Wills Finale

legitime (CIVIL CODE, Art. 886).
Exists only in
G ENERAL P ROVISIONS testamentary succession;
ii. Voluntary those who succeed by virtue of
Succession the will of the testator, to the whole or aliquot
A mode of acquisition by virtue of which the part of the disposable free portion of the
property, rights and obligations to the extent of the hereditary estate. Exists only in testamentary
value of the inheritance, of a person are transmitted succession (JURADO, Succession, supra at
through his death to another or others either by his 185); and
will or by operation of law (CIVIL CODE, Art. 774). iii. Legal/Intestate those who succeed by
operation of law when legal or intestate
Basis: succession takes place. They are classified in
1.Theories which base the right of succession two groups:
on the right of private property 1) Those who inherit in their own right; and
If man has the right to own private property, he 2) Those who inherit by right of
has the power to dispose of such property freely, representation.
imposing such licit terms and conditions as he b. Devisees persons to whom gifts of real
may deem convenient. Consequently, he may property are given by virtue of a will (CIVIL
distribute them by means of a testament, since a CODE, Art. 782).
testament is nothing more than an instrument of c. Legatees persons to whom gifts of personal
alienation conditioned upon his death (JURADO, property are given by virtue of a will (CIVIL
Comments and Jurisprudence on Succession CODE, Art. 782).
(2009) p.2) [hereinafter JURADO, Succession].
Heirs v. Devisees or Legatees
This is the basis of testamentary succession. Devisees Or
Heirs
Legatees
2.Theories which base the right of succession Succeed to an Succeed to
on the right of family. indeterminate or aliquot Individual items of
If the family is recognized as the heart and soul of portion property
society, the idea of succession must, therefore, Universal title Particular title
revolve around it. Hence, the basis of succession Succeed by means of a
Succeed by means
rests upon family co-ownership (Id.). will or by operation of
of a will only
law
This is the basis of intestate succession.
3.Ecclectic Theory Exists both on Exists only in case

This theory tries to harmonize the two principles testamentary and of testamentary
individual and social. In either of these principles, intestate succession succession
the basis of succession is the recognized
necessity of perpetuating mans patrimony beyond Note: The distinction between heirs and legatees
the limits of human existence (JURADO, are significant in the following cases:
Succession, supra at 2-3) a.Preterition;
In case of preterition in the testators will of
Elements: one, some, or all of the compulsory heirs in the
I. Subjective Element : direct line, the effect is to annul entirely the
1.Decedent person whose property is transmitted institution of heirs. But legacies and devisees
through succession, whether or not he left a will shall be valid, insofar, as they are not
(CIVIL CODE, Art. 775). inofficious (CIVIL CODE, Art. 854).
a.Testator if he left a will. b.Imperfect disinheritance;
b.Intestate if he left no will. In case of imperfect disinheritance, the effect is
to annul the institution of heirs to the extent that
2.Successors the legitime of the disinherited heir is
a.Heirs those who are called to the whole or to prejudiced. But devises and legacies shall be
an aliquot portion of the inheritance either by will valid insofar as they are not inofficious (CIVIL
or by operation of law (CIVIL CODE, Art. 782). CODE, Art. 918).
i. Compulsory/Forced those who succeed by c. After acquired properties;
force of law to some portion of the inheritance In case of properties acquired by the testator
in an amount predetermined by law known as after the execution of the will, such properties
are not, as a rule, included among the
SAN BEDA COLLEGE OF LAW

2014 CENTRALIZED BAR OPERATIONS 159
properties disposed of, unless it should acquire legal capacity to sue. Heirs can commence
expressly appear in the will itself that such was an action originally pertaining to the decedent
the testators intention. This rule applies only to (Emnace v. CA, G.R. No. 126334, November 23,
legacies and devises and not to the institution 2001).
of heirs (CIVIL CODE, Art. 793).
Death
Illustration: It is the permanent cessation of all bodily functions
Q: X executed a will in 1985. In his will, X gave Y which terminates a persons juridical capacity and
all of his cars. X died in 1995. At the time of capacity to act (Navarro Reviewer, p. 3).
the execution of the will, X had only 2 cars.
Assuming that in 1995 X already has 200 When is a Person considered Dead?
cars, how many cars will Y inherit? 1. Actual or physical death
2. Presumptive death (CIVIL CODE, Arts. 390-391).
A: Y, a legatee, will only get 2 cars because the
remaining cars are after-acquired properties. Determination of the time of death in case of
presumptive death
Distinctions between Voluntary Heirs and General Rule: The time when the absentee died
Devisees or Legatees must be proved in accordance with the ordinary
Voluntary Heirs Devisees/Legatees rules of evidence (JURADO, Succession, supra at
Succeed to an Succeed to 11).
indeterminate or individual items of
aliquot portion property Exceptions:
Universal title Particular title 1.If the death cannot be proved by ordinary rules of
Succeed by means of a will evidence, the absentee is deemed to have died at
Shares are chargeable against the disposable the time of the expiration of the period designated
free portion of the testators estate by law.
Illustration Rules on Ordinary Absence (CIVIL CODE, Art.

Q: X designated A to of his estate. He also 390):
designated to B his car with plate number GVG- a.Ten (10) years if he disappeared at the age of
101. Who is the heir? Who is the legatee? seventy-five (75) or below.
A: A is an heir because he will succeed to an b.Five (5) years if he disappeared after the age
indeterminate portion of the estate ( of Xs of seventy-five (75).
estate). B is a legatee because he will succeed to Note: The death is presumed to have occurred at
a specified property (a car with plate no. GVG- the end of the 10-year or 5-year period.
100).
2.If the absentee disappeared under extraordinary
II. Causal Element: Death circumstances as provided in Art. 391 of the Civil
When Right to Succession is Transmitted Code, he is deemed to have died at or about the
The rights to the succession are transmitted from time when he disappeared (JURADO,
the moment of the death of the decedent (CIVIL Succession, supra at 11- 12).
CODE, Art. 777). This rule applies to both actual and
presumptive death. Rules on Extraordinary Absence:
a.A person on board a vessel lost during a sea
Before Death voyage, or an aeroplane which is missing, who
The testator may validly change the provisions of his has not been heard of for four (4) years since
will or the disposition provided by law on the the loss of the vessel or aeroplane;
persons called in the different orders of succession b.A person in the armed forces who has taken
(JURADO, Succession, supra at 9). part in war, and has been missing for four (4)
years;
After Death c. A person who has been in danger of death
Anyone of the heirs may enter into a contract with under other circumstances and his existence
respect to his share in the inheritance even before has not been known for four (4) years (CIVIL
partition has been effected (JURADO, Succession, CODE, Art. 391).
supra at 89).
Note: The person is presumed to have died at
By virtue of succession, prior settlement of the the time of the disappearance, i.e., at the time
estate is not necessary for any of the heirs to the calamity took place, and not at the end of

160 2014 CENTRALIZED BAR OPERATIONS
four (4) years (JURADO, Succession, supra at validly grant to a licensed physician, surgeon,
12). scientist or any medical or scientific institution, the
authority to detach at any time after his death any
In both cases, the succession is only of organ of his body (JURADO, Succession, supra at
provisional character because there is always 17-18).
the chance that the absentee may still be
alive. 1.All transmissible rights and obligations existing at
the time of decedent's death (CIVIL CODE, Art.
Future Inheritance 776).
Before the death of the decedent, the heirs have
only a mere hope or expectancy, absolutely inchoate Rules for the determination of
in character, to their share in the inheritance Transmissibility/Intransmissibility of Rights or
(JURADO, Succession, supra at 9). Obligations:
a.Rights relative to persons and family or purely
General Rule: No contract may be entered into personal rights are intransmissible;
upon future inheritance except in cases expressly b.General rule: Rights relative to property or
authorized by law (CIVIL CODE, Art. 1347). patrimonial rights are transmissible; and
Exception: Those which are expressly made
Exceptions: intransmissible by operation of law.
1.Donations propter nuptias by the future spouses to c. General rule: Rights arising from obligation or
each other of future property (JURADO, rights of obligation (whether contractual or
Succession, supra at 9). otherwise) are transmissible.
2.Partitions inter vivos made by a person of his Exceptions:
estate among his heirs (CIVIL CODE, Art. 1080). i. Those arising from contracts which by their
very nature are intransmissible;
Effect of Acceptance ii. Those which are expressly made
Once the heir accepts his inheritance and takes intransmissible by agreement of the parties;
possession thereof, his right thereto is deemed to and
retroact to the moment of the decedent's death iii. Those which are expressly made
(JURADO, Succession, supra at 12). intransmissible by operation of law (JURADO,
Succession, supra at 18).
Monetary obligations are excluded in the

Effect of Judicial Settlement inheritance, hence, intransmissible (JURADO,
The fact that the hereditary estate is placed under Succession, supra at 20-21).
administration will not affect the application of Art.
777 (JURADO, Succession, supra at 12). However, Basis: The provisions of the Rules of Court and
an heir cannot compel the administrator to deliver to Jurisprudence, which has its basis on old then
him his respective portion without order of the court Code of Civil Procedure or Act No. 190
(JURADO, Succession, supra at 13). (JURADO, Succession, supra at 20-22).
III. Objective Element: Inheritance Said monetary obligations can only be charged
Inheritance includes: against the estate of the decedent and not
1.All properties existing at the time of the decedent's against his heirs (Pavia v. De La Rosa, G.R. No.
death (CIVIL CODE, Art. 776). L-3083, March 18, 1907).
Restricted Concept of Inheritance The obligations referred to under this rule are
Until a final liquidation is made and all debts left by those contracted by the decedent DURING his
the decedent are fully paid, the right of the heirs to lifetime and not those contracted by his heirs
inherit remains inchoate or is a mere hope or (JURADO, Succession, supra at 21-22).
expectancy. Liquidation is necessary to determine
whether the decedent has left assets which may be Note: The action to claim legitimacy may be
transmitted to his heirs (JURADO, Succession, brought by the child during his/her lifetime and
supra at 5). shall be transmitted to the heirs should the child
die or in a state of insanity (CIVIL CODE, Art.
Note: The mortal remains of the decedent form part 118).
of the inheritance as may be gleaned from R.A. 349,
as amended by R.A. 1056. Thus, a person may

Therefore, where no express provision like that death.
of Article 118 exists, the right of action for the
acknowledgment of a natural child is, in principle It is the objective
and without exception, extinguished by his element of succession.
death, and cannot be transmitted as a portion of
the inheritance of the deceased child (Conde v. Requisites for Succession Mortis Causa
Abaya, G. R. No. 4275, March 23, 1909). 1.Death (actual or presumed) of decedent;
2.Transmissible or descendible rights or properties;
3. All properties and rights which have accrued to and
the hereditary estate since the opening of the 3.Transferee is alive (no predecease), willing (no
succession (CIVIL CODE, Art. 781). repudiation), and capacitated to inherit.
Afteracquired Property
General Rule: Property acquired during the T ESTAMENTARY S UCCESSION
period between the execution of the will and the
death of the testator is not included among the Will
property disposed of. An act whereby a person is permitted, with the
Exception: When a contrary intention expressly formalities prescribed by law, to control to a certain
appears in the will (CIVIL CODE, Art. 793). degree the disposition of his estate, to take effect
after his death (CIVIL CODE, Art. 783).
Note: This rule applies only to legacies and
devises and not to institution of heirs (JURADO, Kinds:
Succession, supra at 36). 1.Notarial or Ordinary; and
2. Holographic.
Reason: It does not apply to the heirs because
the heirs inherit everything at the time of the
Characteristics (UPV-FIRM):
testators death. The time of death is the
1.Unilateral does not need the approval of any
determining point of the properties which the
other person.
heirs will inherit, not the making of the will.
2.Strictly Personal act 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 (CIVIL CODE, Art. 784).
The following are not part of the estate:
However, the fact that the will was typewritten in
1.Instransmissible personal rights (i.e. action for
the office of a lawyer is of no consequence
legal separation and parental authority) (Conde v.
(Castaneda v. Alemany, G.R. No. 1439, March 19,
Abaya, G. R. No. 4275, March 23, 1909)
1904).
2.Right to hold public or private office or job (Hu Niu
v. Collector of Customs, G.R. No. L-12379, March
Acts which may not be left to the discretion of
14, 1917)
a third person:
a.Duration of the designation of heirs, devisees or
Kinds of Succession:
legatees (CIVIL CODE, Art. 785);
1.Testamentary or Testacy by will (CIVIL CODE,
b.Efficacy of the designation of heirs, devisees or
Art.779);
legatees (CIVIL CODE, Art. 785);
2.Legal or Intestacy by operation of law based on
c. Determination of the portions which they are to
the decedents presumed will (CIVIL CODE,
take, when referred to by name (CIVIL CODE,
Art.960); and
Art. 785); and
3.Mixed partly testamentary and partly legal
d.Determination of whether or not the
(CIVIL CODE, Art.780)
testamentary disposition is to be operative
(CIVIL CODE, Art. 787).
Succession v. Inheritance
Succession Inheritance Reason: Those acts are testamentary in
Refers to the character. While the act determining whether a
Refers to the legal universality of all the testamentary disposition is to be operative or not
mode by which property, rights and is not exactly testamentary in character, it is
inheritance is obligations of a nonetheless prohibited because it would
transmitted to the decedent which are not tantamount to allowing a third person substitute
persons entitled to it. extinguished by his

the will of the testator for his own (Jurado, uphold the will in all its parts shall be adopted,
Succession, 2009 ed., p. 32). provided that it can be done consistently with the
established rules of law (CIVIL LAW, Art. 788).
Illustration:
Q: X declared in his will I hereby make the Reason: Testamentary succession is preferred over
children of Hospicio de San Jose as my legal heirs intestacy.
and declare my lawyer to determine the amount
which they are to receive. Is the provision valid? Rule on Mistakes and Omission
A: No. Art. 785 will apply because the heirs were 1.When there is an imperfect description or when no
referred to by name. Furthermore, the amount was person or property exactly answers the
not specified by the testator. It is the lawyer who description, the mistake or omission must be
determines the amount. corrected by ascertaining the testatorial intention
using either intrinsic or extrinsic evidence, or both.
Acts which may be entrusted to a third person: 2.When there is uncertainty on the face of the will as
a.Distribution of specific property or sums of to the application of any of its provision, the
money that the decedent may leave in general testatorial intention is to be ascertained from the
to specified classes or causes; and context of the will and the circumstances under
b.Designation of the persons, institutions or which it was made.
establishments to which such property or sums
are to be given or applied (CIVIL CODE, Art. In both instances, the oral declarations of the
786). testator as to his intentions are to be excluded
(JURADO, Succession, supra at 9).
3.Free and Voluntary act any vice affecting the
testamentary freedom can cause the disallowance Kinds of Ambiguities:
of the will. 1.Patent or extrinsic ambiguities those which
4.Formal and solemn act the formalities are appear on the face of the will itself.
essential for the validity of the will. 2.Latent or intrinsic ambiguities those which do not
5.Individual act Two or more persons cannot appear on the face of the will and is discovered
make a single joint will, either for their reciprocal only by extrinsic evidence (PARAS, Civil Code,
benefit or for another person. However, separate supra at 49-50).
or individually executed wills, although containing
reciprocal provisions (mutual wills), are not General Rule: Intrinsic or extrinsic evidence may be
prohibited, subject to the rule on disposicion used to ascertain the intention of the testator.
captatoria. Exception: The oral declarations of the testator as
6.Ambulatory and Revocable during the to his intentions must be excluded (CIVIL CODE,
testators lifetime the testator can alter, revise Art. 789).
or revoke it at any time before his death.
7.Act Mortis causa takes effect only after the Law Governing Form of Wills
death of the testator. The validity of a will as to its form depends upon the
observance of the law in force at the time it is made
Note: The act of making a will is not a natural right, (CIVIL CODE, Art. 795).
but a statutory right, because not all persons are
qualified to make a will (Navarro Reviewer, p. 7). Effects of a New Law changing the Formalities of
a Will
1.Before the death of the testator but after the
I NTERPRETATION OF W ILLS execution of the will, the rules have no effect
All rules of construction are designed to ascertain Exception: When a retroactive effect is expressly
and give effect to the intention of the testator. It is declared by the statute itself or is necessarily
only when the intention of the testator is contrary to implied from the language used therein (CIVIL
law, morals, or public policy that it cannot be given CODE, Art. 4).
effect.
2.After the death of the testator, the rules have no
Dispositions Susceptible of Different effect because the heirs already have a vested
Interpretations right (JURADO, Succession, supra at 38).
In case of doubt, that interpretation by which the
disposition is to be operative or will sustain and
T ESTAMENTARY C APACITY
The burden of proving sanity is cast upon the
proponents of the will when:
a.The testator, one month or less, before making
Who can make a Will his will, was publicly known to be insane;
All persons who are not expressly prohibited by law b.He was under guardianship at the time of
may make a will (CIVIL CODE, Art. 796). making his will; or
c. If the testator made the will after he had been
A convict under civil interdiction is allowed to make a judicially declared to be insane and before such
will because civil interdiction prohibits a disposition judicial order has been set aside (Torres and
of property inter vivos, not mortis causa (REVISED Lopez de Bueno v. Lopez, G.R. No. L-25966,
PENAL CODE, Art. 34). November 1, 1926).
Spendthrifts or prodigals, even if under 3.Must not be expressly prohibited by law (CIVIL
guardianship, can make a will provided they are at CODE, Art. 796) (PARAS, Civil Code, supra at
least 18 years old and are of sound mind (PARAS, 76).
Civil Code, supra at 73).
Testamentary Capacity v. Testamentary Power
The ability as well as the power to make a will must Testamentary Testamentary Power
be present at the time of the execution of the will Capacity
(CIVIL CODE, Art. 798). Refers to the privilege
Refers to the ability as granted to the testator
Supervening incapacity does not invalidate an well as the power to to designate the person
effective will, nor is the will of an incapable validated make a will. or persons who are to
by the supervening of capacity (CIVIL CODE, Art. succeed him in his
801). inheritance.
Requisites of Testamentary Capacity: Circumstances which do not affect testamentary

1.At least eighteen (18) years of age (CIVIL CODE, capacity: (CPIAO)
Art. 797); 1.Civil Interdiction;
A person is said to have reached the age required 2.Prodigality;
age at the commencement of the day preceding 3.Insolvency;
his birthday (JURADO, Succession, supra at 40). 4.Alienage; and
5.Others of similar nature (JURADO, Succession,
2.Of sound mind (CIVIL CODE, Art. 798); and supra at 39-40).
It is not necessary that the testator be in full
possession of all his reasoning faculties, or that Effect of certain infirmities
his mind be wholly unbroken, unimpaired, or 1.Old Age
unshattered by disease, injury or other cause. It Mere senility or infirmity of old age does not
shall be sufficient if at the time of making the will, necessarily imply that a person lacks testamentary
he knows: (NOC) capacity.
a.The Nature of the estate to be disposed of
(character, ownership of what he is giving); Senile Dementia
b.The proper Objects of his bounty (by persons It is the peculiar decay of the mental faculties
who for some reason expect to inherit whereby the person afflicted is reduced to second
something from him like his children), and childhood
c. The Character of the testamentary act (that it is
really a will, that it is a disposition mortis causa, It is senile dementia and not senility that produces
that it is essentially revocable) (CIVIL CODE, testamentary incapacity (JURADO, Succession,
Art. 799). supra at 46).
Presumption of Sound Mind 2.Infirmity or Disease

The law presumes that the testator is of sound Physical infirmity or disease is not inconsistent
mind. Thus, the burden of proof that the testator with testamentary capacity.
was not of sound mind at the time of making his
disposition is on the person who opposes the Exception: In case the testator, at the time of the
probate of the will (CIVIL CODE, Art. 800). execution of the will, is already in comatose or
semi-comatose condition (JURADO, Succession,
Inversion of Presumption supra at 47).

3.Mental Disease or Insanity Objects of Formalities of wills
There may be mental incapacity to make a will 1.To close the door against bad faith and fraud;
without actual insanity. 2.To avoid substitution of wills and testaments; and
3.To guarantee their truth and authenticity
Persons suffering from idiocy (those congenitally (JURADO, Succession, supra at 52).
deficient in intellect), and imbecility (those who are
mentally deficient as a result of disease) do not So when an interpretation already given assures
possess the necessary mental capacity to make a such ends, any other interpretation whatsoever, that
will (JURADO, Succession, supra at 48). adds nothing but demands more requisites entirely
unnecessary, useless and frustrative of testators
4.Mental Delusion will, must be disregarded (Abangan v. Abangan,
An insane delusion which will render one G.R. No. L-13431, November 12, 1919).
incapable of making a will may be defined as a
belief in things which do not exist, and which no Common Formalities of a Will
rational mind would believe to exist. 1.Will must be in writing (CIVIL CODE, Art. 804);
and
To justify the setting aside of a will, it must be
shown that the will was the product or offspring of If the will is ordinary, it does not matter on what
the delusion, or at least, that it was influenced by material it is written. It may be written by hand or
the delusion (JURADO, Succession, supra at 49). typewritten, or printed from plates or type.
5.Belief in Supernatural Article 810 provides that in the case of holographic

Belief in spiritualism is not in itself sufficient wills, it must be written entirely in the handwriting
evidence of testamentary incapacity. of the testator himself. It is only in the case of
ordinary wills that whoever performs the
However, a will executed by one under such an mechanical act of writing or drafting the will
extraordinary belief in spiritualism that he follows becomes a matter of indifference (Castaeda v.
blindly and implicitly supposed directions of spirits Alemany, G.R. No. 1439, March 19, 1904).
in constructing the will is not admissible to probate
(JURADO, Succession, supra at 49-50). 2.Executed in a language or dialect known to the
testator (CIVIL CODE, Art. 804).
6.Drunkenness
General Rule: The admission of a will to probate Testators knowledge or understanding of the
will not be denied merely on proof that the testator language/dialect need not be expressly stated
was addicted to the excessive use of alcoholic either in the body of the will or in the attestation
liquors or drugs. clause (JURADO, Succession, supra at 53).
Exception: If at the time of the making of the will, Special Formalities

the testator was so much under the influence of
the intoxicants or drugs as to be unable to bring to I. Notarial or Ordinary Will (CIVIL CODE, Art. 805):
the business at hand the calm judgment which the (SAM-PAA)
law requires of a testator ((JURADO, Succession, 1. Subscription: The manual act by the testator and
supra at 50). his instrumental witnesses of affixing their
signature to the instrument (JURADO,
7.Deaf-mute and Blind Person can make a will Succession, supra at 55).
(CIVIL CODE, Art. 807-808).
Signature a sign, token or emblem, and what
that shall be, depends upon the custom of the time
F ORMALITY OF W ILLS and place, and on the habit and whim of
individuals (Navarro Reviewer, p. 21).
Kinds of Wills Purposes:
1.Ordinary or notarial will that which requires, a.Identify the testator; and
among other things, an attestation clause, and b.Authenticate the document
acknowledgment.
2.Holograph or holographic will that which is How Subscribed
entirely written, dated, and signed by the hand of Forms:
the testator himself.

