamentary succession
b) entire inheritance in case of intestacy
NOTE: it should never pass by will
The reservation applies ONLY to properties which can be distinguished and individualized. NO
SUBSTITUTION is allowed, whether it is of the same king or value.
It should be noted that before the death of the prepositus, there is no reservation yet, and hence no
obligation to preserve the property
Maxima/minima:
For this 2 theories to apply, the following must concur:
a) prepositus institutes the ascendant-reservista to the whole or a part of the free portion
b) there is left in the prepositus estate, upon his death, in addition to reserved property, property
not reservable
If the requisites concur, apply either:
a) maxima the reserva should apply to the property that has been gratuitously acquired from
the origin that can be included within the legitime of the reservista
b) minima the property passing to the reservista passes partly by will and partly by law, in the
same proportion that the part given by will bears to the part not so given
7. Rights of the Reservista:
1) ownership over the property
2) ownership is subject to a resolutory condition (the existence of reservatarios at the time of the reservistas
death)
3) right of ownership is alienable, but subject to the same resolutory condition
4) reservistas right of ownership is registrable
8. Obligations of the Reservista:
1) to annotate in the Registry of Property the reservable character of the immovable
the reservista has a period of 90 days from the time the reserva arises, in which to register the
reservable character of the immovable property; if he does not voluntarily cause the registration
within that period, then the reservatarios may judicially demand that he be compelled to make it
2) to make an inventory of all the reservable property
the actual condition of the property should be described and their value stated
the form of the inventory is not important, however when real property is involved, it should be in a
public instrument
3) to constitute a mortgage or give a security to guaranty:
a) the restitution of personal property in the condition in which it may be found at the time of his death
b) the return of the price received for personal property alienated, or the delivery of its value at the time
of alienation if this has been made by gratuitous title
c) the payment of the damages caused by his fault or negligence
d) the value of the immovable property validly alienated
9. Rights of the Reservatarios:
1) Right of expectancy over the property
2) Right is subject to a suspensive condition (the expectancy ripens to ownership if the reservatarios survive
the reservista)
3) Right is alienable but subject to the same suspensive condition
11

Rules when the immovable has been alienated:

a) if the reserva is annotated transferee has only a conditional title
b) if the reserva is NOT annotated but the transferee had knowledge that there was a reserva
transferee has only a conditional title
c)
if the reserva is NOT annotated, the transferee had NO knowledge of the reserva, and there is NO
registration in the Registry: i.If the transferee registers such immovable the transferee has better title
i.
If the transferee does NOT register there are 2 views, but Tolentino holds that the good faith
buyer prevails since it was the reservatarios fault; the recourse is to go after the reservista.
4) Right is registrable
10. Extinguishment of theReserva:
1) death of the reservista
2) death of the reservatarios
3) total fortuitous loss of the property
4) renunciation
5) prescription
6) confusion or merger of rights
7) Torrens registration

PART III: TESTAMENTARY SUCCESSION

A.WILLS
1.Concept & Nature of Wills (A. 783)

A will is:
1. an act always be in writing (A. 804)
2. whereby a person natural persons only
3. is permitted right to make a will is only a privilege, not a natural right
4. with the formalities prescribed by law
5. to control to a certain degree the disposition of his estate limited by the system of legitimes and the
formalities required of wills
See: A. 842, 886; Riera v. Palmoli, 40 Phil 105 (1919)
6. to take effect after his death

2. Characteristics of the Testamentary Act (A. 783)

3.Rules in the Interpretation of Wills (A. 788-795)

4.Governing Law (A. 795, A. 815 819 in rel. to Art. 16-17 and 2263, NCC)

B. TESTAMENTARY CAPACITY
1.Testamentary Capacity v. Testamentary Power
2. In General (A. 796)
12

3.Age (A. 797 in rel. to R.A. 6809 and A. 13, NCC)

4.Soundness of Mind
C. FORMS OF WILLS (A. 804 805)
1.Basic Formalities & Purposes
2. In Writing
3.Nuncupative Wills
4.Language/Dialect

E.NOTARIAL WILLS (ORDINARY WILLS) (A. 805-809)

H. REVOCATION OF WILLS AND TESTAMENTARY DISPOSITIONS (A. 828-834)

1.Rule against Irrevocability (A. 828)
A will may be revoked by the testator at any time before his death. Any waiver or restriction of this right
is void.

Rules for revocation:

A) If made in the Philippines - follow Philippine law
B) If made outside the Philippines:
1) If the testator is NOT domiciled in the Philippines:
a) follow the law of the place where the will was made
b) follow the law of the place where the testator was domiciled at the time of the revocation
2) If the testator is domiciled in the Philippines:
a) follow Philippine law
b) follow the law of the place of revocation
c) follow the law of the place where the will was made

Modes of revoking a will:

A) By operation of law (no need for probate because it is revoked automatically)
1) acts of unworthiness (1032)
2) transformation, alienation or loss of the object devised or bequeathed (957)
3) preterition (854)
4) judicial demand of a credit given as a legacy (936)
5) legal separation
6) sale of the property given as devise or legacy, for the payment of the debts of the testator
B) By a subsequent will or codicil
Requisites:
13

1) subsequent instrument must comply with the formal requirements of a will

2) testator must possess testamentary capacity
3) the revocation may either be:
a) express - when the later will declares the former or all former wills revoked
b) implied - the later will merely makes dispositions inconsistent with those contained in the
subsequent will
Tolentino: No declaration of a fixed determination to revoke at some future time amounts to a revocation.
There must be PRESENT ACTION and not a mere intention to act. BUT the revocation may be made
conditional upon a future event
C) By physical destruction:
1) There are 4 ways:
a) burning - some part must be burned
b) tearing - it is enough that the paper be torn
c) cancelling
d) obliteration
2) May be done by:
a) the testator himself
b) another person: IN HIS PRESENCE and BY EXPRESS DIRECTION
NOTE: Effects of unauthorized destruction by another person:
a) there is NO revocation
b) if attested, the will may still be proved by secondary evidence
c) if holographic, a copy must be presented
3) There must be testamentary capacity
4) The following must concur: (Maloto)
a) intent to revoke
b) physical fact or actual destruction
5) There is a presumption of revocation: (Gago)
a) when a will cannot be found by proper and diligent search after the death of the testator, and it was
last seen with him
b) testator had ready access to the will and it couldn't be found after his death
c) mutilations, obliterations, and interlineations are PRESUMED to have been made after execution of
the will and for the purpose of revoking it
d) if shown that the will was NOT in the hands of the testator, the presumption that it was destroyed by
him does NOT arise
A revocation made in a subsequent will shall take effect even if the new will shall become inoperative
because of:
1) incapacity of the heirs, devisees or legacies
2) their renunciation
Doctrine of Dependent Relative Revocation:
Where the act of destruction is connected with the making of another will, so as fairly to raise the
inference that the testator meant the revocation of the old to depend upon the efficacy of the new
disposition intended to be substituted, the revocation will be conditional and dependent upon the efficacy
of the new disposition; and if for any reason, the new will intended to be made as a substitute is
inoperative, the revocation fails and the original will remain in full force
Art. 833 on False Cause: The law respects the testator's true intent. Hence, this article sets aside a revocation
not reflecting the intent. These are the requisites:
1) the cause must be concrete, factual, or illegal and NOT PURELY SUBJECTIVE
2) it must be false
3) the testator must NOT know of its falsity
4) it must appear FROM THE WILL that the testator is revoking because of the cause which is false
Art. 834: The recognition of an illegitimate child does not lose its legal effect, even though the will wherein it
was made should be revoked
Republication and Revival of Wills
14

Art. 836 (General Rule): The execution of a codicil referring to a previous will has the effect of republishing
the will as modified by the codicil
The article applies to:
1) a will void for a reason OTHER than a formal defect
2) a will previously revoked
Effect: the only thing necessary to REPUBLISH the will is for the testator to execute a subsequent
will or codicil referring to the previous will
Art. 835 (Exception): The testator cannot republish without reproducing in a subsequent will, the dispositions
contained in a previous one which is void as to its FORM
Mere reference to the prior will is NOT enough
The will is void only as to FORM
Tolentino:
Both articles above came from different sources
Conflict: under 836, a proper execution of a codicil extends also to the prior will, since the 2 are
incorporated as 1. And yet under 835, the void wills cannot be upheld by mere reference, they should
be reproduced entirely
Reconciliation: reproduction in the codicil is required only when the original will is void as to its
FORM, in all other cases (want of testamentary capacity or undue influence on the testator), reference
to the original will suffices to republish it through the codicil
Art. 837:
If after making a will, the testator makes a 2nd will expressly revoking the 1st, the revocation of the 2nd
will does NOT revive the first 1st will which can be revived only by another will or codicil
This covers ONLY express revocations
Balane: this is based on the theory of instant revocation. However this is inconsistent with the
principle that wills take effect mortis causa. Furthermore, to be effective, the 2 nd will must be
probated, but it has already been revoked by the 3rd will
Exception: where the 2nd will is holographic and it is revoked by physical destruction, because then,
the possibility of its probate is foreclosed
BUT if it is and IMPLIED REVOCATION (mere inconsistency between 2 wills), upon the
destruction of the 2nd will, the 1st is revived regardless of intention, provided the 1 st was preserved
(RATIO: the 2nd will which has the inconsistent provisions is mere intent and purely testamentary,
hence has no effect until death. If the instrument containing the intent is destroyed, it's as if no intent
was ever present)
note: you have to probate the 2nd will
2.Revocation of Will v. Annulment of Will

Revocation
Act of the testator
Presupposes a valid act
Takes place during the lifetime of
the testator
Testator cannot renounce the right
to revoke

Nullity
Proceeds from the law
Inherent in the testament be it an
intrinsic or extrinsic defect
Invoked after testators death by
the heirs
Can be disregarded by the heirs
through voluntary compliance

3.Partial v. Total Revocation

4.Revocation by Implication of Law (A. 830 [l] in rel. to Art. 823, 957 & 936 and A. 43 [5] and 44 of the FC
15

5.Revocation by Subsequent Will or Codicil (A. 830 [2])

a.Express v. Implied Revocation (A. 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.
*Implied determined my comparison where irreconcilable differences b/n the two wills. If there be
such, the prior will be revoked and the later will prevails.
*Harmonize the provisions of the two wills; if so possible, they are valid and effective.
*Partial revocation = revocation by implication.
*Will must be valid as to form.
b. Post mortem (Rules 76-77)
6.Jurisdcition & Procedure: Extrinsic Validity
Probate is the judicial process of authenticating the will; wxtrinsic validity is determined.
MTC P 300, 000 k as the maximum
MTC - Metro Manila P 400, 000
RTC above them
To probate a will means to prove before some officer or tribunal vested with law with authority for that
purpose, that the instrument offered to be proved is the last will and testament of the deceased person whose
testamentary act it is alleged to be, and that it has been executed attested and published as required by law,
and that the testator was of sound and disposing mind
Revocation vs. Disallowance:
No will shall pass either real or personal property unless it is proved and allowed in accordance with the
Rules of Court
Revocation
Disallowance
Voluntary act of the testator
By judicial decree
May be made even without cause Can be decreed only for the causes
provided by law
May be partial
Always total

Kinds of Probate
1) ante mortem that which is had during the lifetime of the testator
2) post mortem after the testators death
Characteristics of Probate Proceedings
1.it is always mandatory
*it cannot be dispensed with so long as testator died with a will.
*The mandatory character no will on real or personal property shall pass unless probated. Voluntary
heirs base their right on probated will.
16

2.it is imprescriptible not covered by Statue of Limitations

3.It is a proceeding in rem
Notice of Publication
jurisdictional
It binds all persons having interest who intervened
Or not
4.It cannot be barred by estoppels, being a mandatory.

v.
Issued

action in personam
summons to the

person

In holographic wills, if such will cannot be found, it is presumed to be revoked.

B. Republication
- the re-establishment of a prior will which is void as to form or which has been revoked; it is to give
effect of a prior will anew.
How Republished:
1.Void will = re-execute with all the formalities and solemnities required.
2.Revoked will
a. Re-execution
b. By codicil or will expressly re-establishing the revoked will by referring tot eh revoked will
(Incorporation by reference is used here for convenience)
Effect: 1. Date of publication is deemed the date of execution of the will.
2.After-acquired property shall pass by virtue of the republished will.
Revival
Q: What is the effect of revocation of the revoking will to a will first revoked?

Express revocation of the 1 st will by the 2nd will, the 3rd will cannot revive the 1 st will -----principle of
instanter: express revocation is always final and executory.

If first will is revoked impliedly, 3 rd will revocation of the 2nd will automatically revive the 1 st will by
operation of law to present intestacy, unless otherwise provided by testator.
A court acquires jurisdiction to probate a will
when it is shown that

1) a person has executed a will or has died leaving a will

2) in the case of a resident, that he resides or died in the province where the court exercises territorial jurisdiction
resides refers to the actual or physical place or abode
3) in the case of a non-resident, that he has estate in the province where the court is situated
4) that the testament or last will has been delivered to the court and is in the possession thereof
5.) Non-resident testator properties located in different places = the court that first acquires jurisdiction exclude
the others
Rules in Presentation for Probate

17

After executing the will, the testator may deposit such to a 3 rd person to hold for him but it is always subject
to his control
A person having custody of a will who neglects to deliver the same to the court without reasonable cause,
after notice by the court to do so, may be imprisoned until he delivers the will

Petition for Probate

Guevara: the probate of a will is MANDATORY

Any executor, devisee or legatee named in a will, or any other person interested in the estate, may, at any time
after the death of the testator, petition the court having jurisdiction to have the will probated or allowed,
whether the same be in his possession or not, or is lost or destroyed
Contents of the Petition:
1) the fact of the testators death, indicating the time and place
2) the fact that the deceased left a will, attaching a copy of such
3) the fact that the will was executed according to law
4) whether the person named as executor consents to act as such, or renounces his right to become an
executor
5) the names, ages and residences of the heirs, legatees and devisees of the decedent
6) the probable value and character of the property of the estate
7) the name of the person whose appointment as executor is prayed for
8) if the will has not been delivered to the court, the name of the person having custody thereof
Only persons interested in the allowance or disallowance of the will should be allowed to intervene in the
probate
A notice of hearing shall be sent to all the parties concerned. Without such, the proceedings shall be void and
should be annulled
The following must be proved at the hearing of the probate of the will:
1) the fact of the testators death, in post mortem probate
2) publication of notice of hearing
3) execution of the will with the formalities required by law
No lost or destroyed will shall be proved unless its execution and validity has been established and proved to
be in existence at the testators death, or shown to have been accidentally or fraudulently destroyed without
his knowledge, nor unless its provisions clearly and distinctly proved
Witnesses to the execution of the will should be presented. The number and character of witnesses to be
presented depends on each circumstance
Effects of Probate

18

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
Once a decree of probate becomes final in accordance with the rules of procedure, it is res judicata
A final decree of probate is conclusive as to the due execution of the will (i.e., as to the wills extrinsic or
formal validity only)
JV: The following are resolved in probate:
1) due execution (formalities)
2) capacity of the testator
a) mental capacity
b) no vitiation of consent
c) right age
3) will is genuine
this requirement was added by Gallanosa
this shows that Art. 839 us NOT exclusive
General 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 exception: this general rule is not inflexible and absolute; the probate of a will might become an
idle ceremony if on its face 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

Reyes:
1) Questions of title to property cannot be passed upon in the probate court. EXCEPT if the claimant and
ALL the other parties having legal interest in the property assent, expressly or impliedly to the submission
of the question to the probate court for adjudication
2) The jurisdiction of the probate court merely relates to matters having to do with the settlement of the
estate and the probate of wills of deceased persons, and the appointment and removal of administrators,
executors, guardians and trustees. The question of ownership is as a rule, cannot be resolved with finality.
Thus for the purpose of determining whether a certain property should be included in the inventory of the
estate proceeding, the probate court may pass upon the title thereto, but such is provisional and is subject
to the final decision in a separate action to resolve title
The probate of a will is not a bar to the probate of a codicil
The probate of a will is not a bar to the allowance of another will subsequently discovered, provided that the
latter is proved to be posterior to the one already probated, or if it is earlier, that the 2 wills can stand together
A grant of letters of administration in intestate proceedings is not a conclusive adjudication of intestacy, so as
to bar the probate of a will subsequently discovered
Disallowance of wills

The law enumerates the different grounds for disallowing wills. No other ground than those provided may
serve as a reason for denying probate of the will
Grounds:
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 its 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
NOTE: if any of these grounds is proved, the will shall be void
The grounds are matters involved in formal validity. Hence, once the probate becomes final, it forecloses any
challenge on any of the grounds
A will should not be disallowed on dubious grounds
A void will cannot be ratified. This is NOT contract law.

6.Production of Witnesses (A. 811 & Rules 75 & 85)

7.Effects of Allowance of a Will
8.Grounds for Disallowance of Wills (A. 839 and Rule 77)
K. INSTITUTION OF HEIRS
1.Meaning
2.Principles of Institution
19

A. Equality
A.846:

Heirs instituted without designation of shares shall inherit in equal parts.

A.848:
If the testator should institute his brothers and sistrs, and he has some of full flood and others of
half blood, the inheritance shall be distrivted equally, unless a different intention appears.
B. Individuality
A.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 institutes, unless it clearly appears that the intention of the testator was otherwise.
C. Simultaneity
A.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.
3.Requisites of Valid & Effective Substitution
4.Where Made: Validity of the Will
A.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.
5.Who Makes Institution
A.784:
The making of a will is a strictly personal act; it cannot be left in whole or in part to the discretion
of a third person, or accomplished through the instrumentality of an agent or attorney.
A.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.
A.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.
6.Freedom of Disposition: Limitations
A.Property subject to institution of heirs
A.842:
One who has no compulsory heirs may dispose of by will of all his estate or any part of it in favor
of any person having capacity to succeed.
B.Truth v. Falsity of Cause of Institution
A.850:
The statement of a false cause for the institution of an heir shall be considered as not written,
unless it appears form the will that the testator would not have made institution if he had known the falsity of
such cause.
7.Who May be Instituted/Voluntary Heirs
A.Qualifications of Heirs (A. 842, 856 in rel. to A.1032, A. 1025 in rel. to A. 41, NCC)
20

A.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 the NCC.

A.1032:
A.1025:
In order to be capacitated to inherit, the heir, devisee or legatee must be living at the moment the
succession opens, except in case of representation, when it is proper.
A child already conceived at the time of the death of the decedent is capable of succeeding
provided it be born later under the conditions prescribed in A. 41.
A.41:
For civil purposes, the fetus is considered born if it is alive at the time it is completely delivered
from the mothers womb. However, if the fetus had an intra-uterine life of less than seven months, it is not
deemed born if it dies within 24 hours after its complete delivery from the maternal womb.
B.Manner of Designating heirs
A.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.
Art.844:
If 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 circumstance 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.
Art.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 form the context of the will or
from extrinsic evidence, excluding the oral declarations of the testator as to his intention; and when an
uncertainty arises upon the face of the will, as to the application of any of its provisions, the testators
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.
C.Unknown Persons
Art. 845:
Every disposition in favor of an unknown person shall be void, unless by some event or
circumstances, his identity becomes certain. However, a disposition in favor of a definite class or group of
persons shall be valid.
D.Collective Institutions
1.Poor (A. 1030): Shall be deemed limited to the poor living in the domicile of the testator at the time of his
death, unless his intention was otherwise. Designation to be done by appointed person by testator for the
purpose, the
executor, the justice of peace, mayor, municipal treasurer, who shall decide by a majority
votes, with the RTCs approval in all instance. This article apply when testator has disposed of his property in
favor of the poor of a definite locality.

21

2.Relatives (A. 959):

A disposition made in general terms in favor of the testators relatives
shall be understood to be in favor of those nearest in degree.
3.Brothers & Sisters (A. 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.
4.Persons and their Children (A.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.
8.Shares in Institution
A.As designated by testator
Art. 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.
Art. 852:
If it was the intention of the testator that the instituted heirs should become sole heirs to the whole
estate, or the whole free portion, as the case may be, and each of them has been 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.
Art. 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.
B.In the absence of designation of shares
Art. 846:

Heirs instituted without designation of shares shall inherit in equal parts.

9.Preterition/Pretermission (A.854)
Art. 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 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.
A.Concept and Meaning
B. Requisites
C. Effects: (Art. 854 in rel. to Art. 906)
Art. 906: Any compulsory heir to whom the testator has left by any title less than the legitme belonging to
him may demand that the same be fully satisfied.
D.Preterition v. Disinheritance
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E.Preterition v. Improper Disinheritance

10.Void/inoperative Institutions
11.Effects of Void/Inoperative Institutions
INSTITUTION OF HEIRS (Review Notes)
I.

II.

Institution of heir
The act by which the testator designates the person or persons who are to succeed him in his property,
rights and obligations
Property here is understood in its generic sense, and is limited by:
a) legitime
b) corpse
RA 349: A person may validly grant to a licensed physician, surgeon, known scientist, or any
medical or scientific institution, including eye banks and other similar institutions, authority
to detach at any time after the grantor's death any organ, part or parts of his body and to
utilize the same for medical, surgical or scientific purposes
c) special law (e.g. CARP)
This applies as well to institution of devisees and legatees
ONLY the free disposable portion is affected

Provisions with regard to the will:

A will shall be VALID even though:
1) an heir is not instituted
2) the institution does not comprise the entire estate
3) the person instituted:
a) does not accept the inheritance
b) is incapacitated to succeed
NOTE: the testamentary dispositions validly made shall be complied with, the remainder passing to
the legal heirs
How much can be disposed of by will:
1) if there are no compulsory heirs - the entire hereditary estate
2) if there are compulsory heirs - the disposable portion

III.
Identification of heirs
1) The heir shall be designated by name and surname
2) If having the same name, the testator shall indicate some circumstance by which the heir shall be known
3) An error in the name, surname or circumstance shall NOT vitiate the institution when it is possible IN ANY
OTHER MANNER, to know with certainty the person instituted
If there are error and ambiguities:
a) first look at the will
b) then, resort to extrinsic evidence (parol evidence is allowed but NOT the declarations of the testator)
4) An omission of the name will still be valid if the heir is designated in such a manner that there can be no
doubt as to who was instituted
5) If those having the same name, surname and circumstances CANNOT be identified even with proof, none
shall be an heir
6) Dispositions for an UNKNOWN PERSON shall be VOID
Unknown person - one whose identity cannot be determined because he is not yet individualized; it does
NOT mean one who is not acquainted with the testator
23

 As distinguished from an inexistent person or one who has no capacity

7) Exception to (6): by some event or circumstance (past, present or future), the identity is known
In this case, the unknown person becomes individualized
The even or circumstance MUST appear in the will itself
However, Parish Priest says that there is a limitation of 20 years
Exception to the exception:
a) the determination of the heir is delegated to another
b) the instituted heir does NOT have the capacity to succeed at the testator's death
8) A disposition in favor of a definite class or group is VALID
IV.
1)

2)
3)
4)
V.

Presumptions of Equality (the following rules do NOT apply if it is clearly shown that the testator
intended otherwise):
Heirs instituted without designation of shares shall inherit in equal parts
Applies only to heirs of the same class and juridical relation.
This is in relation to the disposable portion only
When some are instituted individually and others collectively, those collectively designated shall be
considered individually instituted
Whether full or half-blood, brothers and sisters shall inherit equally
This article refers only to testamentary succession
When the testator calls to the succession a person and his children, they are all deemed instituted
simultaneously and not successively
False Cause
General Rule: the falsity of the stated cause does NOT affect the validity of the institution
Exception: these requisites must CONCUR (Austria)
1) the cause for the institution of heirs must be stated in the will
When you say I institute my best friend X, this is not what is contemplated by the law. For the
cause to be "stated," it should go like this: I institute X because he is my best friend.
2) the cause must be shown to be false
3) it must appear from the FACE OF THE WILL that the testator would not have made such institution
if he had known the falsity of the cause
in effect, this narrows the area of application because of the great burden to prove
NOTE: the same rules apply for "causes contrary to law"

VI.

VII.

24

Art. 851
If the institution is limited to an aliquot part of the inheritance, legal succession takes place with respect
to the remainder
This provision applies when the heirs are NOT instituted as sole heirs, unlike in 852 and 853
Art. 852 and 853:
In BOTH articles:
1) there are more than one instituted heirs
2) the testator intended them to get the whole estate or the whole disposable portion as the case may be
this must appear in the FACE of the will
3) the testator has designated a definite portion for each heir
Differences:
852: the total of all the portions is less than the whole estate hence a proportionate INCREASE is
necessary
853: the total exceeds the whole estate hence a proportionate REDUCTION is necessary
NOTE: Both provisions apply to testamentary succession only and the base for increasing or reducing
EXCLUDES the legitime

VIII. Preterition
Preterition means the total omission of a compulsory heir from the inheritance. It consist in the silence of the
testator with regard to a compulsory heir, omitting him in the testament
Distinguished from Disinheritance:
Preterition
Disinheritance
Requisites:
Tacit deprivation of a
Express deprivation of a
1) that there is a TOTAL omission
compulsory
heir
of
his
compulsory heir of his
therefore, the heir must have received
legitime
by
the
testator
legitime by the testator
nothing from the testator by way of:
Voluntary,
but
the
Always voluntary
testamentary succession
presumption
is
that
it
is
Reyes: If the heir in question is
instituted in the will but the portion involuntary
There is some legal
given to him by the will is less than The law presumes that
there
has
been
merely
cause
his legitime, there is no preterition,
an
oversight
or
mistake
the remedy is completion of
on the part of the
legitime under Art. 906
testator
legacy or devise
Aznar: if the heir is given a legacy Effect: the omitted heir Effect of invalid
gets not only his
disinheritance: the
or devise and such is less than the
legitime but also his
compulsory heir is
heirs legitime, there is no
share in the free portion merely restored to his
preterition,
the
remedy
is
not disposed of by way legitime
completion of legitime under Art.
of legacies and devises
906
donation inter vivos
this is treated as an advance to the legitime, hence the remedy is Art. 906
intestacy
the right of the heir should the vacant portion be less than his legitime is completion under
Art. 906
Reyes: 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, the remedy is completion of legitime under Art. 906
2) that the person omitted is a compulsory heir in the direct line
Covers children or descendants, and in proper cases (in default of children or descendants) parents or
ascendants
The surviving spouse does not fall in this category since she is not in the direct line
Acain: the adopted child is within the contemplation of the article in preterition as a compulsory heir
in the direct line
3) that the compulsory heir omitted survive the testator
if the compulsory heir who has been preterited dies before the testator, it is the same as if there had
been no preterition (but take note of the right of representation)
Effect of Preterition:
Annulment of the institution of heirs, but validity of legacies and devises to the extent that these latter do
not impair the legitimes
This is the only instance in succession where the distinction between heirs and a legatee/devisee has a
practical effect
Nuguid: Preterition abrogates the institution of heir but respects the legacies and devises insofar as these
do not impair the legitimes. Thus if the will contains only institutions of heirs and there is preterition, total
intestacy will result; if there are legacies and devises and there is preterition, the legacies or devises will
stand, to the extent of the free portion (merely to be reduced, not set aside, if the legitimes are impaired)
but the institution of heirs, if any, will be swept away.

25

L.SUBSTITUTION OF HEIRS
1.Concept & Meaning
Art. 857:
Substitution is the appointment of another heir so that he may enter into the inheritance in default
of the heir originally instituted.
2.Purposes:
3.Limitations: [Art. 904 (p. 2)]
Neither can he impose upon the same any burden, encumbrance, condition or substitution of any kind
whatsoever.
4.Kinds:
A.Brief: Art. 860 -

Two or more persons may be substituted for one; and one person for two or more heirs.

B.Compendious
C.Ordinary
D.Reciprocal: Art. 861 If heirs instituted in unequal shares should be reciprocally substituted, the substituted
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.
E.Vulgar
Art. 859:
The testator may designate one or more persons to substitute the heir or the 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
mentions in the preceding paragraph unless the testator has otherwise provided.
F.Fideicommissary
Art. 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.
Art. 864:

A fideicommissary substitution can never burden the legitime.

Art. 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 the other
deductions than those which arise form legitimate expenses, credits and improvements, save in the case
where the testator has provided otherwise.

