I.
Concept of Succession
1. Definition and Concept
Art 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.
T/N: The etymological meaning of succession is
to substitute, to subrogate or to put one person
in place of another. It is equivalent to the
substitution of a deceased person by a living
person in all the transmissible property and
juridical relations which the former had in life.
Art 712.
1.1 Basis of Succession
 Family Relations
God united people to the family to which
they are born; creating rights and
obligations. The successional right is
nothing more than a right founded upon a
duty. In this, succession springs from
natural law. The individual, during life,
accumulates wealth in order to perform
his duty to his family and with the
knowledge that upon his death, the
products of his work will be enjoyed by
his family.
 Economic Purpose
Succession as a corollary to the right of
property without which, the right of
ownership would be an imperfect thing.
The product of wealth has: (1)
individuality, to prevent stagnation of
wealth; (2) inequality, product of the
independence and freedom of human
activities; and (3) transmissibility, salient
feature of the right of property, which is
incomplete without the right to transmit
the same.
Economic life of organized society would
be impaired if ownership of property
could not be transmitted upon the death
of the owner, the property would become
res nullius.
Both together furnish the foundation on which
the superstructure of the law on succession has
been erected. The law of succession is thus based
partly on the law of family relations, and partly
on the law of property.
Succession aims to make possible and effective
the orderly enjoyment by the human species of
the essential elements of physical life, giving a
note of subsistence and perpetuity to the
patrimony which cannot be maintained without
the transmissibility of the property constituting
it.
Family relations can be pointed out as the true
basis of the law of intestate succession and the
law of legitimes; but the right of property can be
the only explanation for the law on testamentary
succession, which permits the testator to give his
property by will to total strangers. The totality of
the law on succession is based upon the family
relations and the right of property.
1.2 Principles of Underlying Philippine
Law on Succession
1.3 Report of the Code Commission
1.4 Meaning of the term “Succession”
SUCCESSION implies subrogation or replacement
of one person by another in a juridical situation.
A successor is he who takes over the position
formerly occupied by another. “Sub cedere” – to
enter under.
2. Subjects of Succession
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Art 775. In this Title, “decedent” is the genera;
term applied to the person whose property is
transmitted through succession, whether or not
he left a will. If he left a will, he is also called the
testator.
Art 782. An heir is a person called to the
succession either by the provision of a will or by
operation of law.
Devisees and legatees are persons to whom gifts
of real and personal property are respectively
given by virtue of a will.
T/N: Heir is anyone who succeeds to the
inheritance. In a sense, he is a continuation of the
personality of the deceased.
Legatee – gift of personal property by will
Devisee – real property is given by will
Art 1026.
Art 1029.
JBL Reyes, Observations on the New Civil
Code XV
[NERI v AKUTIN]
3. Objects of Succession
Art 776. The inheritance includes all the
property, rights, and obligations of a person
which are not extinguished by his death.
T/N: Rights and obligations which are
extinguished by death:
1. Those arising from marriage (legal
separation; annulment)
2. Obligations to give legal support except in
cases provided by law
3. Right to receive support
4. Right of patria potestas
5. Right of the guardian
6. Right of usufruct
7. Right of the donor to revoke the donation
by reason of ingratitude of the done
8. Rights arising from agency
9. Criminal responsibility
General Rules:
Rights which hare purely personal. Rights which
are, by their nature and purpose,
intransmissible.
Rights which are patrimonial or relating to
property are not extinguished by death and
property constitute part of the inheritance.
Rights of obligation are by nature transmissible
and may constitute part of the inheritance
EXCEPT: (1) those which are personal; (2) those
that are intransmissible by express agreement or
will; (3) those that are intransmissible by
express provision of law.
The heirs of the deceased are no longer liable for
the debts he may leave at the time of his death.
Only what remains after all debts have been paid
will be subject to distribution among the heirs.
Only money debts are chargeable against the
estate left by the deceased.
Art 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.
Art 791. The words of a will are to receive an
interpretation which will give to every
expression some effect, rather than one which
will render any of the expressions inoperative;
and of two modes of interpreting a will, that is to
be preferred which will prevent intestacy.
T/N: It is presumed that every word or clause
was intended by the testator to have some
meaning; and no word or clause should be
rejected if it is at all possible to give it a
reasonable effect.
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Where a will has been executed, the reasonable
and natural presumption is that the testator
intends to dispose of all his property. The
presumption against intestacy is so strong that
courts will adopt any reasonable construction of
a will in order to avoid it.
Art 1131. For the purposes of prescription, just
title must be proved; it is never presumed.
Art 1429. When a testate or intestate heir
voluntarily pays a debt of the decedent
exceeding the value of the property which he
received by will or by the law from the estate of
the deceased, the payment is valid and cannot be
rescinded by the payer.
1. Transmissible rights and obligations
[ALVAREZ v IAC]
2. Rights and Obligations extinguished by
death
3. Restriction, Section 5, Rule 86
Section 5. Claims which must be filed under
the notice. If not filed, barred; exceptions. — All
claims for money against the decent, arising from
contract, express or implied, whether the same
be due, not due, or contingent, all claims for
funeral expenses and expense for the last
sickness of the decedent, and judgment for
money against the decent, must be filed within
the time limited in the notice; otherwise they are
barred forever, except that they may be set forth
as counterclaims in any action that the executor
or administrator may bring against the
claimants. Where an executor or administrator
commences an action, or prosecutes an action
already commenced by the deceased in his
lifetime, the debtor may set forth by answer the
claims he has against the decedent, instead of
presenting them independently to the court as
herein provided, and mutual claims may be set
off against each other in such action; and if final
judgment is rendered in favor of the defendant,
the amount so determined shall be considered
the true balance against the estate, as though the
claim had been presented directly before the
court in the administration proceedings. Claims
not yet due, or contingent, may be approved at
their present value.
4. Republic Act No. 1056; Republic Act No.
7170
Republic Act No. 1056 – An Act to Legalize
Permissions to Use Human Organs or Any
Portion or Portions of the Human Body for
Medical, Surgical, or Scientific Purposes, under
Certain Conditions
Section 1. Sections one of Republic Act
Numbered Three hundred forty-nine, entitled
"An Act to legalize permissions to use human
organs or any portion or portions of the human
body for medical, surgical, or scientific purposes,
under certain conditions", is hereby amended to
read as follows:
"Section 1. 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.
"Similar authority may also be granted for the
utilization for medical, surgical, or scientific
purposes, of any organ, part or parts of the body
which, for a legitimate reason, would be
detached from the body of the grantor."
Sec. 2. Section two of the same Act is hereby
amended to read as follows:
"Sec. 2. The authorization referred to in section
one of this Act must: be in writing; specify the
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person or institution granted the authorization;
the organ, part or parts to be detached, the
specific use or uses to which the organ, part or
parts are to be employed; and, signed by the
grantor and two disinterested witnesses.
"If the grantor is a minor or an incompetent
person, the authorization may be executed by his
guardian with the approval of the court; in
default thereof, by the legitimate father or
mother, in the order, named. Married women
may grant the authority referred to in section
one of this Act without the consent of the
husband.
"After the death of the person, authority to use
human organs or any portion or portions of the
human body for medical, surgical or scientific
purposes may also be granted by his nearest
relative or guardian at the time of his death or in
the absence thereof, by the person or head of the
hospital, or institution having custody of the
body of the deceased: Provided, however, That
the said person or head of the hospital or
institution has exerted reasonable efforts to
locate the aforesaid guardian or relative.
"A copy of every such authorization must be
furnished the Secretary of Health."
Sec. 3. A new section is hereby created
immediately after section two of the aforesaid
Republic Act Numbered Three hundred forty
nine which shall hereafter be designate as
section two-A, and shall read as follows:
"Sec. 2-A. The provisions of sections one and
two of this Act notwithstanding, it shall be illegal
for any person or any institution to detach any
organ or portion of the body of a person dying of
a dangerous communicable disease even if said
organ or portion of the human body shall be used
for medical or scientific purposes. Any person
who shall violate the provisions of this section
shall be punished with an imprisonment of not
less than six months nor more than year. If the
violation is committed by an institution,
corporation or association, the director,
manager, president, and/or other officials and
employees who, knowingly or through neglect,
perform the act or acts resulting in said violation
shall be held criminally responsible therefor."
Sec. 4. This Act shall take effect upon its
approval.
Approved: June 12, 1954
Republic Act No. 7170 January 7, 1992
AN ACT AUTHORIZING THE LEGACY OR
DONATION OF ALL OR PART OF A HUMAN BODY
AFTER DEATH FOR SPECIFIED PURPOSES
Be it enacted by the Senate and House of
Representatives of the Philippines in Congress
assembled::
Section 1. Title. – This Act shall be known as the
"Organ Donation Act of 1991".
Section 2. Definition of Terms. – As used in this
Act the following terms shall mean:
(a) "Organ Bank Storage Facility" - a facility
licensed, accredited or approved under the law
for storage of human bodies or parts thereof.
(b) "Decedent" - a deceased individual, and
includes a still-born infant or fetus.
(c) "Testator" - an individual who makes a
legacy of all or part of his body.
(d) "Donor" - an individual authorized under
this Act to donate all or part of the body of a
decedent.1awphilŸalf
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(e) "Hospital" - a hospital licensed, accredited
or approval under the law, and includes, a
hospital operated by the Government.
(f) "Part" - includes transplantable organs,
tissues, eyes, bones, arteries, blood, other fluids
and other portions of the human body.
(g) "Person" - an individual, corporation,
estate, trust, partnership, association, the
Government or any of its subdivisions, agencies
or instrumentalities, including government-
owned or -controlled corporations; or any other
legal entity.
(h) "Physician" or "Surgeon" - a physician or
surgeon licensed or authorized to practice
medicine under the laws of the Republic of the
Philippines.
(i) "Immediate Family" of the decedent - the
persons enumerated in Section 4(a) of this Act.
(j) "Death" - the irreversible cessation of
circulatory and respiratory functions or the
irreversible cessation of all functions of the
entire brain, including the brain stem. A person
shall be medically and legally dead if
either:1awphilŸalf
(1) In the opinion of the attending physician,
based on the acceptable standards of medical
practice, there is an absence of natural
respiratory and cardiac functions and, attempts
at resuscitation would not be successful in
restoring those functions. In this case, death shall
be deemed to have occurred at the time these
functions ceased; or
(2) In the opinion of the consulting physician,
concurred in by the attending physician, that on
the basis of acceptable standards of medical
practice, there is an irreversible cessation of all
brain functions; and considering the absence of
such functions, further attempts at resuscitation
or continued supportive maintenance would not
be successful in resorting such natural functions.
In this case, death shall be deemed to have
occurred at the time when these conditions first
appeared.
The death of the person shall be determined in
accordance with the acceptable standards of
medical practice and shall be diagnosed
separately by the attending physician and
another consulting physician, both of whom
must be appropriately qualified and suitably
experienced in the care of such parties. The
death shall be recorded in the patient's medical
record.
Section 3. Person Who May Execute A Legacy. –
Any individual, at least eighteen (18) years of age
and of sound mind, may give by way of legacy, to
take effect after his death, all or part of his body
for any purpose specified in Section 6 hereof.
Section 4. Person Who May Execute a Donation. –
(a) Any of the following, person, in the order
of property stated hereunder, in the absence of
actual notice of contrary intentions by the
decedent or actual notice of opposition by a
member of the immediate family of the decedent,
may donate all or any part of the decedent's body
for any purpose specified in Section 6 hereof:
(1) Spouse;
(2) Son or daughter of legal age;
(3) Either parent;
(4) Brother or sister of legal age; or
(5) Guardian over the person of the decedent
at the time of his death.
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(b) The persons authorized by sub-section (a)
of this Section may make the donation after or
immediately before death.