1. Subscription by Testator
i. Manner of Signing End of Will
A sufficient signature to a will depends largely Refers to the logical end, which is the point
on the custom of the time and place, the habit where the testamentary dispositions terminate
of the individual, and the circumstances of (TOLENTINO, Civil Code of the Philippines
each particular case, but it should be manifest Annotated (2013) p. 70) [herein after
that whatever is used is actually intended as TOLENTINO, Civil Code]. Thus if a will starts on
a signature (JURADO, Succession, supra at the 1st page, continues on the 3rd page, but is
55). concluded on the 2nd page, the latter is the
logical end (PARAS, Civil Code, supra at 87).
Note: A complete signature is not essential to
the validity of a will. Note: If the testators first name appears, without
the surname, the will is valid (Yap Tua v. Yap Ca
ii. Signature by Mark Kuan, G.R. No. 6845, September 1, 1914). The
Any mark or combination of marks placed on will remains valid even though the testators
a will by the testator is a sufficient compliance, name is misspelled, abbreviated, or is indicated
even if at the time of placing it, the testator only by nickname, or by Father or Mother, or
knew how to write and is able to do so in an assumed name, provided the testator
(JURADO, Succession, supra at 56). intended the same to be his signature (PARAS,
Civil Code, supra at 88).
If the signature is only a mere cross, it is
acceptable as a valid signature, provided it Purposes:
can be properly established that it is the a.To show that the testamentary purpose therein
testators usual signature or at least one of the expressed is completed;
ways by which he had signed his name before b.To prevent any opportunity for fraud or
(Garcia v. Lacuesta, G.R. No. L-4067, interpolations between the written matter and
November 29, 1951). signature; and
c. The position of the signature is an internal
If writing a mark is sufficient indication of an evidence of finality or completion of intent.
intention to make a will then writing a portion
of all of her name is accepted as a clear 2. Attestation and subscription
indication of her intention. In this case the
decedent used her first name "Tomasa" (Yap Attestation
Tua v. Yap Ca Kuan, G.R. No. 6845, The act of three or more credible witnesses of
September 1, 1914). witnessing the execution of the will in the
presence of the testator and of one another in
2. Signature by another order to see and take note mentally that such will
Requisites: has been executed in accordance with the
i. It is the testators name that must have requirements prescribed by law. Strictly speaking,
been written by the third person; it is the act of the witnesses and not that of the
ii. The testators name must have been testator (JURADO, Succession, supra at 59-60).
written in his presence;
iii. The third person must have affixed the Purposes of Requiring Witness to Attest and
testators name at his express direction; to Subscribe to a Will: (PIPA)
iv. This fact should be stated in the attestation a.Protection of the testator from fraud and
clause; and deception;
v. It should take place in the presence of the b.Identification of the instrument;
instrumental witnesses (JURADO, c. To render available Proof during probate
Succession, supra at 57). proceedings that the will has been executed in
accordance with the requirements prescribed
Note: Neither the notary nor any of the by law and that the instrument offered for
attesting witnesses can sign in behalf of the probate is authentic; and
testator. d.The Ascertainment of the testamentary
capacity of the testator (JURADO, Succession,
Place of signature (either by the testator or by supra at 60-61).
another): End of the will, otherwise, void Note: If the required number of attesting witness
(PARAS, Civil Code of the Philippines Annotated is competent, the fact that an additional witness,
(2013), p. 87) [herein after PARAS, Civil Code].

who was incompetent also attested to the will, Test of Presence
cannot impair the validity. Not whether they actually saw each other sign, but
whether they might have seen each other sign had
Attestation v. Subscription they chosen to do so considering their mental and
Attestation Subscription physical condition and position with relation to
each other at the moment of inscription of each
An act of the senses An act of the hand signature (Neyra v. Neyra, G.R. No. 8075, March
Mental act Mechanical act 25, 1946).
Purpose is to render Order of signing
available proof during As long as the signing is done within the presence
probate of will, not only
Purpose is identification of one another, it really does not matter much
of the authenticity of the whether the witnesses signed ahead of or after the
will, but also of its due testator as long as the signing is sufficiently
execution contemporaneous (Gabriel v. Mateo, G.R. No. L-
Attestation clause may 26545, December 16, 1927).
be placed at the Subscription must
beginning of the will. always be at the logical 3. Marginal Signatures
Placing it at the end is end of the will.
only for convenience. General Rule: The testator or the person
requested by him to write his name and the
Order of signing instrumental witnesses must affix their signature
Two views: on the left margin of each and every page of the
Minority View: Until the testator signs, there is will. This requirement is mandatory (JURADO,
nothing to attest, since it is evident that the Succession, supra at 67).
signature of the testator is the principal, if not only
matter, to which the attestation contemplated by Exceptions:
law applies (JURADO, Succession, supra at 60). a. In the last page, when the will consists of
two or more pages;
Majority View: Where the execution of the will by b. When the will consists of only one page;
the testator and the signing of the same by the and
subscribing witnesses constitute one continuous c. When the will consists of two pages, the first
transaction, the signing by each, taking place in of which contains all the testamentary
the presence of the others, the will is valid, even if dispositions and is signed at the bottom by the
the subscribing witnesses sign their names before testator and the witnesses, and the second
the testator does (JURADO, Succession, supra at contains only the attestation clause duly signed
61). at the bottom by the witnesses (Abangan v.
Abangan, G.R. No. L-13431, November 12,
Meaning of In The Presence 1919).
The execution of a will cannot be legally effective
if the various participants signed on various days The inadvertent failure of one witness to affix his
or occasions and in various combinations of those signature to one page of a testament, due to the
present (Andalis v. Pulgueras, G.R. No. L-39209, simultaneous lifting of two pages in the course of
March 10, 1934). signing, is not per se sufficient to justify denial of
probate (Icasiano v. Icasiano, G.R. No. L-18979,
The phrase does not necessarily require actually June 30, 1964).
seeing, but possibility of seeing without any
physical obstruction (Jaboneta v. Gustilo, G.R. Note: This case must be applied only to cases
No. 1641, January 19, 1906). with similar facts. In Icasiano v. Icasiano, that the
failure of the witness to sign one page was entirely
When a person merely has his back turned, the through oversight was shown by his own
signing is done in his presence since he could testimony as well as by the duplicate copy of the
have cast his eyes in the proper direction (Id.). will, which was submitted to the court and which
In case the testator is blind, the presence may be bore a complete set of signatures in every page.
complied with if the signing or action is within the
range of the other senses like hearing, touch, etc., Location of Marginal Signatures
of the testator (PARAS, Civil Code, supra at 89). Not mandatory in character, provided that such
signatures are present in every page of the will,

except the last. The words left margin are merely But if the number of pages is not stated in any
directory (Avera v. Garcia, G.R. No. 15566, part of the will, and the will does not contain any
September 14, 1921). notarial acknowledgment wherein the number of
pages of the will should be stated, the Taboada
4. Page Numberings v. Rosal is not applicable (Azuela v. CA, et al,
These are written correlatively in letters placed on G.R. No. 122880, April 12, 2006).
the upper part of each page.
b. The fact that the testator signed the will and
This is not necessary when the will is written on every page thereof, or caused some other
one sheet only. person to write his name, under his express
direction, in the presence of the instrumental
The requirement that the pages of the will shall be witnesses (CIVIL CODE, Art. 805); and
numbered is the one mandatory and not the
requirement that it should numbered correlatively c. That the witnesses witnessed and signed
by letters. Thus, the pages may be numbered by the will and all the pages thereof in the presence
mere alphabetical letters, or by Arabic Numerals, of the testator and of one another (CIVIL CODE,
or by any form of identification Art. 805).
Substantial compliance with the statutory Note: Absence of this clause will render the will a
requirement is sufficient (JURADO, Succession, nullity (JURADO, Succession, supra at 74).
supra at 73).
The attestation clause need not be written in a
Purpose: To forestall any attempt to suppress or language or dialect known to the testator nor to
substitute any of the pages of the will. the attesting witnesses since it does not form part
of the testamentary disposition (JURADO,
5. Attestation Clause (AC) Succession, supra at 91).
Memorandum or record of facts wherein the
witnesses certify that the will has been executed The law refers to page and not to sheet or leaf or
before them, and that it has been executed in folio, so every page used in the will should be
accordance with the formalities prescribed by law signed on the left margin (Navarro Reviewer, p.
(JURADO, Succession, supra at 74). 25).
Note: It must be signed by the witnesses, not by
the testator (Id.). Effects of defects or imperfections in the
Attestation Clause:
Purpose: It is made for the purpose of
preserving in a permanent form a record of the General Rule: The will shall be invalidated if the
facts that attended the execution of a particular defect of the attestation clause is substantial in
will, so that in case of failure of the memory of the character. The defect is substantial when it:
attesting witnesses, or other casualty, such facts a. Goes into the very essence of the clause
may still be proved (Caeda v. CA, G.R. No. itself; or
103554, May 28, 1993). b. Consists in the omission of one, some, or all
of the essential facts which must be stated in
Contents: such clause, and such omission cannot be
a. The number of pages used (CIVIL CODE, cured by an examination of the will itself
Art. 805); (JURADO, Succession, supra at 76).
General Rule: The failure to state the number of
pages on which the will was written in the Exception: Doctrine of Liberal Interpretation
attestation clause is a fatal flaw (JURADO,
Succession, supra at 91). Requisites:
a.Defects and imperfections must be in the form of
Exception: There is substantial compliance with the attestation or in the language used therein;
the requirement if the will states elsewhere in it b.There must be no bad faith, forgery, fraud, or
how many pages it is comprised of, such as undue and improper pressure and influence, in
when the acknowledgement itself states the the execution of the attestation clause (CIVIL
same (Taboada v. Rosal, G.R. No. L-36033 CODE, Art. 809); and
November 5, 1982). c. It must be proved that the will was in fact
executed and attested in substantial compliance

with all the requirements of Art. 805 (JURADO,
Succession, supra at 78). 1. Date of Will
a. Ordinary will: NOT an essential part
Liberal Interpretation (Navarro Reviewer, p. 28);
Interpretation according to what the reader Reason: It would still be dated in its notarial
believes the author reasonably intended, even if, acknowledgment.
through inadvertence, the author failed to think of Conflict between the dates appearing on the will
it (Blacks Law Dictionary). does not invalidate the document because the law
does not even require that a notarial will be
Evidence aliunde is not allowed to fill a void in any executed and acknowledged on the same
part of the document or supply missing details (Gil occasion (Ortega v. Valmonte, G.R. No. 157451,
v. Murciano, G.R. No. L-3362, March 1, 1951). December 16, 2005).
It may thus be stated that the rule, as it now b. Holographic Will: an essential part (Id.).
stands, is that omissions which can be supplied by Reason: The testator may make more than one
an examination of the will itself, without the need will and it may happen that the testator was
of resorting to extrinsic evidence, will not be fatal incapacitated during the execution of the first will
and, correspondingly, would not obstruct the and capacitated during the execution of the
allowance to probate of the will being assailed. second will.
However, those omissions which cannot be
supplied except by evidence aliunde would result Note: Failure or error to state the place of
in the invalidation of the attestation clause and execution will not invalidate the will.
ultimately, of the will itself (Caeda v. CA, G.R.
No. 103554, May 28, 1993). 2.Additional requirements for special cases
6.Notarial Acknowledgment a.Deaf or DeafMute Testator

Done before a notary public by the testator and i. Personal reading of the will, if able to do so; or
the instrumental witnesses (JURADO, ii. If not possible, designation of two (2) persons
Succession, supra at 79). to read the will and communicate to him, in
some practicable manner, the contents thereof
A notarial will that is not acknowledged before a (CIVIL CODE, Art. 807).
notary public by the testator and the witnesses is
fatally defective, even if it is subscribed and sworn In a case where the testator did not read the
to before the notary public (Azuela v. CA, G.R. final draft of the will, but the lawyer who drafted
No. 122880, April 12, 2006). the document read the same aloud in the
presence of the testator, three (3) witnesses,
The notary public before whom the will was and notary public, the Court held that the formal
acknowledged cannot be considered as the third imperfections should be brushed aside when the
instrumental witness since he cannot spirit behind the law was served though the
acknowledge before himself his having signed the letter was not (Alvarado v. Gaviola, G.R. No.
will (Cruz v. Villasor, G.R. No. L-32213, November 74695, September 14, 1993).
26, 1973).
b.Blind Testator
An acknowledgement taken outside the territorial Doublereading requirement:
limits of the officers jurisdiction is void as if the i. First, by one of the subscribing witnesses; and
person taking it were wholly without official ii. Second, by the notary public before whom the
character (Guerrero v. Bihis, G.R. No. 174144. will is acknowledged (CIVIL CODE, Art. 808).
April 17, 2007).
Article 808 applies not only to blind testators but
Signing of a will by the testator and witnesses and also to those who, for one reason or another are
acknowledgment before a notary public, need not incapable of reading their wills (e.g. poor,
be a single act (Navarro Reviewer, p. 29). defective or blurred vision).
Testamentary capacity must also exist at the time Note: The reading of the notary public cannot be
of acknowledgment (Id.). dispensed with notwithstanding that the will may
have been read three times already by the
Additional Pointers on Formalities of Notarial or witnesses to the blind testator.
Ordinary Will

3.Witness to Notarial Wills The competency of a witness to a will is to be
Requirements: determined as of the time of the execution of the
a. Of sound mind (CIVIL CODE, Arts. 820); instrument, and not as of the time when the will is
b. At least eighteen (18) years of age (CIVIL presented for probate (CIVIL CODE, Art. 822).
CODE, Arts. 820);
c. Not blind, deaf or dumb (CIVIL CODE, Arts. II. Holographic Will
820); It is subject to no other form, and may be made in or
d. Able to read and write (CIVIL CODE, Arts. out of the Philippines, and need not be witnessed
820); (CIVIL CODE, Art. 810).
e. Domiciled in the Philippines (CIVIL CODE,
Arts. 821); and The Doctrines of Liberal Interpretation and
f. Has not been convicted of falsification of a Substantial Compliance as applied to ordinary or
document, perjury, or false testimony (CIVIL notarial wills cannot be applied to holographic wills
CODE, Arts. 821). (JURADO, Succession, supra at 94).
Note: A witness need not know the contents of the Reason: No attestation clause.
will, and need not be shown to have had a good
standing in the community where he lives Purposes:
(JURADO, Succession, supra at 110). 1. Safeguard the authenticity of the will, and
2. Deter or prevent any possible insertion or
Interested Witness interpolation by others or any possible forgery
A person attesting the execution of a will to whom (Id).
or to whose spouse, parent, or child, a devise or
legacy is given (CIVIL CODE, Art.823). Formalities: (WDSL)
1.Entirely Written by the Hand of the Testator
Effects:
a.He shall be admitted as a witness; but Effects of Insertions or Interpolations by Third
b.The devise or legacy, so far only as concerns Persons:
him, his spouse, parent or child, or any one a. Made after the execution of the will without
claiming under any of them, shall be void, the consent of the testator insertion is
unless there are three other competent considered as not written.
witnesses to such will (CIVIL CODE, Art.823).
Reason: The validity of the will cannot be
Credible Witness defeated by the malice or caprice of third
It means competent witness, that is, such person persons.
as are not legally disqualified from testifying in
courts of justice by reason of mental incapacity, b. Made after the execution of the will with the
interest, or the commission of crimes, or other consent of the testator will remains valid but
causes excluding them from testifying generally the insertion is void.
Note: In the case of Kalaw v. Relova (G.R. No. L-
Creditor Witness 40207, September 28, 1984), the holographic will
A mere charge on the estate of the testator for the in dispute had only one substantial provision,
payment of debts due at the time of the testators which was altered by substituting the original heir
death does not prevent his creditors from being with another, but which alteration did not carry the
competent witnesses to his will (CIVIL CODE, Art. requisite of full authentication by the full signature
824). of the testator. The effect must be that the entire
will is voided or revoked for the simple reason that
Note: a person who is qualified to make a will is nothing remains in the will after that which could
not necessarily qualified to be a witness to the will remain valid.
of another (JURADO, Succession, supra at 113).
c. Made after the execution of the will, and the
Effect of subsequent incompetency insertion is validated by the testator by his
If the witnesses attesting the execution of a will signature thereon will is void.
are competent at the time of attesting, their
becoming subsequently incompetent shall not Reason: The insertion becomes part of the will,
prevent the allowance of the will. thus, the will becomes void for non-compliance

with the requirement that it must be entirely Exception: In case of any insertion, cancellation,
written by the hand of the testator. erasure or alteration in a holographic will, the
testator must authenticate the same by his FULL
d. Made contemporaneous to the execution of SIGNATURE (CIVIL CODE, Art. 814).
the will will is void.
4.Executed in a Language or Dialect known to
Reason: Will is not entirely written by the the Testator
hand of the testator (JURADO, Succession,
supra at 94-95). Additional Pointers on Holographic Will
Rules in Case of Subsequent Dispositions: 1.Probate of Holographic Will (CIVIL CODE, Art.
a. Several dispositions were signed but not 811):
dated, and the last disposition has a signature
and date valid. General Rule: The original of the holographic will
The date on the last disposition validates the should be presented to the probate court for visual
dispositions preceding it, whatever be the time examination. The law, considering the special
of prior dispositions. This gives rise to the nature of holographic wills as well as the special
presumption that all the dispositions were made requirements for their probate, regards the
simultaneously (CIVIL CODE, Art. 813). document itself as material proof of authenticity
b. Several dispositions were not signed and (JURADO, Succession, supra at 98).
not dated, but the last disposition has a
signature and date valid. Exception: A photostatic or xerox copy of a lost or
Also gives rise to the presumption that all the destroyed holographic will may be admitted. The
dispositions were made simultaneously. authenticity of the handwriting of the deceased
c. Several dispositions were not signed but can be determined by the probate court, as
dated, and the last disposition has a signature comparison can be made with the standard
and date void. writings of the testator (Gan v. Yap, G.R. No. L-
The presence of the date renders the will void 12190, August 30, 1958; Rodelas v. Aranza, G.R.
on separate dates and not in its entirety. Only No. L-58509, December 7, 1982).
the last disposition is valid.
d. Signed but not dated void, but does not 2.Witnesses
affect the validity of the other dispositions or the a. If uncontested, it shall be necessary that at
will itself. least one (1) witness who knows the handwriting
2.Entirely Dated by the Hand of the Testator; and signature of the testator explicitly declare
that the will and signature are in the handwriting
Date of the testator (CIVIL CODE, Art. 811).
The date in a holographic will should include the b. If contested, at least three (3) of such
day, month, and year of its execution (Roxas v. De witnesses shall be required (CIVIL CODE, Art.
Jesus, Jr., G.R. 38338, January 28, 1985). 811).
c. In the absence of any competent witness,
Note: When there is no appearance of fraud, bad and if the court deems it necessary, expert
faith, undue influence and pressure, and the testimony may be resorted to (CIVIL CODE, Art.
authenticity of the will is established, and the only 811).
issue is whether or not the date FEB. 1961
appearing on the will is a valid compliance with Note: In one case, the Supreme Court held that
Art. 810, probate of the holographic will should be the provisions of Art. 811 are mandatory. Thus, the
allowed under the principle of substantial production of three witnesses, in case the will is
compliance (In the matter of Intestate Estate of contested, cannot be dispensed with (Codoy v.
Andres de Jesus and Bibiana Roxas de Jesus, Calugay, G.R. No. 123486, August 12, 1999).
G.R. No. L-38338, January 28, 1985).
In the meanwhile, in the case of Rivera v. IAC, the
3.Entirely Signed by the Hand of the Testator; Supreme Court ruled that the opposition was filed
and by a mere stranger who had no personality to
contest the wills. Thus, his opposition thereto did
Signature not have the legal effect of requiring the three
General Rule: Art. 810 does not require that the witnesses (G.R. Nos. 75005-06, February 15,
testator must sign the will with his full signature. 1990).

Matters to be Proved by the Testimony of the 1.Mutual wills executed pursuant to an agreement
Witness between two or more persons to dispose of their
1.He knows the handwriting of the testator; property in a particular manner, each in
2.The will is in the handwriting of the testator; and consideration of the other (Id.).
3. The signature is in the handwriting of the 2.Reciprocal wills the testators name each other
testator (CIVIL CODE, Art. 811). as beneficiaries under similar testamentary plans
(Id.).
GOVERNING LAW ON FORMALITIES Note: Mutual or reciprocal wills are NOT prohibited
1.As to Time: provided they are contained in separate instruments.
a.The validity of a will as to its form depends upon The prohibition under Art. 818 is the execution of a
the observance of the law in force at the time it joint will or a will contained in the SAME instrument,
is made. (CIVIL CODE, Art. 795) either for reciprocal benefit or for the benefit of a
b.Its intrinsic validity, however, is judged at the third person (Id.).
time of the decedents death by the law of his
nationality. Reasons:
2.As to Place (CIVIL CODE, Arts. 815 817): 1.A will is a purely personal and unilateral act.
The formal validity of a will shall be governed by 2.Contrary to the revocable character of a will.
the law of the country in which it was executed 3.May expose the testator to undue influence, and
(CIVIL CODE, Art. 17). may even induce one of the testators to kill the
other.
a.Filipino testator
i. Executing a will in the Philippines This prohibition is applicable only in joint wills
Philippine law. executed by Filipinos in a foreign country; it does not
ii. Executing a will outside of the Philippines apply to joint wills executed by aliens (CIVIL CODE,
either: Art. 819).
1.The law of the country in which it is
executed; or Joint wills executed by Filipinos in a foreign country
2.The law of the Philippines. shall not be valid in the Philippines, even though
authorized by the laws of the country where they
b.Alien Testator may have been executed (CIVIL CODE, Art. 819).
i. Executing a will in the Philippines either:
1.The law of the Philippines; or
2.The law of the country of which he is a
citizen or subject.
ii. Executing a will outside of the Philippines
either:
1. The law of the place where it is executed;
or C ODICIL AND
2. The law of the place in which he resides; I NCORPORATION B Y
or
3. The law of his country; or R EFERENCE
4. The law of the Philippines. Codicil
A supplement or addition to a will, made after the
Aspects of the will governed by national law of execution of a will and annexed to be taken as part
the decedent (CIVIL CODE, Arts. 1039 and 16): thereof, by which any disposition made in the
1.Order of succession; original will is explained, added to, or altered (CIVIL
2.Capacity to succeed; CODE, Art. 825).
3.Amount of successional rights; and
4.Intrinsic validity. It always refers to the original will. If there is entirely
no reference at all, then it is considered as the new
Joint Wills will.
A single testamentary instrument which contains the
wills of two or more persons, jointly executed by Its execution has the effect of republishing the will
them, either for their reciprocal benefit or for the as modified.
benefit of a third person (JURADO, Succession,
supra at 106). In order to operate as a republication of the will, it is
sufficient if the codicil refers to the will in such a way
Kinds:

as to leave no doubt as to the identity of that must be a signature on at least several pages
instrument (JURADO, Succession, supra at 115). (PARAS, Civil Code, supra at 134).
To be effective, it should follow the formalities of a When in a will, reference is made to an inventory of
notarial or holographic will (CIVIL CODE, Art. 826). the properties of the testator, which has thus been
made part of the will, if the will has an attestation
In case of conflict, the codicil prevails it being the clause that meets the requirements of the law, no
later expression of the testator's will. attestation clause is necessary for the said inventory
anymore (Unson v. Abella, G.R. No. 17857, June
Note: A notarial and a holographic will may be 12, 1922).
revoked by either a notarial or holographic codicil
(PARAS, Civil Code, supra at 133).
R EVOCATION OF W ILLS AND
Incorporation by Reference
Where a will, executed as required by the Civil
T ESTAMENTARY D ISPOSITION
Code, incorporates into itself by reference any
document or paper (CIVIL CODE, Art. 827). Revocation
It is an act of the mind, terminating the potential
Contemplates only non-testamentary dispositions capacity of the will to operate at the death of the
such as lists of properties, books of accounts, testator, manifested by some outward or visible act
voluminous documents or inventories. or sign, symbolic thereof (JURADO, Civil Code,
supra at 116).
Provisions which are in the nature of testamentary
dispositions must be contained in the will itself. A will may be revoked by the testator at any time
before his death. Any waiver or restriction of this
Parole evidence may be admitted to prove the right is void (CIVIL CODE, Art. 828).
identity of the document as incorporated.
Upon revocation, the will or testamentary disposition
From the fact that Art. 827(4) speaks of witnesses, intended to be revoked ceases to exist, and is
it is reasonable to believe that as a rule, only notarial inoperative as if it has never been written.
wills can have this incorporation by reference.
However, it is submitted that: Laws which Govern Revocation
1.If a holographic will happen to have at least three 1.If the revocation takes place in the Philippines,
credible and qualified witnesses, there can be a whether the testator is domiciled in the Philippines
proper incorporation by reference. or in some other country, it is valid when it is in
2. Moreover, if a holographic will (with NO accordance with the laws of the Philippines.
witnesses) refers to a document entirely written, 2.If the revocation takes place outside the
dated, and signed in the handwriting of the Philippines, by a testator who is domiciled in the
testator, there can also be a proper incorporation Philippines, it is valid when it is in accordance with
by reference (PARAS, Civil Code, supra at 134). the laws of the Philippines.
3.If the revocation takes place outside the
Requisites for a Valid Incorporation by Philippines, by a testator who does not have his
Reference: (EDIS) domicile in this country, it is valid when it is in
1.The document or paper referred to in the will must accordance with:
be in Existence at the time of the execution of the a.Laws of the place where the will was made, or
will; b.Laws of the place where the testator had his
2.The will must clearly Describe and identify the domicile at the time of revocation (CIVIL CODE,
same, stating among other things the number of Art. 829).
pages thereof;
3.It must be Identified by clear and satisfactory proof Modes of Revocation:
as the document or paper referred to therein; and 1.By Implication of Law (CIVIL CODE, Art. 830)
4.It must be Signed by the testator and the (PUJ-BALA)
witnesses on each and every page, except in case The kind of revocation produced by operation of
of voluminous books of account or inventories law when certain acts or events take place after a
(CIVIL CODE, Art. 827). will has been made, rendering void or useless
either the whole will or certain testamentary
Note: The exception refers only to the signing of all dispositions therein.
pages; while not every page has to be signed, there