26

Art. 866:
The second heir shall acquire a right to the succession from the time of the testators death, even
though he should die before the fiduciary. The right of the second heirs shall pass to his heirs.
Art. 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;
2.Provisions which contain a perpetual prohibition to alienate, and even temporary one, beyond the limit fixed
in Art. 863;
3.Those which impose the heir the charge of paying to various persons successively, beyond the limit
prescribed
in
Art. 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.
Art. 868:
The nullity of the fidecommissary substitution does not prejudice the validity of the institution of
the heirs first designated; the fideicommissary clause shall simply be considered as not written.
Art.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 Art. 863 shall apply.
Art.870:
The dispositions of the testator declaring all or part of the estate inalienable for more than twenty
years are void.
SUBSTITUTION OF HEIRS (Review Notes)
I.
Preliminaries
Definition: Substitution is the appointment of another heir so that he may enter into the inheritance in default
of the heir originally instituted
The definition does NOT cover the fideicommissary who does not succeed in default of the first, but AFTER
the first
The rules on institution of heirs apply in a suppletory character
In conflicting claims between substitution and accretion, the former prevails
In reality, there are only 2 kinds of substitution, the simple and fideicommissary. The others are merely
variations of these 2. In the former, the substitute inherits only if the 1 st heir fails. In the latter, BOTH heirs
enter in the inheritance. (they are mutually exclusive)
II.
Kinds of Substitution
A) Simple
A form of conditional institution
Causes of simple substitution:
1) PREDECEASE generally, time of decedents death is the only time important to determine capacity
of the heir
2) RENUNCIATION whether the heir is capacitated at the time of death AND the renunciation is still
to be resolved by jurisprudence
3) INCAPACITY - generally, time of decedents death is the only time important to determine capacity
of the heir (except in those cases where a conviction is necessary)
How to substitute:
1) specify the cause
2) order substitution in general terms (ALL causes above are deemed included)
27

B)

C)

In an obiter in Rabadilla, it seems that there may be other causes of substitution other than the
ones enumerated above
Extinguishment of substitution:
1) nullity of the will
2) annulment of the institution of heir
3) death of the substitute before the testator
4) substitute himself is incapacitated to succeed the testator
the 2nd heir must have capacity at the testators death AND the time the condition happens (but
see Balane arguments)
5) substitute repudiates or renounces the inheritance

Brief or Compendious
Not really a KIND but a FORM of substitution
May apply to BOTH a simple and fideicommissary substitution
Definition:
1) Brief 2 or more substitutes for 1 original heir
2) Compendious 1 substitute for 2 or more original heirs
NOTE: But the law uses both terms interchangeably
If one is substituted for 2 or more original heirs, the effect of the default of one but not all of the original heirs
will NOT result in substitution. ALL of the original heirs must be disqualified. EXCEPT when the testator
provides that substitution will happen in the event of the death of ANY ONE of the original heirs
Reciprocal
Not really a KIND but a FORM of substitution
May apply to BOTH a simple and fideicommissary substitution
2 cases:
1) if 2 persons are reciprocally substitutes for each other, the one who succeeds gets the share of the heir
who dies, is incapacitated or repudiates (unless it clearly appears that the testators intention is
otherwise)
2) if there are more than 1 substitute, they shall have the same shares in the substitution as in the
institution

D) Fideicommissary
Elements:
1) a first heir called to the succession (fiduciary)
recognized as an instituted heir
cannot alienate the property
2) a second heir who takes the property subsequently from the first heir
really a 2nd heir, hence he must have capacity
he does NOT succeed the fiduciary, for he acquires his rights from the moment of the testators
death (if he dies BEFORE the 1st heir, the formers heirs will acquire the rights)
3) the second heir must be one degree from the first heir
Palacios: one degree means one generation; hence the 2 nd heir must be either a parent or child
of the first heir
It is possible to establish fideicommissary substitution successively in favor of an unlimited
number of persons, provided they are all one generation from the 1 st heir and are living at the time
of the testators death (one degree means on generation AND transmission)
4) dual obligation imposed upon the fiduciary to preserve the property and to transmit it after the lapse
of the period to the fideicommissary
if this dual obligation is not imposed, the institution is NOT necessarily void; it may be valid as
some other disposition
tenure of fiduciary:
28

a) primary rule period indicated by the testator (subject to the secondary rule)
b) secondary rule if no period, the fiduciarys lifetime
5) both heirs must be living and qualified to succeed at the time of the testators death
A fideicommissary substitution can never burden the legitime
A fideicommissary substitution is a combination of a usufructuary and a trust
A fideicommissary substitution must be EXPRESSLY made to be VALID:
a) use of the term fideicommissary
b) imposing upon the 1st heir the absolute obligation to preserve and to transmit to the 2 nd
heir
Allowable deductions: (UNLESS the testator provides otherwise)
1) legitimate expenses
2) credits
3) improvements
NOTE: this covers only necessary and useful expenses and the amount deductible is NOT the expense
itself, but only the increase in value
The fiduciary is NOT liable for deteriorations, unless caused by his fault or negligence
The nullity of the fideicommissary substitution does not prejudice the validity of the institution of the
heirs first designated; the clause shall simply be considered as not written (BUT this is not applicable
when there is really no substitution: e.g. tacit fideicomiso)
What happens if the 2nd heir repudiates?
What if the 1st institution is void? There are 2 arguments:
1) annulment of the institution voids the substitution
2) the character of substitution is that there is successive institutions, hence the 2 nd should succeed

III.
Other Rules
The substitute shall be subject to the same charges and conditions imposed upon the instituted heir, EXCEPT:
1) when the testator expressly provides for the contrary (in the will itself)
2) when the condition is personal to the heir
The following shall NOT take effect (considered as not written):
1) fideicommissary substitutions not expressly made
2) provisions which contain:
a) perpetual prohibition to alienate (maximum should only be 20 years)
b) temporary prohibition to alienate (limit is the 1st heirs lifetime)
3) those which impose upon the heir the charge of paying to various persons successively, beyond the 1 st
heirs lifetime, a certain income or pension
4) tacit fideicomiso (only the secret instruction is void)
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 be the testator (ONLY the
secret instruction is void)
the person who has been named shall receive the property not as an heir, but as a mere agent of the
testator for carrying out his secret instructions (in this case the disposition itself is VOID)
A provision leaving the naked title to one and the usufruct to another is valid. If the usufruct is given to
various persons, not simultaneously but successively, then the rules on fideicommissary substitution will
apply
The dispositions declaring the whole or part of the estate inalienable for more than 20 years are void (BUT if
there is a fidecommissary substitution, this will NOT apply The limit is the first heirs lifetime)
Pupilar made by the father naming a substitute for a child under his parental authority in case the latter
should die before attaining majority (this is now abolished)
Ejemplar made by ascendants for descendants who lacked the required mental capacity for making wills and
died in such condition (this is now abolished)

29

M. TESTAMENTARY DISPOSITIONS
1.Simple/Pure Institution
2.Conditional Institution
A.Condition: Meaning
Art. 1179:
past

Every obligation whose performance does not depend upon a future or uncertain event, or upon a
event unknown to the parties, is demandable at once.

Every obligation which contains a resolutory condition shall also be demandable, without
prejudice to the effects of the happening of the event.
B.Kinds of Conditions:
C.As to the Legitime
Art. 872:
The testator cannot impose any charge, condition or substitution whatsoever upon the legitime
prescribed in this Code. Should he do so, the same shall be considered as not imposed.
Art. 1080: Should a person make a partition of his estate by an act inter vivos, or by will, such partition shall
be respected, insofar as it does not prejudice the legitime of the compulsory heirs.
A parent who, in the interest of his or her family, desires to keep any agricultural, industrial, or
manufacturing enterprise intact, may avail himself of the right granted him in this article, by ordering that the
legitime of the other children to whom the property is not assigned, be paid in cash.
Art. 1083: Every co-heir has a right to demand the division of the estate unless the testator should have
expressly forbidden its partition, in which case the period of indivision shall not exceed twenty years as
provided in Art. 494. This power of the testator to prohibit division applies to the legitime.
Even though forbidden by the testator, the co-ownership terminates when any of the causes for
which partnership is dissolved takes place, or when the court finds for compelling reasons that division should
be ordered upon petition of one of the co-heirs.
D.Sabinian Doctrine
Art. 873:
Impossible conditions and those contrary to law or good customs shall be considered as not
imposed and shall in no manner prejudice the heir, even if the testator should otherwise provide.
Art. 727:
imposed.

Illegal or impossible conditions in simple and remuneratory donations shall be considered as not

Art. 1183: Impossible conditions, those contrary to good customs or public policy and those prohibited by
law shall annul the obligation which depends upon them. If the obligation is divisible, that part thereof which is
not affected by the impossible or unlawful condition shall be valid.
The condition not to do an impossible thing shall be considered as not having been agreed upon.
E.No Contest * Forfeiture Clause
F.Condition not to Marry/Remarry: When Valid & Void

30

Art. 874:
An absolute condition not to contract a first or subsequent marriage shall be considered as not
written unless such condition has been imposed on the widow or widower by the deceased spouse, or by the
latters ascendants or descendants.
Nevertheless, the right of usufruct, or an allowance or some personal prestation may be devised
or bequeathed to any person for the time during which he or she should remain unmarried or in widowhood.
G.Disposicion Captatoria: Art. 875 Any disposition made upon the condition that the heir shall make some
provision in his will in favor of the testator or of any other person shall be void.
H.Time of Fulfillment of Condition
Art. 876:
Any purely potestative condition imposed upon an heir must be fulfilled by him as soon as he
learns of the testators death.
This rule shall not apply when the condition, already complied with, cannot be fulfilled again.
Art. 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.
Art. 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.
Art. 880:
If the heir be instituted under a suspensive condition or term, the estate shall be placed under
administration until the condition is fulfilled, or until it becomes certain that it cannot be fulfilled, or until the
arrival of the term.
The same shall be done if the heir does not give the security required in the preceding article.
I.Performance of Condition
Art. 883:
When without the fault of the heir, an institution referred to in the preceding article cannot take
effect in the exact manner sated by the testator, it shall be complied with in a manner most analogous to and in
conformity with his wishes.
If the person interested in the condition should prevent its fulfillment, without the fault of the
heir, the condition shall be deemed to have been complied with.
J.Effects of Suspensive Condition (Art. 880, 879 as compared to Art. 878)
Art. 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.
3.Institution With a Period
A.Period: Defined:

31

Art. 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.
Art. 1193: Obligations for whose fulfillment a day certain has been fixed, shall be demandable only when
that day comes.
Obligations with a resolutory period take effect at once, but terminate upon arrival of the day
certain.
A day certain is understood to be that which must necessarily come, although it may not be
known when.
If the uncertainty consists in whether the day will come or not, the obligation is conditional, and it
shall be regulated by the rules of the preceding section.
B.Suspensive (Ex die) v. Resolutory (in Diem) Term (Art. 878)
C.Effects of Suspensive Term: Art. 885 in relation to Art. 880
4.Sub Modo Institution
A.Modo: Defined
B.Rules in Interpretation
C.Effects of Modo
Art. 882:
The statement of the object of the institution, or the application of the property left by 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 one 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 interest, if he or they should disregard this obligation.
Art. 1029: Should the testator dispose of the whole or part of this property for prayers and pious works for
the benefit of his soul, in general terms and without specifying its application, the executor, with the courts
approval shall deliver one-half thereof or its proceeds to the church or denomination to which the testator may
belong, to be used for such prayers and pious works, and the other half to the State, for the purposes mentioned
in Art. 1013.
5.Sub Demonstratione Institution
Art. 850:
The statement of a false cause for the institution of an heir shall be considered as not written,
unless it appears from the will that the testator would not have made such institution if he had known the falsity
of such cause.
Art. 939:
If the testator orders the payment of what he believes he owes but does not in fact owe, the
disposition shall be considered as not written. If as regards a specified debt more than the amount thereof is
ordered paid, the excess is not due, unless a contrary intention appears.
The foregoing provisions are without prejudice to the fulfillment of natural obligations.
32

CONDITIONS AND TERMS AND MODES (Review Notes)

I.
Preliminaries
3 kinds of dispositions in this section:
1) conditional that which depends upon:
a) a future; or
b) uncertain event; or
c) upon a past event unknown to the parties
2) term that which a day certain has been fixed, a day certain meaning that which must necessarily come,
although it may not be known when
3) mode that which states:
a) the object of the institution
b) the purpose of application of the property left
c) the charge imposed upon the heir
The right of the testator to impose conditions, terms or modes springs from testamentary freedom
The rules provided here DO NOT apply to legitimes
Notes:
1) Art. 871 does not speak of terms
2) The heading in this section does not speak of modes
II.
Conditions
The condition must appear in the testament itself CLEARLY
If there is doubt whether the testator intended to impose a condition, the interpretation should be that the
institution is pure
In ambiguous conditions, the rules of interpretation should first be resorted to in determining the testators
intent. If that fails, the condition will be regarded as an impossible condition
The following shall NOT be considered as written: (hence it will remain in the realm of intestacy)
1) impossible conditions
example: conditions on religion or that prohibiting the contest of a will
time to determine impossibility: when the condition is to be fulfilled (JV: time of death, but one can
also argue that it should be the time of execution)
2) condition contrary to law (illegal)
3) condition contrary to good customs (immoral)
Conditions prohibiting marriage : (ABSOLUTELY)
1) on the first marriage considered NOT imposed
2) on the subsequent marriage:
a) if imposed by anyone else considered NOT imposed
b) if imposed by deceased spouse or ascendants/descendants - valid
When the condition is relative, it may be valid, BUT it will be understood as absolute of the conditions are
practically impossible
note: with regard to the 2nd paragraph in the article, it should not be a condition, rather it should be AKIN to a
term; as long as it is not imposed as a condition and it is akin to a term because it refers to a period, then it is
valid. What is critical is the phrasing.
When the condition not to marry is validly imposed, it is resolutory in character. The widow or widower gets
the property upon the death of the decedent, but she loses all her rights upon marriage (Balane: is this subject
to caucion muciana?)
A condition to contract marriage is VALID (BUT if its performance becomes impossible, it is considered as
not written)
Any disposition made upon the condition that the heir shall make some provision in his will in favor of the
testator or any other person shall be void (CAPTATORIA). Note that the disposition itself is VOID.
Rules on Potestative, Casual and Mixed conditions:
A) Potestative (depends solely on the will of the heir/devisee/legatee)
1) Positive
33

a) General rule: must be fulfilled as soon as he learns of the testators death

Except:
i.
the condition was already complied with at the time the heir learns of the testators death
ii.
the condition is of a nature that it cannot be fulfilled again (if it can be fulfilled again, it
should be fulfilled)
b) Constructive compliance: condition deem fulfilled (UNLESS the testators will clearly manifests
that constructive compliance is not allowed)
2) Negative
There is caucion muciana (the heir must give security to guarantee the return of the value of the
property, fruits and interests in case of contravention)
The security may be demanded by those who will succeed upon the violation of the condition
(e.g. the substitute, co-heirs in accretion, legal heirs in intestacy)
If the caucion muciana is not furnished, the property shall be placed under administration until
the condition is fulfilled or it becomes certain that it cannot be fulfilled (however, he will still
enjoy usufructuary rights)
B) Casual (depends on the will of a 3rd person OR chance)
1) General Rule: may be fulfilled at any time (before or after the testators death) UNLESS the testator
provides otherwise
If already fulfilled at the execution of the will:
a) if testator was unaware of the fulfillment deemed fulfilled
b) if the testator was aware:
i.
if it can no longer be fulfilled again deemed fulfilled
ii.
if it can be fulfilled again must be fulfilled
2) Constructive compliance: NOT applicable
C) Mixed (both a potestative and casual condition)
1) General Rule: may be fulfilled at any time (before or after the testators death) UNLESS the testator
provides otherwise
If already fulfilled at the execution of the will:
a) if testator was unaware of the fulfillment deemed fulfilled
b) if the testator was aware:
i.
if it can no longer be fulfilled again deemed fulfilled
ii.
if it can be fulfilled again must be fulfilled
2) Constructive compliance:
a) if dependent partly on chance NOT applicable
b) if dependent partly on a 3rd person:
i.
3rd party is an interested party applicable
ii.
3rd party NOT an interested party NOT applicable (institution annulled)

Between the time of the testators death and the fulfillment of the suspensive condition or of the certainty of
its non-occurrence: the property will be placed under administration (NO right of usufructuary for the
instituted heir until the condition happens):
1) if the condition is fulfilled the property will be turned over to the instituted heir
2) if it becomes certain the condition will not happen the property will be turned over tot he person entitled
thereto (e.g. the substitute, co-heir in accretion or legal heirs in intestacy)
The law governing the administration will be that of the Rules of Court
The rules on conditional obligations apply in a suppletory character
The heir must be living BOTH at the testators death and the happening of the condition

Condition
Acquisition of the right
of the heir depends upon
the happening of the
condition,
such that if
34
the condition does not
happen, the heir does
not succeed

Term
Right is already
transmitted to the heir
upon the death of the
testator; the term merely
serves to determine the
demandability of such
right already acquired

III.
Terms
Distinguished from condition:

Kinds of dispositions with a term:

1) Suspensive (ex die)

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
Before the arrival of the term, the property shall be delivered to the heirs
There MUST be a caucion muciana (failure to do so is equivalent to a renunciation and the heir next
in the order of intestacy will file the security; the State is not required to furnish security
The testator may designate a person who will enjoy the property until the day comes when the
instituted heir shall take it
2) Resolutory (in diem)
Before the arrival of the term, the property shall be delivered to the heirs
The testator may appoint another to succeed the instituted heir
NOTE: In both, the first heir is bound to preserve the property until the day when the instituted heirs
enjoyment thereof begins or terminates. The first heir is merely a usufructuary and cannot alienate the property
IV.
Mode
Distinguished from condition:
NOTE: In case of doubt, the institution should be
Condition
Mode
considered as modal not conditional
Suspends but does not
Obligates but does not
A mode must be CLEARLY imposed as an obligate
suspend
obligation to be considered as one. Mere Fulfilled in order to
Complied with
preferences or wishes expressed by the testator are acquire a perfect right as
because of being
not modes. In case of doubt, the statement should heir
already an heir
NOT be considered as mode but merely a
suggestion or discussion
When there is a mode, the persons for whose benefit the obligation has been imposed upon the heir may
demand its compliance. But if there are no such persons, the caucion muciana guaranties the performance of
the mode
In modal dispositions, a caucion muciana should be posted

Who may enforce the caucion muciana (for compliance and return)?
1) if a 3rd person will benefit from the mode such person (this is one of the distinctions between a condition
and a mode)
2) if there is no 3rd person the legal heirs
Constructive compliance is ALLOWED
If the fulfillment of the mode is prevented by the intestate heirs, who would legally take the property upon
non-compliance with the obligation, then the obligation will be deemed fulfilled
Effect of non-compliance with the mode: property will be returned to the estate of the decedent to then pass
on under the rules on intestacy (Rabadilla). Note that the same thing will happen upon the occurrence of a
resolutory condition.
What if you have an impossible, illegal or immoral mode?

N.COLLATION/STEPS IN THE
TESTAMENTARY SUCCESSION

DETERMINATION

&

PRESERVATION

OF

LEGITIMES

IN

1.Determination of Net Estate

Art. 908:
To determine the legitime, the value of the property left at the death of the testator shall be
considered, deducting all debts and charges, which shall not include those imposed in the will.
To the net value of the hereditary estate, shall be added the value of all donations by the testator
that are subject to collation, at the time he made them.

35

Art. 1059:
If the assets of the estate of a decedent which can be applied to the payment of debts are not
sufficient for that purpose, the provisions of Art. 2239 to 2251 on Preference of Credits shall be observed,
provided that the expenses referred to in Art. 2244, No. 8, shall be those involved in the administration of the
decedents estate.
Art. 772:
Only those who at the time of the donors death have a right to the legitime and their heirs and
successors in interest may ask for the reduction of inofficious donations.
Those referred to in the preceding paragraph cannot renounce their right during the lifetime of the
donor, either by express declaration, or by consenting to the donation.
The donees, devisees and legatees, who are not entitled to the legitime and the creditors of the
deceased can neither ask for the reduction nor avail themselves thereof.
2.Deduction of All Debts & Liabilities
3.Collation as Computation: Determination of Net Partible/Hereditary Estate
A.Donations Inter Vivos (Art. 908 and Art. 1061)
Art. 1061:
Every compulsory heir, who succeeds with other compulsory heirs, must bring into the mass of
the estate any property or right which he may have received from the decedent, during the lifetime of the latter,
by way of donation, or any other gratuitous title, in order that it maybe computed in the determination of the
legitime of each heir, and in the account of the partition.
B.Donations Subject to Collation
Art. 1062:
Collation shall not take place among compulsory heirs if the donor should so expressly provided,
or if the donee should repudiate the inheritance, unless the donation should be reduced as inofficious.
Art. 1063:
Property left by will is not deemed subject to collation, if the testator has not otherwise provided,
but the legitime shall in any case remain unimpaired.
Art. 1064:
When grandchildren, who survive with their uncles, aunts, or cousins, inherit from their
grandparents in representation of their father or mother, they shall bring to collation all that their parents, if
alive, would have been obliged to bring, even though such grandchildren have not inherited the property.
They shall also bring to collation all that they may have received from the decedent during his
lifetime, unless the testator has provided otherwise, in which case his wishes must be respected, if the legitime
of the co-heirs is not prejudiced.
Art. 1065:
Parents are not obliged to bring to collation in the inheritance of their ascendants any property
which may have been donated by the latter to their children.
Art. 1066:
Neither shall donations to the spouse of the child be brought to collation; but if they have been
given by parents to the spouses jointly, the child shall be obliged to bring to collation one-half of the thing
donated.
Art. 1067:
Expenses for support, education, medical attendance, even in extraordinary illness,
apprenticeship, ordinary equipment or customary gifts are not subject to collation.
Art. 1068:
Expenses incurred by the parents in giving their children a professional, vocational or other career
shall not be brought to collation unless the parents so provide, or unless they impair the legitime; but when their
collation is required, the sum which the child would have spent if he had lived in the house and company of his
parents shall be deducted there from.
36

Art. 1069:
Any sums paid by a parent in satisfaction of the debts of his children, election expenses, fines and
similar expenses shall be brought to collation.
Art. 1070:
Wedding gifts by parents and ascendants consisting of jewelry, clothing and outfit, shall not be
reduced as inofficious except insofar as they mace exceed one-tenth of the sum which is disposable by will.
4.Ascertainment of Legitimes &FDP
5.Collation as Imputation: Treatment of Donations Inter Vivos
A.If Made to Forced heir (Art. 909-910 in rel. to Art. 1062 1073)
Art. 909:

Donations given to children shall be charged to their legitime.

Donations made to strangers shall be charged to that part of the estate which the testator could
have disposed by his last will.
Insofar as they may be inofficous or may exceed the disposable portion, they shall be reduced
according to the rules established by this Code.
Art. 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.
Art. 1071:
The same things donated are not to be brought to collation and partition, but only their value at
the time of the donation even though their just value may not then have been assessed.
Their subsequent increase or deterioration and even theirs total loss or destruction, be it
accidental or culpable, shall be for the benefit or account and risk of the donee.
Art. 1072:
In the collation of a donation made by both parents, one-half shall be brought to the inheritance of
the father, and the other half, to that of the mother. That given by one alone shall be brought to collation in his
or her inheritance.
Art. 1073:
The donees share of the estate shall be reduced by an amount equal to that already received by
him and his co-heirs shall receive an equivalent, as much as possible, in property of the same nature, class and
quality.
B. If Made to a Stranger (Art. 909)
6.Addition of Value of Donations Chargeable to FDP to the Value of Legacies Made in the Will; Impairment int eh
Legitime
7.Collation as Return/Restitution
A.Reduction/Annulment of Inofficious Legacies/Devises
Art. 911:
After the legitime has been determined in accordance with the three preceding articles, the
reduction be made as follows:
a. Donations shall be respected as long as the legitime can be covered, reducing or annulling if necessary, the
devices and legacies made in the will;
b.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.
37

c.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.
Art. 950:
If the estate should be sufficient to cover all the legacies or devisees, their payments shall be
made in the following order:
a.Remuneratory legacies or devises;
b.Legacies or devises declared by the testator to be preferential;
c.Legacies for support;
d.Legacies for education;
e.Legacies or devises of a specific, determinate thing which forms a part of the estate;
f. all others pro rata
B.Reduction/Annulment of Inofficous Donations Inter Vivos
Art. 752:
The provisions of Article 750 notwithstanding, no person may give or receive by way of
donation, more than he may give or receive by will.
The donation shall be inofficious in all that it may exceed this limitation.
Art. 771:
Donations which in accordance with the provision of Art. 752, are inofficious, bearing in mind
the estimated net value of the donors property at the time of his death, shall be reduced with regard to the
excess, but this reduction shall not prevent the donations from taking effect during the life of the donor nor shall
it bar the done from appropriating the fruits.
For the reduction of donations, the provisions of this Chapter and of Arts. 911 and 912 of this
Code shall govern.
Art. 773:
If there being two or more donations, the disposable portion is not sufficient to cover all of them,
those of the more recent dates shall be suppressed or reduced with regard to the excess.
Art. 760:
Every donation inter vivos, made by a person having no children or descendants, legitimate or
legitimated by subsequent marriage, or illegitimate, may be revoked or reduced as provided in the next article,
by the happening of any of these events:
a.If the donor, after the donation, should have legitimate or legitimated or illegitimate children, even though
they be posthumous;
b.If the child of the donor, whom the latter believed to be dead when he made the donation, should turn out to
be living;
c.If the donor should subsequently adopt a minor child.
Cases:
NAZARENO v. CA
O.DISINHERITANCE
1. Concept and Meaning (A.915)
Art. 915:
A compulsory heir may, in consequence of disinheritance, be deprived of his legitime, for causes
expressly stated by law. (848a)
2. Meaning
3. Requisited of Valid Disinheritance
a) Express
Art. 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 inso far as it may prejudice the person disinherited; but the devises and
38

legacies and other testamentary dispositions shall be valid to such extent as will not impair the
legitime. (851a)
b) Valid Will
Art. 916: Disinheritance can be effected only through a will wherein the legal cause therefor
shall be specified. (849)
c) Cause Authorized by Law
Art. 916: Disinheritance can be effected only through a will wherein the legal cause therefor
shall be specified. (849)
d) True and Existing Cause
e) Total
4. Causes of Disinheritance
a) Of Children and Descendants
Art. 919:
The following shall be sufficient causes for the disinheritance of children and
descendants, legitimate as well as illegitimate:
(1) When a child or descendants has been found guilty of an attempt against the life of the
testator, his or her spouse, descendants, or ascendants;
(2) When a children 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;
(8) Conviction of a crime which carries with it the penalty of civil interdiction. (756, 853,674a)
b) Of Parents and Ascendants (A. 920 in rel to Art 228-232 of the Family Code)
Art 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 thelife of the testator,
his or her spouse, descendants, or ascendants;
(3) When the parent or ascendant has accused the testator or 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 or 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 like of the other, unless there has been a
reconciliation between them. (756, 854, 674a)
c) Of Spouse (A. 921 in rel to Arts. 63[4] and 41-43 of the Family Code)
Art 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 for six years or more, and the accusation has been found to be false;
(3) When the spouse by fraud, violence, intimidation, or undue influence causes 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)
5. Effects of Valid Disinheritance (A. 915, 923 in rel to A. 1032)
39

Art. 915: A compulsory heir may, in consequence of disinheritance, be deprived of his legitime, for
causes expressly stated by law. (48a)
Art. 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.
6. Effects of Reconciliation
Art. 922: A subsequent reconciliation between the offender and the offended person deprives the latter of
the right to disinherit, and renders ineffectual any disinheritance that may have been made. (856)
7. Improper Disinheritance
Art. 918: Disinheritance without 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 inso far 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)
a) When Made
b) Effects
c) Improper Disinheritance v. Preterition
P.LEGACIES & DEVISES
1. Definition
2. Purposes
3. Who May be Charged
Art. 925: A testator may charge with legacies and devises not only hid compulsory heirs but also legatees
and devises.
The latter shall be liable for the charge only to the extent of the value of the legacy or the devise
received by them. The compulsory heirs shall not be liable for the charge beyond the amount of the free
portion given them. (858a)
4. Classification
a) By Object / Subject Matter
Art. 924: All things and rights which are within the commerce of man may be bequeathed or
devised. (865a)
b) By Person Burdened or Benefited
i. Legacy Proper
ii. Sub-Legacy
Art. 926: When the testator charges one of the heirs with a legacy or devise, he alone
shall be bound.
iii. Pre-Legacy
Art. 926: When the testator charges one of the heirs with a legacy or devise, he alone
shall be bound.
Art. 927: If two or more heirs take possession of the estate, they shall be solidarily liable
for the loss or destruction of a thing devised or bequeathed, even though only one of them
should have been negligent.
Art. 928: The heir who is bound to deliver the legacy or devise shall be liable on case of
eviction, if the thing id indeterminate and is indicated only by its kind. (860)
5. Legacy of Specific Thing
a) Belonging to the Testator (rel to Rules 89-90)
Art. 948: If the legacy or devise is of a specific and determinate thing pertaining to the testator,
the legatee or devisee acquires the ownership thereof upon the death of the testator, as well as any
growing fruits, or unborn offspring of animals, or uncollected income; but not the income which
was due and unpaid before the latters death.
From the moment of the testators death, the thing bequeathed shall be at the risk of the
legatee or devisee, who shall, therefore, bear its loss or deterioration, and shall be benefited by its
increase or improvement, without prejudice to the responsibility of the executor or administrator.
(882a)
40

Art. 951: The thing bequeathed shall be delivered with all is accessions and accessories and in
the condition in which it may be upon the death of the testator. (883a)
Art. 929: If the testator, heir, or legatee owns only a part of, or an interest in the thing
bequeathed, the legacy or devise shall be understood limited to such part or interest, unless the
testator expressly declares that he gives the thing in its entirety. (864a)
Art. 953: The legatee or devisee cannot take possession of the thing bequeathed upon his own
authority, but shall request its delivery and possession of the heir charged with the legacy or
devise, or of the executor or administrator of the estate should he be authorized by the court to
deliver it. (885a)
Art. 952: The heir, charged with a legacy or devise, or the executor or administrator of the
estate, must deliver the very thind bequeathed if he is able to do so and cannot discharged this
obligation by paying its value.
Legacies of money must be paid in cash, even though the heir or the estate may not have
any.
The expenses necessary for the delivery of the thing bequeathed shall be for the account
of the heir or the estate, but without prejudice to the legitime. (886a)
b) If Not Belonging to the Testator
Art. 931: If the testator orders that a thing belonging to another be acquired in order that it be
given to a legatee or devisee, the heir upon whom the obligation is imposed or the estate must
acquire it and give the same to the legatee or devisee; but if the owner of the thing refuses to
alienate the same, or demands an excessive price therefor, the heir of the estate shall only be
obligated to give the just value of the thing. (861a)
Art. 932: The legacy or devise of a thing which at the time of the execution of the will already
belonged to the legatee or devisee shall be ineffective, even though another person may have
interest therein.
If the testator expressly orders that the thing be frees from such interest or encumbrance,
the legacy or devise shall be valid to that extent. (866a)
Art. 933: If the thing bequeathed belonged to the legatee or devisee at the time of the execution
of the will, the legacy or devise shall be without effect, even though it may have been
subsequently alienated by him.
If the legatee or devisee acquires it gratuitously after such time, he can claim nothing by
virtue of the legacy or devise; but if it has been acquired by onerous title he can demand
reimbursement from the heir or the estate. (878a)
Art. 957: The legacy or devise shall be without effect:
(1) If the testator transforms the thing bequeathed in such a manner that it does not retain
either the form or the denomination it had;
(2) If the testator by any title or for any cause alienates the thing bequeathed or any part
thereof, ir being understood that in the latter case the legacy or devise shall be without
effect only with respect to the part thus alienated. If after the alienation the thing should
again belong to the testator, even if it be by reason of nullity of the contract, the legacy or
devise shall not thereafter be valid, unless the reacquisition shall have been effected by
virtue of the exercise of the right of repurchase;
(3) If the thing bequeathed is totally lost during the lifetime of the testator, or after his
death without the heirs fault. Nevertheless, the person obliged to pay the legacy or
devise shall be liable for eviction if the thing bequeathed should not have been
determinate as to its kind, in accordance with the provisions of Article 928. (869a)
6. Legacy of Generic Thing
a) Devise of Generic Immovable
41