Section 5. Examination of Human Body or Part
Thereof . – A legacy of donation of all or part of a
human body authorizes any examination
necessary to assure medical acceptability of the
legacy or donation for the purpose(s) intended.
For purposes of this Act, an autopsy shall be
conducted on the cadaver of accident, trauma, or
other medico-legal cases immediately after the
pronouncement of death, to determine qualified
and healthy human organs for transplantation
and/or in furtherance of medical science.
Section 6. Persons Who May Become Legatees or
Donees. – The following persons may become
legatees or donees of human bodies or parts
thereof for any of the purposes stated
hereunder:
(a) Any hospital, physician or surgeon - For
medical or dental education, research,
advancement of medical or dental science,
therapy or transplantation;
(b) Any accredited medical or dental school,
college or university - For education, research,
advancement of medical or dental science, or
therapy;
(c) Any organ bank storage facility - For
medical or dental education, research, therapy,
or transplantation; and
(d) Any specified individual - For therapy or
transplantation needed by him.
Section 7. Duty of Hospitals. – A hospital
authorized to receive organ donations or to
conduct transplantation shall train qualified
personnel and their staff to handle the task of
introducing the organ donation program in a
humane and delicate manner to the relatives of
the donor-decedent enumerated in Section 4
hereof. The hospital shall accomplish the
necessary form or document as proof of
compliance with the above requirement.
Section 8. Manner of Executing a Legacy. –
(a) Legacy of all or part of the human body
under Section 3 hereof may be made by will. The
legacy becomes effective upon the death of the
testator without waiting for probate of the will. If
the will is not probated, or if it is declared invalid
for testamentary purposes, the legacy, to the
extent that it was executed in good faith, is
nevertheless valid and effective.
(b) A legacy of all or part of the human body
under Section 3 hereof may also be made in any
document other than a will. The legacy becomes
effective upon death of the testator and shall be
respected by and binding upon his executor or
administrator, heirs, assigns, successors-in-
interest and all members of the family. The
document, which may be a card or any paper
designed to be carried on a person, must be
signed by the testator in the presence of two
witnesses who must sign the document in his
presence. If the testator cannot sign, the
document may be signed for him at his discretion
and in his presence, in the presence of two
witnesses who must, likewise, sign the document
in the presence of the testator. Delivery of the
document of legacy during the testator's lifetime
is not necessary to make the legacy valid.
(c) The legacy may be made to a specified
legatee or without specifying a legatee. If the
legacy is made to a specified legatee who is not
available at the time and place of the testator's
death, the attending physician or surgeon, in the
absence of any expressed indication that the
testator desired otherwise, may accept the
legacy as legatee. If the legacy does not specify a
legatee, the legacy may be accepted by the
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attending physician or surgeon as legatee upon
or following the testator's death. The physician
who becomes a legatee under this subsection
shall not participate in the procedures for
removing or transplanting a part or parts of the
body of the decedent.
(d) The testator may designate in his will,
card or other document, the surgeon or
physician who will carry out the appropriate
procedures. In the absence of a designation, or if
the designee is not available, the legatee or other
persons authorized to accept the legacy may
authorize any surgeon or physician for the
purpose.
Section 9. Manner of Executing a Donation. – Any
donation by a person authorized under
subsection (a) of Section 4 hereof shall be
sufficient if it complies with the formalities of a
donation of a movable property.
In the absence of any of the persons specified
under Section 4 hereof and in the absence of any
document of organ donation, the physician in
charge of the patient, the head of the hospital or
a designated officer of the hospital who has
custody of the body of the deceased classified as
accident, trauma, or other medico-legal cases,
may authorize in a public document the removal
from such body for the purpose of
transplantation of the organ to the body of a
living person: Provided, That the physician, head
of hospital or officer designated by the hospital
for this purpose has exerted reasonable efforts,
within forty-eight (48) hours, to locate the
nearest relative listed in Section 4 hereof or
guardian of the decedent at the time of death.
In all donations, the death of a person from
whose body an organ will be removed after his
death for the purpose of transplantation to a
living person, shall be diagnosed separately and
certified by two (2) qualified physicians neither
of whom should be:
(a) A member of the team of medical
practitioners who will effect the removal of the
organ from the body; nor
(b) The physician attending to the receipt of
the organ to be removed; nor
(c) The head of hospital or the designated
officer authorizing the removal of the organ.
Section 10. Person(s) Authorized to Remove
Transplantable Organs. – Only authorized
medical practitioners in a hospital shall remove
and/or transplant any organ which is authorized
to be removed and/or transplanted pursuant to
Section 5 hereof.
Section 11. Delivery of Document of Legacy or
Donation. – If the legacy or donation is made to a
specified legatee or donee, the will, card or other
document, or an executed copy thereof, may be
delivered by the testator or donor, or is
authorized representative, to the legatee or
donee to expedite the appropriate procedures
immediately after death. The will, card or other
document, or an executed copy thereof, may be
deposited in any hospital or organ bank storage
facility that accepts it for safekeeping or for
facilitation or procedures after death. On the
request of any interested party upon or after the
testator's death, the person in possession shall
produce the document of legacy or donation for
verification.
Section 12. Amendment or Revocation of Legacy
or Donation. –
a) If he will, card or other document, or an
executed copy thereof, has been delivered to a
specific legatee or donee, the testator or donor
may amend or revoke the legacy or donation
either by:
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(1) The execution and delivery to the legatee
or donee of a signed statement to that effect; or
(2) An oral statement to that effect made in
the presence of two other persons and
communicated to the legatee or donee; or
(3) A statement to that effect during a
terminal illness or injury addressed to an
attending physician and communicated to the
legatee or donee; or
(4) A signed card or document to that effect
found on the person or effects of the testator or
donor.
(b) Any will, card or other document, or an
executed copy thereof, which has not been
delivered to the legatee or donee may be
revoked by the testator or donor in the manner
provided in subsection (a) of this Section or by
destruction, cancellation or mutilation of the
document and all executed copies thereof.
Any legacy made by a will may also be amended
or revoked in the manner provided for
amendment or revocation of wills, or as provided
in subsection (a) of this Section.
Section 13. Rights and Duties After Death. –
(a) The legatee or donee may accept or reject the
legacy or donation as the case may be. If the
legacy of donation is of a part of the body, the
legatee or donee, upon the death of the testator
and prior to embalming, shall effect the removal
of the part, avoiding unnecessary mutilation.
After removal of the part, custody of the
remainder of the body vests in the surviving
spouse, next of kin or other persons under
obligation to dispose of the body of the decedent.
(b) Any person who acts in good faith in
accordance with the terms of this Act shall not be
liable for damages in any civil action or subject to
prosecution in any criminal proceeding of this
Act.
Section 14. International Sharing of Human
Organs or Tissues. – Sharing of human organs or
tissues shall be made only through exchange
programs duly approved by the Department of
Health: Provided, That foreign organ or tissue
bank storage facilities and similar
establishments grant reciprocal rights to their
Philippine counterparts to draw organs or
tissues at any time.
Section 15. Information Drive. – In order that the
public will obtain the maximum benefits from
this Act, the Department of Health, in
cooperation with institutions, such as the
National Kidney Institute, civic and non-
government health organizations and other
health related agencies, involved in the donation
and transplantation of human organs, shall
undertake a public information program.
The Secretary of Health shall endeavor to
persuade all health professionals, both
government and private, to make an appeal for
human organ donation.
Section 16. Rules and Regulations. – The
Secretary of Health, after consultation with all
health professionals, both government and
private, and non-government health
organizations shall promulgate such rules and
regulations as may be necessary or proper to
implement this Act.
Section 17. Repealing Clause. – All laws, decrees,
ordinances, rules and regulations, executive or
administrative orders, and other presidential
issuance inconsistent with this Act, are hereby
repealed, amended or modified accordingly.
Section 18. Separability Clause. – The provisions
of this Act are hereby deemed separable. If any
provision hereof should be declared invalid or
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unconstitutional, the remaining provisions shall
remain in full force and effect.
Section 19. Effectivity. – This Act shall take effect
after fifteen (15) days following its publication in
the Official Gazette or at least two (2)
newspapers of general circulation.
4. Opening of Succession
Art 777. The rights to the succession are
transmitted from the moment of the death of the
decedent.
T/N: The death of a person consolidates and
renders immutable rights which up to that
moment were nothing but mere expectancy. The
rights arise from the express will of the testator
or from the provisions of the law, but they do not
acquire any solidity and effectiveness except
from the moment of death. Once death
supervenes, the will of the testator becomes
immutable, the law as to the succession can no
longer be changed, disinheritance cannot be
effected and the rights to the succession acquire
a character of marked permanence.
Should be understood as “the rights to the
succession of a person are transmitted from the
moment of his death and by virtue of prior
manifestations of his will or of causes
predetermined by law.
Requisites for the transmission of successional
rights:
1. express will of the testator within the limits
prescribed by the law, calling certain persons to
succeed him, or in the absence of a will, the
provision of the law prescribing the presumed
will of the decedent.
2. death of the person whose succession is in
question
3. acceptance of the inheritance by the person
called to the succession
Art 533. The possession of hereditary property
is deemed transmitted to the heir without
interruption and from the moment of the death
of the decedent, in case the inheritance is
accepted.
One who validly renounces an inheritance is
deemed never to have possessed the same.
Art 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.
Art 1461. Things having a potential existence
may be the object of the contract of sale.
The efficacy of the sale of a mere hope or
expectancy is deemed subject to the condition
that the thing will come into existence.
The sale of a vain hope or expectancy is void.
Art 130. The future spouses may give each other
in their marriage settlements as much as one-
fifth of their present property, and with respect
to their future property, only in the event of
death, to the extent laid down by the provisions
of this Code referring to testamentary
succession.
Art 132. A donation by reason of marriage is not
revocable, save in the following cases:
(1) If it is conditional and the condition is not
complied with;
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(2) If the marriage is not celebrated;
(3) When the marriage takes place without
the consent of the parents or guardian, as
required by law;
(4) When the marriage is annulled, and the
donee acted in bad faith;
(5) Upon legal separation, the donee being
the guilty spouse;
(6) When the donee has committed an act of
ingratitude as specified by the provisions
of this Code on donations in general.
Art 390. After an absence of seven 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 ten years. If he disappeared after the
age of seventy-five years, an absence of five years
shall be sufficient in order that his succession
may be opened. (n)
Art. 391. The following shall be presumed dead
for all purposes, including the division of the
estate among the heirs:
(1) A person on board a vessel lost during a
sea voyage, or an aeroplane which is
missing, who has not been heard of for
four years since the loss of the vessel or
aeroplane;
(2) A person in the armed forces who has
taken part in war, and has been missing
for four years;
(3) A person who has been in danger of death
under other circumstances and his
existence has not been known for four
years.
FC 50. For the exercise of civil rights and the
fulfillment of civil obligations, the domicile of
natural persons is the place of their habitual
residence. (40a)
FC 51. When the law creating or recognizing
them, or any other provision does not fix the
domicile of juridical persons, the same shall be
understood to be the place where their legal
representation is established or where they
exercise their principal functions.
5. Kinds of Succession
a) Testamentary
Art 779. Testamentary succession is that which
results from the designation of an heir, made in a
will executed in the form prescribed by law.
b) Legal or Intestate
Art 960. Legal or intestate succession takes
place:
(1) If a person dies without a will, or with a
void will, or one which has subsequently
lost its validity;
(2) When the will does not institute an heir
to, or dispose of all the property
belonging to the testator. In such case,
legal succession shall take place only with
respect to the property of which the
testator has not disposed;
(3) If the suspensive condition attached to
the institution of heir does not happen or
is not fulfilled, or if the heir dies before
the testator, or repudiates the
inheritance, there being no substitution,
and no right of accretion takes place;
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 (4) When the heir instituted is incapable of
succeeding, except in cases provided in
this Code. (912a)
T/N: 1. a. No will – total intestacy
b. void will = no will
c. Erroneous – will, once valid, always
valid but may lose its efficacy
2. a. “does not institute an heir” – useless
will as far as succession is concerned
b. “does not dispose all” – partial intestacy
3. “Suspensive condition does not
happen” – intestacy as o that specific institution
4. “Incapable of succeeding” – only
specific provision will give rise to
intestacy.