a.Preterition revokes the institution of heir (CIVIL b.Implied when the provisions thereof are
CODE, Art. 854); partially or absolutely inconsistent with those of
b.Act of Unworthiness by an heir, devisee/legatee the previous wills. May be effected only by:
revokes testamentary provisions in his favor i. Subsequent will
(CIVIL CODE, Art. 1032); ii. Codicil
c. Judicial action for recovery of debt revokes a
legacy of credit/remission of debt (CIVIL CODE, Subsequent wills which do not revoke the
Arts. 935 and 936); previous ones in an express manner, annul only
d.If both spouses of the subsequent marriage such dispositions in the prior wills as are
acted in Bad faith, said marriage shall be void inconsistent with or contrary to those contained
ab initio and testamentary dispositions made by in the later wills (CIVIL CODE, Art. 831).
one in favor of the other are revoked by Two separate and distinct wills may be probated
operation of law (FAMILY CODE, Art. 44); if one does not revoke the other and provided
e.Alienation, transformation, or loss of that the statutory requirements relative to the
bequeathed property revokes a legacy of such execution of wills have been complied with
property (CIVIL CODE, Art. 957); (Merza v. Porras, G.R. No. L-4888, May 25,
f. Legal separation revokes testamentary 1953).
provisions in favor of the offending spouse made
in the will of innocent spouse (FAMILY CODE, 3.By Destruction of the Will (CIVIL CODE, Art.
Art. 63 [4]); and 830) (burning, tearing, cancelling, or obliterating
g.Annulled or void ab initio marriages revoke the will) (CAT-TI)
testamentary dispositions made by one spouse Requisites:
in favor of the other (FAMILY CODE, Art. 50.) a.Completion of the subjective phase;
The act is still deemed to be in the subjective
2.By Subsequent Instrument (CIVIL CODE, Art. phase if the testator intends to do a further act.
830) (will, codicil, or other writing executed as b.Actual physical act of destruction;
provided in the case of wills) which may either be: It must be a mental process demonstrated by
some outward and visible sign (JURADO,
a.Express when there is a revocatory clause Succession, supra at 123-124).
expressly revoking the previous will or a part c. Testamentary capacity at the time of performing
thereof. the act of destruction;
i. Subsequent will d.Performed by the Testator himself or by some
ii. Codicil other person in his presence, and by his express
If the revocation is partial, it will have the direction;
effect of republishing the will as of the date of Ratification of an unauthorized destruction is
the codicil with respect to all parts not however permissible, provided sufficient proof of
revoked. this is presented (PARAS, Civil Code, supra at
140).
If the revocation is total, there is no Note: If burned, torn, cancelled, or obliterated
republication. by some other person, without the express
direction of the testator, the will may still be
iii. Nontestamentary writing executed as in case established, and the estate distributed in
of wills may be revoked by expressed words accordance therewith, provided the following are
of revocation contained in a deed of trust or in established:
a letter, signed and executed by the testator in i. Contents;
accordance with the formalities prescribed by ii. Due execution; and
law (JURADO, Succession, supra at 121). iii. Fact of unauthorized destruction.
In all of the three ways of express revocation, e.Intent to revoke (animus revocandi)
the revocatory clause must CLEARLY and The intention to revoke must appear clearly and
UNMISTAKABLY manifest the intention of the unequivocally. An act of destruction which is
testator to revoke the previous will. done accidentally, by mistake, or as a result of
fraud, undue influence, does not operate as a
To revoke a previous will, it is necessary that revocation (JURADO, Succession, supra at
the subsequent instrument be valid and 123).
executed with the formalities required for the
making of wills. Burning

There must be at least a burning of a part of the Marks made upon a will by the testator are
paper on which the will is written, although a very effective as a revocation by cancellation,
slight burn will suffice. regardless of their depth, faintness, or other
characteristics, if they were placed there for the
It is sufficient if a small part of the instrument itself purpose of canceling the will.
be burned even though the entire writing itself be
left untouched (PARAS, Civil Code, supra at 140). The cancellation need not render the will illegible
(JURADO, Succession, supra at 127-128).
If the document itself is not burned, even partially,
but only the envelope in which it was placed was Obliterating
burned, there is no revocation of the will. But Effected by erasing or scraping off any word or
where the maker of the will threw it upon the fire disposition which the testator intends to revoke.
with the intent to revoke, and it was burned Obliteration renders the will illegible (JURADO,
through in three places, this was considered a Succession, supra at 127).
revocation, although the writing remained intact,
and although it was rescued and preserved Note: Revocation by cancellation or obliteration
without the knowledge of the testator may be partial or total as opposed to Revocation
(TOLENTINO, Civil Code, supra at 135). by Burning or Tearing which is always total. The
revocation is partial if it is directed against a
Tearing nonessential part of the will and total if it is
A slight act of tearing is generally held sufficient; directed against an essential part thereof (Id.).
although the greater the degree of tearing the
stronger is the presumption that the instrument Doctrine of Presumed Revocation
was torn animo revocandi (JURADO, Succession, In the absence of other evidence, it shall be
supra at 126). presumed that the testator destroyed the will animo
revocandi:
The act of tearing must be a COMPLETE ACT. 1.Where the will cannot be found following the death
Otherwise, if the testator desists voluntarily or of the testator and it is shown that it was in the
through the persuasion of others before the act of testators possession when last seen;
destruction could be consummated, the act of 2.Where the will cannot be found following the death
revocation has not also been consummated. of the testator and it is shown that the testator had
Hence, it produces no effect (JURADO, ready access to it; and
Succession, supra at 126). 3.Where it is shown that the will was in the custody
of the testator after its execution, and
Tearing of even the signature alone constitutes subsequently, it was found among the testators
revocation, provided the other requisites are effects after his death in such state of mutilation,
present. This is because the signature goes to the cancellation or obliteration as represents a
very heart of the will (PARAS, Civil Code, supra at sufficient act of revocation within the meaning of
142). the applicable statute (JURADO, Succession,
supra at 128-129).
Once a will has been revoked, it can no longer be
revived by putting the pieces together. Doctrine of Dependent Relative Revocation
Note: The mere act of crumpling: or the removal If a testator revokes a will with a present intention of
of the fastener binding the pages of a will, does making a new one immediately and as a substitute,
not constitute revocation, even though there be and the new will is not made, or if made, fails of
animo revocandi (PARAS, Civil Code, supra at effect of any reason, it will be presumed that the
142). testator preferred the old will to intestacy, and the
old one will be admitted to probate in the absence of
Humpty Dumpty Rule evidence overcoming the presumption, provided its
Once a will has been torn and revoked, it can no contents can be ascertained (CIVIL CODE, Art.
longer be revived by putting the pieces together 832).
(Navarro Reviewer, p. 46).
Being merely a presumed intention, it does not
Cancelling prevail as against actual evidence of the testators
Effected by diagonal or horizontal lines, or criss- intention.
crosses, or the word cancelled, written upon the
face of the will or upon any part thereof. Note: Where the act of destruction is connected with
the making of another will so as to fairly raise the

inference that the testator meant the revocation of codicil. Thus, a codicil may republish and validate a
the old to depend upon the efficacy of the new will which was originally void for want of
disposition intended to be substituted, the revocation testamentary capacity or on account of undue
will be conditional and dependent upon the efficacy influence upon the testator (TOLENTINO, Civil
of the new disposition; and if for any reason, the Code, supra at 144).
new will intended to be made as a substitute is
inoperative, the revocation fails and the original will Illustration:
remains in full force (Vda. De Molo v. Molo, G.R. No. Q: X made a will in 1985 but only two witnesses
L-2538, September 21, 1951). were present. In 1995, he modified the will by a
codicil. If he dies, should the will be allowed?
Revocation by Mistake A: No. The 1985 will was void as to its form because
A revocation of a will based on a false cause or an it only has two witnesses and therefore Art 835
illegal cause is null and void (CIVIL CODE, Art. 833). should apply. The testator must reproduce in a
subsequent will the dispositions contained in the
The false or illegal cause must appear upon the face 1985 will. He cannot merely use a codicil.
of the will.
Note: The word form in Art. 837 refers to those
However, where the facts alleged by the testator covered by Art. 805 like defect in the number of
were peculiarly within his knowledge, or the testator witnesses, lack of or fatal defect in the attestation,
must have known the truth of the facts alleged by lack of acknowledgement etc., but not to vitiated
him, it does not matter whether they are true or not; consent or to lack of testamentary capacity (PARAS,
the revocation is absolute (TOLENTINO, Civil Code, Civil Code, supra at 152).
supra at 142).
Effects of republication by virtue of a codicil:
Note: The recognition of an illegitimate child does 1.Codicil revives the previous will; and
not lose its legal effect, even though the will wherein 2. The old will is republished as of the date of the
it was made should be revoked (CIVIL CODE, Art. codicil, and makes it effective, as it were, from the
834). new and later date (PARAS, Civil Code, supra at
Reason: The revoked will is still an "authenticated 210).
writing" under Art. 278.
Revival
Restoration to validity of a previously revoked will by
R EPUBLICATION AND operation of law (JURADO, Succession, supra at
133).
R EVIVAL OF W ILLS
Republication v. Revival
Republication Republication Revival
It is an act of the testator whereby he reproduces in
a subsequent will the dispositions contained in a Takes place by an act of Takes place by
previous will which is void as to its form or executes the testator operation of law
a codicil to his will (JURADO, Succession at 132). Corrects extrinsic and
Restores a revoked will
intrinsic defects.
Kinds:
1.Express or Republication by Re-execution Principle of Instanter: The express revocation of
(CIVIL CODE, Art. 835) if the testator the first will renders it void because the revocatory
reproduces in a subsequent will dispositions clause of the second will, not being testamentary in
contained in a previous one which is void as to its character, operates to revoke the previous will
form. The purpose of republication is to cure the instantly upon the execution of the will containing it
will of its formal defects. (Navarro Reviewer, p. 53).
2.Constructive or Republication by Reference
(CIVIL CODE, Art. 836) if the testator for some Kinds:
reason or another executes a codicil to his will. 1. Express Revocation of the First Will
If after making a will, the testator makes a second
Note: Art. 836 must be considered as the general will expressly revoking the first, the revocation of
rule and Art. 835 as the exception. Reproduction in the second will does not revive the first will, which
the codicil is required only when the original will is can be revived only by another will or codicil
void as to its form; in all other cases, reference to (CIVIL CODE, Art. 837).
the original will suffices to republish it through the

2. Implied Revocation of the First Will residence or domicile (TOLENTINO, Civil Code,
Where there is merely an inconsistency between supra at 150).
two wills, but there is no revocatory clause, upon
destruction of the second will, the first is Note: The first court taking cognizance of the
automatically revived, regardless of the intention settlement of the estate of a decedent, shall
of the testator, provided that the first will has been exercise jurisdiction to the exclusion of all other
preserved undestroyed. courts (RULES OF COURT, Sec.1, Rule 73).
Illustration: In an instance where the testator Kinds:

executed three wills the first in 1968, the second 1.Ante Mortem during the lifetime; and
in 1969, and the third a codicil in 1970, the 2.Post Mortem after the testators death
dispositions found in the second will are absolutely
inconsistent with those found in the first. The Imprescriptibility of probate
codicil, on the other hand, contains nothing but a The statute of limitations is not applicable to probate
revocatory clause expressly revoking the will of of wills (JURADO, Succession, supra at 137).
1969. From the foregoing, the will in 1968 will
remain. It will remain not because of revival since Rationale: Probate proceedings are not established
it has never been revoked in the first place. in the interest of the surviving heirs, but primarily for
Further, consistent with the doctrine of dependent the protection of the expressed wishes of the
relative revocation, it will be presumed that the testator.
testator preferred the old will to intestacy
(JURADO, Succession, supra at 133). It is true that the rights of the parties should not be
left hanging in uncertainty for periods in excess of
the maximum period of ten years allowed by law, but
the remedy is for the other interested person either:
1.To petition for the production of the will and for its
probate;
2.To inflict upon the guilty party the penalties
A LLOWANCE AND prescribed by Rule 75 of the Rules of Court; or
3.To declare the unworthiness of the heir under Art.
D ISALLOWANCE OF W ILLS 1032 of the Civil Code for concealing or
suppressing the will (Guevara v. Guevara, G.R.
Probate No. L-5405, January 31, 1956).
A special proceeding mandatorily required for the
purpose of establishing the validity of a will. The Probate is one thing; the validity of the testamentary
procedure to be followed is that which is provided for provision is another. The first decides the execution
in the New Rules of Court. of the document and the testamentary capacity of
the testator; the second deals with descent and
Necessity of Probate distribution (Sumilang v. Ramagosa, G.R. No. L-
1.No will shall pass either real or personal property 23135, December 26, 1967).
unless it is proved and allowed in accordance with
the Rules of Court (CIVIL CODE, Art. 838). Effect of allowance of will
2.It is a proceeding in rem which cannot be A judgment or decree of a court with jurisdiction to
dispensed with without offending against public probate a will is:
policy to effectuate testators right and to protect 1.Conclusive as to the validity of the will;
the rights of the heirs and legatees (JURADO, 2.Not subject to collateral attack, but stands as final,
Succession, supra at 135). if not modified, set aside, or revoked by a direct
proceeding, or reversed on appeal to a higher
Venue: court; and
Resident (citizen or alien): RTC in the province in 3.Conclusive to the whole world (JURADO,
which he resides at the time of his death. Succession, supra at 142).
Non-resident (citizen or alien): RTC in which his Note: Formal notice is an idle ceremony where the
estate is located. adverse party had actual knowledge.
Residence actual or physical place of abode of Fraud as a ground for relief must be based on
the deceased as distinguished from his legal extrinsic fraud.

Where part of estate not distributed, recourse is not of competent jurisdiction (Mercado v. Santos, G.R.
to re-open probate proceedings, but motion for No. 45629, September 22, 1938).
execution or action for reconveyance (Heirs of the
Late Jesus Fran v. Salas, G.R. No. L-53546, June The fact that the will has been allowed without
25, 1992). opposition and the order allowing the same has
become final and executory is not a bar to the
Instances when allowance may be set aside presentation of a codicil provided it complies with all
General Rule: Since a proceeding for the probate of the formalities for executing a will. It is not
a will is essentially one in rem a judgment allowing a necessary that the will and codicil be probated
will shall be conclusive as to its due execution. together as the codicil may be concealed by an
interested party. They may be probated one after the
Exceptions: other (Macam v. Gatmaitan, G.R. No. 40445, August
1.By means of an appeal; 17, 1934).
2.By means of a petition for relief from judgment by
reason of fraud, accident, mistake, or excusable Grounds for Disallowance of a Will (FIFU-SM)
negligence; 1. Formalities required by law have not been
3.By means of a petition to set aside the judgment complied with;
by reason of lack of jurisdiction or lack of 2. Testator was Insane, or otherwise mentally
procedural due process; or incapable of making a will, at the time of its
4.By means of an action to annul judgment by execution;
reason of extrinsic or collateral fraud (JURADO, 3. Will was executed through Force or under
Succession, supra at 144). duress, or the influence of fear, or threats;
4. Will was procured by Undue and improper
Questions determinable by Probate Court pressure and influence, on the part of the
General Rule: In probate proceedings, the probate beneficiary or of some other person; and
court cannot inquire into the intrinsic validity of 5. Signature of the testator was procured by fraud;
testamentary provisions. The only questions that 6. Testator acted by Mistake or did not intend that
may be determined by the probate court are the the instrument he signed should be his will at the
following: (ICE) time of affixing his signature thereto (CIVIL
1.Identity of the will (whether the will presented is CODE, Art. 839).
the last will and testament of the testator)
2.Testamentary Capacity of the testator at the time Note: The list is exclusive (Ajero v. CA, G.R. No.
of the execution of the will; and 106720 September 15, 1994).
3.Due Execution of the will (whether there was
compliance with the requisites and solemnities Violence there is violence when in order to wrest
prescribed by law) (JURADO, Succession, supra consent, serious or irresistible force is employed
at 138-139) upon the testator (CIVIL CODE, Art. 1334).
Exception (for practical consierations): Intimidation when the testator is compelled by a

In Nuguid v. Nuguid (G.R. No. L-23445, June 23, reasonable and well-grounded fear of an imminent
1966), the Supreme Court held that, if the case was and grave evil upon his person or property, or upon
to be remanded for probate of the will, nothing will the person or property of his spouse, descendants
be gained. On the contrary, this litigation would be or ascendants, to execute the will (CIVIL CODE, Art.
protracted. And for aught that appears in the record, 1335).
in the event of probate or if the court rejects the will,
probability exists that the case will come up once Mistake pertains to Mistakes of Execution which
again before us on the same issue of the intrinsic may either be:
validity or nullity of the will. Result: waste of time, 1.A mistake as to identity or character of the
effort, expense, plus added anxiety. instrument which he signed; or
2.A mistake as to the contents of the will itself
In Nepomuceno v. CA (G.R. No. L-62952, October (JURADO, Succession, supra at 158).
9, 1985), the Court ruled that the court can inquire
as to the intrinsic validity of the will because there Fraud if by misrepresentation and deception the
was an express statement that the beneficiary was a testator is led into making a will different from that
mistress. he would have made but for the misrepresentation
and deception (JURADO, Succession, supra at
Criminal action will not lie against the forger of a will 157).
which had been duly admitted to probate by a court

Undue Influence when a person takes improper
advantage of his power over the will of another, I NSTITUTION OF H EIRS
depriving the latter of a reasonable freedom of
choice (CIVIL CODE, Art. 1337).
Institution
Fair arguments, persuasion, appeal to emotions, An act by virtue of which a testator designates in his
and entreaties which, without fraud or deceit or will the person or persons who are to succeed him in
actual coercion, compulsion or restraint do not his property and transmissible rights and obligations
constitute undue influence sufficient to invalidate a (CIVIL CODE, Art. 840).
will (Barreto v. Reyes, G.R. No. L-5830, January 31,
1956). Order of Preference:
To be sufficient to avoid a will, the influence exerted 1. Institution of heir (CIVIL CODE, Art. 840);
must be of a kind that so overpowers and 2. Substitution of heir (CIVIL CODE, Art. 857);
subjugates the mind of the testator as to destroy his 3. Right of representation (CIVIL CODE, Art. 970);
free agency and make him express the will of 4. Right of accretion (CIVIL CODE, Art. 1015); and
another rather than his own (Pascual v. De la Cruz,
G.R. No. L-24819, May 30, 1969). 5. Intestacy (CIVIL CODE, Art. 960)
To make a case of undue influence, the free agency Requisites for a Valid Institution:
of the testator must be shown to have been 1.The will must be extrinsically valid
destroyed; but to establish a ground of contest This means that:
based on fraud, free agency of the testator need not a.The testator must be capacitated;
be shown to have been destroyed. b.the formalities must be observed;
c. There must be no vitiated consent;
Allegations of fraud and undue influence cannot co d.The will must have been duly probated; and
exist because they are mutually opposed and e.The will must have been the personal act of the
exclude each other that their joining as grounds for testator.
opposing probate shows absence of definite 2.The institution must be intrinsically valid
evidence against the validity of the will (Icasiano v. This means that:
Icasiano, G.R. No. L-18979, June 30, 1964). a.The legitime must not be impaired;
b.The heir must be certain or ascertainable; and
c. There should be no preterition.
Revocation v. Disallowance
3.The institution must be effective
Revocation Disallowance This means that
Voluntary act of the a.There must be no predeceased heir;
Given by judicial decree b.There must be no repudiation by the heir; and
testator
c. There must be no incapacity of the heir
Must always be for a
With or without cause (PARAS, Civil Code, supra at 196-197).
legal cause
Always total except: Lack of institution does not invalidate a will
when the ground of A will is valid, even though:
fraud or influence for 1.It does not contain an institution of an heir,
May be partial or total
example affects only 2.The institution does not comprise the entire estate,
certain portions of the or
will 3.The heir instituted does not accept the inheritance
or is incapacitated to succeed (CIVIL CODE, Art.
Ratification 841).
With respect to a will which is void because of non-
compliance with the formalities prescribed by law (1- The testamentary dispositions made in accordance
2), ratification is not possible. with the law shall be complied with and the
remainder of the estate shall pass to the legal heirs
Reason: Will is void. (CIVIL CODE, Art. 841). In other words, there is
mixed succession.
With respect to a will which was executed through
violence, intimidation, undue influence, fraud or Freedom of Disposition (CIVIL CODE, Art. 842):
mistake (3-6), ratification is possible (JURADO, 1.If the testator has no compulsory heirs, his
Succession, supra at 158). freedom of disposition is absolute in character.
The whole estate is disposable.

2.If the testator has compulsory heirs, his freedom Presumptions:
of disposition shall extend only to the disposable 1.Presumption of Equality When heirs were
free portion of his estate, but not to the legal instituted without designation of shares, they are
portion or legitime (JURADO, Succession, supra deemed to inherit in equal parts (CIVIL CODE,
at 162). Art. 846).
Restrictions on Disposition: Note: This applies only when all of the heirs are of
1.The estate of the testator shall be liable for the the same class or juridical condition. The proper
latters obligations; and interpretation is that: if the testator has no
2.The testator cannot dispose of or encumber the compulsory heirs, apply the provision literally;
legitime of the compulsory heirs. however, if he has compulsory heirs, first satisfy
their legitime, then apply the rule with respect to
Forms of Institution: the disposable free portion (JURADO,
The testator shall designate the heir by his name Succession, supra at 165-166).
and surname. However, this form is not mandatory.
The designation may be made in any other form, as 2.Presumption of Individuality When the
long as there will be no doubt as to the identity of testator institutes some heirs individually and
the heir/s instituted (CIVIL CODE, Art. 843). others collectively, those collectively designated
shall be considered as individually instituted,
Dispositions in favor of an unknown person unless it clearly appears that the intention of the
(persona incierta) shall be void, unless by some testator was otherwise (CIVIL CODE, Art. 847).
event or circumstances his identity becomes certain
(CIVIL CODE, Art. 845). 3.Presumption of Simultaneity when the testator
calls to the succession a person and his children,
Note: The institution of an unknown person will still they are all deemed to have been instituted
be void even if by some future event he can be simultaneously and not successively (CIVIL
determined when the determination of the heir is CODE, Art. 849).
delegated by the testator to another. It is void under
Art. 785 of the Civil Code. His children refers not to the children of the
testator but to the children of the person instituted
A disposition in favor of a definite class or group of as an heir (PARAS, Civil Code, supra at 210).
persons shall be valid (CIVIL CODE, Art. 845).
Summary of Rules
Test to determine the validity of institution 1.If the shares of some heirs are designated, while
The proper test in order to determine the validity of those of others are not, those parts designated
an institution of heir is the possibility of finally shall be given to their owners, and the balance
ascertaining the identity of the instituted heir either shall be divided equally among those whose
by intrinsic or extrinsic evidence. shares are not designated.
2.If the shares of those whose portions are
The test is specifically applicable to the following designated should consume the entire estate,
cases: those whose shares are not designated will inherit
1.If the name and surname of the instituted heir has nothing.
been omitted by the testator (CIVIL CODE, Art. 3.When there is no designation of shares but the
843); testator has provided that specific things be given
2.If there has been an error with respect to the to each heir, and such things form only a portion of
name, surname, or circumstances of the instituted the estate, the institution must be considered as
heirs (CIVIL CODE, Art. 844); without designation of shares and the heirs will
3.If the name, surname, and circumstances of the divide the estate equally, but the value of the
instituted heir are the same as those of other specific things assigned to each must be included
persons (CIVIL CODE, Art. 844); and in the amount that should pertain to each (Navarro
4.If an unknown or uncertain person has been Reviewer, p. 62-63).
instituted. (CIVIL CODE, Art. 845.)
Institution of brothers and sisters
Note: If the doubt as to who is instituted cannot be In case some of full blood and others of half-blood:
resolved, then it is the same as if the testator has 1.Testate Succession
not expressed his will (TOLENTINO, Civil Code, The inheritance shall be distributed equally, unless
supra at 173). a different intention appears (CIVIL CODE, Art.
848).