Art. 941: A legacy of generic personal property shall be valid even if there be no things of the
same kind in the estate.
A devise of indeterminate real property shall be valid only if there be immovable property
of its kind in the estate.
The right of choice shall belong to the executor or administrator who shall comply with
the legacy by the delivery of a thing which is neither of inferior nor of superior quality. (875a)
b) Legacy of Generic Movable
Art. 941: A legacy of generic personal property shall be valid even if there be no things of the
same kind in the estate.
A devise of indeterminate real property shall be valid only if there be immovable property
of its kind in the estate.
The right of choice shall belong to the executor or administrator who shall comply with
the legacy by the delivery of a thing which is neither of inferior nor of superior quality. (875a)
c) Legacy of Money (Legacy of Quantity)
Art. 952: The heir, charged with a legacy or devise, or the executor or administrator of the
estate, must deliver the very thing bequeathed if he is able to do so and cannot discharge this
obligation by paying its value.
Legacies of money must be paid in cash, even though the heir or the estate may not have
any.
The expenses necessary for the delivery of the thing bequeathed shall be for the account
of the heir or the estate, but without prejudice to the legitime. (886a)
d) Right of Choice / Selection
Art. 941: A legacy of generic personal property shall be valid even if there be no things of the
same kind in the estate.
A devise of indeterminate real property shall be valid only if there be immovable property
of its kind in the estate.
The right of choice shall belong to the executor or administrator who shall comply with
the legacy by the delivery of a thing which is neither of inferior nor of superior quality. (875a)
Art. 942: Whenever the testator expressly leaves the right of choice to theheir, of the legatee or
devisee, the former may give or the latter may choose which ever he may prefer. (876a)
Art. 949: If the bequest should not be of a specific and determinate thing, but is generic or of
quantity, its fruits and interests from the time of the death of the testator shall pertain to the
legatee or devisee if the testator has expressly so ordered. (884a)
7. Alternative Legacy
Art. 940: In alternative legacies or devises, the choice is presumed to be left to the heir upon whom the
obligation to give the legacy or devise may be imposed, or the executor or administrator of the estate if no
particular heir is so obliged.
If the heir, legatee or devisee, who may have been given the choice, dies before making it, this
right shall pass to the respective heirs.
Once made, the choice is irrevocable.
In alternative legacies or devises, except as herein provided, the provisions od this Code
regulating obligations of the same kind shall be observed, save such modifications as may appear from
the intention expressed by the testator. (874a)
8. Legado de Opcion (Legacy of Choice) (rel to A. 928)
Art. 943: If the heir, legatee or devisee cannot make the choice in case it has been granted him, his right
shall pass to his heirs; but a choice once made shall be irrevocable. (877a)
9. Legacy of Rights
a) Legacy of Credits against Stranger
Art. 935: The legacy of a credit against a third person or of the remission or release of a debt of
the legatee shall be effective only as regards that part of the credit or debt existing at the time of
the death of the testator.
In the first case, the estate shall comply with the legacy by assigning to the legatee all
rights of action it may have against the debtor. In the second case, by giving the legatee an
acquittance, should he request one.
42

In both cases, the legacy shall comprise all interests on the credit or debt which may be
due the testator at the time of his death. (870a)
Art. 936: The legacy referred to in the preceding article shall lapse if the testator, after having
made it, should bring an action against the debtor for the payment of his debt, even if such
payment should not have been effected at the time of his death.
The legacy to the debtor of the thing pledged by him is understood to discharge only the
right of pledge. (871)
b) Legacy of Remission of Debt
Art. 935: The legacy of a credit against a third person or of the remission or release of a debt of
the legatee shall be effective only as regards that part of the credit or debt existing at the time of
the death of the testator.
In the first case, the estate shall comply with the legacy by assigning to the legatee all
rights of action it may have against the debtor. In the second case, by giving the legatee an
acquittance, should he request one.
In both cases, the legacy shall comprise all interests on the credit or debt which may be
due the testator at the time of his death. (870a)
Art. 936: The legacy referred to in the preceding article shall lapse if the testator, after having
made it, should bring an action against the debtor for the payment of his debt, even if such
payment should not have been effected at the time of his death.
The legacy to the debtor of the thing pledged by him is understood to discharge only the
right of pledge. (871)
Art. 937: A generic legacy of release or remission of debts comprises those existing at the time
of the execution of the will, but not subsequent ones. (872)
c) Legacy to a Ceditor of the Testator (rel to Rule 87)
Art. 938: A legacy or devise made to a creditor shall not be applied to his credit, unless the
testator so expressly declares.
In the latter case, the creditor shall have the right to collect the excess, if any, of the credit
or of the legacy or devise. (873a)
Art. 939: If the testator orders the payment of what he believes he owes but does not in fact owe,
the disposition shall be considered as not written. If a regards a specified debt more than the
amount thereof if ordered paid, the excess is not due, unless a contrary intention appears.
The foregoing provisions are without prejudice to the fulfillment of natural obligations.
(n)
d) Legacy of Education
Art. 944[1]: A legacy of education last until the legatee is of age, or beyond the age of majority
in order that the legatee may finish some professional, vocational or general coursem provided he
pursues his course diligently.
e) Legacy of Support
Art. 944[2-4]: A legacy for support lasts during the lifetime of the legatee, if the testator has not
otherwise provided.
If the testator has not fixed the amount of such legacies, it shall be fixed in accordance
with the social standing and the circumstances of the legatee and the value of the estate.
If the testator during his lifetime used to give the legatee a certain sum of money or other
things by way of support, the same amount shall be deemed bequeathed, unless it be markedly
disproportionate to the value of the estate. (879a)
f) Legacy of Pension
Art. 945: If a periodical pension, or a certain annual, monthly, or weekly amount is bequeathed,
the legatee may petition the court for the first installment upon the death of the testator, and for
the following ones which shall be due at the beginning of each period; such payment shall not be
returned, even though the legatee should die before the expiration of the period which has
commenced. (880a)
43

10. Void Ab Inito Legacies

Art. 930:
The legacy or devise of a things belonging to another person is void, if the testator
erroneously believed that the thing pertained to him. But the thing bequeathed, though not belonging to
the testator when he made the will, afterwards becomes his, by whatever title, the disposition shall take
effect.
Art. 933:
If the thing bequeathed belonged to the legatee or devisee at the time of the execution of
the will, the legacy or devisee shall be without effect, even though it may have been subsequently
alienated by him.
If the legatee or devisee acquires it gratuitously after such time, he can claim nothing by
virtue of the legacy or devise; but if it has been acquired by onerous title, he can demand reimbursement
from the heir or the estate.
Art. 924:

All things and rights which are within the comers of man may be bequeathed or devised.

Art. 929:
If the testator, heir or legatee owns only a part of, or an interest in the thing bequeathed,
the legacy or devise shall be understood limited to such part or interest, unless the testator expressly
declares that he gives the things in its entirety.
Art. 941 (2):
A devise of indeterminate real property shall be valid only if there be immovable property
of its kind in the estate.
11. Ineffectual Legacies
a. By reason of Implied Revocation
Art. 957:
The devise shall be without effect:
1.) If the testator transforms the thing bequeathed in such a manner that it does not retain either the form
of the denomination of had;
2.) If the testator by any title or for any cause alienates the things bequeathed or any part thereof, it being
understood that in the latter case the legacy or devise shall be without effect with respect to the part thus
alienated. If after the alienation the thing should again belong to the testator, even it be by reason of
nullity of the contract, the legacy shall not thereafter be valid, unless the reacquisition shall have been
effected by virtue of the exercise of the right of repurchase;
3.) If the thing bequeathed is totally lost during the lifetime of the testator, or after his death without the
heirs fault. Nevertheless, the person obliged to pay the legacy or devise shall be liable for eviction if the
things bequeathed should not have been determinate as to its kind, in accordance with the provisions of
Art. 928.

b. By Reasons Incident in the Legatee

c. Due to Fortuitous Causes
12. Concurrence of Legacies/Rules on Acceptance and Payment
a. Double Legacies
Art. 955:
The legatee or devisee of two legacies or devises one of which is onerous
cannot renounce the onerous one and accept the other. If both are onerous or gratuitous, he shall
be free to accept or renounce both, or to renounce either. But if the testator intended that the two
legacies or devises should be inseparable from each other, the legatee or devisee must either
accept or renounce both.
44

Any compulsory heir who is at the same time a legatee or devisee may
waive the inheritance and accept the legacy or devise, or renounce the latter and accept the
former, or waive or accept both.
b. Legacy & Legitime

{See

Art. 955 (2)}

c. Partly Onerous Legacy

Art. 954:
The legatee or devisee cannot accept a part of the legacy or devise and repudiate
eh other, if the latter be onerous.
Should he die before having accepted the legacy or devise, leaving several heirs,
some of the latter may accept and the others may repudiate the share respectively belonging to them in the
legacy or devise.
d. Effects of Death of Legatee (See Art. 954)
e. Order of Payment
Art. 950:
If the estate should be sufficient to cover all the legacies or devises, their
payment shall be made in the following order:
1. Remuneratory legacies or devises;
2. Legacies or devises declared by the testator to be preferential;
3. Legacies for support;
5. Legacies for education;
6. Legacies or devises of a specific, determinate things which forms a part of the estate;
7. All others pro rata.
13. Rules on Interpretation
Art. 958:
A mistake as to the name of the thing bequeathed or devised, is of no consequence, if it is
possible to identify the things which the testator intended to bequeath or devise.
Art. 959:
A disposition made in general terms in favor of the testators relatives shall be understood
to be in favor of those nearest in degree.
14. Capacity of Legatee/Devisee
Art. 956:
If the legatee or devisee cannot or is unwilling to accept the legacy or devise, of if the
legacy or devise for any reason should become ineffective, it shall be merged into the mass of the estate,
except in cases of substitution and of the right of accretion.
PART IV: LEGAL OR INTESTATE SUCCESSION
I.
Preliminaries
Legal or intestate succession is that mode of transmission mortis causa which takes place in the absence of the
expressed will of the decedent embodied in a testament
2 fundamental characteristics:
1) legal succession because it is succession conferred by law
2) intestate succession because it takes place only in the absence of a will
II.
Instances when legal or intestate succession operates
A) If a person dies:
45

B)

C)

D)

E)

1) without a will
2) with a void will
3) will which loses its validity (should be efficacy)
NOTE: legally, the result is the same in each instance: there is no will
When the will:
1) does not institute an heir
2) disposes of property partially (includes cases where the dispositions are void)
NOTE: intestacy here may be total or partial
In the following instances:
1) the SUSPENSIVE condition attached to the institution of heir does not happen
2) predecease
3) repudiation
NOTE: But intestacy will NOT happen if there is:
a) substitution
b) right of accretion
Incapacity of the heir instituted:
1) 1027 relative incapacity
2) 1028 donations
3) 1032 unworthiness
NOTE: But intestacy will NOT happen if there is:
a) substitution
b) right of accretion
Other causes of intestacy:
1) happening of a resolutory condition
2) expiration of a resolutory term
3) \non-compliance or impossibility of complying with the testators will
4) preterition
NOTE: it was the intention of the legislature to embrace within the provisions of Art. 960 all the causes for
intestate or legal succession

III.
Art. 961
In default of testamentary heirs, the law vests the inheritance in accordance with the rules hereinafter set
forth:
1) in the legitimate and illegitimate relatives of the deceased
2) in the surviving spouse
3) in the State
Disinheritance of intestate heirs:
1) tacit when a voluntary heir is instituted, thereby excluding the intestate heir
2) express exclusion of intestate heir without instituting any heir
NOTE: unlike the disinheritance of compulsory heirs, this exclusion does NOT require any legal cause but
depends solely upon the will of the testator
2 notable features of an express disinheritance of an intestate heir:
1) the State cannot be excluded by this method
2) exclusion of a person does NOT extend to his descendants and successors unless the will provides for
such extension
IV.
Basic Rules of Intestacy
A) The rule of preference of lines
The 3 lines of relationship are:
1) the descending
2) the ascending
3) the collateral
NOTE: the descending excludes the ascending and collateral, and the ascending excludes the collateral
B) The rule of proximity of degree
The nearer exclude the more remote
46

Exceptions:
1) representation
2) preference among lines
C) The rule of equality among relatives of the same degree
Relatives in the same degree shall inherit in equal shares
Exceptions:
1) preference among lines
2) distinction between legitimate and illegitimate filiations
3) rule of division by line in the ascending line
4) distinction between whole and half-blood among brothers and sisters as well as nephews and nieces
5) representation

RELATIONSHIP
I.
Preliminaries
Proximity of relationship is determined by the number of generations. Each generation forms a degree
A series of degrees forms a line which may either be:
1) direct that constituted by the series of degrees among ascendants and descendants
a) descending unites the head of the family with those who descend from him
b) ascending binds a person with those from whom he descends
2) collateral that constituted by the series of degrees among persons who are not ascendants and
descendants, but who come from a common ancestor
It is important to distinguish:
1) descending and ascending (both direct) because descending is preferred over the ascending
2) direct and collateral because the direct is preferred over the collateral
II.
Computation of degrees
A) Direct line
there is no legal limit to the number of degrees for entitlement to intestate succession (except human
mortality)
one generation = one degree
B) Collateral line
Computation of degrees is important because intestate succession extends ONLY to the 5 th degree
Mode of computation:
1) from one reference point, ascend to nearest common ancestor
2) then descend to the other reference point
3) number of generations comprising the ascent and the descent is the degree of collateral relationship

III.
Full and Half-Blood Relationships
Definition:
1) Full blood that existing between persons who have the same father and the same mother
2) Half blood that existing between persons who have the same father, but the not the same mother, or the
same mother, but not the same father
Importance of distinction: there is a 2:1 ration with reference to:
1) brothers and sisters
2) nephews and nieces
47

NOTE: with respect to other collateral relatives, it is NOT material

IV.
Art. 968
Contemplates a case where there are several relatives of the same degree and only one or more of them do not
wish to succeed
Accretion in intestacy among heirs of the same degree occurs in case of predecease, incapacity, or
renunciation, subject to the following rules:
1) in case of predecease or incapacity, representation if proper, will prevent accretion
2) relatives must be in the same kind of relationship this is because of the principle of preference of lines
in intestate succession; thus there can be no accretion among a grandchild and a brother (even if both are
in the second degree) because they are not inheriting together in the first place
V.
Art. 969
Presupposes a case where the only nearest relative or relatives repudiate the inheritance, leaving none in the
same degree to succeed
Effect: those of the nearest degree shall inherit in their own right
In case there is predecease or incapacity by all in the same degree, the same rule applies (Except in cases
where representation is proper: remember that descendants always inherit by right of representation)

RIGHT OF REPRESENTATION
I.
Preliminaries
Definition: Representation is a right created by fiction of law, by virtue of which the representative is raised to
the place and the degree of the person represented, and acquires the rights which the latter would have if the
were living or if he would have inherited
The provisions on right of representation must be strictly interpreted and applied
Instances when representation operates:
1) predecease
2) incapacity or unworthiness
3) disinheritance
NOTE: representation NEVER operates in renunciation
In what kinds of succession representation operates:
1) the legitime
2) intestacy
NOTE: there is NO representation in testamentary succession (its equivalent is substitution)
II.
Rules
In what line does representation obtain:
1) with respect to the legitime: only in the direct descending line
2) with respect to intestacy:
a) in the direct descending line
b) in ONE instance in the collateral: nephews and nieces representing brothers and sisters of the
deceased (they MUST concur with uncles and aunts)
Representation of illegitimate children:
1) if the child to be represented is legitimate only legitimate descendants can represent him
2) if the child to be represented is illegitimate BOTH legitimate and illegitimate descendants can represent
him
An adopted can neither represent nor be represented
A person may represent him whose inheritance he has renounced
The representative receives only what the person represented would have received. If there are more than one
representative in the same degree, then divide the portion equally, without prejudice to the distinction between
legitimate and illegitimate children, when applicable
Rules on qualification:
48

1) the representative must be qualified to succeed the decedent

2) the representative need not be qualified to succeed the decedent
Representation by grandchildren and nephews/nieces:
1) if all the children are disqualified: grandchildren still inherit by representation
2) if all the brother/sisters are disqualified: the nephews/nieces inherit per capita
NOTE: if only some, not all children or brothers/sisters are disqualified, the rule is the same
Children and descendants always inherit by right of representation

ORDER OF SUCCESSION
I.
Rules of Exclusion and Concurrence:
A) Legitimate Children:
1) Excludes parents, collaterals and State
2) Concur with surviving spouse and illegitimate children
3) Are excluded by no one
B) Illegitimate Children:
1) Excludes illegitimate parents, collaterals and State
2) Concur with surviving spouse and legitimate children and legitimate parents
3) Are excluded by no one
C) Legitimate Parents:
1) Excludes collaterals and State
2) Concur with surviving spouse and illegitimate children
3) Are excluded by legitimate children
D) Illegitimate Parents:
1) Excludes collaterals and State
2) Concur with surviving spouse
3) Are excluded by legitimate children and illegitimate children
E) Surviving Spouse:
1) Excludes collaterals other than brothers, sisters, nephews and nieces and State
2) Concur with legitimate children, illegitimate children, legitimate parents, illegitimate parents, brothers,
sisters, nephews and nieces
3) Is excluded by no one
F) Brothers and Sisters, Nephews and Nieces:
1) Excludes all other collaterals and State
2) Concur with surviving spouse
3) Are excluded by legitimate children, illegitimate children, legitimate parents, illegitimate parents,
G) Other Collaterals:
1) Excludes collaterals in remoter degrees and State
2) Concur with collaterals in the same degree
3) Are excluded by legitimate children, illegitimate children, legitimate parents, illegitimate parents,
surviving spouse, brothers, sisters, nephews and nieces
H) State:
1) Excludes no one
2) Concurs with no one
3) Is excluded by everyone
II.
An Outline in Intestacy (by JV)
1) Legitimate children only
Entire estate, equal division
49


2)
3)

4)
5)
6)
7)
8)
9)

10)
11)
12)
13)
14)
15)

16)
17)
18)
19)

20)
21)
22)

50

Sayson: Adopted child shall be deemed to be a legitimate child. But the relationship is only between the
adopting parent and the adopted child
Legitimate children and illegitimate children
Entire estate, with each illegitimate child getting of what the legitime child gets
Legitimate children and surviving spouse
Entire estate, divided equally (the spouse is deemed one child); the same rule holds even if there is only
one legitimate child
Santillon: Children is interpreted to include a situation where there is only 1 child
Legitimate children, surviving spouse and illegitimate children
Entire estate, spouse deemed 1 legitimate child and each illegitimate child getting of what the
legitimate child gets
Legitimate parents only
Entire estate, divided equally
Legitimate ascendants (not parents) only
Entire estate, divided equally but with observance of the rule of division by line
Legitimate parents and illegitimate children
Legitimate parents get of the estate; illegitimate children the other
Legitimate parents and surviving spouse
Legitimate parents get of the estate; spouse gets the other
Legitimate parents, surviving spouse and illegitimate children
Legitimate parents get of the estate; spouse and the illegitimate children get each (the latter to share
amongst themselves of more than 1)
Illegitimate children only
Entire estate, divided equally
Illegitimate children and surviving spouse
Illegitimate children get of the estate, the spouse gets the other
Surviving spouse only
Entire estate
Surviving spouse and illegitimate parents
Parents get and the spouse gets the other
Surviving spouse and legitimate brothers and sisters, nephews and nieces
Spouse gets of the estate, while the rest gets the other with the nephews and nieces inheriting by
representation if proper
Surviving spouse and illegitimate brothers and sisters, nephews and nieces
Spouse gets of the estate while the rest gets the other with the nephews and nieces inheriting by
representation if proper; note that all the other relatives should be illegitimate because of the
successional bar rule
Illegitimate parents only
Entire estate
Illegitimate parents and children of any kind
Illegitimate parents do not inherit; for the rule on the children, the rules above will apply
Legitimate brothers and sisters only
Entire estate, with the full blood and half blood distinction
Legitimate brothers and sisters, nephews and nieces
Entire estate, but observe the 2:1 ratio for full and half blood relationships with respect to the brothers and
sisters, with the nephews and nieces inheriting by representation if proper
Nephews and nieces only
Entire estate, per capita, but observe the 2:1 ratio
Other collaterals
Entire estate, per capita with observance of basic rules
State
The whole estate
Assignment and disposition of the decedents assets:

a) if the decedent is a resident of the Philippines at any time:

ii.
personal property to the municipality of last residence
iii.
real property where situated
b) if the decedent was never a resident of the Philippines:
Personal and real property will be given to where such is located
How property is to be used:
a) for the benefit of public educational and charitable institutions in the respective municipalities/cities
b) alternatively at the instance of an interested party, or motu propio, the court may order the creation of
a permanent trust for the benefit of the institutions concerned
In order that the State may take possession of the property, the Rules on Escheat in the Rules of Court
must be followed
If a person legally entitled to the estate of the deceased appears and files a claim thereto with the court
within 5 years from the date the property was delivered to the State, such person shall be entitled to the
possession of the same, or if sold, the municipality or city shall be accountable to him for such part of the
proceeds as may not have been lawfully spent

III.
Successional Bar Rule
An illegitimate child has no right to inherit ab intestato from the legitimate children and relatives of his father
or mother; nor shall such children or relatives inherit in the same manner from the illegitimate child
Corpus: There is no reciprocal succession between legitimate and illegitimate relatives.
Leonardo: An illegitimate child has no right to inherit ab intestato from the legitimate children and relatives
of his father
Diaz: It is clear from Art. 992 that the phrase legitimate relatives of his father or mother includes all the
kindred of the person spoken of
IV.
Rules in partial intestacy:
1) the law of legitimes must be brought into operation in partial intestacy, because the testamentary dispositions
can affect only the disposable portion but never the legitimes
2) if among the concurring intestate heirs there are compulsory heirs, whose legal or intestate portions exceed
their respective legitimes, then the amount of the testamentary disposition must be deducted from the
disposable portion, to be borne by all the intestate heirs in the proportions that they are entitled to receive
from such disposable portion as intestate heirs
3) if the legal or intestate share of a compulsory heir is equal to his legitime, then the amount of the testamentary
disposition must be deducted only from the legal or intestate shares of the others, in the proportion stated
above
4) if the testamentary dispositions consume the entire disposable portion, then the intestate heirs who are
compulsory heirs will get only their legitimes, and those who are not compulsory heirs will get nothing.
V.
Hide and Seek: A guide in partial intestacy
1) Legitimate children and illegitimate children
Free portion went to all of them
2) Legitimate children and surviving spouse
Free portion went to all of them; if there is only one legitimate child, the free portion went to the spouse
3) Legitimate children, surviving spouse and illegitimate children
Generally, free portion went to all of them
4) Legitimate parents and illegitimate children
Free portion went to the illegitimate children
5) Legitimate parents and surviving spouse
Free portion went to the surviving spouse
6) Legitimate parents, surviving spouse and illegitimate children
Free portion went to the surviving spouse
7) Illegitimate children and surviving spouse
Free portion went to all of them
51

8) Surviving spouse and illegitimate parents

Free portion went to all of them
9) Surviving spouse and legitimate brothers and sisters, nephews and nieces
Free portion went to the legitimate brothers and sisters, nephews and nieces except if the marriage was in
articulo mortis
10) Surviving spouse and illegitimate brothers and sisters, nephews and nieces
Same rules as above; note that all the other relatives should be illegitimate because of the successional
bar rule
11) Legitimate brothers and sisters, nephews and nieces
Free portion went to all of them
12) Nephews and nieces only
Free portion went to all of them
13) Other collaterals
Free portion went to all of them

ACCRETION
I.
Preliminaries
Accretion is a right by virtue of which, when two or more persons are called to the same inheritance, devise or
legacy, the part assigned to the one who renounces or cannot receive his share, or who died before the testator,
is added or incorporated to that of his co-heirs, co-devises or co-legatees
The testator can expressly provide that there shall be no accretion among persons who would otherwise be
entitled thereto
Conversely, the testator may validly provide for accretion in a case where no accretion would take place under
the provisions of the law
The repudiation of accretion is permissible
There can be accretion ONLY when there is no representation
Occasions for the operation of accretion:
1) renunciation
2) predecease
3) incapacity
II.
Elements of Accretion
1) Two or more persons (several subjects) are called to the same inheritance or to the same portion thereof, pro
indiviso (single object)
Meaning of pro indiviso:
a) either the co-heirs are instituted without individual designation of shares
b) the co-heirs are instituted with the specification that they share equally (in equal shares) or that they
have the same fractional sharing for each
c) will accretion occur if the fractional sharings of the co-heirs are unequal?
Tolentino: NO
Balane: YES
JV: if it refers to the estate as a whole, accretion applies; if actual property, there is no accretion
It must be in the same will and under the same testamentary disposition, without the testator making a
distribution of shares among them or fixing a quota or amount for each heir by designations which make
each one the owner of a separate mass of property
The resolution of the question will always depend upon the language of the will and the interpretation
which may be placed thereon by the courts
52

In case of money or fungible goods, if the share of each heir is not earmarked, there shall be a right of
accretion
2) Vacancy of Share
Renunciation, predecease, or incapacity of one (or more but less than all) of the instituted heirs
Tolentinos other causes which may give rise to accretion in testamentary succession:
a) non-fulfillment of a suspensive condition imposed upon the heir instituted
b) absence of the heir, long enough to declare him presumptively dead
c) inefficacy or nullity of the testamentary disposition (e.g. error in the name, surname or characteristics
of the heir concur with the fact that the person cannot otherwise be identified)
NOTE: In testamentary succession, accretion is subordinate to substitution if the testator has so provided. This is
because substitution is the testators express intent, whereas accretion is merely his implied intent. If there is
neither substitution nor accretion, the part left vacant will lapse into intestacy
III.
Accretion in Intestacy
1) in repudiation or renunciation
2) in predecease, only if representation does not take place (Tolentino: there is no accretion here)
3) in incapacity or unworthiness, only if representation does not take place
NOTE: accretion really applies to testamentary dispositions only. But the law says it is also applicable to intestacy
IV.
Provisions with regard to heirs
The heirs to whom the portion goes by the right of accretion take it in the same proportion that they inherit
The heirs to whom the inheritance accrues shall succeed to all the rights and obligations which the heir who
renounced or could not receive it would have had, EXCEPT:
1) in testamentary succession, if the testator provides otherwise
2) if the obligation is purely personal, and hence intransmissible
Among the compulsory heirs the right of accretion shall take place only when the free portion is left to two or
more of them, or to any one of them and to a stranger
NO accretion in legitime: should the part repudiated be the legitime, the other co-heirs shall succeed to it in
their own right and not by the right of accretion

CAPACITY TO SUCCEED
I.

II.

Preliminaries
These provisions apply to BOTH testate and intestate
The nationality of the decedent governs with regard to capacity to succeed.
The critical time to consider is the MOMENT OF DEATH, but subject to the following NUANCES:
1) In grounds 2, 3 and 5 of unworthiness, it is necessary to wait until final judgment
2) If the institution is conditional, the time of the compliance with the condition shall also be considered
(there must be capacity to succeed during that time)
Prescriptive period is 5 years from the time the disqualified person took possession for:
1) An action for a declaration of incapacity; and
2) For the recovery of the inheritance, devise or legacy
NOTE: it may be brought by any one who may have an interest in the succession
Acceptance:
Consummation of succession
Manifestation of the heir to make his own the property, rights and obligations transmitted to him
In legacies and devises, you cannot accept those which are beneficial and reject the onerous
The acceptance retroacts to the moment of death
Who are capacitated?
1) General civil capacity
53

a)
Natural persons
i. Must be living at the moment of succession (Parish Priest), except in case of representation when it is
proper
ii. A child already conceived provided it be born later
b)
Judicial persons
Entities given legal personalities
Must also be living invested by law or charter with a juridical personality
1026 (Enabling Clause): A testamentary disposition may be made to the State, provinces,
municipal corporations, private corporations, organizations, or associations (NOTE: The law
allows associations to succeed even though they do not have juridical personalities)
NOTE: The basis of capacity is juridical personality or capacity (the fitness to be the subject of juridical
relations) which may be brought about either by death (natural) or recognition (juridical) AT THE
MOMENT of death of the decedent (but take note of the nuances).
2) Not incapacitated by law
a)
Unworthiness (1032)
i. Cases of:

Abandonment of child (broad view)

Inducement to lead a corrupt life (there must be an element of permanence and

habituality)

Attempt on the childs virtue (that would amount to rape, acts of lasciviousness or
seduction); JV: an attempt on the granddaughter is an attempt on the mother
ii. Attempt on life of the testator, spouse, descendant or ascendant

Attempt here is satisfied as long as there is an intent to kill

There must be a FINAL conviction

iii. False accusation

There must be an accusation

It was judicially declared as false and there was an acquittal

The offense charged is punishable by 6 years or more

iv. Violent death (doesnt apply unless there is a law)
v. Adultery or concubinage with the testators spouse

There must be a final conviction

vi. Acts relating to a will:

Causing the testator to make a will (must be accompanied by vitiating factors)

Causing the testator to change a will (must be accompanied by vitiating factors)

Preventing the decedent to make a will (must be accompanied by vitiating factors)

Preventing the testator to revoke a will (must be accompanied by vitiating factors)

Supplanting, concealing or altering a will

Falsifying or forging a will

NOTE: This is based on morality. It applies to BOTH testate and intestate and includes legitimes
PARDON (applies only in unworthiness): may either be:
i.
Express - written
ii.
Implied elements:

Execution of the offended party in the will of the

offenders name

There must be knowledge of the unworthiness

The execution must be AFTER the act of unworthiness

was done
b)
Disqualification by incapacity (1027)
i. Priest of minister

Limited to the context of religion

54

ii.
iii.

iv.
v.

vi.

c)
i.
ii.

iii.
d)

JV: it doesnt include Mike Velarde and El Shaddai

The illness referred to must be the one in which the testator died off (except: when the ill
person met an accident)
Relative up to 4th civil degree OR sect
Guardians

Refers to both guardians of persons or property

Applied until the guardianship endures

Attesting or testamentary witness and their spouse, parents or children

Except when there are 3 other witnesses

Physician, surgeon, nurse, health officer or druggist

Includes illegal practitioners

Must be the one who took care of the decedent

Individuals, associations and corporations NOT permitted by law

This is the only one that applies to BOTH types of succession.

NOTE: This is based on public policy. In these cases, there is a conclusive presumption of undue
influence
On donations (1028)
Testator was guilty of adultery or concubinage at the time of making the will

Needs only a preponderance of evidence not a final conviction

In consideration of a crime of which both the testator and the beneficiary have been found guilty

There must be a final conviction

Elements:
a) both must be convicted
b) the donation must be in consideration of the crime
Made in favor of a public officer or his spouse, descendants and ascendants by reason of his public
office
NOTE: This is based on morality.
Anything prescribed by charter (in case of corporations) or by law

III.

Prohibition on Interposition
Interposition may be made in 3 ways:
1) by the institution of a person who has capacity, with a verbal charge or direction to deliver the inheritance
to the incapacitated person
2) by disguising the disposition in the form of a contract
3) by simulating debts in favor of the incapacitated person
The prohibited interposition must always be PROVED
This applies only to incapacity under 1027 and the prohibition on donations under 1028 (take note of the
persons disqualified in those cases)

IV.