5. Others not in Art 960.
a. arrival of resolutory term
b. impossibility of ascertaining the will of
the testator.
c) Mixed
Art 780. Mixed succession is that effected partly
by will and partly by operation of law.
T/N: provisions will take effect, even in the
presence of a will, if such will does not validly
dispose of all the property of the deceased. To
the part validly disposed of, there is
testamentary succession. To the part not validly
disposed of, or to which no heir is designated,
there is legal or intestate succession.
d) Contractual
Art 130. The future spouses may give each other
in their marriage settlements as much as one-
fifth of their present property, and with respect
to their future property, only in the event of
death, to the extent laid down by the provisions
of this Code referring to testamentary
succession.
Art 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.
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. (636)
Art 1080. Should a person make partition of his
estate by an act inter vivos, or by will, such
partition shall be respected, insofar as it does not
prejudice the legitime of the compulsory heirs.
A parent who, in the interest of his or her family,
desires to keep any agricultural, industrial, or
manufacturing enterprise intact, may avail
himself of the right granted him in this article, by
ordering that the legitime of the other children to
whom the property is not assigned, be paid in
cash. (1056a)
T/N: First: distribute the estate among the heirs
designated by the testator. Second: the division
in conformity with that disposition and the
testator may make this division in the same will
or in another will, or by an act inter vivos.
11 | S u c c e s s i o n . J D 2 0 1 9
A testator may, by an act inter vivos, partition his
property, but he must first make a will with all
the formalities provided by law.
TESTAMENTARY SUCCESSION
II. WILLS
1. Definition
Article 783. A will is an act whereby a person is
permitted, with the formalities prescribed by
law, to control to a certain degree the disposition
of this estate, to take effect after his death.
2. Characteristics
a. Purely statutory
Article 783 supra
b. Free and Voluntary Act
Article 839. The will shall be disallowed in any
of the following cases:
(1) If the formalities required by law have
not been complied with;
(2) If the testator was insane, or otherwise
mentally incapable of making a will, at the
time of its execution;
(3) If it was executed through force or under
duress, or the influence of fear, or threats;
(4) If it was procured by undue and improper
pressure and influence, on the part of the
beneficiary or of some other person;
(5) If the signature of the testator was
procured by fraud;
(6) If the testator acted by mistake or did not
intend that the instrument he signed
should be his will at the time of affixing
his signature thereto. (n)
c. Solemn or Formal
Article 783 supra
d. Disposition of Property
Article 783 supra
e. Essentially revocable
Article 828. A will may be revoked by the
testator at any time before his death. Any waiver
or restriction of this right is void. (737a)
f. Testator has testamentary capacity
Article 796. All persons who are not expressly
prohibited by law may make a will. (662)
Article 797. Persons of either sex under
eighteen years of age cannot make a will. (n)
Article 798. In order to make a will it is essential
that the testator be of sound mind at the time of
its execution. (n)
T/N: Elements of testamentary capacity
1. The testator must have the mental capacity to
understand the nature and effect of his act
2. sufficient recollection of his properties
3. able to remember the natural objects of his
bounty
4. sufficient mental ability to make a disposition
of his property among the objects of his bounty
g. Unilateral
h. Mortis Causa
Article 777. The rights to the succession are
transmitted from the moment of the death of the
decedent. (657a)
[Vitug vs CA, 183 SCRA 755]
Testator must have animus testandi
[Montinola vs Herbosa, 3 Court of Appeals
reports 2nd 377]
i. Individual
12 | S u c c e s s i o n . J D 2 0 1 9
Article 818. Two or more persons cannot make
a will jointly, or in the same instrument, either
for their reciprocal benefit or for the benefit of a
third person. (669)
j. Purely personal Act
Article 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. (670a)
Article 785. The duration or efficacy of the
designation of heirs, devisees or legatees, or the
determination of the portions which they are to
take, when referred to by name, cannot be left to
the discretion of a third person. (670a)
Article 786. The testator may entrust to a third
person the distribution of specific property or
sums of money that he may leave in general to
specified classes or causes, and also the
designation of the persons, institutions or
establishments to which such property or sums
are to be given or applied. (671a)
Article 787. The testator may not make a
testamentary disposition in such manner that
another person has to determine whether or not
it is to be operative. (n)
3. Interpretation of Wills
a. Interpretation should favor validity of the
Will
Article 788. If a testamentary disposition admits
of different interpretations, in case of doubt, that
interpretation by which the disposition is to be
operative shall be preferred. (n)
b. In case of ambiguities
Article 769. The action granted to the donor by
reason of ingratitude cannot be renounced in
advance. This action prescribes within one year,
to be counted from the time the donor had
knowledge of the fact and it was possible for him
to bring the action. (652)
c. Interpretation of words
Article 790. The words of a will are to be taken
in their ordinary and grammatical sense, unless a
clear intention to use them in another sense can
be gathered, and that other can be ascertained.
Technical words in a will are to be taken in their
technical sense, unless the context clearly
indicates a contrary intention, or unless it
satisfactorily appears that the will was drawn
solely by the testator, and that he was
unacquainted with such technical sense. (675a)
d. Interpretation as a whole
Article 791. The words of a will are to receive an
interpretation which will give to every
expression some effect, rather than one which
will render any of the expressions inoperative;
and of two modes of interpreting a will, that is to
be preferred which will prevent intestacy. (n)
e. Severability of invalid provisions
Article 792. The invalidity of one of several
dispositions contained in a will does not result in
the invalidity of the other dispositions, unless it
is to be presumed that the testator would not
have made such other dispositions if the first
invalid disposition had not been made. (n)
f. After acquired property
Article 793. Property acquired after the making
of a will shall only pass thereby, as if the testator
had possessed it at the time of making the will,
13 | S u c c e s s i o n . J D 2 0 1 9
should it expressly appear by the will that such
was his intention. (n)
Article 930. The legacy or devise of a thing
belonging to another person is void, if the
testator erroneously believed that the thing
pertained to him. But if 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.
(862a)
g. Extent of interest covered
Article 794. Every devise or legacy shall cover
all the interest which the testator could device or
bequeath in the property disposed of, unless it
clearly appears from the will that he intended to
convey a less interest. (n)
4. Law governing form
a. As to time of execution
Article 795. The validity of a will as to its form
depends upon the observance of the law in force
at the time it is made. (n)
[Enriquez vs. Abadia, 96 Phil 927]
[In Re Will of Riosa, 39 Phil 23]
b. As to place of execution
Article 17. The forms and solemnities of
contracts, wills, and other public instruments
shall be governed by the laws of the country in
which they are executed.
When the acts referred to are executed before
the diplomatic or consular officials of the
Republic of the Philippines in a foreign country,
the solemnities established by Philippine laws
shall be observed in their execution.
Prohibitive laws concerning persons, their acts
or property, and those which have for their
object public order, public policy and good
customs shall not be rendered ineffective by laws
or judgments promulgated, or by determinations
or conventions agreed upon in a foreign country.
(11a)
Article 815. When a Filipino is in a foreign
country, he is authorized to make a will in any of
the forms established by the law of the country
in which he may be. Such will may be probated in
the Philippines. (n)
Article 816. The will of an alien who is abroad
produces effect in the Philippines if made with
the formalities prescribed by the law of the place
in which he resides, or according to the
formalities observed in his country, or in
conformity with those which this Code
prescribes. (n)
Article 817. A will made in the Philippines by a
citizen or subject of another country, which is
executed in accordance with the law of the
country of which he is a citizen or subject, and
which might be proved and allowed by the law of
his own country, shall have the same effect as if
executed according to the laws of the Philippines.
(n)
Article 810. A person may execute a holographic
will which must be entirely written, dated, and
signed by the hand of the testator himself. It is
subject to no other form, and may be made in or
out of the Philippines, and need not be
witnessed. (678, 688a)
Article 818. Two or more persons cannot make
a will jointly, or in the same instrument, either
for their reciprocal benefit or for the benefit of a
third person. (669)
Article 819. Wills, prohibited by the preceding
article, executed by Filipinos in a foreign country
14 | S u c c e s s i o n . J D 2 0 1 9
shall not be valid in the Philippines, even though
authorized by the laws of the country where they
may have been executed. (733a)
5. Law governing content
a. As to time
Article 2263. Rights to the inheritance of a
person who died, with or without a will, before
the effectivity of this Code, shall be governed by
the Civil Code of 1889, by other previous laws,
and by the Rules of Court. The inheritance of
those who, with or without a will, die after the
beginning of the effectivity of this Code, shall be
adjudicated and distributed in accordance with
this new body of laws and by the Rules of Court;
but the testamentary provisions shall be carried
out insofar as they may be permitted by this
Code. Therefore, legitimes, betterments, legacies
and bequests shall be respected; however, their
amount shall be reduced if in no other manner
can every compulsory heir be given his full share
according to this Code. (Rule 12a)
b. As to successional rights, etc
Article 16. Real property as well as personal
property is subject to the law of the country
where it is stipulated.
However, intestate and testamentary
successions, both with respect to the order of
succession and to the amount of successional
rights and to the intrinsic validity of
testamentary provisions, shall be regulated by
the national law of the person whose succession
is under consideration, whatever may be the
nature of the property and regardless of the
country wherein said property may be found.
(10a)
[Jimenez v Fernandez 184 SCRA 190]
[Miciano v Brimo 50 Phil 867]
[Cayetano v Leonides 129 SCRA 524]
III. TESTAMENTARY CAPACITY
AND INTENT
1. Who may make a Will
a. Age
Article 797. Persons of either sex under eighteen
years of age cannot make a will. (n)
b. Not disqualified by law
Article 796. All persons who are not expressly
prohibited by law may make a will. (662)
c. Of sound mind
Article 798. In order to make a will it is essential that
the testator be of sound mind at the time of its
execution. (n)
Article 799. To be of sound mind, it is not necessary
that the testator be in full possession of all his
reasoning faculties, or that his mind be wholly
unbroken, unimpaired, or unshattered by disease,
injury or other cause.
It shall be sufficient if the testator was able at the
time of making the will to know the nature of the
estate to be disposed of, the proper objects of his
bounty, and the character of the testamentary act. (n)
Article 800. The law presumes that every person is
of sound mind, in the absence of proof to the
contrary.
The burden of proof that the testator was not of
sound mind at the time of making his dispositions is
on the person who opposes the probate of the will;
but if the testator, one month, or less, before making
his will was publicly known to be insane, the person
who maintains the validity of the will must prove that
the testator made it during a lucid interval. (n)
d. Case of married women
Article 802. A married woman may make a will
without the consent of her husband, and without the
authority of the court. (n)
15 | S u c c e s s i o n . J D 2 0 1 9
Article 803. A married woman may dispose by will
of all her separate property as well as her share of the
conjugal partnership or absolute community
property. (n)
2. Supervening incapacity
Article 801. Supervening incapacity does not
invalidate an effective will, nor is the will of an
incapable validated by the supervening of capacity.
(n)
IV. SOLEMNITIES OF WILLS
1. Kinds of Wills
a. Notarial Will
Article 804. Every will must be in writing and
executed in a language or dialect known to the
testator. (n)
b. Holographic Will
Article 810. A person may execute a holographic
will which must be entirely written, dated, and
signed by the hand of the testator himself. It is
subject to no other form, and may be made in or
out of the Philippines, and need not be
witnessed. (678, 688a)
2. Notarial Wills
a. General Requirements
Article 804. Every will must be in writing and
executed in a language or dialect known to the
testator. (n)
[Abangan v Abangan]
[Suroaza v Honrado]
b. Specific Requirements
Article 805. Every will, other than a holographic
will, must be subscribed at the end thereof by the
testator himself or by the testator's name written
by some other person in his presence, and by his
express direction, and attested and subscribed
by three or more credible witnesses in the
presence of the testator and of one another.