2.Intestate Succession Art. 852 Art. 853
Brothers and sisters of the full blood shall be B= [30T/(60T+30T)] =
entitled to a share double that of the brothers and 1/3 x 30T = 10T
sisters of the half-blood (CIVIL CODE, Art. 1006). (Addition)
their respective shares
OR
Institution based on a False Cause (CIVIL CODE, shall be reduced
their respective shares
Art. 850): proportionately in the
shall be increased
General Rule: The statement of a false cause for ratio of 6:9/2:3:
proportionately in the
the institution of an heir shall be considered as not A=2/5 x 30T = 12T
ratio of 6:3/2:1:
written. B=3/5 x 30T = 18T
A=2/3 x 30T= 20T
B=1/3 x 30T= 10T
Exception: Testator would not have made the
institution if he had known the falsity of such cause. Hence: A = 80T Hence: A = 48T
B = 40T B = 72T
Requisites for the Annulment of Institution of total is 120T total is 120T
Heirs:
1.Cause of institution of the heirs must be stated in Preterition
will; Omission in the testators will of one, some, or all of
2.Cause must be shown to be false; and the compulsory heirs in the direct line, whether
3.It must appear from the face of the will that the living at the time of the execution of the will or born
testator would not have made the institution had after the death of the testator (CIVIL CODE, Art.
he known the falsity of the cause (Austria v. 854).
Reyes, G.R. No. L-23079, February 27, 1970).
Requisites:
Institution on Aliquot Parts: 1. The heir omitted must be a compulsory heir in the
1.Rule if the entire inheritance is not covered: direct line, such as:
a.Testator has no intention to make heirs as sole a. Legitimate children and descendants (LCD),
heirs mixed succession (CIVIL CODE, Art. with respect to their legitimate parents and
851). ascendants (LPA);
e.g., A= 2/5; B=1/5; C= 1/5 b. LPA, with respect to their LCD;
The remainder of 1/5 shall pass to the legal c. Illegitimate children (IC);
heirs. d. Father and mother of IC; and
b.Testator has intention to make heirs as sole e. Adopted child (AC);
heirs each part is increased proportionately 2. The omission must be complete and total in
(CIVIL CODE, Art. 852). character (that the omitted heir does not and has
2.Rule if more than inheritance is covered each not received anything at all from the testator by
part is reduced proportionately. (CIVIL CODE, Art. any title whatsoever); and
853.) 3.The compulsory heir omitted must survive the
testator.
Formula:
Share= Aggregate Amount x Amount of Share There is no Total Omission when:
Total Amount of Share 1. A devise/legacy has been given to the heir by the
Art. 852 Art. 853 testator;
Net Estate = 120T Net Estate = 120T 2. A donation inter vivos has been previously given
A= ; B= A= ; B= to the heir by the testator; or
3. Anything is left from the inheritance which the
A= of 120T is 60T A= of 120T is 60T heir may get by way of intestacy (JURADO,
B= of 120T is 30T B= of 120T is 90T Succession, supra at 177).
90T 150T
NE(120T)90T= 30T NE(120T)150T= -30T Note: The remedy of the affected heir is completion
30T shall be distributed 30T will be DEDUCTED of legitime under Art. 906 of the Civil Code, in case
proportionately proportionately between the value of the property received is less than the
between A and B A and B value of the legitime (Id.).
Computation on A=(120Tx60)/150T=48T
increase: B=(120Tx90)/150T= Effects of Preterition:
A= [60T/(60T+30T)] = 72T 1. It annuls the institution of heir;
2/3 x 30T = 20T 2. The devises and legacies are valid insofar as
(Addition) OR they are not inofficious;

3. If the omitted compulsory heir should die before Q: A, B and C are the legitimate children of X. When
the testator, the institution shall be effectual, X executed his will, he instituted as heir to his entire
without prejudice to the right of representation; estate A, B and his friend F. He also gave G a
and legacy of 30T. The value of the net estate is 120T.
4. Intestate succession ensues (JURADO, (a) Is there preterition? (b) What is the effect of
Succession, supra 180). preterition on the institution of heirs? (c) what about
the legacy given to G? (d) How will the estate be
Where a onesentence will institutes the distributed?
petitioner as the sole, universal heir and preterits A: (a) There is preterition because C was not
the parents of the testatrix, and it contains no mentioned in the will, nor was he given anything.
specific legacies or bequests, such universal (b) The institution of F will be annulled.
institution of petitioner, by itself, is void (Nuguid v. (c) The legacy given to G is effective because it can
Nuguid, G.R. No. L-23445, June 23, 1966). be contained within the free portion. In this case, the
free portion is ( of 120T) 60T. The legacy given to
Note: Omission of the surviving spouse (SS) does G in the amount of 30T can be contained therein.
not constitute preterition since SS is not a (d) The estate will be distributed as follows:
compulsory heir in the direct line. Therefore, the only Heir/
Voluntary Amount
effect of her omission is a partial annulment of the Devisee/ Legitime
Share Received
institution of heirs to the extent that her legitime is Legatee
prejudiced; in other words, SS is still entitled to her A 20,000 10,000 30,000
legitime (JURADO, Succession, supra at 176). B 20,000 10,000 30,000
C 20,000 10,000 30,000
Omission of the adopted child in the testator's will G 30,000 30,000
constitutes preterition. F Institution is annulled
Total 60,000 60,000 120,000
Rationale: Adopted child has the same rights as that
of a legitimate child (FAMILY CODE, Art. 189). Effects of Predecease or Incapacity
1.Voluntary Heir: Transmits no right to his heirs.
Omission without Preterition 2.Compulsory Heir: Transmits to his representatives
The share of the compulsory heir omitted in a will his right to the legitime and not the free portion
must first be taken from the part of the estate not (JURADO, Succession, supra at 185).
disposed of by the will, if any; if that is not sufficient,
so much as may be necessary must be taken Effect of Repudiation
proportionally from the shares of the other heirs Whether voluntary or compulsory, the heir who
given to them by will (CIVIL CODE, Art. 855). repudiates his inheritance cannot transmit any right
to his own heirs (JURADO, Succession, supra at
Preterition v. Disinheritance 187).
Preterition Disinheritance
Deprivation of a Deprivation of a Note: The rule is absolute.
compulsory heir of his compulsory heir of his
legitime is tacit. legitime is express. In case of predecease, incapacity or repudiation, the
May be voluntary but vacancy is filled up either by substitution,
the law presumes that it Always voluntary representation, accretion or intestate succession
is involuntary. (Id.).
Law presumes that
there has been merely
an oversight or mistake Done with a legal cause S UBSTITUTION OF H EIRS
on the part of the
testator. Substitution
Omitted heir gets not It is the appointment of another heir so that he may
only his legitime but If disinheritance is not enter into the inheritance in default of or subsequent
also his share in the lawful, compulsory heir to the heir originally instituted (CIVIL CODE, Art.
free portion not is merely restored to his 857).
disposed of by way of legitime.
legacies/ devises. General Limitation
If the heir for whom a substitute is appointed is a
Illustration: compulsory heir, the rule is that the substitution

cannot affect the legitime of such heir (JURADO,
Succession, supra at 189). 2.Brief or Compendious (CIVIL CODE, Art. 860):
a.Brief there are two or more persons
Purposes: designated by the testator to substitute for only
1.To avoid intestate succession; one heir.
2.To prevent the descent of the estate to those b.Compendious one heir is designated to take
persons to whom the testator does not want to the place of two or more heirs.
succeed him in his property; and
3.To give the testator greater freedom to dispose of 3.Reciprocal (CIVIL CODE, Art. 861) When two
his property. or more persons are not only instituted as heirs,
but are also designated mutually as substitute for
Instances when Substitution takes place (CIVIL each other.
CODE, Art. 859): Illustration:
1.Instituted heir predeceases the testator; Q: X instituted A to of his estate, B to of his
2.Incapacity of the instituted heir to succeed from estate and c to the remaining . X designated all
the testator; and of them as reciprocal substitutes of each other. B
3.Repudiation of the inheritance. predeceased X. The valued of the estate is 600T.
Distribute.
If there is no statement of the case or cases to A: Formula:
which the substitution refers, the presumption is that Share of heir x Amount to be shared
it shall comprise all of the three (CIVIL CODE, Art. Aggregate amount of institution
859).
A = of 600T = 300T
Effect of Substitution B = of 600T = 150T
C = of 600T = 150T
General Rule: The substitute shall not only take
over the share that would have passed to the A= 300T x 150T = 100T
instituted heir, but he shall be subject to the same Instituted
450T Share from Amount
Heir
charges and conditions imposed upon such C= 150TAmount Substitution
x 150T = 50T Received
instituted heir (CIVIL CODE, Art. 862). A 450T300T 100T 400T
C 150T 50T 200T
Exceptions: Total 450T 150T 600T
1.When the testator has expressly provided the
contrary; and 4.Fideicommissary or Indirect Substitution
2.When the charges or conditions are personally (CIVIL CODE, Arts. 863865) That which takes
applicable only to the heir instituted (JURADO, place when the fiduciary or first heir instituted is
Succession, supra at 193). entrusted with the obligation to preserve and
transmit to a second heir, the whole or part of the
Some instances when the substitution is inheritance.
extinguished
1.When the substitute predeceases the testator; Requisites:
2. When the substitute is incapacitated; a. First heir (fiduciary) primarily called to the
3. When the substitute renounces the inheritance; enjoyment of the estate.
4. When the institution of heir is annulled (e.g. He is recognized as an instituted heir, and not a
preterition); mere administrator of the property.
5. When the institution or the substitution is revoked
Although there is no complete identity between
by the testator; and
the fiduciary and a usufructuary, he is commonly
6. When a will is void or disallowed or revoked considered as such because although he can
(PARAS, Civil Code, supra at 233) enjoy the property, he cannot alienate it
(TOLENTINO, Civil Code, supra at 21).
Kinds:
1.Simple or Common (CIVIL CODE, Art. 859) Pending the transmission or delivery, he
That which takes place when the testator possesses the beneficial ownership of the
designates one or more persons to substitute the property, although the naked ownership is
heirs/s instituted in case such heir/s should die vested in the fideicommissary (JURADO,
before him, or should not wish, or should be Succession, supra at 201).
incapacitated to accept the inheritance.

a. Second heir (fideicommissary) to whom the Time when Inheritance shall be Transmitted to
property is transmitted by the first heir. the Fideicomissary
1.Time chosen by testator;
Requisites: 2.If testator does not fix a period, discretion of
i. Must not go beyond one degree from the heir fiduciary;
originally instituted; and In case of doubt, after the death of fiduciary
ii. Must be living at the time of the death of the (JURADO, Succession, supra at 202).
testator (TOLENTINO, Civil Code, supra at
213). Void Substitutions: (EPCI)
1.Fideicommissary substitutions which are not made
The second heir shall acquire a right to the in an Express manner.
succession from the time of the testators death, 2.Provisions which contain Perpetual prohibition to
even though he should die before the fiduciary. alienate, and even a temporary one beyond the
His right shall pass to his heirs (CIVIL CODE, limit fixed in Art. 863.
Art. 866). The prohibition to alienate is good only for twenty
(20) years, beyond that it is void (CIVIL CODE,
The second heir inherits not from the first heir Art. 870).
but from the testator (Perez v. Garchitorena, 3.Those which impose upon the heir the Charge of
G.R. No. L-31703, February 13, 1930). paying to various persons successively, beyond
the limit fixed in Art. 863, a certain income or
b. An obligation clearly imposed by the testator pension.
(fideicomitente) upon such first heir to preserve 4.Those which leave to a person the whole or part of
the estate and to transmit it to the second heir. the hereditary property in order that he may apply
or Invest the same according to secret instructions
Without the obligation clearly imposing upon the communicated to him by the testator (also called
first heir the preservation of the property and its tacit fideicommissum) (CIVIL CODE, Art. 867).
transmission to the second heir, there is no
fideicommissary substitution (Rabadilla v. CA, Note: The nullity of the fideicommissary substitution
G.R. No. 113725 June 29, 2000). does not prejudice the validity of the institution of the
heirs first designated; the fideicommissary clause
Limitations of Fideicommisary Substitution shall simply be considered as not written (CIVIL
1.Substitution must not go beyond one degree from CODE, Art. 868).
the heir originally instituted.
Disposition of Usufruct to Various Persons
The second heir must be related to and be one A provision whereby the testator leaves to a person
generation from the first heir. Hence, the the whole or part of the inheritance, and to another
fideicommissary can only be either a child or a the usufruct, shall be valid. If he gives the usufruct to
parent of the first heir (TOLENTINO, Civil Code, various persons, not simultaneously, but
supra at 214). successively, the provisions of Art. 863 shall apply
A fideicommissary substitution is void if the first
heir is not related in the 1st degree to the second Rights of Fiduciary
heir (Ramirez v. Vda. De Ramirez, G.R. No. L- 1. Acquires the rights of a usufructuary until delivery
27952, February 15, 1982). to the fedeicommissary;
2. Possess beneficial ownership pending the
2.Fiduciary and fideicommissary must be living at delivery while naked ownership is vested in the
the time of the death of the testator. fedeicommissary; and
3.Substitution must not burden the legitime of 3. To deduct the amount of legitimate expesnes,
compulsory heirs. credit and improvements (CIVIL CODE, Art. 865).
4.Substitution must be made expressly (JURADO,
Succession, supra at 197) Obligations of Fiduciary
a.By giving it the name of a fideicommissary 1. To preserve the inheritance; and
substitution; or 2. To transmit the inheritance (JURADO,
b.By imposing upon the fiduciary the absolute Succession, supra at 197).
obligation to preserve and to deliver the property
to the fideicommissary.
C ONDITIONAL , M ODAL
T ESTAMENTARY
D ISPOSITIONS AND
T ESTAMENTARY
D ISPOSITIONS WITH A T ERM
3.Prohibitions on Marriage
Rules on Prohibitions on Marriage:

a. Absolute Prohibition
i. To contract first marriage void (contrary to
good morals and public policy) (CIVIL CODE,
Art. 874)
The institution of an heir may be:
ii. To remarry
1.Pure or simple;
2.Conditional;
General Rule: Void
3.For a term; or
4.For a certain purpose or cause (modal)
Exceptions:
1.When imposed on the widow or widower by the
Note: Conditions, terms, and modes are not
deceased person
presumed; they must be clearly expressed in the
2.When imposed on the widow or widower by the
will. Otherwise, it shall be considered pure.
ascendants or descendants of the deceased
spouse (CIVIL CODE, Art. 874).
LIMITATIONS:
1.Principle of Untouchability of the Legitime
An absolute condition not to contract marriage
General Rule: The testator cannot impose any
when validly imposed is resolutory in character.
charge, burden, encumbrance, condition, or
Even so, however, the legitime of the surviving
substitution whatsoever upon the legitime of the
spouse cannot be impaired (JURADO,
compulsory heirs. Should he do so, the same shall
be considered as not imposed (CIVIL CODE, Art.
872).
b. Relative Prohibition
Relative prohibition on the following are
Exceptions:
considered valid unless it becomes so onerous
a.When the testator declares that the hereditary
or burdensome, or the prohibition really amounts
estate shall not be partitioned for a period which
to an absolute one:
shall not exceed twenty (20) years (CIVIL
i. To contract first marriage; or
CODE, Art.870);
ii. To remarry.
b.When there is reserva troncal (CIVIL CODE, Art.
891);
If the prohibition is relative with respect to
c. Family home (FAMILY CODE, Art. 159); and
persons, time or place, the rule does NOT apply;
d.When the testator expressly forbids the division
hence, the prohibition is valid. The following
of the estate but not to exceed twenty (20) years
relative conditions regarding marriage have
been considered as valid and binding:
i. Generic condition to contract marriage;
2.Sabinean Doctrine
ii. Specific condition to contract marriage with a
Impossible conditions and those contrary to law or
determinate person; and
good customs are presumed to have been
iii. Specific condition not to contract marriage with a
imposed erroneously or through oversight, thus,
determinate person.
are considered as not imposed (CIVIL CODE, Art.
872). Such impossibility is to be determined at the
c. A stopping of a usufruct, allowance, or
time when the condition is to be fulfilled
personal prestation the moment the heir,
legatee, or devisee marries or remarries is
justified since the law allows their giving for the
A condition is considered impossible if it is not
time during which the person remains unmarried
possible of realization because it is contrary to
or in widowhood (CIVIL CODE, Art. 874).
either physical, juridical or moral laws (Id.).
d. Disposicion Captatoria
Article 1183 provides for the annulment of the
Any disposition made upon the condition that
obligation which depends upon impossible
the heir shall make some provisions in his will in
conditions. Article 873 only makes the condition
favor of the testator or of any other person shall
void, but the disposition remains valid (Id.).
be void (CIVIL CODE, Art. 875).
Prohibition not to contest the will is void

Note: In Art. 875, the testamentary disposition 1.Suspensive
itself is void while in Arts. 873 and 874, the Rights are suspended until the arrival of the date
condition is void but the testamentary disposition or time designated by the testator.
is valid.
The legal heir shall be considered as called to the
e. Conditions imposed by the testator upon the succession until the arrival of the period. But he
heirs shall be governed by the rules established shall not enter into possession of property until
for conditional obligations in all matters not after having given sufficient security, with the
provided for by the law on succession (CIVIL intervention of the instituted heir.
CODE, Art. 884).
Note: The words or term in line 2, and or until
Condition the arrival of the term in lines 4 and 5 at the end
Any future and uncertain fact or past event unknown of 1st par. of Art. 880 must be eliminated
to the parties, upon which the performance of an (JURADO, Succession, supra at 231).
obligation depends (PARAS, Civil Code, supra at
261). If the heir, devisee or legatee should have died
after the death of the testator, but before the
Kinds of Condition: expiration of the term, his right shall be transmitted
1.As to the cause upon which the fulfillment to his own heirs (CIVIL CODE, Art. 878).
depends:
a.Potestative fulfillment depends exclusively 2.Resolutory Term
upon the will of the heir, devisee, or legatee, and Rights are immediately demandable but subject to
must be performed by him personally. It may extinguishment upon the arrival of the date or time
either be: designated by the testator (CIVIL CODE, Art.
i. Positive when it consists of the doing or 1193).
giving of something.
ii. Negative when it consists of not doing or Time of Fulfillment
giving anything. 1.If the Condition is Purely Potestative
a. Positive Potestative Condition:
b.Casual fulfillment depends exclusively upon The heir must fulfill it as soon as he learns of the
chance and/or upon the will of a third person. testators death, unless the condition is already
c. Mixed fulfillment depends jointly upon the will complied with and cannot be fulfilled again
of the heir, devisee, or legatee and upon chance (CIVIL CODE, Arts. 876).
and/or will of a third person.
b. Negative Potestative Condition:
2. As to the effects: The right of the heir, devisee or legatee does not
a.Suspensive - a condition upon the fulfillment of have to be held in suspense.
which successional rights are acquired.
He acquires his right as a matter of course
Pending its fulfillment, the estate shall be placed without any limitation other than that of not doing
under administration until the condition is or not giving something (CIVIL CODE, Arts.
fulfilled, or it becomes certain that it cannot be 879).
fulfilled (CIVIL CODE, Art. 880).
Caucion Muciana
b.Resolutory - a condition upon the fulfillment of Under Art. 879, in order that such heir, legatee or
which rights already acquired are extinguished. devisee shall not perform or give that which is
prohibited, he is required to give a bond or security
If the suspensive condition is not fulfilled or if the known as caucion muciana.
resolutory condition is fulfilled, as the case may
be, the estate shall pass to the legal heirs 2.If the condition is casual or mixed
(JURADO, Succession, supra at 227). It shall be sufficient if it happens or be fulfilled at
any time before or after the death of the testator,
Term UNLESS he has provided otherwise (CIVIL
It is the day or time when a testamentary disposition CODE, Arts. 877).
either becomes demandable or terminates (CIVIL
CODE, Art. 1193). Two Secondary Rules
a.If the condition had already been fulfilled at the
Kinds of Term (CIVIL CODE, Art. 885): time of the execution of the will and the testator

was unaware thereof, it shall be deemed to have potestative or mixed, the doctrine is applicable
been complied with. (JURADO, Succession, supra at 229).
b.If the condition has already been fulfilled at the
time of the execution of the will and the testator
had knowledge thereof, the condition shall, as a L EGITIME
rule, still have to be complied with, unless it is of
such a nature that it can no longer exist or be Three Principal Systems of Distribution of
complied with again (JURADO, Succession, Hereditary Property
supra at 223). 1.The system of absolute freedom of disposition
everything is free; there is no legitime.
Term distinguished from Condition 2.The system of total reservation the testator
Condition Term cannot freely dispose of any part of the inheritance
Sure to happen or to which by force of law goes to certain legal heirs.
An uncertain event arrive, even if the exact 3.The system of partial reservation the inheritance
which may or may not date of such happening is divided into the free portion and the legitime.
happen or arrival may be The distribution may be exclusively by law, or
uncertain. exclusively by the will of the testator, or by law and
The right is already will (PARAS, Civil Code, supra at 296-297).
The acquisition of the
transmitted to the heir
right depends upon the
upon the death of the Note: The Civil Code adheres to the system of
happening of the
testator; the term Partial Reservation.
condition, such that if
merely serves to
the condition does not
determine the Legitime
happen, the heir does
demandability of such That part of the testators property which he cannot
not succeed.
right already acquired. dispose of because the law has reserved it for
(TOLENTIONO, Civil Code, supra at 236). certain heirs who are, therefore, called compulsory
Modal Institution (Institucion Sub Modo) heirs (CIVIL CODE, Art. 886).
Attachment by the testator to an institution of heir, or
to a devise or legacy, of a statement of the: Purpose of Legitime:
1.Object of the institution; To protect those heirs for whom the testator is
2.Application of the property left by testator; or presumed to have an obligation to reserve certain
3.Charge imposed by him. portions of his estate from his unjust ire or weakness
or thoughtlessness (TOLENTINO, Civil Code, supra
That which has been left in this manner may be at 250).
claimed at once provided that the instituted heir or
his heirs give security for compliance with the The cause of action to enforce a legitime accrues
wishes of the testator and for the return of anything upon the death of the donordecedent, since it is
he or they may receive, together with its fruits and only then that the net estate may be ascertained and
interests, if he or they should disregard this on which basis, the legitime may be determined
obligation (CIVIL CODE, Art. 882). (Imperial v. CA, G.R. No. 112483, October 8, 1999).
Note: When in doubt as to whether there is a Kinds of Legitime:

condition or merely a mode, consider the same as a 1.Fixed The aliquot part of the testators estate to
mode. When in doubt as to whether there is a mode which a certain class of compulsory heirs is
or merely a suggestion, consider the same only as a entitled by operation of law is always the same
suggestion. whether they survive alone or with other classes of
compulsory heirs.
Doctrine of Constructive Fulfillment 2.Variable The aliquot part changes depending
When without the fault of the heir, an institucion sub upon whether they survive alone or with other
modo cannot take effect in the exact manner stated classes of compulsory heirs (JURADO,
by the testator; it shall be complied with in a manner Succession, supra at 234).
most analogous to and in conformity with his wishes
(CIVIL CODE, Art. 883). Compulsory Heirs (CH)
Those for whom the legitime is reserved by law, and
If the condition is casual, the doctrine is not who succeed whether the testator likes it or not.
applicable since the fulfillment of the event which They cannot be deprived by the testator of their
constitutes the condition is independent of the will of legitime except by disinheritance properly effected.
the heir, devisee/legatee. If the condition is