Other related provisions:

1) Representation is present in unworthiness

Extent of representation extends not only to the legitime, but also to whatever portion in
intestate succession the person represented may have been entitled to

The person so excluded shall NOT enjoy the usufruct and administration of the property thus
inherited by his children
2) Alienations of hereditary property, and acts of administration performed by the excluded heir, before the
judicial order of exclusion, are valid as to 3rd persons who acted in good faith

The validity of the alienation is determined by the good faith or bad faith of the transferee not of
the excluded heir (transferor)

Elements of good faith of the transferee:

a)
he must have acquired the thing for value
b)
without knowledge of the transferors title
55

In case of valid alienations by the disqualified heir, the rightful heirs are not
without a remedy, they may go after the disqualified heir for damages

However, distinguish between a person who was NEVER an heir, in which case
follow the rules on sales
3) The unworthy heir who is excluded from the succession has the following rights:
a)
To demand indemnity for any expenses incurred in the preservation of the property
b)
To enforce such credits as he may have against the estate
4) The disqualified heir, who took possession of the hereditary property disregarding the provision stated in
the preceding articles shall:
a)
Be obligated to return the property with accessions
b)
Be liable for fruits which were received and could have been received

ACCEPTANCE AND REPUDIATION

I.
Definitions
Acceptance the act by which the person called to succeed by universal title either by the testator or by law
manifests his will of making his own the universality of the rights and obligations which are transmitted to
him
Repudiation the manifestation by the heir of his desire not to succeed to the said universality
II.
1)
2)
3)
4)

Characteristics
It is purely voluntary and free
PARTIAL acceptance or repudiation is permissible
Its effects shall always retroact to the moment of the decedents death
Acceptance or repudiation with a term or condition is prohibited

III.
Requisites
1) the heir must be certain of the death of the person from whom he is to inherit; AND
2) the heir must be certain of his rights to the inheritance
IV.
Who?
1) any person who has the capacity to act
2) as to minor or incapacitated persons:
a) by their parents or guardians when the acceptance is purely beneficial to the minor or incapacitated
person
b) with court approval
when it is subject to a charge or condition to be performed by the beneficiary (Tolentino)
repudiation
3) As to inheritance left to the poor:
a) the person designated by the testator to determine the beneficiaries can only accept, not reject the grant
b) the persons selected as qualified recipients are, for their own part, free to accept or renounce the benefit
4) As to corporations, associations, institutions and entities qualified to acquire property:
a) acceptance may be made by their lawful representatives
b) repudiation must be with the approval of the court
5) Public official establishments can neither accept not repudiate an inheritance without the approval of the
government (department head)
public establishment refers to organizations which have their own social and public purpose, such as for
culture, beneficence and other similar purposes, separate from the mere manifestations of the
governmental functions of the State
6) A married person of age and not incapacitated for nay reason may accept or renounce an inheritance without
his or her spouses consent
7) As to deaf-mutes:
56

a) can read and write may accept or repudiate personally or through an agent
b) cannot read and write
guardians may accept
but repudiation must be with judicial approval
V.
Kinds of Acceptance
A) Express
1) public document; or
2) private document
B) Tacit
One resulting from acts by which the intention to accept is necessarily implied, OR which one would
have no right to do except in the capacity of an heir
Examples:
1) when the heir sells, donates or assigns his right
2) when the heir renounces his right for the benefit of one or more heirs
3) when the renunciation is in favor of ALL the co-heirs but in proportions different from those in which
they would receive by accretion
4) when the renunciation is in favor of all heirs indiscriminately for CONSIDERATION
5) when the heir demands partition of the inheritance
6) when he alienates some objects of the inheritance
7) when he performs such like acts which show the clear intention to accept
Acts not constituting acceptance:
1) absolute repudiation: repudiation without consideration in favor of the persons to whom his share will
pass in the absence of the heir repudiating
2) acts which the heir has the right to perform even without the character of an heir (acts of mere
preservation or provisional administration)
C) Implied
Within 30 days after the court issued an order for the distribution of the estate, the heirs, devisees and
legatees shall signify whether they accept or repudiate; failure to do so within that time is deemed an
acceptance
VI.
Form of Renunciation
1) public or authentic instrument
authentic instrument refers to one whose genuineness is admitted or clearly proved
2) petition filed in the settlement proceedings
VII.
Accion Pauliana
The right given to creditors to impugn transactions of their debtors which will prejudice them
Requisites:
1) there must be a repudiation by the heir-debtor in legal form, a repudiation valid in law
2) that there must be credits existing against the heir who repudiates
3) that judicial authorization must be obtained before the creditors may accept for the debtor
4) that the act of repudiation prejudices the claims of the creditors
they must be creditors before the repudiation
the heir-debtor must have received something from the estate
the heir-debtor must not have other properties
The right of the creditor to accept the inheritance in the name of the debtor extends only to the amount or
value necessary to satisfy the credit. Any amount in excess of that may be validly renounced by the debtorheir
VIII. Provisions with regard to heirs
If the heir should die without having accepted or repudiated the inheritance, his right shall be transmitted to
his heirs (but the heirs heir MUST have accepted his own predecessors inheritance)
57

Should there be several heirs called to the inheritance, some of them may accept and the others may repudiate
it
When a person is BOTH a testamentary heir AND an intestate heir with respect to the same inheritance:
1) if he renounces as testamentary heir he is deemed to have renounced as intestate heir as well
2) if he renounces as intestate heir WITHOUT KNOWLEDGE of his being a testamentary heir he is NOT
deemed to have renounced as testamentary heir and may therefore accept or renounce separately in the
latter capacity
Balane: if with knowledge, he can still accept
NOTE: This rule does NOT apply to the legitime

IX.
Irrevocability of an acceptance or repudiation
Exceptions:
1) Vitiated consent
a) mistake or error
must refer to the substance of the thing (relative who is alive but is mistaken for another who has
died) or the principal condition
the error:
i.
must not be due to the negligence of the heir
ii.
must be based on facts and circumstances which the heir could not have known
notwithstanding due diligence on his part
iii.
must be distinguished from errors attributable to the heir who fails to appraise exactly the
amount of the estate, or who believing that he will win a litigation loses the same, and the
like
b) violence
refers to external acts imposed upon the heir
c) intimidation
works internally upon the mind of the heir forcing him to accept or repudiate
d) undue influence
e) fraud
must be practiced by a 3rd person
must be serious and consisting of insidious words or machinations
2) Appearance of an unknown will
Where the will institutes another person or when it grants additional legacies or revoked some
But it does NOT apply when the unknown will only clarifies a doubtful clause, or modifies
insignificant details or a previous one
3) Other Causes
Acceptance or repudiation by a person who is not entitled to the inheritance
When the institution depends upon the fulfillment of a suspensive condition which is not realized
The birth of a posthumous child who is not born or is born dead

COLLATION
I.
Rule on Inofficious dispositions
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
Only compulsory heirs whose legitimes are impaired may bring an action to reduce
Those entitled to ask for reduction of inofficious donations cannot renounce their right during the lifetime of
the donor
II.
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Steps to determine the legitime

1) determination of the value of the property which remains at the time of the testators death
determination of the value of the property:
a) if there are judicial proceedings administrator assisted by tax appraisers
b) if no judicial proceedings the true value, NOT the assessed value
NOTE: sentimental value shall NOT be considered
2) determination of the obligations, debts and charges which have to be paid out or deducted from the value of
the property thus left
if the obligation is for the 1st time created by testamentary disposition, it is NOT deductible
only obligations with monetary value which are not extinguished by death are considered here
3) determination of the difference between the assets and the liabilities, giving rise to the net hereditary estate
4) the addition to the net value thus found, of the value, at the time they were made, of donations subject to
collation
includes donations made to BOTH compulsory heirs and strangers
2 concepts of collation by Tolentino:
a) mere mathematical operation by the addition of the value of the donations made by the testator to the
value of the hereditary estate
b) the return to the hereditary estate of property disposed of by lucrative title by the testator during his
lifetime
special purpose of collation: property donated may be
911
950
taken in the account of the partition, and such value
Will
apply
if
Will
apply
if the reason
charged against the share of the compulsory heir donee
reductions
have
to
for
the
reduction
is
in the legitime
be
made
because
the
NOT
the
impairment
of
collation should take place ONLY when there are
legitimes
have
been
the
legitimes
compulsory heirs, and their presence is determined at
impaired
the time of the testators death, NOT at the time the
donation was made
The value of the donations were subject to collation is determined as of the time when the donations were
made even though their just value may not then have been assessed.
Any increase or decrease of the thing is for the donees account
The true value at the time of the donation must be PROVED by competent evidence
Aside from ordinary donations, tacit or indirect donations are included
5) determination of the amount of the legitimes by getting from the total thus found the portion that the law
provides as legitime of each compulsory heir
III.
Rules on collation and imputation
1) Donations inter vivos to compulsory heirs:
Imputed to the legitime (considered as an advance)
The surviving spouse is not included since donations during marriage between spouses is prohibited
Exceptions (the donation in this case will be treated as if given to a stranger):
a) if the donor provided otherwise
b) the donation exceeds the legitime
c) the compulsory heir:
i.
dies
ii.
is incapacitated
iii.
is disinherited
NOTE: and there are NO descendants
d) amount given for the pursuit of vocational, professional or other careers
e) repudiation by the heir
f) testamentary dispositions
Exception to the exception: if the donation is inofficious, they will be reduced
2) Donations inter vivos to strangers (from the free portion):
A stranger is anyone who does not succeed as a compulsory heir
59

Necessarily imputed to the disposable portion, hence if it exceeds the latter, then it will have to be
reduced as inofficious
There are NO exceptions

IV.
Reduction of dispositions when the legitimes are impaired
Method of reduction (Art. 911):
1) reduce pro rata the non-preferred legacies and devises and testamentary dispositions
2) reduce pro rata the preferred legacies and devises (contra 950)
3) reduce the donations inter vivos according to the inverse order of their dates (if on the same date, they are
reduced pro rata)
NOTE: these reductions shall be to the extent required to complete the legitimes, even if in the process the
disposition is reduced to nothing
Reconciling 911 and 950:
In case there is a valid alienation to a 3 rd person, and the transfer cannot be rescinded, then the donee is liable
for the value of the excess or inofficious part of the donation
In case the donee is insolvent, the amount to be returned by the insolvent must be borne and paid by those
whose donations are within the free portion
V.
Devises/Legacies of usufruct/life annuities/pensions
The value of such is difficult to determine, because it depends upon the length of life of the recipient
Rules to follow:
1) if upon being capitalized according to actuarial standards, the value of the grant exceeds the free portion,
it has to be reduced because the legitime cannot be impaired
2) the testator can impose no usufruct or any other encumbrance on the part that passes as legitime
3) subject to the two rules just stated, the compulsory heirs may elect between ceding to the devisee/legatee
the free portion (or the proportional part thereof corresponding to the said legacy/devise, in case there are
other dispositions) or complying with the terms of the usufruct or life annuity or pension
VI.
3 meanings of collation by Balane
1) as computation a simple accounting or arithmetical process, whereby the value of all donations inter vivos
made by the decedent is added to his available assets in order to arrive at the value of the net hereditary estate
2) as imputation the process by which donations inter vivos made by the decedent are correspondingly charged
either to the donees legitime or against the disposable portion
3) as return takes place when a donation inter vivos is found to be inofficious and so much of its value as
inofficious is returned to the decedents estate to satisfy the legitimes
VII.
Rule on testamentary dispositions to compulsory heirs
General Rule: they should not be imputed to the legitime, but to the free portion; hence the compulsory heir
receives the testamentary disposition in addition to his legitime
Exception: if the testator provides otherwise, in which case the testamentary disposition will be merged with
the legitime
VIII. Certain rules on collation as imputation
A) Grandchildren inheriting by representation concurrently with children (uncles and aunts of the grandchildren)
who are inheriting in their own right; the grandchildren have to collate or impute:
1) whatever the parent whom they are representing would have been obliged to collate
2) whatever they themselves have received from the grandparent by gratuitous title
B) Parents are not obliged to bring to collation in the inheritance of their ascendants any property which may
have been donated by the latter to their children
C) Neither shall donations to the spouse of the child be brought to collation; but if they have been given by the
parent to the spouses jointly, the child shall be obliged to bring to collation of the thing donated
D) In the collation of a donation made by both parents, shall be brought to the inheritance of the father, and the
other half, to that of the mother. That given by one alone shall be brought to collation in his or her inheritance
60

IX.
What would be collated
A) The following are totally NOT subject to collation:
1) support
2) education (limited to secondary instruction)
3) medical attendance (even in extraordinary illness)
4) apprenticeship
5) ordinary equipment
6) customary gifts
B) Expenses for childs professional, vocational or other career:
General Rule: NOT charged against the recipients legitime, but against the free portion
UNLESS: the parents provide otherwise in which case it will be charged against the legitime, but the
child is entitled to deduct from said amount the sum corresponding to what his parents would have spent
on him had he stayed at home
C) Sums paid by a parent for the child:
1) in satisfaction for the latters debts
2) election expenses
3) fines
4) similar expenses
D) The following items given by ascendants to their ascendants are exempted from collation:
1) wedding gifts
2) jewelry
3) clothing and outfit
NOTE: However, the presents should not exceed 1/10 of the sum disposable by will. If it does exceed, it will
be imputed to the legitime if a compulsory heir or otherwise as inofficious it if exceeds 1/10 of the free
portion if a stranger
X.
Equality of heirs
There should not only be equivalence in amount but as far as possible, the property should be of the same
nature, class and quality
In case no such equality can be effected:
1) if immovable equivalent in case of securities; or in its absence, so much of the other property shall be
sold at public auction
2) if movable right to select an equivalent of other personal property of the inheritance at its just price
Both rules above will yield to a contrary agreement among the heirs
XI.
On fruits and interests
It shall not pertain to the estate EXCEPT from the day on which the succession is opened
Standard of assessment: fruits and interest of the property of the estate of the same kind and quality as that
subject to collation
XII.
Rules on expenses when the donee is obliged to return
1) the donation is TOTALLY inofficious:
a) necessary expenses full extent reimbursement
b) useful expenses full extent provided it is still in existence
c) ornamental expenses no reimbursement, but right of removal granted if no injury to the estate will be
caused
2) the donation is PARTLY inofficious:
a) necessary expenses reimbursement is partial, in proportion to the value to be returned
b) useful expenses reimbursement is partial, in proportion to the value to be returned

61

c) ornamental expenses no reimbursement, but right of removal granted if no injury to the estate will be
caused; unless the property is physically divided and the ornament happens to be located in the portion
assigned to him, in which case he will have all the rights of ownership
XIII. Administration proceedings
Should any question arise among the co-heirs upon the obligation to bring to collation or as to the things
which are subject to collation, the distribution of the estate shall not be interrupted for this reason, provided
adequate security is given

PARTITION AND DISTRIBUTION

I.
Preliminaries
Partition separation, division AND assignment of a thing held in common among those to whom it may
belong
Steps:
1) When there are 2 or more heirs, the whole estate of the decedent is, before partition, owned in common
by such heirs
each heir is therefore a co-owner and may sell her interest
2) However, the debts and obligations of the deceased must first be paid
3) When there are intestate or testamentary proceedings, there may be an ORDER OF DISTRIBUTION
before actual partition is made
The order of distribution, generally based on a project of partition, designates the shares which
pertain to the heirs, devisees or legatees
Partial distribution may be made even before the debts and expenses have been paid, if the
distributees give a bond or deposit
The order of distribution is conclusive upon all parties who have notice of the proceedings, but does
NOT bind those who have no notice
4) Partition, or the ACTUAL division of the properties
Physical division of the property among the beneficiaries according to their proportions fixed and
determined in the distribution
The thing itself maybe divided or its value
Partition ends the co-ownership among the co-heirs as to thing partitioned
II.
When does partition take place?
General Rule: testate and intestate proceedings
Exceptions:
1) testator himself partitions either by will or an act inter vivos (see below)
2) extra-judicial partition by the heirs (see below)
3) summary settlement of estate
III.
Kinds of Partition
1) Actual physical division of the thing among co-heirs
2) Constructive any act, other than physical division, which terminates the co-ownership:
a) every act which is intended to put an end to indivision among co-heirs and legatees or devisees is deemed
to be a partition, although it should purport to be a sale, an exchange, a compromise or any other
transaction
b) should a thing be indivisible, or would be much impaired by its being divided, it may be adjudicated to
one of the heirs, provided he shall pay the other the excess in cash; nevertheless, if any of the heirs should
demand that the thing be sold at public auction and that strangers be allowed to bid, this must be done
IV.
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Who may effect partition?

A) The heirs themselves (extra-judicially or an ordinary action of partition)

The decedent must have left no debts
Maglucot-aw in cases involving oral partition under which the parties went into possession, exercised
acts of ownership, or otherwise partly performed the partition agreement, equity will confirm such
partition
Properties embraced in a will cannot be validly partitioned among the heirs until after the will is probated
B) The court in a ordinary action for partition, or in the course of administration proceedings
The action may be brought by any party in interest
A judicial partition does not bind the heirs who were not parties thereto
C) The testator himself
Nature of the partition:
1) takes effect only upon death
2) revocable as long as the decedent is alive
How the partition can be made:
1) by will
2) by act inter vivos
Legasto: however, there must first be a will with all the formalities provided by law; hence when
the will is null and void for lack of legal requisites, the partition made of the estate during the
lifetime of the deceased is likewise null and void
Balane: a partition without a will can be made provided the partition should conform exactly to
the portions provided in intestate succession
Form of partition inter vivos: in writing and in public instrument (Balane: obiter in Chavez held
that oral partition is valid)
Limitation on the partition by the testator: legitimes CANNOT be impaired
A parent desiring to keep any enterprise intact may order that the legitime of the other children to whom
the property is not assigned be paid in cash
D) A 3rd person designated by the testator (MANDATARY)
The mandatary cannot be a co-heir to insure fairness and impartiality considering that she is not under the
Courts control
In case there is a minor co-heir, the mandatary shall make an inventory of the property of the estate
It is the simple power to partition that may be delegated by the testator, but not the disposition or
distribution of the estate
E) Voluntary heirs upon whom some condition has been imposed CANNOT demand a partition until the
condition has been fulfilled
The other heirs not so instituted should not be deprived of their right to demand partition, subject to the
obligation to protect the inchoate right of the conditional heir, by furnishing adequate security
The partition in the preceding paragraph is PROVISIONAL
V.
Certain rules to follow
A) Partition generally a matter of right
General Rule: any co-heir may demand partition at any time
Exceptions:
1) when forbidden by the testator for a period not exceeding 20 years (this even covers the legitimes)
exception to the exception:
a) when any of the causes for the dissolution of a partnership occurs
b) when the court finds compelling reasons for partition
NOTE: this shall be made upon petition of one of the co-heirs
a prohibition of partition imply a prohibition on alienation or any constructive partition
2) Balane: when the co-heirs agree on indivision for a period not exceeding 10 years renewable for like
periods (in accordance with the rules on co-ownership)
B) Equality among co-heirs
In the partition of the estate, equality shall be observed as far as possible
63

Quantitative equality the shares of the co-heirs are not necessarily equal in value, but are determined by
law and by will
Qualitative equality whatever the aliquot portions be, the law mandates equality in nature, kind and
quality, subject to the following qualifications:
1) if the decedent has made the partition himself
2) if the co-heirs agree otherwise
3) if it is impossible or impracticable
C) Mutual Accounting
Upon partition, the co-heirs shall render a mutual accounting of benefits received and expenses incurred
by each of them
Period contemplated: between the decedents death and partition time
D) Legal Redemption by Co-heir
Requisites:
1) that there are several heirs of the common inheritance
2) that one of them sells his hereditary rights
hence if the alienation is not a sale, one requisite is lacking
sales can be voluntary or forced (execution sales)
3) that the sale is made to a stranger
all persons who are not heirs by will or law are strangers
the heirs must ACTUALLY succeed
4) that the sale is before partition
to distinguish it from Art. 1620 which applies where the co-ownership covers specific property
this article applies where the co-ownership covers the MASS of the hereditary estate and
presupposes the fact that there has as yet been no distribution of the estate
5) that one or more of the co-heirs demand the repurchase within a period of 1 month, counted from the
time he or they were notified in writing of the sale
the redemption can be exercised ONLY by a co-heir, regardless of their number
JV: a legatee is NOT a co-owner anymore, since she receives a specific property already
If an heir has himself sold his own right, he is not entitled to make the redemption of the right
sold by another heir to a 3rd party, because he himself ceases to be an heir after selling his right
Once subrogation has taken place, the other co-heirs, even within the period of 1 month, can no
longer ask for redemption
The period of 1 month should be counted from the time the that the co-heir is notified IN
WRITING of the actual sale
Garcia: written notice is required, without it the period does NOT commence to run registration
with the Register of Deeds is not sufficient notice most especially because the property involved
was unregistered land
Balane: in 2 recent cases, the Court has relaxed the requirement of written notice and held that
actual notice to, o knowledge by the co-heir meets the legal requirement
6) that the buyer is reimbursed the price of the sale
This article does NOT apply to sales of property of a decedent by the executor or administrator on orders of
the probate court
VI.
Effects of partition
A) A partition legally made confers upon each heir the exclusive ownership of the property adjudicated to him
B) The titles of acquisition or ownership of each property shall be delivered to the co-heir
When the title comprises 2 or more pieces of land or one piece of land divided between 2 or more coheirs:
1) title delivered to the one having the larger interest, and authentic copies of the title furnished to other
co-heirs at the expense of the estate; OR
2) if the interest of each co-heir should be the same, the oldest shall have the title
C) Warranties
2 kinds:
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1) Warranty against eviction

Action for eviction presupposes that the portion assigned to each heir really represented the share
which pertained to such heir but that it afterwards suffers changes through the exercise by a 3 rd
person of special rights over the property adjudicated
The object of this warranty is not to seek a new partition but merely to compel the other heirs to
make good the damages suffered by the heir concerned by reason of the eviction
There is eviction although the heir is not deprived of the ownership of the property allotted to
him, if he is deprived of any other right, such as usufruct, easement, etc.
2) Warranty as to quality
Includes a warranty against hidden defects
The reciprocal obligation of warranty shall be proportionate to the respective hereditary shares of the coheirs
Insolvency of one of the obligors: his portion shall be borne proportionally by all, including the one
entitled to the warranty
Those who pay for the insolvent heir shall have a right of action against him for reimbursement, should
his financial condition improve (Except: insolvency judicially declared which extinguishes all
obligations)
An action to enforce the warranty among co-heirs must be brought within 10 years from the date the right
of action accrues
D) Credit assigned to a co-heir in partition
The warranty covers only insolvency of the decedents debtor at the time of the partition, not subsequent
insolvency, for which the co-heir takes the risk
The warranty has a prescriptive period of 5 years following the partition
Co-heirs do not warrant bad debts of known and accepted by the distributee
If bad debts were not assigned to a co-heir, and was collected, the amount collected shall be distributed
proportionately
E) The obligation of warranty among co-heirs shall cease when there is:
1) Partition by the testator himself
Qualifications:
a) unless it appears or it be reasonably presumed his intention was otherwise
b) the legitime shall always remain unimpaired
2) Agreement among the co-heirs to suppress the warranty
UNLESS there was bad faith
3) Supervening events causing the loss or the diminution in value
4) Fault of the co-heir
5) Waiver

VII.
Rescission and nullity of partition
A) Causes for annulment
1) those where one of the parties is incapable of giving consent
2) those where the consent is vitiated by mistake, violence, intimidation, undue influence or fraud
NOTE: these are susceptible of ratification
B) Causes for rescission
1) A partition, judicial or extra-judicial, may be rescinded on account of lesion, when any one of the co-heirs
received things whose value is LESS, by at least , than the share to which he is entitled, considering the
value of the things at the time they were adjudicated
Exception: a partition made by the testator himself is not subject to rescission
Exception to the exception:
1) impairment of the legitime (even if lesion is less than )
65

2) mistake by the testator or vitiation of his intent

An heir who has alienated the whole or a considerable part of the real property adjudicated to him
cannot maintain an action for rescission on the ground of lesion, but he shall have a right to be
indemnified in cash
The action for rescission on account of lesion shall prescribe after 4 years from the time the partition
was made
Incompleteness of partition is NOT a ground for rescission. The remedy is supplemental partition
2) Those agreed upon in representation of absentees, if the latter suffer the lesion stated in the preceding
number
3) Those undertaken in fraud of creditors when the latter cannot in any other manner collect the claims due
them
4) Those which refer to things under litigation of they have been entered into by the defendants without the
knowledge and approval of the litigants or of competent judicial authority
C) Rules:
The heir who is sued shall have 2 options:
A partition made with preterition (not that in 854) of any compulsory heir shall not be rescinded,
UNLESS:
1) it was proved there was bad faith
2) it was proved there was fraud
NOTE: on the part of the other persons interested (nevertheless, the latter shall proportionately pay the
person omitted)
A partition which includes a person believed to be an heir, but who is not, shall be VOID only with
respect to such person

WILLS & SUCCESSION

GENERAL PROVISIONS
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.
2)

3)

66

A mode of acquisition
Mode the legal means by which dominion or ownership is created, transferred or destroyed
Title only constitutes the legal basis by which to affect dominion or ownership (in succession,
title is acquired either by will or by operation of law)
The property, rights and obligations to the extent of the value of the inheritance
Inheritance is the universality of the estate (Estate = Inheritance)
To the extent that they are transmissible or not extinguished by death
Property in this case refers to those which can be appropriated
Rules:
4) The rights which are purely personal are intransmissible
5) The rights which are patrimonial or relating to property are generally not extinguished by death,
except those expressly provided by law or the will of the testator
6) The rights of obligation are generally transmissible both with respect to the rights of the creditor and
the obligations of the debtor

Exceptions:

a)

those which are personal in the sense that the personal circumstances of the debtor
have been taken into account
b)
those that are intransmissible by express agreement or by will of the testator
c)
those that are intransmissible by express provision of law, such as life pensions
given under contract
d)
when stipulated by the parties
4)

5)

6)

7)

67

Of a person
Decedent general term applied to the person whose property is transmitted through succession, whether
or not he left a will
Testator term for a decedent who has left a will
Are transmitted through death
Death consolidates the inchoate right of the decedent
At the moment of death, ownership, possession, etc. is transmitted (the correct term should be vested)
Death includes those who are presumed dead
Article 390: After an absence of 10 years, a person shall presumed dead for the purpose of opening
his succession; but if he disappeared after the age of 75, an absence of 5 years will be sufficient
(death is on the last day of period of absence)
Article 391: The following are presumed to be dead for ALL purposes:
a)
a person on board on board a vessel lost during a sea voyage, or an aeroplane
which is missing, who has not been heard of for 4 years since the loss of the vessel or aeroplane
b)
a person in the armed forces who has taken part in war, and had been missing for
4 years
c)
a person who has been in danger of death under other circumstances and his
existence has not been known for 4 years
NOTE: The date of death is fixed on the day of the occurrence of the death
If there is a doubt as between 2 or more persons who are called to succeed each other, as to which of them
died first, whoever alleges the death of one prior to the other, shall prove the same; in the absence of
proof, they shall be considered to have died at the same time.
Note: repudiation or acceptance of the inheritance retroacts to the moment of death
To another or others
Refers to the heirs, devisees and legatees
Heir a person called to succession either by the provision of a will or by operation of law
Kinds of heirs:
a)
compulsory succeeds by force of law, which they cannot be deprived of except
by a valid disinheritance
b)
voluntary or testamentary instituted in a will, but only with regard to the free
portion
c)
legal or intestate those who succeed when the decedent dies without a will OR
the portion of the estate not disposed of by will
Devisee one to whom REAL property is given by will
Legatee one to whom PERSONAL property is given by will
The distinction between heirs, devisees and legatees is critical:
c) in preterition
d) with regard to property (definition by JBL Reyes):
heirs one who succeeds to the whole or an aliquot part of the inheritance
devisees and legatees - those who succeed to definite, specific and individual properties
Either by his will or by operation of law
Succession may be:

1) Testamentary that which results from the designation of an heir, made in a will executed in the form
prescribed by law
2) Legal or intestate that which results when the decedent left no will
3) Mixed when there is a party validly disposed of by will and another part not validly disposed of, or
to which no heir is designated by the testator

Distinguish between future inheritance and future property:

3) Future inheritance you cannot enter into a contract with regard to this; it is not in existence or is
incapable of determination at the time of the perfection of the contract
4) Future property you can enter into a contract with this
TESTAMENTARY SUCCESSION
GENERAL PROVISIONS

A will is: (a. 783)

1) an act
But in the Philippine setting, it should always be in a written instrument (A. 804)
2) whereby a person
Refers only to natural persons
3) is permitted right to make a will only a privilege not a natural right
4) with the formalities prescribed by law
5) to control to a certain degree the disposition of his estate a specie of conveyance
Limited by the system of legitimes and the formalities required of wills
A. 842 one who has no compulsory heirs may dispose by will of all his estate or nay 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 tot eh legitime of said heirs.
A. 886 Legitime defined
See. Riera v. Palmaroli, 40 Phil. 105 (1919)
6) to take effect after his death
This must be taken to mean at the MOMENT of death
Although procedurally, the definition is correct since it is only after the proceedings in court have
been finalized that the properties go to the heirs

Characteristics of Wills: cannot be delegated

1) purely personal act (note the difference between drafting and making a will)
Essence of will-making/testamentary disposition: A. 784
a) designation of heirs, devisees and legatees
b) duration or efficacy of such designation
c) determination of the portions they are to receive

Mechanical act of drafting be done by a 3rd person [Castaeda v. Alemany, 3 Phil 426 (1904]

The following may be delegated:

a) Art. 786:
Under this provision, 2 things must be determined by the testator:
i. the property or amount of money to be given; and
ii. the class or the cause to be benefited
2 things may be delegated:
i. the designation of persons, institutions, or establishments within the class or cause
ii. the manner of distribution
b) Art. 1029:
Requisites for the article to apply:
i. disposition for prayers and pious works for the benefit of the testators soul

68

ii. no specification of the application of the disposition

Rules on the apportionment of the disposition of the proceeds:
i. to the church or denomination to which the testator belonged
ii. to the State, to be applied as provided in Art. 1013
NOTE: The executor, with the approval of the RTC, will carry it out
c) Art. 1029:
When the testator names as his beneficiaries the POOR, they may either be:
i. of a definite locality
ii. of no designated locality in which the case the poor of the testators domicile shall be the
beneficiaries
The following persons shall determine the individual beneficiaries within the class
designated:
i. the person authorized by the testator or in his default,
ii. the executor or in his default
iii. the administrator
NOTE: In either case, the approval of the RTC shall be necessary
free and intelligent act: without violence, fraud or deceit, otherwise the will be disallowed (A. 839)

If vitiated, in effect it is VOID

Art. 839: The will be disallowed in any of the following cases:

a)
if the formalities by law have not been complied with
b)
if the testator was insane, or otherwise mentally incapable of making a will, at
the time of its execution
c)
if it was executed through force or under duress, or the influence of fear or
threats
d)
if it was procured by undue and improper pressure and influence, on the part of
the beneficiary or of some other person
e)
if the signature of the testator was procured by fraud
f)
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
disposes of property
In accordance with the wishes or desires of the tor A. 783, 785
If there is any disposition of property (which includes disinheritance), the will must be probated A.
838
Disposition may be directly or indirectly
essentially revocable/ambulatory
The will may be revoked, altered or superseded at any time during the life of the tor. A. 828
The revocation must be done freely and there must be testamentary capacity
See Revocation for further discussion
formally executed A. 783, 804, 814, 839 (1)

It should be written

As to TIME:
a)
The validity of a will as to its FORM depends upon the observance of the law in
force at the time it is made
b)
As to INTRINSIC validity, the law at the time of the testators death governs
As to the PLACE:
a)
A Filipino abroad, an alien abroad or an alien in the Philippines has 5 choices as to
what law to follow for the FORM of his will:
i. The law of his citizenship
ii. The law of the place of execution
iii. The law of his domicile
iv. The law of his residence
w. Philippine law
b)
With respect to INTRINSIC validity, the law of the deceased shall apply
testator has testamentary capacity at the time of execution A. 796 - 798

1)

2)

3)

4)

5)
69

a)
b)
c)
d)

6)

7)
8)

9)
10)

70

not prohibited under the law

natural person
18 years and above
of sound mind
To be of sound mind, it is enough that the testator:
i.
must understand the nature and effect of the act, that it is an act
mortis causa which will dispose of his property upon death
ii.
sufficient recollection of properties
iii.
remember the natural objects of his bounty
NOTE: These are factual matters and not medical or psychological. Moreover, you should not look
at the cause, but rather the effect.
Soundness of mind may be negatively defined:
i. it is not necessary that the testator be in full possession of reasoning faculties
ii. it is not necessary that the testators mind be wholly unbroken, unimpaired, unshattered by
disease, injury or other cause
The law presumes that every person is of sound mind in absence of proof to the contrary
The burden of proof that the testator was not of sound mind is on the person who opposes the
probate EXCEPT:
i. when the testator, 1 month or less, before the execution of the will was publicly known to be
insane
ii. when the testator executed the will after being placed under guardianship or ordered committed,
in either case, for insanity and before said order had been lifted
Supervening incapacity does not invalidate an effective will, nor is the will of an incapable
validated by the supervening of capacity
unilateral act
It is NOT a contract because there is no meeting of the minds
Acceptance/ratification of those who may be named therein as successors is not required (A. 841),
although they are free either to accept r repudiate their successional rights. (A. 1041)
act mortis causa or takes effect only upon death
ANY act mortis causa (e.g. donation mortis causa) must follow the formalities of a will
individual
Joint wills: one document which constitutes the wills of 2 or more individuals
As distinguished from:
a) mutual wills separate wills of 2 persons which are RECIPROCAL in their provisions
b) joint AND mutual wills executed jointly by 2 or more persons, the provisions of which are
reciprocal, showing the devises are made one in consideration of the other
Rules:
a a) A joint will is VOID
The law does NOT invalidate 2 distinct wills written on the same sheet
b) Joint wills made by Filipinos abroad are NOT VALID even if it is authorized by the law of the
country it is executed (EXCEPTION to the form rule)
statutory
testamentary intent (animus testandi)
depend on disposition, no on form, terms or uses in the desifnation
manifested not only by positive disposititon of property, but also by revocation or revival of a will
revoled earlier

STATCONS:
1) Doubts must be resolved in favor of the construction which will give effect to the will
2) In these cases, parol or extrinsic evidence may be allowed BUT not oral declarations:
a) imperfect description of persons or property (latent or intrinsic)
b) application of provisions upon the face of the will (patent or extrinsic)
3) Words will be taken in their ordinary and grammatical sense UNLESS there is a contrary intention
4) Technical words will be taken in their technical sense UNLESS:

a) there is a contrary intention

b) the will was drawn solely by the testator, unacknowledged with the technical sense
5) There is a presumption AGAINST intestacy

Kinds of wills allowed in the Philippines:

1) ordinary or attested will
2) holographic or handwritten will

Common requirements for the 2 kinds of wills:

1) in writing
a) ordinary immaterial who personally writes it
b) holographic necessarily written by the testator
2) in a language or dialect known to the testator
There is a presumption of knowledge when
a) the will is in a language where it was executed
b) the testator is a native or resident of the place
note: codes are ok as long as it is an ante-mortem probate
NOTE: The fulfillment of these 2 requisites can be proved by extrinsic evidence.