The testator or the person requested by him to
write his name and the instrumental witnesses
of the will, shall also sign, as aforesaid, each and
every page thereof, except the last, on the left
margin, and all the pages shall be numbered
correlatively in letters placed on the upper part
of each page.
The attestation shall state the number of pages
used upon which the will is written, and the fact
that the testator signed the will and every page
thereof, or caused some other person to write his
name, under his express direction, in the
presence of the instrumental witnesses, and that
the latter witnessed and signed the will and all
the pages thereof in the presence of the testator
and of one another.
If the attestation clause is in a language not
known to the witnesses, it shall be interpreted to
them. (n)
Article 806. Every will must be acknowledged
before a notary public by the testator and the
witnesses. The notary public shall not be
required to retain a copy of the will, or file
another with the office of the Clerk of Court.(n)
[Matias v Salud]
[Garcia v Lacuesta]
[Balonan v Abellana]
[Nera v Rimando]
[Taboada v Rosal]
[Icasiano v Icasiano]
[Cagro v Cagro]
[Gabucan v Manta]
[Javellana v Ledesma]
16 | S u c c e s s i o n . J D 2 0 1 9
c. Special requirements
Article 807. If the testator be deaf, or a deaf-
mute, he must personally read the will, if able
to do so; otherwise, he shall designate two
persons to read it and communicate to him, in
some practicable manner, the contents thereof.
(n)
Article 808. If the testator is blind, the will
shall be read to him twice; once, by one of the
subscribing witnesses, and again, by the
notary public before whom the will is
acknowledged. (n)
To make the provisions known to the testator, so
that he may be able to object if they are not in
accordance with his wishes. Failure to comply
with this requirement makes the will invalid.
Also applies to an illiterate testator. From the
point of view of understanding or knowing the
contents of the will, there is no difference
between the illiterate testator and the blind
testator.
[Garcia v Vasquez]
[Alvarado v Gaviola]
d. Substantial compliance
Article 809. In the absence of bad faith,
forgery, or fraud, or undue and improper
pressure and influence, defects and
imperfections in the form of attestation or in
the language used therein shall not render the
will invalid if it is proved that the will was in
fact executed and attested in substantial
compliance with all the requirements of article
805. (n)
If testator attempts to comply with any requisite
although the compliance is not literal, it will be
sufficient if the objective or purpose sought to be
accomplished by the requisite is actually attained
by the form followed by the testator.
Law on formal requirements of a will should be
liberally construed. Unsubstantial departures
should be ignored, as long as the possibility of
fraud and bad faith are obviated.
The imperfections of the attestation clause may
either be in a language or in the form thereof.
Grammatical errors which may be noted from
the general tenor of the attestation clause must
be overlooked or corrected by construction so as
not to frustrate the recognized intention of those
who intervened in the execution thereof.
Where it is apparent at first sight that in its
drafting, there were omissions incurred which
reason and common sense can supply without
altering or changing the intention of the testator
and of the three witnesses, the attestation clause
must be considered sufficient.
It is sufficient if from the language employed it
can reasonably be deduced that the attestation
clause fulfills what the law expects of it.
An attestation clause may be so inartistically
drawn that, standing alone, it may not meet the
requirements of the statute, but if, when taken in
connection with the last clause of the body of the
will, it is fairly clear and sufficiently carries out
the legislative intent, it will be held sufficient.
The whole language of the clause must be taken
together and the portion drawn in question must
be read and construed in connection with the
rest of the clause.
When there is a possibility that the testator or
the person who prepared the will had relied
upon a ruling laid down in a case decided by the
Supreme Court, it would be unfair to reject the
will, when in its preparation such ruling was
followed.
Attestation clause need not be an independent
portion of the will; it may be contained in the
body of the will itself.
17 | S u c c e s s i o n . J D 2 0 1 9
In determining whether the statements comply
substantially, the correct rule is that omissions
which can be supplied by an examination of the
will itself, without resorting to extrinsic
evidence, will not be fatal; but omissions which
cannot be supplied except by presenting
evidence aliunde will invalidate the attestation
clause.
JBL Reyes: The present rule renders the
attestation of no value in protecting against
fraud or a really defective execution. The rule
must be limited to disregarding those defects
that can be supplied by an examination of the
will itself.
[Gil v Murciano]
[Caneda v CA]
3. Witnesses to Wills
a. Who are competent
Article 820. Any person of sound mind and of
the age of eighteen years or more, and not
blind, deaf or dumb, and able to read and
write, may be a witness to the execution of a
will mentioned in article 805 of this Code. (n)
Article 821. The following are disqualified
from being witnesses to a will:
(1) Any person not domiciled in the
Philippines;
(2) Those who have been convicted of
falsification of a document, perjury or
false testimony. (n)
Article 824. A mere charge on the estate of the
testator for the payment of debts due at the
time of the testator's death does not prevent
his creditors from being competent witnesses
to his will. (n)
Mere residence is not enough. Domicile is
defined as the permanent home, the place to
which, whenever absent for business or
pleasure, one intends to return, depends on the
facts and circumstances, in the sense that they
disclose intent. A person can have only one
domicile at a time.
Domicile of witnesses in the Philippines is
required only for wills executed in the
Philippines. One who is not domiciled in the
Philippines is disqualified to be a witness.
Under the Old Civil Code, it was expressly
provided that domicile of witnesses in the
Philippines was not required in wills executed in
a foreign country. No particular citizenship
required for witnesses to wills.
A witness is disqualified when he has been
convicted of falsification of a document, perjury
or false testimony. It is presumed that such a
witness cannot be relied upon for truthfulness.
Conviction for any other crime, is not a
disqualification.
Credible/competent – one who is qualified to
testify in court, not disqualified by any natural,
moral or legal cause. One who does not believe in
the obligation of an oath, in a future state of
rewards and punishments, or in any
accountability for his conduct after death, is
incompetent.
Notary public cannot be considered as the third
instrumental witness since he cannot
acknowledge before himself his having signed
the will. This cannot be done as the very purpose
of the acknowledgement, to minimize fraud
would be thwarted.
[Gonzales v CA]
[Cruz v Villasor]
b. Supervening incompetency
Article 822. If the witnesses attesting the
execution of a will are competent at the time of
attesting, their becoming subsequently
18 | S u c c e s s i o n . J D 2 0 1 9
 incompetent shall not prevent the allowance of
the will. (n)
c. Competency of interested witness
Article 823. If a person attests the execution
of a will, to whom or to whose spouse, or
parent, or child, a devise or legacy is given by
such will, such devise or legacy shall, so far
only as concerns such person, or spouse, or
parent, or child of such person, or any one
claiming under such person or spouse, or
parent, or child, be void, unless there are three
other competent witnesses to such will.
However, such person so attesting shall be
admitted as a witness as if such devise or
legacy had not been made or given. (n)
Does not disqualify a devisee or legatee, or the
spouse, parent or child of such devisee or
legatee, from becoming a witness to the will. If he
is credible, and not disqualified under NCC 821,
he is a competent witness; but the devise or
legacy in his favor, or in favor of his spouse,
parent or child, will be void. This article does not
refer to disqualification to be a witness but to
DISQUALIFICATION TO INHERIT.
If the witness is not a devisee or legatee, but an
heir, is the institution of such heir void? Even an
instituted heir, or his spouse, parent or child, is
disqualified. This disqualification is intended to
apply to one succeeding by will, and it is not
material in what concept he succeeds.
4. Holographic Wills
a. General Requirements
Article 804. Every will must be in writing and
executed in a language or dialect known to the
testator. (n)
b. Specific Requirements
Article 810. A person may execute a
holographic will which must be entirely
written, dated, and signed by the hand of the
testator himself. It is subject to no other form,
and may be made in or out of the Philippines,
and need not be witnessed. (678, 688a)
Article 812. In holographic wills, the
dispositions of the testator written below his
signature must be dated and signed by him in
order to make them valid as testamentary
dispositions. (n)
Article 813. When a number of dispositions
appearing in a holographic will are signed
without being dated, and the last disposition
has a signature and a date, such date validates
the dispositions preceding it, whatever be the
time of prior dispositions. (n)
Article 814. In case of any insertion,
cancellation, erasure or alteration in a
holographic will, the testator must
authenticate the same by his full signature. (n)
Advantages
1. Easy and simple to make
2. Induces foreigners in this jurisdiction to set
down their last wishes
3. It guaranties the absolute secrecy of the
testamentary dispositions
Disadvantages
1. No guaranty as to the capacity of the testator
2. No protection against violence, intimidation,
or undue influence
3. May not faithfully express the will of the
testator due to faulty expressions
4. Can be easily falsified by expert forgers
5. Can be easily concealed.
There being no prohibition in the law, a blind
person can make such a will if he has the general
testamentary capacity.
No particular form required but the intent to
dispose mortis cause must appear clearly in the
context.
Effect of words written by another and inserted
among testator’s words
19 | S u c c e s s i o n . J D 2 0 1 9
1. If the insertion was made after the execution
of the will without the consent of the testator,
insertion is considered as not written because
the validity of the will cannot be defeated by
malice or caprice of a third person.
2. If the insertion after the execution was with
consent, the will remains valid but the insertion
is void.
3. If the insertion after the execution is validated
by the testator by his signature, the insertion
becomes part of the will and the entire will
becomes void, because of failure to comply with
the requirements that it must be wholly written
by the testator.
4. If the insertion made by a third person is made
contemporaneous to the execution of the will,
then the will is void because it is not written
entirely by the testator.
Exact date, month and year on which the will
was made must be indicated otherwise, the will
should be void for want of an essential requisite.
Validity of a holographic will is defeated by the
fact that part of the date is printed.
When the inaccuracy of the date is due to
involuntary error, or inadvertence, the testator
being in good faith, the court may allow proof of
the true date, provided that such proof can have
a basis in the will itself.
Signature required for holographic wills must be
testator’s name written by him in his usual and
habitual manner. Mere error in the spelling does
not invalidate the signature. Signature must be at
the end of the will. Signature of witnesses does
not invalidate the will, mere surplusage.
[Roxas v de Jesus]
[Kalaw v Relova]
[Aujero v CA]
c. Requirements for Probate
Article 811. In the probate of a holographic
will, it shall be necessary that at least one
witness who knows the handwriting and
signature of the testator explicitly declare that
the will and the signature are in the
handwriting of the testator. If the will is
contested, at least three of such witnesses shall
be required.
In the absence of any competent witness
referred to in the preceding paragraph, and if
the court deem it necessary, expert testimony
may be resorted to. (619a)
The execution and the contents of a lost or
destroyed holographic will may not be proved by
the bare testimony of witnesses who have seen
or read such will. Will itself must be presented;
otherwise it shall produce no effect. The law
regards the document itself as material proof of
authenticity.
[Gan v Yap]
[Rodelas v Aranza]
[Azaola v Singson]
[Codoy v Calugay]
V. Incorporation of Document by
Reference
Article 827. If a will, executed as required by
this Code, incorporates into itself by reference
any document or paper, such document or
paper shall not be considered a part of the will
unless the following requisites are present:
(1) The document or paper referred to
in the will must be in existence at the
time of the execution of the will;
(2) The will must clearly describe and
identify the same, stating among other
things the number of pages thereof;
(3) It must be identified by clear and
satisfactory proof as the document or
paper referred to therein; and
20 | S u c c e s s i o n . J D 2 0 1 9
 (4) It must be signed by the testator
and the witnesses on each and every
page, except in case of voluminous
books of account or inventories. (n)
Purpose: Report of the Code Commission, page
108
Neither the present Civil Code nor the Code of
Civil Procedure provides for incorporation by
reference. There are cases where a testator may
wish to incorporate to his will only by reference
certain documents or papers, especially
inventories and books of account. An express
provision on this subject is necessary, and Article
847 of the proposed Code prescribes the
requisites for such incorporation.