Note: The fact of being a compulsory heir imposes Survivor Legitime Notes
no obligation to accept or receive the legitime. The
law on legitime is a restriction, not on the freedom of b. In case of legal
the heir to accept or repudiate the inheritance, but separation, the surviving
on the freedom of the testator to dispose of his spouse may inherit if it
property (TOLENTINO, Civil Code, supra at 252). was the deceased who
Kinds of Compulsory Heirs: had given cause for the
1.Primary those who have precedence over and same (CIVIL CODE, Art.
exclude other CH (e.g. LCD). 892).
2.Secondary those who succeed only in the a.Divide by the # of LC
absence of the primary CH (e.g. LPA or IP). b. The legitime of the
3.Concurring those who succeed together with SS shall be taken from
the primary or secondary CH (e.g. ICD and SS). 2 or 1/2 the free portion (CIVIL
more LC CODE, Art. 892).
Compulsory Heirs c. After deducting the
1.If Testator is a Legitimate Person SS Same as legitime of the SS, the
a.Legitimate Children and Descendants (LCD) that of remaining shall be at the
b.In default of the foregoing, Legitimate Parents each LC free disposal of the
and Ascendants (LPA) testator.
c. Surviving Spouse (SS)
d.Illegitimate Children and Descendants (ICD) a.The legitime of the IC
shall be taken from the
2. If Testator is an Illegitimate Person free portion (CIVIL
a.Legitimate Children and Descendants (LCD) CODE, Art. 888).
b.Illegitimate Children and Descendants (ICD) 1/2 b.In case of several IC:
LC
c. In default of the foregoing, Illegitimate Parents 1/2 of 1 If free portion is
IC
(IP) only LC sufficient, each IC gets
d.Surviving Spouse (SS) of 1LC.
If free portion is
General Rules insufficient, divide it
1.Direct descending line among the IC equally.
a.Rule of preference between lines a.The legitime of the IC
b.Rule of proximity shall be taken form the
c. Right of representation ad infinitum in case of free portion provided that
predecease, incapacity, or disinheritance (LC: the total legitime of such
LD only can represent; IC: both LD and ID can IC shall not exceed the
represent) free portion and that the
d.If all the LC repudiate their legitime, the next legitime of the SS must
generation of LD succeeds in their own right. first be fully satisfied
2.Direct ascending line (CIVIL CODE, Art.
a.Rule of division by lines 895[3]).
1/2
b.Rule of equal division LC b.In case of several IC:
1/4
3. Nonimpairment of legitime. SS If free portion is
1/2 of 1
IC sufficient, each IC gets
LC
Table of Legitimes of 1LC.
If free portion is
Survivor Legitime Notes insufficient, divide it
a.Divide by the # of LC, among the IC equally.
whether they survive c. If there are two (2) or
alone or with concurring more LC, the legitime of
LC 1/2 CH. the SS is the same as
b.The remaining shall be that of each LC and it
at the free disposal of the shall be taken from the
testator. free portion.
1 LC 1/2 a. The legitime of the LPA 1/2 a.This rule applies whether
SS 1/4 SS shall be taken only they survive alone or with
from the free portion other classes of CH.
(CIVIL CODE, Art. 892). b.They inherit in default of

Survivor Legitime Notes Survivor Legitime Notes
LCD of testator, otherwise articulo mortis, SS shall
they are excluded. inherit 1/2 of the estate
d.The remaining 1/2 in (b)
a.The to which IC is and (c) herein shall be at
entitled is taken from the the free disposal of the
free portion (CIVIL testator
CODE, Art. 896).
The remaining 1/2 shall be
LPA 1/2 b.The shall be divided in
IP 1/2 at the free disposal of the
IC 1/4 equal shares among
testator.
several IC.
c. The remaining shall be Children inherit in the
at the free disposal of the IP excluded
amounts established in the
testator. Any child it depends
foregoing rules.
a.The legitime of the SS
shall be taken from the Only the parents of IC are
LPA 1/2 free portion. IP 1/2 included. Grandparents and
SS 1/4 b.The remaining shall be SS 1/2 other ascendants are
at the free disposal of the excluded.
testator. When parents (legitimate or
a. The legitime of the illegitimate), or the
LP/IP or
SS and IC shall be legitimate ascendants of the
LA of the 1/2
taken from the free adopted concur with the
adopted
portion provided that the adopters, one half shall be
total legitime of such IC inherited by the parents or
Adopters 1/2
shall not exceed the free ascendants and the other
LPA 1/2 portion, and that the half by the adopters
SS 1/8 legitime of the SS must
IC 1/4 first be fully satisfied I. Legitime of Legitimate Descendants
(CIVIL CODE, Art. Consists of of the hereditary estate of their
895[3]). legitimate parents or ascendants, while the other
b. The remaining 1/8 half is at the latters free disposal subject to the
may be freely disposed of rights of the illegitimate children and surviving
by the testator (CIVIL spouse (CIVIL CODE, Art. 888).
CODE, Art. 899).
Rule of proximity applies where the relative nearest
a.Divide equally among the
in degree excludes the more distant ones, saving
IC.
the right of representation (i.e., grandchildren are
IC 1/2 b.The remaining shall be
excluded by the presence of their parents in the
at the free disposal of the
estate of their grandparents) (CIVIL CODE, Art.
testator.
962).
The remaining 1/3 shall be
SS 1/3 at the free disposal of the Rule in case of Adopted Child
IC 1/3 testator (CIVIL CODE, Art. The adopted shall be deemed to be a legitimate
894). child of the adopters.
SS a.1/3 if marriage is in
1/3 articulo mortis and the Exception: However, if the adoptee and his/her
1/2 testator spouse died biological parent(s) had left a will, the law on
1/2 within three (3) mos. after testamentary succession shall govern (FAMILY
1/2 the marriage. CODE, Art. 189 in rel. to Secs 17 & 18 of RA 8552
b. when they have been or the Domestic Adoption Act of 1998).
living as husband and
wife for more than five (5) Legitime of Legitimate Ascendants
years before marriage in Consists of of the hereditary estate of their
articulo mortis children and descendants.
c. If marriage is not in

Are excluded from the succession if they concur with The survivor being the plaintiff (who is the
legitimate children or descendants. innocent spouse), there is no question as to his
or her right to the legitime of the deceased guilty
Rules of Division: spouse.
1.The legitime shall be divided between the LPA
equally. III. Legitime of Illegitimate Descendants
2.If one of the LPA dies, the whole shall pass to the The amount of their legitime is variable depending
survivor. upon whether they inherit alone or as a class or
3.If both LPA dies before the testator but: concurrently with other classes of compulsory heirs.
a.Survived by ascendants of equal degree,
legitime shall be divided equally between the Under the Family Code, there is no more distinction
paternal and maternal line. between acknowledged natural children and
b. Survived by ascendants of different degrees, illegitimate children. They are all considered as
legitime shall pertain entirely to the nearest illegitimate. Thus, the 5:4 ratio no longer applies
degree (CIVIL CODE, Art. 890). (JURADO, Succession, supra at 288).
II. Legitime of Surviving Spouse However, the successional rights granted in favor of
Entitled to a legitime the amount of which is variable illegitimate children can be claimed only by those
depending upon whether he or she survives alone or whose parents died after the effectivity of the NCC.
concurrently with other compulsory heirs (JURADO,
Succession, supra at 285). It is the death of the parent and not the birth of the
illegitimate child which determines the right of such
The condition of being a surviving spouse requires child to succeed (Bulos v. Tecson, G.R. No. L-
that there should have been a valid marriage 18285, October 31, 1962).
between the deceased and the survivor.
When an illegitimate child dies before the testator,
Annulment of voidable marriage (valid until his rights to the legitime are transmitted to his own
declared void by a competent court) heirs. Representatives may either be legitimate of
In case of death of a party during the annulment illegitimate descendants (CIVIL CODE, Art. 902).
proceedings, the survivor is entitled to a legitime, the
marriage can no longer be annulled after the death Reason: Illegitimate children are considered
of one of the parties. It cannot be collaterally innocent, and therefore despite the moral lapse of
attacked. their parents, they are still given a legitime, but
precisely because they are born outside marriage,
If death occurred after marriage is annulled, the their legitime are LESS than those given to
survivor is no longer the spouse entitled to a legitimate children (6 Manresa 570).
legitime.
IV. Legitime of Illegitimate Parents
Legal Separation Compulsory heirs only in cases and to the extent
The widow or widower will be entitled to succeed provided for by Art. 903.
only when he or she is the innocent spouse.
They are excluded by the legitimate, or illegitimate
In case of reconciliation under Art. 66 of the Family children of their deceased natural or illegitimate
Code when one of the spouses should die, the child.
survivor gets his or her legitime, regardless of
whether he or she is the guilty party. Reserva Troncal (Or Reserva Extraordinaria/
Lineal) (CIVIL CODE, Art. 891)
If death occurred during the pendency of the legal The reservation by virtue of which an ascendant
separation proceedings, the effect shall depend on who inherits from his descendant any property which
which spouse died. the latter may have acquired by gratuitous title from
1.If it was the plaintiff who died, the proceeding shall another ascendant or a brother or sister, is obliged
continue to determine whether or not there is to reserve such property as he may have acquired
ground for legal separation which shall justify the by operation of law for the benefit of relatives who
exclusion of the surviving spouse from inheritance. are within the 3rd degree and who belong to the line
2.If it was the defendant spouse who died, the from which such property came.
action should be terminated.

Rule: Reserva troncal is possible only in the
legitimate family (Nieva v. Alcala, G.R. No. L-13386, Illustration
October 27, 1920). Before GFs death in 1950, he donated a parcel of
land to his grandson, P, the only child of his
Reason: The law in many articles speaks only of deceased son F. P died in 1960 w/o any heir in the
children or parents, or ascendants or descendants, direct descending line. As a consequence of which,
and in them reference is of course made to those the land passed to his mother M in accordance with
who are legitimate; and when it desires to make a intestate succession.
provision applicable only to natural relationship, it
does not say father or mother, but natural father or A ORIGIN
mother; it does not say child, but natural child; it
does not speak of ascendants, brothers or parents
in the abstract, but of natural ascendants, natural
brothers or natural parents (CIVIL CODE, Art. 891
+
speaks no qualifying word natural). B S F M
Nature: It is an exception to both the system of RESERVATARIOS RESERVISTA

legitime and the order of intestate succession.
+
P
The reserva creates a double resolutory condition to
which the right of ownership of the person obliged to
PROPOSITUS
reserve is subjected.
The Resolutory Conditions are:

1.The death of the ascendant obliged to reserve,
and Personal Elements:
2.Survival at the moment of relatives within the third 1.Originator the ascendant, or brother or sister
degree belonging to the line from which the (ABS) from whom the propositus had acquired the
property came (JURADO, Succession, supra at property by gratuitous title (e.g. donation,
276). remission, testate or intestate succession);
Purposes: Must be a legitimate relative because reserva

1.To prevent persons who are strangers to the troncal exists only in the legitimate family (Director
family form acquiring, by some chance or of Lands v. Aguas, G.R. No. L-42737, August 11,
accident, property which otherwise would have 1936).
remained with the said family (JURADO,
Succession, supra at 247). The property should have belonged to the
2.To maintain a separation between the paternal originator at the time of its acquisition by the
and maternal lines (TOLENTINO, Civil Code, propositus. The source of the property prior to the
supra at 270). acquisition by the originator is immaterial
3.To keep the property in the family to which the (TOLENTINO, Civil Code, supra at 276).
property belongs (Velayo Bernardo v. Siojo, G.R.
No. L-36078, March 11, 1933). While the Origin owns the property, there is of
course no reserva yet, and therefore, the origin
Requisites: has the perfect right to dispose of it, in any way he
1.The property should have been acquired by wants, subject, however, to the rule on inofficious
operation of law by an ascendant from his donations (PARAS, Civil Code, supra at 322).
descendant upon the death of the latter (CIVIL
CODE, Art. 891); 2.Propositus the descendant (brother or sister)
2.The property should have been previously who died and from whose death the reservista in
acquired by gratuitous title by the descendant from turn had acquired the property by operation of law.
another ascendant or from a brother or sister
(CIVIL CODE, Art. 891); and The term by operation of law applies to the
3.The descendant should have died without any transmission of the legitime in case of
legitimate issue in the direct descending line who testamentary, and to the entire inheritance in case
could inherit from him (JURADO, Succession, of intestate succession (TOLENTINO, Civil Code,
supra at 248). supra at 282).

The property should be acquired by gratuitous title The ascendant may alienate the property required
from an ABS. by law to be reserve. After the person who is
required by law to reserve the right has died, the
Prior charges on the property do not negate the relatives (reservatarios) may rescind the alienation
gratuitous character of the transmission. of the realty required by law to be reserved
If the property is acquired by virtue of a
compromise involving hereditary properties, it Rights of Reservista
can be truthfully said that the property was The reservista acquires all of the attributes of the
acquired, not by document of compromise but by right of ownership, such as enjoyment, disposal,
inheritance. Hence, the acquisition is by and recovery, although conditional and revocable
gratuitous title (PARAS, Civil Code, supra at (JURADO, Succession, supra at 273).
317).
4.Reservatarios the relatives of the propositus
Note: The propositus should have died without within the 3rd degree and who belong to the line
any legitimate issue in the direct descending line from which the property came and for whose
who could inherit from him (JURADO, benefit the reservation is constituted.
Conditions:
Propositus as arbiter of the fate of reserva a.They must be legitimate relatives of the
troncal descendant-propositus within the third degree.
As long as he lives, there is no reservation. The The degree of relationship must be counted from
property acquired by him gratuitously from the the descendant-propositus, because it is only
originator belongs to him in absolute dominion. e upon his death that the property becomes
may therefore dispose of it inter vivos or mortis reservable.
causa (TOLENTINO, Civil Code, supra at 286).
The Only Persons who can qualify as
A will may prevent the constitution of a reserva. Reservatarios are the following:
In case of testate succession, only the legitime Degree of
Relatives included
passes by operation of law. The propositus may, Relationship
by will, opt to give the legitime of his ascendant 1st degree
without giving to the latter properties he had Father or mother
relatives
acquired by gratuitous title from another 1. Grandparents; and
ascendant, or brother or sister. In such case, a nd 2. Brothers or sisters (of the full
reserva troncal is avoided (TOLENTINO, Civil 2 degree
relatives or half-blood) belonging to
Code, supra at 288). the line from which the
reservable property came.
3.Reservista the other ascendant who is obliged 1. Great grandparents;
to reserve the property for the benefit of the 2. Uncles or aunts (brothers or
relatives of the propositus who are within the third sistes of the full or half blood
degree and who belong to the line from which the of the prospositus father or
said property came. mother); and
3rd degree 3. Nephews or nieces (children
Two views on the reservista relatives of propositus brothers or
First View: Justice Vitug is of the view that the sisters of the full or half
reservista must not belong to the line from which blood)
the property came. Belonging to the line from
which the reservable
Second View: Dr. Tolentino, Civil Code of the property came.
Philippines, Civil Code of the Philippines, is of the
view that even if the reservista and the originator Note: The origin may be a reservatario.
belong to the same line, there is still an obligation
to reserve. b.They must belong to the line from which the
reservable property came.
He must have acquired the property by operation
of law.

Line from which the property came refers to transmitted to their own heir, unless these heirs
the paternal line as opposed to the maternal line, are also within the third degree (JURADO,
or vice versa and not to that which is constituted Succession, supra at 250).
by a series of degrees which may be either direct
or collateral. Summary of rules:
1.Reserva troncal merely determines the group of
Rule: The reservatario must not only be a relative relatives (reservatarios) to whom the property
by consanguinity of the prospositus within the third should be returned.
degree, but he must also be a relative by 2.Within that group, the individual right to the
consanguinity of the origin of the property. property should be decided by the applicable rules
i. If the origin is a brother of sister of the full blood of ordinary intestate succession (Padura v.
the question of line is unimportant because Baldovino, G.R. No. L-11960, December 27,
there is no way by which we would be able to 1958).
determine the line from which the property
came. Property Subject to Reservation
ii. If the origin is a brother or sister of the half-blood General Rule: It must be the same property which
the common parent or ascendant must always the reservista had acquired by operation of law from
be considered. propositus upon the death of the latter and which the
latter in turn had acquired by gratuitous title during
c. They must survive the ascendants-reservista. his lifetime from another ascendant, brother/sister
If the ascendant-reservista is survived by several (TOLENTINO, Civil Code, supra at 282).
relatives of the descendant-propositus and all of
them are within the third degree belonging to the Exception: Substitution of the reservable property
line from which the reservable property came, the through unavoidable necessity: (CLAD)
rules of legal or intestate succession shall apply 1.Property is Consumable;
(JURADO, Succession, supra at 262-267). 2.Lost/destroyed through the fault of the reservista;
The Civil Code did not provide for the rules on 3.Deteriorated through the same cause; and
how the reservatarios would succeed to the 4.It has been Alienated (JURADO, Succession,
reservista. However, the following rules on supra at 273).
intestacy have been consistently applied:
i. Rule of Preference Between Lines those in the Remedies of Reservatarios:
direct ascending line shall exclude those in the 1.To recover the value of the property;
collateral line (JURADO, Succession, supra at 2.To seek the ownership or return thereof; and
267). 3.If the reservable property is a sum of money the
ii. Rule of Proximity the nearest in degree shall ordinary rules for the collection of credit apply.
exclude the more remote ones (Id.).
iii. Right of Representation (provided that the The reservatarios can ask for the sale of property
representative is a relative of the descendant belonging to the estate of the reservista in order to
propositus within 3rd degree, and that he raise the necessary amount; or they may elect to
belongs to the line from which the reservable accept property of the inheritance as an equivalent
property came) (JURADO, Succession, supra at (TOLENTINO, Civil Code, supra at 283).
269).
iv. Full blood/double share rule in Art. 1006 of the Theories on the Value of Reserva
Civil Code applies (JURADO, Succession, 1.Reserva Maxima
supra at 268). All of the properties which the descendant had
previously acquired by gratuitous title from another
Note: If the reservatarios exist after the death of ascendant or from a brother or sister must be
the propositus, the property passes to such included in the ascendant's legitime insofar as
relatives. such legitime can contain.
If the reservatarios die before the propositus, the Always followed in Intestate Succession
property is release and will be adjudicated in
accordance with the regular order of succession. 2.Reserva Minima (Proportional Reserva)
All of the property which the descendant had
During the whole period between the constitution previously acquired by gratuitous title from another
of the reserva and the extinction thereof, the ascendant or from a brother or sister must be
reservatarios have only an expectation to the considered as passing to the ascendant-reservista
property, an expectation which cannot be partly by operation of law and partly by force of the

descendant's will (JURADO, Succession, supra at
261).
Effects when reservatario acquires right
This applies in testate succession. Upon the death of the reservista, the reservatario
nearest in degree to the descendant-propositus
Illustration: becomes, automatically and by operation of law, the
The descendant-propositus died with a will absolute owner of the reservable property.
wherein his mother is instituted as universal heir.
The net value of his hereditary estate is P40,000. The property is withdrawn automatically from the
One-half of this estate (20T) had been acquired estate of the reservista.
gratuitously from his deceased father, while the
other half (20T) had been acquired through his It is not part of the estate of the reservista and not
own efforts or industry. subject to administration, thus, it cannot be sold for
a.Reserva maxima: all of the properties acquired the payment of his debts (JURADO, Succession,
from the father are reservable because they can supra at 276-277).
be contained in the mothers legitime. Therefore,
The entire 20T is reservable Causes for Extinguishment of Reserva Troncal:
b.Reserva minima: one-half of said properties (PPWARL)
shall be included in the legitime of the mother 1.Prescription of the right of the reservatarios, when
which shall be considered as reservable, while the reservista holds the property adversely against
the other half shall be included in the free them in the concept of an absolute owner (10 yrs
portion. Therefore, only half of 40T (20T) is from the death of the propositus);
reservable (JURADO, Succession, supra at 2.Death of all relatives of Propositus within the 3rd
262). degree who belong to the line from which the
property came;
3.Waiver or renunciation by the reservatarios;
Obligations of reservista: (ASIA) 4.Death of Ascendant reservista;
1.To Annotate in the Registry of Property the 5.Registration by the reservista of the property as
reservable character of all reservable immovable free property under the Land Registration Act; and
property; 6.Loss of the reservable property for causes not due
2.To Secure by mortgage:(a) restitution of movables to the fault or negligence of the reservista
not alienated, (b) payment of damages caused by (PARAS, Civil Code, supra at 337).
his fault or negligence, (c) return of price received
for movables alienated or pay its value if made Transmissibility of Rights
gratuitously, and (d) payment of value of 1.The rights of illegitimate children are transmitted
immovable alienated; and upon their death to their descendants, whether
3.To make an Inventory of all reservable property; legitimate or illegitimate (CIVIL CODE, Art. 902).
and Note: There is no such right in Intestate
Succession (CIVIL CODE, Art. 992 or the Rule of
Note: Reservista has a period of ninety (90) days, Barrier between the Legitimate and Illegitimate
from the time the reserve arises, in which to Family/ iron curtain.)
register the reservable character of the property, if
he does not voluntarily cause the registration, 2.In the case of legitimate children, the person/s to
reservatorios may judicially demand that he be whom the right is transmitted must be legitimate
compelled to make it (TOLENTINO, Civil Code, descendants (JURADO, Succession, supra at
supra at 292). 302).
4.To Appraise value of all reservable movable Thus:

property (JURADO, Succession, supra at 274). 1.Illegitimate children have no right of representation
with respect to their legitimate parents.
Note: A reservatario may dispose of his 2.Illegitimate children of illegitimate parents can
expectancy to the reservable property during represent the latter in the inheritance of their
pendency of the reserve in its uncertain and grandparents estate.
conditional form. If he dies before the reservista,
he has not transmitted anything, but if he survives Principle of Untouchability of Legitime
such reservista, the transmission shall become General Rule: The testator cannot deprive his
effective (Sieves v. Esparcia,G.R. No. L-12957, compulsory heirs of their legitime. Neither can he
March 24, 1961). impose any burden, encumbrance, condition, or

substitution of any kind whatsoever (CIVIL CODE, 1.Determination of the gross value of the estate at
Art. 904). the time of the death of the testator (CIVIL CODE,
Exceptions: Arts. 908);
1. Valid disinheritance (CIVIL CODE, Art. 915); 2.Determination of all debts and charges which are
2. Reserva Troncal (CIVIL CODE, Art. 891); chargeable against the estate (CIVIL CODE, Arts.
3. Family Home (FAMILY CODE, Art. 159); and 908);
4. When the testator expressly forbids the division
of the estate but not to exceed 20 years (CIVIL Note: Refers to the preexisting obligations of the
CODE, Art. 1083). testator during his lifetime, and not to the charges
or burdens which are created by the testamentary
Renunciation or compromise as regards future dispositions found in the will.
legitime between the person owning it and his
compulsory heir is void (CIVIL CODE, Art. 905). 3.Determination of the net value of the estate by
deducting all the debts and charges from the
The rights of the heirs are merely inchoate because gross value of the estate (CIVIL CODE, Arts. 908);
it is only perfected upon the testators death. Hence, 4.Collation or addition of the value of all donations
there is still nothing to renounce or compromise. inter vivos to the net value of the estate (CIVIL
CODE, Arts. 908);
No contract maybe entered into with respect to
future inheritance except in cases expressly Proceeds of an insurance policy where the
authorized by law (CIVIL CODE, Art. 1347, par. 2). beneficiary is a third person or even a compulsory
heir belongs exclusively to the beneficiary and not
Who may claim Nullity of Renunciation or to the estate of the insured. Hence, not subject to
Compromise collation.
The compulsory heir who renounced or
compromised his legitime or any co-heir who may In case of premiums, although they partake of the
be prejudiced. However, such claim for nullity is nature of donations, it is submitted that so long as
made only after the death of the testator, it is they are paid from the income of the insured and
required that the heir who is filing the claim must are not excessive, they are not subject to collation.
bring to collation whatever he might receive by virtue
of the renunciation or compromise (JURADO, 5.Determination of the amount of the legitime from
Succession, supra at 307). the total thus found;
6.Imputation of the value of all donations inter vivos
Incomplete Legitime v. Preterition made to compulsory heirs against their legitime
Art. 906 Art. 854 and of the value of all donations inter vivos made
(Incomplete Legitime) (Preterition) to strangers against the disposable free portion
Heir not entirely Total omission of the and restoration to the hereditary estate if the
forgotten heir donation is inofficious (CIVIL CODE, Arts. 909);
Less than the portion of Total deprivation of and
the legitime legitime
Remedy is to demand Effect is the total Imputation is merely a mathematical process of
for completion of annulment of the determining whether the value of donation can be
legitime institution of heirs contained in the legitime or disposable portion, as
the case may be, or not.
If some heirs are genuinely interested in that part of
their late fathers property which has been reserved 7.Distribution of the residue of the estate in
for them in their capacity as compulsory heirs, then accordance with the will of the testator (JURADO,
they should simply exercise their actio ad Succession, supra at 310-311).
supplendam legitimam, or their right of completion of
legitime. Such relief must be sought during the Meaning of collation
distribution and partition stage of a case for 1.Fictitious mathematical process of adding the
settlement of the estate their father (Gala v. Ellice value of the thing donated to the net value of the
Agro-Industrial Corp., G.R. No. 156819, December hereditary estate (CIVIL CODE, Art. 908 and Arts.
11, 2003). 10611077).
Purpose: To compute the legitime of compulsory
Steps in Distribution of Estate if there are heirs.
Donations:

2.Act of charging or imputing such value against the amount of legacies made in favor of Y and Z.
legitime of the compulsory heir to whom the thing Hence, pro rata reduction is necessary.
was donated (CIVIL CODE, Arts. 10611077). 5.Thus, to determine the legacy in favor of Y Let: X
Purpose: To take the donations in the account of = reduced legacy
partition in order to equalize the shares of the 15T = disposable free portion left out
compulsory heirs as much as possible. 10T = legacy to Y to be reduced
20T = total of all legacies in favor of Y and Z
3.Actual act of restoring to the hereditary estate that
part of the donation which is inofficious in order X 10T 10T(15T) 150T
= X= = 20T = P7,500
not to impair the legitime of compulsory heirs 15t 20T 20T
6.Hence, Y is entitled to 7,500. Using the same
Reduction of Testamentary Dispositions and formula, Z is also entitled to 7,500 for a total of
Donations 15T. (JURADO, Succession, supra at 322-323)
The order of preference is as follows:
1.Legitime of compulsory heirs Note: Article 911 applies when aside from the
2. Donations inter vivos various legacies and devises there are legitimes to
In case of two or more donations where the be preserved.
disposable portion is not sufficient to satisfy them,
those of the recent date shall be reduced (CIVIL Article 950 applies when there are no compulsory
CODE, Art. 778). heirs or when there are no inofficious donations inter
3.Preferential legacies or devises vivos.
4.All other legacies and devises (CIVIL CODE, Art.
911)
Note: The reverse order of the foregoing shall be

followed in case reduction is necessary.
If after satisfying the legitime of compulsory heirs,
the disposable portion is sufficient to cover D ISINHERITANCE
donations inter vivos, but not the legacies and
devises, the rule is that such legacies and devises Disinheritance
will be reduced pro rata, after satisfying those It is the act of the testator in depriving a compulsory
preferential ones. heir of his legitime for causes expressly stated by
law (JURADO, Succession, supra at 327).
Formula for Pro Rata Reduction:
Requisites:
Reduced legacy = Legacy to be reduced 1.For a cause expressly stated by law;
Disposable Portion Total of all legacies 2.Cause must be stated in the will itself;
3.Cause must be certain and true;
Illustration of Arts. 908-911 of the Civil Code 4.Unconditional;
Q: The net value of the testators estate is 40T. 5.Total or complete;
During his lifetime, he donated to X 10T. In his will, 6.The heir disinherited must be designated in such a
he bequeathed 10T each to Y and Z. He has a son manner that there can be no doubt as to his
S. Distribute his estate identity;
7.Effected only through a valid will;
A: The estate shall be distributed as follows: 8.For an existing cause; and
1.Collate or add the donation in favor of X to the 9.The will must not have been revoked (PARAS,
estate. [10T + 40T = 50T] Civil Code, supra at 380).
2.Determine the legitime of his compulsory heir and
subtract it to the net value. In this case, S as the Effects of disinheritance:
son is entitled to of the estate. [50T x = 25T]. 1.Deprivation of the compulsory heir who is
Leaving a disposable free portion of 25T. [50T disinherited of any participation in the inheritance
25T (legitime) = 25T]. including the legitime and free portion.
3.Since, the 10T donation in favor of X can be 2.The children/descendants of the person
imputed to the disposable free portion, it will not disinherited shall take his or her place and shall
be reduced. preserve the rights of compulsory heirs with
4.However, the amount left out of the disposable respect to the legitime.
portion will only be 15T which is less than the

3.The disinherited parent shall not have the usufruct Valid Disinheritance Preterition
or administration of the property which constitutes omitted heir inherits
the legitime (JURADO, Succession, supra at 343). May exist with or
without a will (as when
Instances of Imperfect Disinheritance everything is given to
1.No cause stated; A will is always required only one of the
2.No true cause; compulsory heirs by
a.Not legal cause (CIVIL CODE, Art. 918); way of donation inter
b.Not total or is conditional vivos)
c. Subsequent reconciliation (Paras, Civil Code, The institution is always
supra at 383) May be VALID when all VOID, except when the
of the requirements of preterited heir
Effects of Imperfect Disinheritance: the law are met predeceased the
1.If testator had made a disposition of the entire testator
estate: annulment of the testamentary
dispositions only in so far as they prejudice the Common Causes for Disinheritance of Children
legitime of the person disinherited; does not affect or Descendants, Parents or Ascendants, and
the dispositions of the testator with respect to the Spouse: (AFAR)
free portion. 1.When the heir has been found guilty of an Attempt
2.Devises, legacies and other testamentary against the life of the testator, his/her descendants
dispositions shall be valid to such extent as will or ascendants, and spouse in case of children
not impair the legitime (PARAS, Civil Code, supra and parents;
at 384).
3.If testator did not dispose of the free portion: Requisites:
compulsory heir is given all that he is entitled to a.The disinherited heir must have committed
receive as if the disinheritance has not been either attempted or frustrated parricide; and
made, without prejudice to lawful dispositions b.He must have been convicted for said criminal
made by the testator in favor of others. offense.
Imperfect Disinheritance v. Preterition
Imperfect Note: If the attempt is made by the spouse,
Preterition
Disinheritance conviction is not necessary (JURADO,
The person disinherited The person omitted Succession, supra at 342). If there is no previous
may be any compulsory must be a compulsory criminal conviction, the attempt, if it is made
heir heir in the direct line against the life of the testator, will constitute a
Always express Always implied valid ground for disinheritance under Art. 919(6) of
May be intentional or the Civil Code; provided all the requisites for said
Always intentional ground are present.
unintentional
Effect: Partial
Effect: Total annulment 2.When the heir by Fraud, violence, intimidation, or
annulment of institution
of institution of heirs undue influence causes the testator to make a will
of heirs
Institution remains or to change one already made;
valid, but must be 3.When the heir has Accused the testator of a crime
Institution is completely for which the law prescribes imprisonment for 6
reduced insofar as the
annulled years or more, if the accusation has been found
legitime has been
impaired groundless; and
Valid Disinheritance v. Preterition Accusation may be either in the capacity of a

complainant or a witness.
Valid Disinheritance Preterition
Omission may either be
There must be a judicial declaration that the
Always intentional intentional or
accusation has been found groundless
unintentional
The cause must always
be stated in the will and May be with or without
4.Refusal without justifiable cause to support the
it must be true and a cause
testator who disinherits such heir.
legal
The disinherited heir Preterition annuls the
inherits nothing institution, therefore the

Judicial demand for support is not necessary. d.Attempt by one of the parents against the life of
However, the refusal must be without justifiable the other, unless there has been reconciliation
cause (TOLENTINO, Civil Code, supra at 363). between them (CIVIL CODE, Art. 920).
Peculiar Causes for disinheritance Note: Final judgment of conviction is not

1.Children/Descendants: (C-MAD) necessary (JURADO, Succession, supra at
a.Conviction of a crime which carries with it a 340).
penalty of civil interdiction;
b.Maltreatment of the testator by word or deed by 3.Spouse:
the child/descendant; a.When the spouse has given cause for legal
Note: Must be intentional or voluntary. separation; and
c. When the child/descendant has been convicted Note: Criminal conviction is not a condition sine
of Adultery or concubinage with the spouse of qua non (JURADO, Succession, supra at 342).
the testator; and
Note: Final judgment of conviction is an b.When the spouse has given grounds for the loss
essential requisite. of parental authority (CIVIL CODE, Art. 921).
d.When the child/descendant leads a Revocation of Disinheritance:

Dishonorable or disgraceful life (it includes both 1.Reconciliation;
male and female descendants) (CIVIL CODE, 2.Subsequent institution of the disinherited heir; and
supra at 919). 3.Nullity of the will which contains the disinheritance.
2.Parents/Ascendants: (CALA) Once disinheritance has been revoked or rendered

a.When the parent/ascendant has been convicted ineffectual, it cannot be renewed except for causes
of adultery or Concubinage with the spouse of subsequent to the revocation or based on new
the testator; grounds.
b.When the parents have Abandoned their
children or induced their daughters to live a Reconciliation
corrupt or immoral life, or attempted against It is the resumption of genuine cordial relationship
their virtue; between the testator and the disinherited heir,
Note: Abandonment refers to the failure of the approximating that which prevailed before the
parents to give their children due care, testator learned of the cause for disinheritance,
instruction and support (JURADO, Succession, reciprocally manifested by their actions subsequent
supra at 337). to the act of disinheritance.
c. Loss of parental authority for causes specified in A subsequent reconciliation between the offender
the Code; and and the offended person deprives the latter of the
right to disinherit and renders ineffectual any
Note: There must be an actual loss effected by disinheritance that may have been made (CIVIL
final judgment (JURADO, Succession, supra at CODE, Art. 922).
338).
Mere civility which may characterize their
Two Views on the Effect of Restoration of relationship is not enough.
Parental Authority
1st View: No effect on the disinheritance if it In order to be effective, the testator must pardon the
has been made, because the ground or basis for disinherited heir. Such pardon must specifically refer
the disinheritance is not the loss of parental to the heir and to the acts causing the
authority but the offense committed by the disinheritance. The heir must accept the pardon.
offender (JURADO, Succession, supra at 339).
No particular form is required. It may be made
2nd View: The testator would be deprived of his expressly or tacitly (PARAS, Civil Code, supra at
right to disinherit his parent or ascendant or it 400).
would render the disinheritance ineffectual if it
has already been made, because the legal basis Effect of Subsequent Reconciliation if ground
for disinheritance would no longer exist for Disinheritance is Unworthiness to Succeed
(PARAS, Civil Code, supra at 397).

1.If disinheritance has been made: Rule on In case of subsequent division or partition between
reconciliation applies. The disinheritance becomes the owners in common:
ineffective. 1.If the thing is physically divisible or convenient of
2.If disinheritance has not been made: Rule on division, Art. 929 of the Civil Code applies.
reconciliation does not apply. The heir continues 2.If the thing is physically indivisible or inconvenient
to be incapacitated to succeed unless pardoned of division, the rules applicable shall depend upon
by the testator under Art. 1033 of the Civil Code. whether the thing is finally adjudicated to the
The law effects the disinheritance. testator or to the other owner applying the
provisions of Arts. 929 and 930 of the Civil Code.
Right of Representation in Disinheritance a. If the property is adjudicated to the testator
The children and descendants of the person and what was bequeathed or devised is that part
disinherited shall take his or her place and shall which belonged to the testator before the
preserve the rights of compulsory heirs with respect partition, the legacy or devise subsists.
to the legitime (CIVIL CODE, Art. 923). a. If the property is adjudicated to the testator
and what was bequeathed or devised is the
The disinherited person can be represented only if entire property, the whole property shall pass in
he is a child or descendant (TOLENTINO, Civil its entirety to the legatee or devisee.
Code, supra at 374). b. If the property is adjudicated to the other
owner and the testator has NOT expressly
declared that he bequeaths or devises the
L EGACIES AND D EVISES property in its entirety, the legacy or devise shall
be without effect, applying the provision of No. 2
Persons Charged with Legacies and Devises: in Art. 957 of the Civil Code.
1.Compulsory heir;
2.Voluntary heir; If the property is adjudicated to the other owner
3.Legatee or devisee; and and the testator has declared that he bequeaths
4.Estate or devises the property in its entirety, the legacy
shall be without effect only with respect to what
If the will is silent as to who shall pay or deliver the had formerly belonged to him, again applying
legacy/devise: No. 2 of Art. 957 (JURADO, Succession, supra
1.If there is an administration proceeding, it at 347-348).
constitutes a charge upon the estate.
2.If there are no administration proceedings, it is a
charge upon the heirs (CIVIL CODE, Art. 926 [2]). Legacy of Things belonging to Legatee
The legacy or devise of a thing which at the time of
Note: A legacy is bequeathed; while a devise is the execution of the will already belonged to the
devised (PARAS, Civil Code, supra at 403). legatee or devisee shall be ineffective, even though
another person may have some interest therein
Extent of Liability of Legatees/Devises (CIVIL CODE, Art. 932).
The legatees/devisees shall be liable for the charge
to the extent of the value of the legacy/devise Dispositions in General Terms
received. A disposition made in general terms in favor of the
testator's relatives shall be understood to be in favor
The compulsory heir shall not be liable for the of those nearest in degree (CIVIL CODE, Art. 959).
charge beyond the disposable portion given to him.
It should not affect his legitime (CIVIL CODE, Arts. The Rule of Proximity is the only rule that shall be
925). applied, thus, the other rules of intestate succession
(e.g. right of representation, etc) are not applicable.
Legacy of Things Belonging Partly to Strangers
If the testator, heir, or legatee owns only a part of, or This rule also applies to institution of heirs
an interest in the thing bequeathed, the legacy or (JURADO, Succession, supra at 374).
devise shall be understood limited to such part or
interest, unless the testator expressly declares that Where the testator stated in his will that all of his
he gives the thing in its entirety (CIVIL CODE, Art. properties not disposed of in the will shall be
929). distributed in equal parts to all who are entitled
thereto, it was held that Art. 959 cannot be applied.
Effects of Partition The testator, who was a lawyer, by referring to all
who are entitled thereto instead of relatives, clearly

intends that the properties shall be given to those the delivery of only one of them to the beneficiary
entitled thereto in accordance with the rules of (CIVIL CODE, Art. 940).
intestate succession. Therefore, not only the rule of
proximity, but other rules of intestate succession To whom Choice is given:
must be applied (Vda. De Singson v. De Lim, G.R. 1.The heir upon whom the obligation to give the
No. 48627, February 19, 1943). legacy or devise is imposed; or
2.Executor or administrator if no heir is obliged
Pledged or Mortgaged Legacies/Devises (CIVIL CODE, Art. 931).
When the thing bequeathed has been given as a
security, the legatee/devisee should receive it free Note: Choice will have to be made upon the death
from the encumbrance, unless a contrary intention of the testator. Once the choice is made, it is
of the testator appears. irrevocable, and the legacy becomes simple
Any other charge, perpetual or temporary with which
the legacy/devise is burdened, passes to the If the heir, legatee or devisee dies before making
legatee/devisee (e.g. usufructs, easements) (CIVIL the choice, this right shall pass to their respective
CODE, Art 934). heirs (JURADO, Succession, supra at 357).
There is, in effect, a novation of the credit by Generic Legacies and Generic Devises
subrogating the legatee in the rights of the original
creditor JURADO, Succession, supra at 354). Generic Legacy legacy consisting of personal
property designated merely by its class or genus
Legacy of Credit and Remission of Debt without any particular or physical segregation from
all others of the same class (CIVIL CODE, Art. 941).
Legacy of Credit takes place when the testator
bequeaths to the legatee a credit which he has A legacy of generic personal property is valid even if
against a third person (Arts.935-937) (PARAS, Civil there be no such things of the same kind in the
Code, supra at 420). estate.
Legacy of Remission of Debt waiver of a debt A choice has to be made. Once choice is made, the
existing at the time the will was made and in the legacy becomes determinate.
amount outstanding at the time of the death of the
testator (Arts.935-937) (PARAS, Civil Code, supra at Generic Devise refers to a devise consisting of
420-421). real property designated merely by its class or
genus without any particular designation or physical
Kinds of legacy of Remission of Debt segregation from all others of the same class (CIVIL
1.Generic comprises all debts existing at the time CODE, Art. 941).
of the execution of the will but not subsequent
ones. A devise of indeterminate real property is valid only
2.Specific comprises only the debt which is if there be immovable property of its kind in the
specifically mentioned in the will. estate.
3.Legacy to the debtor of the thing pledged by him
(JURADO, Succession, supra at 354). When right to Devise or Legacy is Transmitted
1.If specific from the testators death
Revocation of Legacy 2.If generic from the time a selection has been
It takes place when the testator, after having made made, so as to make the property specific
the legacy of credit or remission of debt, brings a 3.If alternative from the time the choice has been
judicial action against the debtor (CIVIL CODE, Art. made
935). 4.If acquired from a stranger by virtue of an order by
the testator from the moment of such acquisition
Legacy to Creditors
Legacy/devise made to creditor shall not be applied Classification of Legacies
to his credit, unless the testator provides otherwise 1. As to effect
(CIVIL CODE, Arts. 938-939). Status of Property
Effect on the Legacy/
Given by
Alternative Legacies/Devises Devise
Legacy/Devise
Those where the testator bequeaths or devises two Belonging to the Effective
or more things but which can be complied with by testator at the time of

Status of Property Status of Property
Effect on the Legacy/ Effect on the Legacy/
Given by Given by
Devise Devise
Legacy/Devise Legacy/Devise
the execution of the will even though it may
until his death. have been
Belonging to the subsequently alienated
testator at the time of by him (CIVIL CODE,
the execution of the will Art. 933).
Revoked
but alienated in favor of Testator had knowledge
a third person (CIVIL that the thing
CODE, Art. 957). bequeathed belonged
Belonging to the to a third person and
Legatee/devisee can
testator at the time of the legatee/devisee
No revocation. There is claim nothing by virtue
the execution of the will acquired the property
a clear intention to of the legacy/devise
but alienated in favor of gratuitously after the
comply with legacy or
the legatee/devisee execution of the will
devise.
gratuitously (CIVIL (CIVIL CODE, Art.
CODE Art. 931). 933).
Belonging to the Testator had knowledge
testator at the time of that the thing
Legatee/devisee can
the execution of the will bequeathed belonged
demand reimbursement Legatee/devisee can
but alienated in favor of to a third person and
from the heir or estate demand reimbursement
the legatee or devisee the legatee/devisee
from the heir or estate
onerously. acquired the property
Not belonging to the by onerous title (CIVIL
testator at the time the CODE, Art. 933).
will is executed but he
has ordered that the 2. As to validity
thing be acquired in Effective Valid
order that it be given to a.Within the commerce of man
the legatee/devisee b.Owned by testator
(CIVIL CODE, Art. c. Owned by stranger if there is an order, express
931). or implied, to acquire it from him
Not belonging to the d.Given because of moral obligation
testator at the time the e.Given as natural obligation
will is executed and the f. Generic personal property even if there be
testator erroneously Void none in the estate
believed that the thing Void ab initio
pertained to him (CIVIL a.Outside the commerce of man
CODE, Art. 930). b.Owned by stranger but mistakenly believed by
Not belonging to the testator to be owned by the latter (unless later
testator at the time the owned by the latter)
will is executed but c. Legacy in a void will
Effective
afterwards becomes his d.Generic real property if there be none of its kind
by whatever title (CIVIL in the estate
CODE, Art. 930). e.If totally inofficious
Already belonged to the Inoperative
legatee/devisee at the a.Those revoked expressly
time of the execution of b.Those revoked impliedly as when same (legacy)
the will even though is given to another by a subsequent will
Ineffective
another person may c. Those revoked by implication of law
have interest therein transformation, alienation by testator except
(CIVIL CODE, Art. when reacquired by right of repurchase or
932). judicial demand
Already belonged to the Ineffective d.Destruction or loss thru a fortuitous event
legatee or devisee at e.Intentional destruction by testator
the time of the f. Predecease, repudiation, incapacity of legatee
execution of the will g.Disinheritance if legatee is compulsory heir

4.Other causes:
Rules on Preference a.Nullity of the will;
Art. 911 Art. 950 b.Noncompliance with suspensive conditions
Order of preference: Order of preference: affecting the bequests;
(LIPO) (RPSESO) c. Sale of the thing to pay the debts of the
1. Remuneratory L/D deceased during the settlement of his estate;
1.Legitime of 2. Preferential L/D and
compulsory heirs; 3. L for Support d. Revocation of legacy of credit/remission of debt
2.Donations Inter vivos; 4. L for Education (CIVIL CODE, Art. 957 in rel. to Art. 830 (1)
3.Preferential legacies 5. L/D of a Specific, Revocation by Implication of Law).
or devices determinate thing Note: The list is NOT exclusive.
4.All Other legacies or which forms a part of
devices pro rata the estate
6. All Others pro rata. L EGAL OR I NTESTATE
Application:
1.When the reduction is 1.When there are no S UCCESSION
necessary to compulsory heirs and
preserve the legitime the entire estate is Legal or Intestate Succession
of compulsory heirs distributed by the A mode of transmission mortis causa which takes
from impairment testator as legacies or place in the absence of the expressed will of the
whether there are devises; or decedent embodied in a testament.
donations inter vivos 2.When there are 1.Legal because it takes by operation of law.
or not; or compulsory heirs but
2. Intestate because it takes place in the absence
2.When, although the their legitime has
or in default of a last will of a decedent (JURADO,
legitime has been already been
preserved by the provided for by the
testator himself, there testator and there are
Characteristics:
are donations inter no donations inter
1.It is conferred by law.
vivos. vivos.
2.It takes place only in the absence of the will of
man as expressed in a testament.
Note: In case of reduction in the above cases, the
inverse order of payment should be followed.
Basis: The law has put itself in the place of the
Effect of Ineffective Legacies/Devises
deceased and made what it presumes he would
General Rule: In case of repudiation, revocation or
have done if he had been able to express his will. It
incapacity of the legatee or devisee, the
has made the presumed will of the deceased the
legacy/devise shall be merged with the mass of the
basis of intestate succession, taking into
hereditary estate.
consideration human affection or love and blood
Exception: In cases of substitution or accretion
relationship (TOLENTINO, Civil Code, supra at 431).
Causes of Intestacy:
Grounds for Revocation of Legacies and
(SWIPER PPAIR)
Devises
1.Nonfulfillment of Suspensive condition attached
1.When the testator transforms the thing
to the institution of heir;
bequeathed in such a manner that it does not
2.If a person dies without a Will, or with a void will,
retain either the form or the denomination it had;
or one which has subsequently lost its validity;
2.When the testator by any title or for any cause
3.Incapacity of instituted heir;
alienates the thing bequeathed, or any part
4.Predecease of the instituted heir;
thereof, it being understood that in the latter case
5.Expiration of term or period of institution;
the legacy or devise shall be without effect only
6.Repudiation by the instituted heir;
with respect to the part alienated;
7.Partial institution of heir, in which case, intestacy
Exception: When the thing should again belong to
takes place as to the undisposed portion (mixed
the testator after alienation by virtue of:
succession);
a.Nullity of the contract due to want or absence of
8.Preterition, in which case intestacy may be total or
consent (fraud, violence etc.), or
partial depending on whether or not there are
b.Exercise of right of repurchase.
legacies/devises;
3.Thing bequeathed is totally lost during the lifetime
9.Absence of an instituted of heir;
of the testator, or after his death without the fault
of the heir/s; and