As a rule, parol or extrinsic evidence is NOT admissible to show that a decedent intended to execute his will
according to all the formalities prescribed by statute.

I.

Ordinary or Attested Wills

A) Requisites:
1) SIGNED at the end by:
a) the testator; or
b) his agent (this may be proved by extrinsic evidence BUT must be attested)
i. in his presence
ii. by his express direction
iii. in his name (testators TRUE name)
NOTE: The agent must write the testator's name, and it is not necessary that he write his own.
However, it must be stated in the attestation clause that an agent signed if such was the case.

The signature must appear AFTER the last disposition (referring to the logical end). Hence if the
signature does NOT appear at the end, it is INVALID

The following are also allowed:

a)
Signatures
b)
Initials
c)
Marks
Garcia: a sign of the cross placed by the testator does not comply with the statutory
requirement of signature, UNLESS it is the testator's usual manner of signature
d)
Fictitious names
But must be used frequently by the testator
e)
Thumbmarks are allowed
Payad: A statute requiring a will to signed is satisfied if the signature is made by the testator's
thumbmark
2) Attested and subscribed by at least 3 credible (but must also be competent) witnesses in the presence of
the testator and of one another

2 things are required of the witness:

a) attesting the ACT of witnessing
b) subscribing the ACT of signing in the proper places

Qualifications of witnesses (see WITNESSES for further discussion):

a) natural person
b) of sound mind
71

72

c) at least 18 years of age

d) NOT blind, deaf or dumb
e) domiciled in the Philippines
f) must NOT have been convicted of:
i. falsification of documents
ii. perjury
iii. false testimony

In the presence
Nera (obiter): it is NOT required that the testator ACTUALLY SEE the signing. It is enough that
he is not impeded from doing so. That a mere act of turning around would entitle her to see the
signing. The same goes for the other witnesses
It is not allowed that the testator sign first and then show the signed will to the witnesses
However, when it is the agent that signs, the agent can thereafter leave since he is only a
mechanical tool
Implication of Jaboneta: if one of the witnesses leaves when the other witness has not yet finished
signing, then the signing is not considered in the presence

The witnesses must sign in the presence of:

a) the testator
b) other witnesses
3) The testator or his agent AND the witnesses must sign every page except the last on the left margin in the
presence of the testator and the other witnesses

The witnesses are not required to sign on the last page because they will sign at the end of the
will. In one case, it was held that the signatures of the witnesses in the last page may be found at the
left margin

However, differentiate it from the signing in the attestation clause which must always be at the
end (Cagro)
4) All the pages must be numbered correlatively in letters on the upper part of each page
5) There must be an ATTESTATION CLAUSE

The language of such may NOT be known to the witnesses provided they understand it as such a
clause

It need NOT be signed by the testator since it is not his declaration but the witnesses

Contents:
a) the number of pages of the will
b) testator signed the will and every page thereof or caused some other person to write his name under
his express direction and presence
c) that the signing by the testator or by the person designated by him was in the presence of the
witnesses
d) that the witness signed the will and all the pages thereof in the presence of the testator and each
other
Doctrine of Substantial Compliance:
applies with regard to the attestation clause
attempt to comply with any requisite although the compliance is not literal, will be sufficient if
the objective or purpose sought to be accomplished is actually obtained
the imperfections may either be:
a)
in the language used
b)
in the form thereof
the following must be absent:
a)
bad faith
b)
forgery
c)
fraud
d)
undue/ improper pressure or influence
Rules:
a)
grammatical errors may be overlooked

b)

if it appears from context that words were inadvertently omitted, the court may
supply the omission
c)
the whole language of the clause must be taken together
d)
Caneda Doctrine: omissions which can be supplied by an examination of the will
itself, without resorting to extrinsic evidence will NOT be fatal:
i. whether the pages are consecutively numbered
ii. whether the signatures appear in each and every page
iii. whether there are 3 subscribing witnesses
iv. whether the will is notarized
a)
but omissions which cannot be supplied except by presenting evidence aliunde
will INVALIDATE the attestation clause
i.
total number of pages
ii.
whether all the persons required to sign
did so in the number of pages
iii.
whether there was signing in the
presence of the testator and the witnesses
6) Acknowledgement before a notary public

Cruz: The notary may NOT acknowledge and witness at the same time

Javellana: The notary need not sign in the presence of the testator and witnesses

The documentary stamp is not necessary

This is not an integral part of the will itself. However, it is an integral part of the will-making; in
fact it is the last step. Moreover, capacity of all parties concerned must exist until this last step.
B)

Special Requirements for handicapped testators

1) For deaf/deaf-mutes:
a)
if able to read must read the will personally
b)
unable to read designate 2 persons to read the will and communicate to him, in
some practicable manner its contents
2) For blind testator: (Garcia: this applies to illiterates and those who are not medically "blind," but for all
intents and purposes, are "blind")
It must be read twice:
1.
by the witness
2.
by the notary
This requirement is mandatory (Garcia) But may be liberally construed if substantially complied with
(Alvarado).
II. Holographic or Handwritten Wills

B) Preliminaries:
One executed by the testator himself, writing, dating and signing it by how own hand, without the attestation
of any 3rd person
C) Requisites:
1) Written entirely by the testator
2) Dated by the testator
False or erroneous date:
a) involuntary mistake with good faith:
i. does NOT invalidate the will
ii. true date may be proved extrinsically (but must have a basis in the will)
b) intentional false date:
iii. nullifies the will
iv. proof of falsity must be intrinsic
73

A date written subsequent to the writing o the will, which is the date on which the will was actually
written, is NOT a false date
3) Signed by the testator
Symbols or seals NOT allowed (but a customary signature is enough)
It must be in the end of the will
The will can be signed long after it was written. BUT the signing and the date must correlate. A date
placed on the will long after the signing is considered a false date.
Other characteristics:
1) subject to no other form
But intent to dispose mortis causa must clearly appear
As long as it is signed, dates and written, it is a complete will; hence if a 3 rd person inserts a
disposition, only that disposition is void
The provisions on 812, 813 and 814 will not affect the will's validity
2) maybe made in or out of the Philippines
3) need not be witnessed
D) Rules in probate:
1) at least 1 witness must explicitly declare that the signature and handwriting is the testators and he knows that
it is his
2) if the will is contested, at least 3 witnesses shall be required
Azaola: the 3-witness provision is directory, NOT mandatory
Codoy: the 3-witness provision is mandatory
adheres to the Azaola ruling
3) expert testimony may be resorted to provided:
a) there is absence of the competent witnesses in (1) and (2)
b) the court deems it necessary
4) the holographic will itself must be produced. A lost holographic will CANNOT be probated (Gan)
Exception: A photostatic or xerox copy may be allowed (Rodelas)
E) Dispositions and Additions
4 situations:
1) if the insertion was made after the execution of the will, but without the consent of the testator, such
insertion is considered as not written, because the validity of the will cannot be defeated by the malice or
caprice of a 3rd person
2) if the insertion after the execution of the will was with the consent of the testator, the will remains valid
but the insertion is void
3) if the insertion after the execution is validated by the testator by his signature thereon, then the insertion
becomes part of the will, and the entire will becomes void, because of failure to comply with the
requirement that it must be wholly written by the testator
4) if the insertion made by a 3 rd person is made contemporaneous to the execution of the will, then the will is
void because it is not written entirely by the testator
An additional disposition below the signature of the testator maybe considered a 2 nd will already
rules on insertions: insertions by 3rd persons will not affect the validity of the will if:
1) they were not authenticated by the testator
2) they were not made contemporaneously
Requirements for dispositions BELOW the testators signature to be VALID:
1) signed
2) dated
Art. 813: Refers to additional dispositions which are signed BUT not dated: If the last disposition is signed
and dated, it validates the prior dispositions
In order for the following to be valid, the testator must authenticate them with his signature, otherwise they
will be considered as not having been written:
1) insertions
74

2) cancellations
3) erasures
4) alterations
NOTE: The entire will is NOT invalidated unless the portion involved is an essential part of the will (Kalaw)
III. Codicils and incorporation by reference
A) After the testator has already made a will, a subsequent instrument mortis causa may either be:
1) a new will
makes independent and distinct dispositions from the prior will
2) a codicil
supplement or addition to a will, annexed to be taken as part thereof
by which any disposition made in the original will is:
a) explained
b) added to
c) altered
in order to be effective, it shall be executed as in the case of a will
B) Incorporation by Reference:
An exception to the rule that if an instrument is not executed with all the formalities of a will it cannot be
admitted to probate
Requisites:
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
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
Hence, there is an inference that incorporation applies only to attested wills
NOTE: the document should NOT make testamentary dispositions for then, the formal requirements of
wills will be circumvented
IV. Witnesses to Wills

Refers only to notarial or attested wills

There must be 3 credible and competent witnesses:

Gonzales vs. CA: in order to be competent, the witnesses must have the qualifications in 820 and none of
the disqualifications in 821. To be credible on the other hand, it is NOT required that evidence be
established that the witnesses have a good standing in the community or that they are honest, upright,
trustworthy or reliable, for a person is presumed to be such unless the contrary is established otherwise
Qualifications:
1) of sound mind
2) at least 18 years of age
3) not blind, deaf or dumb
4) able to read and write
5) natural person (because attestation is an act of the senses)
Disqualifications:
1) not domiciled in the Philippines
however, when the will is executed in a foreign country, the witnesses need not be domiciled in the
Philippines
2) those convicted of:

75

a) falsification of a document
b) perjury
c) false testimony
3) Notary cannot be a witness
The TIME OF EXECUTION of the will is the only relevant temporal criterion of the witness competence
Art. 823: The following are disqualified to inherit testate:
1) the witness
2) his spouse
3) parent
4) child
5) anyone claiming under them
NOTE:
1) however, they are still qualified as witnesses
2) the disqualification extends also even if 1-5 are heirs
3) to apply, there must only be 3 witnesses
4) does NOT apply to the legitime of the compulsory heir
a mere charge on the estate of the testator for the payment of debts due at the time of the testators death does
NOT prevent his creditors from being competent witnesses to his will
V. Revocation of wills and testamentary dispositions

C)
D)

D)

E)

76

A will may be revoked by the testator at any time before his death. Any waiver or restriction of this right is
VOID
Difference between revocation and nullity:
Revocation
Nullity
Rules for revocation:
Act of the testator
Proceeds from the law
If made in the Philippines - follow Philippine law
Presupposes a valid act
Inherent in the
If made outside the Philippines:
testament be it an
3) If the testator is NOT domiciled in the
intrinsic or extrinsic
Philippines:
defect
c) follow the law of the place where the will Takes place during the
Invoked after testators
was made
lifetime of the testator
death by the heirs
d) follow the law of the place where the Testator cannot renounce
Can be disregarded by
testator was domiciled at the time of the the right to revoke
the heirs through
revocation
voluntary compliance
4) If the testator is domiciled in the Philippines:
d) follow Philippine law
e) follow the law of the place of revocation
f) follow the law of the place where the will was made
Modes of revoking a will:
By operation of law (no need for probate because it is revoked automatically)
7) acts of unworthiness (1032)
8) transformation, alienation or loss of the object devised or bequeathed (957)
9) preterition (854)
10) judicial demand of a credit given as a legacy (936)
11) legal separation
12) sale of the property given as devise or legacy, for the payment of the debts of the testator
By a subsequent will or codicil
Requisites:
4) subsequent instrument must comply with the formal requirements of a will
5) testator must possess testamentary capacity
6) the revocation may either be:
c) express - when the later will declares the former or all former wills revoked

d) implied - the later will merely makes dispositions inconsistent with those contained in the
subsequent will
Tolentino: No declaration of a fixed determination to revoke at some future time amounts to a revocation.
There must be PRESENT ACTION and not a mere intention to act. BUT the revocation may be made
conditional upon a future event
F) By physical destruction:
6) There are 4 ways:
e) burning - some part must be burned
f) tearing - it is enough that the paper be torn
g) cancelling
h) obliteration
7) May be done by:
c) the testator himself
d) another person: IN HIS PRESENCE and BY EXPRESS DIRECTION
NOTE: Effects of unauthorized destruction by another person:
d) there is NO revocation
e) if attested, the will may still be proved by secondary evidence
f) if holographic, a copy must be presented
8) There must be testamentary capacity
9) The following must concur: (Maloto)
c) intent to revoke
d) physical fact or actual destruction
10) There is a presumption of revocation: (Gago)
e) when a will cannot be found by proper and diligent search after the death of the testator, and it was
last seen with him
f) testator had ready access to the will and it couldn't be found after his death
g) mutilations, obliterations, and interlineations are PRESUMED to have been made after execution of
the will and for the purpose of revoking it
h) if shown that the will was NOT in the hands of the testator, the presumption that it was destroyed by
him does NOT arise
A revocation made in a subsequent will shall take effect even if the new will shall become inoperative
because of:
3) incapacity of the heirs, devisees or legacies
4) their renunciation
Doctrine of Dependent Relative Revocation:
Where the act of destruction is connected with the making of another will, so as fairly to raise the
inference that the testator meant the revocation of the old to depend upon the efficacy of the new
disposition intended to be substituted, the revocation will be conditional and dependent upon the efficacy
of the new disposition; and if for any reason, the new will intended to be made as a substitute is
inoperative, the revocation fails and the original will remain in full force
Art. 833 on False Cause: The law respects the testator's true intent. Hence, this article sets aside a revocation
not reflecting the intent. These are the requisites:
5) the cause must be concrete, factual, or illegal and NOT PURELY SUBJECTIVE
6) it must be false
7) the testator must NOT know of its falsity
8) it must appear FROM THE WILL that the testator is revoking because of the cause which is false
Art. 834: The recognition of an illegitimate child does not lose its legal effect, even though the will wherein it
was made should be revoked
VI. Republication and Revival of Wills

Art. 836 (General Rule): The execution of a codicil referring to a previous will has the effect of republishing
the will as modified by the codicil
The article applies to:
77

3) a will void for a reason OTHER than a formal defect

4) a will previously revoked
Effect: the only thing necessary to REPUBLISH the will is for the testator to execute a subsequent
will or codicil referring to the previous will
Art. 835 (Exception): The testator cannot republish without reproducing in a subsequent will, the dispositions
contained in a previous one which is void as to its FORM
Mere reference to the prior will is NOT enough
The will is void only as to FORM
Tolentino:
Both articles above came from different sources
Conflict: under 836, a proper execution of a codicil extends also to the prior will, since the 2 are
incorporated as 1. And yet under 835, the void wills cannot be upheld by mere reference, they should
be reproduced entirely
Reconciliation: reproduction in the codicil is required only when the original will is void as to its
FORM, in all other cases (want of testamentary capacity or undue influence on the testator), reference
to the original will suffices to republish it through the codicil
Art. 837:
If after making a will, the testator makes a 2nd will expressly revoking the 1st, the revocation of the 2nd
will does NOT revive the first 1st will which can be revived only by another will or codicil
This covers ONLY express revocations
Balane: this is based on the theory of instant revocation. However this is inconsistent with the
principle that wills take effect mortis causa. Furthermore, to be effective, the 2 nd will must be
probated, but it has already been revoked by the 3rd will
Exception: where the 2nd will is holographic and it is revoked by physical destruction, because then,
the possibility of its probate is foreclosed
BUT if it is and IMPLIED REVOCATION (mere inconsistency between 2 wills), upon the
destruction of the 2nd will, the 1st is revived regardless of intention, provided the 1 st was preserved
(RATIO: the 2nd will which has the inconsistent provisions is mere intent and purely testamentary,
hence has no effect until death. If the instrument containing the intent is destroyed, it's as if no intent
was ever present)
note: you have to probate the 2nd will

ALLOWANCE OF WILLS
Preliminaries

To probate a will means to prove before some officer or tribunal vested with law with authority for that
purpose, that the instrument offered to be proved is the last will and testament of the deceased person whose
testamentary act it is alleged to be, and that it has been executed attested and published as required by law,
and that the testator was of sound and disposing mind

Revocation vs. Disallowance:

Revocation
Disallowance
Voluntary act of the By judicial decree
testator
May be made even Can be decreed only for
without cause
the causes provided by
law
May be partial
Always total
78

No will shall pass either real or personal property unless it is

proved and allowed in accordance with the Rules of Court
Kinds of Probate

3) ante mortem that which is had during the lifetime of the testator
4) post mortem after the testators death
A court acquires jurisdiction to probate a will
when it is shown that
5) a person has executed a will or has died leaving a will
6) in the case of a resident, that he resides or died in the province where the court exercises territorial jurisdiction
resides refers to the actual or physical place or abode
7) in the case of a non-resident, that he has estate in the province where the court is situated
8) that the testament or last will has been delivered to the court and is in the possession thereof
Rules in Presentation for Probate

After executing the will, the testator may deposit such to a 3 rd person to hold for him but it is always subject
to his control
A person having custody of a will who neglects to deliver the same to the court without reasonable cause,
after notice by the court to do so, may be imprisoned until he delivers the will
Petition for Probate

Guevara: the probate of a will is MANDATORY

Any executor, devisee or legatee named in a will, or any other person interested in the estate, may, at any time
after the death of the testator, petition the court having jurisdiction to have the will probated or allowed,
whether the same be in his possession or not, or is lost or destroyed
Contents of the Petition:
9) the fact of the testators death, indicating the time and place
10) the fact that the deceased left a will, attaching a copy of such
11) the fact that the will was executed according to law
12) whether the person named as executor consents to act as such, or renounces his right to become an
executor
13) the names, ages and residences of the heirs, legatees and devisees of the decedent
14) the probable value and character of the property of the estate
15) the name of the person whose appointment as executor is prayed for
16) if the will has not been delivered to the court, the name of the person having custody thereof
Only persons interested in the allowance or disallowance of the will should be allowed to intervene in the
probate
A notice of hearing shall be sent to all the parties concerned. Without such, the proceedings shall be void and
should be annulled
The following must be proved at the hearing of the probate of the will:
4) the fact of the testators death, in post mortem probate
5) publication of notice of hearing
6) execution of the will with the formalities required by law
No lost or destroyed will shall be proved unless its execution and validity has been established and proved to
be in existence at the testators death, or shown to have been accidentally or fraudulently destroyed without
his knowledge, nor unless its provisions clearly and distinctly proved
Witnesses to the execution of the will should be presented. The number and character of witnesses to be
presented depends on each circumstance
Effects of Probate

79

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
Once a decree of probate becomes final in accordance with the rules of procedure, it is res judicata
A final decree of probate is conclusive as to the due execution of the will (i.e., as to the wills extrinsic or
formal validity only)
JV: The following are resolved in probate:
4) due execution (formalities)
5) capacity of the testator
d) mental capacity
e) no vitiation of consent
f) right age
6) will is genuine
this requirement was added by Gallanosa
this shows that Art. 839 us NOT exclusive
General 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 exception: this general rule is not inflexible and absolute; the probate of a will might become an
idle ceremony if on its face 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
Reyes:
3) Questions of title to property cannot be passed upon in the probate court. EXCEPT if the claimant and
ALL the other parties having legal interest in the property assent, expressly or impliedly to the submission
of the question to the probate court for adjudication
4) The jurisdiction of the probate court merely relates to matters having to do with the settlement of the
estate and the probate of wills of deceased persons, and the appointment and removal of administrators,
executors, guardians and trustees. The question of ownership is as a rule, cannot be resolved with finality.
Thus for the purpose of determining whether a certain property should be included in the inventory of the
estate proceeding, the probate court may pass upon the title thereto, but such is provisional and is subject
to the final decision in a separate action to resolve title
The probate of a will is not a bar to the probate of a codicil
The probate of a will is not a bar to the allowance of another will subsequently discovered, provided that the
latter is proved to be posterior to the one already probated, or if it is earlier, that the 2 wills can stand together
A grant of letters of administration in intestate proceedings is not a conclusive adjudication of intestacy, so as
to bar the probate of a will subsequently discovered
Disallowance of wills

The law enumerates the different grounds for disallowing wills. No other ground than those provided may
serve as a reason for denying probate of the will
Grounds:
7) if the formalities required by law have not been complied with
8) if the testator was insane or otherwise mentally incapable of making a will, at the time of its execution
9) if it was executed through force or under duress, or the influence of fear or threats
10) if its was procured by undue and improper pressure and influence, on the part of the beneficiary or of
some other person
11) if the signature of the testator was procured by fraud
12) 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
NOTE: if any of these grounds is proved, the will shall be void
The grounds are matters involved in formal validity. Hence, once the probate becomes final, it forecloses any
challenge on any of the grounds
A will should not be disallowed on dubious grounds
A void will cannot be ratified. This is NOT contract law.
80

INSTITUTION OF HEIRS
IX.

X.

Institution of heir
The act by which the testator designates the person or persons who are to succeed him in his property,
rights and obligations
Property here is understood in its generic sense, and is limited by:
d) legitime
e) corpse
RA 349: A person may validly grant to a licensed physician, surgeon, known scientist, or any
medical or scientific institution, including eye banks and other similar institutions, authority
to detach at any time after the grantor's death any organ, part or parts of his body and to
utilize the same for medical, surgical or scientific purposes
f) special law (e.g. CARP)
This applies as well to institution of devisees and legatees
ONLY the free disposable portion is affected
Provisions with regard to the will:
A will shall be VALID even though:
4) an heir is not instituted
5) the institution does not comprise the entire estate
6) the person instituted:
c) does not accept the inheritance
d) is incapacitated to succeed
NOTE: the testamentary dispositions validly made shall be complied with, the remainder passing to
the legal heirs
How much can be disposed of by will:
3) if there are no compulsory heirs - the entire hereditary estate
4) if there are compulsory heirs - the disposable portion

XI.
Identification of heirs
9) The heir shall be designated by name and surname
10) If having the same name, the testator shall indicate some circumstance by which the heir shall be known
11) An error in the name, surname or circumstance shall NOT vitiate the institution when it is possible IN ANY
OTHER MANNER, to know with certainty the person instituted
If there are error and ambiguities:
c) first look at the will
d) then, resort to extrinsic evidence (parol evidence is allowed but NOT the declarations of the testator)
12) An omission of the name will still be valid if the heir is designated in such a manner that there can be no
doubt as to who was instituted
13) If those having the same name, surname and circumstances CANNOT be identified even with proof, none
shall be an heir
14) Dispositions for an UNKNOWN PERSON shall be VOID
Unknown person - one whose identity cannot be determined because he is not yet individualized; it does
NOT mean one who is not acquainted with the testator
As distinguished from an inexistent person or one who has no capacity
15) Exception to (6): by some event or circumstance (past, present or future), the identity is known
In this case, the unknown person becomes individualized
The even or circumstance MUST appear in the will itself
However, Parish Priest says that there is a limitation of 20 years
81

Exception to the exception:

c) the determination of the heir is delegated to another
d) the instituted heir does NOT have the capacity to succeed at the testator's death
16) A disposition in favor of a definite class or group is VALID
XII.
5)

6)
7)
8)

Presumptions of Equality (the following rules do NOT apply if it is clearly shown that the testator
intended otherwise):
Heirs instituted without designation of shares shall inherit in equal parts
Applies only to heirs of the same class and juridical relation.
This is in relation to the disposable portion only
When some are instituted individually and others collectively, those collectively designated shall be
considered individually instituted
Whether full or half-blood, brothers and sisters shall inherit equally
This article refers only to testamentary succession
When the testator calls to the succession a person and his children, they are all deemed instituted
simultaneously and not successively

XIII.

False Cause
General Rule: the falsity of the stated cause does NOT affect the validity of the institution
Exception: these requisites must CONCUR (Austria)
4) the cause for the institution of heirs must be stated in the will
When you say I institute my best friend X, this is not what is contemplated by the law. For the
cause to be "stated," it should go like this: I institute X because he is my best friend.
5) the cause must be shown to be false
6) 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
in effect, this narrows the area of application because of the great burden to prove
NOTE: the same rules apply for "causes contrary to law"

XIV.

XV.