Incorporation by reference is the exception to
the rule that if an instrument is not executed
with all the formalities of a will it cannot be
admitted to probate.
To establish a separate writing as part of a will
by incorporation,
ON THE FACE OF THE WILL MUST APPEAR:
1. Distinct reference to such writing so explicit as
to identify it beyond doubt
parol evidence is of necessity received to
identify the writing
2. The reference must indicate that the writing
has been made, already existing
3. It can be given effect only in case and to the
extent that such appears from the face of the will
as to have been the wish of the testator
When the writing is offered, IT MUST BE SHOWN
BY EXTRINSIC PROOF:
1. It is the very writing referred to in the will
2. It was made before the will was executed.
If a writing made afterwards could be
received, the testator might create in himself a
power of disposing of his property by will
without complying with the statute on wills.
[Unson v Abella]
The inventory need not contain an attestation
clause. Having been clearly referred to in the will,
the attestation clause of the will is sufficient.
VI. Codicils
1. Definition
Article 825. A codicil is supplement or
addition to a will, made after the execution of a
will and annexed to be taken as a part thereof,
by which disposition made in the original will
is explained, added to, or altered. (n)
After a testator has already made a will, a
subsequent instrument mortis causa may either
be a codicil or a new will. if the subsequent
instrument EXPLAINS the original will, or
ALTERS or ADDS to it, then it is a CODICIL.
If the later instrument makes dispositions
INDEPENDENT of those in the original will
without explaining or modifying such original
will, then it is a new will, not a codicil.
A codicil is always related to some prior will.
2. Solemnities
Article 826. In order that a codicil may be
effective, it shall be executed as in the case of a
will.
VII. Revocation of Wills and
Testamentary Disposition
1. Definition of revocation
REVOCATION is an act of the mind, terminating
the potential capacity of the will to operate at the
death of the testator, manifested by some
outward and visible act or sign, symbolic thereof.
It is an inseparable quality of every will.
2. When may revocation be effected
Article 828. A will may be revoked by the
testator at any time before his death. Any
waiver or restriction of this right is void.
21 | S u c c e s s i o n . J D 2 0 1 9
 REVOCATION NULLITY
An act of the testator Proceeds from the law
Presupposes a valid Inherent in the
act testament, be it an
intrinsic or extrinsic
defect
Takes place during Invoked after
the lifetime of the testator’s death by his
testator intestate or
compulsory heirs
Testator cannot Nullity of a will can be
renounce the right to disregarded by the
revoke heirs through
voluntary compliance
3. Law governing revocation
Article 829. A revocation done outside the
Philippines, by a person who does not have his
domicile in this country, is valid when it is
done according to the law of the place where
the will was made, or according to the law of
the place in which the testator had his
domicile at the time; and if the revocation
takes place in this country, when it is in
accordance with the provisions of this Code.
(n)
4. Modes of revocation
Article 830. No will shall be revoked except
in the following cases:
(1) By implication of law; or
(2) By some will, codicil, or other
writing executed as provided in case of
wills; or
(3) By burning, tearing, cancelling, or
obliterating the will with the intention
of revoking it, by the testator himself,
or by some other person in his
presence, and by his express direction.
If burned, torn, cancelled, or obliterated
by some other person, without the
express direction of the testator, the
will may still be established, and the
estate distributed in accordance
therewith, if its contents, and due
execution, and the fact of its
unauthorized destruction, cancellation,
or obliteration are established
according to the Rules of Court. (n)
[Lipana v Lipana]
[Gago v Mamuyac]
[Maloto v CA]
[Kalaw v Relova], supra
5. Implied revocation
Article 831. Subsequent wills which do not
revoke the previous ones in an express
manner, annul only such dispositions in the
prior wills as are inconsistent with or contrary
to those contained in the later wills. (n)
Express revocation – the later will declares the
former, or all former wills, revoked
Implied revocation – when and in so far only as it
merely makes dispositions inconsistent with the
provisions of the former will or wills. In this case,
the later will annuls only such dispositions in the
prior wills as are inconsistent with those
contained in the subsequent will.
If from the second will, taken as whole, the
circumstances attending its execution, there
appears an intention of the testator to dispose of
his property in a manner different from that in
the first will, it is to that extent revoked.
A will is not revoked by a subsequent instrument
which neither revokes it in express terms nor by
implication. The wills not inconsistent must be
construed together and be carried into effect.
If two similar wills are executed on the same day,
the second does not revoke the first for the two
writings taken together are considered to
constitute one and the same will.
6. Effect of revocation
Article 832. A revocation made in a
subsequent will shall take effect, even if the
new will should become inoperative by reason
22 | S u c c e s s i o n . J D 2 0 1 9
 of the incapacity of the heirs, devisees or
legatees designated therein, or by their
renunciation. (740a)
Article 833. A revocation of a will based on a
false cause or an illegal cause is null and void.
(n)
Article 834. The recognition of an illegitimate
child does not lose its legal effect, even though
the will wherein it was made should be
revoked. (741)
NCC 833. When the testator declares in a later
will that he revokes a former will because of a
certain state of facts, revocation is inoperative if
the facts were not as the testator supposed them
to be. If the act of revocation is induced by a
belief which turns out to be false, there is no
revocation. The fact, with regard to which the
mistake was made, must appear upon the face of
the instrument. Parol evidence is not competent
to prove that a revocation unconditional on its
face was induced by a false assumption of fact or
law.
NCC 834. When the recognition of a natural child
is made by will, he can demand his rights even if
the will is revoked. The recognition does not lose
its legal effect even if the will is revoked, because
recognition is not a testamentary disposition. It
takes effect upon execution of the will and not
upon the death of the testator.
7. Doctrine of Dependent Relative Revocation
The established rule is that 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. 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.
[Molo v Molo]
VIII. Republication and Revival of
Wills
Article 835. The testator cannot republish,
without reproducing in a subsequent will, the
dispositions contained in a previous one which
is void as to its form. (n)
Article 836. The execution of a codicil
referring to a previous will has the effect of
republishing the will as modified by the
codicil. (n)
Article 837. If after making a will, the testator
makes a second will expressly revoking the
first, the revocation of the second will does not
revive the first will, which can be revived only
by another will or codicil. (739a)
The second will expressly revokes the first will.
The first will is not revived by the revocation of
the second will, unless the revival is provided in
another will or codicil. This is on the theory that
the revoking clause in the second will is not
testamentary in character, but operates to
revoke the prior will instanter upon the
execution of the will containing it.
Operation instanter of the revocatory clause is
not juridically sound. Revocatory clause is
always part of the will so much so that if the will
is improperly executed and cannot be probated,
the revocatory clause is void and does not take
effect.
Destruction or revocation of a will containing
such clause involves the nullification of the
revocatory clause itself. Once it is null and
without effect, the prior will is revived. But
present article disregards this policy and the true
character of the revocatory clause.
23 | S u c c e s s i o n . J D 2 0 1 9
Where there is only inconsistency but no
revoking clause, it has been held that upon the
destruction of the second will, the first was
revived automatically, provided it be preserved
undestroyed and uncancelled.
While the inconsistent provisions of the second
will clearly manifest an intention on the part of
the testator to revoke the prior will, this intent,
purely testamentary in character, can have no
effect until the death of the testator and if the
instrument containing it is destroyed before that
time, this revocatory intent is as though it had
never been and the first will takes effect.
Present article limits itself to cases where the
second will expressly revokes the first will. It
does not cover cases of implied revocation. What
the second will contains are testamentary
dispositions which, although inconsistent with
those of the prior will, cannot take effect except
upon the death of the testator. If before the
testator’s death such testamentary dispositions
are made inoperative by the revocation of the
will containing them, the first will must of
necessity continue to be effective, unless revoked
by some other will.
IX. Allowance of Wills
Article 836. The execution of a codicil
referring to a previous will has the effect of
republishing the will as modified by the
codicil. (n)
NCC 835 and 836 are, in principle, in conflict
with each other. Under NCC 836, expressing the
generally accepted rule in American law, a duly
executed codicil operates as a republication of
the original will and makes it speak from the
date of the codicil, even when the original will is
only referred to in the codicil. Under NCC 835, a
will void as to its form cannot be republished by
mere reference, but must be reproduced in the
subsequent instrument.
In NCC 836, under American jurisprudence, a
properly executed codicil amounts to a
republication of a prior will, which was invalid
because of defective execution, and renders it
valid. A valid codicil was held to have given effect
to a will which had never been signed by the
testator. A codicil written on the reverse side of a
void holographic will which was defectively
executed made good the invalid holographic will.
This is based on the principle that a proper
execution of a codicil extends also to the prior
will, since in theory, the two instruments are
incorporated as one.
BUT under NCC 835, the void wills could not
have been upheld by mere reference in the
codicil. They should have been reproduced in the
codicil.
To reconcile the two, NCC 836 should be
considered as the general rule and NCC 835 as
the exception. Reproduction in the codicil is
required only when the original will is void as to
its form. In all other cases, reference to the
original will suffices to republish it through the
codicil.
A codicil may republic and validate a will which
was original void for want of testamentary
capacity or on account of undue influence upon
the testator.
1. Concept of Probate
Probate is a proceeding to establish the extrinsic
validity of the will. To probate a will means to
prove before a competent tribunal that:
a. The subject instrument is the last will and
testament of the decedent whose
testamentary act it is alleged to be.
b. It has been executed, attested and
published as required by law, and
c. The testator was of sound and disposing
mind.
24 | S u c c e s s i o n . J D 2 0 1 9
2. Necessity of Probate
Presentation of probate is mandatory and is a
matter of public policy, Unless the will is
probated, the right of a person to dispose of his
property may be rendered nugatory.
[Guevarra v Guevarra]
[De Borja v De Borja]
3. Modes of Probate
4. Effect of Allowance of Wills
[Gallanos v Arcangel]
[De La Cerna v Potot]
[Maninang v CA]
[Pastor v CA]
[Roberts v Leonides]
[Nepomuceno v CA]
[Mercado v Santos]
X. Disallowance of Wills
Article 839. The will shall be disallowed in any of
the following cases:
(1) If the formalities required by law have
not been complied with;
(2) If the testator was insane, or otherwise
mentally incapable of making a will, at
the time of its execution;
(3) If it was executed through force or
under duress, or the influence of fear,
or threats;
(4) If it was procured by undue and
improper pressure and influence, on
the part of the beneficiary or of some
other person;
(5) If the signature of the testator was
procured by fraud;
(6) If the testator acted by mistake or did
not intend that the instrument he
signed should be his will at the time of
affixing his signature thereto. (n)
A will should not be disallowed on dubious
grounds.
Article 1335. There is violence when in order to
wrest consent, serious or irresistible force is
employed.
There is intimidation when one of the
contracting parties is compelled by a
reasonable and well-grounded fear of an
imminent and grave evil upon his person or
property, or upon the person or property of
his spouse, descendants or ascendants, to give
his consent.
To determine the degree of intimidation, the
age, sex and condition of the person shall be
borne in mind.