10. Noncompliance or Impossibility of compliance a. Division among brothers and sisters, some
with the will; and of whom are of the full and others of half-blood;
11. Fulfillment of Resolutory condition (CIVIL CODE, b. Division in cases where the right of
Art. 960); representation takes place; and
c. Division between legitimate and illegitimate
Note: In all cases, where there has been an children (JURADO, Succession, supra at 382).
institution of heirs, follow the (I.S.R.A.I.) order of
Justice Paras: Note: This rule is subject to the rule of preference
1.If the Institution fails, Substitution occurs. between lines.
2.If there is no substitute, the right of Representation
applies in the direct descending line to the legitime 5.Rule of Barrier between the Legitimate Family
if the vacancy is caused by predecease, and the Illegitimate Family The illegitimate
incapacity, or disinheritance. family cannot inherit by intestate succession from
3.The right of Accretion applies to the free portion the legitimate family and viceversa.
when the requisites in Art. 1016 are present.
4.If there is no substitute, and the right of 6.Rule of Double Share for Full blood collaterals
representation or accretion does not apply, the When full and halfblood brothers or sisters,
rules on Intestate succession shall take over. nephews or nieces, survive, the full blood shall
take a portion in the inheritance double that of the
Rules on Intestate Succession: halfblood (JURADO, Succession, supra at 419).
1.Rule of Preference Between Lines Those in
the direct descending line shall exclude those in 7.Rule of Division of Line decedent is survived
the direct ascending and collateral lines, and by 2 grandparents (GP) in the paternal line and 1
those in the direct ascending line shall, in turn, GP in maternal, the inheritance shall be divided
exclude those in the collateral line (JURADO, to GPs in the paternal line, while to GP in the
Succession, supra at 381). maternal line (CIVIL CODE, Art. 987).
2.Rule of Proximity The relative nearest in Rules on Relationship:

degree excludes the more distant ones, saving the 1.Number of generations determines proximity.
right of representation when it properly takes place 2.Each generation forms a degree.
(CIVIL CODE, Art. 962). 3.A series of degrees forms a line.
4.A line may be direct or collateral.
This rule is subject to the rule of preference a.Direct Line
between lines (e.g., although the son and the Constituted by the series of degrees among
father of the decedent are both one (1) degree ascendants and descendants (ascending and
removed from the latter, the son shall exclude the descending).
father). b.Collateral Line
Constituted by the series of degrees among
3.Rule of Representation It modifies the Rule of persons who are not ascendants or
Proximity. The more distant relatives belonging to descendants, but who come from a common
the same class as the person represented are ancestor.
raised to the place and degree of such person and 5.Full blood (same father and mother) and half-
acquire the rights which the latter would have blood (only one of either parent is the same).
acquired if he were living or if he could have 6.In adoption, the legal filiation is personal and
inherited (JURADO, Succession, supra at 381). exists only between the adopter and the adopted.
The adopted is deemed a legitimate child of the
It is the means by which the descendants of a adopter (AP), but still remains as an intestate heir
child, in default of the latter because of prior of his natural parents and other blood relatives
death, disinheritance, or incapacity, can take his (CIVIL CODE, Arts. 963 969).
degree or place. Superior to right of accretion
Incapacity
4.Rule of Equal Division Relatives in the same General Rule: The share or shares which are
degree shall inherit in equal shares (CIVIL CODE, rendered vacant shall pass to the co-heirs of the
Art. 962). incapacitated heir or heirs by right of accretion
Exceptions:
a. Division in the ascending line (between Exception: If the incapacitated heir happens to be a
paternal and maternal grandparents); child or descendant of the decedent and he has

children or descendants of his own, then the share
which is rendered vacant by reason of incapacity Neither can it be affected by the last will and
shall pass to such children or descendants by right testament of the person represented.
of representation.
If a child renounces or repudiates his inheritance
Repudiation when his father died, he may still represent the
1.By one or some of the relatives (CIVIL CODE, Art. latter, when subsequently, his grandfather dies.
968)
The general rule as in case of incapacity shall When Representation takes place:
apply. 1.Predecease (testate and intestate);
2.By all of the relatives (CIVIL CODE, Art. 969) 2.Incapacity (testate and intestate); and
Those of the following degree shall inherit in their 3.Disinheritance (testate succession) (JURADO,
own right. Succession, supra at 390).
The inheritance shall be distributed among them
per capita. Characteristics:
1.It is a right of subrogation;
Note: In both instances, the right of representation 2.It is an exception to the rule on proximity and
cannot be applied. equal division among relatives of the same class
and degree;
Reason: An heir who repudiates his inheritance 3.The representative is called to the succession by
may not be represented. the law and NOT by the person represented;
4.The representative succeeds the decedent NOT
Right of Representation the person represented; and
A right created by fiction of law, by virtue of which 5.It can only take place when there is a vacancy in
the representative is raised to the place and degree the inheritance brought about by either
of the person represented, and acquires the rights predecease, or incapacity, or disinheritance of an
which the latter would have if he were living or if he heir; and
could have inherited (CIVIL CODE, Arts. 970). 6.The right can be exercised only by grandchildren
or descendants of the decedent.
By virtue of this right, the relative nearest in degree
does not exclude the more remote ones (JURADO,
Consequences:
Note: The subrogation or the representation obtains a.Representative must be capable of succeeding
degree by degree, the inferior one representing the the decedent.
relative immediately higher in degree. No jump is b.Even if the representative is incapable of
made. succeeding the person represented, he can still
inherit by right of representation so long as he is
There is transmission only with respect to capable of succeeding the decedent.
inheritance conferred by law. c. Even if the representative had repudiated his
inheritance coming from the person
In testamentary succession, it takes place only with represented, he can still inherit from the
respect to the legitime. decedent by right of representation.
General Rule: Representation takes place only in 7.It takes place when there is vacancy in the
favor of legitimate descendants. inheritance brought about by predecease, or
incapacity, or disinheritance.
Exception: Illegitimate child can represent only 8.As a general rule, it is exercised only by the
when the parent represented is himself an grandchildren of the decedent (JURADO,
illegitimate child of the decedent (the representative, Succession, supra at 389-391).
the person represented, and the decedent are all
related to each other by illegitimate filiation). Testamentary Intestate
When it takes place
The property is inherited directly by the Compulsory Heir: Legal Heir:
representative from the person from whom the one 1.Dies before the 1. Dies before the
represented would have received, thus, it is not testator testator
liable for the payment of the debts of the person 2.Is unworthy to 2. Is unworthy to
represented. succeed succeed

3.Is disinherited represented had with respect to his entire legal
Effects upon the division of estate portion (JURADO, Succession, supra at 395).
Acquires the right with
Acquires the right with Representation in Adoption
respect to the entire
respect to the legitime Rule: The adopted cannot represent the adopter in
legal portion
Per stirpes the inheritance from the parents or ascendants of
the latter.
Per Stirpes
Inheritance by group, all those within the group Reason: Filiation created by fiction of law is
inheriting in equal shares. exclusively between the adopter and the adopted.
Rule: The children and descendants of the adopted
child cannot represent him in the succession to the
Representation in Direct Descending Line (CIVIL estate of the adopting parent.
CODE, Art. 972)
Takes place in the direct descending line, but never Basis: Arts. 971 and 973 of the Civil Code.
in the ascending line.
There is no legal relation between the adopter and
Takes place in the following Cases: the children of the adopted; the legal tie of adoption
1.Children concur with grandchildren, the latter is personal, and exclusively between the adopter
being the children of other children who died and the adopted.
before the decedent or who are incapable of
succeeding the decedent. The relationship established by adoption is limited
2.All children are dead or are all incapable of solely to the adopter and the adopted and does not
succeeding the decedent and grandchildren extend to the relatives of the adopting parents or of
concur with great-grandchildren, the latter being the adopted child except only as expressly provided
the children of other grandchildren who died for by law (Teotico v. Del Val, G.R. No. L-18753
before the decedent or who are incapable of March 26, 1965).
succeeding the decedent.
3.All children are dead or are all incapable of Repudiation by Representative
succeeding the decedent leaving children or If a child renounces or repudiates his inheritance
descendants of the same degree (JURADO, when his father died, he may still represent the
Succession, supra at 392). latter, when subsequently his grandfather dies
Note: In the descending line the right of (JURADO, Succession, supra 399-400).
representation is unlimited with regard to the
descendants who may succeed. Division per stirpes v. division per capita
Per capita Per stirpes
Representation in Collateral Line
The estate is divided The sole representative
Limitations:
into as many equal or group of
1.The right can be exercised only by nephews and
parts as there are representatives is
nieces of the decedent, whether they be of the full
persons to succeed. counted as one head.
blood or half-blood;
2.The right can be exercised by the nephews or
nieces of the decedent if they will concur with at Stirpes
least one brother or sister of the decedent; The series of relatives who represent one person in
3.If the nephews and nieces are the only survivors, the succession.
they shall inherit in their own right and not by right
of representation (CIVIL CODE, Art. 972); and Reasons:
4.The right is possible only in intestate succession 1. The person representing a relative in the
(JURADO, Succession, supra at 391-392). succession step into the place of the person
represented.
Note: For right of representation to attach, the heir 2. It would be unjust to the persons who succeed in
to be represented must be a compulsory heir. their own right should division per capita be
In case of testamentary succession, the adopted, because the number of the
representative acquires all of the rights which the representatives will directly affect the proportion
person represented had with respect to his legitime. that the heirs will receive in their own right.
However, in intestate succession, the representative Note: In testamentary succession, the right of
acquires all of the rights which the person representation refers to the legitime, while in

intestate succession, the right refers to the whole
share which would have been acquired by the Principle of Concurrence
person represented (JURADO, Succession, supra Under the principle of concurrence, the illegitimate
at 395). children and the surviving spouse, who are not only
legal or intestate heirs but are also primary
Intestate or Legal Heirs compulsory heirs, even when they concur with
Those who are called by law to the succession legitimate children and descendants or with
either in the absence of a will or of qualified heirs, legitimate parents and ascendants, they are not only
and who are deemed called based on the presumed entitled to their legitime, but they are also given a
will of the decedent. share in the disposable free portion (JURADO,
Regular Order of Succession (decedent is a
legitimate person): Table of Intestate Shares
1.Legitimate children or descendants (LCD); Survivor Intestate Share
2.Legitimate parents or ascendants (LPA); Any class alone Entire estate
3.Illegitimate children or descendants (ICD); LC Entire estate
4.Surviving spouse (SS); LP Excluded
5.Brothers and sisters, nephews and nieces 1/2
(BS/NN); 1/2
6.Other collateral relatives within the 5th degree 1 LC
(Arcenas v. Cinco, G.R.
(C5); and SS
No. L-29288 November
7.State (JURADO, Succession, supra at 401) 29, 1976)
Consider SS as 1 LC,
Irregular Order of Succession (decedent is an 2 or more LC
and then divide estate
illegitimate person): SS
by total number.
1.Legitimate children or descendants (LCD); LPA 1/2
2.Illegitimate children or descendants (ICD); SS 1/2
3.Illegitimate parents (IP);
LPA 1/2
4.Surviving spouse (SS);
IC 1/2
5.Brothers and sisters, nephews and nieces
IC 1/2
(BS/NN); and
SS 1/2
8.State (JURADO, Succession, supra at 401-402)
LPA 1/2
SS 1/4
Order of Concurrence
IC 1/4
1.LCD, ICD, and SS
2.LPA, ICD, and SS IP 1/2
3.ICD and SS SS 1/2
4.SS and IP (The law is silent. Apply
5.BS/NN and SS concurrence theory).
6.C5 (alone) SS 1/2
7.State (alone) BS/NN 1/2
First, satisfy legitime. If
Principle of Exclusion estate would be
The heirs higher in the order of succession exclude insufficient, reduction
those who were lower in that order of succession, must be made
1 LC
except that when the latter are compulsory heirs according to the rules
SS
they preserve their rights to legitime (TOLENTINO, on legitime. The
IC
Civil Code, supra at 457). legitime of LCD and SS
shall always be first
The order of intestate succession is based both on satisfied in preference
the principle of exclusion and the principle of to the ICD.
concurrence. First, satisfy legitime. In
case of excess in the
The principle of exclusion is still applied literally to 2 or more LC estate distribute such
the case of parents or ascendants, collateral SS excess in the proportion
relatives, and the State. In the case of others, the IC 1:2:2, in accordance
principle of concurrence applies (JURADO, with the concurrence
Succession, supra at 403). theory.

Survivor Intestate Share Illegitimate children exclude collaterals, in this
SS 1/2 sense, they are superior to the surviving spouse.
BSNN 1/2
Right of Representation Principle of Absolute Separation between the
applies. Legitimate Family and the Illegitimate Family
An illegitimate child has no right to inherit ab
1. Descending Direct Line intestato from the legitimate children and relatives of
Includes Legitimate CD, Legitimated CD and his father or mother; nor shall such children or
adopted children. relatives inherit in the same manner from the
illegitimate child (CIVIL CODE, Art. 992).
General Rule: An adopted child succeeds to the
property of the adopting parents in the same An impassable barrier exists separating or dividing
manner as a legitimate child. the members of legitimate family from those of the
Exception: If an adopter is survived by LPA and illegitimate family.
by an adopted person, the latter shall not have Although in reality an illegitimate child is related by
more successional rights than an acknowledged blood to the members of the legit family, the law
natural child (CIVIL CODE, Art. 39(4), PD 603). ignores it.
Rules of Division Reason: Intervening antagonism and incompatibility

If the decedent is survived by legitimate children between members of the legitimate family and those
or descendants, the rules are as follows: of the illegitimate family (JURADO, Succession,
a.If all of the survivors are legitimate children, supra at 419-420).
such children shall inherit in their own right.
Consequently, the inheritance shall be divided Succession to the estate does not go beyond the
among them per capita or in equal shares. parents by nature.
b.If some of the survivors are legitimate children
and the others are legitimate descendants of When the law speaks of brothers and sisters,
other legitimate children who died before the nephews and nieces as legal heirs of an illegitimate
decedent, the former shall inherit in their own child, it refers to illegitimate brothers and sisters as
right and the latter shall inherit by right of well as the child whether legitimate or illegitimate of
representation. Consequently, the inheritance such brothers and sisters.
shall be divided among them per stirpes.
c. If all of the survivors are legitimate In default of brothers and sisters, nephews and
grandchildren, such grandchildren shall inherit nieces, the law does not go any farther, other
by right of representation. Similarly, if some of collaterals are not allowed to inherit by intestate
the survivors are legitimate grandchildren and succession from the illegitimate child, the entire
the others are legitimate children or estate shall pass to the state.
descendants of other legitimate grandchildren
who died before or who are incapable of 4.Surviving Spouse
succeeding the decedent, such grandchildren He or she shall always inherit. The universal rule
and descendants shall inherit by right of is that a legal heir who is also a primary
representation (JURADO, Succession, supra at compulsory heir (surviving spouse) at the same
405-406). time is always entitled to the legitime which the
law has reserved.
2.Ascending Direct Line
They are not excluded by an adopted child. They Surviving spouse is placed in the same category
cannot exclude IC and SS. as each of the legitimate children (JURADO,
Rules of Division
a.In default of the mother and father, the rule of 5.Collateral Relatives
proximity shall be applied. In other words, the It can only refer to those within the fifth degree.
ascendants nearest in degree shall inherit.
b. Should there be more than one equal degree Where two or more collaterals concur in the
belonging to the same line, they shall divide the succession, the Rule of Proximity by virtue of
inheritance per capita. which the nearest in degree shall exclude the
more remotes ones is applicable.
3.Illegitimate Children

As an exception to the rule of proximity, the Right v. Hi-Tri Development Corporation, G.R. No. 192413
of Representation is also recognized but July 13, 2012).
extended only to nephews and nieces.
Assignment of Property:
Where survivors are of the same degree, the Rule Personal property city or municipality where the
of Preference by reason of relationship by the deceased last resided in the Philippines.
whole blood is also recognized but can be applied
only to brothers and sisters or nephews and Real property city or municipality in which the
nieces and not to other collaterals (JURADO, property is situated.
Exception: If the deceased never resided in the
Should brother and sisters survive together with Philippines respective cities or municipalities
nephew and nieces, who are children of the where the real or personal property is located (CIVIL
decedents brothers and sisters of the full blood, CODE, Art. 1013).
the latter shall inherit per capita, and the latter per When to File a Claim
stirpes (JURADO, Succession, supra at 446). Within five (5) years from the date the property was
If the only survivors are nephews and nieces of delivered to the State (CIVIL CODE, Art. 1014).
the full or of the half blood, they shall succeed to
the entire inheritance in their own right. The rule of Within five (5) years from the date of the judgment
preference by reason of blood relationship may be (RULES OF COURT, Sec. 4, Rule 91).
applied (JURADO, Succession, supra at 449).
Cardinal Principles of Intestate Succession
Should there be neither brothers and sisters, nor 1.Even if there is an order of intestate succession,
children of brothers and sisters, the other the Compulsory Heirs (CH) are never excluded.
collateral relatives shall succeed to the estate. 2.Right of Representation (RR) in the collateral line
They shall succeed without distinction of lines or occurs only in intestate succession; never in
preference among them by reason of relationship testamentary succession because a voluntary heir
by the whole blood (CIVIL CODE, Art. 1009). cannot be represented as provided in Art. 856,
par. 1.
3.The intestate shares are either equal to or greater
6.State than the legitime.
In default of LCD, PA, ICD, SS and collateral 4.General Rule: Grandchildren always inherit by
relatives within the 5th degree. RR, provided representation is proper.
In order that the State may take possession of the Exception: Whenever all the children repudiate,
property of the decedent, the procedure for the grandchildren inherit in their own right because
Escheat (RULES OF COURT, Rule 91) must be RR would not be proper.
observed. 5.Nephews and nieces inherit either by RR or in
their Own Right (OR).
Escheat a.RR: when they concur with aunts and uncles
A proceeding, unlike that of succession or (provided that RR is proper).
assignment, whereby the state, by virtue of its b.OR: when they do not concur with aunts and
sovereignty, steps in and claims the real or personal uncles.
property of a person who dies intestate leaving no 6.ICD of legitimates cannot represent because of
heir (Republic v. Solano, G.R. No. 143483, January the barrier, but both the ICD and LCD of
31, 2002). illegitimates can.
7.There can be reserva troncal in intestate
Requisites for Escheat: succession.
1.The decedent died intestate; 8.A renouncer can represent, but cannot be
2.He dies seized of real and/or personal property represented (CIVIL CODE, Art. 976).
located in the Philippines; and 9.A person who cannot represent a near relative
3.He leaves no heir or person entitled to such real cannot also represent a relative farther in degree
and personal property (JURADO, Succession, (PARAS, Civil Code, supra at 530-532).
supra at 453-454).
Compulsory succession takes place in every
Purpose: In the absence of a lawful owner, a succession. Some intestate heirs are also
property is claimed by the state to forestall an open compulsory heirs. Hence, there may be instances in
"invitation to self-service by the first comers (RCBC legal or intestate succession where it is necessary to

compute the legitime as provided under the rules on from the intestate shares of the others, in the
testamentary succession. proportions stated above.
4.If the testamentary dispositions consume the
Rules on how to Compute Legitime: entire disposable free portion, then the intestate
1. CIVIL CODE, Art. 983 If illegitimate heirs who are compulsory heirs will get only their
children survive with legitimate children, the legitime, and those who are not compulsory heirs
shares of the former shall be in the proportions will get nothing.
prescribed under Art. 895.
2. CIVIL CODE, Art. 999 When the
widow/widower survives with legitimate children or P ROVISIONS C OMMON TO
their descendants and illegitimate children or their
descendants.
I NTESTATE AND
Reason: Estate is insufficient. T ESTAMENTARY S UCCESSION
Table of Intestate Shares in the Estate of an
Adopted (FAMILY CODE, Art. 190):
Survivor Intestate share R IGHT OF A CCRETION
LCD Ordinary rules of
ICD intestate succession. When two or more persons are called to the same
SS 2:2:1 inheritance, devise or legacy, the part assigned to
LPA/IP 1/2 the one who renounces or cannot receive his share,
Adopters 1/2 or who died before testator, is added or incorporated
to that of his coheirs, codevisees, or colegatees
SS 1/2
Adopters 1/2
ICD 1/2
Requisites:
Adopters 1/2
1.Two or more persons must have been called to
ICD 1/3
the same inheritance, legacy or devise, or to the
SS 1/3
same portion thereof, pro indiviso; and
Adopters 1/3
2.There must be a vacancy in the inheritance,
Adopters alone Entire legacy or devise (caused by predecease,
Ordinary rules of incapacity, repudiation, non-fulfillment of
Collateral alone
intestate succession. suspensive condition or void or ineffective
testamentary dispositions).
How to avoid accretion
1.By expressly designating a substitute; and
M IXED S UCCESSION AND 2.By expressly providing that although accretion
P ARTIAL I NTESTACY may take place, still decedent does not want
accretion to occur (PARAS, Civil Code, supra at
536).
Succession that is effected partly by will and partly
by operation of law. Note: Accretion is a right (CIVIL CODE, Art. 1015),
not an obligation, and may therefore be accepted or
Rules: repudiated by those entitled. This is true in both
1.The law of legitimes must be brought into testate and legal succession. (Ynza v. Rodriguez, et
operation in partial intestacy, because the al., G.R. No. L-6395, June 30, 1954).
testamentary dispositions can affect only the
disposable free portion but never the legitimes. Effects of Predecease, Incapacity,
2.If among the concurring intestate heirs there are Disinheritance, or Repudiation in both
compulsory heirs whose legal or intestate portions Testamentary and Intestate Succession
exceed their respective legitimes, then the amount Testamentary
of the testamentary disposition must be deducted Intestate
Cause of Succession
from the disposable free portion to be borne by all Succession
Vacancy Free
the intestate heirs in the proportions that they are Legitime (IS)
Portion
entitled to receive from such disposable free 1. S 1. RR
portion as intestate heirs. 1. RR
Predecease 2. A 2. A
3.If the intestate share of a compulsory heir is equal 2. IS
3. IS 3. IS
to his legitime, then the amount of the Incapacity 1. RR 1. S 1. RR
testamentary disposition must be deducted only

2. A 2. A
2. IS
3. IS 3. IS
1. RR
Disinheritance _ _
2. IS
Requisites:
1. S
1. A 1.The heir, legatee/devisee must be living or in
Repudiation IS 2. A
2. IS existence at the moment the succession opens;
3. IS
and
Legend: 2.He must not be incapacitated or disqualified by
RR Right of Representation law to succeed (JURADO, Succession, supra at
A Right of Accretion 481).
IS Intestate Succession
S Substitution Two Requisites for the Possession of Capacity
to Succeed:
Summary of the Effects 1.General civil capacity of the person, whether
1.In testamentary succession: natural or artificial, according to law; and
a.Legitime: 2.No incapacity or prohibition to succeed expressly
In case of predecease of an heir, there is provided by law
representation if there are children or
descendants; if none, the others inherit in their Kinds of Incapacity to Succeed:
own right. 1.Absolute incapacity incapacitated to succeed in
any form.
In case of incapacity, results are the same as in a.Those not living at the time of death.
predecease. Exceptions:
i. Testamentary disposition in favor of
In case of disinheritance, results are the same
associations for religious, scientific, cultural,
as in predecease.
educational, or charitable purposes (CIVIL
CODE, Art. 1026).
In case of repudiation by an heir, the others
inherit in their own right. ii. Testamentary disposition in favor of a church
or denomination to which the testator may
b.Disposable free portion: belong for prayers or pious works (CIVIL
Accretion takes place when requisites are CODE, Art. 1029).
present; but if such requisites are not present, iii. Testamentary disposition in favor of the poor
the others inherit in their own right. in general. (CIVIL CODE, Art. 1030).
2.In intestate succession: b.Those who cannot be identified uncertain
In case of predecease, there is representation if persons (Persona Incierta) (CIVIL CODE, Art.
there are children or descendants; if none, the 845).
others inherit in their own right. c. Those who are not permitted by law to inherit
(CIVIL CODE, Art. 1027 par. C No. 6).
In case of incapacity, results are the same as in
predecease. 2.Relative incapacity by reason of special relation.
a.Based on Undue Influence or Interest:
In case of repudiation, there is always accretion (PPRAG)
(JURADO, Succession, supra at 470). i. Priest who heard the confession of the
testator during his last illness, or the minister
In case of predecease, incapacity or of the gospel who extended spiritual aid to him
disinheritance of an heir without representative, during the same period.
accretion may also take place.
What is essential is that there must be an
Note: Whether the succession is testamentary or imminent or impending danger of the illness
intestate, if the right of accretion takes place, the being the last as far as the testator is
heirs to whom the vacant share or portion is concerned at the time he executed the will.
assigned shall divide it in the same portion that they
inherit (JURADO, Succession, supra at 468). The basis of disqualification is the
presumption that at the threshold of death the
testator becomes an easy prey to the
C APACITY TO S UCCEED BY scheming priest or minister (Jurado,
Succession, 2009 ed., p. 484).
W ILL OR I NTESTACY
( A RT . 1024-1040)
reason of his public office (CIVIL CODE, Art.
ii. Physician, surgeon, nurse, health officer or 739).
druggist who took care of the testator during
his last illness.
Not applicable if the one who took care of the Characteristics:
testator is his spouse, ascendant or i. Possible only in testamentary succession
descendant. ii. Relative in character.
iii. Partial in the sense that if the heir who is
iii. Relatives of such priest or minister of the incapacitated or disqualified is a compulsory
gospel within the 4th degree, the church, heir, only the free portion given to him is
order, chapter, community, organization or affected, but not his legitime.
institution to which such priest or minister may
belong. c. Based on Acts of Unworthiness (A4F3P)
i. Parents who have Abandoned their children
iv. Attesting witness to the execution of a will, the or induced their daughters to lead a corrupt or
spouse, parents or children, or any one immoral life, or attempted against their virtue;
claiming under such witness, spouse, parents ii. Any person who has been convicted of an
or children. Attempt against the life of the testator, his/her
spouse, descendants or ascendants;
Note: Such disqualification does not apply if iii. Any person who has Accused the testator of a
there are three other competent witness to crime for which the law prescribes
the execution of the will. imprisonment for 6 years or more, if the
accusation has been found groundless;
v. Guardian with respect to testamentary iv. Any person convicted of Adultery or
dispositions given by a ward in his favor concubinage with the spouse of the testator;
before the final accounts of the guardianship The spouse is not included. The only time the
have been approved, even if the testator guilty spouse shall not inherit is when the
should die after the approval thereof; offended spouse act positively either by
nevertheless, any provision made by the ward securing a decree of legal separation or by
in favor of the guardian when the latter is his disinheriting him or her.
ascendant, descendant, brother, sister, or v. Any heir of full age who, having knowledge of
spouse, shall be valid (CIVIL CODE, Art. the violent death of the testator, should Fail to
1027). report it to an officer of the law within a month,
unless the authorities have already taken
Characteristics: action; this prohibition shall not apply to cases
i. Possible only in testamentary succession. wherein, according to law, there is no
ii. Relative in character. obligation to make an accusation;
iii. Partial in the sense that if the heir who is
incapacitated or disqualified is a compulsory Under our law, deaths occasioned by crime
heir, only the free portion given to him is (violent deaths) are prosecuted de oficio or at
affected, but not his legitime. the instance of the government, and thus no
one is required to make any accusation
b.Based on Morality or Public Policy (TOLENTINO, Civil Code, supra at 529).
i. Those made in favor of a person with whom
the testator was guilty of adultery or In this jurisdiction, there is no obligation
concubinage at the time of the making of the imposed by the law to make an accusation in
will. such cases (JURADO, Succession, supra at
492).
Previous criminal conviction is not necessary.
vi. Any person who by Fraud, violence,
ii. Those made in consideration of a crime of intimidation, or undue influence should cause
which both the testator and the beneficiary the testator to make a will or to change one
have been found guilty. already made;
vii. Any person who Falsifies or forges a
Previous criminal conviction is necessary. supposed will of the decedent; and
viii. Any person who by the same means Prevents
iii. Those made in favor of a public officer or his another from making a will, or from revoking
spouse, descendants and ascendants, by one already made, or who supplants,