Art. 851
If the institution is limited to an aliquot part of the inheritance, legal succession takes place with respect
to the remainder
This provision applies when the heirs are NOT instituted as sole heirs, unlike in 852 and 853
Art. 852 and 853:
In BOTH articles:
4) there are more than one instituted heirs
5) the testator intended them to get the whole estate or the whole disposable portion as the case may be
this must appear in the FACE of the will
6) the testator has designated a definite portion for each heir
Differences:
852: the total of all the portions is less than the whole estate hence a proportionate INCREASE is
necessary
853: the total exceeds the whole estate hence a proportionate REDUCTION is necessary
NOTE: Both provisions apply to testamentary succession only and the base for increasing or reducing
EXCLUDES the legitime

XVI. Preterition
Preterition means the total omission of a compulsory heir from the inheritance. It consist in the silence of the
testator with regard to a compulsory heir, omitting him in the testament
Distinguished from Disinheritance:

82

Preterition
Disinheritance
Requisites:
Tacit
deprivation
of
a
Express
deprivation of a
4) that there is a TOTAL omission
compulsory
heir
of
his
compulsory
heir of his
therefore, the heir must have received
legitime
by
the
testator
legitime
by
the
testator
nothing from the testator by way of:
Voluntary, but the
Always voluntary
testamentary succession
presumption
is
that
it
is
Reyes: If the heir in question is
instituted in the will but the portion involuntary
There is some legal
given to him by the will is less than The law presumes that
there
has
been
merely
cause
his legitime, there is no preterition,
the remedy is completion of an oversight or mistake
on the part of the
legitime under Art. 906
testator
legacy or devise
Aznar: if the heir is given a legacy Effect: the omitted heir Effect of invalid
gets not only his
disinheritance: the
or devise and such is less than the
legitime but also his
compulsory heir is
heirs legitime, there is no
share in the free portion merely restored to his
preterition,
the
remedy
is
not disposed of by way legitime
completion of legitime under Art.
of legacies and devises
906
donation inter vivos
this is treated as an advance to the legitime, hence the remedy is Art. 906
intestacy
the right of the heir should the vacant portion be less than his legitime is completion under
Art. 906
Reyes: 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, the remedy is completion of legitime under Art. 906
5) that the person omitted is a compulsory heir in the direct line
Covers children or descendants, and in proper cases (in default of children or descendants) parents or
ascendants
The surviving spouse does not fall in this category since she is not in the direct line
Acain: the adopted child is within the contemplation of the article in preterition as a compulsory heir
in the direct line
6) that the compulsory heir omitted survive the testator
if the compulsory heir who has been preterited dies before the testator, it is the same as if there had
been no preterition (but take note of the right of representation)
Effect of Preterition:
Annulment of the institution of heirs, but validity of legacies and devises to the extent that these latter do
not impair the legitimes
This is the only instance in succession where the distinction between heirs and a legatee/devisee has a
practical effect
Nuguid: Preterition abrogates the institution of heir but respects the legacies and devises insofar as these
do not impair the legitimes. Thus if the will
Predecease
Incapacity
Renunciati Disinherit
contains only institutions of heirs and there is
on
ance
preterition, total intestacy will result; if there
NO
NO
NO
NO
are legacies and devises and there is
transmission transmission transmission transmissi
preterition, the legacies or devises will stand,
Representati Representati NO
on
to the extent of the free portion (merely to be
on
on
representati Represent
reduced, not set aside, if the legitimes are
on
ation
impaired) but the institution of heirs, if any,
NO
NO
NO
N/A
will be swept away.
transmission transmission transmission
NO
NO
NO
XVII. Transmission of Rights:
representati representati representati
Based on the principle that no one can transmit to
on
on
on
another more rights than what he himself has
NO
NO
NO
N/A
transmission
transmission transmission
83
Representati Representati NO
on
on
representati
on

Heir
Compu
lsory

Volunta
ry

Legal

SUBSTITUTION OF HEIRS
IV.
Preliminaries
Definition: Substitution is the appointment of another heir so that he may enter into the inheritance in default
of the heir originally instituted
The definition does NOT cover the fideicommissary who does not succeed in default of the first, but AFTER
the first
The rules on institution of heirs apply in a suppletory character
In conflicting claims between substitution and accretion, the former prevails
In reality, there are only 2 kinds of substitution, the simple and fideicommissary. The others are merely
variations of these 2. In the former, the substitute inherits only if the 1 st heir fails. In the latter, BOTH heirs
enter in the inheritance. (they are mutually exclusive)
V.
Kinds of Substitution
E) Simple
A form of conditional institution
Causes of simple substitution:
4) PREDECEASE generally, time of decedents death is the only time important to determine capacity
of the heir
5) RENUNCIATION whether the heir is capacitated at the time of death AND the renunciation is still
to be resolved by jurisprudence
6) INCAPACITY - generally, time of decedents death is the only time important to determine capacity
of the heir (except in those cases where a conviction is necessary)
How to substitute:
3) specify the cause
4) order substitution in general terms (ALL causes above are deemed included)
In an obiter in Rabadilla, it seems that there may be other causes of substitution other than the
ones enumerated above
Extinguishment of substitution:
6) nullity of the will
7) annulment of the institution of heir
8) death of the substitute before the testator
9) substitute himself is incapacitated to succeed the testator
the 2nd heir must have capacity at the testators death AND the time the condition happens (but
see Balane arguments)
10) substitute repudiates or renounces the inheritance
F)

Brief or Compendious
Not really a KIND but a FORM of substitution
May apply to BOTH a simple and fideicommissary substitution
Definition:
3) Brief 2 or more substitutes for 1 original heir
4) Compendious 1 substitute for 2 or more original heirs
NOTE: But the law uses both terms interchangeably
If one is substituted for 2 or more original heirs, the effect of the default of one but not all of the original heirs
will NOT result in substitution. ALL of the original heirs must be disqualified. EXCEPT when the testator
provides that substitution will happen in the event of the death of ANY ONE of the original heirs

G) Reciprocal
Not really a KIND but a FORM of substitution
May apply to BOTH a simple and fideicommissary substitution
84

2 cases:
3) if 2 persons are reciprocally substitutes for each other, the one who succeeds gets the share of the heir
who dies, is incapacitated or repudiates (unless it clearly appears that the testators intention is
otherwise)
4) if there are more than 1 substitute, they shall have the same shares in the substitution as in the
institution

H) Fideicommissary
Elements:
6) a first heir called to the succession (fiduciary)
recognized as an instituted heir
cannot alienate the property
7) a second heir who takes the property subsequently from the first heir
really a 2nd heir, hence he must have capacity
he does NOT succeed the fiduciary, for he acquires his rights from the moment of the testators
death (if he dies BEFORE the 1st heir, the formers heirs will acquire the rights)
8) the second heir must be one degree from the first heir
Palacios: one degree means one generation; hence the 2 nd heir must be either a parent or child
of the first heir
It is possible to establish fideicommissary substitution successively in favor of an unlimited
number of persons, provided they are all one generation from the 1 st heir and are living at the time
of the testators death (one degree means on generation AND transmission)
9) dual obligation imposed upon the fiduciary to preserve the property and to transmit it after the lapse
of the period to the fideicommissary
if this dual obligation is not imposed, the institution is NOT necessarily void; it may be valid as
some other disposition
tenure of fiduciary:
c) primary rule period indicated by the testator (subject to the secondary rule)
d) secondary rule if no period, the fiduciarys lifetime
10) both heirs must be living and qualified to succeed at the time of the testators death
A fideicommissary substitution can never burden the legitime
A fideicommissary substitution is a combination of a usufructuary and a trust
A fideicommissary substitution must be EXPRESSLY made to be VALID:
a) use of the term fideicommissary
b) imposing upon the 1st heir the absolute obligation to preserve and to transmit to the 2 nd
heir
Allowable deductions: (UNLESS the testator provides otherwise)
4) legitimate expenses
5) credits
6) improvements
NOTE: this covers only necessary and useful expenses and the amount deductible is NOT the expense
itself, but only the increase in value
The fiduciary is NOT liable for deteriorations, unless caused by his fault or negligence
The nullity of the fideicommissary substitution does not prejudice the validity of the institution of the
heirs first designated; the clause shall simply be considered as not written (BUT this is not applicable
when there is really no substitution: e.g. tacit fideicomiso)
What happens if the 2nd heir repudiates?
What if the 1st institution is void? There are 2 arguments:
3) annulment of the institution voids the substitution
4) the character of substitution is that there is successive institutions, hence the 2 nd should succeed
VI.
Other Rules
The substitute shall be subject to the same charges and conditions imposed upon the instituted heir, EXCEPT:
85

3) when the testator expressly provides for the contrary (in the will itself)
4) when the condition is personal to the heir
The following shall NOT take effect (considered as not written):
5) fideicommissary substitutions not expressly made
6) provisions which contain:
c) perpetual prohibition to alienate (maximum should only be 20 years)
d) temporary prohibition to alienate (limit is the 1st heirs lifetime)
7) those which impose upon the heir the charge of paying to various persons successively, beyond the 1 st
heirs lifetime, a certain income or pension
8) tacit fideicomiso (only the secret instruction is void)
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 be the testator (ONLY the
secret instruction is void)
the person who has been named shall receive the property not as an heir, but as a mere agent of the
testator for carrying out his secret instructions (in this case the disposition itself is VOID)
A provision leaving the naked title to one and the usufruct to another is valid. If the usufruct is given to
various persons, not simultaneously but successively, then the rules on fideicommissary substitution will
apply
The dispositions declaring the whole or part of the estate inalienable for more than 20 years are void (BUT if
there is a fidecommissary substitution, this will NOT apply The limit is the first heirs lifetime)
Pupilar made by the father naming a substitute for a child under his parental authority in case the latter
should die before attaining majority (this is now abolished)
Ejemplar made by ascendants for descendants who lacked the required mental capacity for making wills and
died in such condition (this is now abolished)

CONDITIONS AND TERMS AND MODES

V.
Preliminaries
3 kinds of dispositions in this section:
4) conditional that which depends upon:
d) a future; or
e) uncertain event; or
f) upon a past event unknown to the parties
5) term that which a day certain has been fixed, a day certain meaning that which must necessarily come,
although it may not be known when
6) mode that which states:
d) the object of the institution
e) the purpose of application of the property left
f) the charge imposed upon the heir
The right of the testator to impose conditions, terms or modes springs from testamentary freedom
The rules provided here DO NOT apply to legitimes
Notes:
3) Art. 871 does not speak of terms
4) The heading in this section does not speak of modes
VI.
Conditions
The condition must appear in the testament itself CLEARLY
If there is doubt whether the testator intended to impose a condition, the interpretation should be that the
institution is pure
In ambiguous conditions, the rules of interpretation should first be resorted to in determining the testators
intent. If that fails, the condition will be regarded as an impossible condition
The following shall NOT be considered as written: (hence it will remain in the realm of intestacy)
86

4) impossible conditions
example: conditions on religion or that prohibiting the contest of a will
time to determine impossibility: when the condition is to be fulfilled (JV: time of death, but one can
also argue that it should be the time of execution)
5) condition contrary to law (illegal)
6) condition contrary to good customs (immoral)
Conditions prohibiting marriage : (ABSOLUTELY)
3) on the first marriage considered NOT imposed
4) on the subsequent marriage:
c) if imposed by anyone else considered NOT imposed
d) if imposed by deceased spouse or ascendants/descendants - valid
When the condition is relative, it may be valid, BUT it will be understood as absolute of the conditions are
practically impossible
note: with regard to the 2nd paragraph in the article, it should not be a condition, rather it should be AKIN to a
term; as long as it is not imposed as a condition and it is akin to a term because it refers to a period, then it is
valid. What is critical is the phrasing.
When the condition not to marry is validly imposed, it is resolutory in character. The widow or widower gets
the property upon the death of the decedent, but she loses all her rights upon marriage (Balane: is this subject
to caucion muciana?)
A condition to contract marriage is VALID (BUT if its performance becomes impossible, it is considered as
not written)
Any disposition made upon the condition that the heir shall make some provision in his will in favor of the
testator or any other person shall be void (CAPTATORIA). Note that the disposition itself is VOID.
Rules on Potestative, Casual and Mixed conditions:
D) Potestative (depends solely on the will of the heir/devisee/legatee)
3) Positive
c) General rule: must be fulfilled as soon as he learns of the testators death
Except:
iii.
the condition was already complied with at the time the heir learns of the testators death
iv.
the condition is of a nature that it cannot be fulfilled again (if it can be fulfilled again, it
should be fulfilled)
d) Constructive compliance: condition deem fulfilled (UNLESS the testators will clearly manifests
that constructive compliance is not allowed)
4) Negative
There is caucion muciana (the heir must give security to guarantee the return of the value of the
property, fruits and interests in case of contravention)
The security may be demanded by those who will succeed upon the violation of the condition
(e.g. the substitute, co-heirs in accretion, legal heirs in intestacy)
If the caucion muciana is not furnished, the property shall be placed under administration until
the condition is fulfilled or it becomes certain that it cannot be fulfilled (however, he will still
enjoy usufructuary rights)
E) Casual (depends on the will of a 3rd person OR chance)
3) General Rule: may be fulfilled at any time (before or after the testators death) UNLESS the testator
provides otherwise
If already fulfilled at the execution of the will:
c) if testator was unaware of the fulfillment deemed fulfilled
d) if the testator was aware:
iii.
if it can no longer be fulfilled again deemed fulfilled
iv.
if it can be fulfilled again must be fulfilled
4) Constructive compliance: NOT applicable
F) Mixed (both a potestative and casual condition)

87

3) General Rule: may be fulfilled at any time (before or after the testators death) UNLESS the testator
provides otherwise
If already fulfilled at the execution of the will:
c) if testator was unaware of the fulfillment deemed fulfilled
d) if the testator was aware:
iii.
if it can no longer be fulfilled again deemed fulfilled
iv.
if it can be fulfilled again must be fulfilled
4) Constructive compliance:
c) if dependent partly on chance NOT applicable
d) if dependent partly on a 3rd person:
iii.
3rd party is an interested party applicable
iv.
3rd party NOT an interested party NOT applicable (institution annulled)

Between the time of the testators death and the fulfillment of the suspensive condition or of the certainty of
its non-occurrence: the property will be placed under administration (NO right of usufructuary for the
instituted heir until the condition happens):
3) if the condition is fulfilled the property will be turned over to the instituted heir
4) if it becomes certain the condition will not happen the property will be turned over tot he person entitled
thereto (e.g. the substitute, co-heir in accretion or legal heirs in intestacy)
The law governing the administration will be that of the Rules of Court
The rules on conditional obligations apply in a suppletory character
The heir must be living BOTH at the testators death and the happening of the condition

VII.
Terms
Distinguished from condition:
Condition
Acquisition of the right
of the heir depends upon
the happening of the
condition, such that if
the condition does not
happen, the heir does
not succeed

Term
Right is already
transmitted to the heir
upon the death of the
testator; the term merely
serves to determine the
demandability of such
right already acquired

Kinds of dispositions with a term:

3) Suspensive (ex die)
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
Before the arrival of the term, the property
shall be delivered to the heirs
There MUST be a caucion muciana (failure to do so is equivalent to a renunciation and the heir next
in the order of intestacy will file the security; the State is not required to furnish security
The testator may designate a person who will enjoy the property until the day comes when the
instituted heir shall take it
4) Resolutory (in diem)
Before the arrival of the term, the property shall be delivered to the heirs
The testator may appoint another to succeed the instituted heir
NOTE: In both, the first heir is bound to preserve the property until the day when the instituted heirs
enjoyment thereof begins or terminates. The first heir is merely a usufructuary and cannot alienate the property
VIII. Mode
Distinguished from condition:
NOTE: In case of doubt, the institution should be
considered as modal not conditional
A mode must be CLEARLY imposed as an
obligation to be considered as one. Mere
preferences or wishes expressed by the testator are
not modes. In case of doubt, the statement should
NOT be considered as mode but merely a
suggestion or discussion
88

Condition
Suspends but does not
obligate
Fulfilled in order to
acquire a perfect right as
heir

Mode
Obligates but does not
suspend
Complied with
because of being
already an heir

When there is a mode, the persons for whose benefit the obligation has been imposed upon the heir may
demand its compliance. But if there are no such persons, the caucion muciana guaranties the performance of
the mode
In modal dispositions, a caucion muciana should be posted
Who may enforce the caucion muciana (for compliance and return)?
3) if a 3rd person will benefit from the mode such person (this is one of the distinctions between a condition
and a mode)
4) if there is no 3rd person the legal heirs
Constructive compliance is ALLOWED
If the fulfillment of the mode is prevented by the intestate heirs, who would legally take the property upon
non-compliance with the obligation, then the obligation will be deemed fulfilled
Effect of non-compliance with the mode: property will be returned to the estate of the decedent to then pass
on under the rules on intestacy (Rabadilla). Note that the same thing will happen upon the occurrence of a
resolutory condition.
What if you have an impossible, illegal or immoral mode?

LEGITIME
I. Definition:

Legitime is that part of the testators property which he cannot dispose of because the law has reserved it
for certain heirs who are, therefore called compulsory heirs
The compulsion in the system of legitime is on the testator, because the heirs can repudiate the inheritance

Those reserved for the legitime is TOTALLY excluded from the power of testacy and intestacy

11) Part of the testators property

there is a debate whether this refers to the concrete part or the value, civilists hold that it refers to
the concrete part

Property includes those which are subject to collation

This refers to the net estate (gross estate minus the obligations)
12) Cannot be disposed of

The testator cannot deprive his compulsory heirs of their legitime

Legitimes cannot be subject to:

a.
Burdens
b.
Encumbrances
c.
Substitution
d.
Condition
13) Reservation by law

The testator cannot deprive his compulsory heirs of their legitime, EXCEPT:
a)
Disinheritance
b)
Incapacity
c)
Art. 1080
d)
Family Home
e)
The testator may provide for a trust (maximum of 20 years)
f)
Reserva troncal
14) Compulsory heirs
a)
Primary Legitimate children and descendants with respect to their legitimate
parents and ascendants

Legitimate children those born OR conceived under a valid marriage (it doesnt matter whether
the legitimate child is that of a 1st marriage)
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Includes legitimated children and adopted children

There is no concurrence between legitimate children and descendants. Hence, the presence of
legitimate children excludes the descendants. This is based on the proximity rule (the nearer
excludes the more remote)

Representation is allowed except in renunciation (because there is NO representation in

renunciation)

Excludes all heirs except concurring and testamentary heirs

The sharing is equal except in representation (but take note that the divisor remains the same: the
number of children)
b)
Secondary Legitimate parents and ascendants with respect to their legitimate
children and descendants

This applies ONLY in default of the primary compulsory heirs

There is no concurrence between legitimate parents and ascendants. Hence, the presence of
legitimate children excludes the descendants. This is based on the proximity rule (the nearer
excludes the more remote)

Representation does NOT apply

Baritua: the parents succeed only when there are no descendants

If the parents predecease, the share will be equal in each line if they are of the same degree. If
not, follow the proximity rule.
c)
Concurring heirs Illegitimate children AND surviving spouse (widow or
widower)
They succeed whether or not there are primary or secondary heirs but they only get from the free
portion

In case of legal separation, the guilty spouse will not be entitled from the succession

Lapuz: the death of one party causes the death of the action for legal separation

Rosales: The surviving spouse referred to here is the spouse of the decedent, not the spouse of the
child who has predeceased the decedent

Baritua: mere estrangement does not disqualify the spouse to inherit

In void marriages, a judicial decree is not required, and the marriage can be attacked collaterally
or directly at any time

In voidable marriages, they are valid until annulled and cannot be assailed collaterally. Moreover,
the annulment should be done during the lifetime of the spouses

The surviving spouse if PREFERRED over the illegitimate children since the shares of the latter
may be reduced in favor of the former in certain cases. But the share of the spouse cannot be reduced
d)
Inferior heirs Illegitimate parents

The illegitimate relationship is only between the parent and child, and does not include the other
ascendants

They are inferior because they are excluded by ascendants and descendants (with respect to the
latter, either legitimate or illegitimate); they can ONLY concur with the surviving spouse
II. Some Pronouncements:
Free portion vs. Free disposable portion: the term free portion is erroneous since:
1)
The free portion can be taken by the surviving spouse and illegitimate children in certain instances
2)
You can only dispose within the law and not as you deem fit
Hence, the correct term should be free disposable portion.
Legitime is NOT a type of succession (testate, intestate or mixed), it is a system of LIMITATION
Presumptive legitimes delivered upon dissolution of a marriage, however they have to be COLLATED
III. Steps to determine legitime:
1) determination of the propertys value which remains at the time of the testators death
2) determination of the obligations, debts and charges which have to be paid out or deducted from the value
of the property left
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3) determination of the difference between the assets and the liabilities, giving rise to the net hereditary
estate
4) the addition to the net value thus found, of the value, at the time they were made, of donations subject to
collation
5) determination of the amount of the legitimes by getting from the total thus found the portion that the law
provides as the legitime of each respective compulsory heir

IV. Amounts of legitimes:

1) Legitimate children

Rule: of the estate in equal portions whether they survive alone or with concurring compulsory
heirs

Article: 888

Illustration: (2 legitimate children)

2) 1 Legitimate child and surviving spouse

Rule: to legitimate child and to the surviving spouse

Article: 892(1)

Illustration:

3) Legitimate children and surviving spouse

Rule: of the estate in equal portions to the children; a share equal to each child for the spouse

Article: 892(2)

Illustration: 2 legitimate children

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4) Legitimate children and illegitimate children

Rule: of the estate in equal portions to the children; of the share of each legitimate for the
illegitimate children

Article: 176 of the FC and 888

Illustration: 2 legitimate and 2 illegitimate

5) 1 legitimate, illegitimate children and surviving spouse

Rule: of the estate for the legitimate; each illegitimate of the legitimates share; of the
estate for the surviving spouse

Article: 176 of the FC and 888, 892(1),895(3)

Illustration: 1 legitimate and 2 illegitimate

NOTE: The concurring heirs get from the half free portion. The surviving spouse having preference, and
the illegitimate children may suffer reduction.

6) Legitimate children, illegitimate children and surviving spouse

Rule: the children follow the rule on (5); surviving spouse gets a share equal to that of a
legitimate child

Article: 892(2),897,898

Illustration: 3 legitimate and 2 illegitimate

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7) Legitimate parents

Rule: of the estate whether or not with concurring compulsory heirs

Article: 889

Illustration:

8) Legitimate parents and illegitimate children

Rule: of the estate for the legitimate parents; of the estate in equal shares to the illegitimate

Article: 889, 896

Illustration: 1 legitimate and 2 illegitimate

9) Legitimate parents and surviving spouse

Rule: of the estate for the parents; of the estate to the spouse

Article:
889, 893

Illustration:

10) Legitimate parents, illegitimate children and surviving spouse

Rule: same as in (8); the surviving spouse gets 1/8 of the estate

Article: 899

Illustration: 2 illegitimate

11) Illegitimate children alone

Rule: of the estate divided equally

Article: 901
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Illustration: 3 illegitimate

12) Illegitimate children and surviving spouse

Rule: all the children divide 1/3 of the estate equally; surviving spouse gets 1/3 too

Article: 894

Illustration: 3 illegitimate

13) Surviving spouse alone

Rule A (General Rule): of the estate

Article: 900

Illustration:

RuleB (marriage in articulo mortis and deceased dies within 3 months): 1/3 of the estate except
those who have been living together for 5 years or more in which Rule A applies.
Article: 900
Illustration:

14) Illegitimate parents alone

Rule: of the estate

Article: 903

Illustration:
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15) Illegitimate parents, and children of any class

Rule: illegitimate parents none; children same as in (1), (6), and (11)

Article: 903

Illustration: 3 legitimate and 3 illegitimate

16) Illegitimate parents and surviving spouse

Rule: of the estate to the illegitimate parents; to the surviving spouse

Article: 903

Illustration:

LEGEND:
- Free Portion
- Surviving Spouse
- Illegitimate Child
- Legitimate Child
-

Legitimate Parents

Illegitimate Parents

NOTE: The rights of illegitimate children set forth above are transmitted upon their death to their descendants,
whether legitimate or illegitimate
VI. Other related provisions:
Every renunciation or compromise as regards a future legitime is VOID. The legitime may be claimed upon
death, BUT any property gratuitously received from the predecessor by virtue of the renunciation or
compromise will be considered an advance on the legitime and must be COLLATED. (this refers only to
comprises between the testator and the complusory heir; for the others, the prohibition is found in the
provision that prohibits future inheritance to be contracted away)
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Right of completion of legitime: any title less than the legitime belonging to the compulsory heir may demand
that it be fully satisfied
Rule when the devise subject to reduction should consist of real property which cannot be conveniently
divided:
1) if the extent of reduction is less than of the value of the thing it should be given to the devisee
2) if the extent of reduction is or more of the value of the thing it should be given to the compulsory heir
NOTE: in either case, there should be pecuniary reimbursement to the party who did not get his physical
portion of the thing devised
If the above rule has not been exercised:
1) any other heir or devisee, who elects to do so, may acquire the thing and pay the parties (the compulsory
heir and the devisee in question) their respective shares in money
2) if no heir elects to acquire it, it shall be sold at public auction and the net proceeds accordingly divided
between the parties concerned
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.

RESERVA TRONCAL
11. Purpose: It seeks to prevent persons outside a family from securing, by some special accident of life, property
that would otherwise have remained therein.
12. Nature: The reserva creates a double resolutory condition to which the right of ownership of the person
obliged to reserve is subjected:
3) the death of the ascendant obliged to reserve
4) the survival at that moment of relatives within the 3 rd degree belonging to the line from which the
property came
13. Requisites:
5) that the property was acquired by a descendant from an ascendant or from a brother or sister by gratuitous
title
6) that said descendant died without an issue
7) that the property is inherited by another ascendant by operation of law
8) that there are relatives within the 3rd degree belonging to the line from which said property came
14. Process of transfers:
4) First by gratuitous title, from a person to his descendant, brother or sister
5) Second by operation of law, from the transferee in the first transfer to another ascendant (this creates
the reserva)
6) Third from the transferee in the second transfer to the reservatarios
15. Parties (All must be legitimate relations):
5) Origin or mediate
The ascendant or brother or sister from whim the property originally came
It is immaterial whether the property came from some other person before it became property of the
other ascendant or the brother or sister
The ascendant may be of an degree of ascent

Should the brother/sister be of the full or

half-blood? 2 opinions:

NOTE: Tolentino goes for the 2nd view

6) Prepositus
The descendant who acquired the property
by lucrative title from the origin
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Relationship must be of
the half-blood because
otherwise the property
would not change lines
in passing to a common
ascendant of the
prepositus and the
brother. Hence, there
should be no reserva if it
is a full-blood
relationship because of
impossibility to identify
the line of origin

It does not matter

whether it is of the full
or half-blood. The law
does not distinguish, and
precisely the reservation
is in favor of a line,
whether paternal or
maternal

While the property is still in the prepositus, there is as yet no reserva. Consequently, the prepositus
has all the rights of ownership over the property any may exercise such rights in order to prevent a
reserva from arising.
The prepositus is the arbiter of the reserva troncal.

7) Reservista
Ascendant who received the property by operation of law from the descendant
He is the person obliged to reserve
The reservable property is NOT part of the estate of the reservista.
Gonzales: the reservista has NO power to appoint, by will, which reservatarios were to get the
reserved property
8) Reservatarios
The relatives benefited
Twin requirements:
3) within the 3rd degree from the prepositus
the following are the relatives within the 3rd degree:
d) father and mother
e) grandparents of the line from which the property came and the brothers of the full blood,
or those of the half-blood on the side from which the property came
f) great-grandparents, the uncles by consanguinity and the nephews and nieces
4) belonging to the line from which the property came
Must the reservatario also be related to the origin? Tolentino: YES. There must be a double relation
of consanguinity. Hence, the reservatario must be related by blood not only to the descendant but the
origin as well.
As long as the reservatario is alive at the time of the reservistas death, he qualifies as such, even if
he was conceived and born after the prepositus death
Padua: the choice of reservatarios are subject to the rules of intestate succession, hence the rules on
preference of lines and proximity apply
Florentino: representation will also apply in reserva troncal, as long as the person representing is also
in the 3rd degree. Hence, there can only be one instance of representation, a case of the prepositus
being survived by brothers/sisters and children of a predeceased or incapacitated brother/sister
16. Rules on the Property subject to reservation:
4) there is no need to inquire into the source of property further than the origin
5) the prepositus must have acquired the property from the origin by lucrative title
6) the property from the prepositus must pass to the ascendant reservista by operation of law
Operation of law:
c) legitime in case of testamentary succession
d) entire inheritance in case of intestacy
NOTE: it should never pass by will
The reservation applies ONLY to properties which can be distinguished and individualized. NO
SUBSTITUTION is allowed, whether it is of the same king or value.
It should be noted that before the death of the prepositus, there is no reservation yet, and hence no
obligation to preserve the property
Maxima/minima:
For this 2 theories to apply, the following must concur:
c) prepositus institutes the ascendant-reservista to the whole or a part of the free portion
d) there is left in the prepositus estate, upon his death, in addition to reserved property, property
not reservable
If the requisites concur, apply either:
c) maxima the reserva should apply to the property that has been gratuitously acquired from
the origin that can be included within the legitime of the reservista
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d) minima the property passing to the reservista passes partly by will and partly by law, in the
same proportion that the part given by will bears to the part not so given
17. Rights of the Reservista:
5) ownership over the property
6) ownership is subject to a resolutory condition (the existence of reservatarios at the time of the reservistas
death)
7) right of ownership is alienable, but subject to the same resolutory condition
8) reservistas right of ownership is registrable
18. Obligations of the Reservista:
4) to annotate in the Registry of Property the reservable character of the immovable
the reservista has a period of 90 days from the time the reserva arises, in which to register the
reservable character of the immovable property; if he does not voluntarily cause the registration
within that period, then the reservatarios may judicially demand that he be compelled to make it
5) to make an inventory of all the reservable property
the actual condition of the property should be described and their value stated
the form of the inventory is not important, however when real property is involved, it should be in a
public instrument
6) to constitute a mortgage or give a security to guaranty:
e) the restitution of personal property in the condition in which it may be found at the time of his death
f) the return of the price received for personal property alienated, or the delivery of its value at the time
of alienation if this has been made by gratuitous title
g) the payment of the damages caused by his fault or negligence
h) the value of the immovable property validly alienated
19. Rights of the Reservatarios:
5) Right of expectancy over the property
6) Right is subject to a suspensive condition (the expectancy ripens to ownership if the reservatarios survive
the reservista)
7) Right is alienable but subject to the same suspensive condition
Rules when the immovable has been alienated:
d) if the reserva is annotated transferee has only a conditional title
e) if the reserva is NOT annotated but the transferee had knowledge that there was a reserva
transferee has only a conditional title
f) if the reserva is NOT annotated, the transferee had NO knowledge of the reserva, and there is NO
registration in the Registry:
i.If the transferee registers such immovable the transferee has better title
iv.
If the transferee does NOT register there are 2 views, but Tolentino holds that the good faith
buyer prevails since it was the reservatarios fault; the recourse is to go after the reservista.
8) Right is registrable
20. Extinguishment of theReserva:
8) death of the reservista
9) death of the reservatarios
10) total fortuitous loss of the property
11) renunciation
12) prescription
13) confusion or merger of rights
14) Torrens registration

DISINHERITANCE
I.

Preliminaries:
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Disinheritance the act by which the testator, for a just cause, deprives a compulsory heir of his right to the
legitime. It is a testamentary disposition by which a person is deprived of, or excluded from, the inheritance to
which he has a right
It totally excludes the disinherited heir (even in a previous will)
The rules here are strictly construed
Accurately, it only speaks of the legitime, but its legal consequence includes intestacy

II.

Requisites for disinheritance:

1) That it is made in a valid will

This means the formalities and solemnities were complied with

A will is recognized as valid only if admitted by the probate court

2) That it be for a cause designated by law

This is an exclusive list

3) That it be made expressly, stating the cause in the will

it is advisable to put in the details constituting the grounds, BUT mere statement of the ground is
already sufficient, in either case it has to be proved
4) The cause must be certain and true, and must be proved by the interested heirs ONLY if the person
disinherited should deny it
Hence there must be a probate
5) It must be TOTAL
6) That it must be unconditional

But the pardon may be conditional

7) That the heir disinherited must be designated by name or in such manner as to leave no room for doubt as
to who is intended

The rules with regard to designating by name in institution of heirs is followed

III.

Effect of a void disinheritance:

1) Annulment of the testamentary dispositions only in so far as they prejudice the legitime of the person
disinherited
2) It doesnt affect the dispositions of the testator with respect to the free portion

IV.

Reconciliation:
1) refers expressly to the heir disinherited
2) specifically to the acts causing the disinheritance
3) pardon accepted by the heir

V.

Causes for revocation of disinheritance:

2) reconciliation
3) subsequent institution of the disinherited heir (reconciliation)
4) nullity of the will containing the disinheritance

VI.

Right of representation:
In case there is disinheritance there is a right of representation BUT only with respect to the direct
DESCENDING line (this refers ONLY to children and descendants; Art. 919). The disinherited parent shall
NOT have the usufruct or administration of the property (A disinherited ascendant or spouse CANNOT be
represented)

VII.

GROUNDS:
* - the ground is also present under 1032 (unworthiness).
NOTE: When the ground for disinheritance overlaps with unworthiness, the choice is in the testator. If he
disinherits, then the rules on disinheritance shall apply. BUT if he is silent, then the rules on unworthiness will
come into play.

99

VIII.