A threat to enforce one's claim through
competent authority, if the claim is just or
legal, does not vitiate consent. (1267a)
Article 1337. There is undue influence when a
person takes improper advantage of his power
over the will of another, depriving the latter of
a reasonable freedom of choice. The following
circumstances shall be considered: the
confidential, family, spiritual and other
relations between the parties, or the fact that
the person alleged to have been unduly
influenced was suffering from mental
weakness, or was ignorant or in financial
distress. (n)
Article 1338. There is fraud when, through
insidious words or machinations of one of the
contracting parties, the other is induced to
enter into a contract which, without them, he
would not have agreed to. (1269)
[Pastor v Dela Cruz]
[Reyes v Barreto-Datu]
[Ajero v CA]
XI. Institution of Heirs
(1) Definition
Article 840. Institution of heir is an act by
virtue of which a testator designates in his will
the person or persons who are to succeed him
25 | S u c c e s s i o n . J D 2 0 1 9
 in his property and transmissible rights and
obligations. (n)
The will of the testator, freely expressed in the
testament and within the limitation expressly
laid down by law, is the supreme law by which
the succession is governed.
 Beneficiaries must be designated with
clearness
Since the institution of heirs and designation of
legatees and devisees spring exclusively from the
will of the testator, only the portion of the
inheritance that is subject to the disposal of the
testator would be affected by such institution or
designation. It cannot affect the legitime.
(2) Requisites for valid institution of heirs
Article 785. The duration or efficacy of the
designation of heirs, devisees or legatees, or
the determination of the portions which they
are to take, when referred to by name, cannot
be left to the discretion of a third person.
(670a)
Article 787. The testator may not make a
testamentary disposition in such manner that
another person has to determine whether or
not it is to be operative. (n)
Matters in NCC 785 are testamentary in nature;
they constitute expressions of the will or
disposition of the testator.
 Cannot be delegated to a third person
 To delegate to a third person is in effect
delegating the power to make the
testamentary disposition; would violate
the principle in NCC 784 that the making
of a will is a strictly personal act.
(3) Effect if Will Institutes NO Heir
Article 841. A will shall be valid even though
it should not contain an institution of an heir,
or such institution should not comprise the
entire estate, and even though the person so
instituted should not accept the inheritance or
should be incapacitated to succeed.
In such cases the testamentary dispositions
made in accordance with law shall be complied
with and the remainder of the estate shall pass
to the legal heirs. (764)
Used to be a dishonor to die without an heir in
the Roman law.
Heir may be instituted to succeed to the whole or
to an aliquot part of the inheritance. The
existence of the institution does not depend
upon the designation or name which the testator
gives to his testamentary disposition.
(4) Freedom of Disposition
Article 842. One who has no compulsory heirs
may dispose by will of all his estate or any part
of it in favor of any person having capacity to
succeed.
One who has compulsory heirs may dispose of
his estate provided he does not contravene the
provisions of this Code with regard to the
legitime of said heirs. (763a)
The extent of the freedom of disposition depends
upon the existence, kind, and number of
compulsory heirs.
 If no compulsory heirs, practically full
power of disposition
Compulsory heirs – succeed by force of law to a
certain portion of the estate of the decedent,
irrespective of the will of the testator, except in
those cases expressly provided by law.
Legitime – portion to which the compulsory
heirs succeed.
Free portion – remainder of the estate and may
be freely disposed of by the testator as he may
desire any person with capacity to succeed.
26 | S u c c e s s i o n . J D 2 0 1 9
Body of the deceased testator will not pass under
his will or become part of his estate, because the
corpse is not property.
BUT to a certain extent, a person is allowed to
dispose of his body or part thereof, for scientific
or educational purposes.
(5) Manner of Designating an Heir
Article 843. The testator shall designate the
heir by his name and surname, and when there
are two persons having the same names, he
shall indicate some circumstance by which the
instituted heir may be known.
Even though the testator may have omitted the
name of the heir, should he designate him in
such manner that there can be no doubt as to
who has been instituted, the institution shall
be valid. (772)
in rel to Article 789. When there is an
imperfect description, or when no person or
property exactly answers the description,
mistakes and omissions must be corrected, if
the error appears from the context of the will
or from extrinsic evidence, excluding the oral
declarations of the testator as to his intention;
and when an uncertainty arises upon the face
of the will, as to the application of any of its
provisions, the testator's intention is to be
ascertained from the words of the will, taking
into consideration the circumstances under
which it was made, excluding such oral
declarations. (n)
Perez: Extrinsic evidence (“in any other manner”)
is admissible to prove the identity of the heir
intended by the testator.
(6) Disposition in favor of a definite class
Article 845. Every disposition in favor of an
unknown person shall be void, unless by some
event or circumstance his identity becomes
certain. However, a disposition in favor of a
definite class or group of persons shall be
valid.
in rel to Article 786. The testator may entrust
to a third person the distribution of specific
property or sums of money that he may leave
in general to specified classes or causes, and
also the designation of the persons,
institutions or establishments to which such
property or sums are to be given or applied.
(671a)
Person instituted must be certain. His identity
must be known.
Heir is known
 not only when he is individually
determined or specified but also when the
necessary elements for the determination
of his identity are given in the will.
 absolute uncertainty of the identity of the
heir that nullifies the disposition.
An “unknown person” instituted as heir, should
not be confused with one who is unknown to the
testator, or with whom the testator has no
acquaintance.
The determinate event or circumstance,
sufficient to indicate with certainty the person
whom the testator wants to favor, must appear
in the will itself.
 Cannot be shown by extrinsic evidence.
Institution would not be effective where the
instituted heir does not have capacity to succeed
at the time of the death of the testator.
 NCC 1025 requires that in order to be
capacitated to inherit the heir, devisee or
legatee must be living at the moment the
succession opens.
Individuals belonging to the class or group, if
existing and having capacity to succeed at the
time of the death of the testator, are considered
as called to the succession.
 Testator may entrust to a third person
the distribution of the property or money
to be left to such class or group as well as
27 | S u c c e s s i o n . J D 2 0 1 9
 the designation of the persons within the
class or group to whom the property or
money shall be given.
(7) Equality of Heirs
Article 846. Heirs instituted without
designation of shares shall inherit in equal
parts. (765)
Article 848. If the testator should institute his
brothers and sisters, and he has some of full
blood and others of half blood, the inheritance
shall be distributed equally unless a different
intention appears. (770a)
If the testator intended that his heirs should
inherit in unequal proportions, he would have so
stated it.
NCC 846 is referring to heirs of the same class or
juridical condition and to the free portion.
If shares of some heirs are designated while
those of others are not, those parts designated
shall be given to their owners. Balance to be
divided equally among those whose shares are
not designated. BUT if there is no balance, those
whose shares are not designated will inherit
nothing.
(8) Individuality of institution
Article 847. When the testator institutes some
heirs individually and others collectively as
when he says, "I designate as my heirs A and B,
and the children of C," those collectively
designated shall be considered as individually
instituted, unless it clearly appears that the
intention of the testator was otherwise. (769a)
This presumption is based on the fact that there
exists no reason for presuming the contrary if
the testator has not clearly shown such contrary
intention.
 Contrary intention must clearly appear
from the will itself
(9) Simultaneity of institution
Article 849. When the testator calls to the
succession a person and his children they are
all deemed to have been instituted
simultaneously and not successively. (771)
This rule cannot prevail as against a contrary
intention of the testator.
(10) Institution based on a false cause
Article 850. The statement of a false cause for
the institution of an heir shall be considered as
not written, unless it appears from the will
that the testator would not have made such
institution if he had known the falsity of such
cause. (767a)
Requisites must concur:
1. Cause for the institution of heirs must be
stated in the will
2. 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.
GR: Statement of a false cause does not vitiate
the institution because the generosity of the
testator is the real cause of the disposition
Exception: Where it appears from the will that
the testator would not have made the institution
if he had known of the falsity of the cause he has
stated, the institution is avoided by the falsity of
the cause.
Mere statement of a cause contrary to law will
not invalidate an institution, so long as it does
not appear in the will that such illegal cause is
the only motivating factor for the institution.
[Austria v Reyes]
(11) Shares in the institution
Article 851. If the testator has instituted only
one heir, and the institution is limited to an
aliquot part of the inheritance, legal succession
28 | S u c c e s s i o n . J D 2 0 1 9
 takes place with respect to the remainder of
the estate.
The same rule applies if the testator has
instituted several heirs, each being limited to
an aliquot part, and all the parts do not cover
the whole inheritance. (n)
Article 852. If it was the intention of the
testator that the instituted heirs should
become sole heirs to the whole estate, or the
whole free portion, as the case may be, and
each of them has been instituted to an aliquot
part of the inheritance and their aliquot parts
together do not cover the whole inheritance,
or the whole free portion, each part shall be
increased proportionally. (n)
Article 853. If each of the instituted heirs has
been given an aliquot part of the inheritance,
and the parts together exceed the whole
inheritance, or the whole free portion, as the
case may be, each part shall be reduced
proportionally. (n)
NCC 851 applies to cases where the heir/s are
not instituted as the sole heir/s to the whole
disposable estate of the testator.
 Institution is limited to an aliquot part/s
of the estate without covering the entire
inheritance.
The difference between NCC 852 and 851 is that
under the latter provision, the heirs are not
instituted as sole heirs to the entire disposable
estate, while under the present article they are
instituted as the only heirs to the entire
inheritance.
 Under NCC 852, entire estate passes to
the instituted heirs, their shares
proportionally increased by the
distribution among them of the portion
not covered by their aliquot parts.
(12) Predecease of Heirs
Article 856. A voluntary heir who dies before the
testator transmits nothing to his heirs.
A compulsory heir who dies before the
testator, a person incapacitated to succeed,
and one who renounces the inheritance, shall
transmit no right to his own heirs except in
cases expressly provided for in this Code.
(766a)
Based on the general principle that no one can
transmit to another more rights than what he
himself has.
In case of representation, the heir represented
does not transmit his rights to the heir
representing him. The representative acquires
directly from the decedent or testator the rights
which the person represented would have
received if he had inherited.
JBL Reyes: Code recognizes NO exceptions to this
rule.
The law allows representation of a compulsory
heir in the descending line, when such heir dies
before the testator or is incapacitated to succeed.
 Compulsory heir in the ascending line
cannot be represented.
 A voluntary heir cannot be represented.
When a compulsory heir is instituted in a will, he
can be represented with respect to his legitime
only.
 With respect to the free portion given to
him, he is a voluntary heir.
For legal or intestate heirs, there is
representation in the descending line. None in
the ascending line.
 In the collateral line, it takes place only in
favor of nephews and nieces of the
deceased when they survive with siblings
of decedent.
No representation in case of repudiation or
renunciation of the inheritance.
 Any heir, whether compulsory, legal or
voluntary who renounces his inheritance
cannot be represented.
29 | S u c c e s s i o n . J D 2 0 1 9
XII. Substitution of Heirs
(1) Concept of substitution
Article 857. Substitution is the appointment of
another heir so that he may enter into the
inheritance in default of the heir originally
instituted.
Tolentino: Codal definition is deficient. Limited
to cases where the second heir enters into the
inheritance in default of the heir originally
instituted.
In default = first heir does not succeed because of
incapacity or renunciation. This definition does
not embrace the fideicommissary inheritance
More accurate definition: Substitution is the act
by which the testator designates the person or
persons to take the place of the heir or heirs first
instituted.
Right granted to the testator to appoint
substitutes flows from the freedom to make
testamentary dispositions and impose conditions
upon them.
Criticism on Substitution
-could have been dispensed with because an heir
is no longer necessary for the validity of a will
Substitution is merely a second institution,
principles and rules apply except insofar as they
may be modified by the express provisions on
substitution.
 Substitution can only affect that portion
of the inheritance for which an institution
can be made (free portion or entire
estate)
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, or
devisees, or co-legatees.