conceals, or alters the latter's will (CIVIL The heir is restored to full capacity to succeed the
CODE, Art. 1032). decedent, as if the cause of unworthiness had never
existed.
Characteristics:
i. Based on offenses committed by the Time to Determine the Capacity
disqualified person against the decedent
which renders him unworthy to succeed. General Rule: At the moment of the death of the
ii. Applicable BOTH in testamentary and legal decedent.
succession.
iii. Relative in character. Exceptions:
iv. Total in the sense that it extends not only to 1.Those disqualified under nos. (2), (3) and (5) of
the free portion but also to the legitime. Art. 1032 of the Civil Code - necessary to wait until
the final judgment is rendered.
d.By Operation of Law 2.Those disqualified under no. (4) of Art. 1032 of the
i. Incapacity of the guilty spouse to inherit from Civil Code - necessary to wait for the expiration of
the innocent spouse if there is a decree of the month allowed for the report.
legal separation. 3.If the institution of the heirs, legacy or devise is
ii. Incapacity of illegitimate children and conditional - time of the compliance with the
legitimate relatives of the decedent to inherit condition shall be considered (JURADO,
from each other. Succession, supra at 495-496).
iii. Incapacity of the adopter to inherit from his
adobted child (JURADO, Succession, supra at The action for a declaration of incapacity and
482). recovery of the inheritance, devise or legacy shall
be 5 yrs. from the time the disqualified person
Pardon of Acts of Unworthiness took possession thereof (CIVIL CODE, Art.
Reconciliation between the testator and the offender 1040).
will render the disinheritance ineffective, and the heir
will be restored to his inheritance. But if the testator Effect of Incapacity upon Compulsory Heirs
has not made an express disinheritance, then the 1.Incapacity based on undue influence (CIVIL
laws on disinheritance cannot operate; the rules on CODE, Art. 1027) and Morality or Public Policy
unworthiness must apply, and the capacity of the (CIVIL CODE, Art. 739).
heir can be restored only by the means of pardon
(TOLENTINO, Civil Code, supra at 538). Only the free portion given to the heir is affected,
but not his legitime (JURADO, Succession, supra
Only the decedent himself can erase the effects of at 496).
acts of unworthiness.
2.Incapacity based on act of unworthiness (CIVIL
Executive clemency, or pardon by the President CODE, Art. 1032)
does erase the unworthiness or incapacity of the
heir (TOLENTINO, Civil Code, supra at 537). Disqualifies a compulsory heir from succeeding
even to his legitime.
Express v. Implied Pardon a.Testamentary Succession
Express Implied Children or descendants of the unworthy child or
Made by the execution Effected when testator descendant shall acquire his right to the
of a document or any makes a will instituting legitime.
writing in which the the unworthy heir with b.Intestate Succession
decedent condones the knowledge of the cause Children or descendants of the unworthy child or
cause of incapacity. of incapacity. descendant shall succeed to the entire share
Can take place in either Can take place only in which is rendered vacant.
testamentary or testamentary
intestate succession. succession. Note: (a) and (b) apply only if the compulsory heir is
Revoked when the a child or descendant of the decedent.
Cannot be revoked. testator revokes the will
or the institution. Remedy against Disqualified Heir
In case the disqualified heir, devisee or legatee has
Effect of Pardon already taken possession of the property, the
remedy is an action for:
1.Declaration of incapacity

2.Recovery of the inheritance, devise or legacy Incapacitated
(e.g. deaf-
legal
Note: The executor or administrator or anyone who mute who
legal representative
may have an interest in the succession has five (5) cannot read
representative WITH judicial
years from the time the disqualified person took and write,
authorization
possession of the inheritance, devise or legacy to under civil
file the action. Beyond that, the action shall interdiction
prescribe (CIVIL CODE, Art 1040). Person
designated by
the testator to Beneficiaries
A CCEPTANCE AND If the
determine the themselves
beneficiaries once they are
R EPUDIATION OF beneficiary is
and to determined
the poor
I NHERITANCE distribute the (CIVIL CODE,
property. Art. 1044)
( A RT . 1041-1057) In default, the
executor.
If the
Acceptance beneficiary is Legal
The act by virtue of which an heir, legatee or a corporation, Legal representative
devisee manifests his desire in accordance with the association, representative WITH judicial
formalities prescribed by law to succeed to the institution, or authorization
inheritance, legacy or devise. entity
With the With the
Repudiation Public official
governments governments
The act by virtue of which an heir, legatee or establishment
approval approval
devisee manifests his desire in accordance with the May accept May repudiate
formalities prescribed by law NOT to succeed to the Married without her without her
inheritance, legacy or devise. woman husbands husbands
consent consent
Characteristics (CIVIL CODE, Art. 1041): (VIR)
1.Voluntary and free
Manner of acceptance
2.Irrevocable, except if there is vitiation of consent
1.Express Acceptance one made in a public or
or an unknown will appears
private document.
3.Retroactive
2.Tacit Acceptance one resulting from acts by
which the intention to accept is necessarily implied
Requisites (CIVIL CODE, Art. 1043):
or which one would have no right to do except in
1.Certainty of the death of the decedent; and
the capacity of an heir (CIVIL CODE, Art. 1049).
2.Certainty of the right to the inheritance
Tacit acceptance is presumed from certain acts
Acceptance v. Repudiation:
of the heir as:
1.Acceptance involves the confirmation of
1.If he sells, donates, or assigns his right;
transmission of successional rights, while
2.If he renounces it, even though gratuitously, for
Repudiation renders such transmission ineffective.
the benefit of one or more his co-heirs;
2.Repudiation is equivalent to an act of disposition
3.If he renounces it for a price in favor of all his co-
and alienation.
heirs indiscriminately.
3.The publicity required for repudiation is necessary
4.Other acts of tacit acceptance:
for the protection of other heirs and also of
a.Heir demands partition of the inheritance.
creditors (JURADO, Succession, supra at 506-
b.Heir alienates some objects of the inheritance.
507).
c. Acts of preservation or administration if, through
such acts, the title or capacity of heir has been
Who may Accept or Repudiate assumed.
Acceptance Repudiation d.Filing of a complaint for the partition of
Any person inheritance.
having the free e.Compromises regarding objects and rights
In general Same
disposal of his included in the inheritance.
property f. Exercise of any action which pertained to the
Minors & Guardian or Guardian or decedent during his lifetime and which survives.

g.Enjoyment of the inheritance itself. 3.Reduction determining to what extent the
h. Under Art. 1057, failure to signify acceptance or donation will remain and to what extent it is
repudiation within 30 days after an order of excessive or inofficious.
distribution by the probate court (JURADO, 4.Restitution return or payment of the excess to
Succession, supra at 506). the mass of hereditary estate.
Manner of Repudiation Concept of Collation

1.Public instrument (acknowledged before a notary 1.Fictitious mathematical process of adding the
public). value of the thing donated to the net value of the
2.Authentic document (equivalent of an indubitable hereditary estate (CIVIL CODE, Art. 908 and Arts.
writing; or a writing whose authenticity is admitted 10611077).
or proved). Purpose: To compute the legitime of compulsory
3.By petition presented to the court having heirs.
jurisdiction over the testamentary or intestate 2.Act of charging or imputing such value against the
proceeding (JURADO, Succession, supra at 507). legitime of the compulsory heir to whom the thing
was donated (CIVIL CODE, Arts. 10611077).
Reason for Formality: Law considers that the act Purpose: To take the donations in the account of
of repudiation is more solemn than the act of partition in order to equalize the shares of the
acceptance and that repudiation produces more compulsory heirs as much as possible.
violent and disturbing consequences. 3.Actual act of restoring to the hereditary estate that
part of the donation which is inofficious in order
Heir in two Capacities not to impair the legitime of compulsory heirs
An heir who is such by will and by law, and he (JURADO, Succession, supra at 315).
repudiates the inheritance as a testamentary heir,
will be considered to have repudiated the Obligation to Collate
inheritance in both capacities. But when an heir Every compulsory heir, who succeeds with other
repudiates as a legal heir, he may later on accept as compulsory heirs must bring into the mass of the
a testamentary heir (JURADO, Succession, supra at estate any property or right which he may receive
509). from the decedent, during the lifetime of the latter,
by way of donation, or any other gratuitous title, in
Effect of Acceptance and Repudiation order that it may be computed in the determination
General Rule: Irrevocable of the legitime of each heir, and in the account of
Exceptions: partition (CIVIL CODE, Art. 1061).
1.If made through any of the causes that vitiates
consent (mistake, violence, intimidation, undue Note: Express provision by the testator exempting
influence and fraud). an heir from collation does not mean no collation at
2. When an unknown heir will appear. all. The heir is merely considered as a stranger and
what he has received from the testator must be
charged from the free portion (TOLENTINO, Civil
C OLLATION Code, supra at 572-573).
Persons Obliged to Collate:

Collation
1.General Rule: Compulsory heirs
An act of returning or restoring to the common mass
Exceptions:
of the estate, either actually or fictitiously, any
a.When the testator should have so expressly
property which a person may have received from the
provided; and
decedent during the latters lifetime, but which is
b.When the compulsory heir should have
understood for legal purposes as an advance from
repudiated his inheritance.
the inheritance (CIVIL CODE, Art. 1061).
In these cases, the donation shall be charged to
Operations related to collation:
the free portion and not to the legitime.
1.Collation adding to the mass of the hereditary
estate the value of the donation or gratuitous
When the law says that collation shall not take
disposition.
place, what it actually meant is that the value of
2.Imputing or Charging crediting the donation as
the thing donated shall not be imputed against the
an advance on the legitime (if the donee is a
legitime of the beneficiary; instead, it shall be
compulsory heir) or on the free portion (if the
imputed against the disposable free portion (CIVIL
donee is a stranger).
CODE, Art. 513).

Wedding gifts by parents and ascendants
2.Grandchildren who survive with their uncles, consisting of jewelry, clothing, and outfit except
aunts, or 1st cousins, and inherit by right of when they exceed 1/10 of the sum disposable by
representation. will.
Note: Grandchildren may inherit from grandparent These are imputable to the free portion.
in their own right (i.e. heirs next in degree) and not
by right of representation if their parent repudiates
the inheritance of the grandparent, as no living R ULES FOR E QUALIZATION
person can be represented except in cases of
disinheritance and incapacity. (In such case
OF S HARES
grandchildren are not obliged to bring to collation
what their parent has received gratuitously from General Rule: Co-heirs shall receive an equivalent,
their grandparent). as much as possible, in property of the same nature,
class and quality (CIVIL CODE, Art. 1073).
Persons Not Obliged to Collate: Surviving Spouse
Reason: Donations during marriage between Exception: If it would be impracticable to give the
spouses are prohibited; they are completely void, co-heirs an equivalent in property and:
and so the property donated must be considered 1.The property donated was immovable
physically, and not only numerically, as part of the
estate of the donor spouse. Give the co-heirs its equivalent in cash or
securities at the rate of quotation; and if
What to Collate: impossible and impracticable, sell at public auction
1.Any property or right received by gratuitous title as much of the other property as may be
during the testators lifetime. necessary.
2.All that they may have received from the decedent
during his lifetime. 2.The property donated was movable (CIVIL CODE,
3.All that their parents would have brought to Art. 1074)
collation if alive.
4.Any sums paid by a parent in satisfaction of the Co-heirs shall only have a right to select an
debts of his children, election expenses, fines, and equivalent of other personal property of the
similar expenses (CIVIL CODE, Art. 1069). inheritance at its just price.
Note: Only the value of the thing donated shall be

brought to collation. This value must be the value
of the thing at the time of the donation, even
though its just value may not have been assessed
P ARTITION
AND
Properties Not Subject to Collation: D ISTRIBUTION OF E STATE
1.Parents are not obliged to bring to collation in the
inheritance of their ascendants any property which Partition
may have been donated by the latter to their It is the separation, division and assignment of a
children (CIVIL CODE, Art. 1065); thing held in common among those to whom it may
2.Donations to the spouse of the child (CIVIL belong. It includes every act which is intended to put
CODE, Art. 1066); an end to indivision among coheirs and legatees or
3.Expenses for support, education (elementary and devisees, although it should purport to be a sale, an
secondary only), medical attendance, even in exchange, compromise, or any other transaction. It
extraordinary illness, apprenticeship, ordinary is not subject to any form (CIVIL CODE, Art. 1079 &
equipment, or customary gifts. (CIVIL CODE, Art. 1082).
1067);
4.Generally not imputable to legitime: Kinds of partition under the rules of court:
Expenses incurred by parents in giving their 1.Extrajudicial Settlement (RULES OF COURT,
children professional, vocational or other career Rule 74, Sec. 1,)
unless the parents so provide, or unless they Requisites:
impair the legitime. a.The property must belong to the estate of the
decedent;
b.Decedent died without a will;

c. Decedent has no creditors; and
d.Decedent's heirs are all of age or the minors are Rationale: Since succession is a mode of
represented by their judicial or legal acquiring ownership, it is only upon the death of
representatives; and the testator, that the heirs may acquire ownership
e.The partition was made by means of a public of the property.
instrument or affidavit filed with the Register of
Deeds. Illustration: Estate of A consists of RTW factory
and cash. A has 3 compulsory heirs X, Y and Z. A
The fact that the document was not notarized is no wants the factory to go to X. A makes a partition
hindrance to its effectivity. The partition of "Factory to X. Y and Z are to get their legitime in
inherited property need not be embodied in a cash."
public document (Alejandrino v. CA, G.R. No.
114151, September 17, 1998). This is valid. Because legitimes are only values
and not specific properties. Also, the legitimes are
2.Ordinary Action for Partition (RULES OF COURT, not impaired.
Rule 69);
3.Judicial Summary Settlement (RULES OF Art. 1080 allows the person to make a partition. If
COURT, Sec. 2, Rule 74); and the partition is by will, it must be with the
Applies only when the gross value of the estate formalities on wills. If the partition is by an act
does not exceed P10, 000.00. inter vivos, the partition may be oral or written, and
4.Administration Proceedings (RULES OF COURT, need not be in the form of a will, provided the
Rules 79-91). partition does not prejudice the legitime of the
compulsory heirs.
Prohibition to Partition:
1.The prohibition to partition for a period not 2.By will (Partition Mortis Causa) (CIVIL CODE, Art.
exceeding twenty (20) years can be imposed on 1080)
the legitime. A partition agreement which was executed
2.If the prohibition to partition is for more than pursuant to a will that was not probated cannot be
twenty (20) years, the excess is void. given effect. Before any will can have any force or
3.Even if a prohibition is imposed, the heirs by validity it must be probatedthis cannot be
mutual agreement can still make the partition dispensed with and is a matter of public policy
(PARAS, Civil Code, supra at 646). (Rodriguez v. Rodriguez, G.R. No. 175720,
September 11, 2007).
Who may Effect Partition:
1.Decedent himself during his lifetime by an act Partition by Third Person
inter vivos or by will; What is entrusted or delegated is the power of
2.3rd person designated by the decedent; partition not the power to distribute the hereditary
3.Heirs themselves; or estate. The mere power of partition may be
4.Competent court (JURADO, Succession, supra at delegated either by an act inter vivos or by an act
528) mortis causa (CIVIL CODE, Art. 1081).
Partition by Decedent Who can Demand Partition:

1.Compulsory heir;
Two ways of partition by the Decedent: 2.Voluntary heir;
1.By an act inter vivos (Partition Inter Vivos) (CIVIL 3.Legatee or devisee;
CODE, Art. 1080) 4.Any person who has acquired an interest in the
The rules regarding ordinary conveyance of estate.
personal and real properties must be followed.
Partition Cannot be Demanded: (PAPU)
Constitutes an exception to the rule declared in 1.When expressly Prohibited by the testator himself
the 2nd paragraph of Art. 1347 of the Code that no for a period not exceeding 20 years;
person can enter into a contract with respect to 2.When the coheirs Agreed that the estate shall
future inheritance. not be divided for a period not exceeding 10
years, renewable for another 10 years;
Note: The testator may still revoke the partition 3.When Prohibited by law;
done by his own act inter vivos because during 4.When to partition the estate would render it
such time, that is, before his death, he is still the Unserviceable for the use for which it is intended.
owner of the property.

Note: Partition is not itself a mode of acquiring Note: The redemption can be exercised only by a
ownership, nor a title thereto. This partition, being co-heir (TOLENTINO, Civil Code, supra at 606).
predicated on succession, necessitates relationship
to the decedent (in case of intestacy) or a will duly Effects of Partition:
probated (in case of testacy). A partition inter vivos A partition legally made confers upon each heir the
made in favor of intestate heirs could be operative. exclusive ownership of the property adjudicated
Dispositions, however, to nonintestate heirs may (CIVIL CODE, Art. 1091).
suffer an impediment unless based on a valid will,
except perhaps when such dispositions are intended After the partition, the coheirs shall be reciprocally
to take effect during the life of the testator and the bound to warrant the title to (warranty against
formalities of donations are properly complied with. eviction) and the quality of (warranty against hidden
defects) each property adjudicated (CIVIL CODE,
Provisional Partition Rules: Art. 1092).
1.Voluntary heir upon whom some condition has
been imposed cannot demand partition until the The Obligation of Warranty shall Cease in the
condition has been fulfilled; following Cases:
2.Other co-heir/s demand partition; and 1.When the testator himself has made the partition
3.Other co-heir/s must give security sufficient to unless his intention was otherwise, but the
cover the rights of the conditional/ suspensive heir legitime shall always remain unimpaired;
in case the condition should be complied with 2.When it has been expressly stipulated in the
(CIVIL CODE, Art. 1084). agreement of partition, unless there has been bad
faith; and
The partition will become permanent after: 3.When the eviction was due to a cause subsequent
1.The condition was fulfilled; to the partition, or has been caused by the fault of
2.It is known that the condition has not been fulfilled the distributee of the property.
or can never be complied with.
Prescriptive Period to enforce Warranty among
Constructive Partition coheirs Ten (10) years from the right of action
Should a thing be indivisible, or would be much accrues.
impaired by its being divided.
When a Credit is Assigned
Remedies available to heirs: The co-heirs are only liable for the debtors
1.Adjudicate the thing to one of the heirs provided insolvency at the time of the partition (also called
he shall pay the others the excess in cash; or warranty of the solvency of the debtor).
2.Demand that the thing be sold at public auction
and strangers be allowed to bid (CIVIL CODE, Art. No warranty for bad debts if such is known to the
1086). distribute (CIVIL CODE, Art. 1095).
Legal Redemption In Favor of Coheirs
Right of legal redemption predicated upon the fact Prescriptive Period of Warranty for Solvency of
that the sale made by the coheir is effected before Debtor Five (5) years from partition.
the partition of the estate but after the death of the
decedent (CIVIL CODE, Art. 1088). Effects of Inclusion of Intruder in Partition
1.Between a true heir and several mistaken heirs
This pertains to the sale of not mere specific (CIVIL CODE, Art. 1105):
property but hereditary or successional rights (CIVIL
CODE, Art. 1630). The partition is void.
Requisites: The declaration of nullity shall result in the delivery

1.There must be several coheirs; of everything that had been adjudicated to the true
2.One of them sells his right to a stranger; heir.
3.The sale is made before the partition;
4.The right of redemption must be exercised by one 2.Between several true heirs and a mistaken heir
or more of the coheirs w/in 1 month from the time (CIVIL CODE, Art. 1105):
they were notified in writing by the coheir vendor;
and The transmission to mistaken heir is void.
5.The vendee is reimbursed for the price of the sale

3.Through error or mistake, share of true heir is Exceptions:
allotted to mistaken heir (CIVIL CODE, Arts. 1104 1.When the legitime of the compulsory heir is
and 1105): prejudiced; and
2.When it appears or may reasonably be presumed
The partition shall not be rescinded unless there is that the intention of the testator was otherwise.
bad faith or fraud on the part of the other persons
interested, but the latter shall be proportionately If the lesion is less than 1/4, rescission will not lie;
obliged to pay the true heir of his share. the proper action is one for damages.
The partition with respect to the mistaken heir is The action for rescission on account of lesion
void. prescribes after 4 years from judicial approval of the
partition (CIVIL CODE, Art. 1100; Samson v.
A void will may be a valid partition: Araneta, G.R. No. 39697, April 5, 1934).
1.If the will is in fact a partition; and
2.If the beneficiaries in the void will are legal heirs. Options for the Sued Heir:
1.Indemnify the plaintiff; or
Grounds for Rescission and Annulment of 2.Consent to a new partition.
Partition
Same as in contracts
1.Rescission Arts. 1381 to 1382.
2.Annulment Art. 1390.
a. Party incapable of giving consent
a. Vitiated consent
i. Mistake;
ii. Violence;
iii. Intimidation;
iv. Undue influence; and
v. Fraud
Partition with Preterition (CIVIL CODE, Art. 1104)
General Rule: A partition made with preterition

cannot be rescinded.
Exception: When it can be proved that there was

bad faith or fraud on the part of the other persons
interested.
Remedy of Preterited Heir

Demand that the persons interested be
proportionally liable for his share in the inheritance.
Rescission of Partition Due to Lesion

If in the partition, anyone of the co-heirs should
receive a share whose value is less, by at least ,
than the share to which he is entitled, considering
the value of the things at the time they were
adjudicated, the partition, whether judicial or
extrajudicial, may be rescinded on account of the
lesion (CIVIL CODE, Art. 1098).
Prescriptive Period: Four (4) years from partition.
General Rule: If the partition was effected by the

decedent himself either by an act inter vivos or by
will, it cannot be impugned on the ground of lesion.


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legitime (CIVIL CODE, Art. 886).

3.Ecclectic Theory Exists both on Exists only in case

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Illustration Rules on Ordinary Absence (CIVIL CODE, Art.

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Monetary obligations are excluded in the

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Requisites of Testamentary Capacity: Circumstances which do not affect testamentary

Presumption of Sound Mind 2.Infirmity or Disease

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5.Belief in Supernatural Article 810 provides that in the case of holographic

Exception: If at the time of the making of the will, Special Formalities

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6.Notarial Acknowledgment a.Deaf or DeafMute Testator

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Illustration: In an instance where the testator Kinds:

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Exception (for practical consierations): Intimidation when the testator is compelled by a

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Rules on Prohibitions on Marriage:

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Note: When in doubt as to whether there is a Kinds of Legitime:

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Nature: It is an exception to both the system of RESERVATARIOS RESERVISTA

The Resolutory Conditions are:

Purposes: Must be a legitimate relative because reserva

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4.To Appraise value of all reservable movable Thus:

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Note: The reverse order of the foregoing shall be

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Valid Disinheritance v. Preterition Accusation may be either in the capacity of a

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Peculiar Causes for disinheritance Note: Final judgment of conviction is not

d.When the child/descendant leads a Revocation of Disinheritance:

2.Parents/Ascendants: (CALA) Once disinheritance has been revoked or rendered