Related matters:
1) Grounds for loss of parental authority:
a) adoption
b) appointment of general guardian
c) abandonment
d) final judgment of the Court
e) absence or incapacity
f) civil interdiction
g) excessiveness, harshness or cruelty
h) corrupting orders, counsel or example
i) compelling to beg
j) acts of lasciviousness
k) sexual abuse
2) Grounds for legal separation:
a) repeated physical violence/grossly abusive conduct on the spouse or child
b) compelling to change religion or political affiliation
c) prostitution or corruption
d) imprisonment of more than 6 years even if pardoned
e) drug addiction or habitual alcoholism
f) lesbianism or homosexuality
g) bigamy
h) sexual infidelity or perversion
i) attempt on life
j) abandonment of 1 year

LEGACIES AND DEVISES

I.
Art. 924
Difference:
1) Legatee/Devisee institution of a specific/determinate thing as stated in the will
2) Institution of heir institution to an aliquot portion of the estate as stated in the will
All things and rights which are within the commerce of man may be bequeathed or devised
It is NOT required that the thing belong to the testator
To be within the commerce of man, the thing should be:
1) susceptible of appropriation or of being subjected to property rights of natural or juridical persons
2) transmissible from one person to another, such that they may be disposed of as forming part of ones
patrimony
The following are outside the commerce of man:
1) common things (e.g. air, light)
2) property of public ownership, public use or owned by the State
3) res nullius, belonging to no one
4) those which are inalienable (e.g. sacred and religious things)
5) those forming part of edifices and which cannot be separated from them without being destroyed

II.
Art. 925-926
Who is charged with the burden of legacies and devises?
1) General Rule: the estate
Executor identified and stated in the will to execute its provisions
Administrator judicially appointed in the absence of an express designation of an executor in a will,
or in case of intestacy
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2) However, the testator may impose the burden on a testamentary heir or a legatee or devisee (sublegacy/devise)
Subject to the following rules:
a) compulsory heir shall not be liable for the charge beyond the amount of the free portion given
them
b) primary legatees and devisees shall be liable for the charge only to the extent of the value of the
legacy or devise they received
this is a kind of modal institution
When the testator charges on the heirs with a legacy or devise, he alone shall be bound. Should he not charge
anyone in particular, all shall be liable in the same proportion in which they may inherit
Sub-legacies or sub-devises: a legacy or devise made to a 3 rd person of a thing belonging to an heir, legatee or
devisee
Tolentino: sub-devises and legacies are VALID only:
1) if the testator makes an express charge on the heir, legatee or devisee
2) if the testator orders that the thing be acquired by his estate and delivered to the 3 rd party beneficiary
NOTE: If the testator did not know that the thing belonged to his heir, devisee or legatee, the disposition of
such thing to a 3rd person is VOID

III.
Art. 927
If two or more heirs take possession of the estate, they shall be solidarily liable for the loss or destruction of a
thing devised or bequeathed, even though only one of them should have been negligent
IV.
Art. 928
Who is liable in case of eviction and other warranties (e.g. hidden encumbrances or defects)
1) General Rule the estate
2) The heir, devisee or legatee charged
NOTE: This applies ONLY if the legacy or devise is GENERIC
V.
Art. 929
General Rule: conveys only the interest or part owned by the testator (this applies whether or not the testator
knew that the thing was partly owned by a stranger)
Exception: when the testator EXPRESSLY declares that he bequeaths the thing as a whole in the will itself
(NOTE: the testator must have a knowledge that hes bequeathing property partly belonging to a stranger OR
this should be proved by competent evidence)
Effect of Partition (by Tolentino):
The same rule applies
However, if the property is indivisible and the thing is adjudicated to only one and the others are
reimbursed:
1) if the property is adjudicated to the testator, heir, devisee or legatee:
a) if only a part is bequeathed only that part
b) if the whole property is bequeathed the whole property
2) if the property is adjudicated to a 3rd person:
a) if only a part is bequeathed that part is revoked under Art. 957
b) if the whole property is bequeathed annuls the legacy or devise ONLY of the part belonging to
the testator, but the part corresponding to the 3rd person remains effective
VI.

Art. 930-931: Rules when the legacy/devise is a SPECIFIC and DETERMINATE thing belonging to
another
A) If the testator erroneously believed that the thing belonged to him L/D is VOID
EXCEPT if subsequent to the making o the disposition, the thing is acquired by the testator, the
disposition is validated
B) If the testator ORDERED the acquisition of the thing the order should be complied with; if the owner is
unwilling to part with the thing, the L/D should be given the monetary equivalent
Difference with (A): it is presupposed in this case that the testator knew that the thing was not his
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Who will acquire the property?

1) General Rule: the executor or administrator
2) That particular heir, legatee or devisee selected by the testator
C) If the testator knew that the thing did not belong to him but did not order its acquisition the Code is silent on
this but commentators hold the rules on (A) should apply.
VII.
Art. 932-933: Rules when the L/D of a thing already belongs to the legatee/devisee
The rules in this case apply whether or not the testator knew that the thing belongs to the legatee or devisee
A) If the thing already belonged to the L/D at the time of the execution of the will the L/D is void, even
though:
1) another person has an interest in the property
2) the property is subsequently alienated by him
NOTE: if the testator expressly orders that the thing be freed from such interest or encumbrance, the
legacy or devise shall be valid to that extent
B) If the thing was owned by another person at the time of the making of the will and acquired thereafter by
the legatee/devisee:
1) If the testator erroneously believed that it belonged to him VOID
EXCEPT if subsequent to the making o the disposition, the thing is acquired by the testator, the
disposition is validated
2) If the testator was not in error:
a) if the thing was acquired onerously entitled to reimbursement
b) if the thing was acquired gratuitously nothing more is due
c) if the thing was owned by the testator and acquired thereafter by the L/D:
i.
Balane L/D deemed revoked
ii.
Tolentino no intention to revoke (BUT if the testator has not alienated the thing directly
to the L/D, but to a 3 rd person and the former just acquired it from the latter, there is an
intention to revoke)
The moment to be considered in the rules is the date of the execution of the will ( except when the thing is
alienated by the L/D to the testator himself and the latter continues in possession until death)
Tolentino: in part ownership of a thing, that which belongs to the L/D is always VOID. With respect to the
other part, Arts. 929,930 and 931 apply.
VIII. Art. 934
General Rule: when the thing bequeathed has been given as security for a recoverable debt, the legatee or
devisee should receive it free from the encumbrance (subject tot he express will of the testator)
The law refers to ALL kinds of security for the payment of debts
All other burdens or encumbrances (e.g. usufruct, pensions) which do not constitute a guaranty for the
payment of demandable debts passes with the property to the L/D
IX.
Art. 935-936
A) Legacy of Credit
When the testator bequeaths to another a credit against a 3 rd person
2 ways:
1) collecting the credit and delivering the proceeds to the legatee
2) assigning all the actions in the credit (but NO warranty of its existence)
The legacy of the thing given as security is a remission of the guaranty only, but not the principal
obligation
B) Legacy of Waiver of Credit
A remission of the debt (hence the credit is included in the assets of the estate and is subject to the rules
on inofficious donations)
Not to be confused with an acknowledgement that the debt has been paid
2 kinds:
1) specific only the debt specifically mentioned is remitted
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2) generic only those existing at the time the will was made is remitted, but not those subsequently
contracted
NOTE: if the total debts exceed the free portion, the rules on application of payments should be applied
If payment is made with knowledge of the legacy, it amounts to renunciation
C) Provisions Common to both legacies
The legacy shall comprise all interests on the credit or debt which may be due the testator AT THE TIME
OF HIS DEATH
The legacy shall be revoked if the testator, after the will has been made, brings a judicial action for the
recovery of the credit or debt (UNLESS provided otherwise by the testator)
X.
Art. 938: L/D to a creditor
General Rule: will be treated like any other L/D and will NOT be imputed to the debt (no change of creditordebtor relationship)
Exception: will be imputed to the debt if the testator so provides, and if the debt exceeds the L/D, the excess
may be demanded
Of course, it will be better for the creditor to renounce the L/D and file a claim for her credit
If the testators debt is secured by pledge or mortgage, and he expressly bequeaths the thing pledged or
mortgaged as payment of his debt, such will constitute dacion en pago
When the testator does not expressly state that he leaves a legacy to the creditor, but merely directs a payment
of a debt, there is NO LEGACY in favor of the creditor
XI.
Art. 939: Testamentary instruction to pay a debt
This is not a disposition, but merely a direction to discharge a civil obligation
Rules:
1) instruction to pay a non-existing debt considered as NOT written
2) instruction to pay more than what is due effective only to what is due
The rules are subject to the following qualifications:
1) if the testator really intended to give a true L/D
2) if the obligation is NATURAL, and it is paid according to the order of the testator in his will, that which
has been paid can no longer be recovered
XII.
Art. 940
Definition: one which provides that, among several things mentioned, only one is to be given
Rules:
1) the L/D is complied with by delivering one of the things designated
2) if one alternative cannot be delivered, the other must of necessity be given
3) if it is not possible to deliver any (e.g. loss, thing is not existing in the estate), the L/D is inoperative
NOTE: Provisions on alternative obligations apply suppletorily.
Right of choice: (UNLESS the testator so provides)
1) the executor or administrator
with the courts approval
if she dies, the right is transmitted to the successor
2) a particular heir, legatee or devisee charged
if she dies, the right is transmitted to her heirs
NOTE: once a choice is made, it is IRREVOCABLE
Before a selection is made, there is in effect a L/D of a generic object, hence the rules on such will apply
XIII. Art. 941-943
Rules on validity:
1) Generic Legacy
Valid even if no such movables exist in the testators estate upon his death; the estate will simply have
to acquire what is given by legacy
2) Generic Devise
103

Valid only if there exists such an immovable in the testators estate at the time of his death
The time considered is AT THE MOMENT OF DEATH
Certain rules:
1) in order to be considered generic, the genus or species of the object should be determined and the quantity
specified
2) if the legacy should be one of my houses, it is not really generic but an alternative L/D
3) when only one of the species mentioned is found in the estate, the L/D is converted to a specific L/D
Right of choice (once made, it is IRREVOCABLE):
1) the executor or administrator
if she dies, the right is transmitted to the successor
2) legatee or devisee favored
if she dies, the right is transmitted to the heirs
NOTE: the choice is limited to something which is neither superior nor inferior in quality

XIV. Art. 944-945

A) Legacy for Education
Strictly personal and cannot be transmitted to the heirs unless otherwise provided by the testator
Duration:
1) age of majority; or
2) completion of a professional, vocational or general course
provided the course is pursued diligently
NOTE: whichever comes later
Amount:
1) primarily that fixed by the testator
2) secondarily that which is proper as determined by:
a) social standing and circumstances of the legatee
b) value of the disposable portion of the estate
B) Legacy for Support
Strictly personal and cannot be transmitted to the heirs unless otherwise provided by the testator
Duration: the legatees lifetime, unless otherwise provided by the testator
Amount:
1) primarily that fixed by the testator
2) secondarily that which the testator during his lifetimes used to give the legatee by way of support,
unless MARKEDLY DISPROPORTIONATE to the value of the disposable portion
3) tertiarily that which is proper as determined by:
a) social standing and circumstances of the legatee
b) value of the disposable portion of the estate
Extinguishment of support (applies also to education):
1) death of legatee
2) reduced resources to the point where he cannot give support without neglecting his or his familys
needs
3) legatee has improved his fortune that he no longer needs allowance
4) legatee has committed acts giving rise to disinheritance
5) legatee is a descendant, brother or sister and need for support is caused by bad conduct or lack of
application to work
NOTE: these were omitted by the Family Code
C) Legacy of a Periodic Pension
Demandability upon the testators death, and the succeeding ones at the beginning of the period without
duty to reimburse should the legatee die before the lapse of the period
But note that the debts should be paid first (unless the legatee files a bond). However, should the legacy
prove not inofficious, the date of effectivity retroacts to the decedents death

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XV.
Art. 946
If the thing bequeathed should be subject to a usufruct, the legatee or devisee shall respect such right until it is
legally extinguished
Art. 947-949: Demandability, Ownership and
Fruits of L/D
A) Demandability:
1) Pure
a) and determinate upon the testators death
b) and generic upon the testators death
2) with suspensive term upon arrival of the term
Tolenti
Applies when the
3) conditional (suspensive) upon the happening of
no
question of
the condition
reduction is
B) When ownership vests:
exclusively among
1) Pure
legatees and
a) and determinate upon the testators death
devisees themselves
b) and generic:
i.
if from the testators estate upon the testators death
ii.
if from a 3rd person upon acquisition
2) with suspensive term upon arrival of the term, but the right to it vests upon the testators
death
3) conditional (suspensive) upon the testators death if the condition is fulfilled (retroacts)
NOTE: the owner bears the improvements and deteriorations (BUT if the loss is imputable to the person
obliged to deliver, the latter is liable for the loss)
C) Fruits (includes unborn offspring and uncollected, UNDUE income):
1) Pure
a) and determinate upon the testators death
b) and generic upon determination, unless the testator provides otherwise
2) with suspensive term upon arrival of the term
3) conditional (suspensive) upon the happening of the condition, unless the testator
provides otherwise
Author
Balane

911
Applies if
reductions have to
be made because
the legitimes have
been impaired
Applies when
there is a conflict
between
compulsory heirs
and devisees and
legatees

950
Applies if the reason
for the reduction is
not the impairment
of legitimes

XVI.

XVII. Art. 950

If the estate should not be sufficient to cover all the legacies or devises, their payment shall be made in the
following order:
1) Remuneratory legacies or devises
2) Legacies or devises declared by the testator to be preferential
3) Legacies for support
4) Legacies for education
5) Legacies or devises of a specific, determinate thing which forms a part of the estate (must be wholly
owned by the testator)
6) All others pro rata
Those first in order of payment must be paid in full, and if nothing remains for those following, then these are
rendered inoperative for lack of sufficient property
As distinguished from 911:
Instances when 950 will arise:
1) total estate cannot cover the total L/D, even when there are no debts against the estate apply 950
2) gross estate would have been sufficient but becomes insufficient due to payment of debts and expenses:
a) testator provided for payment apply 950
b) testator has NOT provided for payment the L/D will be first reduced proportionately (except
specific L/D in accordance with the testators will), thereafter 950 applies
XVIII. Art. 951
The thing bequeathed shall be delivered upon the testators death:
105

1) with all its accessories

all those things which are necessary for the thing
the accessory however must be such with respect tot he principal thing
2) with all its accessions
that produced by the thing or which is incorporated or attached thereto either naturally or artificially
3) in the condition in which it may be
XIX. Art. 952
The person obliged to deliver the thing must deliver the very thing bequeathed and not just its value (subject
to agreement between the parties)
Legacies of money must be paid in cash, even though the heir or the estate may not have any (hence property
can be sold)
Expenses for delivery:
Borne by the estate
But these must be necessary expenses (voluntary delivery)
If there is a litigation, the court will determine who bears the costs
XX.
Art. 953
The legatee or devisee cannot take possession of the thing bequeathed upon his own authority, but shall
request its delivery and possession

XXI. Art. 954-955: Rules on Acceptance and Repudiation of L/D

A) 1 L/D:
General Rule: acceptance may be total or partial
Exception: if the L/D is partly onerous and partly gratuitous, the recipient cannot accept the gratuitous part
and renounce the onerous; any other combination is permitted
If the L/D dies before accepting or renouncing, his heirs shall exercise such right as to their pro-indiviso
share, in the same manner above
B) 2 L/D to same recipient:
1) if both gratuitous recipient may accept or renounce either or both
2) if both onerous recipient may accept or renounce either or both
3) if one gratuitous and the other onerous recipient cannot accept the gratuitous and renounce the onerous;
any other combination is permitted
NOTE: But if the testator intends them to be inseparable, BOTH must be accepted or renounced
C) L/D to one who is also a compulsory heir: recipient may accept either or both the L/D and the legitime
D) Rules A-C will not apply if the testator provides otherwise
XXII. Art. 956: Rules in case of repudiation by or incapacity of L/D or when it becomes ineffective
1) Primarily substitution
2) Secondarily accretion
3) Tertiarily - intestacy
XXIII. Art. 957: Causes for revocation by operation of law
A) Transformation
Applies ONLY to specific things belonging to the testator
It must be BOTH in (not mere incorporation):
1) form external appearance of the object
2) denomination name by which it is known by all, according to its nature and class
B) Alienation
It may be onerous or gratuitous
It must be VOLUNTARY
106

The alienation revokes the L/D even if for any reason the thing reverts to the testator, EXCEPT:
1) if the reversion is caused by the annulment of the alienation and the cause for annulment was vitiation
of consent on the grantors part, either by reason of incapacity or of duress
2) if the reversion is by virtue of redemption in a sale with pacto de retro
If the alienation is subject to a suspensive condition, the mere fact of alienation does not revoke the L/D
yet until the condition arrives
If partial, it applies only to the alienated part
C) Total Loss
D) Other Causes: nullity of the will, non-compliance with suspensive conditions, sale of thing to pay debts of the
estate, etc.
XXIV. Art. 958
A mistake as to the name of the thing bequeathed or devised, is of no consequence if it is possible to identify
the thing which the testator intended to bequeath or devise (take note of the rules in the general provisions on
wills: parol evidence is allowed but oral declarations of the testator is not)
XXV. Art. 959
A disposition made in general terms in favor of the testators relatives shall be understood to be in favor of
those nearest in degree (UNLESS provided by the testator)
Refers to degree, whether ascending, descending or collateral
Right of representation does NOT exist in this institution
Limited to relatives in the 5th degree

INTESTATE SUCCESSION
V.
Preliminaries
Legal or intestate succession is that mode of transmission mortis causa which takes place in the absence of the
expressed will of the decedent embodied in a testament
2 fundamental characteristics:
3) legal succession because it is succession conferred by law
4) intestate succession because it takes place only in the absence of a will
VI.
Instances when legal or intestate succession operates
F) If a person dies:
4) without a will
5) with a void will
6) will which loses its validity (should be efficacy)
NOTE: legally, the result is the same in each instance: there is no will
G) When the will:
3) does not institute an heir
4) disposes of property partially (includes cases where the dispositions are void)
NOTE: intestacy here may be total or partial
H) In the following instances:
4) the SUSPENSIVE condition attached to the institution of heir does not happen
5) predecease
6) repudiation
NOTE: But intestacy will NOT happen if there is:
c) substitution
d) right of accretion
I) Incapacity of the heir instituted:
4) 1027 relative incapacity
5) 1028 donations
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6) 1032 unworthiness
NOTE: But intestacy will NOT happen if there is:
c) substitution
d) right of accretion
J) Other causes of intestacy:
5) happening of a resolutory condition
6) expiration of a resolutory term
7) \non-compliance or impossibility of complying with the testators will
8) preterition
NOTE: it was the intention of the legislature to embrace within the provisions of Art. 960 all the causes for
intestate or legal succession
VII.
Art. 961
In default of testamentary heirs, the law vests the inheritance in accordance with the rules hereinafter set
forth:
4) in the legitimate and illegitimate relatives of the deceased
5) in the surviving spouse
6) in the State
Disinheritance of intestate heirs:
3) tacit when a voluntary heir is instituted, thereby excluding the intestate heir
4) express exclusion of intestate heir without instituting any heir
NOTE: unlike the disinheritance of compulsory heirs, this exclusion does NOT require any legal cause but
depends solely upon the will of the testator
2 notable features of an express disinheritance of an intestate heir:
3) the State cannot be excluded by this method
4) exclusion of a person does NOT extend to his descendants and successors unless the will provides for
such extension
VIII. Basic Rules of Intestacy
D) The rule of preference of lines
The 3 lines of relationship are:
4) the descending
5) the ascending
6) the collateral
NOTE: the descending excludes the ascending and collateral, and the ascending excludes the collateral
E) The rule of proximity of degree
The nearer exclude the more remote
Exceptions:
3) representation
4) preference among lines
F) The rule of equality among relatives of the same degree
Relatives in the same degree shall inherit in equal shares
Exceptions:
6) preference among lines
7) distinction between legitimate and illegitimate filiations
8) rule of division by line in the ascending line
9) distinction between whole and half-blood among brothers and sisters as well as nephews and nieces
10) representation

RELATIONSHIP

108

VI.
Preliminaries
Proximity of relationship is determined by the number of generations. Each generation forms a degree
A series of degrees forms a line which may either be:
3) direct that constituted by the series of degrees among ascendants and descendants
c) descending unites the head of the family with those who descend from him
d) ascending binds a person with those from whom he descends
4) collateral that constituted by the series of degrees among persons who are not ascendants and
descendants, but who come from a common ancestor
It is important to distinguish:
3) descending and ascending (both direct) because descending is preferred over the ascending
4) direct and collateral because the direct is preferred over the collateral
VII.
Computation of degrees
C) Direct line
there is no legal limit to the number of degrees for entitlement to intestate succession (except human
mortality)
one generation = one degree
D) Collateral line
Computation of degrees is important because intestate succession extends ONLY to the 5 th degree
Mode of computation:
4) from one reference point, ascend to nearest common ancestor
5) then descend to the other reference point
6) number of generations comprising the ascent and the descent is the degree of collateral relationship

VIII. Full and Half-Blood Relationships

Definition:
3) Full blood that existing between persons who have the same father and the same mother
4) Half blood that existing between persons who have the same father, but the not the same mother, or the
same mother, but not the same father
Importance of distinction: there is a 2:1 ration with reference to:
3) brothers and sisters
4) nephews and nieces
NOTE: with respect to other collateral relatives, it is NOT material
IX.
Art. 968
Contemplates a case where there are several relatives of the same degree and only one or more of them do not
wish to succeed
Accretion in intestacy among heirs of the same degree occurs in case of predecease, incapacity, or
renunciation, subject to the following rules:
3) in case of predecease or incapacity, representation if proper, will prevent accretion
4) relatives must be in the same kind of relationship this is because of the principle of preference of lines
in intestate succession; thus there can be no accretion among a grandchild and a brother (even if both are
in the second degree) because they are not inheriting together in the first place
X.
Art. 969
Presupposes a case where the only nearest relative or relatives repudiate the inheritance, leaving none in the
same degree to succeed
Effect: those of the nearest degree shall inherit in their own right
In case there is predecease or incapacity by all in the same degree, the same rule applies (Except in cases
where representation is proper: remember that descendants always inherit by right of representation)

109

RIGHT OF REPRESENTATION
III.
Preliminaries
Definition: Representation is a right created by fiction of law, by virtue of which the representative is raised to
the place and the degree of the person represented, and acquires the rights which the latter would have if the
were living or if he would have inherited
The provisions on right of representation must be strictly interpreted and applied
Instances when representation operates:
4) predecease
5) incapacity or unworthiness
6) disinheritance
NOTE: representation NEVER operates in renunciation
In what kinds of succession representation operates:
3) the legitime
4) intestacy
NOTE: there is NO representation in testamentary succession (its equivalent is substitution)
IV.
Rules
In what line does representation obtain:
3) with respect to the legitime: only in the direct descending line
4) with respect to intestacy:
c) in the direct descending line
d) in ONE instance in the collateral: nephews and nieces representing brothers and sisters of the
deceased (they MUST concur with uncles and aunts)
Representation of illegitimate children:
3) if the child to be represented is legitimate only legitimate descendants can represent him
4) if the child to be represented is illegitimate BOTH legitimate and illegitimate descendants can represent
him
An adopted can neither represent nor be represented
A person may represent him whose inheritance he has renounced
The representative receives only what the person represented would have received. If there are more than one
representative in the same degree, then divide the portion equally, without prejudice to the distinction between
legitimate and illegitimate children, when applicable
Rules on qualification:
3) the representative must be qualified to succeed the decedent
4) the representative need not be qualified to succeed the decedent
Representation by grandchildren and nephews/nieces:
3) if all the children are disqualified: grandchildren still inherit by representation
4) if all the brother/sisters are disqualified: the nephews/nieces inherit per capita
NOTE: if only some, not all children or brothers/sisters are disqualified, the rule is the same
Children and descendants always inherit by right of representation

ORDER OF SUCCESSION
VI.
Rules of Exclusion and Concurrence:
I) Legitimate Children:
4) Excludes parents, collaterals and State
5) Concur with surviving spouse and illegitimate children
6) Are excluded by no one
J) Illegitimate Children:
110

K)

L)

M)

N)

O)

P)

4) Excludes illegitimate parents, collaterals and State

5) Concur with surviving spouse and legitimate children and legitimate parents
6) Are excluded by no one
Legitimate Parents:
4) Excludes collaterals and State
5) Concur with surviving spouse and illegitimate children
6) Are excluded by legitimate children
Illegitimate Parents:
4) Excludes collaterals and State
5) Concur with surviving spouse
6) Are excluded by legitimate children and illegitimate children
Surviving Spouse:
4) Excludes collaterals other than brothers, sisters, nephews and nieces and State
5) Concur with legitimate children, illegitimate children, legitimate parents, illegitimate parents, brothers,
sisters, nephews and nieces
6) Is excluded by no one
Brothers and Sisters, Nephews and Nieces:
4) Excludes all other collaterals and State
5) Concur with surviving spouse
6) Are excluded by legitimate children, illegitimate children, legitimate parents, illegitimate parents,
Other Collaterals:
4) Excludes collaterals in remoter degrees and State
5) Concur with collaterals in the same degree
6) Are excluded by legitimate children, illegitimate children, legitimate parents, illegitimate parents,
surviving spouse, brothers, sisters, nephews and nieces
State:
4) Excludes no one
5) Concurs with no one
6) Is excluded by everyone

VII.
An Outline in Intestacy (by JV)
23) Legitimate children only
Entire estate, equal division
Sayson: Adopted child shall be deemed to be a legitimate child. But the relationship is only between the
adopting parent and the adopted child
24) Legitimate children and illegitimate children
Entire estate, with each illegitimate child getting of what the legitime child gets
25) Legitimate children and surviving spouse
Entire estate, divided equally (the spouse is deemed one child); the same rule holds even if there is only
one legitimate child
Santillon: Children is interpreted to include a situation where there is only 1 child
26) Legitimate children, surviving spouse and illegitimate children
Entire estate, spouse deemed 1 legitimate child and each illegitimate child getting of what the
legitimate child gets
27) Legitimate parents only
Entire estate, divided equally
28) Legitimate ascendants (not parents) only
Entire estate, divided equally but with observance of the rule of division by line
29) Legitimate parents and illegitimate children
Legitimate parents get of the estate; illegitimate children the other
30) Legitimate parents and surviving spouse
111

31)

32)
33)
34)
35)
36)
37)

38)
39)
40)
41)

42)
43)
44)

Legitimate parents get of the estate; spouse gets the other

Legitimate parents, surviving spouse and illegitimate children
Legitimate parents get of the estate; spouse and the illegitimate children get each (the latter to share
amongst themselves of more than 1)
Illegitimate children only
Entire estate, divided equally
Illegitimate children and surviving spouse
Illegitimate children get of the estate, the spouse gets the other
Surviving spouse only
Entire estate
Surviving spouse and illegitimate parents
Parents get and the spouse gets the other
Surviving spouse and legitimate brothers and sisters, nephews and nieces
Spouse gets of the estate, while the rest gets the other with the nephews and nieces inheriting by
representation if proper
Surviving spouse and illegitimate brothers and sisters, nephews and nieces
Spouse gets of the estate while the rest gets the other with the nephews and nieces inheriting by
representation if proper; note that all the other relatives should be illegitimate because of the
successional bar rule
Illegitimate parents only
Entire estate
Illegitimate parents and children of any kind
Illegitimate parents do not inherit; for the rule on the children, the rules above will apply
Legitimate brothers and sisters only
Entire estate, with the full blood and half blood distinction
Legitimate brothers and sisters, nephews and nieces
Entire estate, but observe the 2:1 ratio for full and half blood relationships with respect to the brothers and
sisters, with the nephews and nieces inheriting by representation if proper
Nephews and nieces only
Entire estate, per capita, but observe the 2:1 ratio
Other collaterals
Entire estate, per capita with observance of basic rules
State
The whole estate
Assignment and disposition of the decedents assets:
c) if the decedent is a resident of the Philippines at any time:
v.
personal property to the municipality of last residence
vi.
real property where situated
d) if the decedent was never a resident of the Philippines:
Personal and real property will be given to where such is located
How property is to be used:
c) for the benefit of public educational and charitable institutions in the respective municipalities/cities
d) alternatively at the instance of an interested party, or motu propio, the court may order the creation of
a permanent trust for the benefit of the institutions concerned
In order that the State may take possession of the property, the Rules on Escheat in the Rules of Court
must be followed
If a person legally entitled to the estate of the deceased appears and files a claim thereto with the court
within 5 years from the date the property was delivered to the State, such person shall be entitled to the
possession of the same, or if sold, the municipality or city shall be accountable to him for such part of the
proceeds as may not have been lawfully spent

VIII.
112

Successional Bar Rule

An illegitimate child has no right to inherit ab intestato from the legitimate children and relatives of his father
or mother; nor shall such children or relatives inherit in the same manner from the illegitimate child
Corpus: There is no reciprocal succession between legitimate and illegitimate relatives.
Leonardo: An illegitimate child has no right to inherit ab intestato from the legitimate children and relatives
of his father
Diaz: It is clear from Art. 992 that the phrase legitimate relatives of his father or mother includes all the
kindred of the person spoken of

IX.
Rules in partial intestacy:
5) the law of legitimes must be brought into operation in partial intestacy, because the testamentary dispositions
can affect only the disposable portion but never the legitimes
6) if among the concurring intestate heirs there are compulsory heirs, whose legal or intestate portions exceed
their respective legitimes, then the amount of the testamentary disposition must be deducted from the
disposable portion, to be borne by all the intestate heirs in the proportions that they are entitled to receive
from such disposable portion as intestate heirs
7) if the legal or intestate share of a compulsory heir is equal to his legitime, then the amount of the testamentary
disposition must be deducted only from the legal or intestate shares of the others, in the proportion stated
above
8) if the testamentary dispositions consume the entire disposable portion, then the intestate heirs who are
compulsory heirs will get only their legitimes, and those who are not compulsory heirs will get nothing.
X.
Hide and Seek: A guide in partial intestacy
14) Legitimate children and illegitimate children
Free portion went to all of them
15) Legitimate children and surviving spouse
Free portion went to all of them; if there is only one legitimate child, the free portion went to the spouse
16) Legitimate children, surviving spouse and illegitimate children
Generally, free portion went to all of them
17) Legitimate parents and illegitimate children
Free portion went to the illegitimate children
18) Legitimate parents and surviving spouse
Free portion went to the surviving spouse
19) Legitimate parents, surviving spouse and illegitimate children
Free portion went to the surviving spouse
20) Illegitimate children and surviving spouse
Free portion went to all of them
21) Surviving spouse and illegitimate parents
Free portion went to all of them
22) Surviving spouse and legitimate brothers and sisters, nephews and nieces
Free portion went to the legitimate brothers and sisters, nephews and nieces except if the marriage was in
articulo mortis
23) Surviving spouse and illegitimate brothers and sisters, nephews and nieces
Same rules as above; note that all the other relatives should be illegitimate because of the successional
bar rule
24) Legitimate brothers and sisters, nephews and nieces
Free portion went to all of them
25) Nephews and nieces only
Free portion went to all of them
26) Other collaterals
Free portion went to all of them

113

ACCRETION
V.
Preliminaries
Accretion is a right by virtue of which, when two or more persons are called to the same inheritance, devise or
legacy, the part assigned to the one who renounces or cannot receive his share, or who died before the testator,
is added or incorporated to that of his co-heirs, co-devises or co-legatees
The testator can expressly provide that there shall be no accretion among persons who would otherwise be
entitled thereto
Conversely, the testator may validly provide for accretion in a case where no accretion would take place under
the provisions of the law
The repudiation of accretion is permissible
There can be accretion ONLY when there is no representation
Occasions for the operation of accretion:
4) renunciation
5) predecease
6) incapacity
VI.
Elements of Accretion
3) Two or more persons (several subjects) are called to the same inheritance or to the same portion thereof, pro
indiviso (single object)
Meaning of pro indiviso:
d) either the co-heirs are instituted without individual designation of shares
e) the co-heirs are instituted with the specification that they share equally (in equal shares) or that they
have the same fractional sharing for each
f) will accretion occur if the fractional sharings of the co-heirs are unequal?
Tolentino: NO
Balane: YES
JV: if it refers to the estate as a whole, accretion applies; if actual property, there is no accretion
It must be in the same will and under the same testamentary disposition, without the testator making a
distribution of shares among them or fixing a quota or amount for each heir by designations which make
each one the owner of a separate mass of property
The resolution of the question will always depend upon the language of the will and the interpretation
which may be placed thereon by the courts
In case of money or fungible goods, if the share of each heir is not earmarked, there shall be a right of
accretion
4) Vacancy of Share
Renunciation, predecease, or incapacity of one (or more but less than all) of the instituted heirs
Tolentinos other causes which may give rise to accretion in testamentary succession:
d) non-fulfillment of a suspensive condition imposed upon the heir instituted
e) absence of the heir, long enough to declare him presumptively dead
f) inefficacy or nullity of the testamentary disposition (e.g. error in the name, surname or characteristics
of the heir concur with the fact that the person cannot otherwise be identified)
NOTE: In testamentary succession, accretion is subordinate to substitution if the testator has so provided. This is
because substitution is the testators express intent, whereas accretion is merely his implied intent. If there is
neither substitution nor accretion, the part left vacant will lapse into intestacy
VII.
Accretion in Intestacy
4) in repudiation or renunciation
5) in predecease, only if representation does not take place (Tolentino: there is no accretion here)
6) in incapacity or unworthiness, only if representation does not take place
NOTE: accretion really applies to testamentary dispositions only. But the law says it is also applicable to intestacy
114

VIII. Provisions with regard to heirs

The heirs to whom the portion goes by the right of accretion take it in the same proportion that they inherit
The heirs to whom the inheritance accrues shall succeed to all the rights and obligations which the heir who
renounced or could not receive it would have had, EXCEPT:
3) in testamentary succession, if the testator provides otherwise
4) if the obligation is purely personal, and hence intransmissible
Among the compulsory heirs the right of accretion shall take place only when the free portion is left to two or
more of them, or to any one of them and to a stranger
NO accretion in legitime: should the part repudiated be the legitime, the other co-heirs shall succeed to it in
their own right and not by the right of accretion

CAPACITY TO SUCCEED
V.