 A vacant portion of the inheritance goes
to another heir
 In case of conflict between substitute heir
and one entitled to accretion, substitution
is preferred because his right comes from
the express will of the testator
(2) Kinds of Substitution
Article 858. Substitution of heirs may be:
(1) Simple or common;
(2) Brief or compendious;
(3) Reciprocal; or
(4) Fideicommissary. (n)
Classes known before CC:
1. Vulgar – any testator may make for an
heir who may not become such
2. Pupilar – made by the father naming a
substitute for a child under his parental
authority in case the latter should die
before attaining the age for making wills
3. Ejemplar – made by ascendants for
descendants who lacked the required
mental capacity for making wills and died
in such condition
4. Fideicomisaria – testator instituted a
person as heir with the obligation to
transmit the property in whole or in part
to another
5. Brevilocua or compendiosa – combination
of others
6. Reciproca – mutual or reciprocal
substitution of two or more heirs
instituted
Pupilar and ejemplar have been suppressed
because they are out of use and impracticable
There are only two principal classes: simple and
fideicommissary.
a. Simple or Common
Article 859. The testator may designate one or
more persons to substitute the heir or heirs
30 | S u c c e s s i o n . J D 2 0 1 9
 instituted in case such heir or heirs should die
before him, or should not wish, or should be
incapacitated to accept the inheritance.
A simple substitution, without a statement of the
cases to which it refers, shall comprise the three
mentioned in the preceding paragraph, unless the
testator has otherwise provided. (774)
Takes place in three cases:
1. When the heir dies before the testator
2. When he repudiates the inheritance
3. When he is incapacitated to succeed
This is a conditional institution of the substitute;
hence the provisions on conditional institution
are applicable as suppletory law to this
substitution
Extinguishment
1. by nullity of the will
2. by the annulment of the institution of heir
3. by the death of the substitute before the
testator
4. when the substitute himself is
incapacitated to succeed the testator
5. when the substitute repudiates or
renounces the inheritance
Capacity to succeed must be determined not only
at the time of the testator’s death but also when
the condition happens.
b. Brief or Compendious
Article 860. Two or more persons may be
substituted for one; and one person for two or
more heirs.
Brief is used as the equivalent of brevilocua.
Compendious - compendiosa, used
synonymously.
Form of substitution which includes or may
include all kinds of substitutions and all heirs, so
that in a single testamentary provision, more
than one kind of substitution is established for
several heirs.
 form, not class of substitution
Only forms that can be combined are simple and
fideicommissary.
c. Reciprocal
Article 861. If heirs instituted in unequal
shares should be reciprocally substituted, the
substitute shall acquire the share of the heir
who dies, renounces, or is incapacitated,
unless it clearly appears that the intention of
the testator was otherwise. If there are more
than one substitute, they shall have the same
share in the substitution as in the institution.
(779a)
If two persons are reciprocally substitutes for
each other, the one who succeeds gets the share
of the heir who dies before the testator, or is
incapacitated to succeed or renounces his
inheritance
If there are more than one substitute, they shall
have the same shares in the substitution as in the
institution
 based on the presumption that the
testator, having instituted his heirs to
unequal portions, would want them to
share in such unequal proportions also
in the substitution which has been made
reciprocal
 if the portion of one of the heirs should
become vacant by reason of any cause
that would bring about the substitution,
the others divide such vacant share in
proportion to their own shares received
under the will.
d. Fideicommissary
Article 863. A fideicommissary substitution by
virtue of which the fiduciary or first heir instituted
is entrusted with the obligation to preserve and to
transmit to a second heir the whole or part of the
inheritance, shall be valid and shall take effect,
provided such substitution does not go beyond one
degree from the heir originally instituted, and
31 | S u c c e s s i o n . J D 2 0 1 9
provided further, that the fiduciary or first heir and
the second heir are living at the time of the death
of the testator. (781a)
Article 864. A fideicommissary substitution can
never burden the legitime. (782a)
Article 865. Every fideicommissary substitution
must be expressly made in order that it may be
valid.
The fiduciary shall be obliged to deliver the
inheritance to the second heir, without other
deductions than those which arise from legitimate
expenses, credits and improvements, save in the
case where the testator has provided otherwise.
(783)
Article 866. The second heir shall acquire a right
to the succession from the time of the testator's
death, even though he should die before the
fiduciary. The right of the second heir shall pass to
his heirs. (784)
Article 867. The following shall not take effect:
(1) Fideicommissary substitutions which are
not made in an express manner, either by
giving them this name, or imposing upon
the fiduciary the absolute obligation to
deliver the property to a second heir;
(2) Provisions which contain a perpetual
prohibition to alienate, and even a
temporary one, beyond the limit fixed in
article 863;
(3) Those which impose upon the heir the
charge of paying to various persons
successively, beyond the limit prescribed in
article 863, a certain income or pension;
(4) Those which leave to a person the whole or
part of the hereditary property in order
that he may apply or invest the same
according to secret instructions
communicated to him by the testator.
(785a)
Article 868. The nullity of the fideicommissary
substitution does not prejudice the validity of the
institution of the heirs first designated; the
fideicommissary clause shall simply be considered
as not written. (786)
Article 869. A provision whereby the testator
leaves to a person the whole or part of the
inheritance, and to another the usufruct, shall be
valid. If he gives the usufruct to various persons,
not simultaneously, but successively, the
provisions of article 863 shall apply. (787a)
This kind of substitution has been considered
necessary for the prosperity and prestige of the
family, bearing in mind the lack of intelligence,
weakness of character, vanity and prodigality of
the descendants to whom the property may go.
Power to appoint a fideicommissary substitute is
a complement of the freedom of disposition
which gives a powerful stimulus to the
accumulation of wealth, maintaining the
tradition and social standing of the family
Requisites:
1. first heir is called to the succession
2. an obligation clearly imposing upon such
first heir the preservation of the
property and its transmission to the
second heir
3. a second heir to whom the property is
transmitted by the first heir
First heir, the fiduciary, is not a mere
administrator nor an intermediary or agent of
the deceased.
 Recognized as an instituted heir
 no complete identity between the
fiduciary and a usufructuary but is
commonly considered as such – cannot
alienate although has the right to enjoy
the property
 duty to make an inventory not expressed
but present
Fiduciary Trustee
real heir who enters mere agent who
upon the property carries out the wishes
and enjoys it as his of the testator
own, although with without himself
the obligation to enjoying the property
under his care
32 | S u c c e s s i o n . J D 2 0 1 9
 preserve and transmit
it to another
Duty to preserve clearly imposed
 without which, no fideicommissary
substitution
Fideicommissary – second heir to whom the
property is transmitted by the fiduciary
Requisites:
1. must not be beyond one degree from the heir
originally instituted
2. must be living at the time of the death of the
testator
Persons conceived but not yet born at the time of
the testator’s death are considered living.
Degree = generation (in essence, could only be a
child or parent of the first heir)
Fideicommissary substitution is void if the first
heir is not related in the first degree to the
second heir
“Whole or part” = substitution may refer only to
a part of the property to which the first heir is
instituted.
Allowable deductions
Legitimate expenses – refer to those which have
been made for the acquisition and preservation
of the inheritance
Improvements – necessary for the preservation
of the property, or when they constitute such
useful expenses
Amount allowable is not the expense itself but
only the increase in value
Rights of Fideicommissary
Transmitted direct from the testator himself
 succeeds the testator, whose death
creates in his favor a right which the law
must necessarily respect
 If the fiduciary does not acquire the
absolute ownership but only the usufruct
of the inheritance, the naked ownership
must be in another, who is the
fideicommissary
 Upon fideicommissary’s death, he
transmits his right to his heirs in whom
shall consolidate the absolute dominion
upon the death of the fiduciary or until
such time as the latter’s right to the
usufruct terminates
Necessary for fideicommissary to survive the
testator. If he dies before the latter, substitution
is extinguished
NCC 867
(1) No fideicommissary substitution unless
there is an express obligation to preserve and
transmit the property to a second heir
(2) Seeks to prevent the entail of property or its
withdrawal from circulation
(3) Seeks to secure the observance of the
limitations in NCC 863
(4) Intended to avoid the possibility of the
property being applied to purposes prohibited
by the law, or going to incapacitated persons, by
means of secret instructions to the fiduciary.
Tacit fideicomiso – if the sole purpose is that 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
[PCIB v Escolin]
[Palacios v Ramirez]
[Peres v Garchitorena]
[Crisologo v Singson]
[Vda de Kilayko v Tengco]
(3) Time-limitation on inalienability
Article 870. The dispositions of the testator
declaring all or part of the estate inalienable for
more than twenty years are void. (n)
33 | S u c c e s s i o n . J D 2 0 1 9
Purpose: give more impetus to the socialization
of the ownership of property, and to prevent the
perpetuation of large holdings which give rise to
agrarian troubles
Provision limited to inalienability of the property
in the hands of the instituted heir where there is
no fideicommissary substitution.
Where the testator provides for fideicommissary
substitution, the fiduciary or first heir must
preserve the property even if he lives for more
than 20 years after the death of the testator.
Limitation in article does not apply because it
would defeat the substitution.
If fiduciary should die before that period,
property becomes free the moment it passes to
the fideicommissary heir.
Article is ABSOLUTELY inapplicable to
fideicommissary substitution
Fideicomiso – to afford an indirect means of
circumventing the law and transmitting
hereditary property to incapacitated persons
 charge of a confidence, person acting as
an agent of the testator according to the
wishes of the latter in favor of those
persons who may have been designated
 essence of fideicomiso: person is called by
the testator to the succession mortis
causa but he receives the inheritance
through another who has been expressly
designated by the testator for the purpose
Three persons:
1. testator – fideicomitente
2. person charged with the transmission of the
property – fiduciario
3. fideicomisario – person who receives the
property according to the wishes of the testator
- real and only heir, instituted by
deceased
Fideicomiso is either
1. Express - Fideicomisario or heir was expressly
designated
2. Tacit – designation did not appear. Real heir
could be known only through the fiduciary to
whom the testator had left secret instructions
However, in substitution fideicomisaria, there is
a real succession by the first heir in that concept,
to enjoy the property as successor of the
deceased, although with the obligation to
preserve the property and transmit the same to
the substitute
In fideicomiso, the person who first receives the
person who first receives the property is not in
reality an heir, but a mere depositary or agent or
executor of the testator, without any right to
enjoy the property. There is only one disposition
that is in favor of the real heir and there is no
possibility of the property passing through
several hands before reaching the heir
Mayorazgo – right to succeed to the property left
upon the condition that it be preserved
perpetually intact in the family and that it be
transmitted in order of succession to each next
first born.
 This was abolished by the Disentailing
Law, promulgated in Spain on October 11,
1830
34 | S u c c e s s i o n . J D 2 0 1 9
XII. Kinds of Institutions
1. Simple or Pure
Article 777. The rights to the succession are
transmitted from the moment of the death of the
decedent.
2. Conditional
Article 871. The institution of an heir may be made
conditionally, or for a certain purpose or cause.
a. Kinds
b. Inoperative conditions
Article 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.
(813a)
Article 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. (792a)
Article 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 latter's ascendants or descendants.
Nevertheless, the right of usufruct, or an allowance
or some personal prestation may be devised or
bequeathed to any person for the time during which
he or she should remain unmarried or in
widowhood. (793a)
in relation to NCC 1188. The creditor may, before
the fulfillment of the condition, bring the appropriate
actions for the preservation of his right.
The debtor may recover what during the same time
he has paid by mistake in case of a suspensive
condition.
c. Disposicion Captatoria
Article 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. (794a)
d. Compliance
Article 876. Any purely potestative condition
imposed upon an heir must be fulfilled by him as
soon as he learns of the testator's death.
This rule shall not apply when the condition,
already complied with, cannot be fulfilled again.
(795a)
Article 877. If the condition is casual or mixed, it
shall be sufficient if it happen or be fulfilled at any
time before or after the death of the testator, unless
he has provided otherwise.
Should it have existed or should it have been
fulfilled at the time the will was executed and the
testator was unaware thereof, it shall be deemed
as complied with.
If he had knowledge thereof, the condition shall be
considered fulfilled only when it is of such a nature
that it can no longer exist or be complied with
again. (796)
e. Effect
Article 1034. 3rd paragraph:
If the institution, devise or legacy should be
conditional, the time of the compliance with the
condition shall also be considered. (758a)
Article 879. If the potestative condition imposed
upon the heir is negative, or consists in not doing or
not giving something, he shall comply by giving a
security that he will not do or give that which has
been prohibited by the testator, and that in case of
contravention he will return whatever he may have
received, together with its fruits and interests.
(800a)
Article 880. If the heir be instituted under a
suspensive condition or term, the estate shall be
placed under administration until the condition is
fulfilled, or until it becomes certain that it cannot be
fulfilled, or until the arrival of the term.
The same shall be done if the heir does not give
the security required in the preceding article. (801a)
Article 881. The appointment of the administrator
of the estate mentioned in the preceding article, as
well as the manner of the administration and the
rights and obligations of the administrator shall be
governed by the Rules of Court. (804a)
35 | S u c c e s s i o n . J D 2 0 1 9
Article 884. Conditions imposed by the testator
upon the heirs shall be governed by the rules
established for conditional obligations in all matters
not provided for by this Section. (791a)
3. With a term
a. Kinds
Article 885. The designation of the day or time
when the effects of the institution of an heir shall
commence or cease shall be valid.
In both cases, the legal heir shall be considered as
called to the succession until the arrival of the
period or its expiration. But in the first case he shall
not enter into possession of the property until after
having given sufficient security, with the
intervention of the instituted heir. (805)
b. Effect
Article 878. A disposition with a suspensive term
does not prevent the instituted heir from acquiring
his rights and transmitting them to his heirs even
before the arrival of the term. (799a)
4. Modal
Article 882. The statement of the object of the
institution, or the application of the property left by
the testator, or the charge imposed by him, shall
not be considered as a condition unless it appears
that such was his intention.
That which has been left in this manner may be
claimed at once provided that the instituted heir or
his heirs give security for compliance with the
wishes of the testator and for the return of anything
he or they may receive, together with its fruits and
interests, if he or they should disregard this
obligation. (797a)
Article 883. When without the fault of the heir, an
institution referred to in the preceding article cannot
take effect in the exact manner stated by the
testator, it shall be complied with in a manner most
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. (798a)
XIV. Legitime
1. Concept
Article 886. Legitime is that part of the testator's
property which he cannot dispose of because the
law has reserved it for certain heirs who are,
therefore, called compulsory heirs. (806)
2. Who are entitled to legitimes?
Compulsory heirs
Article 887. The following are compulsory heirs:
(1) Legitimate children and descendants, with
respect to their legitimate parents and
ascendants;
(2) In default of the foregoing, legitimate
parents and ascendants, with respect to
their legitimate children and descendants;
(3) The widow or widower;
(4) Acknowledged natural children, and
natural children by legal fiction;
(5) Other illegitimate children referred to in
article 287.
Compulsory heirs mentioned in Nos. 3, 4, and 5 are
not excluded by those in Nos. 1 and 2; neither do
they exclude one another.
In all cases of illegitimate children, their filiation
must be duly proved.
The father or mother of illegitimate children of the
three classes mentioned, shall inherit from them in
the manner and to the extent established by this
Code. (807a)
Article 902. The rights of illegitimate children set
forth in the preceding articles are transmitted upon
their death to their descendants, whether legitimate
or illegitimate. (843a)
3. Concurrence of compulsory heirs and
their corresponding legitimes
Article 888. The legitime of legitimate children and
descendants consists of one-half of the hereditary
estate of the father and of the mother.
The latter may freely dispose of the remaining half,
subject to the rights of illegitimate children and of
the surviving spouse as hereinafter provided.
(808a)
Article 889. The legitime of legitimate parents or
ascendants consists of one-half of the hereditary
estates of their children and descendants.
The children or descendants may freely dispose of
the other half, subject to the rights of illegitimate
36 | S u c c e s s i o n . J D 2 0 1 9
children and of the surviving spouse as hereinafter
provided. (809a)
Article 890. The legitime reserved for the
legitimate parents shall be divided between them
equally; if one of the parents should have died, the
whole shall pass to the survivor.
If the testator leaves neither father nor mother, but
is survived by ascendants of equal degree of the
paternal and maternal lines, the legitime shall be
divided equally between both lines. If the
ascendants should be of different degrees, it shall
pertain entirely to the ones nearest in degree of
either line. (810)
Article 892. If only one legitimate child or
descendant of the deceased survives, the widow or
widower shall be entitled to one-fourth of the
hereditary estate. In case of a legal separation, the
surviving spouse may inherit if it was the deceased
who had given cause for the same.
If there are two or more legitimate children or
descendants, the surviving spouse shall be entitled
to a portion equal to the legitime of each of the
legitimate children or descendants.
In both cases, the legitime of the surviving spouse
shall be taken from the portion that can be freely
disposed of by the testator. (834a)
Article 893. If the testator leaves no legitimate
descendants, but leaves legitimate ascendants, the
surviving spouse shall have a right to one-fourth of
the hereditary estate.
This fourth shall be taken from the free portion of
the estate. (836a)
Article 894. If the testator leaves illegitimate
children, the surviving spouse shall be entitled to
one-third of the hereditary estate of the deceased
and the illegitimate children to another third. The
remaining third shall be at the free disposal of the
testator. (n)
Article 895. The legitime of each of the
acknowledged natural children and each of the
natural children by legal fiction shall consist of one-
half of the legitime of each of the legitimate children
or descendants.
The legitime of an illegitimate child who is neither
an acknowledged natural, nor a natural child by
legal fiction, shall be equal in every case to four-
fifths of the legitime of an acknowledged natural
child.
The legitime of the illegitimate children shall be
taken from the portion of the estate at the free
disposal of the testator, provided that in no case
shall the total legitime of such illegitimate children
exceed that free portion, and that the legitime of the
surviving spouse must first be fully satisfied. (840a)
Article 896. Illegitimate children who may survive
with legitimate parents or ascendants of the
deceased shall be entitled to one-fourth of the
hereditary estate to be taken from the portion at the
free disposal of the testator. (841a)
Article 897. When the widow or widower survives
with legitimate children or descendants, and
acknowledged natural children, or natural children
by legal fiction, such surviving spouse shall be
entitled to a portion equal to the legitime of each of
the legitimate children which must be taken from
that part of the estate which the testator can freely
dispose of. (n)
Article 898. If the widow or widower survives with
legitimate children or descendants, and with
illegitimate children other than acknowledged
natural, or natural children by legal fiction, the
share of the surviving spouse shall be the same as
that provided in the preceding article. (n)
Article 899. When the widow or widower survives
with legitimate parents or ascendants and with
illegitimate children, such surviving spouse shall be
entitled to one-eighth of the hereditary estate of the
deceased which must be taken from the free
portion, and the illegitimate children shall be
entitled to one-fourth of the estate which shall be
taken also from the disposable portion. The testator
may freely dispose of the remaining one-eighth of
the estate. (n)
Article 900. If the only survivor is the widow or
widower, she or he shall be entitled to one-half of
the hereditary estate of the deceased spouse, and
the testator may freely dispose of the other half.
(837a)
If the marriage between the surviving spouse and
the testator was solemnized in articulo mortis, and
the testator died within three months from the time
of the marriage, the legitime of the surviving spouse
as the sole heir shall be one-third of the hereditary
estate, except when they have been living as
37 | S u c c e s s i o n . J D 2 0 1 9
husband and wife for more than five years. In the
latter case, the legitime of the surviving spouse
shall be that specified in the preceding paragraph.
(n)
Article 901. When the testator dies leaving
illegitimate children and no other compulsory heirs,
such illegitimate children shall have a right to one-
half of the hereditary estate of the deceased.
The other half shall be at the free disposal of the
testator. (842a)
Article 39. The following circumstances, among
others, modify or limit capacity to act: age, insanity,
imbecility, the state of being a deaf-mute, penalty,
prodigality, family relations, alienage, absence,
insolvency and trusteeship. The consequences of
these circumstances are governed in this Code,
other codes, the Rules of Court, and in special
laws. Capacity to act is not limited on account of
religious belief or political opinion.
A married woman, twenty-one years of age or over,
is qualified for all acts of civil life, except in cases
specified by law. (n)
4. Restrictions regarding the legitime
Article 904. The testator cannot deprive his
compulsory heirs of their legitime, except in cases
expressly specified by law.
Neither can he impose upon the same any burden,
encumbrance, condition, or substitution of any kind
whatsoever. (813a)
Article 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.
(813a)
Article 905. Every renunciation or compromise as
regards a future legitime between the person owing
it and his compulsory heirs is void, and the latter
may claim the same upon the death of the former;
but they must bring to collation whatever they may
have received by virtue of the renunciation or
compromise. (816)
Article 906. Any compulsory heir to whom the
testator has left by any title less than the legitime
belonging to him may demand that the same be
fully satisfied. (815)
Article 907. Testamentary dispositions that impair
or diminish the legitime of the compulsory heirs
shall be reduced on petition of the same, insofar as
they may be inofficious or excessive. (817)
Article 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. (1271a)
5. Determination or computation
Article 908. To determine the legitime, the value of
the property left at the death of the testator shall be
considered, deducting all debts and charges, which
shall not include those imposed in the will.
To the net value of the hereditary estate, shall be
added the value of all donations by the testator that
are subject to collation, at the time he made them.
(818a)
Article 909. Donations given to children shall be
charged to their legitime.
Donations made to strangers shall be charged to
that part of the estate of which the testator could
have disposed by his last will.
Insofar as they may be inofficious or may exceed
the disposable portion, they shall be reduced
according to the rules established by this Code.
(819a)
Article 910. Donations which an illegitimate child
may have received during the lifetime of his father
or mother, shall be charged to his legitime.
Should they exceed the portion that can be freely
disposed of, they shall be reduced in the manner
prescribed by this Code. (847a)
38 | S u c c e s s i o n . J D 2 0 1 9
Article 911. After the legitime has been determined
in accordance with the three preceding articles, the
reduction shall be made as follows:
(1) Donations shall be respected as long as the
legitime can be covered, reducing or annulling, if
necessary, the devises or legacies made in the will;
(2) The reduction of the devises or legacies shall
be pro rata, without any distinction whatever.
in mind the estimated net value of the donor's
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.
For the reduction of donations the provisions of this
Chapter and of articles 911 and 912 of this Code
shall govern. (654)

If the testator has directed that a certain devise or 6. Freedom to dispose free portion
legacy be paid in preference to others, it shall not Article 914. The testator may devise and bequeath
suffer any reduction until the latter have been the free portion as he may deem fit. (n)
applied in full to the payment of the legitime.

(3) If the devise or legacy consists of a usufruct or

life annuity, whose value may be considered
greater than that of the disposable portion, the
compulsory heirs may choose between complying
with the testamentary provision and delivering to
the devisee or legatee the part of the inheritance of
which the testator could freely dispose. (820a)

Article 912. If the devise subject to reduction

should consist of real property, which cannot be
conveniently divided, it shall go to the devisee if the
reduction does not absorb one-half of its value; and
in a contrary case, to the compulsory heirs; but the
former and the latter shall reimburse each other in
cash for what respectively belongs to them.

The devisee who is entitled to a legitime may retain

the entire property, provided its value does not
exceed that of the disposable portion and of the
share pertaining to him as legitime. (821)

Article 913. If the heirs or devisees do not choose

to avail themselves of the right granted by the
preceding article, any heir or devisee who did not
have such right may exercise it; should the latter
not make use of it, the property shall be sold at
public auction at the instance of any one of the
interested parties. (822)

Article 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. (636)

Article 771. Donations which in accordance with

the provisions of article 752, are inofficious, bearing

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