VI.

Preliminaries
These provisions apply to BOTH testate and intestate
The nationality of the decedent governs with regard to capacity to succeed.
The critical time to consider is the MOMENT OF DEATH, but subject to the following NUANCES:
3) In grounds 2, 3 and 5 of unworthiness, it is necessary to wait until final judgment
4) If the institution is conditional, the time of the compliance with the condition shall also be considered
(there must be capacity to succeed during that time)
Prescriptive period is 5 years from the time the disqualified person took possession for:
3) An action for a declaration of incapacity; and
4) For the recovery of the inheritance, devise or legacy
NOTE: it may be brought by any one who may have an interest in the succession
Acceptance:
Consummation of succession
Manifestation of the heir to make his own the property, rights and obligations transmitted to him
In legacies and devises, you cannot accept those which are beneficial and reject the onerous
The acceptance retroacts to the moment of death
Who are capacitated?
3) General civil capacity
a)
Natural persons
i. Must be living at the moment of succession (Parish Priest), except in case of representation when it is
proper
ii. A child already conceived provided it be born later
b)
Judicial persons
Entities given legal personalities
Must also be living invested by law or charter with a juridical personality
1026 (Enabling Clause): A testamentary disposition may be made to the State, provinces,
municipal corporations, private corporations, organizations, or associations (NOTE: The law
allows associations to succeed even though they do not have juridical personalities)
NOTE: The basis of capacity is juridical personality or capacity (the fitness to be the subject of juridical
relations) which may be brought about either by death (natural) or recognition (juridical) AT THE
MOMENT of death of the decedent (but take note of the nuances).
4) Not incapacitated by law
a)
Unworthiness (1032)
i. Cases of:

Abandonment of child (broad view)

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ii.

iii.

iv.
v.
vi.

Inducement to lead a corrupt life (there must be an element of permanence and

habituality)

Attempt on the childs virtue (that would amount to rape, acts of lasciviousness or
seduction); JV: an attempt on the granddaughter is an attempt on the mother
Attempt on life of the testator, spouse, descendant or ascendant

Attempt here is satisfied as long as there is an intent to kill

There must be a FINAL conviction

False accusation

There must be an accusation

It was judicially declared as false and there was an acquittal

The offense charged is punishable by 6 years or more

Violent death (doesnt apply unless there is a law)
Adultery or concubinage with the testators spouse

There must be a final conviction

Acts relating to a will:

Causing the testator to make a will (must be accompanied by vitiating factors)

Causing the testator to change a will (must be accompanied by vitiating factors)

Preventing the decedent to make a will (must be accompanied by vitiating factors)

Preventing the testator to revoke a will (must be accompanied by vitiating factors)

Supplanting, concealing or altering a will

Falsifying or forging a will

NOTE: This is based on morality. It applies to BOTH testate and intestate and includes legitimes
PARDON (applies only in unworthiness): may either be:
i.
Express - written
ii.
Implied elements:

Execution of the offended party in the will of the

offenders name

There must be knowledge of the unworthiness

The execution must be AFTER the act of unworthiness

was done

b)
Disqualification by incapacity (1027)
i. Priest of minister

Limited to the context of religion

JV: it doesnt include Mike Velarde and El Shaddai

The illness referred to must be the one in which the testator died off (except: when the ill
person met an accident)
ii. Relative up to 4th civil degree OR sect
iii. Guardians

Refers to both guardians of persons or property

Applied until the guardianship endures

iv. Attesting or testamentary witness and their spouse, parents or children

Except when there are 3 other witnesses

v. Physician, surgeon, nurse, health officer or druggist

Includes illegal practitioners

Must be the one who took care of the decedent

vi. Individuals, associations and corporations NOT permitted by law

This is the only one that applies to BOTH types of succession.

NOTE: This is based on public policy. In these cases, there is a conclusive presumption of undue
influence
c)
On donations (1028)
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i.

Testator was guilty of adultery or concubinage at the time of making the will

Needs only a preponderance of evidence not a final conviction

ii. In consideration of a crime of which both the testator and the beneficiary have been found guilty

There must be a final conviction

Elements:
a) both must be convicted
b) the donation must be in consideration of the crime
iii. Made in favor of a public officer or his spouse, descendants and ascendants by reason of his public
office
NOTE: This is based on morality.
d)
Anything prescribed by charter (in case of corporations) or by law
VII.

Prohibition on Interposition
Interposition may be made in 3 ways:
4) by the institution of a person who has capacity, with a verbal charge or direction to deliver the inheritance
to the incapacitated person
5) by disguising the disposition in the form of a contract
6) by simulating debts in favor of the incapacitated person
The prohibited interposition must always be PROVED
This applies only to incapacity under 1027 and the prohibition on donations under 1028 (take note of the
persons disqualified in those cases)

VIII.

Other related provisions:

5) Representation is present in unworthiness

Extent of representation extends not only to the legitime, but also to whatever portion in
intestate succession the person represented may have been entitled to

The person so excluded shall NOT enjoy the usufruct and administration of the property thus
inherited by his children
6) Alienations of hereditary property, and acts of administration performed by the excluded heir, before the
judicial order of exclusion, are valid as to 3rd persons who acted in good faith

The validity of the alienation is determined by the good faith or bad faith of the transferee not of
the excluded heir (transferor)

Elements of good faith of the transferee:

a)
he must have acquired the thing for value
b)
without knowledge of the transferors title

In case of valid alienations by the disqualified heir, the rightful heirs are not
without a remedy, they may go after the disqualified heir for damages

However, distinguish between a person who was NEVER an heir, in which case
follow the rules on sales
7) The unworthy heir who is excluded from the succession has the following rights:
a)
To demand indemnity for any expenses incurred in the preservation of the property
b)
To enforce such credits as he may have against the estate
8) The disqualified heir, who took possession of the hereditary property disregarding the provision stated in
the preceding articles shall:
a)
Be obligated to return the property with accessions
b)
Be liable for fruits which were received and could have been received

ACCEPTANCE AND REPUDIATION

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X.
Definitions
Acceptance the act by which the person called to succeed by universal title either by the testator or by law
manifests his will of making his own the universality of the rights and obligations which are transmitted to
him
Repudiation the manifestation by the heir of his desire not to succeed to the said universality
XI.
Characteristics
5) It is purely voluntary and free
6) PARTIAL acceptance or repudiation is permissible
7) Its effects shall always retroact to the moment of the decedents death
8) Acceptance or repudiation with a term or condition is prohibited
XII.
Requisites
3) the heir must be certain of the death of the person from whom he is to inherit; AND
4) the heir must be certain of his rights to the inheritance
XIII. Who?
8) any person who has the capacity to act
9) as to minor or incapacitated persons:
c) by their parents or guardians when the acceptance is purely beneficial to the minor or incapacitated
person
d) with court approval
when it is subject to a charge or condition to be performed by the beneficiary (Tolentino)
repudiation
10) As to inheritance left to the poor:
c) the person designated by the testator to determine the beneficiaries can only accept, not reject the grant
d) the persons selected as qualified recipients are, for their own part, free to accept or renounce the benefit
11) As to corporations, associations, institutions and entities qualified to acquire property:
c) acceptance may be made by their lawful representatives
d) repudiation must be with the approval of the court
12) Public official establishments can neither accept not repudiate an inheritance without the approval of the
government (department head)
public establishment refers to organizations which have their own social and public purpose, such as for
culture, beneficence and other similar purposes, separate from the mere manifestations of the
governmental functions of the State
13) A married person of age and not incapacitated for nay reason may accept or renounce an inheritance without
his or her spouses consent
14) As to deaf-mutes:
c) can read and write may accept or repudiate personally or through an agent
d) cannot read and write
guardians may accept
but repudiation must be with judicial approval
XIV. Kinds of Acceptance
D) Express
3) public document; or
4) private document
E) Tacit
One resulting from acts by which the intention to accept is necessarily implied, OR which one would
have no right to do except in the capacity of an heir
Examples:
8) when the heir sells, donates or assigns his right
9) when the heir renounces his right for the benefit of one or more heirs
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10) when the renunciation is in favor of ALL the co-heirs but in proportions different from those in which
they would receive by accretion
11) when the renunciation is in favor of all heirs indiscriminately for CONSIDERATION
12) when the heir demands partition of the inheritance
13) when he alienates some objects of the inheritance
14) when he performs such like acts which show the clear intention to accept
Acts not constituting acceptance:
3) absolute repudiation: repudiation without consideration in favor of the persons to whom his share will
pass in the absence of the heir repudiating
4) acts which the heir has the right to perform even without the character of an heir (acts of mere
preservation or provisional administration)
F) Implied
Within 30 days after the court issued an order for the distribution of the estate, the heirs, devisees and
legatees shall signify whether they accept or repudiate; failure to do so within that time is deemed an
acceptance
XV.
Form of Renunciation
3) public or authentic instrument
authentic instrument refers to one whose genuineness is admitted or clearly proved
4) petition filed in the settlement proceedings
XVI. Accion Pauliana
The right given to creditors to impugn transactions of their debtors which will prejudice them
Requisites:
5) there must be a repudiation by the heir-debtor in legal form, a repudiation valid in law
6) that there must be credits existing against the heir who repudiates
7) that judicial authorization must be obtained before the creditors may accept for the debtor
8) that the act of repudiation prejudices the claims of the creditors
they must be creditors before the repudiation
the heir-debtor must have received something from the estate
the heir-debtor must not have other properties
The right of the creditor to accept the inheritance in the name of the debtor extends only to the amount or
value necessary to satisfy the credit. Any amount in excess of that may be validly renounced by the debtorheir
XVII. Provisions with regard to heirs
If the heir should die without having accepted or repudiated the inheritance, his right shall be transmitted to
his heirs (but the heirs heir MUST have accepted his own predecessors inheritance)
Should there be several heirs called to the inheritance, some of them may accept and the others may repudiate
it
When a person is BOTH a testamentary heir AND an intestate heir with respect to the same inheritance:
3) if he renounces as testamentary heir he is deemed to have renounced as intestate heir as well
4) if he renounces as intestate heir WITHOUT KNOWLEDGE of his being a testamentary heir he is NOT
deemed to have renounced as testamentary heir and may therefore accept or renounce separately in the
latter capacity
Balane: if with knowledge, he can still accept
NOTE: This rule does NOT apply to the legitime
XVIII. Irrevocability of an acceptance or repudiation
Exceptions:
4) Vitiated consent
f) mistake or error
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must refer to the substance of the thing (relative who is alive but is mistaken for another who has
died) or the principal condition
the error:
iv.
must not be due to the negligence of the heir
v.
must be based on facts and circumstances which the heir could not have known
notwithstanding due diligence on his part
vi.
must be distinguished from errors attributable to the heir who fails to appraise exactly the
amount of the estate, or who believing that he will win a litigation loses the same, and the
like

g) violence
refers to external acts imposed upon the heir
h) intimidation
works internally upon the mind of the heir forcing him to accept or repudiate
i) undue influence
j) fraud
must be practiced by a 3rd person
must be serious and consisting of insidious words or machinations
5) Appearance of an unknown will
Where the will institutes another person or when it grants additional legacies or revoked some
But it does NOT apply when the unknown will only clarifies a doubtful clause, or modifies
insignificant details or a previous one
6) Other Causes
Acceptance or repudiation by a person who is not entitled to the inheritance
When the institution depends upon the fulfillment of a suspensive condition which is not realized
The birth of a posthumous child who is not born or is born dead

COLLATION
XIV. Rule on Inofficious dispositions
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
Only compulsory heirs whose legitimes are impaired may bring an action to reduce
Those entitled to ask for reduction of inofficious donations cannot renounce their right during the lifetime of
the donor
XV.
Steps to determine the legitime
6) determination of the value of the property which remains at the time of the testators death
determination of the value of the property:
c) if there are judicial proceedings administrator assisted by tax appraisers
d) if no judicial proceedings the true value, NOT the assessed value
NOTE: sentimental value shall NOT be considered
7) determination of the obligations, debts and charges which have to be paid out or deducted from the value of
the property thus left
if the obligation is for the 1st time created by testamentary disposition, it is NOT deductible
only obligations with monetary value which are not extinguished by death are considered here
8) determination of the difference between the assets and the liabilities, giving rise to the net hereditary estate
9) the addition to the net value thus found, of the value, at the time they were made, of donations subject to
collation
includes donations made to BOTH compulsory heirs and strangers
2 concepts of collation by Tolentino:
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c) mere mathematical operation by the addition of the value of the donations made by the testator to the
value of the hereditary estate
d) the return to the hereditary estate of property disposed of by lucrative title by the testator during his
lifetime
special purpose of collation: property donated may be
911
950
taken in the account of the partition, and such value
Will apply if the reason
charged against the share of the compulsory heir donee Will apply if
reductions
have
to
for the reduction is
in the legitime
be
made
because
the
NOT the impairment of
collation should take place ONLY when there are
legitimes
have
been
the legitimes
compulsory heirs, and their presence is determined at
impaired
the time of the testators death, NOT at the time the
donation was made
The value of the donations were subject to collation is determined as of the time when the donations were
made even though their just value may not then have been assessed.
Any increase or decrease of the thing is for the donees account
The true value at the time of the donation must be PROVED by competent evidence
Aside from ordinary donations, tacit or indirect donations are included
10) determination of the amount of the legitimes by getting from the total thus found the portion that the law
provides as legitime of each compulsory heir
XVI. Rules on collation and imputation
3) Donations inter vivos to compulsory heirs:
Imputed to the legitime (considered as an advance)
The surviving spouse is not included since donations during marriage between spouses is prohibited
Exceptions (the donation in this case will be treated as if given to a stranger):
g) if the donor provided otherwise
h) the donation exceeds the legitime
i) the compulsory heir:
iv.
dies
v.
is incapacitated
vi.
is disinherited
NOTE: and there are NO descendants
j) amount given for the pursuit of vocational, professional or other careers
k) repudiation by the heir
l) testamentary dispositions
Exception to the exception: if the donation is inofficious, they will be reduced
4) Donations inter vivos to strangers (from the free portion):
A stranger is anyone who does not succeed as a compulsory heir
Necessarily imputed to the disposable portion, hence if it exceeds the latter, then it will have to be
reduced as inofficious
There are NO exceptions
XVII. Reduction of dispositions when the legitimes are impaired
Method of reduction (Art. 911):
4) reduce pro rata the non-preferred legacies and devises and testamentary dispositions
5) reduce pro rata the preferred legacies and devises (contra 950)
6) reduce the donations inter vivos according to the inverse order of their dates (if on the same date, they are
reduced pro rata)
NOTE: these reductions shall be to the extent required to complete the legitimes, even if in the process the
disposition is reduced to nothing
Reconciling 911 and 950:
In case there is a valid alienation to a 3 rd person, and the transfer cannot be rescinded, then the donee is liable
for the value of the excess or inofficious part of the donation
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In case the donee is insolvent, the amount to be returned by the insolvent must be borne and paid by those
whose donations are within the free portion

XVIII. Devises/Legacies of usufruct/life annuities/pensions

The value of such is difficult to determine, because it depends upon the length of life of the recipient
Rules to follow:
4) if upon being capitalized according to actuarial standards, the value of the grant exceeds the free portion,
it has to be reduced because the legitime cannot be impaired
5) the testator can impose no usufruct or any other encumbrance on the part that passes as legitime
6) subject to the two rules just stated, the compulsory heirs may elect between ceding to the devisee/legatee
the free portion (or the proportional part thereof corresponding to the said legacy/devise, in case there are
other dispositions) or complying with the terms of the usufruct or life annuity or pension
XIX. 3 meanings of collation by Balane
4) as computation a simple accounting or arithmetical process, whereby the value of all donations inter vivos
made by the decedent is added to his available assets in order to arrive at the value of the net hereditary estate
5) as imputation the process by which donations inter vivos made by the decedent are correspondingly charged
either to the donees legitime or against the disposable portion
6) as return takes place when a donation inter vivos is found to be inofficious and so much of its value as
inofficious is returned to the decedents estate to satisfy the legitimes
XX.
Rule on testamentary dispositions to compulsory heirs
General Rule: they should not be imputed to the legitime, but to the free portion; hence the compulsory heir
receives the testamentary disposition in addition to his legitime
Exception: if the testator provides otherwise, in which case the testamentary disposition will be merged with
the legitime
XXI. Certain rules on collation as imputation
E) Grandchildren inheriting by representation concurrently with children (uncles and aunts of the grandchildren)
who are inheriting in their own right; the grandchildren have to collate or impute:
3) whatever the parent whom they are representing would have been obliged to collate
4) whatever they themselves have received from the grandparent by gratuitous title
F) Parents are not obliged to bring to collation in the inheritance of their ascendants any property which may
have been donated by the latter to their children
G) Neither shall donations to the spouse of the child be brought to collation; but if they have been given by the
parent to the spouses jointly, the child shall be obliged to bring to collation of the thing donated
H) In the collation of a donation made by both parents, shall be brought to the inheritance of the father, and the
other half, to that of the mother. That given by one alone shall be brought to collation in his or her inheritance
XXII. What would be collated
E) The following are totally NOT subject to collation:
7) support
8) education (limited to secondary instruction)
9) medical attendance (even in extraordinary illness)
10) apprenticeship
11) ordinary equipment
12) customary gifts
F) Expenses for childs professional, vocational or other career:
General Rule: NOT charged against the recipients legitime, but against the free portion
UNLESS: the parents provide otherwise in which case it will be charged against the legitime, but the
child is entitled to deduct from said amount the sum corresponding to what his parents would have spent
on him had he stayed at home

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G) Sums paid by a parent for the child:

5) in satisfaction for the latters debts
6) election expenses
7) fines
8) similar expenses
H) The following items given by ascendants to their ascendants are exempted from collation:
4) wedding gifts
5) jewelry
6) clothing and outfit
NOTE: However, the presents should not exceed 1/10 of the sum disposable by will. If it does exceed, it will
be imputed to the legitime if a compulsory heir or otherwise as inofficious it if exceeds 1/10 of the free
portion if a stranger
XXIII. Equality of heirs
There should not only be equivalence in amount but as far as possible, the property should be of the same
nature, class and quality
In case no such equality can be effected:
3) if immovable equivalent in case of securities; or in its absence, so much of the other property shall be
sold at public auction
4) if movable right to select an equivalent of other personal property of the inheritance at its just price
Both rules above will yield to a contrary agreement among the heirs
XXIV. On fruits and interests
It shall not pertain to the estate EXCEPT from the day on which the succession is opened
Standard of assessment: fruits and interest of the property of the estate of the same kind and quality as that
subject to collation
XXV. Rules on expenses when the donee is obliged to return
3) the donation is TOTALLY inofficious:
d) necessary expenses full extent reimbursement
e) useful expenses full extent provided it is still in existence
f) ornamental expenses no reimbursement, but right of removal granted if no injury to the estate will be
caused
4) the donation is PARTLY inofficious:
d) necessary expenses reimbursement is partial, in proportion to the value to be returned
e) useful expenses reimbursement is partial, in proportion to the value to be returned
f) ornamental expenses no reimbursement, but right of removal granted if no injury to the estate will be
caused; unless the property is physically divided and the ornament happens to be located in the portion
assigned to him, in which case he will have all the rights of ownership
XXVI. Administration proceedings
Should any question arise among the co-heirs upon the obligation to bring to collation or as to the things
which are subject to collation, the distribution of the estate shall not be interrupted for this reason, provided
adequate security is given

PARTITION AND DISTRIBUTION

VIII. Preliminaries
Partition separation, division AND assignment of a thing held in common among those to whom it may
belong
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Steps:
5) When there are 2 or more heirs, the whole estate of the decedent is, before partition, owned in common
by such heirs
each heir is therefore a co-owner and may sell her interest
6) However, the debts and obligations of the deceased must first be paid
7) When there are intestate or testamentary proceedings, there may be an ORDER OF DISTRIBUTION
before actual partition is made
The order of distribution, generally based on a project of partition, designates the shares which
pertain to the heirs, devisees or legatees
Partial distribution may be made even before the debts and expenses have been paid, if the
distributees give a bond or deposit
The order of distribution is conclusive upon all parties who have notice of the proceedings, but does
NOT bind those who have no notice
8) Partition, or the ACTUAL division of the properties
Physical division of the property among the beneficiaries according to their proportions fixed and
determined in the distribution
The thing itself maybe divided or its value
Partition ends the co-ownership among the co-heirs as to thing partitioned

IX.
When does partition take place?
General Rule: testate and intestate proceedings
Exceptions:
4) testator himself partitions either by will or an act inter vivos (see below)
5) extra-judicial partition by the heirs (see below)
6) summary settlement of estate
X.
Kinds of Partition
3) Actual physical division of the thing among co-heirs
4) Constructive any act, other than physical division, which terminates the co-ownership:
c) every act which is intended to put an end to indivision among co-heirs and legatees or devisees is deemed
to be a partition, although it should purport to be a sale, an exchange, a compromise or any other
transaction
d) should a thing be indivisible, or would be much impaired by its being divided, it may be adjudicated to
one of the heirs, provided he shall pay the other the excess in cash; nevertheless, if any of the heirs should
demand that the thing be sold at public auction and that strangers be allowed to bid, this must be done
XI.
Who may effect partition?
F) The heirs themselves (extra-judicially or an ordinary action of partition)
The decedent must have left no debts
Maglucot-aw in cases involving oral partition under which the parties went into possession, exercised
acts of ownership, or otherwise partly performed the partition agreement, equity will confirm such
partition
Properties embraced in a will cannot be validly partitioned among the heirs until after the will is probated
G) The court in a ordinary action for partition, or in the course of administration proceedings
The action may be brought by any party in interest
A judicial partition does not bind the heirs who were not parties thereto
H) The testator himself
Nature of the partition:
3) takes effect only upon death
4) revocable as long as the decedent is alive
How the partition can be made:
3) by will
4) by act inter vivos
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Legasto: however, there must first be a will with all the formalities provided by law; hence when
the will is null and void for lack of legal requisites, the partition made of the estate during the
lifetime of the deceased is likewise null and void
Balane: a partition without a will can be made provided the partition should conform exactly to
the portions provided in intestate succession
Form of partition inter vivos: in writing and in public instrument (Balane: obiter in Chavez held
that oral partition is valid)
Limitation on the partition by the testator: legitimes CANNOT be impaired
A parent desiring to keep any enterprise intact may order that the legitime of the other children to whom
the property is not assigned be paid in cash
I) A 3rd person designated by the testator (MANDATARY)
The mandatary cannot be a co-heir to insure fairness and impartiality considering that she is not under the
Courts control
In case there is a minor co-heir, the mandatary shall make an inventory of the property of the estate
It is the simple power to partition that may be delegated by the testator, but not the disposition or
distribution of the estate
J) Voluntary heirs upon whom some condition has been imposed CANNOT demand a partition until the
condition has been fulfilled
The other heirs not so instituted should not be deprived of their right to demand partition, subject to the
obligation to protect the inchoate right of the conditional heir, by furnishing adequate security
The partition in the preceding paragraph is PROVISIONAL
XII.
Certain rules to follow
E) Partition generally a matter of right
General Rule: any co-heir may demand partition at any time
Exceptions:
3) when forbidden by the testator for a period not exceeding 20 years (this even covers the legitimes)
exception to the exception:
c) when any of the causes for the dissolution of a partnership occurs
d) when the court finds compelling reasons for partition
NOTE: this shall be made upon petition of one of the co-heirs
a prohibition of partition imply a prohibition on alienation or any constructive partition
4) Balane: when the co-heirs agree on indivision for a period not exceeding 10 years renewable for like
periods (in accordance with the rules on co-ownership)
F) Equality among co-heirs
In the partition of the estate, equality shall be observed as far as possible
Quantitative equality the shares of the co-heirs are not necessarily equal in value, but are determined by
law and by will
Qualitative equality whatever the aliquot portions be, the law mandates equality in nature, kind and
quality, subject to the following qualifications:
4) if the decedent has made the partition himself
5) if the co-heirs agree otherwise
6) if it is impossible or impracticable
G) Mutual Accounting
Upon partition, the co-heirs shall render a mutual accounting of benefits received and expenses incurred
by each of them
Period contemplated: between the decedents death and partition time
H) Legal Redemption by Co-heir
Requisites:
7) that there are several heirs of the common inheritance
8) that one of them sells his hereditary rights
hence if the alienation is not a sale, one requisite is lacking
sales can be voluntary or forced (execution sales)
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9) that the sale is made to a stranger

all persons who are not heirs by will or law are strangers
the heirs must ACTUALLY succeed
10) that the sale is before partition
to distinguish it from Art. 1620 which applies where the co-ownership covers specific property
this article applies where the co-ownership covers the MASS of the hereditary estate and
presupposes the fact that there has as yet been no distribution of the estate
11) that one or more of the co-heirs demand the repurchase within a period of 1 month, counted from the
time he or they were notified in writing of the sale
the redemption can be exercised ONLY by a co-heir, regardless of their number
JV: a legatee is NOT a co-owner anymore, since she receives a specific property already
If an heir has himself sold his own right, he is not entitled to make the redemption of the right
sold by another heir to a 3rd party, because he himself ceases to be an heir after selling his right
Once subrogation has taken place, the other co-heirs, even within the period of 1 month, can no
longer ask for redemption
The period of 1 month should be counted from the time the that the co-heir is notified IN
WRITING of the actual sale
Garcia: written notice is required, without it the period does NOT commence to run registration
with the Register of Deeds is not sufficient notice most especially because the property involved
was unregistered land
Balane: in 2 recent cases, the Court has relaxed the requirement of written notice and held that
actual notice to, o knowledge by the co-heir meets the legal requirement
12) that the buyer is reimbursed the price of the sale
This article does NOT apply to sales of property of a decedent by the executor or administrator on orders of
the probate court

XIII. Effects of partition

F) A partition legally made confers upon each heir the exclusive ownership of the property adjudicated to him
G) The titles of acquisition or ownership of each property shall be delivered to the co-heir
When the title comprises 2 or more pieces of land or one piece of land divided between 2 or more coheirs:
3) title delivered to the one having the larger interest, and authentic copies of the title furnished to other
co-heirs at the expense of the estate; OR
4) if the interest of each co-heir should be the same, the oldest shall have the title
H) Warranties
2 kinds:
3) Warranty against eviction
Action for eviction presupposes that the portion assigned to each heir really represented the share
which pertained to such heir but that it afterwards suffers changes through the exercise by a 3 rd
person of special rights over the property adjudicated
The object of this warranty is not to seek a new partition but merely to compel the other heirs to
make good the damages suffered by the heir concerned by reason of the eviction
There is eviction although the heir is not deprived of the ownership of the property allotted to
him, if he is deprived of any other right, such as usufruct, easement, etc.
4) Warranty as to quality
Includes a warranty against hidden defects
The reciprocal obligation of warranty shall be proportionate to the respective hereditary shares of the coheirs
Insolvency of one of the obligors: his portion shall be borne proportionally by all, including the one
entitled to the warranty
Those who pay for the insolvent heir shall have a right of action against him for reimbursement, should
his financial condition improve (Except: insolvency judicially declared which extinguishes all
obligations)
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An action to enforce the warranty among co-heirs must be brought within 10 years from the date the right
of action accrues
I) Credit assigned to a co-heir in partition
The warranty covers only insolvency of the decedents debtor at the time of the partition, not subsequent
insolvency, for which the co-heir takes the risk
The warranty has a prescriptive period of 5 years following the partition
Co-heirs do not warrant bad debts of known and accepted by the distributee
If bad debts were not assigned to a co-heir, and was collected, the amount collected shall be distributed
proportionately
J) The obligation of warranty among co-heirs shall cease when there is:
6) Partition by the testator himself
Qualifications:
c) unless it appears or it be reasonably presumed his intention was otherwise
d) the legitime shall always remain unimpaired
7) Agreement among the co-heirs to suppress the warranty
UNLESS there was bad faith
8) Supervening events causing the loss or the diminution in value
9) Fault of the co-heir
10) Waiver

XIV. Rescission and nullity of partition

D) Causes for annulment
3) those where one of the parties is incapable of giving consent
4) those where the consent is vitiated by mistake, violence, intimidation, undue influence or fraud
NOTE: these are susceptible of ratification
E) Causes for rescission
5) A partition, judicial or extra-judicial, may be rescinded on account of lesion, when any one of the co-heirs
received things whose value is LESS, by at least , than the share to which he is entitled, considering the
value of the things at the time they were adjudicated
Exception: a partition made by the testator himself is not subject to rescission
Exception to the exception:
3) impairment of the legitime (even if lesion is less than )
4) mistake by the testator or vitiation of his intent
An heir who has alienated the whole or a considerable part of the real property adjudicated to him
cannot maintain an action for rescission on the ground of lesion, but he shall have a right to be
indemnified in cash
The action for rescission on account of lesion shall prescribe after 4 years from the time the partition
was made
Incompleteness of partition is NOT a ground for rescission. The remedy is supplemental partition
6) Those agreed upon in representation of absentees, if the latter suffer the lesion stated in the preceding
number
7) Those undertaken in fraud of creditors when the latter cannot in any other manner collect the claims due
them
8) Those which refer to things under litigation of they have been entered into by the defendants without the
knowledge and approval of the litigants or of competent judicial authority
F) Rules:
The heir who is sued shall have 2 options:
A partition made with preterition (not that in 854) of any compulsory heir shall not be rescinded,
UNLESS:
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3) it was proved there was bad faith

4) it was proved there was fraud
NOTE: on the part of the other persons interested (nevertheless, the latter shall proportionately pay the
person omitted)
A partition which includes a person believed to be an heir, but who is not, shall be VOID only with
respect to such person